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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)           REPORTABLE: NO

(2)           OF INTEREST TO OTHER JUDGES: NO

(3)           REVISED. YES

 

Case N2: 43644/2016

 

In the matter between:

 

NICOLEEN JOHANNA MEYER                                                                                 Plaintiff

 

and

 
ROAD ACCIDENT FUND                                                                                            Defendant

 
JUDGMENT

1.            In this action the plaintiff claimed damages from the defendant as a result of injuries sustained in a motor vehicle collision which occurred on 11 December 2014. The merits of the matter were previously settled 100% in favour of the Plaintiff. The matter came before this court on the issue of quantum alone.

2.            The background facts are briefly the following. The Plaintiff was the driver of a motor vehicle when the insured vehicle collided into her from behind. At the time, she was stationary at a red traffic light.

3.            The Plaintiff sustained soft tissue injuries to her neck and back in the accident. She attended Medicross in Pretoria West where X-rays were performed and pain medication prescribed. She also wore a neck collar and attended physiotherapy. Subsequently the Plaintiff reported the following accident related complaints: regular headaches and migraines (the latter is accompanied by light sensitivity); neck pain, stiffness and muscle spasms: lower back pain. These pains are aggravated by sitting, standing, walking, lifting and carrying, kneeling, forward bending, overhead work and driving for long periods.

4.            As a result of her injuries the plaintiff had to discontinue some of her leisure activities and avoids playing with her children. Her sleep is sometimes affected and she has become irritated, depressed and struggles with concentration.

5.            Various medical experts were appointed to assess the Plaintiff's damages. I shall briefly refer to some of those findings. Dr DA Birrell (Orthopaedic Surgeon) commented on the plaintiff's limited extension as a result of pain and discomfort along most of the lumbar spine. Dr Birrell allocated the Plaintiff's loss of work capacity at 6%, possibly even moving up to 7% to 8% on the days she has a migraine. He recommended future conservative treatment and noted a 5% chance of the Plaintiff requiring neck surgery. According to Dr Birrell, the Plaintiff has a 5% Whole Person Impairment and does not qualify as a serious injury under the Narrative Test. Dr Birrell compiled a joint minute with the Defendant's Orthopaedic Surgeon, Dr MJ Tladi. Dr Tladi did not comment on the Plaintiff's loss of work capacity and also did not foresee the need for any future surgery. The doctors agreed on the remainder of the issues.

6.            The Plaintiff's functional capacity was evaluated by Ms T Holshausen (Plaintiff's Occupational Therapist) on 1 November 2017. Ms Holshausen noted that the Plaintiff's movements of the lumbar spine were reduced and limited by lower back pain. She presented with reduced functional strength for movements of the cervical spine which were also accompanied by pain and discomfort. The Plaintiff presented with some restrictions to her mobility and agility and reported decreased endurance. She had limitations with elevated work, forward bending, crouching, kneeling and walking. She was able to comply with weight handling demands in the sedentary to light category of work with partial compliance to the medium category of work.

7.            Ms Holshausen noted mildly reduced efficiency with regards to the Plaintiff's participation in self-care and home management tasks. The Plaintiff would be expected to comply with the sedentary and light category of work demands and her reported reliance on assistance from others or specialised equipment to meet the partial medium demands would be justified. Her work performance would not be at the pre-accident level and would not be expected to be effortless or pain free. Ms Holshausen recommended various forms of future medical treatment including occupational therapy, special equipment and assistance at home.

8.            Ms Holshausen compiled a joint minute with Ms S Maharaj, Defendant's Occupational Therapist on 25 September 2019. The experts agreed on most issues and specifically agreed that the Plaintiff would be expected to comply with the sedentary and light category work demands of her current employment. She would be more reliant on others for assistance to meet a full range of medium category work demands. Her work performance would not be at the pre-accident level and this would not be expected to be effortless or pain free. She would be seen to benefit from compliance with recommended treatment and reasonable accommodations such as the use of ergonomic structuring and equipment, application of appropriate neck/back hygiene and frequent rest periods.

