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[2017] ZAGPJHC 457
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S S v Road Accident Fund (42384/14) [2017] ZAGPJHC 457 (3 November 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 42384/14
In
the matter between:
S
S PLAINTIFF
And
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
Windell
J:
INTRODUCTION
[1]
This is a special plea dealing only with the plaintiff’s claim
for general damages (the claim). The defendant (the Fund)
pleads that
the claim has prescribed as the plaintiff failed to submit a serious
injury assessment form (RAF 4 form) as required
in terms of s17 of
the Road Accident Fund Act 56 of 1996 (the Act), read with Regulation
3 thereof, within the prescribed time
period.
[2]
The plaintiff instituted action against the Fund on 26 November 2013
for damages suffered as a result of a motor vehicle accident
which
occurred on 6 October 2009.
The
particulars of claim however, limited plaintiff's claim to
pecuniary
damages, i.e loss of earnings and past and future medical expenses
and did not include a claim for non-pecuniary damages.
Seven and a
half years later, (on 22 May 2017) the Fund’s attorney secured
and served a RAF 4 form, completed by Dr Mashaba,
on the plaintiff’s
attorney. In addition the defendant also filed an expert report
recording an entitlement to general damages
on the narrative test.
[3]
On 12 June 2017 the plaintiff served an amendment of its particulars
of claim,
by
introducing a further head of damages, namely general damages. The
Fund in its turn, did not object to the proposed amendment,
but on
the day of the commencement of the trial amended its plea with the
introduction of the special plea.
[4]
The matter proceeded to trial on 22 June 2017 and judgment was
granted on 22 September 2017 in favour of the plaintiff in respect
of
loss of earnings in the amount of
R2 459 558.
It
was agreed that the special plea in relation to the claim for general
damages be dealt with in a separate judgment.
LEGAL
PRINCIPLES
[5] The plaintiff lodged
a claim for compensation in terms of s 17 (1)(a) of the Act,
asserting that the identity of the driver
was known to him. In terms
of s 17 (1)(b) the
Fund
is obliged to compensate the plaintiff for any loss or damage which
he had suffered as a result of any bodily injury to himself,
caused
by or arising from the driving of a motor vehicle by any person at
any place within the Republic, if the injury is due to
the negligence
or other wrongful act of the driver or of the owner of the motor
vehicle. S 17(1)(b) specifically states the following
in relation to
non-pecuniary loss:
“ …
.Provided
that the obligation of the Fund to compensate a third party for
non-pecuniary loss shall be limited to compensation for
a serious
injury as contemplated in subsection (1A) and shall be paid by way of
a lump sum.
(1A)(a)
Assessment of a serious injury shall be based on a prescribed method
adopted after consultation with medical service providers
and shall
be reasonable in ensuring that injuries are assessed in relation to
the circumstances of the third party.
(b)
The assessment shall
be carried out by a medical practitioner registered as such under the
Health Professions Act, 1974 (
Act
56 of 1974
).
[6]
In order therefore to be able to claim compensation for general
damages the plaintiff’s injuries have to be regarded as
‘serious’ within the contemplation of s 17 (1)(b) of the
Act. S 17 (1)(1A) (a) and (b) requires the plaintiff to submit
to a
process of medical assessment of his injury, the method of such
assessment prescribed by Regulation 3(1) of the Act. Regulation
3(3)(a) obliges a plaintiff whose injury has been assessed in terms
of these Regulations to obtain from the medical practitioner
concerned a RAF 4 form. Regulation 3 (3) (b) (i) requires the RAF 4
form to be submitted at any time before the expiry of the period
for
the lodgement of the claim prescribed by the Act and the Regulations.
Regulation 3 (3)(c) provides that:
“
The Fund or an
agent shall only be obliged to compensate a third party for
non-pecuniary loss as provided in the Act if a claim
is supported by
a serious injury assessment report submitted in terms of the Act and
these Regulations and the Fund or an agent
is satisfied that the
injury has been correctly assessed as serious in terms of the method
provided in these Regulations.”
The
RAF 4 Form
[7]
It is common cause that the plaintiff did not file a RAF4 form and
that it is the Fund who procured the RAF 4 form, more
than
seven years after the cause of action arose. It is further common
cause that the plaintiff underwent a medico-legal assessment,
by an
orthopaedic surgeon, Dr Mashaba, instructed by the Fund, on 9 May
2017. Dr Mashaba prepared a medical legal report and also
completed a
RAF 4 form. The report was co-signed by a Dr Mafeelane.
[8]
In paragraph 4 of the RAF 4 form, which deals with the plaintiff’s
impairment in respect of the rating of the American
Medical
Association (AMA), Dr Mashaba refers to his medico legal report.
According to his report he assessed the plaintiff as having
an whole
person impairment of 7%. In terms of paragraph 5 of the RAF 4 form,
which relates to ‘serious injury: narrative
test’, Dr
Mashaba concluded that the plaintiff’s injuries had resulted in
serious long term impairment or loss of a
body function. As a result,
Dr Mashaba concluded that the plaintiff had indeed suffered a
‘serious injury’ and is of
the opinion that the plaintiff
does qualify for general damages.
