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[2019] ZAGPPHC 477
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Du Plessis v Road Accident Fund (97446/2015) [2019] ZAGPPHC 477 (13 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: 97446/2015
13/5/2019
In
the matter between:
J
J DU
PLESSIS
PLAINTIFF
AND
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
STRIJDOM
AJ
INTRODUCTION
[1]
The plaintiff instituted action against
the defendant as a result of injuries that she sustained on the 23rd
November 2014. The
plaintiff alleges that approximately 11h00 and on
the N2 highway near Kwambcinambi, a motor vehicle collision occurred
when motor
vehicle [….] driven by Barry Sparks, and In which
vehicle the plaintiff was transported as a passenger collided with
motor
vehicle [….] driven by SM Mthembu.
[2]
As a result of the collision, the
plaintiff sustained the following injuries:
2.1
A
fracture dislocation of the cervical spine C5/C6 and cervical
myelopathy as a result of spinal cord injury;
2.2
Quadriparresis at motor level C7 and
sensory level T2/3;
2.3
Permanent disability and inability to
move upper and lower limbs;
2.4
Lack of sphincter function;
2.5
Respiratory distress requiring
intubation and extensive treatment;
2.6
Development of diabetes insipudis
following treatment;
2.7
Extensive lacerations, abrasions and
permanent cosmetic disfigurement;
2.8
Blow to head and neck;
2.9
Extensive pain, suffering and
discomfort;
2.10
Psychological stress, trauma and
depression as a result of permanent state of disability;
2.11
Loss of ability to mobilise, walk and to
lead a normal life.
[3]
The plaintiffs' claim is for an amount
of R5 785 161 78 made up as follows:
3.1
Past medical,
hospital and related expenses; R785 161.78
3.2
Future Medical, hospital and related
expenses: Undertaking
3.3
Loss of earnings/ earnings
capacity
R2
500 000.00
3.4
General damages
R2 500 000.00
Total
R5
785 161 .78
[4]
Merits were previously conceded, the
defendant accepting 100% liability to compensate the plaintiff for
her agreed or proven damages.
[5]
It was furthermore recorded that the
defendant shall furnish the plaintiff with an undertaking in terms of
section 14(4)(a) and
in terms of which it would compensate the
plaintiff for the costs of the future hospital, medical and related
expenses pertaining
to the injuries sustained by the plaintiff as a
result of the collision.
[6]
General damages were settled.
[7]
Past medical, hospital and related
expenses were settled in the amount of R438 861.22 .
[8]
The parties agreed
that the only remaining issues requiring adjudication as part of
(past medical, hospital and related expenses)
are those in respect of
the costs of a wheelchair, accessible motor vehicle, the registration
costs, and the provision of a new
car battery for the vehicle in
total amounting to R732 720.46. The defendant denies that these
requirements are the liability of
the defendant.
[9]
The defendant admitted the contents of
the following reports of the plaintiffs' experts.
9.1
Report by A Greeff Occupational
Therapist.
9.2
Report by Dr S Buckley, Rehabilitation
Specialist.
[10] The
defendant belatedly employed
Ms M
Setoaba, Occupational
Therapist.
[11]
In a Pre-trial dated 16 April 2019 the
plaintiff provided the defendant with a bundle of documents which it
intends using at the
trial. The parties agreed that copies of
documents shall be used for this purpose and that the authenticity of
the original documents
so copied shall not be in issue. It was
furthermore agreed that the documents shall be what they purport to
be without admission
of the correctness of the contents thereof, save
as, otherwise agreed.
[12]
it was further admitted by the
defendants that the plaintiff did not possess her own vehicle in
Australia prior to the accident
in question and that the defendant
had been advised thereof by the plaintiffs' attorneys on 11 April
2019.
[13]
The plaintiff called one expert witness,
to
wit Ms A
Greeff
(Occupational Therapist). No evidence was tendered by the defendant.
