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[2017] ZAGPJHC 364
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Nkuna v Road Accident Fund (08139/2017) [2017] ZAGPJHC 364 (28 November 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case
number: 08139/2017
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
NEVER
NKUNA
PLAINTIFF
AND
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
GOODMAN,
AJ:
1.
The
plaintiff,
[1]
Never Nkuna, sues the defendant, the RAF, for damages allegedly
arising from injuries sustained in a motor vehicle collision.
By agreement between the parties, the issues in the trial were
separated such that I was called upon to determine only the merits
of
the case. The question of quantum was held over for later
determination.
2.
The plaintiff sought an order that the RAF
was 100% liable for any damages that he suffered. The RAF
initially opposed such
order. It contended that Mr Nkuna was
contributorily negligent in respect of the accident and his injuries
because:
2.1.
First, it disputed where the accident took
place and, more particularly, whether Mr Nkuna was on the sidewalk or
crossing the road
at the time of collision; and
2.2.
Second, it argued that he had not taken
adequate reasonable steps to avoid the accident or injury.
3.
At roll call and at the outset of the
proceedings before me, the RAF took the position that it would not
call any witnesses.
On being cautioned that the court would
have to accept Mr Nkuna’s version of where the accident took
place in the absence
of evidence to the contrary, the RAF then
indicated that it would, the following day, call an eye witness to
the accident as well
as the policeman who completed the accident
report on which its cross-examination was based. It expressly
disavowed any need
to postpone the matter and recorded that it was
ready to proceed.
4.
The plaintiff then testified in person.
His account was that the accident had occurred because the vehicle in
question had
lost control, mounted the sidewalk where he was walking,
and collided with him from behind. He also testified that he
had
taken evasive action, in that he had run away from the oncoming
car in an attempt to escape being hit. That strategy had worked
for the three friends with whom he was walking; they had escaped
impact.
5.
In cross-examination, the RAF’s
counsel put to Mr Nkuna that the collision had occurred in the
street, and not on the sidewalk
as Mr Nkuna had testified. I
provisionally allowed that version to be put to him, on the
understanding that a witness would
appear for the RAF the following
day to corroborate it. The RAF’s counsel also put to Mr
Nkuna that he had not taking
take adequate reasonable steps to avoid
the impact or his injuries because he slowed down his escape by
looking back at the car
bearing down on him or because he ought to
have run into the field alongside him or into the road, instead of in
the direction
that he did.
6.
The court adjourned at the close of Mr
Nkuna’s testimony, and was to reconvene the following day to
continue with the RAF’s
case. However, when court
reconvened counsel for the parties recorded that the RAF had agreed
to an order that it was liable
for 100% of any damages suffered by
the plaintiff and that only costs were in issue. The plaintiff
sought attorney-client
costs on the basis that:
6.1.
The RAF had come to court without any
witnesses to refute the plaintiff’s claim and only changed
their stance in this regard
on being cautioned by the court as to the
effect of that decision on their case;
6.2.
It was clear that the RAF had not consulted
with any witnesses prior to the hearing and consequently did not have
a basis for putting
the version to the witness that it did;
6.3.
The RAF’s change in stance had
resulted in the hearing being prolonged for a further day, with
concomitant costs; and
6.4.
The RAF had ultimately concended the merits
of the case without calling any of the promised witnesses.
7.
The RAF, in turn, argued that a punitive
costs award would be unduly harsh, given that it had done what it
could to settle the merits
of the matter amicably. It pointed
out that it had made a tender to settle the matter in September 2017,
and that it only
belatedly received a response to that. As a
result, so it was contended, it had limited time properly to prepare
for the
matter. Once it had heard the plaintiff’s
account, it swiftly improved the offer made. It should not, so
it was
argued, be penalised for this approach.
8.
In my view, however, the RAF’s
conduct has been wasteful, at best. In this regard, I note that:
8.1.
A pre-trial was held on 17 May 2017 in
which the merits of the matter were placed squarely in dispute.
The merits were then
set down for hearing this week, on 2had 5 May
2017. The RAF had from that date to investigate matters and to
identify witnesses
who could contest the plaintiff’s version,
if it wished to do so.
8.2.
It is true that the RAF made a formal
tender of settlement in terms of Rule 34 on 27 September 2017.
In terms of Rule 34(2),
the plaintiff had 15 days in which to accept
it. When he did not do so, the RAF could no longer assume that
the matter would
become settled. It was required to prepare to
run a trial or to concede the merits portion of the case.
8.3.
Instead, it came to court without any
witnesses in support of its case and, accordingly, without a version
of events. As far
as I can tell, it ran the trial on the merits
merely to place pressure on the plaintiff to accept its offer or to
take advantage
of an opportunity to cross-examine the plaintiff
without having investigated his case – only to concede the
merits in full
once the plaintiff’s case had been led.
Its conduct, in my view, is an abuse of process that warrants
sanction by this
court.
8.4.
Moreover, I do not accept the argument made
by the RAF’s counsel that the plaintiff has suffered no
prejudice as a result
of this approach. His costs for this aspect of
the trial have been increased by the RAF’s equivocal approach
to the calling
of witnesses, and the finalisation of his claim, as a
whole, has been delayed.
9.
In my view, the RAF’s conduct in this
part of the proceedings warrants a punitive costs award.
10.
I accordingly make the following order:
(a)
The defendant shall be liable for 100% (one
hundred per cent) of the proved or agreed damages suffered by the
plaintiff as a consequence
of the motor vehicle collision of 21
February 2016.
(b)
The defendant is liable to pay the
plaintiff’s costs, on an attorney-client basis and at the High
Court scale, in respect
of the determination of liability
(c)
The determination of quantum is postponed
sine die.
----------------------------------
I
A GOODMAN, AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Date
of hearing: 27-28 November 2017
Date
of Judgment: 28 November 2017
[1]
Action was
initially instituted on the plaintiff’s behalf by his mother
because he had not yet reached the age of majority.
He was
substituted as plaintiff on attaining majority status.