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
Not reportable
Case no: 5719/2021
In the matter between
JACOB JOSIAS MEYER PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Jacobus Josias Meyer & Road Accident Fund (Case no:
5719/2021)
Coram: Mgudlwa AJ
Heard: 25 April 2024
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 11h30 on 04 December 2024.
S
ummary: Motor v
ehicle accident
c
laim for past hospital and medical expenses
gener
al damages
f
uture medical expenses
pl
aintiff's future loss of earning
c
ontingencies.
ORDER
1. The defendant shall pay the plaintiff the amount of R9 767 952,99, which is
made up as follows:
1.1 General damages: R900 000.
1.2 Past hospital and medical expenses: R1 405 251,99.
1.3 Past and future loss of income: R7 462 701
in terms of the order as set out in para 19 of the judgment.
JUDGMENT
Mgudlwa AJ:
Introduction
[1] On 18 January 2017, the plaintiff was a driver of a motorcycle that collided
with a Toyota Hilux, at or near Piet Retief, Harrismith, Free State Province. At the
time of the accident, he was 44 years old and a father of three children. He was self
employed as the Managing Director and Senior Tax Practitioner of JMK Group. He
commenced employment in this capacity on 1 August 2001. At the time of the
accident, he was the owner of JMK Financials, which had additional departments
being JMK Dimensions Technologies, JMK Logistics, and JMK Pro Business
Management. Due to the injuries sustained as a result of the accident, the plaintiff
was absent from his business and subsequently, on 31 May 2019, his company was
closed due to financial difficulties. The plaintiff then proceeded to lodge a delictual
claim for damages he suffered as a result of his injuries with the defendant on 16
March 2018. On 7 June 2023, Musi JP found the defendant 100% liable for the
plaintiff's proven or agreed damages.
[2] As a direct consequence of the collision, the plaintiff sustained the
following injuries:
2.1 Right tibial plateau fracture;
2.2 disruption of the lateral collateral and anterior cruciate ligaments at the
right knee;
2.3 fracture of the greater tuberosity of the right humerus;
2.4 straining back injury; and
2.5 psychological issues.
[3] The court is called upon to adjudicate the outstanding claim in respect of:
3.1 Future medical expenses;
3.2 Past medical expenses;
3.3 General Damages; and
3.4 Past and future loss of earnings.
Future medical expenses
[4] It is apposite to mention that the defendant has tendered an undertaking in
terms of s 17(4)(a) of the Road Accident Fund Act 56 of 1996 (the Act) for the
plaintiff's future medical expenses and agreed that an order be made for
compensation for the plaintiff of 100% of the costs relating to future accommodation
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 and arising
from the collision which occurred on 18 January 2017, in accordance with the tariff
contemplated in subsection (4B).
Past medical and hospital expenses
[5] The defendant has rejected the plaintiff claim for past medical expenses on the
basis that the past medical expenses claimed were paid by Discovery Health
medical Aid and that no loss was suffered by the plaintiff.
[6] The courts have, on many occasions, held that medical aid scheme benefits
are a form of indemnity insurance and should accordingly be disregarded for the
purpose of an award for damages, in accordance with the principle of res inter alias
acta. In Zysset and Others v Sanlam Limited, 1 the court made the following
explanation:
'... it is well established in our law that certain benefits which a plaintiff may
receive are to be left out of account as being completely collateral. The classic
examples are (a) benefits received by the plaintiff under ordinary contracts of
insurance for which he has paid premiums and (b) moneys and other benefits
received by the plaintiff from the benevolence of the third parties motivated by
sympathy. It is said that the law baulks at allowing the wrongdoer to benefit
from the plaintiff's own prudence in insuring himself or from a third party's
benevolence or compassion in coming to the assistance of the plaintiff.'2
[7] In Discovery Health (Ply) Limited v Road Accident Fund and Another3
(Discovery), Mbongwe J, at para 16 of the judgment, emphasized the purpose of the
Act and similar legislation preceding, as aptly described in Engelbrecht v Road
Accident Fund & Another,4 as to primarily give the maximum protection to
perso n_swho suffer loss or damages as a result of the negligent driving or unlawful
conduct in the driving of a motor vehicle by the driver thereof. Most importantly, it
was furthermore held that the Act does not provide for the exclusion of benefits
where the victim of a motor vehicle accident has received from a private medical
scheme for past medical expenses. In para 29,5 the court in Discovery reiterated the
legal position that the Road Accident Fund (RAF) is not entitled to seek to free itself of
the obligation to pay full compensation to victims of motor vehicle accidents.
