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[2023] ZAKZPHC 138
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S.N obo A.N v Road Accident Fund (749/2021P) [2023] ZAKZPHC 138 (16 November 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
FLYNOTES:
RAF – Interest –
Change
in repurchase rate
–
Determination
of rate of interest – Section 1(2)(b) providing for Minister
of Justice to publish amended rate of interest
in Gazette whenever
repurchase rate is adjusted – Failure by Minister to publish
adjusted rate in Government Gazette
– Publication not
required for it to be effective – Prescribed rate based on
repurchase rate set by Reserve Bank
and section 1(2)(c) links the
effective date of prescribed rate to bank determination and not
ministerial publication –
Prescribed Rate of Interest Act 55
of 1975
,
s 1(2)(b).
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
Case No: 749/2021P
In the matter between:
S[,,,] E[…]
N[…] obo
A[…] M[…]
N[…]
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
ELECTRONICALLY DELIVERED
:- This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email. The date and
time for the handing-down of
this judgment is deemed to be
10h00
on
16 November 2023.
JUDGMENT
Sibiya J:
[1]
This matter was set down for trial on 13 to 16 November 2023. The
plaintiff sues in
his capacity as the father of A[…] who was
born on 15 December 2006 (‘A[…]’).
[2]
A[…] was involved in a motor vehicle accident as a passenger
on 21 April 2019,
in which he sustained injuries. He was 12 years old
at the time of the accident, and in grade six. The trial was set down
only
for the determination of quantum, liability having been settled
at 100% in favour of the plaintiff.
[3]
At the start of the trial it was confirmed that liability had been
settled as set
out in the preceding paragraph, and that the defendant
would tender an undertaking in terms of
section 17(4)
of the
Road
Accident Fund Act 56 of 1996
in relation to the future medical
expenses. The defendant had accepted that the injury was serious and
qualified for general damages.
[4]
In addition, and in relation to the future loss of earnings, Ms
Moodley
advised that she held no instructions to make an offer
of settlement. She submitted, however, that having regard to the
medico-legal
reports of the educational psychologists, the
occupational psychologists and the industrial psychologists, as well
as the joint
minutes prepared by the relevant experts, she could not
advance any legal argument in opposition of the composition of the
amount.
[5]
No actuary had been instructed by the defendant, and the plaintiff’s
expert,
Human & Morris Actuaries, had calculated the future loss
of earnings on the basis of the scenarios provided by each of the
industrial psychologists, being Mr de Vlamingh for the plaintiff and
Ms Moses for the defendant. These experts had indicated, in
their
joint minute, that they agreed that ‘for settlement purposes,
the mean between [their] postulations can be used’
for
pre-morbid earnings.
[6]
In applying a contingency deduction of 25% to un-injured earnings and
30% to injured
earnings, and the mean between the postulations of the
industrial psychologists, a figure of R1 263 541.35 was reached. Ms
Moodley
submitted that this figure was fair in the
circumstances, and that in order to save on additional costs of
bringing experts and
running the trial, she believed that a
settlement in this amount, in relation to future loss of earnings,
was in the best interests
of the defendant. Mr
Pillemer
agreed
to the figure and the method used.
[7]
I have also looked at the medico-legal reports of the industrial
psychologists and
their joint minutes, as well as the actuarial
calculations dated 31 October 2023, and I am satisfied that the
actuarial calculations
are in line with the recommendations of the
experts, and that the figure for future loss of earnings is
reasonable.
[8]
The only issue that I was then called to decide were the general
damages. Both Mr
Pillemer
and Ms
Moodley
had prepared
comprehensive heads of argument, for which I am grateful. Much of the
argument advanced by these legal practitioners
was in line with their
heads of argument.
[9]
It is trite that there is no mathematical method to determine what
suitably compensates
for the pain and suffering already experienced
and that to be experienced in future. However, it has been accepted
that past awards
from similar injuries with similar sequelae, provide
a useful guide. The undisputed evidence in relation to the sequelae
of A[...]’s
injuries is that he has cognitive deficits that
diminish his everyday functioning and academic progress, as a result
he reached
his current grade at school through being condoned in
spite of obtaining marks that fell below the pass mark, and will not
be able
to pass on his merit or proceed beyond grade 10.
