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[2021] ZAGPPHC 365
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A.M.M v Road Accident Fund (11809/19) [2021] ZAGPPHC 365 (31 May 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 11809/19
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISE:YES/NO
A
M
M[…]
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
NTHAMBELENI
AJ
Introduction
[1]
This is a loss of support claim brought by the Plaintiff against the
Defendant in
her
capacity as
wife
of the now deceased T J l[…]
(hereinafter
referred to as
“
the
deceased
”
),
who was fatally injured as a result
of the
motor vehicle accident on the 12th June 2016 at approximately
18h50, at or near House number [….]
[…],
[…]
Street,
[…], Gauteng Province, an accident occurred between a motor
vehicle with registration letters and numbers […],
the insured
motor vehicle there and then being driven by one Mr. Manuel Martihon
(the insured driver) and the deceased who at the
time of the accident
a pedestrian.
[2]
In the
matter before the court, the Plaintiff seeks remedies for the under
settlement of quantum of the loss of support claim in
relation to
herself and L[…]
herein
after referred to as the
“
minor
child
”
born
on the […].
[3]
It is
common cause between the parties that the issue of liability was
settled and furthermore than an amount of R 24 575 (Twenty-Four
Thousand Five Hundred and Seventy-Five Rands) in
“
full
and final settlement
”
was
tendered. This action seeks a determination of the true value
of the loss of income as the amount tendered was not a true
reflection of the true status of the claim or true value of the claim
as envisaged by law.
Evidence
of the Plaintiff
[4]
The
Plaintiff was called to the stand to testify and indicated to the
Court that; she was approached by the representatives of the
Defendant at Sebokeng Hospital. They introduced themselves as
representatives of the Defendant acting within the course and scope
of their employment at the Defendant. The representatives advised the
Plaintiff to lodge a
“
direct
claim
”
with
them without the representation of attorneys or lawyers as the
Plaintiff testified in her loss
of
support claim against the Defendant.
[5]
It is
the evidence of the Plaintiff that she indicated to the Defendant
’
s
representatives that she required time to lay her husband to rest and
that she would thereafter visit their offices at Sebokeng,
which she
did. The officials of the Defendant asked for the information related
to the claim in the form of the Accident Report
(AR), Birth
Certificate (BC) of the minor child and the death certificate of the
deceased. It is the evidence of the Plaintiff
that she was given two
sets of forms to complete a claim for herself and that of the minor
child. The second set of forms were
completed by the deceased
’
s
mother for the funeral expenses, as she was responsible for the
burial of her deceased son. All that resulted on a direct claim
lodged with the Defendant on the 11
th
October
2016.
[6]
The
Plaintiff testified that a long period of time passed without any
word from the Defendant. Thereafter, one day, the Defendants
officials visited their home to make further enquiries in
relation to the mother of the deceased, the minor child and her
employment status. The visitors identified themselves as the
assessors of the Defendant. The Plaintiff testified that a long
period
passed once again without hearing from the Defendants and
thereafter she received a call informing her that they would come
with
documentation for her to sign.
[7]
A
document was presented to the Plaintiff and upon inspection she noted
it was headed
“
Funeral
Costs
”
,
tendering an amount of R 24 575 (Twenty-Four Thousand , Five Hundred
and Seventy-Five Rands). The Plaintiff testified that
no
further explanation was given in relation to her loss of support
claim. The only amount offered was for the funeral costs. Plaintiff
stated that she made follow-up enquiries about the loss of support
claim lodged with the Defendant. The officials of the Defendant
indicated that they were only sent for her to sign the document being
presented to her.
