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[2023] ZAFSHC 487
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Van Rensburg NO obo Diba v Road Accident Fund (2621/2022) [2023] ZAFSHC 487 (8 December 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 No:
2621/2022
In the matter between:
GS
JANSE VAN RENSBURG N.O.
(On
behalf of SABELO DIBA)
Plaintiff
And
THE
ROAD ACCIDENT FUND
Defendant
CORAM:
HEFER AJ
HEARD
ON
: 11 OCTOBER 2023
DELIVERED
ON:
8 DECEMBER 2023
[1] Sabelo Diba
(herein later referred to as “
Diba”
), incurred
serious injuries during an incident which occurred during December
2017 whilst Diba was conveyed as a passenger at the
back of an open
“bakkie”. During this incident, the driver of the vehicle
lost control of the vehicle after the tyre
thereof burst, and it then
overturned, resulting in the injuries sustained by Diba.
[2] As a result of
the incident, Diba incurred the following serious injuries:
2.1
Head injury:
2.1.1
Open laceration scalp;
2.1.2
Left peri-orbital swelling;
2.1.3
Open skull fracture;
2.1.4
Left posterior occipital laceration;
2.1.5
Extradural hematoma and right hemiplegia;
2.1.6
Facial fractures; and
2.1.7
Contusion bleeds.
2.2 Superficial abrasion
left hip / buttock;
2.3 Superficial abrasions
both knees;
2.4 Left pneumothorax;
2.5 C5-6 disc injury.
[3] As a result of
the aforesaid injuries, Diba was hospitalized and underwent medical
treatment, suffered disability, disfigurement,
pain and a loss of
amenities of life.
[4] Subsequent to
the institution of the action against the Road Accident Fund, for the
recovery of damages resulting from
the injuries referred to, Adv
GS
Janse van Rensburg
was appointed in terms of an Order of Court,
to act as
curator ad litem
for Diba in the action against the
Road Accident Fund (RAF). The reason for Mr
Janse van Rensburg
’s
appointment was that it appears that, due to Diba’s
neurological injuries, he is unable to manage his own affairs
and
therefore unable to conduct any proper litigation.
[5] The matter was
enrolled to be adjudicated upon in regard to both the merits as well
as the quantum. On the first day of
trial, I was informed by the
legal representative on behalf of the Defendant, that due to certain
commitments in regards to other
similar trials, the said legal
representative was not able to attend the hearing. On that basis, the
matter proceeded in Court
without any legal representation on behalf
of the Defendant. It needs to be mentioned, that in spite of
non-appearance, the Defendant
did not apply for postponement of the
matter. It is on that basis that the matter then proceeded.
[6] After Ms
Van
der Sandt
, appearing for the Plaintiff, applied therefor, an
order in terms of Rule 38(2) was granted in terms of which the
Plaintiff was
granted leave to present the evidence of the experts
engaged in preparing medico-legal reports by way of affidavit as
envisaged
in terms of the provisions of Rule 38(2).
[7] It needs to be
mentioned that at the commencement of the trial, evidence were
presented on behalf of the Plaintiff in
respect of the merits of the
matter. This consisted of the evidence of one eyewitness who was also
conveyed on the same vehicle
as which Diba was conveyed when the
incident occurred. After such evidence had been presented, leave was
granted to the Plaintiff
to file Heads of Argument and present
argument as far as the merits and the quantum is concerned, in this
manner.
[8] Ms
Van der
Sandt
filed her Heads of Argument in regards to both the merits
as well as the quantum on the 19
th
of October 2023.
Subsequent to the receipt of the Plaintiff’s Heads of Argument,
I commenced with the preparation of the
judgment based on the
argument as contained in the Heads of Argument. Whilst in the process
of preparing the judgment, the Defendant
then filed its Heads of
Argument on the 8
th
of November 2023. From these Heads of
Argument, it then appeared that the Defendant conceded the merits of
the matter at 100%
on the 11
th
of October
2023
already. Attached to Defendant’s Heads of Argument was
an e-mail dated 11 October 2023 sent at 02:14 pm from which it
appears
that the merits had indeed been conceded on the said date.
This was apparently sent by the claims handler of the Defendant to
the
legal representative of the Defendant.
[9] I wish to voice
my disapproval of the fact that the Defendant did not bring it to the
attention of the Plaintiff’s
legal representatives nor the
Court before filing its Heads of Argument during November 2023,
almost one month later, that such
concession in regards to the merits
had been made. Both the Plaintiff as well as the Court proceeded on
the basis that the merits
of the matter also needed to be adjudicated
upon.
[10] In view of such
concession, this judgment will therefore only deal with the quantum
of Plaintiff’s claim.
[11] The following
medico-legal reports were obtained on behalf of the Plaintiff:
(a)
Dr L.F Oelofse – Orthopaedic Surgeon;
(b)
Dr M.B Huth – Neurologist;
(c)
Dr L Panieri-Peter – Special Forensic
Psychiatrist;
(d)
Ms A Wright – Occupational Therapist;
and
(e)
Ms A van der Bijl – Industrial
Psychologist.
[12] As stated, these
medico-legal reports were then entered into evidence subsequent to
the application in terms of Rule 38(2)
being granted.
