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[2023] ZAGPJHC 426
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Luvuno N.O obo N.M.E.S v Road Accident Fund (2017/45731) [2023] ZAGPJHC 426 (5 May 2023)

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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case
Number: 2017/45731
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
NOT REVISED
In the matter between:
ADV
LUVUNO N.O
obo
S: N M E
Plaintiff
And
ROAD
ACCIDENT FUND
CLAIM
NO:  [...]
LINK
NO:  […]
Defendant
Neutral Citation:
Adv
Luvuno NO obo S: N M E v Road Accident Fund
(Case No: 2017/45731)
[2023] ZAGPJHC 426 (5 May 2023)
JUDGMENT
AYAYEE AJ:
Summary:
Default
trial against the Road Accident Fund. Determining appropriate award
of general damages.
[1] This matter proceeded
before me on 19 April 2023 as an action for default judgment. The
plaintiff in the present matter, is
the appointed
curator ad
litem
, having been so appointed by an order of this Court on 16
September 2021. The plaintiff thus acts in a representative capacity,

on behalf of the minor child (hereinafter referred to as “
the
Patient”
).
[2] On 7 April 2022 the
interlocutory Court struck out the defence of the Road Accident Fund
(hereinafter referred to as “
the Fund”
). The
plaintiff was further granted leave to approach the Registrar for the
allocation of a default judgment trial date. Despite
such fact at the
commencement of the proceedings I was advised of the presence of a Ms
Nkateko Mhlongo, acting as a representative
of the Fund.  Whilst
there was no formal application either for the rescission of the
order striking out the defence of the
Fund or to allow for the Fund’s
participation in the proceedings, the legal representatives of the
plaintiff raised no objection,
and I allowed Ms Mhlongo to address
the Court to a limited extent.
[3] At the commencement
of the proceedings, I was advised by the plaintiff that the parties
had reached settlement of the portion
of the claim pertaining to loss
of earnings and earning capacity in the sum of R796 000,00.
This was confirmed by the
Fund’s representative. On the present
facts, this amount constitutes a reasonable settlement.
[4] However, the above
coupled with the fact that the Fund had previously conceded the
merits, its acquiescence to the loss of earnings
and earning capacity
claim, was tantamount to conceding the balance of the essential
elements of a delict. This is as in RAF cases;
wrongfulness is
inferred from the fact that the insured driver negligently caused the
accident. Thus, by conceding the loss of
earnings and earning
capacity claim, the Fund implicitly accepts that the damages were
caused by the negligence of the insured
driver.
[5] A draft order was
consequently handed in,
inter alia
reflecting the agreement
reached on the question of loss of earnings.  In consequence the
issues requiring determination were
limited to:
(i)  Past medical
and hospital expenses, treatment and modalities;
(ii) Future medical and
hospital expenses, treatment and modalities;
(iii)  General
damages.
[6] Concerning the claim
for past and future medical expenses, the claimant did not in the
proceedings pursue an order for payment
of a globular amount for such
future losses, but sought to be furnished an unlimited undertaking as
envisaged in section 17(4)(a)
of the Road Accident Fund Act, No. 56
of 1996, as amended (“
the Act”
), to the effect
that the Fund would compensate the Patient in respect of 100% of all
future medical expenses, treatment and modalities.
[7]
The
matter of
Knoetze
obo M B Malinga v Road Accident Fund
[1]
records
a blanket election by the Fund to furnish an undertaking to every
claimant who is entitled to a claim for payment of future
medical and
ancillary expenses in terms of section 17(4)(a). The judgment
records:
“
[26]
Insofar as there may have been doubt as to either the existence of a
“blanket election” or whether this fact
has sufficiently
been so notorious that a court could have taken judicial notice
thereof, such doubt has now been removed by the
Fund’s CEO.
Counsel for the Fund has confirmed in open court that courts can now
take judicial notice of this.
The result is that, once a
plaintiff proves its claim as contemplated in section 17(4)(a), it is
entitled to claim an order catering
for a direction to the Fund to
furnish such an undertaking and a court is entitled to grant such an
order.  This will also
apply in instances where orders by
default are sought.”
[8] I am accordingly
satisfied that the plaintiff in this case, with the issues of
negligence, causation and nature of the damages
suffered having been
conceded by the Fund, is entitled to such an order. I turn to deal
with the sole contentious issue, being
to determine an appropriate
award for “
general damages”
.
[9] The facts at present
are not in issue. The Patient was 14 years of age, when as a
pedestrian walking on the side of the road,
he was struck by a truck
driven by the insured driver. As a result of the collision, the
Patient was rendered unconscious with
a gaping hole in the head which
bled excessively and he had to be removed from the scene by an
ambulance.
