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[2019] ZAFSHC 166
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TL v Road Accident Fund (897/2015) [2019] ZAFSHC 166 (14 September 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 897/2015
In
the matter between:
T
L
PLAINTIFF
and
THE ROAD ACCIDENT
FUND
DEFENDANT
HEARD
ON:
14
JUNE 2019
JUDGMENT
BY:
MOLITSOANE,
J
DELIVERED
ON:
14
SEPTEMBER 2019
[1]
This is a claim for damages arising out of a motor vehicle collision
which occurred on the 4
th
May 2013. The merits were settled on the basis that the defendant was
liable for 80 % of the Plaintiff’s proven or agreed
damages. On
the 20
th
November 2018 the defendant agreed to pay an amount of R6 222 349.99
to the plaintiff being in respect of past hospital
and medical
expenses.
[2]
The only issue outstanding is the Plaintiff’s past and future
loss of earnings. This matter was enrolled on the 12
th
March 2019 for the adjudication of this outstanding issue. On the
said date the Plaintiff was ready to proceed. The defendant was
not
ready and requested a remand. The defendant further tendered costs as
well as interim payment of R400 000 in respect of
loss of
earnings. It was submitted on behalf of the defendant that the claim
for loss of earnings was competent and that it was
unlikely to be
less than two million rands. I granted a postponement of this matter
and further ordered the defendant to make an
interim payment in the
amount of R800 000 being for loss of earnings.
[3]
Several reports were filed by the parties. These reports included the
joint minutes of the orthopaedic surgeons, Drs LF Oelofse
and TS
Bogatsu; the joint minutes of the occupational therapist, Mesdames
Weyer and S Moagi as well as the joint minute of the
Industrial
Psychologists, Dr E Jacobs and Ms M Kheswa.
[4]
The plaintiff testified that he did matric in 2012 but did not pass
it. He was, however, forced to write a supplementary examination
in
2013. In 2014 he enrolled for a three year Business Management Course
at Jeppe College. It was during this time in his life
that he was
involved in an accident on the 4
th
May 2014. He further
did a one year internship with another entity.
[5]
Brian Mallinson opined that the plaintiff’s performance on
neuropsychological testing was variable. He further opined
that the
plaintiff’s ability in problem solving tasks was poor and he
had particular difficulty with tests involving auditory
attention and
numerical reasoning. According to him the difficulties aforementioned
were consistent with those commonly seen following
diffuse brain
injury, including a frontal lobe component.
[6]
Dr Shevell, a psychiatrist diagnosed the plaintiff with mood disorder
secondary to general medical condition. According to him
the
plaintiff requires psychiatric treatment. He opines that the
plaintiff’s entry into the open labour market has been delayed
by a period of two to three years.
[7]
In their joint minute, Drs Bogatsu and Oelofse, orthopaedic surgeons,
agree that the plaintiff sustained a right upper leg amputation
and
left leg injury. Both agree that the plaintiff is now an unfair
competitor in the open labour market and that he must be accommodated
in a sedentary position. They further agree that he now has
significant loss of employment capacity and provision ought to be
made for his retirement five years earlier.
[8]
Dr Jacobs and Me Kheswa, Industrial Psychologists, compiled joint
minutes with regard to past and future loss of earnings. There
is a
dispute between the two experts on the employability of the
plaintiff. Dr Jacobs is of the opinion that the plaintiff is left
with a very slight earning capacity and may be said to be
unemployable in the open labour market having regard to his severe
orthopaedic
and brain injuries. On the other hand, Ms Kheswa is of
the opinion that plaintiff was able to secure employment for one year
internship
in his field of study after the accident. According to
her, plaintiff did manage to work for the full internship for a year.
According
to her plaintiff might be able to secure sedentary work in
the open labour market considering his educational background.
[9]
At the time when the cause of action arose the Plaintiff was
unemployed and was still a student at Jeppe College pursuing studies
in Business Management. It has to be borne in mind that the opinions
of the experts must be based on sound logical reasoning-
Michael
and Ano v Linksfield Park Clinic (Pty) Ltd and Ano
2001
(3) SA 1188(SCA)
[36]-[40]. It is clear that the witness for the
defendant, Ms Kheswa, based her opinion on the fact that the
plaintiff secured
a one year internship notwithstanding the injuries.
In my view the foundation for the opinion is wrong. Internship may be
described
as being more of a practical training than the actual
employment. The requirements for acceptance into internship may
differ with
the requirements for admission into employment. The
injuries and their
sequelae
thereof have resulted in mood swings as diagnosed by the psychiatrist
Dr Shevell. The opinion of Mr Mallinson that the plaintiff’s
employment potential has been significantly blighted remains
undisputed. His opinion that the plaintiff would at best be able to
work in a highly structured, well supervised environment performing
menial tasks also remains uncontested. Mallinson says even
in this
situation, his personality difficulties may impact negatively on his
job performance. The opinion of the only witness for
the defendant is
in my view not based on a sound foundation backed by any evidence and
probabilities go against it.