The
Act and prescription
[9]
S 23 of the Act prescribes that the right to claim compensation under
s 17 shall become prescribed upon the expiry of a period
of three
years from the date upon which the cause of action arose. S 23(3)
qualifies it further and stipulates that “
no
claim which has been lodged in terms of section 17 (4) (a) or 24
shall prescribe before the expiry of a period of five years
from the
date on which the cause of action arose.”
[10]
It
is common cause that the plaintiff, in compliance with the provisions
of s 17(1) and s 24(1)(a) of the Act, lodged a claim for
compensation
in respect of bodily injuries sustained by him in the said collision.
The
plaintiff lodged a claim in terms of s 24 by submitting a RAF 1 Form
on 10 December 2009. According to the RAF 1 form the plaintiff’s
claim was for past and future loss of income, medical expenses as
well as general damages in an amount of R100 000. Summons
was
issued on 26 November 2013, within five years after the cause of
action arose.
[11]
The plaintiff has only one claim which includes damages in respect of
pecuniary and non- pecuniary damages. In
Nonkwali
v Road Accident Fund
[1]
Maya JA with reference to several other judgments said the following:
‘
Authorities
are legion to the effect that a plaintiff who claimed compensation
for damages sustained as a result of wrongful and
negligent driving
under the Act's predecessors had but a single, indivisible cause of
action and that the various items constituting
the claim were thus
not separate claims or separate causes of action. This
interpretation, in my view, necessarily extends to claims
brought
under the Act as it has the same objective and effect as these
previous statutes.”
[12]
In
Nonkwali
supra
the plaintiff did not include claims for past and future loss of
earnings when summons was issued. The plaintiff amended its
particulars
of claim to include these two heads of damages after a
period of three years after the cause of action arose. The defendant
raised
a plea of prescription. The court held that t
he
plaintiff’s right to recover past and future loss of earnings
formed part of her original cause of action to claim for
compensation. Therefore, the original summons interrupted
prescription, “
albeit
that the interruption was partial; however the partial interruption
endured for the benefit of the entire right of actions
or claim.”
[13]
In the present matter, the original summons interrupted prescription
of the claim for general damages as it was part and parcel
of the
original cause of action and the amendment merely represents a fresh
quantification of the original claim or the addition
of a further
item of damages.
[2]
[14]
The only question that remains is whether the failure to file the
RAF4 form timeously results in the prescription of the claim.
This question was recently considered by the SCA in the matter of
Manukha
v Road Accident Fund
[3]
.
The
appellant’s attorneys served the RAF4 form on the respondent’s
attorneys more than five years after the cause of
action arose. The
court held that
R
egulation
3 (3)
(b)
(i)
provides that the RAF 4 form may be submitted separately from the
submission of the claim itself, and implicit in this is that
‘the
claim’ exists independently of ‘the assessment report’.
The court further held that the failure to
submit the RAF 4 form will
not result in the prescription of a claim for general damages. Petse
JA remarked as follows:
“
[22]
What can be inferred from the narrative set out above is, inter alia,
that upon receiving the RAF4 form the Fund adopted the
stance that as
it was served after the expiry of a period of five years from the
date of the accident, the claim for non-pecuniary
loss should be left
out of the reckoning. In light of what has been said above, the Fund
was mistaken in adopting such attitude.
In the ordinary course, the
regulations provide that when the Fund receives an RAF4 form it must
do one of two things. It may either
accept it and then deal with the
claim on that basis, or reject the RAF4 form if it is not satisfied
that it complies with the
Act and the regulations. In the latter
event, it must, (a) in terms of regulation 3(3)(d)(i) provide reasons
for doing so; or (b)
it may, if it is not satisfied with the medical
assessment, direct that the appellant submits herself to a further
assessment at
the Fund’s expense by a medical practitioner
designated by the Fund as provided in regulation 3(3)(d)(ii). If,
notwithstanding
this process, the Fund rejects the RAF4 form, the
regulations provide for an extensive procedure that would be
triggered in the
event that the third party wishes to contest the
rejection of the RAF4 form. (See, in this regard, Road Accident
Fund v Duma
and Three Similar Cases para 7.) But for the present
purposes nothing more need be said on that score. It remains only to
emphasise that the Act and the regulations do not contemplate that a
claim for non-pecuniary loss will prescribe if the RAF4 form
is
delivered outside of the period of prescription, should prescription
have earlier been interrupted by the institution of proceedings.”
CONCLUSION
[15]
The plaintiff lodged a claim against the Fund in terms of s 24 of the
Act by submitting the prescribed RAF1 claim. The
compensation
claimed by the plaintiff incorporated a claim for non-pecuniary loss.
Summons was issued within five years after the
cause of action arose,
which interrupted prescription. This results in the interruption of
prescription in relation to all the
heads of damages.
