About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 34
|
|
A.M v Road Accident Fund (2721/2018) [2023] ZAFSHC 34 (15 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2721/2018
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
A[...]
M[...]
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
02 SEPTEMBER 2022
JUDGMENT
BY:
KHOOE, AJ
DELIVERED
ON:
15 FEBRUARY 2023
This judgment was
handed down electronically by circulation to the parties’
representatives by email.
The
date and time for
the
hand-down are
deemed
to
be 15h00 on 15 February 2023.
[1]
The plaintiff in this matter sued the
defendant for injuries he suffered as a result of a motor vehicle
accident which occurred
on 22 January 2015. At the time of the
accident the plaintiff was 23 years old.
[2]
The merits of the claim were settled by
agreement between the parties on 19 August 2019, on the basis that
the defendant is liable
for 100% of the plaintiff’s proven or
agreed damages. The plaintiff’s claim was for an amount of R 2
528 676.03, made
up as follows:
2.1
Past medical and hospital expenses:
R 23
386.03
2.2
Future medical expenses:
R
102 000.00
2.3
Past and future loss of income:
R
1 203 290.00
2.4
General damages:
R
1 200 000.00
[3]
The matter served before me on 30 to 31
August 2022 and stood down to 2 September 2022 for settlement
negotiations between the parties.
The parties agreed that in the
event that the matter not be settled, the contents of the plaintiff’s
expert reports would
serve as admitted evidence before court and the
parties would argue the matter on the correctness of the reports.
[4]
On the 2 September 2022, the parties
informed me that they had not settled and I was then called upon to
adjudicate the future medical
expenses, past and future loss of
income and general damages. After I raised reservations on past
medical and hospital expenses,
counsel for the plaintiff informed me
that the plaintiff had abandoned that claim.
[5]
The plaintiff handed in the reports of the
following experts; Dr LF Oelofse the orthopaedic surgeon, Dr A Van
Aswegen the neurosurgeon,
Ms L v Zyl the occupational therapist, Mr L
Roper the clinical psychologist, Dr E Jacobs the industrial
psychologist and Munro
Actuaries. The defendant did not file any
expert reports.
[6]
According to the expert reports handed in,
by agreement, the general injuries and sequelae of the plaintiff are
a head injury, cervical
spine injury and lacerations to his hands
face, elbows and left shoulder. He is now suffering post-traumatic
stress disorder.
[7]
Despite the said agreement, counsel for the
defendant argued that certain portions of the expert reports should
be disregarded because
from the hospital records there was no mention
of cervical or neck injuries. She further argued that because the
radiological examination
was normal, there was no nexus between the
accident and the neck and cervical injury. Counsel submitted that
should the court find
the injury was related to the accident, then,
future treatment should be on a conservative basis. As already
stated, the defendant
had no expert reports to support Counsel’s
submissions or to counter the plaintiff’s expert reports and
therefore nothing
turns on those submissions.
[8]
The plaintiff was a farm worker at the time
of the accident. From an orthopaedic perspective, Dr Oelofse opined
that the plaintiff
must not be allowed to do physical labour and must
be accommodated in a light duty/neck friendly environment, as
determined by
an occupational therapist.
[9]
Ms van Zyl, the occupational therapist
opined that when considering as a whole the plaintiff’s level
of education, work history
and limited skills set, his limited
residual work capacity, and his current physical and cognitive and
psycho social limitations,
it is unlikely that he would secure
alternative/future employment within a light category of work or
where an employer is willing
to accommodate his shortcomings.
Therefore, the plaintiff may continue to suffer a loss of income in
the future.
[10]
Dr Jacobs, the industrial psychologist
summarized the plaintiff’s uninjured career to the age of 65
years. He estimated his
earning capacity at R44 711.00 per annum in
2021. He also commented that progressions were unlikely and that he
would have faced
periods of unemployment as well. As far as his
injured career is concerned, Dr Jacobs opined that it was difficult
to see how the
plaintiff will be able to compete in all reasonability
with healthy competitors and that in his opinion he will remain
unemployed.
[11]
Munro actuaries calculated the plaintiff’s
past and future loss of earnings on the assumptions and opinions
contained in Dr
Jacobs’s report. They applied 5% contingencies
in the past uninjured and 15% in the future uninjured scenario. The
court
is enjoined to apply and calculate contingencies on the
actuarial calculation for past and future loss.
[12]
Counsel for the plaintiff took the liberty
to prepare two different scenario calculations for the past and
future loss of income.
One on (20% contingency), the amount being R 1
147 105.00 which he submitted was a fair amount. The other scenario
on the higher
end (25% contingency applied), the amount being R 1 090
920.00. I am grateful for his assistance.
[13]
On the generals, Counsel for the plaintiff
argued that R950 000.00 would be a fair amount when looking at the
various case law for
similar injuries that he referred me to.
