Summary of Judgment

1. Introduction

This was a delictual damages action arising from a motor vehicle collision, instituted against the Road Accident Fund (RAF) in terms of the statutory scheme governing compensation for road accident victims. The proceedings concerned the determination of quantum after the RAF conceded liability.

The plaintiff was Mr Mesa Francis Hale, a 51-year-old security officer. The defendant was the Road Accident Fund, cited in its capacity as the statutory compensator for loss caused by the driving of motor vehicles.

After the close of pleadings, the matter was enrolled for hearing on both merits and quantum. At trial, however, no viva voce evidence was led. The parties’ legal representatives presented a written stated case and requested the court to adjudicate the matter on that basis without further oral argument. The RAF conceded the merits 100% and tendered to furnish the customary undertaking in terms of section 17(4) of the Road Accident Fund Act 56 of 1996.

The dispute ultimately concerned only the appropriate awards for general damages and the appropriate contingency deductions to be applied to an actuarially calculated loss of income.

2. Material Facts

On 28 February 2015, the plaintiff was knocked down by a motor vehicle in Bloemfontein. At the time, he was employed as a security officer and resided in Botshabelo. These background facts formed the context for the claim and were not treated by the court as controversial.

In the litigation posture placed before the court, liability for the collision was not in issue. The RAF conceded the merits in full, resulting in the court being required to determine quantum only.

The court proceeded on the basis of agreed and/or uncontested material contained in the stated case and expert material, including the joint minutes and an actuarial computation. The plaintiff’s loss of income was calculated by actuary Mr R J Koch, but the parties differed on the contingency deductions to be applied to that agreed computation.

The plaintiff sought R950,000.00 for general damages, while the defendant contended for R750,000.00. In relation to loss of income, the parties were agreed on the actuarial approach as presented, but not on contingencies: they agreed on a 5% deduction for past loss, and differed on future loss (the plaintiff contending for 15%, the defendant for 20%).

A key feature bearing on contingencies, as evaluated by the court, was that the actuarial calculation incorporated an assumption (originating from industrial psychological material) that the plaintiff would have been promoted shortly after the accident, with a significant increase in remuneration. The court noted that this assumption was based on hearsay information obtained from a human resources source at the plaintiff’s former employer and not corroborated by evidence from direct supervisory personnel.

3. Legal Issues

The central legal questions were confined to quantum and were essentially questions of application of law to fact coupled with discretionary evaluation. The court was required to determine, first, what amount constituted fair and reasonable general damages for the plaintiff’s injuries when guided by comparable awards.

Second, the court was required to determine what contingency deductions should be applied to the agreed actuarial calculation of loss of income, particularly in circumstances where the underlying factual premise for a promotion-related earnings increase was viewed as potentially unreliable.

Although the parties had placed joint expert material and agreed computations before the court, the matter also raised the extent to which a court may test the reliability of expert agreements and assumptions when performing the judicial function of determining compensation.

4. Court’s Reasoning

On general damages, the court approached the matter by considering the severity of the plaintiff’s injuries and their employment consequences as reflected in the agreed material and expert joint minutes, while expressly stating that it did not intend to repeat or evaluate the evidence in detail. The plaintiff relied on three prior decisions as comparators. The court indicated that, although there were differences between those cases and the present matter, the injuries were reasonably similar, making the awards useful as guides.

The court took account of the historical awards in those matters and the present-day value of the awards as placed before it. On that comparative exercise, the court concluded that R750,000.00 was “more than generous and fair” and represented the upper limit of awards for broadly similar injuries. The court rejected the plaintiff’s proposed R950,000.00 as unrealistic in the circumstances assessed.

On contingencies, the court reiterated that contingency deductions are not mechanically determined and that the so-called “sliding scale” described in Road Accident Fund v Guedes could serve as a guide but could not be treated as determinative. The court emphasised the inherently uncertain nature of predicting future events and earnings and recorded that the application of contingencies is largely arbitrary, depending on the trial judge’s impression of the case.

