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 1182
|
|
L v Road Accident Fund (21536/2013) [2016] ZAGPPHC 1182 (29 December 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
LOSS OF INCOME – EXPERT REPORTS
ACTUARIAL
– Loss of income – Expert reports – Court’s
concern at handling of Road Accident Fund matters
–
Insufficient time for court to engage with expert reports –
Unsatisfactory process considering costs of expert
reports that
they are relied on in a rushed hearing – Counsel not to
cherry pick excerpts favourable to case.
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 21536/2013
29/12/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
N
M
L
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
Jansen
J
Nature
of Action:
[1]
This action arises from a motor vehicle collision on 22 August 2010.
The plaintiff injured her left knee. The taxi in which
she was a
passenger rolled.
[2]
The plaintiff was taken by ambulance to the Potchefstroom Hospital
where she was clinically evaluated and admitted on 22 August
2010.
X-rays were taken. She was treated and discharged. However, her tibia
had to be debrided and she had to return to hospital
to have an
abscess drained on 3 September 2010 as during the debridement, glass
chards had been overlooked.
[3]
The plaintiff was discharged on 3 September 2010 and attended follow
up visits on 10 September 2010, 15 September 2010 and 27
October
2010.
[4]
When the matter was called before me, general damages and future loss
of earnings were the only issues still in dispute.
[5]
The plaintiff was left with ugly scars on her knee and can move her
knee only 0% - 120% whereas the normal extension is 0% -
150%, which
was the state of affairs when she was examined on 23 July 2013. She
had tenderness behind the left patella and over
the proximal aspect
of the left tibia.
[6]
Reference was made by a doctor, Theo Enslin, the independent medical
examiner, to "the AMA Guides of the Sixth Edition"
(the
American Medical Association Guides), the primary purpose of which
was to rate the plaintiffs impairment in order to assist
the experts
and the court in determining the compensation to be awarded to the
plaintiff as a result of injury.
[7]
The table used by Dr Enslin is set out at p 17 of his report: -
Impairment
due to:
Page ref. & Table
A Grade I laxity of the medial
collateral ligament of the left knee
P.510, Table 16/3
10% LEI
LEI stands for Lower Extremity
Impairment
Left knee chondromalacia
P.509, Table 16/3
2%LEI
Left knee tendonitis in the
infrapatellar tendon
P.512, Table 16/4
2%LEI
TOTAL IMPAIRMENT OF THE LEFT
LOWER EXTREMITY
14% LEI
6%WPI
(WPI stands
for Whole
Person
Impairment)
Cosmetic Scarring
5%WPI
Post-Traumatic Stress Disorder
5%WPI
TOTAL IMPAIRMENT OF THE WHOLE
PERSON
Combined Value: 6%
+
5%
+
5%
P.604
15% WPI
[8]
The terms used above require explanation. The Road Accident Fund
Amendment Act 19 of2005 (the
"Amendment Act")
came
into effect on 1 August 2008. The Amendment Act has substantially
curtailed claims for non-patrimonial loss, due to the new
rules and
procedures applicable to the qualification and assessment of such
claims. Before such a claim may be made, the plaintiff's
injury must
be capable of being categorised as "serious".
[9]
It may be termed a "serious injury" when in terms of the
AMA Impairment Rating (the American Medical Association Guides),
the
injury results in 30% or more of the whole-person impairment. When
the 30% bar is not reached, non-patrimonial loss may be
included when
the injuries resulted in any of the consequences considered in the
AMA Guides namely: 1) serious long-term impairment
or loss of a body
function; permanent serious disfigurement, 2) severe long-term mental
or severe long-term behavioural disorder;
3) loss of foetus. It is
important to note that Dr Enslin took into account both cosmetic
scarring, and Post-Traumatic Stress Disorder
in equal measure to
conclude that the plaintiff had suffered a 10% WPI.
[10]
L Steynberg and R Ahmed,
The Interpretation of the Amended
Road
Accident Fund Act 56 of 1996
with regard to "serious injury
claims", state the following in the Potchefstroom Electronic Law
Journal
[2012] PER 22
et. seq.: -
(c)
If
the
injury
is
not
on the list of non-serious injuries, the medical practitioner may
assess the injuries according to the ''AM,4 Impairment Rating".
