RAF

Pre and post-accident: The minor was a pedestrian walking outside the road when knocked by a motor vehicle. The minor was 7 years old when the accident occurred. An occupational therapist reported that the minor has emotional liability with aggressive tendencies which are displayed at home and at school even towards the teachers. The OT opined that if the minor current academic performance and emotional trajectory is maintained, he is unlikely to pass Grade 12.

Claim: The plaintiff has sued the defendant for a total amount of R12,000,000. The plaintiff submitted that the court should decide on the two heads of damages, the first for the minor’s past and future loss of earnings and the second, for general damages.

Assessment: The IP noted the opinion of the educational psychologist that the minor was most probably a child of at least average intelligence and further that the minor was probably had the ability to pass grade 12 and probably the ability to pursue tertiary studies. In the light of the available information as well as the educational psychologist’s opinion, the IP opined that the minor’s pre-accident learning and earning potentials are likely to have been that after completing his matric, probably in 2026, the minor could have enrolled for a bachelor’s degree of his choice. Upon completion of his degree probably in 2029/30. It could have taken him about 12 months to do a learnership or internship in which he could have earned on par with suggested learnership allowance of R105,872 per annum as per Quantum yearbook 2023. In the unlikely event that he secures employment in his injured state, he is likely to earn at the lower quartile of unskilled workers with periods of unemployment in between. Should he be fortunate enough to sustain his employment, he will most likely reach his ultimate earning potential between the median and upper quartile of unskilled workers when he reaches 45 years with applicable inflationary increases for as long as he manages to sustain employment.

Findings: The plaintiff’s counsel submitted that considering the minor’s age, qualification, injuries and the injuries sequelae, 35% contingency deductions are reasonable. The court finds the contingency deductions of 35 % being reasonable when considering all factors, among others, the injuries sequelae, and the minor child’s school reports. The future loss of earning after the deduction of 35% contingency is calculated as follows; R12,747,574 – 35 % (R 4 461 650) = R8,285,923.

Award: The defendant shall pay to the plaintiff the amount of R8,285,923 in relation to the future loss of earnings. The defendant shall pay the amount of R850,000 for general damages.

Facts and issue: Application in terms of Uniform Rule 34A(1) whereby the applicant seeks an order directing the respondent to make an interim payment in respect of the applicant's past loss of earnings, past hospital and medical expenses, and future hospital, medical and related expenses arising from the injuries sustained in the motor vehicle accident that took place.

Discussion: The thrust of respondent’s argument is that plaintiff has not met the requirements for an interim payment in terms of Rule 34A since the respondent has not admitted liability to the applicant for the injury sustained in the motor vehicle accident. The medical aid scheme is compelled to cover certain expenses incurred by its members and consequently the respondent is unable to contract out of such obligation. The applicant has complied with the requirements of section 34A in that the applicant has instituted an action against the respondent. The applicant’s damages have been adequately set out in the applicant’s founding affidavit, and the respondent cannot escape the fact that it has admitted its statutory liability to the applicant in terms of section 17 of the Act. The respondent expressly admitted its statutory liability, in paragraphs 2 as well as 3 of its plea, stating that the cause of the collision was due to the sole negligence of its insured driver. Therefore, respondent has no grounds to circumvent the contents of its plea.

Findings: The ill-conceived attempt to rely on the internal directive, as its justification to avoid the payment, has been declared ultra vires in a previous judgment. This implies that the respondent is flagrantly disregarding court decisions. It is not entitled to act as it pleases. It cannot escape its mandate and to provide compensation to victims of motor vehicle accidents in respect of Past medical and hospital expenses, as this is a collateral benefit that is to be disregarded and coincides with the res inter alios acta principle. The respondent’s refusal to pay such claims, despite legal precedent, is disrespectful towards the judicial authority vested in the judicial system. The respondent’s conduct ought to be met with displeasure and a punitive cost order.

Order: Payment in the sum of R53,312.98 in respect of applicants’ past hospital and medical expenses is ordered. Payment in the sum of R11,596 is ordered in the respect of past loss of income.

Facts and issue: The plaintiff instituted action for the recovery of delictual damages in terms of the Road Accident Fund Act 56 of 1996, because of the personal injuries sustained during a motor vehicle collision. The plaintiff was a pedestrian and was allegedly knocked down by a motor vehicle while he was running or walking. The plaintiff testified viva voce and stated that he was running/jogging on the pedestrian’s sidewalk when an oncoming VW Polo motor vehicle left the road and knocked him down. As result of that collision, he fell into a ditch. He said the accident was a so-called “hit and run” as the vehicle did not stop after colliding with him.

