Mabasa v Road Accident Fund (86350/2018) [2021] ZAGPPHC 778 (29 October 2021)

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

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

Case number: 86350/2018

In the matter between:

ANNA FANISA MABASA

PLAINTIFF

And

ROAD ACCIDENT FUND

DEFENDANT

JUDGMENT

PHAHLAMOHLAKA A.J.

INTRODUCTION

[1] The plaintiff is suing Road Accident Fund for damages suffered as a result of the injuries sustained following a motor vehicle accident that occurred on 6 January 2018.The trial proceeded in the absence of the defendant as the Road Accident Fund decided to abandon the proceedings.

[2] At the commencement of the trial counsel for the plaintiff informed me that merits were settled between the parties in that the defendant made an offer, which was accepted, of 80% liability in favour of the plaintiff on 20 March 2019.

[3] The issues to be determined by this court are therefore, the quantum for past and future loss of earnings/earning capacity, future medical, hospital and related expenses as well as general damages.

[4] Following the accident the plaintiff sustained the following injuries: Head injury with concussion and multiple facial injuries as well as chest injuries with contusion, an injury to her right fore-arm with the fracture of the phalanges of the left hand, an abrasion of her abdomen, abrasion of her left thigh and an injury to her left lower leg with compound fracture of the left tibia and fibula.

[5] Dr Heymans, the plaintiff’s orthopaedic surgeon, recorded that a debridement of the open wounds was done and the tibia fracture was controlled with an external fixation. A fore-arm cast was applied to the left hand and she was further treated conservatively.

[6] Dr JH Kruger, the neurosurgeon, concluded that the plaintiff sustained a head injury with concussion and multiple facial lacerations and abrasions which could be classified as “moderately severe traumatic brain injury.” According to Dr Kruger the plaintiff has cognitive mental problems, with loss of short term memory.

[7] Section 17 (1) (a) of the Road Accident Fund Act provides that “(1) The Fund or agent shall-

(a) subject to this act, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established;

(b) subject to any regulation under section 26…….be obliged to compensate any person (the third party) for any loss or

damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of the employee’s duties as employee.”

[8] The plaintiff in casu sustained injuries arising from a motor vehicle accident and therefore she should be compensated.

PAST AND FUTURE LOSS OF EARNINGS/EARNING CAPACITY

[9] The generally accepted approach on the assessment of damages for loss of earnings was established in the often quoted judgment of Nicholas JA in Southern Insurance Association LTD v Bailey NO[1] where the following was said: ‘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 estimate, which is often a very rough estimate, of the present value of 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 of course upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative’.

[10] The plaintiff appointed experts in order to quantify her claim for past and future loss of earnings, some of whom I quoted above. The applicable legal position is that in order for the plaintiff to succeed on this head of damages the plaintiff must prove that her patrimony or estate has diminished as a result of the injuries she sustained in the accident.

[11] The experts have opined that the plaintiff’s estate has diminished and I agree with their, experts, reports. Although the plaintiff sustained severe injuries, she was able to return to work and is still employed though in an accommodated capacity.

[12] On the post morbid employment potential of the plaintiff the industrial psychologist, Karen Kotze, opines as follows: “Ms Mabasa should be commended for her determination to generate an income despite her unsuitedness for her job tasks. She can be considered fortunate that she was employed by an employer willing to accommodate her. Given the above Ms Mabasa has been rendered occupationally highly vulnerable.”

[13] On the strength of the opinion by the industrial psychologist and other experts the plaintiff appointed Munro Forensic Actuaries, an actuarial expert, who calculated her estimated past and future loss of earnings. On paragraph 4.3 of the actuarial report the following remark is made; “we have been instructed to apply the following contingencies:

. Uninjured: 15% on future earnings

. Injured: 25% on future earnings.”

The Actuary’s calculation produced the following results:

“Capital Value of Loss of Earnings”

Uninjured Earning Injured Earning Loss of Earnings Past R11 000.00 R85 500.00 R25 500.00 Future R724 800.00 R724 800.00

Less Contingencies 15% 25% R616 080.00 R543 600.00 R72 480.00

Total Loss of earnings R97 980.00

This was the instruction from the plaintiff and I have no reason to falter it. I am of the view that the contingencies applied are fair and reasonable.

