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[2019] ZAGPPHC 399
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Modise obo Minor v Road Accident Fund (10329/2019) [2019] ZAGPPHC 399; 2020 (1) SA 221 (GP) (12 August 2019)
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED
CASE NO: 10329/2019
In
the matter between:
MORONGE
RUTH MODISE obo a MINOR
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Coram:
Davis J
Minors
-
duty of
court
-
Courts as upper guardians of minors have an oversight role to play in
instances where damages were suffered by and
are claimed on behalf of
minors against the Road Accident Fund.
Motor Vehicle Accident
-
Damages - Plaintiffs under a general duty to mitigate damages, this
includes reliance on or utilisation
of an undertaking as contemplated
by Section 17(4)(a) of the Road Accident Fund Act 56 of 1996 ("an
undertaking")
Road Accident Fund
-
Duty to concede merits where it is proper to do so and not prolong
litigation by unmeritorious denial thereof.
Road Accident Fund
-
Duty to furnish an undertaking as soon as it is justifiable and not
to frustrate plaintiffs' obligations to
mitigate their damages.
Practice
-
trials
-
Road Accident Fund liable to incur punitive costs
where blanket and
unjustifiable denial of liability persisted with or where litigation
obligations to curtail proceedings are ignored.
JUDGMENT
DAVIS,
J
[1]
Introduction
1.1
This
is the judgment in one of nine civil trials I heard over the course
of four days last week. All but one of the trials were
actions
against the Road Accident Fund (the "RAF"). These figures
are representative of the civil trial roll in this
Division and what
judges on that roll face on a weekly basis. No less than 80% of the
daily civil trial roll comprises of RAF litigation.
Effective case
management and responsible litigation by all parties concerned are
therefore imperative.
1.2
The
present matter is a claim for damages suffered as a result of a motor
vehicle accident. It is a so-called "pedestrian claim".
As
a minor is involved, in addition to hearing the case, judicial
oversight by the court as upper guardian of minors is required.
This
is a Constitutional imperative
[1]
.
The minor was 21/2 years old at the time of the accident, which took
place today exactly eight years ago.
[2]
Merits
2.1
The
accident occurred on the sunny afternoon of 12 August 2011 in the
town of Welkom. The Plaintiff and her son, the minor, were
walking on
the side of a dirt road, just off a tarred suburban street when a
drunk driver sped around the comer, ran over the mother
and child,
then careered on and crashed into the garden wall of a property on
the opposite side of the street. The driver tried
to run away but was
apprehended on the scene by community members. This was the version
of Plaintiff supported by various statements,
the contents of a
police docket, sketch plans and photographs.
2.2
During
argument near the end of the trial, it was alleged by the RAF that it
had, prior to commencement of litigation, made an offer
to the
minor's mother, a lay person. It was alleged that this offer implied
an acceptance of liability by the RAF. Not only was
this fact never
put to the Plaintiff since institution of the action, but it was
never discovered nor previously disclosed to the
Plaintiffs legal
representatives or to the court. Instead, once litigation ensued some
years ago, the RAF pleaded a bare denial
of the occurrence of the
accident and steadfastly refused to concede merits.
2.3
At
a pre-trial conference, held more than two years after delivery of
the RAF's plea, the RAF's attorneys indicated that they still
awaited
instructions on whether to concede the merits or not. The trial was
therefore set down and the requisite trial bundles
were prepared on
both issues. During roll call on the day of the trial only, did
the RAF concede the issue of merits. Up to
that stage, they had no
evidence and no witness on the issue of merits and no version or
explanation as to why they would not be
liable in respect of damages
suffered as a result of the injuries sustained by a minor pedestrian
in a motor vehicle accident.
This lack of explanation was never
cured.
2.4
Regrettably,
this mode of litigation concerning the merits of similar RAF trials,
appear to be the norm rather than the exception.