[8]
On a
follow-up call to the Defendant to enquire about the outstanding
claim, the Defendant
’
s
representatives confirmed that the money paid to her was in full and
final settlement and that the amount paid were inclusive
of the
deceased funeral costs; Plaintiff's loss of support claim and that of
the minor. On perusal of the papers at 002-30 on case
lines, a
document from the Defendant appears titled
“
Offer
and Acceptance of Settlement
”
dated
2017/09/01 and the grand total awarded in an amount of R24 575
(Twenty Four Thousand, Five Hundred and Seventy Five Rands)
Section A of the same document describes the payment details and
identified funeral costs in the amount of R 24 575 (Twenty-Four
Thousand, Five Hundred and Seventy Five Rands) as the amount being
offered by the Defendant in the matter.
Common
cause facts
[9]
It is
common cause that the Defendant appointed the services of an Actuary,
Rosewood Technologies, on or about 11
th
August
2017 and the report was sourced by one Golden Selala at the
Defendant
’
s
offices in Johannesburg. The actuaries were requested to estimate the
present value of the financial loss of support suffered
by the
dependents of the deceased as a result of his death on 12th June 2016
due to a road accident of 12th June 2016. The calculations
sourced by
the Defendants
’
did
not factor any vocational
improvements
on the earnings of the deceased in the matter. On careful analysis of
the deceased's employment history, it is clear
that he earned a
significantly higher a salary at CSI Engineering of R 46.60
(Forty-Six Rands and Sixty Cents) per hour which translate
to a total
figure of R 7 812 (Seven Thousand Eight Hundred and Twelve Rands) a
month.
[10]
The
Rosewoods calculations incorrectly assumed that the deceased at the
point of his untimely death had reached his career ceiling
and that
only inflationary increases must be taken in to account in
calculating the deceased
’
s
prospective income but for his untimely dead. It should however be
noted that these assumptions were made in the absence of an
Industrial
Psychologist
report. The aforesaid postulation is factually incorrect as it is not
supported by the necessary evidentiary report
of the expert being an
Industrial Psychologist. The deceased was 33 years at the time of his
untimely death and the conclusion
that he has reached his career
ceiling is untenable and the postulation made by the Defendant
’
s
actuary is to be rejected on that basis.
[11]
The
admissibility of expert evidence hinges on simple rules of evidence
that affords the presiding judge discretionary powers to
adjudicate
with the benefit of expert testimony to assist the Court to
reach at a justifiable award. It was clearly not the
case in this
matter as a reasonable actuary would have foreseen that due to his
young age the deceased could not have reached a
career ceiling at age
33. Furthermore, the calculations were done without deference to an
Industrial Psychologist.
The
Negligence of the Defendant in handling and Quantifying the
Plaintiff’s Claim
[12]
It is
trite that the
Road Accident Fund Act 56 of 1996
, as amended is
considered to be social security legislation
(
Law
Society of SA v Minister for Transport
2011
(1) SA 400
(CC) para 17). The object of
Road Accident Fund Act (RAFA
)
as stated in
Section 3
, thereof is
'the
payment of compensation in accordance with this Act for loss or
damage wrongfully caused by the driving of motor vehicles.'
The
courts have held through the years that the primary objective of road
accident compensations is to provide 'the greatest possible
protection, ..., to persons who have suffered loss through a
negligent or unlawful act on the part of the driver or owner of a
motor vehicle'
(
Aetna
Insurance Co v Minister of Justice
1960
(3) SA 273
(A) 285E-F
,
Engelbrecht v Road Accident Fund
2007
(6) SA 96
(CC) para 23,
Mvumvu
and Others v Minister of Transport and Another
2011
(2) SA 473
(CC) para 20). In the majority of the case law that deals
with RAFA and its predecessors, courts have followed an extensive
interpretational
approach to widen the ambit of the impact of RAFA.
(See
inter alia Berry and
Another v SPE Security Patrol Experts and Another
2011
(4) SA 520
(GNP), and
J
effrey
v Road Accident Fund
2012 (4) SA
475
(GSJ)).
[13]
Therefore,
when the Defendant invites the public through their direct claims
systems and advises them not to engage the services
of attorneys who
are professionals in personal injury litigation, the Defendant
assumes the professional responsibility to properly
quantify their
claims and follow all the required protocols in settlement of such
claims to avoid the dangers of being
the
coach, player and referee in their own game which was clearly the
case in
this
matter.
