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[2016] ZAGPJHC 140
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Mbewe v Road Accident Fund (2014/00687) [2016] ZAGPJHC 140 (2 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2014/00687
DATE:
02 JUNE 2016
In
the matter between:
MBEWE,
TIMOTEYO
KANKHOMBA
..................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
DOSIO
AJ:
INTRODUCTION
[1]
The issue to be decided by this is court is whether the Defendant is
liable to pay for the costs to register and administer
a Trust in
respect to the money awarded to the Plaintiff.
[2]
The Plaintiff’s Counsel is of the contention the costs to
register and administer a trust should be born by the Defendant,
whereas the Defendant contends that it should not be liable for these
costs.
BACKGROUND
[3]
The issue of merits was settled on a 80% to 20% in favour of the
Plaintiff. The Defendant agreed to pay the capital of R150000-00
to
the Plaintiff for loss of income. The question of general damages has
been postponed
sine die
to the Health Professions Council of South Africa. The Defendant
agreed to provide the Plaintiff with an undertaking in terms of
section 17(4)(a) of the Road Accident Fund Act, 56 of 1996 (“the
Act”), limited to 80% of the cost of the future accommodation
of the Plaintiff in a hospital or nursing home or treatment of or
rendering of a service or supplying of goods to him arising out
of
injuries sustained in the motor vehicle accident of the 1
st
of June 2012.
THE
PARTIES’ CONTENTIONS
[4]
Counsel for the Plaintiff argued that there is no certainty from the
clinical
psychologists, namely Ms Kok and
Dr Gordon as to what role the plaintiff’s pre-morbid
low
intellect played in respect to his current cognitive problems.
Counsel argued the
experts use terminology
such as “
might have contributed to
his present level of
neurocognitive
functioning”
. At no stage do the
experts say his current problems are
due to
his pre-existing functioning. Accordingly, the Plaintiff should be
given the benefit
of the doubt. It was
contended further, that the Plaintiff would have continued to receive
his income for as long as he would have been able
to work. The accident is the cause
why this
matter is currently in court and why an award for loss of earnings
was paid to
the Plaintiff. Counsel argued
that had it not been for the accident, it would not have
been
necessary to create a trust. Accordingly, the Defendant should be
held liable for
the costs of the
registration and administration of this trust. Counsel argued that
the
principle of the “Thin skull
rule” applies and that the fact that the Plaintiff had a low
intellect at the time of the accident, cannot
jeopardise him for being unable to manage his affairs and
accordingly claim
the expenses of registering and administering
a trust.
[5]
Counsel for the Defendant stated that prior to the accident the
Plaintiff was a labourer,
doing manual
related work. Post-accident, he works as a hawker due to the injuries
sustained. It was argued that the Plaintiff’s
inability to perform his premorbid duties is
not
due to any neurological mental deficit, it is due to the physical
injuries he sustained
to his knee and
ankle, that prevent him from doing hard labour. Counsel argued that
there is no link between the injuries sustained in
the accident and the alleged
neurological
problems. The joint minute of the neurological surgeons, namely Dr
Scheltema and Dr Ouma state that the Plaintiff was
in good health prior to the accident
and
that he suffered, at most, a mild concussion during the accident
resulting from
which they cannot find any
neurological sequelae.
[6]
Counsel argued that if one looks at the joint minute of the clinical
psychologists, namely
Ms Kok and Dr Gordon,
Ms Kok states that “
Mr Mbewe
reported that he did not
loose any
consciousness in the accident further corroborating the opinion by Dr
Ouma
that he sustained a very mild
traumatic brain injury. Research indicates that such minor
injuries do not typically result in
long-lasting deficits…that his performance is likely a
reflection of his premorbid functioning.”
Counsel argued that the Plaintiff
has a low
level of education as he passed
Standard two (2) in Malawi after many attempts, and
that
had it not been for his low level of education, he would not have
needed a trust.
In addition, it was
contended that there is no certainty from the reports that the
accident
is linked to his ability to
perform mentally. Accordingly, in the light of this uncertainty,
the Defendant should not be liable.