[13] The Defendant did
not appoint any expert witnesses and did not file any expert reports.
[14]
Assessment by Dr
Oelofse
:
14.1 Dr Oelofse examined
the Plaintiff during October 2022. According to Dr Oelofse, the
information as contained in his report,
was gathered from a RAF1
document, a referral letter from Botshabelo Hospital, an ambulance
transfer letter, documentation from
Pelonomi Hospital, referral
letters from Pelonomi Hospital, a speech and language report as well
as the patient during the assessment.
He mentioned that no
documentation regarding the patient’s treatment at Botshabelo
Hospital or his follow-up surgery at Universitas
Hospital during 2018
was available for perusal in compiling his report.
14.2 From the
documentation Dr Oelofse could ascertain that upon arrival at the
emergency room at Botshabelo Hospital, Diba’s
Glasgow Coma
Scale was noted at 14/15. He was presented with an open laceration
over his scalp as well as left peri-orbital swelling.
He was
diagnosed with an open skull fracture for which wound irrigation was
performed. He was then transferred to Pelonomi Hospital.
14.3 Upon arrival at
Pelonomi Hospital, Diba was assessed in the ER during which the
following were noted:
(a)
Glasgow Coma Scale of 15/15, but confused
and disorientated;
(b)
Left posterior occipital laceration –
already sutured;
(c)
Superficial abrasions over the left hip /
buttock;
(d)
Superficial abrasions over both his knees;
(e)
Pain over the sacrum / lower pelvis –
clinically no fractures.
14.4 Diba was then sent
for a CT scan of the brain as well as X-rays of his cervical thoracic
and lumbar spine, chest and pelvis
and was diagnosed with the
following:
(a)
A depressed open scar fracture with
extradural haematoma and right hemiplegia;
(b)
Left pneumothorax;
(c)
Facial fractures;
(d)
Contusion bleeds.
14.5 From information
gathered from Diba:
(a)
Immediate and acute pain was evident in his
head / face, chest, left hip, lower pelvis and bilateral knees and
persisted for at
least 2 – 3 weeks;
(b)
The acute pain was accompanied by weakness
in his right arm and leg;
(c)
He again experienced a period of acute pain
in his head after surgery was performed during 2018; and
(d)
Prescribed pain medication provided Diba
with adequate relief from pain.
14.6 As far as chronic
pain and suffering was concerned, the following information was
provided by Diba to Dr Oelofse:
(a)
He continues to suffer from
sequelae
of his head / facial injury with pain and residual symptoms that
gradually became more pronounced;
(b)
Weakness in his right arm and leg
persisted;
(c)
As time progressed, Diba also became aware
of occasional pain in his neck;
(d)
Pain in his chest, left him weak, lower
pelvis and bilateral knees dissipated over time with no fairly
symptoms, complains or actual
treatment rendered.
14.7 According to Dr
Oelofse there is a definite probability that the weakness in Diba’s
right arm will be permanent. Furthermore,
his right leg will always
show some weakness as well. Although Diba’s symptoms have
improved, at the time of Diba’s
assessment, being three years
after the incident, no more improvement was expected.
14.8 Diba has no history
of injury or pain of his neck and did not receive any related
treatment prior to the incident – consultation
with a doctor,
medication or physiotherapy. However, Diba has a high probability for
the degeneration of his neck to progress which
will result in his
neck becoming symptomatic. Provision must be made for future
conservative and surgical treatment throughout
his total lifespan.
14.9 According to Dr
Oelofse, Diba must be placed in a permanent light duty /
neck-friendly position during any future working environment
as
determined by an occupational therapist. From an orthopaedic
perspective, Diba’s cervical spine injury had an impact on
his
amenities of life, productivity and working ability. As his cervical
spine becomes more symptomatic, it will have a profound
impact on his
future amenities of life, productivity and working ability. Diba’s
cervical spine injury will adversely affect
Diba’s ability in
securing alternative employment in future. As degeneration in his
cervical spine progresses, it will have
a profound impact on all
aspects of his life. Also, it has an added burden of his head injury
with the associated weakness in his
right arm and right leg.
14.10 Diba has
become an unfair competitor in the open labour market with regards to
advancement in his training environment
at the time of the
assessment, as well as gaining future employment. He will find it
difficult to compete with other healthy subjects
for work, according
to Dr Oelofse.
14.11 At the time
of the assessment, Diba was 26 years old. According to Dr Oelofse,
Diba would have been able to work until
the normal retirement age of
65 if not for the incident and the injuries sustained. If
accommodated in a light duty / neck-friendly
position, provision must
be made for 10 years earlier retirement. If not accommodated, Diba
must not be allowed to do physical
labour again.
14.12 Dr Oelofse
recommended the following treatment:
(a)
Conservative nonsteroidal anti-inflammatory
drugs and analgesics; and
(b)
Physiotherapy.
14.13 Should Diba
not respond to the above treatment, or his cervical spine becomes
symptomatic, the following treatment is
recommended:
(a)
MRI scan;
(b)
Cervical spine fusion of the involved
levels;
(c)
Adjacent level cervical spine fusion of the
involved levels.
