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[2024] ZAFSHC 328
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Litsoane v Road Accident Fund (2721/2022) [2024] ZAFSHC 328 (16 October 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
FREE STATE DIVISION,
BLOEMFONTEIN
Case
no: 2721/2022
In
the matter between:
MOJALEFA
SAMUEL LITSOANE
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
Claim
number: 502/[…] [Link: 524[…]]
Coram:
Opperman J
Heard
:
15 July 2024
Delivered
:
16 October 2024. This judgment was handed down in court and
electronically by circulation to the parties’
legal
representatives
via
email
and release to SAFLII on 16 October 2024. The date and time of
hand-down is deemed to be 15h00 on 16 October 2024
Summary:
Claim for loss of income – past
hospital and medical expenses – contingencies.
ORDER
Having considered the
papers herein and having heard the parties’ representatives, it
is hereby ordered that:
1.
The defendant shall pay 90% of the plaintiff’s proven or
agreed damages.
2.
The defendant shall pay to the plaintiff the sum of R1 743 355.36
(One million seven hundred
and forty-three thousand three hundred and
fifty-five rand and thirty-six cents) within 180 (one hundred and
eighty) days of this
order, in respect of the plaintiff's claim
against the defendant for the following heads of damages:
2.1
Past hospital and medical expenses
R206 28.09
Less
10% R20 628.71
R185
658.38
2.2
Past and future loss of earnings/earning
capacity
R1 730 774.29
Less
10% R173 077.44
R1 557
696.98
3.
In the event of the aforesaid amount not being paid on 180 days from
date of this order,
the defendant shall be liable for interest on the
amount at the prevailing interest rate, calculated from the 15
th
calendar day after the date of this Order to date of payment in line
with prevailing legislation.
4.
The defendant shall pay the plaintiff’s taxed or agreed party
and party costs on the
High Court scale B in respect of quantum, up
to and including 19
th
June 2024, and notwithstanding, and
over and above the costs referred to in paragraph 4.2.1 below,
subject thereto that:
4.1
In the event that the costs are not agreed:
4.1.1 The
plaintiff shall serve a Notice of Taxation on the defendant’s
attorney of record;
4.1.2 The
plaintiff shall allow the defendant 180 (one hundred and eighty) days
from date of allocatur to make payment
of the taxed costs; and
4.1.3 Should
payment not be effected on 180 (one hundred and eighty) days from
date of allocatur, the plaintiff will
be entitled to recover interest
at the prevailing interest rate on the taxed or agreed costs from 15
(fifteen) days from date of
allocatur to date of final payment.
4.2
Such costs include, subject to the discretion of the Taxing Master:
4.2.1 Cost of
counsel on Scale B, including a fee for the drafting and settling of
the Heads of Argument.
4.2.2 The
reasonable qualifying fees (if any) of:
4.2.2.1
Dr D Hoffmann (Plastic, Reconstructive and Cosmetic Surgeon)
4.2.2.2
Dr J Preddy (Orthopaedic Surgeon)
4.2.2.3
Drs Van Dyk & Vennote Inc (Radiologists)
4.2.2.4
Frizelna Steyn (Occupational Therapist)
4.2.2.5
Dirk Pretorius (Industrial and Organisational Psychologist)
4.2.2.6
Nilen Sunder Kambaran (Actuary);
4.2.3 The
costs of and consequent to the plaintiff’s trial bundles and
witness bundles, including the costs of
5 (five) copies thereof;
4.2.4 The
plaintiff is declared a necessary witness and therefore the
plaintiff’s reasonable travelling expenses
to attend the trial,
as allowed by the Taxing Master; and
4.2.5 The
costs of and consequent to the holding of a pre-trial conference.
5.