[3]
Prejudice
3.1
As
will appear hereinafter, expert evidence lead by the Plaintiff
confirmed that, had the minor received the benefit of medical
treatment and ancillary therapeutic intervention in the years since
the accident to date of trial, his compromised situation post
the
accident would have been ameliorated and some of his loss of
amenities would have been limited or, at the very least, his quality
of life would have been improved.
3.2
Absolutely
no reasons could be furnished by the RAF as to why it had failed the
minor in this regard. Of course, an undertaking
could not have been
furnished while RAF still contested liability by way of denial of the
merits.
3.3
I
have often, both in judgments and in judicial case management
meetings conducted in court, expressed the view that, the sooner
merits are conceded in circumstances where they should properly be
conceded, such as in the present case and the sooner an undertaking
to cover medical and related costs is furnished in terms of
Section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
in instances where
it is clear that the injured person would be in need of future
medical care and attention, the sooner such a
person, be it a
Plaintiff or, as in this case, a minor, can receive such treatment or
afford to do so. This will not only benefit
the injured person and
fulfill some of the objects of the Act, but it will also enable a
plaintiff to begin to satisfy the general
onus of mitigating one's
Damages.
[2]
In that way, not only will plaintiffs
and injured persons experience beneficial relief in respect of their
compromised or diminished
amenities of life, but they might be
assisted on the road to recovery, be it by way of surgical or
scar-removing procedures, or
psychiatric or remedial educational
therapy, to name but a few examples.
3.4
Although,
as will appear later, the neurocognitive deficits suffered by the
minor in this case due to his brain injury are irreversible,
he would
have benefitted greatly from the other treatment. He is
representative of a great many other minors in similar positions
in
RAF cases. Often this court sees years going by prior to the
finalization or concession of merits and further years going by
prior
to the RAF furnishing an undertaking as referred to above. Often,
plaintiffs even have to launch applications to compel the
furnishing
of undertakings despite even the existence of a court orders in this
regard. There are for example, yet again such matters
on my unopposed
motion court roll set to commence at the conclusion of this judgment.
3.5
What the RAF also apparently
and persistently fails to appreciate, is that every medical or
ancillary intervention rendered pursuant
to the furnishing of an
undertaking might have a downward impact on the eventual quantum to
be awarded. Scarring can be removed,
orthopeadic remedial surgery can
take place, a minor might be assisted in reaching his pre-accident
learning potential and the
like. An injured person might be
rehabilitated or re-trained so as to enable him to compete better in
the labour market. This all
might result in a reduction of the
eventual award for damages including, in appropriate circumstances,
even general damages. It
is a matter of public record that the RAF is
insolvent and has been for many years. The failure to take such a
simple step as the
furnishing of an undertaking in terms of section
17(4)(a) of the Act amounts to a dereliction of duty. In this
instance, as I have
already mentioned, that dereliction prejudiced a
minor child, a representative of one of the most vulnerable segments
of our society.
[4]
T
rial
readiness
4.1
Despite
the passage of more than two years after delivery of its plea very
little, if anything at all, has been done by the RAF
to prepare its
case on the quantum of damages. No experts have been briefed or
consulted, no requests have been sent to have the
minor examined and
no version has been put up or an estimate been made regarding any
aspect of the damages claimed. This, again,
is representative of a
large number, if not perhaps the majority of RAF trials.
4.2
Apart
from the lack of preparedness regarding the potential gathering of
evidence, expert or otherwise, pre-trial preparation was
also
lacking. Rule 37 of the Rules of this court is not only designed to
facilitate a narrowing of issues, delineation of disputes
and
curtailment of trial duration but enjoins litigants to actively
participate therein. The practice directives of this court
further,
without the need to detail the contents thereof, places a "continuous
obligation" on litigants to seek to narrow
issues.
4.3
Considerations
of public policy regarding the limitation of litigation costs and the
avoidance of unnecessary costs shaped amendments
to Rule 37, which
have by and large and until recent amendments, endured since 1994.
