Genevieve Serra|Published
The Western Cape High Court has ordered the Road Accident Fund (RAF) to pay an injured pedestrian more than R5.45 million after ruling that payments made by her medical scheme did not reduce the Fund’s liability for accident-related medical expenses.
The woman, who was identified in the court papers, was injured in a motor vehicle accident in Mitchells Plain on September 4, 2021. She suffered a brain injury and a fractured femur and required extensive medical treatment.
Why the RAF opposed the claim
She told the court that she had been struck by an unknown vehicle and that her injuries had significantly affected her life.
The case concerned whether payments made by her medical scheme, Discovery Health, for past hospital and medical expenses relieved the RAF of its obligation to compensate her for those expenses.
At the start of the trial, the RAF sought a postponement, saying it was awaiting clarity on legal issues concerning the recovery of expenses from medical schemes.
According to the court papers, the court refused the application, emphasising that the RAF’s arguments had already been addressed in previous rulings.
Court rejects argument over Discovery payments
The court found that the past medical expenses paid by Discovery Health constituted res inter alios acta — a separate matter that could not affect the woman’s right to compensation from the RAF.
The RAF had agreed to accept liability for 100% of the woman’s proven or agreed damages arising from the injuries she sustained in the collision.
Judge Melanie Holderness ordered the RAF to pay the woman’s attorneys:
- R1.3 million for general damages;
- R3,559,595 for future loss of earnings; and
- R591,368.93 for past hospital and medical expenses.
The court also ordered the RAF to provide an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996.
This undertaking covers 100% of the costs of the woman’s future accommodation in a hospital or nursing home, as well as treatment, services or goods required as a result of the injuries she sustained in the collision.
The capital amounts must be paid within 180 calendar days of the date of the order by electronic transfer into the trust account of the woman’s attorneys, Sohn and Wood Attorneys.
The RAF will also be liable for interest on the capital amounts at the prescribed rate from 14 days after the date of the order until the date of final payment.
In support of its postponement application, the RAF submitted that it sought clarity on whether a medical scheme could recover its losses through its member acting as its agent, as well as on its right of recovery as a short-term insurer.
Future medical and care costs
The application was opposed by the woman. She argued that, regardless of pending appeals before higher courts, the RAF had always accepted liability where past medical expenses had been paid by a medical scheme.
The matter referred to previous litigation involving Discovery Health and the RAF.
The woman called three witnesses: a team leader in Discovery’s third-party recovery services department, an industrial psychologist and the woman herself. The RAF closed its case without calling any witnesses.
The Discovery representative explained that her department recovers past hospital and medical expenses paid by Discovery on behalf of members injured in motor vehicle accidents.
She said the department prepares a schedule of payments covering the period from the date of the accident to the last date of treatment. The schedule is checked to ensure that it includes only claims relating to injuries sustained in the accident.
According to the updated schedule, service providers claimed R532,017.13, of which Discovery paid R459,608.63. The woman paid the shortfall.
The woman confirmed that she was familiar with Discovery’s schedule and had checked the vouchers. She said they related to the accident.
She did not have the means to pay the shortfall or additional expenses that Discovery had not covered. Her father paid these costs on her behalf through a loan, which she had not yet repaid.
The woman’s injuries and treatment
The additional expenses included accounts from a biokineticist and a general practitioner, as well as pain medication.
The court heard that the woman fractured her femur and nearly tore the anterior cruciate ligament in her left knee.
After six weeks of bed rest, she underwent a procedure to manipulate her leg under anaesthesia because her knee would not bend. She then received physiotherapy as an inpatient and for a further four months after her discharge.
She later consulted a biokineticist to regain her mobility because she struggled to climb stairs and get in and out of a car.
The court heard that she continued to experience pain and had not fully recovered. She also began suffering from severe migraines after the accident, which she had not experienced before. She sought treatment for the migraines in 2025.
Since the accident, she has employed a domestic worker one day a week at a cost of R450 per day for labour and travel, or R1,800 per month, because her knee made it difficult for her to bend.
She told the court that she would not have incurred this expense had she not been injured.
“The central issue under this head is whether the payment by Discovery of the plaintiff’s past hospital and medical expenses relieves the Fund of its statutory obligation to compensate her for those expenses,” Judge Holderness said.
“The Fund did not dispute that the expenses were incurred, that they were reasonable, or that they were caused by the injuries the plaintiff sustained in the accident. Its sole contention was that it is not liable for the portion paid by Discovery.”