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[2016] ZAGPPHC 878
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Chutterpaul v Road Accident Fund (81797/14) [2016] ZAGPPHC 878 (22 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 81797/14
Date:
22/9/2016
Reportable:
No
Of
interest to other judges: Yes
Revised.
In
the matter between:
V
CHUTTERPAUL PLAINTIFF
Versus
ROAD
ACCIDENT
FUND RESPONDENT
JUDGMENT
TOLMAY,
J:
INTRODUCTION
[1]
The Plaintiff in this matter is a 30 year old adult female attorney
that was injured in a motor vehicle collision on 23 July
2011 whilst
driving on the R55, Midrand, Johannesburg.
[2]
The issues of both liability and the quantum had to be determined by
this Court. Past medical expenses, future loss of income
and general
damages were in dispute.
[3]
The Plaintiff filed expert reports of 7 experts, including an
actuarial calculation. The Defendant failed to file any of its
expert
reports timeously and only furnished the Plaintiff with its
industrial psychologist's report on the morning of the day before
the
trial.
[4]
Before the commencement of the trial counsel for Defendant informed
the Court that he was briefed only the day before the trial
was to
commence and did not have time to peruse the expert reports. The
industrial psychologist for the Defendant at that point
also refused
to sign the joint minute. She did sign it later however. I was
informed that Defendant's industrial psychologist was
not available
to testify. Counsel for the Defendant also informed the Court that
Defendant had no witnesses but his instructions
were to proceed
nonetheless.
[5]
At the pre-trial the parties agreed that Plaintiff suffered the
injuries as set out in the respective medico legal reports filed
by
Plaintiff and suffered the
sequelae
as set out therein. It
would seem that the only real issues were the difference of opinion
between the industrial psychologists
which relates to future loss of
income and general damages. The invoices for past medical expenses
were provided to the Defendant
but for unknown reasons this issue was
still disputed.
MERITS
[6]
The Plaintiff testified that on 23 July 2011 she was travelling along
the R55, in Midrand, Johannesburg in a southerly direction.
She
approached the intersection with Dytchley Road, Kyalami. The light
was red for her upon approach. She stopped at the intersection
behind
another vehicle in the right-turn only lane until the filter arrow
turned green in her favour, allowing vehicles in her
position to
execute a right hand turn into Dytchley Road. The vehicle in
front of her had already completed its right hand
turn, whilst
following close behind it, she felt a bang and lost consciousness.
She testified that when she regained consciousness
her car was on its
roof and she was hanging upside down. She described how scared she
was that the car would blow up as she could
smell fuel. She tried to
open the door which was stuck. She was very anxious about the smell
of fuel as well as being stuck in
a confined space. She tried to
release the seatbelt. Despite some difficulty she managed to release
it and collapsed on her side
and rolled out. She was then assisted by
onlookers who took her to a traffic island. Someone assisted her to
stabilise her neck.
An ambulance arrived which took her to
Sunninghill hospital.
[7]
The accident reconstruction specialist Prof Lemmer testified that the
insured driver's motorcycle which collided with the Plaintiff's
vehicle came from a northerly direction. Plaintiff's vehicle was
almost stationary at the time of the collision. Despite that,
the
motorcycle which weighs ± 200 kg in comparison with the motor
vehicle's 1 000 kg, managed to flip the car over unto
its roof. The
motor cycle hit the motor vehicle in the middle on the passenger side
turning the motor vehicle into a V-shape as
a result of the impact of
the accident. Prof Lemmer estimated the motorcycle must have
travelled at a speed of more than a 100
kmph and said it could even
be up to 150 kmph and would have been more than 200 m away when
Plaintiff started executing her turn.
At the time that the motorcycle
collided with Plaintiff's vehicle she nearly completed her turn.
Consequently, because of that,
and the speed at which the motorcycle
was travelling she would not have seen the motorcycle approaching nor
would there have been
anything she could have done to prevent the
accident from happening.
