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[2021] ZAGPJHC 165
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Adams v Road Accident Fund (2019/10067) [2021] ZAGPJHC 165 (28 April 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER:
2019/10067
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
In
the matter between:
ADAMS, CLINT
JOSEPH
PLAINTIFF
AND
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by e-mail. The date and
time for hand-down is deemed
to be 10h00 on the 28
th
of April 2021.
DIPPENAAR
J
:
[1]
This is a trial action arising from an
accident which occurred on 11 March 2018 in the intersection between
Hendrik Potgieter and
Christiaan De Wet Roads, Roodepoort.
[2]
Despite the notice of set down for the
trial being properly served on the defendant, it did not appear at
the hearing. The defendant
did not respond to the plaintiff’s
requests for the holding of a pretrial conference or the completion
of a joint practice
note. Directives issued by me on 15 April 2021,
directing the defendant’s claims handler, Mr Malvin Khoseni to
attend a pretrial
conference with the plaintiff’s legal
representatives by no later than 18 April 2021 and to be present at
the hearing on
19 April 2021, were also ignored by Mr Khoseni. The
matter was stood down to enable plaintiff’s legal
representatives to
make contact with Mr Khoseni. I was informed by
plaintiff’s counsel that contact had been made with Mr Khoseni
who was aware
of the proceedings but would not attend as he was
attending to another matter. An affidavit has been filed by the
plaintiff’s
representative pertaining to the communications
with the defendant’s claims handler.
[3]
I intend to direct that a copy of this
judgment be provided to the senior officials of the defendant to
investigate the conduct
of the claims handler, Mr Khoseni.
[4]
The applicability of Judge President’s
Practice Directive 1 of 2121, dated 18 February 2021 and a proper
interpretation of
its provisions fell for consideration after I
enquired from the plaintiff whether the matter should have proceeded
to the interlocutory
trial court for a compelling order directing the
holding of a r 34(7) pre-trial conference and the striking of the
defendant’s
defence.
[5]
The plaintiff’s argument was that, on
a proper interpretation of chapter 6 of the directive, the plaintiff,
having obtained
certification of trial readiness on 9 October 2021
and having been allocated a trial date prior to the date applicable
to transitional
provisions in paragraphs 32 to 36 of the directive,
was not obliged to attend the trial interlocutory court, but could
proceed
to apply for default judgment at the hearing. Having
considered the directive, I agree with the plaintiff’s
submissions.
It follows that the matter is to proceed on a default
judgment basis.
[6]
Judgment was reserved in order to provide
written reasons for the order.
[7]
At the hearing, the following issues were
in dispute:
[7.1] liability;
[7.2] Past and future
medical expenses;
[7.3] Future loss of
earnings;
[7.4] General damages
[8]
On the issue of liability, the plaintiff
presented the evidence of a passenger in the plaintiff’s
vehicle, Mr Karl Burgess.
The plaintiff has no recollection of the
accident. It appeared from the various expert reports that the
plaintiff was rendered
unconscious in the accident and suffered
amnesia as a result thereof.
[9]
The evidence of Mr Burgess was that he was
a passenger on the front seat of the vehicle driven by the plaintiff.
There were two
other passengers in the vehicle, Mr Adams’
daughter, seated behind the plaintiff and a friend, Rameez, on the
other back
seat. Their vehicle was travelling from Eagle Canyon Golf
Estate down Christiaan De Wet Drive, in the left lane of two lanes.
The
road makes a T-junction with Hendrik Potgieter Road, with traffic
approaching from the left. The accident occurred between 20h00
and
21h00 on 11 March 2018. The headlights of the vehicle were on. Mr
Burgess could not estimate the speed of the vehicle as he
was on his
phone, but stated that their vehicle was not speeding. As their
vehicle approached the intersection of Christiaan De
Wet Drive and
Hendrik Potgieter Road, the traffic light was green in their favour.
A white vehicle, which he thought was
a BMW, entered the
intersection from Hendrik Potgieter Road from the left to turn right.
Mr Adams, the plaintiff, swerved left
to avoid a collision with the
vehicle, lost control and hit the pavement. The pavement was hit a
second time, causing the airbags
in their vehicle to deploy. Mr
Burgess lost consciousness and when he awoke, the vehicle was upside
down. It had gone down an embankment.
