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[2018] ZAGPPHC 460
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Sebothoma v Road Accident Fund (36936/2016) [2018] ZAGPPHC 460 (15 February 2018)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 36936/2016
15/2/2018
Not Reportable
Not of interest to other judges
In
the matter between:
OUMA ELSIE
SEBOTHOMA
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
PETERSEN
AJ
[1]
The plaintiff instituted action against the
defendant for damages in terms of the provisions of the Road Accident
Fund Act, Act
56 of 1996 as a result of bodily injuries she sustained
as a passenger in a motor vehicle collision that occurred on the 4
th
of November 2014 at 23h20pm at or near R568 Road, Klipfont and
Kammeelport, Kwa-Mhlanga involving a motor vehicle with registration
number [….] driven by the insured driver.
[2] The issue
of liability (merits) has been resolved in favour of the plaintiff
with the defendant undertaking to pay 100% of plaintiff's proven or
agreed damages. The defendant has further given a statutory
undertaking in terms of section 17(4)(a) of the Road Accident
Fund.Act 56 of 1996 for the future medical and related expenses of
the plaintiff. The issue of loss of earnings and general damages
remains in dispute.
[3] I turn to
the issue of general damages and the impasse between the plaintiff
and defendant which manifested itself at the proverbial steps of the
courthouse when the defendant instructed counsel that the
RAF 4 form
was now rejected by the Fund. Mr Kehrhahn for the plaintiff submits
that the court should find that the defendant is
bound by the
Pre-Trial minutes of 7 February 2018 where it is alleged the
defendant accepted the RAF 4 form. This submission was
changed
slightly when the pre-trial minutes were availed to the court in the
following terms, that although the defendant neither
accepted the RAF
4 form nor rejected same it should be held to account for the general
damages or in the alternative that the court
should show its
displeasure at the defendant's behaviour with a punitive cost order
if the issue of general damages is postponed.
In support of these
submissions reliance was placed on the unreported decisions of
Van
Heerden v Road Accident Fund
(6644/2011) [2014] ZAGPPHC 958 (8
December 2014) and
Jacobs v RAF
2013 JDR 2276 GNP. In
Van
Heerden
Strauss AJ found at para [16]:
"...the defendants are prevented and precluded
based on the pre-trial admission, to now reject the RAF 4 of Dr
Heymans, and
they cannot be blowing hot and cold
on their
admissions in the pre-trial,
this was factually an acceptance of
the RAF 4, qualifying the plaintiff for general damages." (my
emphasis) and In
Jacobs
Kollapen J noted at paragraph 5 that:
"The defendant did not (until the 24 July 2013)
communicate its decision with regard to the acceptance or rejection
of the
RAF 4 form. However in a pre-trial conference held on the 16
th
July 2013, the status of this report was considered and in
response
to a question whether the defendant admitted the contents of various
medico-legal reports including of Dr Engelbrecht,
the answer
was
in the affirmative."
(emphasis)
[4]
The paragraphs referred to in
Van
Heerden
and
Jacobs
are
distinguishable from the present matter, when regard is had to the
context of the question and answer dealing with this aspect
in the
pre-trial minutes:
"38. Does the Defendant agree that none of the
issues needs to be referred by the parties to mediation, arbitration
or a decision
by a third party?
Answer:
Agree. The
Defendant reserve (sic) its rights to refer general damages to the
HPCSA."
The word
Agree
was typed in the pre-trial minute
but qualified with the handwritten answer that was initialled by the
legal representatives. I
cannot find that the pre-trial minutes
attest to an acceptance of the RAF 4 form by the defendant.
[5] On the
alternative argument, the Fund has 90 days from the date on which
the
serious assessment report (RAF 4 form) was sent or delivered to them,
to reject or accept the serious injury assessment report.
The RAF 4
form was completed on 11 June 2016 and duly submitted to the
defendant. By rejecting the RAF 4 form only on the date
of trial (12
February 2018), the defendant has clearly failed to comply with the
peremptory 90 day period provided for in the regulations.
The
Regulations, however, do not indicate what the consequences would be
if the Fund failed to comply with the peremptory 90 day
period. In
Road Accident Fund v Duma and Three Similar Cases
2013 (6) SA
9
(SCA), the failure to comply with the 90 day statutory period was
considered:
"[9] One of the problems identified in
Duma
is
that where the Fund does not reject or accept the SIA report within a
reasonable period, the plaintiff is compelled to ask for
an order of
court reviewing the Fund's inaction, and in that process the court is
required to determine what a reasonable period
is. That is a
fact-based enquiry. To avoid a plaintiff having to approach a court
to determine whether the period is in fact reasonable,
an amendment
to the regulations was introduced requiring the Fund to assess the
SIA report within 90 days.