[8] On consideration of the case law set out above, as well as on proper
interpretation of s 17 of the Act, it is apparent that the defendant's liability to a claim
1 Zysset and Others v Santam Limited 1996 (1) SA 273 (C).
2 Ibid at 278BD.
3 Discovery Health (Pty)Limited v Road Accident Fund and Another [2022] ZAGPPHC 768.
4 Engelbrecht v Road Accident Fund & Another [2007] (6) SA 96 (CC).
5 Ibid. Discovery Health case... Para.29.
for past medical expenses is not affected by the fact that the plaintiff's medical aid
has already paid those expenses. It is clear from the decisions referred to above,
that the res inter alias acta principle does not permit the defendant to deduct the
amounts paid by Discovery from the quantum payable to the plaintiff in respect of
past medical expenses. I interpose to mention that the counsel for the defendant, in
her legal arguments, was unable to refer this court to any court decision and or
authority which supports rejection of a claim for past medical expenses by RAF.
Thus, I accordingly find the defendant liable for the past medical and hospital
expenses incurred by the plaintiff as a result of the accident in the amount of R1 405
251,99.
General Damages
[9] The plaintiff claims an amount of R2 000 000 for general damages. The
following background information is relevant: In order to prove damages, the plaintiff
relied on the experts reports: Dr. S Bismilla and Dr. E Williams (Joint minutes
between the Orthopedic Surgeon),·R Hunter (Occupational Therapist), Dr. C Gordon
and Mr. G Temane (Joint minute between the Clinical Psychologist), Talia Talmud
(Industrial Psychologist), and Gerard Jacobson (Actuary). The parties agreed to
submit all these reports as undisputed. I will now refer to certain salient features of
these reports.
i) Dr. WE Williams
He completed an RAF 4. He examined the plaintiff on three occasions and the latest
assessment was on 28 March 2023.He opined in his injury diagnosis, the following:
right tibial plateau fracture, probably Schatzker type VI or AO type C # (i.e
comminuted bicondylar fracture); disruption of lateral collateral and anterior cruciate
ligaments at the right knee; fracture of the greater tuberosity of the right humerus
and straining injury of the back. He noted that the plaintiff sustained long term
physical impairment and serious permanent disfigurement.
ii) Dr. S Bismilla and Dr. E Williams (Joint minutes between the orthopedic
surgeon) In the joint minutes, both orthopedic surgeons recorded that the plaintiff
sustained the following injuries as a result of the accident:
1) Injury of the shoulder
a) Dr Bismilla described the injury as anterior dislocation of the
shoulder.
b) Dr Williams described the injury as fracture of the greater tuberosity
of the humerus
c) The different descriptions are compatible with the same injury, as
fracture of the greater tuberosity and dislocation of the shoulder are
often seen as concomitant injuries.
2) Injury at the plaintiff's right knee/ proximal tibia
a) Dr Williams describes the injury on the right knee as a tibial plateau
fracture, probably Schatzker type VI or AO type C 3 (i.e communicated
bicondylar fracture). He opined that the patient had sustained
disruption of the lateral collateral and cruciate ligaments of the right
knee.
b) Gleaned from the report, there is no disagreement between the
orthopedic surgeons on the plaintiff's nature of the right knee injury,
irrespective of its exact description.
3) Dr Bismilla recorded that the plaintiff had sustained unspecified injuries of
the chest and abdomen. He further noted that the X ray images of the chest
and CT scan of the abdomen had yielded normal findings.
4) Dr Williams also recorded that the plaintiff had sustained a straining injury
of the back.
