About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2017
>>
[2017] ZAECPEHC 27
|
|
Boltina v Road Accident Fund (941/2014) [2017] ZAECPEHC 27 (25 April 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Not
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No:
941/2014
Date Heard:
2-7/02/17
Date Delivered:
25/04/17
In
the matter between:
MSIMELELO
BOLTINA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MALUSI
J
[1]
The plaintiff claims damages from the defendant for injuries
sustained arising out of a motor vehicle collision on 11 April
2009
in Settlers Way Freeway, Deal Party, Port Elizabeth. The plaintiff
was a driver of a motor vehicle which collided with an
unidentified
motor vehicle insured by the defendant driven by an unknown driver.
Subsequently, the plaintiff instituted an action
for damages.
[2]
It is common cause that the plaintiff sustained the following serious
injuries:
(a)
A fracture of the fifth cervical vertebra;
(b)
A spinal cord injury.
(c)
A traumatic brain injury with long term mental and behavioural
disturbance;
[3]
Prior to and during the course of the trial the following issues were
settled between the parties:
3.1
Liability for causing the collision was conceded by the defendant on
an 80/20 basis in favour of the plaintiff;
3.2
The plaintiff’s general damages were settled in the sum of R1,
920,000.00;
3.3
The defendant tendered an undertaking in terms of section 17(4) of
the Road accident Fund Act56 of 1996 in
respect of 80% of the
plaintiff’s future medical expenses;
3.4
The plaintiff’s hospital or medical expenses paid by his
medical aid were settled in the sum of R587,
623.89;
3.5
The plaintiff’s past caregiver and driver’s expenses were
settled in the sum of R441,200.00;
3.6
The defendant agreed to pay the costs of two Counsel employed by the
plaintiff.
All
the amounts reflected above are after the application of the
apportionment in paragraph 3.1.
[4]
The trial proceeded on the following limited claims:
4.1
The plaintiff’s past hospital and medical expenses paid by him;
and
4.2
The plaintiff’s past loss of income and future loss of earning
capacity.
[5]
Medico-legal reports from various experts were admitted by the
defendant. The report by Dr Olivier discloses that immediately
after
the collision the plaintiff was admitted at Life St Georges Hospital.
He was unconscious and his Glasgow Coma Scale was 9/15
on ambulance
report and 10/15 on hospital notes. He presented with a tender
cervical spine. His reflexes in the upper and lower
limbs were
flaccid and he was not able to move his legs. Although able to flex
his arms, he was unable to extend them. He was referred
for X- rays
and a CT scan which revealed a fracture of the fifth cervical
vertebra associated with a spinal cord injury. An anterior
cervical
fusion which extends from the fourth to the sixth cervical vertebra
was performed. The fusion was augmented with anteriorly
situated
plate and screws. Thereafter, he was ventilated in the Intensive Care
Unit for a prolonged period of time. During this
period a tracheotomy
was also performed. After sufficient recovery he was transferred to
the Aurora Rehabilitation Centre for a
spinal cord rehabilitative
program.
[6]
It is not in dispute that the plaintiff has reached maximum medical
improvement and his present condition is permanent for the
rest of
his life. He has suffered severe and pervasive loss of amenities of
life due to assessed 86% impairment as a whole person.
He is an
incomplete quadriplegic confined to a motorised wheelchair. He uses
controls to move with the wheelchair. He has complete
paralysis of
both lower limbs. He experiences severe pain in the lower back and
between the shoulder blades. Pain in cervical area
is still a
prominent symptom.
[7]
The plaintiff is total bladder and bowel incontinent. As a result of
this condition he has to use diapers. He is on a bowel
regulation
program using suppositories with mishaps reported to occur
intermittently. He has developed multiple urinary tract infections
which were treated. He uses a urinary catheter which is replaced
every month. He also uses multi-vitamins, ecotrin (aspirin), pain
tablets and sleeping tablets on a regular basis.
