Z.S obo Minors v Road Accident Fund (2022/21891) [2023] ZAGPJHC 1173 (17 October 2023)

80 Reportability

Personal Injury Law - Road Accident Fund

Brief Summary

Tort — Road Accident Fund — Dependent's claim — Plaintiff, a nurse, sought default judgment against the Road Accident Fund on behalf of her two minor children following the death of their father in a motor vehicle collision caused by the insured driver's negligence — Court found that the plaintiff established on a balance of probabilities that the insured driver failed to take reasonable steps to avoid the collision, thereby satisfying the requirements for a dependent's claim — Quantum of damages assessed based on actuarial calculations for loss of support.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings concerned an application for default judgment in the High Court of South Africa, Gauteng Division, Johannesburg. The plaintiff, Z S acting on behalf of her two minor children, pursued a dependants’ claim for loss of support against the defendant, the Road Accident Fund.

The procedural history was that the plaintiff issued summons for damages arising from the death of the minor children’s father in a motor vehicle collision. It was common cause that, after receipt of the summons, the defendant did not enter an appearance to defend. The matter therefore served before the court as an application for default judgment, although the defendant was legally represented at the hearing.

The general subject-matter of the dispute was whether the plaintiff had placed sufficient evidence before the court to establish, on a balance of probabilities, that the collision was caused (at least to the minimal extent required) by the negligence of the insured driver, and, if so, the quantification of the minor children’s loss of support.

2. Material Facts

The plaintiff was a 35-year-old nurse who instituted the claim on behalf of her two minor children, described in the pleadings as being between 6 and 10 years old. The court treated it as common cause that the two children, S (born 12 September 2013) and A (born 15 August 2017), were the biological children of the deceased, T P D, and that the deceased owed them a duty of support.

The collision in which the deceased died was pleaded as having occurred at about 00:10 on 31 May 2021, when the deceased sustained fatal injuries after the vehicle he was driving collided with another vehicle travelling in the opposite direction. The claim was advanced on the basis that the collision was caused by the sole negligence of the driver of a Nissan bakkie, identified as Mr B Z (referred to in the judgment as “the insured driver”).

The plaintiff led the evidence of Bhekiziza Magubane, who testified that he was a passenger on the back of an Opel Corsa bakkie driven by the deceased, travelling on the road between Inyathi and Dundee around midnight. He described the road as having a single lane in each direction divided by broken white lines, with dark visibility and no street lights.

Mr Magubane’s account was that an oncoming vehicle approached with bright lights, flashing, and that the collision occurred after the deceased’s vision was blurred by those bright lights, resulting in a head-on collision. He testified that he lost consciousness and regained it at the hospital.

A disputed aspect (as it arose in cross-examination and argument) concerned the reliability of Mr Magubane’s version. He conceded that he had consumed alcohol on the day, and he could not confirm whether the deceased had been under the influence of alcohol. He also stated that a police statement bearing his signature was prepared for him by a police officer, and he denied that it correctly reflected how the collision occurred.

On quantum, the plaintiff relied on documentary material including a payslip/salary information indicating that the deceased earned a gross amount of R 9 202.00 and had other benefits (including housing allowance, medical aid, and overtime bonus), as well as an actuarial report calculating the minor children’s loss of support under two scenarios, namely dependency to age 18 and dependency to age 21. The actuarial calculations applied contingencies of 5% for past loss and 15% for future loss.

3. Legal Issues

The central legal questions were whether the plaintiff had established, on the evidence presented for default judgment, that the insured driver was negligent in a manner that was causally linked to the collision, and whether that negligence sufficed for liability in a dependants’ claim (noting that the plaintiff needed only prove minimal negligence in the insured driver’s conduct).

A further legal question concerned the requirements for a dependants’ action: whether the minor children fell within the class of persons entitled to claim loss of support, which depended on whether the deceased owed them a legally enforceable duty of maintenance and support.

On quantum, the principal issue was the appropriate basis on which to quantify the minor children’s loss of support, specifically whether the court should accept the actuarial calculation premised on dependency up to age 18 or up to age 21, and whether the proposed contingencies and assumptions should be accepted.

The dispute therefore involved an application of legal principles to factual findings, together with an evaluative component in the negligence enquiry and in the selection of assumptions relevant to the quantification of loss of support.

4. Court’s Reasoning

On liability, the court approached negligence with reference to the two-stage enquiry articulated in the authorities it quoted, namely reasonable foreseeability of harm and whether a reasonable person would take steps to guard against the occurrence, including the related notion of a duty to take reasonable steps. The court emphasised that the negligence enquiry ultimately required an assessment of responsibility based on all relevant circumstances and involved a value judgment balancing considerations such as the risk created, the gravity of consequences, and the burden of eliminating the risk.

