Van Rooyen obo Mokwebo v Road Accident Fund (77492/2017) [2021] ZAGPPHC 809 (25 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE : YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

25/11/2021

CASE NO.: 77492/2017

In the matter between:

M VAN ROOYEN obo SIMON MOKWEBO Plaintiff and ROAD ACCIDENT FUND Defendant

JUDGMENT

van der Westhuizen, J

[1] The plaintiff claims damages from the defendant in relation to injuries sustained in a motor vehicle collision that occurred on 27 October 2016. The plaintiff was a passenger. The defendant defended the action and conceded the issue of liability of a 100% in favour of the plaintiff in respect of the amount of damages that may be proven or agreed upon. Only the issue of quantum requires determination by this court. In that regard, all the rubrics of damages are in dispute.

[2] On 11 November 2021, shortly before the hearing of this matter, Ms M van Rooyen was appointed as a curatrix ad litem to assist the plaintiff in the legal process. The belated appointment resulted due to expert reports that indicated that the sequelae of the injuries that the plaintiff suffered as a result of the said collision, impacted upon the plaintiff’s ability to fully comprehend the legal process. Ms van Rooyen consulted with the plaintiff and filed a report. From that report it is gleaned that no order is required to declare the plaintiff incapable of managing his affairs, but that the plaintiff was a vulnerable individual and for that reason, any award that may be granted, should be protected.

[3] Both parties filed expert reports. From the expert reports filed, it is common cause that the plaintiff sustained the following injuries in the collision:

(a) Subdural haematoma – drained by performing a right frontal craniotomy and cranioplasty;

(b) Left acetabulum fracture – left hip reduced and manipulated with pin traction;

(c) Severe left periorbital haematoma resulting in left eye visceration;

(d) Fractures of the anterior and lateral walls of the left maxilla, left zygomatic arch, as well as the left orbit;

(e) Right pulmonary contusion;

(f) Psychological stress and trauma;

(g) Cosmetic disfigurement: loss of an eye and facial scarring;

(h) Pain and suffering.

[4] The plaintiff has developed epilepsy as a result of the injuries sustained in the collision. Although the said epilepsy is medically controllable, the plaintiff was not taking his medication regularly, resulting in periodic fits being suffered. According to the expert reports, the plaintiff would require future medical treatment resulting in future medical expenses. In this regard, it is submitted that the defendant be directed to provide the usual certificate in terms of the provisions of section 17 of the Road Accident Fund Act.

[5] The issues of loss of earnings and general damages remain in dispute.

[6] Expert reports were filed on behalf of the plaintiff, as well as the defendant. Only joint minutes between the respective orthopaedic experts were filed.

[7] It is gleaned from the expert reports that due to the injuries sustained in the collision, the plaintiff was effectively rendered unemployable in his field of expertise, i.e. that of mechanic/panel-beater. He was further considered to be uncompetitive in other spheres of employment.

[8] Although it was indicated by Mr Bowls, who appeared on behalf of the plaintiff, at the commencement of the hearing, that only the issue of contingencies were in dispute, it was clear that the only issue not in dispute was that of liability on the part of the defendant. Liability was conceded by the defendant on a previous occasion. The defendant had not conceded to provide a section 17 certificate, nor the issue of loss of earnings. Where the contingencies were in dispute, the amount to be awarded to the plaintiff in respect of loss of earnings remained in dispute, and the plaintiff was obliged to prove that. Nor had the defendant conceded liability for general damages. I shall return to the latter issue in due course.

[9] In respect of the plaintiff’s qualifications, there was no agreement as to his level of education. According to the plaintiff he passed grade 7, whilst experts report a grade 8 or 9 level of schooling. However, the plaintiff received in-house training', and was employed as, a mechanic and panel-beater for the greater part of his employment career. He was so employed at the time of the collision. After the collision, the plaintiff, who was 42 years of age at the time of the collision, could no longer continue with his duties as a mechanic/panel-beater due to the injuries sustained and the sequelae thereof, and was medically retrenched. He remained unemployed since being medically retrenched.

