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[2019] ZAECPEHC 90
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Barnard N.O obo Mncam v Road Accident Fund (1881/2012) [2019] ZAECPEHC 90 (22 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No:
1881/2012
Date
Heard: 13 June 2019
Date
Delivered: 22 August 2019
In
the matter between:
NICOLA
BARNARD N.O. obo D
MNCAM
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
Ronaasen,
AJ
Introduction
1.
On 13 June 2019, in respect of this action, I made an order (“the
order”)
by agreement between the parties, they being the
plaintiff, Nicola Barnard, an advocate of this court, in her
representative capacity
as curator
ad litem
to Mr Douglas
Mncam (“the patient”) and the defendant, the Road
Accident Fund.
2.
On 11 September 2007, in New Brighton, Port Elizabeth, the patient
had been injured,
when a motor vehicle collided with him while he was
a pedestrian (“the collision”).
3.
As a result of the injuries the patient sustained in the collision he
suffered
fractures of his right ankle, a fracture to his cervical
area, a soft-tissue injury to his right hip, a head injury, with
lacerations
and bruising of the face and abrasions of his left thigh
and his elbows.
4. In
terms of the order the defendant was,
inter-alia
:
4.1.
declared to be liable for 100% of the damages suffered by the patient
as a result of the injuries sustained by him in the collision;
4.2.
directed to pay compensation to the patient in the sum of R400 000.00
in settlement of his claim for damages;
4.3.
further directed to furnish the patient with an undertaking (“the
certificate”) in terms of section 17(4)(a) of the Road Accident
Fund Act, 56 of 1996 (“the Act”) in terms of
which the
defendant undertook to pay 100% of the costs of future accommodation
incurred in respect of the patient in a hospital
or nursing home or
in respect of the future treatment or rendering of a service to the
patient, or the further supplying of goods
to him, including the
costs of the services and treatment referred to in the medico-legal
reports filed by the plaintiff to date,
arising from the injuries
sustained by the plaintiff in the motor vehicle collision concerned,
after such costs had been incurred
and upon proof thereof.
5.
I reserved judgment on the question as to whether the costs covered
by the certificate
would include:
5.1.
the reasonable costs on a party and party basis in respect of an
application for the appointment of a curator to the estate of the
patient; and
5.2.
the fees of the appointed curator to the estate of the patient for
his/her services as such, including the cost of providing security
for the due fulfilment of his/her functions.
6.
Ms Leanne Ellis, an advocate of this court, was appointed as curator
ad litem
to the patient to report to this court as to whether
the patient required a curator to assist him in his action, against
the defendant
and, furthermore, whether in due course he would
require the appointment of a curator to his estate. In respect
of both questions
she concluded in the affirmative, to the following
effect:
6.1.
the patient was completely unable to understand and constructively
engage in the litigation process;
6.2.
he was unable to manage his own affairs;
6.3.
the available medical evidence supported the appointment of a curator
to assist the patient in the litigation and a curator to manage his
estate.
7.
The issues, described in paragraph 5, above, on which I reserved
judgment, were
argued, on the basis that it was common cause that:
7.1.
the patient would require the appointment of a curator to his estate,
as he was incapable of managing his own affairs; and
7.2.
the mental inability from which he suffered and which required the
appointment of a curator to his estate was not a result of the
injuries he had sustained in the collision, but was rather the result
of a pre-existing mental disability.
8.
In the particulars of claim (as amended) it was claimed on behalf of
the patient
that one of the
sequelae
of the injuries sustained
by the patient in the collision was that he required the assistance
of a curator to his estate, particularly
to manage the award of
compensation achieved in this action. It is not disputed that
the patient, pre-collision, would have
required a curator to his
estate if indeed he had any estate to manage. Prior to the
collision the patient was indigent and
was cared for by his family.
The sole asset in his estate is the award for damages he has now
obtained in this action against
the defendant.
9.
The defendant contends that the necessity for the appointment of a
curator is
not attributable to the injuries suffered by the patient
in the collision and that it should therefore not be liable for
payment
of the costs of the curator.
10.
The issues on which I reserved judgment were fully argued before me
and I am indebted to counsel
for the parties for their helpful
submissions and the authorities to which they referred me.
Legal
principles
11.
An award for damages is designed to compensate a claimant for loss or
injury suffered.
Damages - H B Klopper, 17, para 2.2.1.1
and
The Law of Delict in South Africa – M Loubser (ed) and R
Midgley (ed) - Third Edition, 488, para 34.2.1
.
12.
In
Damages (supra)
the following is stated at
para 2.13.1
:
“
A well-established rule of law
states that a wrongdoer must take his/her victim as he finds
him/her. This includes the victim’s
peculiar physical and
psychological infirmities. A wrongdoer cannot rely on the
victim’s inherent infirmities to escape
any increased liability
resulting from such infirmities.”
13.