14.14 After each of
the abovementioned surgeries, Diba will require physiotherapy as well
as rehabilitation.
14.15 Dr Oelofse
foresees that Diba will incur the following future medical expenses:
(a)
MRI scan – R14,000.00
(b)
Cervical spine fusion of the involved
levels – R150,000.00
(c)
Adjacent level cervical spine fusion of
involved levels – R150,000.00
(d)
General practitioner – R5000.00
(e)
Orthopaedic surgeon – R22,500.00
(f)
Physiotherapy – R30,000.00
14.16 According to
Dr Oelofse, the medical cost inflation at a rate of 19.6% must also
be taken into consideration.
[15]
Assessment by Dr
M B Huth
:
15.1 Dr Huth examined
Diba during October 2020 and compiled his medico-legal report based
on his neurological evaluation. Approximately
two years after the
evaluation he also received the medico-legal report compiled by Dr
Panieri-Peter, the Specialist Forensic Psychiatrist.
15.2 According to the
subjective count as received from Diba, Diba was admitted for two
weeks in hospital. He convalesced at home
for three months before
returning to work.
15.3 Dr Huth confirmed
the same injuries as discussed by Dr Oelofse above.
15.4 According to Dr
Huth, Diba had a normal birth and reached all age-appropriated
milestones. Diba attended a school and passed
all grades including
matric without failures. As a scholar Diba participated in soccer.
Diba further obtained qualification as
a technician and at the time
of the assessment was studying electrical engineering and completing
his practicals. He had normal
friendships. He had healthy family
relationships and was engaged in the community. He also had well
maintained social interactions.
At the time of the incident, Diba’s
main duties entailed (a) standing, (b) reaching, (c) fine motor
co-ordination, (d) concentration,
(e) spinal extension and rotation,
(f) heavy lifting. At the time of the assessment as stated, Diba’s
second-year electrical
engineering practicals entailed the same
duties.
15.5 Since the incident
Diba is unable to play soccer and does not socialise as much anymore
as he prefers his own space.
15.6 Distal fine motor
screening tests revealed that Diba has decreased reflexes in the
right arm and right leg. Wasting of the
right hypothenar eminence and
decreased fine motor skills and forearm pronation and supination,
were also evident.
15.7 The final
neurological diagnosis by Dr Hath revealed:
(a)
Post-traumatic epilepsy;
(b)
Right side hemiparesis of the right arm and
leg;
(c)
Chronic post-traumatic headaches;
(d)
According to Diba’s history and
clinical record, the head injury will be classified as moderate.
Diba’s head injury
classification based on these presenting
clinical features do not corollate well or determine Diba’s
long-term outcome, impairment
or disability.
15.8 If one compares
Diba’s pre- and post-accident status, it appears that
pre-accident Diba did not have any symptoms of
any neurological
illness whereas after the incident there are symptoms of neurological
illness, including headaches, epilepsy and
post-traumatic cognitive
changes and right-sided hemiparesis.
15.9 According to Dr
Huth, Diba developed symptoms that have caused his impairment and
disability in terms of decreased punctuality
on his right side,
affecting his ability to do physical activities. Whereas he is
righthanded, his capability for his job is affected.
His epilepsy is
also a cause of concern. The disability is not likely to improve.
There is no effect on his capacity selfcare or
either basic complex
activities of daily living.
15.10 In his
initial report, Dr Huth commented that Diba will not require a
curator to be appointed for any rewards as he
is not incapacitated
for making high-stake decisions. However, at a later stage, Dr
Huth reported, after perusal of both
his initial report as well as
the report of Dr Panieri-Peter’s report, that a curator should
be appointed to protect any
funds awarded to the patient. This
recommendation was done due to the severity of the patient’s
head injury and the cognitive
and psychological
sequelae
reported on by Dr Panieri-Peter.
15.11 According to
Dr Huth, the total cost per annum for comprehensive pharmacological
and non-pharmacological treatment or
neuralgic headaches,
post-traumatic epilepsy and right-sided hemiparesis including
treatment for
sequelae
and complications that are in the
private sector of the RSA, is R50,000.00 per annum conservatively,
this includes pharmacological
and non-pharmacological treatment,
doctors visits and medication expenses and is a comprehensive sum.
[16]
Assessment by Dr
L Panieri-Peter
:
16.1 A psychiatric
assessment was conducted on 21 October 2020. Dr Panieri-Peter perused
and considered the following documentation:
i)
RAF form 1 and medical form;
ii)
A copy of the patient’s identity
document;
iii)
Colour photographs of the patient’s
injuries; and
iv)
Copies of hospital records.
16.2 According to her,
Diba has only partial insight into his current functioning and is
clearly a person who does not like to complain.
She also confirmed
that he achieved his normal milestones and development and was
described as a healthy child. He liked school,
was good academically
and had many friends. He played chess but did not do sport at all and
she confirmed that he passed all grades
at school. It appears that he
obtained a B-average for matric. He enrolled in the Central
University of Technology during 2013
after receiving a bursary from
SATU. He struggled in his first year of university. He found the
changes very difficult and he had
to travel long distances to and
from university each day. Consequently, he failed a number of first
year courses which he needed
to repeat during 2014. During 2016 he
obtained a bursary and he completed the theoretical component of his
degree in that same
year. During 2017 he obtained a working post at
Botshabelo Hospital where he was a technician in training.
