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[2016] ZAGPPHC 1124
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Meshake v Road Accident Fund (21588/2015) [2016] ZAGPPHC 1124 (21 October 2016)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 31588/2015
DATE
OF HEARING: 18 OCTOBER 2016
DATE
OF JUDGMENT: 31 OCTOBER 2016
In the
matter between:
MESHAKE:
NTHABISENG
EMILY
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J
U D G M E N T
AVVAKOUM
IDES, AJ
[1] This
is an action in which the plaintiff clams compensation for loss and
injury arising from a motor collision. When the case
was allocated to
me both counsel indicated that only two issues stood to be
determined, namely the loss of earnings and general
damages. The
remaining aspects of the claim, including the merits, had been dealt
with previously. In my chambers my attention
was drawn to the
defendant's intention to refer the question of general damages to the
Health Professions Council of South Africa.
Both counsel wished to
make some remarks about the issues in my chambers but I requested to
be addressed in court.
[2] At
the commencement of the trial the plaintiff s counsel submitted that
all of the plaintiff s medic legal reports were admitted
by the
defendant, in particular the contents, clinical findings, conclusions
and opinions expressed therein. The defendant's counsel
confirmed
this agreement.
[3] The
plaintiff testified that she had been working as a child minder for
Mr. Mabaso and she had earned R2000.00 per month.
Her salary
was paid monthly in cash and she had not documentary proof to produce
to substantiate the income. Her duties included
taking care of the Mr
Mabaso's children, cooking and cleaning the house. After the
collision she was off for a long period of time.
Upon her return to
Mr Mabaso she experienced difficulty in performing her duties and as
a result she and Mr Mabaso would often
have words. The plaintiff
testified that she lost her job as a result of not being able to
perform her tasks as she did before
the collision.
[4] When
she returned to her work after the collision her income had been
reduced to R1800.00 per month and when she was dismissed
she was paid
R1200.00 for that month. She then tried to go back to school but was
attacked once on her way to school and, all in
all, her attempt was
unsuccessful. The plaintiff became very emotional at this stage of
her evidence and I could observe the desperate
state she was in. The
plaintiff stated that she coped by way of a child grant and the money
that the father of her child contributes
to the child. Most of the
money goes to the child and is she is left with very little to cope
with. It is clear that she is near
destitute.
[5] The
defendant started cross examination by wanting to put to the
plaintiff the contents of a letter apparently written by Mr
Mabaso
about the reasons for the plaintiff losing her employment. When I
asked the defendant's counsel whether Mr Mabaso would
come and
testify he said that Mr Mabaso would not testify. Consequently I
could not allow the cross examination on the contents
of the letter.
The defendant's counsel then indicated that he did not wish to cross
examine the plaintiff on anything else. The
plaintiff closed her
case.
[6] In
argument the plaintiff submitted that in the light of the defendant
having accepted all the medico legal reports and not
having filed any
of its own, it must follow that the defendant had also accepted the
serious injury assessment. The plaintiff's
counsel referred me to the
governing
Regulation 3
(3) (d) of the
Road Accident Fund Amendment
Act 19 of 2005
and submitted that the regulation provides that if the
defendant is not satisfied with the serious injury assessment,
it
must,
(my emphasis) reject the RAF4
form and give its reasons for doing so, or direct that the third part
(the plaintiff) submit herself
to a further assessment. The defendant
clearly did not do so and having accepted the reports which included
the serious injury
assessment of the plaintiff, could hardly support
any contention that it wished to refer the question of general
damages to the
HPCSA. I enquired from the plaintiffs counsel whether
this would be case despite the decision in Raf v Thokozani Duma and
Others
2012 ZASCA 169.
Plaintiff s counsel submitted that despite the
decision in Duma, if the defendant did not follow the wording of
regulation 3
(3) (d) it could then not refer the question of general
damages to the HPCSA. I do not believe that the issue is as simple as
contended.
[7] The
defendant's counsel was silent about this issue and made no
submissions whatsoever, despite having indicated in my chambers
that
the defendant wanted to refer the issue general damages to the HPCSA.