[1]
If the injuries result in 30 per cent or more of whole-person
impairment (hereinafter referred to as "WP/'') in terms of the
6th edition of the American Medical Association Guides
[2]
(hereinafter referred to as the ''AM,4 Guides'') non-patrimonial loss
may be awarded. Alternatively if the injury is not on the
list of
non-serious injuries and did not result in 30 per cent or more of
WPI, then non-patrimonial loss may still be claimed if
the injuries
fall within the following "narrative test":
[3]
(aa)
they resulted in a serious long-term impairment or the loss of a body
function;
(bb)
they constitute permanent serious disfigurement;
(cc)
they resulted in severe long-term mental or severe long-term
behavioural disturbance or disorder; or
(dd)
they resulted in the loss of a foetus.
[11]
Initially the plaintiff failed to follow the provisions of the
Amendment Act regarding the filing of a RAF 4 form and the assessment
by an independent medical practitioner and the further procedure set
out by the Amendment Act
[4]
.
This problem was rectified and the independent medical practitioner
assessed that under the narrative test, the plaintiff had
suffered
"cosmetic scarring and Post-Traumatic Stress Disorder".
[12]
The argument in court was addressed by both parties on the basis that
they accepted that the plaintiff had suffered permanent
serious
disfigurement with concomitant emotional distress.
[13]
Dr Enslin's finding was that although the plaintiff had not reached
the 30% whole person impairment bar, she qualified under
the
narrative test for general damages.
The Plaintiff's
earning potential:
-
[14]
Ms L Gildenhuys, an occupational therapist, provided an expert report
on 6 May 2016: -
[15]
Summary of difficulties and Loss of Amenities of Life:
-
Injuries
Sustained:
The
plaintiff sustained the following injuries in the accident in
question:
·
Grade 1 laxity of the medial collateral ligament of the left
knee.
·
Left knee chondromalacia.
·
Left knee tendonitis in infrapatellar tendon.
·
Symptoms of Post-Traumatic Stress Disorder.
[16]
Subsequent to the assessment process, Ms Gildenhuys drew the
following conclusions:
·
Screening of the following aspects did not reveal any significant
impediments
as sequelae of the collision: cognitive abilities, social
skills and interpersonal relationships.
·
The clinical evaluation of physical abilities indicated diminished
muscle
strength of the left knee.
·
The integrated assessment of pain indicated possibly mild to moderate
presence
of pain which would likewise have an influence on the
plaintiff’s participation in daily activities and work demands.
Subjective
symptom/disability reports, medical finding, responses on
pain questionnaires and her pain behaviour mostly correlated with
this.
Scoring on the Oswestry did not correlate with other pain
questionnaires and behaviour, possibly indicating some exaggeration
behaviour.
·
Emotional and cognitive components assessment results indicated
possible
mild to moderate difficulties. From the information obtained
during the assessment, it appears that the claimant still suffers
from diminished motivation, possible depressed mood, feelings of
anxiety and apparent low self-esteem as a result of the accident
under discussion.
·
The assessment of Activities of Daily Living (ADL) and Instrumental
Activities
of Daily Living (IADL) did not indicate any significant
difficulties.
·
The assessment of driving ability, incorporating the results of the
clinical
- and functional assessments, indicated that the claimant
neither has current hand-, arm-, foot- or leg difficulties or any
diseases
which could interfere with her ability to perform normal
tasks associated with driving a vehicle, nor is she expected to have
such
future difficulties due to accident related sequelae.
·
The assessment of domestic tasks, taking into account all other
clinical
and functional assessment results, indicated that the
claimant probably has mild difficulty to take care of some domestic
tasks
such as spring cleaning even though it is not expected of her
at present.
[17]
Ms Gildenhuys further gave the following summary of the plaintiffs
educational and work history:
·
The claimant completed Grade 12 whereafter she gained some work
experience as an administrative clerk on a contract basis.
·
The claimant completed work-related courses such as Computer
Literacy, completed in
2010 (Basupi College).
·
At the time of her involvement in the collision, the claimant
was unemployed although she was reportedly accepted to start with
military training the following year at the South African Military
Health Services. Her intention was eventually to study nursing
through the military.
·
In 2011 she started working part time at Potchefstroom Hospital
as an administrative clerk. The employment was on a 6 month contract
basis. She returned to this position in 2013 for another 6 months.
She is currently a first year nursing student at North West
University.
[18]
Ms Gildenhuys continued by stating: -
"When
contemplating alternative positions or training, her inherent
physical and mental capacity, age, assessment results,
educational
history and work experience should be taken into account. In my
opinion, based on Ms L.'s current functional capability,
as presented
during this assessment, Ms L. should be able to continue her nursing
studies. She will however benefit from implementing
good ergonomic
principles in the workplace, including occasional rest breaks from
standing and assistance with lifting weights
exceeding her
capabilities. It will furthermore be crucial for her to adequately
manger her weight in order to limit the excess
weight placed on her
affected knee and thereby placing unnecessary strain on it which
might lead to pain and even possible degeneration.