[14]
In this
matter, the Defendant failed to discharge its full legal and
statutory obligations in the settlement of the Plaintiffs claim
and
the duty it owed to the Plaintiff as it failed to engage the services
of an Industrial Psychologist to opine on the probable
realistic
career path of the deceased and the Plaintiff. Consequently, the
Defendant
’
s
actuary proposed arithmetic calculation without taking into
consideration the deceased career progression up until his
age of
retirement.
[15]
On the
evidence presented before the court at the time of the deceased
untimely death the deceased was earning an amount of
R 39 000
(Thirty Nine Thousand Rands (per annum, which is R 40 000 (Forty
Thousand Rands) less than what the deceased would
have earned in the
semi-skilled environment as a crane operator. It is clear that there
was a complete misrepresentation of the
deceased
’
s
earnings in the Defendant
’
s
actuarial calculations.
[16]
Therefore,
a prudent claim handler representing the Defendant ought to have
sourced the services of an Industrial Psychologist for
guidance to
ensure that a proper calculation of the deceased earnings is done.
The
Test for Professional Negligence
[17]
It is a
settled principle of law in South Africa that a person who undertakes
to provide professional services to a client,
impliedly
undertakes that, in the
execution
of their mandate, in that they will exercise reasonable care and
diligence. In this matter, the same is expected
from the
Defendants in the settlement of the direct claim on behalf of
the Plaintiff and the minor
child.
[18]
The
test for professional negligence is a delictual test:
“
Professional
negligence is the failure by an attorney to act with the competence
reasonably expected of ordinary members of the
attorney’s
profession. An attorney must be meticulous, accountable. He or she
must serve his clients faithfully and diligently
and must not be
guilty of unnecessary delays
”
[Ramonyai v LP Molope Attorneys
2010/29310 [2014] ZAGPJHC65 (26 September 2014)]
[19]
Furthermore
, and above the test for negligence, in the matter of
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430 E-F
it was stated as follows:
“
For
the purposes of liability culpa arise if a diligens paterfamilias in
the position of the defendant would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial loss; and would take reasonable
steps to
guard against such occurrence and the defendant failed to take such
steps.”
[20]
In
Leketi v Tladi NO
& Others
[2010]
3 ALL SA 519
(SCA) at para 18, the court said the following:
“
In
order to determine whether the appellant exercised reasonable care
his conduct must be tested by reference to the steps which
a
reasonable person
in
his or her position would have taken to acquire knowledge
”
.
[21]
In this
matter the representatives of the Defendant while acting in the
course and scope of their employment approached the Plaintiff
to use
their direct claim system and to avoid the services of
“
professional
attorneys
”
who
generally litigate against the Defendant in personal injury claims.
It is trite that the standard of responsibility set out
for attorneys
is high as confirmed by the Supreme Court of Appeal in
Ramonyai
as
cited at paragraph 17 supra.
[22]
It is
thus clear that the representatives of the Defendant assumed the
responsibility of being the
dilegens paterfamilias
to
assist the Plaintiff in the handling of her claim. Therefore, there
was a clear duty to act in a matter that will avoid the Plaintiff
suffering any patrimonial loss as set out in
Kruger
and
the
Leketi
matters
in paragraph 17 and 18 above. The failure to employ the services of
an Industrial Psychologist is a failure to exercise
reasonable care
on the part of the Defendants employees.
[23]
It is
thus clear that the employees in this claim tasked with the duty and
responsibility to properly assess and compensate the
Plaintiff fairly
neglected and or failed to do their work properly to the extent where
it resulted in the Plaintiff suffering significant
loss in respect of
what ought to be the true value of her loss of support claim together
with that of the minor.