[10] According to the expert reports, the plaintiff was rendered totally unemployable at any level due to the injuries sustained in the collision.

[11] The plaintiff indicated to the Industrial Psychologist that he was paid in cash and could not produce any proof of past earnings. The calculations in respect of loss of earnings were undertaken on the plaintiff’s version of income received.

[12] The plaintiff apparently further indicated an aspiration to commence his own business in the long-term. However, it is conceded on behalf of the plaintiff that the said aspiration was not practically achievable due to the fact that he had no funds or other means to start his own business. The plaintiff could not provide detail in that regard when asked about such planning and appeared to be vague and uncertain.

[13] It was postulated by the Industrial Psychologist on behalf of the plaintiff, that in all probability he would have retired at the age of 65, but for the collision. Premised upon that report, the actuary opined and calculated the loss of earnings. An amount, inclusive of past loss of income and future loss of income, was calculated to be in the order of R2 858 411.50.

[14] The curatrix reported and opined that in view of the plaintiff’s vulnerability as an individual, the award in respect of loss of earnings should be protected. She proposed that a trust be established and identified a potential trustee, who had accepted such appointment, and who was prepared to set the required security as directed by the Master. I agree with the submission that the award in respect of loss of earnings is to be protected. The plaintiff indicated to the curatrix that he understood why the funds were to be protected and was not adverse to a trust being established.

[15] There remains the issue of general damages. The defendant had not formally assessed the issue of general damages as required in terms of regulation 3(3)(dA) of the Road Accident Fund Regulations. However, in this regard Mr Bowls submitted that the joint minutes of the respective orthopaedic surgeons suggested that the plaintiff qualifies for general damages. It was further submitted that, thus, only the amount to be awarded required determination. There is no merit in that submission for what follows.

[16] The joint minutes of the respective orthopaedic surgeons reflect the following:

“Note: both doctors agree that the patient does qualify as a serious injury under the Narrative test and refer to their reports in this regard.”

[17] What is important to record is that the two experts note with reference to their respective reports that in their opinion, and for the reasons advanced in their respective reports, that the plaintiff qualified as a serious injury under the Narrative test. Non constat that the defendant assessed that issue and that only the amount stands to be determined.

[18] Regulation 3(3)(dA) of the Road Accident Fund Regulations, promulgated on 21 July 2008, requires the defendant to accept or reject a Serious Injury Assessment report, or to direct the third party to submit to further assessment within 90 days from the date on which the report was delivered to the defendant. From the provisions of that regulation it is clear that a Serious Injury Assessment report is to be submitted for the defendant to assess. What is required of a party claiming general damages, is to obtain a Serious Injury Assessment report from a medical practitioner and to submit it to the defendant for assessment. It is on that Serious Injury Assessment report that the defendant assessess whether the injury has been correctly assessed as serious in terms of the method prescribed in the Regulations.

[19] The legislator had, by promulgating regulation 3(3)(dA), removed the assessment of serious injury in respect of general damages from the jurisdiction of the courts, and placed it solely within the jurisdiction of the Road Accident Fund to assess in terms of the provisions of the Road Accident Fund Regulations.

[20] On behalf of the plaintiff reliance was placed on an unreported judgment of this Division, namely R S v Road Accident Fund.[1] That judgment held that where the defendant had not accepted, nor rejected the Serious Assessment report, the defendant was nevertheless bound by an agreement between the respective experts that the plaintiff had suffered a serious injury. In that matter, the defendant had on the day the trial commenced, rejected the serious injury assessment report. Following the principle that a party is bound by its expert reports, the court held that the defendant cannot at the late stage reject the serious injury assessment.