[16]
In
terms of Regulation 3(1)(b) (iii) an injury which does not result in
30% or more impairment of the whole person may only be assessed
as
serious, if that injury
inter
alia
resulted in a serious long-term impairment or loss of a body
function.
The
plaintiff was assessed by a medical practioner, Dr Mashaba, in
accordance with the prescribed method in terms of Regulation
3. He
issued a RAF 4 form and is of the opinion
that
the plaintiff sustained a serious injury as provided for in the Act
and that he qualifies for general damages on the narrative
test.
[17]
The Fund did not object or reject, or respond to the RAF 4 form,
except from raising the special plea of prescription. The
contents
and correctness of the RAF 4 form therefore remained uncontested
throughout the proceedings and no argument was made that
the injury
was not correctly assessed or that it was not serious.
[18]
The
plaintiff has but one claim and the action was instituted within the
five year period. The late filing of a RAF 4 form does
not result in
the prescription of the claim.
In
light thereof, I am satisfied that Regulation 3 has been complied
with, and the Fund is obliged to compensate the plaintiff for
general
damages.
QUANTUM
[19]
Quantification of general damages falls squarely within the domain of
the court. It is incumbent on this court to take into
consideration
all the relevant physical and psychological injuries, the
sequelae
of such injuries, the loss of amenities and the pain and suffering
endured by the plaintiff in the enquiry into general damages.
This is
a holistic investigation that simply cannot be limited to one
particular issue.
[20]
The plaintiff testified that the accident had a devastating impact on
him and his family.
Before
the accident he played tennis and golf, cycled, and had a wide social
circle. It frustrates him that he is now unemployed
and his
situation have resulted in severe financial stressors for his family.
He feels inadequate because he cannot provide for
his family and is
even unable to play with his children. He has been in constant pain
since the accident.
[21]
Dr Scheltema, a neurosurgeon testified that the plaintiff presented
with a significant spine injury at L5/S1 junction with
acute disc
herniation which leads to chronic lower back pain, nerve impingement
and weakness on the left side. Chronic pain causes
mood dysfunction,
irritability and alteration of concentration together with problems
in sleeping and resultant fatigue. Dr
Chetty, a specialist
psychiatrist, is of the opinion that the plaintiff has a major
depressive disorder, moderate in severity.
[22]
Ms Pillay, the occupational therapist, testified that on assessing
the plaintiff he presented with the following: He walks
with a
significant limp and lacks the ability to move quickly and to perform
any heavy lifting and carrying. He struggles with
getting into a
sitting position as well as getting up from a sitting position. He
tires easily and need to take frequent rest breaks.
He walks with a
poor posture and is unable to walk for long distances and struggles
to negotiate a flight of stairs. The plaintiff
will most likely
experience increased discomfort and pain from his lumbar spine with
advancing age.
[23]
It is trite that
some
guidance can be obtained by having regard to previous awards made in
comparable cases. In the matter of
Ramolobeng
v Lowveld Bus Services
[4]
the plaintiff was awarded an
amount of R 550 000 (current value R621 000). Although the
sequelae
and the
extent of the injuries were similar to those suffered by the
plaintiff
in
casu
,
the court, in the determination of the amount, took into
consideration that the plaintiff suffered from erectile dysfunction
as a result of injuries sustained during the accident. In the matter
of
Oosthizen
v RAF
[5]
the plaintiff sustained a compression fracture of the L3 vertebra
with resultant pain in the lumbar spinal area. He was awarded
an
amount of R550 000.
[24]
In the determination of a suitable award I also take cognisance of
the remarks made by Holmes R in
Pitt
v Economic Insurance Co Ltd
[6]
.
He said the following:
“
The court must
take care to see that its award is fair to both sides –it must
give compensation to the plaintiff, but it must
not pour out largesse
from the horn of plenty at the defendant’s expense”
[25]
In my assessment a fair amount to be allocated in respect of general
damages is an amount of R 600 000.
[26]
In the result the following order is made:
[26.1] The special plea
is dismissed with costs.
[26.2] The defendant is
ordered to pay the plaintiff an amount of R600 000 in respect of
general damages within 14 days of
this order.
[26.3] Interest on the
sum at the prescribed rate of 10, 25% per annum calculated from the
date following the payment date to the
date of final payment.
________________________________
L
WINDELL
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff: Adv M.I.E Ismail
Instructed
by: Molefe Dlepu Attorneys
Counsel
for the Defendant: Adv Mabena
Instructed
by: TS Thantsha Attorneys
Date
of Hearing: 23 July 2017
Date
of Judgment: November 2017
[1]
2009
(4) SA 333
(SCA)
[2]
Evins
v
Shield Insurance Company Limited
1980 (2) SA 814
(A) at 836C-E
[3]
(285/2016)
[2017]
ZASCA 21
(24
March 2017)
[4]
(29836/09) [2015] ZAGPPHC 31 (3
February 2015)
[5]
(1663/2015) [2016] ZAGPPHC 798 (9
September 2016)
[6]
1957 (3) SA 284
(D) at 287 E-F