It should be noted
that there is a vast array of possible careers in the nursing field
which can typically range between mostly
light work (e.g. working in
a pharmacy clinic) to heavy work (e.g. working in a spinal unit)."
[19]
Ms Gildenhuys further listed the plaintiff’s current
accident-related complaints to be as follows: -
·
"Claimant reports occasional black-outs
when stressed or under pressure. After such an incident she
is
unable to recall what occurred during that period (Deference
is
given to the relevant
medical experts for further comment in this regard).
·
Claimant reports that she finds it difficult to
climb the stairs at the university (due to pain and fatigue in the
left knee) and
has to rest frequently.
·
Experiences pain in her left knee when walking
more than 30 minutes.
·
Experiences pain in her left knew when squatting
e.g. when cleaning.
·
Claimant reports that she is unable to exercise
and has gained a lot of weight since the accident
·
Experiences pain in her left knee when
standing/or longer than 30 minutes.
·
Experiences occasional lower back pain."
[20]
She repeated that in terms of general work demands the plaintiff had
no problem with sitting, walking or bending but with lifting
and
carrying.
[21]
She concluded that it appeared that the plaintiff was capable of
medium to heavy work at present. She also opined that this
would
remain the case in the future.
[22] She observed that
prolonged standing and weight handling would remain a problem for the
plaintiff but that when she was assessed
in May 2015, the plaintiff
was capable of medium to heavy work. She commented on the fact that
the plaintiff’s greatest physical
drawback was her problem with
obesity and hat she would have to manage her excess weight in order
to prevent unnecessary strain,
pain and even possible degeneration.
[23]
She also pointed out that it would be crucial for the plaintiff
adequately to manage her weight in order to limit the excess
weight
placed on her affected knee, thereby placing unnecessary strain on it
which might lead to pain and even possible degeneration.
Nonetheless,
she was of the opinion that the plaintiff would be able to continue
with her nursing career, which could include less
strenuous physical
demands namely working in a pharmacy clinic, consulting, paediatric
settings and the like. The plaintiff might
therefore experience some
limitation with regard to job freedom and career choices, but would
be able to continue working.
[24]
A second industrial psychologist Ms N Brink opined as follows after a
thorough evaluation on 4 March 2015: -
"However,
considering her post accident career and academic path, it is the
writer's view that this was not affected by the
accident and she
would likely have followed the same, regardless of the accident.
She
reported to the writer that her intentions are to complete (nursing)
studies in 2018, whereafter, she would qualify as a Professional
Registered Nurse.
Based
on the available information, it is
the writer's view
that Ms L. would likely have completed her Nursing Degree in 2018 and
entered the labour market, as a Professional
Nurse, probably within
approximately 6 months (mid-2019, at age 28). She would likely have
entered the Department of Health on
salary Notch 1 for Professional
Nurse Grade 1 (General Nursing).
The
writer notes that the Salary Scales for Professional Nurses Grade I,
II and III (General Nursing) consist of 6 Notches each,
each notch
being 3% higher than the previous. With satisfactory work performance
Nursing staff qualify for a 1 notch increase every
2nd year.
Ms
L.'s basic salary would, with acceptable performance and apart from
any inflationary adjustments, probably have increased to
the maximum
salary of a professional Nurse Grade 1 in approximately 2029 (at age
38), to the maximum salary of Professional Nurse
Grade II, in
approximately 2041 (at age 50), and to Notch 4 of a Professional
Nurse Grade III in approximately 2049 (at age 58).
Thereafter
her income would probably only have increased based on inflationary
pressure until retirement It should however be noted
that overtime
would have consistently remained a significant part of her income.
The
writer therefore suggests that these uncertainties be dealt with by
means of a slightly higher than normal pre-morbid contingency
percentage, to be decided by the Court.
Retirement
at age 60.
"
[25]
She further opined that having regard to the collision: -
"Ms L. completed
Gr 12 in 2008, at Botoka High School She attended Basupi FET College
in 2010,for a 6-month course in Computers
and she obtained a
Certificate. She attended North West University in 2014, where she
started studying Psychology, but discontinued
her studies.
In
2015 she received a Government bursary and is currently a JS' year
student at the North West University, studying towards a Nursing
Degree. She expects to complete her studies in 2018 and become a
Professional Registered Nurse. However, there was no guarantee
that
she would receive the bursary every year.
