Tag Archive | Injuries

RAF 4 – The 60 Day Period Rejected

writing on form

Van Loggerenberg v RAF

In this case the plaintiff submitted a serious injury assessment form i.t.o. reg 3(3)(a) describing her injuries as a serious long term impairment or loss of a body function. The Dr’s handwritten notes stated that she had lost ¾ of her left index finger.

The defendant rejected her RAF 4 form 5 days before trial informing her that her injury does not constitute a 30% WPI as required i.t.o. the AMA guides and further that her RAF 4 form establishes no basis that the four elements of the narrative test has been satisfied.

The letter continued stating that if the plaintiff wishes to dispute the rejection she can do so by following the procedure set out in Reg 3(4) and 3(13).

Subsequently a special plea was raised that the plaintiff cannot claim general damages unless she complies with the act. The plaintiff did not respond, instead the plaintiff relied on the Louw matter, stating that the Fund had to reject the RAF 4 within 60 days of receiving it, failing which the claim for general damages is a valid claim.

The judge disagreed stating that neither the act not the regulations stated a time period within which the fund had to reject the plaintiff’s RAF 4 form.

The judge further stated that he is of the opinion that there should be a distinction between a claim for pecuniary and non-pecuniary loss in regards to the provisions of Sec 17(1)(b) of the act.

The judge went on to distinguish this case from the Louw matter on the grounds that in the latter case evidence was presented to the court in respect of the seriousness of the plaintiff’s injuries.

In closing the judge stated that the RAF 4 form should deal with the effects of the injury in detail where the narrative test is employed.

The special plea was upheld.

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Conceding Merits – The Scope of Liability

Dear Reader,

Welcome to the twenty sixth edition of Independent Actuarial Consultant’s (IAC’s) monthly newsletter.

Have your say, build your practice with the IAC Blog.  This newsletter goes out to more than 1 000 MVA attorneys, advocates and claims handlers across South Africa.

If you want to build your practice, ask a question, get an opinion or simply speak your mind, the IAC Blog is the right forum.

We will publish interesting articles from practitioners from time to time.  Should you with to have your own article published, please email same to me at roelf.nel@iac.co.za

 

CONCEDING MERITS – THE SCOPE OF LIABILITY – Gusha v The Road Accident Fund (158/2011) [2011] SCA 242

Red yield sign

On 14 February 2006 the appellant was a passenger in a motor vehicle when it swerved off the road to avoid an oncoming unidentified motor vehicle being driven on the incorrect side of the road. The vehicle capsized and the appellant sustained severe injuries which left him paralysed.

The appellant sued the respondent for R6,7 million in damages alleging that the accident had been due to the negligence of the driver of the unidentified motor vehicle.
Before the issue of summons the parties came to an agreement wherein the respondent accepted “liability for the damages still to be proven, which the (appellant) has suffered as a result of the bodily injuries he sustained in the accident”.

At the trial of the matter the court was asked to decide whether, on a proper construction of the agreement, it was still open to the respondent to apply to amend its pleadings to allege that there should be an apportionment due to the appellant’s contributory negligence by not wearing a seatbelt.

The parties agreed to separate this issue for adjudication.

After hearing the parties, the high court concluded that the terms of the agreement did not prohibit the respondent to amend its plea. The appellant appealed to the SCA.

Both parties accepted that the concession of ‘the merits’ meant no more than that the driver of the unidentified motor vehicle had been negligent.

However, the respondent also accepted ‘liability for the damages, still to be proven, which the Plaintiff has suffered’.

The respondent argued that it had thereby intended to do no more than to accept liability for the damage caused by the negligence of the driver and, if the appellant had not been wearing a seatbelt and his failure to do so contributed to his injuries, the respondent had not undertaken to be held liable for that harm. The acceptance of ‘liability’ had therefore been limited.

The SCA rejected the respondent’s argument. In interpreting the agreement, the correct approach is to have regard to the normal grammatical meaning of the relevant words, the context and the background circumstances.

At the time the respondent was facing a claim for damages it had accepted that the driver of the unidentified motor vehicle had been negligent. The respondent clearly gave no thought at the time to the possibility of any contributory negligence on the part of the appellant. In these circumstances the respondent accepted liability without qualification.

