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[2023] ZAECMKHC 48
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Tyabazeka v Road Accident Fund (CA 72/2022) [2023] ZAECMKHC 48 (25 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. CA 72/2022
NOT
REPORTABLE
In
the matter between:
ASISIPHO
PINKIE TYABAZEKA
Appellant
and
ROAD
ACCIDENT FUND
Respondent
FULL
BENCH APPEAL JUDGMENT
HARTLE
J
[1]
The appellant, with the leave of the
Supreme Court of appeal granted on petition, appeals against the
portion of the judgment and
order of the trial court relating to the
quantification of a general damages award in a MVA action. The
judgment was delivered
on 8 October 2021 in the Gqeberha High Court.
[2]
The
primary complaint is that the award resulted in under compensation
and was substantially off the mark having regard to the nature
of the
serious injuries and
sequelae
suffered
by the appellant. It was submitted that the trial court failed to
apply its discretion judicially in that it ostensibly
omitted to take
into account
all
of the
appellant’s injuries and their
sequelae
(this
indicated by the absence of any mention in the judgment,
of a
skull fracture or moderate traumatic brain injury which had been
sustained by her), that it had underemphasized the complications
arising from this injury despite compelling evidence having being
tendered at the trial as to the neuropsychological impact to
the
appellant thereby, and that it had ostensibly ignored comparable
awards commensurate with the appellant’s peculiar whole
person
impaired injury profile in getting to an appropriate quantum award.
[3]
The respondent (“The Fund”)
did not oppose the appeal.
[4]
Whilst waiting to cross a road the
appellant, a grade 12 scholar at the time, suffered a horrific motor
vehicle accident when she
was pulled under a passing motor vehicle (a
truck with a long trailer transporting wood pallets) by a hook
protruding from it which
caught on to her jersey. She was dragged for
a short distance along the tar surface of the road by the motor
vehicle. When
she was finally disentangled from the truck, it
rode over her back.
[5]
Her pleaded injuries, confirmed by
the evidence given at the trial and the admitted records and reports,
included a skull fracture,
a moderate traumatic brain injury, a
fracture of the left humerus, a fracture of the tibial spine of the
right knee, a left shoulder
injury, abrasions over her forehead and
temporal lobe, a neuropraxia injury to her left radial nerve and a
valgus injury to her
right knee with an associated meniscal injury.
[6]
The trial court noted that the
physical injuries had had a debilitating effect on her, not only by
the scarring of her left upper
arm which caused her embarrassment,
but also inhibited her ability to walk long distances, stand for
periods of time, sleep on
her injured side, kneel, perform fine motor
functions and skills or to deal on a more basic level with domestic
tasks, which by
the time of trial included caring for her baby.
[7]
Whilst
not including the head injury suffered by the appellant in the list
of injuries suffered by her, the trial court yet acknowledged
the
evidence of Mr. Mark Eaton, clinical psychologist, given at the
trial, that the appellant had suffered a “psychiatric
injury
and in particular post-traumatic stress disorder, a generalized
anxiety disorder, major depressive disorder and personality
disorders”. It further emphasized that “in respect
of personality disorders the plaintiff clearly as a result
of the
accident, sustained a detectible psychiatric injury. The court
referenced Mr. Eaton’s evidence that the acquired
disorder
would, in combination with cognitive fallouts and chronic pain,
“
have
resulted in significantly deleterious effects on the plaintiff’s
personal, social, academic and future occupational function”.
[8]
It was
especially clarified in the testimony before the court by Mr. Eaton
that the appellant’s depressed skull fracture had
initially
been missed in the medical records but the belated discovery of
information confirming the injury and his engagement
with her as to
its impact could have left the trial court in no doubt that the
significant abnormal psychological
sequelae
was
what had capitulated her injury profile to a serious injury applying
the Narrative test referred to in section 17 (1A) of the
Road
Accident Fund Act, No. 56 of 1966 (“RAFA”), read together
with the relevant regulations promulgated under section
26 thereof
(“The Regulations”).
[1]
[9]
According
to two final revised RAF 4 serious injury assessment reports, one
prepared by Dr. PA Olivier and the other by Dr. PR de
Bruin, both
orthopedic surgeons,
[2]
Dr.
Olivier found the appellant to be 28% whole person impaired
(“WPI”),
[3]
whilst
Dr. de Bruin found her to be 26% whole person impaired.
[4]
[10]
Dr.
Olivier it seems had revised his initial assessment evidently to
include a reference to the appellant having the additional
psychological
sequelae
according
to the report of Mr. Eaton, who evaluated the appellant after he had
filed his first RAF 4 assessment report.
[5]
[11]
Dr. Olivier felt compelled to point
out that the latter assessment in his view had had a significant
impact on the WPI rating concerning
the appellant, necessitating the
filing of the amended RAF 4 form, to which he added the following
paragraph:
“
The
client was evaluated by Mark Eaton, clinical psychologist. Based on
the assessment, the accident resulted in long-term psychological
sequelae. The client sustained a depressed skull fracture which was
associated with a moderate traumatic brain injury. The client
developed severe emotional reactions due to the trauma. She was
diagnosed with generalised anxiety disorder as well as chronic
major
depressive disorder. The client has reached the maximum medical
improvement period. Based on the assessment, the psychological
sequelae resulted in a significantly deleterious effects on a
personal, social, academic and future occupational functioning. Her
amenities were significantly affected by the road traffic accident.
