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[2014] ZAGPPHC 525
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Basson v Road Accident Fund (70963/2013) [2014] ZAGPPHC 525 (10 June 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
70963/2013
DATE: 10 JUNE
2014
In the matter
between
NICOLAAS
MARTHINUS
BASSON
..........................................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
........................................................................................................
DEFENDANT
JUDGMENT
LEDWABA
DJP
:
[1] The only issue
raised by the parties is the nature and extent of the undertaking
which the Defendant should issue to the Plaintiff
in terms of Section
17(4) of Act 56 of 1996 (The Act’) having regard to the
backcloth of the facts set out hereunder.
1.1 The Plaintiff
instituted two action proceedings against the Defendant arising from
two separate accidents involving motor vehicle
in which the Plaintiff
was involved.
1.2 The first
accident occurred on 6 September 2007, hereinafter referred to as the
first claim, and the second accident occurred
on 30 January 2009;
hereinafter referred to as the second accident.
1.3 The first claim
was settled and finalised on 13 September 2012 and the Court, having
heard Counsel in respect of the so-called
future medical certificate
or undertaking granted the following order:
"2.
The Defendant must
furnish the Plaintiff with an undertaking in terms of Section
17(4)(a) for the costs of the future accommodation
of the Piaintiff
in a hospitai or nursing home or treatment of or rendering of a
service or supplying of goods to him after the
costs have been
incurred and or proof thereof, resulting from the accident that
occurred on 6 September 2007, limited to 20%.”
[2] Of importance is
that in both the first and the second claim the defendant admitted
100% liability for the Plaintiffs proven
or agreed damages.
[3]
What triggered the issue
in
casu
is
that the undertaking in respect of the first claim was limited to 20%
because the expert’s reports at the time stated that
the
Plaintiffs injuries could be attributed to 20% for the first accident
and 80% for the second accident. The report of Dr Mare
on which the
first court order was based after the Plaintiff and Defendant’
Counsel addressed the court stated the following:
“
In
beide gevalie was van agter af in sy motor vasgery met gevolglik
ekstensie beserings van die rug en nek. Die tweede botsing het
baie
meer pyn veroorsak en wat (sic) teen baier hoer velositeit. Eiser
reken 80% vir die tweede en 20% vir die eerste botsing.
”
[4] However it
should also be noted that one Dr du Plessis in respect of the
injuries of the first claim’s injuries and the
sequelae stated
that:
“
With
regard to the 50% apportionment between the first and second accident
(sic) I agree with Dr J J du Plessis that the first accident
account
(sic) for 50% of his current status.”
[5] The Defendant’s
Counsel submitted that on pages 108 -109 of the Plaintiffs bundle of
expert reports, the Plaintiffs neurologist,
Dr J A Smuts, and the
Plaintiffs orthopaedic surgeon, Dr Deodat More agreed that 50% of the
sequelae the Plaintiff currently experiences
is attributable to the
injuries sustained in the second collision.
[6] Based on the
said report, the Defendant tendered to pay 50% of the Plaintiffs
future medical expenses relating to the injuries
sustained in the
second collision by providing an undertaking in terms of section
17(4) of the Act, limited to 50%.
[7] It should be
further noted that that the Plaintiffs experts that recommended that
the undertaking be limited to 20% in the first
accident are the same
experts who recommend that the undertaking should be limited to 50%
in the second accident.
[8] The experts were
not requested to comment on why they initially recommended that the
undertaking should be limited to 20% and
in the second accident it
should be limited to 50% only. More particularly the experts should
have been requested to state why
should the Defendant not be liable
to pay the difference of 30% future medical expenses since ail the
injuries were related or
cause by the first and the second accident.
[9] The Defendant’s
Counsel further submitted that if the plaintiff does not accept the
undertaking offered, the Plaintiff
should first seek a variation of
the first court order.
[10] The Defendant
never submitted that the injuries could have been caused or
aggravated by something other than the aforesaid
two accidents.
[11] The old and the
new Acts have been enacted for this benefit of persons who sustained
injuries caused in a motor collision(s).
