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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

 

CASE NO: 74968/2017

DATE: 2020.03.02

 

In the matter between

 

NOMBULELO GODLIMPI                                                                                    Plaintiff

 

and

 
ROAD ACCIDENT FUND                                                                                    Defendant

JUDGMENT

DAVIS, J

This is the ex tempore judgment in one of numerous actions against the Road Accident Fund, which feature on today's civil trial roll and indeed on virtually every civil roll of this court. It pertains to quantum only, as merits had been conceded as long ago as 16 October 2017.

The plaintiff acts in her capacity as mother and natural guardian of her minor child. The minor was six years old at the time of the accident. She was a pedestrian at the time and the injuries suffered by her, appear from the descriptions of by the various experts.

The plaintiff's case regarding quantum appears from the following extracts of the plaintiff 's reports: The neurosurgeon makes the following comment and observations: He described the injuries as a ten by 1,5 centimetre abrasion above the left eye , a 3 by 4 centimetre laceration with skin flap, right lateral parietal area of the skull , which has been severely contaminated. At the time of his examination on 8 November 20 17 , he noted that the minor's respiration was distressed. He referred to the steps taken immediately after the accident and concluded inter alia, as follows :

"That the minor had suffered a very high direct impact to her cranium that caused bruises, abrasions and lacerations. She was under a vehicle and dragged along the road surface, further injuring the skin of her face and scalp due to direct contact to the road surface."

 

His final opinion was that, taking into account the severity of the impact , the age of the child at the time of the injury, the complaints lodged by the mother about her cognitive abilities and disposition; he had to classify the injury as a moderate diffused brain injury without evidence that there were focal components to the injury. He noted that when she was admitted she had respiratory problems and an oxygen saturation level of 81%. On osculation of her chest by a medical doctor, abnormal crepitus and other sounds were noticed. He expressed the opinion that there must be a distinct possibility of some degree of hypoxic insult.

In a report compiled by a psychiatrist and with reference to the narrative test, her position was described as follows:

“Due to her head injury but not withstanding any combined Whole Person Impairment, the minor will qualify on a narrative test 5. 3 due to the chronic nature and impairment of the psychiatric diagnosis and a life changing sequelae related to the injuries sustained at the time of the accident."

 

This was the conclusion reached after the following summary, which of course was done by taking into account the observations of all other relevant experts, which summary I quote in full as it will assist in the assessment of the quantification of general damages:

“Prior to the accident the minor was a healthy child without any psychiatric predisposition , no reported developmental, learning or behavioural problems. Post-accident she had a period of dense post­ traumatic amnesia and remained confused for three months. Her mood sway s, probably due to her moderate traumatic brain injury with secondary hypoxic insult. There was reportedly no pre­ existing neurodevelopmental scholastic disturbance.

Her areas of cognitive disturbance and sudden scholastic deterioration post-accident, can be a combination of several factors : Mood and post-traumatic anxiety, pain effects, moderate paediatric traumatic bone injury with secondary hypoxic insult, scarring for which she is teased, visual impairment as reported by the mother.

The post-traumatic anxiety that does not meet CAPS for children criteria and mood disorder can benefit from psychotherapeutic intervention. A prognosis seems guarded, as it is compounded by pain. It is expected that her scholastic problems will remain and increase in higher grades. A lack of functioning in school can influence and limit her future career."

 

The clinical psychologist refers to her position inter alia as follows:

“With regard to the clinical psychological status of the minor, it is noted that she is at high risk for the development of a significant depressive mood disorder in future. This is so, given her ongoing cosmetic disfigurement , about which she is subject to teasing and also given that the gap between herself and her peers in terms of her scholastic progress is likely to widen as she reaches the higher grades and as she experiences increasing difficulties at school. "

 

An added and compounding factor from which the minor suffers is ongoing bladder incontinence. Neurologically it is indicated that there is no deficit and the incontinence appears to be linked to the brain injury and or the neuropsychological sequelae thereof.

