Viljoen obo Schutte v Road Accident Fund (67200/2016) [2021] ZAGPPHC 808 (22 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES/NO

Case number: 67200/2016

In the matter between:

ADVOCATE ALIEZA VILJOEN obo

PLAINTIFF

TJAART ANDRIES SCHUTTE

And

ROAD ACCIDENT FUND

DEFENDANT

JUDGMENT

PHAHLAMOHLAKA A.J.

INTRODUCTION

[1] The plaintiff, Advocate Alieza Viljoen, is suing Road Accident Fund in her representative capacity as the curatrix ad litem of Mr Tjaart Andries Schutte for damages suffered as a result of the injuries Mr Schutte sustained following a motor vehicle accident that occurred on 11 December 2015.For the purposes of this judgment I shall refer to Mr Schutte as the Plaintiff.

[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 of 75% liability in favour of the plaintiff.

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

[4] Following the accident the plaintiff sustained the following injuries:

(a) Severe primary diffuse traumatic brain injury with secondary focal components of subarachnoid haemorrhage and multiple brain contusion;

(b) A c2 fracture;

(c) A right pneumothorax and pulmonary contusion;

(d) A right scapular and clavicle fracture;

(e) Left rib fractures (6-9);

(f) A blunt cardiac injury and soft-tissue trauma.

[5] The plaintiff was rendered unconscious in the accident. He was airlifted to Milpark Hospital. At the hospital he was put on an intercostal drain and tracheostomy was performed on him. He remained in a coma in ICU for he was placed prophylactically on anti-convulants. He also wore a body brace for his back and Miami brace for his neck for three months and two days as a result of the head injury, where after he was transferred to a ward and later to a rehabilitation centre.

[6] Despite the fact that its defence was struck out the Defendant in these proceedings had briefed Counsel and Mr Sekgota appeared on behalf of the defendant. I am grateful to Mr Sekgota for making a meaning contribution in this regard.

[7] At the time of the accident the plaintiff was employed as a Grounds man by Gateway School earning a basic salary of R 9 900.00 per month (with no benefits). But for the accident, the Industrial psychologist postulated that the plaintiff would have remained in the same position as a groundsman at the Gateway school earning the same level with inflationary increases in the future.

[8] Having regard to the accident and the sequelae of the injuries sustained, the plaintiff remained unemployed and will remain unemployable in future.

[9] Mr Kramer, the Actuary, calculated the plaintiff’s net loss at R1 211 327.00 after applying 5% accrued and 10% prospective contingency deduction before the 25% before the 25% apportionment.

[10] Mr Sekgota correctly conceded that in the absence of any reports contradicting the plaintiff’s expert reports, the postulations regarding the plaintiff’s employability cannot be faltered.

[11] In respect of loss of earnings/earning capacity I am satisfied that the plaintiff must be compensated in the amount of R 1 211 327.00 less 25% apportionment.

[12] This then brings me to the issue of general damages. 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 premises on a prescribed procedure.

[13] 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.

[14] 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.

[15] The Supreme Court of Appeal gave much needed clarity on this aspect in the matter between Road Accident Fund v Duma[1] when Brand JA said the following on paragraph 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…..”

[16] 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.

[17] This principle was further clarified in the matter of Mphaha v Road Accident Fund[2] 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.”

[18] At the outset I asked Counsel for the plaintiff whether the Fund has accepted the plaintiff’s RAF 4 form or not. In his address Counsel for the plaintiff implored the court to assume that because the Fund has not pronounced itself, the Fund’s silence should be construed as an acceptance of the RAF 4 form and that therefore the plaintiff’s injury should be qualified by the court as a serious injury.

[19] I am unfortunately not convinced by this argument, especially due to the fact that the plaintiff had a remedy at its disposal, namely to approach the court to compel the Fund to make the decision in terms of regulation 3, but instead the plaintiff decided not to pursue that remedy.

[20] 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.

[21] On the issue of past medical and hospital expenses the plaintiff submitted vouchers to the Fund and the Fund has not yet made a determination. It must be remembered that the defendant’s defence was struck out and therefore, in the absence of any evidence to the contrary I am satisfied that the evidence presented regarding this aspect should stand.

[22] 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.

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

23.1 The defendant shall make payment to the plaintiff the amount of R 787 487.00 in respect of past medical and hospital expenses, R 908 495.25 in respect of loss of earnings/earning capacity. Total R 1 695 982.73 (one million six hundred and ninety five thousand nine hundred and eighty two rand and seventy three cents), to be paid into the Trust account of the Plaintiff’s Attorneys with the following details:

23.2 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 75% 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 resulting from injuries sustained by him as a result of an accident that occurred on 11 December 2015, after such costs have been incurred and upon proof thereof.

23.3 The issue of general damage is postponed sine die

23.4 The Defendant is ordered to pay costs on party and party scale.

A draft order annexed hereto and marked “XKF” is made an order of court.

KGANKI PHAHLAMOHLAKA

ACTING JUDGE OF THE HIGH COURT,

Delivered: this judgment was prepared and authored by the judge whose name is reflected and is handed down electronically and by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of his matter on Caselines. The date for handing down is deemed to be 22 November 2021.

HEARD ON : 03 August 2021

FOR THE PLAINTIFF : Adv Strydom SC

INSTRUCTED BY : De Broglio Attorneys

FOR THE DEFENDANT : Adv Sekgota

DATE OF JUDGMENT : 22 November 2021

[1] [2012]ZASCA 169

[2] (698/16) [2017] ZASCA 76