The amounts referred to in paragraphs 2 and 4 will be paid to the
plaintiff’s attorneys,
A Wolmarans Incorporated, by direct
transfer into their trust account, details of which are the
following:
NAME OF ACCOUNT
HOLDER: A WOLMARANS INC
NAME OF BANK &
BRANCH: ABSA BANK,
NORTHCLIFF
ACCOUNT
NUMBER:
4[…]
BRANCH
CODE:
632 005
TYPE OF
ACCOUNT:
CHEQUE (TRUST)
REFERENCE:
MRS VAN ROOYEN/MAT13150
JUDGMENT
Opperman J
Introduction
[1]
The only issues that remain alive for adjudication
in this matter are the plaintiff’s claims for loss of income
and for past
hospital and medical expenses.
[2]
The claims proposed to be allowed by the court are
the following:
Plaintiff:
‘
1.
The Defendant shall pay
90%
of the Plaintiff's proven or
agreed damages.
2. The Defendant
shall pay to the Plaintiff the sum of
R3 005 340.38
(Three Million and Five Thousand Three Hundred and Forty Rand and
Thirty-Eight Cents) within 180 (one hundred and eighty) days
hereof,
in respect of the Plaintiff's claim against the Defendant for the
following heads of damages:
2.1 Past Hospital and
Medical Expenses
R206 287.09
Less
10% R20 628.71
R185
658.38
2.2 Past and Future Loss
of Earnings/Earning Capacity R3
132 980.00
Less
10% R313 298.00
R2
819 682.00
’
Defendant
:
(The defendant refuses any claim for past medical expenses)
‘
1.
The Defendant shall pay
90%
of the Plaintiff's proven or
agreed damages.
2.
The Defendant shall pay to the Plaintiff the sum of
R340,787.70
(THREE HUNDRED AND FOURTY THOUSAND SEVEN HUNDRED AND EIGHTY-SEVEN
RAND AND SEVENTY CENTS)
within 180
(one hundred
and
eighty)
days hereof, in respect of the Plaintiff's claim
against the Defendant for the following heads of damages:
2.1
Past Hospital and Medical Expenses
R00.00
2.2
Past and Future Loss of Earnings/Earning
Capacity
R378,653.00
Less
10%: R37,865.30
R340,787.00
[3]
The contingencies claimed by the plaintiff are:
‘
35.
In evaluating the contingencies, the plaintiff submits that the
appropriate contingency deduction,
that should be applied to the
plaintiff’s loss of income calculation, is 17.5% and 30%.’
[1]
The defendant maintains
that:
‘
6.1
Having regard to the various hurdles to overcome in order to
successfully be progressed or promoted to the next rank, it is
submitted that it would be fair and reasonable to apply a contingency
reduction of 45% in respect of the postulated pre-morbid
earnings
(higher than normal, as recommended by Plaintiff’s Industrial
Psychologist), and a contingency reduction of 30%
[2]
in respect of the postulated post-morbid earnings.’
[3]
History:
litigation
[4]
[4]
Summons was issued on 14 June 2022. The incident
took place in 2020.
-
12, 13 and 15 March 2024: The matter was set down
for trial.
-
12 March 2024: An agreement was reached in terms
of which the defendant had accepted 90% liability for the plaintiff’s
damages.
-
13 March 2024 the following orders were granted in
the present matter:
a)
In respect of merits the order confirmed that the
defendant is liable for 90% of the plaintiff’s proven or agreed
damages;
b)
In respect of the plaintiff’s claim for
general damages the defendant agreed to pay the amount of R540 000.00
(R600 000.00
– 10%);
c)
Further it was also ordered that the defendant
will furnish the applicable undertaking in accordance with
s 17(4)
of
the
Road Accident Fund Act 56 of 1996
;
d)
The matter was then postponed, after application
for postponement was brought by the defendant, as they required the
plaintiff to
undergo examinations by their own experts. The date for
trial was 17 and 18 June 2024.
-
17 June 2024: The matter again stood down and
ultimately on 18 June 2024 the matter proceeded on trial.
-
18 June 2024: The plaintiff brought an application
in terms of rule 38(2) of the Uniform Rules of Court, read together
with s 3(1)(c)
of the Law of Evidence Act 45 of 1988, seeking leave
to present his evidence and that of his expert witnesses by way of
affidavit
and that the court accept into evidence the applicant’s
hospital and clinical records and the collateral evidence provided
to
the applicant’s expert witnesses. The Court then granted the
following order:
‘
1.
