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[2019] ZAFSHC 42
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Jacobs v The Road Accident Fund (4558/2012) [2019] ZAFSHC 42 (2 May 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
Case
No.: 4558/2012
In
the matter between:
KARIN
JACOBS
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT:
MOENG,
AJ
HEARD
ON:
24 and 26 APRIL 2019
DELIVERED
ON:
2 MAY 2019
[1] The
plaintiff claims damages in the amount of R 3 130 484. 99 from the
defendant arising
from bodily injuries sustained in a road accident
which occurred on 29 July 2009 at the corner of Watkey and Rhodes
Avenue Bloemfontein,
between the insured motor vehicle and a
motorcycle ridden by the plaintiff.
[2] On
29 July 2014 the issues of negligence and liability were settled and
the parties agreed that
the defendant would be liable for 95% of the
plaintiff’s agreed or proven damages.
The
parties could however not agree on the extent of the plaintiff’s
general and special damages. The matter now serves before
me for
determination of the quantum of the claim.
[3]
The
2005 amendments to the 1996 Road Accident Fund Act and regulations
limited the Fund's liability to compensate victims of accidents
by
providing that it would pay general damages only if a 'serious
injury' was sustained. I was informed at the commencement of
the
proceedings that the Fund has rejected the report relating to the
plaintiff’s injuries as it was not satisfied that such
injuries
were serious. The dispute resolution mechanisms as referred to in the
regulations have not yet been concluded and the
Fund has resultantly
referred the matter to its health department for assessment.
[4] It
is trite that the
decision
on whether an injury is serious enough to qualify for general damages
is conferred on the Fund and not the court.
The
following passage from
Road
Accident Fund v Duma
and
Three Similar Cases
2013
(6) SA 9
(SCA)
is
instructive in this regard;
'The
decision whether or not the injury of a third party is serious enough
to meet the threshold requirement for an award of general
damages was
conferred on the Fund and not the court. That much appears from the
stipulation in reg 3(3)
(c)
that the Fund shall only be obliged
to pay general damages if the Fund and not the court is satisfied
that the injury has been correctly
assessed in accordance with the
RAF 4 form as serious. Unless the Fund is so satisfied the plaintiff
simply has no claim for general
damages. This means that unless the
plaintiff can establish the jurisdictional fact that the Fund is so
satisfied, the court has
no jurisdiction to entertain the claim for
general damages against the Fund. Stated somewhat differently, in
order for the court
to consider a claim for general damages, the
third party must satisfy the Fund, not the court, that his or her
injury was serious.'
[5] This
court could admittedly not adjudicate the issue relating to the
plaintiff’s general
damages and same was separated from the
rest of the issues. What has to be decided is whether the Fund is
liable to compensate
the plaintiff for her past and future medical
and hospital expenses, as well as her
past
and future loss of income.
[6] The
plaintiff, Janene White (Industrial Psychologist), Paul Greeff
(Counselling Psychologist) and
Willem Boshoff (Munro Actuaries)
testified in support of the plaintiff’s case, whereas the
defendant did not adduce any evidence
in rebuttal of the plaintiff’s
case. From what I could deduce, the only issue that the defendant
seriously challenged relates
to the
orthopaedic
opinion
that, if accommodated, provision should be made for the plaintiff to
go on five years earlier retirement. No effort was
made to challenge
the rest of the issues relating to the plaintiff’s
past
and future medical and hospital expenses, as well as her
past
loss of income.
[7] The
following documents were handed into the record as Exhibit A to C
respectively: Joint minutes
between the
Orthopaedic
Surgeons
Drs. Oelofse and Bogatsu, Occupational Therapists Mrs. L Liebenberg
and Mrs. S Moagi as well as the Industrial Psychologists
Janene White
and Moipone Kheswa. Plaintiff’s trial bundle which inter alia
dealt with her past medical expenses was also
handed in during her
testimony.
[8] It
is not in dispute that the plaintiff, a 46 year old female, is a
member of the South African
Police Services. She started her career
in the police service on 1 August 1998 as a student constable and
progressed to the position
of Warrant Officer in 2007. She was a
detective prior to the accident. She was transferred to an
administrative position after
the accident as she could not meet the
operational demands of detective work due to her physical condition
after the accident.
She is currently stationed at the Crime
Intelligence Unit as an Analyst. She has as a result of her transfer
to an administrative
position lost a number of allowances that
operational members receive.
[9] She
testified that her current position requires of her to sit in front
of a computer for prolonged
periods. This causes her back to go into
spasms and she as a result endures extreme pain which radiates down
her legs. Her foot
is constantly swollen and she has to wear special
shoes. She suffers from recurrent migraines
as
well as neck and shoulder pain. She testified that ten years later,
the pain has become more intense.