There
is no evidence that she has suffered a past loss of income as a
result of the accident.
'
[26]
She stated the following regarding future loss of income
She is at risk of not
completing her Nursing Degree within the stipulated time period (in
2018). Furthermore, given that she is
advised to seek employment in
the nursing field that will not aggravate her symptoms (her career
options have therefore been curtailed),
she is also at risk of
experiencing longer periods of unemployment when entering the labour
market. She is also at risk of periodically
not qualifying for the
performance based notch increases and as a result she may experience
slower than expected earnings progress
and may not reach her likely
pre-morbid career ceiling earnings. She may also be at risk of
working fewer hours overtime. If she
does not reach her likely
pre-morbid career ceiling earnings, her monthly pension when she
retires will also be lower than expected.
The exact financial impact
of these risks can however not be predicted reliably and it is
recommended that this risk be dealt with
by means of a higher than
normal post accident contingency, to be negotiated by the legal
teams or determined by the Court.
[27]
She sketched the plaintiff as having been rendered vulnerable and an
unequal competitor in the open labour market and that
her career
choices had been curtailed. She also noted that an individual who
suffers from pain and discomfort, as well as residual
psychological
sequelae, may be subject to fluctuating concentration and reduced
productivity, which will have an impact on the
individual's
efficiency. She pointed out that the plaintiffs symptomology might
worsen and she might develop osteo-arthritis or
even have to obtain a
total knee replacement.
[28]
She stated that she would nonetheless likely have continued working
until age 60, which is the normal retirement age for government
employees.
[29]
She concluded her report by stating that having regard to the
accident, the plaintiffs income would have been the same as that
predicted pre-morbid, except that a higher than normal post-accident
contingency deductions, to be negotiated or determined by
the Court,
had to be applied.
[30]
The clinical psychologist Dr L Roper stated that the plaintiff
suffers from symptoms of Post-Traumatic Stress Disorder. Dr
Roper
stated that she was self conscious of her scarring and placed
her Whole Person Impairment due to permanent disfigurement
and the
effect thereof on her self-image at 10%.
[31]
Dr Roper also noted that the plaintiff had a history of pre-morbid
psychological vulnerability which he termed Major Depressive
Disorder. Her mother had abandoned her at the age of three months and
she had never met her. Her half sister had passed away
in 2008.
Her father died a week after the accident and they experienced
financial difficulties. These aspects contributed significantly
to
her psychological difficulties after the accident, impacting on her
academic functioning, self-esteem and her quality and enjoyment
of
life.
[32]
In contrast, Dr PT Kumbirai (also an occupational therapist) opined
that Ms L. had a 20% chance of developing osteoarthritis
of the left
knee in the next 10-20 years which might worsen to warrant a total
knee replacement. He opined that her Whole Person
Impairment was
rated at 8%. He believed that due to her problems standing, walking
and weight-lifting, her reduction in work capabilities
could be as
high as 10%. He also opined that if she were to develop
osteoarthritis of the left knee and continue working as a nurse,
it
was his opinion that she would retire 3 years before normal
retirement age.
[33]
Mr Potgieter (on behalf of GRS Actuarial Consulting) set out his
calculations of the plaintiffs expected income as follows:
-
Basic Salary:
·
From 1 July 2019, a basic salary of R195'819 per year
(Professional Nurse Grade 1 Notch 1 Public Sector; effective April
2015 after
allowing/or the 7% increase)
·
Thereafter I allowed for:
o
The usual notch increases of 3% every second year with
the last notch increase in July 2049 (Professional Nurse Grade 3
Notch 4)
o
Promotions between grades in July 2031 and July 2043
·
In addition to the notch increases above, I allowed for
earning inflation of 6% in April each year from April 2015 until
retirement
at age 60.
Fringe
benefits:
·
She
would have received an annual bonus equal to
monthly basic
salary.
·
Ms L. would have been a member of the Government Employees
Pension Fund and would have contributed 7,5% of basic salary towards
this fund. At normal retirement at age 60, she would have become
entitled to a pension calculated as 1/55 times years' service times
average salary during the two years prior to retirement as well as a
gratuity of 370% of annual pension. Based on service from
July 2019,
I allowed/or an initial pension of 57% of final salary as well as a
gratuity of 370% of the initial pension. I further
assumed that the
pension after normal retirement would have increased with assumed
price inflation.
Future
income having regard to the accident:
·
Considering the above, I assumed that, having regard to the
accident, Ms L.'s income would the same as descried above, except
that
higher contingency
deductions, to be negotiated,
might be applied.
