Summary of Judgment

1. Introduction

This judgment concerns a claim for compensation against the Road Accident Fund arising from bodily injuries sustained by the plaintiff in a motor vehicle collision. The proceedings were conducted in the High Court of South Africa, Free State Division, Bloemfontein, under case number 2980/2016, with judgment delivered on 30 October 2018.

The parties were M M as plaintiff and the Road Accident Fund as defendant. Liability for the accident was not in issue at the hearing of the present judgment because the merits had been conceded in favour of the plaintiff, and an order to that effect had previously been granted by Mhlambi J on 13 June 2017.

The remaining dispute concerned quantum. The court was required to determine the plaintiff’s entitlement to past and future loss of income and past and future medical expenses. The plaintiff’s general damages claim was not adjudicated in this judgment because it had been rejected by the defendant and was to be referred for determination by an appropriate tribunal (with the final order referring it to the HPCSA).

2. Material Facts

A motor vehicle collision occurred on 29 November 2015, in which the plaintiff sustained injuries. The claim was pursued against the Road Accident Fund, and by the time of trial the defendant had conceded the merits, leaving only certain aspects of quantum for determination.

The medical evidence accepted by the court established that the plaintiff underwent a ligament operation on 11 December 2015, intended to stabilise the collar bone and return it to its normal position. According to the orthopaedic evidence, the operation did not achieve the intended stabilisation because the clavicle remained mobile thereafter. The evidence further indicated that, even with optimal treatment, the plaintiff would retain a functional deficit involving the left shoulder and left arm, with associated restrictions on physical activity.

The occupational therapy evidence accepted by the court identified functional limitations in the plaintiff’s left arm, including difficulty working at an elevated level and limitations affecting lifting and use of the arm. The evidence indicated that even after optimal treatment, the plaintiff should avoid using the arm in a manner that risks re-injury, and that she was not capable of handling medium to very heavy work demands.

The industrial psychology evidence, as summarised in the judgment, linked the plaintiff’s injury sequelae to an adverse impact on her work prospects and earnings, and expressed the view that her career prospects and associated earnings had been “nullified”, resulting (on that evidence) in a total loss of earnings.

On the actuarial calculations presented, the plaintiff’s loss of earnings was quantified at R 1 319 374.00. The plaintiff’s own evidence described the effect of the injuries on her ability to earn a living in her work as a vendor and general worker, stating she was unable to perform those duties at the time of trial. The court recorded that this evidence, like the expert evidence, was uncontested because the defendant led no evidence.

In relation to medical expenses, the court recorded that no evidence was led for past and future medical expenses, and therefore held there was no basis to award such damages on the evidence presented.

3. Legal Issues

The central questions before the court were concerned with quantification and proof of damages on the remaining heads of claim after the concession on merits. In particular, the court had to determine whether, on the evidence led, the plaintiff had proved entitlement to an award for past and future loss of income, and whether an award could be made for past and future medical expenses.

The dispute was primarily one of the application of law to facts and the assessment of whether the plaintiff had discharged the onus on a balance of probabilities, especially in circumstances where the defendant elected to call no evidence. It also entailed an evaluative assessment of the expert evidence insofar as it bore on the plaintiff’s functional capacity and earning ability.

A further procedural issue addressed in the order concerned the separation of issues for determination, and the appropriate mechanism for determining general damages in the context of Road Accident Fund litigation (with referral to the HPCSA as reflected in the order).

4. Court’s Reasoning

The court approached the matter on the basis that the defendant led no evidence, and therefore the plaintiff’s case depended on whether the evidence she presented was credible and sufficient to meet the standard of proof. The court expressly found the plaintiff and her expert witnesses to be honest and objective, and stated there was no reason to doubt their evidence.

In evaluating the plaintiff’s evidence on loss of earning capacity, the court relied on the orthopaedic and occupational therapy evidence as demonstrating ongoing functional impairment of the left shoulder and arm, including restrictions inconsistent with labour-intensive work. The orthopaedic evidence was understood to support the conclusion that the plaintiff could not perform physical labour and should not be permitted to do so. The occupational therapy evidence was accepted as supporting the conclusion that the plaintiff would not meet the functional demands of physical labour, including handling heavier weights and working at elevated levels.