[8]
The plaintiff is unable to perform the normal and basic tasks of
daily living such as dressing, eating and performing his own
hygienic
activities. He is assisted by his wife and two caregivers with his
activities of daily living.
[9]
The psychiatrist diagnosed the plaintiff as suffering from
post-traumatic stress disorder (PTSD) and a generalised anxiety
disorder. The PTSD leads to excessively severe anger following
trivial incidents. These emotional episodes occur frequently. The
generalised anxiety disorder is not major and has not caused
occupational impairment of consequence. He suffers from sleep apnoea
which results in him having fatigue in the afternoons. He experiences
a severe headache for a very brief period on average once
a week.
This causes him to be dysfunctional during that period and the
condition is permanent.
Past
hospital and medical expenses paid by plaintiff
[
10]
The plaintiff gave evidence that at the time of the collision he was
a member of a medical aid insurance scheme. He incurred
substantial
medical expenses as a result of injuries sustained which were paid by
his medical aid insurance. During the years
2009-2012 his
medical aid did not pay for chronic medication and supplies. This was
due to him not having been approved for chronic
medication by the
medical aid. Consequently, he purchased by way of cash payments from
various retailers items like urine leg bags
and straps, dulcolax
suppositories, depuran capsules, cranberry tablets, boxes of medical
gloves, linen savers and adult diapers.
These were purchased once
every month from September 2009 until December 2012. Other items like
mattress overlays and wheelchair
spares were bought infrequently. The
plaintiff also had to pay for some lab tests and hospital
consultations.
[
11]
Later, the plaintiff’s medical doctor facilitated approval by
the medical aid of chronic medication from January 2013.
Even during
this period up to the present there were medical items the plaintiff
paid for in cash as they were excluded from cover
by the medical aid.
[
12]
The plaintiff submitted a schedule detailing all the purchases and
payments he made. It is clear therefrom that the purchases
were in
the sum of R105,531.13. The plaintiff has proof of payment or
vouchers for expenses amounting to R31,404.13. Expenses in
the sum of
R74,127.00 neither have proof of payment nor vouchers. The plaintiff
testified that his modus operandi was to provide
cash amounts to his
caregivers for the latter to purchase the items. He had lost the cash
slips his caregivers had provided to
him after the purchases.
[
13]
In cross examination, the plaintiff’s claim was neither
disputed nor challenged in any meaningful way. Counsel for defendant
contented himself with asking six questions which sought
clarification of certain aspects. The reason or justification for the
defendant to refuse this claim is not clear to me. I will return to
this aspect later.
[
14]
In my view the plaintiff proved his claim. A high percentage of his
claim is for chronic items. There is no doubt he required
these items
on a daily basis, for example adult diapers are required daily. The
plaintiff is entitled to payment of R84,424.90
in respect of this
claim after application of the apportionment.
Loss
of income and earning capacity
[15]
The plaintiff gave evidence which clearly showed he grew up in
disadvantaged circumstances at Motherwell Township, Port Elizabeth.
His disadvantage was compounded by severe burn injuries he suffered
as a six year old. These required multiple skin grafting procedures
over the facial area as well as the dorsum of both hands. These burn
injuries left him with compromised functionality of his hands
and
fingers and severe disfigurement of his head and face. His disability
and appearance led to enduring taunting by his age mates
as a child.
[16]
Despite his circumstances, the plaintiff excelled academically. He
matriculated in 1999 with three “A” symbols,
two “B”
symbols and an “E” symbol for the six subjects he
studied. The achievement is all more remarkable
for the fact that he
was a pupil at a deprived township school.
[17]
According to the plaintiff in 2000 he studied for a Bachelor of
Commerce (accounting) degree at Nelson Mandela Metropolitan
University. His eldest brother sponsored his studies in the first
year. The subsequent years of his studies were completed as a
part-time student due to lack of finances. He worked at Standard Bank
as a teller during the day and in the evenings attended his
classes.
