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[2024] ZAFSHC 353
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Fouche v Road Accident Fund (1671/2018) [2024] ZAFSHC 353 (1 November 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and
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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
CASE
No.:1671
/2018
In the matter between:
FREDERIK
HENDRIK FOUCHÉ;
Plaintiff
And
ROAD
ACCIDENT FUND
;
Defendant
Coram: Van
Rhyn J
Heard: 23
Octobe
r 2024
Delivered: 1
November 2024
ORDER
1.
The Defendant shall pay to the Plaintiff the
amount of
R4 754 382.40
(FOUR MILLION SEVEN HUNDRED AND FIFTY-FOUR THOUSAND THREE HUNDRED AND EIGHTY-TWO
THOUSAND RAND AND 40 CENTS)
in respect of the Plaintiffs claim against the
Defendant for the following heads of damages:
Past and Future Loss of Earnings/Earning
Capacity: R3 554 382.40
General Damages: R1 200 000.00
2. The amount of
R4 754 382.40
shall be paid into the trust account of
Plaintiffs attorney, particulars thereof being as follows:
Account Holder: VZLR INC
Bank: Absa Business Bank
Hillcrest
Account number:3[
]
Branch code: 632005
Reference:
MAT109272
3. In
the event that the Defendant fails to, within 180 (one hundred and eighty) days
from the date on which this order is
handed down, make payment of the amount of
R4 754 382.40, the Defendant will be liable for payment of interest
on such
amount at 11.50% (the statutory) rate per annum, compounded and
calculated fourteen days from date of this order.
4.
The
Defendant shall pay the Plaintiffs taxed or agreed party and party costs, as
allowed by the Taxing Master, for the trial dates
of 27 February 2024, 22 October
2024 and 23 October 2024, which costs shall include:
4.1 The fees of Plaintiffs counsel in terms
of Rule 67A(3)
(a)
of the Uniform
Rules of Court, where
so employed, on High Court Scale C.
4.2 The reasonable qualifying fees of the following
expert witnesses:
4.2.1
Dr J Preddy (Orthopaedic Surgeon)
4.2.2 Dr
Huth (Neurologist);
4.2.3 D
van Coller (Grid Forensic Accounting);
4.2.4 Dr
I Wuso (Specialist Physician);
4.2.5 Dr
S C Davis (Cardiothoracic Surgeon);
4.2.6 Dr
S van Heerden (Plastic Reconstructive Surgeon);
4.2.7 Dr P Steyn
(Urologist);
4.2.8 L
Grootboom (Clinical Psychologist);
4.2.9 Dr I
Hasrod (Ophthalmologist);
4.2.10 Y
de Klerk (Occupational Therapist);
4.2.11
Ben Moodie (Industrial Psychologist);
4.2.12
Dr P J Viviers (Pulmonologist); and
4.2.13 Johan Sauer
(Actuary).
5. In the event of
default on the cost payment, interest shall accrue on such outstanding amount
at the statutory mora rate
on the date of taxation/settlement of the bill of
costs, as per the
Prescribed Rate of Interest Act, 55 of 1975
, as amended, per
annum, calculated from the due date until the date of payment.
6. The issue of past
medical expenses, as forth in paragraph 7.1 of the particulars of claim, is
separated from the plaintiffs
quantum claim in terms of
Rule 33(4)
and
postponed to the pre-trial roll of 3 March 2025.
JUDGMENT
[1]
The
plaintiff, Frederik Hendrik Fouché, an adult male born on 3 November 1961,
instituted action against the defendant
in terms of the provisions of
the Road Accident Fund Act
56 of
1996
(the RAF Act) for
the payment of damages as a result of
injuries sustained arising from a motor vehicle accident which occurred on 30
May 2017 at
Ficksburg. In his particulars of claim the plaintiff averred that a
collision occurred between a motor vehicle bearing
unknown
registration letters and -number
, driven by an unknown driver and a motor
vehicle bearing registration letters and -number 111[
] driven by the
plaintiff.
