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                                    IN THE HIGH COURT OF SOUTH AFRICA                                       GAUTENG DIVISION, PRETORIA

Case number:65929/15

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED: YES

DATE: 26 NOVEMBER 2021

In the matter between:

MOAMOGOE KAMOGELO EUGENE                                                                           PLAINTIFF

And

THE ROAD ACCIDENT FUND                                                                                   DEFENDANT

JUDGMENT                                      

LESO,AJ

INTRODUCTION

[1]  Plaintiff claims damages for personal injuries against Defendant for the motor vehicle accident which occurred in Soweto on 28 April 2014. Plaintiff was a passenger in a motor vehicle with registration number NMH 290 GP when the vehicle in which she was traveling collided with the insured driver.

[2]  The merits of this case were settled on 3 February 2017 and the defendant accepted 100% liability in favour of the plaintiff's proven or agreed damages. The defendant's defense was struck out in the interlocutory court therefore the matter proceeds on a default basis.

ISSUES IN DISPUTE

QUANTUM

[3]  The matter is set down for the determination of non-pecuniary loss(general damages), loss of earnings and future medical expenses

EVIDENCE ON THE CLAIM FOR GENERAL DAMAGES

[4]   For the determination of general damages and for the sake of convenience, I will only deal with the question of law concerning the interpretation of regulation 3(3)(dA) with reference to the case of Mpahla and Duma.

[5]  The matter proceeded to be argued on the stated case and the plaintiff’s counsel relied on the heads of argument and the admitted evidence in the form of the expert’s reports.

[6]   Plaintiff claims that he has suffered a non-pecuniary loss in the amount of R800 000. The counsel for Plaintiff relied on the stated case to prove the amount claimed for general damages. The counsel submitted that the plaintiff is qualified to be awarded the damages because of the following reasons:

i]    In June 2019 RAF 4 form was served on the defendant’s erstwhile attorneys;

ii]    that the merits were settled on 3 February 2017;

iii]    that there was no unequivocal rejection of the Serious Injuries Assessment;

iv]    that, It has been a practice that if the RAF has not reacted to SIA report then it is assumed that the claim has been accepted

v]   The Neurosurgeon (Segwapa) reports that the plaintiff has a severe long-term mental disorder or severe long-term behavioral disturbance or disorder and he qualifies the plaintiff in terms of the narrative test with 15% WPI. Orthopedic Surgeon(Kumburai)assessed plaintiff at 3% WPI.

CLAIM FOR FUTURE MEDICAL EXPENSES

[7]  The injuries sustained by the plaintiff have been outlined on the plaintiff uncontested reports compiled by Segwapa(Neurosurgeon), Letshufi (Clinical Psychologist) and Kumbirai(Orthopaedic surgeon) together with hospital records. The Injuries sustained by the plaintiff are as follows.

i.     Blunt abdominal trauma;

ii.     Haemoperitoneum;

iii.    Liver laceration (grade 1);

iv.     Head Injury with subarachnoid hemorrhage;

v.      Small right pneumothorax with lung contusion;

vi.     Fracture of the sacrum;

vii.     Fracture of the right tibia and fibula.

[8]   The expert's reports indicate that the plaintiff will continue suffering from recurrent abdominal pain and pain in the right leg which will be exacerbated by prolonged standing and walking. They state that the plaintiff will experience poor concentration, poor or short-term memory and recurrent headaches. Segwapa opines that the plaintiff will require +-R30 000.00 in the future for medical expenses. Letshufi reports that post-accident, the plaintiff is still anxious when driving in a car. The Orthopaedic opines that the plaintiff will incur expenses of R2 500 per annum for medical expenses to purchase prescription drugs, to consult with a GP, Orthopedic Surgeon and Physiotherapist. According to the experts' reports, the plaintiff will require treatment for the rest of his life.

CLAIM FOR LOSS OF INCOME OR EARNING CAPACITY

[9]   The Industrial Psychologist assessed the plaintiff and reports as follows: the plaintiff was a grade 11 learner at Noordegesig High school at the time of the accident. That she recuperated after approximately 4 to 5 months and never returned to school. The plaintiff did not write grade 11 examinations, from 24 May 2018 to 15 December 2018 she was employed on a part-time basis as a promoter earning a salary of R600.00 to R800.00 and she is currently at home and unemployed. The expert opines that her educational and occupational prospects are compromised by the accident and the sequelae thereof. She presents with cognitive, emotional and physical limitations that affect her ability to work in the open labour market. she has retained physical capacity for work that is regarded as sedentary, light and lower range medium work with reasonable accommodation for tasks that requires walking, standing and kneeling. She is likely to be faced with an extended period of unemployment as she requires accommodation and employers rarely offer accommodation to new employees. She is unlikely to perform to her optimal level due to pain hence she will be unable to reach her pre-accident occupational functioning. The expert recommends higher than normal post-accident contingencies.