Discussion: The defendant argued that plaintiff’s testimony was contradictory and that the cautionary rules of evidence must be applied when admitting such evidence. The defendant pointed out that the plaintiff’s evidence contradicts his particulars of claim as well as his section 19(f) statement in a material respect in that while in the particulars of claim he alleges that he was walking at the time of collision, during his testimony the plaintiff denied that he was walking at the time of the accident. There is indeed a material discrepancy between the plaintiff’s pleadings, the section 19(f) affidavit and the viva voce evidence regarding what the plaintiff was doing when the motor vehicle allegedly knocked him over. The plaintiff’s contention that it is not important whether he was running or walking is wrong. Even though it is common cause as alleged in the particulars of claim that the plaintiff was at all material times a pedestrian, what he was doing cannot be said to be immaterial. Whether he was running or walking is still important for the determination of liability.

Findings: Whether the plaintiff was running, walking or crossing the road is relevant. In the light of the anomalies in the plaintiff’s version, it cannot be said that the plaintiff did not contribute to the collision. It cannot be ignored that the plaintiff’s evidence is materially contradictory. There was contributory negligence on the part of the plaintiff. Pre-morbid, the plaintiff is being pitched at a higher level. Therefore, at the very least, the contingency to be applied should at least be double the usual contingencies applied. Conversely, as the plaintiff is pitched post-morbid at a very low level, no contingencies should be applied to the post-morbid projected income for the simple reason that he may very well perform and earn at a level higher than where he is pitched.

Order: The defendant is liable for 80% of plaintiff’s proven or agreed damages. The defendant shall pay the plaintiff an amount of R2,331,604 in full and final settlement of the plaintiff’s claim for loss of earnings.

Facts and issue: The applicant, the Road Accident Fund, applied for a declarator that would end an alleged unwarranted practice relating to the levying of interest on amounts contained in court orders where the said court order did not provide for the levying of interest on those amounts. Furthermore, the applicant seeks that the practice of indemnifying the Sheriff of the High Court, when holding auctions based on unlawful writs of execution for the payment of interest be declared unlawful. The writs are allegedly unlawful as those are issued without a court order providing for interest.

Discussion: Section 2 of Prescribed Rate of Interest Act 55 of 1975 (PRIA) provides for interest on a judgment debt, unless that judgment or order provides otherwise. Absent an adverse ruling on interest contained in the judgment or order, the judgment debt shall be subject to interest payable thereon, which may be recovered as if it formed part of the judgment debt on which it is due. It is clear from the provisions of section 2(1) of PRIA, that the interest would be from the day on which such judgment debt is payable. The rate of interest is determined in terms of the provisions of PRIA. Upon execution of a writ on a judgment debt, the amount to be paid is certain by way of a simple calculation with reference to the interest payable. There is and can be no ambiguity as to the amount to be recovered from the debtor. Such writs are not unlawful as contended for by the applicant. Furthermore, calculation of the interest on the judgment debt occurs ex lege at the date on which the writ is issued.

Findings: Regarding the applicant's contention relating to the issue of interest, there is equally no merit. Interest is payable on judgment debts as well as claims for payment of monies in general. The proposal advanced by the applicant that the court should determine the rate of interest applicable and the date from which it ought to run in the judgment order, is contrary to the provisions of PRIA and the legal position. Both the rate and date from which it is to run is determined ex lege. The further proposal by the applicant that an affidavit be submitted in which the calculation of interest is calculated to be incorporated into the writ is of no consequence. That issue should be addressed by the Rules Board.

Order: The application is dismissed.

Facts and issue: The applicant (RAF) applies for rescission of the judgment granted by default. The RAF also seeks condonation for the late filing of this rescission application in terms of rule 3(2))(b) of the Uniform Rules. Despite overwhelming evidence that there was proper service on the RAF, it failed to appear and failed to file a notice of intention to defend. This resulted in the order by default in favour of the respondent. The RAF now seeks to rescind the default order and judgment but launched its application to rescission 6 months late.