[2]
The issue of liability
(merits) has been resolved, as per the court order dated 17 August 2021, with
the defendant undertaking to
pay 80% of plaintiff's proven or agreed damages. The
defendant was ordered to furnish the plaintiff with an undertaking in terms
of
the provisions of s 17(4)
(a)
of the RAF Act in respect of future
medical, hospital and related expenses, limited to 80% of
the
costs of the future accommodation of the plaintiff in a hospital or nursing
home or the rendering of future medical treatment
or the supply of goods
arising from the injuries sustained in the motor vehicle accident.
[3] It was agreed between the parties that the claim
for past medical expenses be separated from the other aspects relating
to the
damages claimed against the defendant and that this aspect be postponed to the
pre-trial roll of 3 March 2025. At the commencement
of the trial Mr Potgieter,
counsel on behalf of the plaintiff, handed up the amended pages of the
plaintiffs particulars of claim
in terms whereof the quantum of the plaintiffs
claim, relevant to the trial, is calculated as follows:
(a) Past and future loss of earnings
R5 098 893
(b) General
damages R2 000 000
[4] The parties
have furthermore settled the claim for general damages in the amount of R1.5
million.
The court is called upon to determine the award to be made
in respect of the claim for past and future loss of earnings/earning capacity.
[5]
The defendant had not appointed any experts and did not file any
expert reports.
In such regard the plaintiff had prepared an application
in terms of Uniform rule 38(2) which had been filed at the Registrar on
the day
of the trial.
The defendant did not oppose
the application and accepted that the medico-legal and expert reports of the plaintiff
be admitted
as evidence in terms of Rule 38(2), section 34(2) of the Civil
Proceedings Evidence Act 25 of 1965, and
section 3
of the
Law of Evidence
Amendment Act 45 of 1988
.
By agreement between the
parties the evidence of the following expert witnesses was admitted by way of
affidavit in terms of
rule 38(2):
(a)
Dr
J Preddy (Orthopaedic Surgeon);
(b)
Dr
M B Huth (Specialist Neurologist);
(c)
David
van Coller (Grid Forensic Accounting);
(d)
Dr
I Wuso (Specialist Physician);
(e)
Dr
S C Davis (Cardiothoracic Surgeon);
(f)
Dr
S van Heerden (Plastic Reconstructive Surgeon);
(g)
Dr
Piet Steyn (Urologist);
(h)
L
Grootboom (Clinical Psychologist);
(i)
Dr
I Hasrod (Ophthalmologist);
(j)
Y
de Klerk (Occupational Therapist);
(k)
Ben
Moodie (Industrial Psychologist);
(l)
Dr
P J Viviers (Pulmonologist); and
(m)
Johan
Sauer (Actuary)
[6] The
defendant has not filed any expert reports. The plaintiff was present in court
but did not testify.
It is not my intention to give a detailed
summary of the evidence presented by the plaintiffs expert witnesses, save to
mention
the following:
The plaintiff was ejected from the vehicle as a
result of the collision. He sustained a head injury and lost consciousness. He
has
no recall of the events occurring immediately after the impact. He was
taken from the accident scene by ambulance to the Mediclinic
Hospital,
Bloemfontein. He was assessed and stabilized in the emergency room at the
hospital and a cervical collar was applied.
A Glasgow Coma Scale of 12/15 was
reported on arrival at the hospital.
[7] On
examination he presented with the following injuries:
(a)
Lacerations
on his face;
(b)
Laceration
above his left eye;
(c)
Degloving
wound on his scalp;
(d)
Avulsion
of the frontal to mid part of his scalp;
(e)
Seizures;
(f)
Right
eye racoon;
(g)
Wound
on his chest;
(h)
Distended
abdomen; and
(i)
Abrasions
on the right side of the right hip and upper leg.
[8] Computerised Tomography scans of the plaintiffs
brain, cervical spine, abdomen and pelvis were conducted on 31 May 2017
which
revealed the following pathological findings as summarised in Dr Preddys
medico-legal report dated 29 October 2021:
Brain and cervical spine:
(a)
The
patient is intubated with the ET tube well placed;
(b)
Nasogastric
tube with the tip in the stomach;
(c)
Extensive
soft tissue damage extra cranial;
(d)
Subcutaneous
drain evident;
(e)
Oedema
on the nasal mucosa;
(f)
Extensive
degeneration on the cervical spine; and
(g)
Fracture
of the lateral masses involving the transverse processes and pedicles on the
left C6 and C7 and the lateral vertebral artery
foramen.