[10] The
Orthopaedic
Surgeons
agreed in their joint minute that the plaintiff sustained spinal,
left forearm, right hand, right ankle as well as foot
injuries for
which she was
hospitalised
and
received medical treatment after the accident. They further agree
that provision should be made for different forms of future
treatment
and medication. They further agree that the injuries had a profound
impact on her amenities of life and will continue
to do so in the
future.
[11] They
agree that her
orthopaedic
injuries:
(i) have resulted in significant losses of her employment capacity
and independence, (ii) that she is now an unfair competitor
in the
open
labour
market,
(iii) that she must be accommodated in a light duty and sedentary
environment, (iv) that she will never be able to do physical
labour
and
(v) if accommodated, provision must be made for five years earlier
retirement.
[12] The
Occupational Therapists agree that the plaintiff does not meet the
full operational requirements
of her pre and post-accident work as a
detective and that her limitations render her vulnerable in an open
labour
market.
They agree that she is best suited for sedentary work and that even
with such sedentary work, rest breaks would be essential
resulting in
decreased work speed. They lastly agree that based on her prognosis
of a degeneration of the spine and the degenerative
joint disease of
the right lower limb as well as possible future surgery, she will not
be able to continue performing full range
light work until normal
retirement age.
[13] Janene
White, an Industrial Psychologist testified that she compiled two
reports and a joint minute with Moipone
Kheswa. She deferred the
issue relating to the post-accident retirement age in her 2015 report
and likewise did so in her March
2019 addendum report. She deferred
this aspect in her 2015 report as it was not indicated by the first
Orthopaedic Surgeon, Dr.
Ziervogel and also deferred same in her
addendum report as Dr. Bogatsu likewise did not indicate same.
[14] She
testified that Dr. Oelofse, in his report dated 31 October 2017,
opined that if accommodated in a light
duty/sedentary position, the
plaintiff will be able to work to the retirement age of sixty years
but if not accommodated in a light
duty/sedentary position, she will
only be able to work for another five years. She was provided with a
joint minute in April 2019,
compiled on 6 November 2018 by Drs.
Bogatsu and Oelofse. From this minute, the Surgeons agreed that if
accommodated, provision
must be made for five years earlier
retirement. It is upon this agreement that she concluded in her joint
minute that provision
must be made for five years earlier retirement.
She proposed a higher contingency for the ongoing influence of the
orthopedic and
psychological deficits and the plaintiff’s
significantly restricted ability to compete in the open labour
market.
[15] Paul
Greeff, a registered Counselling Psychologist conducted clinical
interviews and assessed the plaintiff.
He testified that prior to the
accident; the plaintiff was involved in a traumatic incident in 2007
where a perpetrator attempted
to shoot her. She was diagnosed with
major depression and was admitted to a private psychiatric facility
and she was treated accordingly.
He could however not tell whether
that depressive episode contributed to her current state of
depression.
[16] The
plaintiff conversely testified that the said treatment was
successfully concluded and she was promoted
to another position
thereafter. She says she would not have been promoted had her
condition not improved. Greeff further testified
that the plaintiff
had feelings of worthlessness and ineffectiveness as she could not
perform the duties that she was employed
for in the police services.
This, according to his updated report led to recurrent depression on
a moderate level as opposed to
his first diagnosis of mild recurrent
depression. The plaintiff’s condition therefore deteriorated.
[17] Willem
Hendrik Boshoff is a Fellow of the actuarial society of South Africa.
He was instructed to estimate
the capital value of the potential loss
of earnings suffered by the plaintiff. The claim and his resultant
calculations were premised
on the basis that the plaintiff did not
receive service allowances from September 2009, that she is expected
to retire five years
earlier, that she has been rendered a vulnerable
employee and that she might suffer losses that are not directly
quantifiable hence
such losses will be addressed via contingencies.
The contingencies that he was instructed to apply were 10% for the
position before
the accident and 30% for the position post the
accident.
[18] He
looked at her career path had the accident not taken place and had
regard to her current position post
the accident. His calculations
were based on the reports of Janene White and those of Drs. Bogatsu
and
Oelofse
as
well as the salary advices provided. The plaintiff's past uninjured
income or the but for the accident injuries was calculated
to be R 2
770 800 and for post the accident or the injured earnings was
calculated to be R 2 737 200 to which the RAF cap, a contingency
and
apportionment deduction was applied, resulting in a net past loss of
R 31 920. Her future earnings but for the accident was
likewise
calculated to be R 4 644 000 and for post the accident was calculated
to be R 3 077 000 to which the
RAF cap, a
contingency and apportionment deduction was applied, resulting in a
net future loss of R 1 540 900. This in essence
concluded the
plaintiff’s case.
