Brief Summary

Delict — Road Accident Fund — Claim for damages — Plaintiff sustained severe injuries in a motor vehicle collision — Settlement reached on merits, court tasked with determining liability and quantum of damages — Plaintiff awarded R1,500,000 for general damages based on extensive medical evidence and impact on quality of life — Court considered similar case law and the nature of injuries in assessing fair compensation.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an action for delictual damages instituted in the High Court of South Africa, Gauteng Division, Pretoria, arising from a motor vehicle collision. The plaintiff, Felicity Susan Burts, sued the defendant, the Road Accident Fund, for compensation in terms of the Road Accident Fund Act 56 of 1996.

The matter proceeded in circumstances where the merits had been settled at 100% in favour of the plaintiff, as reflected in a discharge form signed on 3 September 2018. The judgment indicates that the court was required to determine the remaining issues necessary to finalise the defendant’s liability for payment, which in substance concerned the quantification of aspects of the plaintiff’s damages and related relief.

Procedurally, the defendant’s defence was struck out for non-compliance with a case management directive (a TIC court order) granted by Flatela AJ on 15 November 2021. The hearing proceeded on the basis of argument presented for the plaintiff, with no appearance for the defendant. The court ultimately made an order in terms of a draft order (as amended) marked “X”.

The general subject-matter of the dispute concerned the appropriate monetary compensation for the plaintiff’s injuries, specifically general damages, whether the plaintiff had proved a compensable loss of earnings and/or earning capacity, the issuing of a statutory undertaking for future medical expenses, and whether compensation should be protected by payment into a trust.

2. Material Facts

The collision occurred on 21 September 2017. At the time, the plaintiff was 48 years old (and was 52 years old at the time the matter was determined). The court accepted that she sustained multiple serious injuries, including a moderate to severe concussive head injury, a base of skull fracture, multiple facial fractures affecting the orbit and zygoma, loss of dentition, cervical spine injury, bilateral hearing loss, facial lacerations with a substantial facial scar, soft tissue injuries (including knees and lumbar spine/pelvic region), left foot injury, and psychological sequelae including post-traumatic stress disorder, anxiety, and major depressive disorder.

The plaintiff received acute medical treatment immediately after the accident. She was admitted to Katleho Windburg District Hospital, transferred to Pelonomi Provincial Hospital, and later to Metsimaholo Hospital in Sasolburg. The court recorded that she received medication, imaging (including X-rays and a CT scan), and suturing, and was hospitalised for a total of four days, with follow-up sessions thereafter.

The court also relied on the plaintiff’s reported ongoing complaints and sequelae, including pain (notably in the knees and back), headaches, hearing impairment, visual disturbances, pelvic pain, episodic neck pain, forgetfulness, balance difficulties, and cognitive and executive functioning difficulties. Future medical needs were recorded as likely to include conservative and surgical treatment, therapies, medication, cognitive behavioural therapy, scar revision and reconstructive procedures, and cataract surgery.

As to employment circumstances relevant to the claim for loss of earnings, the court treated as material that the plaintiff was unemployed at the time of the accident, and had been out of employment for a period of over two years. The court accepted that she had resigned, taken an early retirement package, and invested in a business venture that failed. The court emphasised that the plaintiff did not place before it key information about the package and the business, including the amount received, whether she drew a salary, and how and when funds were lost. The court also relied on the absence of evidence that the plaintiff had been seeking work prior to the accident, and noted shortcomings in the assumptions used by the actuary and industrial psychologist insofar as they depended on unproven pre-accident income and employment prospects.

The plaintiff relied on a suite of medico-legal reports. The court recorded that the defendant did not file expert reports to controvert the plaintiff’s expert evidence.

3. Legal Issues

The central legal questions requiring determination were whether, on the evidence before it, the court should award the plaintiff general damages, and if so in what amount, and whether the plaintiff had proved a compensable loss of income and/or earning capacity notwithstanding that she was unemployed at the time of the accident.

A further issue concerned the form of relief relating to future medical expenses, namely whether the defendant should be directed to furnish an undertaking under section 17(4)(a) of the Road Accident Fund Act, and whether the capital amount should be protected through payment into a trust (as proposed in the plaintiff’s draft order), or paid directly for deposit into the plaintiff’s attorneys’ trust account for onward payment.

The dispute thus involved the application of legal principles to the facts, including evaluative judgment in the quantification of general damages, and a fact-sensitive inquiry into whether the plaintiff discharged the onus of proving loss of earnings. The quantification of damages (both general and patrimonial) implicated discretionary assessment within recognised legal bounds, with the court also considering fairness to both parties.

4. Court’s Reasoning

On general damages, the court accepted the standard approach that an award must be determined by broad considerations and is not susceptible to precise calculation. It accepted that comparative awards may provide guidance, while recognising that it is difficult to find cases “on all fours” with the particular combination of injuries in any given matter. The court understood its task as exercising a broad discretion to award compensation that was fair and adequate in light of the nature, severity and permanency of the injuries and their impact on lifestyle, including pain and suffering, disfigurement, and disability.

The court considered the plaintiff’s multiple injuries and sequelae as described in the expert reports and had regard to comparative case authorities cited on behalf of the plaintiff. It concluded that an award of R1 500 000.00 constituted fair and reasonable compensation in the circumstances.