He obtained his degree in 2005 despite his employer not granting him
any study leave.
[18]
After the collision and despite his severe impairment, the plaintiff
obtained even more outstanding academic achievements.
He was
awarded an Honours Bachelor of Commence (Internal Auditing) degree by
Unisa in 2011. He obtained the following certificates:
a
post-graduate certificate in Forensic and Investigative Auditing,
Unisa (2012); a certificate in Forensic and Investigative Auditing,
Unisa (7 march 2014); certificate as a fraud examiner with the
Association of Fraud Examiners. He completed the following
courses: Internal Auditing Course (2010); a short course on
Prevention and Detection of Procurement and Contract Fraud (2013);
Prince and Practitioner (APMP) course (an internationally recognised
process-based method for effective project management).
After
completing the necessary requirements, he was admitted for associate
membership of the Association of Certified Fraud Examiners
and also
of the Institute of Internal Auditors.
[19]
After completing his junior degree, the plaintiff was employed by
KPMG as an MIDP advisor (Master Industry Development
Programme) in
2006. According to him he was keen on a more challenging role.
He was offered a position by Faurecia
and also by VWSA. He
opted for the latter in 2008 as he was interested in an auditing
role.
[20]
After commencing employment at VWSA an auditing position became
available. The plaintiff was to transfer to this auditing
position when he was involved in the collision. According to
the plaintiff his career at VWSA would have progressed to a
senior
management position in the motor industry. This was possible as
managerial and senior executive positions were available
at VWSA.
Alternatively, he would have been a director or partner in an
accounting firm. During 2010 his employment
at VWSA was
terminated as he was considered disabled.
[21]
During the years 2011-2013 the plaintiff was an intern at the
Department of Roads and Public Works, Eastern Cape. He
was also
a tutor for Unisa students at this time. He supervised the
students allocated to him on-line. He was actively
seeking
employment from various companies. He was discriminated against
due to his disability.
[22]
The plaintiff testified that he sent correspondence to Chief
Executive Officers of various organisations detailing his
victimisation
despite his qualifications. The CEO of Coega
Development Corporation offered the plaintiff employment as a
Forensic Auditor.
His contract expires in July 2017.
[23]
The industrial psychologists for both parties signed a joint minute
wherein they agreed that pre-morbidly:
23.1
The plaintiff would have retired at the age of 65 years;
23.2
Robert Koch’s 2017 salary figures should be utilised; and
23.3
The full package medians should be used in calculating the
plaintiff’s loss.
[24]
Mr Martiny, the plaintiff’s industrial psychologist, testified
that with reference to the Paterson Grading System
the plaintiff was
employed at the lower end of the Paterson C1 level at the time of the
accident. He gave an opinion with
regard to the plaintiff’s
pre-morbid career scenario. His opinion was based on extensive
consultations with the plaintiff,
his colleagues at both VWSA and
Coega and consideration of substantial collateral information.
[25]
Mr Martiny’s opinion was that the plaintiff would have
progressed from Paterson C1 level to a Paterson D3 managerial
position by the time he reached approximately 45 years of age.
He testified it was probable the plaintiff would have advanced
to
Paterson D4/D5 by the time he reached the age range of 55 to 60
years. In his view, with the right opportunity and in
the right
organisation, the plaintiff could well have progressed to a Paterson
E band. Though it was difficult to predict
far into the future,
there was a good chance of plaintiff securing such a position.
Mr Martiny adopted a conservative approach
in advancing the plaintiff
to a Paterson D4/D5 level due to the fact that there are limited E
band positions.
[26]
The reasons advanced by Mr Martiny for his opinion were impeccable
and compelling. By all accounts the plaintiff is a
highly
intelligent person. His superiors at work reported that he had
a good personality and was a hard worker with capability
to be
promoted. He had an ability to look beyond figures and has a
broad mind. Mr Martiny had considered the fact that
there was
demand for people with the plaintiff’s qualifications and
attributes. The plaintiff’s chances of being
promoted
were optimal.
