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[2023] ZAFSHC 491
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Van Rensburg N.O. v Road Accident Fund (2621/2022) [2023] ZAFSHC 491 (14 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
Reportable:
YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
In the matter between:
GS
JANSE VAN RENSBURG N.O.
Plaintiff
(On behalf of SABELO
DIBA)
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: V[….]
I[….]
Name of Bank:
Absa
Bank
Account
number:
4[....]8
(Trust)
Branch
code:
6[…]
Reference:
J[….]4.
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).
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)