The projections were that she would only enter the Iabour market firstly, two years after her pre-accident projected time period and secondly, would earn at a much lower earning capacity than pre-accident.

The contents of these reports and those prognoses which have been referred to have been taken into account in the actuarial calculations, of which the plaintiff furnished an expert report. The report date is 13 February 2020, postulating three scenarios. In each of the scenarios the pre­ accident contingencies are indicated as 15% and then, making provision for the colloquially, referred to "spread" of contingencies, provide in the three scenarios for post-accident contingencies of 30%, 35% and 40% respectively.

In the final analysis, the difference between scenario 1 and scenario 2 is but some R43 000. However, counsel for the defendant argued for scenario 1 on the basis that the future loss of earnings has already sufficiently been taken into account in the calculation of projected income (Scenario 3 is not relied on).

I need not deal with all the cases describing the nature of a contingency assessment, providing for all the various vicissitudes of life and the future imponderables. It does appear to me, however that this minor, having regard, particularly to her age, her future scholastic career and her income generating future, is more compromised than the pre­ accident calculation would otherwise allow.

In my view it would be unfair to her if the lower of the calculations are to be accepted and I find therefore that the spread of 20% (scenario 2) is in the circumstances of this case justifiable, resulting in a loss of income and income capacity in an amount of R1 684 263.

Regarding the issue of general damages, the plaintiff's counsel has prepared extensive heads of argument, which I do not intend repeating or incorporating herein. Numerous cases have been referred to, of which I find the following the most applicable in regard to the age the minor:

 

" Stephen N.O. versus General Accident Fire and Life Assurance Corporation Limited 1974 (2) QOD 376 (RAD), reflecting a current value of general damages awarded of R2 088 000.

Minnie N.O. v Road Accident Fund 2012 6 (6A4) QOD 82 (GSJ), with a current value of R1 337 0 00 .

Van Zyl N.O. v Road Accident Fund 2012 6 (6A4) QOD 137 (WCC), with a current value of R1 182 000, and;

Kgomo v Road Accident Fund 2011 (6) QOD A4-62 (GPJ), as well as;

Pettersen obo J ST I v Road Accident Fund 2012 6 (6A4) QOD 88 (GSJ, in a current value R1 193 000."

 

It is difficult, as always, to find cases exactly comparable regarding the nature of the sequelae and the injury sustained and equally difficult to sever from the amounts awarded those injuries which the minor in this case did not suffer. On the other hand, the counsel for the defendant referred to some older cases with much lower quantum and also relied on Tobias v The Road Accident Fund 2010, an unreported judgment of this division by Murphy J, which resulted in a current value of R725 000. The full particularity of the age of the minor in that case and extent of damages were not completely and readily ascertainable. With reliance on that case the counsel for the defendant argued that an amount of R800 000 would be a fair amount.

Having regard however to the young age of the minor, the additional particular impact of scarring on a young female, as well as the trauma sustained by having been dragged under the vehicle and taking into account the cases already referred to, I am of the view that an amount of R1 100 000 as general damages would be fair and justifiable in the circumstances.

So far the issue of quantum on the disputed aspects. There is no claim for past medical expenses and the claim for future medical expenses will be covered by way of an undertaking in terms of section 17 of the Road Accident Fund Act. However, that is not the end of the matter and there are further aspects which need attention and this primarily relates to the manner in which the litigation has been conducted.

In the recent past, there have been a number of judgments of this division and of this division sitting in Johannesburg regarding particularly the mode of litigation by or on behalf of the Road Accident Fund. Notably, a judgment which I delivered last year has recently been reported as Madise v the Road Accident Fund 2020 (1) SA 221 (GP), wherein in particular in paragraph 4, the duties and obligations of parties have been set-out with reference to various cases.

I need not repeat those cases here but it is clear that practitioners have scant regard to their obligations to prepare for trial and in so far as there maybe any doubt thereof, I further refer to the sentiments expressed in supreme court of Appeal in Viking Inshore Fishing (Pty) Ltd v Mutual and Federal Insurance Co Ltd 2016 (2) All SA 730 (SCA), per Wallis JA , at para [8]. A number of the judgments dealing with parties' duties are also referred to, in particular in relation to to Road Accident Fund matters, such as Kleynhans v Road Accident Fund 2016 (3) all SA 850 (GP).

