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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISIONJUDGMENT

PARTIES:          X Bovungana & RAF

            Case Number:              2090/07

            High Court:                   Eastern Cape Division

            DATE HEARD:           02/07/09

DATE DELIVERED:   27/02/09

JUDGE(S):                   Froneman

LEGAL REPRESENTATIVES –

Appearances:

            for the Applicant(s):      G Dugmore

            for the Respondent(s):   N Paterson

Instructing attorneys:

             for the Applicant(s):     Dullabhs

            for the Respondent(s):   Mlonyeni

CASE INFORMATION –

            Nature of proceedings.

            Topic:

            Key Words:

           

           

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION Case No. 2090/2007

In the matter between

XOLANI BOVUNGANA Plaintiff

and

THE ROAD ACCIDENT FUND Defendant

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JUDGMENT

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Froneman J.

“The [Road Accident Fund] exists to administer, in the interests of road accident victims, the funds it collects from the public. It has the duty to effect that administration with integrity and efficiency. This entails the thorough investigation of claims and where litigation is responsibly contestable, the adoption of reasonable and timeous steps in advancing its defence. These are not exacting requirements. They must be observed.”

(Per Howie JA (as he then was) in Road Accident Fund v Klisiewicz, Case No. 192/2001 (SCA), at para [42], as quoted by Maya AJA in Madzunya and another v Road Accident Fund 2007 (1) SA 165 (SCA) at para [17]).

[1] This judgment deals with a matter where, regretfully, the Road Accident Fund (‘the Fund’) did not administer the plaintiff’s claim with integrity and efficiency.

[2] On the pleadings the Fund contested its liability to compensate the plaintiff for the damages he sustained in a road accident until shortly before trial. The plaintiff was injured when the insured vehicle struck him whilst he was walking on the pavement next to the road. It is not readily apparent why, on these facts, it took so long for the Fund to concede its liability for any damages the plaintiff might have suffered as a result of the injuries sustained by him in the accident.

[3] Worse still was the approach taken by the Fund in relation to the remaining issue, namely the extent (or quantum) of the plaintiff’s damages. The plaintiff can hardly be accused of exaggerating his injuries – he suffered a below knee amputation of his right leg and an above-knee amputation of the other. In the plaintiff’s particulars of claim, delivered in October 2007, the extent of his injuries and their alleged consequences are set out in detail with reference to three medico-legal reports as well as an actuarial certificate of value in respect of his claim for loss of earnings. After the close of pleadings, in July 2008, expert notices were given in respect of all the witnesses the plaintiff intended calling at the trial. The Fund filed no expert notices prior to trial. It had enough time to consider these reports and to decide whether to contest the facts and opinions expressed in the reports by having the plaintiff examined and interviewed by its own experts. It did not do so and its decision not to do so was justified in the circumstances, because the plaintiff’s injuries were obvious and the expert reports were fair and considered. There was thus no basis in fact or opinion for the Fund to responsibly contest the evidence that the plaintiff had given notice he was going to present at the trial. This matter was of the kind that responsible legal representatives and responsible Fund officials have dealt with and resolved in a sensible manner in innumerable cases of a similar nature over many years. Unfortunately, that norm seems to be increasingly ignored in this province.

[4] On the morning of the first day of trial the Fund sought a postponement of the matter. An affidavit in support of the application for a postponement was only made available in fax form after lunch on the first day. Its contents, as will become apparent later, provided no grounds for granting a postponement. I refused the application for a postponement and ordered that affidavits be filed by the Fund’s attorney and the official dealing with the matter on behalf of the Fund to provide reasons why the proposed costs order relating to the postponement (on an attorney-and-client scale) should not be ordered to be paid personally by these individuals.

The Fund’s attorney filed her affidavit timeously and it is apparent from its contents that she is not to blame for the contemptuous disregard of court procedures that characterises the Fund’s handling of this matter.

The affidavit from the Fund official was filed late, without explanation, and provides no proper reasons for avoiding an adverse costs order.