[34] In a further report
he provided the following calculation results:
I
calculated the present value of the future income to be as follows as
at 29/05/2015:
Future Income
Income if
accident did not occur
4'692'180
Income given
accident did occur
4'692'180
The
loss of income, if any, could be taken as the above-mentioned present
values multiplied by an appropriate contingency differential
(for
example, for every 1
%
contingency differential
the estimated loss would be R46'922 (R4'692'180 x 1%)).
[35] As set out in
various judgments where no actual loss of earnings can be
demonstrated, no damages may be claimed. However, it
is clear that
certain injuries may manifest detrimental consequences only in the
future, and it is within this context that the
application of higher
contingencies comes into play.
General
Damages:
[36]
The only basis upon which the plaintiff can claim general damages is
due to disfigurement and concomitant emotional trauma.
[37]
Professor PF Coetzee, a plastic, reconstructive and aesthetic
surgeon, states in his report that the plaintiff has several
unsightly large scars namely; -
·
A fibriotic left pre-patellar scar that measures 5 x 3 cm. It
is deeply contracted with a 2 cm contour deformity. There is hypo and
hyperpigmentation present and the wound healed by secondary intention
·
Two linear horizontal scars supra-patellar on the medial
aspect of the left knee
o
2 x 0.5 cm
o
0.5 x 0.5 cm
Both
are hypo-pigmented
·
Superficial abrasion scars infra-patellar on the medical aspect of
the
left knee, hypo pigmented
o
1,0 x 0,5cm
o
1,0 x 1,0cm
·
A vertical incisional scar on the medial aspect of the proximal lower
leg
left. It is 4 x 2 cm, smooth and hypo-trophic, hyper-pigmented
and it healed by secondary intention.
[38]
He added that the scarring could be improved moderately but should
otherwise be accepted as permanent.
[39]
Professor PF Coetzee placed her Whole Person Impairment due to
disfigurement and the effect on her self-image at 3%. He added
that
according to Dr Roper she also suffers from symptoms of
post-traumatic stress disorder and a depressed mood. All the factors
contributing to this have been set out above.
[40]
As has often been stated in case law there is unfortunately no expert
who can place a value on non-patrimonial losses and the
amount to be
awarded lies in the discretion of the court.
[41]
In
Mpondo v Road Accident Fund
[2011] 6 QOD Fl-11
(EC)
it was held that in considering past awards in the
assessment of general damages, it is vital that a proper basis of
comparison
must first be ascertained. The court should look at the
pattern of awards made in comparable circumstances rather than a
singular
award made in respect of injuries similar to the case at
hand. Often parties (and the courts) make inaccurate comparisons when
assessing general damages, resulting in wayward awards being made.
The
circumstances
must be comparable.
[42]
The particular circumstances of the plaintiff are that she was 20
when she was injured. There is according to Dr Peter T Kumbirai
the
specialist orthopaedic surgeon, a 20% chance that she will develop
osteo-arthritis of the left knee in the next ten to twenty
years
which might worsen to a total knee replacement.
[43]
The closest case that the plaintiff's counsel could find comparable
to the plaintiff's injuries was the case of
Titus v The Road
Accident Fund
2003 (5) QOD E7-9 (CA)
where the
plaintiff had suffered soft tissue injury to the cartilage of the
knee. There was no abnormality to the knee. An amount
of R80 000 was
granted by the court as general damages (with the prospect of knee
surgery in the future). In current terms such
an amount equates to
Rl61 000. In this regard, it is important to note that the plaintiff
cannot rotate her leg fully. As far as
the plaintiffs post
traumatic stress is concerned, her emotional life was impacted by
various factors.
[44]
Regarding the concomitant emotional trauma, Dr L Roper (a clinical
psychologist) reported the plaintiff’s entire emotional
state
as depressed, demonstrating negative feelings towards her future.
Factors in her life such as her father's passing a week
after the
collision compounded her feelings, increased irritability, and
decreased her levels of energy and motivation. He placed
the
plaintiff’s impairment rating at 10% regarding mood and
behavioural disorder.
[45]
In
Daniels v RAF2000
(5) QOD C3-1 (C)
a 39 year
old married woman who had endured whiplash of her neck in a collision
and had suffered from post-traumatic stress disorder
but who had
responded well to treatment was awarded R80 000 in general damages
which translates into R196 000 in today's terms.
[46]
As the two species of non-patrimonial loss (scarring and concomitant
emotional distress) suffered by the plaintiff largely
overlap. An
amount of R200 000.00 in general damages is considered to be a fair
amount in the circumstances of this case.