5) Past medical or surgical history:
a) Both examiners recorded that the plaintiff had previously
sustained injuries of the lower limbs in a motor vehicle accident in 2005
or 2005, where he sustained a fracture of the left femur, which was
treated by internal fixation and was injured on his right ankle, for which
he underwent arthrodesis (fusion) of the ankle. Furthermore, both
examiners recorded that the plaintiff sustained a fracture of the shaft of
the right femur in a fall in 2019, for which he underwent internal
fixation.
b) I deem it apposite to mention that the plaintiff disclosed the
following preexisting conditions during his testimony:
i) He broke his arm when he was 17 years old.
ii) During 2004, when he was involved in a previous motor
vehicle collision, he fractured ribs on both sides, he fractured his
right ankle (which culminated in orthodesis), he fractured his left
femur.
iii) During 2015, he coll apsed behind his desk and a
psychologist prescribed a 3 months rest for him.
iv) During 20152016 he started taking concerta and venior
(antidepressants).
6) Loss of work capacity or early retirement:
(a) Dr Bismilla opined that there is no objective impediment in
plaintiff's work capacity and that he is not permanently disable as a
result of the accident related injury.
(b) Dr Williams opined that the plaintiff will only be able to do
sedentary work. He will be unable to do any work that would involve
significant physical Exertion. He should be able to continue working
until normal retirement Age, but the condition of particularly his lower
limb will restrict his mobility Substantially, therefore activities such as
travelling to work and home will be restricted. He will have to take sick
leave from time to time, due to his symptoms and to undergo treatment,
which will probably include surgery.
7) There appears to be a difference of opinions between the two doctors
on what should be regarded as significant or substantial impairments.
(a) Dr Bismilla opined that no further treatment is planned, whereas
Dr Williams felt quite certain that the plaintiff will need substantial
ongoing treatment and likely to undergo major surgery of the right knee,
amongst other treatment measures.
(b) Dr Bismilla opined that the plaintiff has not retained any serious
impairment, whereas Dr Williams opined that the plaintiff has retained
serious long term physical impairment that should qualify him for
compensation for general damages.
(c) The defendant initially rejected the plaintiff's injury assessment
report and the matter was subsequently referred to the HPSA (Health
Professional Council of South Africa). The letter dated 14 October 2023
indicates that the matter was served before the Appeal Tribunal on 11
September 2023 for consideration. After all available evidence was
presented to the committee, it was found that the injuries sustained by
the plaintiff may be classified as serious in terms of the narrative test.
8) I have also observed that the injuries sustained by the plaintiff at the time
when he showed them to the court and through x ray images attached to the
radiological examination 6. In my view, the injuries are serious and have left
the plaintiff with a long term physical impairment. Furthermore, it appears that
the accident had physical, mental, emotional and financial impact on the
plaintiff's life. With regard to future medical treatment, the joint minute of the
Orthopaedic surgeons noted the following;
a) Plaintiff is likely to undergo a total right knee replacement.
b) Plaintiff is likely to undergo revision of the total knee replacement on more
than one occasion
c) Plaintiff may undergo surgery of the right shoulder.
d) Plaintiff should take analgesia.
e) Plaintiff will be compelled to consult with medical practitioners
repeatedly in the future.
6 See page 188 196 of the Diagnostic radiologist report, Bundle D.
iii) The occupational therapists, Kgomotso Montwedi and Robyn Hunter
also compiled their joint minutes. These experts agree that the plaintiff is not suited
for his pre accident occupation and cannot meet the demands for the aspects of his
occupation that involves travelling and securing clients. They also agree that the
plaintiff has been rendered unemployable. With regard to future medical treatment,
the following was noted; occupational therapy, physiotherapy, pain management and
psychotherapy.
iv) The industrial psychological report compiled by Shenade Stevens was filed.
She examined the plaintiff on 10 January 2019 and 26 April 2023.
Pre-accident performance
1) The report noted that the plaintiff has only accumulated experience in the
taxation field since entering the open labour market. Since 2001, he has been
working in a self employed capacity as Managing director and Tax practitioner.