Based on the assessment by Mark Eaton, the accident resulted
in a GAF
score of 41-50, which equals 15% WPI. Paragraph 5.3 of the Narrative
test is applicable.”
[12]
Dr. de Bruin also revised his RAF 4
report for the same reason to give recognition to the psychological
sequelae
suffered by the appellant.
[13]
Ultimately the recommendation made by
both Doctors Olivier and de Bruin is that the appellant qualified for
general damages under
paragraph 5.1 (serious long-term impairment or
loss of a body function), paragraph 5.2 (permanent serious
disfigurement) and paragraph
5.3 (severe long term mental or severe
long-term behavioural disturbance or disorder) of the Narrative Test.
[14]
We
were referred in the exhibits bundle forming part of the appeal
record,
to
an email communication written by the claims handler, Mr. Sonwabo
Thibane, to the appellant’s attorneys dated 29 July 2021,
in
which he confirmed as follows:
“
We
accept seriousness and we issue (an) undertaking (in terms) thereof
and concede merits. (W)e are still considering quantum”.
[15]
Implicit
in this is that the Fund accepted on the basis of the assessments
undertaken in accordance with the relevant provisions
of the RAFA and
the Regulations, that the appellant’s combined injuries had
been correctly assessed as serious in terms of
the method provided
for in the Regulations.
[6]
The fact that the orthopaedic surgeons expressed views about the
appellant’s head injury and its
sequelae
is
neither here nor there because they were acting as “medical
practitioners” undertaking the assessments within the
meaning
of the Regulations when they completed the RAF 4 forms on behalf of
the appellant.
[7]
[16]
The
acceptance of the “seriousness” (sic) would have
established the jurisdictional basis for the trial court to have
concerned itself with the appellant’s claim for general damages
at the trial
[8]
after the offers
made by the Fund in respect of her remaining heads of damages were
rejected by her.
[9]
[17]
The Fund tendered a section 17 (4)
undertaking concerning the appellant’s future medical and
hospital expenses. The action
proceeded to trial on the remaining
issues pertaining to quantum, namely past loss of income, future loss
of income and general
damages.
[18]
During
the pre-trial procedures the Fund recorded its admission
that
the appellant had suffered a serious injury and that she had
therefore met the threshold to claim general damages. It further
conceded
the content of the RAF4 assessment reports as well as practically all
of the medico legal reports prepared by the experts
engaged by the
appellant. It accepted the opinions expressed therein as well
as the factual information relied on by each
expert in reaching their
conclusions.
[10]
Causality was never an issue, not unsurprisingly since the acceptance
of a serious injury profile according to the Narrative
test envisages
a whole person impairment
as
a result of
the
recognized and accepted injuries.
[11]
[19]
On 19 August 2021, the appellant
delivered a short supplementary expert report in respect of Dr. de
Bruin as well as his revised
RAF 4 report to repeat the significance
of the psychological
sequelae
of the appellant’s head
injury. These reports should not have occasioned any surprise,
neither would they have
introduced new
considerations as both are dated 25 May 2021. Although they
were not among the admitted reports outlined in
the parties’
trial list of Admissions/Issues dated 4 August 2021, they preceded
the Fund’s acceptance of the seriousness
of the appellant’s
injuries and speak to the doctor’s earlier request to have
accorded a 10% WPI factor to the AMA
ratings for the separate injury
based essentially upon Mr. Eaton’s psychological assessment of
the appellant, underpinning
his revised total whole person impairment
rating of her ultimately at 26%.
[20]
The
only report not admitted was that of the industrial psychologist, Dr.
Michelle Nobre, which is not relevant for present purposes
except to
highlight from it her confirmation that the appellant’s dream
of pursing her career of choice was irretrievably
and agonizingly
dashed as a result of the injury profile sustained by her.
[12]
[21]
The Fund also admitted the contents
of the hospital records pertaining to the appellant’s injuries
which,
inter alia
,
confirmed the moderate brain injury and skull fracture which had
initially been left out of the reckoning in the serious injury
assessment process.
[22]
The
Fund then bowed out and the trial court determined the remaining
issues by way of default.
[13]
The parties specifically agreed on 4 August 2021 upon how the further
conduct of the matter would ensue:
“
ISSUES
:
7.1 The
Honourable Court is to determine the following issues, by way of
default and in the absence of Defendant being
legally represented and
by way of the evidence, in terms of a virtual hearing, admitted
reports and affidavits placed before the
Court by Plaintiff only,
namely:
7.2 The
quantification of Plaintiff’s claim for general damages.
7.3
The quantification of Plaintiff’s claim for past and future
loss of income and/or loss of earning capacity.”
[14]
[23]
Apart from the reports and affidavits
placed before the court, Mr. Eaton’s testimony was, in
conjunction with the content
of his medico-legal report, that the
appellant had sustained a skull fracture with moderate traumatic
brain injury and that she
had developed severe emotional reactions
due to the trauma. In particular, she had perceived the
incident as quite horrific
and assumed that, in that instant, she
would die.
