About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 98
|
|
Matidza v Road Accident Fund (23635/2015) [2016] ZAGPPHC 98 (4 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case Number:
23635/2015
4/3/2016
Reportable
Not of interest to other
judges
Revised
In the matter between:
DATE: 4/3/2016
HAPPY
MATIDZA
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
POTTERILL J
[1] This matter tells a
tale of woes. It tells a sad true life story of a 22 year old
plaintiff who on 9 August 2014 was a
passenger in a taxi involved in
a collision resulting in him losing his right leg from above the
knee. It tells the story
of incompetence, a lack of
responsibility towards the public purse, entitlement to abuse court
rules, and ignorance of our constitutional
principles.
[2] As a direct
consequence of the collision the plaintiff sustained the following
injuries:
2.1 A fracture of the
left femur resulting in the insertion of an intramedullary pin;
2.2 A fracture of the
right knee and right lower leg resulting in a traumatic above knee
amputation of the right leg;
2.3 A head injury;
2.4 Multiple abrasions,
bruises and scarring over the body.
[3] The plaintiff had
obtained a matric, although he had a history of repeating different
school years. He had just obtained
employment as a dagga mixer
and was doing this physical work for only four days when the accident
occurred.
[4] On the day of the
trial the matter was allocated only 15 minutes. The reason for
this was that the general damages and
the future loss of income were
to be settled. The only issue in dispute was whether the refit
of the prosthesis and a spare
prosthesis was necessary. A
further issue was whether these two items should be categorised as
falling under past medical
expenses or should fall under the
undertaking in terms of section 17 of the Road Accident Fund Act, 56
of 1956 (“the Act”).
The plaintiff’s mobility
expert witness was in court and ready to testify.
[5] At around 12:00 on
the day of the trial the plaintiff was informed that the claims
handler had at that stage instructed the
attorneys on behalf of the
defendant that nothing is to be settled. The plaintiff would
not finish the experts in less than
a day and was thus now forced
into a position to ask for a postponement, whereas the matter could
have been finalised.
[6] I then instructed
counsel for the defendant to call the claims handler to court.
The claims handler testified that she
worked with the file since its
inception. The file was however out of her hands when it was
with “block settlements”.
The file was again out of
her hands when the file was sent to the relevant section checking the
past medical expenses. She
accepted that these two facts
constituted no excuse for only looking at the file the morning of the
trial. She knew she could
be held accountable by having to pay
the costs of a postponement, but she submitted that she did not act
intentionally. She
was in fact quite blasé about the
prospect.
[7] Immediately after her
evidence the court was then informed that all the plaintiff’s
reports were admitted with no evidence
to the contrary; except
for the plaintiff’s industrial psychologist’s report.
The plaintiff could have
this expert there within 15 minutes and the
defendant now had a report from their industrial psychologist.
The plaintiff’s
reports from the neurosurgeon and the
industrial psychologists were also only filed and served on the 24
th
of February 2016, a day before the trial.
[8] I let the matter
stand down to the next day for the evidence of the industrial
psychologists. I was however informed that
the matter must
stand down because they are awaiting a joint minute from the
defendant’s industrial psychologist. At
12:00 I was
informed that a joint minute was not forthcoming from the defendant’s
industrial psychologist. I was further
informed that the
defendant had now filed and served a special plea and that therefore
the matter should be postponed.
[9] The special plea
entailed that the plaintiff does not have the
locus standi
to
bring the action in his personal capacity as he lacks the mental
capacity to appreciate the nature and consequences of this action.
The grounds for this was that the clinical psychologist, Ms. Moodley,
submitted in her report that the plaintiff is undergoing
an “
acute
major depression that is categorised by agitation and erratic
qualities”
. She also stated “
that the
plaintiff is withdrawn, anxious, depressed and aloof … also
appears to be in a constant state of grieving and mourning.”
The plaintiff’s behaviour matches diagnoses of bipolar
disorder, an anxiety disorder, post-traumatic stress disorder.
