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[2020] ZAGPJHC 372
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M[....] obo M[....] v Road Accident Fund (6661/2019) [2020] ZAGPJHC 372 (11 November 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED:
Date:
10
th
November 2020
CASE
NO
:
6661/2019
DATE
:
10
th
November 2020
In
the matter between:
M[....]
,
M[....], for and on behalf
of:
M[....]
,
B[....]
C[....]
Plaintiff
and
ROAD ACCIDENT FUND
Defendant
Coram:
Adams
J
Heard
:
10 November 2020
Delivered:
11 November 2020 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by
being uploaded to the
CaseLines
digital system of
the GLD and by release to SAFLII. The date and time for hand-down is
deemed to be 17:00 on 11 November 2020
Summary:
Civil procedure – settlements and
consent orders – offer made by the RAF and accepted by the
plaintiff does not accord
with the facts in the matter – no
legal basis to make settlement agreement an Order of Court –
application for an order
by consent refused – court granted
order and awarded damages, which it believes to be fair and
reasonable to both parties,
including to the RAF.
ORDER
(1)
The defendant shall pay to the plaintiff an
amount of
R1 842 633
in full and final settlement of the plaintiff’s entire claim
herein.
(2)
The aforesaid capital sum of
R1 842 633
shall be paid by the defendant within ninety calendar days from the
date of this order by electronic funds
transfer into the trust
account of the plaintiff’s attorneys, the details whereof are
as follows: Smit & Herbst Trust
Account, account number: [….],
Absa Bank, branch code: 630 142, refer: W Herbst/ BM2212.
(3)
In the event of
failure by the defendant to effect payment of the capital sum within
ninety days from date hereof, interest will
be payable by the
defendant to the plaintiff from day 91 at the rate of 8.75% per annum
on the amount of R1 842 633.
(4)
The defendant shall furnish the plaintiff
with an undertaking as envisaged in
Section 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
for all of the costs of the future
accommodation of the minor child, B[....] C[....] M[....], in a
hospital or nursing home and
such treatment, services or goods as she
may require as a result of the injuries that she has sustained as a
result of the accident
which occurred on the 13
th
of January 2018 and the sequelae thereof, after such costs have been
incurred and upon proof thereof.
(5)
The defendant shall pay the plaintiff’s taxed or agreed
party and party costs to date on the High Court scale, which costs
shall include, but not be limited to:
6.1
The
reasonable costs in respect of the preparation of the medico-legal
reports, addendum medico-legal reports, RAF 4 Serious Injury
Assessments, as well as the actuarial calculations, of the following
experts: Dr M M Malan – orthopaedic surgeon; Dr M M
Malan –
RAF Serious Injury Assessment Report; Dr Jaap Earle –
Neurosurgeon; Dr Lucky K Tshikovhele – clinical
psychologist;
Dr Robyn Hunter – occupational therapist; Stephan Van Huyssteen
– Industrial Psychologist; Burger Radiologists
Incorporated –
Radiologists; and M M Lautenbach – educational
psychologist.
6.2
Consultations
when detailed instructions were given due to the complexity of the
matter.
6.3
The
costs of Counsel, inclusive of the costs of preparation for trial and
the attendance at and the preparation for trial.
6.4
The
travelling costs of the plaintiff to and from all medico-legal
appointments and consultations.
6.5
The
costs of the preparation and the making of five X copies of all
bundles for purpose of trial.
6.6
Any costs attendant upon the obtaining of
payment of the capital amount referred to paragraph 1 supra, as well
as costs attendant
upon obtaining payment of the taxed costs.
JUDGMENT
Adams J:
[1].
This matter
came before me on Tuesday, the 10
th
of November 2020, in the specialised
Settlements
and Consent Orders Court
of
this division. The matter had become settled in that the Road
Accident Fund (‘the Fund’) had made to the plaintiff
a
formal tender to pay an amount of R2 116 557.60 in full and
final settlement of the plaintiff’s claim herein.
The amount of
the tender, which was made in writing by the Fund on the 22
nd
of October 2020, was constituted, according to the formal offer, as
follows: R500 000 in respect of the plaintiff’s
general
damages and R1 616 557.60 in respect of the minor child’s
future loss of earnings.
[2].