Quantum
Claim of the Plaintiff
[24]
On the
assessment of what was presented as full and final settlement to the
Plaintiffs claim it is clear that the Plaintiff and
the minor could
not be
sustained
with an amount of R 24 575 (Twenty-Four Thousand, Five Hundred and
Seventy-Five Rands) as a loss of support claim based
on the
Defendant
’
s
wrong calculations.
[25]
It is
thus clear that the failure to engage the services of an Industrial
Psychologist resulted in wrong calculations. In addition,
it is
abundantly clear that the services of an Industrial Psychologist
would have changed the conclusions of the actuary based
on the
following reasons:
25.1
deceased
’
s
age as a 33 old;
25.2
at an
early development of his career;
25.3
there
were possibilities to obtain further skills in his industry;
25.4
it is
thus untenable that he could have reached his career ceiling at the
age of 33;
25.5
it is
postulated that at age 45, he would be earning about R15 500 (Fifteen
Thousand and Five Hundred Rands) monthly on an upper
quartile scale
of a semi-skilled work environment.
[26]
The
services of an Industrial Psychologist are sourced to determine the
possible career progression including the determination
of the future
value of the loss as confirmed in the matter
of
BB v Road Accident Fund
(11676/2017)
[2020] ZAWCHC 15
(28 February 2020) paragraph 3 where it was stated
as follows
“
An
industrial psychologist, Dr Richard Hunter, who testified at the
instance of the plaintiff, opined that: considering his age,
education and training, employment history, as well as collateral
obtained, it seems reasonable to conclude that had the deceased
not
died in the accident he would probably have remained with his
employer until normal retirement age’, I
am in agreement with that
assessment”.
[27]
On the
claim before the court the Plaintiff obtained the medico-legal report
of Joey Buitendach & Associates the Industrial
Psychologist who
correctly postulated the pre-accident and post-accident scenarios of
the deceased. The deceased monthly income
was R 3 000 (Three Thousand
Rands).
[28]
In the
sector where the deceased was working, he was categorized as a semi
skilled worker (Koch
2020
Quantum yearbook
)
and on the scenario where the accident would not have happened; he
would have worked until his normal retirement age of 65 years
at the
year 2048.
[29]
Post-accident
the minor and the Plaintiff have been adversely impacted by the death
of the deceased and have thus lost a source
of solid financial
support as a result of his death. However, the court notes that the
Plaintiff is a 36 year
-year-old
with high prospects of re-marriage and as such a 7% contingency
should be applied based on a statistical guide (Koch 2021
at page
16).
[30]
The
Plaintiff commissioned the services of an actuary Ekhaya Risk
Services to calculate the loss of support that was suffered
by
the minor and the Plaintiff in this matter. The loss of support to be
considered by the court is scenario 2 that caters for
the loss until
the age of 21 years for the minor. The total for the spouse in the
scenario is R 456 086 (Four Hundred and Fifty-Six
Thousand and
Eighty-Six Rands) and R224 612 (Two Hundred and Twenty Four
Thousand, Six Hundred and Twelve Rands) is for the
minor. As a
result, the total loss of support claim to be R 680 699 (Six Hundred
and Eighty
Thousand,
Six Hundred and Nighty Nine Rands).
[31]
In the
circumstances, it is ordered that:
1.
The
Defendant shall pay to the Plaintiff the total of R 680 699 (Six
Hundred and Eighty Thousand and Six Hundred and Nighty Nine
Rands)
divided as follows:
1.1
an
amount of R 456 086 (Four Hundred and Fifty-Six Thousand
and
Eighty-Six Rands) in respect of the loss of support towards the
Plaintiff;
1.2
an
amount of R 224 612 (Two Hundred and Twenty-Four Thousand, Six
Hundred and Twelve Rands) in respect of the Minor.
2.
Plaintiff
Attorneys are ordered to create a trust to the sole benefit of L[…]
the
minor born on the […]
and
costs to be incurred for the creation and administration of the trust
are to be paid by the Defendant.
