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[2023] ZAFSHC 67
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Maritz v Road Accident Fund (5746 /2015) [2023] ZAFSHC 67 (7 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 5746 /2015
In
the matter between:
JACOBUS
JOHANNES MARITZ
APPLICANT
and
ROAD
ACCIDENT FUND
RESPONDENT
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
8 NOVEMBER 2022
DELIVERED
ON
:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and released to
SAFLII on 7 MARCH 2023. The
date and time for hand-down is deemed to be 7 MARCH at 15:30.
[1]
The plaintiff claims damages arising out of bodily injuries sustained
in a motor vehicle
accident? on 26 February 2012. On 7 February 2017,
this court ordered that the defendant was liable for payment of 100%
of the
plaintiff’s proven or agreed damages. The defendant was
also ordered to provide the plaintiff with an undertaking in terms
of
section 17(4)(a) of Act 56 of 1996 for future medical expenses.
[2]
The defendant rejected the serious injury assessment report (RAF4) of
the plaintiff
on the basis that the “…
Dr’s
report confirms that there are no serious injuries (soft tissue
injuries, X-ray show no abnormalities on cervical spine.”
According to the Rule 37A pre-trial minutes, the plaintiff
abandoned the claim for general damages due to non-qualification as
per
the Health Professions Council of South Africa’s decision
dated 30 November 2021. In this case I am only called upon to
adjudicate
the issue of loss of earnings/earning capacity.
[3]
The issue to be adjudicated upon in this dispute is whether the
plaintiff has made
up a case for loss of earnings/ earning capacity,
and if so, how much damages must this court award to him in
compensation.
[4]
It is undisputed that the plaintiff was involved in a motor vehicle
accident as a
result of which he sustained some injuries. According
to the report dated August 2014 of Dr Oelofse, an orthopaedic
surgeon, the
plaintiff drove himself to the hospital 2 days after the
accident. He was assessed and treated at the emergency unit. He
complained
of pain in the neck. His X-rays revealed no abnormalities.
According to him it seems that the plaintiff was treated
conservatively
with analgesics for muscle spasms of the cervical
spine. He was discharged the same day.
[5]
Dr Oelofse also noted that the plaintiff had pains in the neck which
gradually increased
over time. The plaintiff followed this issue of
the pain with his doctor on several occasions. The X rays taken again
later revealed
no abnormalities. Dr Oelofse opined that the injury
sustained by the plaintiff had an impact on his productivity and
working ability.
He also opined that although the plaintiff returned
to his occupation post the accident, he had difficulty completing his
tasks
with ease. He opined that the plaintiff will most probably only
work until the age of 60 or even younger.
[6]
Dr Oelofse diagnosed the plaintiff with C6-C7 disc lesion with
chronic headaches;
chronic muscle spasm; left radicular symptoms and
mild to advanced spondylosis of C6-C7.
[7]
The plaintiff further reportedly bumped his right knee on the dash
board of the vehicle
he was driving during the accident. He did not
experience any pain on the knee until approximately 3 months later.
The plaintiff
experienced an increase in the pain when sitting with
bent knee or walking for long periods of time.
[8]
Ms Van Biljon, an occupational
therapist opines that due to the injuries and its sequelae
the
plaintiff should be accommodated in a light duty/sedentary position.
[9]
According to Dr Jacobs, an industrial psychologist, the plaintiff
received all his
income in full after the accident and there is
consequently no past loss of income. In his opinion it is highly
unlikely that the
plaintiff will be accommodated in suitable
sedentary position. While he opines that there was no past loss of
income, he is of
the view that the accident changed his capacity to
earn income and the defendant ought to compensate him for its future
loss.
[10]
On the other hand, the contention of the defendant is that the
plaintiff should not be compensated
for any loss of income. This
contention is premised on the view that the plaintiff did not sustain
serious injury,
what he sustained was
typical whiplash (straining injury of the cervical spine).
[11]
During the hearing, Counsel for the defendant handed from the bar the
findings of the Appeal
Tribunal constituted pursuant to the Road
Accident Fund Regulations,2008.
[1]
The plaintiff did not object to the handing in of the findings. The
findings therefore became part of the record. The evidence
reveal
that the defendant formally rejected the serious injury assessment
report. The basis for the rejection according to the
defendant is
that “
the
Dr’s report confirms that there are no serious injuries (soft
tissue injuries, x-ray show no abnormalities on cervical
spine).”
[2]
[12]
The following was set out in the letter of the Registrar emanating
from the Appeal tribunal
;
DISCUSSION POINTS
(INTERPRETATION OF THE FACTS/INFORMATION)
·
“
The history is typical of whiplash (straining injury of the
cervical spine)
·
The MRI scan showed mild or early spondylosis at the C6/7 level,
consistent with the patient’s age. The pathology is described
as “minimal”. By the radiologist. No features of injury
of the vertebral column were identified.
·
The patient thus appears to have sustained a whiplash injury,
which is not serious…
·
Dr Schutte’s rating of 8% WPI is incorrect. The correct
rating for whiplash injury, without verifiable radiculopathy, would
be 1% or 2%.
·
The Tribunal panel disagrees with Dr Oelofse assertion that the
patient may have to undergo spinal fusion in the future, as a result
of the injury he sustained in the accident. If he undergoes surgery,
it will be attributable to ordinary age-related spondylosis,
rather
than the effects of the injury he sustained in the accident.