The Applicant is granted leave to present his evidence in respect of
the issues of
quantum in terms of Rule 38(2) of the Uniform Rules of
Court, read together with Section 3(1)(c) of the Law of Evidence Act
45
of 1988.
2.
The court admits into evidence the following:
2.1.
Lodgement documentation delivered on 08 February 2022 and all
discovered documents as per Item
1 – 21 of the Bundle;
2.2.
Affidavits of the Applicant’s experts pertaining to the issue
of quantum, specifically:-
2.2.1. Dr
Hoffman (Plastic Surgeon);
2.2.2. Dr
Preddy (Orthopaedic Surgeon);
2.2.3. F
Steyn (Occupational Therapists);
2.2.4. NS
Kambaran (Actuary).
2.3.
Confirmatory Affidavit of the Applicant.
2.4.
The collateral evidence provided to the applicant’s expert
witnesses.
3.
That the costs of this Application be costs in the cause.’
[5]
-
After the aforementioned application was granted,
the plaintiff proceeded to lead the evidence of his expert witness,
Mr Dirk Pretorius
(Industrial Psychologist) on virtual platform
whereafter the defendants’ representative cross-examined. The
plaintiff proceeded
to close his case hereafter.
[5]
Judgment in respect of the claim for loss of
income and the claim in respect of past hospital and medical expenses
were reserved
and the parties were ordered to submit heads of
arguments as follows:
Plaintiff to submit heads
of argument on 21 June 2024;
Defendant to submit heads
of argument on 08 July 2024; and
Plaintiff to submit
replying heads of argument, if any, on 12 July 2024.
The parties agreed for
the adjudication of the case to proceed on the heads of argument and
judgment was reserved on 15 July 2024.
The case for the
plaintiff
[6]
The
plaintiff is a 34-year-old male (born: […] S[…] 1989)
who was involved in an accident on 14 November 2020 at the
age of 31
years old. He joined the police in March 2019 and was still employed
as such at the time of the trial.
[6]
[7]
The injuries sustained were:
a.
Left C5 lamina fracture extending into the
inferior articular surface of the facet joint;
b.
Left C6 transverse process fracture with
involvement of the transverse foramen as well as the superior
articular surface of the
facet joint resulting in an anterior
cervical discectomy and fusion with subsequent scarring;
c.
Left C5 and C6 facet joint oedema and paraspinal
muscle oedema in keeping with the fractures as per 2.1; and
d.
Soft
tissue injury to the right shoulder.
[7]
[8]
All the medical reports handed in by the plaintiff
forms part of the uncontested evidence.
[9]
The
viva voce
evidence by Mr Dirk Pretorius, the industrial
psychologist, assisted the court, but the plaintiff did not testify.
His version was
not tested under cross-examination. This complicates
the evidence, specifically so, on the aspect of the plaintiff joining
the
Special Task Force (STF) and the advantages that would have
flowed from that in terms of his promotion. I will deal with it
hereunder.
[10]
If the plaintiff’s pre-morbid vocational
capacity is considered, specific reference must be made to the
opinion of the medical
experts. During the consultations, the
plaintiff noted that he did not suffer from any pre-morbid physical
or psychological inhibiting
factors. He specifically noted that he
was a very healthy and fit individual having been an avid boxer his
entire life as part
of his fitness routine. He also trained other
boxers. The plaintiff noted that his physical fitness was important
to him as he
planned to apply to serve in the STF unit.
[11]
At the time of the accident in question, the
plaintiff was employed as a non-commissioned officer, a constable.
The non-commissioned
officers are (from most senior) warrant
officers, sergeants (lance sergeant, sergeant, staff sergeant),
constable, and student
constable who comprise the staff component at
police stations.