[14] Counsel for the plaintiff argued that the actuary did not apply proper contingencies but he did not present any opposing expert

opinion to contradict Munro. In fact counsel for the plaintiff has presented a calculation which was not backed by any expertise. It is unfortunate that I was asked to disregard the expert’s calculation merely because it does not favour the plaintiff despite the fact that the expert was appointed by the plaintiff

[15] I therefore conclude that the plaintiff should be compensated in the amount as per the actuarial calculation less 20%.

GENERAL DAMAGES

[16] The plaintiff is also claiming general damages for pain and suffering arising from the injuries sustained in the accident. Section 17(1) (A) of the Road Accident Fund Act 56 OF 1996 (the Act), as amended, provides that the assessment of the seriousness of an injury shall be premised on a prescribed procedure.

[17] Regulation 3 of the Act provides that the third party wishing to claim general damages must be assessed by a medical practitioner who shall complete a serious injury assessment report, commonly known as a RAF 4 form.

[18] In terms of Regulation 3(3)(c) the Road Accident Fund is only liable to compensate the third party for general damages in the event that the Fund is satisfied that the injury has been correctly assessed as prescribed by the Regulations. According to the Regulations when the Fund is not satisfied that the third party’s injuries were correctly assessed, the Fund can reject the RAF 4 form and give reasons for its rejection or direct the injured person for a further assessment to establish if the injury qualifies as a serious injury.

[19] The Supreme Court of Appeal gave much needed clarity on this aspect in the matter between Road Accident Fund v Duma[2] when Brand JA said the following on page 19; “In accordance with the model that the legislature chose to adopt, the decision whether or not the injury of a third party is serious enough to meet the threshold requirement for an award of general damages was conferred on the Fund and not on the court. That much appears from the stipulation in regulation 3(3)(C) that the Fund shall only be obliged to pay general damages if the Fund-and not the court-is satisfied that the injury has correctly been assessed in accordance with the RAF 4 form as serious. Unless the Fund is so satisfied the plaintiff simply has no claim for general damages. This means that unless the plaintiff can establish the jurisdictional fact that the Fund is so satisfied, the court has no jurisdiction to entertain the claim for general damages against the Fund. Stated somewhat differently, in order for the court to consider a claim for general damages, the third party must satisfy the Fund, not the court, that his or her injury was serious. Appreciation for this principle, I think, leads to the following conclusions:

(a) Since the Fund is an organ of the State as defined in section 239 of the Constitution and is performing a public function in terms of legislation, its decision in terms of regulations 393) (c) and 3(3) (d), whether or not RAF 4 form correctly assessed the claimant’s injury as ‘serious’, constitutes ‘administrative’ actions contemplated by the Promotion of Administrative Justice Act3 of 2000(PAJA). (A ‘decision’ is defined as PAJA to include the making of a determination.) The position is therefore governed by the provisions of PAJA…..”

[20] It is apparent from the aforesaid passage that the decision to determine whether the injury falls within the ambit of a serious

injury or not is within the purview of the Fund and therefore the court can only enter the fray after the third party shall have

exhausted the procedure under PAJA.

[21] This principle was further clarified in the judgment of Mphaha v Road Accident Fund (698/16) [2017] ZASCA 76 on paragraph 14 where Mathopo JA said the following; “ an interpretation that seeks to suggest that because the Fund did not make a decision within 90 days of receipt of the SIA report, it is deemed to have been accepted that the third party has suffered serious injuries is untenable and in conflict with the provisions of subsections 17(1) and 17(1A) of the Act, and regulation 3...” The learned Judge of Appeal goes on to say; “18. 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.”

[22] There is no evidence that the serious injury assessment form/s submitted by the plaintiff was either accepted or rejected by the Fund. In the absence of this information the court cannot venture into this territory, namely the aspect of general damages.