[12]
I cannot find any sensible legal basis upon which the Plaintiff
should be deprived 30% of future medical expenses. Furthermore
in
both accidents Plaintiff sustained a soft tissue injury to his neck
and back. The determination of exactly what percentage should
the
Defendant compensate when the claim is submitted for future medical
expenses would be difficult to determine, if not impossible
if this
court is to order that the Defendant should furnish an undertaking
limited to 50%
in
casu.
The
Defendant admitted liability for 100% of the Plaintiffs proven or
agreed damages. I see no reason why the defendant should not
give an
unlimited undertaking.
[13] To avoid
unnecessary confusion regarding the undertaking and since the
injuries are accident related to Defendant should be
furnish the
Plaintiff with an unlimited undertaking.
I therefore make the
following order:
1. The Defendant
shall pay the sum of R 1 195 601.00 (One million one hundred ninety
five thousand six hundred and one rand only)
to the Plaintiffs
attorneys, Erasmus-Scheepers Attorneys, in settlement of the
Plaintiffs claim, which amount shall be payable
by direct transfer
into their trust account, details of which are as follows:
Bank: ABSA BANK,
LYNWOOD ROAD
Account holder:
ERASMUS-SCHEEPERS ATTORNEYS
Account number:
4[...]
Reference: B[...]
2. The Undertaking
in terms of Section 17(4)(a) granted in terms of the Court Order
dated 13 September 2012 in case number 58104/2009
is hereby withdrawn
or set aside.
3. The Defendant is
ordered to furnish the Plaintiff with an undertaking in terms of
Section 17(4)(a) for a 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 him after the costs
have been incurred and on proof thereof resulting from the accidents
that occurred on 6 September
2007 and 30 January 2009, as provided
for in the medico legal reports filed on behalf of the Plaintiff.
4. The Defendant
must make payment of the Plaintiffs taxed or agreed party-and-party
costs on the High Court scale, which costs
shall include the
following:
4.1 All fees of
Senior-Junior Counsel on the High Court scale, including the costs of
preparation of the Plaintiffs heads of argument
(if any);
4.2 The reasonable
taxable costs of obtaining all expert/medico-legal and actuarial
reports from the Plaintiffs experts which were
furnished to the
Defendant;
4.3 The reasonable
taxable reservation, preparation and qualifying fees, if any, of the
following experts of whom notice have been
given, being;
4.3.1 Dr D Maré;
4.3.2 Ms A Greef;
4.3.3 Schoombee
& Wessels;
4.3.4 Dr J A Smuts;
4.3.5 Dr C Hearne;
4.3.6 Mr G
Whittaker.
4.4 The reasonable
taxable transportation costs incurred by the Plaintiff in attending
medico-legal consultations with the parties’
experts, subject
to the discretion of the Taxing Master;
4.5 The reasonable
taxable costs of preparing the trial bundles in terms of the Practice
Directive dated 8 June 2010;
4.6 The reasonable
taxable travelling costs, costs of preparing for pre-trial
conferences and preparation of pre-trial minutes and
the costs for
attendance of pre-trial conferences of the Plaintiffs attorney;
4.7 The reasonable
costs of the Plaintiffs attorney for the preparation for trial.
4.8 The above costs
will also be paid into the aforementioned trust account.
5. The following
provisions will apply with regards to the determination of the
aforementioned taxed or agreed costs:
5.1 The Plaintiff
shall serve the Notice of Taxation on the Defendant’s attorneys
of record;
5.2 The Plaintiff
shall allow Defendant 7 (seven) court days to make payment of the
taxed costs from date of settlement or taxation
thereof;
5.3 Should payment
not be effected timeously, Plaintiff will be entitled to recover
interest at the rate of 15.5% on the taxed or
agreed costs from date
of allocator to date of final payment.
6. It is recorded
that no contingency fee agreement exists between Plaintiff and his
attorney.
LEDWABA DJP
DEPUTY JUDGE
PRESIDENT
Appearing on behalf
of the Plaintiff: Adv R Ferguson
Instructed by:
Erasmus-Scheepers Attorneys
Appearing on behalf
of the Defendant: Adv. L Coetzee
Instructed by:
Maponya Attorneys
Date of Judgment: 10
June 2014