She drew the conclusion that a lack of PTSD treatment has resulted in
this severe anxiety and depression. A further ground
is that
Dr. Birrell, the plaintiff’s orthopaedic surgeon, who consulted
with the plaintiff, concluded “
there is a higher incidence
of alcoholism and drug addiction (sic)”
.
[10] The plaintiff’s
counsel was prepared to argue the special plea.
[11] Not in one of the
eight expert reports of the plaintiff is there an inkling that the
plaintiff does not have the mental capacity
to understand the legal
proceedings. In the plaintiff’s clinical psychologist’s
report the expert concludes as
follows:
“
The assessor is
of the opinion that should funds be available to him, Mr. Matidza is
deemed competent to manage his own finances.”
In the defendant’s
industrial psychologist’s report she finds under the heading
“Discussion” as follows:
“
Mr. Matidza’s
pre and post morbid levels of general intellectual functioning are
deemed the same”.
In reply counsel for the
defendant argued, on instructions of his attorney, that in one report
of the plaintiff a
curator bonis
is recommended. When
confronted with what statement he is referring to, there is a lot of
head shaking and a three minute
pause before it is conceded that
there is no such recommendation in any of the reports. It is
also conceded that Dr. Birrell
as quoted in the special plea as
referring to a “
drug”
addiction is incorrect and
it should be a “
use of tobacco”
.
[12] The special plea was
accordingly dismissed with costs.
[13] The court is then
informed that the general damages is now settled. The plaintiff
is also prepared to argue on the defendant’s
industrial
psychologist’s report and the defendant’s calculations in
order to finalise the matter. This is agreed
to.
[14] The only issue thus
further requiring evidence is that of the mobility expert for the
court to find whether the refit of the
prosthesis and the spare
prosthesis is necessary and should be funded by the defendant as past
medical expenses.
[15] The expertise and
qualifications of Mr. Pretorius was admitted. The reason why a
refit of the prosthesis was necessary
and why a spare prosthesis is
not “nice to have”, but a necessity was accepted by the
defendant; no questions
were put to this witness pertaining to
these issues. The only question by the defendant was whether
this witness had incurred
costs, which he had, and whether there had
been a financial transaction. To this the witness answered
“No”.
Counsel for the defendant informed the court
that there were no vouchers submitted for these costs. Once
again this was a
blatant lie as it is clear from the letter to the
defendant dated 2 October 2015 that these vouchers were submitted.
These
are expenses already incurred, the mere fact that no financial
transaction took place does not negate the necessity for payment
of
these vouchers as past medical expenses.
Loss of income
[16] The defendant’s
industrial psychologist, Ms. M. Kheswa, noted the following from the
plaintiff’s admitted reports:
16.1 The plaintiff’s
educational therapist:
“
The accident
occurred in August 2014 after he matriculated. Pre morbid
academic difficulties were noted as he failed four
times before
completing grade 12. According to the grade 12 academic record
obtained he failed Economics and performed poorly
in Agricultural
Science (34 %) and Maths Lit (39 %). He passed with endorsement
to study a higher certificate. Despite the
fact that he obtained a
bursary from ETDP/SETA to study a degree in HR Management at Unisa in
2014, he never registered at Unisa
during the course of 2013 or
2014.”
16.2 Dr. T. Birrell,
orthopaedic surgeon:
“
He is 100 %
permanently disabled. It is doubtful whether he would find any
suitable light duty employment. If he does manage this
he would have
a loss of work capacity of 30 % and would require extra sick leave
etc. if he were to find suitable light duty employment
he would not
be able to work past age 55.”
16.3 Ms. M. Doran,
occupational therapist:
“
It is thus
concluded that Mr. Matidza is not suited for his pre-accident
occupation as a dagga boy post-accident. It is further
accepted that
he will never regain physical capacity to venture into such
occupation even with an appropriate fitting prosthesis.
