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2023
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[2023] ZAFSHC 386
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Viljoen v Road Accident Fund (3802/2017) [2023] ZAFSHC 386 (9 October 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
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
CASE NO: 3802/2017
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PHILIP
VILJOEN
Plaintiff
[1]
and
THE
ROAD ACCIDENT FUND
Defendant
[2]
Coram:
Opperman, J
Heard
on:
12 &
13 September
2023, the matter was postponed for heads of argument to be filed by
the defendant and, if any, plaintiff’s heads
in reply, to 26
September 2023. Heads of argument were filed on 13 September 2023, 18
September 2023, and 22 September 2023.
Delivered:
9
October 2023. The judgment was handed down in court and
electronically by circulation to the parties’ legal
representatives
by email and release to SAFLII on 9 October 2023. The
date and time for hand-down is deemed to be 9 October 2023 at 15h00
Judgment:
Opperman, J
Summary:
Contingencies
to be applied to the plaintiff's
actuarial calculation on past and future loss of income
JUDGMENT
[1]
The plaintiff, a 32-year-old man, instituted
action against the RAF as a result of injuries which he sustained on
23 May 2014 when
he was involved, as a passenger, in a motor vehicle
accident.
[2]
On 6 August 2018 Naidoo, J held that the RAF is
liable for 100% of the plaintiff's proven and/or agreed damages and
made an order
that the plaintiff's damages is to be adjudicated at a
later stage. The quantum of plaintiff's claim was set down for trial
on
12, 13 & 15 September 2023.
[3]
On the first day of trial the legal
representatives of the plaintiff and the RAF settled the plaintiff's
claim for general damages
on an amount of R600 000.00:
1.
They agreed that the plaintiff's claim for past
medical and hospital expenses be separated in terms of rule 33(4) and
be referred
to the pre-trial roll. The reason for separating the
claim for past medical and hospital expenses is because of the RAF's
pending
application to the Constitutional Court.
2.
The RAF agreed to provide the plaintiff with an
undertaking in terms of
Section 17(4)
of the
Road Accident Fund Act
56 of 1996
in respect of the plaintiff's claim for future medical
expenses.
3.
The only remaining issue for adjudication is
now the plaintiff's claim for past and future loss of income.
4.
In this regard, the RAF conceded to the
submission as evidence for the plaintiff, all of the plaintiff's
expert reports. The reports
were admitted as being true and correct.
5.
The defendant closed their case without
adducing evidence and indicated that they will address the court on
the dispute that remained.
6.
The dispute that remained is the contingencies
to be applied to the plaintiff's actuarial calculation on the past
and future loss
of income.
[4]
The plaintiff maintained in their heads of
argument that:
7.1 In
light of the aforementioned it is submitted that a contingency
deduction of 40% (20% in real terms) would
be fair and just given the
particular circumstances and the sequalae of the injuries sustained
by the plaintiff.
7.2. A
contingency deduction as aforesaid equates to a loss of income of R3
144 765.00.
[5]
The
defendant suggested a contingency deduction of 35% for future loss of
earnings but for the accident and contingency deduction
of 20% for
future loss of earning having regard to the accident. The net amount
for the loss of earnings comes in at R654 500.00.”
[3]
[6]
The claim of the plaintiff was initially in
2017:
7.
7.1
General
Damages
R 500
000.00
7.2
Past
Medical and Hospital Expenses
R 80
320.48
(See
annexure “A”)
7.3
Past
Loss of Income
R 17
765
(See
annexure “B”)
7.4
Future
Loss of Income (See annexure “B”)
R4
152 360
TOTAL
R4
750 445.48
10.
In the premises the
Defendant is liable to pay Plaintiff the amount claimed, but, despite
demand, Defendant has to date, failed
to do so.
WHEREFORE Plaintiff prays
for judgment against Defendant for:
1. Payment of the
sum of R4 750 445.48
2. Interest a
tempore morae
on the aforesaid amount at the rate of 10.5% per
annum from date of judgment to date of payment, if payment is not
effected within
fourteen (14) days of date of judgment.
3. Costs of suit.
[7]
The evidence proven and as correctly summarised by counsel for the
plaintiff is:
1.
In the uninjured future scenario, the point of
departure is, of course, the 15% normal contingency. The evidence
shows that the
plaintiff suffered from a pre-existing depressive
condition. The plaintiff's depression started during approximately
2012 and he
was placed on medication. However, the plaintiff's
symptoms were relatively mild.
2.