The plaintiff was slumped
across him and he thought he was dead as he was bleeding. Mr Adams’
daughter was screaming. He
assisted her in getting out of the vehicle
after he was able to extricate himself and took her up the
embankment. He left her in
the care of a lady who had stopped. When
he got back down the embankment, both other passengers were out of
the vehicle.
[10]
There was no agreement reached on the
status of the documents discovered by the plaintiff. No further
documents were presented in
evidence on the merits. It was argued
that the other vehicle was unidentified and that the plaintiff had
proved that the driver
of the unidentified vehicle was solely
negligent, thus rendering the defendant 100% liable for the proved
damages of the plaintiff.
[11]
The evidence presented by the plaintiff was
not comprehensive. From the available evidence it can be concluded
that if it is accepted,
as I must, that the traffic light was green
for the plaintiff, it must have been red for the unidentified white
vehicle. It would
have been unreasonable for the plaintiff to have
swerved right to avoid the accident as it would have put him in the
path of the
white vehicle. It was thus not negligent for him to have
swerved left to try and avoid the collision. It was not explained why
the plaintiff lost control of the vehicle. There was no evidence led
regarding what other steps could have been taken by the plaintiff
to
avoid an accident. There was also no evidence led regarding the speed
at which the plaintiff was travelling. It was apparent
that he could
not stop in time in order to avoid a collision. The fact that he lost
control of the vehicle may or may not indicate
that he was travelling
at an improper speed. Absent any evidence to the contrary, it cannot
however, be concluded, without resorting
to speculation, that the
plaintiff was negligent.
[12]
I thus conclude that the plaintiff has
established on a balance of probabilities that the unidentified
driver was negligent in ignoring
the red traffic light and that this
caused the accident, thus rendering the defendant liable for 100% of
the proved damages of
the plaintiff.
[13]
In relation to the issues pertaining to
quantum, the first issue to be determined is plaintiff’s claim
for past medical expenses.
[14]
The plaintiff produced a schedule of
expenses, supporting by supporting documents, which were provided to
the defendant’s
claims handler. It was referred to in argument
by the plaintiff’s counsel but no evidence was led in relation
thereto. It
was further not confirmed on oath by way of an affidavit.
In terms of the schedule, the total amount was R 468 903.79. In terms
of the schedule, an amount of R136.79 was paid by the plaintiff and
an amount of R468 767.14 had been paid by plaintiff’s
medical
aid. The papers did not contain any reference to the medical aid or
any undertaking to reimburse the medical aid for amounts
paid by it.
An appropriate notice in terms of r 35(9) was delivered to which
there was no response. The schedule of itself has
no evidentiary
value and constitutes hearsay evidence. As such I am not persuaded
that judgment can be granted for this claim.
[15]
In
relation to his future medical expenses, the plaintiff sought an
undertaking in terms of s17(4)(a) of the Road Accident Fund
Act
[1]
.
The parties could not reach agreement on this issue and no
undertaking was provided. The plaintiff did not present any evidence
of the issue and argued that it should be postponed for engagement
with the defendant.
[16]
In my view, the issues pertaining to past
and future medical expenses are to be postponed.
[17]
The plaintiff provided expert reports by
various experts accompanied by affidavit. From the reports, the
plaintiff sustained the
following injuries: (i) a head injury with
loss of consciousness; (ii) multiple facial bone fractures, (iii)
blunt chest trauma
with bilateral rib fractures, and (iv) a fracture
of an upper incisor tooth on the right hand side.
[18]
The plaintiff was stabilized at the scene
with a recorded Glasgow Coma Scale reading of 2/10 (post sedation and
intubation). He
was airlifted to Millpark Hospital via helicopter. He
experienced a dense phase of post traumatic amnesia of 10 days during
which
he was sedated, medically paralysed, intubated and mechanically
ventilated. He was discharged on 25 March 2018.
[19]
His present complaints are cognitive mental
problems with loss of short term memory, facial pain aggravated by
cold weather, a twitching
eye, muscle tension headaches, an untreated
right upper incisor tooth fracture (which has been fixed) and chronic
lumbar back pain
aggravated by physical activity and sitting for
prolonged periods. The plaintiff further has facial scarring and
struggles to concentrate
and gets easily distracted. He however still
plays golf and lifts weights as he did prior to the accident,
although his ability
to lift heavy weights has reduced.