These considerations and the frustration in
non-compliance with the
Rule, have been raised by this court since as long ago as 1995 by,
inter alia, Fleming DJP in
Lekota
v Editor, 'Tribute' Magazine and another
1995
(2) SA 706
WLD. The learned DJP emphasised that a pre trial
conference is
"a
stocktaking of possible co-operation in steps which will limit or
prevent avoidable effort and costs".
These
public policy considerations (mentioned by Fleming DJP at 708G -
709A) apply even more onerously where, as in the case of
the RAF,
public funds are involved.
4.4
In
addition to the Rules (including those pertaining to the
"stocktaking" at pre-trial stage) and the Practice
Directives
(which have, as a result of the overburdening of the trial
rolls by RAF matters, recently undergone major changes in an attempt
to force parties to actively contribute to identifying triable issues
and to get cases trial ready to deal with those issues),
our courts
have on numerous occasions underlined the "litigation
obligations" of parties, particularly in cases where
damages are
claimed pursuant to personal injuries suffered.
[3]
These obligations include the duty to
avoid any conduct which could be obstructive to finalising a case or
conduct which could cause
prejudice to the other party or lead to the
incurring of unnecessary costs.
[4]
4.5
Rule
60.1 of the Code of Conduct for Legal Practitioners, promulgated by
the South African Legal Practice Council in terms of the
Legal
Practice Act, 28 of 2014
, provides that all legal practitioners
"shall act in a manner
that shall promote and advance efficiency of the legal process".
4.6
It
is against this background that the conduct of the RAF in this case
must be examined. The pre-trial minute in question, contains
the
following examples of its conduct:
"6.
The Defendant was requested to indicate whether any issues should be
transferred by
the parties for mediation, arbitration or decision by
a third party and on what basis it should be so referred.
Answer: The parties'
rights are reserved ...
8. The
date of trial is set down for 7 August 2019. The Plaintiff requested
the Defendant
to indicate whether it is ready to proceed on all the
outstanding issues or whether any issue should be separated in terms
of
Rule 33(4).
Answer: Both
parties are ready to proceed, subject to paragraph 6 above.
C.
Admissions in terms of
Rule 37(6)(g):
Merits:
11.
The
issue of merits is in dispute and the Plaintiff requested the
Defendant to concede merits at the outset of the Pre Trial
Conference.
Answer:
The parties discussed the concession of liability by the Defendant.
The Defendant's attorney awaits instructions.
Quantum:
The parties discussed
the various heads of damages:
Future medical,
hospital and related expenses
:
12.
The
Plaintiff's attorney requested the Defendant to tender an undertaking
in terms of
section 17(4)(a).
Answer:
The Defendant's attorney awaits instructions.
Loss of earning/
earning capacity:
13.
The
Plaintiff referred to the medico-legal reports and the actuarial
calculations. The parties discussed this issue and the Plaintiff
indicated the amount she would accept for purposes of settlement.
Answer:
The parties discussed deductions to be applied. attorney the
contingency.
The Defendant's awaits instructions.
General damages
:
14.
The
Plaintiff qualifies for general damages as the minor suffered serious
injuries as contemplated in the Act more specifically
as provided in
the AMA Guide. Reference is made to the RAF4-form compiled by the
Experts.
Answer: The
parties discussed affair amount. The Defendant's attorney awaits
instructions and reserve
's
its rights.
D.
15
The
Plaintiff appointed the following experts:
15.1
Dr R Kahn (Independent
Medical Examiner) and RAF4;
15.2
Dr JJ Du Plessis
(Neurosurgeon);
15.3
Dr JB Prins (Orthopaedic
Surgeon);
15.4
Dr JPM Pienaar (Plastic and
Reconstructive Surgeon);
15.5
Ms A Cramer
(Neuropsychologist);
15.6
Ms E Prinsloo (Educational
Therapist);
15.7
Ms A Stroebel {Occupational
Therapist);
15.8
Mr K Prinsloo (Industrial
Psychologist);
15.9
Human & Morris
(Actuary).
