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2022
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[2022] ZAFSHC 304
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M v Road Accident Fund (128/2018) [2022] ZAFSHC 304 (7 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 128/2018
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
WP
M
Plaintiff/Applicant
and
THE
ROAD ACCIDENT FUND
Defendant/Respondent
(CLAIM
NO: 560/12522085/1075/0 & LINK NO: 4127045)
CORAM:
OPPERMAN,
J
HEARD
ON:
21
October 2022
DELIVERED
ON:
7 November 2022. The
judgment was handed down electronically by circulation to the
parties’ legal representatives
by email and release to SAFLII
on 7 November 2022. The date and time for hand-down is deemed to be 7
November 2022 at 15h00
JUDGMENT
BY:
OPPERMAN,
J
SUMMARY:
Leave to Appeal
- failure of the Plaintiff to prove
nexus
between the
quantum
claimed and the injury for a claim
of past and future loss of income
JUDGMENT
[1]
There is not a Court that will grant a man the
amount R4 621 300.00 for a loss of income that he caused by resigning
carelessly
to start a business with his son. The business failed and
he now wants for the Road Accident Fund to foot the bill.
[2]
The assessment of an application for leave to
appeal lies in the words of the Supreme Court of Appeal that was
spoken recently in
Ramakatsa and
others v African National Congress and another
[2021] JOL 49993
(SCA) in March 2021 at paragraph [10]:
If
a reasonable prospect of success is established, leave to appeal
should be granted. Similarly, if there are some other compelling
reasons why the appeal should be heard, leave to appeal should be
granted. The test of reasonable prospects of success postulates
a
dispassionate decision based on the facts and the law that a Court of
appeal could reasonably arrive at a conclusion different
to that of
the trial Court. In other words, the appellants in this matter need
to convince this Court on proper grounds that they
have prospects of
success on appeal. Those prospects of success must not be remote, but
there must exist a reasonable chance of
succeeding. A sound rational
basis for the conclusion that there are prospects of success must be
shown to exist. (Accentuation
added)
[3]
The atmosphere of this case reminded of the
words of the Constitutional Court in
Shinga
v The State and another (Society of Advocates (Pietermaritzburg Bar)
intervening as Amicus Curiae); S v O'Connell and others
2007 (2) SACR 28
(CC) that defined the judicial character of the task
conferred upon a presiding officer in determining whether to grant
leave to
appeal. Although having heard the evidence and having made a
ruling; the judge is called upon to consider whether another Court
may reach a different conclusion. This requires a careful analysis of
both the facts and the law that have supported the judgement
a
quo
and a consideration of the
possibility that another Court may differ either in relation to the
facts or the law or both. This is
a task that has been carried out by
High Court Judges for many years and it is a judicial task of some
delicacy and expertise.
It should be
approached on the footing of intellectual humility and integrity,
neither over-zealously endorsing the ineluctable
correctness of the
decision that has been reached, nor over-anxiously referring
decisions that are indubitably correct to an appellate
Court.
(Accentuation added)
[4]
The peculiarity of this case is that the
Plaintiff caused his own loss of income by resigning from his job.
There is a lack of evidence on the
causal link
between the injuries and the loss;
the
resignation caused the loss not the injuries
.
There must be a nexus between the
injury and the loss and the
quantum
of the loss
.
[5]
Contingencies shall only be applied and
considered if the causal link between the injuries and the loss was
proved; when the incident
and loss was proven to be causally
connected. The injuries were not the cause of the alleged effect of
R4 621 300.00.
Contingencies shall
not be used to fix a broken case.
[6]
Crucial is what the primary issue in this case
is not about. It is not about the Plaintiff’s duty, or not, to
mitigate his
losses. That said; claimants may not be reckless with
their fate and circumstances and expect that the Road Accident Fund
must
remedy the situation.