[8]
The Defendant had no witnesses pertaining to the merits of the case
nor was there any effective cross-examination pertaining
to the
probabilities of the Plaintiff or the expert's versions. The
Defendant based their opposition on the merits on the general
assumption that nobody has an absolute right of way. It is clear that
the facts of the case, the photographs, police reports etc
were not
considered by the Defendant or its legal representatives. This was
clearly an instance where the merits were opposed without
any proper
consideration of the pertinent facts of the case. Despite the lack of
any evidence at all counsel for the Defendant
proposed a 80/20
apportionment. There is not a shred of evidence to support this
submission and there is no doubt in my mind that
the Defendant should
be a 100% liable for any damages suffered by Plaintiff.
THE
QUANTUM
[9]
The medico legal reports of all the other experts were admitted and I
will refer to the findings in these reports as well as
the evidence
led at the trial. The Plaintiff, Mr Marais, a partner of the firm
where Plaintiff works and Mr Wessels, Plaintiff's
industrial
psychologist testified. Defendant called no witnesses.
[10]
The medico legal reports indicate that the Plaintiff suffered the
following injuries:
10.1. A brief period of
post-traumatic amnesia.
10.2. Bruising on the
lateral side of the chest and her anterior abdominal wall together
with multiple abrasions.
10.3. An undisplaced
fracture to the lateral wall of her left orbit followed by swelling
of the upper- and lower eyelids.
10.4. A lateral
herniation of C6-C7 disc to the left.
10.5. A minor concussive
head injury.
10.6. Emotional shock and
trauma.
10.7. The hospital and
RAF1 form notes contusion of the thorax and abdominal wall.
10.8. Open wounds are
described on the abdomen, part of her head, shoulder, wrist as well
as lower limbs.
10.9. Multiple
lacerations.
[11]
She received the following treatment:
11.1. She was admitted to
the ICU overnight for observation and given pain tablets together
with intravenous infusion.
11.2. The Plaintiff
underwent a CT brain scan as well as a CT scan of the abdomen,
together with X-rays.
11.3. She was booked off
for 2 to 3 weeks.
11.4. The Plaintiff still
takes homeopathic medication, anti inflammatories and
paracetamol for the pain.
[12]
A perusal of the reports reveal that the Plaintiff suffers the
following symptoms and
sequelae
as a result of her injuries:
12.1. The Plaintiff
experiences pain on the left side of her neck that radiates into the
left trapezius muscle and periscapular
area. The pain sometimes
radiates down into her left arm. It worsens when she carries her
handbag over her left shoulder, but she
tries not to use her left arm
when it is not necessary.
12.2. When her symptoms
is at its worst (she describes it as 10/10) it lasts for
approximately 2 days at a time and this occurs
approximately once a
month.
12.3. The Plaintiff
struggles to fall asleep and wakes up tired. She can no longer sleep
on her left side. Her sleeping difficulties
are also as a result of
the emotional
sequelae
of the collision. In addition, she
still gets flashbacks of the accident.
12.4. She suffers from
severe headaches approximately twice a month.
12.5. She experiences
pain in her right knee when she runs at the gym.
12.6. She initially
suffered a lot of pain in her jaw when chewing, but this has
improved.
12.7. She has mild global
weakness of her left arm.
12.8. The neck injury has
resulted in a mild neurological deficit in her left arm.
12.9. The Plaintiff
suffers from severe anxiety when driving as well as post-traumatic
stress disorder.
12.10. The left shoulder
and scapular area suffers from pain radiating down her left arm. This
is described as cramping, spasm,
shooting and stabbing, squeezing and
a pins and needles sensation on a daily basis.
12.11. The Plaintiff
describes the pain as debilitating. Her inability to train and run as
she did before leaves her feeling unmotivated
and depressed. This
affects her ability to cope with the demands of everyday life.
12.12. She suffers from
moderate depression and anxiety.
12.13. In addition, she
suffers from mild discomfort in her lower back.
12.14. Excursion/physical
exercise such as lifting heavy objects mainly heavy files causes
pain. The pain is worsened in cold weather
as well as when she is
feeling stressed or anxious. Sustained standing and static sitting
also causes pain.
12.15. She experiences
difficulty in day-to-day home management, especially with the more
physically demanding tasks.
[13]
The experts are of the view that she will require future medical
treatment, this will include symptomatic treatment of her
headaches.
The neck pain will require medication, physiotherapy and biokinetics.