[5] The matter then stood down until after lunch on the second day because counsel for the plaintiff and the Fund were optimistic that they could reach agreement on certain issues which would curtail the duration of the trial. They informed me after lunch that they had, between themselves, come to a provisional agreement on these issues, but that final confirmation depended on receipt of instructions from the Fund. I ordered the trial to commence and the plaintiff was called as a witness. During the course of the afternoon I was informed that the Fund’s legal representatives had been instructed that the Fund would not agree to any of the matters upon which the legal representatives of the parties had provisionally agreed, save for one aspect. At the end of the day I enquired from the Fund’s counsel whether I understood the position properly, namely that he had advised his client (the Fund) to agree to the matters in the provisional agreement and that despite this advice he had been instructed by the Fund not to agree to any of these matters. He confirmed that that was indeed the case. I then asked him to inform his client that I will take that attitude disclosed by the Fund into consideration when deciding the appropriate scale upon which costs should be ordered in the trial itself and whether officials of the fund should be ordered to pay those costs personally.

[6] The matter then entered its third day. One expert witness, Dr. Holmes, was called by the plaintiff to testify about the plaintiff’s loss of earnings. He was perfunctorily cross-examined on aspects that may have a minor bearing on the appropriate contingency allowance to be made in respect of future loss of earnings. Then, finally, sanity prevailed and the Fund’s counsel indicated that he had received instructions to accept the proposed agreements of earlier. This allowed the plaintiff to close its case without having to call further oral expert evidence. The Fund also closed its case, without presenting evidence. Thus an essentially uncontested matter came to an end after three days of costs had been incurred in the High Court.

[7] This sorry saga should not have happened. It is, unfortunately, not an isolated instance of how the Fund conducts litigation in this province. I do not intend to refer to the many judgments in the relatively recent past where concern has been expressed about the Fund’s conduct, except to refer to the judgment of Pickering J in Ngwane v The Road Accident Fund , Bhisho Case No 151/2007, where he states, after referring to a number of judgments by different judges in this province, the following:

“It does not appear that the relevant officials in the employ of defendant have paid any heed to the criticism contained in these judgments. In Mlatsheni’s case, supra, Plasket J considered that the time may well have arrived for orders of costs de bonis propriis to be awarded against employees of the defendant who give instructions that have the effect of frivolously frustrating legitimate claims. I respectfully agree. There is no reason why costs which have been occasioned by the improper conduct of an employee of the defendant should be paid out of the public purse. If the Board of the Road Accident Fund does not take seriously what has been stated in the various judgments then the relevant officials will find themselves saddled with orders of costs de bonis propriis.”

The time for such orders has now arrived.

[8] This matter should not have been allowed to proceed to trial. As mentioned above summons was instituted in October 2007. Attached to the particulars of claim were three medico-legal reports, as well as an actuarial certificate of value. The particulars of claim and these reports set out in detail the grounds for the plaintiff’s claim both in relation to the liability for negligence on the part of the insured driver as well as the quantum of his claim for damages. After pleadings closed expert notices were given in respect of all the witnesses who were going to be called by the plaintiff by July 2008. The Fund filed no expert notices prior to trial. There is no room for any argument that it did not have sufficient time to consider these reports and to decide whether to contest their contents and the facts and opinions expressed in the reports by having the plaintiff examined and interviewed by its own experts. The reports are fair and considered. They do not reflect any facts or opinions that appear, on their face, to be unwarranted. The plaintiff’s right leg was amputated below the knee and his left leg above the knee. He came from a well-educated family and had obtained technically practical qualifications as well as academic tertiary qualifications. Objective and reasonable information of his pre-morbid income was available and the basis upon which his post-morbid income was quantified was not of a major contentious nature. In short, everything was in place for the plaintiff’s representatives and the Fund to resolve any outstanding issues in a sensible and responsible manner without having to incur the costs of a High Court trial.

[9] This responsible course was in fact the route taken by both sides until officials of the Fund intervened late in January this year. At the pre-trial conference held on 8 October 2008 the Fund’s legal representative made considered and responsible admissions which paved the way for finalising the outstanding issues between the parties without the need to come to court. Given the uncontested facts of the plaintiff’s condition, his disability and the factual basis upon which an assessment of his loss of earnings, both past and future, could be made the parties in effect agreed to what Mr. Dugmore, counsel for the plaintiff, in argument called an ‘almost mechanical’ process whereby the actuary would determine the final assessment of his loss of earnings. In December 2008 that was forthcoming from the actuary. In early January 2009 the Fund conceded that it was liable to compensate the plaintiff for his damages. All that then remained, in effect, was to agree on a reasonable assessment of the general damages and to accept the actuarial sums. It was the kind of unexceptional circumstances that comes up daily in practice and the courts that should be dealt with sensibly and responsibly. If agreement is reached the matter is settled. If there is a genuine disagreement about the assessment of the quantum of damages on the largely admitted facts the matter may then proceed in court by way of a statement of agreed facts in terms of rule 33 (4), or an agreement to limit the issues to only those that remain unresolved, or in some other cost-effective way. If costs are likely to be an issue, rule 34 makes provision for a procedure that, if used successfully, may protect a defendant who proceeds to trial.