16.
The
Plaintiff's attorney has served all the reports and requested the
Defendant to indicate that it is in receipt of all the reports.
Answer: Yes.
17.
Defendant's
attorney was requested to admit the qualifications and expertise of
the abovenamed experts.
Answer: Yes
18.
The
Defendant's attorney was requested to admit the contents of the
experts' reports and more specifically the experts' findings
in
respect of injuries sustained by the Plaintiff, the experts' opinions
and the experts' conclusions. The Defendant was requested
to indicate
specifically what aspect or aspects of the clinical findings,
opinions or conclusions of the said reports are denied.
Answer: The
Defendant's attorney will endeavor to obtain instructions to admit
Plaintiff's reports
before close of business on Tuesday, 6 August
2019. The Plaintiff's attorney will reserve the necessary experts".
(I hasten to note that
counsel who appeared for the RAF at the trial, had not been briefed
to attend the pre-trial conference)
4.7
Despite
the answers given at the pre-trial conference, no further attempts
were made to narrow the issues despite the fact that
the RAF simply
did not have any controverting evidence or contrary expert opinions.
None of the often repeated instructions which
were "awaited"
were forthcoming.
4.8
Instead,
the RAF's counsel was sent in with the instructions, as if in a
criminal trial, to insist on the Plaintiff proving every
aspect of
her case. Repeatedly, this court was reminded by counsel that "he
who avers must prove". This is, of course,
a reference to the
well-known case of
Pillay v
Krishna
1944 AD 946
at 952
per Davis, AJA. The reliance on this case is misplaced - it dealt
with the incidence of onus, not the manner in which litigants
should
approach the delineation of disputes during pre trial procedure
and in conducting the trial itself.
4.9
In
a trial which also involved a minor and which also involved expert
evidence of a medical nature and in which the defendant therein
had
also failed to obtain or file any expert reports, this court in
Mokhethi and Another v MEC
for Health, Gauteng
supra
(at footnote 3) dealt with very similar conduct as follows:
"
The trial
[25]
What perturbed me about the conduct of the defendant during the trial
was his uncooperative
attitude, of refusing to make any admissions
regarding the correctness of the expert reports files by the
plaintiff. It required
the plaintiff to call several of the expert
witnesses merely to come and state that their reports were correct
and they confirmed
the contents and conclusions therein.
...
Mr
Malindi, appearing on behalf of the defendant, was given no
instructions to cross-examine them, with the result that all of these
witnesses came and merely confirmed their reports, and said no more,
or very little. All I can say is that I was extremely displeased
with
the manner in which the defendant and his instructing attorney
conducted the trial in this matter.
[26]
I expressed my dissatisfaction with this procedure and indicated
that, although I
could not force Mr Malindi to make admissions
regarding the contents of the plaintiffs
'
experts
reports, the displeasure of this court would be shown in an
appropriate costs order at the end of the trial, and that is
exactly
what I propose to do when it comes to deciding the question of costs
of the trial."
4.10
In
the present instance, Mr Madileng who appeared for the RAF, was given
some instructions regarding cross-examination of the Plaintiffs
experts, but these very scant in content and none of it based on
facts or contrary opinions. The instructions also appeared to
have
disregarded addendum reports, which I shall refer to later. The
instructions were also given without his attorney even having
been
present when the Plaintiff's first and most crucial witness, the
neurosurgeon testified. Yet counsel valiantly soldiered on,
making
the best of what he had been instructed to do. This was also, I might
add, despite repeated reminders of the RAF's litigation
obligations.
4.11
I need to make it clear that
the litigation obligations do not require a party such as the RAF to
willy nilly accept the correctness
of the conclusions reached in
reports filed by a Plaintiff, simply in order to curtail proceedings
or to save costs. Conversely,
there is also no general obligation (as
the tendency appears to be) to appoint "counter - experts"
in every discipline.