Discussion: On the eve of the hearing date, the RAF uploaded its assessors report onto Caselines and also uploaded an offer of settlement. The settlement offer was uploaded by the State Attorney. In this settlement, the RAF proposed to settle the merits, future loss of earnings as well as general damages. Yet, even at this late stage, the RAF did not attempt to oppose the matter and remained inactive. Moreover, even though the State Attorney had been on record and had access to Caselines, the RAF inexplicably did not instruct the State Attorney to defend the matter. The irresistible inference is that the RAF chose not to defend the matter. Moreover, given the numerous emails and notices served on the RAF, it is difficult to argue that the RAF could not have been aware of the hearing date. The explanation offered is not reasonable. While the oversight regarding the summons might be excusable, the subsequent notification of two default judgment hearings to the RAF, including multiple staff members and the State Attorney, undermines any claim that it was unaware of the default judgment proceedings.

Findings: Because the RAF was in wilful default, the rescission application must fail on this basis alone. The respondent suffered various serious injuries because of the accident and suffered serious sequelae as a result thereof. Having regard to the expert opinions, the extent of the injuries suffered by the respondent and the impact it will have on his career progression, the RAF has no prospects of success in successfully defending the matter in the action.

Order: The application is dismissed.

Facts and issue: The applicant, on behalf of a minor child, has launched the present application, effectively seeking to review and set aside a decision made by the Road Accident Fund Appeal Tribunal (Tribunal), in terms of which, the Tribunal confirmed the rejection of the serious injury assessment report (SIAR), by the Road Accident Fund (RAF). The rejected SIAR was prepared by Dr Gavin Fredericks, following an assessment he conducted. The minor child was struck by a motor vehicle while crossing the street on his way home from school. At the time of the collision, the minor child, then seven years old, was rebuttably presumed to be doli incapax.

Discussion: The reasons advanced by the RAF for rejection were recorded in the rejection letter as the whole person impairment (WPI) assessed in the RAF form is not of such a nature and severity to qualify as serious as the plaintiff will not reach 30% WPI; and the injuries sustained currently form part of the list of non-serious injuries. The Tribunal met and considered the dispute. It reached a conclusion that the injuries sustained by the minor child may be classified as non-serious injuries in terms of the narrative test. The ground of inadequate reasons is opportunistic and arose as an afterthought. The review was launched, which in itself suggests that adequate reasons have been furnished. The Tribunal gave detailed reasons for finding that there were no significant Narrative Test issues to justify a classification of the injuries. It must be borne in mind that where reasons are provided, the end point is not an agreement with the view point of the administrator but an understanding of the decision.

Findings: The decision of the Tribunal falls within the bounds of reasonableness. Outside the pleaded case, the applicant introduced a case based on the legality principle. The applicant is not permitted to do so. In an instance where a right to reasons and the record has been waived, it is difficult for a court of review to perform its review functions, particularly when assessing the ground of ignoring relevant considerations and considering irrelevant ones, failure to apply mind. Overall, there is no legal basis to interfere with the findings reached by the Tribunal, particularly considering the nature of the injuries. The injuries sustained by the minor child form part of the list of non-serious injuries. These injuries are incapable of satisfying the narrative test. As a result, the application for review falls to be dismissed.

Order: The application for review is dismissed.

Facts and issue: The plaintiff sues the defendant for injuries that she sustained from a motor vehicle accident. The plaintiff was a passenger in a motor vehicle when the vehicle got involved in a collision. The plaintiff is suing for loss of earning capacity and general damages. The merits were settled 100% in favour of the plaintiff. The only issues for determination are loss of income and general damages.

Discussion: The plaintiff’s highest standard of education is grade 11. Pre-accident the plaintiff worked as a cashier at a fast-food outlet, earning a salary of about R2,900 to R3,200 00 per month. Her job involved travelling to and from work for about 30 minutes. Her work fell in the light sedentary category. She returned to her work after recuperation. The plaintiff was able to stand for about 30 minutes during her assessment, she showed equal weight bearing throughout the activities. She however continued to experience pain in her left wrist particularly during busy periods and cold weather. The plaintiff’s highest standard of education is grade 11. She thereafter managed to obtain a security certificate and a computer literacy certificate. Due to her low level of education the plaintiff would be expected in future to continue to rely on her physical aptitudes as an economic safety net. Her reduction in physical capacity constitutes a significant loss as it negatively affects her prospective employment.

Contingencies: The plaintiff did not have a history of ailments or injury that could have a negative effect on her employment capacity before the accident. The normal contingency deduction of 5% will be applied on the plaintiff’s pre-injury earnings. A higher-than-normal contingency of 30% will be applied to her post injury earnings.