The
Evidence of s Anneke Greeff (Occupational Therapist)
[14]
Ms Greeff testified that she compiled a
Medico-Legal Report regarding the plaintiff on 14 March 2019 as well
as an addendum dated
9 April 2019.
[15]
She testified that the plaintiff
demonstrates a cervical level quadriplegia/ tetraplegia (C6).
[16]
During the inspection in loco done by Ms
Greeff at the residence of the plaintiff it was noted that the
plaintiff procured a 2"d
hand 2009 Toyota Foxy model vehicle in
June 2013. It was further noted that she requires assistance either
from her husband or
from her care giver to gain entrance into the
vehicle via the lift as it is not a hydraulic lift. The ideal would
be for her to
have a hydraulic lift that she could operate herself
thus negating reliance on others.
[17]
Ms Greeff further testified that the
plaintiff had her vehicle adjusted to a park Ride vehicle as
Pre-requisite for a wheelchair
dependant individual. The reasons for
affording such costs include but are not limited to:-
17.1
Avoiding the need for transferring from
a wheelchair into a vehicle. This is a risk for pathological
fractures for the plaintiff.
17.2
The fact that she doesn't have access to
fulltime caregiving who can assist with such transfers.
17.3
The fact that she does not have
sufficient upper extremity strength to facilitate independent
transfers.
[18]
She testified that the plaintiff does
not wish to be able to. drive and prefers a Park Ride vehicle. The
plaintiff noted that she
does not trust her hand function, nor does
she trust her vision to allow for independent driving. The plaintiff
has a L sided glass
eye.
[19]
Ms Greeff testified that the daily
routine of the plaintiff can be summarised as follows:
19.1
On
Mondays
the plaintiff will go to a shop that
is 500 m from her house. She is expected to cover this area with her
electric wheelchair. Online
shopping at this stage is not a option.
19.2
On
Tuesdays
she will spend 2 hours involved with
administration due to problems with affording delivery costs.
19.3
On
Wednesdays
she normally tries to go to Bible
study with her friend that takes her. In the last 6 months she also
started attending church every
2
nd
Sunday with her caregiver taking her to church.
19.4
On
Thursdays
she has 4 hour extra caregiving
normally between 10h00 and 14h00 alternatively between 11h00 and
15h00. On these days her caregiver
will take her for a haircut at the
Salon or she will attend her scheduled medical or therapeutic
appointments.
19.5
On
Fridays
she will attend sessions with the
Physiotherapist or the Exercise Physiologist at sporting Wheelies
Gym.
19.6
Most ·of her weekends are spent
at the house, sitting in her wheelchair or lying in her bed.
[20]
Ms Greeff concluded that the plaintiff
needs to at all times have access to a vehicle and cannot afford to
have car trouble. She
further concluded that the plaintiff did not
have a vehicle for her own use prior to the accident and that
post-accident she is
only able to be transported with a vehicle that
is wheelchair accessible. She is not able to transfer herself
independently and
her caregivers are not able to assist with
transfers unless they can use the mobile hoist which cannot be taken
into the garage
or outside to assist with such transfers.
[21]
The evidence of Ms Greeff was not
seriously contested by the defendant in cross examination. She was
able to logically substantiate
her evidence thereby reinforcing it.
Her evidence is also corroborated by the expert opinion of Dr Buckley
(Rehabilitation Specialist).
In my view Ms Greeff was a reliable
witness who made a favourable impression on the court.
The Evidence of Dr D Buckley, Rehabilitation
Specialist.
[22]
Dr Buckley stated that the plaintiff
demonstrates a cervical level quadriplegia (tetraplegia) at the C6
level. Her injury is described
as "complete" because there
is no significant movement below the level of the lesion, and no
preservation of sensation
in the sacral or perinea! region. As a
result she has paralysis of her legs, trunk and hands. She has a
neuropathic bladder, bowel
and sexual function and neuropathic pain.
She is totally dependent upon the care of others in every function
and her condition
is permanent.