[7]
Defendant’s Counsel referred this court to the decision of
Road
Accident Fund and Patrick Norman Arendse
[2003]
1 All SA 139
SCA, where it was stated that due to the
fact
that it was never pleaded in the particulars of claim that the costs
of the creation of
a trust should be borne
by the Road Accident Fund (“RAF”), that such costs were
not
granted. Counsel argues the same
principle should apply in this case.
EVALUATION
[8]
All the experts are in agreement that the Plaintiff has suffered a
mild concussive brain injury and that there was a loss of
consciousness. It is also agreed by the experts that should any funds
be awarded, they should be protected and that a trust be
created.
[9]
It is common cause that from the joint minutes of the clinical
psychologists Ms Kok and Dr Gordon that post-accident, (i) the
Plaintiff’s attention fluctuated leading to erratic
performance, (ii) he suffered from inadequate attention and
concentration,
(iii) delayed simple and complex mental tracking, (iv)
below average processing speed, (v) retroactive interference, (vi)
delayed
working memory, (vii) delayed verbal abstract reasoning
ability, (viii) impaired verbal fluency and mental flexibility and
(ix)
delayed visual abstract reasoning.
[10]
Although Ms Kok states that the pre-existing condition might have
contributed to the Plaintiff’s level of neurocognitive
functioning, this is not expressed in certain terms. This court
cannot agree with the Defendant’s Counsel that the Plaintiff’s
current cognitive problems are not accident related. The medico-legal
report of Dr B.K Cheyip with specific reference to the neurological
sequelae states that “
Mr Mbewe
presented with short term memory loss, behavioural changes or mood
swings and sleep
disturbances,
these are all features of post-traumatic stress disorder. I recommend
assessment by a neuropsychologist and psychiatrist.”
Accordingly, from this report it is
clear that there were neuropsychological disturbances caused by this
accident. The report of
the neurosurgeon Dr Scheltema states that
even though he did not find real evidence of neurological impairment
and long term neurological
sequelae after the accident, he did find
“
memory lapse and slow thought
process”.
From these two
reports, together with the reports of the two clinical psychologists
mentioned in paragraph [9]
supra
,
it is clear that the accident did have an impact on the thought
process of this Plaintiff and accordingly this Court finds that
the
accident did have a direct link in affecting the Plaintiff’s
current memory retention capacity.
[11]
Even if this court is wrong in this respect, it cannot be in the
interests of justice that a
person of low
intellect and very little education should be prejudiced. Should the
Plaintiff be liable to pay for the registration
and management of the trust, there will be
nothing
left of the capital amount awarded to him. This would defeat the
purpose of the
RAF which was primarily set
up to compensate victims.
[12]
In respect to the particulars of claim not stipulating expressly that
a trust should be
formed, the court finds
that the purpose of the prayer “Further and/or alternative
relief”
is there to address the
issues of this nature. The summons was drafted in 2014. All the
experts reports were compiled post the issuing
of the summons. Even
if the court is
wrong in this respect,
section 17(4)(a) of the Act includes a claim for the costs of the
future accommodation of any person in a hospital
or nursing home or treatment of or
rendering
of a service or supplying of goods to him or her.
The
registration of a trust
and administration
thereof falls within the definition of “rendering of a
service”.
[13]
The decision of
Road Accident Fund and
Patrick Norman Arendse supra
is
distinguishable from this case. In that matter, a
curator bonis
was appointed for the
estate and such
curator was entitled to claim reimbursements for accounts paid for
which the RAF was liable. Trustees were then
appointed to administer the estate and
the
court held it was not the responsibility of the RAF to pay the
trustees any
remuneration beyond that of
what a curator would have received.
[14]
In the result the following order is made:
The
Defendant is to bear the costs of the registration and administering
of a trust to be
created to protect the
money awarded to the Plaintiff. These cost will come out of the
undertaking. Accordingly the order is granted as
per the draft order attached.
D
DOSIO
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
On
behalf of the Plaintiff Adv M. Roller
On
behalf of the Defendant Adv N. Alli
Date
Heard: 1 June 2016
Handed
down order: 2 June 2016