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[2022] ZAFSHC 115
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Mohai v Road Accident Fund (2802/2017) [2022] ZAFSHC 115 (16 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 2802/2017
Reportable: NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
In
the matter between:
I
K MOHAI
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
MTHIMUNYE
, AJ
HEARD
ON:
16
FEBRUARY 2022
DELIVERED
ON:
16 MAY 2022
JUDGMENT
BY:
MTHIMUNYE, AJ
[1]
This is a claim for damages against the Road Accident Fund arising
from
bodily injuries sustained by the Plaintiff as a result of a
motor collision that occurred on 12 February 2016 between
Bloemfontein
and Dewetsdorp. The injuries suffered by the Plaintiff
were pleaded as a dense fracture type III of the cervical (C1/C2)
vertebrae,
facial and a chest injury.
[2]
On 9
th
May 2018 the Defendant conceded merits one hundred
percent in favour of the Plaintiff with costs. On this day however,
the Defendant
did not issue a certificate in terms of Section
17(4)(a) of the Road Accident Fund Act in respect of the Plaintiff’s
future
medical expenses. The matter was then postponed for the
determination of quantum.
[3]
On 17
th
March 2020 the matter served before my sister
Opperman J for the determination of quantum. In a turn of events, the
Defendant disputed
the seriousness of the injuries and argued that
the Plaintiff does not qualify for general damages. This necessitated
the matter
to be postponed and a cost order was granted against the
Defendant. In her order, Opperman J further directed that:
“
1.1
The parties to file Joint Minutes of all the experts within a month
of this order;
1.2.
If party causes undue delay in the finalisation of the Joint Minutes,
such parties
expert reports shall be ignored for the trial purposes;
1.3.
Parties to obtain the resolutions of the HPCSA;
1.4.
The Plaintiff to approach the Court for Rule 37A case management
procedures to be
held after reports and notices have been filed;
1.5.
In the event that the Defendant does not perform in terms of any
directions as indicated
above or any further directions granted to
the Plaintiff as contemplated in Rule 37A the Plaintiff will have the
right to bring
an interlocutory application to compel the Defendant
to comply, which interlocutory application will form part of the case
management
procedure and the application will therefore not
have to be brought before the normal
motion court.”
[4]
Joint Minutes were filed in respect of Occupational Therapists (Ms J
Friedrichs
and Ms S Moagi) and Orthopeadic Surgeons (Dr LF Oelefse
and Dr HL Moloto). No joint minutes were filed in respect of the
other
experts. A pre-trial was never held due to the Defendant’s
failure to attend. The Plaintiff further filed expert reports from
an
Actuary (JJC Sauer) and Industrial Psychologist (Ben Moodie). The
Defendant filed expert reports from a company called Independent
Actuaries and Consultants (Actuarial Report).
[5]
In terms of its amended particulars of claim, the Plaintiff claims
damages
to the amount of
R 6 630 927.00
(Six Million Six
Hundred and Thirty Thousand, Nine Hundred and Twenty-Seven Rand)
calculated as follows:
a.
Past medical and hospital expenses
R 5 000.00
b.
Estimated future medical treatment
R 45 000.00
c.
Past loss of income
R
20 216.00
d.
Estimated future loss of income
R 5 810 711.00
e.
General damages
R 750 000.00
[6]
On the day of hearing the Plaintiff conceded that there can be no
claim
for past medical and hospital expenses since he was treated at
a government hospital. This claim was thus abandoned and I need not
deal with it any further. The Defendant also conceded to the
seriousness of the injuries and to the issuance of the Certificate
in
terms of Section 17(4)(a) in respect of future medical expenses. It
is to be noted that the seriousness of the injuries was
confirmed in
the joint minutes of the Orthopeadic Surgeons and they agreed that
provision must be made for treatment, which included
neck fusion. The
Defendant issued a letter aligning itself with the joint minutes. In
his heads of argument, Counsel for the Plaintiff
relied on several
authorities on the status of agreements by experts in joint minutes,
including the case of
Glenn Mark Bee v Road Accident Fund
2018 (4)
SA 366
(SCA)
where the Supreme Court of Appeal held that:
“…
Effective case
management would be undermined if there were an unconstrained liberty
to depart from agreements reached during the
course of pre-trial
procedures, including those reached by the litigants’
respective experts’.”
