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[2024] ZAFSHC 254
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T.D.P obo B.O.P v Road Accident Fund (2453/2018) [2024] ZAFSHC 254 (21 August 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable/Not
reportable
Case
number: 2453/2018
In
the matter between
T.D.
P[…] obo B. O. P[…]
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
Coram:
Loubser J
Heard:
21 May 2024
Delivered:
21
August
2024
Summary:
Claim against the RAF on behalf of a young child –
RAF failing to provide its legal representative with any instructions
as
far as the hearing of the matter is concerned.
ORDER
The
Draft Order as set out below, is made an order of Court, as amended.
JUDGMENT
LOUBSER
J
[1]
It is alleged in this matter that a minor child
aged only two years was run over by a motor vehicle along a gravel
road in Thaba
Nchu on 12 July 2016. The child, B[…] O[…]
P[…], was crossing the road at the time of the accident. The
Plaintiff,
T[…] D[…] P[…], is acting in her
capacity as the mother and guardian of the child. The child will be
referred
to as ‘the patient’. The patient is presently
nine years old.
[2]
In the accident, the patient suffered severe
injuries in the form of a moderate traumatic head injury as well as a
thorax contusion.
These injuries resulted,
inter
alia
, in residual symptoms, learning
difficulties and behavioral changes.
[3]
On 18 March 2019, Molitsoane J made the following
orders in this case by agreement between the parties: ‘The
Defendant is
liable to pay 100% of the Plaintiff’s proven or
agreed damages, and the Defendant shall furnish the Plaintiff with an
undertaking
in terms of Section 17(4)(
a
)
of Act 56 of 1996 pertaining to the future medical treatment and
services rendered to the patient. With these orders having been
made,
the only issues which remained unresolved were the future loss of
earnings, the general damages suffered by the patient and
past
medical costs.’
[4]
When these issues came before this Court for
adjudication on 21 May 2024, counsel appearing for the Plaintiff and
the attorney appearing
for the Defendant approached the presiding
Judge in chambers before the trial could commence. The attorney
appearing for the Defendant,
Ms. Megan Booysen, then informed those
present that, although this case was allocated to her by the Road
Accident Fund (RAF), she
was unable to obtain any mandate or any
instructions despite all her efforts. She further indicated that the
matter has, therefore,
become unopposed and that it would serve no
purpose for her to attend the proceedings in Court.
[5]
I
find the failure of the RAF to provide clear instructions to its
attorney in this matter, to be lamentable, at best to put it
softly.
If the Road Accident Fund
was
not interested in contesting the Plaintiff’s claim, it should
have settled the claim there and then. Instead, the Defendant
chose
to show its disinterest by sitting back and causing the Court the
inconvenience of an unnecessary hearing for the better
part of the
day. In the matter of
Baba
Max Mbhele v Road Accident Fund
,
[1]
this Court had to deal with a similar situation. In its judgement
delivered on 16 May 2024, this Court mentioned in no uncertain
terms
that this attitude displayed by the RAF, deserves to be frowned
upon.
[2]
Needless to say, the
RAF did not heed this warning, and simply repeated their deplorable
behavior again in this action. An appropriate
order of costs will
have to follow.
[6]
When the matter proceeded to court, counsel for
the Plaintiff made application in terms of Rule 38(2) for the ten
expert medico-legal
reports, supported by affidavits, to be allowed
as evidence for the Plaintiff without calling the respective experts
to testify.
The Court granted this application in view of the
uncontested nature of the proceedings, and to avoid unnecessary
costs.
[7]
As a result, I do not deem it necessary to deal
with all the expert opinions by the Plaintiff in any detail. Suffice
it to only
highlight some of the findings made regarding the present
condition of the patient and the prognosis for the future.
[8]
The neuropsychologist opines that the cognitive
deficits and the psychological distress suffered by the patient have
rendered him
less competitive in any employment context in comparison
with his peers and pre-accident status. The occupational therapist is
of the opinion that it will be difficult for the patient to secure
employment in the open labour market. Not every employer is willing
to hire and reasonably accommodate a new employee with functional
limitations not sustained in their employment.
[9]
The industrial psychologist summarised the reports
by the various experts and concluded that, but for the accident and
considering
the patient’s pre-accident functioning, he would
have been able to pass grade 12 and would have been able to complete
a diploma
or a degree. In the post-morbid scenario, the patient will
likely leave school with a grade 10 or 11, and enter the open labour
market with a much lower educational level than anticipated but for
the accident.