If, for example, the conclusions of an
orthopeadic surgeon accord with the hospital or clinical records or
with that of the independent
doctor who had completed the RAF 1 and 4
forms, why appoint another orthopeadic surgeon? The same applies to
all the other disciplines.
There is no need nor a justification to
obtain a "hired gun" to support a defendant's position
[5]
.
In each instance a defendant such as the RAF must apply its mind,
considering the disputes involved measured against the facts
of each
case.
4.12
This
judgment should therefore not be interpreted to constitute either a
blanket authority or an instruction to do away with any
of the
generally applicable principles pertaining to expert evidence. Expert
reports are, unless an agreement has been reached
between the
parties, simply what they purport to be - an opinion expressed by a
person who, by virtue of his qualifications and
expertise is regarded
as an expert in a specific field which renders his opinion admissible
and which opinions and conclusions
might assist a court in
adjudicating a case
[6]
.
Where the facts relied on by such expert are incorrect on where the
pinion expressed is not justifiable, the evidence tendered
should de
contested.
[5]
The
Plaintiff's evidence
5.1
The
Neurosurgeon
Dr JJ du Plessis
testified that he was a neurosurgeon with 29 years' experience. His
qualifications and expertise were not in question.
He testified that
he had examined the minor and had interpreted an MRI scan done at his
instance. He also had regard to the hospital
clinical notes (such as
they were) and the history obtained from the Plaintiff. He explained
that
MRl
scans can in layman's terms detect iron molecules
present in red blood cells in a manner which can indicate
intracranial haemorrhaging
many years after an incident. Wide-spread
bilateral petechial haemorrhaging was found to have occurred in the
minor's brain, indicating
a high velocity rotational impact on his
skull. He concluded that the minor had sustained a moderate diffused
brain injury compatible
to the mechanism of the accident as described
above. In cross examination he explained the difference between
mild, moderate
and severe brain injuries, the functioning of the
Gloscow-coma scale, the irreversibily of the injury as a result of
the tearing
of axons in the brain and the severe impact of such an
injury on a young and developing brain. He dispelled suggestions that
the
injury could have occurred by falling out of a tree or on a
playground. He also explained the difference between a diffused and
a
focal brain injury. He confirmed that, if no spontaneous recovery
took place within the first two years after such an incident,
none
could be expected in the future. His examination of the minor took
place well beyond the two year period.
Dr Du Plessis' s evidence
was neither shaken nor disturbed in cross examination. What was
in conclusion suggested to him, was
that he could not exclude the
possibility that an other incident than the motor accident in
question, could have caused the injury.
He conceded the theoretical
possibility of such an unknown incident.
5.2
The
Neuropsychologist
Ms Cramer testified as an
expert in this regard. Her qualifications and expertise were also not
placed in dispute. She had produced
two reports. In the first report
she carried out clinical interviews and had a psychometric assessment
of the minor done. She also
had regard to the hospital records, the
RAF1 and 4 forms completed by an independent doctor and the report of
an occupational therapist.
She concluded that the minor had a
negative neurocognitive profile with compromised scholastic
functioning. She stated
"his
functioning as a learner had considerably negatively been affected as
a result of the psychological sequelae of the accident,
which
extended over a significant period of time without any psychological
intervention. The prolonged nature of the RAF claim
and a lack of
intervention appeared to have contributed to persisting feelings of
anger and depression".
The neuropsychologist
could not pinpoint the exact cause of the consequences she had
observed but, in an addendum report which she
compiled with the
benefit of the neurosurgeon's report, as well as a report from a
plastic surgeon and a further RAF4 form, she
concluded and stated as
follows:
"2
Discussion
2.1
These additional reports have been made available to me since
completing my original report on
13/03/2019. Of particular importance
is the report of neurosurgeon, Dr Du Plessis. In my original report I
noted that the available
information a the time did not suggest that
the minor sustained a head injury of any significance,, but I
expressed concern that
in light of his very young age at the time
,
any
impact to the head and thus to the immature brain would still require
comment by a neurosurgeon".