A perusal and
consideration of the documents in support of the plaintiff’s
claim for loss of earnings did not, in my view,
support the
quantification of this head of damages, and I accordingly invited the
parties, including the RAF, to a hearing of the
application. The
purpose was for the parties to explain and motivate the basis on
which settlement was reached in the matter. Not
surprisingly, the RAF
did not respond. Ms Rourke appeared on behalf of the plaintiff and
made submissions and responded to certain
queries raised by me in
relation to the quantification of the minor child’s future loss
of earnings. I am grateful to her
for her assistance.
[3].
In
Maswanganyi
v Road Accident Fund
2019
(5) SA 407
(SCA)
the
court had this to say, in the context of a settlement agreement which
the parties require to be made an order of court:
‘
[34]
The RAF is an organ of state, established in terms of s 2 of the Road
Accident Fund Act 56 of 1996
(the Act). It is thus bound to adhere to
the basic values and principles governing the public administration
under our Constitution.
Section 195(1) requires,
inter
alia
,
that “[a] high standard of professional ethics must be promoted
and maintained”; and that “[e]fficient, economic
and
effective use of resources must be promoted”.
[35]
In cases involving the disbursement of public funds, judicial
scrutiny may be essential. A judge
is enjoined to act in terms of s
173 of the Constitution to ensure that there is no abuse of process.
Judges in all divisions have
expressed concern that in many RAF
cases, there is an abuse of process. Settlements are concluded where,
for example, the substantial
damages agreed to bear no relation to
the injuries sustained. In this case the judge had a legitimate
concern that the only reason
for the settlement was the lack of
preparation of the RAF’s case and that there may, in truth, as
appeared to be the case
from the evidence she heard from a passenger
in the vehicle, have been no negligence on the part of the insured
driver and thus
no liability on the part of the
[36]
Concern has been noted that to require a Judge to scrutinize every
settlement in a RAF case would
cause delays in the administration of
justice. However, it is not every case that will require this form of
judicial scrutiny.
When a Judge expresses concern over the terms of a
settlement, the court must ensure that those concerns are addressed
by the parties
to prevent an abuse of process and the unjustified
disbursements of public funds.’
[4].
It is on the
basis of this authority and my concerns that there may be an
unjustified disbursement of public funds, that I requested
submissions from the parties. The concerns I had are dealt with in
the following paragraphs, which, in my judgment, are grounds
for me
to refuse to grant an order in terms of the Consent Order.
[5].
The plaintiff sues herein on behalf
of her minor daughter, whose date of birth is 21 June 2009, making
her 11 years old at present.
In the pedestrian vehicle accident on
the 13
th
of January 2018 the child, according to the hospital and medical
records, sustained a right midshaft femur fracture. She was admitted
to the Johannesburg Academic Hospital for a period of twelve days. An
open reduction (tension nail) of the right femur was done
and she
received pain medication. The internal fixation was removed on the
3
rd
of
June 2018. In his report of the 22
nd
of January 2020, the plaintiff’s Neurosurgeon, Dr Jaap Earle,
concluded that the minor child suffered at least a mild traumatic
brain injury with no neurological deficit. Dr Earle also expressed
the opinion that there was no neurological deficit that would
restrict her in entering the open labour market in the future.
[6].
In the light
of the aforegoing and the fact that after the accident the child was
still doing well at school, I was concerned that
there is no
evidence, whether factual or by experts, in support of the
plaintiff’s contention that in future the minor child’s
projected income would be R1 616 557.60 less than what it
would have been but for the injuries sustained by her in the
accident
on the 13
th
of January 2018.
[7].
As a starting
point, it is apposite to note that the amount of the minor child’s
alleged future loss of earnings, being R1 616 557.60,
represents about 70% of the child’s pre-morbid projected
income, being R2 309 368, which, in turn implies that
after
the accident the minor child’s income earning capacity had been
reduced by 70% compared to her capacity disregarding
the accident.
This assumption is not born out by the facts in the matter –
far from it. So, for example the plaintiff’s
experts assessed
the plaintiff’s whole person impairment (‘the WPI’)
from a physical point of view at 14%. This
begs the question how a
14% WPI results in a 70% reduction in the child’s income
earning capacity. As indicated above, the
agreement on the quantum of
the child loss of income at R1 616 557.60, howsoever one
views the matter, is not supported
by the facts.
[8].
It requires
emphasising that from an intellectual and neurocognitive point of
view, there is no difference between the child’s
capacity pre-
and post-morbid. The facts
in
casu
certainly do not suggest otherwise and for the calculations to be
based on an assumption that post-morbid the child would only
be able
to attain an NQF1 remedial / vocational qualification boggles the
mind – there is no basis on which such an assumption
could have
been made in this matter.