[24]
He diagnosed her with a generalized
anxiety disorder as well as chronic major depressive disorder. He
reported that the neuropsychological
assessment results had shown
that her premorbid intellectual functioning was in the average range
but that she had acquired significant
deficits that rendered her
prone to below average to borderline functioning in non-verbal
reasoning tasks.
[25]
He opined further that the brain
injury sustained by her in the collision was the reason why she was
not able to pass matric (despite
her repeated efforts to write the
exam). In his view the damage was significant because of the
nature and severity of the
various physical injuries suffered by her.
[26]
He added that the appellant was still
suffering with ongoing pain and mobility restrictions and limitations
due to her orthopaedic
injuries as well as cognitive deficits and
emotional disorders due to the depressed skull fracture and traumatic
brain injury.
[27]
Dr. de Bruin’s admitted
medico-legal report, as confirmed by affidavit, records that she
underwent surgery to her arm on 18
August 2016 when a plate and
screws were inserted to stabilize the fracture.
[28]
Her right knee was placed in a brace.
[29]
She received physiotherapy and
occupational therapy.
[30]
Her radial nerve injury led to a left
drop wrist.
[31]
Clinical examination revealed an
unsightly scar over most of her left upper arm, a pulling sensation
in her right knee during squatting
and kneeling movements, slight
swelling on the right knee in the form of an effusion, a loss of
sensation over the dorsum of her
left hand and reduced power in her
left wrist.
[32]
Ms. Laetitia Strauss, occupational
therapist, performed an assessment of the appellant’s injuries
and found decreased muscle
strength in her left arm, wrist, hand and
wrist radial nerve injury, weakness in her right hip and right knee
extensions with her
right knee trembling during testing. Her physical
and mobility impairments included ongoing pain in her left upper arm
and right
knee, impaired muscle strength of her left upper and right
lower limbs, diminished sensation over the dorsal aspect of her left
hand, unsightly scar on her left upper arm, decreased physical
endurance, particularly in her right leg, impaired ability to lift,
carry, pull and push items, increased difficulty with overhead work,
increased difficulty with prolonged standing and walking,
inability
to run, severely impaired balance as a result of the impaired weight
bearing ability of a right lower limb, some difficulty
in respect of
bed mobility, impaired ability to kneel, squat and crawl, and a right
sided limp when tired.
[33]
Dr. C Apostolis, plastic surgeon,
found the appellant’s scarring over her left arm to constitute
a serious disfigurement.
[34]
The
appellant, 23 years old at the time of her testimony (she was 17
years when the collision occurred),
herself
testified that she had a 10-month-old baby and was unable to perform
the majority of “care” tasks in respect
of her child. She
relies heavily on her mother to care for her baby. She lamented
being unable to bathe, dress, feed or play
with her baby due to her
inability to use her left arm. She explained that she was unable to
take her baby to the clinic because
she is unable to walk far
distances due to her knee injury. She added that she feels vulnerable
as is unable to run and essentially
only has one fully working arm.
Her memory had been impaired to the extent that she cannot even
recall her own identity number.
Her hopes and ambitions to pass
matric and achieve all the things she had wanted to do, further her
studies, get a decent paying
job, and improve her family’s
financial position, have been dashed. She feels sad a lot of the
time. She is self-conscious
by her scarring. Her physical
injuries still pain in cold weather and limit carefree movement.
She spent a considerable
period being hospitalized for her injuries,
was bed bound and essentially isolated from her family. The
accident happened
in a critical year of her young life when she was
on the brink of completing her last year of school and looking
forward to notching
up tertiary education. She was devastated that
she was unable to write her final exam. Recalling her trauma
caused her to
be tearful on numerous occasions during her evidence.
[35]
Appellant’s counsel referred
the trial court to the following comparable awards:
35.1
In
Mngomezulu
v RAF
,
[15]
the plaintiff sustained compound right tibia- fibular fractures, a
closed chest injury with lung contusion, a 30-centimetre laceration
on the right thigh and a post-traumatic organic brain syndrome. The
plaintiff had reported the following
sequelae
:
pain and weakness in the right leg when walking, mild memory
difficulty, difficulty sustaining concentration, distractibility,
had
become impatient and irritable, mood swings of depressive phases,
poor self-image or feelings of uselessness, disturbed sleep
pattern
with mid cycle insomnia, daytime fatigue, increase in rage, anxiety,
diminished enjoyment of life and concerns about the
future. The court
had awarded R600 000.00 in respect of the plaintiff’s general
damages in 2011, equating to a present-day
value of R1 106
000.00. At the time of the trial court’s judgment, the
value of the award was R984 000.00.
[16]
35.2
In
Smit
v RAF
,
[17]
the plaintiff was a 27-year-old gardener who sustained a moderate to
severe organic brain syndrome with post-traumatic associated
frontal
lobe symptomology and post-traumatic epilepsy, and fracture of the
femur. He had significant difficulties with concentration,
impulsivity, distractibility and reduced drive and endurance. He
displayed marked diffuse neuropsychological deficits and difficulties
with strong frontal lobe involvement. The femur fracture was treated
by open reduction and internal fixation. He had difficulty
standing
for more than an hour and walking for longer than half an hour. He
was unable to work as a gardener. The court awarded
general damages
of R650 000.00. The present-day value of that award is R1 135
000.00. (R1 009 000.00 as at
the date of the trial
court’s judgment.)