Chest, abdomen and pelvis:
(h)
Bilateral
basal atelectasis;
(i)
Comminuted
fracture of the sternum;
(j)
Rib
fractures of the 3
rd
, 4
th
and 7
th
ribs;
(k)
Associated
fractures of the transverse process of the 4
th
thoracic vertebra;
(l)
Fat
induration in the cecum area;
(m)
Intra-abdominal
contusion;
(n)
Degeneration
of L4/L5 and L5S1 paravertebral joints; and
(o)
Spondylosis
of the pars interarticularis L4 on the right.
[9] Magnetic Resonance Imaging of the plaintiffs
cervical, thoracic and lumbar spine revealed the following pathological
findings:
(a)
Circumferential
disc bulge with facet joint degeneration on the C3-4 level causing bilateral
exit foramina narrowing;
(b)
T4
anterior wedge compression fracture with less than 50% anterior vertebral body
loss of height; and
(c)
Extradural
lipomatosis in the thoracic and lumbar spinal cords on sagittal T2-weighted
sequences with no significant spinal stenosis
or nerve root compression.
[10] Plaintiff was diagnosed with poly-trauma, a head
injury, closed fracture of the sternum, multiple rib fractures and respiratory
failure. On 6 June 2017 an anterior cervical discectomy and fusion of C5/C6 and
C6/C7 were performed. He was treated in hospital
and required artificial
ventilation support for lung contusion and bilateral haemo-pneumothorax. He was
subsequently diagnosed
with ventilator associated pneumonia. Intercostal drains
were inserted. He received physiotherapy, occupational therapy and was
treated
in hospital for almost 6 weeks of which 22 days were in ICU and High Care and
was discharged with a walking frame on 8
July 2017.
[11] Apart from the serious injuries sustained in the
accident the plaintiff experienced far reaching sequelae as is evident from
the
medico-legal reports submitted by the plaintiff. The plaintiff experiences
headaches associated with dizziness and loss of
balance. He struggles to open
his left eye as a result of the head injury. He experiences chest pains and
shortness of breath which
causes him to struggle to perform physical tasks. The
plaintiff returned to his pre-accident occupation as a farmer after
approximately
12-18 months. He can no longer do the physical work on the farm
as the injuries sustained in the accident limit his movement and
abilities to a
great extent. He sold 755 of his cattle as he was unable to handle all the
animals. He furthermore sold two of his
farms and relies upon the assistance of
his son to continue with his farming operations.
[12] Given the extensive sequelae of the injuries and
the serious impairments to his residual work capacity it is opined by the
orthopaedic surgeon that the plaintiff should only perform light duty whereas
the occupational therapist indicates sedentary work
with driving. Mention was
made of the fact that the plaintiff suffered from post- traumatic epilepsy with
the result that driving
vehicles, not only on the farm but also on public roads,
remains questionable. The neurologist indicates a severe head injury which
is
corroborated by the neuropsychologist who stated that the plaintiff is
moderately compromised neuro-cognitively with regards
to the following:
(a)
Focussed
attention;
(b)
Auditory
work memory;
(c)
Non-verbal
working memory;
(d)
Visual
scanning;
(e)
Complex
visual memory;
(f)
Immediate
verbal memory;
(g)
Pace
control;
(h)
Self-monitoring;
(i)
Executive
planning;
(j)
Selective
attention.
These deficits impact upon his work and psychological
functioning and should be regarded as irreversible. The plaintiff is unable
to
remember the formulas to calculate the dosage of herbicides and is no longer
able to do basic calculations. He forgets specific
tasks in the daily executive
planning of functions on the farm. He is constantly searching for his keys. The
plaintiff has been
a farmer throughout his working life and farming has become
a part of his identity and livelihood. The impact of his lack of performance
has left him hopeless and despondent.
