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[2018] ZAGPPHC 374
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Van der Merwe v RAF (42358/15) [2018] ZAGPPHC 374 (16 March 2018)
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
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE
(2)
OF
INTEREST TO OTHERS JUDGES
(3)
REVISED
CASE
NO:42358/15
16/3/2018
In the matter
between:
AMORE
VAN DER
MERWE
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
RANCHOD
J:
[1]
The plaintiff was injured in a motor
vehicle accident on 27 October 2012 at Modimolle, Limpopo Province
whilst she was a passenger
in a motor vehicle with registration
letters and number [….] which slid backwards on an embankment,
capsized and rolled
over the plaintiff. She is a permanent resident
of New Zealand and was on holiday in South Africa when she was
injured in the accident.
[2]
Liability has been conceded by the
defendant in favour of the plaintiff as to 100% and the only issue is
the quantum of plaintiffs
damages. The defendant admits the
correctness of the reports of the various experts of the plaintiff.
Counsel for the defendant
stated that only the evidentiary value of
the reports will be challenged.
[3]
The defendant has agreed to furnish the
plaintiff with an undertaking in terms of s17(4)(a) of the Road
Accidents Fund Act 56 of
1996 for her future medical expenses
incurred as a result of the injuries sustained in the accident.
[4]
According to the particulars of claim
the plaintiff also claims for past medical and related expenses, past
loss of earnings, future
loss of earnings and general damages.
[5]
The plaintiff was 19 years old at the
time of the accident and 24 years old at the time of the trial. I was
informed that the plaintiff’s
legal representatives had
requested their counterparts for the defendant to agree that it was
not necessary for the plaintiff,
who had returned to New Zealand, to
testify as the trial related to the quantum of damages only.
Defendant was of the view that
plaintiff should be available to
testify. Plaintiffs’ attorneys then arranged, by agreement with
the defendant, that she
testify via Skype.
[6]
The plaintiff testified accordingly and
informed the court that she was medically unfit to travel to South
Africa. She confirmed
having perused the seven medico-legal reports
of her experts and said she was satisfied that whatever she had told
the experts,
was correctly noted in their respective reports.
[7]
The plaintiff stated that her hip was
causing her great discomfort even whilst she was testifying. She has
been unemployed due to
the injuries she sustained in the accident.
She would like to study and work in the future but was not able to
due to the injuries.
She said a letter from Dr Warren Leigh to Dr
Craig Panther (both of Auckland, New Zealand) dated 2 June 2017 deals
with her current
condition.
[8]
Ms Bubb an educational psychologist and
Ms Maree an occupational therapist testified thereafter. I do not
deem it necessary to deal
with their evidence at this stage in view
of what follows.
[9]
There was no cross-examination of the
plaintiff or plaintiff’s two experts by defendant’s
counsel and plaintiff closed
her case. The defendant did not lead any
evidence and closed its case as well and both parties presented their
arguments.
[10]
The thrust of defendant's counsel's argument was that the plaintiff
had suffered further injuries
on 8 October 2015 when she fell from
some stairs and sustained injuries to her right knee and lower back.
This, said counsel, constituted
a
novus actus interveniens
for
which defendant cannot be held liable as far as the injuries
plaintiff sustained in that fall are concerned. This fall and the
injuries sustained are revealed for the first time in the
medico-legal report of plaintiff’s industrial psychologists P.C
Diedericks & Associates dated 1 March 2017.
[11]
It is evident that all the plaintiffs
medico-legal reports were obtained after 8 October 2015, i.e. between
3 November 2015 and
1 March 2017. Defendant says the plaintiffs
experts did not differentiate between the injuries sustained in the
motor vehicle accident
and those the plaintiff sustained as a result
of the fall down the stairs.
[12]
Defendant’s counsel submitted that
the plaintiff had the option of asking for a postponement with a
tender for costs and ask
her experts to re write their reports
and exclude the later injuries. Alternatively the court should grant
absolution from
the instance.
[13]
Plaintiffs’ counsel submitted that
defendant's entire argument on this score stems from one passage in
the Diedericks medico-legal
report. Furthermore, said counsel, the
defendant's counsel failed to cross-examine the plaintiff and her two
experts hence he cannot
raise the issue of a
novus
actus interveniens.
Furthermore, the
defendant did not raise a substantive defence of
novus
actus interveniens
and did not
adduce any evidence in that regard. Finally, the onus of proving a
novus actus
rests
on the defendant.