[10] The high court
rejected. the appellant's argument that the introduction of the
90-day period
gave rise to a deemed acceptance of the SIA report. The
foundation for the argument was that the amendment sought to avoid
the
mischief that
Duma
identified - the Fund's inaction - and
that simply requiring the Fund to respond within 90 days would not
achieve that end. The
plaintiff would still have to apply, after the
90-day period, for a review of the Fund's inaction in terms of s
6(2)(g)
of the Promotion of Administrative Justice Act 3 of
2000 (PAJA). This was costly and time consuming and would prejudice
the plaintiff,
especially one who was impoverished or did not have
ready access to legal services. Thus one had to read into regulation
3(3)(dA)
a proviso, the effect of which is that inaction on the part
of the Fund for a period of 90 days would constitute a deemed
acceptance
of the injury as serious.
[12] …In
terms of s
6(2 )(g) ,
read with s
6(3)(b),
of PAJA if
the Fund unreasonably delays in taking a decision in circumstances
where there is a period prescribed for that decision,
an application
can be brought for judicial review of the failure to take the
decision.
[13]
Moreover, the clear language of regulation 3(3)(dA) enjoins the
Fund
to decide within 90 days from the date on which the report was sent
or delivered by hand to (a) accept the SIA report; (b)
to reject it;
or (c) to refer the third party for a further assessment. It was
correctly argued for the Fund that regulation 3(3)(dA)
was enacted to
stipulate the time period within which the Fund must make a decision
as to whether or not the third party has suffered
serious injuries.
[14] …It
is always open to the Fund to reject the SIA report
when it is not
satisfied that the injury has been correctly assessed in terms of
regulation 3(3)(dA). This regulation does no more
than prescribe a
period within which the Fund can reject or accept the report. It
would be an anomaly if, in terms of regulation
3(3)(dA), where the
Fund has failed to make a decision within the prescribed period, an
otherwise not serious injury would by default
become serious because
of the delay. By including the prescribed period the legislature
sought to ameliorate the hardship experienced
by claimants prior to
and after the
Duma
case. The intention was to bring legal
certainty and to compel the Fund to act promptly and timeously, not
to create a presumption
in favour of a claimant that the injury in
question is a serious one.
[17] The new regulation
seeks to define the rights of the claimants in unambiguous terms and
afford
them an opportunity after 90 days to apply for a mandamus in
terms of PAJA to compel the Fund to make a decision. It was
specifically
enacted to deal with the mischief identified by this
court in
Duma
relating to the phrase 'within a reasonable
time' which caused uncertainty to claimants. It is unfortunate that
the Fund continues
to be tardy, but one cannot reformulate the
regulation in order to avoid that consequence."
[6]
The plaintiff's remedy clearly lies in section
6(2 )(g)
of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA.) It is
therefore clear that inasmuch as the tardiness of the defendant
in
the present matter in rejecting the RAF 4 form on the date of trial
has occasioned an understandable sense of frustration on
the part of
the plaintiff, the plaintiff in the peculiar circumstances of this
matter is not entitled to a punitive cost order.
[7] I turn to
the issue of loss of earning capacity. The plaintiff filed
several
medico-legal reports of various experts whilst the defendant has
filed none. The defendant conceded at the hearing of this
matter that
the plaintiffs expert reports could not be disputed. The only
submission of any significance is that the loss of earnings
be
subjected to higher contingencies of 10% pre-morbid and 25% post
morbid premised on the fact that the plaintiff is still
employed and
remains in such employment 3 years post-accident. In this regard the
parties are in in agreement.
[8] The
following reports were handed in by consent:
1.1 Dr Tshepo
Meja (Specialist Neurosurgeon)
1.2 Dr Matthews
Katjene (Clinical Psychologist)
1.3 Dr GM
Tshukudu (Plastic Surgeon)
1.4 Adelaide
Phasha (Occupational Therapist)
1.5 Siphiwe
Katjene (Industrial Psychologist)
1.6 Munro's
Actuaries (Actuary)
[9]
The plaintiff was 30 years old at the time of the accident. She
completed
Grade 12 in 2003 and a 1 year Traffic Safety Certificate at
the Tshwane University of Technology in 2004. During the period 2011
to the date of accident she worked at several restaurants and at
Spar, with most of her employment history being as a cashier.