The court accepted the industrial psychology evidence that the plaintiff’s injury sequelae had effectively negated her work prospects and earnings, and it accepted the actuarial quantification of the loss presented. In this context, the court articulated the principle that a strong prima facie case which remains unanswered can become proof on a balance of probabilities, and cited authority in support of that approach.

By contrast, on the head of past and future medical expenses, the court reasoned that because no evidence was led to support these claimed amounts, there was no basis to make an award for such damages. The judgment thus distinguished between those heads of damage for which the plaintiff led evidence (loss of earnings) and those for which she did not (medical expenses), and limited the monetary award accordingly.

On costs, the court applied the general principle that costs follow the event, resulting in a costs order in favour of the plaintiff. The order further regulated interest and various cost components, and addressed the mechanism for future medical-related relief through a statutory undertaking.

5. Outcome and Relief

The court granted judgment in favour of the plaintiff for loss of earnings in the amount of R 1 319 374.00, with payment directed to the plaintiff’s attorneys’ trust account. The court further ordered that, in the event of default, interest would accrue at 10% per annum calculated from 14 November 2018 until payment, with the rate described as the mora rate linked to the repo rate as contemplated in the applicable interest legislation.

The court did not award damages for past and future medical expenses on the basis that no evidence had been led to establish such damages. Notwithstanding the absence of a monetary award on that head, the court ordered the defendant to furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act in respect of future hospital, nursing home, treatment, services, or goods (medical and non-medical) arising from the collision, subject to proof of costs incurred, and created a costs consequence if the undertaking was not furnished within 30 days.

The court ordered a separation of issues in terms of Rule 33(4), separating the issues of loss of earnings and future medical and hospital expenses from the remaining issues in quantum. The remainder (identified in the order as past medical and hospital expenses and general damages) was postponed sine die. The issue of general damages was referred to the HPCSA for determination.

The defendant was ordered to pay the plaintiff’s taxed or agreed party-and-party costs up to and including the trial dates, including specified items such as counsel’s fees and qualifying and attendance fees for experts, subject to taxation/settlement processes and interest on late payment of costs as set out in the order.

Cases Cited

Nzimande v MEC for Health, Gauteng 2015 (6) SA 192 (GP).

Legislation Cited

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

Prescribed Rate of Interest Act 55 of 1975 (as amended).

Rules of Court Cited

Uniform Rule of Court 33(4).

Held

The court held that, because the defendant led no evidence and the plaintiff’s evidence was accepted as honest, objective, and uncontested, the plaintiff established entitlement to an award for past and future loss of income as quantified by the actuarial evidence, in the amount of R 1 319 374.00.

The court further held that there was no evidentiary basis upon which to grant a monetary award for past and future medical expenses, because no evidence had been led to prove those damages. The court nonetheless ordered the defendant to provide a statutory undertaking in terms of section 17(4)(a) for qualifying future medical-related costs.

The court held that costs should follow the event, and granted a costs order in favour of the plaintiff, together with interest provisions and ancillary directions. The court also ordered the separation of issues under Rule 33(4) and referred the issue of general damages to the HPCSA.

LEGAL PRINCIPLES

A plaintiff’s prima facie case, where it is strong and is left unanswered because the opposing party adduces no evidence, may be accepted as constituting proof on a balance of probabilities, provided the court is satisfied as to the credibility and reliability of the evidence presented.

A claimant bears the onus to prove damages under each head of claim. Where no evidence is led to substantiate a particular head of damages (such as past or future medical expenses), a court may find there is no basis to make a monetary award under that head.

In Road Accident Fund matters, a court may grant an undertaking under section 17(4)(a) of the Road Accident Fund Act 56 of 1996 to cover qualifying future medical-related costs, subject to proof of expenditure, as part of the appropriate relief structure even where a cash award for medical expenses is not supported on the evidence in the particular proceedings.

The court may order separation of issues under Uniform Rule 33(4) to facilitate determination of certain aspects of quantum independently from others, and may postpone unresolved components of quantum for later determination.

The general rule that costs follow the event applies unless displaced by considerations warranting a different order, and interest on judgment amounts and costs may be regulated in accordance with the Prescribed Rate of Interest Act 55 of 1975 (as amended) and the terms of the court’s order.