[14]
Contrary to the contents of the plaintiff’s
experts reports and despite the lack of any expert evidence on behalf
of the defendant,
Counsel for the defendant argued that because no
proof of income was provided by the plaintiff, the assumptions used
in the actuarial
calculations were baseless, even though it was made
clear that the calculations were made based on the minimum wage of a
farm worker.
She further submitted that the plaintiff has no physical
limitations, the neurocognitive and psychological conditions he has
are
pre-existing therefore a higher contingency should be applied in
respect of both past and future loss of income.
[15]
Counsel for the defendant further submitted
that the contingency that the court should apply is 50% as there was
no proof of income.
She referred to
A A
Mutual Insurance Association Ltd v Maqula
1978 (1) SA 805
(A).
[16]
Counsel for the defendant then referred me
to comparable cases in the Johannesburg division and argued that a
reasonable amount
for general damages would R500 000.00.
[17]
Koch, The Quantum Yearbook (2011) at 104
says the following:
“
General
contingencies cover a wide range of considerations which may vary
from case to case and may include: taxation, early death,
travel
costs, loss of employment, promotion prospects, divorce, etc. There
are no fixed rules as regards general contingencies
.”
[18]
In short, there is no hard and fast rule of
general application requiring the court to consider past awards in
general damages.
It remains in the discretion of the court deciding
the case.
[19]
I have considered all the opinions of the
various experts and the nature and consequences of the injuries the
plaintiff suffered,
and the fact that there was no evidence tendered
rebutting the plaintiff’s version.
[20]
I find no reason to reject the version of
the plaintiff as supported by the various experts. I am satisfied
that the plaintiff has
suffered injuries that have affected his life,
not only regarding the physical pain he suffers from, but also the
neurocognitive
issues he now has and that he may never be able to get
employed as a farm worker again.
[21]
In the result, I make the following order:
20.1.
The defendant is liable for payment to the
plaintiff in the amount of R 1 890 920.00 (One million eight hundred
and ninety thousand,
nine hundred and twenty rand) [hereafter
“capital amount”], resulting from a motor vehicle
collision that occurred
on 22 January 2015, as set out hereunder:
20.1.1
R 800 000.00 in respect of general damages;
20.1.2
R 1 090 920.00 in respect of past and
future loss of income.
20.2
The defendant is ordered to furnish the
Plaintiff with an undertaking in terms of
section 17(4)
of the
Road
Accident Fund Act 56 of 1996
, for 100% of the costs of the future
accommodation of the Plaintiff in a hospital or nursing home or the
treatment of or rendering
of a service or supplying of goods to the
Plaintiff arising out of injuries sustained by him in the motor
vehicle collision mentioned
above, in terms of which undertaking the
defendant will be obliged to compensate him in respect of the said
costs after the costs
have been incurred and on proof thereof.
20.3
The defendant to pay the plaintiff’s
taxed or agreed party and party costs on High Court scale, until date
of this court order,
including but not limited to the costs set out
hereunder:
20.3.1
The reasonable preparation/ qualifying and
reservation fees and expenses (if any) of the following experts:
20.3.1.1
Dr LF Oelofse (Orthopaedic surgeon)
20.3.1.2
Dr A Van Aswegen (Neurosurgeon)
20.3.1.3
Dr Leon Roper (Neurologist)
20.3.1.4
Ms Lucindy Van Zyl of Rita van Biljon
(Occupational Therapists)
20.3.1.5
Dr EJ Jacobs (Industrial psychologist)
20.3.1.6
Munro Forensic Actuaries.
20.4
The payment provisions in respect of the
aforegoing are ordered as follows:
20.4.1
Payment of the capital amounts shall be
made without set-off or deduction, within 180 (hundred and eighty)
calendar days from the
date of granting of this order, directly into
the trust account of the plaintiff’s attorneys of record by
means of electronic
transfer, the details of which are the following:
Honey
Attorneys - Trust Account
Bank
- Nedbank, 1[...] Street Bfn
Branch
Code
- 1[...]
Account
No.
- 1[...]
Reference
- H[...]
Quote
the reference at all times)
20.4.2
Payment of the taxed or agreed costs shall
be made within 180 (hundred and eighty) days of taxation, and shall
likewise be effected
into the trust account of the plaintiff’s
attorney.
20.5
Interest shall accrue at 7% (the statutory
rate per annum). Compounded, in respect of:
20.5.1
The capital claim, calculated from 14
(fourteen) days from the date of this order.
20.5.2
The taxed or agreed costs, calculated from
14 (fourteen) days from date of taxation, alternatively date of
settlement of such costs.
N.
J. KHOOE, AJ
On
behalf of the Plaintiff:
Adv. PJJ
Zietsman Sc
Instructed by:
Honey
Attorneys
Bloemfontein
On
behalf of the Defendant:
Ms. P Banda
Instructed by:
State
Attorney
Bloemfontein