The court noted that, although the defendant led no oral evidence, that did not automatically entail that the plaintiff’s evidence had to be accepted. The court considered itself obliged to assess whether the evidence placed before it was credible and reliable.

In assessing Mr Magubane’s evidence, the court accepted, on an inferential basis, that the deceased could have been blinded by the oncoming vehicle’s bright lights. It held that, as a matter of law, every motorist has a duty to keep a proper lookout and take steps to avoid an accident. The court considered that the insured driver’s flashing of headlights suggested that he could see the deceased’s vehicle encroaching into his lane and could have taken reasonable steps to avoid the collision. The court found that the witness testified truthfully and honestly and did not exaggerate his evidence. On the objective facts, it concluded that the plaintiff had established on a balance of probabilities that the insured driver failed to avoid the collision when, by the exercise of due and reasonable care, he could and should have done so.

On quantum, the court treated it as not in dispute that the two minor children were born of the relationship between the plaintiff and the deceased and that the deceased had been gainfully employed and had a duty to maintain the children. The court relied on the principle that a dependants’ action aims to place dependants, regarding maintenance, in the position they would have been in had the deceased not been killed, and that the claim is available only to dependants to whom the deceased owed a legally enforceable duty of support.

Having accepted the existence of a legally enforceable duty of support, the court turned to the actuarial report. The report calculated loss of support on two scenarios: dependency until age 18 and dependency until age 21. The court took into account that the deceased would have turned 33 years old in November 2023 and regarded him as a young person with no evidence that he was sickly. The court expressed the view that the deceased would have been able to support the minor children beyond age 18 and assist them through tertiary education. It therefore accepted the plaintiff’s submission to adopt the actuarial calculation on the age 21 dependency scenario, resulting in an assessed past and future loss of R 1 188 052.00.

5. Outcome and Relief

The court granted judgment in favour of the plaintiff by default.

The defendant was ordered to pay R 1 188 052.00 within 180 days of the order. Interest was awarded on that amount at 8.55%, calculated from 14 days from the date of judgment to date of final payment.

The defendant was ordered to pay the plaintiff’s taxed or agreed party-and-party costs, including the costs of expert witnesses and the employment of counsel.

Cases Cited

McIntosh v Premier, Kwazulu-Natal and another [2008] JOL 21806 (SCA)

Kruger v Coetzee 1966 (2) SA 428 (A)

Cape Metropolitan Council v Graham 2001 (1) SA 1197 (SCA)

Paixao and another v Road Accident Fund [2012] 4 All SA 262 (SCA)

Legislation Cited

No legislation was expressly cited in the judgment.

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The court held that, despite the matter proceeding by default and the absence of oral evidence from the defendant, it remained necessary to assess the plaintiff’s evidence for credibility and reliability. On the evidence presented, the court accepted that the collision was caused by the insured driver’s failure to take reasonable steps to avoid the accident, in circumstances where the insured driver’s use of bright and flashing headlights could have impaired the deceased’s vision and where the insured driver could have reacted to prevent a head-on collision.

The court further held that the deceased owed the minor children a legally enforceable duty of maintenance and support, entitling them to pursue a dependants’ claim. On the actuarial evidence, and having regard to the deceased’s age and anticipated ability to support the children beyond 18 years, the court accepted the dependency-to-21 scenario and awarded damages of R 1 188 052.00, together with interest and costs.

LEGAL PRINCIPLES

The judgment applied the established negligence framework associated with Kruger v Coetzee 1966 (2) SA 428 (A), as discussed in McIntosh v Premier, Kwazulu-Natal and another [2008] JOL 21806 (SCA). Negligence entails a twofold enquiry: whether harm was reasonably foreseeable and whether a reasonable person would have taken steps to guard against it, with the second enquiry often framed in terms of a duty and involving an evaluative balancing of relevant circumstances, including the risk created, the gravity of consequences, and the burden of avoiding harm.

In evaluating liability in an unopposed or default setting, the judgment proceeded on the principle that the absence of defence evidence does not, without more, compel acceptance of the plaintiff’s version; the court must still assess whether the plaintiff’s evidence is sufficiently credible and reliable to discharge the onus on a balance of probabilities.

In relation to quantum for loss of support, the judgment applied the characterisation of the dependants’ action described in Paixao and another v Road Accident Fund [2012] 4 All SA 262 (SCA): the remedy aims to place dependants in the position they would have been in regarding maintenance had the breadwinner not been killed; it is a claim derived from the dependant’s loss rather than through the deceased’s estate; and it is available only where the deceased owed the claimant a legally enforceable duty of support.