16.3 His medical and
psychiatric history prior to the incident showed
inter alia
that Diba used to drink alcohol on social occasions prior to his head
injury. He indicated that since his accident, alcohol makes
him very
angry and provocative so he tries not to drink much. If he does
drink, it is only on weekends.
16.4 After the incident
he attended physiotherapy where he was taught to walk and talk again.
He was discharged home to the care
of his mother. He tried to return
to his work after four months but within a month of returning, he was
sent home after doctors
assessed that he was unfit for work.
16.5 CT scan findings
indicate
inter alia
:
i)
Left posterior parietal communited,
depressed scar fracture, with overlying soft tissue swelling, a large
parietal hematoma and
smaller hematomas in the anterior parietal
region. Evidence of brain swelling was noted and decreased cortical
sulcation and parietal
effacement of the left lateral ventricle was
reported.
ii)
There was indication of base of skull
fracture with linear fractures of the greater wing of the sphenoid
bone into skull base;
iii)
Fractures of the roof and lateral wall of
the orbit were seen;
iv)
Bilateral frontal contusions were also
noted.
16.6 During the
assessment, Diba insisted that he was mostly recovered apart from
dizziness and difficulties with functioning of
his hand. However, it
was clear from the events, from the clinical assessment and from his
ongoing symptoms that he has many residual
difficulties that are
significant. His insight is impaired.
16.7 A few months after
the accident Diba applied to Eskom for a position he required for his
training. He had an interview and
was accepted. He did not tell them
he had recently had an accident. He signed a contract during March
2018 and started training
during April 2018. However, within a month
of being there, he was called in by the supervisor who took the
matter to the Human
Resources Department as it was clear that he was
unable to meaningfully function in his job. He was sent to see
doctors and recommendation
was made that he be put off work from June
2018 until January 2019.
16.8 During 2018 he had
surgery to his skull to repair the cranial defects.
16.9 The assessment and
collateral information confirmed the following difficulties:
i)
He had a right hemiplegia noted after the
accident and still finds that his right hand does not function
normally. He finds it difficult
to use his right hand in most
activities. He also finds that he is unable to run although he opines
that he can walk normally (collateral
suggest that he falls and slips
easily).
ii)
He experiences considerable dizziness. He
describes that the dizziness arrives “like an uninvited thing”.
He fears that
he will have a seizure when he feels dizzy.
iii)
He has post-traumatic epilepsy which
started in 2019. The clinical description is typical and is confirmed
by his family. He experiences
dizziness, whereafter he loses
consciousness, shakes and on occasion wets himself. He is fearful of
driving and having a seizure
whilst driving.
iv)
Although Diba indicates that his memory is
fine, his family reports that he is forgetful. Furthermore, it is
clear that he was not
able to function at work and he has failed the
test and representations he is required to be doing. He has tried to
do his driver’s
licence on a number of occasions since the
accident and has repeatedly failed. Diba believes that this is due to
the feeling he
has that his intelligence has dropped.
v)
His cognitive capacity has decreased in
that he struggles to write in his home language and he describes that
his attention is poor.
He struggles to stay focused and this is worse
when he has to concentrate on online activities.
vi)
He suffers from severe headaches which
occur at least twice every week.
vii)
He is required changes in his personality:
(a)
He prefers to be alone and no longer enjoys
socializing;
(b)
When asked he admitted that friends tell
him that he has become more short-tempered and irritable than
previously. People are somewhat
afraid of him as he is now known to
have a short fuse;
(c)
He indicated that his friends describe him
as very angry and that he has been unable to find peace;
(d)
He feels down, sad and as if he is a
failure.
16.10 As far as his
mental state examination is concerned, the following
inter alia
was noted:
i)
His attention decreased quickly over time.
He started to shift in his chair and he struggled to maintain focus;
ii)
Over time he became disinhibited, overly
flippant and it was clear that he has frontal disinhibition;
iii)
He had only partial insight into some of
his many difficulties and he every significantly underestimates his
neurocognitive difficulties
which were evident and also reported by
his family.
16.11 Dr
Panieri-Peter concluded that:
(a)
Diba’s difficulties with insight
affect his judgment as is evidenced by his early application for a
job shortly after his
accident. However, within a month it was plain
and evident to his employers that he could not function. Worryingly
he was at that
stage doing his practical training online, but it
appeared from his marks that he was not managing.
(b)
He also has physical difficulties
consequent to right hemiplegia, which involved unsteadiness, falling,
inability to run and an
inability to use his right hand in a
functional manner.
(c)
His functioning is compromised by a
combination of neurocognitive personality, psychiatric, insight and
physical difficulties as
well as his epilepsy.
16.12 Diba has in
effect reached maximum medical improvement.
16.13 He requires
treatment for his epilepsy. Medication needs to be prescribed by a
neurologist or psychiatrist. He would
also benefit from physical
therapists to assist him in improving his physical functioning.
16.14 She also
confirmed that Diba will require a
curator bonis
to manage his
finances should he receive compensation from his claim.