In
light of the above, I also need not deal with this aspect any
further.
[7]
What remained in dispute was the quantification of the general
damages
and loss of earnings. At the onset and at the behest of the
Plaintiff, the Defendant further agreed that the determination be
made
on the basis that the Plaintiff would retire at the age of 55.
[8]
The Plaintiff called Benjamin Moodie, an Industrial Psychologist who
testified
to his report that at the time of the final report, the
Plaintiff was still studying towards obtaining a Diploma in Cost
Accounting
and as anticipated in the report, he subsequently passed
and obtained his Advanced Diploma in Applied Management on 01 April
2021.
A copy of the Diploma was handed up as Annexure “1”.
He said based on the Plaintiff’s drive and capabilities,
he was
capable of obtaining a PhD and as such all other previous evidence
had become redundant as the previous proposal was that
he could go up
to NQF Level 6 but he has achieved that and is progressing towards
NQF Level 8.
[9]
He opined that because of the chronic pain that the Plaintiff endures
as a result of the injuries and the resultant depression, he cannot
work as hard as his co-workers and there are much more cognitive
demands placed on him. On this basis, he cannot be on the same
footing with his peers. His position will deteriorate and in terms
of
the report of the Orthopaedic Surgeon, he can work up to the age of
55 where he will not be able to take it anymore. Even if
the pain is
managed, the degeneration. It was also stated and not disputed, that
by the time the Plaintiff retires; he would have
had two neck
fusions.
[10]
Under cross-examination, Mr Moodie was asked if there is not a
possibility that the Plaintiff
could end at C4/C5 Paterson grade
given the reality of unemployment. Mr Moodie said that would mean the
Plaintiff will enter the
market and stay at entry level for the rest
of his life. He said for the Plaintiff’s drive and
qualifications, D4/D5 is the
only possible scenario and is
conservative.
[11]
The Plaintiff also testified that he was currently enrolled for a
Postgraduate Diploma
in Project Management which will take him two
years to complete. He enrolled in 2021 and, all things being equal,
he would complete
it at the end of 2022. Due to financial
constraints, he had to deregister in the second semester in 2021 and
will now roll over
those modules to this year in order to finish his
Post Graduate Diploma at the end of 2022. If he is not successful,
the Diploma
might roll over to 2023 but he would ask for a special
examination so that he still obtains his qualification in 2023. The
Defendant
opted not to cross-examine the Plaintiff.
[12]
The Defendant did not lead any evidence to rebut the Plaintiff’s
evidence. This court
is alive to the fact that this does not mean
that the Plaintiff’s evidence should then be accepted as a
matter of course.
[13]
Counsel for the Plaintiff pointed out that in respect of general
damages, the quantum book
is not yet out and he relied on the case of
Moloi v Road Accident Fund (5881/2017) [2019] ZAFSHC
. He
lamented that cases similar to what is before court are not always
available but this is as near as possible even though Moloi
had no
fracture of the vertebrae which makes the case before court more
serious than that of Moloi. Further, Moloi had no future
operation
whereas,
in casu
, the Plaintiff anticipates two neck fusions.
Moloi was also older at the time of injury whilst the Plaintiff
herein was 24 years
old and as a result of the injuries early
retirement is anticipated as well as loss of amenities.
[14]
The Defendant’s Counsel also conceded that she could not find
any cases dealing with
C2/C3 injuries but could only find ones
dealing with C4/C5 injuries. In
Damana v Minister of Safety &
Security (1418/2011) [2016] ZAECPEHC
, my sister Majiki J, in a
C5/C6 injury, awarded R 275 000.00 for general damages after applying
contingencies. In
Smith v Road Accident Fund (57226/2016) [2019]
ZAGPPHC 181
, in a C5/C6 injury, an award of R 345 000.00
was made for general damages. Counsel for the Defendant conceded
however that
in casu
, an award of R 300 000.00 might be unfair
and submitted R 400 000.00 to be just and fair.
[15]
In respect of Loss of Earnings, Counsel for the Defendant submitted
that she had no instructions
and leave the matter in the hands of the
court to apply contingencies.