She has a 50% chance of undergoing surgery to
her neck in the future
and this will entail 6 weeks of sick leave after the neck fusion. She
will require treatment by a clinical
psychologist for her symptoms of
post traumatic stress disorder. The Plaintiff will require
occupational therapy of approximately
15 hours, including a worksite
visit. In addition, she will require an array of assistive devises.
She will require 30 sessions
of psychotherapy.
[14]
Her educational and employment history reveals the following:
She
matriculated in 2002 and obtained a B-Social Sciences Degree in 2007.
The Plaintiff was an exceptional student in circumstances
where she
obtained distinctions in all of her subjects both in matric and at
university. The Plaintiff's career started in January
2007 as a
trainee financial service provider, before taking up a position as an
investment consultant until August 2008. She was
then appointed as an
HIV research assistant until September 2009 prior to taking up a
position as a training co-ordinator and human
resources administrator
until February 2011. She was appointed as a sales co-ordinator with
Empower Logic at the time that the
accident happened in July 2011.
Each of her appointments was motivated by career progression.
[15]
According to Dr Du Plessis's report, the Plaintiff has a 7.5% loss of
work capacity solely as a result of the neck injury.
The Plaintiff
requires increased effort with lifting and carrying, she will not be
able to do this in an effortless and pain-free
manner, she will
require assistance with such tasks. She suffers from a fairly
significant degree of fatigue affecting her daily
tasks. There has
been a general decrease in efficiency and/or autonomy and this
relates to pain, spasm, decreased endurance and
increased
fatigability. The occupational therapy assessment illustrated
difficulties with accuracy and speed which may result in
error
proneness as well as reduced productivity and performance, she makes
errors at work, loses concentration and then has to
deal with the
pain which affects her ability to lift and carry heavy files. She
suffers from headaches when she sits and works
at her computer. Neck
and left-sided trapezius muscle and scapular pain radiates into her
left upper limbs when sitting at her
computer when typing or writing.
The pain affects her concentration as she is not as alert as she was
pre-morbidly, forcing her
to have to re-read passages whilst having
difficulty focusing. She considers her work speed to be slower than
it was before.
[16]
According to the occupational therapist, she may become less
productive with on-going pain and fatigue, her mental and physical
endurance is expected to diminish and her motivation levels may be
affected at work. According to the clinical psychologist, Dr
Truter,
the Plaintiff is psychologically vulnerable and struggles to meet
the extreme demands of her present work. She developed
a severe
panic attack at the office and was booked off from work for a week.
Her supervisor Mr Marais reported that he allows the
Plaintiff time
off work for physiotherapy and medical appointments. Although Mr
Marais considers her functional performance as
satisfactory, he
commented that the demands of the job are high and that it could be
accepted that her pain or discomfort may negatively
impact on her
work performance and that had the accident not occurred she may have
been doing better in her job. The occupational
therapy assessment
indicates that the Plaintiff did not meet accuracy requirements.
Factors such as the need for future surgery
and related work
absenteeism, her mood problems, psychological components related to
her pain perception, would be likely to compromise
her occupational
functioning. She presents with a measure of occupational dysfunction
and her competitiveness in the highly paced
legal profession appears
to be compromised. The Plaintiff has difficulty concentrating at work
due to the neck and left shoulder
pain as well as the difficulty
experiencing preparing bundles and files. Reading, working on a
computer, flexing her neck and sitting
all exacerbate her neck and
left shoulder pain. She applies heat to manage the pain and takes
pain tablets. The Plaintiff was left
psychologically vulnerable and
struggles to meet the extreme demands of her present work. According
to Dr Mazabow, the Plaintiff
had somewhat poorer than expected scores
on certain tests during the evaluation which are attributed to the
combination of chronic
pain and chronic depression which would have
impacted on her attention/concentration, energy and frustration
tolerance. Her on-going
problems, in particular chronic pain,
anxiety, depression and related concentration variability,
social withdrawal,
reduced frustration tolerance,
irritability and fatigability would prevent her from performing at
her full potential academically
and vocationally, necessitating
greater levels of time and effort on her part with slower
performances and proneness to error.
[17]
As a result of the aforesaid, it is postulated by Mr Wessels, the
Plaintiff's industrial psychologist in his report that she
no longer
has the potential to become an equity partner within the firm as a
direct result of the
sequelae
of the injuries sustained in the
accident.