[17]
Assessment by Dr
R Bredenkamp
:
17.1 Dr Bredenkamp
confirmed that the CT scan was consistent with the presence of
extradural haematoma.
17.2 Furthermore,
right-sides hemiplegia was present as well as cognitive dysfunction.
17.3 As far as his
functional impairment and disability is concerned, the following was
noted:
17.3.1
Physical impairment:
(i) Diba notes that this
walking has improved but he still struggles with co-ordination;
(ii) He reports
decreased righthand strength. The right side of his body is still
weak. He now has to rely heavily on his
lefthand to conduct tasks;
(iii) Hearing in his
right side is diminished;
(iv) He experiences
headaches and wants to sleep when this occurs;
(v) He becomes
easily fatigued and requires a period of rest after working for
approximately 2 hours;
(vi) He reports that his
eyesight was declined.
17.3.2
Psychological impairment:
(i) Diba reports that his
personality has changed. He is short-tempered.
(ii) He is
frustrated by his impairments particularly his diminished eyesight.
(iii) He occasionally
feels like giving up, but states that he is happy and cheerful most
days.
(iv) He is frustrated by
his inability to play soccer.
17.3.3
Cognitive deficits:
(i) Diba stated that his
mind gets stuck at times and he occasionally struggles to encode new
information. However, he later stated
that he has no problem studying
and acquiring new information.
17.4
The neuro behavioural cognitive status examination revealed
inter
alia
:
i)
“
Mr Diba displays difficulty with
attention, auditory processing and receptive language. However, poor
hearing and language factors
may have negatively influenced his
results in this regard. Furthermore, he displays mildly impaired
numerical ability”
.
ii)
“
Mr Diba disclosed difficulty
with motor speed and lateralised co
-
ordination,
especially with his right hand. Furthermore, results indicate poor
right hand manual dexterity. He demonstrates slight
difficulty with
sustained attention and inhibition.”
17.5 Dr Bredenkamp’s
treatment and prognosis as contained in his report are the following:
“
Mr
Diba is aware of his cognitive deficits but positive that he can work
and earn an income. He is ambitious and driven to be successful
in
life despite the accident and traumatic brain injury. Therefore,
everything possible must be done to support him in achieving
his
ideals. A psychologist can help him with this. About 20 sessions of
psychotherapy will suffice at the cost of R1500.00 per
hour.
Mr Diba will benefit
from career guidance to chose a work environment that can accommodate
his shortcomings. For this, he can be
referred to a career
counsellor.
Mr Diba should be
referred to an audiologist, a speech and language pathologist and an
eye specialist.
He should be
compensated for pain and suffering and loss of amenities of life.”
[18]
Assessment Ms A
Wright
:
18.1 The following
observations were made by the Occupational Therapist regarding
Plaintiff’s loss of earning potential:
(a)
“
Upon his return to work, the
plaintiff was accommodated for a period of six months during which he
was limited to office space work
only, thus not doing onsite visits
and not performing any physically strenuous work”
.
(b)
“
The plaintiff reported no
difficulties relating to his studies, however, collateral information
from his supervisor during his participation
contradicted the
plaintiff’s view of now academic difficulties, indicating that
he has poor insight into his limitations
as a result of the accident.
His supervisor stated that he did not know for sure if the plaintiff
can work in his preferred line
of work.”
(c)
“
The plaintiff presented with fine
motor / co-ordination throughout during his evaluation which would be
expected to negatively affect
his performance as an electrical
engineer.”
(d)
“
From collateral information
obtained it was noted that the plaintiff required significant
supervision during his training and his
ability to work as an
electrical engineer is questioned.”
[19]
Assessment by Ms
A van der Bijl
:
19.1 A telephonic
interview was held by Ms Van der Bijl with Diba during May 2022.
19.2 She focused her
research on Diba’s specific occupation, skills level and
education.
19.3 Under her discussion
of Diba’s uninjured income, Ms Van der Bijl considered the
following,
inter alia
:
(a)
Diba completed Grade 12 and a National
Diploma in Electrical Engineering;
(b)
Diba was at the date of the injury,
enrolled in university (CUT) studying for a Bachelor of Engineering
Technology in Electrical
Engineering;
(c)
At the time of the incident, the Plaintiff
had been working as an intern at Botshabelo Hospital for three
months;
(d)
The Plaintiff planned on becoming a
qualified engineer.
19.4 In considering the
information obtained during the assessment and having regard to the
reports by the medical experts, Ms Van
der Bijl postulated that the
Plaintiff will struggle to maintain employment because of his
limitations and will experience periods
of unemployment.
[20]
Wim Loots –
Actuary
:
20.1 Mr Wim Loots was
appointed to calculate Diba’s loss of income as a result of the
accident.
20.2 In his calculations,
he had regard to the Plaintiff’s payslip from December 2020 as
well as his certificates of achievement.
20.3 Mr Loots did not
make provision for the deduction of any contingencies in calculation
of the loss of earnings of Diba. In regards
to the past loss of
earnings by Diba, he calculated the amount to be R339,263.00 and in
regards to the future loss of earnings,
the total amount of
R3,208,776.00.
