Botha v Road Accident Fund

• Jurisdiction: South Africa
• Citation: 2015 (2) SA 108 (GP)

Botha v Road Accident Fund
2015 (2) SA 108 (GP)

2015 (2) SA p108

Citation	2015 (2) SA 108 (GP)
Case No	76278/09
Court	Gauteng Division, Pretoria
Judge	Victor J
Heard	April 16, 2013
Judgment	April 16, 2013
Counsel	N de Jager for the plaintiff.; P de Klerk for the defendant.

Flynote : Sleutelwoorde

Motor vehicle accident — Compensation — Claim against Road Accident Fund — Limits — 'Serious injury' threshold for general damages — Loss of earning capacity pecuniary in nature and not constituting general G damages — Claim for loss of earnings remaining alive even in case of finding of non-serious injury by Fund — Road Accident Fund Act 56 of 1996, s 17(1) and 17(1A).

Damages — Bodily injury — Loss of earning capacity — Nature — Claim pecuniary — Not element of general damages.

Headnote : Kopnota

H Mr Botha was injured in a road accident and instituted a claim against the Road Accident Fund, which rejected the serious-injury assessment prepared on his behalf. This had the effect, under the newly introduced s 17(1) and 17(1A) of the Road Accident Fund Act 56 of 1996, [*] of excluding an award of general damages. The Fund, pointing out that it was settled law that I the power of deciding whether an injury was serious enough to warrant an award of general damages had been conferred on the Fund and not on the

2015 (2) SA p109

courts, [†] argued that, since loss of earning capacity was an element of A general damages, its rejection of the serious-injury report also automatically excluded the present court's jurisdiction to determine the claim for loss of earning capacity.

Held: Loss of earning capacity and loss of earnings necessarily involved a loss of money and were therefore pecuniary in nature and not an element of B general damages. Hence the classification by the Road Accident Fund of a claimant's injury as 'non-serious' under s 17(1A) would not exclude the high court's jurisdiction to determine the claimant's claim for loss of earning capacity. (Paragraphs [14] – [27] at 112D – 114H.)

Cases Considered

Annotations C

Case law

Deysel v Road Accident Fund (GJ case No 2483/09): distinguished

Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A): discussed

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A): dictum at 825H and 836A – B applied D

Griffiths v Mutual & Federal Insurance Co Ltd 1994 (1) SA 535 (A): applied

Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A): discussed

Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 (2) SA 944 (C): discussed

Law Society of South Africa and Others v Minister of Transport and Another E (GP case No 10654/09, 31 March 2010): dictum in para [36] applied

President Insurance Co Ltd v Mathews 1992 (1) SA 1 (A): applied

Road Accident Fund v Duma and Three Similar Cases 2013 (6) SA 9 (SCA): discussed and dictum in para [19] applied

Road Accident Fund v Lebeko [2012] ZASCA 159: applied

Rudman v Road Accident Fund 2003 (2) SA 234 (SCA) (2002 (4) All SA 422): F applied

Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A): dictum at 150B – D applied

Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A): referred to G

Standard Bank Investment Corporation Ltd v Competition Commission and Others; Liberty Life Association of Africa Ltd v Competition Commission and Others 2000 (2) SA 797 (SCA) ([2000] 2 All SA 245): dictum in para [21] applied

Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust as Amicus Curiae) 2006 (4) SA 230 (CC) (2006 (6) BCLR 682; [2006] ZACC 4): H dictum in paras [38] – [39] applied.

Statutes Considered

Statutes

The Road Accident Fund Act 56 of 1996, s 17(1) and 17(1A): see Juta's Statutes of South Africa 2013/14 vol 4 at 2-222. I

Case Information

N de Jager for the plaintiff.

P de Klerk for the defendant.

2015 (2) SA p110

A A decision on a point in limine raised by the respondent concerning the court's jurisdiction in a claim for loss of earning capacity resulting from a road accident.

Order

1.

B The defendant's point in limine is dismissed.

2.

It is declared that this court has jurisdiction to forthwith determine and award the plaintiff his proven or agreed damages suffered as a result of the plaintiff's loss of earning capacity, despite the defendant's rejection of the plaintiff's serious-injury assessment.

3.

The plaintiff is granted leave to present evidence in support of his C claim for loss of earning capacity on a date to be determined by the registrar.

4.

The defendant shall pay the costs of this point in limine.

Judgment

Victor J:

D [1] On 17 November 2008 and in Pretoria the plaintiff sustained personal injuries in a motor vehicle collision. The merits were conceded in favour of the plaintiff. The only question arising is that of general damages and future loss of earnings.

[2] The matter was set down for trial on 31 January 2013 and the only E issue for determination was the question of the quantum of the plaintiff's claim.

[3] On 1 August 2008 the Road Accident Fund Act 56 of 1996 was amended by the Road Accident Amendment Act 19 of 2005 (the F Amendment Act). The plaintiff's claim arose after the amendment.

[4] The defendant rejected the serious-injury assessment prepared by Dr Van der Walt in respect of the plaintiff's injuries and their sequelae.

[5] The question for determination is whether the defendant's rejection of the injury as a serious injury which in terms of the Amendment Act G excludes an award for general damages also automatically excludes this court's jurisdiction to forthwith evaluate and determine the plaintiff's claim for loss of earning capacity. It is the defendant's contention that loss of earning capacity is an element of general damages and therefore it is impermissible for the court to deal with this aspect.

H [6] This issue must be determined upon a proper construction of s 17 of the Amendment Act read together with reg 3 and an historical analysis of the case law. The plaintiff submits that the determination as to whether loss of earning capacity falls to be categorised as general damages or not within the context of the Amendment Act is res nova in I this division and requires a ruling and judgment for the purposes of future litigation.

[7] It is settled law that a high court cannot determine general damages. In Road Accident Fund v Duma and Three Similar Cases 2013 (6) SA 9 (SCA) Brand JA in discussing the 'history and matrix' of the legislative J scheme stated in para 19 that —

2015 (2) SA p111

Victor J

'(i)n accordance with the model that the legislature chose to adopt, the A 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'.

See also Road Accident Fund v Lebeko [2012] ZASCA 159, where Pillay JA also held that a high court could not deal with the question of B general damages.

[8] Section 17 of the Amended Act reads as follows:

'17 Liability of fund and agents

(1) The fund or an agent shall —

(a)

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

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 D or of his or her employee in the performance of the employee's duties as employee: Provided that the obligation of the Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum. E

(1A)(a) Assessment of a serious injury shall be based on a prescribed method adopted after consultation with medical service providers and shall be reasonable in ensuring that injuries...