[10] During the trial,
the plaintiff’s legal representative applied for the admission
of the affidavits of the plaintiff’s
various experts in terms
of Uniform Rule 38(2). Exercising the Court’s broad powers to
regulate its own processes in the
interests of justice, the
affidavits of the plaintiff’s various experts were admitted
into evidence. These affidavits paint
an anguishing picture of a life
cut short. According to the orthopaedic surgeon, the Patient suffered
a severe head injury which
resulted in spastic right hemiplegia. This
has amongst others led to a situation where the Patient is unable to
speak and can only
communicate his needs only by pointing. The
Patient is unable to walk, is permanently wheelchair bound, unable to
feed himself,
unable to chew and is thus wholly dependent on others
for all aspects of living. The orthopaedic surgeon concludes that the
Patient
is unlikely to regain mobility and, in all likelihood, will
permanently be totally reliant on a caregiver. The Patient’s
whole person impairment is pegged at 94%.
[11] The Patient’s
woes are compounded by a shortened life expectancy, pegged variably
by the neurosurgeon, Dr Segwapa, at
a remaining 16 years, and by the
neurologist, Dr Rosman, at 26 remaining years. On all accounts the
accident left the Patient severely
disfigured and he had to endure
months of pain. He now suffers from spastic quadriparesis which is
characterised by an overall
weakness in both his arms and legs
although the evidence suggests that he is able to move some limbs
with encouragement.
[12] The Patient has thus
lost the ability to enjoy the amenities of life with the total loss
of the ability to live and to function
independently.
[13] The plaintiff
further led evidence that the Patient is presently suffering from
physical and emotional pain flowing from adjusting
to his present
circumstances and resulting in depression and anxiety. Whilst such
argument was not countermanded by the Fund, due
to the nature of the
proceedings, I am minded that the evidence also pointed to the
Patient being unable to speak as well as an
inability to use oral,
written and non-verbal communication effectively. To that extent some
doubt exists in my mind as to the
Patient’s current state of
awareness and whether being as per the neurological examination
“
severely retarded with minimal response to anything at
all”
, whether the Patient is aware of his present
circumstances, experiences complex emotions with attendant pain and
depression.
[14] The Court’s
task in determining an appropriate award for general damages in RAF
matters where there is no opposition
by the Fund is a difficult
task.
[15]
General
damages by their nature are designed to compensate the Patient for
damages which cannot be quantified with reference to
actual
patrimonial loss.  In
Smit
v Road Accident Fund
[2]
Makgoka
J held:
“
In
determining the award of damages to be made under the heading general
damages there are of course no scales upon which one can
weigh things
like pain and suffering and loss of amenities of life, nor is there a
relationship between either of them and money
which makes it possible
to express that in terms of money with any approach to certainty. The
broadest general consideration and
the figure arrived at must
necessarily be uncertain, depending upon the judge’s view of
what is fair in all circumstances
of the case.”
[16] Ultimately a Court
confronted with a claim for general damages, must do the best it can
on the evidence available by assessing
damages with regard to all
relevant facts in applying a general discretion.
[17] In this matter, I am
of the view that the following considerations are material and
relevant to the determination of the general
damages to be awarded.
They are on the undisputed facts that:
17.1 The collision has
left the Patient severely disfigured;
17.2 The Patient spent
five months in hospital, with attendant pain and discomfort;
17.3 The Patient spent a
further thirteen months in rehabilitation in circumstances where the
evidence of the orthopaedic surgeon
reveals, that the Patient suffers
extra pain each time that his hips flex;
17.4 The Patient is
permanently disabled;
17.5 The Patient suffered
acute pain for two weeks after the collision and chronic pain for at
least approximately six months;
17.6 The Patient has been
rendered totally dependent on others for all aspects of living;
17.7 The Patient now has
a shortened lifespan;
17.8 There is evidence
(whilst open to doubt) that the Patient continues to suffer emotional
pain, adjustment difficulties, as well
as experiences depression.
[18]
Despite
the above considerations, this Court is also minded of the fact that
it must equally be conservative and ensure that whilst
giving
compensation to the Patient, it does not “
pour
out largesse from the horn of plenty at the defendant’s
expense”
[3]
and
it must also recognise that there is regrettably a limit to the
interventions for which such monies awarded may be employed
to ease
the suffering of the Patient. As submitted in heads of argument filed
on behalf of the Plaintiff “
the
Patient has reached maximal medical improvement
”
.
[19] At the close of the
plaintiff’s case, I afforded Ms Mhlongo being the
representative of the Fund an opportunity to make
submissions as to
the Fund’s view of an appropriate award for general damages.