[10]
Mr
Pillemer
summarized the injuries sustained by A[…],
as being moderate to severe. He had a head injury which was confirmed
by Dr Nadvi
on the basis that A[…] lost consciousness at the
time of the accident, had evidence of direct impact to the head area,
and
was according to the hospital records diagnosed as having
suffered a traumatic brain injury. In addition, the CT scan revealed
a fracture of the skull with subdural haematoma, he was treated as a
head injury at the hospital and he had a period of post traumatic
amnesia of about two and a half months according to his father.
[11]
I noted that in the medico legal report of Dr Nadvi, he records on
the third last paragraph of
paragraph 3
[1]
that ‘His period of Post Traumatic Amnesia was therefore in
excess of a week, and this would define him as having suffered
a
severe traumatic brain injury according to this classification.’
However, he qualified this by stating that if both the
clinical and
radiological factors are considered, the best definition is the Mayo
classification which defines him as having sustained
a ‘definite
moderate to severe traumatic brain injury’. Dr Nadvi then
limited his definition to ‘at least a moderate
traumatic brain
injury’.
[12]
Mr
Pillemer
further listed the sequelae to the injuries as
weakness of the legs, poor balance and altered gait, persistent
headaches, reduced
energy levels, memory impairment, mental fatigue
and delayed processing and restless sleep. A[…] had been
admitted to hospital
on the day of the accident and discharged after
a week, but was re-admitted 3 days later and hospitalised for an
extended period
of more than two months. During that period his
Glasco Coma Scale fluctuated with the lowest being 9/15, one month
after the accident.
He did not return to school and failed grade six
and had to repeat it the following year.
[13]
Ms
Moodley
confirmed that the injuries and severity as stated
by Mr
Pillemer
were correct.
[14]
In support of his argument that the appropriate amount for general
damages was R1 750 000, Mr
Pillemer
referred me to the
following cases involving children who suffered head injuries:
(a)
Maribeng
v Road Accident Fund
[2]
where the injured was four years old at the time of the accident and
in addition to the brain injury, suffered a fracture of the
femur and
was awarded a current value of R1 760 000;
(b)
Moneuoa
v Road Accident Fund
[3]
where the injured was 15 years old at the time of the accident and
sustained similar injuries and sequelae to Amukelani and the
court
awarded an amount whose current value is R1 749 000;
(c)
Pieterson
obo JST v Road Accident Fund
[4]
where a 4-year old boy had, in addition to a brain injury, suffered
many degloving injuries requiring a number of skin grafts,
the court
awarded an amount whose current value is R1 386 000; and
(d)
Minnie
N.O. v Road Accident Fund
[5]
where a 5-year-old girl suffered a severe head injury with multiple
degloving injuries requiring repeated surgery and permanent
disfigurement, the court awarded an amount whose current value is R1
542 000.
[15]
In turn, Ms
Moodley,
in seeking to persuade me that the
appropriate amount was R950 000, referred to the cases in her heads
of argument as follows:
(a)
Matthysen
v Padongelukkefonds
[6]
where the injured was an adult financial director who sustained a
moderate concussive head injury with focal right parietal cerebral
contusion, and the court awarded an amount the current value of which
is R336 000;
(b)
Hurter
v Road Accident Fund
[7]
where a 20-year old student with extensive facial fracturing in
addition to the brain contusion with a fracture of the base of
the
skull was awarded an amount whose current value is R964 000;
(c)
Smit
NO v Road Accident Fund
[8]
where a 12-year old girl suffered multiple fractures in addition to a
severe diffuse brain injury and the court awarded an amount
the
current value of which is R1 549 000;
(d)
Myhill
NO v Road Accident Fund
[9]
where an adult man who suffered a focal and diffuse brain injury was
awarded an amount whose current value is R1 727 000;
[10]
and
(e)
Torres
v Road Accident Fund
[11]
where a 20-year old male with a severe diffuse brain injury was
awarded general damages whose current value is R 1 480 000.