[10]
The plaintiff’s claim, as he was unemployed, is founded on his
loss of earning capacity as opposed to his loss of income.
The
evidence led on his behalf indicate that he suffers from loss of
income and ought to be compensated accordingly. It is not
the case
for the defendant that the plaintiff did not suffer any loss of
earning capacity. In my view the evidence of Dr Jacobs
regarding the
plaintiff’s uninjured and injured earning capacity may safely
be relied upon.
[11]
The evidence of Mr Boshoff, an actuary, remains undisputed. His
calculations based on the information supplied to him was not
challenged. He opines that in the circumstances of this case
plaintiff suffered past loss of earnings in the amount of R410 100.00
and a future loss of earnings in the amount of R4 288 780.00.I
have no reason to reject his evidence. However, in arriving
at the
appropriate compensation, regard must be had to the contingencies,
the interim order in the amount of R800 000 made
on the 12
th
March 2019 and the apportionment.
[12]
The only aspect left is the issue of costs. It is trite that the
award of costs lies in the discretion of the court. A disconcerting
concern in this matter is the fact that at the start of the
proceedings Counsel for the defendant disclosed to the court contrary
to the Rules the offer made to the Plaintiff. In argument he insisted
that he acted on instructions of a client when he so made
the
disclosure. The disclosure aforesaid flew in the face of the
peremptory provisions of Rule 34(10). This conduct ought to be
deprecated and Counsel cannot hide behind the veil of ‘acting
on instructions of client’. He is an officer of the Court
and
is both legally and ethically obliged to advice client accordingly. I
cannot, however, find merit in the submission by Counsel
for
plaintiff to order costs against the defendant on attorney and client
scale. I accordingly make the following order:
[13]
ORDER
1.
The
Defendant is liable for payment to the Plaintiff, in addition to the
interim payment in the amount of R800 000.00 as ordered
in court
dated 12 March 2019, a further amount of R3 898 880.00
(Which amount already includes the contingencies and
apportionment),
in full and final settlement of the Plaintiff’s claims in
respect of past and future loss of income, resulting
from a motor
vehicle collision that occurred on 5 May 2013.
2.
The
Defendant is ordered to pay the plaintiff’s taxed or agreed
costs on the scale as between attorney-and-client, until date
of this
order, including but limited to the costs set out hereunder:
2.1
The costs
attendant upon the obtaining of payment of the amounts referred to in
this order;
2.2
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:
2.2.1
Dr Oelofse
( Orthopaedic Surgeon);
2.2.2
Dr DA
Shevell (Psychiatrist);
2.2.3
Hanri Meyer
(Occupational Therapist);
2.2.4
Brian
Mallinson (Psychologist)
2.2.5
Dr Evert
Jacobs (Industrial Psychologist)
2.2.6
Munro
Actuaries.
2.3
The
counsels’ costs of preparing for, and attending to pre-trials,
and costs associated with necessary consultations with
the plaintiff,
the plaintiff’s witnesses and the plaintiff’s experts;
2.4
The
attorneys’ costs of preparing for, and attending to pre-trials,
and costs associated with necessary consultation with
the plaintiff,
the plaintiff’s witnesses and the plaintiff’s experts;
2.5
The
travelling costs occasioned by the plaintiff, and the plaintiff’s
witnesses to attend to necessary consultation with his
attorney and
expert witnesses.
3.
The payment
provisions in respect of the aforegoing are ordered as follows:
3.1
Payment of
the capital amount shall be made without set-off or deduction, within
30 (thirty) calendar days from date of the granting
of this order,
directly into the trust account of the of the plaintiff’s
attorneys of record by means of electronic transfer,
the details of
which are the following:
Honey
Attorneys – Trust
Account
Bank
- Nedbank, Maitland Street, Bfn
Branch
Code -
11023400
Account
No.
- 1102475912
Reference
- HL
Buchner/J03080
3.2
Payment of
the taxed or agreed costs shall be made within 14 days of taxation,
and shall likewise be effected into the trust account
of the
plaintiff’s attorney.
3.3
No interest
will accrue in respect of any of the aforesaid amounts on or before
the stipulated dates.
3.4
Should
payment not be made in respect of any of the aforesaid on or before
the stipulated date, interest will accrue at 10, 25%
compounded.
4.
In the
event that costs are not agreed:
i.
The
plaintiff shall serve a notice of taxation on the defendant’s
attorney of record, and
ii.
The
plaintiff shall allow the defendant fourteen court days to make
payment of the taxed costs.
___________________
P.E.
MOLITSOANE, J
On
behalf of the applicant: Adv. L LR Pohl SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. RJ Nkhahle
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN