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[2024] ZANCHC 21
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M v Road Accident Fund (514/2019) [2024] ZANCHC 21 (8 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NUMBER: 514/2019
DATE
HEARD: 15 November 2023
DATE
DELIVERED: 8 March 2024
Reportable
Circulate
to judges
Circulate
to Magistrates
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to Regional Magistrates
In
the matter between:
J[...]
J[...] M[...]
obo
PLAINTIFF
R[...]
J[…] M[...]
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
OLIVIER
AJ
INTRODUCTION:
1.
The
Plaintiff in this matter sued herein in his representative capacity
as father and natural guardian of R[...] J[...] M[...] (herein
after
referred to as “
the
Minor
”
).
2.
The
Plaintiff’s claim against the Road Accident Fund (“
the
Defendant
”
)
was based on an accident that occurred on 14 April 2017 when the
Minor was struck by a motor vehicle whilst the Minor was inside
the
yard of a premises in Upington, Northern Cape Province (herein after
referred to as “
the
Accident
”
).
3.
It
was alleged that the Accident was caused by the sole negligence of
the driver of the insured vehicle and that, as a result of
the
Accident, the Minor suffered serious bodily injuries which included:
3.1
Multiple
bruises and abrasions to the head;
3.2
A
fracture of the left leg; and
3.3 A
back injury.
4.
It
was furthermore alleged that as a result of the Accident and the
above injuries sustained during the Accident, the Minor has
since and
as a result of the Accident:
4.1
Been
suffering from regular headaches;
4.2
Become
aggressive and has undergone a personality change;
4.3
Suffered
memory and permanent hearing loss;
4.4
Suffered
neurocognitive impairment with neuropsychological
sequelae
;
and
4.5 Suffered
a permanent brain injury.
5.
The
matter served before the learned Lever J on 22 and 23 February 2023
who, after hearing the legal representatives for both parties,
inter
alia
ordered:
5.1
That
the Defendant is liable to compensate the Plaintiff for 100% of the
Plaintiff’s proven or agreed damages suffered as
a result of
the Accident;
5.2
That
the issue pertaining to general damages is postponed
sine
die
;
5.3
That
an amount of R 1 177 895,00 (One Million, One Hundred and
Seventy-Seven Thousand, Eight Hundred and Ninety-Five Rand) be paid
by the Defendant to the Plaintiff in order to compensate the
Plaintiff for the Plaintiff’s loss of earnings; and
5.4 That
a trust be established for the estate of the Minor.
6.
During
or about October 2023, the Plaintiff (as Applicant) lodged an
application in terms whereof the Plaintiff essentially sought
permission/leave from this Court for the Plaintiff to present his
expert evidence in as far as the
quantum
of general damages is
concerned, by way of affidavit.
7.
This
application was served on the State Attorney in Kimberley who, at all
material times, represented the Defendant herein but
the application
was not opposed by or on behalf of the Defendant.
8.
On
the date of the hearing of this matter the respective parties’
representatives advised that they were
ad
idem
about
the fact that the matter, in as far as the
quantum
of general damages
was concerned, will be argued and that I will be tasked with deciding
such
quantum
based only on the
argument presented by the respective legal representatives as well as
on the contents of the papers that served
before me.
9.
Mr.
Mogano who appeared for the Defendant, confirmed that the Defendant
will issue the Plaintiff with the relevant undertaking in
terms of
Section
17(4)
of
the Road Accident Fund Act
[1]
(herein after referred to as “
the
RAF Act
”
).
THE
DECISION BY THE APPEAL TRIBUNAL AND THE NARRATIVE TEST:
10.
At
the commencement of argument of the matter on 15 November 2023, I was
reminded by the parties’ representatives that central
to
deciding the
quantum
of the general
damages in the present case, was a letter that was received from the
Health Professions Council of South Africa (herein
after “
the
HPCSA
”
)
which was dated 3 March 2022 and which in essence stated that during
a meeting of the Road Accident Fund Appeal Tribunal (herein
after
“
the
Appeal Tribunal
”
)
the following was resolved by the Appeal Tribunal:
“
That
after taking all the medical evidence into account, the Tribunal was
satisfied that the patient’s injuries do qualify
as serious
injury under the narrative test 5.3
.”
[2]
I
will henceforth refer to the above decision of the Appeal Tribunal as
“
the Appeal Tribunal Decision
”.
11.
I
do not intend to become embroiled in the details as to why the matter
was referred to the Appeal Tribunal and why the HPCSA became
involved
in the matter since the said details are irrelevant for purposes
hereof.
Suffice
it to simply confirm that the matter was referred to the Appeal
Tribunal primarily by virtue of the fact that the Defendant,
at some
stage during the proceedings, challenged and questioned the
seriousness of the Minor’s injuries.
12.
Before
dealing with the present matter any further, I deem it necessary for
the sake of completeness and also in an attempt to avoid
possible
confusion to, very briefly, deal with the issue of the narrative test
and what the relevance thereof is in the present
matter.
13.
It
is common cause that any person who wishes to claim compensation from
the Road Accident Fund (“
the
RAF
”
)
shall submit him-or herself to an assessment by a medical
practitioner in terms of the provisions of the Road Accident Fund
Regulations,
2008 as amended (herein after referred to as “
the
Regulations
”
).
[3]
14.
It
is furthermore common cause that a medical practitioner who assesses
a patient as mentioned above, shall complete the required
serious
injury report (“
the
RAF 4 Form
”
)
in the case of an envisaged claim for general damages and shall
indicate,
inter
alia
, the
whole person impairment (“
the
WPI
”
)
of the relevant patient in the relevant RAF 4 Form.
15.
The
Regulations furthermore state that if the medical practitioner finds
that the patient’s injuries resulted in a WPI of
30% or more,
such injuries shall be regarded as serious
[4]
whereas injuries will only be regarded as serious in the event of a
finding of a WPI of less than 30% , if that injury:
15.1
Resulted
in a serious long-term impairment or loss of a body function;
15.2
Constitutes permanent serious disfigurement;
15.3
Resulted
in severe long-term mental or behavioural disturbance or disorder; or
15.4
Resulted
in the loss of a foetus.
[5]
16.
It
is common cause that Part 5 of the RAF 4 Form more or less copied the
above provisions of the Regulations in as far as a finding
of a WPI
of less than 30% is concerned and that the factors mentioned in
paragraphs 15.1 to 15.4 above, are copied in paragraphs
5.1 to 5.4 of
Part 5 of the RAF 4 Form.
It
is therefore clear that where the Appeal Tribunal Decision refers to
the narrative test 5.3, reference is made to an injury that
is deemed
to be serious based thereon that such injury resulted in severe
long-term mental or behavioural disturbance or disorder.
17.
I
interrupt myself at this point to confirm that reports by the
following experts were used by and on behalf of the Plaintiff in
the
present matter which reports were confirmed by way of supporting
affidavits deposed to by the relevant experts:
17.1
Dr.
J. Wilkinson (Neurosurgeon);
17.2
Me.
A. Cramer (Clinical Psychologist);
17.3
Me.
L. De Rooster (Educational Psychologist);
17.4
Dr. D. Schreuder (Industrial Psychologist);
17.5
Me.
A. Bester (Audiologist);
17.6
Dr.
R.L. Dippenaar (Ophthalmic Surgeon); and
17.7 Dr.
P.J. Viljoen (Ear, Nose & Throat Specialist).
18.
It
should also be stated that what is to follow should be considered
against the backdrop of the fact that no expert reports were
filed on
behalf of the Defendant in the present matter.
19.
If
regards are to be had to the fact that the Appeal Tribunal Decision
was made on 11 December 2021, I hold the view that it can
be safely
assumed that, apart from the hospital and other relevant medical
records of the Minor, the only expert reports that would
have served
before the Appeal Tribunal, in order to determine the seriousness of
the Minor’s injuries at the time, were the
following:
19.1
The
report by Dr. J. Wilkinson (Neurosurgeon) dated 4 December 2018;
19.2
The
report by Me. A. Cramer (Clinical Psychologist) dated 2 July 2019;
19.3
The
report by Me. L. De Rooster (Educational Psychologist) dated 30 May
2019; and
19.4 The
report by Dr. D. Schreuder (Industrial Psychologist) dated 12
February 2020.
20.
The
RAF 4 Form completed by Dr. Wilkinson would have been considered by
the Appeal Tribunal as well since this document was completed
on 23
December 2018 and most probably formed the catalyst for the referral
of the matter to the Appeal Tribunal.
21.
What
is important for purposes hereof, is that according to the afore-said
RAF 4 Form that was completed by the Dr. Wilkinson, he
found a WPI of
29% in respect of the Minor and furthermore indicated that the
Minor’s injuries resulted in serious long-term
impairment and
loss of body function (the narrative test 5.1) as well as severe
long-term mental or behavioural disturbance or
disorder (the
narrative test 5.3).
22.
Dr.
Wilkinson however specifically excluded the Minor’s complaints
in respect of hearing loss in the afore-said RAF 4 Form
and although
Dr. Wilkinson, in his report, does list a complaint by the Minor of
impaired hearing in his left ear and refers to
it in his notes
regarding his physical assessment of the Minor, Dr. Wilkinson
specifically recommends that the Minor’s hearing
deficit should
be investigated and that the percentage WPI (awarded by Dr.
Wilkinson) will exclude the Minor’s hearing problems.
23.
In
her report of 30 May 2019, Me. L. De Rooster (Educational
Psychologist) also recommends that the Minor should be referred to
an
Audiologist and Speech-Language Therapist for comment on possible
hearing impairment and possible further intervention, but
refrains
from concluding whether the Minor definitely has an issue with
hearing loss.
Me.
A. Cramer (Clinical Psychologist) and Dr. D. Schreuder (Industrial
Psychologist) refrains from dealing in any sort of detailed
manner
with the alleged hearing issues of the Minor in their above-mentioned
reports.
24.
The
common thread throughout all of the above reports, were the focus on
the Minor’s cognitive and mental issues that arose
as a result
of the Accident and it is therefore no surprise that the Appeal
Tribunal Decision refers to the fact that the injuries
sustained by
the Minor resulted in severe long-term mental or behavioural
disturbance or disorder (the narrative test 5.3).
DOES
THE DECISION OF THE APPEAL TRIBUNAL RESTRICT THE COURT?
25.
In
order to properly decide the
quantum
of the general
damages in the present matter, the central question that needs to be
answered first is whether the Appeal Tribunal
Decision of 11 December
2021 serves as some sort of cut-off point in the sense that the Court
may not take cognizance of any expert
reports that were provided
subsequent to 11 December 2021.
26.
From
the papers that served before me, it appears that the Minor was
subjected to assessments by, amongst others, the above-mentioned
Me.
A. Bester (Audiologist) and Dr. P.J Viljoen (Ear, Nose & Throat
Specialist) subsequent to the Appeal Tribunal Decision
of December
2021.
27.
In
her report of 26 July 2023, Me. A. Bester (Audiologist)
inter
alia
finds
the presence of spontaneous and positioning nystagmus which,
according to Me. Bester confirmed the Minor’s current
complaints of vertigo and which, again according to Me. Bester, can
be expected to become more pronounced over time.
28.
It
furthermore appears that Dr. P.J. Viljoen completed a RAF 4 Form in
respect of the Minor on 4 September 2023 in terms whereof
he found a
WPI of 6% but in terms whereof he also indicated that the injuries
suffered by the Minor resulted in serious long-term
impairment and
loss of a body function, in other words the narrative test 5.1.
[6]
More
importantly to the above is the fact that in coming to the above
conclusion, Dr. Viljoen confirmed the above finding of Me.
Bester of
vertigo and also indicated a 16,7% permanent hearing loss for the
Minor.
29.
The
facts that the Minor’s hearing loss and vertigo were permanent
and also that the hearing loss and vertigo were a result
of the
Accident, were never seriously disputed by Mr. Mogano for the
Defendant and the fact also remains that the Defendant did
not file
any expert reports that could in some way or the other gainsay the
evidence given by the experts for the Plaintiff/Minor.
30.
The
question is therefore whether I may also take cognizance of the
contents of the reports by Me. Bester and Dr. Viljoen in deciding
the
quantum
of the general
damages to be awarded to the Plaintiff.
31.
Mr.
Mogano argued vigorously that the Appeal Tribunal Decision should
take preference and may only be set aside by a Court of law.
Mr.
Mogano further argued that the outcome of the assessment by the
Appeal Tribunal cannot be overruled by any other expert and
submitted
that the subsequent reports mentioned in paragraph 26 above should be
ignored.