[19] As
indicated earlier, the plaintiff’s evidence regarding her
past and future medical
and hospital expenses as well as her
past
loss of income was not challenged. The accuracy of the actuarial
calculations and the reasonableness of the respective contingencies,
save for the issue of the early retirement, was likewise not
challenged. The evidence in this regard is therefore undisputed. I
do
not deem it necessary to deal with same any further and I will regard
these issues as proven.
[20] Counsel
for the Fund argued that plaintiff’s claim for future loss of
income should be dismissed. He
equally argued that the only loss of
income that the plaintiff suffered is the allowances that she
forfeited after having been
transferred to an administrative
position. He placed considerable emphasis on the report by Dr.
Oelofse that the plaintiff will
be able to work until the retirement
age of sixty years if she is accommodated in a sedentary position.
[21] I
believe that it will be prudent to place this argument in context. It
is common cause that plaintiff obtained
two
Orthopaedic
Surgeon
reports from Drs. Ziervogel and Oelofse, whereas the defendant
obtained a report from Dr. Bogatsu. Both Drs. Ziervogel and
Bogatsu,
in their reports dated 16 May 2012 and 5 March 2018 respectively, did
not express an opinion on whether the plaintiff
will be able to work
until the retirement age of sixty years. Dr. Oelofse, in his report
dated 31 October 2017, opined that if
accommodated in a light
duty/sedentary position, the plaintiff will be able to work to the
retirement age of sixty years but if
not accommodated in a light
duty/sedentary position, she will only be able to work for another
five years.
[22] Subsequent
to these reports, Drs. Oelofse and Bogatsu compiled a joint minute on
6 November 2018 and they
agreed that if accommodated, provision must
be made for five years earlier retirement. It is based on this joint
minute that the
Industrial Psychologist Janene White noted that
provision must be made for five years earlier retirement. One should
likewise not
lose sight of the joint minute compiled by the
Occupational Therapists, Messrs. Liebenberg and Moagi in which they
agree that the
plaintiff will not be able to continue full range
light work up until normal retirement age as a result of a
degeneration of the
spine and degenerative joint disease of the right
lower limb.
[23] During
deliberations, counsel for the Fund sought to distance the Fund from
the agreement reached by its expert
and sought to rely on what Dr.
Oelofse concluded in his prior report. Counsel indicated at the
commencement of the proceedings
that the joint minutes should be read
in conjunction with the initial reports. In so doing he in my view
did not seek to repudiate
Bogatsu’s agreement in the joint
minute but simply sought an interpretation that would accord with
what Oelofse had opined.
This opinion is admittedly contrary to the
joint minute.
[24] The
purpose of a joint minute is undeniably to limit
the
issues to be tried and which expert evidence has to be presented. The
joint minute was completed as early as
November
2018 and in the absence of an indication from the Fund that it did
not wish to be bound by the agreement entered into by
its expert, the
plaintiff was entitled to assume that the matters agreed to between
the experts were not in dispute. It would in
my view be prejudicial
for a litigant to agree with another that a certain aspect is common
cause only for his adversary to renege
at the trial and take a stance
that is contrary to the agreement.
[25] Where
experts in a joint minute reach an agreement on an issue, they
signify that such an issue need not be
adjudicated upon as the
initial dispute simply does not exist. Unlike in an expert report
where the factual basis upon which the
expert opinion hinges is
indicated, parties to a joint minute do not indicate such factual
basis. They in essence simply agree
that a fact or opinion is not in
dispute and it will in the normal course of events not be open for a
court to cut the veil of
such an agreement and question the veracity
of the facts or opinion contained therein. By having reached an
agreement, they put
the dispute beyond the need for adjudication.
[26] What
counsel for the Fund seeks to achieve is for me to go beyond the
agreement and accept facts or opinions
that are at variance with the
latter agreement. I do not believe that the circumstances warrant
such an approach. If the Fund intended
to retract their concession on
the earlier retirement issue, they should have done so timeously and
called Dr. Bogatsu. It was
not for the plaintiff to call Dr. Oelofse
as the dispute had been resolved in the joint minute.
