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A.M.S obo Minors v Road Accident Fund (21984/2021) [2023] ZAGPPHC 56 (31 January 2023)

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Personal Injury Law - Road Accident Fund
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Brief Summary

Damages — Loss of support — Application for default judgment — Plaintiff claimed loss of support for herself and her minor children following the death of their father in a motor vehicle accident caused by the defendant's insured driver — Merits of the case settled in favor of the plaintiff — Court determined the quantum of damages based on expert actuarial calculations — Defendant's failure to challenge the plaintiff's expert reports — Default judgment granted in favor of the plaintiff for a total amount of R3,955,647, inclusive of past and future loss of support.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were concerned with the determination of the quantum of a claim for loss of support arising from a fatal motor vehicle accident. The plaintiff, A.M.S (with identifying details redacted), acted both in her personal capacity and in a representative capacity on behalf of her two minor children. The defendant was the Road Accident Fund.


The matter proceeded on the footing that the insured driver’s negligence caused the accident and that the defendant was liable. The merits had already been settled at 100% in favour of the plaintiff, leaving only the quantification of the loss of support for decision.


Procedurally, the plaintiff lodged her claim against the defendant on 6 March 2019, issued and served summons in May 2021, and the defendant delivered a notice of intention to defend on 21 June 2021. Pre-trial processes were hampered by the defendant’s lack of cooperation, resulting in the plaintiff bringing an application to compel compliance with pre-trial obligations. An order was granted compelling further pre-trial steps and expressly granting the plaintiff leave, on the trial date, to seek striking out of the defence and to apply for default judgment if warranted. When the matter came for hearing on 18 November 2022, the defendant sought a postponement which was refused; the defence was then struck out and the plaintiff proceeded for default judgment on quantum.


The general subject-matter was the assessment of damages for loss of support of a surviving life partner and minor children following the death of the breadwinner, including the acceptance of actuarial computations and contingencies where the defendant tendered no expert evidence.


2. Material Facts


It was not disputed that the deceased, Mr B.H. (details redacted), was the father of the two minor children and that the children were born from the permanent life partnership between the plaintiff and the deceased. It was also not in dispute that the accident resulting in the deceased’s death was caused by the negligence of a driver insured by the defendant, and that merits were settled on a full (100%) liability basis.


The plaintiff’s case on quantum was that she and the minor children were dependent on the deceased for support, and that after his death there were no assets or funds in the deceased estate upon which they could rely for maintenance.


In relation to earnings, the deceased was employed by Auto Dynamics Services as an Artisan Assistance, which the plaintiff’s industrial psychologist regarded as falling at Patterson B3. According to an employer certificate, he earned R1 200 per week and was entitled to overtime at R40 per hour. It was suggested on the papers that he had been employed for approximately six months at the time of death.


The plaintiff relied on expert reports from an industrial psychologist, an educational psychologist, and an actuary. The actuarial calculation for the children was based on the educational psychologist’s assumption that each child would have depended on the deceased until approximately 22½ years of age. The actuarial computations produced net past and future loss figures (after applying contingencies) and a combined total net loss for all dependants.


The defendant appointed no expert witnesses and placed no competing actuarial or industrial psychological scenario before the court. As a result, the plaintiff’s expert reports and computations stood unchallenged.


3. Legal Issues


The central legal questions for determination were concerned with quantum and the procedural consequences of the defendant’s litigation conduct. The court had to determine whether, on the record before it and following the striking out of the defence, the plaintiff had established a basis for the granting of default judgment in the amounts claimed for loss of support, including whether the actuarial calculations and contingencies should be accepted.


Although the judgment referenced authority recognising that persons in a permanent life partnership may have reciprocal duties of support, the existence of the life partnership and the children’s parentage were not disputed, and the merits were already settled. The dispute therefore primarily concerned the application of law to fact in quantifying loss of support and the exercise of discretion in refusing a postponement and in accepting uncontroverted expert calculations.


