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[2021] ZAGPPHC 417
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Rabalao v Road Accident Fund (83107/2014) [2021] ZAGPPHC 417 (7 June 2021)
I
N
THE
HIGH COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO: 83107/2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
RABALAO,
MABE
REGINALD
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
THIS
JUDGMENT HAS BEEN HANDED DOWN REMOTELY AND SHALL BE
CIRCULATED
TO THE PARTIES BY WAY OF
EMAIL ITS DATE AND TIME
OF HAND DOWN
SHALL BE DEEMED
TO
BE
07
JUNE 2021
AT
12H00
Introduction:
1
"
To
be,
or not
to be:
that
is he question
....".
- famous
quote
by William
Shakespeare,
(1546 to
1616)
from
the
opening
speech
of Hamlet Act
3,
Scene
1, in the years
between
1599
and
1602.
2
The
Plaintiff
instituted
a
claim
against the
Defendant for
general
damages,
loss of
i
ncome
and
past
and future
medical
expenses
in the
amount
of
R 8 976 501,
00. The matter
came
before
me as a civil trial
on 08
March 2021. The
Plaintiff
rejected the
Defendant's
offer
in
settlement.
At the time the
matter came
before me; the
Defendant
was
unrepresented.
I
was
addressed
by the
Plaintiff's
counsel, Advocate
Frosch.
Judgement
was
reserved.
The
Plaintiff's
case
3
The
Plaintiff
was
involved
in a motor vehicle
accident
on 22
May
2012.
He claims that
another vehicle
drove
into the
back
of
his vehicle.
He
was
transported
to
One
Military
Hospital
by ambulance
and
discharged
4
days
after
the
accident.
4
Plaintiff was
employed
with the
SANDF
as a sports
officer
in the
South
African
Airforce
(SAAF)
at
the time of the
motor vehicle
accident.
He
has the following
qualifications:
grade
12,
a
BA degree
with specialisation
in
Human
Movement
Sciences,
Kinesiology,
sports
and
physical
education
and
a
higher diploma
in
education.
He could
not perform
at
his pre-accident
level
on
returning to work
after the
accident
and
his
contract with the
SAAF was
terminated
at the end of
March 2013. Apart
from
having
a
couple
of teaching
positions,
he
has since
been
unemployed.
5
Merits was
settled
90/10
in
favour
of the
Plaintiff on 08
March
2018.
On 27
November 2019
an
amount
of
R 900
000,
00 was
paid to the
Plaintiff as part of the quantum
settlement
for
part loss of income. The
remainder
of
quantum was
postponed
sine-die. Three
RAF4's
were
completed
by the
plastic
surgeon,
the
neurologist
and
a
DR J Schutte.
General damages
were
referred to the HPSCA for
determination.
The
HPSCA concluded
that
the
injuries were
not serious.
6
In the
Practice
Note filed
by
the
Plaintiff's
legal representatives
it
was said that this
Court was
to decide
on three
issues:
(i)
future
medical expenses,
(ii)
loss of earning
as
a result of the
injuries
resultant from the accident
and
(iii)
general
damages.
The
Expert
Reports:
7
The
Orthopaedic
Surgeons,
Drs.
Oelofse
and
Bogatsu
agree
in their
joint
minutes that
he
incurred the following
injuries:
Head
injury
-
deferred
to
Neurologist
Neck
Injury
-
soft
tissue,
disc
injury
C5/6;
C6/7
Back
Injury
-
soft
tissue,
Ls/S1
intervertebral
disc
space
Left
knee
injury
-
soft
tissue,
medial
meniscus
Dr
Oelofse also diagnoses the
following injuries:
Right
shoulder
-
soft
tissue,
with
rotor
cuff
injury
Chest
injury
8
Dr Oelofse foresees
surgery
for the
neck and the
lumbar spine and arthroscopies
for determination
of
the seriousness
of the
injuries
in
the
Plaintiff's
right
shoulder
and the
left knee.
Dr
Bogatsu foresees
that
conservative
treatment
for
Plaintiff's
injuries will
suffice.
Dr Bogatsu
reports
Plaintiff's
restrictions
will improve
significantly
following
soft
tissue
healing.
He does
not
foresee
the injuries
resulting
in
significant
losses
of
his
employability,
learning
capacity, amenities
or
independence.
9
Dr Oelofse
reports
the
injuries will get
better with
successful
treatment, but will
have
a
lifelong effect
on
his
quality
of
life as the
injuries
in
Plaintiff's
back and
neck
again
degenerate
over time.