[9].
In light of
these facts, there is no factual or legal basis for the damages award
offered by the Road Accident Fund. On the probabilities
the
plaintiff’s pre-morbid career path and projected income are
mirrored by her post-morbid career and income, subject to
the proviso
that she is probably compromised to a certain degree – not to
the tune of 70% - by the orthopaedic injury and
if it is accepted
that she suffered a mild traumatic brain injury.
[10].
On that basis,
and for the benefit of the child I will accept, for purposes of this
judgment, that the pre- and post-morbid scholastic
and career paths,
and the consequent projected income, are as postulated by the
plaintiff’s Actuary. Therefore, before the
application of
contingencies, I accept that the child would have earned R2 309 368
if the accident is disregarded and
R504 861 having regard to the
accident. This, in my view, is being extremely generous to the
plaintiff’s claim and in
order to address the concerns
expressed
supra
the contingencies should be adjusted. In that regard, I propose to
apply normal contingencies of 20% on the pre-morbid income and
0%
contingencies on the post-morbid income. That would result in
calculations as follows: R1 847 494 – R504 861
=
R1 342 633. To this total should be added an amount of
R500 000 in respect of the general damages, giving a grand
total
of R1 842 633.
[11].
In the
circumstance, an order as per the Draft Order, duly amended to adjust
the award of damages to R1 842 633, should
be granted.
Order
Accordingly, I make the
following order: -
(6)
The defendant shall pay to the plaintiff an
amount of
R1 842 633
in full and final settlement of the plaintiff’s entire claim
herein.
(7)
The aforesaid capital sum of
R1 842 633
shall be paid by the defendant within ninety calendar days from the
date of this order by electronic funds
transfer into the trust
account of the plaintiff’s attorneys, the details whereof are
as follows: Smit & Herbst Trust
Account, account number:
406 228 4622, Absa Bank, branch code: 630 142, refer:
W Herbst/ BM2212.
(8)
In the event of
failure by the defendant to effect payment of the capital sum within
ninety days from date hereof, interest will
be payable by the
defendant to the plaintiff from day 91 at the rate of 8.75% per annum
on the amount of R1 842 633.
(9)
The defendant shall furnish the plaintiff
with an undertaking as envisaged in
Section 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
for all of the costs of the future
accommodation of the minor child, B[....] C[....] M[....], in a
hospital or nursing home and
such treatment, services or goods as she
may require as a result of the injuries that she has sustained as a
result of the accident
which occurred on the 13
th
of January 2018 and the sequelae thereof, after such costs have been
incurred and upon proof thereof.
(10)
The
defendant shall pay the plaintiff’s taxed or agreed party and
party costs to date on the High Court scale, which costs
shall
include, but not be limited to:
6.7
The reasonable costs in respect of the
preparation of the medico-legal reports, addendum medico-legal
reports, RAF 4 Serious Injury
Assessments, as well as the actuarial
calculations, of the following experts: Dr M M Malan –
orthopaedic surgeon; Dr M M
Malan – RAF Serious Injury
Assessment Report; Dr Jaap Earle – Neurosurgeon; Dr Lucky K
Tshikovhele – clinical
psychologist; Dr Robyn Hunter –
occupational therapist; Stephan Van Huyssteen – Industrial
Psychologist; Burger Radiologists
Incorporated – Radiologists;
and M M Lautenbach – educational psychologist.
6.8
Consultations when detailed instructions
were given due to the complexity of the matter.
6.9
The costs of Counsel, inclusive of the
costs of preparation for trial and the attendance at and the
preparation for trial.
6.10
The travelling costs of the plaintiff to
and from all medico-legal appointments and consultations.
6.11
The costs of the preparation and the making
of five X copies of all bundles for purpose of trial.
6.12
Any costs attendant upon the obtaining of
payment of the capital amount referred to paragraph 1 supra, as well
as costs attendant
upon obtaining payment of the taxed costs.
L R ADAMS
Judge of the High Court
Gauteng Local Division, Johannesburg
HEARD ON:
10
th
November 2020
JUDGMENT DATE:
11
th
November 2020
FOR THE PLAINTIFF:
Advocate Michelle Rourke
INSTRUCTED BY:
Smit & Herbst Attorneys
FOR THE DEFENDANTS:
No appearances - Mr Justice Nghomani (Claims Handler
at the RAF)
INSTRUCTED BY:
The Road
Accident Fund, Johannesburg