On the claim for loss of income and/or earning capacity, the court distinguished the general proposition that future loss assessments are inherently speculative (as discussed in authority) from the evidential burden resting on a plaintiff to prove the factual basis for such loss. The court placed weight on the plaintiff’s employment status at the time of the accident, namely that she had not been employed for over two years and thus had no demonstrated income stream interrupted by the collision.

The court reasoned that, because the plaintiff had resigned, taken an early retirement package, and then entered a business venture that failed, the court required disclosure of details relevant to the “but for” position and the quantification of loss. In the court’s view, the plaintiff did not take the court into her confidence regarding the amount of the retirement package, the financial trajectory of the business, whether she earned from it, or the timing and extent of any losses. The actuarial calculations were criticised for proceeding on assumptions about prior income and for not properly incorporating the undisclosed package, and the court regarded the exercise as speculative in a manner not justified by the evidential foundation.

The court further reasoned that awarding loss of earnings in a situation where income was not proven, and where unemployment pre-dated the collision for a significant period, would not align with the compensatory principle of restoring the plaintiff to the position she would have been in but for the accident. It also stressed the need for fairness to both parties and cautioned against making an award that would amount to unjustified largesse at the defendant’s expense.

In relation to future medical expenses, the court treated it as settled that the defendant should provide the statutory undertaking in terms of section 17(4)(a), given the nature of the injuries and the likelihood of future treatment.

As to the plaintiff’s proposal that funds be paid into a trust, the court recorded that counsel did not address it on why such protective structuring was necessary. Having considered the injuries and circumstances, the court found no basis to order that the award be paid into a trust and directed that payment be made without that mechanism.

5. Outcome and Relief

The court made an order in terms of the amended draft order marked “X”. The defendant’s defence was struck out for non-compliance with the TIC order, and the defendant was held liable to pay 100% of the plaintiff’s proven or agreed damages in accordance with the discharge form dated 3 September 2018.

The plaintiff was awarded general damages in the amount of R1 500 000.00. The plaintiff’s claim for loss of earnings was dismissed. The defendant was directed to provide an undertaking under section 17(4)(a) of the Road Accident Fund Act for future medical-related expenses arising from the collision, to be paid after the costs have been incurred and on proof thereof.

The monetary award was ordered payable within 180 days by deposit into the plaintiff’s attorneys’ trust account (details set out in the order). The defendant was not liable for interest if payment was made within that period; failing timeous payment, interest would accrue at the prescribed rate from date of the order to date of final payment. The defendant was also ordered to pay the plaintiff’s taxed or agreed party-and-party costs on the High Court scale, with interest on costs if not paid within 14 days after service of the taxed bills.

The court declined to order that the capital amount be secured by payment into a separate trust as sought in the draft order.

Cases Cited

Elizabeth Makubere Litseo v Road Accident Fund (Case number 5637/2016) (Free State Division, unreported, 2019).

Road Accident Fund v Marunga 2003 (5) SA 164 (SCA).

Bouwer NO obo NWS v Road Accident Fund 2019 (7H3) QOD 1 (GNP).

Fredericks v Union and Southwest Africa Insurance Co Ltd 1972 (2J2) QOD 335 (E).

Zarrabi v The Road Accident Fund 2006 (5B4) QOD 231 (T).

Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A).

Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194.

Hersman v A Shapiro & Co 1926 TPD 367.

Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (D).

Road Accident Fund v Reynolds (A5023/04) [2005] ZAGPHC 19 (18 February 2005).

Legislation Cited

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

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, given the plaintiff’s serious multiple injuries and sequelae, an award of R1 500 000.00 for general damages was fair and reasonable when assessed with reference to the flexible and discretionary approach recognised in the authorities and comparative awards.

The court held that the plaintiff failed to prove a compensable loss of earnings and/or earning capacity, primarily because she was unemployed at the time of the collision, had been unemployed for an extended period before it, and did not provide necessary disclosure and proof concerning her prior income position, retirement package, and the financial consequences of her failed business venture. The actuarial assessment was treated as speculative in the absence of a reliable factual foundation.

The court held that the defendant should furnish an undertaking under section 17(4)(a) for future medical expenses arising from the accident, but that there was no demonstrated basis to order that the capital award be paid into a separate trust structure.

LEGAL PRINCIPLES

The quantification of general damages involves a broad discretion and is determined by broad considerations of fairness; comparative awards may guide but are not determinative, and exact equivalence between cases is seldom attainable.

Awards for personal injury must reflect fairness to both parties, providing just compensation to the plaintiff while avoiding overcompensation at the defendant’s expense.

A claim for loss of earnings or earning capacity requires proof of the factual foundation for the alleged loss. Although the assessment of future loss may be inherently speculative, a court is not justified in making an award where the plaintiff has not provided sufficient evidence enabling the court to estimate the loss on a defensible basis.

Where future medical treatment is likely, the Road Accident Fund’s obligation is commonly addressed through the statutory mechanism of an undertaking under section 17(4)(a) of the Road Accident Fund Act 56 of 1996, covering qualifying future medical-related expenses after they are incurred and on proof thereof.

Burts v Road Accident Fund (60234/2019) [2022] ZAGPPHC 88 (1 February 2022)