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[2016] ZAGPPHC 526
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Matidza v Road Accident Fund (23635/2015) [2016] ZAGPPHC 526 (4 March 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case
Number: 23635/2015
DATE: 4
MARCH 2016
In the matter between:
HAPPY
MATIDZA
......................................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
[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 intramedutlary 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.
K 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.
[k] 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
M
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 blas6 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 2^ 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 id 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 finalize the matter. This is agreed to.
[1U] 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 cledr 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 201U 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 (3U X) 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 201U, he
never registered at Unisa during the course of
2013 or 2014. *
16.2
Dr. T. Birrell, orthopaedic surgeon:
7/e 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."
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-skiiied 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 tight 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. ”
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 tack 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.
11
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.
“
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 fight 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
X.
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
X
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 tiim 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.
[2k] 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 -
Muiti-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. POTTERLL JUDGE OF THE HIGH COURT
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
I n the matter between:
HAPPY
MATIPZA
......................................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
DRAFT ORDER
Having heard coun
sel
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 plaintiffs
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, Logan Mavunda, is to carry the costs of
the plaintiff
de bonis propriis
on an attorney and client scale including the costs of the plaintiffs
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
DrT 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: Mo rare
Thobejane Incorporated
DATE OF JUDGMENT: 4
March 2016