[12]
The plaintiff was promoted to the position of
constable in December 2019. With regards to further promotion and
progression, it
is important to consider the Safety and Security
Sectoral Bargaining Council (SSBC) Agreement 032011 - Agreement on
Promotion and
Grade Progression Policy of The South African Police
Service: Requirements for Grade Progression according to the said
policy includes
constable to sergeant (a minimum of seven-years’
service, including initial appointment as trainee); from sergeant to
warrant
officer (a minimum of seven-years’ uninterrupted
service as sergeant); from warrant officer to captain (a minimum of
seven-years’
uninterrupted services in the rank of warrant
officer); from captain to lieutenant colonel (a minimum of
seven-years’ interrupted
service in the rank of captain), etc.
[13]
The plaintiff would also have been able to
progress in his career
via
promotion. Promotion between the said levels from
the position of constable could have occurred serving a minimum
two-years uninterrupted
service or four-years uninterrupted service
on a particular level, depending on the individual’s level of
qualification i.e.,
NQF Level 4 or NQF Level 6.
[14]
On 14 April 2023, at 14h33, the expert, Mr Dirk
Pretorius, had a telephonic interview with the plaintiff's superior
officer, captain
Shekoe. She informed the expert that prior to the
accident in question the plaintiff was a healthy and fit individual.
According
to her knowledge he had a good pre-morbid performance
record. She noted that he would have been able to continue working
‘in
the field', where he would have been able to progress
further in his career.
[15]
The expert inquired from captain Shekoe with
regards to the plaintiff’s ambition to join the STF of the
SAPS. She noted that
the process to enrol for the STF is completely
voluntary and that those individuals that want to become part of the
elite unit
is required
to undergo a very
stringent selection process. There is not any evidence on record that
the plaintiff’s performance was above
average.
[16]
According to captain Shekoe only a very small
group of individuals are ultimately selected each year for the said
unit. She noted
that once an individual has been selected, they are
required to complete their National Diploma (South African Special
Forces Operations)
qualification as part of their development.
In
terms of their progression, this would have been similar to that of
the normal SAPS rank structure.
[17]
Captain Shekoe confirmed that the SAPS retirement
age is 60-years. Captain Shekoe also confirmed and verified the
Employer Certificate
completed by her.
[18]
The expert noted that the plaintiff was already
31-years of age at the time of the accident in question.
At
the time of the accident, he has not made an application yet.
However, he insisted that he would have,
disregarding the accident in question.
[19]
Taking into consideration his medical history, he
appears to have been a fit individual that did not suffer from any
physical or
psychological inhibiting factors. Available information
obtained from his superior indicates that he had a good performance
record
prior to the accident in question.
[20]
If the plaintiff managed to successfully follow
his ambition, he would most probably have completed the STF training
over a period
of one to two years. With the said training and
qualification obtained, the plaintiff would most probably have been
able to progress
via
a
combination of grade progression and promotions throughout his career
in the STF. He would have been able to apply at any stage
for the
next rank, given that he adheres to the minimum requirements.
[21]
The onus is on the plaintiff to prove that he
would have been promoted through the ranks outside the normal grade
promotions; he
did not do so. In the expert's opinion, it is very
difficult to say with certainty if the plaintiff would have been able
to apply
successfully for the STF
.
[22]
Post-Morbid Career Progression:
a.
The plaintiff reported to the expert (Pretorius)
that he returned to work following a significant period of
convalescence on 11
January 2021. He was paid during the period of
convalescence.
b.
The plaintiff returned to his role as constable at
Trompsburg SAPS. He noted that he was accommodated on his return and
placed on
light-duty until approximately March/April 2022.
c.
He attempted to return to perform field work in
the Crime Intelligence Unit like he did pre-morbidly. He was not able
to cope. He
returned to his accommodated position in the office by
December 2022. He has subsequently continued to work as an analyst
(rank
constable) in the Crime Intelligence Unit.
d.
The plaintiff explained to the expert as
constable in the SAPS that he has continued to receive notch
increases to date
. He noted that his
biggest lost has probably been as a result of earning no or
significantly
less overtime
than he used to.
e.
As constable the plaintiff is currently earning
in-line with notch R197 880.00 per annum (2023 terms).
f.