[47]
Regarding future loss of income, it has been pointed out that the
actuary assesses no difference in her pre- and post-morbid
earnings
but proposes higher pre and post-morbid contingencies. I agree
with this proposition.
[48]
Given the age of the plaintiff when the collision occurred a
pre-morbid contingency of 25% is considered apt. A post-morbid
contingency of 35%, is similarly regarded as apt in the
circumstances.
The manner in which
the matter has been handled:
[49]
What is troublesome is the manner in which this matter has been dealt
with - as is the case with most Road Accident Fund
("RAF")
matters.
[50]
Usually, at the commencement of a hearing, the court is told in a
very curt address by the plaintiff’s counsel that the
merits
have been settled and that the only matter in dispute is general
damages and/or loss of future/part earnings. A bundle of
expert
reports are then handed to the Court, which clearly cannot be read in
the allotted time. The advocates in the next matter
already hover
around at the back of the courtroom like vultures, impatient to
finalise their case, earn their money and go home.
This is a
customary scenario in RAF trials. Proper preparation is usually not
the norm. Trials are usually regards as a quick "in-and-out"
procedure.
[51]
The time that the "hearing" will last is estimated at about
1.5 hours inclusive of argument. In most instances, the
court is not
furnished with heads of argument as they cannot be taxed absent a
court order to that effect. Neither is the court
taken through all
the experts' reports. The advocate for the plaintiff cherry picks the
sections which he/she believes favours
the plaintiff’s case and
fails to highlight the chinks in the armour of the plaintiffs case.
In casu,
the advocate for the plaintiff failed to point out to
the court that the plaintiff was overweight which would have a marked
impact
on her injured knee.
[52]
The counsel for the RAF usually comes to court on a wing and a
prayer, effectively without instructions and no expert reports
or
witnesses. The best the advocate may wish to accomplish is to find
fault with the plaintiff's expert reports. Apparently the
cause of
this phenomenon is because the RAF first waits to see the contents of
the plaintiff’s expert reports before deciding
whether it
should incur the costs to appoint its own experts.
[53]
In
Standard Bank of South Africa Ltd v Hand
2012 (3) SA 319
(GSJ)
it was held in paragraph 5 thereof that:
"It is improper for
a litigant in motion proceedings simply to attach a (lengthy)
document to an affidavit and then proceed
to quote therefrom without
any indication as to which paragraphs are indeed being quoted, and to
expect a judge
-
in preparation for the matter - to struggle through
what is often a quagmire of fine print to check if the quotes are in
fact correct."
[54]
Although motion proceedings were in issue in the
Standard Bank
matter, the same principle applies in RAF matters. It is not
for the court, after a rushed "hearing", to spend hours
perusing
expert summaries in order to glean sufficient knowledge in
order not merely to rubber stamp what it read to them by counsel as
isolated excerpts taken at random from the expert reports. A court
simply cannot function in this way.
[55]
However, in our courts, this is what happens on a daily basis and the
RAF has to pay thousands of rands sought for the preparation
of
expert reports which are relied in this very rushed and incomplete
way - in most instances without oral evidence as the accuracy
of the
reports has been agreed upon by counsel. This money should rightfully
go to those who suffer hardship. This practice is
clearly wholly
unsatisfactory.
[56]
In this matter, counsel for the RAF indeed assisted the court. He had
read the reports carefully and pointed out the difference
in opinion
between the experts. He emphasised that the majority of them are in
agreement that the plaintiff would not suffer any
future loss of
income. But for him, the issue of the excess weight of the plaintiff
and the impact thereof on the functioning of
her knee would not have
been brought to the court's attention.
Costs:
[57]
It was argued at the hearing that the defendant had continually
vacillated regarding its stance in respect of payments to be
made to
the plaintiff. At the previous court hearing of 4 June 2015 (the
matter had already been set down for 29 May 2015
-
but was removed for purposes of settlement) the defendant made an
offer on 3 June 2015 and withdrew it on 4 June 2015. (At that
hearing, the merits were conceded by the defendant.)
[58]
The matter was then placed on the roll for 24 February 2016 and stood
down until 8 March 2016 (because of a lack of judges)
and continued
to trial on 9 March 2016. Once again, the defendant made a new offer
of payment of loss of earnings and general damages
but withdrew the
offer.