A further issue addressed was whether the defendant had made out a proper case for a postponement on the day of trial and, consequentially, whether the plaintiff was entitled to the procedural remedies contemplated in the earlier court order (striking out and default judgment).


4. Court’s Reasoning


The court approached the matter against the backdrop that liability had been resolved in the plaintiff’s favour and that the remaining task was the assessment of the monetary value of the dependants’ support claim. In dealing with the plaintiff’s status as a life partner, the court referred to authority confirming that South African law recognises that parties to a permanent life partnership can owe one another reciprocal duties of support, even absent marriage, with the duty arising from a tacit agreement. The reference served to confirm the legal basis upon which a life partner may claim loss of support, consistent with the pleaded dependence in this matter.


On the procedural aspect, the court addressed the defendant’s application for a postponement sought on the hearing date. The defendant’s stated reason was that it required time to investigate the loss of support claim and to instruct an internal industrial psychologist to provide an alternative scenario for calculating the loss. The court applied established principles governing postponements and found the explanation unreasonable and unacceptable, particularly in light of the defendant’s failure to explain non-compliance with the earlier court order compelling pre-trial steps. The court further considered prejudice and concluded that a costs order would not adequately cure the prejudice to the plaintiff if a postponement were granted.


After refusing the postponement, the court granted the plaintiff’s application to have the defendant’s defence struck out (consistent with the earlier order granting leave to seek such relief on the trial date). The court then considered the plaintiff’s request for default judgment on quantum.


In assessing quantum, the court noted the deceased’s employment details and earnings as reflected in the employer documentation and the expert material. It placed emphasis on the fact that the defendant had appointed no expert and therefore left the plaintiff’s industrial psychological, educational psychological, and actuarial evidence uncontested. The court considered the actuarial calculations, including the contingencies applied for past and future loss, and found no reason to question them on the papers. Having regard to the filed documentation and counsel’s submissions, the court was satisfied that the plaintiff had made out a case for default judgment in the total amount calculated for the dependants’ loss of support.


5. Outcome and Relief


The court granted judgment in favour of the plaintiff on quantum, noting that the merits had previously been settled at 100% in her favour.


The defendant was ordered to pay the plaintiff, in her personal and representative capacities, the total amount of R3 955 647 for loss of support. The payment was directed to be made into the plaintiff’s attorneys’ trust account as specified in the order.


The court made provision for interest in the event of late payment, at the prevailing rate determined in terms of the Prescribed Rate of Interest Act 55 of 1975, as amended.


The defendant was ordered to pay the plaintiff’s taxed or agreed party-and-party costs on the High Court scale, including (as part of the costs order) the reasonable taxed fees of the plaintiff’s identified experts and various litigation-related expenses specified in the order, as well as counsel’s fees for trial preparation and appearance. The order further addressed interest on taxed or agreed costs in the event of non-payment timeously. The court also recorded that there was a valid contingency fee agreement signed by the plaintiff.


Cases Cited


Paixao v Road Accident Fund 2012 (6) SA 377 (SCA).


M v Road Accident Fund (28602/2017) [2020] ZAGPPHC 63 (18 February 2020).


Sizani v Road Accident Fund (1895/2016) [2020] ZAECMHC 4 (13 February 2020).


Legislation Cited


Prescribed Rate of Interest Act 55 of 1975 (as amended).


Rules of Court Cited


No specific Rules of Court were expressly cited in the judgment, although the judgment referred to pre-trial conferencing, an application to compel compliance, striking out of a defence, and default judgment as procedural steps.


Held


The court held that, after refusing the defendant’s trial-date postponement application and striking out the defendant’s defence, the plaintiff had established entitlement to default judgment on quantum for loss of support.


The court accepted the plaintiff’s unchallenged expert evidence and actuarial computations, including the applied contingencies, and awarded the plaintiff and minor children a total of R3 955 647 for loss of support, together with interest provisions applicable upon late payment and a comprehensive party-and-party costs order.