[10] 

The Occupational Therapist reports that post-accident the plaintiff complains of pain on the lower back and right lower limb which is exacerbated by long periods of standing and walking. she walks with decreased standing and walking endurance which are moderate occupational impairments. The plaintiff has Grade 10 and a Certificate in Tourism. At the time of the assessment, she was employed as a Promoter at X-P Square. Assessment findings indicate that she presents with the current physical ability to perform sedentarily, light and lower range medium work with reasonable accommodation for tasks that require long periods of standing, work, forward bending stand, walking, squatting and kneeling however his cognitive impairments will likely hinder his ability in any physical work he is able to do.

[11]  The Educational Psychological reports thatas follows: pre-morbid, the plaintiff failed grade 3 twice. That she was going to pass grade 12 and continue with a certificate course (NQF 5) should he find an opportunity to do so such as bursaries or loans (NSFAS). The expert indicates that her birth history was normal with normal milestones and that the trend now lately is that children often achieve more than their parents, academically and vocationally however the educational landscape has since changed. The expert state that post-morbid, plaintiff has missed school while doing grade 11 as he was recuperating from the injuries sustained in an accident. That she has grade 10 (NQF2) level of education and level 4 in tourism. He qualifies for the National Certificate (Vocational) and has met the minimum requirements for admission to higher certificate study as Gazette for admission to higher education. According to the expert, the plaintiff was unable to work as a promoter in the store due to the sequelae of the accident. The expert opines that the accident has compromised her health and future employability. With the type of injuries he sustained, his occupation will be affected negatively

[12]  The plaintiff has obtained the Actuarial calculations for the projected future and past loss of income. The calculations are based on the Industrial Psychologist report prepared by Chamisa Maulena dated 22 March 2019 wherein the plaintiff was assessed on 21 May 2018. There are two actuarial reports with different calculations( different contingencies and different amounts) uploaded on the case line. The calculated value of loss of earnings as of 5 August 2020 are as follows:

i)   Past uninjured, 5% contingencies on R180 013; Future uninjured,15% on R7557 571;

Total of R6 594 947.

ii)  Past injured, 5% contingencies on R5 949; Futre injured, 35% on R 7557 571;

Total of R4 918 073

The total loss of earnings or earning capacity is calculated at R 1 676 874.

[13]   The revised actuarial calculations indicate that the calculated value of loss of earnings as of 01 September 2021 is as follows:

i)  Past Injured, 5% contingencies on R5 945;

ii)  Future injured, 50% contingencies on R7 585 282; Total of R3 798 293.

The total loss of earnings was calculated at R2 455 276.

In the heads of argument the plaintiffs made the calculations based on the first report however during the submissions he indicated that he relies on the revised report.

THE LAW

[14] Plaintiff’s claim is governed by the provisions of the Road Accident Fund Act[1], In terms of section 17(1) of the Act, the defendant is liable to pay compensation to a third party for damages arising out of the negligent driving of a motor vehicle by the insured driver when the identity of the owner is established. The claim for general damages is regulated by Regulations3[2].

[15]  The question of law concerned the interpretation of Regulation 3(3)(dA) of the Road Accident Fund Regulations, passed pursuant to the Road Accident Fund, which requires the Fund to accept or reject a ‘Serious Injury Assessment report or to direct the third party to submit to a further assessment, within 90 days from the date on which the report was delivered to the Fund. Although the regulations deal with the 90 days period. The legislative provisions governing the claims for general damages or non- pecuniary loss are discussed at length in RAF v Duma[3] . Further In the dictum of Mpahla v RAF[4] the Coram: Lewis, Ponnan, Petse and Mathopo JJA and Coppin AJA, clarifies the procedure to be followed by the applicant, should the defendant fail to respond within the 90 days period as required by the RAF regulations.

ANALYSIS OF EVIDENCE ON THE CLAIM FOR GENERAL DAMAGES

[16]  On the claim for General Damages, the applicant sought condonation of non-compliance orally on the bar. For the application to succeed, firstly, the applicant must show good cause why the application must be granted, secondly, the court must be satisfied the defendant will not be prejudiced should the application be granted. It is indeed true that the Neurosurgeon, Dr Segwapa completed an assessment and the RAF 4 was then served on the defendant's attorneys on 7 November 2018. The report was served and the 90 days period has elapsed without a response from the defendant. It is clear from the facts of this case that the remedy sought (condonation) is not merely a technical one and that there is still a lis between the parties regarding the claim for general damages. The remedy sought by the counsel is not practical and therefore it cannot be granted.

[17]  In Mpahla v RAF , the appeal court decision on the interpretation of the regulation 3(3)(dA) of the Road Accident Fund Regulations, the court ruled that the failure of the Fund to take a decision within prescribed period does not create a deeming provision. The judges found that the remedy of the claimant lies in s 6(2)(g) of PAJA. Mothopo J said:

“In my view, absent any constitutional challenge, the reading into the regulation of a deeming provision is impermissible and tantamount to arrogating to the court the powers of law-making functions. It follows that the appeal has no merit and falls to be dismissed”.

Mpahla voids the counsel’s submission that regulation 3(3)(dA) creates a deeming provision and that non-responses by the defendant should be deemed as acceptance of serious injuries assessment by the defendant. The second submission by the counsel that the acceptance of merits implies that the defendant has accepted the claim for general damages is incorrect.