35.3
In
Raupert
v RAF
,
[18]
the plaintiff was a 20-year-old female photography student employed
as a casual shop assistant. She sustained a head injury consisting
of
extensive skull fracture with bilateral low contusions. She
demonstrated the direct effects of her brain injury mainly in terms
of executive difficulties which prevented the effective use of her
measured intellect, resulting in anxiety and depression with
a marked
reduction in self-confidence. She experienced memory problems,
especially short-term memory loss and severe headaches.
She was
unlikely to reach her premorbid potential in the workplace and was
likely to have problems in her interpersonal domain.
The court
awarded R750 000.00 in 2011 equating to a present-day value of R1 382
000.00. (R1 230 000.00 in
2021.)
35.4
In
Anthony
v RAF
,
[19]
the plaintiff was a 22-year-old female law student who sustained a
moderately severe traumatic brain injury with subtle
neurophysiological
difficulties, orbital fracture, multiple facial
lacerations and open wounds, bruising to the upper arm, broken teeth,
a burst palate,
severe scarring and disfigurement. Prior to the
accident, she had above average intellectual capability which allowed
for a good
foundation for tertiary studies. Post-accident, the
educational psychologist found that whilst her intellectual
functioning remained
in the average range, settled difficulties
remained which it was found may compromise her productivity both at
university and in
the workplace, such as variable attention and
concentration, impulsivity, proneness to careless errors, increased
irritability,
social withdrawal, reduced self-confidence. Her
scarring included a surgical-trans coronal scar with loss of hair
bearing skin,
widened vertical scar of the forehead, widened scar of
the left eyebrow and a scar of the left upper lip. She was awarded
general
damages of R1 600 000.00 with a present-day value of
R2 127 000.00 and a value of R1 800 000.00 in 2021.
[36]
The
trial court remarked during the proceedings that the circumstances in
Mngomezulu
were
markedly similar to the appellant’s, although acknowledging
counsel’s comment as to the “profound loss”
that
she was suffering. Counsel had also submitted that the whole
person impairment in
Raupert
was
similar to her injury profile, albeit that the plaintiff’s head
injury in that matter was more severe. However,
as counsel
pointed out, the plaintiff in
Raupert
still
had the full use of her limbs, unlike the appellant. There was
the further dimension to it all that the appellant had
full insight
into her deficits. Notwithstanding these examples, which
established a pattern of awards similar to her whole
person
impairment injury profile, when it came to determining an appropriate
award, the trial court settled upon the amount of
R750 000.00 as
purportedly representing fair compensation for her injuries and
sequelae
,
disfigurement, and loss of amenities of life.
[20]
[37]
Apart from the omission of any
reference to the head injury suffered by her in the judgment (the
psychological
sequelae
was otherwise recognized), one is
left to speculate why the court estimated this amount to be
appropriate. The award is self-evidently
a paltry one compared
to the comparable ones that counsel had held up to it as providing a
guide as to what might constitute suitable
compensation for the
appellant in all the circumstances.
[38]
The sum total of the court’s
reasons for awarding the compensation which it did for the
appellant’s non-pecuniary loss
arising from the accident are
repeated below:
“
[25]
All
that remains is to determine an amount in respect of general damages.
[26]
Mr
Frost (who appeared with Ms Westerdale for the plaintiff) referred me
to various decisions
[21]
which, it was contended, are comparable at least to a significant
extent to the injury sustained by the plaintiff.
[27]
It was further
submitted that an amount of R1 400 000.00 would be appropriate
in respect of Plaintiff’s claim for general
damages.
[28]
Ultimately, one must
exercise a discretion based on the particular facts at hand in
determining a suitable amount which is commensurate
with the injuries
sustained and the after effects of such injuries.
[29]
There
is no doubt that the Plaintiff suffered, and will continue to suffer
for an extended period of time,
[22]
impediments in her daily life, psychological as well as physical.
[30]
I have considered all
the factors and in particular those advanced by counsel on behalf of
the plaintiff and I conclude that a suitable
amount for general
damages would be the sum of R 750 000,00.”
[39]
It is
a trite principle that an assessment of the amount of damages is a
matter of estimation and a trial court has a wide discretion
to award
what it in the circumstances considers to be fair and adequate
compensation to the injured party for his or her bodily
injuries and
their
sequelae
.
In Ncama,
[23]
Eksteen J
helpfully summarised the approach to be adopted in determining
general damages in motor vehicle actions as follows:
“
[25]
In determining general damages the court is called upon to exercise a
broad discretion to award what it considers to be fair
and adequate
compensation having regard to a broad spectrum of facts and
circumstances connected to the plaintiff and the injuries
suffered,
including
their nature, permanence, severity and the impact on her lifestyle.
In
Sandler
v Wholesale Coal Suppliers Limited
1941
AD 194
at
199 Watermeyer JA stated:
“
The
amount to be awarded as compensation can only be determined by the
broadest general considerations and the figure arrived at
must
necessarily be uncertain, depending upon the judge's view of what is
fair in all the circumstances of the case.”
I
agree with this general approach.