[10]
Significantly, the overall view of the experts is
not that the patient would be unemployable once he reaches the age of
majority.
His head injury would probably only cause him to reach a
much lower educational level than would have been the case had it not
been for the accident. It speaks for itself that this prognosis would
have a detrimental effect on his future earning capacity and
the
amount of damages he will probably suffer in respect of his future
loss of earnings. It is here that the Court needs to rely
on the
calculations of the actuary to come to a fair and balanced conclusion
as far as the future loss of earnings is concerned.
[11]
The actuary provided the Court with two sets of
calculations based on the expert reports, handed in during the
proceedings. The
first set is based on the assumption that the
patient would have obtained a diploma had the accident not happened.
The second is
based on the assumption that he would have obtained a
degree. In both instances he applied a 20% contingency deduction on
the pre-morbid
figure and a 40% deduction on the post-morbid figure.
In both instances he calculated the future earnings of the patient
until
retirement now that the accident had happened, as the amount of
R1 241 917.
[12]
In the diploma scenario the actuary then indicates
the future loss of earnings to be R5 789 813, and in the
degree scenario
the amount of R9 140 322 after applying the
RAF cap. The last-mentioned amount is the amount that is claimed for
loss
of earnings in the amended particulars of claim.
[13]
Mr. Cross appearing for the Plaintiff, expressed
the view that the Court should have regard to both the scenarios. He
also suggested
that the pre-morbid contingency deduction should be
25% and not 20%. However, I am of the view that the diploma scenario
is likely
to be the correct assumption, and that the pre-morbid
contingency deduction should be one of 30% based on the uncertainties
pertaining
to his uninjured performance in the future. So calculated,
the total loss of future earnings amount to R4 972 943.
[14]
This brings me to the claim for general damages.
It is trite that a court has a wide discretion to award what it
considers to be
a fair and adequate compensation for the injured
party. In exercising this discretion, I have taken note of what the
courts have
awarded in similar cases in the past, and I have kept in
mind that the patient is presently only some nine years of age.
Although
Mr. Cross had suggested an award of R800 000 under this
heading, I am of the view that an amount of R600 000 would
represent
fair compensation for the patient’s general damages.
[15]
In view of the tender age of the patient, the
total amount awarded by the Court should be entrusted to a trust to
be formed for
the benefit of the patient. Ms. Jeanne Helen Rabie, an
attorney, has already expressed her willingness to be appointed as
the trustee
of the trust.
[16]
Mr. Cross has provided the Court with a
draft order incorporating the envisaged Deed of Trust. This draft
order, as amended by the
Court, will then be made an order of Court.
[17]
The following order is made:
1.
The draft order as set out below, is made an order
of Court, as amended.
1.1
The Defendant is liable to pay 100% (One Hundred
Percent) of the Plaintiff's proven or agreed damages, as per the
Court Order dated
18 March 2019.
1.2
The Defendant is ordered to pay the Plaintiff's attorneys the sum of
R5 572 943
(Five million five hundred and seventy-two
thousand nine hundred and forty-three Rand) ‘capital’,
set out as follows:
Loss of earning
capacity:
R 4 972 943
General damages:
R 600
000
TOTAL:
R 5 572 943
The Plaintiff's
Attorney's trust account details are as follows:
ACCOUNT HOLDER:
VZLR INC
BRANCH:
ABSA BUSINESS BANK
HILLCREST
BRANCH CODE:
632005
TYPE OF ACCOUNT:
TRUST ACCOUNT
ACCOUNT NUMBER:
3[…]
REFERENCE:
MAT110251
1.3
In the event of default on the above payment,
interest shall accrue on such outstanding amount at 11.75% (at the
mora rate of 3.5%
above the repo rate on the date on this order, as
per the
Prescribed Rate of Interest Act 55 of 1975
, as amended) per
annum calculated from due date, as per the Road Accident Fund Act,
until the date of payment;
1.4
The issue of past medical costs is separated ito
Rule 33(4) and postponed to the pre-trial roll of 7 October 2024.
2.
