Summary of Judgment

1. Introduction

The matter concerned a Road Accident Fund (RAF) damages claim arising from a motor vehicle collision in which a minor child was knocked down as a pedestrian. The proceedings served before the High Court of South Africa, Gauteng Division, Pretoria, and were determined by Ally AJ.

The plaintiff was Adv. O.C. Legae, acting as curator ad litem on behalf of the minor child, E.C (name redacted in the judgment). The defendant was the Road Accident Fund.

The matter proceeded by default after the plaintiff obtained an order authorising default proceedings. Although the defendant’s defence was not pursued and there was no representation for the defendant at the hearing, the court emphasised that it remained incumbent on the plaintiff to prove the claim and establish the quantum of damages on the evidence placed before the court, including affidavits and expert reports filed under the applicable practice directives and uploaded on CaseLines.

The general subject-matter of the dispute was the determination of quantum for a minor pedestrian who sustained serious injuries, including whether the injuries were serious for purposes of general damages, the appropriate amount for general damages, the correct approach to quantifying future loss of earnings, and whether the award should be managed through the establishment of a trust, together with a statutory undertaking under the RAF legislation.

2. Material Facts

On 4 September 2017, the minor child (born 4 June 2013, and therefore 4 years old at the time) was involved in a motor vehicle collision while she was a pedestrian crossing a road. A motor vehicle with registration details recorded in the judgment struck the child.

The court treated the issue of merits as disposed of on the basis that the child was doli incapax at the time of the incident. The result was that the defendant was held 100% liable for the minor child’s proven damages.

On the medical facts relevant to quantum, the court accepted, on the basis of the hospital records and expert material (including an orthopaedic surgeon’s RAF 4 report), that the child’s injuries were serious. The injuries recorded by the court as resulting from the collision were a head injury, brain oedema and haemorrhage, a left skull fracture, facial lacerations, blunt abdominal trauma, and a right hand injury.

For purposes of assessing future loss of earnings, the court noted that expert reports recorded that the child had attended crèche prior to the collision, and that she stopped attending after the collision. The court highlighted that the reports did not reflect any meaningful attempt to determine the child’s level of pre-collision functioning or acumen while she attended crèche, despite the mother’s indication that the child attended crèche from 2014.

3. Legal Issues

The central legal questions concerned the quantification of damages in default proceedings where merits were treated as resolved. The court was required to determine, on the evidence, what constituted a fair and reasonable award for general damages and what approach should be adopted to the assessment of future loss of earnings in circumstances where competing career/earnings scenarios had been modelled.

The dispute primarily involved the application of law to fact and evaluative judgment. In relation to general damages, the court had to apply the established approach that comparative awards are guides but not binding, and then exercise a discretion to set an appropriate amount. In relation to future loss of earnings, the court had to evaluate the probabilities underlying expert assumptions, select between alternative actuarial/industrial psychological scenarios, and determine appropriate contingencies.

A further issue of remedy and case management arose in relation to whether the award should be protected through the establishment of a trust, and what the content and scope of the RAF’s section 17(4)(a) undertaking should include, particularly regarding costs associated with trust creation and administration.

4. Court’s Reasoning

On general damages, the court accepted that the plaintiff relied on comparative case law to motivate for an award of R1,400,000.00. The court reiterated the principle that comparative cases serve as a guide, and that a court is not bound by prior awards. Having considered the comparative authorities referred to in argument, the court concluded that the proposed amount of R1,400,000.00 was fair and reasonable in the circumstances of this matter.

On future loss of earnings, the plaintiff contended for the application of scenario 2 in the industrial psychological and actuarial materials, which was presented as the most probable scenario by the industrial psychologist. The court approached this assessment mindful of the caution expressed in authority that sympathy for a claimant should not influence the outcome. The court evaluated the expert reasoning and focused on the foundations of the assumed educational and occupational trajectory.

In particular, the court was critical of a postulation in the educational and industrial psychological reports that, based on “current trends,” children advance further than their parents, noting that this assertion was made without supporting research. The court regarded this as unhelpful and not capable of acceptance “without more evidence.” The court accepted that the industrial psychologist set out two scenarios, but the court did not accept that scenario 2 was shown, on the available evidence, to be the most probable in the child’s circumstances.

The court further reasoned that, although the reports indicated that the child attended crèche, there was a lack of evidence addressing the child’s pre-morbid functioning and ability during that period. Given that the child allegedly attended crèche from 2014 and stopped after the collision, the court considered that more should have been done to identify her pre-accident level of acumen. This evidentiary gap formed part of the court’s probability assessment when deciding which future earnings scenario was more consistent with the proven facts.