[7]
Courts must apply the same diligence when
adjudicating matters wherein the Road Accident Fund is a party as in
other cases; the
fact that the coffers may be deep does not permit
that sympathy for the Plaintiff must cause warped law and dubious
justice. The
parties, the expert witnesses and all involved must show
due honour and integrity to the administration of justice when they
prepare
and present their case.
[8]
At the time of the accident and for two years
afterwards, the Plaintiff was gainfully employed by the Department of
Public Works
as a Construction Project Manager. He was on middle
management level (MMS).
[9]
The Plaintiff, on his admission during
viva
voce
evidence, resigned
thoughtlessly and impulsively in 2017, two years after the incident;
after 30 years of service. He realised
his mistake and endeavoured to
retrack the resignation but could not. He could not supply a reason
to the Court as to why he was
not allowed to retract his resignation.
[10]
His income, hereafter, dropped significantly
from R586 392.00 per year in December 2015 and an estimated R687
171.00 per year in
April 2017 to about R3000.00 to R4000.00 per month
in 2017 and he ended up unemployed in 2019 and until the time of the
trial in
2022.
[11]
The Industrial Psychologist conceded, also
during
viva voce
evidence, that the Plaintiff should have considered negotiations with
his employer for sedentary sympathetic duties or ill-health
retirement and should not have resigned as he had given his
circumstances.
[12]
There is not any evidence on record that the
Plaintiff was forced to resign due to his injuries.
[13]
On top of all else is the fact that the
Orthopaedic Surgeon indicated the Plaintiff had pre-existing
spondylosis of his
cervical spine
and only 50% of his symptoms can be attributed to the accident
.
He had an unspecified lumbar spine injury prior to the accident,
he
has a history of backpain
,
spondylosis and underwent a previous L4 – S1 fusion
.
Conservative treatment was prescribed for this injury. Treatment for
the shoulder injury should focus on long-term rehabilitation
to
regain as much function as possible.
From
the x-rays, it is apparent that the Plaintiff also had Osteoarthritis
of his right knee which was not injured in the accident,
he already
had degeneration in his left knee prior to the accident and therefore
50% of his symptoms relating
to his knee is apportioned to the accident
.
This was not included in the calculations of the actuaries. The
Industrial Psychologist or legal representatives did not give
them
any instructions on this vital aspect.
[14]
The
statement by Counsel for the Plaintiff in their Heads of Argument on
the merits that the plaintiff was pain-free before the
incident is
not correct.
[1]
It did
apparently increase but not to the extent that he could not do
sedentary work.
[15]
The restoration of what is just must be
ordered; nothing more and nothing less should be ordered by a Court
for effective justice
to prevail. Parties must come to Court on trial
with the best evidence. This is the constitutional decree to serve
the administration
of justice and give credence to the Rule of Law.
[16]
I regress to allude to the curious fact that
Counsel for the Road Accident Fund, after a vehement opposition of
the case for the
Plaintiff during the trial, was now instructed to
abide to the ruling of the Court on the application for leave to
appeal. A Notice
to Abide was filed on 18 October 2022.
[17]
It was concluded
a
quo
that:
CONCLUSION
[84]
The Plaintiff in this case did not prove the facts on which he wants
for the mathematics to be done. The case may
therefore be concluded
with a dismissal of the claim.
[85]
The second option is to order absolution from the instance with costs
and with leave to the Plaintiff to proceed
afresh on his claim on the
same papers duly amplified.
[86]
The other option is a recalculation of the loss by the actuaries. The
problem is that there are many unproven scenarios
that might be
speculated on. The outcome may still be in dispute between the
parties afterwards. It is not known if the Plaintiff
would have been
placed on sedentary and more sympathetic duties or ill-health pension
and what the effect on the Plaintiff’s
salary would have been.
Only the employer can attest to that.
[87]
The reason for resignation by the Plaintiff is also still
speculation. Evidence as to his mental and emotional
condition might
alleviate the elusiveness, vagueness and ambiguity surrounding the
issue.
[88]
The aspect of the fact that only 50% of the
sequalae
of the
injuries was due to the collision as indicated by the Orthopaedic
Surgeon, also taints a just and effective finding by the
Court.
[89]
The Plaintiff will receive constant medical treatment on the account
of the Road Accident Fund and his health will
be contained if he
co-operates. If he was able to run a business with his son for two
years, he will be able to employ somebody
to help him in accordance
with his future plans expressed to the experts. This causes a third
scenario to be regarded.
[90]
I cannot comply with Draft Order B of the Plaintiff to: “Upon
receipt of the actuarial calculation the parties
are to approach
Court to make the actuarial calculation of the Plaintiff’s
claim for past and future loss of earning capacity
an order of
Court.” There might still exist a dispute on the
quantum
to be adjudicated due to the fact that the basis on which the
calculation must be made is in shambles.
[91]
The Plaintiff must adduce evidence that the injuries sustained during
the collision caused him to resign and discontinue
his business. The
effect of his pre-accident physical condition on the loss of past and
future income must be specified and calculated.
[92]
The parties will have to pay their own costs. The issues of the case
have only been realised when this case started
on trial and both
parties could have contributed to a more effective trial.
[93]
ORDER
1.
Absolution from the instance is ordered.
2.
Leave is granted for the Plaintiff to proceed on his claim on the
same papers duly amplified should he
be so inclined.
3.
Each party to pay their own costs.
4.
The Plaintiff’s claim for past medical and hospital expenses is
postponed to the pre-trial roll
of 24 October 2022: 14h15.
[18]
The issue of costs in the application for leave
to appeal is also not straightforward. In order to assist the
Applicant/Plaintiff
to obtain a date for the hearing of the
application for leave to appeal as expeditiously as possible, the
Registrar, after receipt
of the application on 3 October 2022,
emailed all the parties with the suggested date. The most suitable
date came to be the 14
th
of October 2022.
[19]
The date was never confirmed because on 12
October 2022 all the parties were notified that Counsel for the Road
Accident Fund had,
up to that date, not received instructions on the
application. In the meanwhile, the attorneys for the
Applicant/Plaintiff went
forth, without confirmation and instruction
of the Registrar, to set the matter down for hearing on the 14th of
October 2022 by
way of a formal “Notice of Set Down:
Plaintiff’s Application for Leave to Appeal” on the 10
th
of October 2022. The matter was subsequently only confirmed by the
Registrar and all the parties to be on the roll for 12h00 on
21
October 2022.
[20]
Counsel for the Applicant/Plaintiff in argument
during the hearing demanded the costs for the 14
th
of October 2022. Contrary to the conduct of his instructing
attorneys; he explained to the Court that an application for leave
to
appeal is not enrolled by way of a formal Notice of Set Down. It is
clear that he did not know of the erroneous Notice of Set
Down and
the correspondence between the attorneys and the Registrar. The
demand for costs for the 14
th
of October 2022 will therefore not be entertained.
[21]
To conclude; the Applicant in this matter did
not convince on proper grounds that they have prospects of success on
appeal.
[22]
ORDER
The
application for leave to appeal is dismissed with costs.
M
OPPERMAN, J
APPEARANCES
On
behalf of the Applicant/Plaintiff
ADVOCATE
PJJ ZIETSMAN SC
Chambers
BLOEMFONTEIN
Mr.
HL Buchner
Attorney
for the Plaintiff
HONEY
ATTORNEYS
Honey
Chambers
Kenneth
Kaunda Street
BLOEMFONTEIN
Ref:
HL BUCHNER/eo/J03699
emmanuel@honeyinc.co.za
On
behalf of the Respondent/Defendant
ADVOCATE
C BORNMAN
State
Attorneys, Bloemfontein
c/o
Road Accident Fund, Bloemfontein
REF:
560/12522085/1075/0
charleneB@raf.co.za
[1]
Paragraphs
6.2 and 6.3 of the Heads of Argument.