[14]
In my view the submissions cannot be
sustained. Firstly, the fact that the plaintiff sustained further
injuries almost three years
after the motor vehicle accident was
peculiarly within her knowledge. It appears that she had been to
orthopaedic surgeon Dr Malan
on 13 November 2015 about three weeks
after she fell on 8 October 2015 yet no mention is made of the fall
down the stairs to him.
One can only assume that she did not mention
it to Dr Malan. The same can be said about her visits to the other
experts. She consulted
Mr P.C Diedericks on 4 November 2015;
neurosurgeon Dr Earle on 3 November 2015; Dr E.F Gordon (plastic
surgeon) on 13 November
2015; the occupational therapist Ms Maree on
14 November 2015; neuro psychologist Mr Leon Roper on 3 June 2016 and
Ms Bubb on 22
February 2017. None of them, except Mr Diedericks,
indicate that the plaintiff had told them about the fall on 8 October
2015.
[15]
The result is that all the plaintiff's
experts took the injuries she sustained in the fall from the stairs
into account when compiling
their reports and forming their opinions.
The defendant could not have been expected to do anything about that.
[16]
The onus is on the plaintiff to prove
causation, which, in my
view,
given
that it was peculiarly within the plaintiff's knowledge that she fell
down the stairs and sustained injuries, also means to
exclude any
interruption of causation. The various experts should have been
briefed to exclude the later injuries from their opinions.
[17]
Causation includes two distinct
enquiries - factual and legal. Factual causation relates to the
question whether the defendant’s
wrongful act was a cause of
the plaintiff's loss - and is generally referred to as the 'but-for'
test, i.e. what probably would
have happened but for the wrongful
conduct of the defendant. However, even if it is shown that the
wrongful act was the
sine qua non
of
the loss, it does not necessarily result in legal liability. The
second enquiry must then take place, viz whether the wrongful
act is
sufficiently closely or directly related to the loss for legal
liability to arise or whether the loss is too remote. This
is called
'legal causation'. (See
International
Shipping
Co
(Pty)
Ltd v Bently
1990(1) SA 680 at 700
E-G, 700H-701C and D and
Minister of
Police v Skosana
1977(1) SA 31 (A)
at 34E-35A, 43E-44B).
[18]
In considering legal causation a factor,
among others, that is taken into account is the absence of a
novus
actus interveniens.
In
casu,
plaintiff herself told Diedericks
about the fall down the stairs and the injuries she sustained. This
fact has become part of the
factual matrix the court has to consider
in a determination of the plaintiffs quantum of damages. I do not
think there is any
onus
on
the defendant to prove the extent of plaintiff’s injuries and
their sequelae with regard to the fall down the stairs. The
plaintiff
proved all the orthopaedic injuries contained in the expert reports,
including the two injuries constituting the
novus
actus
by confirming them in her
testimony in the trial and the admission of such evidence by the
defendant when it admitted the content
of the expert reports. The
defendant does not attract an
onus
to
prove the
novus actus
as
a substantial defence in these circumstances.
[19]
There is no primary fact evidence by the
plaintiff to link the two injuries constituting the
novus
actus
to the motor vehicle accident.
It is for the plaintiff to prove her loss without taking the
novus
actus
into account.
[20]
It was also contended by her counsel
that the plaintiffs fall was foreseeable and an inherent risk in the
post-accident condition.
The
onus
is
on the plaintiff to prove these two allegations.
[21]
Much store is put upon defendant's
failure to cross-examine the plaintiff and her two witnesses. The
defendant did not have to because
it accepted that two sets of
orthopaedic injuries exist, those sustained in the motor vehicle
accident and those sustained in the
fall. The defendant did not have
to call any witnesses to prove the
novus
actus
- plaintiff did that.
[22]
In all the circumstances, the court is unable to determine
plaintiff's quantum in respect of
the injuries sustained in the motor
vehicle accident on 27 October 2012.
[23]
The order that ensues is that there shall be absolution from the
instance with costs.
N. RANCHOD
JUDGE OF THE
HIGH COURT
Appearances:
Counsel
on behalf of Plaintiff
: Adv. G Alberts (SC)
Adv. H.R Du Toit
Instructed
by
: C.J Van Rensburg Attorneys
Counsel
on behalf of Defendant
: Adv. H.J Strauss
Instructed
by
: E.R Marivate Attorneys
Date
heard
: 30 October 2018
Date
delivered
: 16 March 2018