Turning the focus then to the present case, the relevant facts are the following. As already stated merits have been conceded in October 2017, leaving the only outstanding issue that of quantum. Despite the passage of time and previous pre-trial conferences, the minutes of a pre-trial conference dated 28 January 2020 indicate that the plaintiff has already served and filed notices in terms of Rules 36(9)(a) and (b) in respect of the following experts on the following dates:

 

" Dr White , Plastic and Reconstructive Surgeon 17 April 2018.

Dr Nel, a Psychiatrist, 25 May 2018.

Dr Mazabow Clinical  Neuropsychologist, 17 September 2018.

P Burgess , Educational Psychologist, 9 November 2018.

A Greeff , Occupational Therapist , 9 December 2019.

E Noble, Industrial Psychologist, 6 January 2020.

G Whittaker, Actuary, 13 January 2020."

 

The surprising occurrence is that after the delivery of those notices and reports, which have also been cryptically summarised in the pre-trial minute, the pre-trial minute continues as follows:

 

"6)       The following issues are canvassed in an attempt to curtail all the issues:

6.1)       What is the status of joint minutes? Reply: Joint minutes have not been filed, as the defendant has not briefed any experts.

6.2)       Defendant is requested to admit the expertise of the experts in the plaintiff's expert reports.

6.3)       Defendant is requested to indicate exactly which findings in the            plaintiff's expert reports it disputes. The defendant confirms that the factual allegations need to be proven due to several discrepancies and contradictions in the reports. The plaintiff requests the Defendant to indicate which specific discrepancies and contradictions require clarification ...

 

The parties are requested to indicate the reasons why the quantum portion of the plaintiff' s claim cannot settle. Reply : The Defendant has not admitted the plain tiff 's reports, requiring the plaintiff to at present call its experts and has not furnished the plaintiff with a settlement offer ."

 

Subsequent to this pre-trial conference, a judicial case management meeting was held, presided over by Collis J. At the conclusion of the minute of that meeting, the following is record ed:

"1)       Matter certified trial ready for 2 March 2020, quantum only, one to two days.

2)         Defendant to file all outstanding reports by 20 February 2020.

3)          Joint minutes, if any, to be filed on or before 25 February 2020 for all plaintiff expo rt reports have been filed."

 

At a last pre-trial conference held on 21 February 2020, these issues and the outstanding disputes are again raised and the plaintiff noted that the defendant had not filed its expert reports by 20 February as was directed by Collis J. The minute indicates that the defendant indicated that it was still endeavouring to obtain its expert reports from the Occupational Therapist as well as the Industrial Psychologist.

Regarding the status of the plaintiff's expert reports and the evidence then to be presented to be before court, the minute recorded the following:

"With reference to the plaintiff's expert reports filed in terms of Rule 36(9)(b), does the defendant admit the facts, reasons and opinions contained therein? If not, the defendant is requested to indicate specifically what fact s, which reasons and opinions the defendant disputes as well as the reasons for such a dispute. The defendant 's reply: The defendant will rely on the contents of the joint minutes and its own experts should they become available timeously. If no expert reports are filed by the defendant , then the defendant will rely on the plaintiff's experts. "

 

By that time at least it was clear and should have been known by both the defendant and its attorney that there were either no reports forthcoming or no reports would be timeously provided resulting also in no joint minutes becoming available.

At the commencement of the trial, there were still no reports by the defendant and accordingly no joint minutes. There were also no indications of any dispute as to any factual statement contained in any of the plaintiff's reports, nor indication of any dispute with any opinion reached by any of the plaintiffs. There was accordingly very little, if any, of a triable issue left and there was clearly no compliance with any of the litigation duties imposed by the cases to which I have referred. At best, counsel was sent in to argue the contingencies on the loss of income to the limited extent I had already indicated and to argue the issue of general damages.