[18]
At the time of the accident she worked at a BEE rating's agency,
Empower Logic and lived in Johannesburg as a sales co-ordinator.
After the accident she was not able to work for 2 - 3 weeks due to
her injuries. She went back to her parents in Kwa-Zulu Natal
so that
they could assist her during the period of recuperation. It became
clear to her that she would not be able to resume her
employment in
Johannesburg as she needed the support of her family. She attempted
to persuade her employer to open an office in
Kwa-Zulu Natal but when
that did not materialise she resigned. She then enrolled for and
completed her LLB degree in 2013. She
started working at Adams &
Adams Attorneys, Pretoria during January 2014 and is presently an
associate attorney and earns R38
000-00 per month.
[19]
She testified how the
sequelae
of her injuries affected her
life. She suffers from chronic pain, anxiety and depression. It must
be noted that prior to the accident
she suffered from depression
after her cousin died. She testified how all of the
sequelae
of
the accident impacts on, not only her enjoyment of life, but also her
ability to meet the demands, both physical and emotional
that her
very demanding profession requires of her. She testified that she has
difficulty concentrating at work due to neck and
shoulder pain. She
also has difficulty in preparing bundles and files.
[20]
The Plaintiff excelled academically and the evidence put before court
clearly illustrates her inherent ability to compete and
excel on an
intellectual level. Unfortunately it seems that the
sequelae
of
the injuries she sustained will curtail her career development to
some extent.
[21]
The Plaintiff called Mr Marais a partner at Adams & Adams who
works in the commercial litigation division of the firm and
in whose
team the Plaintiff works. He confirmed what he reported to the
experts and testified to the career path and potential
progression of
attorneys within the structure of the firm. He testified as to the
salary structures that apply to the different
levels of associates
and partners.
[22]
Mr Marais testified to the probable career path of the Plaintiff. He
emphasised the enormous pressure under which attorneys
in the firm
work, as well as the high level of competition both external and
internal. He states that the Plaintiff has both the
intellectual
ability and work ethic that is required, but states that she suffers
from severe pain that impacts on her performance
and he is of the
view that this will impact negatively on her career progression. He
referred to a couple of incidents where she
was forced to go home
early because of tension headaches and related pain. Although
Plaintiff tries to downplay the pain and her
difficulties as a result
of that, it does impact on her ability to perform at the required
level. He also states that absence from
work, either because of pain
or medical treatment, will impact on plaintiff's career despite the
firm's commitment to assist her.
[23]
The evidence of Mr Marais indicates that Plaintiff presents with a
measure of occupational dysfunction and her competitiveness
in the
highly paced profession of an attorney appears to be compromised.
[24]
The career path at Adams & Adams generally progresses as follows.
An associate attorney 1 will remain in such a position
for ± 2
years. Depending on satisfactory performing will then progress to
associate II. A person will remain on this level
for another
approximately 2 years and after that depending on performance such
person will become a Senior Associate and will remain
in that
position for 2 - 5 years before consideration will be given to
partnership. The first level appointment as a partner is
a salaried
partner and after that equity partner.
[25]
The Defendant's counsel had no version to put to Mr Marais and the
cross-examination was limited to emphasize her intellectual
ability
and I suppose, to illustrate that the Plaintiff's future loss of
income will be limited. Nothing was put to this witness
by the
Defendant that could assist the Court in determining a just
evaluation of the Plaintiff's impairment in the workplace.
[26]
The Plaintiff called Mr Wessels the industrial psychologist. He
confirmed his report and content thereof and testified that
his
assessment of the plaintiff is based on his knowledge and experience
of the demanding and competitive environment in which
the Plaintiff
is employed. He testified that the
sequelae
of the accident
will impact on her output capacity and will detrimentally impact on
her career progression and ultimately on her
earning capacity. The
sequelae
of the accident will also impact on her ability to
compete equally within the working environment. He confirmed Mr
Marais's evidence
that her fixed terms contract, based purely on her
work performance, will in all probability be transformed into a
permanent employment
contract.