The appeal succeeded with costs.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
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 Now for some fun –

The car wreck.
A doctor and a lawyer got into a car accident, on a small country road. The lawyer had figured that nobody else would be on the road, and had raced through a stop sign. The doctor, on a cross street, had no time to react and couldn’t have missed the lawyer if he had tried. Fortunately, neither driver was hurt.
The lawyer, seeing that the doctor was a little shaken up, helped him from his battered car and offered him a drink from a hip flask.The doctor accepted, took a deep drink, and handed the flask back to the lawyer. The lawyer held the flask for a minute or two, and gave it to the doctor again. The doctor took another swig. He again returned the flask to the lawyer, who closed it and put it away.
“Aren’t you going to have a drink yourself?” asked the doctor.
“Not now,” answered the lawyer. “I’ll have something after the police leave.”

The Serious Injury Appeals Tribunal

Dear Reader,

Welcome to the twenty fifth edition of Independent Actuarial Consultant’s (IAC’s) monthly newsletter.

AKAAI JUDGEMENT ANALYZED – SOUTH GAUTENG HIGH COURT, CASE NO: 10/04245

BlackWhite Professionals

In this matter the fund raised a special plea questioning whether the Court had the jurisdiction to deal with the issue of general damages as they alleged the plaintiff did not comply with regulation 3 of the Regulations to the Act.

In compliance with regulation 3(1)(a) the plaintiff submitted himself to an assessment by medical practitioners. Duly completed RAF4 forms were provided in terms of the narrative test.

In terms of regulation 3(3)(c) the Fund shall only beobliged to compensate a third party for non-pecuniary loss if a claim is supported by a serious injury assessment report and the Fund is satisfied that the injury has been correctly assessed as serious. However, in terms of sub-regulation (3)(d)(i) to (iii), if the Fund or agent is not satisfied that the injury has been correctly assessed, the Fund must:

“(a) reject the serious injury assessment report, and furnish the third party with reasons for the rejection, or

(b) direct that the third party submit himself or herself, at the cost of the Fund or an agent, to a further assessment… “

In terms of regulation 3(3)(e), the Fund must either accept the further assessment or dispute the further assessment in the manner provided in regulation 3(4)(a) to (c) which states:

“(4) If a third party wishes to dispute the rejection of the serious injury assessment report…, the disputant shall ─

(a) Within 90 days of being informed of the rejection or the assessment, notify the Registrar that the rejection or the assessment is disputed by lodging a dispute resolution form with the Registrar;

(b) in such notification set out the grounds upon which the rejection or the assessment is disputed and include such submissions, medical reports and opinions as the disputant wishes to rely upon; and …”

In terms of regulation 3(5) once the Registrar is notified that the rejection or
assessment is disputed the rejection or the assessment shall become final and binding.

The Registrar shall after receiving the notification from the other party or the expiry of the 60 day period refer the dispute to an appeal tribunal paid for by the Fund.

Amongst other objections the defendant had directed the plaintiff to submit himself to a further assessment, which he did. The alternate serious injury assessments obtained by the defendant confirmed the assessment of the plaintiff’s injuries as serious.

As indicated earlier, in terms of regulation 3(4), if a third party wishes to dispute the rejection of the serious injury assessment then the third party must lodge a notice of the dispute with the Registrar. The plaintiff did not dispute the assessment performed by the defendant’s experts and it, therefore, did not refer a dispute to the Registrar to be considered by an appeal tribunal.

The defendant contended that once it rejected the serious injury assessment reports of the plaintiff, the plaintiff was required to refer the dispute to the appeals tribunal.

The court held that in view of the agreement between the plaintiff’s experts and those of the defendant’s as to the seriousness of the injuries there was no dispute which requires referral to the appeals tribunal. The mere say so by the Fund that it rejects the serious injury assessment report/s of a claimant’s medical practitioners does not, in itself, create a dispute.

Accordingly, absent a dispute as to the seriousness of the injuries, there can be no basis upon which a referral to the appeals tribunal would be justified. The defendant’s special plea was rejected.

The plaintiff was awarded R200 000 in respect of general damages.

Interestingly, during argument, counsel for the Fund contended that the Act does not contemplate the establishment of one single appeal tribunal, but rather that an appeal tribunal is to be convened by the Registrar following procedural compliance by the claimant after rejection, by the Fund, of his or her serious injury assessment report. In other words an appeals tribunal will be constituted by the Registrar, from time to time, and as and when a dispute requires consideration.

This contention seems to be in conflict with the obiter statement made in the Mngomezulu judgement, as analyzed in my October newsletter, quoted here for your ease of reference.