LEGAL PRINCIPLES


The judgment applied the principle that South African law recognises that parties in a permanent life partnership may owe each other reciprocal duties of support, notwithstanding the absence of a formal marriage, and that such duty may arise from a tacit agreement.


It applied established principles governing applications for postponement, including the requirement of a reasonable and acceptable explanation and an evaluation of prejudice, and it accepted that in appropriate circumstances prejudice to a plaintiff may not be adequately cured by a costs order.


In quantifying loss of support, the judgment reflects that where a defendant tenders no expert evidence and does not meaningfully challenge actuarial computations, a court may accept properly motivated actuarial calculations and contingencies where it finds no reason to doubt them on the record.

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[2023] ZAGPPHC 56
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A.M.S obo Minors v Road Accident Fund (21984/2021) [2023] ZAGPPHC 56 (31 January 2023)

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
DIVISION, PRETORIA
Case
No: 21984/2021
REPORTABLE:
No
OF
INTEREST TO OTHER JUDGES: No
REVISED:
NO
31
January 2023
In
the matter between:
A
MS [. . .] OBO
MINORS

PLAINTIFF
and
ROAD
ACCIDENT FUND

DEFENDANT
Delivered:
This judgment was handed down electronically
by circulation to the parties' legal representatives by email, and
uploaded on caselines
electronic platform. The date for hand-down is
deemed to be 31 January 2023
Summary:
Application for summary judgment
.
Claim for loss of
support for plaintiff and on behalf of the minor children. Motor
vehicle accident. The deceased life stay-in partner
of the plaintiff
and father of the minor children.
JUDGEMENT
Molahlehi
J
Introduction
[1]
This judgment is about the quantum of
loss of support of the plaintiff and two of her children arising from
the death of their father
due to the motor vehicle accident. The
accident was caused by the negligence of the driver insured by the
defendant. Ms AMS [.
. .] instituted the proceedings in her personal
capacity and representative capacity as the mother and guardian of
two minor children,
JJA [. . .] and BCA [ . . .].
[2]
It was not disputed that the minor
children were born from the life partnership between the plaintiff
and the deceased, Mr BH […].
As indicated above, the only
issue for determination, the parties having concluded the merits in
favour of the plaintiff on a hundred
per cent basis, is quantum.
[3]
In
Paixao
v RA
[1]
,
the
court held that our law does recognize the principle that two persons
in a permanent life partnership could enjoy reciprocal
duties of
support, despite the absence of a formal marriage relationship. The
duty, according to the court, derives from a tacit
agreement.
[4]
In
M v Road Accident Fund,
[2]
the
defendant was ordered to pay the plaintiff an amount of R 700 000-00,
being for past and future loss of support for the plaintiff.
In
addition, the defendant was ordered to pay the plaintiff an amount of
R 800 000-00, being for past and future loss of support
for the
plaintiff's minor children.
[5]
In
Sizani v Road Accident Fund,
[3]
the plaintiff was awarded an amount of R206, 856.00 for loss of
support arising from the untimely death of her son.
The
background facts.
[6]
The plaintiff lodged the claim for
damages against the defendant on 6 March 2019 and served the summons
of on the defendant in May
2021.
[7]
The defendant filed a notice to defend
the claim on 21 June 2021. The litigation proceeded up to the stage
of having to attend the
pre-trial conference and the need to deliver
the medical reports.
[8]
After the first pre-trial conference,
the plaintiff required a further pre-trial conference to deal with
the issues raised in the
first pre-trial conference.
[9]
It is apparent that the defendant did
not cooperate regarding the convening of the further pre-trial
conference. This caused the
plaintiff to file an application to
compel compliance with attendance at the pre-trial conference. In
this regard, the court, per