[27]
The Plaintiff is currently employed as an associate 1. The
probabilities are favourable that she will be offered a permanent
employment contract as of 1 March 2017 at an associate 11 level. Mr
Wessels envisages Plaintiff's career progression as follows:
Senior
Associate:
1 March 2020 (4
- 5 years)
Salaried
Partner:
1 March 2023 (50% chance)
Equity
Partner:
No chance
due to challenges she faces resulting from the
sequelae
of injuries sustained in the accident.
[28]
The industrial psychologist of the Defendant, Ms Mathabela, did not
testify but applied the Patterson scale in determining
future loss of
income. According to Mr Wessels the Patterson scale is not
applicable. He said that factual information applicable
in the
organisation regulates the progression policy and procedures,
therefore one does not need to generalise. According to him
there
exists no grading in the Patterson job evaluation that deals with
lawyers, it only deals with legal advisors, which is not
comparable.
He also said you can never compare salaries, if such positions are
not contained in numeration surveys.
[29]
Regarding the evidence of Mr Wessels the Defendant's cross
examination was limited to the simple issue that their industrial
psychologist's assumption should be accepted that Patterson level D,
25th percentile should be accepted. She was however not called
as a
witness and consequently Defendant failed to persuade the Court that
Mr Wessel's evidence should not be accepted.
[30]
Only the Plaintiff submitted an actuarial report. The actuary applied
pre-accident contingencies of 15% and post-accident contingencies
of
25%. Counsel for Applicant argued that it is under the circumstances
of this matter appropriate to apply these contingencies.
Defendant
said 10% and 5% is more appropriate, but was unable to provide any
legal or factual argument on why he proposed that
these contingencies
should apply.
[31]
The Court has a wide discretion in determining the appropriate
contingencies and it will depend on the Court's impression of
the
case.
[1]
The Defendant
contributed no assistance whatsoever to assist the Court to exercise
its discretion judicially. The Court therefore
has to take the sole
responsibility to determine the contingencies with the assistance of
the evidence put before Court by the
Plaintiff.
[32]
In order to determine the appropriate contingencies I need to
consider the particular circumstance of the case. I do that with
reference to the medico legal reports and evidence before me
presented by the Plaintiff. If one considers the circumstances of
this case, in particular the abilities of the Plaintiff, the
sequelae
of her injuries and how it will probably impact on her career
progression and on the other hand what the situation would have been,
but for the accident, I am of the view that but for the accident
Plaintiff would probably have progressed to a salaried partner
and
maybe even an equity partner. I also take into consideration the fact
that the accident apparently motivated her to study law,
which she
may not have done if the accident didn't occur. Plaintiff is clearly
an exceptional person and has the intellectual ability
to accomplish
whatever she sets her mind to, but due to the
sequelae
of her
injuries her career progression will in all probability be
compromised. She will experience periods of absence from work
due to
pain and the possibility of medical treatment will also impact on her
career progression. In the light of circumstance of
this case I am of
the view that a 15% contingency deduction pre-morbid and a 25%
contingency post-morbid is appropriate.
[33]
The actuary did a calculation of future loss of income based on Mr
Wessels and Ms Mathabela's reports this is set out as follows:
SUMMARY
OF RESULTS
SCENARIO 1 –
MR WESSELS
Losses before the
application of the Amendment Act
Future loss
Value of income
uninjured:
R 27 516 188
Less contingency
deduction: 15.00 %
R 4 127 428
R 23 388 760
Value of income injured:
R 18 007 994
Less contingency
deduction: 25.00%
R 4 501 999
R 13 505 995
Total net
loss:
R 9 882 765
Losses after the
application of the Amendment Act
Net future loss: Total
net loss:
R 5 840 500
R 5 840 500
SCENARIO 2 - Ms
MATHABELA
Future loss
Value of income
uninjured:
R 9 665 717
Less contingency
deduction: 15.00%
R 1 449 858
R 8 215 859
Value of income
injured:
R 9 665 717
Less contingency
deduction: 25.00%
R 2 416 429
R 7 249 288
Total net
loss:
R 966 571
[34]
As there was no evidence led that could persuade me that Ms
Mathabela's scenario should be accepted I am of the view that an
award of future loss of income of R5 840 500-00 is appropriate.
GENERAL
DAMAGES
[35]
Pertaining to general damages I was referred to a number of cases. In
my view the following cases might assist in determining
an
appropriate award in this matter:
a.