[13] Based on the recommendations of Ben Moodie, the
Industrial Psychologist and Y de Klerk, the Occupational Therapist, a forensic
accounting report was filed by the plaintiff. The annual financial statement
for the financial years 2014 to 2023, the Notice of
Income Tax assessments
issued by the South African Revenue Services for the period 2014 to 2023 and
the reports compiled by Ben
Moodie and Y de Klerk were provided to Mr David van
Coller of Gid Forensic Accounting. Having regard to the information and
documentation,
Mr van Coller concluded that the past loss of earnings in actual
terms and before tax amounted to R10 771 260.89 and the
estimated
future loss of earnings are based upon the following: uninjured profit per
month, before tax, and adjusted to take inflation
into account:
R81 521.11; and the injured profit per month, before tax and adjusted to
take inflation into account (R59 648.65).
[14] The only calculation done in respect of the claim
for past and future loss of earnings/earning capacity was filed by the
plaintiff as per the report of the actuary, Mr Johan Sauer who calculated the
past loss of income as well the estimated future
loss of income. Ms Banda, on
behalf of the defendant, argued that the plaintiffs son is assisting him with
the farming and there
is thus no need for him to scale down on the farming
activities. The plaintiff is able to delegate the work not only to his son
but
also the farm labourers. According to the defendant, the plaintiff suffered two
seizures since the accident with the result
that he will still be able to drive
a tractor and operate other farming equipment. It was furthermore argued that
some of the medico-legal
reports submitted by the plaintiff were outdated. The
plaintiff suffered two gunshot wounds prior to the accident and he already
suffered from depression prior to the accident which may further impact upon
his earning capacity and should therefore be taken
into account.
[15] A
further argument raised by Ms Banda is that the plaintiff will be able to
appoint a farm manager to assist with the farming
activities and that the
plaintiff will be able to continue with the farming operations up until the age
of 70 years. On behalf
of the defendant, it was thus contended that these
aspects should be taken into account in arriving at an award for past and
future
loss of income/earning capacity. No indication is provided how the
future loss of income/earning capacity is to be calculated having
regard to the
further expenditure to appoint a farm manager or having regard to any of the
arguments raised by Ms Banda. Ms Banda
contended that an amount of R2 215 431.85
will be fair and reasonable compensation in respect of the claim for loss of
earnings. There was no evidential basis provided by the defendant in support of
the calculation of the amount of R2 215 431.85.
[16] On
behalf of the plaintiff it was contended that the calculations for the
pre-morbid retirement age of 70 years and the
pre-morbid retirement age of 75
years should be addressed by working on the median between the two scenarios.
The primary question or finding in this matter is whether the plaintiffs
injuries incurred in the accident have any impact on his
earning ability, and
if so, to what extent his injuries affect his productivity as a farmer, a
position he held before the accident.
[17] The court in
Southern Insurance
Association v Ballie NO
[1]
eloquently stated the following
concerning loss of earning capacity:
Any enquiry into damages for loss of earning
capacity is of its nature speculative, because it involves a prediction as to
the
future, without the benefit of crystal balls, soothsayers, augurs or
oracles. All that the Court can do is to make an estimate,
which is often a
very rough estimate, of the present value of the loss. It has open to it two
possible approaches. One is for the
Judge to make a round estimate of an amount
which seems to him to be fair and reasonable. That is entirely a matter of guesswork,
a blind plunge into the unknown. The other is to try to make an assessment, by
way of mathematical calculations, on the basis of
assumptions resting on the
evidence. The validity of this approach depends upon the soundness of the
assumptions, and these may
vary from the strongly probable to the speculative.
It is manifest that either approach involves guesswork to a greater or lesser
extent. But the Court cannot for this reason adopt a
non possumus
attitude and make no award.
[18] The court in
Gwaxula v Road Accident Fund,
[2]
stated that it is imperative that the court in
its decision achieve equity and fairness to the parties and recognize the
reality
that there is no hard and fast rule regarding contingency allowances.
It went on to say that . . .
there are also unforeseen contingencies based on factors such as
errors in the estimation of future earnings and life expectancy,
loss of
earnings due to unemployment and sickness, retirement at an earlier age and
hazards of life. The list can never be exhaustive
.