“3. Matters cannot be referred to the tribunal i.t.o. Reg 3(4) until such time that the tribunal is operational. – Par 41 & 50”

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

Email : damagesclaims@iac.co.za, or
Post : PO Box 1172, Cape Town, 8000
Fax : 086 616 8308

Now for some fun –

Ambulance chaser.

Did you hear about the lawyer hurt in an accident?

An ambulance stopped suddenly.

Mngomezulu Judgement Analyzed – IAC Newsletter 24/2011, (October 2011)

Mngomezulu Judgement Analyzed – South Gauteng High Court, Case NO: 04643/10

The plaintiff, a 27 year old man, sustained injuries when he was the victim of a hit and run accident that took place on 8 August 2009.

Image

The injuries suffered by the plaintiff were: compound right tib-fib fractures, a closed chest injury with lung contusion, a 30 cm laceration of the right thigh and a head injury with loss of consciousness.

The fund raised a special plea stating that the plaintiff did not comply with Regulation 3.

The court confirmed the decision in Louw (as discussed in last months newsletter) that the fund has to object to a plaintiff’s RAF 4 form within 60 days of receiving same failing which it is a valid claim.

In coming to its conclusion the court set down guidelines that will be of great value when dealing with serious injury matters in future. Some of them follow hereunder along with the paragraph reference to the judgement:

1. In terms of Sec 24(5) the fund must object to the Plaintiff’s RAF 4 within 60 days of receiving same. – Par 24

2. When claiming for a serious injury under the narrative test it is appropriate that an RAF 4 form be produced for each particular and applicable medical discipline that is called for by Reg 3(1)(b)(iii)(aa) – (cc):
Regulation 3(1)(b)(iii)(aa) speaks of long term impairment or loss of body function, typically falling within the area of expertise of an Orthopaedic Surgeon or an Occupational Therapist;

Regulation 3(1)(b)(iii)(bb) speaks to serious disfigurement typically falling under the area of expertise of a Plastic Surgeon;

Regulation 3(1)(b)(iii)(cc) speaks to long term or severely long term behavioural disturbance or disorder typically falling within the area of expertise of a Psychiatrist, a Psychologist or a Neuropsychologist. – Par 33 &34

3. Matters cannot be referred to the tribunal i.t.o. Reg 3(4) until such time that the tribunal is operational. – Par 41 & 50

4. For the rejection of a claimants RAF 4 form to have occurred in the prescribed manner the Defendant must substantiate the rejection with relevant, rational and sustainable reasons. When a Defendant furnishes generalised, vague and non-descript reasons, such rejection will not meet the requirements of Regulation 3 and therefore may not amount to a proper rejection or objection. – Par 47

5. When the defendant wishes to object to a claimants RAF 4 form on the basis of procedural grounds it must avail itself of Reg 3(3)(d)(i). – Par 49

6. When the defendant wishes to object to a claimants RAF 4 form on the basis of a difference of medical opinion it must avail itself of Reg 3(3)(d)(ii), substantiated by opposing expert reports. – Par 49 & 53

7. A plaintiff is not obliged to first be assessed in terms of WPI or AMA’s before the narrative test can be applied. – Par 51

8. The concept of MMI (maximum medical improvement) is irrelevant to the assessment of the Plaintiff’s injuries in terms of the narrative test. – Par 54

9. Regulation 3(4) can only be invoked following the processes contemplated by Regulation 3(3) and in particular, Regulation 3(3)(d)(i) and (ii). – Par 65

The court awarded the plaintiff R 600 000.00 in general damages.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for some fun –

Q: What do you throw to a drowning lawyer?
A: His partners.

Q: How many lawyer jokes are there?
A: Only three. The rest are true stories.

RAF4 – Period in which the fund has to object

Dear Reader,

Welcome to the twenty third edition of Independent Actuarial and Consultant’s (IAC’s) monthly newsletter.

WE PROVIDE LOSS OF INCOME AND LOSS OF SUPPORT CALCULATIONS TO ATTORNEYS DEALING WITH MVA & OTHER DAMAGES CLAIMS.
WE ALSO PROVIDE FREE TRAINING SEMINARS ON THE RAF AMENDMENT ACT TO ALL OUR VALUED CLIENTS.

If you send us instructions you are entitled to the same.

Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents, the quantification of damages relating to personal injury claims and dates and venues of training seminars.