TORRES v RAF [Corbett & Honey Vol 6 A4-1] R931 000.00
Award:
R600 000.00
2016: R1, 025 000.00
South
Gauteng High Court : 2007
The
plaintiff, a 24 year old male suffered a severe diffuse brain injury,
a soft tissue injury to the neck, face and chin. The head
injury
resulted in significant neuro-cognative and neuro behavioural
deficits associated with concentration, working memory, impulse
control and abstract reasoning. This also resulted in depression and
adjustment disorder. The award in 2007 for general damages
was R600
000.00.
b.
HERBST v RAF [Corbett & Honey Vol 6 A4-7] R931 000.00
Award:
R600 000
2016: R1, 025 000.00
Witwatersrand
Local Division : 2007
The
Plaintiff, a 34 year old male anaesthetist suffered a severe head
injury rendering him functionally unemployable with no residual
earning capacity. The award in 2007 for general damages was R600
000.00.
c.
ABRAHAMS v ROAD ACCIDENT FUND2014 (7J2) QOD 1 (ECP)
Award:
R500 000
2016: R619 000
41-year-old
male spray painter
Synopsis
of injuries and after-effects:
Badly
comminuted fracture of the right proximal femur; fractures of the
right distal fibula and patella; fracture of the right medial
malleolus; severe soft tissue injuries to the left hand; secretions
in the chest and a mild concussive traumatic head injury. Surgery
in
the form of an open reduction and internal fixation of the right
femoral fracture; open reduction of the patella fracture and
immobilisation with wire pins and loops; open reduction and internal
fixation of the medial malleolus with a screw and plate was
used to
immobilise the fractures of the distal fibula. Subsequent surgery to
remove wires at the site of the patella fracture and
to carry out
realignment and revision of the non-union of the right distal
fibula/lateral malleolar fracture. Shortening of the
right lower limb
with need to wear an assistive device. Secondary osteoarthritis in
the left knee. Limitation of range of motion
and pain in the right
hip, knee and ankle. Pre-existing generalised anxiety disorder and
social phobia exacerbated. Rendered unemployable.
d.
D'HOOGHE V ROAD ACCIDENT FUND 2010 (6J2) QOD 1 (ECP)
Award:
R650 000
2016:R930 000
Injured
person:
21-year-old
male.
Synopsis
of injuries and after-effects:
Diffuse
axonal brain injury; fractures of the humerus, tibia, and tibial
plateau; severe trauma to the lungs and chest; development
of
respiratory distress syndrome requiring intubation and ventilation
for two months. Extended recuperation in hospital complicated
by
embolism, infections of the lungs and development of bed sores on the
face and body. Permanently disabled with unattractive
gait, immobile
right ankle, a clawed right foot, pain and restricted movement of the
right hip, an inability to straighten the
right knee and right elbow,
discomfort in the lower back, restriction of movement of the left
shoulder, loss of balance control,
an inability to walk fast or run,
and sleep disturbance. Impairment of social, emotional cognitive and
executive functioning manifested
by excessive fatigue, episodes of
frustration, irritability, short-term memory deficit, attention and
concentration lapses, depression
and inappropriate behaviour.
Significant impact upon ability to work and to compete in the
employment market.
[36]
All the aforesaid cases present with more serious injuries and
sequelae.
In most of the cases the Plaintiffs were rendered
unemployable. Helpful as comparable cases maybe, each case must be
determined
on its own merits. I am of the view that in the light of
Plaintiff's injuries and
sequelae
thereto as well as how all
of this impacts on her life an award of R600 000-00 is just.
POST
MEDICAL EXPENSES
[37]
The Plaintiff provided proof of the medical expenses incurred but up
to the end of the trial Defendant did not indicate why
these amounts
are still disputed. I award the post medical expenses claimed by the
Plaintiff.
CONDUCT
OF DEFENDANT AND ITS LEGAL REPRESENTATIVES
[38]
In this case I deem it appropriate to deal with the conduct of
Defendant and its legal representatives. I must also note that
what
occurred on this case is common in many of the cases where the RAF is
the Defendant.