I enquired from the Defendant's counsel whether he had
any further
submissions but he did not. I consequently regard the defendant to
have abandoned the decision to refer the general
damages to the
HPCSA. The only submissions made by the defendant's counsel were in
respect of the loss and I shall deal with such
submissions hereunder.
This being the case, I do not intend making any ruling on the issue
save to state that the decision in Duma
is clear inasmuch as it gives
the defendant the right to refer the question of general damages to
the HPCSA at any stage before
judgment.
[8] On
the amount in respect of general damages the plaintiff counsel
referred me to the case of Mohale v Raf 2015 (7A4) QOD 15
GNP,
wherein the court considered the general damages of the
plaintiff therein. The injuries are arguably similar to the
plaintiff's injuries herein. The court in Mohale awarded the sum of
R650 000.00 as general damages. The current value of the award
is in
the region of R722 000.00. The defendant's counsel made no
submissions on the quantum of general damages. I am satisfied
that an
amount of R700 000.00 is fair
compensation for the plaintiff's general
damages.
[9] Both
counsel submitted and were satisfied that, in respect of
the contingencies to be applied to the
figures provided by the
plaintiff s actuary, the court should apply a 10% spread, namely a
difference of 10% between the past earnings
and future earnings to
the figures
"had
the
collision
not
occurred''
and a 25% spread, namely a difference of 25%
between the past earnings and future earnings to the figures
"having
regard
to
the
collision".
The
actuarial calculation arrives at a figure of R526 400.00. Iam
satisfied that on the facts this amount is fair compensation
for the
plaintiff loss of earnings.
[10]
Consequently, I make the following order:
[10.1]
The defendant is ordered to pay a capital amount of R1 226
400.00 to the plaintiff, in full and final
settlement of the
plaintiffs claim. Payment shall be made into the trust account of the
plaintiff's attorneys, details of which
are as follows:
Mokoduo
Incorporated Trust Account (Now MED Legal)
First
National Bank, Rosebank Branch
Account
Number: [6...]
Branch
Code: 253305
[10.2]
The defendant is ordered to furnish the plaintiff with a 100%
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
or supplying of goods to the plaintiff arising out of
the injuries sustained by the plaintiff in the motor vehicle
collision of
9 July 2013 after such costs have been incurred and upon
proof thereof.
[10.3]
The defendant will pay the agreed or taxed party and party High Court
costs of the action, such costs to include:
[10.3.1]
the costs attendant upon the obtaining of payment of the
capital amount referred to in paragraph 1 above.
[10.3.2]
the preparation expenses of the report and preparation expenses for
trial of the plaintiff's experts: Dr Scher, Dr Shapiro,
Dr Townsend,
Ms Gibson, Ms Ledwaba, MMs Leibowitz and Mr Loots, if any and as
agreed or allowed by the Taxing Master.
[10.3.3]
the costs of counsel.
[10.3.4]
cost of the witnesses if any.
[10.4]
The defendant tenders to pay the plaintiff's taxed or agreed
party and party costs on the applicable High Court
scale subject to
the following conditions:
[10.4.1]
the plaintiff shall, in the event that costs are not agreed, serve
the notice of taxation on the defendant attorneys of
record; and
[10.4.2]
the plaintiff shall allow the defendant 7 (seven) court days to make
payment of the taxed costs.
[10.5]
The plaintiff has concluded and signed a written Contingency
Fee Agreement whereby the plaintiff at no stage carried
any risk for
fees or any portion thereof.
[10.5.1]
The Contingency Fee Agreement complies with the Contingency Fee Act
66 of 1997.
[10.5.2]
In terms of such agreement, the plaintiff shall be liable for fees
equal to or higher than our normal fee on an attorney
and own client
scale, provided that such fees which are higher than the normal fees
shall not exceed such normal fees by more than
100 per cent and
provide further that, as the claim is one sounding in money, the
total of any such success fee payable shall not
exceed 25% of the
value of the claim, which amount shall not purposes of calculating
such excess, include any costs.
_______________________________
G.
T. AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION,
PRETORIA
DATE:
31
OCTOBER
2016
Representation
for Plaintiff:
Counsel:
B. Anderson
Instructed
by:
Mokoduo Attorneys
Representation
for Defendant:
Counsel:
A.
M. Mametse
Instructed
by:
Meche Attorneys