[3]
[19] Considering the defendant has not
presented any expert evidence and that the only evidence presented was that of
the plaintiffs
experts, I am left with no alternative but to consider the
expert opinions of the plaintiffs experts regarding the plaintiffs
earning
capacity. The said evidence of the plaintiffs experts must be evaluated and
legally assessed for its veracity, and on
whether the experts opinions are
based on the facts presented to them, or whether the experts endeavoured to
make a case where
there is none.
There is no reason to doubt or
discount the evidence of any of the plaintiffs expert witnesses, and
particularly the evidence that
he had to sell two of his farms, rent out a
third farm as he was unable to continue working on the said farm, sold approximately
75% of his cattle herd and in effect discontinued his entire dairy operations.
[20]
Based on the evidence presented during the trial by the
Orthopaedic Surgeon, Dr Preddy, Ms Y de Klerk, the Occupational Therapist,
and the
Forensic Auditor, Mr D van Coller as well as the opinions expressed by the
other experts, I see no basis for this court
to conclude that the accident did
not have a negative impact on the plaintiffs earning capacity. The plaintiff
experiences pain
and suffering, discomfort, loss of amenities of life and will
continue to experience these as a result of the accident-related injuries.
He
has reduced physical work ability and is thus an unequal competitor and a very
vulnerable competitor in the open labour market.
The only remaining question is
to what extent did the accident impact the plaintiffs earning capacity.
[21] The
actuarial calculation carried out by Mr Johan Sauer, taking such assumptions
into account, reflect a total future loss
of earnings (after the RAF cap) in
the amount of R3 787 063 in respect of a retirement age of 70 years
and a total loss
of earnings (after the RAF cap) in the amount of
R5 098 893 in respect of a retirement age of 75 years. As to
contingencies
for the past losses a total reduction of 5% has been applied as
well as 5% total deduction for future losses (pre-morbid). I agree
with the
submission on behalf of the plaintiff that the contingencies applied by the
plaintiff are fair and equitable. No submissions
in this regard were made on
behalf of the defendant. The median between the two scenarios amount to a loss
of earnings/earning
capacity in the amount of R4 442 978.
[22] A
20% deduction in respect of the apportionment must be applied in respect of the
plaintiffs loss of earnings/earning capacity
as well as the amount in respect
of general damages, which amount of R1.5 million had been agreed upon between
the parties shortly
prior to the commencement of the trial. Accordingly the
order will reflect the following;
General
damages in the amount of R1 500 000
Loss of
earnings in the amount of R4 442 978
Sub-total R5 942 978
Less 20% apportionment R1 188 595.60
Total R4 754 382.40
[23] A further aspect that
needs to be adjudicated upon by this court is the aspect regarding the reserved
costs for the 27
th
of February 2024. The matter was set down for
trial for hearing on 27 February 2024, 28 February 2024 and 1 March 2024. The
issues
that had to be adjudicated on the mentioned trial dates were the claims
for past medical expenses, loss of earnings and general
damages, which is
basically the same issues which formed the issues in dispute when the matter
was enrolled for trial some 8 months
later. On 22 February 2024, being five
days before the trial, the plaintiff provided the defendant with vouchers of
the past medical
expenses via email. Ms Banda indicated that she was not ready
to deal with this head of damages because these vouchers were quite
voluminous
and received shortly prior to the trial date.
[24] I
was informed that since February 2024 the plaintiffs claim in respect of the
past hospital and medical expenses has not
been settled. By agreement between
the parties this aspect will have to be postponed to the pre-trial roll of 3
March 2025. Mr
Potgieter argued that the defendant has made no attempt to
evaluate the schedules as required by the RAF Act and its mandate to
settle
claims submitted in terms of the RAF Act. I agree with the arguments raised on
behalf of the plaintiff that the defendant
merely sits back and obviously did
not prepare for the trial to proceed in respect of the past medical expenses.
The matter was
certified trial ready yet the defendant failed to actively
participate in an effort to prepare for the trial. I am furthermore convinced
of the plaintiffs argument that the matter was not ready to proceed in respect
of the plaintiffs claim for loss of earning on
27 February 2024. This is
evident from page 3 of the heads of argument prepared by Mr Potgieter and filed
on 26 February 2024.
