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2024
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[2024] ZAECMKHC 134
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Rode v Road Accident Fund (1856/2022) [2024] ZAECMKHC 134 (27 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – MAKHANDA)
Reportable
/
Not
Reportable
Case
no.: 1856/2022
Matter
heard on: 22 August 2024
Judgment
delivered on: 27 August 2024
In
the matter between:
M
RODE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BRODY,
AJ
1.
This matter was placed on the trial roll for hearing on the 22
nd
of August 2024.
2.
The defendant was unrepresented at the trial and I directed that
evidence should
be given in regard to the merits only.
3.
The plaintiff appeared as the only witness and was assisted by an
interpreter,
especially as he had no vocal chords, and was unable to
converse clearly in English.
4.
At issue in the matter was that the defendant had raised a special
plea of prescription,
after which the plaintiff had amended his
particulars of claim.
5.
There can be no doubt that the plaintiff suffered severe injuries,
and disabilities,
as he suffered a fracture and dislocation of the
facet elements at C5 and C6. There was also damage done to his vocal
chords and
he approached court with all the necessary expert reports
and the following expert opinion was given by a specialist
Neurosurgeon:
“
Chapter 14
Neuro: Head Injury, Table 13.6 alteration MSCHIF Class 2: 20%
Severe speech
dysfunction Class 1: 10%, Bowel incontinence, Class 1: 10%
Bladder incontinent
Class 1: 10%
Combined whole person
impairment = 88%
Qualified for
compensation for general damages.”
6.
The pleaded case was that on or about 18 February 2016 an employee of
the defendant,
in terms of the Act, lodged a claim against the
defendant due to the injuries sustained in the collision. This was a
claim directly
with the defendant.
7.
The plaintiff further pleaded that advice was given to the plaintiff
by the defendant
and the plaintiff accepted the advices of the
defendant, in good faith.
8.
On 3 May 2016, the defendant provided the plaintiff with an offer to
settle the
issue of negligence on the basis that the insured driver
was solely negligent in causing the motor vehicle accident.
9.
Around October 2016, the plaintiff was placed in Murambi House –
Frail
Care, Cape Town at the expense of the defendant. In fact, the
defendant has paid the costs of the accommodation, the costs of
medication,
the costs of supply of goods and nursing facilities
required by the plaintiff due to the injuries sustained.
10.
It was only in 2002 that the plaintiff approached his current
attorneys when he had received
no monies from the Fund and was unable
to do so until then because of his disabilities. When his sister
visited him at the Frail
Care Centre, it was then that an arrangement
was made to see an attorney to proceed with the present litigation.
11.
It was argued on behalf of the plaintiff, by Mr Somandi, that until
that point, the claim
was in the hands of the defendant and the
plaintiff had no knowledge of how claims were dealt with by litigants
and was, in any
event, unable to enforce his rights, given his
disabilities.
12.
I emphasise that the plaintiff is unable to speak and is in a
wheelchair, as a paraplegic.
13.
Arising out of the evidence given by the plaintiff, and in particular
the manner in which
he answered questions put to him by Mr Somandi, I
formed the view that the plaintiff may well have possible cognitive
difficulties
which have not been covered by his expert witnesses in
their reports.
14.
The evidence given by the plaintiff was that the collision occurred
in Cradock and it was
only much later that he woke up in
Johannesburg, after being in a coma, when he realised what had
happened. The plaintiff also
struggled to answer various questions
put to him by Mr Somandi, which were not complicated questions, and
there can also be very
little doubt from the present expert reports
that there were severe injuries to the plaintiff’s facial area,
including his
head.
15.
I raised the issue of a Curator being appointed for the plaintiff and
the plaintiff’s
legal representatives agreed that this would be
appropriate, in the circumstances.
16.
The plaintiff’s claim is on all fours with the matter of
Avuyile Sokatsha vs Road
Accident Fund, delivered on the 19
th
of February 2019 by Plasket J (as he then was).
17.
In this matter, the plaintiff referred the claim directly to the Road
Accident Fund.
18.
The plaintiff had pleaded that the defendant’s employees owed
him a “
duty of care” to ensure that he was fully
assisted and advised in regard to all necessary steps to be taken,
and timeously
advised to consult an attorney to issue summons before
the lapse of five years.
19.
Plasket J held the following in that judgment:
“
[8]
The thrust of the special plea is that the plaintiff’s claim
against the defendant
in terms of the
Road Accident Fund Act 56 of
1996
has prescribed. That fact is common cause that the plaintiff is
not claiming in terms of the Act. His cause of action is based on
a
negligence of the employees of the defendant who allowed his claim in
terms of the Act to prescribe. The special plea is directed
at the
wrong target. It does not rest whether and, if so, when the
plaintiff’s actual cause of action may have prescribed.
That
being so, the defendant has not established that the plaintiff’s
claim has prescribed.”
20.
In addition to that principle, the defendant in this matter clearly
reached a conclusion
that the plaintiff must succeed in his claim and
made the offer, as pleaded by the plaintiff.
21.
The plaintiff’s amended particulars of claim make it perfectly
clear that the plaintiff
relies on the wrongfulness and/or
unlawfulness and/or negligence of the defendant in not fully
investigating the plaintiff’s
claim and not advising the
plaintiff properly. The further pleading is that the defendant
accordingly breached its statutory duty
and obligations to pay a fair
and reasonable compensation to the plaintiff in terms of the Act.
22.
Further to the above, the defendant also acquiesced with its own
offer by paying the medical
expenses, and all other related expenses
of the plaintiff, and hence his residence at Murambi house, Frail
Care, Wynberg, since
October 2016.
23.
In the interests of justice, and on the basis of the defendant’s
own negligence, and
acquiescence of its previous offer, I find that
the special plea is dismissed.
24.
In the result, the following order is made:
(a)
The special plea is dismissed.
(b)
The defendant is held 100% liable for the plaintiff’s proven
damages which occurred
as a result of a motor vehicle collision which
occurred on 4 July 2015 at or near R61 Road between Cradock and
Graaff-Reinet.
(c)
The defendant is ordered to pay the plaintiff’s taxed,
alternatively agreed,
costs of suit on the high court party and party
scale in respect of the following, which costs shall include, but are
not limited
to the following:
(i)
The costs consequent to the employment of counsel, including all
costs to attend
to and prepare the matter on the 22
nd
of
August 2024;
(ii)
The costs to date of this order which shall include the reasonable
taxable qualifying,
reservation, preparation and travelling fees of
expert witnesses, (if any);
(iii)
The payment of the aforesaid costs shall follow within 180 days after
the date of allocator.
(iv)
The defendant shall pay the payment’s interests on the costs of
suit, as taxed, from
a date fourteen days of date of allocator to
date of final payment.
(d)
The plaintiff’s legal representatives are directed to bring an
application for the
appointment of a Curator
ad litem
as soon
as practicably possible and before the set down of the matter in
regard to quantum.
(e)
Any remaining costs of the plaintiff are postponed until termination
by the trial court
in due course.
B B BRODY
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Plaintiff
: Adv.
Somandi
Instructed
by
:
Majibana Nhuku Inc. Attorney
c/o
Yokwana Attorneys
87
High Street
MAKHANDA
(REF.:
RODE/0073)
Counsel
for the Defendant
:
No
Appearance
:
Road Accident Fund
7
th
Floor Thibault Square
Long
Street
CAPE
TOWN
(REF.:
Link no. 3854221)