[20]
Dr Kruger, a neurosurgeon, qualified the
plaintiff as a serious injury under the narrative test to qualify for
general damages by
virtue of severe long term mental or behavioural
disturbances as a result of the accident. He did not find a focal
brain injury
from the available records. There are no CT scans
available. The plaintiff was rendered unconscious in the accident and
was taken
to the ICU unit in Millpark Hospital. He was intubated and
mechanically ventilated, which according to Dr Kruger could account
for the prolonged period of loss of memory. He was placed in an
induced coma. Dr Kruger found plaintiff had sustained a severe
traumatic brain injury. His initial GCS scale post sedation was 2/10.
The records did not indicate when the GCS scale increased
to 15/15.
The existence of such an injury is corroborated by the report and
investigations undertaken by the occupational therapist,
Ms Doran.
[21]
The only report provided by the defendant
was that of an orthopedic surgeon, Dr Khan. Dr Enslin produced a
report. Despite there
being no joint minutes, the experts were agreed
that the orthopedic injuries suffered by the plaintiff were not so
grave that the
plaintiff qualified for general damages. According to
Dr Enslin, the plaintiff had a slight cosmetic disfigurement and a
long period
of lower back pain, treated with conservative treatment.
[22]
The cosmetic surgeon, Dr Berkowitz
concluded that the plaintiff is left with permanent disfiguring
scarring.
[23]
Dr Naidoo, in investigating the
psychological sequelae, concluded that the plaintiff suffers
self-consciousness as a result of his
facial injuries. He further
suffers from a lack of concentration and memory loss. He is easily
distracted and more absent minded.
The plaintiff has greater
dysfunction in his social functioning. His working diagnosis was one
of depressive disorder as a result
of his injuries.
[24]
The occupational therapist, Ms Doran
concluded that the plaintiff has the physical capacity for work tasks
of a sedentary to light
physical nature correlating with him being
able to sustain his occupation as an IT manager. However, should
there be an increased
demand placed on him with increased planning
and problem solving requirements, his identified difficulties may
become more prominent
which would probably continue to negatively
impact on his ability to sustain expected efficacy levels. This would
increase his
vulnerability and compromise should he lose his present
position. She concluded that the plaintiff could be regarded as an
unequal
competitor in the labour market. Ms Doran performed
numerous examinations pursuant to which the conclusion was drawn that
the plaintiff illustrated average and below average abilities and
variable performances in neurocognitive functioning attributable
to
an organic insult.
[25]
The industrial psychologist Ms Burger,
found the plaintiff to be a vulnerable employee and would suffer a
two-year delay in achieving
his maximum earning capacity at age 52
rather than at age 50. Had the accident not occurred he would have
continued with his own
business in addition to his employment as IT
manager and would have progressed in his career path.
[26]
Ms Cramer, a clinical psychologist,
corroborated this version pursuant to her own investigations. She
concluded that the plaintiff
was somewhat withdrawn and reticent
about himself in emotional terms and seemed reluctant to admit
problems. In her opinion plaintiff
may have sustained a traumatic
brain injury. Although uncorroborated by other evidence, she
suspected a secondary brain injury,
not found by Dr Kruger. On
testing plaintiff has difficulty sustaining attention and
fluctuations were evident. His simple attention
was average at best
but variable overall with limited and variable complex attention and
working memory. His psychomotor speed
was average but variable. His
mental processing speed was also variable. His forward conceptual
practical planning and problem
solving was below average and
indications of impulsivity on both tasks. His verbal fluency was
below expectation. Plaintiff’s
fine motor speed and manual
dexterity was below average on the right but average on the left. His
neurocognitive profile indicated
variable fluctuations and deficits
which in her view could be attributed to what is suspected to have
been a significant head and
brain injury. Ms Cramer concluded that
the plaintiff suffered memory and concentration problems which would
render him a vulnerable
employee. She further recorded moderate
symptoms of depression on psychometric assessment and on
presentation, he appeared objectively
depressed and anxious.
[27]
The plaintiff was 37 years old at the time
of the accident and has a grade 12 qualification without exemption.