[26]
There is no hard and fast rule of general application requiring the
court to consider past awards as they are seldom on all
fours with
the facts of the case under consideration. Nevertheless, the
court will generally be guided by awards previously
made in
comparable cases and will be alive to the tendency for awards to be
higher in recent years than has previously been the
case. In
considering previous awards it is appropriate to have regard to the
depreciating value of money due to the ravages
of inflation. It
would however be inappropriate to escalate such awards by a slavish
application of the consumer price index.
(See for example
AA
Onderlinge Assuransie Assosiasie Bpk v Sodoms
1980
(3) SA 134
(A).)”
[40]
Because the outcome is a product of
estimation and discretion, an appeal court is generally slow to
interfere with the award of
a trial court and cannot simply
substitute its own for that of the court being appealed from.
Interference on such a basis
against an exercise of discretion is
possible only if a discretion was not judicially exercised.
[41]
Further, interference is only
justified once it is concluded that there has been an irregularity or
misdirection or where no sound
basis exists for the award or where
there is a substantial variation or striking disparity between the
award made by the trial
court and the award which the appeal court
considers ought to have been made.
[42]
For
reasons that escape me it appears that the trial court may have
missed the overall import of the serious injury whole person
impairment profile accepted by the Fund. Otherwise, it is
difficult to fathom why, if it had taken into consideration all
the
factors and particularly those advanced by counsel regarding the
comparable awards, it missed the mark quite substantially
in my view,
and limited the award as it did. Perhaps the court’s gauge of
what it ought to have been awarded was influenced
by the figure
apparently endorsed on the list of admissions by the claims handler
for each head of damages.
[24]
Or perhaps it was because in a minute of the parties’ pre-trial
conference dated 8 February 2019 (preceding Mr. Eaton’s
supplementation of her injury profile) the appellant had
coincidentally asked the Fund to agree that her general damages
fairly
amounted to R800 000.00. The trial court, in the
reasons furnished in its judgment in respect of the appellant’s
failed application for leave to appeal against the award, was
evidently not convinced that it had committed any misdirection or
irregularity, yet at the same time did not amplify its reasons for
granting the more limited award. Without any point of reference,
it
is difficult to support the approach it adopted.
[43]
In the circumstances I consider that
this court is at large to interfere on appeal and consider afresh the
amount of damages awarded
by the trial court.
[44]
Having
regard to the comparable awards relied upon by counsel again in this
court, in my view an amount of R1 200 000.00
[25]
as general damages would have been imminently fair and realistic
at
the time of valuation
given
the profound loss of amenities suffered by the appellant, the loss of
her youth and career prospects, her permanent disfigurement,
limited
use of her left arm,
sequelae
of the
head injury as well as her retained insight in respect of her losses.
The appellant is a young woman and the course of her
life has been
forever altered by the unfortunate and devastating collision.
In the premises it is, I believe, appropriate
to substitute the award
for general damages accordingly.
[45]
As for the issue of costs, it was not
in contention at the trial that it was necessary for the appellant to
be reimbursed for the
costs of second counsel. The same
consideration should be extended to her in the present appeal.
[46]
Before concluding, it is a matter of
great concern to us that Ms. Teko appeared on the morning of the
trial having been instructed
at the last minute by the Fund to
“oppose” the appeal. Counsel informed us in
chambers that the Respondent had
the day before prepared an
application for a postponement of the matter, but Ms. Teko’s
instructions by the morning were
that the Fund would not be
persisting with such an exercise. This notwithstanding, when
the matter was called in court, she
again repeated that she held
instructions to “oppose” the appeal, although how she was
going to do that she conceded
she could not say in the absence even
of having been briefed with a full set of papers. Ultimately
however she noted that
she would remain in attendance under the
auspices of a watching brief.
[47]
She did not, nor could she have,
inputted the issue of whether the trial court’s limited award
of general damages should be
confirmed, or the appeal upheld.
[48]
The
trial court also happened to remark that it was unsettling that the
Fund did not appear in actions in which it was cited as
defendant.
Evidently the present action had been the fifth one on the day when
the trial commenced where the Fund had made itself
conspicuous by its
absence.
[26]
Mr. Frost
on behalf of the appellant bemoaned the Fund’s tendency to
maintain its absence at trial, forcing a plaintiff
to go to court on
his/her own and requiring the court to hear evidence and decide
matters for it.
[49]
He also lamented the fact that the
Fund could not have been bothered to admit the report of Dr. Nobre
without any reasonable basis
therefor, ultimately forcing the
appellant to lead her evidence under circumstances where at the trial
there was no challenge to
her report whatsoever. Likewise, it
had been necessary to call Mr. Eaton both to give a context to the
appellant’s
supplementation of her case to bring her injuries
within the ambit of the Narrative Test and to highlight the
seriousness of the
injury, especially since Dr. Nobre in her report
had essentially relied on Mr. Eaton’s assessment. It was
further plain
from an affidavit put up by the appellant’s
attorneys what a logistical nightmare it had been to serve additional
and/or
supplementary reports, a notice of intention to amend, court
orders and notices of set down on the Fund
via
the sheriff’s office, coupled
with the absence of any meaningful input from it after its attorney’s
withdrew, from which
point they simply failed to make any further
settlement proposals in the matter.
[50]
It
therefore struck me as odd that the Fund would brief an advocate to
appear at the appeal (and incur unnecessary costs thereby)
whereas it
had failed to participate meaningfully at trial especially to limit
the costs of the litigation in the first place.