[12]
[16]
I have had regard to the submissions of both counsel, the
medico-legal reports, and the comparative
cases referred to. The
cases referred to by Ms
Moodley
related to people that were
older, and thus would not compensate A[...] for the loss
sufficiently, as he had his entire future ahead
of him, in senior
primary school, when the trajectory of his life was changed. This
affected even his extra-curricular activities
and him even reaching
matric.
[17]
The cases referred to by Mr
Pillemer,
although they relate to
children of a similar age to A[...] at the time of the accident, the
injuries they sustained were more severe
in relation to other
fractures sustained, than A[…], and their brain injuries were
more severe than his.
[18]
Having duly considered the arguments and records as indicated, and
the sequelae of the injuries
and the permanent effects thereof on the
life of A[…] from the time he was 12 years old, I am of the
view that an appropriate
amount for general damages is R1 250 000
(one million two hundred and fifty thousand rand).
[19]
I received a draft order prepared by Mr
Pillemer,
which was
handed up in court. I then, in preparing this judgment, noticed that
it made provision for interest at a much higher rate
than the legal
rate, both in relation to capital and to costs. I then considered the
particulars of claim to see what interest
had been claimed, and
discovered that no provision for any interest had been made, and the
prayer was as follows:
‘
a.
Payment of the sum of R5 000 000.00
b.
Costs of suit;
c.
Vat at the prescribed rate;
d.
Other and or alternative relief.’
[20]
Mr
Pillemer
did
not sign the particulars of claim and is not responsible for the
failure to claim any interest. Nevertheless, the plaintiff
is
entitled to interest on the judgment debt, as I am confident that
both sides had not noticed the omission. Because the rate
in the
draft order was for 11.75%, whereas the last gazetted rate was
7.75%,
[13]
I requested
submissions from both counsel on what the correct rate should be.
[21]
Interest on a debt that is not regulated by other law or agreement is
calculated at the rate
of the repurchase rate plus 3.5% per annum in
terms of the provisions of
s 1(1)
read with
s 1(2)
(a)
of the
Prescribed Rate of Interest Act 55 of 1975
.
Section 1(2)
(b)
provides that the minister of justice must, whenever the repurchase
rate is adjusted, publish the amended rate of interest in the
Government Gazette
. The gazetted rate is effective from the
first day of the second month following the determination of the
repurchase rate, according
to
s 1(2)
(c)
.
[22]
It is my view that on an ordinary meaning of the words, the interest
rate in subsection 1(2)
(a)
is not
dependant on the minister publishing an amended rate, as the
prescribed rate is based on the repurchase rate set by the South
African Reserve Bank (‘SARB’), and
section 1(2)
(c)
links
the effective date of the prescribed rate to the SARB determination
and not the ministerial publication.
[14]
The failure of the minister to publish the amended rate as required
by
section 1(2)
(b)
does
not have the effect of keeping the prescribed rate unchanged.
[23]
The response submitted by Mr De Sousa (plaintiff’s attorney) in
response to my request
for submissions, was in similar vein to what I
have expressed in paragraphs 21 and 22 of this judgment, and he added
that the latest
repurchase adjustment was made in May 2023, and went
up to 8.25%. He attached a ‘screenshot’ from the SARB
website,
which further indicated that the ‘prime rate’ is
11.75%. No response was submitted on behalf of the defendant.
[24]
In the result I make the following order:
1.
The defendant is directed to pay to the plaintiff the sum of
R 2 513
541.35 (two million five hundred and thirteen thousand five hundred
and forty-one rand and thirty-five cent) in full and
final settlement
of the plaintiff’s claim for loss of earnings and general
damages within 180 days from the date of this
order.
2.
The defendant is directed to provide the plaintiff with an
Undertaking in terms of
Section 17(4)
(a)
of the
Road Accident
Fund Act 56 of 1996
for the costs of all future accommodation of A[…]
M[…] N[…] in a hospital or nursing home or hospital and
medical treatment, or the rendering of a service or the supplying of
goods to him, arising out of the injuries he sustained in the
motor
vehicle collision that occurred on 21 April 2019 and to compensate
him therefor after they have been incurred.