He works in the IT
industry and obtained various certificate
qualifications. At the time of the accident, he was employed in a
business owned by his
father in law, Bhekani Abuntu Services as IT
manager, a position acquired during 2016. He has retained this
employment after the
accident in the same position. Plaintiff
abandoned any reliance on a loss of income from plaintiff’s own
business, operated
independently from his employment as the necessary
financial records were not available. According to plaintiff’s
2018 IRP5
he earned R316 680 during the 2018 tax year.
[28]
Mr
Kramer, an actuary employed by the plaintiff, utilised this
information as well as the report of the industrial psychologist
to
perform his calculations. But for the accident it was postulated that
the plaintiff would have reached the Paterson C3/C4 level
(guaranteed
package) by age 50. It was assumed that his income would have risen
evenly from R456 000 per annum at the valuation
date
[2]
to reach the C3/C4 level.
[29]
The claim for future loss of income was
predicated on an assumed two-year delay in progression to the
Paterson C3/C4 level between
ages 50 and 52, when the plaintiff would
reach his career plateau. But for the accident it was postulated that
the plaintiff would
have reached the Paterson C3/C4 level (guaranteed
package) by the age of 50. It was also assumed that the plaintiff’s
income
would rise evenly in real terms from R456 000 per annum at the
valuation date to reach the Patersen C3/C4 level by the age of 52
Having regard to the sequelae of the injuries it was assumed that
there would be a delay of 2 years in reaching the Paterson C3/C4
level, based on Mrs Burger’s finding that the plaintiff
suffered a decrease in productivity and is now a more vulnerable
and
unequal competitor in the open labour market. It was further assumed
plaintiff would retire at age 65. In the actuarial report
of Mr
Kramer, the loss was stated as R1 194 907.00 based on a 15%
contingency on the plaintiff’s prospective income but for
the
accident and a 30% contingency based on his prospective income having
regard to the accident.
[30]
Reliance
was placed on
Southern
Insurance Association v Bailey NO
[3]
;
Goodall v President Insurance Co Ltd
[4]
and Robert Koch, Quantum Yearbook
[5]
.
On those calculations, the plaintiff suffered a future loss of income
of R1 194 907.
[31]
The
following dictum in
Southern
Insurance Association Ltd v Baily NO
[6]
is apposite in considering appropriate contingencies:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, as it involves a prediction as to the future.
All that
the Court can do is to make an estimate, which is often a very rough
estimate, of the present value of the loss. Where
the method of
actuarial computation is adopted in assessing damages for loss of
earning capacity, it does not mean that the trial
Judge is tied down
by actuarial calculations. The court has "a large discretion”
to award what the court considers right.
One of the elements in
exercising that discretion is the making of a discount for
"contingencies" or the "vicissitudes
of life".
These include such matters as the possibility that the patient may in
the result have less than a "normal"
expectation of life;
and that he may experience periods of unemployment by reason of
incapacity due to illness or accident, or
to labour unrest or general
economic conditions.
The amount of any
discount may vary, depending upon the circumstances of the case. The
rate of discount cannot be assessed on any
logical basis: the
assessment must be largely arbitrary and must depend upon the trial
Judge's impression of the case and may be
favourable.
The technique of
assessing damages involves consideration of relevant events which may
occur, or relevant conditions which may arise
in the future.
Even when it cannot be said to have been proved, on a balance of
probability justice may require that what
is called a contingency or
allowance be made for a possibility of that kind…”
[32]
Although there was no direct evidence of a
brain injury, I am persuaded that the experts presented a
satisfactory factual basis
for the conclusion that the plaintiff has
indeed suffered some neurological fall out as a result of the
accident. The approach
adopted by Ms Burger is conservative and I am
persuaded that the facts sustain her conclusion. I am further
persuaded that the
contingencies applied in the calculations of Mr
Kramer are reasonable based on the facts. The plaintiff has thus
established the
quantum of his loss of earnings as calculated by Mr
Kramer. This amount is considerably less than that claimed in its
amended particulars
of claim.