[21] I am not bound by that decision. Furthermore, that decision is in conflict with two prior judgments of the Supreme Court of Appeal dealing with the issue of assessment of a Serious Injury Assessment report. In Road Accident Fund v Duma et al,[2] the Supreme Court of Appeal held that where the Fund does not reject or accept the Serious Injury Assessment report within a reasonable period, a plaintiff was obliged to seek an order that the Fund’s inaction be reviewed. Following on that decision, an amendment was introduced to the regulations to stipulate a 90 day period for the required assessment by the Fund. The second Supreme Court of Appeal judgment in conflict with the R S matter is that of Nobantu Gloria Mpahla v The Road Accident Fund.[3] In that matter the Supreme Court of Appeal held that if the defendant is not satisfied that the injury is serious, the plaintiff cannot proceed to claim damages in court and the court simply has no jurisdiction to hear the claim for general damages. It further held that whether or not the report correctly assessed the plaintiff’s injury as serious, constitutes an administrative action as contemplated by PAJA.

[22] In terms of the Road Accident Fund Regulations, a Serious Injury Assessment report in respect of a claim for general damages must be delivered to the defendant for the defendant to assess. The assessment by the Road Accident Fund of a Serious Injury Assessment report is a separate and distinct process to be followed. Until assessed by the defendant, the court has no jurisdiction to adjudicate upon an award for general damages. That is the underlying principle enunciated in the two aforementioned Supreme Court of Appeal judgments.

[23] In the present matter, Dr Yvette Lamberts, an independent medical examiner, prepared a Serious Injury Assessment report to which was appended a RAF4 form. The latter document is the one required by a plaintiff to be submitted to the defendant in respect of a claim for general damages. Dr Lamberts reported that the plaintiff suffered a total impairment of 28% WPI. The report was dated 26 February 2018. From the documents filed on CaseLines, it is not determinable when, and if, that report was submitted to the defendant. However, a copy of that report was attached to a notice in terms of the provisions of Rule 35(9) dated 6 March 2018, which was apparently intended to support the plaintiff’s claim for general damages at the hearing of the action.

[24] In my view, there is no magic in attaching the Serious Injury Assessment report to a notice in terms of Rule 35(9). The Regulations require a submission to the defendant of a Serious Injury Assessment report for it to process it in terms of the Regulations. To hold otherwise, would result in the court hearing the action, to adjudicate thereupon, the very menace that the Supreme Court of Appeal guarded against in Mpahla, supra.

[25] Furthermore, Dr Birrel, the orthopaedic surgeon on behalf of the plaintiff, assessed the plaintiff’s impairment, in respect of the orthopaedic injuries, as 21% WPI. Dr Sefeane, the orthopaedic surgeon on behalf of the defendant, reported a WPI of less than 30% in respect of orthopaedic injuries. It follows that the alleged agreement of Serious Injury Assessment does not conform to that of in excess of the required 30% WPI. The plaintiff solely relied on the alleged agreement between the respective orthopaedic surgeons for this court to make an award of general damages in the absence of a decision in that regard on the part of the defendant. The alleged agreement between the respective orthopaedic surgeons is nothing more than respective opinions relating to serious injury, but does not translate into an agreement of surpassing the requisite threshold of 30% WPI.

[26] There is accordingly no merit in the submission that this court has the required jurisdiction to adjudicate upon the issue of general damages. It follows from the Supreme Court of Appeal’s judgment in the Mpahla, matter, supra, that the issue of general damages stands to be postponed for assessment by the defendant in terms of the provisions of the Regulations.

[27] From the foregoing, the plaintiff is only entitled to an award of damages in respect of the rubrics of future medical and hospital expenses, and loss of earnings. There is no reason why the defendant ought not to be directed to issue an unlimited undertaking in terms of the provisions of section 17 of the Road Accident Fund Act, in respect of future medical and hospital expenses.

[28] In my view, the loss of earnings has been adequately proven by the plaintiff and he is entitled to an award in that regard.

I grant an order in terms of the order marked “XYZ” attached hereto.

C J VAN DER WESTHUIZEN

JUDGE OF THE HIGH COURT

Date of Hearing: 16 November 2021

On behalf of Plaintiff: R G Bowels

Instructed by: Savage Jooste and Adams

On behalf of Defendant: No appearance

Judgment Delivered: 25 November 2021

[1] Case Number 49899/17 delivered on 21 January 2020

[2][2] 2013(6) SA 9 (SCA)

[3] (698/16) [2017] ZASCA 76 (1 June 2017)