Dr Oelofse, the orthopaedic surgeon’s
evidence is that he diagnosed the
plaintiff with a head/facial injury with chronic headaches, chronic
muscle spasms and residual
neurological symptoms. There is also
present, a united C5 fracture with chronic headaches, chronic pain
and muscle spasms, moderate
decreased range of movement of the
cervical spine and C4-5 early post traumatic spondylosis, a left
scaphoid fracture with resulting
painful wrist joint, moderately
decreased range of motion of the wrist joint, scapholunate ligament
injury with widening of the
scaphoid-lunate space and a probability
of more than 50% for the wrist joint to deteriorate to end stage
osteo-arthritis within
the plaintiff's total lifespan. Dr Oelofse
recommends conservative treatment to the plaintiff's cervical spine
injury with non-steroidal
anti-inflammatory drugs, physiotherapy and
long-term rehabilitation and bio-kinetics. Should the plaintiff not
respond to the treatment
he will be a candidate for facet joint
blocks in theatre, but there is a possibility that the treatment will
not help in which
case the plaintiff will be admitted to hospital for
five days for intensive conservative treatment and rhizotomy in
theatre. Dr
Oelofse opines that the plaintiff has a possibility
estimated at 40% of having to undergo the suggested surgery within
his total
lifespan. Dr Oelofse is also of the opinion that the
plaintiff has a possibility of 25% to 35% of undergoing a cervical
fusion
of the involved levels (C4-5) due to hyper mobility and
progression of degeneration in his cervical spine. As already
mentioned,
the plaintiff has a probability of more than 50% (i.e., a
balance of probabilities) that his wrist joint will deteriorate to
end
stage osteoarthritis within his total lifespan and therefore Dr
Oelofse is of the opinion that conservative treatment will not be
effective. He therefore recommends scharhotrapeziotrapezoid fusion.
If this treatment is not effective, the plaintiff's wrist joint
will
develop end stage osteoarthritis and provision should be made for a
wrist arthrodesis or a wrist replacement. Insofar as the
plaintiff's
employment is concerned, Dr Oelofse is of the opinion that the
plaintiff must not only be placed in a permanent light
duty/spine
friendly working environment, but that provision must be made for
sick leave. The plaintiff's neck and wrist injuries
had a profound
impact on the plaintiff's productivity and his working ability and
will continue to do so in future. With timely
and successful
treatment of the plaintiff's cervical spine and his left wrist
injuries his productivity will increase but as degeneration
progresses his productivity will decrease again. The plaintiff's
injuries, especially his cervical spine and left wrist injuries
will
adversely affect his chances of promotion and advancement in any
future career.
The plaintiff will not
be able to perform physical labour again. The plaintiff is an unfair
competitor in the open labour market
and his working abilities have
been affected negatively by the accident
.
3.
Dr van Aswegen, the neuropsychologist
diagnosed the plaintiff with a mild
traumatic brain injury. The complaints recorded by the plaintiff to
Dr van Aswegen are constant
headaches with a grading of 4/10 and
about 1 to 2 intense headaches per month which the plaintiff rates as
7/10. The plaintiff
struggles to remember certain things and he finds
it especially challenging to remember what he has learned. He also
has to keep
meticulous diary of meetings and tasks that needs to be
done. The plaintiff also complains of severe attention deficit since
the
accident. Furthermore, the plaintiff also complains of pain in
his neck and in his back. Dr van Aswegen is of the opinion that the
plaintiff's neurocognitive symptoms can be ascribed to the motor
vehicle accident.
Dr van Aswegen is
further of the opinion that the plaintiff will in all likelihood
never reach his full potential even in the event
that he does manage
to pass all his exams he is at risk of developing so-called "burn
out"
. Furthermore, the
plaintiff has a lifetime risk of between 2% to 5% to develop epilepsy
due to his head injury.
4.
Mr Brian Mallinson the neuropsychologist
,
that testified in court, describes the plaintiff’s present
difficulties to be a state of being very aggressive. The plaintiff
that was never in the habit to become involved in any physical
altercations before 2014 had since had to attend two assault cases
in
2019 and 2020. The plaintiff was involved in two further incidents.
On 13 January 2021, the plaintiff was pulled over by two
traffic
policeman and they assaulted him. Mr Mallinson also recorded that the
plaintiff suffers of constant mild headaches and
that he forgets
things very easily. He diagnosed the following neuropsychological
difficulties: Poor auditory and visual attention
consistent with
concentration difficulties, psychomotor slowing, a high level of
impulsivity resulting in poor planning especially
on unstructured
tasks and probable poor retention of information in verbal memory. It
is the opinion of this expert that the plaintiff's
neuropsychological
profile is consistent with that which is commonly seen after mild to
moderate traumatic brain injury and the
neuropsychological
difficulties are consistent with the plaintiff's difficulties that
was noted during the interview.