[27]
This court would not be the first to criticise it for its wanton
waste of public funds.
[51]
It was
envisaged that costs of litigation would be minimized and public
expenditure by the Fund drastically contained by the new
method
introduced for the Fund to administratively assess whether injuries
meet the threshold of seriousness and thereupon to make
reasonable
offers in respect of the desired statutory compensation without
resort to litigation where possible.
[28]
The Fund in my view subverts that objective when their claim handlers
or appointed legal representatives fail to put their
heads and skill
in the game.
[52]
There is one final issue that bears
discussing.
[53]
We called upon counsel to make
additional submissions regarding whether the value of the award
should be in the year 2021’s
terms (when the order of the trial
court was made) or in present day currency terms and then, from what
date interest should run.
[54]
Counsel
firstly argued against this court having regard to 2021 values,
except for obvious comparison purposes. They drew attention
to an
excerpt from
SA
Eagle Insurance Co Ltd v Hartley
[29]
in support of their submission that when assessing comparable awards,
adjustments should be made to the monetary value of those
awards so
that they are reflected in present day currency values in order to
recognize the ravages of inflation. Thus, so
they submitted, it
would be incorrect to attempt to assess the general damages which
ought to have been awarded in 2021 when the
valuation of general
damages is under consideration by the court in 2023.
[55]
Counsel submitted that they could not
refer us to any authority or case law in support of appeal courts
using currency values of
the past. On the contrary, so they
submitted, even in instances where a court sitting on appeal has
reduced an award on the
basis of it having been too generous, it had
regard to the purchasing power of the currency at the time of coming
to its decision.
[56]
In
this respect, counsel referred to two examples in which present day
values were awarded on appeal, the first in
Minister
of Police v Dlwathi
,
[30]
and the second in
Mpondo
v RAF
.
[31]
In the latter matter (without any apparent discussion about the
specific concerns raised by us in the present matter) it
is indeed
apparent that a full bench of this division considered the present
day values of comparable general damage awards rather
than the value
of the awards at the time the trial court delivered its order being
appealed against, which was on 19 May 2005.
The court increased
the appellant’s general damages from R350 000.00 to
R550 000.00 by setting aside the paragraph
in the order of the
trial court and replacing it with an order that “the defendant
shall pay the plaintiff the sum of R550 000.00
in respect of
general damages”. In confirmation of the present-day
value being used by the appeal court in
Mpondo
[32]
counsel attached a copy of the relevant page from
The
Quantum Yearbook 2023
[33]
where the Mpondo award is listed as being R550 000.00 in 2011,
that being the year in which the appeal was upheld.
[57]
As for
our query concerning interest on the award, counsel pointed out that
the usual practice for appellate courts is to retain
the date on
which the court of first instance handed down judgment as the date on
which the judgment debt of that court is due
and payable. That this
is the practice was confirmed by the Constitutional court recently in
Paulsen
v Slip Knot Investments 777 Limited
,
[34]
having regard to an earlier decision in
Occupiers
of Saratoga Avenue v Johannesburg Metropolitan Municipality
[35]
in which the principle in
General
Accident Versekeringsmaatskappy Suid Afrika Bpk v Bailey
[36]
(the
Bailey
principle)
was endorsed.
[58]
In
accordance with this principle a judgment debt is payable on the day
upon which the trial court hands down its judgment, irrespective
of
whether the judgment is substituted on appeal. Where an appeal
against a judgment succeeds and the amount of the judgment
debt is
thereby altered, it is not tantamount to a “new judgment”.
It is an amended judgment
which
the trial court should have given,
[37]
and such judgment is of force and effect retrospectively to the date
of the trial court’s judgment.
[38]
[59]
Counsel
noted that the relief sought in the present appeal is the usual “set
aside and replace” type of order, that,
as was observed in
Occupiers
of Saratoga Avenue
merely
corrects the order of the trial court which is best equipped to deal
with the execution and enforcement of its own orders.
[39]
Accordingly, so they submitted, interest should run from the date of
judgment in the trial court, as opposed to the date of the
order of
the appeal court.
[60]
I
accept that that is the correct approach, although in orders made
under the RAF Act there is a subtle difference in that the act
provides for interest at the prescribed legal rate to commence
running 14 days from the date of judgment.
[40]
[61]
The
appellant cannot however in my view have it both ways: in other
words, an award expressed in the value of money in the present
year
that notionally takes into account the ravages of inflation since 8
October 2021, plus interest on the adjusted amount calculated
from
the date of the substituted judgment debt (this in accordance with
the
Bailey
principle),
because that interest in itself is intended to prospectively address
the ravages of inflation having regard to any delay
in payment,
including, in my view an appeal interposing.
[41]
[62]
Whilst
it is so, as is indicated in
SA
Eagle Insurance Co Ltd v Hartley
,
[42]
that awards representing non-economic losses not susceptible of
measurement in money (in other words general damages) must be
reckoned at the time of their valuation (that is at trial) with due
regard to the purchasing power of the Rand at the time of deciding
that award, exactly to compensate for variations in the Rand’s
purchasing power between demand/summons and trial, once the
award has
been made it takes on the form of a “judgment debt”.