The court’s primary concern was directed at the reliability of the earnings premise embedded in the loss-of-income calculation, particularly the assumption that the plaintiff would have been promoted with an increase in remuneration of well in excess of 200%. The court noted that the industrial psychologist had accepted hearsay information from a human resources source, which became foundational for the actuarial modelling. The court questioned the reliability of that information, including the absence of enquiry with personnel directly responsible for security operations and the absence of evidence demonstrating that the plaintiff was in fact likely to be promoted after many years in the same position.

In addressing the parties’ expectation that the court should accept their agreed factual basis, the court referred to authority indicating that a court may test the reliability of joint expert opinions and that such opinions may be rejected where based on incorrect facts. While the court stated it had no issue with the joint minutes as such, it treated the underlying promotion assumption as a factor justifying a more conservative approach through contingencies.

Rather than referring the matter back to the actuary to recompute the loss on a different factual scenario, the court elected, in light of the parties’ agreement and the way the case had been presented without oral evidence, to adjust the outcome by refusing to apply what the plaintiff described as the “normal” 15% future contingency. The court concluded that a 20% future contingency deduction (as proposed by the RAF) was generous to the plaintiff, while adding that an even higher deduction might have been justified but would be unfair given the contours of the parties’ stated positions.

5. Outcome and Relief

The court awarded the plaintiff a total sum of R2,256,417.60, comprising R750,000.00 for general damages and R1,506,417.60 for loss of income (reflecting, on the court’s approach, a 20% future contingency deduction and 5% past contingency deduction as advanced in the parties’ dispute).

The court ordered interest on the capital amount at 10% per annum, calculated from the day after the lapse of 14 days from the date of the order to the date of final payment. Payment was directed to be made into the trust account of the plaintiff’s attorneys identified in the order.

The RAF was ordered to furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 to compensate for qualifying future medical and related costs arising from the injuries, after such costs have been incurred and on proof thereof.

The RAF was ordered to pay the plaintiff’s taxed or agreed party-and-party costs on the High Court scale, including the costs associated with the employment of specified expert witnesses, together with their qualifying, reservation, and attendance fees (where applicable), and associated consultation, travelling, and accommodation costs as described in the order.

Cases Cited

Smit v Padongelukkefonds 2003 (5) QOD E3-11 (T).

Ncama v Road Accident Fund 2015 (7E3) QOD 7 (ECP).

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

Road Accident Fund v Guedes 2006 (5) SA 583 (A).

Glenn Marc Bee v Road Accident Fund (093/2017) [2018] ZASCA 52 (29 March 2018).

Bonesse v Road Accident Fund 2014 (7A3) QOD 1 (ECP).

Legislation Cited

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

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The RAF’s concession of merits resulted in the court determining quantum only. General damages were fixed at R750,000.00 as a fair and generous award within the upper range suggested by comparable cases. The loss-of-income award was determined by applying contingencies that included a 20% deduction for future loss, in circumstances where the court regarded the underlying promotion assumption in the actuarial modelling as insufficiently reliable. The plaintiff was awarded R2,256,417.60 in total, together with interest, a statutory section 17(4)(a) undertaking, and party-and-party costs including specified expert costs.

LEGAL PRINCIPLES

In assessing general damages, previous awards in matters involving reasonably similar injuries may serve as guides, while the final determination remains a value judgment directed at fairness and reasonableness in the circumstances of the particular case.

A contingency deduction is not determined by rigid formula. The “sliding scale” approach mentioned in Road Accident Fund v Guedes may be used as a guide but is not conclusive, and the quantification of contingencies remains largely discretionary and dependent on the trial judge’s assessment of the case.

A court is entitled to test the reliability of expert opinions, including joint expert opinions, and may decline to adopt them where they are premised on incorrect or unreliable facts, consistent with the approach referred to in Glenn Marc Bee v Road Accident Fund (093/2017) [2018] ZASCA 52 (29 March 2018).