After referring to the
findings of the neurosurgeon pursuant to the
MRl
scan and the
diagnosis of a moderate diffuse concussive brain injury, she
continued as follows:
2.3
The
minor's neurocognitive profile was indicative of cognitive
difficulties in areas relate to attention, concentration, response
speed, learning abilities and memory. At the time, I speculated that
if he did not sustain a significant head injury, these deficits
would
have to be ascribed to possible subtle premorbid cognitive
difficulties and also the psychological factors. However, in light
of
Dr Du Plessis 's MRI findings and clinical conclusion of a moderate
brain injury, I would agree that the deficits would be related
to the
accident and injury to the brain primarily, and exacerbated by
psychological factors including his elevated levels of anger,
anxiety
and depression.
2.4
Given
his very young age at the time of the accident, consideration needs
to be given to his psychological vulnerability due to
exposure to a
traumatic event as this would be considered significantly
distressing. In the absence of earlier psychologist intervention,
the
impact of probable ongoing or unmediated psychological intervention,
the impact of probable ongoing or unmediated psychological
distress
on his adjustment through childhood into a new social setting when
commencing formal schooling as well as repeating Grade
1 in 2016
needs fair consideration.
"
She then considered that impact of the organic brain injury as a
cause for his difficulties in schooling compared to psychological
factors and then went on as follows:
"2.5 It can be
expected that the minor may experience more difficulties in higher
grades of learning where academic demands
increase and become more
complex, while the brain matures at a slower rate than that of an
uninjured child, resulting in the co-called
sleeper effect. This
implies that he will also not achieve according to his premorbid
intellectual potential, which will lead to
lowered performances
compared to his uninjured peers. As this was a paediatric brain
injury, there is the likelihood of a delay
in his intellectual
development, which will ultimate affect his educability and
occupational prospects".
After having confirmed
the remainder of her conclusions and reports, initial
cross-examination then centered around the possibility
of other
factors being to blame for the minor's position with reference to
comments in the reports of, inter alia, the educational
psychologist
and the occupational therapist. This line of questioning did not take
into account opinions expressed by these other
experts
after
the
neurosurgeon had, with the assistance of the MRI scan conclusively
determined the nature and extent of the minor's injury.
What the
cross-examination did elicit however, was that had the minor, having
been left with irreversible brain damage, received
psychological
therapy and occupational therapy, he would, as an, injured person,
have been assisted with coping with his deficiencies,
adjusted to
formal schooling and, had the huge facial scar been removed, he would
have been less exposed to ridicule by his peers.
All of this would
have assisted his schooling and would have qualitatively enhanced his
life.
5.3
The
Plaintiff
The only factual basis on
which the neurosurgeon's report had been attacked, had been the
raising of a possibility that there could
have been another cause for
the identified injury than the motor vehicle accident. This
contention was raised on behalf of the
RAF without any foundation or
a shred of evidence to support it. For this reason and, to exclude
such a "possibility",
the Plaintiff sought to present the
evidence of herself as mother of the minor. As no interpreter was
available at that hour of
the day, the matter stood down to the next
day, being the Thursday prior to the long weekend. It was at this
stage that I sounded
the same caution as Claassen, J did in para [26]
in Mokhethi' s
case
mentioned in paragraph 4.9 above,
pertaining to the possibility of punitive costs.
[6]
The
conclusion of the trial
6.1
On
the second day of trial, the RAF apparently had had a re-think of the
matter. It is not clear how much my express invitation
for the claims
handler to attend trial had to do with this. In the end, the claims
handler, apparently operating from her offices
in Cape Town from
where she either dispatched instructions or, as was apparent in this
case, refrained from dispatching instructions,
declined to attend
court.