The
plaintiff’s lack of impulse control and his high level of
aggression may have a negative impact on him pursuing a career
as a
teacher and that he may make bad business decisions or become
involved in staff disputes involving aggression which could
impact
negatively on his business. Furthermore, his poor temper control
could well have a negative influence on his personal relationships
and his ability to maintain a stable marriage relationship. The
plaintiff will require ongoing psychiatric treatment.
5.
Dr Shevel as a psychiatrist
warned the court that head injury
individuals often are poor witnesses of their own condition. He
diagnosed the plaintiff with a
mild post traumatic organic brain
syndrome with associated dysthymia. He is further of the opinion that
the symptoms of the mild
post-traumatic organic brain syndrome must
be considered permanent and that symptoms can include changes in
cognitive functioning,
mood, and personality. All three of the above
modalities of the plaintiff appears to have been affected and that,
apart from the
plaintiff's mood/depression the symptoms are
relatively mild. However, Dr Shevel's clinical impression is that the
plaintiff's
irritability will remain but that he will have more
control of the situation.
The
irritability, cognitive changes and other personality deficits will
probably prevent the plaintiff from promotion within the
school
system and his chances of becoming the head or vice-head of a
department will be much lower than pre-accident
.
Furthermore, the plaintiff's post-traumatic brain syndrome, although
mild, may have a delayed negative impact on the plaintiff's
coping
and adaptation skills and he may have to retire about two years
earlier than he would have been expecting. According to
Dr Shevel the
plaintiff's psychiatric condition has had a negative impact on his
interpersonal skills and relationships.
6.
Me Linda Swart is an educational
psychologist
.
Her
assessment of the accident and the injuries is that although the
plaintiff may be able to complete his degree, even though it
may take
longer than the minimum prescribed period and will require a
considerable bigger effort on his part, taking the challenges
he
experiences when studying into consideration; the biggest concern is
the plaintiff's personality profile especially the plaintiff's
irritability, anger and short temperedness.
She
questions whether the plaintiff is suitable for the role/position as
an educator, especially in the FET phase
.
According to her, the plaintiff may find it difficult to deal with
teenagers if he cannot control his temper and if it turns out
to be
the case he will probably remain in his current position and may
experience challenges in the workplace.
The
plaintiff is rendered an unequal competitor in the open labour market
due to the injuries he sustained and their subsequent
sequalae.
7.
Dr Evert Jacobs, a seasoned industrial
psychologist
, reported that no
further career progression is foreseen notwithstanding the HoD
degree. Due to his irritability, anger, and short
temperedness he may
find it difficult to deal with teenagers if he cannot control his
temper.
In his opinion the
plaintiff might not be able to sustain employment as a teacher.
In his opinion the parties should consider further applicable post
morbid contingency deductions.
[8]
Counsel for the defendant cautioned the court to also give regard to
the fact that Dr Everd Jacobs
(Industrial Psychologist) at paragraph
5 and paragraph 9.5 of his report has indicated that at the time of
the accident Mr Phillip
Viljoen had obtained grade 12 and had applied
to Unisa to obtain a teaching degree. It was further noted that at
the time of the
accident, the plaintiff was working for his father as
a salesperson. He is able to earn R4500 per month in basic and
commission
and on further makes another R5000.00 per month by running
a car wash. The plaintiff took two months to recuperate, and he
received
the same income, which was confirmed by his father. Dr Everd
Jacobs at paragraph 12.1 to 12.2 of his report had indicated that
post-morbidly, the plaintiff's latest reported figures confirmed by
his father are R15 000 for car sales and R5 000 for the car
wash. In
total R20 000 per month or R240 000 per annum. The plaintiff was
accepted into university and has passed all his subjects,
as further
confirmed by the reports provided on page 28 of the report marked as
annexure "D".
What is imperative here is that the
plaintiff works for his father, and he is protected by his father.
Dr Everd Jacobs at paragraph 5 noted the report of Dr Shevel
(Psychiatrist) at bullet points “n”, “o” and
“p”. It is stated that Mr Viljoen is studying to become a
teacher and should qualify by 2024. The irritability, cognitive
changes, and other personality deficits has probably lowered his
chances of becoming head or vice head of department. The
post-traumatic
brain syndrome, although mild, may have a delayed
impact on his coping and adaption skills and he may retire 2 years
earlier than
expected. Dr Everd Jacobs at paragraph 6 noted the
report of Ms A Stroebel (occupational therapist) at bullet point “h”
that indicated that the plaintiff was employed as an educator's
assistant which entailed assisting with lessons and supervision
of
children. There are no negative instances involving the plaintiff and
a child and/or children while employed within the teaching
industry.