[27]
The defendant’s industrial psychologist had held a divergent
opinion that the plaintiff career was limited to auditing/finance
and
his career would plateau when he was 43 years old. After
hearing Mr Martiny he changed his opinion and agreed with the
pre-morbid career scenario provided by Mr Martiny.
[28]
I accept Mr Martiny’s opinion for the reasons he provided.
In my view the career scenario he sketched is the most
probable.
If anything, the scenario is conservative in light of all the
evidence before me.
[29]
Mr Paterson, who appeared for the defendant, criticised Mr Martiny’s
career scenario as being too imprecise and not supported
by the
evidence before Court. He submitted that E band was a mere
possibility and not probable due to limited employment
at that end of
the market.
[30]
I do not agree. It is unreasonable to expect the scenario to be
more precise as there are many imponderables due to the
long period
of time into the future. Both industrial psychologists agreed
the plaintiff would probably have retired at the
age of 65 years.
This means the scenario accounts for a period of 33 years into the
future. In my view, the evidence
strongly supports the scenario
by Martiny.
[31]
I am satisfied that on the evidence before me, the plaintiff would
probably have progressed to the E band for the reasons stated
by Mr
Martiny. Furthermore, the plaintiff has proved himself to be an
exceptional individual with a very resilient character.
He had
to overcome adversity and monumental barriers to attain his academic
and vocational achievements. It will be an injustice
and unfair
to limit the plaintiff’s progress to D3/D4 as the defendant’s
submission seeks to do. Even with limited
opportunities at the
top end of the market, the plaintiff’s achievements so far
indicate he would probably have been one
of the chosen few.
[32]
The plaintiff was an exceptionally good witness if regard is had to
his circumstances. He was well spoken and logical.
His
appearance exuded determination and fortitude. I accept his
evidence in all respects. I am satisfied that his evidence
was
truthful and reliable. I agree with Mr Martiny in describing
the plaintiff as “
a
very impressive person to anyone who comes into contact with him
”.
[33]
Mr Martiny was a very good witness. The force of logic in his
reasoning was irresistible. This is probably the
reason the
defendant’s industrial psychologist changed his opinion after
Mr Martiny testified. He maintained his objectivity
as an
expert throughout his evidence. I have no hesitation in
accepting his reasons for the opinion he offered.
[34]
The plaintiff’s actuary Algorithm Consultants and Actuaries
prepared two reports to assess the plaintiff’s past
and future
loss of income. The first report was based on Mr Martiny’s
opinion as recorded in this judgment. The
second report posited
two scenarios. The first scenario was based on Mr Martiny’s
opinion with a slight adjustment.
The second scenario was based
on the opinion of the defendant’s industrial psychologist.
Nothing more need be said
about the second scenario as the basis is
no longer valid.
[35]
The first scenario was calculated on the basis that the plaintiff’s
career would have plateaued on Paterson D4/D5 level
at the age of
57
years.
The age and the level are at variance with Mr Martiny’s
evidence which I have accepted.
[36]
I agree with Mr Frost, who together with Mr Williams appeared for the
plaintiff, that the approach of the actuary is too conservative.
Mr Martiny was resolute about the plaintiff reaching the D5 level at
the age of 55 years. I am also of the view that the
plaintiff
would probably have progressed to E level. It will be unfair
and an injustice to accept the first scenario in these
circumstances.
[37]
The relevant portion of the first report dealing with loss of income
reflects the following:
Losses
before the application of the Amendment Act
Past
Loss
Value
of income uninjured:
R 2,234.271
Less
contingency deduction: 5.00%
R 111.714
R 2,122,557
Value
of income injured:
R 1,627,073
Net
past loss:
___________
R
495.483
Future
loss:
Value
of income uninjured:
R 15.492,069
Less
contingency deduction:
15.00%
R 2,323.810
R 13 168,259
Value
of income injured:
R 144.567
Net
future loss:
___________
R 13,023,693
Total
net loss:
___________
R 13,519,176
Loss
after 80% apportionment:
___________
R 10,815,341
Losses
after the application of the Amendment Act
Net
past
loss:
R 396,387
Net
future
loss:
R 7,359,431
Total
net loss:
R
7,755,818
The
above total net loss is after the agreed apportionment of 80%.