Her
income ranged from R1800 per month to R3000 per month at the time of
the accident. After the accident she continued working
for Spar as a
cashier earning a net salary of R2433.94 per month and remains in the
employ of Spar to date.
[10] The plaintiff
sustained the following injuries in the accident, according to the
RAF 4 form:
a) Head laceration
b) Abrasions on the face
and arms
c) Head Injury
d) Multiple lacerations on
the face and scalp
[11]
The information supplied by the plaintiff to the
experts is that post-accident she suffers from headaches, episodes of
memory loss,
anxiety attacks, neck, left knee, back and shoulder
pain, and disfiguring facial scars. She presents with anger problems,
fatigue,
nightmares and making poor relationship choices. Dr Moja
observed multiple disfiguring scars on her scalp, face and right
distal
forearm. Dr Tshukudu noted in particular that she has a 9cm
linear scar with a 4cm scar below it on her face with a 2cm pigmented
scar on the right cheek below the eyelid. Dr Moja in relation to the
cervical spine, observed tenderness on the right side of her
neck,
although she had normal range of movement, but experienced pain on
extension and rotation of her neck. There were, however
no signs of
root compression.
[12] According to Dr Katjene the
plaintiff battled with following and processing of instructions
throughout his evaluation. She was irritated by assigned tasks and
requirements and exhibited poor endurance and concentration
in her
performance. Towards the end of the evaluation she appeared fatigued
and sleepy. The plaintiff has a 10% Whole Person Impairment
(WPI).
She presents with challenges in interpersonal and heterosexual
relationships due to emotional insecurities. She is experiencing
moderate depressive and post-traumatic anxiety as a result of the
accident.
[13] According to Ms Phasha the
plaintiff has severe fallouts with regards to forward visual
and
auditory memory and sequencing, auditory recall/recognition, simple
multiple digit mathematical skills, safety and judgment,
concrete
moderate and complex problem solving as well as mental flexibility
during problem solving and abstract reasoning. Ms Phasha
then notes
that the plaintiffs reasoning ability is lower that what is required
of a cashier. She presented with lower mathematical
skills needed to
be a cashier as she was unable to add two digit numbers or to add,
subtract, multiply and divide all units of
measure. Dr Katjene notes
that the plaintiff presents with evidence of marginal to significant
neurocognitive deficits. Collateral
information received from the
plaintiffs supervisor attests to her poor interpersonal relationships
with customers at times; and
more importantly about her being prone
to miscalculate and often not tallying on her till. Ms Greyling is of
the opinion that the
plaintiff would be able to cope with job demands
that require constant working above head level, kneeling and climbing
stairs.
The plaintiff presented with a weak grip of the right hand
expected to negatively impact on her ability to exert force and to
hold
onto objects. The plaintiff according to her would need to be
alternated between positions and comply with spine hygiene and joint
saving principles which will make her unequal competitor and
ultimately make her a vulnerable employee impacting on her career
advancement prospects.
[14] I am satisfied that
the sequelae of the plaintiff's injuries as elaborated upon by the
experts
render her vulnerable and an unequal competitor in the open
labour market. The actuarial calculations premised on the expert
evidence
and the
sequalae
occasioned by the injuries sustained
by the plaintiff, renders the actuarial calculations both fair and
reasonable. The proposed
contingencies applied at 10% for pre-morbid
loss of income and 25% for post-morbid loss of income on which
counsel are in agreement,
in my view are fair and reasonable.
[15] In the result,
applying the 10% contingency deduction to the past loss as agreed and
25% to the
future loss the net total amounts to R1 249 815.00.
[16] In the result the Amended Draft Order, marked
"
X" ,
which reads as follows, is made an order of Court:
1. The
Defendant is ordered to pay 100% of the Plaintiff’s proven
or
agreed damages.
2. The
Defendant is ordered to pay to the Plaintiff the amount of R1
249815.00 (One Million, Two Hundred and Forty Nine Thousand, Eight
Hundred and Fifteen Rand) in delictual damages in settlement
of the
Plaintiff’s claim, which amount is payable by the Defendant
within 14 days from the date of this order by depositing
same into
Plaintiff's attorney of record's trust account, the details of which
are as follows:
ACCOUNT HOLDER :
MPHELA & ASSOCIATES
BANK
:
STANDARD BANK
BRANCH CODE
: 05-26-27
ACCOUNT NUMBER
:
[….]