·
…
TRIBUNAL FINDINGS
·
The claim for compensation for general damages is based on Dr
Schutte’s assertion that the patient sustained a C6/7 lesion,
with radiculopathy. The radiculopathy was not confirmed. (The patient
complains of intermittent paraesthesia in the left hand,
while the
MRI scan shows ‘minimal narrowing of the right sided-neural
foraminal’.). the MRI scan finding of minimal
pathology of the
C6/C7 disc, with no features of acute trauma (minimal bulging of the
disc, but no rupture/disruption (is fully
consistent with ordinary
spondylosis that would commonly be seen in a patient of this age.
·
Considering the description of the injury and the paucity of
objective findings, it is clear that the patient sustained whiplash
injury, which is non-serious….
·
Narrative Test 5.1 Physical impairment- the patient sustained a
straining of the cervical spine(whiplash). The MRI scan showed a
C6/7-disc lesion, described as ‘minimal’ by the
radiologist. This lesion is consistent with early age related
degenerative
spondylosis. the injury of the cervical spine is not
serious, being included in the Minister of Transport’s list of
non-serious
injuries.
·
…
·
…
·
In the light of the above, it is the Tribunal’s viewpoint
that the injuries sustained by the patient did not result in
significant
long-term life altering consequences.”
[13]
As a starting
,
point
,
it is necessary to indicate that a decision by the Appeal Tribunal
constitutes an administrative action as defined in the
Promotion of
Administrative Justice Act, 3 of 2000
.
Section 6(1)
of this Act
provides that any person may institute proceedings in a court or
tribunal for judicial review of an administrative
action.
[14]
Regulation 3(4) and 3(13) of the Act lays down the procedure by which
the Appeals Tribunal may
enquire into a dispute. Any person feeling
aggrieved by its decision may take the said decision to court on
review. The plaintiff
in this case chose not to take the findings and
decision of the Appeals Tribunal on review in terms of PAJA as
indicated above.
[15]
It is against this backdrop that this matter has to be adjudicated
upon. It is also necessary
to touch on the classification of damages
in our law. All non-patrimonial loss such as pain and suffering, loss
of amenities is
classified as general damages. Forms of damages that
remain prospective up to the date of the hearing like future medical
expenses
and future loss of earnings/earning capacity are also
classified as general damages. Patrimonial loss on the other hand
refers
to damages such as medical and hospital expenses already
incurred as well as past loss of income and these are classified as
special
damages. Simply put, past loss of earnings is classified as
special damages while future loss of earnings is classified as
general
damages.
[3]
[16]
The following is also relevant as set out in
Corbett
(supra
)
[4]
“
Before
damages payable to the injured person can be assessed it is necessary
that the court should determine factually what injuries
were suffered
by the plaintiff as a result of the defendant’s wrongful
act...”
It is necessary to
mention that the claim of the plaintiff for future loss of earnings
is based on the reports of Drs Schutte and
Oelofse. Their assertions
were refuted by the tribunal. Specifically, the assertion by Dr
Schutte that the patient sustained a
C6/7-disc lesion, with
radiculopathy, which apparently remains unconfirmed and the opinion
of Dr Oelofse that the plaintiff may
have to undergo spinal fusion.
It is specifically asserted by the tribunal that if the plaintiff was
to undergo surgery it would
be attributable to ordinary age related
spondylosis rather than the effects of the injury sustained in the
accident.
[17]
The plaintiff bears the onus to prove his damages. It is necessary to
take note that according
to regulation 13 the decision of the
tribunal is both final and binding. The plaintiff chose not to have
the decision set aside.
I am of the view that in the absence of the
review of the decision of the tribunal, I have to accept that the
plaintiff suffered
whiplash which is not categorised as a serious
injury. It has not been established that the whiplash had profound
life changing
consequences on the life of the plaintiff.
[18]
The assessment of the damages suffered were not based on the fact
that the plaintiff sustained
a whiplash but on the refuted opinion
that he sustained a C6/7-disc lesion injury. The objective evidence
by way of MRI scan showed
a C6/7-disc lesion and the radiologist
described same as minimal.
[19]
Logic thus dictate that if the premise upon which the assessment is
based is flawed, then in that case the relief sought cannot
succeed.
It has not been established that the plaintiff will be unable to earn
a living, either on a temporary or permanent basis.
In a claim for
future loss of earnings, the plaintiff must establish on evidence
that he would have earned an income but for the
injuries sustained.
It is my considered view that the injury sustained, being non-serious
have not resulted in a permanent impairment
of earning capacity. I am
thus not satisfied that the plaintiff has succeeded to prove the
claim for the loss of future earnings.
In respect of past loss of
earnings, it is common cause that the plaintiff suffered no such
loss. The plaintiff has thus failed
to prove this head of general
damages.
[20]
I accordingly order as follows:
ORDER
1.
The plaintiff’s claim is dismissed with costs.
P.E.
MOLITSOANE, J
Counsel
on behalf of Plaintiff:
Adv. JC Coertzer
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
Counsel
on behalf of Defendant:
Adv. Mkwanazi
Instructed
by:
State Attorney
BLOEMFONTEIN
[1]
Published under GN R770 in GG 31249 of 21 July 2008.
[2]
See Rejection notice in terms of regulation 3(3)(d)(i) –page
67 of the paginated record.
[3]
See Quantum of Damages, Vol 1 Corbett 4
th
ed, Gauntlett at pages 2-4.
[4]
p
30.