[38]
The issue of costs requires particular consideration. In an oft
quoted judgment per Howie JA it was said:
“
The
[Road Accident Fund] exists to administer, in the interests of road
accident victims, the funds it collects from the public.
It has
the duty to effect that administration with integrity and
efficiency. This entails the thorough investigation of claims
and, where litigation is responsibly contestable, the adoption of
reasonable and timeous steps in advancing its defence.
These
are not exacting requirements. They must be observed
”.
(Road
Accident Fund v Klisiewicz,
Case
No 192/2001 (SCA), at paragraph 42 as quoted by Maya AJA (as she then
was) in Madzunya and Another v Road Accident Fund 2007(1)
SA 165
(SCA) at paragraph 17). The learned Maya JA went on to state
that the intention of the Road Accident Fund Act is to
give the
greatest possible protection to victims of negligent driving of motor
vehicles.
[39]
The defendant has unfortunately earned a reputation in this Division,
if not nationally, of acting prejudicially to the interests
of road
accidents victims (
Bovungana v Road Accident Fund
2009(4) SA
123 (E) at paragraph 7 amongst a plethora of other judgments
)
.
It has long been stated that the defendant is an organ of State.
The
Mlatsheni
judgment went on to say:
“
Organs
of State are not free to litigate as they please. The
Constitution has subordinated them to what has been called ‘a
new regimen of openness and fair dealing with the public’.
The very purpose of their existence is to further the public
interest
and their decisions must be aimed at doing just that. The power
they exercise has been entrusted to them and they
are accountable for
how they fulfil their trust. It is expected of organs of State that
they behave honourably-that they treat
the members of the public with
whom they deal with dignity, honestly, openly and fairly
”.
(
Mlatsheni
v Road Accident Fund
2009(2)
SA 401(E) at paragraph 16).
[40]
The plaintiff claimed past medical and hospital expenses comprising
amongst others caregiver and driver expenses he paid for.
He
had no proof of payment for this particular expense. The
defendant settled this particular claim on the morning of the
trial.
There was no tender of payment by the defendant of the claim for
medical expenses as dealt with above in the judgment.
This is strange as the plaintiff produced supporting vouchers for a
portion of the claim.
[41]
I invited Mr Paterson to explain the illogical and unreasonable
approach of the defendant in settling the particular claims.
Unsurprisingly, he was not able to do so as it was clearly not his
decision.
[42]
The consequence of the defendant’s conduct was that the
plaintiff was required to testify to prove the particular claim.
His evidence was neither challenged nor disputed in
cross-examination.
[43]
It turned out that it was not necessary for plaintiff to have
testified on this particular claim as the defendant could simply
have
admitted the claim. Almost all the expert reports indicate that
the plaintiff is suffering from severe and chronic back
pain.
On the afternoon when he started testifying he requested a brief
adjournment after about an hour. It later transpired
that due
to his existing physical condition as indicated in this judgment he
was no longer able to continue.
[44]
It must have been clear to the defendant that to require the
plaintiff to testify would be a painful ordeal for him.
The
callous disregard to the suffering of the plaintiff is deprecated.
The suffering he endured was unnecessary. A
punitive costs
order is warranted in these circumstances. It will be limited
to only the first day of trial though I have
reservations whether
this matter should have been allowed by the defendant to proceed to
trial. I will give the benefit of
doubt to the defendant’s
industrial psychologist that his incorrect opinion was a
mala
fide
error and not due to him having a single consultation with the
plaintiff for only fourty minutes.