[23]
He concluded that the plaintiff must
have a wheelchair accessible vehicle and the vehicle should have the
following specifications:
"Wheelchair access should be from the
side, and there should be an electric hoist to gain access to the
vehicle. There should
be appropriate tie down points for the
wheelchair in the vehicle. The vehicle should have windows so that
the wheelchair bound
person and passenger\carers do not get car sick,
being unable to see out the windows, and the vehicle should have
appropriate passenger
style suspensions as stiff suspension in
delivery vans causes excessive head movement and neck stress for the
tetraplegic, with
poor musculature. The vehicle should be equipped
with a mobile phone to allow the carers to summon assistance should
any difficult
arise. He is in agreement that the plaintiff requires a
wheelchair accessible vehicle."
[24]
Ms M Setoaba, occupational therapist in
paragraph 4 of her report, page 9 thereof, concluded that.
"Thus I agree to the purchase of a WAV
and the vehicle registration thereof. Having
a
WAV allows for her caregivers to be
able to drive her to her appointments and other areas without having
to book for a hired wheelchair
accessible vehicle."
[25]
A notice in terms of Rule 35(9) dated 28
November 2018 was served on the defendant indicating the 'Essential
Equipment" needed
by the plaintiff and the costs for inter alia
the wheelchair accessible motor vehicle, a new battery and the
registration of the
vehicle.
[26]
It was submitted by counsel for the
defendant that the plaintiff can be compensated for the costs of the
conversion of the vehicle
but the defendant is not liable to
compensate the plaintiff for the purchase of the vehicle and a new
battery. It was further submitted
that the plaintiff was already
compensated for general damages and that it would be unreasonable to
compensate plaintiff for the
purchase of a vehicle and a new battery.
I disagree with this submission. The Past medical expenses does not
form part of General
damages and must be adjudicated separately.
[27]
Section 17(1) of the Road Accident Fund
Act 56 of 1996(as amended) provides as follows:
"The Fund or an agent shall
(a)
subject to this Act, in the case
for a claim for compensation under this section arising from the
driving of
a
motor
vehicle where the identity of the owner or the driver thereof has
been established;
(b)
...,
be
obliged to compensate any person (the third party) for any loss or
damage which the third party had suffered as
a
result of any bodily injury to
himself or herself or the death of or any bodily injury to any other
person, caused by or arising
from the driving of
a
motor vehicle by any person, at any
place within the Republic, if the injury or death is due to the
negligence or other wrongful
act of the driver..."
[28]
The facts in this matter present a
depressing picture. Disabled people are often unable to access or
participate in public or private
life because the means to do so are
designed for able bodied people. The result is that disabled people
can without positive action,
easily be pushed to the margins of
society.
[29]
Section 9 of The Bill of Rights provides
that:
"(1) Everyone is equal before the law
and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal
employment of all rights and freedom. To promote the achievements of
equality, legislative
and other measures designed to protect or
advances persons, or categories of persons, disadvantaged by unfair
discrimination may
be taken."
[30]
To deny compensation for the plaintiff
in respect of essential equipment can constitute unfair
discrimination on the grounds of
disability and would be
unreasonable.
[31]
Having considered the various
medico-legal reports, the legal approaches and the submissions by
both counsel for the parties, I
am persuaded that the defendant must
be held liable to compensate the plaintiff for the purchase of a
vehicle, the conversion,
a new battery for the vehicle and
registration costs.
[32]
In the result, I make the following
order,
The draft Order annexed hereto and marked "X"
is made an order of this court.
JJ STRIJDOM
ACTING JUDGE OF THE HIGH COURT
Matter
heard on
18 April 2019
Judgment
delivered:
13 May 2019
Counsel for Plaintiff:
Adv G W Alberts SC
Attorney for Plaintiff:
Savage Jooste & Adams Attorneys
Counsel
for Defendant: Adv M Kekana
Attorney
for Defendant: Diale Magoshoa
Attorneys.
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
HIGH COURT, PRETORIA
BEFORE
THE HONOURABLE STRIJDOM (AJ)
18
APRIL 2019
CASE NO:
97446/2015
In
the matter between:
J
DU PLESSIS
PLAINTIFF
-and-
THE
ROAD ACCIDENT FUND
DEFENDANT
DRAFT
COURT ORDER
AFTER
HEARING COUNSEL FOR BOTH PARTIES,
the
following order is made:
1.