32.
If
I understood Mr. Mogano’s above arguments correctly, it would
mean that I may only take cognizance of the various expert
reports
mentioned in paragraph 19 above as well as of the RAF 4 Form
completed by Dr. Wilkinson.
33.
During
his argument, Mr. Mogano conceded that the Minor has suffered
permanent loss of hearing as well as vertigo as a result of
the
Accident but then strangely enough submitted that this does not meet
the threshold of the narrative test 5.1 in other words
serious
long-term impairment or loss of a body function.
Given
the fact that the permanent hearing loss and vertigo of the Minor
were never questioned or denied, I fail to understand Mr.
Mogano’s
above submission and I find it to be without substance or proper
reasoning.
It
should again be reiterated that this submission by Mr. Mogano is in
fact unsubstantiated as the Defendant did not file any expert
reports
that could (possibly) gainsay the contents of the reports by Me.
Bester and Dr. Viljoen.
34.
Mr.
Ernst who appeared for the Plaintiff, unsurprisingly argued that the
subsequent reports (to the Appeal Tribunal Decision) in
respect of
the Minor’s permanent hearing loss with consequential vertigo
should be taken into account when considering the
quantum
of the general
damages to be awarded to the Plaintiff.
35.
Mr.
Ernst, again unsurprisingly, based his argument thereon:
35.1 That
the Defendant presented no evidence to the effect that the hearing
loss is not serious (in contradiction
to the report by Me. Bester and
RAF 4 Form completed by Dr. Viljoen);
35.2 That
the Defendant filed no expert reports to gainsay the findings and
recommendations made by the Plaintiff’s
experts; and
35.3 That
the Defendant referred to no authorities in support of the contention
that the Appeal Tribunal
Decision is indeed final and binding and
that subsequent findings and/or recommendations may not be
considered.
36.
Regulation
3(8)(a)
of
the Regulations makes provision for a dispute regarding the
seriousness of injuries to be referred to an appeal tribunal paid
for
by the RAF (in this case the Appeal Tribunal).
37.
Regulation
3(11)
of
the Regulations sets out the powers of an appeal tribunal and
inter
alia
states
that an appeal tribunal shall have the power to determine that an
injury is indeed serious (as was the case in the present
matter).
[7]
38.
In
terms of the Regulations, as far as I could determine, the task of an
appeal tribunal appears to be to only settle a dispute
as to whether
injuries are serious (for purposes of claiming and awarding
non-pecuniary damages/general damages) and not to prescribe
to the
Court what should be taken into consideration and what not, in
eventually determining the
quantum
of such damages.
I
could find no authorities to the contrary and I was certainly not
referred to any.
39.
I
therefore hold the view that I am not restricted in any way by the
Appeal Tribunal Decision and that I may give consideration
to all of
the reports by all of the experts for the Plaintiff regardless of
whether same was issued prior to or subsequent to the
Appeal Tribunal
Decision.
40.
My
above view therefore also puts paid to Mr. Mogano’s argument
that the
quantum
of
the general damages to be awarded to the Minor, should be determined
based only on the fact that the Minor’s head injury
was
described by Dr. Wilkinson as being mild to moderate.
[8]
The
quantum
of the general damages will therefore be determined
based on the mild and moderate head injury as well as the permanent
vertigo
and hearing loss suffered by the Minor as a result of the
Accident.
GENERAL
DAMAGES:
41.
The
quantification of general damages to be awarded to a Plaintiff is a
matter of judicial discretion as general damages, by their
very
nature, are not capable of being measured in monetary terms and a
Court is therefore tasked with determining the
quantum
based
on what is fair and just in the circumstances.
[9]
42.
It
is also trite that in quantifying the amount of compensation in
respect of general damages, a Court may take cognizance of comparable
earlier decisions, but that such earlier comparable decisions should
be used only as a guideline to assist the Court to arrive
at a
conclusion that is not out of step with awards made in said earlier
comparable decisions.
[10]
It
has been held that these comparable decisions should be viewed as
being instructive, but not decisive.
[11]
43.
Mr.
Mogano referred me to various comparable matters relating to mild to
moderate head injuries and argued that an amount of R 500
000,00
(Five Hundred Thousand Rand) would in this case suffice as
compensation in respect of general damages.