[21] I will now continue
to deal with the arguments as advanced on behalf of both the
Plaintiff as well as the Defendant.
Contingencies
:
[22]
It is trite law that in respect of contingencies, a Court is to make
a reasonable allowance for “
contingencies
,
the
result of which it is impossible accurately to assess”
.
See:
Smit
v Road Accident Fund
[1]
.
[23]
Deductions used in practice range from 0% - 60%; with 10% - 20%
being the most common; whilst recognition have been given
to the
principle that a short period of exposure to the risk of adversity
justifies a lower deduction than would be appropriate
to a longer
period.
[2]
[24]
In determining what percentage of contingency deductions should be
applied, the guideline of the sliding scale of a half percent
per
year to retirement age, i.e. 25% for a child, 20% for a youth and 10%
in regards to a middle-aged person may be appropriate.
[3]
[25] At the time of the
accident Diba was 23 years old and is currently 29 years old. Ms
Van
der Sandt
argued that he therefore falls within a category of a
youth with a suggested 20% contingency. I am in agreement with Ms
Van
der Sandt
that the 20% contingency deduction to the Plaintif’s
claim for total loss of income is appropriate. No argument contrary
to such submission had been made by the Defendant in this regard. In
respect of Diba’s total amount of loss of income when
the 20%
is then applied to the total amount as calculated by the actuary, it
amounts to the amount of R2,567,020.80.
Past
medical expenses
:
[26] Although past
medical expenses were estimated and claimed as such at R50,000.00,
the Plaintiff did not pursue such claim any
further whereas no proof
of such expenses had been provided.
Future
medical and related expenses
:
[27] It appears that the
Defendant did not have instructions to give an undertaking in terms
of
Section 17(4)
of the
Road Accident Fund Act 56 of 1996
for future
medical expenses to be incurred by the Plaintiff. In its Heads of
Argument, it was also indicated that the Defendant
did not furnish
instructions on all heads of damages and in such Heads, the
Defendant’s legal representative, indicated that
she does not
have a mandate nor the authority to make submissions that will bind
the Defendant.
[28]
In
K
obo M v RAF
[4]
,
the joint hearing of two matters came before a Full Bench of the
Gauteng Provincial Division as a consequence of a directive issued
in
terms of
Section 14(1)(a)
of the
Superior Courts Act 10 of 2013
by
the Acting Judge President of the division at the time.
[29] The one question
upon which the Court needed to decide upon, was formulated by the
Acting Judge President as follows:
“
Is
it competent for a court to order that a plaintiff’s claim for
future medical and hospital expenses be compensated by the
Road
Accident Fund by way of an undertaking issued in terms of
section
17(4)(1A)
of the
Road Accident Fund Act, 56 of 1996
, where default
judgment is granted and in the absence of a tender to that effect.”
[30]
The Court declared that “…
it
is generally not competent for a court to direct the Road Accident
Fund to furnish an undertaking as contemplated in
section 17(4)(a)
of
the
Road Accident Fund Act 56 of 1996
in circumstances where the Road
Accident Fund has not elected to furnish such undertaking, by default
or otherwise”
.
[5]
[31] However the Court
heard that the Road Accident Fund has, during the course of the
hearing, conveyed a so-called “
blanket election”
to furnish an undertaking to every claimant who is entitled to a
claim for payment of future medical and ancillary expenses in
terms
of
Section 17(4)(a).
The Full Bench held as follows:
“
The
result is that, once a plaintiff proves his claim as contemplated in
section 17(4)(a)
, it is entitled to claim an order catering for a
direction to the fund to furnish such an undertaking and a court is
entitled to
grant such an order. This will also apply in instances
where orders by default are sought.”
[32] I therefore agree
with Ms
Van der Sandt
’s submission that the Plaintiff is
entitled to such undertaking in the present matter.
General
damages
:
[33] In her Heads of
Argument, Ms
Van der Sandt
argued that, from the expert
reports, it is clear that Diba has suffered severe injuries during
the accident, the most serious
being a fracture of the skull. She
further argued that whereas Diba’s whole person impairment
score was calculated at 55%,
it satisfies the requirement for a claim
for general damages.
[34]
However, in its Heads of Argument, the Defendant referred me to the
matter of
Road
Accident Fund v Duma and 3 similar cases
[6]
where the Supreme Court of Appeal ruled as follows:
“…
The
decision whether or not the injury of a third party is serious enough
to meet the threshold requirement for an award of general
damages
were conferred on the fund and not on the court. That much appears
from the stipulation in
regulation 3(3)(c)
that the fund will only be
obliged to pay general damages if the fund – and not the court
– is satisfied that the injury
has correctly been assessed in
accordance with the RAF4 form as serious. Unless the fund is so
satisfied the plaintiff has no claim
for general damages. This means
that unless the plaintiff can establish the jurisdictional fact that
the fund is so satisfied,
the court has no jurisdiction to entertain
the claim for general damages against the fund. Stated somewhat
differently, in order
for the court to consider a claim for general
damages, the third party must satisfy the fund, not the court, that
his or her injury
was serious.”
