Summary of Judgment

1. Introduction

The proceedings concerned a claim for delictual damages arising from a motor vehicle collision, instituted against the Road Accident Fund (the RAF) in terms of the statutory scheme governing compensation for road accident injuries. The matter came before the Gauteng Division, Pretoria, as a quantum determination following prior procedural developments that left the RAF effectively unopposed on quantum.

The plaintiff, Mr Vernon Andre de Jager, instituted action for damages for personal injuries sustained when an insured vehicle collided with him while he was a pedestrian on 7 November 2008. The defendant was the Road Accident Fund, cited in its capacity as the statutory compensator.

As to the procedural history, summons was issued and served, and the RAF initially appointed attorneys to defend the action. The RAF’s attorneys later withdrew. The plaintiff thereafter served documents (including the notice of set down) electronically. On 31 October 2022, an order was obtained striking out the RAF’s defence with costs, with the consequence that the matter thereafter proceeded on the basis of default judgment on quantum. The question of liability (merits) had, however, already been resolved earlier: on 7 March 2018, the parties reached settlement on the basis that the RAF would be liable for 70% of the plaintiff’s proven or agreed damages, and an order to that effect was granted.

The general subject matter of the dispute was the appropriate compensation payable for the plaintiff’s accident-related injuries, specifically loss of earnings/earning capacity and general damages, together with the statutory undertaking for future medical and related expenses.

2. Material Facts

It was common cause, and procedurally uncontested at the quantum stage, that the collision occurred on 7 November 2008 when an insured vehicle collided with the plaintiff while he was a pedestrian. The RAF’s liability for the accident had been determined by agreement and court order on an apportionment basis of 70% in favour of the plaintiff.

Following the accident, the plaintiff was transported by ambulance to Barberton Hospital, where he was admitted for approximately three weeks. He underwent X-rays, and treatment included debridement and suturing of the right leg. There was no bone union, and an external fixator was inserted for about eight weeks. The plaintiff developed sepsis, leading to removal of the external fixator. He was transferred to Witbank Hospital for about one month, where sepsis recurred and a nail was removed approximately nine weeks later. The plaintiff had been walking with a crutch since then.

On the orthopaedic evidence summarised in the judgment, the plaintiff sustained an open fracture of the right tibia and fibula, a head injury, and back pain. The plaintiff reported that amputation had been suggested, but he remained hopeful that the leg would heal. An orthopaedic assessment recorded a 43 mm shortening, persistent non-union, and a fracture contracture of the ankle.

The occupational evidence accepted by the court reflected that the plaintiff’s pre-accident work as a fitter and turner fell within the heavy physical demand category, with only a partial job match post-injury. The industrial psychological opinion relied on by the court was that the plaintiff experienced significant occupational limitations rendering him incapable of securing permanent employment at earnings aligned with his work experience, because his acquired skillset fell beyond his residual physical capacity. It was considered unlikely that he would maintain his then-current employment at Malanguza Vehicles Maintenance & Towing beyond age 60 (in 2025), after which he would likely be vulnerable to prolonged unemployment for the remainder of his working life.

In relation to general damages, it was recorded as common cause that the RAF elected to accept the RAF 4 assessment report. The plaintiff pursued amended claims for loss of earnings/earning capacity and general damages, and relied on actuarial calculations (incorporating the RAF cap and contingencies) yielding a total loss of earnings figure of R3 585 611 before apportionment.

3. Legal Issues

The central issues for determination concerned quantum, rather than merits. The court was required to decide, on the papers and expert material placed before it, what amounts constituted appropriate compensation for the plaintiff’s accident-related harm, within the framework of the existing 70% apportionment order.

The principal legal questions were the appropriate award for general damages (a discretionary evaluation) and the appropriate award for loss of earnings/earning capacity based on the actuarial and expert evidence (an application of accepted calculations to the established factual and expert premises). The matter therefore involved a combination of application of law to fact (in relation to quantification based on expert reports and actuarial computations) and an essentially value judgment (in relation to general damages, where the court exercises a broad discretion).

A further issue concerned the appropriate consequential relief, including confirmation and limitation of the section 17(4)(a) undertaking to the 70% apportionment, the timing and mechanics of payment, interest, and costs following the striking out of the defence and the default posture of the proceedings.

4. Court’s Reasoning

The court approached the quantum assessment on the basis of the expert evidence filed, including orthopaedic, occupational therapy, industrial psychology, and actuarial material. The judgment reflects that the plaintiff’s injuries and sequelae were treated as established on the uncontested papers, in a context where the RAF’s defence had been struck out and no appearance was entered for the RAF at the hearing.