Mr.
Mogano warned that an amount of R 1 200 000,00 (One Million, Two
Hundred Thousand Rand) as prayed for on behalf of the Plaintiff
might
inflate the amount of damages to be awarded for mild to moderate
brain injuries unnecessarily as sufficient authorities exist
to
support an award of R 500 000,00 (Five Hundred Thousand Rand) as
prayed for on behalf of the Defendant.
44.
I
have to agree with Mr. Mogano in this regard and it has to be
mentioned that Mr. Ernst also conceded as much during his argument
on
the
quantum
of general
damages that would be reasonable and just in the present matter.
It
should however also be stated that Mr. Ernst did qualify his above
concession by submitting that the mild to moderate brain injury
coupled with the permanent hearing loss and vertigo suffered by the
Minor, would justify an amount that is greater than the amount
of R
500 000,00 (Five Hundred Thousand Rand) as prayed for on behalf of
the Defendant.
45.
On
the last-mentioned argument I have to, in turn, agree with Mr. Ernst.
It
is common cause that, as a result of the head injuries (although mild
to moderate in nature) the Minor is still experiencing
significant
discomfort in the sense that he suffers regular head aches and back
pains and it appears that the Minor will continue
to suffer from
these head aches and back pains for the foreseeable future.
The
relevant experts are also
ad idem
about the fact that, as a
result of the Accident and the consequential head injury, the Minor
has undergone a significant change
in his emotional state in that he
became moody and often disobedient after the Accident and furthermore
gets irritated and angers
easily and it appears from the relevant
reports that the Minor’s head injury also had a significant
impact on the Minor’s
memory and concentration.
Me.
A. Cramer specifically states that the cognitive difficulties
experienced by the Minor may hinder optimal future learning which
may
hinder his academic progress.
46.
In
view of the above undisputed facts in respect of the mild to moderate
head injury and the
sequelae
thereof, coupled with
the permanent loss of hearing in the Minor’s left ear with the
resultant vertigo and after having due
consideration to the
authorities that I was referred to, I find that a fair and just award
for the Minor’s general damages
would be R 1 200 000,00 (One
Million, Two Hundred Thousand Rand).
ORDER:
47.
In
view of the above, the following order is made:
47.1 The
Defendant shall pay to the Plaintiff, as general damages, the amount
of R 1 200 000,00 (One Million,
Two Hundred Thousand Rand);
47.2 The
Defendant will issue the Plaintiff with the relevant undertaking in
terms of
Section 17(4)
of the Road Accident Fund Act; and
47.3 The
Defendant shall pay the Plaintiff’s costs of suit on a scale as
between party and party which
costs are to include the costs of
Counsel.
A.D
OLIVIER
ACTING
JUDGE
NORTHERN
CAPE HIGH COURT
For
PLAINTIFF
:
Adv. J.R.F. Ernst
o.i.o
Andre du Plessis Inc.
PRETORIA
c/o
Engelsman Magabane Inc.
KIMBERLEY
For
DEFENDANT
:
Mr. M.A. Magano
The
State Attorney
KIMBERLEY
[1]
Act
56 of 1996.
[2]
Reference
is made to the injuries of the Minor.
[3]
The
Regulations as published under Gnr.770 of 21 July 2008 and in
Government Gazette No
31249. Specific reference is made to
Regulation 3(1)(a)
of
the Regulations.
[4]
See
Regulation
3(1)(b)(ii)
of
the Regulations.
[5]
See
Regulation
3(1)(b)(iii)(aa)
to
(dd)
of
the Regulations.
[6]
See
Regulation
3(1)(b)(iii)(aa)
of
the Regulations.
[7]
See
Regulation
3(11)(g)
of
the Regulations.
[8]
The
relevant experts appear to be
ad
idem
about
this finding by Dr.
Wilkinson.
[9]
Allie
v Road Accident Fund
[2003]
1 All SA 144
(C), paragraph [36]. See
also
AA Mutual
Insurance Association Ltd v Maqula
[1978] 2 All SA 249
(A), page
252.
[10]
Protea
Assurance v Lamb
[1971]
2 All SA 100
(A), page 105.
[11]
See
Allie
,
supra
,
paragraph [37].