REFERENCE NUMBER : TP 4321
3.
The
defendant will be liable for interest on the capital amount due to
the plaintiff at a prescribed rate of 10.25% per annum as
from date
of this order to date of payment should the Defendant fail to make
payment of the capital amount as provided for in paragraph
2 of this
order.
4. The
Defendant must furnish
OUMA ELSE SEBOTHOMA
(Born on 9 October
1984) with an Undertaking in terms of Section 17 (4) (a) of Act 56 of
1996, for 100% for the costs of her future
accommodation in a
hospital or nursing home or treating of or rendering of a service to
her or supplying goods to her, unlimited
to the expenses incurred
thereunder, arising out of the injuries sustained by her in the motor
vehicle collision that occurred
on 4 November 2014.
5. The
defendant is ordered to pay the plaintiffs taxed or agreed party
and
party costs on a High Court Scale, which costs will include, but not
be limited to, the following:
5.1 The reasonable taxable fees for
consultation (including telephonic consultations) with the experts
mentioned herein below, counsel and attorney, preparation for trial,
qualifying and reservation fees (if any and on proof thereof)
as well
as the costs of the RAF 4 serious injury assessment reports, medico
legal reports, addendum reports, actuarial/revised
actuarial
calculations and joint minutes of all the plaintiff's experts, which
include, but will not be limited to, the following
experts;
5.1.1 Munro (Actuary)
5.1.2 Dr Tlakula (RAF
4)
5.1.3 Ms Phasha
(Occupational Therapist)
5.1.4 Ms S Katjene
(Industrial Psychologist)
5.1.5 Dr Meja (Neuro
Surgeon)
5.1.6 Dr Katjene
(Clinical Psychologist)
5.1.7 Dr Tshukudu
(Plastic and Reconstructive Surgeon);
5.1.8 All other
experts served on the Defendant.
5.2 The costs of Plaintiff’s
Counsel including, amongst others, reservation, settlement and/or
professional/day fee, preparation for trial.
5.3 The costs for the preparation,
travelling, travelling time and attendance of the respective
pre-trial
conferences by the plaintiffs' representative; s
5.4 The costs in respect of the
preparation, drafting and copying of all the bundles of documents,
including trial bundles and bundles for the experts, containing
expert reports, pleadings and notices, all other documents and
all
indexes thereto, the travelling time, travelling costs and time spent
travelling to deliver the bundles;
5.5 The costs attendant upon
obtaining of payment of the amounts referred to in this Order,
including the costs to obtain and administer the Section 17(4)(a)
undertaking.
5.6 The reasonable travelling costs,
travelling time, subsistence accommodation and transportation
costs,
if any, of the plaintiff to the medico legal examination(s) arranged
by the plaintiff and defendant and for the attendance
of the trial on
the 1th February 2018.
6.
Payment of the above costs by the defendant is subject to the
following
conditions:
6.1 The plaintiff is ordered to
serve the notice of taxation of plaintiff’s party and
party
bill of costs on defendant's attorneys of record.;
6.2 The defendant is ordered to
pay the plaintiff's taxed and/or agreed party and party costs
within
14 (fourteen) days from the date upon which the accounts are taxed by
the Taxing Master and/or agreed between the parties.
6.3 Should the payment of the
taxed costs not be effected timeously, the Plaintiff will be entitled
to interest as a prescribed tariff, from date of allocator to date of
payment.
7.
The issue of general damages is postponed
sine die.
BY ORDER
REGISTRAR
AH PETERSEN
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
Appearances
For
the plaintiff: Adv. FHH Kehrhahn
Instructed
by: Mphela and Associates
For
the defendant: Adv. D. Makhubele
Instructed
by: Maluleke Msimang Attorneys
Date heard:
12 February 2018
Date
of judgment: 15 February 2018
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
On the 15
th
day of February 2018 before the Honourable Judge
PETERSEN AJ
CASE NO.: 36936/2016
In the
matter between:-
OUMA
ELSIE
SEBOTHOMA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
ORDER
Having
heard the parties it is ordered that:
1. The
Defendant is ordered to pay 100% of the Plaintiffs proven or
agreed
damages.