LOUW and RAF, SOUTH GAUTENG HIGH COURT, CASE NO: 49084/09

The plaintiff in this matter, a 52 year old domestic worker, sustained injuries when the taxi she and her minor son was travelling in collided with another vehicle on 31 December 2008. The plaintiff’s son died on the scene.
The injuries suffered by the plaintiff were: a head injury with loss of consciousness for s short time, a contusion of the right shoulder and a severe contusion over the chin. These injuries left the Plaintiff unemployable in the informal sector. The plaintiff claimed for funeral expenses, loss of earning capacity and general damages in the amount of R 100 000.00. The defendant conceded the merits 100% on the day of the trial. The court had to decide on the issues of quantum and a special plea the defendant raised concerning non-compliance with the provisions of
the act on the part of the plaintiff. The court awarded the funeral costs and the plaintiff’s claim for loss of earning capacity and found that taking into account the plaintiff’s injuries, her pain and suffering, emotional shock at the death of her son an award of R 100 000 for general damages was justified.

As regards the defendants special plea it was contended that the plaintiff did not comply with regulation 3.
The plaintiff submitted her RAF 4 form, which stated that her injuries, although not resulting in a 30% whole body impairment, resulted in a serious long term impairment and a severe long term mental or behavioral disturbance as provided for by the narrative test, together with her claim form to the fund on the same day. The defendant then had 60 days to object to the validity of the claim i.t.o. Sec 24(5) of the act. The defendant did not object to the claim or to the RAF 4 form but contended that the 60 day period referred to in Sec 24(5) only related to the RAF 1 form and because they had as yet not responded to the RAF 4 form the plaintiff is precluded from claiming general damages.

The court rejected the defendant’s special plea on the basis that if it was upheld the defendant could simply frustrate every claim for general damages by simply not responding to it. Therefore it follows that the fund has to object to a plaintiff’s RAF 4 form within 60 days of receiving same failing which it is a valid claim.

Sending us an Instruction
Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for some fun –
How does an attorney sleep?
First he lies on the one side and then on the other.
How do you get a group of lawyers to smile for a picture?
Just say “Fees”

Passenger Claims – Will you be able to transfer same from the Mag Court to the High Court

Dear Reader,

Welcome to the twenty second edition of Independent Actuaries & Consultant’s (IAC’s) monthly newsletter.

WE PROVIDE LOSS OF INCOME AND LOSS OF SUPPORT CALCULATIONS TO ATTORNEYS DEALING WITH MVA & OTHER DAMAGES CLAIMS.
WE ALSO PROVIDE FREE TRAINING SEMINARS ON THE RAF AMENDMENT ACT TO ALL OUR VALUED CLIENTS.

If you send us instructions you are entitled to the same.

Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents, the quantification of damages relating to personal injury claims and dates and venues of training seminars.

In this Newsletter:

This was an appeal against a judgment of the North Gauteng High Court dismissing the appellant’s application to have his civil case transferred from the Pretoria magistrates’ court to the North Gauteng High Court.

The appellant sustained serious bodily injuries as a result of a motor collision which took place on 1 March 2003. In March 2004 the appellant issued summons against the respondent in the Pretoria Magistrates’ Court. During December 2004 the appellant’s attorney discovered that the quantum of the appellant’s claim exceeded the jurisdiction of the magistrates’ court but persisted with his claim in the Magistrates Court. On 25 June 2008, the appellant’s attorney wrote a letter to the Fund advising it that further medical reports revealed that the appellant’s claim exceeded the jurisdiction of the magistrates’ court and requested a consent to a transfer of the case to the high court. There was no reply and the appellant launched an application in the North Gauteng High Court for the transfer of the case to that court.

The Fund opposed the application on various grounds and the high court found in favour of the Fund. The question on appeal is whether the court below was correct in its reasoning and conclusion. It was contended on behalf of the appellant that a failure to order a transfer of the action from the magistrates’ court to the high court would result in grave injustice to the appellant and that this would be against constitutional norms. The injustice flowed from the fact that although the appellant had a substantive right to claim damages from the Fund the appellant is precluded from pursuing it in the high court because of the statutory oversight to cater for a transfer from the magistrates’
court at a plaintiff’s instance.

The inherent jurisdiction of the high court is entrenched in s 173 of the Constitution. Section 173 does not give any of the high courts carte blanche to interfere in the affairs of inferior courts. A high court can only exercise its inherent jurisdiction in relation to the regulation of its own process when confronted with a case over which it already has jurisdiction (my italics) and when faced with procedures and rules of the court which do not provide a mechanism to deal with an instant problem. As far as the appellant’s submission that the ‘interests of justice’ required the high court to use its inherent jurisdiction to order a transfer of the case to the high court is concerned the court found that the appellant’s access to court was not impeded by some lacuna in the law (my italics). His attorneys chose the wrong forum and persisted therein when it was clear on the available evidence that a change of forum was imperative to protect his interests.