[39]
As already stated on the first day of the trial counsel for the
Defendant informed me that he was only briefed the previous
day. He
had no witnesses, nor did he have the opportunity to peruse any of
the expert reports. He initially informed me that he
could not obtain
any instructions from the claims handler. This is a claim in excess
of R6 million and required proper preparation,
consultation and
consideration by the Defendant and its legal representatives. It is
unconscionable that legal representatives
appear who are not prepared
and who are unable to assist the Court to come to a just and
equitable award.
[40]
I was specifically perturbed by the fact that Defendant's counsel was
not properly prepared to conduct the case. The defence
was of no
assistance whatsoever. No version was put to the witnesses, the
cross-examination was ineffective and did not assist
the Court. It
was obvious that the Defendant was merely going through the motions,
without having a proper strategy or purpose.
Legal representatives in
matters concerning the Defendant act as custodians of public
resources and should assist the Court to
make fair and just awards.
It can't be expected of the Courts to do the Defendant's work for
them.
[41]
I requested the claims handler in this matter to come to Court and
explain the procedures at the Road Accident Fund pertaining
to the
preparation and instructions to the legal representatives in an
attempt to get to the bottom of the problem. Mr Lekhuleni,
the claims
handler in the present matter came to Court. He testified that he
took the matter over from Ms Baloyi who is on maternity
leave. I
asked him on what basis the merits were not conceded, seeing that the
Defendant had no witnesses, no version to put to
the Plaintiff nor
any evidence at all that there could have been contributory
negligence. I was surprised, to say the least, when
he informed me
that the Plaintiff turned right and therefore had no absolute right
of way. I asked him whether he considered the
facts of this specific
case and also asked him to look at the photographs taken of the
Plaintiff's vehicle, which was flipped on
its roof by the motorcycle
of the insured driver's vehicle. His reaction made it clear that this
was the first time that he had
seen the photographs. Ms Ferguson in
her address told me that there is a general instruction by the RAF
not to concede merits if
someone were executing a turn. I did not
want to believe this, but Mr Lekhuleni's evidence confirmed the
veracity of her submission.
The RAF and its legal representatives
have a duty to consider the facts of each case, which include the
expert reports, police
reports, witnesses' statements etc. together
with their legal representatives in order to come to a considered
opinion regarding
a possible concession, settlement and/or
presentation of a case in Court. Generalized instructions lead to a
waste of public money
and court resources. Matters should only
proceed to trial if the Defendant has a proper case to present in
court. If there is no
case to present opposition is a mere waste of
public money.
[42]
I tried to ascertain why counsel was briefed so late and the attorney
for the Defendant gave evidence which was particularly
vague. He
referred to the service level agreement with the RAF which apparently
impacts on his ability to arrange consultations
and brief counsel
timeously. I requested him to avail the Court of this agreement, he
however indicated that he could not find
it. With the kind assistance
of Mr Mounmakwe from the RAF I finally succeeded in obtaining the
standard service level agreement
between the Defendant and its legal
representatives. On perusal of this agreement it became clear to me
that if all concerned follows
the prescribed procedures, there exist
no reason whatsoever for a situation like the one that arose before
me to occur.
[43]
The RAF and their legal representatives owe a duty to society to
investigate cases properly and if matters are opposed it should
be
done on properly considered legal grounds. Opposing matters without
such a basis is not acceptable. Representatives for the
RAF should be
properly prepared and should timeously obtain proper and considered
instructions. I am afraid that I often get the
impression in these
matters that claim handlers are for reasons unknown to me reluctant
to give instructions and therefore leave
it in the Court's hands.
This amounts to an abuse of public money and Court resources and
should be discouraged, if needs be by
ordering officials and legal
representatives to pay the costs out of their own pockets.
[44]
I considered ordering the claims handler and the attorney to pay the
costs
de bonis properis.
Due to the fact however that I still
do not know who is to blame for the chaos in this matter I refrain
from making such an order,
but the time has indeed come that Courts
should consider ordering the officials and/or legal representatives
to pay costs
de bonis properis.
In appropriate cases the Court
may also consider not allowing counsel and the attorneys to charge a
fee. As I did not alert the
legal representatives in this matter to
that possibility it will be inappropriate to make such an order in
this case. I am also
of the view that this judgment should be sent to
the Regional Manager and Senior Managers of the Defendant for
Pretoria and Johannesburg
for their consideration. Hopefully they
will intervene and take action to prevent similar situations from
occurring.