The Fund’s representative submitted
that an appropriate award
would be in the amount of R2 200 000,00. Pressed for a
justification for this amount, she could
provide no reasons. Her
submission is thus of no assistance to the Court.
[20] Having had regard to
the facts of the matter, and with reference to the evidence and the
submissions of the representatives
of the parties, I make the orders
set out hereinbelow:
It is ordered that:
[1] The defendant shall:
1.1 compensate the
plaintiff:
1.1.1 for 100% of the
proven or agreed delictual damages sustained by the Patient during
the motor vehicle collision which occurred
on 17 September 2016;
1.2 pay to the plaintiff:
1.2.1 the amount of
R2 696 000,00 (two million six hundred and ninety-six
thousand rand) (“
the capital sum”
):
1.2.1.1 comprising the
amounts of:
1.2.1.1.1 R1 900 000,00
in respect of general damages;
1.2.1.1.2 R796 000,00
in respect of loss of earnings and earning capacity;
1.2.1.2 within 180 (one
hundred and eighty days) from date of this order (“
the
payment date”
);
1.2.2 interest on the
capital sum at the rate of 9.75% per annum, calculated:
1.2.2.1 from the date of
judgment;
1.2.2.2 to the date of
final payment;in the event of the defendant failing to pay the
capital sum by the payment date,
by electronic fund
transfer into S.S Ntshangase Attorneys Trust cheque account ([...])
maintained at Nedbank (Branch Code [...]);
(“
the
compensation payment”
).
[2] The compensation
payment shall be made:
2.1 into the attorney’s
trust account, which trust account shall be one envisaged in terms of
section 86(4) of the Legal Practice
Act, 28 of 2014;
2.2 for the sole benefit
of the Patient, pending the establishment of a trust contemplated in
paragraph 4, and the issuing of letters
of authority (“
the
Trust”
).
[3] The defendant shall
pay directly to the attorneys, the costs of suit in this action (to
date), as taxed on a party and party
scale:
3.1 such costs to include
the costs:
3.1.1 attendant upon the
obtaining of the order for the payment of the compensation costs;
3.1.2 occasioned by the
employment of counsel inclusive of the costs of preparing heads of
argument;
3.1.3 arising from:
3.1.3.1 the creation of
the Trust;
3.1.3.2 the provision of
security by the trustee(s) of the Trust;
3.1.3.3 the management of
the Trust;
3.1.4 occasioned by the
preparation of the expert reports of:
3.1.4.1 Dr Rosman,
neurologist;
3.1.4.2 Dr Segwapa,
neurosurgeon;
3.1.4.3 Dr Barlin,
orthopaedic surgeon;
3.1.4.4 Ms M R India,
occupational therapist;
3.1.4.5 Dr Fine,
psychiatrist;
3.1.4.6 Dr Selahle,
plastic and reconstructive surgeon;
3.1.4.7 Dr Botha,
specialist physician;
3.1.4.8 Ms Mokgata,
speech and language therapist;
3.1.4.9 Dr Maluleke
Baloyi, physiotherapist;
3.1.4.10 Mr Tshikovhele,
clinical psychologist;
3.1.4.11 P Ntlhe,
educational psychologist;
3.1.4.12 Dr Shaik,
industrial psychologist;
3.1.4.13 Mr Jacobson,
actuary;
3.1.5 the Patient’s
reasonable travelling expenses to and from medico-legal appointments.
[4] The plaintiff’s
attorneys are hereby directed to:
4.1 cause a trust
(hereinafter referred to as “
the Trust”
) to be
established in accordance with the provisions of the Trust Property
Control Act, 57 of 1988, within a period of 6 (six)
months from the
date of this order to administer the estate of the Patient;
4.2 pay all monies held
in trust by them for the benefit of the Patient to the Trust after
deduction of their fees, costs and disbursements.
[5] The plaintiff’s
attorneys must after the taxation of all bills of cost in the action,
pay over to the trust all such legal
costs as may be recovered.