Plaintiff's
injuries
rendered
him an
unfair
competitor
in an open
labour
market.
If accommodated
in
a spine friendly working
environment,
5 years
early
retirement
is
foreseen,
else
Dr Oelofse foresees
10
years
early
retirement.
Plaintiff's
head
injury
is referred to
a
neurosurgeon
by agreement
and
Plaintiff
has
no
complaints
about
chest
injuries
on 22
July 2019.
10
Plaintiff did
not
suffer
general
damages,
as
the whole
person
impairment is less than
30%.
Dr Oelofse
remarks
that
Plaintiff qualifies for
general
damages
in terms
of the
narrative test.
Dr
Oelofse
notes the
hospital
records
refer to a
left
shoulder
injury.
Plaintiff
however
insists
he
injured
his right shoulder
in the
motor
vehicle
accident.
11
The
Occupational
Therapists
in
their
joint minute
-
only
signed
by
Ms
van
Rooyen -
recommends
Plaintiff would
benefit
from
attending
7 hours' individual
occupational
therapy,
8 group
sessions,
and 6-8
hourly
sessions
each
of occupational
therapy
after
each
foreseen
surgery.
It is
reported
that
Plaintiff has a
BA
Honours
in Kinesiology,
sports
and
physical
training.
This
is not confirmed
anywhere
else
in
the
expert
reports.
Ms
van
Rooyen
concludes Plaintiff
is
no
longer fit to
occupy
his
previous
position as sports
officer
and
noted Dr Oelofse's
report
in this
regard.
Plaintiff could
however
be employed
as
a teacher
going
forward.
12
Plaintiff would
benefit
from
psychological
intervention
as
he represents with
a
high emotional
component
to
pain
and significant
self-limiting
behaviour. They
agree
that
once
this
difficulty
has been addressed,
Plaintiff's
productivity
and
physical ability
would
improve.
13
Ms
Montwedi
noted
Dr
Bugatso's
opinion
that the
injuries
did
not
result in long term
bodily
impairment,
loss
of bodily function
or
disfigurement.
With good
prognosis
Plaintiff
could
be employable
in a similar job
in
the
open
labour market and work
till
normal
retirement
age.
14
Plaintiff denies that
he
is running a guesthouse
and
says
he is only renting
out
rooms
in his house to
cover
his bond. An
overview
of
Plaintiff's
Nedbank
bank
statements
shows
his income over
a
period of 5 months, which are as follow:
August
2017:
R
1 300,
00; September
2017:
R 7363,
00;
October 2017:
R
11 200,
00;
November
2017:
R 3 400,
00;
December 2017:
R
7200, 00.
15
The Plastic Surgeons, Drs Hoffmann and Berkowitz
agree that the
scarring did not cause a
whole body impairment of 30%. Dr Hoffmann
suggests
dermabrasion and Dr Berkowitz scar
revision as treatment. They agree Plaintiff
did
not suffer
any
loss of amenities
of
life as a result of the scarring.
16
Ms Samouri, the Clinical Psychologist reports
Plaintiff is suffering from
depressive
mood, anxiety and posttraumatic stress disorder. He reports to have
chronic pain. She opines he is not on equal footing as
uninjured counterparts in
an open labour market.
Plaintiff's emotional state may cause clinically significant
distress and impairment in
social,
psychosocial and occupational functioning. He
would
benefit
from psychological
intervention.
17
She consulted with
Plaintiff
on 30 August
2017
and
reports
he is presently
employed
with
Chipa
Tabane
as
a teacher
in
geography
and
social sciences.
Prior,
he was
employed
with
J
Kekana Secondary,
teaching
the
same
subjects.
She
reports four
teaching
position
post-accident.
The
other
experts report
one
of those
positions
prior to
Plaintiff
starting
his career with
the SANDF.
Other
experts
reported
only
two
positions
post-accident.
She also reports
longer
periods
of employment
post-accident
than
the
other
experts.
18
The
I
ndustrial
Psychologists' joint
minutes
are dated
30
January
2018.
Ms
Kalanko had access to the reports of Dr Bugatso and Ms Ndzungu -
cited as
an occupational
therapist. The report of Ms Ndzungu was not presented to this Court.
Dr Fourie had access to the reports Dr Oelofse,
Ms
van Rooyen, Dr Hoffmann and Ms
Samouri, the clinical psychologist.