[45]
I make the following order:
45.1. The Defendant is
liable for a 100% of the damages suffered by the Plaintiff;
45.2. The Defendant shall
pay the total sum of R6 458 263-87 (Six million three hundred and
fifty eight thousand two hundred and
sixty three rand and eighty
seven cents) to the Plaintiff's attorneys, Adams & Adams, in
settlement of the Plaintiff's action,
which amount is calculated as
follows:
General
damages:
R 600 000-00
Past medical
expenses:
R 17 763-87
Future loss of
earnings/earning capacity:
R5 840 500-00
The aforementioned total
sum of R6 458 263-87 (Six million four hundred and fifty eight
thousand two hundred and sixty three rand
and eighty seven cents)
shall be payable by direct transfer into the trust account of Adams &
Adams, detail of which are as
follows:
Account
holder:
Adams & Adams Trust Account
Bank:
Nedbank
Branch:
Pretoria
Branch
code:
198765
Account
number:
[…]
Reference:
NK/KW/P1299
45.3. The Defendant shall
furnish the Plaintiff with an undertaking in terms of Section
17(4)(a) in respect of 100% of the costs
of the future accommodation
of the Plaintiff in a hospital or nursing home or treatment of or
rendering of a service or supplying
of goods to her after the costs
have been incurred and on proof thereof, resulting from the accident
that occurred on 23 JULY 2011.
45.4. The Defendant shall
make payment of the Plaintiff's taxed or agreed party and party costs
on the High Court scale, which costs
shall include but not be limited
to the following:
45.4.1. The fees of
Senior-Junior counsel on the High Court scale, inclusive of her full
trial day fees of 18 and 19 August 2016
and her fee for the
preparation of heads of argument;
45.4.2. The reasonable,
taxable, preparation, qualification, travelling and reservation fees,
if any, of the following experts of
whom notice have been given,
being:
45.4.2.1. Dr T Birrel
(Orthopaedic Surgeon);
45.4.2.2. Ms P Badenhorst
(Occupational Therapist);
45.4.2.3. Mr W Wessels
(Industrial Psychologist);
45.4.2.4. Dr K Truter
(Clinical Psychologist);
45.4.2.5. Dr J J du
Plessis (Neurosurgeon);
45.4.2.6. Dr M Mazabow
(Clinical Neuropsychologist);
45.4.2.7. Mr G A Whittker
(Actuary); and
45.4.2.8. Mr G Lemmer
(Accident Resconstruction Expert)
45.5. The reasonable
costs of all consultations between the Plaintiff, and/or her
attorneys, and/or her counsel and/or the witnesses,
and/or the
experts in preparation for the hearing and to discuss the terms of
this order;
45.6. The reasonable,
taxable, accommodation and transportation costs (including Toll and
E-Toll charges) incurred by or on behalf
of the Plaintiff in
attending all medico-legal consultations with the parties' experts,
all consultations with his legal representatives
and the Court
proceedings, subject to the discretion of the Taxing Master;
45.7. The reasonable,
taxable transportation costs (including toll and e-Toll charges)
incurred by or on behalf of the Plaintiff
in respect of all witnesses
attending the Court proceedings;
45.8. The above costs
shall also be paid into the aforementioned trust account.
45.9. The following
provisions shall apply with regards to the determination of the
aforementioned taxed or agreed costs:
45.9.1. The Plaintiff
shall serve the notice of taxation on the Defendant's attorney of
record;
45.9.2. The Plaintiff
shall allow the Defendant 7 (seven) Court days to make payment of the
taxed costs from date of settlement
or taxation thereof;
45.9.3. Should payment
not be effected timeously, the Plaintiff shall be entitled to recover
interest at the rate of 10.25% on the
taxed or agreed costs from date
of allocaturs or settlement to date of final payment.
[46]
This judgment is to be sent to the Regional manager and Senior
Managers of the RAF in Pretoria and Johannesburg for their
consideration.
[1]
See Southern Insurance Association v Bailey NO 1989(1) SA 98 (A);
Van Der Plaats v South African Mutual Fire & General Insurance
Company 1980(3) SA (A) at 114-5