9.            The Plaintiff appointed Ms A Millar. Physiotherapist, who also assessed the Plaintiff on 17 February 2020. Ms Millar noted all ranges of movement within normal ranges except for side flexion to the left being limited due to pain as well as extension. The Plaintiff might develop chronic neck muscle spasm which may aggravate her headaches and migraines. Ms Millar recommended physiotherapy.

10.         Mr A Marais. Plaintiff's Biokineticist. evaluated the Plaintiff on 3 October 2019 and noted end range discomfort with lateral flexion of the cervical spine and flexion of the lumbar spine. Mr Marais recommended a well structured Biokinetic Rehabilitation Program.

11.         With regards to the Plaintiff's possible future medical treatment. the majority of the experts have recommended future conservative treatment. Dr Birrell also mentioned the possibility of future neck surgery.

12.         In order to determine the Plaintiff's past and future loss of income, the Plaintiff appointed an Industrial Psychologist, Mr WJ Wessels. Mr Wessels took cognisance of all the relevant facts and expert opinions obtained. Mr Wessels postulated that, had the accident not occurred, the Plaintiff would probably have continued in her position as para-legal for as long as it favoured her circumstances. Her earnings would have increased annually by CPI% until retirement age 65. Mr Wessels recommended that the Plaintiff's pre-accident earnings and postulated growth be taken as her pre-accident earning capacity and used as a basis when assessing the claim. She has since the accident not been able to return to her pre-accident earning capacity and is thus sustaining a loss in earning capacity post-accident. It is recommended that a higher post­ accident contingency deduction be applied.

13.         The Plaintiff's Actuaries, Algorithm Consultants and Actuaries, calculated the Plaintiff's loss of income on the basis set out in the joint minutes between the Industrial Psychologists. Three scenarios were calculated with reference to different contingency deductions. The calculations made provision for a 6%, 7% and an 8% contingency spread (capacity loss).

14.         For settlement purposes and keeping in mind that the Plaintiff did have slight pre-existing issues, the parties have agreed on scenario l (the 6% spread). The Plaintiff's loss of income would then amount to R259 282,00.

15.         The amount claimed for past medical expenses was not in dispute between the parties.

16.         Due to the fact that the plaintiff's injuries are not regarded as serious at this point in time, the parties accepted that the Plaintiff is not entitled to a claim for general damages.

17.         The Defendant extended an offer to the Plaintiff which the plaintiff was prepared to accept. This offer entails the following terms:

Future medical expenses:  Section 17(4) (a) undertaking

Past medical expenses:      5 259,29

Loss of income:                 R259 282,00

TOTAL                              R264 541,29

 

18.       I have also considered the plaintiff's work history and her pre-existing condition. Having regard thereto and the evidence presented by both parties I am satisfied that the offer made is a fair and reasonable offer under the specific circumstances of this case.

19.         As far as costs are concerned, there is no reason why costs should not follow the event.

20.       The parties presented me with a draft court order reflecting the above. I am satisfied that the draft order should be made an order of court.

21.         In the result, the following order is made:

1.         The draft court order marked "X" is made an order of court.

 

 

 

C.P. RABIE

JUDGE OF THE HIGH COURT

8 May 2020

 

"X

 

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

HELD AT PRETORIA ON THIS THE 8^TH DAY OF MAY 2020 BEFORE THE HONOURABLE MR JUSTICE RABIE

 

Case No: 43644/2016

 

In the matter between:

 

NICOLEEN JOHANNA MEYER                                                                           Plaintiff

 

and

 

THE ROAD ACCIDENT FUND                                                                             Defendant

DRAFT ORDER

HAVING HEARD COUNSEL FOR THE PARTIES, it is hereby ordered as follows:

1.           The Defendant shall make payment of the total sum of R264 541.29 (TWO HUNDRED AND SIXTY-FOUR THOUSAND FIVE HUNDRED AND FORTY­ ONE RAND AND TWENTY-NINE CENTS).