On loss of earnings/earning capacity, the court accepted the actuarial computation presented, which was expressly stated to incorporate the RAF cap and contingencies. The total loss of earnings after application of the RAF cap was recorded as R3 585 611. The court then gave effect to the prior apportionment order by limiting the RAF’s liability to 70% of the proven or agreed damages. Consistently with this approach, the amount awarded for this head of damages reflected the apportionment applied to the actuarial total.

On general damages, the court articulated the principle that a court has a wide discretion to award what it considers to be fair and adequate compensation for non-patrimonial loss. The court recorded that it had been referred to a number of prior cases by the plaintiff and stated that it had considered the cases placed before it. Without reproducing those authorities, the court described its task as the exercise of a broad discretion informed by a broad spectrum of factors connected to the plaintiff and the injuries, including the injuries’ nature, permanence, severity, and impact on the plaintiff’s life.

Applying these considerations to the injuries and sequelae described in the medical and expert reports, the court determined that an appropriate award for general damages was R750 000. The court then applied the 70% apportionment, resulting in the amount ordered to be paid for general damages.

In respect of future medical and related costs, the court confirmed that the RAF had furnished an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act and ordered that the undertaking be provided limited to 70%, consistent with the apportionment applicable to the plaintiff’s damages.

The court also made evaluative determinations on ancillary matters, including the time period for payment, the incidence of interest in the event of late payment, the destination trust account for payment, and the recoverable party-and-party costs, including counsel’s fees and specified medico-legal and examination-related expenses.

5. Outcome and Relief

The court granted judgment in favour of the plaintiff on quantum, giving effect to the earlier apportionment order that the RAF was liable for 70% of the plaintiff’s proven or agreed damages arising from the accident of 7 November 2008.

The RAF was ordered to furnish the plaintiff with an undertaking under section 17(4)(a) of the Road Accident Fund Act 56 of 1996, expressly limited to 70%, in respect of qualifying future costs (after such costs are incurred and upon proof thereof) arising from the injuries sustained in the collision.

On general damages, the court determined an appropriate award of R750 000, and ordered payment of R525 000 after application of the 70% apportionment. On loss of earnings/earning capacity, the court ordered payment of R2 509 927,70, reflecting the apportionment applied to the actuarial loss figure recorded in the judgment.

The court ordered that the amounts be paid within 180 days of the order. It further ordered that interest at the prescribed rate would run on any outstanding amount calculated from 14 days after the date of judgment to date of final payment. Payment was directed to be made into the plaintiff attorneys’ specified trust account.

The RAF was ordered to pay the plaintiff’s taxed or agreed party-and-party costs, including costs consequent upon the employment of counsel (including day fee, preparation fees, and drafting of heads of argument), reasonable costs of attending medico-legal examinations, and costs of obtaining medico-legal reports.

Cases Cited

The judgment recorded that the plaintiff referred the court to a number of cases in relation to general damages, but no case names or citations were identified in the text of the judgment.

Legislation Cited

Road Accident Fund Act 56 of 1996, section 17(4)(a).

Rules of Court Cited

Uniform Rules of Court, Rule 28.

Held

The court held that, in light of the prior merits order apportioning liability at 70%, the plaintiff was entitled to payment of 70% of his proven or agreed damages. On the uncontested expert and actuarial material, the court awarded loss of earnings/earning capacity in the amount of R2 509 927,70 and general damages in the amount of R525 000,00, and ordered the RAF to furnish a section 17(4)(a) undertaking limited to 70% for qualifying future expenses. The court further ordered payment within 180 days, interest on late payment calculated from 14 days after judgment, and party-and-party costs including specified medico-legal and counsel-related costs.

LEGAL PRINCIPLES

A court assessing general damages enjoys a wide discretion to award what is fair and adequate compensation, and must consider a broad range of factors connected to the injured person and the injuries, including the injuries’ nature, permanence, severity, and impact on the person’s life.

Where merits have been determined on an apportionment basis, the defendant’s liability for damages and for a section 17(4)(a) undertaking must be limited in accordance with that apportionment, so that the monetary awards and the undertaking correspond to the established percentage of liability.

In quantifying patrimonial loss such as loss of earnings/earning capacity, the court may accept actuarial calculations (including application of the RAF cap and contingencies) where they are supported by the expert record placed before the court and are not displaced by opposing material, and then apply any agreed or ordered apportionment to arrive at the amount payable.