It is accepted that
Mr. Matidza has suffered devastating injuries, impacting on his
ability to earn a viable income, especially
tasks of an unskilled to
semi-skilled nature, which he held prior to the accident in question.
It is accepted that he
probably needs to be allowed some form of entrepreneurial
training/skills training to allow for a higher
suitability to altered
physical capacity. He indicated a desire to study further in the
human resource field.
It is thus accepted
that unless he is able to secure a significantly higher level of
qualification, enabling him to qualify for
occupation of a sedentary
to light physical nature, he probably will find it difficult if not
impossible to secure occupation,
with regular periods of
unemployment, especially competing against other healthy individuals
and functional unemployability will
then become a reality for him.”
16.4 Ms. Tsineng,
occupation therapist:
“
The claimant is
ideally suited for sedentary and light work where he can mainly work
while seated or at least alternate equally
between seating and
standing and where he doesn’t have to lift heavy objects.
His ability to secure sedentary jobs
is however limited due to the
lack of experience in such jobs.
He is expected to
battle to re-enter the open labour market due to the difficulties
associated with the accident.”
16.5 She also refers to
Ms. Van den Heever, educational psychologist which remarks that if
the plaintiff secures a higher certificate
he would be able to apply
for a sedentary light physical occupation. He will not be an
equal competitor in the open labour
market which will result in
limited job opportunities. Long term psychotherapy and
recommended interventions by relevant
experts in all likelihood will
improve his overall functioning and it is impossible that he may
pursue a higher certificate course
depending on funding and
motivation. Without the latter his current profile suggests
that he probably would not complete
further studies and therefore
would be left with a grade 12 certificate.
16.6 Ms. Moodley,
clinical psychologist:
“
The loss of his
leg and the traumatic experience that Mr. Matidza suffered seemed to
have a devastating impact on him altering his
physical, emotional,
cognitive and social self.”
[17]
17.1 She then finds that
Mr. Matidza’s scope of employment has been curtailed by the
sequilae of the accident under review
and he currently wouldn’t
be able to compete fairly for jobs in the open labour market for
occupations that require increased
mobility and heavy physical
exertion. She however opined that Mr. Matidza has a matric
qualification which is a requisite
to enter sedentary occupations and
having regard to the fact that he is still young he could gain
clerical or administration experience
on job training when he manages
to secure employment of a sedentary nature. She relies on
section 6 and 15(2)(c) of the Employment
Equity Act from which the
plaintiff could profit as he has a disability and would therefore
fall within in a designated group and
would therefore succeed in
obtaining employment.
17.2 Pertaining to future
loss of earnings she bases her opinion on the appointed experts’
findings and views that the plaintiff
has been rendered a vulnerable
individual in the open labour market. Once again referring to
Dr. Tony Birrell’s report
wherein it was stated that the
plaintiff is in fact 100 % permanently disabled leaving it doubtful
whether he would find any suitable
light duty employment.
Despite this opinion she contradicts herself and then submitted that
she does not find Mr. Matidza
unemployable only that his employment
has been curtailed and that he will be able to continue to work.
She fails to say what
type of work he would be able to do. The
fact that she did not set out what type of work the plaintiff can do
left Deloitte,
the actuary on behalf of the defendant, with a problem
as formulated in paragraph 2.2.2 of their report:
“
The Moiponi
Keshwa report does not provide post-accident career scenarios.
Two scenarios were thus considered.”
The actuary thus
postulated two scenarios although not in their field of expertise.
[18] The plaintiff relied
on scenario 1B: matric and unemployable post-accident. It
was argued that on all the reports
this was the realistic and most
reasonable scenario. The contingencies applied were uninjured
past 5 %. Although it
was high the plaintiff accepted this
contingency of the defendant. The plaintiff argued that a 20%
uninjured future contingency
was reasonable, but added another 5 %
because he was a matriculant and there would be periods of
unemployment. The plaintiff
thus submitted a 25 % future
contingency was more than reasonable.