The report of Dr Everd Jacobs indicates numerous employment ventures
and opportunity obtained by the plaintiff and furthermore,
his
reports indicate that the plaintiff is passing his degree to become a
teacher. The plaintiff was able to study and while running
a car wash
and assisting his father's business. The report of Mr Mallinson dated
26 March 2021 indicated on paragraph 7.1 that
“Despite the
neuropsychological difficulties noted in paragraph 6.8 above, Mr
Viljoen has been able to gain admission to
a university and complete
his first year of a Bachelor of Education degree, whilst
simultaneously running a small business. His
lack of impulse control
and his high level of aggression may have a negative impact on him
pursuing a career as a teacher.
[9]
Counsel for the defendant is of the view that in light of the
evidence provided, the plaintiff
is not entitled to his claim for
past loss of earnings as it is confirmed that he indeed received an
income while recuperating
from the injuries sustained. Furthermore,
his income had increased post-morbidly.
[10]
Counsel for the plaintiff gave an extensive and credible depiction of
the law and jurisprudence applicable
to the circumstances of this
case at paragraphs 3.1 to 3.17 of their heads of argument. I will not
regurgitate this. He maintained
that the basis for the actuarial
calculations, save for contingencies to be applied, was agreed
between the parties and as such,
the RAF’s argument that the
plaintiff did not suffer a past loss of earning, is wrong. The
contingencies suggested by the
RAF is not corroborated by the facts
of the case.
[11]
The evidence in totality convinces that the contingencies suggested
by counsel for the plaintiff is the best
outcome for the case.
Therefor is the following order regarded as just and equitable in the
circumstances of the case:
ORDER
PART
A
By
agreement between the parties, it is ordered that:
1.
The defendant is liable for payment to
the plaintiff in the amount of R 600 000.00 (SIX HUNDRED
THOUSAND
RAND) in respect of plaintiff's claim for general damages resulting
from a motor vehicle collision that occurred on 23
May 2014.
2.
The defendant shall furnish the
plaintiff with an undertaking in terms of
section 17(4)(a)
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 the rendering
of a service or the 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.
3.
The plaintiff's claim for past
hospital and medical expenses is separated in terms of
rule 33(4)
and
the adjudication thereof is postponed to the pre-trial roll of 27
November 2023.
PART
B
Having
considered the documentary evidence filed of record, the
viva voce
evidence of Mr Mallinson and having heard the legal practitioners for
both parties, it is ordered that:
4.
The defendant is liable for payment to
the plaintiff in the amount of R 3 144 765,00 (THREE MILLION
ONE
HUNDRED AND FOURTY FOUR THOUSAND SEVEN HUNDRED AND SIXTY-FIVE RAND)
in respect of plaintiff's claim for past and future loss
of income
resulting from a motor vehicle collision that occurred on 23 May
2014.
5.
The defendant is to pay the
plaintiff's taxed or agreed party and party costs on the High Court
scale, until date of this order, including but not limited to the
costs set out hereunder:
5.1
The reasonable qualifying and reservation
fees and expenses, if any, of the following experts:
5.1.1
Dr LF Oelofse (orthopedic surgeon).
5.1.2
Van Dyk & Partners (diagnostic radiologists).
5.1.3
Dr A van Aswegen (neurosurgeon).
5.1.4
Dr A Sevel (psychiatrist).
5.1.5
B Mallinson (neuropsychologist).
5.1.6
L Swart (educational psychologist).
5.1.7
A Stroebel (occupational therapist).
5.1.8
Dr EJ Jacobs (industrial psychologist).
5.1.9
Munro Forensic Actuaries.
5.2
The cost of senior counsel.
6.
The payment provisions in respect of
the foregoing are ordered as follows:
6.1
Payment of the amounts referred to in
paragraphs 1 and 4 above (hereafter collectively the “capital
amount") shall be made without set-off or deduction, within 180
(hundred and eighty) calendar days from date of the 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,
Maitland Street, Bfn
Branch
Code
110
234 00
Account
No.
1[…]
Reference
HL
Buchner/vch/J03764
6.2
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.
7.
Interest shall accrue at 11.75% (the
statutory rate per annum) in respect of:
7.1
the capital amount of the claim, calculated
from 14 (fourteen) days from date of this order;
7.2
the taxed or agreed costs, calculated from
14 (fourteen) days from date of taxation, alternatively
date of
settlement of such cost.
M
OPPERMAN, J
APPEARANCES:
Plaintiff:
P.J.J.
ZIETSMAN SC
Instructed
by:
Honey
Attorneys, Bloemfontein
Defendant:
M
BOOYSEN
Instructed
by:
State
Attorney, Free State, Bloemfontein
[1]
“
Viljoen/plaintiff”.
[2]
“
RAF/defendant”.
[3]
Page
6 at paragraph 1.2 of the heads of argument for the defendant.