[35] In the matter of
K
obo M v RAF
(
supra
) the second question posed to the Full
Bench by the then Acting Judge President, was whether a Plaintiff is
entitled to pursue
the adjudication of general damages at trial in a
default trial court in instances where the Fund has not accepted the
serious
injury assessment report. The Full Bench came to the
following conclusion:
“
It
is declared that plaintiffs in actions against the Road Accident Fund
are not entitle to pursue the adjudication of non-pecuniary
damages
in the absence of either the Road
Accident having accepted the injuries in question as constituting
serious injury as contemplated
in
section 17(1A)
of the
Road Accident
Fund Act 56 of 1996
, or of
assessment of such injuries as constituting serious injury by the
Appeal Tribunal contemplated in Regulation 3 of the Road
Accident
Fund Regulations, 2008 (as amended).”
(own
emphasis)
[36] This aspect had not
been dealt with by the Plaintiff during argument.
[37] In Plaintiff’s
Particulars of Claim it was alleged that the Plaintiff did comply
with Section 17 of the Act read with
Regulation 3 in that:
“
A
duly completed serious injury assessment report (RAF4 form) was
provided by Dr Panieri-Peter and Dr Oelofse in terms of Regulation
3(3)(a) in relation to the nature of the injuries sustained by the
plaintiff. The aforesaid RAF4 form was submitted to the defendant
in
terms of Regulation 3(3)(b)(i), separately and after the submission
of the plaintiff’s claim but before the expiry of
the period
for the lodgement of the claim prescribed in the Act and the
regulations.”
[38] In answer to such
allegations, Defendant pleaded as follows:
“
The
defendant denies each and every allegation contained in these
paragraphs as if specially traversed and puts the plaintiff to
the
proof thereof. The defendant specifically denies that the plaintiff
suffered severe bodily injuries in terms of section 17(1)
of the Act.
Alternatively
to paragraph 4.1 above
, should
the above Honourable Court find that the plaintiff sustained of the
injuries in any consequent non-pecuniary damages, as
alleged or at
all (which is denied), then and in that event:
Defendant denies that
the injuries sustained by the plaintiff constitutes serious injury as
defined in
section 17
of the
Road Accident Fund Act 56 of 1996
as
amended, read together with
Regulation 3
of the Regulations
promulgated under the said Act. Accordingly, the Defendant pleads
that it is not liable to compensate the plaintiff
as alleged for any
non-pecuniary damages as the plaintiff has failed to satisfy the
requirements of
section 17
of the
Road Accident Fund Act 56 of 1996
as amended.
Further the defendant
pleads that in the event of a dispute arising as to whether or not
the injuries sustained by the plaintiff
constitute serious injury,
then in terms of
Regulation 3(4)(a)
of the Regulations promulgated
under the said Act, such dispute must be referred to the Health
Professions Council of South Africa
for adjudication.”
[39] It is therefore
patently clear that since the date of the filing of the plea by the
Defendant, the Plaintiff and his attorney,
must have been aware of
the fact that although the RAF4 form has indeed been filed as alleged
by the Plaintiff, the Defendant disputed
the seriousness of the
injuries for purposes of
Section 17
of the Act. In its plea, the
Defendant also drew the Plaintiff’s and its legal
representatives’ attention to the fact
that by implication,
such dispute must be referred to the Health Professions Council of
South Africa for adjudication. Irrespective
thereof, the Plaintiff
still continued to have the matter proceed to trial and in particular
in regards to the quantum.
[40] In accordance with
the findings in both the
Duma
as well as the matter of
K
obo M v RAF
, the Plaintiff is therefore not entitled to pursue
with the adjudication of non-pecuniary damages in the absence of the
Defendant
having accepted such injuries as constituting serious
injuries.
[41] The question then
remains whether the Plaintiff’s claim in respect of general
damages should be dismissed. In the
Duma
-matter, the Supreme
Court of Appeal upheld the special pleas in respect of all four
matters which served before Court in respect
of the non-compliance by
the Plaintiff with
Regulation 3
of the Act. In that regard the Court
said the following:
“
It
will be remembered that these special pleas rested on the contention
that the plaintiffs’ claims for general damages were
premature
and that they had failed to establish that the injuries were
serious in accordance with the method prescribed in
Regulation 3.
In
consequence, the fund’s prayer in these special pleas was that
the claims for general damages be dismissed, alternatively,
that
these claims be stayed pending the compliance by the plaintiffs with
Regulation 3.
”
[7]
[42] In its Heads of
Argument, the Defendant argued that whereas the Defendant have not
accepted or rejected to the Plaintiff’s
RAF4 form report by Dr
Oelofse, the Defendant submitted that the Court does not have
jurisdiction to adjudicate the Plaintiff’s
claim for general
damages. In its Heads of Argument, Defendant also indicated that
Plaintiff’s remedy to the Defendant’s
failure to reject
or set the RAF4 form lies in
Section 6(2)(g)
and
6
(3)(a) of the
Promotion of Administrative Justice Act 3 of 2000
which allows for
judicial review of administrative authorities’ failure to take
a decision.