His current gross income is equal to R18 768.37
per month (2023 terms). The expert defers to the earnings collateral
received from
the SAPS.
g.
The expert received several payslips from the SAPS
for the post-morbid period of employment as presented.
h.
Apart from the plaintiff’s physical
inhibiting factors, he faces permanent scarring and disfigurement as
a result of the accident.
Although it is not foreseen to have a
significant adverse impact on the plaintiff’s physical
skillset, it is likely to have
an adverse impact on the plaintiff’s
self-image.
i.
The plaintiff noted that the scarring is a
constant reminder of the accident. Dr Hoffman opines that the
scarring and disfigurement
is unlikely to have an impact on the
plaintiff’s productivity and with the necessary psychological
counselling; thus, reducing
the psychological effect and increasing
the plaintiff’s productivity.
j.
According to the Safety and Security Sectoral
Bargaining Council (SSBC): The plaintiff was promoted to the position
of constable
in December 2019.
k.
In the expert’s opinion, the plaintiff will
most probably, at best, only progress
via
grade progression in his post-morbid capacity.
l.
In the expert’s opinion, promotion is not
likely to take place, given the fact that the plaintiff will have to
compete against
several other able-bodied colleagues.
m.
It should also be noted that there are less
positions or opportunities within the administrative and office realm
of the SAPS compared
to the field realm.
n.
He has managed to progress from the position of
student constable to constable.
o.
Taking into consideration the above-mentioned
policy the plaintiff’s future progress will most likely be slow
and vacancy-dependent.
In the expert’s opinion, the plaintiff’s
future grade progression progress will likely be approximately
ten-years,
progressing from constable to sergeant and from sergeant
to warrant officer B1, at best. He is likely to continue earning his
notch
salary increases throughout his working life, until the normal
age of retirement, age 60.
The case for the
defendant
[23]
The defendant did not adduce any evidence and
closed their case immediately after that of the plaintiff. Counsel
views the evidence
proven differently. She correctly pointed out that
whereas plaintiff’s pre-morbid career progression is pitched
extremely
optimistic, his post-morbid career progression is pitched
at the opposite side of the spectrum – extremely gloomy and
pessimistic.
[24]
Counsel for the defendant surmised the evidence
from the following perspective:
‘
3.2
Plaintiff’s Industrial Psychologist
testified that, when considering the career advancement of
Police
Officers, and specifically from rank to rank, it can happen by way of
Grade Progression or Promotion. The circumstances
in which each may
take place, is set out in detail in his report and for sake of
brevity not repeated here.
3.3
PROMOTION.
3.3.1
Plaintiff’s Industrial Psychologist testified that one may at
any time apply for a promotion to a next
rank, but that the promotion
is dependent on, or subject to:
a.
The availability of such a position (a vacancy);
b.
thereafter, being shortlisted for the position (as such, competing
against other
applicants in order to be shortlisted); and
c.
ultimately, being successful and appointed in the position.
3.3.2 It
follows that there are three hurdles for an applicant (Plaintiff) to
overcome, before he could be advanced
to another rank.
3.4
GRADE PROGRESSION.
3.4.1
Plaintiff’s counsel relayed and confirmed that after a period
of 7 years, a candidate will become eligible
for grade progression to
the next rank.
3.4.2
However, the requirements as set out in 3.3 above, still apply.
3.4.3
A
candidate is not automatically progressed to another grade (rank)
after a period of 7 years, but merely becomes eligible to apply
for
the position
.
3.5
BUT FOR THE ACCIDENT.
Industrial Psychologist’s
postulated pre-morbid career progression:
3.5.1
Plaintiff is postulated to have progressed to the next rank every
four years.
3.5.2 He is
postulated to have progressed to the rank of sergeant at the age of
35 in 2024, and warrant officer B1
at the age of 39 in 2028.
3.5.3 He is
then ultimately postulated to the rank of lieutenant-colonel at the
age of 51 in 2040.