[25] As
to the claim for general damages suffered by the plaintiff, it is evident form
the copies of the emails appended to the
plaintiffs heads of argument that
serious and continuous efforts were made since February 2024 to inform the
assigned claims handler
and the senior claims handler of the defendant of the
trial dates, the seriousness of the matter and urged the defendant to timeously
attend to the matter. This was done in an endeavour to curb the costs and
expenses relating to expert witnesses and attending the
trial. Ms Banda
confirmed by way of WhatsApp messages, in many instances, that she had also not
received any instructions from
the defendant.
[26] Having
considered the arguments on behalf of the parties and the reasons for the
postponement, I am satisfied that the defendant
should pay the costs occasioned
by the postponement of the matter on 27 February 2024.
ORDER.
[27] In
the result the following order is made:
1.
The Defendant shall pay to the Plaintiff the
amount of
R4 754 382.40 (FOUR MILLION SEVEN HUNDRED AND FIFTY-FOUR
THOUSAND THREE HUNDRED AND EIGHTY-TWO THOUSAND RAND AND 40 CENTS)
in
respect of the Plaintiffs claim against the Defendant for the following heads
of damages:
Past
and Future Loss of Earnings/Earning Capacity: R3 554 382.40
General Damages:
R1 200 000.00
2. The amount
of
R4 754 382.40
shall be paid into the
trust account of Plaintiffs attorney, particulars thereof being as follows:
Account Holder: VZLR INC
Bank: Absa Business Bank
Hillcrest
Account number:3[
]
Branch code: 632005
Reference: MAT109272
3. In
the event that the Defendant fails to, within 180 (one hundred and eighty) days
from the date on which this order is
handed down, make payment of the amount of
R4 754 382.40, the Defendant will be liable for payment of interest
on such
amount at 11.50% (the statutory) rate per annum, compounded and
calculated fourteen days from date of this order.
4.
The
Defendant shall pay the Plaintiffs taxed or agreed party and party costs, as
allowed by the Taxing Master, for the trial dates
of 27 February 2024, 22
October 2024 and 23 October 2024, which costs shall include:
4.1 The fees of Plaintiffs counsel in terms
of Rule 67A(3)
(a)
of the Uniform
Rules of Court, where
so employed, on High Court Scale C.
4.2 The
reasonable qualifying fees of the following expert witnesses:
4.2.1 Dr
J Preddy (Orthopaedic Surgeon)
4.2.2 Dr
Huth (Neurologist);
4.2.3 D
van Coller (Grid Forensic Accounting);
4.2.4 Dr
I Wuso (Specialist Physician);
4.2.5 Dr
S C Davis (Cardiothoracic Surgeon);
4.2.6 Dr
S van Heerden (Plastic Reconstructive Surgeon);
4.2.7 Dr P
Steyn (Urologist);
4.2.8 L
Grootboom (Clinical Psychologist);
4.2.9 Dr I
Hasrod (Ophthalmologist);
4.2.10 Y
de Klerk (Occupational Therapist);
4.2.11
Ben Moodie (Industrial Psychologist);
4.2.12
Dr Viviers (Pulmonologist); and
4.2.13 Johan Sauer
(Actuary)
5. In the event of
default on the cost payment, interest shall accrue on such outstanding amount
at the statutory mora rate
on the date of taxation/settlement of the bill of
costs, as per the
Prescribed Rate of Interest Act, 55 of 1975
, as amended, per
annum, calculated from the due date until the date of payment.
6. The issue of past
medical expenses, as set forth in paragraph 7.1 of the particulars of claim, is
separated from the plaintiffs
quantum claim in terms of
Rule 33(4)
and
postponed to the pre-trial roll of 3 March 2025.
I VAN RHYN
JUDGE OF THE HIGH COURT,
FREE STATE DIVISION, BLOEMFONTEIN
Appearances
On
behalf of the Plaintiff:;Adv. J-H ROUX SC
Instructed
by:;Du Plooy Attorneys
;Bloemfontein
On
behalf of the Defendant:;Ms. P BANDA
Instructed
by:;State Attorneys
;Bloemfontein
[1]
Southern Insurance
Association v Ballie NO
1984 (1) SA 98
(A) at 99A-C.
[2]
Gwaxula v Road Accident Fund
[2013] ZAGPJHC
240.
[3]
Ibid para 25.