The Defendant is to pay
the Plaintiff a total Capital amount
R
732, 720.46 (Seven hundred and thirty two thousand seven hundred and
twenty rand and forty six cents)
respect
of the Plaintiffs claim for past medical, hospital and related
expenses, which amount shall be paid into the trust account
of Savage
Jooste & Adams, Nedbank name: NEDCOR - ARCADIA, Branch code:
16-33-45-07, Account no: [….] , under Reference:
RGH/RF63
1.1 The above
mentioned amount consists of the following:
1.1.1 R438 861.22
(Four Hundred and Thirty Eight Thousand Eight Hundred and Sixty One
Rand and Twenty
Two Cents) in respect of past medical hospital and
related expenses as settled between the parties;
1.1.2 R
293,
859.24 (two hundred and ninety three thousand eight hundred and fifty
nine rand and twenty four cents)
in respect of costs relating to
the wheelchair accessible motor vehicle, the registration costs of
this vehicle and the provision
of a new car battery for the said
vehicle, as ordered by the Court.
1.2
The capital amount shall be paid into
the above-mentioned trust account of Savage Jooste & Adams within
14 (FOURTEEN) days from
the date of this order;
1.3
Should the Defendant fail to make
payment of the capital within 14 (FOURTEEN) days from the date
hereof, the Defendant will be liable
for interest on the amount due
to the Plaintiff at the prescribed rate per annum, from the 15
th
(fifteenth) day from the date of this order, to the date of final
payment;
2.
The Defendant is ordered to pay the Plaintiffs
costs of suit to date on the party and party High Court scale, which
costs include
(but not be limited to):
2.1
The costs of the following expert
reports:
2.1.1
Dr Stephen Buckley, Rehabilitation
Specialist;
2.1.2
Ms Anneke Greeff, Occupational
Therapist.
2.2
The costs of Ms Greeff's attendance in
Brisbon (Australia) during January 2019 to conduct an inspection of
the Plaintiff's residence
as well as a consultation with the
Plaintiff for purposes of a medico-legal assessment, which includes
the reasonable attendance
costs, accommodation costs and flight
costs;
2.3
Ms Greeff is declared a necessary
witness to give evidence in Court on 18 April 2019 and the Defendant
is ordered to pay her reservation
fee for 18 April 2019, reasonable
travelling costs and attendance fee at Court on 18 April 2019;
2.4
The costs of the preparation of 4 trial
bundles as per the Gauteng High Court Directives;
2.5
The costs of Senior counsel;
2.6
The costs of the Plaintiffs attorneys,
which includes reasonable travelling costs, costs for preparing for
Pre-Trial Conferences,
and costs for actual attendances to Pre-Trial
Conferences, Pre-Trial Agenda's, and Pre-trial minutes, all costs for
preparing for
trial and attendance to trial, costs of formulating the
draft order, Request for Further Particulars and all Rule 35(9)
notices
to date;
2.7
The reasonable costs for preparation for
trial for Plaintiffs attorneys;
2.8
The reasonable costs associated with
consulting the experts.
3.
Should the Defendant fail to pay the
Plaintiff's party & party costs as taxed or agreed with 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.
4.
The
Plaintiff shall, in the event that the parties are not in agreement
as to the costs referred to in paragraph 2 above, serve
the notice of
taxation on the Defendant's attorneys and shall allow the Defendant
seven court days to make payment of the taxed
costs.
5.
The taxed or agreed costs, as referred to
above, shall be paid into the trust account of Savage Jooste &
Adams: NEDCOR -ARCADIA,
Branch code: 16-33-45-07, Account no:
[….], under Reference: RGH/RF63
6.
There
is no contingency fee agreement applicable.
By
order
Registrar
Obo
Plaintiff - Adv G W Alberts (082 499 2000)
Obo
Defendant - Adv Morgan Kekana (073 160 1256)