Furthermore, he officially registered his business as JMK Financials in 2006 and
added additional departments to the company being JMK Dimensions Technologies,
JMK logistics, and JMK ProBusiness Management in 2016.
2) Premorbidly, the report noted that the plaintiff was remunerated separately
from each department for each capacity that he worked in January 2016. The
following was noted regarding his earnings:
a) As Managing Director and Senior tax practitioner of JMK Financial
service, the plaintiff earned a basic salary of R84147,12 per month. He
received additional monthly payments including travel allowance of R1 995
and variable annual bonus of R42 073,56 in December.
b) As Managing Director of JMK Dimension Technologies, the plaintiff
earned R25 000 per month and variable annual bonus of R8 750.
c) As Managing Director of JMK Logistics, the plaintiff was earning R37 500
per month and a travelling allowance of R12 500. Additionally, he received
variable annual bonus of R17 500.
d) As Managing Director of JMK ProBusiness Management, the plaintiff
was earning R25 000 per month and a variable annual bonus of RB 750
Post-accident performance
1) Having taken account of various medical reports, the industrial psychologist
noted that the plaintiff has not worked since the closing of his company and is currently
surviving on income protection payment which started in October 2021 and will end
in September 2038. Furthermore, he opines that the plaintiff is not suited to his
previous work as a Tax Practitioner and it is impossible that he would be able to build
a business to the level it was preaccident.
2) The industrial psychologist opines that, but for the accident;
a) Plaintiff would have worked to the ages of 6570.
b) Due to the fact that there are many unknown variables regarding the
success of the running of a business, an appropriate pre morbid contingency
be applied to take possible period of fluctuating earnings onto account.
3) The industrial psychologist also opined that, having regard to the accident,
plaintiff is rendered unemployable in the open labour market.
4) The actuarial report
The actuary did actuarial calculations for the past and future loss by providing
calculation for the scenarios but for the accident and also having regard to the
accident. The calculations were also based on the information provided by
various experts and the actuary's assumption, having regard to the accident,
is that the retirement age of the plaintiff is 65 years. In calculating for past loss
of income valued at R7 692 622, only scenario 1 is applied with a contingency
reduction of 5% (R384 631) and the total past loss is R7 307 991. With regard
to future loss of income, in scenario 1, the value of income but for the accident
is R27 320 360, less the contingency reduction of 15% (R4 098 054) and the
total value of income but for accident is R23 222 306. In scenario 2, the value
of income having regard to the accident, the amount is R5 102 844, less the
contingency reduction of 30% (R1 530 853) and the total is R3 571 991. The
net future loss according to the actuary is R19 650 315 and the total net loss
is R26 958 306.
Evaluation and legal framework
[10] The plaintiff's claim for damages resultant from the accident is aimed to
recover the difference between the position, as it is after the act of damage, and as it
would have been if the act were not committed. It is trite law that the plaintiff must
prove the extent of his loss and damages on a balance of probabilities. The evidence
of the experts explicitly established that the plaintiff's earning capacity has been
impaired and this has resulted in a loss. In Mvundle v RA F7 an unreported
judgment, the court said the following:
'It is trite that the damages for loss of income can be granted where a
person has in fact suffered or will suffer a true patrimonial loss in that his or
her employment situation has manifestly changed. The plaintiff's
performance can also influence his or her current job and or be limited in a
number and quality of his choices should he or she decides to find other
employment.'8
General damages
[11] It is not in dispute that the plaintiff sustained serious injuries as a result of the
accident. The only issue for determination in regard to general damages is a fair and
adequate compensation. In determining damages , the court may have regard to the
nature and severity of the injuries, the amount of pain suffered by the plaintiff, length
of his recovery and disruption of his life. In this instance the correct approach is to
have regard to all the facts of the case and determine the quantum of damage for
such facts. In Road Accident v Marunga
9 the court said the following:
'This Court has repeatedly stated that in cases in which the question of general
damages comprising pain and suffering, disfigurement, permanent disability
and loss of amenities of life arises, a trial court in considering all the facts and