[45]
Mr Paterson prevailed on me to limit the punitive costs order to the
afternoon of the first day of trial. I am persuaded
by Mr
Frost’s submission that the defendant’s misconduct
predates the 1
st
February 2017. The defendant failed to resolve issues well
before the trial date and only settled on the trial day.
Even
at that stage, the defendant’s conduct was illogical,
unreasonable and wasted Court time.
[46]
In the circumstances and for the above reasons it is ordered:
1.
The defendant is to pay the plaintiff the sum of R10 789 066.49
in full and final settlement
of plaintiff’s claim for damages,
which is made up as follows:
1.1
The sum of R 1 920 000.00 in respect of general damages.
1.2
The sum of R441 200.00 in respect of past caregiver and driver
expenses.
1.3
The sum of R587 623.59 in respect of past hospital and medical
expenses paid for by plaintiff’s
medical aid.
1.4
The sum of R84 424.90 in respect of past hospital and medical
expenses paid for by plaintiff.
1.5
The sum of R7 755 818.00 in respect of past loss of income
and future loss of income and earning
capacity.
2.
Payment of the aforesaid amount in paragraph 1 above shall be made
within 14 days from date of this Order
directly to plaintiff’s
attorney of record, Roelofse Meyer Inc., trust account, details of
which are as follows:
Name:
Roelofse Meyer Inc.
Bank:
Standard Bank
Branch:
Port Elizabeth
Branch
Code: 050017
Account
Number: [...]
3.
Failing payment of the aforesaid amount in paragraph 1 above
defendant is to pay interest on the aforesaid
amount in paragraph 1
above at the rate of 10.5% per annum to date of payment.
4.
Defendant shall furnish plaintiff with an Undertaking in terms of
Section 17(4)(a) of the Road Accident
Fund Act, Act 56 of 1996, for
80% of the costs of future accommodation of plaintiff in a hospital
or nursing home, or treatment
of or rendering of a service to him or
supplying of goods to him arising out of the injuries sustained by
him in the collision
on 12 April 2009, after such costs have been
incurred and upon proof thereof.
5.
Defendant is to pay plaintiff’s costs of suit up to and
including 7 February 2017, save that the
trial costs of 1 February
2017 shall be on a punitive scale, as taxed or agreed, such costs are
to include:
5.1
The costs of the reports and supplementary reports, if any, of:
Dr
M Tait;
Dr
PA Olivier;
Dr
E Steenkamp;
Mr
P Loots;
Mr
B Rademeyer;
Mr
R Knight;
Mrs
A van Zyl;
Dr
D van der Merwe;
Mr
L Martiny;
Mr
G Whittaker.
5.2
The reasonable qualifying fees, expenses and reservation fees, if
any, of:
Dr
M Tait;
Dr
PA Olivier;
Dr
E Steenkamp;
Mr
P Loots;
Mr
B Rademeyer;
Mr
R Knight;
Mrs
A van Zyl;
Dr
D van der Merwe;
Mr
L Martiny;
Mr
G Whittaker.
5.3
The trial costs of 1 February 2017 shall be paid by defedant on
attorney-client scale.
5.4
The trial costs of 2, 3, 6 and 7 February 2017.
5.5
The reasonable costs of consultations of plaintiff’s counsel
and plaintiff’s attorney with plaintiff’s
experts and lay
witnesses in the preparation for the trial.
5.6
The costs of the employment of two Counsel.
6.
Defendant is to pay interest on plaintiff’s said taxed or
agreed costs at the rate of 10.5% per
annum from a date 14 days after
allocatur
or agreement to date of payment.
________________
T
MALUSI
Judge
of the High Court
Appearances
Counsel
for plaintiff, Adv A Frost & Adv K William, instructed by
Roelofse Meyer Inc.
Counsel
for defendant, Adv N Paterson, instructed by Ketse Nonkwelo Inc.
Date
Heard: 2-7 February 2017
Date
Delivered: 25 April 2017