The exercise of the appeal court however (where
that award is
challenged on appeal) is to determine whether the trial court
properly compared “comparables,” keeping
the 2021
currency values at the forefront of its determination.
Therefore, the admonishment in
Hartley
that:
“(s)
uch
a valuation must obviously be made in terms of currency values
as
they are at the time of valuation
,
and not in terms of the values of an earlier time
[43]
applies
as a principle to the trial court determining the non-monetary loss
for the first time.
[63]
In conclusion, the very exercise upon
appeal is to determine what the trial court ought to have found was
an appropriate award of
general damages in 2021 respecting the value
of the rand at the time of trial, but, if that order is amended,
whether upwards or
downwards, to apply the
Bailey
principle in substitution of the
impugned order.
[64]
I am
mindful that the Fund made no input with regard to the later
submissions made by counsel and I do not intend to create any
hard
and fast principle concerning the rate and date from when interest
must run pursuant to an order on appeal substituting an
award made
under the provisions of the RAF Act.
[44]
The Fund may also have its own views, predicated on the peculiar
nature of the statutory compensation it must pay with limited
public
funds, regarding whether and how interim variations of the purchasing
power of the rand ought to be addressed in scenarios
like the
present, which it should be encouraged to properly ventilate in an
appropriate case. For present purposes however and
having regard
especially to the relatively short duration of the appeal process, I
believe that this court is entitled to give
effect to its own view as
to what is just.
[45]
[65]
In the premises, I issue the
following order:
1.
The appeal is upheld with costs, such
costs to include the cost of two counsel, where so employed.
2.
The judgment/order of the trial court
is substituted in paragraph [31.2] thereof with the following
sub-paragraph in its place:
“In the amount of R1 200 000.00 in
respect of the plaintiff’s claim for general damages”.
3.
Interest on the award is to be
computed, in terms of section 17 (3)(a) of the Road Accident Fund
Act, No. 56 of 1966, from a date
14 days after 8 October 2021, to
date of payment.
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE,
M
JOLWANA
JUDGE
OF THE HIGH COURT
I
AGREE,
L
RUSI
JUDGE
OF THE HIGH
COURT
DATE
OF APPEAL:13 March 2023
DATE
OF JUDGMENT:25 April 2023
Appearances:
For
the Appellant:
Mr.
A Frost & Mrs B Westerdale
instructed
by
Boqwana
Burns Inc.,
c/o
N N Dullabh Attorneys,
Grahamstown
(ref.
Mr Dullabh).
For
the Respondent (on a watching brief only):
Ms.
A Teko
instructed
by
State
Attorney,
Gqeberha
(ref.
O Phillips).
[1]
GNR.770
of 21 July 2008 (Government Gazette No.31249) as amended by Notice
R.347 (Government Gazette 36452 dated 15 May 2013.
[2]
Both
surgeons were acting in their capacity as “medical
practitioners” undertaking the assessment in terms of section
17 (1A) of the RAFA read together with paragraphs 3 (1)(a) and
(b)(ii) and (iii), (iv) and 3 (a) – (c) of the Regulations.
[3]
This
figure was based on a combination of the scores for the appellant’s
various injuries as per the “AMA Guides”
(
American
Medical Association’s
Guides
to the Evaluation of Permanent Impairment
,
6th Edition) read together with the Narrative test.
[4]
See
footnote 3 above.
[5]
The
initial assessment of the appellant took place on 13 February 2018
but Dr. Olivier’s RAF4 report was revised on 23 June
2021 to
refer to additional documentation at his disposal, including the
medico legal reports of Dr. de Bruin, orthopaedic surgeon,
Mark
Eaton, clinical psychologist, Letitia Strauss, occupational
therapist, and Charles Apostolis, plastic and reconstructive
surgeon.
[6]
See
Regulation 3 (3) (c).
[7]
See
definition of “medical practitioner” in para 1, read
together with para 3 (1)(iv) – (vi), of the Regulations.
[8]
Road
Accident Fund v Duma (672/2014P) [2019] ZAKZPHC 15 (1 March 2019) at
[19];
Road
Accident Fund v Faria
[2014] 4 All SA 168
(SCA) at para [35]; Road
Accident
Fund v Lebeko
(
802/11)
[2012] ZASCA 159
(15 November 2012); Maqhutyana & Another v Road
Accident Fund (CA 17/2020) [2021] ZAECMHC 30 (17 August 2021).
[9]
It appears from the
appeal record that an offer was made and rejected on 3 August 2021.
The matter stood down for an increased
offer which was not
forthcoming. The matter was thereupon postponed to 1 September
2021 for the leading of evidence by
affidavit and further postponed
on that date to 6 October 2023 when the trial commenced. It is
expected that once that the Fund
accepts the seriousness of the
injury that it will make an offer for general damages. This is
the import of section 17
(1A) (a) of the RAFA read with Regulation 3
(3) (c). (See also Manukha v RAF 285/2016
[2017] ZASCA 21
(24
March 2017) at para [22]). Although the recent dispensation
concerning serious injuries and the Fund’s obligation to
compensate a claimant after the prescribed method has been employed
envisaged that this process would be an administrative one
in order
to limit unnecessary costs of litigation to the Fund (I deal with
this subject quite extensively in Maqhutyana,
Supra
),
there is no obligation on a plaintiff to accept the offer of
statutory compensation if he/she considers it to be unreasonable.