Merits and quantum should be dealt with separately, although the claim rests on the proven or agreed merits. For each claim, the plaintiff must comply with all the laws and regulations which govern that specific claim.

[18]  The proposition by the counsel that the court should consider the claim for general damages because the defendant's defence has been struck off is a misnorma. Here we are dealing with the issue of compliance. Before I can deal with the evidence on the general damages I need to satisfy myself that the applicant has complied with the laws and regulations that govern and regulates his claim.

CLAIM FOR FUTURE MEDICAL EXPENSES AND CARE EXPENSE

[19]  On the claim for Future medical expenses, the evidence gathered from the expert's reports indicates that as of 2018 the plaintiff was still experiencing health problems that will require medical attention in the future. The Clinical psychologist reports that the plaintiff reported that she has been experiencing pain on the leg after walking for a long distance and her legs tend to be swollen when she stands too long, with difficulties in concentrating and recalling information. Further that the plaintiff has marked anxiety and emotional distress. The expert concludes that the plaintiff can benefit from Psychotherapy to help with current emotional issues. A maximum of 10 sessions is recommended.

[20]  The evidence before me proves that the claimant has suffered injuries that require future medical attention or care. The defendant accepted 100% liability for the damages suffered by the plaintiff as a result of the accident which occurred on 28 April 2014, consequently, the defendant is wholly responsible for the plaintiff’s future medical expenses and care. for the injuries which the claimant sustained because of the accident that occurred on the above date.

CLAIM FOR LOSS OF EARNINGS OR INCOME

[21]  Plaintiff relies on the expert's reports to prove her claim for loss of earnings/earning capacity. The clinical Psychologist report is dated 20 November 2018. The report contains a disclaimer that the report is only valid for two years from the date of assessment. The psychologist then indicated that the plaintiff had difficulties in concentrating and recalling information. The expert further reports that the plaintiff was experiencing marked anxiety and emotional distress and he concludes that the plaintiff can benefit from Psychotherapy to help with current emotional issues and he recommends a maximum of 10 sessions. There is no further information or update regarding the above recommendations by the experts and no information of how the plaintiff is progressing in terms of the identified post- medical conditions.

[22] The Industrial report was also obtained in 2018. The psychologist reports that post-accident, the plaintiff left employment because the salary was not enough. The plaintiff’s previous employer confirmed that the plaintiff was always at work and her overall performance was excellent. That the plaintiff was going to be promoted to occupy an administrative position and her duties would have been to mentor the new promoters. Because of her medical condition, she was accommodated by the employer and she was given fewer hours. The experts recommended treatments, they say the pain will impede her capacity to work and there is a likelihood that she might face long duration of unemployment.

[23]  The evidence on which the plaintiff relies to prove her claim for loss of earnings is admitted as evidence and the court will use the said evidence despite the shortcomings as stated in paragraph 21.

[24]  I have used the postulated mounts for future inured and uninjured as per the revised actuarial calculations and I applied the contingencies that I deem fair and reasonable considering the evidence before me. The calculation is as follows: i) Past uninjured, 5% contingencies applied on R180 013;

Future uninjured, 30% contingency on R7 557 571;

Total = R5 290 299.7.

ii)      Past injured, 5% contingencies on R5 949;

Future injured,40% contingencies on R7 557 571; Total= R4 534 542.6;

Total loss of income or earning capacity as per the above calculation is the amount of

R 755,758

CONCLUSION  

[25]  It is the undeniable truth that the process of claiming general damages is currently experienced as cumbersome, confusing, complicated and socially unjust. The defendant’s action or non-reaction continues to prejudice the plaintiff. It is unfortunate that the plaintiff must abide by this legislative imposition before he can get justice.

[25]  The defendant is liable for the future medical cost and expenses to be incurred by the plaintiff as a result of the accident which occurred on 28 April 2014.

[26] The defendant is laible to compensate the plaintiff for loss of income or loss of earning capacity.

ACCORDINGLY, I MAKE THE FOLLOWING ORDER:

1]            The defendant is ordered to make payment of R 7 55 571.00

(SEVEN HUNDRED AND FIFTY-FIVE THOUSAND FIVE HUNDRED AND SEVENTY-ONE RAND)

2]            The claim for General damages is postponed sine die.

..

3]           The defendant is ordered to provide the plaintiff with an undertaking in terms of Section 17(4) of Act 1996 for the payment of costs for future medical and hospital expenses and any other reasonable expenses to be incurred as a result of injuries sustained by the patient in the motor vehicle accident that occurred on 28 April 2014.

4]           The defendant is ordered to pay High Court costs on party and party scale..

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JT LESO

Acting Judge of the High Court

Date of Hearing:             16 August 2021

Judgment Delivered:     26 November 2021

For the Plaintiff:              ADV MAZWI PHATHELA Contact No:                      082 451 0980

Email Address:                MAKWARELA.ATTORNEYS@GMAIL.COM Attorneys:                         MAKWARELA ATTORNEYS

For the Defendant:          Unrepresented

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