In
Law of Delict (supra)
at
para 7.4
the following
remarks by
Boberg
are quoted with approval:
“
The so-called ‘weak
heart’ and ‘thin skull’ cases …… are
sometimes regarded as inimical to
the application of the
foreseeability test to the consequences of conduct. For the
defendant is not liable for unforeseeable
additional harm suffered by
the plaintiff as a result of a pre-existing physical condition that
renders him more vulnerable to
injury …. It is submitted
that the rule pertains to the
extent
of the harm suffered by
the plaintiff, which need not be foreseeable, and therefore coexists
peacefully with the foreseeability
test.”
14.
The fact that a plaintiff is peculiarly prone to more excessive
injury is not relevant to a decision
as to the extent of a
defendant’s liability.
Boswell v Minister of Police
and Another
1978 (3) SA 268
(E) at 272G
.
15.
In respect of causation a plaintiff bears the onus, on a balance of
probabilities, to prove that
the
sequelae
of his injuries must
be attributed to the injuries sustained as a result of the delict.
Once a plaintiff has proved this
he/she would be entitled to the
damages he/she can prove.
Damages (supra) at para 2.13.3
.
Minister of Finance and Others v Gore
2007 (1) SA 111
(SCA)
para [32]
. See also
Minister of Police v Shosana
1977
(1) SA 31
(A) at 35C
where it was stated that the test as to
whether a defendant was liable to a plaintiff as the result of his
negligent conduct was
whether, but for the negligent act or omission
the harm in question (in this case the necessity for the appointment
of a curator)
would have occurred. A further question,
which can be posed is whether the negligent conduct materially
contributed
to the result (the necessity to appoint a curator).
The Law of Delict (supra) at para 6.6.
16.
A plaintiff is entitled to fair compensation for the damages he
suffered. The following
passage from
Reyneke N.O. v Mutual &
Federal Insurance Co Ltd
1992 (2) SA 417
(T) at 419I
is
particularly apposite in this case:
“
If
the appointment of a
curator bonis
is an unavoidable result of
the injuries, then the costs of such
curator
, by which costs
the damages will be diminished, must be taken into account in the
award, otherwise it will not amount to fair compensation.”
Discussion
17.
The central question to be answered is whether the appointment of a
curator to the estate of the
patient is an unavoidable result of the
injuries he sustained in the collision. In my view, on the
application of the authorities
referred to above, this question must
be answered in favour of the patient.
18.
As a result of the injuries sustained by the plaintiff in the
collision, he achieved a substantial
award for damages, which, for
the first time, vested him with an estate. One of the
sequelae
of his injuries was that he required a curator to his newly acquired
estate as he was not able to manage his own affairs.
But for
the negligent act which caused his injuries the patient would not
have required a curator. Alternatively, the negligent
act
materially contributed to such requirement.
19.
The only source of funds available to the patient to compensate a
curator, in the event of the
defendant not being ordered to pay these
costs, would be the award for damages. The only reason why the
patient finds himself
in this position is the collision and the
injuries sustained by him as a result. As postulated in the
Reyneke
judgment if the patient were obliged to utilise his
award to pay a curator his award will be concomitantly diminished and
the award
would, thus, not amount to fair compensation.
20.
The fact that the injuries sustained by the patient in the collision
would otherwise not have
required the appointment of a curator to his
estate, in my view, does not alter matters. In terms of settled
law, the defendant
must take the patient with his peculiar
psychological infirmities. Those infirmities confirm his
inability to manage his
own affairs.
21.
The necessity for the appointment of a curator to the patient’s
estate accordingly remains
the unavoidable result of the injuries he
sustained in the collision. Because he is psychologically
infirm he requires a
curator to assist in in the management of his
estate, which necessity eventuated as a result of the injuries
sustained in the collision.
If the defendant were not to be
directed to pay the attendant costs the patient would not have
received fair compensation for the
injuries he sustained.
Conclusion
22.
I, therefore, conclude that the costs covered by the certificate
shall include the costs attendant
on the appointment of a curator to
the estate of the patient.
23.
Thus, I make the following order:
23.1.
The costs covered by the certificate shall include 100% of:
23.1.1. the reasonable
costs, on a party and party scale, in respect of the application to
be made for the appointment
of a curator to the estate of the
patient; and
23.1.2. the charges of the
appointed curator to the estate of the patient, such charges to
include the costs incurred
by the curator to furnish security for the
due fulfilment of his functions as curator, if he/she is directed to
furnish such security
by this court.
23.2.
The defendant is ordered to pay the plaintiff’s costs of the
hearing at which
the abovementioned issues were argued before me.
__________________________________
O.H.
RONAASEN
ACTING
JUDGE OF THE HIGH COURT
Obo
the Plaintiff: Adv N.M.
PATERSON
Instructed
by:
JOHN B SCOTT ATTORNEYS
Plaintiff’s Attorneys
6 Bird Street
Central
PORT ELIZABETH
Tel: (041) 582 2238
(Ref: Mr J.B. Scott/HN/M0061)
Obo
the Defendant: Adv P.E. JOOSTE
Instructed
by:
FRIEDMAN SCHEKTER
Defendant’s Attorneys
75 Second Avenue
Newton Park
PORT ELIZABETH
Tel: (041) 395 8438
(Ref: Ms N. America)