[19] To the contrary the
defendant argued that scenario 1A: matric and secure sedentary
employment post-accident must be applied
as set out in the actuarial
report. Contingencies of 10 % pre-accident and 20 %
post-accident were to be applied.
[20] In view of the
plaintiff’s academic record, his depression and his financial
situation it is highly improbable that the
plaintiff would obtain a
further tertiary qualification. Without any further tertiary
education there are little to no prospects
of him securing any
employment. This is further exasperated by the fact that he has
no experience in any administrative or
clerical work. He had
exactly four days of work experience in manual labour. His
amputation renders him unfit to do
any unskilled labourer work.
I am satisfied that on the defendant’s own industrial
psychologist’s report and
the plaintiff’s admitted
reports scenario 1B is the correct scenario on which to base the
calculations for future loss of
income. The plaintiff is
functionally unemployable. I am satisfied that the
contingencies argued by the plaintiff are
reasonable and sound.
A 5 % pre and 25 % post must thus be applied.
[21] The costs of this
matter must of course be carried by the defendant. The claims
handler in this case was mandated to
manage a big monetary claim, yet
she only looked at the file on the morning of the trial. She
had no excuses, let alone excuses
of substance, as to why she had not
paid attention to the file and why her instructions to her attorneys
changed from settlement
of general damages and loss of future income
to no settlement. To just again on the next day settle general
damages and agree
to all the reports except for the industrial
psychologist’s report. This is not an isolated case, case
handlers of
the Fund regularly have to come to court to explain their
disinterest, or lack of instructions, or late instructions to their
attorneys.
This is an apt example of where a claims handler
should carry the costs. In
Bovungana v Road Accident Fund
2009 (4) SA 123
(E)
as well as
Jwili v Road
Accident Fund
2010 (5) SA 32
(GNP)
at 36G-39F costs
orders against RAF and two of its officials were ordered to be paid
jointly and severally on the scale as between
attorney and client.
[22] The tale of woe
however does not end here. The attorney relied heavily on the
fact that the matter would not proceed
if at 12:00 they do not settle
and would force the plaintiff to postpone. Costs implications
had little or no bearing because
usually the defendant is ordered to
pay the costs resulting in no harm to the attorney personally or to
his firm. He then
abused the process of court to file a special
plea contrary to the facts of his own industrial psychologist’s
report.
In the special plea Dr. Birrell was wrongly quoted, but
this was only addressed when the court highlighted this untruth.
A further untruth was put to the court that “a report
recommended that the
curator bonis
be appointed”.
When confronted with what report recommended that, it was clear that
there was no such report or such
recommendation. An officer of
the court intentionally put this untruth to the court.
[23] The attorney was
afforded an opportunity to address the court as to why he should not
be ordered to pay the costs
de bonis propriis
. He chose
to make submissions to court. He submitted that he was not the
attorney working on the file and was only
handed the file the morning
of the trial. But, in any event, it would be prejudicial to the
plaintiff to make such an order
because they will get nothing from
him, as he has nothing.
[24] All of the above
constitute material departure from the responsibility of office of an
attorney. The facts prove litigation
in a reckless manner;
despite not knowing the facts of his case he gave instructions in
court to counsel. This matter
was stood down to the next day
and still the attorney did not acquaint himself with the facts in his
file. On the following
day there were facts submitted in
attempts to mislead the court. This conduct substantially and
materially deviates from
the standard expected of a legal
practitioner –
Multi-links Telecommunications Ltd v
Africa Prepaid Services Nigeria Ltd
and Others
2014 (3) SA
265
(GP)
at 289A-D.
[25] The frivolous and
unreasonable manner in which the claims handler and the attorney
dealt with this necessitate the scale of
the costs to be punitive.
[26] Counsel for the
defendant made submissions on instructions, while clearly not having
any insight into the file. His conduct
is also not above board
and was in fact shocking.