[59]
There are various reasons for withdrawing offers - the offer may not
be acceptable to the other party or counsel may be of
the opinion
that the offer is unwarranted. In this matter, the counsel for the
defendant said the offers were not accepted. Parties
are entitled to
their day in court and need not settle a matter. In this case, the
facts that various experts opined that there
was no loss of income on
the part of the plaintiff allowed the defendant's counsel to argue
this point and to point out the deficiencies
and discrepancies in the
plaintiff's case.
[60]
One can understand the frustrations of the plaintiff’s counsel,
given the fact that the collision occurred in 2010, but
that does not
detract from the defendant's counsel's right to argue the matter.
[61]
It was argued by the counsel for the plaintiff that the matter should
be reported to the CEO of the defendants. I cannot agree.
In my
opinion, the defendant's counsel was entitled to put forward his
arguments and to point out the fact that some experts opined
that
there was no loss of income and that none was payable. He was also
entitled to point out to the Court that the plaintiff’s
excess
weight exacerbated her knee injury.
[62]
A draft order was emailed to me. I have deleted various paragraphs
therefrom (in line with the defendant's submissions) with
which I
concurred and have signed next to such deletions.
[63]
As regards the amount to be paid, the actuary did not make as bold as
to propose contingencies. I have set out above which
contingences I
deem fair in the circumstances. I shall also assume, based on Dr
Kumbirai's evidence, that the plaintiff would have
retired 3 years
earlier, namely at the age of 57.
[64]
The actuary is instructed to calculate the loss of income applying
the contingencies set out above and to accept that the plaintiff
would have retired at the age of 57.
[65]
Once the amount has been calculated, it can be inserted into the
draft court order. The court is also to be provided with any
contingency agreement (should there be such an agreement) and the
customary affidavit pertaining thereto. The order, as completed,
can
then be made an order of court in chambers.
----------------------
JANSEN J
JUDGE OF THE HIGH COURT
For
the Plaintiff
ADV R STRYDOM 082 498 4336
Instructed
by
Gert Nel Incorporated, 1235 Cobham Road, Queenswood,
Pretoria (012 333 8290) (Ref No. GN6524/nb)
For
the Defendants
ADV R SHITLHELANA 0731 360 182
Instructed
by
Dyason Attorneys, 134 Muckleneuk Street, New
Muckleneuk, Pretoria (012 452 3500) (Ref No. E Rautenbach/sj/KH1058)
IN
THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
On this the 10th day of
March 2016 before the Honourable Justice Jansen J in Court 8F
CASE
NO: 26536/2013
In
the matter between:
L. N.
M.
Plaintiff
and
DRAFT
ORDER
ROAD
ACCIDENT
FUND
Defendant
After
having read the papers of record filed, having heard counsel and
considered the matter,
IT IS ORDERED THAT:
1.
It is recorded that the merits were previously resolved on the
basis that the Defendant shall pay 100% of the Plaintiff's proven
or
agreed damages.
2.
It is further recorded that the Defendant was ordered to
furnish the Plaintiff with an undertaking in terms of Section
17(4)(a)
of Act 56 of 1996 for payment of 100% of the costs of 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
resulting from a motor vehicle accident on
22 August 2010,
to
compensate the Plaintiff in respect of the said costs after the costs
have been incurred and upon proof thereof, which undertaking
the
Defendant has to date not furnished to the Plaintiff and the
Defendant is accordingly ordered to furnish the Plaintiff with
such
undertaking within 20 (twenty) days of the date of this order.
3.
The Defendant shall pay to the Plaintiff the sum of
R_____________.
4.
In the event of the aforesaid amount not being paid timeously,
the Defendant shall be liable for interest on the amount at the rate
of 10.25% per annum, calculated from the 15th calendar day after the
date of this Order to date of payment.
5.
The Defendant shall pay the Plaintiffs taxed
or agreed party and party costs on the High Court scale, from 5 June
2015, up to and
including 24 February 2016, and notwithstanding, and
over and above the; costs referred to in paragraphs 7.2.1 below.
6.
The Defendant shall pay the Plaintiffs co on
the High Court scale, and on a scale as between attorney and own
1ent, from 24 February
201 , up to and including 8 March 2016, and
notwithstanding, and over and referred to in paragraphs 7.2.1 below,
as well as the
cost of Adv R Strydom referred to in paragraph 7.2.3
below.
7.
Paragraphs 5 and 6 above will be subject thereto that:
7.1
In the event that the costs are not agreed:
7.1.1
The Plaintiff shall serve a notice of taxation on the
Defendant's attorney of record;
7.1.2
The Plaintiff shall allow the Defendant 14 (FOURTEEN) days
from date of allocatur to make payment of the taxed costs.