3.
Should payment of the amount referred to in paragraph 1 hereof
not be
made within 180 days from the date hereof, the defendant is directed
to pay interest on the said amount at the rate of 11.75%
per annum
calculated from 181 days from date hereof to date of payment.
4.
The defendant is directed to make payment of the plaintiff’s
taxed or agreed party and party costs up to 13 November 2023 on the
High Court scale, which costs shall include the costs of plaintiff’s
counsel, attorney and the expert witnesses as determined by the
taxing master or agreed.
5.
The plaintiff is directed, in the event of the aforementioned
costs
not being agreed to:-
5.1
to serve the Notice of Taxation on the defendant; and
5.2
allow the defendant 180 days to make payment of the taxed costs.
6.
The defendant is directed to pay interest on the taxed costs
referred
to in paragraph 5 hereof at the rate of 11.75% per annum calculated
from 181 days of the taxation and/or settlement of
the costs to date
of payment.
7.
The defendant is directed to make the payment referred to in
paragraph 1 above directly to the Trust Account of the plaintiff’s
attorneys, namely A C De Sousa Attorneys, at:-
Account
name: DE SOUSA A C
Bank:
First National Bank
Branch
code:
2[…]
Account
no:
6[…] Cheque Account
____________________
Sibiya
J
APPEARANCES
Counsel for the
Plaintiff
: Adv
R Pillemer
Instructed
by
: A C De Sousa Attorneys
jade@acdsattorneys.co.za
;
tony@acdsattorneys.co.za
Counsel for
Defendant
: Ms S Moodley
Instructed
by
: State Attorney
shatelm@raf.co.za
Date of Hearing
: 13 November 2023
Date of Judgment
: 16 November 2023
[1]
The
papers: Expert Notices and Reports at 43.
[2]
Maribeng v
Road Accident Fund
[2019]
ZAGPPHC 1050; 2021 (8A4) QOD 39 (GNP).
[3]
Moneuoa
v Road Accident Fund
[2020]
ZAGPPHC 818; 2021 (8A4) QOD 68 (GNP).
[4]
Pietersen
obo J St I v Road Accident Fund
[2011]
ZAGPJHC 73; 2012 (6A4) QOD 88 (GSJ).
[5]
Minnie
NO v Road Accident Fund
2012
(6A4) QOD 82 (GSJ).
[6]
Matthyssen
v Padongelukkefonds
1999
(4B4) QOD 23 (T);
1999
4 QOD B4-23 (T).
[7]
Hurter
v Road Accident Fund and another
[2010]
ZAECPEHC 5; 2010 (6A4) QOD 12 (ECP).
[8]
Smit
NO v The Road Accident Fund
2006 (5B4)
QOD 251 (T);
2006
(5) QOD B4-251 (T).
[9]
Myhill
NO (obo RC Penga) v Road Accident Fund
[2008]
ZAGPHC 279
; 2008 (5B4) QOD 271 (T).
[10]
Ms
Moodley
had
written R1 622 000 but I have used the 2023 amount in terms of P
Corbet, C Potgieter and J Daffue
Quantum
of Damages in Bodily and Fatal Injury Cases
(Revision
Service 5, June 2023).
[11]
Torres
v Road Accident Fund
2010
(6A4) QOD 1 (GSJ).
[12]
Ms
Moodley
wrote
R1 447 000 but I have used the 2023 value in terms of P Corbet, C
Potgieter and J Daffue
Quantum
of Damages in Bodily and Fatal Injury Cases
(Revision
Service 5, June 2023).
[13]
See
GN 2378,
GG
46739
of 19 August 2022. However, it should be noted that this notice, as
well as the two previous notices, namely GN 2345.
GG
47197
of 5 August 2022, and GN 2326,
GG
47133
of 29 July 2022, all read exactly the same.
[14]
Judicial Matters Amendment Bill B 2B—2015, ISBN
978-1-4850-0260-4, see para 3.3 in the Memorandum on the objects of
the
Judicial Matters Amendment Bill, 2015.