[27] Sutherland J
succinctly sets out the position regarding the effect of such
agreements between experts
in
Thomas
v BD Sarens (Pty) Ltd
(2007/6636) [2012] ZAGPJHC 161 (12 September 2012) at para 11 and 12:
‘
Where the experts
called by opposing litigants meet and reach agreements about facts or
about opinions, those agreements bind both
litigants to the extent of
such agreements. No litigant may repudiate an agreement to which its
expert is a party, unless it does
so clearly and, at the very latest,
at the outset of the trial. In the absence of a timeous repudiation,
the facts agreed by the
experts enjoy the same status as facts which
are common cause on the pleadings or facts agreed in a pre-trial
conference’.
[28]
The majority in
Bee
v Road Accident Fund
2018 (4) SA 366
(SCA)
held
that ‘effective case management would be undermined if there
were an unconstrained liberty to depart from agreements
reached by
the litigants' respective experts. There would be no incentive for
parties and experts to agree on matters because,
despite such
agreement, a litigant would have to prepare as if all matters were
in issue’.
[29]
The
majority in addition held that ‘the position where experts in
the same field reach an agreement differs from the position
where
experts differ on their respective opinions. In cases where
they differ in opinion, a court must determine whether
the factual
basis of a particular opinion, if in dispute, has been proved and
must have regard to the cogency of the expert's process
of
reasoning’. This is conversely not the position where they are
in agreement.
[30]
I am satisfied that the issue regarding the plaintiff’s earlier
retirement was agreed to by the
experts and such agreement should
stand. I am therefore satisfied that the plaintiff proved her
entitlement to future loss of income.
In the result the following
order is made:
1.
The
plaintiff’s claim for general damages is postponed for later
adjudication;
2.
The
defendant is directed to pay the plaintiff an amount of
R 1 639 649.11 (one million six hundred
and thirty
nine thousand six hundred and forty nine rand and eleven cent) as set
out hereunder;
a.
R31 920.00
in respect of past loss of income;
b.
R 1 540
900.00 in respect of future loss of income;
c.
R66 829.11
in respect of past medical and hospital expenses;
Resulting from a motor
vehicle collision that occurred on 29 July 2009
3.
The
defendant shall provide plaintiff with an undertaking in terms of
section 17(4)(a) of Act 56 of 1996 for 95% of the costs
of her
future accommodation in a hospital or nursing home or her treatment
or the rendering of any service to her or supply of
goods to her
arising out of the injuries sustained by her in the motor vehicle
collision mentioned above, in terms of which undertaking
the
defendant will be obliged to compensate her in respect of the said
costs after such costs have been incurred and on proof thereof;
4.
The
defendant is liable for payment of the plaintiff’s taxed or
agreed party and party costs on the High Court scale , until
date of
this order, including but not limited to the costs set out hereunder;
a.
The costs
attendant upon the obtaining of payment of the amounts referred to in
this order;
b.
The
reasonable preparation / qualifying / accommodation / travelling and
full reservation fees and expenses (if any) of the following
experts,
and the costs relating to the plaintiff attending their medico legal
examinations:
i.
Dr JF
Ziervogel (Orthopaedic Surgeon);
ii.
Dr LF
Oelofse (Orthopaedic Surgeon);
iii.
H
Labuschagne (Occupational Therapist);
iv.
L
Liebenberg (Occupational Therapist);
v.
P Greeff
(Clinical Psychologist);
vi.
J White
(Industrial Psychologist);
vii.
Munro
Actuaries (Actuaries)
5.
Payment of
the capital amount shall be made without set off or deduction, within
30 (thirty) days from the granting of this order,
directly into the
account of the plaintiff’s attorneys of record by means of
electronic transfer, the details of which are
as follows:
Honey Attorneys –
Trust Account
Nedbank –
Maitland Street Branch Bloemfontein
Branch Code: 11023400
Account number: [….]
Ref: HL Buchner/J02646
6.
Payment of
the taxed or agreed costs shall be made within 14 (fourteen) days of
taxation, and shall likewise be effected into the
trust account of
the plaintiff’s attorney;
7.
No
interests will accrue in respect of any of the aforesaid amounts if
payment is made on or before the stipulated dates;
8.
Should
payment not be made in respect of any of the aforesaid amounts on or
before the stipulated date(s), interests will accrue
at 10,25% per
annum compounded;
9.
In the
event that costs are not agreed to, the plaintiff agrees as follows:
a.
The
plaintiff shall serve a notice of taxation on the defendant’s
attorney of record and;
b.
The
plaintiff shall allow the defendant fourteen (14) court days to make
payment of the taxed costs.
L. B.J Moeng, AJ
On behalf of the
plaintiff: Adv. PJJ Zietsman
Instructed by: Honey
Attorneys
BLOEMFONTEIN
On behalf of the
defendant: Adv. MM Mopeli
Instructed by: Maduba
Attorneys
BLOEMFONTEIN