circumstances of a case has a wide discretion to award what it considers to
7 Mvundle v RAF [2012] ZAGPPHC 57.
8 Ibid para 42.
9 Road Accident v Marunga [2003] 2 All SA 148 (SCA).
be fair and adequate compensation to the injured party.'10
[12] The plaintiff sustained multiple orthopaedical injuries and remains
symptomatic as a result of the injuries sustained. He was hospitalized for a period of
three days, however after his discharge he was mobilized with crutches and has
been in and out of hospital with 14 surgeries conducted on him. He attended several
followup consultations, where it was noted that his recovery period and return to
work or normal duties were delayed because of the preexisting right knee
pathologically. He was off work for a period of 25 months. He will need to undergo
surgery for knee replacement in the immediate future due to weakness of his knee
ligament. Neuropsychological assessment reveals severe symptoms of depression
and residual symptoms of posttraumatic stress disorder.
[13] An award for general damages, as was said by Holmes J in Pitt v Economic
Insurance Co Ltd,11 must be fair to both sides. It must give just compensation to the
defendant's expenses. In Abraham v Road Accident Fund, 12 the plaintiff, a 41 year
old male sustained multiple injuries, including a badly comminuted fracture of the
femur, fractures of the fibula and patella, fracture of the right malleolus, severe soft
tissue injuries of the hand and a mild concussive head injury. He underwent surgery
in the form of an open reduction of the patella fracture with fixation, an open reduction
and internal fixation of the malleolus. Subsequent surgeries for removal of the
fixatives were performed. The right limb was shortened with the need for an assistive
device.. Osteoarthritis was present in the left knee and there was limitation of range of
motion in the right hip, knee and ankle. Preexisting generalized anxiety disorder was
exacerbated. The plaintiff was rendered unemployable. An amount of R500 000 was
awarded in 2014 for general damages, with a present value of R880 000, was made.
[14] In this matter, the legal representative for the plaintiff proposed R1,500,000 as
an appropriate amount for general damages, whereas the legal representative for
the defendant proposed an amount of R 700, 000. Both parties have referred this
court to number of authorities where similar injuries were sustained. In my view,
10 Ibid para 23
11 Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (N) 287EF.
12 Abrahams v Road Accident Fund 2014 (7J2) QOD 1 (ECP).
having regard to the totality of facts and circumstances of this case and all the
authorities, an amount of R900 000 will be adequate compensation for general
damages for compensation herein.
Loss of earning
[15] The enquiry into damages for loss of earning is by its nature speculative.13 In
order to determine a plaintiff's claim for future loss of income the court must compare
what the plaintiff would have earned if it was not for the accident with what he would
likely have earned after the accident. The plaintiff, in amplification of his claim,
testified that pre morbidly generated income from four businesses which required
extensive travelling. At the time of the accident, he was earning a monthly income of
R221 063,32. The plaintiff could have expanded his business and increased his
income. Post morbid, his business declined and concomitantly his earnings also
decreased. The business had to be managed by his wife due to his absence. In 2019,
due to financial difficulties, his business was closed down. The plaintiff received an
income protector from Sanlam Insurance in the sum of R112 310 per month. I deem
it apposite to mention that the income protector does not obliterate the plaintiff's
claim for loss of earnings.
[16] When making an order for future losses, it is expected from the court to make
use of contingency deductions to provide for any future circumstances which may
occur, but which cannot be predicted with precision. When considering the
suggested contingency, I have regard to Road Accident Fund v Kerridge 14 where the
Supreme Court of Appeal said:
'It is trite that general contingencies cover a wide range of considerations that