[33]
On
the evidence presented I am further persuaded that the plaintiff has
established an entitlement to general damages. I was
referred
to various authorities by the plaintiff supporting his argument that
an award of between R1.3 million and R1.35 million
would constitute a
reasonable award. I was referred to
Van
Zyl NO v RAF
[7]
,
Opperman
v RAF
[8]
,
Gazo
v RAF
[9]
,
Smith
v RAF
[10]
,
Bukaza
v RAF
[11]
,
Dlamini
v RAF
[12]
,
Herbst
v RAF
[13]
,
Mohlaphuli
NO v South African National Road Agency Ltd
[14]
and
Torres
v RAF
[15]
.,
all of which I have considered, including the present values of the
awards. Considering the facts in those cases compared to
the facts in
the present instance, I conclude that an amount of R 1 000 000.00
constitutes an appropriate award for general damages.
[34]
I was provided with a copy of the
contingency fee agreement, which accords with the Act.
[35]
The normal principle is that costs follow
the result. There is no basis to deviate from this principle. The
plaintiff sought the
costs of senior counsel, arguing that such costs
were warranted. I am persuaded that considering the complexities
involved, the
employment of senior counsel was warranted.
[36]
I was provided with a draft order by
counsel, which has been amended where appropriate. The plaintiff
elected to proceed by way
of affidavit thus the reservation fees of
the experts are not allowed. There were further no witnesses
subpoenaed for trial.
[37]
I grant the following order:
[1] The Defendant is
liable for 100% of the Plaintiff’s damages.
[2] The Defendant is
directed to pay to the Plaintiff the capital amount of R2 194 907.00
(two million one hundred and ninety-four
thousand, nine hundred and
seven rands), in respect of and calculated as follows:
Loss of Earnings
R1 194 907.00
General Damages
R1 000 000
Together with interest
a
tempore morae
calculated in accordance with the Prescribed Rate
of interest Act 55 of 1975, read with
section 17(3)(a)
of the
Road
Accident Fund Act 56 of 1996
.
[3] Payment is to be made
directly to the trust account of the Plaintiff’s attorneys
within One Hundred and Eighty Days (180)
days:
Holder
De Broglio Attorneys
Account Number
[....]
Bank& Branch
Nedbank –
Northern Gauteng
Code
198 765
Ref
A276
[4] The plaintiff’s
claims for past and future medical expenses are postponed sine die.
[5] The Defendant is to
pay the Plaintiff’s agreed or taxed High Court costs as between
party and party, such costs to include
the preparation and qualifying
fees of the experts, consequent upon obtaining Plaintiff’s
reports to be served between the
parties, inclusive of the
Plaintiff’s reasonable travel and accommodation costs to attend
the Defendant’s and own experts,
and Senior counsel. All past
reserved costs, if any, are hereby declared costs in the cause.
[6] The Plaintiff shall,
in the event that the costs are not agreed serve the Notice of
Taxation on the Defendants Attorney of record;
and
[7] The Plaintiff shall
allow the Defendant fourteen (14) days to make payment of the taxed
costs.
[8] It is recorded that
there is a contingency fee agreement in existence between the
Plaintiff and his Attorneys.
[9] A copy of this
judgment is to be provided to the senior official of the defendant in
charge of the claims handler, Mr Malvin
Khoseni for investigation of
Mr Khoseni’s conduct in relation to this matter.
EF
DIPPENAAR
JUDGE
OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
:
19 April 2021
DATE
OF JUDGMENT
:
28 April 2021
PLAINTIFF’S
COUNSEL
: Adv. GJ. Strydom SC
PLAINTIFF’S
ATTORNEYS
: De Broglio Attorneys Inc.
Ms Van
der Linde
NO
APPEARANCE FOR DEFENDANT
[1]
56
of 1996
[2]
1
August 2020
[3]
1984
(1) SA 98 (AD)
[4]
1978
(1) SA 389 (W)
[5]
2020
p118
[6]
1984
(1) SA 98
(A) from 99-100 i
[7]
2012
(6A4) QOD 138 (WCC)
[8]
Case
no 47697/2009 (SGHC)
[9]
Case
no 276816/07 (SGHC)
[10]
Case
no 47697/2009 (SGHC)
[11]
Case
no 08/39524 (SGHC)
[12]
2012
(6A4) QOD 68 (GSJ)
[13]
2007
96) QOD A4-7 (WLD)
[14]
29
October 2012
[15]
2007
(6) QOD A4-1 (GSJ)