Van der Merwe v Road Accident Fund

The appellant, Ms Amoré van der Merwe, was a 19-year-old passenger seated on the back of a bakkie which capsized and rolled over her on 27 October 2012 near Modimolle in Nylstroom. She suffered severe orthopaedic injuries including a fracture of the right femur, dislocation of the right hip, bilateral pelvic fractures, soft tissue injuries, and lumbar spine injury. She received a total hip replacement in August 2014. The Road Accident Fund (RAF) conceded full liability on the merits at the pre-trial conference held on 3 October 2017. The RAF also conceded general damages of R800,000 and agreed to provide an undertaking for future medical expenses under section 17(4)(a) of the Road Accident Fund Act. The only issue for trial was loss of earnings/earning capacity. The plaintiff testified from New Zealand via Skype, along with two expert witnesses. The RAF closed its case without calling witnesses and without cross-examining the plaintiff or her experts. In closing argument, for the first time, the RAF raised that a fall from stairs on 8 October 2015 constituted a novus actus interveniens breaking the chain of causation.

• Whether the defendant was permitted to raise novus actus interveniens for the first time in closing argument without pleading it or cross-examining the plaintiff on the issue
• Whether a fall from stairs approximately three years after the motor vehicle accident constituted a novus actus interveniens that broke the chain of causation
• Whether the trial court erred in granting absolution from the instance based on the novus actus argument
• The requirements for establishing a novus actus interveniens in delictual claims
• Whether reasonable foreseeability of an intervening event prevents it from constituting a novus actus interveniens

1. The application to introduce new evidence was dismissed with costs including costs of two counsel. 2. The appeal was upheld with costs including costs of two counsel. 3. The order of the full court was set aside and replaced with an order that: (a) upheld the appeal with costs of two counsel; (b) set aside the trial court order; (c) declared the defendant 100% liable for plaintiff's agreed or proven damages; (d) ordered the defendant to furnish an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996; (e) ordered the defendant to pay R800,000 in general damages; (f) ordered the defendant to pay the plaintiff's costs; and (g) remitted the quantification of loss of earnings to the trial court for determination.

1. A party cannot plead one case and attempt to present another case at trial. A substantial defence such as novus actus interveniens must be properly pleaded and the opposing party must be given an opportunity to respond through cross-examination. Trial by ambush cannot be countenanced. 2. To constitute a novus actus interveniens that breaks the chain of causation, the intervening event must not be reasonably foreseeable at the time of the initial wrongful act. If it is reasonably foreseeable that an intervening event might occur, it cannot be considered a novus actus. 3. Where a plaintiff suffers mobility restrictions and balance problems as a result of the original accident, subsequent falls are reasonably foreseeable and do not constitute a novus actus interveniens breaking the chain of causation between the original wrongful conduct and the damages claimed. 4. The mere fact that a plaintiff sustains injuries in a subsequent incident does not establish that there was a new intervening cause which broke the chain of causation - expert or factual evidence is required to show the event was unforeseeable and unconnected to the sequelae of the original injuries.

The court made observations about the appropriateness of employing two counsel at different stages of litigation. It noted that appearance of two counsel at the trial stage, where merits were conceded and most heads of damages agreed, was not warranted, though employment of two counsel on appeal was justified given the novus actus point that had arisen. The court also declined to admit further medical evidence on appeal from Dr Preddy regarding the causal link of the knee injury, noting that this evidence would take the matter no further given the court's findings on the novus actus issue. The court expressed concern about the extensive period that had passed since the 2012 accident and the prejudice suffered by the plaintiff due to prolonged litigation, though ultimately concluded that despite these concerns, the complexity of the actuarial calculations for loss of earnings required remittal to the trial court rather than determination by the appeal court.

This case is significant for establishing important principles regarding procedural fairness and the defence of novus actus interveniens in South African delictual claims. It reinforces that parties cannot raise substantial defences for the first time in closing argument without proper pleading and without affording the opposing party an opportunity to respond through cross-examination. The judgment provides authoritative guidance on when an intervening event will constitute a novus actus interveniens, emphasizing that reasonable foreseeability is the key test - if an intervening event is reasonably foreseeable given the nature of the original injury, it cannot break the chain of causation. The case is particularly relevant to Road Accident Fund litigation and personal injury claims where plaintiffs suffer subsequent incidents related to their original injuries. It demonstrates the courts' intolerance for "trial by ambush" tactics and reinforces procedural fairness requirements in civil litigation.