3.5.4
Of
great importance, is the qualification to the postulated progression
:
‘
Without
successful enrolment and completion of the STF programme, the
claimant’s rate of advancement within the SAPS rank
structure
would most probably have been slower. In the writer’s opinion,
given the uncertain nature of claimant’s exact
career path with
the SAPS, higher than normal contingencies should be applied with
regards to his pre-morbid career and earnings
progression.’
3.5.5
Plaintiff’s Industrial Psychologist conceded that the
progression may have been slower.
3.5.6
Plaintiff’s Industrial Psychologist conceded that, although
‘junior’ positions may be more
readily available, as the
position (rank) becomes more senior, the number of positions may be
more limited. Therefore, one may
be progressed / promoted to the rank
of B1 quickly, but thereafter less positions would be available and
the career progression
thereafter may be much slower.
3.5.7 There
is no evidence before Court to the effect that Plaintiff intended to,
or could, move to police stations
outside of Trompsburg.
Plaintiff
elected not to testify and as such there is no evidence before Court
as to whether he had his eye set on moving away from
the area in
which he was working and residing.
3.5.8
Plaintiff’s Industrial Psychologist conceded that the
availability of positions (vacancies) differs from station to
station.
No evidence was advanced as to the availability of positions
to apply for in the Trompsburg area in which Plaintiff was and is
employed
.
3.6
HAVING REGARD TO THE ACCIDENT.
Industrial Psychologist’s
postulated post-morbid career progression:
3.6.1
Plaintiff is postulated to progress only every seven to ten years.
3.6.2
He
is postulated to have progressed to the rank of sergeant at the age
of 40 in 2029, and warrant officer B1 at the age of 50 in
2039, being
also then the highest rank he would obtain.
BUT FOR THE ACCIDENT –
CONSIDERING FACTORS RELEVANT TO CONTINGENCY REDUCTIONS
4.
4.1
When considering the pre-accident postulation, the following
submissions are made:
4.1.1 But
for the accident, only one scenario is postulated.
Essentially,
this postulation is based on the Plaintiff’s successful
application for and appointment to the Special Task Force
(SPF).
4.1.2
Only
a very small group of individuals are ultimately selected each year
for the unit. These individuals then have to complete their
National
Diploma: South African Special Forces Operations qualification, as
part of their development
.
4.1.3
To
apply for the STF, one must not be older than 32 years, and only 5% -
8% of applicants successfully complete the STF course
.
4.1.4
Plaintiff repeated Grades 4 and 10 and it is respectfully
submitted that the Honourable Court may infer that he was not
academically
strong
(no evidence was presented to advance any
other reason as to why he had to repeat those grades).
4.1.5
Plaintiff was already 31 years old at the time of the accident and
had not applied for the position, and it is very difficult to
say
with certainty if the Plaintiff would have been able to successfully
apply for the STF.
4.1.6
Promotion between the levels from the position of constable, could
have occurred serving a minimum 2 years uninterrupted
or 4 years
uninterrupted on a particular level,
depending on the individual’s
level of qualifications
(NQF4 or NQF 6).
4.1.7
Plaintiff has only a NQF4 qualification.
4.1.8
Plaintiff’s Industrial Psychologist conceded that the
percentage of candidates who advance to a next grade every four
years,
is definitely on the lower side
.’
The legal framework
[25]
The
words of Naidoo J in
Scheepers
v Road Accident Fund
[8]
ring true in this case:
‘
[19]
I base my view on the well-established position in our law that
courts need to be mindful of the current
situation of the plaintiff
and exercise a measure of common sense and judicious discretion in
avoiding an award that would amount
to a windfall to which the
plaintiff would not be entitled. The purpose of a claim such as this
is to compensate the plaintiff
for loss that he has suffered or will
suffer and not to make an award that amounts to largesse. The
plaintiff, however, must first
discharge the onus on him to prove the
loss. I am not satisfied that the plaintiff has shown that the
accident or his injuries
have caused a loss of earning capacity or
will cause a loss of earnings in the future, to the extent that he
claims.’
[26]
In
recently reported judgments, ‘it was found that the nature of
the damages suffered by the plaintiff lay somewhere between
the
optimistic picture painted by the defendant’s experts, and the
pessimistic view of the experts who appeared for the plaintiff.’