[10] The fund chose a different course. On 15 January 2008 its attorneys filed a notice of withdrawal. No Fund official has explained to court why the withdrawal was necessary. New attorneys were appointed on 23 January 2009 and they filed a notice of acting on 26 January 2009. The story from then on is picked up in the affidavit filed by the new attorney in the circumstances referred to in para. [4] above¹:

“2. On 23 January 2009 our firm received instructions from the High Risk Division of the Defendant to attend to this matter and accordingly on 26 January 2009 a notice of acting was filed reflecting the aforesaid.

3. The previous attorneys of the Defendant ….had withdrawn as attorneys of record for the Defendant on 22 January 2008 [the date is clearly wrong] for reasons of which I do not have personal knowledge [no one from the Fund has explained why either].

4. Thereafter on 28 January 2009 we received the file in the aforesaid matter and proceeded to study the same and provide the Defendant with our advices herein (during the course of 29 January 2009), which I would point out did not include any advices to postpone the matter [the italics are mine]. Further, on the same date, we instructed Counsel to attend to the trial of this matter.

5. Late on the afternoon of 30 January 2009, being last Friday [the trial was set down to commence on Monday 2 February 2009], we received instructions from the Claims Handler of the Defendant dealing with this matter, Ms. ….. , to seek a postponement of the trial herein, and further to forthwith advise the Plaintiff’s attorneys of such position.

6. As a result of the aforesaid instruction and pursuant to discussions with regard to the matter with Counsel, on the same date we requested the Claims Handler of the Defendant to provide us with instructions with regard to the grounds for the postponement that would be sought and further to provide reasons why the application was only being brought at such a late stage. Further, we advised that a formal application would have to be brought and that we would require urgent instructions in this regard.

7. Except for being telephonically advised that the Defendant intended to appoint its own experts in the matter, we did not receive any further instructions with regard to the application for postponement and therefore except for advising the Plaintiff’s attorneys, in writing, of the Defendant intending to seek a postponement, at that stage we were not in a position to take any further steps in this regard.

8. On Monday, 2 February 2009 (being the date of trial) just after 08h00 (when the offices of the Defendant open), and whilst travelling from Port Elizabeth, where our offices are situated, to Grahamstown, I telephonically followed up with the Claims Handler of the Defendant, again requesting that we be instructed with regard to the grounds of the postponement, the reasons for the lateness thereof, and further also to be provided with instructions with regard to any costs tenders of the Defendant as a result thereof. I further specifically requested that as we had not received any instructions in these regards and were now not in a position to draft any papers in support of the application, being in transit to Grahamstown, that the Claims Handler of the Defendant provide us with the necessary affidavit.

9. At that stage I was advised that the previous attorneys had not acted in accordance with the Defendant’s instructions and that certain admissions relating to the Plaintiff’s experts were incorrectly made and that the postponement was sought in order to rectify same and to give the Defendant an opportunity to obtain the services of its own experts herein.

10. The Claims Handler initially advised that she would discuss the matter with her Senior, however, further undertook to provide an affidavit in support of the application for postponement and to facsimile the same to our correspondent attorneys in Grahamstown….

11. During the course of the morning of 2 February 2009, the trial was stood down on various occasions, at the request of the Defendant, awaiting the aforesaid affidavit as well as, I would point out, instructions from the Defendant pursuant to discussions with the Plaintiff’s legal representatives with regard to possible agreements with regard to the matter as well as the postponement of the matter. In these regards, I am advised by the Claims Handler, that she was required to discuss the matter with her Senior as well as obtain instructions from her Senior, which also contributed to the delays in the matter.

12….

13…

14…”

[These paragraphs explain why it took so long for the promised affidavit to be faxed to Grahamstown].