The Defendant is ordered to furnish the
Trustee
appointed in
respect of
B[…] O[…] P[…]
(the
Patient/Plaintiff) an Undertaking in terms of
Section 17(4)
(a)
of
the
Road Accident Fund Act 56 of 1996
, for the costs of the future
accommodation of the Patient in a hospital or nursing home or the
treatment of or the rendering of
a service or the supplying of goods
(of a medical and non-medical nature) to the Patient arising out of
injuries sustained by him
in a motor vehicle collision on
12 JULY
2016
(as per the Court Order dated 18 March 2019), in terms of
which Undertaking the Defendant will be obliged to compensate the
Trustee
in respect of the said costs after the costs
have been incurred by either the Patient or by the
Trustee
or
by any party on behalf of the Patient and on proof thereof. The
Defendant is ordered to pay the reasonable travelling costs
and
accommodation for the Patient and his caretaker to and from the
location where he is to receive treatment covered under the
undertaking
.
2.1
Without derogating from the generality of the aforegoing, the
undertaking shall include the reasonable
costs of the formation of an
inter vivos
trust for the benefit of the Patient and the costs
of administration of the said trust by the
Trustee
, including
the costs attendant upon the provision of security by the
Trustee
,
and auditing and / or accounting services.
2.2
A case manager is to be appointed, as per the discretion of the
Trustee,
of which
the cost of such appointment (if necessary) is covered under the
Section 17(4)(a) Undertaking.
3.
The Defendant to pay the Plaintiff's taxed or agreed client and
attorney cost, up to and
including the trial dates of 21 May 2024 and
the date when this order is made an order of court, for the
instructing and correspondent
attorneys, which cost shall include,
but not be limited to the following:
3.1
The fees of Senior Junior Counsel, including but
not limited to the preparation for trial; preparation, consideration
and completion
of the ‘submission document’, heads of
argument accompanying this order; and day fee in respect of the trial
date of
21 May 2024;
3.2
The cost of obtaining all expert medico legal- and
any other reports of an expert nature which were furnished to the
Defendant and/or
it's experts;
3.3
The cost of obtaining documentation / evidence,
scans, considered by the expert(s) to
finalise
their
reports;
3.4
The reasonable taxable reservation, qualifying and
preparation fees of all experts whose report(s) were provided to the
Defendant
and / or its experts,
3.5
The reasonable cost of consultation fees between
the Plaintiff's experts and the Plaintiff's the legal teams regarding
the matter;
3.6
The reasonable cost of one consultation between
the Plaintiff and the Plaintiff's legal team, and to consider the
offer to settle;
3.7
The reasonable taxable reservation fees for 21 May
2024 of the following experts:
Dr
LF Oelofse
Orthopaedic
Surgeon
Mr J Mbhele
Clinical Psychologist
Dr D Mutyaba
Neurosurgeon
Dr Hasrod
Ophthalmologist
N Janse van Rensburg
Audiologist &
Speech Therapist
Ms L Roos
Educational
Psychologist
Dr Oganowski
Ear, Nose & Throat
Specialist
Ms E Kingsley
Rita van Biljon
Occupational Therapists
Mr Ben Moodie
Industrial
Psychologist
DR. L Grootboom
Neuropsychologist
Johan Sauer
Actuary
3.8
The reasonable taxable accommodation and
transportation costs (including toll and e-toll charges) incurred on
behalf of or by the
Patient (including one person having to accompany
him) in attending medico legal consultations with all experts,
consultations
with the legal representatives and the Court
proceedings;
3.9
The reasonable cost for an interpreter's
attendance at court and at the medico legal appointments for
translation of information;
3.10
The above-mentioned payment with regard to costs
shall be subject to the following conditions:
3.10.1
The Plaintiff shall, in the event that costs are
not agreed, serve the notice of taxation on the Defendant's attorney
of record;
and
3.10.2
The Plaintiff shall allow the Defendant 14
(fourteen) calendar days to make payment of the taxed costs;
3.10.3
The Defendant is to request and load payment
within 14 (fourteen) calendar days from date of settlement / taxation
of the bill of
cost, with proof of same to be sent to the Plaintiff’s
attorneys;
3.11 The
Plaintiff's Attorney's trust account details are as follows:
ACCOUNT HOLDER:
VZLR INC
BRANCH:
ABSA BUSINESS BANK
HILLCREST
BRANCH CODE:
632005
TYPE OF ACCOUNT:
TRUST ACCOUNT
ACCOUNT NUMBER:
3[…]
3.12 In
the event of default on the above payment, interest shall accrue on
such outstanding amount at the mora
rate of 3.5% above the repo rate
on the date of taxation / settlement of the bill of cost, as per the
Prescribe Rate of Interest
Act, 55 of 1975, as amended, per annum,
calculated from due date until the date of payment.