19
They
conclude
the
Plaintiff
is
no longer suited for
his pre-accident employment
and
should
be compensated
accordingly.
He was
a
captain
at the time
of the
motor
vehicle
accident.
He can
however
assume
employment
as a teacher.
According
to a salary
advice
dated
15 July
2011,
his
salary
at the time
of the
accident
was
R
17
561, 75 per month. The
Industrial
Psychologists
rates
him as semi-skilled,
on
notch R
191
349, 00
in accordance
with
Koch's
2011 Corporate
Survey
Earnings
of
the
Quantum Yearbook.
The 2017
equivalent
rates at R 267 683
per annum.
As
a teacher
he would
be
earning
R 228
984 to R518 205
per
annum
in 2017
value.
20
They
opine
as a teacher
having
taught
more than
12 years
ago,
Plaintiff is at the
entrance
level of the
aforesaid
scale. At the
same
time they
report as a
temporary
teacher
at Zotha
School
for
Disabled
Kids in 2017
he
earned R20 000
per month.
Prior to that
he
earned
R16 000
per month at J
Kekana
School
in 2015.
21
A
letter
from
the
Human
Resources
Department
dated
2018
proposes
that
Plaintiff would
have
progressed
to the
rank
of
major
in 2013
and
possibly lieutenant
colonel
in future.
The
Actuary
get
instructed to calculate
loss
of income
in accordance
with
the
aforesaid
letter.
22
They
agree
Plaintiff should
be
compensated
for
any
medical
expenses relating to the
motor
vehicle
accident.
They
agree
he was
remunerated
for the time
he
spent
off work.
They
note
his contract was
terminated
in March 2013
and
he received
his salary
for
a
year
after termination
of his contract.
They
agree that he will
struggle
to find
employment
as
his
pre-accident
potential was
compromised
post-accident.
They
agree
that
he will
have to
retire
earlier.
They agree
Plaintiff's
physical
impairment
limits
his choice
of
occupation
and
agree
on
a future
loss of
income. They
agree
the assessment
of
contingencies
falls within
the
Court's
prerogative.
23
Plaintiff
reports
to various
experts
he was
involved
in a
motor
vehicle accident
in 2008
and
incurred
the following
injuries:
Right forearm,
right
shoulder,
cervical
spine
injury,
bilateral
knee
injuries
and
a
head
injury.
Plaintiff
tells the experts that
the
injuries
healed
well
and
he never suffered
any
after effects from
the
injuries
and
could
continue
in his position as
physical
officer thereafter.
Issues
to
be decided
by this
Court:
24
In accordance
with
the
Practice
Note, this
Court
is to decide
upon
the following
issues:
(i)
future medical
expenses;
(ii)
loss of earning
as
a result of the
injuries
resultant from
the
accident;
and
(iii)
general
damages.
Law
applicable to the Evidence:
25
Judge Fisher
in
MS
v
Road Accident Fund
(10133/2018)
[2019]
ZAGPJHC 84;
[2019]
3 All
SA
626
(GJ)
(25
March
2019)
held that
the
Judiciary
should
not be blind to the
manner
in which
the
Road Accident
Fund
is being exploited.
She
held that
too
often the
plaintiff
seeks
to
proof the
motor
vehicle accident
as the
causation
of
his injuries
by
filing
an array of expert
witness reports
(at great
costs),
which
reports
are compiled
by
way
of facts
related by
the
plaintiff to the expert
and some
clinical findings.
This
is
especially
prevalent
in cases where
injuries are
less obvious.
26
The judgement further
sets
out
a
four
tier
enquiry
by
which
Road Accident
Fund matters
should
be evaluated.
Firstly
and
in
order
to justify
the merits,
it
should
be established
whether
the
accident was
caused
by the negligence
of
the
insured
driver.
The
second
and
third
legs
of the
investigation
involve establishing
whether
the
plaintiff
sustained
the alleged
injuries
in
the accident
and
how the
proven
injuries
have
affected the
Plaintiff? Only
once this has
been
established
can quantum
be addressed.
The
fourth
leg
of the investigation
entails
determining
how
the
plaintiff should
be remunerated for the effects
of
such
injuries.
27
At
36
it was
held
that the
quantum
for the
loss
of future
income to be
awarded
to the
plaintiff
is
a matter of estimation
to
be dealt with
by
the Court in its wide
discretion,
as
it is
based on uncertain future
events.