[11] The affidavit that was received during the afternoon of the first day was not deposed to by the claims handler referred to by the attorney. It was deposed to by a senior claims handler and reads as follows:

“1. I am Senior Claims Handler in this action, and I am duly authorised to sign and depose to this Affidavit on the Defendant’s behalf.

2. The facts herein deposed to are, to the best of my knowledge, true and correct.

3. I advise that our attorneys Mlonyeni Lesele Attorneys withdrew as our attorneys of record on the 22^nd January 2009 and I appointed Ketse Nonkwelo Attorneys as our Attorneys of record on the 23^rd January 2009. According to the best of my knowledge and belief, I never instructed Mlonyeni Lesele Attorneys to accept the medico-legal reports from the Plaintiff attorneys and I still maintain that the Plaintiff medico legal reports are still in dispute.”

That is the sum total of the contents of the affidavit.

[12] If senior claims handlers at the Fund are under the impression that that is all that is needed to secure a postponement in a High Court trial matter they need to be disabused of the notion.

[13] In Persadh and another v General Motors South Africa (Pty) Ltd 2006 (1) SA 455 (SECLD) at para. [13] Plasket J summarised the principles applicable to an application for a postponement as follows (I have omitted the references to authority):

“First, as that party seeks an indulgence he or she must show good cause for the interference with his or her opponent’s procedural right to proceed and with the general interest of justice in having the matter finalised; secondly, the court is entrusted with a discretion as to whether to grant or refuse the indulgence; thirdly, a court should be slow to refuse a postponement where the reasons for the applicant’s inability to proceed has been fully explained, where it is not a delaying tactic and where justice demands that a party should have further time for presenting his or her case; fourthly, the prejudice that the parties may or may not suffer must be considered; and, fifthly, the usual rule is that the party who is responsible for the postponement must pay the wasted costs.”

[14] The affidavit by the senior claims manager does not remotely fulfil these requirements. No reason is given why the matter cannot proceed, even if it is accepted for the moment that the ‘medico-legal reports are still in dispute’, as is asserted in the affidavit. If the inability was the possibility mentioned by the Fund’s counsel in argument for the postponement, namely that the Fund wanted its own experts to investigate aspects of the plaintiff’s claim, there was still no explanation why the matter was not properly investigated earlier and why expert reports were not obtained and filed before trial. Liability on the merits had been conceded and the plaintiff had two of his limbs amputated, but nevertheless there was no indication on the part of the Fund that it would make an interim payment of some kind even if it may still have disputed the total extent of the plaintiff’s claim. What the affidavit shows is not a concern with the procedural and other conceded rights of the plaintiff, but a callous disregard for the Fund’s primary responsibility to administer the public funds under its control ‘in the interests of road accident victims’, namely the plaintiff (compare Road Accident Fund v Delport NO 2006 (3) SA 172 (SCA) at paras. [26] to [28]). No tender of wasted costs is made in the affidavit either. These insufficiencies in themselves provided enough reason to refuse the postponement, but the ostensible problem the senior claims controller had which caused the request for a postponement, namely the alleged lack of instructions to its attorney to agree to the correctness of the medico-legal reports at the pre-trial conference, is as ill-conceived.

[15] The deponent does not deny that she instructed the attorney to accept the reports; she merely states coyly that ‘to the best of my knowledge and belief’ she never gave those instructions. No details are provided of what actual instructions were given to the attorney or when these instructions were given. No reason is given why the attorney would ignore contrary instructions, or fail to obtain proper instructions before agreeing to the admission and correctness of the reports. But apart from these serious factual deficiencies, the deponent appears to be unaware of the fact that in our law the conduct of a party’s case is in the entire control of the attorney of record prior to handing control to counsel at the trial (Hlobo v Multilateral Motor Vehicle Accidents Fund 2001 (2) SA 59 (SCA) at para. [10], 65D-E). There is no indication in the affidavit or from the pleadings and pre-trial procedures that the plaintiff or its representatives had any reason to question the authority of the Fund’s previous attorney of record, or that they made any representation that could have induced any error on the part of the Fund (Hlobo’s case, at para’s [11] and [12]).