[10]
For
the effect of such agreement see Ncama v RAF (3854/2012) [2014]
ZAECPEHC 74 (4 November 2014) which confirms that it is permissible
to hand in the reports on such a basis without the need for
additional affidavits attesting the contents. Indeed, in my view
the
accepted serious injury whole person impairment profile should
suffice as a basis for a court to consider a suitable lump
sum award
and should, in order to curtail litigation costs, involve a “paper
review” as it were by the court of the
features of the
specific injury profile as outlined in the RAF 4 form(s) and related
medical reports.
[11]
See
in this regard the article by Nicolette Koch “How to qualify
for general damages under the RAF Amendment Act under the
Narrative
Test option to qualify for general damages”.
De
Rebus,
November
2010.
[12]
The
import of the loss to the plaintiff, not in pecuniary terms, but as
an amenity of life, speaks for itself.
[13]
The
appellant’s attorneys continued to serve pleadings on the Fund
per sheriff after their legal representatives withdrew
from acting.
It is also clear that the appellant’s legal representatives
continued to engage with them by way of
correspondence after their
withdrawal throughout the conduct of the matter until its
conclusion.
[14]
This is an extract from
the parties’ “Admission/Issues” recorded on 4
August 2021.
[15]
2012 (6A4) QOD 95(GSJ)
[16]
These
values (and those in the next three sub-paragraphs) are in
accordance with Koch’s Quantum Yearbooks for each respective
year.
[17]
2013
(6A4) QOD 188 (GNP)
[18]
2011
(1) SA 452 (E)
[19]
(27454/ 2013) [2017]
ZAGPHC 161
[20]
Counsel
had argued at trial that a fair and realistic award at the time
would have been in the sum of R1 400 000.00.
[21]
The court in a footnote
recorded that it was unnecessary to refer to each of these
authorities referred to by counsel. The
implication thereby is
that the court was however aware of their import.
[22]
The
period was considered “extended” due to the appellant’s
young age.
[23]
Supra
at
[25] – [26]
[24]
Ideally
it would have been helpful to know what the Fund considered to be
fair compensation from its perspective and vast experience
of
studying injury profiles. This court was however not privy to
these endorsements.
[25]
According
to the inflation tool calculator for the South African Rand freely
available on https: www.inflationtool.com to calculate
the time
value of money based on historical inflation and consumer price
index values, the default calculation for an award of
R1 200 000.00
in 2021 would in the current year equate to R1 343 171.25.
Counsel argued, both on appeal
and before the trial court, that an
award of R1 400 000.00 represented fair compensation.
I deal below with the
further submissions sought from them in this
respect.
[26]
The court referred to
this unacceptable practice in its judgment delivered in the separate
matter of Van Niekerk v RAF (2922/2019)
[2021] ZAECPEHC 66 (8
October 2021) which was heard on the same day as the present matter.
The fact that the actions proceed
by way of default causes
considerable difficulty where there is no consensus as to medical
evidence or necessary admissions made
to curtail proceedings. The
courts are further notably inconsistent regarding when they will
accept evidence on affidavit and
when they will insist on oral
evidence, often even if joint minutes of experts are available.
[27]
A
prudent approach would have required it to engage meaningfully,
especially regarding an appropriate tender for general damages
on
the premise of the WPI rating for the plaintiff’s peculiar
injury profile.
[28]
See
Maqhutyana & Another v Road Accident
Supra
at
[95]
as well as footnotes 23, 32, 34 and 74.
[29]
[1990] ZASCA 106
;
1990
(4) SA 833
(A) at 841 D – E.
[30]
(20604/14)
[2016] ZASCA 6
(2 March 2016) at pars 13 and 17
[31]
(CA283/2011)
[2011] ZAECGHC 24 (9 June 2011) at pars 24 – 26.
[32]
Supra
[33]
The
Quantum Yearbook 2023 by Robert Koch
[34]
2015
(3) SA 479
(CC) at [96]
[35]
2012 (9) BCLR 95
1 (C)
at 7 - 8
[36]
1988 (4) SA 353
(A) at
358 H – I
[37]
Occupiers
of Saratoga Avenue
,
Supra
,
at [7].
[38]
Bailey,
Supra
,
at 358H & 359H.
[39]
Supra
at [9]. The reason
for enforcing the orders in the original court is said to be logical
and practical.
[40]
Section
17 (3)(a) of the RAF Act provides that no interest calculated on the
amount of any compensation which a court awards to
any third party
shall be payable unless 14 days have elapsed from the date of the
court’s order.
[41]
See
in this regard generally the approach adopted in Drake Flemmer &
Orsmond Inc and another v Gajjar NO
[2018] 1 All SA 344
(SCA).
As was stated in that matter at par [57], the legal rate of interest
is unlikely to under-compensate a plaintiff
(appellant) as it is set
at a relatively high level.
[42]
[43]
Supra
at
841 B - F
[44]
What
is clear from the provisions of section 17 (3) (a) of the RAF Act is
that the recovery of pre-judgment interest is certainly
precluded.
[45]
Section
2A
(5) of the
Prescribed Rate of Interest Act, No 55 of 1975
.