6.2
After
lengthy discussions by the RAF counsel with the claims handler two
revised offers were made to the Plaintiff, one which resulted
in
agreement being reached on the quantum of general damages in the
amount of R800 000. The remainder of the offers were rejected,
which
resulted in the Plaintiff continuing with her case. It was at this
stage, while she had already entered the witness box and
shortly
prior to the interpreter administering the oath that a fresh stance
by the RAF was taken, namely that it would no longer
rely on the
"possibility" of another cause for the minor's injuries and
that it would accept the Plaintiffs expert reports
which could be
accepted as evidence by the mere production thereof (provision for
which had already been made by way of a bundle,
prepared as proposed
in the pre-trial conference) and that the trial could be concluded by
way of argument on the relevant
contingencies
to be applied to the actuarial calculations, which were also no
longer placed in dispute
[7]
.
6.3
By
this time however, the Plaintiff had filled the court benches with
all its experts, one of which had taken an urgent flight to
be able
to attend court, all only to testify in confirmation of the contents
of their previously delivered reports. On the assurance
of counsel
for the RAF that this would no longer be necessary, they were all
excused. The wasted costs for their preparation, reservation
and
attendance had by then already been incurred.
6.4
I
need not repeat the contents of the reports. The basis on which the
actuary calculated the future loss of earnings was, as set
out in the
reports of the Educational Psychologist, the Occupational Therapist
and the Industrial Psychologist that, pre-accident,
the minor would
have completed Grade 12 in a mainstream school after which he would
eventually have progressed to the plateau of
a C2 Median Paterson
scale from age 45 onwards at an annual package of R 467 8198. Due to
his age, the Plaintiff was prepared to
accept a contingency deduction
of 25% in this regard, while the RAF suggested 35%. These was no
basis argued by the RAF for this
increased percentage and, having
regard to, inter alia
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) at 116G - 117A, Goodall v President Insurance Co. Ltd
1978 (1) SA 389
(W) and
Shield
Insurance Co Ltd v Hall
1976
(4) SA 431
(A) I find that a 25% contingency should be applied to the
minor's uninjured scenario.
6.5
Post-accident,
the experts seemed to agree that the minor would not be able to reach
a higher education level than Grade 12 in a
school for children with
special needs and actuarially this related to a career path with a
maximum income of R46 764 per annum
from January 2014 onwards.
Counsel for the RAF suggested 0% contingency without any basis for
such an extraordinary suggestion.
It makes no provision for the
uncertainty of future events or the vicissitudes of life referred to
in the case law. I find that
a 10% higher contingency than pre-morbid
would be justifiable in the circumstances, i.e 35%. The actuary has
provided a useful
table in which all these permutations have been
calculated, resulting in a quantification of the value of loss of
earnings suffered
by the minor being R2 796 058. I have included this
amount in the draft order prepared in blank in this regard by the
Plaintiffs
attorneys (and of which a copy had been furnished at the
conclusion of argument to the RAF's counsel without demur).
Costs
7.1
In
both the minority and majority judgment in the recent decision of
Public Protector v SA
Reserve Bank of SA
[2019]
ZACC 29
of 22 July 2019 the legal principles that guide the granting
of costs orders in litigation have been set out. In the minority
judgment,
punitive costs such as costs on the scale as between
attorney and client are referred to in general in para [36] of the
judgment
with reference to
Madyibi
v Minister of Safety and Security
2008
JDR
0505
(TK) and
Loots v Loots
1974
(1) SA 431
(E) at 433H – 434A.
7.2
In
the abovementioned majority judgment in the constitutional Court the
issue of costs on the scale as between attorney and client
is dealt
with from para [219] and further. I need not repeat the principles
but to state that it is in the ambit of a court's discretion
to award
punitive damages if a litigant's conduct is such that a court would
be justified in marking its
disapproval
thereof by making such an order. Over the years, courts have awarded
cost on an attorney and client scale to mark their
disapproval of
fraudulent, dishonest or mala fide conduct, vexatious conduct or
conduct that amounts to an abuse of the process
of court
[8]
.