Having regard to these considerations, the court concluded that scenario 1 of the industrial psychologist’s report was “more in keeping with the probabilities.” The court then accepted that the contingencies proposed by plaintiff’s counsel were not unreasonable, and directed that they be applied to the actuary’s calculation based on scenario 1A, resulting in an award for future loss of earnings of R4,274,891.00, which the court found fair and reasonable.

On the management and protection of the award, the court noted that the establishment of a trust had not been addressed in counsel’s heads of argument, but that it was dealt with in the curator ad litem’s report, which recommended a trust. The court agreed with the recommendation and recorded that the minor child’s mother also agreed, as reflected in the curator ad litem’s report. The court then incorporated detailed provisions into the order for the creation of a trust, including governance requirements and oversight mechanisms, and linked the RAF’s undertaking to reasonable costs of establishing and administering the trust, subject to a limitation equating those costs to what could be claimed by a curator bonis.

5. Outcome and Relief

The court held the defendant liable for 100% of the minor child’s proven damages. It awarded a total amount of R5,674,891.00, comprising R1,400,000.00 for general damages and R4,274,891.00 for future loss of earnings.

The court ordered the defendant to pay the capital amount into the plaintiff attorneys’ trust account pending the establishment of a trust, and directed the defendant to furnish an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 for 100% of the minor child’s future medical and related costs arising from the collision, after such costs are incurred and proven. The undertaking was ordered to include reasonable trust establishment, administration, and security costs, subject to the limitation described in the order.

The court directed that a trust be established in terms of the Trust Property Control Act 57 of 1988, with the minor child as sole beneficiary, security to the Master’s satisfaction, vesting of trust property in the trustees, dispute-resolution provisions subject to court review, controlled amendment requiring leave of court, termination upon the minor’s death with assets passing to her estate, and annual audit requirements. It further authorised payment of specified fees and expenses (including experts, counsel, and the curator ad litem) from the funds held, and provided oversight mechanisms regarding attorneys’ fees, including potential taxation at the insistence of the Master or trustees.

The order required service on the Master of the High Court within 30 days. The capital amount was ordered to be paid within 180 days, failing which the defendant would be liable for interest a tempore morae at the prescribed rate calculated as set out in the order.

The defendant was ordered to pay the plaintiff’s party-and-party costs, including the costs of the expert witnesses (reports, addenda, and preparation fees if any), counsel’s costs, and the costs of the curator ad litem.

Cases Cited

Hulley v Cox 1923 AD 234.

Khokho v Road Accident Fund 2019 FSHCB.

Minnie NO v Road Accident Fund 2012 (6A4) QOD 82 (GSO).

Cordeina v Road Accident Fund 2011 (6A4) QOD 45.

Kgomo v Road Accident Fund 2011 (6A4) QOD 62.

Pietersen NO v Road Accident Fund 2012 (6A4) QOD 88.

Legislation Cited

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

Trust Property Control Act 57 of 1988.

Administration of Estates Act (section 77).

Rules of Court Cited

No specific uniform rules of court were cited in the text of the judgment. The judgment referred generally to the filing of affidavits in accordance with applicable directives and the uploading of material on CaseLines.

Held

The court held that, because the minor child was doli incapax, the Road Accident Fund was liable for 100% of the minor child’s damages proved in the default proceedings.

The court held that an award of R1,400,000.00 for general damages was fair and reasonable having regard to comparative awards as a guide.

The court held that, on the probabilities and given the evidentiary foundation of the expert assumptions, scenario 1 (and the actuary’s scenario 1A computation with the proposed contingencies) was the appropriate basis to assess future loss of earnings, yielding R4,274,891.00.

The court held that the award should be protected through the establishment of a trust and that the RAF should furnish a section 17(4)(a) undertaking covering future medical-related costs and specified reasonable trust-related costs subject to the stated limitation.

LEGAL PRINCIPLES

The judgment applied the principle that, even where a matter proceeds by default, a plaintiff remains required to prove the case on the evidence presented, particularly in relation to quantum.

In assessing general damages, the judgment applied the established approach that comparative case awards are guides that assist the court but do not bind it; the court must ultimately exercise a discretion to determine what is fair and reasonable in the circumstances.

In assessing future loss of earnings, the judgment applied the principle that the court must evaluate expert evidence and assumptions against the probabilities supported by the record, and that adjudication should not be influenced by sympathy for the claimant. Where expert postulations are advanced without adequate evidentiary foundation, the court may decline to accept them and may prefer an alternative scenario that better accords with the proven facts.

The judgment applied the mechanism of a statutory undertaking under section 17(4)(a) of the Road Accident Fund Act 56 of 1996 to secure payment of future medical and related expenses, and recognised the appropriateness, in a minor’s claim of this nature, of protecting and administering the award through a trust established under the Trust Property Control Act 57 of 1988, with oversight measures including security to the Master and audit requirements.