4.
The award to the Plaintiff shall be protected by means of it being
entrusted to a trust to
be formed for the benefit of
the
Patient
.
5.
Until such time as the
Trustee
,
JEANNE HELEN RABIE
,
still to be appointed and the trust to be erected, is able to take
control of the capital sum and to deal with same in terms of
this
order, the Plaintiff’s attorneys of record:
5.1
Shall be prohibited from dealing with the capital in any other manner
unless specifically authorised
thereto by the Court, subject to
paragraph 6.2 – 6.5 hereunder;
5.2
Are authorised to invest the capital amount in an interest-bearing
account with a registered banking
institution in terms of Section
86(4) of the Legal Practice Act, Act No: 28 of 2014, to the benefit
of the Patient and will only
be allowed to pay such monies over to
the
Trustee
of the trust to be created in terms of paragraph 5
of this order, once the Master of the High Court has issued the
Trustee
with the necessary letters of authority;
5.3
Are further authorized to pay the costs to set security of the funds
held in trust, from the capital
received, to the relevant insurer by
the
Trustee
of the trust to be created, which costs in turn
must be refunded by the Defendant to the Plaintiff in terms of
paragraph 3;
5.4
From date of receiving the capital and up and till the Master of the
High Court has issued the
Trustee
with the necessary letters
of authority, are authorised and ordered to make payment in the
amount of R 10 000.00 per month
as, as well as such other
amount(s) that may reasonably be indicated and/or required for the
wellbeing of the Plaintiff and/or
in his/her interest which a
diligent
Trustee
would have paid had such
Trustee
been
appointed;
5.5
Are
authorised
to make payment of the
attorney and client costs, being fees, disbursements and interest on
paid disbursements, of the Plaintiff’s
attorneys.
6
The nominated
Trustee
is ordered to furnish security to the
satisfaction of the Master of the High Court.
7
The nominated
Trustee
shall attend to the creation of an
inter
vivos
trust in order to protect the awarded funds to the
exclusive benefit of the Plaintiff.
8
The trust to be erected for the benefit of the Patient on these
papers, with powers
which shall include (but not be limited to) the
powers as referred to in the Trust Deed attached hereto as
Annexure
‘
A
’ are regarded as incorporated into this order.
9
The Defendant is ordered to pay the costs in respect of the creation
and future administration
of the said trust, to be formed in order to
manage and administer the compensation payable to the Patient as
referred to in paragraph
2, 3, 4 and 6 of this order, which costs
will include the fees of the
Trustee
.
10
The reasonable remuneration to which the
Trustee
will be
entitled in respect of the execution of the
Trustee
’s
official duties is as follows:
10.1 An
acceptance/establishment fee of 1% (Excl. VAT) on all capital
introduced into the Trust.
10.2 An
annual administration fee based on a percentage of the value of the
assets under administration, which percentage
will be subject to the
following sliding scale:
10.2.1
R0.00 – R500 000.00 – 1.5% (Excl. VAT)
10.2.2
R500 000.00 – R1 000 000.00 – 1.25% (Excl. VAT)
10.2.3
R1 000 000.00 – 1% (Excl. VAT)
10.3
The undertaking contemplated by section 17(4)(a) of Act 56 of 1996
will be administered by the
Trustee
, and the
Trustee
or
his agent/attorney will be entitled to an administration fee of 10%
on all successful claims.
10.4 Travel
expenses for purposes of attending to Trust related matters.
10.5 A
termination fee of 2% (Excl. VAT) on the assets of the Trust at the
time of termination/dissolution of
the Trust.
10.6
The Trust shall pay to the
Trustee
the
Trustee’s
usual charges for any work performed by the
Trustee
beyond the
ambit of the
Trustee’s
official duties, in her capacity
as attorney acting on behalf of the Trust.
P.J. LOUBSER, J
For
the Plaintiffs:
Adv.
C. G. Cross
Instructed
by:
VZLR
Inc, Monument Park
c/o
Du Plooy Attorneys, Bloemfontein
For
the Defendant:
No
appearance
[1]
Mbele
v Road Accident Fund
[2024]
ZAFSHC 161.
[2]
Ibid para 6.