2.           Payment of the above amount of R264 541.29 shall be paid to the Plaintiffs attorneys, Tiaan Smuts Attorneys, in settlement of the Plaintiffs claim for past hospital and medical expenses as well as past and future loss of income / earning capacity, which amount shall be payable by direct transfer into their trust account within 14 (fourteen) days from date of this order, details of the trust account are as follows:

Account holder:                    Tiaan Smuts Attorneys

Bank:                                    Nedbank

Account number:                  [….]

Branch code:                         160 245

Ref:                                       TS/LK/M4731

 

3.           Interest on the late payment of the capital to be charged at the legally prescribed rate on the capital sum from the date of this order being made an order of court to date of final payment.

4.           Payment of the Plaintiff's taxed or agreed party and party High Court costs to date hereof, including:

4.1                   the fees of Counsel on the High Court scale, inclusive of her day fee for 6 May 2020 and her feels for the preparation of heads of argument and/or settlement submissions;

4.2                    the fees of Counsels for the preparation and attendance of all pre-trial conferences and/or Judicial Certification Meetings and/or Judicial Management Meeting Conferences held at Court;

4.3                   the reasonable taxable costs of obtaining all expert medico-legal reports, RAF4 Serious Injury Assessments (if any), addendum medico­ legal reports, joint minutes, addendum joint minutes, actuarial reports and addendum and/or revised actuarial reports from the Plaintiff's experts;

4.4                    the reasonable taxable preparation, qualification, travelling and reservation fees, if any, of the following experts of whom notice have been given, being:-

4.4.1                             Dr DA Birrell;

4.4.2                             Ms T Holshausen;

4.4.3                             Mr WJ Wessels;

4.4.4                             Ms AL Millar;

4.4.5                             Mr A Marais;

4.4.6                             Mr GA Whittaker.

4.5                    the reasonable taxable transportation and accommodation costs (at the AA rate and including Toll and E-Toll charges) incurred by or on behalf of the Plaintiff in attending all medico legal consultations with the parties' experts, or consultations with her legal representatives and the court proceedings, subject to the Taxing Master's discretion;

4.6                    the reasonable costs of all consultations between the Plaintiff, and/or her attorneys, and/or her Counsels and/or the witnesses, and/or the experts in preparation for the hearing and to discuss the terms of this order;

4.7                    the costs incurred in obtaining payment of the amount mentioned in paragraph 1 above;

4.8                   the reasonable costs of the preparation of trial bundles, consisting 2 lever arch files per bundle and 4 copies thereof;

4.9                   the reasonable costs of the preparation of any bundles for any Court­ based pre-trial conferences, Judicial Certification Meetings and/or Judicial Management Meeting Conferences held at Court;

4.10                  the above costs shall also be paid into the aforementioned trust account, and interest on the late payment thereof will be charged at the legally prescribed rate from the date of this order until date of final payment.

 

5.          The following provision will apply with regards to the determination of the aforementioned taxed or agreed costs: -

5.1                   the Plaintiff shall serve the notice of taxation on the Defendant's attorneys of record;

5.2                   the Plaintiff shall allow the Defendant 14 (fourteen) court days within which to make payment of the taxed costs from date of settlement or date of taxation thereof;

5.3                   should payment not be effected timeously, the Plaintiff will be entitled to recover interest at the legally prescribed rate on the taxed or agreed costs from date of allocatur to date of final payment.

 

6.           The Defendant shall furnish the Plaintiff with an undertaking in terms of Section 17(4)(a) of Act 56 of 1996 in respect of 100% of the future accommodation of the Plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to the plaintiff, to compensate the Plaintiff in respect of the said costs after the costs have been incurred and on proof thereof.

7.           There is no contingency fee agreement applicable.

 

 

 
BY ORDER OF THECOURT

 

 

TS/LK/M4731

 

 

 

Counsel for the Plaintiff:     Adv M Gouws

082 825 3053

 

Counsel for the Defendant: Adv Ramokhesa

065 907 6590

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