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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)     NOT REPORTABLE

(2)     NOT OF INTEREST TO OTHER JUDGES

(3)     REVISED

CASE NO: 7174/14

14/8/2018

 

In the matter between:

 

BELL, LINDSAY DAVID                                                                                      APPLICANT

 

and

 

ROAD ACCIDENT FUND                                                                                   RESPONDENT

 

Heard: 30 July 2018
Delivered: 14 AUGUST 2018

 
JUDGMENT

VAN DER SCHYFF, AJ

[1]        This is an application for interim payment terms of Rule 34A of the Uniform Rules of Court regarding the applicant's claim for past loss of income. The notice of motion was delivered to and received by the respondent's legal representatives but no notice of intention to oppose was delivered.

[2]        The relevant aspects of the factual background to this application, are:

[2.1] The applicant instituted action against the defendant for damages in terms of section 17 of the Road Accident Fund Act, No 56 of 1996;

[2.2] The parties settled the merits of the matter and the settlement was made an order of court on 20 November 2017;

[2.3] As part of this settlement, the respondent undertook to pay the applicant the sum of R300 000.00 (Three Hundred Thousand Rand) as an interim-payment in respect of the applicant's general damages;

[2.4] The balance of the applicant's claim for general damages was postponed sine die;

[2.5] Since the conclusion of the settlement agreement the applicant appointed an actuary to calculate the total loss of income suffered by the applicant;

[2.6] In terms of the actuarial report attached to the applicant's founding affidavit, the total loss of income was calculated on 16 November 2017 in an amount of R 984 700.00. Past loss of income is calculated by the appointed actuaries as an amount of R 159 200.00.

 

[3]        During argument counsel for the applicant requested the court to grant an order for interim-payment in the amount of R 984 700.00, alternatively an amount determined by the court. He argued that the actuarial report was attached to the founding affidavit and the fact that the respondent did not oppose the application indicates that the respondent accedes to the amounts stated in the report.

[4]        It is stated in paragraph 5 of the applicant's founding affidavit that this 'is an application in terms of Rule 34A of the High Court Rules to make an interim payment with regards to the claim for past loss of income' (my emphasis).

[5]        Rule 34A (1) of the Uniform Rules of Court states:

' In an action for damages for personal injuries or the death of a person, the plaintiff may, at any time after the expiry of the period for the delivery of the notice of intention to defend, apply to the court for an order requiring the defendant to make an interim payment in respect of his claim for medical costs and loss of income arising from his physical disability or the death of a person'.

[6]        In casu the jurisdictional requirement prescribed in Rule 34A(4)(b) was met. On 20 November 2017, the respondent conceded the merits of the action in favour of the applicant and accepted liability for the payment of 100% of the applicant' s quantified damages. This concession was incorporated in a draft order that was made an order of court by Ledwaba DJP.

[7]       Where an application for interim-payment is based on personal injuries sustained in a motor vehicle accident, section 17(6) of the Road Accident Fund Act, No 56 of 1996 must be read in conjunction with rule 34A of the Uniform Rules of Court. Section 17(6) stipulates that:

'The Fund, or an agent with the approval of the Fund, may make an interim payment to the third party out of the amount to be awarded in terms of subsection (1) to the third party in respect of medical costs, in accordance with the tariff contemplated in subsection (4B), loss of income and loss of support: Provided that the Fund or such agent shall, notwithstanding anything to the contrary in any law contained, only be liable to make an interim payment in so far as such costs have already been incurred and any such losses have already been suffered'(my emphasis).

 

[8]       Section 17(6) clearly imposes a limitation on the liability of the Road Accident Fund pertaining to interim-payments.

[9]       Based on the actuarial report, which report takes into account the ' RAF Amendment Act cap' attached to the applicant's notice of motion, the applicant' s past loss of income amounts to R 159 200.00.

[10]      I am conscious to the fact that the settlement agreement between the parties that was made an order of this court on 20 November 2017 provides for an interim payment pertaining to general damages. This interim payment was agreed on between the parties and as such does not trigger the requirement set in Rule 34A (3) that further applications for interim payment may be brought ' on good cause shown'.

[11]     The damages in the current matter still need to be quantified and the procedure provided for in Rule 34A cannot be used to circumvent the onus that rests on a plaintiff to quantify his damages.

 

ORDER

In light of the aforesaid, it is ordered that:

[1] The respondent is ordered to make an interim payment of R 159 200.00 [ One Hundred and Fifty-Nine Thousand Two Hundred Rand) to the applicant.

 

 

E VAN DER SCHYFF

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

 

 

Heard on:                                        30 July 2018

For the Plaintiff/Applicant:            Adv L VAN GAS

Instructed by:                                  DYASON INC.

For the Defendant/Respondent:

Instructed by:

Date of Judgment:                          14 AUGUST 2018

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