Order: The defendant is ordered to pay R1,744,455 for loss of earning capacity and R400,000 for general damages.

Facts and issue: Action brought by the plaintiff against the defendant for damages amounting to R1,085,869 for bodily injuries sustained in a collision with the motor vehicle, at which time the plaintiff was a pedestrian. The plaintiff is suing the defendant for past and future medical and hospital expenses, general damages and future loss of earning capacity. The issues for determination are liability, future loss of earnings or earning capacity, and future medical and hospital expenses.

Negligence and causation: No one has an absolute right of way on the public road. The plaintiff also had a duty to avoid the collision. He failed to give evidence showing that he took steps to avoid the collision. He testified that he did not see the insured motor vehicle before the collision. This version implied that he failed to keep a proper lookout and observe the motor vehicles approaching from behind. He was walking in the emergency lane along the converging traffic. The emergency lane is not reserved for the exclusive use by the pedestrians. On the evidence presented by the plaintiff, the insured driver was causally negligent, but he was not solely responsible for the collision. The collision was caused by the joint and contributory negligence of the insured driver and plaintiff.

Findings: The plaintiff has submitted that a contingency deduction of 12% be applied for future loss on the uninjured income and 32% on the injured income. The Actuary has applied the contingency deductions suggested by the plaintiff. The contingency deductions applied by the Actuary on pre-morbid and post-morbid earnings result in a fair and just compensation for the plaintiff’s future loss of earnings.

Order: The defendant is liable to pay 80% of the plaintiff’s proven damages for bodily injuries sustained. The defendant shall pay to the plaintiff an amount of R131,100 for future loss of earnings.

Facts and issue: The plaintiff instituted an action for damages resulting from the injuries he sustained in a motor vehicle accident. The plaintiff was a driver at the time of the accident. The defendant contends that although the plaintiff was involved in a motor vehicle incident, he has however given contradictory versions regarding how the alleged collision took place. The defendant argues that the court should find that the plaintiff was negligent and substantially contributed to the occurrence of the accident. The matter proceeded on the determination of the liability.

Discussion: There is a contradiction between the particulars of claim, the affidavit, and the plaintiff’s viva voce evidence regarding the description of the collision. The essence of the contradiction is that the in the pleadings and the section 19(f) affidavit the plaintiff expressly averred that the plaintiff collided with an oncoming vehicle which left its lane of travel and collied with his. However, in his oral testimony the plaintiff alleged that he collided with a truck which came from behind him. These two versions are not only material, but they are also diametrically opposed and irreconcilable. The plaintiff’s counsel indicated that he intends making an application for the amendment of the particulars of claim to bring same in line with the viva voce evidence.  The problem with the proposed amendment is that the plaintiff essentially wants to materially change its case by alleging a new cause of action after the evidence has been adduced. The amendment is proposed in circumstances where there is no good explanation for the contradiction. The plaintiff cannot be allowed to remedy its contradictory version by amending the particulars of claim.

Findings: The issue is one of self-destructive versions in the plaintiff’s own case. The enquiry is not about which version of the plaintiff to accept but it is whether the plaintiff is a reliable witness. Further, the question is about whether the plaintiff has adduced evidence to prove, on a balance of probabilities, that the insured driver was negligent. The plaintiff has failed to establish that the cause of the accident was the driving of the insured motor vehicle, if there was any. Based on the evidence it cannot be said that it is more likely than not that the incident happened as recounted by him.

Order: The plaintiff's claim is dismissed with costs.

Facts and issue: The plaintiff (P) instituted a claim against the Road Accident Fund (RAF). An accident occurred wherein the insured vehicle collided with P who was a pedestrian. P was four years and three months old at the time of the accident. She is now 23 years old. The RAF accepted liability for 100% of P’s proven or agreed damages. The court must determine the quantum of her loss. The contingencies are also subject to the court’s discretion.

Discussion: The educational psychologist concluded that, but for the accident, and taking P’s background and the qualifications of her parents and sibling into account, P would have proceeded to obtain an NQF 7 qualification. Based on all available information, P will not be able to achieve according to her pre-accident ability. She referred to the report of Mrs. Rita Du Plessis (neuropsychologist), who concluded that a healthy neuropsychological status requires healthy and unaffected neurocognitive, neurobehavioral and neuropsychiatric functioning. According to Mrs. Du Plessis, P presents with problems in all these areas. Cumulative interference with these components leaves her with a compromised neuropsychological status. According to Mrs Swart, P is not functioning in her pre-morbid state, which impacts her academic ability. The diploma in performing arts would be her highest level of education. Her present course in software engineering would not supersede her diploma and she does not foresee that P would progress from an NQF 6 to an NQF 7 qualification as she would need at least an APS score of 28, whereas she only obtained 21. This would not assist her in being accepted for an undergraduate qualification.