[9]
No two claims will ever be alike, and no two awards ever the same.
[27]
The
objective sought to be achieved is that the claimant must, as far as
is reasonably possible, be placed in the position he would
have been
in had he not suffered the damages complained of. The cases
[10]
referred to by counsel for both parties in their heads of argument
place nuance on this principle.
Conclusion
[28]
The proven facts and case law directs that
contingencies of 31,5% and 30% to be the most reasonable and fair
outcome in the case.
Past medical
expenditures
[29]
In
the matter of
Gunther
v Road Accident Fund
[11]
on 6 June 2024 and after extensive consideration of the prevailing
law it was ruled that:
‘
41.
. . . I fully agree with the findings in the
Discovery
Health
matter,
which the defendant has seen fit to ignore even though in paragraphs
25 to 27 of its written submissions, it acknowledges
that there are
no judgments in its favour indicating that payment by it of a
plaintiff’s past medical expenses “should
not take
place”. In the same breath, the defendant requests that I take
cognizance of its arguments which were advanced in
this matter, and
which were much the same in the
Discovery
Health
and
Van Tonder
matters. I might add that
similar arguments were raised in the unreported
Malgas
v Road Accident Fund
,
which were also dismissed.
42.
Having regard to the above, I am satisfied that the plaintiff has
neither unduly benefitted
from receipt of the benefit from GEMS in
respect of past medical expenses incurred as a result of being
injured in the collision,
nor will she receive double compensation.
Secondly, the benefit she received from her medical aid as described
above is excluded
from the reckoning of the calculation of the amount
of compensation due by the defendant to her in terms of the RAF Act.
I say
this because as indicated in
Rayi
, the plaintiff’s
obligation to her medical aid only arises once there is a successful
recovery of her past medical expenses
from the defendant.; (Footnotes
omitted.)
[30]
This
division has also ruled in support of the
Discovery
Health (Pty) Ltd v Road Accident Fund and Another
[12]
in
Bereng
v Road Accident Fund,
[13]
Bezuidenhout
v Road Accident Fund
[14]
and
Sondiyazi
v Road Accident Fund.
[15]
[31]
The opposition of the defendant to the claim for
past medical expenditures is dismissed.
[32]
As to costs; the parties are agreed on scale B.
Costs as such is indeed appropriate in the circumstances.
ORDER
[33]
In light of the above the following order is made:
1.
The defendant shall pay 90% of the plaintiff’s proven or
agreed damages.
2.
The defendant shall pay to the plaintiff the sum of R1 743 355.36
(One million seven hundred
and forty-three thousand three hundred and
fifty-five rand and thirty-six cents) within 180 (one hundred and
eighty) days of this
order, in respect of the plaintiff's claim
against the defendant for the following heads of damages:
2.1
Past hospital and medical expenses
R206 28.09
Less
10% R20 628.71
R185
658.38
2.2
Past and future loss of earnings/earning
capacity
R1 730 774.29
Less
10% R173 077.44
R1 557
696.98
3.
In the event of the aforesaid amount not being paid on 180 days from
date of this order,
the defendant shall be liable for interest on the
amount at the prevailing interest rate, calculated from the 15
th
calendar day after the date of this Order to date of payment in line
with prevailing legislation.
4.
The defendant shall pay the plaintiff’s taxed or agreed party
and party costs on the
High Court scale B in respect of quantum, up
to and including 19
th
June 2024, and notwithstanding, and
over and above the costs referred to in paragraph 4.2.1 below,
subject thereto that:
4.1
In the event that the costs are not agreed:
4.1.1 The
plaintiff shall serve a Notice of Taxation on the defendant’s
attorney of record;
4.1.2 The
plaintiff shall allow the defendant 180 (one hundred and eighty) days
from date of allocatur to make payment
of the taxed costs; and
4.1.3 Should
payment not be effected on 180 (one hundred and eighty) days from
date of allocatur, the plaintiff will
be entitled to recover interest
at the prevailing interest rate on the taxed or agreed costs from 15
(fifteen) days from date of
allocatur to date of final payment.