[16]
I have taken into consideration that the Plaintiff suffered a dense
fracture type III of
the C1/C2 vertebrae, which was followed by a
non-union of the C2 where the fracture was. There was also a C1/C2
malalignment resulting
into local kyphosis. He was hospitalised for a
month and he developed spondylosis on the C1/C2 as a result of the
injury and also
antero-occipital spondylosis. Although I agree with
Counsel for the Plaintiff that the injuries
in casu
are more
serious that in the Moloi case, I am not persuaded, having considered
the facts and comparable cases that an amount of
R 750 000.00 is
justified as general damages.
[17]
With regards to loss of earnings, I have considered the joint minutes
of the orthopaedic
surgeons and noted that, contrary to the earlier
postulation by the Industrial Psychologist Mr Benjamin Moodie in the
2020 report,
relying on Dr Oelofse’s report, that it was
expected that the Plaintiff would start his career path on Paterson
level B3,
progressing in a straight line, to the median of Paterson
level C3/C4 before reaching his career ceiling at the age of 45; in
the
past two years the Plaintiff has exceeded the expectations of the
Industrial Psychologist in that he is now expected to enter the
market with an NQF Level 8, 9 or 10 qualification on a Paterson B4
level.
[18]
In the addendum, Mr Moodie postulates a pre-accident income potential
as well as a post-accident
income potential. This postulation was
then forwarded to the Actuary, Mr Johan Sauer who did his
calculations in two scenarios.
The first scenario is based on a 5%
contingency differential and the second on 10%, upon which the
Plaintiff relies. The Actuary
also applied the cap resulting in
Plaintiff’s loss of income being R 5 610 861.00, with a
post-morbid contingency of
35% having being applied.
[19]
No alternative scenario was put before court by the Defendant in
terms of calculations
in respect of loss of earnings. As pointed
above this does not necessarily mean the Plaintiff’s version
should just be accepted
as a matter of course however, I have no
reason not to rely on the calculations by Mr Sauer.
[20]
Consequently,
I make the following order:
1. The Defendant is liable
for payment to the Plaintiff in the amount of:
(a)
R 5 610 861.00 (Five Million Six Hundred and
Ten Thousand, Eight
Hundred and Sixty-One Rand) in respect of loss of earnings, having
applied a post-morbid contingency of 35%.
(b)
R 450 000.00 (Four Hundred and Fifty Thousand Rand)
in respect of
General Damages.
2. The amounts referred to
above are payable within 180 (One Hundred and Eighty) days from the
date of this order, into
the Trust Account of the Plaintiff’s
Attorneys.
3. The Defendant is
ordered to furnish the Plaintiff with an undertaking in terms of
Section 17(4)
of the
Road Accident Fund Act 56 of 1996
, to pay 100%
of the cost of the Plaintiff’s future accommodation in a
hospital or nursing home, or the treatment or the rendering
of a
service or the supplying of goods to the Plaintiff arising out of
injuries sustained by him in the motor vehicle collision
mentioned
above. In terms of the undertaking, the Defendant will be obliged to
compensate him in respect of these costs after the
costs have been
incurred and on proof of these costs being provided.
4. The undertaking
referred to above shall be delivered to the Plaintiff’s
attorneys of record being VZLR Incorporated
within 14 (fourteen) days
from the date of this order.
5. The Defendant shall pay
the Plaintiff’s taxed or agreed costs on the scale as between
party and party until
the date of this order, including costs of
experts and those of Senior Counsel.
6.
Should the Defendant fail to pay the
Plaintiff’s party and party costs as taxed or agreed within 14
(fourteen) days from the
date of taxation, alternatively date of
settlement of such costs, the Defendant shall be liable to pay
interest at the prescribed
rate per annum, such costs as from and
including the date of taxation, alternatively the date of settlement
of such costs up to
and including the date of final payment thereof.
7.
The Plaintiff shall, in the event that the
parties are not in agreement as to the costs referred to in paragraph
4 above, serve
the notice of taxation on the Defendant’s
attorneys and shall allow the Defendant 14 (fourteen) court days to
make payment
of the taxed costs.
D.
P. MTHIMUNYE
Appearances:
For
the Plaintiff:
Adv
F Diedericks S.C.
Pretoria Society of Advocates
Instructed by VZLR Incorporated
For
the State:
Ms
Charlene Bornman
State Attorney, Bloemfontein