Findings: Bearing in mind the educational environment P grew up in, what appears to be a stable family environment, she would have had the potential to achieve more than she presently has. P, during various occasions in her evidence, and as also captured in some of the expert reports, indicated that she does not know what she would like to become. Her evidence left the impression that she would rather do something than sit at home. This is part of what Mrs Swart states to be part of the neurocognitive outfall. Mr Zietsman argues for a 40% contingency on Munroe Actuaries’ calculation of R6,215,300.

Order: The defendant is liable for payment to the plaintiff in the amount of R600,000 in respect of the plaintiff's claim for general damages. The defendant is liable for payment to the plaintiff in the amount of R3,993,875 in respect of the plaintiff's claim for past and future loss of income.

Facts and issue: The plaintiff, a major male farm supervisor, was a passenger in a motor vehicle when post the excessively speeding motor vehicle driving into a pothole, he fell off from the bakkie onto the road. The plaintiff was determined to have suffered a right forearm injury as well as left hip soft injury. The matter served in default with the plaintiff praying that the court determine the question of liability, the loss of earnings and the need for the defendant to be ordered regarding an undertaking in respect of the future medical needs of the plaintiff to the extent that those medical needs would be arising from the injuries sustained in the said motor vehicle accident.

Discussion: The occupational therapist also made findings about cognitive deficiencies which he found to be caused by the accident. Not only is this court in serious doubt about how there could be a link between the supra stated injuries with any cognitive sequelae, but this court is not aware of how the occupational therapist, being neither a clinical psychologist nor a psychiatrist, qualified to make such a determination. Those findings have not impacted on or in any way influenced the industrial psychologist’s determinations and the actuaries. Nothing in the industrial psychologist’s report suggests in the least that the opinion therein was premised on cognitive deficiencies.

Findings: Given the fact that post the accident the plaintiff was able to work at the farm and further that even upon being released from work he continued to be remunerated up to the end of his contract, albeit at a lower salary rank than the pre-morbid one the court finds that a contingency higher than the one employed by the actuary for past loss of earnings was called for. Afterall the uncertainties of employment life on a contract seen through the lense of the high unemployment rate in the country suggests that it probably could have been worse for the plaintiff even if he had not been involved in the accident.

Order: The defendant is liable for 100% of the plaintiff’s proven damages. The defendant shall pay the plaintiff a total sum of R3,128,471.40 in respect of the total loss of earnings suffered by the plaintiff.

Facts and issue: At a robot control intersection, a motor vehicular collision occurred between a motor vehicle driven there and then by the plaintiff and motor vehicle, a quantum minibus, driven by the insured driver. The plaintiff allegedly suffered bodily injuries and resultantly instituted action against the defendant. Separation of issues was granted and the court deals with the liability aspect of the plaintiff’s claim.

Discussion: On the issue of the minibus approaching the intersection at a high speed from the opposite direction of the motor vehicle of the plaintiff and indicating to the right, two issues arise. A reasonable person would expect the motor vehicle coming from the opposite direction indicating its intention to turn to the right, to reduce its speed as it approaches the intersection, from the evidence of the plaintiff, this was not the case, the minibus did not reduce its speed as it was approaching the intersection. As the holder of a driver’s license, the plaintiff would be aware that in terms of the rules of the road, at a control intersection the vehicle intending to turn to the right, shall yield the right of way to all vehicular traffic approaching from his or her right within such junction.

Findings: The minibus accordingly had the right of way, and the plaintiff should have waited for the quantum minibus to enter the roadway as it had been indicating its intention to turn right. It is a none issue that the minibus did not turn right and drove straight, the plaintiff in terms of the rules of the road was expected to give the quantum minibus the right of way. On the plaintiff’s own version, she had driven her motor vehicle negligently in executing the right turn in the face of oncoming traffic when it was not safe to do so. The collision occurred because of the plaintiff executing the right turn on the face of oncoming traffic when it was not safe to do so. The collision occurred as a result of the negligent driving of the plaintiff.

Order: The plaintiff’s claim is dismissed.