7.3
I
hasten to add that the conduct of the RAF counsel and attorney in
this case was never viewed as mala fide or vexations, let alone
fraudulent or dishonest. The RAF panel attorneys also work under a
strict service level agreement which limits their ability to
conduct
a trial without instructions on even such basic and routine steps as
consulting experts, arranging for their reports or
briefing of
counsel timeously for trial. This much has been confirmed by the
RAF's counsel.
7.4
However,
there is another category of conduct which can be sanctioned by a
punitive costs order, that is where the conduct has prejudiced
the
other party, such as in
Limpopo
Legal Solutions v Eskom Holdings SOC Ltd
[2017]
ZACC 34.
A punitive costs order will also be justified where the best
interests of a minor child is compromised such as in
SS
v VV -S
[2018] ZACC 5
; 2018
JDR 0275 (CC).
7.5
The
conduct of the RAF in the manner in which this trial had been run,
also caused extensive unnecessary time wastage and litigation-related
expenses as already set out earlier in this judgment. The Plaintiff
should not be liable for these expenses and the causing thereof
by
the RAF justifies, in my view, a mark of disapproval by this
court
[9]
.
7.6
I
shall accordingly amend the draft order where necessary to reflect
punitive costs against the RAF on the scale as between attorney
and
client. The order also makes adequate provision for the protection of
funds in a trust.
7.7
It
is a matter of grave concern that this case, exhibiting the
incurrence of unnecessary costs, the wastage of time and the
prejudice
caused to a Plaintiff, including a minor child, is
representative of a large number of cases conducted by the RAF
virtually on
a daily basis in this Division. For this reason, I
direct that a copy of this judgment be sent to the acting CEO of the
RAF for
her attention.
[7]
Order
1.
Draft order marked 'X' as
amended is made an order of court.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing: 7 and 8 August 2019
Judgment
delivered: 12 August 2019
APPEARANCES:
For
the Plaintiff :
Adv M
van Rooyen
Instructed
by:
Savage Jooste & Adams Attorneys, Pretoria
For
the Defendant:
Adv. T Madileng
Instructed
by:
Ningiza Homer Attorneys, Pretoria
[1]
Section 28(2) of the Constitution
provides that "a child’s best interests are of paramount
importance in every matter
concerning the child". See also:
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008
(3) SA 232
(CC) at paras [12] - [26] and the cases
mentioned there.
[2]
See:
Hazis
v Transvaal & Delagoa Bay Investment Co Ltd
1939
AS 372 as quoted in Visser & Potgieter Law of
Damages
through the cases
at
[24] and referred to in Swart v Provincial
Insurance co Ltd 1963 (2) SA 630(A).
[3]
See:
Mokhethi
v MEC of Health, Gauteng
2014
(1) SA 93 (GSJ) at paragraph
[25], [26] and [32],
Viking
Inshore Fishing Ltd v Mutual & Federal Insurance Co. Ltd
[2016]
2 All SA 730
(SCA) para [8] and
Kleynhans
v Road Accident Fund
[2016]
3 All SA 850
(GP).
[4]
See:
Nkala &
Others v Harmony Gold Mining Co
(Treatment Action Campaign
NPC and
Another as amic
i
curiae)
2016
(5) SA 240
(GJ) at paragraph [226] and [227].
[5]
See:
Scheider
NO v Aspeling
[2010] 3 All
SA 332 (WCC)
[6]
See:
Holzhausen
v Roodt
1997 (4) SA 766
(W) and
Visagie v Gerryts
2000 (3) SA 670
(C).
[7]
In similar fashion as in
Kleynhans
v
RAF
[2016]
3 All SA 850
(GP) by a full court of this
Division.
[8]
See: Footnotes 175, 176 and 177 at
par [223] of the
Public
Protector-judgment supra
.
[9]
See also:
Nel
v Davis SC NO
2016 JDR
1339 (GP) at para 25.