7.1.3
Should payment not be effected timeously, the Plaintiff will
be entitled to recover interest at the rate of 10.25% per annum on
the taxed or agreed costs from date of allocatur to date of final
payment.
7.2
Such costs shall include:
7.2.1
The costs incurred in obtaining payment of the amounts
mentioned in paragraphs 3 and 4 above;
7.2.2
The costs of and consequent to the appointment of counsel, Adv
W J Botha, on the Senior Junior Scale, including, but not limited
to
counsels' full fee for 24 February 2016, as well as his preparation;
7.2.3
The costs of and consequent to the appointment of counsel, Adv
R Strydom, on the Senior Junior Scale, including, but not limited
to
counsels' full day fee for 8 March 2016, as well as his preparation,
and with the
proviso
that Adv R Strydom’s costs also be subject to paragraph 9
below;
7.2.4
The costs of all medico-legal, radiological, MR, sonar,
pathologist, actuarial and addendum reports and/or forms obtained,
all such
reports and/or forms furnished to the Defendant and/or its
attorneys, as well as all reports and/or forms in their possession
and
all reports and/or forms contained in the Plaintiffs bundles,
including, but not limited to the following:
7.2.4.1
Dr Theo Enslin;
7.2.4.2
Leon Roper
7.2.4.3
Elzeth Jacobs and/or Liezel Gildenhuys;
7.2.4.4
Dr Kumbirai;
7.2.4.5
P C Diedericks and/or N Brink;
7.2.4.6
Professor PF Coetzee;
7.2.4.7
Johan Potgieter and/or George Schwalb.
7.2.5
The reasonable and taxable preparation, qualifying and
reservation fees, if any, in such amount as allowed by the Taxing
Master,
for both 24 February 2016 and 8 March 2016, of the following
experts, being:
7.2.5.1
Dr Theo Enslin;
7.2.5.2
Leon Roper
7.2.5.3
Elzeth Jacobs and/or Liezel Gildenhuys;
7.2.5.4
Dr Kumbirai;
7.2.5.5
P C Diedericks and/or N Brink;
7.2.5.6
Professor PF Coetzee;
7.2.5.7
Johan Potgieter and/or George Schwalb.
7.2.6
The reasonable costs incurred by and on behalf of the
Plaintiff in attending all medico-legal examinations;
7.2.7
The costs of and consequent to the Plaintiffs trial bundles
and witness bundles, including the costs of 6
(six)
copies
thereof;
7.2.8
The costs of and consequent to the holding of all pre-trial
conferences;
7.2.9
The travelling costs of the Plaintiff, who is hereby declared
a necessary witness.
8.
The amounts referred to in paragraphs 3, 4, 5, 6 & 7 will
be paid to the Plaintiff’s attorneys, Gert Nel Incorporated,
by
direct transfer into their trust account, details of which are the
following:
ABSA
Bank
Account
number: […]
Branch
code: 335545 REF:
GN6524
9.
The Chief Executive Officer (CEO of the
Defendant, in his apacity as operational head of the Road Accident
Fund (RAF), is ordered
to identify the person or persons responsible
for the instructions to the defendant's attorney in this matter, and
to make such
information available the Plaintiff before or on 17
March 2016, by formal service on the offices of the Plaintiffs’
attorneys.
10.
The CEO of the RAF, as well as the person(s)
so identified by the CEO of the RAF are to serve and file affidavits
setting out why
the costs referred to - paragraph 6 above, should not
be paid by both the defendant and him/her/the
de
bonis propriis,
the one to pay, the other to be
absolved (the remaining issue),
such affidavits to be filed before or on 31
March 2016.
11.
The Plaintiff is to serve and file answering
affidavits, if she chooses, before o on 14 April 2016.
12.
The CEO and the persons so identified are to
serve and underlying affidavits, if they so choose, before or on 28
April 2016.
.
13.
All such affidavits are to be filed with the
registrar of the presiding officer.
14.
The above Honourable Court
will
then render additional judgment on the remaining
issue of the costs referred to in par. 6 above.
-------------------------------------
BY
ORDER OF THE COURT
----------------------------------------
REGISTRAR
OF THE HIGH COURT PRETORIA
GERT NEL INC
Plaintiff's
attorneys
Ref:
GN6524
[1]
See par 4 of RAF 4.
[2]
Reg 1(ii) sv "Definitions".
[3]
As per reg 3(l)(b)(iii); see par 5 of RAF 4.
[4]
Even had these procedures not been followed, the court's
jurisdiction is not ousted where the merits of the case have been
conceded.