[23] Consequently I am of the view that this court is not competent at this stage to deal with the issue of general damages and therefore this head of damages ought to be postponed.

[24] I now turn to the aspect of future hospital, medical and related expenses. I have already dealt with the injuries of the plaintiff

supra and the plaintiff’s experts opine that the plaintiff will need medical attention in the future. I am therefore satisfied that the plaintiff will need medical attention in future and thus should be awarded an undertaking in terms of section 17(4) (a) of the Act.

[25] In the result I make the following order:

25.1 The defendant shall make payment to the plaintiff the amount of R 78 348.00 (Seventy eight thousand three hundred and eighty four rand) in respect of past and future loss of earnings/earning capacity.

25.2 The defendant is ordered to furnish the plaintiff with undertaking in terms of section 17(4) (a) of the Road Accident Fund Act 56 of 1996, to compensate the plaintiff for 80% of the costs of future accommodation in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to the plaintiff res

25.3 The issue of general damage is postponed sine die

25.4 The amount as mentioned in 1 (one) above is payable after 180 days, from the date of this order, into the Trust account of the Plaintiff’s Attorneys of Record with the following detail:

BOOYSENS ATTORNEYS

FIRST NATIONAL BANK

ACC NR: [….]

BRANCH CODE: 250 655

REF: Y PIENAAR / MV0328

25.5 Interest calculated on the capital amount referred to in paragraph 2 supra, will be payable at the rate of 7.00% after a period of 14 (fourteen) days from the date hereof.

25.6 The Defendant shall furnish the Plaintiff with an undertaking as envisaged in Section 17(4)(a) of the Road Accident Fund Act, Act 56 of 1996, for 80% of the costs of the future accommodation of the Plaintiff in a hospital or nursing home of treatment of or rendering of a service or supplying of goods to the Plaintiff arising out of the injuries sustained by the Plaintiff in the motor vehicle collision which occurred on the 06Th day of January 2018, after such costs have been incurred and upon proof thereof.

25.7 The Defendant shall pay the Plaintiff taxed or agreed party and party costs on the High Court scale.

25.8 The Defendant shall pay the Plaintiff’s costs attendant upon the obtaining and preparation of the Medico-Legal reports and Raf $ reports, including the costs attendant on the preparation for the trial, reservastion and appearance of the experts at trial, for the 04th of August 2021, if any and as allowed by the Taxing Master of:

25.8.1 Dr. H.S Wentzel;

25.8.2 Oosthuysen & Engelbrecht Radiologists;

25.8.3 Dr. D.C Heymans;

25.8.4 R. Van Biljon Occupational Therapist;

25.8.5 R. du Plessis Counselling Psychologist

25.8.6 Dr. J.H Kruger;

25.8.7 Dr. L. Berkowitz;

25.8.8 Kotze Blake & Associates Industrial Psychologist;

25.8.9 MUNRO Forensic Actuaries.

25.9 The Defendant shall pay the costs of Counsel for appearance on the 04th of August 2021 as well as preparation and consultation fees, as allowed by the Taxing Master.

25.10 In the event that costs are not agreed the Plaintiff agrees as follows:

25.10.1 The plaintiff shall serve the notice of taxation on the defendant’s

attorneys of record;

25.10.2 The Plaintiff shall allow the Defendant 14 days tp make payment of the taxed cost; and

25.10.3 No interest will be payable, except in the event of default of

payment of such costs, in which case interest will be payable at the rate of 7.00% from date of taxation.

KGANKI PHAHLAMOHLAKA

(ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA)

Delivered: This judgment was prepared and authored by the judge whose name is reflected and is handed down electronically by circulations by email and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be 29 October 2021.

HEARD ON

: 04 August 2021

FOR THE PLAINTIFF : Adv Strydom

INSTRUCTED BY : Booyens Attorneys

FOR THE DEFENDANT : No Appearance

DATE OF JUDGMENT : 29 October 2021

[1] 1984(1) SA 98 (A) at 113G-I

[2] Road Accident Fund v Duma [2012] ZASCA 169