2. The
Defendant is ordered to pay to the Plaintiff the amount of R1
249
815.00 (One Million, Two Hundred and Forty Nine Thousand, Eight
Hundred and Fifteen Rand) in delictual damages in settlement
of the
Plaintiffs claim, which amount is payable by the Defendant within 14
days from the date of this order by depositing same
into Plaintiff's
attorney of record's trust account, the details of which are as
follows:
ACCOUNT HOLDER
: MPHELA & ASSOCIATES
BANK
:
STANDARD BANK
BRANCH CODE
:
05-26-27
ACCOUNT NUMBER
: 23 00 27 00 8
REFERENCE NUMBER : TP 4321
3. The defendant
will be liable for interest on the capital amount due to
the
plaintiff at a prescribed rate of 10.25% per annum as from date of
this order to date of payment should the Defendant fail
to make
payment of the capital amount as provided for in paragraph 2 of this
order.
4. The
Defendant must furnish
OUMA ELSE SEBOTHOMA
(Born on 9 October
1984) with an Undertaking in terms of Section 17 (4) (a) of Act 56 of
1996, for 100% for the costs of her future
accommodation in a
hospital or nursing home or treating of or rendering of a service to
her or supplying goods to her, unlimited
to the expenses incurred
thereunder, arising out of the injuries sustained by her in the motor
vehicle collision that occurred
on 4 November 2014.
5. The defendant
is ordered to pay the plaintiff's taxed or agreed party and
party
costs on a High Court Scale, which costs will include, but not be
limited to, the following:
5.1 The
reasonable taxable fees for consultation (including telephonic
consultations) with the experts mentioned herein below, counsel and
attorney, preparation for trial, qualifying and reservation
fees (if
any and on proof thereof) as well as the costs of the RAF 4 serious
injury assessment reports, medico legal reports, addendum
reports,
actuarial/revised actuarial calculations and joint minutes of all the
plaintiff's experts, which include, but will not
be limited to, the
following experts;
5.1.1
Munro (Actuary)
5.1.2
Dr Tlakula (RAF 4)
5.1.3
Ms Phasha (Occupational Therapist)
5.1.4
Ms S Katjene (Industrial Psychologist)
5.1.5
Dr Moja (Neuro Surgeon)
5.1.6
Dr Katjene (Clinical Psychologist)
5.1.7
Dr Tshukudu (Plastic and Reconstructive Surgeon);
5.1.8
All other experts served on the Defendant.
5.2 The
costs of Plaintiff’s Counsel including, amongst others,
reservation, settlement and/or professional/day fee, preparaiton for
trial.
5.3 The
costs for the preparation, travelling, travelling time and attendance
of the respective pre-trial conferences by the plaintiff’s'
representatives;
5.4 The
costs in respect of the preparation, drafting and copying of
all the
bundles of documents, including trial bundles and bundles for the
experts, containing expert reports, pleadings and notices,
all other
documents and all indexes thereto, the travelling time, travelling
costs and time spent travelling to deliver the bundles;
5.5 The
costs attendant upon obtaining of payment of the amounts referred
to
in this Order, including the costs to obtain and administer the
Section 17(4)(a) undertaking.
5.6 The
reasonable travelling costs, travelling time, subsistence,
accommodation and transportation costs, if any, of the plaintiff to
the medico legal examination(s) arranged by the plaintiff and
defendant and for the attendance of the trial on the 12
th
February 2018.
6.
Payment of the above costs by the defendant is subject to the
following
conditions:
6.1 The
plaintiff is ordered to serve the notice of taxation of plaintiffs
party and party bill of costs on defendant's attorneys of record.;
6.2 The
defendant is ordered to pay the plaintiffs taxed and/or agreed party
and party costs within 14 (fourteen) days from the date upon which
the accounts are taxed by the Taxing Master and/or agreed between
the
parties.
6.3 Should
the payment of the taxed costs not be effected timeously,
the
Plaintiff will be entitled to interest as a prescribed tariff, from
date of allocator to date of payment.
7.
The issue of general damages is postponed
sine die.
BY
ORDER
REGISTRAR
7.2
The
Plaintiff shall allow the Defendant 14 (FOURTEEN) court days to make
payment of the taxed costs from date of settlement or taxation
thereof;
7.3
Should
payment not be effected timeously, the Plaintiff will be entitled to
recover interest at the rate of 10.25% on the taxed
or agreed costs
from date of allocator to date of final payment.
8.
No contingency fee agreement was concluded between the Plaintiff
and
her Attorney.
BY
ORDER OF THE COURT
REGISTRAR
Adv. Danie
Combrink for the Plaintiff (082 452 1299)
Adv
.
for the Defendant