The
learned Judge
remarks
at
37:
"
The
parties
routinely
seek
to assist the court in
this assessment
of the amount payable
by resort
to
the expertise
of
an actuary.
This
is not an obligatory approach
to
the quantification
of
damages
and a
court should be careful not
to
treat these reports
as
if they are scientific
data
and the approach
directive."
28
At
41 the
Judge
remarks
on the
actuarial
manner
of
calculation
of quantum
and the
application
of contingencies as follow:
"...
This mechanism
should
not be
understood
as
being
prescriptive
or
confining
of
the
a
ssessment
that the court is
called
on
to make.
The
court has
a
wide
discretion
as
to the assessment
of
loss. This task is judicial
and
is founded
to
a
large
extent
on experience,
intuition
and general
right
thinking.
”
29
I must
align
myself with
Judge
Fisher who
at
78 cautions that the funds
in
the
Road Accident
Fund are
"precious
public
monies".
I also take
heed
of Judge
Fishers warning
that
"
Court should be alert to
a
lack
of
circumspection
in
the briefing
of
experts
and the
employment
of
other resources
in
the conduct
of
a
case, on the basis
that it is assumed
that RAF
will
absorb
all the
costs
as
a
matter
of
course."
The
Law applied to the
Evidence:
30
The
identity
of the
Plaintiff was
verified.
On
strength
of the
report of Ms Samouri and the affidavits
of the
Plaintiff
and the
investigating
officer,
the
motor vehicle
accident
took
place at an
intersection,
and
it might be that the
Plaintiff's vehicle was
hit
on the
righthand
side, the driver's
side
-
either whilst
turning
or
proceeding
straight.
It is
not
clear.
However, merits were
settled
90/10
in favour of the
Plaintiff
on 08
March 2018
already.
31
The
Plaintiff
on
his
affidavit
states
his
left
shoulder
as
having
been
injured
in the
motor vehicle
accident
under
review
(hereinafter
referred
to
as
the
"2012 accident'}.
The affidavit
by
the
investigating
officer
and
the
RAF
1
confirm
same. The
hospital
records
indicate that
numerous
x-rays
were
taken
of
the
left shoulder, after
Plaintiff repeatedly complained of pain in
his
left
shoulder.
Notwithstanding,
Plaintiff
insists that
he injured his
right shoulder
in the
2012
accident.
32
In fact,
the
only "new"
injury
Plaintiff was
diagnosed
with
in
the 2012 accident was
the
injury to
his
lumbar
spine.
Plaintiff
reports
to
Ms van
Rooyen having suffered
back
spasms
in his right shoulder
after
the
2008
motor
vehicle accident
as well.
Dr Oelofse
and
Ms
Fouche
remark
Plaintiff's
productivity
will
be compromised
as the
degeneration
of
his
injuries
start,
after the
initial soft tissue
healing.
This
Court
has not been convinced
the
motor vehicle
accident
under
review
is the sole
cause
of
Plaintiff's
loss of
physical
capacity.
Plaintiff already
incurred the
bulk
of these
injuries
in 2008,
in
the
previous
motor vehicle accident.
Ad
loss of
income:
33
In
Dippenaar
v Shield Insurance Co Ltd
1
979
(2) SA 904
(A) it was
held
that:
"In
our law,
under
the lex Aquilia,
the
defendant
must
make good
the
difference between
the
value of the plaintiff's
estate
after
the commission
of
the
delict
and the
value it
would
have
had
if
the
delict had not
been
committed
...."
34
On
Plaintiff's
own version
he
is employable
post-accident.
On
his
own version
he earned
R 20
000
per month teaching
at
Zotha
School for
disabled kids
in
2017.
In 2015
he earned
R
16 000
per
month teaching.
The
occupational therapists
reported
Plaintiff
is
employable
as a teacher
going forward.
Taking
his qualifications,
age
and
recent experience
into consideration,
it
is doubted
he will fall
into the
bracket
of a
newly
graduated
teacher.
I
am
convinced
he will
earn the same,
if
not more than
he did
at the time of the
accident.
He clearly
also
has an ancillary
income
from the
rooms
he rents out from time to time.
35
A
letter
from
human
resources,
suggesting
that
Plaintiff
would
have been promoted
does
not
suffice.
A
report
on
his work
performance
by his commanding officer
or
direct
head would
have been more convincing.
One does
not
get promoted
automatically
after
every
so
many
years.
Promotion
is dependent
on
one's work
performance,
diligence,
availability
of
positions
etc.
Plaintiff
was
a captain
at the time
of
the
motor vehicle
accident.
For
the
purposes
of judgement he will
be
considered
as such.
In respect of future
loss
of earnings
and
loss of earnings
and
earning
capacity,
I cannot
agree
with the
submission
by the Plaintiff.
36
The
Plaintiff
was
remunerated
for the
period
he was
off
work,
following the accident.
He was
remunerated
for
a year
after termination
of
his contract with the
SANDF,
which would
be
up to
March 2014.
Unfortunately
no
bank statements
were
made available
to
Court for the
period.
In August
2017
Plaintiff tells
Ms
Samouri
he is employed
at
Chipa
Tabane.
He
does
not divulge this
information to any other
of
the experts.
This
Court
cannot
establish
on a scale
of probabilities
for
which
period following
the
accident
the
Plaintiff
was
employed.
37
It is conceded
however,
that there
might
be times
that
Plaintiff was unemployed
or
may
in
future
be unemployed,
following
upon
the
motor vehicle accident.
He was
already
paid an amount
of
R 900 000,
00 by the
Defendant
on
27
November
2019
in
respect of quantum
for
part
loss
of income, which
I believe
would
suffice
for those
periods
he might be- or was
so
unemployed, which periods the
Court
cannot
distinguish-
or
foretell
with
certainty.
38
The
actuarial
calculations
are
based
upon
the
guidelines
from the industrial
psychologists,
which
I am
not
prepared to
accept.
Plaintiff's
post
morbid
income was
calculated
on
the
bottom scale
of teachers
with
a four year qualification.
The
pre-morbid
income was
calculated
with
consideration
of
possible
promotions,
which
are
not
considered
to
have
been
proven.
Ad
General
Damages:
39
General
Damages
are only
payable
in an
instance
of whole
body
impairment
of 30%
and
more.
Where
a whole
body
impairment
of 30%
cannot
be shown,
the
narrative test
shall
apply, which
test
involves
injuries
that...
(a)
Resulted
in
serious
long
term impairment
or loss
of
bodily
function;
(b)
constitutes
permanent
serious
disfigurement;
(c)
resulted
in
severe
long
term
mental
or severe
long
term behavioural disturbance
or disorder;
and
(d)
resulted in the loss
of
a
foetus.
(Regulation
3(1)(b)(ii
i
) of the Road
Accident
Fund Regulations,
2008).
40
Where the
Defendant
rejects a claim,
it
shall
in terms
of the
Regulations
to the Act
be referred
to the
HPCSA
for
decision
on the seriousness
of
the injuries. The
present
claim was
referred
and
so
rejected
by
the
HPCSA. The Plaintiff
is highly
opportunistic
in requesting
this
Court to
reconsider
general damages.
Conclusion:
41
The
Plaintiff's
claim for
any further
past or future
loss
of
income and
I
or income
earning
capacity
cannot
succeed. An amount
of
R
1 000
000,
00 was granted-
and the
Defendant
ordered to
pay
R900 000,
00
to the
Plaintiff on 27
November
2019
already.
42
The
Plaintiff's
claim for
general
damages
cannot
succeed;
43
The
Plaintiff
will
need
assistance
with
future
medical
expenses.
No past medical
expenses
were
proven.
Order:
1
The
claim
for
the
remainder
of
quantum
in respect of
loss of
income
and
loss
of earning
capacity
is dismissed.
2
The
claim
for
general
damages
is
dismissed;
3
The
Defendant
is ordered to furnish
the
Plaintiff
with
an undertaking
in terms
of
Section
17(4)(a)
of the
Road
Accident
Fund, Act
56 of
1996
,
which
shall
include the
reasonable
costs
associated
with
treatment
of the Plaintiff's
psychological
health;
4
The
Defendant
is ordered
to
pay the
Plaintiff's
taxed
party and
party costs inclusive of the
costs of counsel
for
preparation
and
appearance,
and
the expert
witnesses'
reports
but
exclusive
of the
costs
of
their
reservation for trial.
D
PICK
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
FOR
THE PLAINTIFF: ADV. C VERMAAK
CVERMAAK@ADVOCATE
SA.CO.ZA
083
488 4638
ANKE
ROTHMAN
NELL.INC2@CORNENELUNC.
CO.ZA
(012)
460
2871
FOR
DEFENDANT:
RAF
MULANGAWAWE
DASWA
CLAIM
NO. 326/12073081/10/1