vary from case to case. Five per cent and 15 per cent for past and future loss,
respectively, have become accepted as "normal contingencies".'15
13 Southern Insurance Association v Bailey N.0. 1984(1) SA 98 (AD) at 113G.
14 Road Accident Fund v Kerridge [2018] ZASCA 151; 2019 (2) SA 233 (SCA).
15 Ibid para 30.
[17] In Road Accident Fund v Guedes,16 the court said that there are no fixed rules
in regard to general contingencies. There are however some guidelines to identify a
proper contingency to be used; ie 25% for a child, 20% for youth and 10% in middle
age with half a percentage added per year until retirement.17
[18] In calculating the loss, the actuary assumed that the retirement age of 67½
years and the plaintiff's total income being the salaries indicated in his personal
income statement plus the profit and loss from his companies. He applied 5%
contingency to past loss of earnings and 15% to the future loss of earnings in the
premorbid scenario. Regarding the value of income having regard to the accident,
he applied a 30% contingency deduction. In this scenario, the past loss of
earnings is an amount of R4 833 351 and the future loss of earnings an amount of
R19 361 408. I agree with the calculations of the actuary, and considering the RAF
cap, that the plaintiff's past loss of earnings is R889 962, the future loss of earnings
is R6 572 739 and the total loss of earnings is R7 462 701, I have no reason to reject
the contingency percentages suggested by the actuary.
Order
[19] Having regard to the circumstances of this case, the following order is issued:
1. The defendant shall pay the plaintiff the amount of R9 767 952,99,
which is made up as follows:
1.1 General damages: R900 000.
1.2 Past hospital and medical expenses: R1 405 251,99.
1.3 Past and future loss of income: R7 462 701
2. Payment of the aforesaid amount shall be made within thirty (30) days
into the plaintiff's attorney of record, LEON JJ VAN RENSBURG's trust
16 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA).
17 Goodall v President Insurance Co Ltd 1978 (1) SA 389 (W).
account with details as follows:
Name of account: Leon JJ van Rensburg (Trust account)
Bank: ABSA bank
Branch: President, Germiston
Branch code: 334542
Account number: 2[…]
3. The Defendant shall be liable for interest on the aforesaid amount at
the rate of 11.25 % per annum, calculated fourteen (14) days from date of this
order to date of payment, both dates inclusive.
4. The Defendant shall furnish the Plaintiff with an undertaking in
terms of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996, as
amended, for 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 arising out of the injuries sustained by him in the
motor vehicle collision which occurred on 18 January 2017 after such costs
have been incurred and upon proof thereof.
5. The Defendant shall pay the Plaintiff's taxed or agreed costs on the
High Court party and party scale, the travelling costs of the Plaintiff to and
from all medico legal appointments, including all attendances therewith or in
connection thereof, the costs on default judgment by trial of counsel, including
counsel and/or attorneys' consultations with experts, the preparation,
reservation and qualifying fees of the experts together with their consultations
with counsel and/or attorney preparing their reports, addendum reports and
statutory forms, in consulting with the attorney and/or counsel, if any, and as
determined by the taxing master, namely, of the following experts:
5.1 Radiologist;
5.2 Dr Williams, orthopaedic surgeon;
5.3 R.Hunter, occupational therapist;
5.4 T.Talmud and Stevens, industrial psychologist;
5.5 Jacobson, Actuary
5.6 Dr.C.Gordon,Clinical Pshycologist.
6. The Defendant shall pay the Plaintiff's taxed or agreed costs pertaining
to advocate fees on scale B in terms of rule 69, including but not limited to
counsel's consultations with the attorney, plaintiff, experts and witnesses and
the drafting of a case summary, practice notes and/or heads of argument for
the Plaintiff, and/or the appearance on 05,06 and 08 March 2024.
7. In the event that costs are not agreed, the Plaintiff shall:
a. serve a notice of taxation on the Defendant's attorneys of record;
and
b. allow the Defendant fourteen (14) court days to make payment of
the taxed costs.
S.T Mgudlwa, AJ
Appearances
For the Plaintiff: Adv. Louw
Instructed by: Leon JJ Van Rensburg Attorneys
For the Plaintiff
c/o Rosendorff Reitz Barry Attorneys
6 Third Street, Arboretum
Bloemfontein
For the Defendant: Ms J Gouws
Instructed by: State Attorney
11
th Floor ,Fedsure Building
49 Charlotte Maxeke Street
Bloemfontein
9300
Tel: 051 400 4300