[43]
The legal representative on behalf of the Defendant in her Heads of
Argument also referred me to the unreported case of
Justine
Phiri v RAF
[8]
,
in which it was also a matter that the Fund had not accepted or
rejected the Plaintiff’s RAF4 form. In that matter Judge
Nichols indicated that it is now trite that an agreement on whether
the injury is to be regarded serious or not cannot be assumed
and a
Court which proceeds with the claim for general damages on this basis
will be exceeding its powers. The Court indeed held
that there was no
basis in which it could conclude that the RAF has accepted the
Plaintiff’s injuries as serious, thereby
entitling him to a
claim for general damages. The Plaintiff’s claim for general
damages was thus postponed.
[44] It is therefore
evident that in both the
Duba
-matter as well as the
Justine
Phiri
-matter, the Court postponed the Plaintiff’s claim for
general damages. In the circumstances of the present matter, I deem
it just and equitable that the same route should be followed in
regards to the general damages.
Costs
:
[45] The Plaintiff
proceeded in regards to both the merits as well as the quantum at the
day of the hearing.
[46] In respect of the
merits, the Defendant conceded 100% liability in favour of the
Plaintiff on the date of the hearing.
[47] As far as the
quantum is concerned, save for the general damages, the Plaintiff is
also successful in regards to the claim
in respect of the loss of
earnings as well as in obtaining an undertaking as contemplated in
Section 17(4)(a)
of the Act.
[48] In view of the above
circumstances and facts, Plaintiff is therefore entitled to a cost
order in his favour in regards to the
costs up to date.
ORDER
:
Therefore, I make the
following order:
1.
Defendant is liable for 100% of the
Plaintiff’s proven, or agreed damages, resulting from the motor
vehicle accident which
occurred on 2 December 2017.
2.
Defendant is ordered to pay the Plaintiff
the amount of R2,906,283.80, which amount is made up as follows:
(a)
Past loss of earnings R 339,263.00
(b)
Future loss of earnings
R2,567,020.80
Total
R2,906,283.80
3.
The aforesaid amount is to the paid into
the following bank account:
Name of account holder:
Venters Incorporated
Name of Bank: […]
Account number: […]
Branch code: […]
Reference: […]
4.
Should payment as aforesaid not be made
within 14 (fourteen) days from the date hereof, Defendant shall be
liable for payment of
interest on the amount of R2,906,283.80,
calculated at the prescribed
mora
rate, from 14 (fourteen) days after this court order till date of
payment.
5.
Defendant is to furnish the Plaintiff with
an undertaking in term of
Section 17(4)(a)
of the
Road Accident Fund
Act, 1996
for payment of 100% of the costs of the future
accommodation of the Plaintiff in a hospital or nursing home, or
treatment of, or
rendering of service or supply on goods to the
Plaintiff arising out of the injuries that he sustained in the motor
vehicle collision
which occurred on 2 December 2017 and the
sequelae
thereof, after such costs have been incurred and upon proof thereof.
6.
The Defendant shall pay the Plaintiff’s
taxed or agreed party and party costs, on a High Court scale to date
of this order,
which includes the reasonable qualifying and
reservation fees (where applicable) of the following experts:
6.1
Dr LF Oelofse – Orthopaedic Surgeon;
6.2
Dr MB Huth – Neurologist;
6.3
Dr L Phieri-Peter – Special Forensic
Psychiatrist;
6.4
Ms A Wright – Occupational Therapist;
6.5
Ms A van der Bijl – Industrial
Psychologist;
6.6
Mr Wim Loots – Actuary.
7.
The Plaintiff shall allow the Defendant 14
(fourteen) calendar days to make payment of the taxed or agreed High
Court costs.
8.
The Defendant will pay the costs of the
application to appoint the
curator ad
litem
on the High Court scale, as
between party and party, including costs of the medical reports filed
as part of the said application,
as taxed or agreed.
9.
Defendant shall pay the costs of the
curator ad litem
on the High Court scale, as taxed or agreed.
10.
In the event of a
curator
bonis
being appointed, Defendant shall
pay the costs of the
curator bonis
,
as taxed or agreed, such costs including for sake of clarity, but not
limited to the costs of the application to appoint the
curator
bonis
on the High Court scale as
between party and party, as taxed or agreed (the application cost),
the cost, if any, incurred by the
curator
bonis
in furnishing security to the
Master, and the fees and costs of the
curator
bonis
in respect of administering the
capital and the undertaking in terms of
Section 17(4)(a).
1.
25cm; margin-bottom: 0cm; line-height: 150%">
11.
Plaintiff’s claim for general damages
is postponed
sine die
.
J J F HEFER, AJ
Appearances on behalf of
the Plaintiff:
Adv
M van der Sandt
Instructed
by:
Venters
Incorporated
Bloemfontein
On behalf of the
Defendant:
State Attorney
Bloemfontein
[1]
2013
JDR 0902 (ECG) at par. [15]
[2]
Smit
supra
par. [22].
[3]
Smit
supra
par. [32].
[4]
2023
(3) SA 125 (GP)
[5]
K
obo M v RAF (
supra
),
p. 148C
[6]
2013
(6) SA 9 (SCA)
[7]
RAF
v Duma
supra
,
par. [40], p. 25.
[8]
Case
No: 3448/2018, delivered by Judge T Nichols (Gauteng Division –
Johannesburg)