[27] This matter shall be
referred to the Law Society and the Bar Council. The registrar
is instructed to transcribe the record
and send the record and this
judgment to the Law Society and the Bar Council.
[28] The draft order
attached hereto marked “X” is made an order of court.
__________________
S. POTTERILL
JUDGE OF THE HIGH
COURT
“
X”
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Before her Honourable
Justice Mr Potterill (J) on 4 March 2016
CASE NO: 23635/15
In the matter between:
HAPPY
MATIDZA
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
DRAFT
ORDER
Having heard counsel for
the Plaintiff and the Defendant, and by agreement between the
parties, the following order is made:
1.
Defendant is to pay Plaintiff an amount of
R 5 051 017.13 (Five million
fifty one thousand and seventeen Rand and thirteen cents),
which amounts are
specified as follows:
1.1
Past medical expenses: R1 259 369.13
1.1.1
Agreed amount: R432,671.43
1.1.2
Cost of refit: R98,127.51
1.1.3
Cost of spare prosthetic: R594,335.27
1.1.4
Cost of Mediclinic: R134,234.92
1.2
Loss of income: R2,891,648.00
1.3
General damages: R900,000.00
on or
before 28 March 2016, said amount to be paid into the bank account of
Nothnagel Attorneys.
Failure
to make payment by aforementioned date will result in interest
calculated at 9.75% per annum being charged from date hereof
to date
of payment in full.
2.
Defendant is to provide Plaintiff with an
Undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
for the costs of the future accommodation of the
Plaintiff in a hospital or nursing home or treatment of or rendering
of a service
to him or supplying of goods to him arising out of the
injuries sustained by him in the motor vehicle collision that
occurred on
9
th
August 2014 after such costs have been incurred and upon proof
thereof.
3.
The defendant, is to carry the costs of the
plaintiff on an attorney and client scale including the costs of the
plaintiff’s
counsel jointly and severally with:
The claims-handler, Ms.
Baloyi, RAF Ref number 560/12207638/1070/4, is to personally carry
the costs of the plaintiff on an attorney
and client scale including
the costs of the plaintiff’s counsel jointly and severally
with:
The attorney, Tankiso
Lesofe, is to carry the costs of the plaintiff
de bonis propriis
on an attorney and client scale including the costs of the
plaintiff’s counsel, the one party paying the other to be
absolved.
4.
Following agreement on or taxation of the attorney
and client costs, the Plaintiff shall allow the Defendant 14
(fourteen) court
days after the allocator has been made available to
the Defendant, to make payment of the taxed or agreed attorney and
client costs.
5.
The costs of all the expert reports which are in
the possession of the Defendant and of which Notice in terms of the
Rules have
been given, the preparation of all reports (including the
costs of all x-rays and scans) and qualifying and reservation fees of
the experts, addendum reports, joint minutes and preparation of RAF4
reports (if any), as the Taxing Master may, upon taxation,
determine.
These experts are:
5.1
Dr DA Birrell (Orthopaedic Surgeon);
5.2
M Doran (Occupational Therapist);
5.3
Lucia van Vollentsee (Physiotherapist);
5.4
PDM Inc (Mobility Expert)
5.5
Sonet Vos (Industrial Psychologist);
5.6
Talitha Da Costa (Neuropsychologist);
5.7
Dr T Bingle (Neurosurgeon);
5.8
M Moodley (Clinical Psychologist);
5.9
Munro Forensic Actuaries (Actuary).
6.
The travelling and accommodation costs of the
Plaintiff for attending the medico-legal appointments.
BY ORDER
______________
REGISTRAR
CASE NO: 23635/15
HEARD ON: 25 and 26
February 2016
FOR THE PLAINTIFF:
ADV. S. MARITZ
INSTRUCTED BY:
Nothnagel Attorneys
FOR THE DEFENDANT:
ADV. N. MHLONGO
INSTRUCTED BY:
Morare Thobejane Incorporated
DATE OF JUDGMENT:
4 March 2016