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[2020] ZAGPJHC 96
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A M v Road Accident Fund (2016/06275) [2020] ZAGPJHC 96 (6 March 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
2016/06275
In
the matter between:
A,
M
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
Amendment
to particulars of claim.
JUDGMENT
DE VILLIERS, AJ
[1]
The applicant seeks leave to amend his
particulars of claim. The summons, dated 4 February 2016, states that
the plaintiff was a
pizza delivery driver. It alleged that the
plaintiff was involved in a motor car collision on 6 December 2016
(it should have been
6 December 2014), the plaintiff was driving a
motorbike, and that he is unable to continue with his delivery work.
He had suffered
multiple bodily injuries, being injuries to his
pelvis, two broken legs, and abdominal injuries.
[2]
The amendments that the applicant seeks
are:
[2.1]
That the plaintiff is a qualified teacher
and would have secured such employment;
[2.2]
He would suffer a loss of income due to
cognitive deficits, short term memory loss, and emotional
vulnerability that would impact
on his occupational capacity as a
teacher. In addition, he has pain in his knee and hip, exacerbated by
long periods of sitting,
standing, and walking and would likely be
off work for considerable periods;
[2.3]
Hence, he claims for loss of earning
capacity in the amount of R3 678 200.00.
[3]
The objection to the amendment raised the
following issues:
[3.1]
The statutory medical report dated 20 May
2015 listed only orthopaedic injuries;
[3.2]
The matter had already been prepared for
trial in November 2017, and the expert reports and joint minutes only
deal with orthopaedic
injuries;
[3.3]
The plaintiff’s neurologist did not
find a brain injury in 2017;
[3.4]
The head injury noted by the HPSA was a
“
minor head injury with
lacerations
”, the meaning of
which could not be clarified in argument, especially if a minor head
injury, or a minor brain injury, was
meant. The reference to
lacerations would point to the former. However, the HPSA found that
there was no residual effect from the
head injury, which would point
to the latter;
[3.5]
The claim now sought to be introduced is a
summersault of the previous pleaded case. The applicant seeks an
indulgence, and must
show good cause for the amendment to be allowed.
An applicant should not (unreasonably) delay bringing the
application. These objections
were raised with reference to
identified case law;
[3.6]
A prescription point was taken too. I need
not refer thereto due to the finding that I make.
[4]
On receipt of the notice of objection, the
applicant merely delivered a notice of application without an
affidavit in support. The
usual procedure in applying for leave to
amend after objection to an intended amendment, is to deliver a
formal “
application for leave to
amend
” in terms of Uniform Rule
28(4). It is an interlocutory application, and as set out in Rule
6(11) may be “
supported by such
affidavits as the case may require
”.
I had regard to the type of cases listed in
Swartz
v Van der Walt t/a Sentraten
1998 (1)
SA 53
(W) at 56H-57C as cases where an affidavit would be required. I
paraphrase:
Amendments
that are not simple and purely formal (such as arithmetical and
clerical errors), but are substantial amendments (such
as seeking to
withdraw an admission) would require formal applications, supported
by affidavit.
[5]
In my view the claim now sought to be
introduced, would require an explanation. There seems to be an
increase in alleged brain injury
cases. They are difficult to
disprove, especially five or more years after the collision. Even if
the amendment was ultimately
to be allowed, someone with knowledge of
the matter must state why it is raised at such a late stage. If the
true reason was to
mislead the RAF, this must be stated and the
amendment should fail. If the true reason is that the alleged injury
manifested itself
only five years after the collision, this must be
stated and would point to the amendment being granted. If the true
reason is
that it was a mere oversight, as the alleged injury
manifested itself immediately after the collision, this must be
stated. Similarly,
if the educational qualification was always known,
or not, this must be stated.
[6]
The amendment is not simple and purely
formal, but is substantial. I do not lose sight of the fact that
amendments in the normal
course should be granted to allow a proper
ventilation of the real dispute between the parties, so that justice
may be done. I
also do not lose sight of the fact that the RAF should
compensate persons such as the plaintiff. However, my order is not a
final
order on the merits of the application. It could be revisited
in a fresh application, properly supported by affidavit and, if need
be, evidence. The respondent would then be able to properly assess
its position and any prejudice that could not be cured by a
costs
order.
[7]
I make the following order:
1.
The application is dismissed with costs.
__________________
DP de Villiers AJ
On
behalf of the Plaintiff:
Adv MIE Ismail
Instructed
by: CH Oguike Attorneys
On
behalf of the Defendant: Adv J Mogodi
Instructed
by: Lindsay Keller
Heard
on: 20 February 2020
Delivered
on: 6 March 2020