A further shocking and disturbing development during argument was the disclosure by counsel that there might be a request on behalf of the Defendant after the expiry of all this time to have the issue of general damages postponed for a consideration by the claims handler, as to whether the issue of general damages is going to be rejected in toto or not. To my mind, this is a reckless disregard of the duties of a litigant , particularly a litigant saddled with the administration of public funds and acting therefore in the public interest.

A further disturbing feature, which apparently is a regular feature in matters of this nature, was that counsel for the defendant was only briefed two days prior to the trial. I indicated to counsel my discontent with such conduct and sought to find out whether the delay or lack of instructions was that of the client (the Road Accident Fund) or not.

I was informed from the Bar that an executive summary had been prepared by the attorney and sent to the Road Accident Fund in December 2019. I was not favoured with any particulars, as to whether this was the first, last or whatever number of executive summaries and neither for the reason why this was done only at that date . There was also no indication what that summary contained in relation to the answers given at the pre-trial conferences and at the judicial case management meeting.

A court is not entitled to know what an attorney advise his client but a court is entitled in the management of its roll and civil litigation before it, to know what has been done to prepare a matter for trial and to get it trial ready. After the tea adjournment, I was informed that the attorney had sent nine emails during February 2020 to the Road Accident Fund to which no response have been received, save on the 21st of February 2020 wherein a request was made on behalf of the Fund for the furnishing of outstanding reports.

It is not clear exactly what this request entails and what reports are alleged to be outstanding. It is also not clear what the claims handler, whose identity has not been disclose d, despite prior judgments of this court, meant by the request or when the claims handler actually had regard to the claim. Non constat that from the date that merits have been conceded and in the two years subsequent to that, there was no excuse for not getting the matter trial ready. Belated e-mails to a recalcitrant client are clearly insufficient and there is no indication that they had been followed up telephonically or by visit s to the Fund or by insistence on instructions, so that the attorney can discharge his duties. Even if the client had been recalcitrant, the attorney is equally remiss. And where this appears to be a feature and, I must add, a regular feature of civil litigation in our court it cannot be allowed to continue unabated. Even if the attorney has to drag his recalcitrant client from its office from whence it has ensconced claims handlers, he must do so timeously. The issues in this matter could have been addressed long ago and in a more appropriate manner, and as set out in Modise v RAF (supra ), to the benefit of the minor child.

In case there is any doubt about the impact of the reported judgment, let me restate it. The sooner the Fund attends to matters and furnishes undertakings in matters where it should be furnished, particularly to plaintiffs who claim on behalf of minors, the sooner the minors can receive attention and care and treatment. This will not only be to the benefit of injured minors, such as the one in this case but in the end it will also benefit the Fund. It will enable such a plaintiff on behalf of the minor to mitigate its damages and to see to timeous treatment of a minor, which will in turn then benefit the minor, its future prospects and might even impact downwardly on the issue of general damage s. This failure must be deprecated as it was in the previous judgment to which I have referred to.

I had been furnished with a draft order in which I had added the amounts referred to in the judgment. The amendments to the draft order was that in respect of the issue of costs in paragraph 7, the amounts should still be subjected to the discretion of the taxing master and I added that in paragraph 9, the attorney for the defendant shall not, save for the cost of counsel , be entitled to recover any trial fees from the Fund and I have added paragraph 10 that the copy of the judgment in this matter is to be sent to the Chief Executive Officer of the Fund.

If the difficulty that attorneys, such as the present attorney experiences, is in fact that to be blamed on the Fund, then I express the sincere hope that the attorney will be goaded into similarly goading the Fund into action. Public interest and public Funds litigation cannot be allowed to continue without the client , the Fund, if that is where the fault lies, properly timeously and unequivocally instructing the attorney to enable the attorney to similarly instruct counsel to have the matter properly dealt with on real issues of dispute.

The draft order, which I have marked X, is made an order of court.

 

 

 

DAVIS, J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

DATE: Revised on 17/3/2020

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