Sardiwalla J, made the order compelling
the defendant to attend a further pre-trial conference and answer the
questions raised
by the plaintiff in the first pre-trial conference.
The order further compelled the defendant to deliver the
medical-legal reports
and to sign the joint Practice Note within ten
days of the date of the order. The most important aspect of the order
for this judgment
is that:
"The
plaintiff is granted leave to proceed with an application for
striking out the defendant's defence on the trial date 28
November
2022 and apply for default judgment against the defendant."
[10]
The trial was set down for a hearing on
18 November 2022. The defendant, on that day, applied to have the
matter postponed. The
reason for the postponement, according to the
defendant's attorney, and deponent to the affidavit supporting the
postponement,
Ms. Van Zyl, was the fact that defendant required an
opportunity:
"to
properly investigate the loss of support claim and instruct an
internal Industrial Psychologist to assess the matter to
provide an
alternative scenario for the calculation of the loss of support."
[11]
The defendant contends in the affidavit
supporting the application for the postponement of the matter that it
would suffer prejudice
if the application was refused.
[12]
The principles governing the approach to
an application for a postponement are well-established and known in
our law. In refusing
the application and making the order verbally on
the day of the hearing, I applied those principles. I do, however,
wish to emphasize
that the reason provided by the defendant for the
postponement is unreasonable and unaccepted. And more importantly,
the defendant
did not deal with why they failed to comply with the
court order. I was also, more importantly, persuaded that an order of
costs
consequent to the postponement would not cure the prejudice
that the plaintiff would suffer if the postponement was to be
granted.
[13]
Following the refusal to grant the
postponement, the plaintiff applied to have the defendant's defence
struck out. That application
was granted. The plaintiffs then applied
for a default judgment.
The
default judgment
[14]
The case of the plaintiff is that she
and the minor children were dependent on the deceased for support.
After the motor vehicle
accident that took his life, there are no
assets or funds from the deceased assets estate that they could
depend on for support.
[15]
Before the accident, the deceased was
employed at Auto Dynamics Services and performed the role of an
Artisan Assistance which the
Industrial Psychologist regarded as
being at Patterson B3. His weekly pay, according to the employer's
certificate, was R1 200.00
per week, and he was entitled to overtime
of R40. 00 the hour. It is suggested that he had been employed for
about six months when
the accident occurred.
[16]
The actuarial calculation for the loss
suffered by the minor children is based on the assumption of the
Educational Psychologist
that they (the children) would each have
depended on the deceased up to the age of twenty-two and half years.
Each child's loss
of income is to the date of his or her share of his
or her father's income during the period from the date of the
accident to the
date of capitalization. Their future loss is
capitalized value of each child's share of the father's income to 1
August 2022.
[17]
The plaintiff's experts were:
a.
Jacobson Talmud – Industrial
Psychologist
b.
Prof J Seabi – Educational
Psychologist
c.
G Jacobson – Actuary.
[18]
After applying the contingencies, the
plaintiff's and the children's loss of support was calculated the as
follows:
PLAINTIFF
CHILD 1        CHILD 2
ALL DEPANDENTS
PAST
LOSS
GROSS
LOSS:         R 32 786
R 87 695
R 87 695
a. CONTIGENCY
DEDUCTION:
R
1 639
R
4 385          R 4 385
b.
NET
PAST
LOSS:
R
31 147        R 83 310
R 83 310
R 197 767
FUTURE
LOSS
GROSS
LOSS:         R 2 552 967

R 842 524
R 97 174
CONTIGENCY
DEDUCTION:
R 382 945
R 105 316

R121 522
NET
FUTURE LOSS:
R
2 170 022  R 737 208
R 850 650      R 3 757 88
TOTAL
NET LOSS:
R 2 201 169 R 820 518
R 933 960    R3 955 647
Past
Contingencies:

5.0%
5.0%

5.0%
Future
Contingencies:

15.0%
12.5%

12.5%
[19]
The defendant appointed no expert and thus the plaintiff’s
expert reports remained
unchallenged. I have in this regard
considered the above actuarial calculations and the contingencies
applied and found no reasons
to question the same.
[20]
In conclusion, I am persuaded having regard to the documents filed of
record and the submissions
made by the plaintiff’s Counsel that
the plaintiff’s application for default judgment stands to
succeed.
Order
[21]
In the circumstances, I make the following order:
1.
The merits were previously settled at 100% in favour of the
Plaintiff.
2.
Judgement is granted in favour of the plaintiff in her personal
capacity and
in her capacity as the representative of the minor
children and accordingly the defendant shall pay the total of
R3 955 647
to the plaintiff.
3.
The defendant shall pay the amount referred to above in paragraphs 2,
into the
Plaintiff’s attorneys of record trust account with the
following details:
Account Holder:
Ehlers Attorney
Bank Name: FNB
Branch Code: 261550
Account Number:
[....]
4.
The Defendant shall be liable for interest on the aforementioned
amount, save
for the event of failing to pay on the due date, in
which event the Defendant will be liable to pay interest on the
outstanding
amount at the prevailing rate of interest, as determined
from time to time, in terms of the
Prescribed Rate of Interest Act,
55 of 1975
, as amended.
5.
The Defendant is ordered to pay the Plaintiffs taxed or agreed party
and party
costs on High Court scale, subject to the discretion of the
Taxing Master, which costs will include, but will not be limited to

the following:
6.
The reasonable taxed fees of the following experts:
Jacobson Talmud –
Industrial Psychologist.
Prof J Seabi –
Educational Psychologist.
G Jacobson –
Actuary.
7.
The costs for accommodation and transportation (as per the prescribed
AA
rates) for the Plaintiff to attend a consultation at the Attorneys
office on 17 November 2022 and to attend Trial on 18 November
2022.
8.
The costs of an inspection in loco by the Plaintiff’s attorney.
9.
The costs of appointing an assessor to investigate merits and to
obtain the SAPS
docket.
10.
The costs for preparation of Plaintiffs bundles of documents for
trial purposes, as well as the
travelling costs (as per the
prescribed AA rates) and time spent to deliver these bundles and to
load same on Caselines.
11.
The costs for preparation of Plaintiffs bundles of documents for
experts, as well as the travelling
costs (as per the prescribed AA
rates) and time spent to deliver these bundles.
12.
The costs of Adv Jaco Bam briefed and appearing for trial, including
but not limited to the following:
12.1
Preparation for Trial;
12.2
Consultations with Plaintiff’s Attorney in respect
of
Preparation for
12.3
Trial;
12.4
Drafting heads of argument;
12.5
Day fee for 18 November 2022.
13
The Defendant is ordered to pay the Plaintiffs taxed and/or agreed
party and party costs
within 14 days from the date upon which the
accounts are taxed by the Taxing master and/or agreed between the
parties.
14
The Defendant shall be liable for interest on the taxed and/or agreed
party and party costs,
save for the event of failing to pay on the
due date, in which event the Defendant will be liable to pay interest
on the outstanding
amount at the prevailing rate of interest, as
determined from time to time, in terms of the
Prescribed Rate of
Interest Act, 55 of 1975
, as amended.
15
There is a valid Contingency Fee Agreement signed by the plaintiff.
E
Molahlehi
Judge
of the High Court,
Gauteng
Division, Pretoria.
Representation:
For
the Plaintiff: Advocate Jaco Bam
Instructed
by: Ehlers Attorneys
For
the Defendant: Advocate Jessica Hanekom
Instructed
by: State Attorney, Pretoria
Date
of hearing: 18 November 2022.
Delivered:
31 January 2023.
[1]
2012
(6) SA 377
(SCA)
[2]
(28602/2017) [2020] ZAGPPHC 63 (18 February 2020).
[3]
(1895/2016) [2020] ZAECMHC 4 (13 February 2020).

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