4.2
Such costs include, subject to the discretion of the Taxing Master:
4.2.1 Cost of
counsel on Scale B, including a fee for the drafting and settling of
the Heads of Argument.
4.2.2 The
reasonable qualifying fees (if any) of:
4.2.2.1
Dr D Hoffmann (Plastic, Reconstructive and Cosmetic Surgeon)
4.2.2.2
Dr J Preddy (Orthopaedic Surgeon)
4.2.2.3
Drs Van Dyk & Vennote Inc (Radiologists)
4.2.2.4
Frizelna Steyn (Occupational Therapist)
4.2.2.5
Dirk Pretorius (Industrial and Organisational Psychologist)
4.2.2.6
Nilen Sunder Kambaran (Actuary)
4.2.3 The costs of and
consequent to the plaintiff’s trial bundles and witness
bundles, including the costs of 5 (five) copies
thereof;
4.2.4 The plaintiff is
declared a necessary witness and therefore the plaintiff’s
reasonable travelling expenses to attend
the trial, as allowed by the
Taxing Master; and
4.2.5 The costs of and
consequent to the holding of a pre-trial conference.
5.
The amounts referred to in paragraphs 2 and 4 will be paid to the
plaintiff’s attorneys,
A Wolmarans Incorporated, by direct
transfer into their trust account, details of which are the
following:
NAME OF ACCOUNT HOLDER:
A WOLMARANS INC
NAME OF BANK &
BRANCH: ABSA BANK, NORTHCLIFF
ACCOUNT
NUMBER:
4[…]
BRANCH
CODE:
632 005
TYPE OF
ACCOUNT:
CHEQUE (TRUST)
REFERENCE:
MRS VAN ROOYEN/MAT13150
Opperman J
APPEARANCES
PLAINTIFF:
I
SANDER
Bloemfontein
Instructed
by A Wolmerans Inc.
Bloemfontein
DEFENDANT:
J
GOUWS
Office
of the State Attorney:
Bloemfontein
[1]
Heads
of argument for the plaintiff (HOA plaintiff). I am indebted to both
counsel for the comprehensive heads of argument submitted
to court.
[2]
Amended
on 11 October 2024 by agreement between counsel in chambers.
[3]
Heads
of argument for the defendant (HOA defendant). The 30% contingency
was included after agreement by the parties. The original
HOA had a
typing error that depicted 15%.
[4]
See
HOA plaintiff (24 June 2024) paras 3-12.
[5]
HOA
for plaintiff (24 June 2024) para 9.
[6]
HOA
plaintiff at para 7.2.15.
[7]
HOA
for the plaintiff at para 2.
[8]
Scheepers
v Road Accident Fund
(893/2021)
[2023] ZAFSHC 248
(20 June 2023).
[9]
H.B.
Klopper,
RAF
Practitioners Guide
,
Motor Law,
Division
D Quantum, QUANTUM, 3 Quantifying a claim, last
updated:
April 2024 - SI 48, LexisNexis.
[10]
Hendricks
v President Insurance Co Ltd
1993
(3) SA 158
(C);
Mvundle
v RAF
(63500/2009)
[2012] ZAGPPHC 57 (17 April 2012);
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
AD at 113G;
Road
Accident Fund v Guedes
2006
(5) SA 583
(SCA) para 8.
[11]
Gunther
v Road Accident Fund
(24228/16)
[2024] ZAWCHC 84.
[12]
Discovery
Health (Pty) Ltd v Road Accident Fund and Another
(2022/016179)
[2022] ZAGPPHC 768 (27 October 2022).
[13]
Bereng
v Road Accident Fund
(2218/2022)
[2024] ZAFSHC 25
(1 February 2024).
[14]
Bezuidenhout
v Road Accident Fund
(1284/2012)
[2024] ZAFSHC 224
(1 August 2024).
[15]
Sondiyazi
v Road Accident Fund
(1092/2021)
[2023] ZAFSHC 162
(8 September 2023).