[16] After lunch on Monday, the first day of the trial, I made an order refusing the application for a postponement. I also indicated that I intended ordering the costs of the postponement to be assessed on an attorney and client scale, but that the Fund’s attorney and the official handling the matter on behalf of the Fund should file affidavits by 9:30 the next morning setting out reasons why they should not be ordered to pay those costs personally (or de bonis propriis, in formal legal language). I have already quoted extensively from the attorney’s affidavit in para. [10] above, but the short affidavit filed (again late) in response by another fund official, confirms one’s worst fears about incompetence and a lack of integrity in the Fund’s administration. It reads:

“I am Claims Handler of the Defendant in this action, and I am duly authorised to sign and depose to this affidavit on the Defendant behalf.

2. The facts herein deposed to are, to the best of my knowledge, true and correct.

3. I advise that our affidavit which was sent yesterday 2^nd February 2009 was late because we faxed the document several times and later our attorneys told us that the fax didn’t come through.

4. I further advise that our attorneys Mlonyeni Lesele Attorneys withdrew as our attorneys of record on the 22^nd January 2009 and RAF appointed Ketse Nonkwelo Attorneys as our attorneys of record on the 23^rd January 2009.

5. On the 23^rd January we offered R….[the Defendant’s counsel and attorney, very properly, deleted the sum mentioned in the affidavit] to the Plaintiff’s attorneys which was rejected by them and we had no alternative but to ask the court for a postponement since we don’t have medico-legal reports from our experts.”

[18] This affidavit discloses that the real reason for the postponement application was that the plaintiff rejected the offer made by the Fund, not that its previous attorney had acted without proper instructions. In neither of the affidavits do the deponents say that they terminated the previous Fund attorney’s mandate because he failed to follow their instructions; they do not disclose what those instructions were; and they do not say who was authorised by the Fund to give instructions to the attorney. The firm of attorneys withdrew of their own accord. In the notice of withdrawal it is recorded that it informed the Fund of its withdrawal on 15 December 2008. In the absence of any credible particulars about the alleged acting without instructions on the part of the attorney the more likely reason for the withdrawal is something else. Responsible and ethical attorneys withdraw as legal representatives when their client gives them conflicting instructions, or attempts to retract from earlier instructions.

[18] The second explanation for the reason for the postponement application is as devoid of merit as the first. The rejection of an offer of settlement prior to trial is not a valid ground for seeking a postponement. Rule 34 provides the mechanism whereby a party can safeguard itself against adverse costs orders where reasonable and proper offers are rejected prior to trial by an opposing party. Such offers tend to concentrate the minds of opposing parties and their legal representatives in deciding whether to take the risk to continue with the trial or not.

[19] The fact that the Fund felt that it was in a position to make an offer also gives the lie to the assertion that it never gave instructions to accept the expert reports filed on behalf of the plaintiff. On what factual basis was the offer made other than an acceptance of these reports? The Fund officials do not disclose the existence of any other basis for their assessment of the plaintiff’s damages in making an offer of settlement. Whichever way one views the Fund officials’ explanation of their conduct in seeking a postponement on the morning of the trial, it reveals incompetence and dishonesty. The lack of particulars about the alleged instructions to the previous attorney is suggestive of a probable untruth. It appears likely that the offer made was based on an acceptance of the reports as agreed to in the October 2009 pre-trial conference. If it was not made on that basis, but on the basis of the Fund’s own expert investigation, the failure to disclose that fact amounts to an attempt to mislead the court about the true reason for the postponement application, namely that the Fund did not timeously file expert reports in terms of court procedures. If the offer was not made on either of these bases, but on the basis of some other undisclosed reason, it amounted to an irresponsible exercise of the Fund’s responsibilities and remained an attempt to mislead the court about the true reason for the postponement application.

[20] An award of costs on an attorney and client scale should not be made lightly (see the discussion and case law referred to in Herbstein & Van Winsen, The Civil Practice of the Supreme Court of South Africa (now the High Courts and Supreme Court of Appeal), 4^th ed., at 717 -721) and where litigation is conducted in a representative capacity an order for a representative to pay costs personally (de bonis propriis) should similarly not be lightly resorted to (Herbstein & Van Winsen, above, at 729 -732), but I considered an award of costs on an attorney and client scale in the postponement application to be justified by the reckless and prejudicial conduct of the Fund in seeking a postponement in the manner and on the grounds it did on the first day of the trial. Nothing that has transpired since has changed my view. To the contrary, the subsequent explanations on affidavit have shown that matters were worse than I originally thought.