[6] The Trust instrument
contemplated in paragraph 4 of this order, shall make provision that:
6.1 the Patient is the
sole capital and interest beneficiary of the Trust;
6.2 the trustees are to
provide security to the satisfaction of the Master, however, should
Phumla Millicent Nkhize be nominated
as a trustee, she is absolved
from providing security;
6.3 the trustees are to
query and satisfy themselves within 6 months of appointment that
necessary steps have been engaged to recover,
legal costs associated
with this action, that are subject to taxation, but which are due to
the Trust;
6.4 the ownership of the
Trust property vests in the trustees of the Trust in their capacity
as trustees;
6.5 at least 2 (two) but
not more than 3 (three) trustees must be appointed of which at least
1 (one) must be an independent professional
trustee.  Trustees
are to be nominated by Phumla Millicent Mkhize, the legal guardian of
the Patient;
6.6 the primary purpose
of the Trust is to administer the funds in a manner which best takes
into account the ongoing interests
of the Patient;
6.7 the trustees will
have the right to purchase, sell and mortgage immovable property,
invest and re-invest the trust capital and
to pay out so much of the
income and/or capital as is reasonably required to maintain the
Patient (with due regard being had to
the obligations of any person
having a duty to support the Patient, the requirements of the Patient
and the purpose of the award
of damages);
6.8 the powers and
authority of the trustees shall not exceed those usually granted to
trustees of special trusts;
6.9 the trustees shall
set out procedures to resolve any potential disputes, subject to the
review of any decision made in accordance
therewith by a Court of
law;
6.10 the amendment of the
Trust Deed be subjected to the leave of this Honourable Court;
6.11 upon the termination
of the Trust upon the death of the Patient, the remaining assets in
the Trust shall devolve upon the Patient’s
legal heirs;
6.12 the Trust property
and the administration thereof be the subject of an annual audit;
6.13 in the event of the
Trust not being created within 6 (six) months from the date of this
order, the plaintiff and his attorneys
are directed to approach this
Court within 3 (three) months after the expiry of the first period of
6 (six) months, to obtain further
directions about the manner in
which the capital amount should be further administered on behalf of
the Patient.
[7] The Trust Deed shall
make provision for the following payments:
7.1 The costs of the
creation of the Trust and the appointment of a trustee,
inter
alia
, to protect, administer and/or manage the compensation
payments (inclusive of interest);
7.2 The costs of the
trustees furnishing annual security and obtaining an annual security
bond to meet the requirements of the Master
of the High Court in
terms of section 6(2)(a) of the Trust Property Control Act, 57 of
1988, as amended.
[8] The plaintiff’s
attorneys are directed to pay all monies held in trust by them for
the benefit of the Patient to the Trust,
after making the payments
envisaged in paragraph 4.2.
[9] The attorneys shall
be entitled to make payment of:
9.1 expenses incurred in
respect of accounts rendered by:
9.1.1 the expert
witnesses;
9.1.2 counsel employed on
behalf of the plaintiff;
9.1.3 their own fees
pertaining to this action, from the funds held by them in trust for
the benefit of the Patient, subject to
the limitations set out above,
and taking into account the amounts recovered from the defendant for
expert fees.
[10] Trustees of the
trust shall ensure that the payments to be deducted by the
plaintiff’s attorneys, as disbursements and/or
as their own
fees are fair and reasonable.
[11] The Trustees shall
ensure the taxation of the attorney own client bill, as presented by
the plaintiff’s attorneys, should
such amount be in excess of
25% of the compensation payment. In all circumstances, the trustees
shall ensure that the amounts claimed
as payment by the plaintiff’s
attorneys constitute fair and reasonable charges for their services
and is in strict accordance
with the provisions of Section 2(2) of
the Contingency Fees Act 66 of 1997.
[12] The defendant shall
furnish an unlimited undertaking as envisaged in section 17(4)(a) of
the Road Accident Fund Act, No. 56
of 1996, as amended, to the effect
that the defendant shall compensate the Patient in respect of 100%
of:
12.1 the costs of the
future accommodation of the Patient in a hospital or nursing home;
12.2 the treatment of the
Patient;
12.3 the rendering of
medical and associated services to the Patient;
12.4 the supplying of
goods to the Patient,after such costs have been incurred and on proof
thereof arising from the injuries sustained
by the Patient, which
forms the subject-matter of this action.
[13] This order must be
served by the plaintiff’s attorneys on the Master of the High
Court, Gauteng Local Division (Johannesburg)
within a period of 30
(thirty) days of the making thereof.
A E AYAYEE
ACTING JUDGE OF THE HIGH
COURT
JOHANNESBURG
This judgment was
handed down electronically by circulation to the parties’
representatives via e-mail, by being uploaded
to CaseLines and by
release to SAFLII. The date and time for hand- down is deemed to be
10h00 on 5 May 2023
Appearances:
On behalf of the
plaintiff:
Adv.
P. Uys
Instructed by:
SS
Ntshangase Attorneys
On behalf of the
respondent:
Ms
Nkateko Mhlongo
Instructed
by:
State
Attorney
Date
Heard:
19 April 2023 (matter recalled on 20 April 2023)
Handed
down Judgment  :   5 May 2023
[1]
Knoetze
obo Malinga and Another v Road Accident Fund
[2023]
1 All SA 708
(GP) (2 November 2022).
[2]
2013 (6A4) QOD 188 (GNP).
[3]
Pitt
v Economic Insurance Co Ltd
1975
(3) SA 284
(N) at 287.