3.
In the
event of the aforesaid amount not being paid timeously, the Defendant
shall be liable for interest on the amount at the rate
of 10% per
annum
calculated from the 15
th
calendar
day after the date of this Order to the date of payment.
4.
The
Defendant shall pay the Plaintiffs taxed party and party costs on
High Court scale, subject thereto that:
4.1
In the
event that
the
costs are not agreed:
4.1.1
The
Plaintiff shall serve a notice of taxation on the Defendant
’
s
attorney of record.
4.1.2
The
Plaintiff shall allow the Defendant 14 (fourteen) court days from the
date of allocatur to make payment of the taxed costs.
4.1.3
Should
payment not be effected timeously, the Plaintiff will be entitled to
recover interest at the rate of 10% per annum on the
taxed or agreed
costs from the date of allocator to date of final payment.
4.2
Such
costs shall include
4.2.1
The
costs incurred in obtaining payment of the amounts mentioned in
paragraphs 1 and 3 above;
4.2.2
The
costs of counsel, including counsel
’
s
charges in respect of his full-day fee for 02 December 2020, 14 May
2021, 13 May 2021, and 18 May 2021, as well as reasonable
preparation
costs;
4.2.3
The
costs to date of this order, which costs shall include but not
limited to necessary travelling costs and expenses (time and
kilometers), preparation for trial and attendance at Court which
shall include all costs previously reserved, the reasonable cost
of
consulting with the Plaintiff to consider
the
offer, the cost incurred to accept the offer and make the
offer
an order of the court, ifany;
4.2.4
The
cost of the Industrial Psychologist, Actuarial Report and their
affidavits obtained by the Plaintiff, as well as such reports
furnished to the Defendant and/or its attorneys, as well as all
reports in their possession and all reports contained in the
Plaintiffs
bundles, irrespective of the time elapsed between any
reports by an expert;
4.2.5
The
reasonable and taxable preparation of, qualifying and reservation
fees, if any, in such amount as allowed by the Taxing Master,
of the
experts as in 3.2.4 above;
4.2.6
The
cost and expenses incurred by and on behalf of the Plaintiff in, as
well as the costs consequent to attending the medico-legal
examinations.
4.2.7
The
costs of holding all pre-trial conferences and judicial management
meetings, as well as round table meetings between the legal
representatives for both the plaintiff and the defendant, including
counsel
’
s
charges in respect thereof, irrespective of the time elapsed between
pre-trials, if any;
4.2.8
The
costs of and consequent to compiling all minutes in respect of
pre-trial conferences, including counsel
’
s
charges;
4.2.9
Costs
of an interpreter;
4.2.10
The
full travelling costs of the Plaintiff, who is hereby
declared
necessary witnesses;
4.2.11
The
reasonable costs for the preparation, attending, travelling expenses
and time spent for conducting an inspection in loco, if
any;
5.
The
amount referred to in paragraphs 1, 2 and 3 will be paid to the
Plaintiff
’
s
Attorneys, Nhlanhla Hlongwane Attorneys, by direct transfer into
their trust account, details of which are the
following:
Account
Holder
:
Nhlanhla
Hlongwane Attorneys
Bank
First
:
First
National Bank
Account
Number
:
[…]
Account
Type
:
Trust
Account
Branch
:
Sunny
Park
Branch
Code
:
250645
Reference
no
:
NHAR0011
6.
There
is a Contingency Fee agreement applicable between the Plaintiff and
the Plaintiff
’
s
counsel is ordered to upload the agreement on caselines.
RR
NTHAMBELENI
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
DIVSION, PRETORIA
Appearances
PLAINTIFF’S
COUNSEL:
Adv R
Maphutha
INSTRUCTED
BY:
Nhlanhla
Hlongwane Attorneys
DEFENDANT’S
COUNSEL:
No
appearance
HEARD
ON:
18 May
2021
DATE
OF JUDGMENT:
31 May
2021