[21] The affidavits filed by the two officials of the Fund disclose that they contradicted each other and misled the court in the reasons given for seeking the postponement. Their conduct has not been open and honest and shows a reckless disregard not only for court procedures, but as importantly, a disregard for victims of road accidents for whose benefit they are charged to administer the public funds under their control. The consequences of their conduct are not trivial. If the matter proceeded responsibly on the basis upon which agreement was reached at the October pre-trial conference it is unlikely that the matter needed to be contested in court. But even on an assumption that it would have, this trial has shown that the actual hearing of evidence and argument would have finished easily within a day, more probably only a morning. The plaintiff was forced to keep his experts available to come and give evidence and legal costs on both sides were incurred at least for an extra day. The potential costs and expenses unnecessarily incurred were estimated by counsel in argument to be between R80000.00 and R100000.00. I mentioned earlier that in the Ngwane matter Pickering J warned that if the Fund’s Board does not pay heed to the warnings about the conduct of cases by its officials then those officials might be ordered to pay adverse costs orders personally. The present case is not an isolated instance - it represents a state of affairs that has become the norm of how the Fund conducts litigation in this province. This norm is in reckless disregard of the Fund’s responsibilities as plainly but eloquently expressed in the portion quoted at the outset of this judgment. The time may well also arise when members of the Board should be called to account for similar costs orders if this situation does not improve. It is also their responsibility to ensure that the Fund’s officials act properly in the execution of their duties.

[22] I will attempt to give flesh to the sentiments expressed in relation to the costs issues in the order at the end of this judgment.

[23] That brings me to the substantive issue in the case, namely the determination of the extent of the plaintiff’s damages suffered as a result of the injuries he sustained in the accident. Only two aspects need to be resolved, namely the general damages for pain and suffering, and the computation of the plaintiff’s loss of earning capacity. During argument it became apparent that counsel were not far apart in their submissions on these aspects, something which underscores the fact that the matter could have been responsibly resolved earlier.

[24] The plaintiff was struck by the insured vehicle whilst walking on the pavement of a bridge. He was thrown towards the wall of the bridge. He did not lose consciousness. When he looked around after being struck he saw his right foot lying in front of him, still with his socks and shoe on. The bottom part of his left leg, below the knee, was lying on the street hanging on to the rest of his body by a thread of flesh. It was hot, with flies around, and he waited for some time at the scene before being taken to the King William’s Town hospital. Only one doctor was available there and he was taken to the Frere Hospital, East London, for treatment there. During all this he suffered excruciating pain and had difficulty in breathing.

[25] At the Frere Hospital the plaintiff was treated for his injuries. There were signs present of haemodynamic shock, but no signs of chest or abdominal injuries. The plaintiff’s traumatic amputations were formalized by an above knee amputation on the left side and a below knee amputation on the right side. The post-operative period was complicated by the fact that the plaintiff developed wound infection which was treated conservatively by local dressings and antibiotics. He was also taken back to theatre for a debridement procedure. Unfortunately the plaintiff also developed a pulmonary embolism for which he was treated successfully over a period of six months. He was discharged from hospital after about six to seven weeks in a wheelchair and thereafter attended there as an outpatient. Medical opinion is that he suffered a severe degree of pain and discomfort for a period of sixteen weeks after the accident and will suffer slight to moderate pain and discomfort for the rest of his life.

[26] The plaintiff comes from a well educated family. His father is a lawyer who obtained an education degree in addition to his legal degrees. His mother obtained a B.A. degree and his only sister obtained an honours degree and works for a pharmaceutical company. The plaintiff’s own inclination was initially of a more practical bent. He obtained his N1, N2 and N3 certificates at technical colleges. He started working in the building trade in 1993, first in fixed employment and later being self-employed. He used the income to further his own studies. He obtained a B.A. (Fine Arts) degree from the University of Fort Hare as well as a post-graduate certificate in education. He completed these studies shortly before the accident.

[27] Since the accident he lives in Queenstown with his mother and cousin. He has a girlfriend and a child with her. He visits them but has some trouble in gaining transport. He has trouble getting into taxis quickly and this fact has led to local taxi drivers being reluctant to help him when they are in a hurry to load other passengers. His problems with erectile dysfunction have been alleviated by treatment but he still experiences problems with urinating. He experiences sleeping problems because of the fact that when he wishes to turn in bed this causes difficulty and discomfort. He experiences lower backache when walking with his prostheses and when he sits or lies down for a long time. Because of this pain he actually prefers using a wheelchair, but this presents its own problems in getting around in a house and buildings that do not cater for disabled people.

[24] Before the accident he was an ambitious man who took pride in his own creative building work and he looked forward to a possible career in teaching fine art after completing his degree and educational qualification. Since the accident he has not worked. The evidence of Dr.Holmes is that he is, for all practical purposes, unemployable either in the building trade or as a fine arts teacher. This evidence was not seriously challenged in cross-examination, except for an effort to use Dr. Holmes’s own remarkable recovery from disability whilst a teacher to embark upon another successful career, as an illustration of what is possible for disabled people. Whilst acknowledging this, and in a modest manner, Dr. Holmes’s telling reply was that for every disabled person who successfully rehabilitates his or her own working career there are thousands of others who are not able to do so. This is, however, a factor that must be considered in determining the contingency allowance in adjusting the plaintiff’s claim for loss of future earnings.

[25] The search for comparable cases in order to make a proper award for general damages for pain, suffering and loss of amenities of life only leads to broad parameters within which an award may be made. Without claiming exhaustiveness, reference was made by counsel in argument to Sawbudi v SAR&H (WLD) 1962; Ehlers v SAR&H (ECD) 1959; Bekwa v SAR&H (ECD) 1982; Ndlovu v Swaziland Royal Insurance Co (HC of Swaziland) 1989; and Van Deventer v Premier of Gauteng (TPD) 2002. The present day values of the awards for general damages in those cases varied between R400000.00 and R900000.00. Mr. Dugmore, for the plaintiff, argued that the present matter had features akin to paraplegia cases – the extensive use of a wheelchair by the plaintiff – that justified making an award in the region of R800000.00. Mr. Paterson, for the Fund, was more conservative and argued for an award between R600000.00 and R700000.00. There is some merit in Mr. Dugmore’s analogy with the ‘wheelchair cases’, but perhaps not as much as he contends for. In my judgment an award of R750000.00 for general damages is appropriate in the present matter.

[26] As far as the claim for loss of earnings is concerned the ostensible issue between the parties is which one of the two calculations made by the actuary at, respectively, pages 187 and 190 of the bundle of documents, exhibit ‘A’, should be adopted as proper. The former allows an amount for income after the injury and also contains details about both career paths as a builder and teacher, as well as an average of the two career paths, whilst the latter makes no provision for post-injury income and uses the teacher career path as basis for calculating the uninjured income. In my view the latter calculation accords with the evidence of Dr. Holmes and there is insufficient reason on record to reject it and adopt the other calculation. The deduction for contingencies in respect of both past and future loss of earnings (5% and 15%) in this calculation also appears to me to be justified and in line with acceptable practice. The total amount for loss of past and future earnings in terms of this calculation is R5060412.00.

[27] The supplementary agreement between the parties is to the effect that plaintiff’s claims set out in paras. 5.4.1, 5.4.2, 5.4.4, and 5.4.5 are to be covered by an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 (‘the Act’) to be issued by the Fund. The claim in para. 5.4.3 has been abandoned.

[28] The defendant is ordered:

1.1 To pay the plaintiff the sum of R5810412.00 as and for damages, together

with interest thereon at the legal rate from the date of judgment to date of

payment;

1.2 To furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the

Road Accident Fund Act 56 of 1996 in respect of the plaintiff’s claims set out

in paras.5.4.1 , 5.4.2 and 5.4.4 of the Plaintiff’s Particulars of Claim;

1.3 To pay the plaintiff’s costs of suit on an attorney client scale, together with

interest thereon at the legal date from 14 days after allocatur to date of

payment, such costs to include:

• the qualifying expenses, if any, of the experts in respect of which rule 36 (9)(a) and (b) notices were delivered by the plaintiff;

• the reasonable day reservation fees of Drs. Holmes, Tyler, Olivier and Van Dalen;

• the costs of plaintiff’s photographs, key and plan of the scene of the accident.

1.4 To pay the costs of the application for a postponement of the trial made on 2

February 2009 on an attorney and client scale, jointly and severally with the

two officials of the Fund who filed affidavits on behalf of the Fund on 2 and

3 February 2009.

[29] The registrar is directed to forward a copy of this judgment to the Board of the Road Accident Fund with the request that it be circulated to all board members and to file a report in writing in the file of this matter when and in what manner this was done.

J.C.Froneman

Judge of the High Court.

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