Furthermore the appellant is not without remedy (my italics). He has a right to institute a claim for compensation against his attorneys for the difference between what might be recovered through the magistrates’ court and the full extent of his loss A high court may not use its inherent jurisdiction to create a right (my italics). The appellant had a right to institute action in the appropriate forum to the full extent of his claim. Prescription has extinguished part of his claim. The court held that if there is a case in which it is necessary to fashion a
constitutionally acceptable remedy because of the interests of justice, this is not it. The appeal was dismissed with costs Should Parliament fail to amend the specific provisions dealing with passenger claims before 16 August 2012 (as per Mvumvu judgement – refer May 2011 newsletter), and the claim becomes “unlimited” or if they get their act together and a different compensation regime is enacted for passenger claims, claimants who issued summons in the Mag court might be faced with a situation where they will in any event not benefit. Based on Oosthuizen there are two factors weighing against a claimant successfully transferring his claim where he has issued summons in the Mag court and prescription has taken place namely, “the high court can only exercise its inherent jurisdiction … when confronted with a case over which it already has jurisdiction” and “A high court may not use its inherent jurisdiction to create a right.” especially if prescription has extinguished part of a claim.

However, such a scenario would not be based on any fault or oversight on the part of the claimant or his attorney but it would be a case of “the appellant’s access to court being impeded by some lacuna in the law” and “Furthermore the appellant is … without remedy.” These two factors might convince the court that “it is a case in which it is necessary to fashion a constitutionally acceptable remedy because of the interests of justice”. Interesting times lies ahead.

Sending us an Instruction
Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for some words of wisdom –
“Treasures of wickedness profit nothing, but righteousness delivers from death” – Proverbs
10:2 (AMP)

Serious Injuries – The interrelationship between the AMA and Narrative tests

Dear Reader,

Welcome to the twenty first edition of Independent Actuaries and Consultant’s (IAC’s) monthly newsletter.

WE PROVIDE LOSS OF INCOME AND LOSS OF SUPPORT CALCULATIONS TO ATTORNEYS DEALING WITH MVA & OTHER DAMAGES CLAIMS.
WE ALSO PROVIDE FREE TRAINING SEMINARS ON THE RAF AMENDMENT ACT TO ALL OUR VALUED CLIENTS.

If you send us instructions you are entitled to the same.

Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents, the quantification of damages relating to personal injury claims and dates and venues of training seminars.

Today’s Newsletter

We will look at the decision made in relation to the application of the 3rd respondent in this matter, one Ntombiko Priscilla Sunduzwayo. She was injured in a motor vehicle accident on 9 April 2009. At the time, she was working at a bus terminal in Philippi, Cape Town, as a passenger-tout for long distance buses and taxis to the Eastern Cape. She was struck down by a motor vehicle while crossing a road and sustained severe injuries to her lower leg. As a result, she is unable to resume her work as a tout, an occupation which requires her to run about physically in search of potential passengers.

She contended that the consequences of her injuries on her quality of life renders it appropriate to characterise the injuries as ‘serious’ within the meaning of the proviso to s 17(1) of the Act and she proposed to claim compensation for general damages.

As she could not afford to pay the R 7 000.00 required for a serious injury assessment report she submitted a request to the Fund for financial assistance in respect of the required serious injury assessment on 4 September 2009. On 19 April 2010, after her attorney had made various follow up inquiries, the Fund refused the request for financial assistance. The Fund contended that it was liable to pay the costs of a serious injury assessment only in the event that the claimant had sustained serious injuries that resulted in not less than ‘30% permanent body impairment’. A telephonic enquiry by the applicant’s attorney obtained confirmation from the relevant functionary at the Fund who had been dealing with the matter that he had not considered the narrative test to ascertain the seriousness, or lack
thereof, of the injury. In the court papers the Fund stated that if a request for financial assistance in respect of a serious injury assessment is not sufficiently substantiated to establish a prima facie indication of a serious injury it will not fund further investigation into the seriousness of the injury or its consequences. It further stated that the so-called narrative test is there to cover those isolated and rare cases where the objective criteria of the AMA6 are not met. It is a fallback position.

The court stated that the narrative test falls to be applied as an integral part of any serious injury assessment and this is indeed confirmed by the content of part 5 of the RAF4 form, which gives effect to regulation 3(1)(b)(iii) of Road Accident Fund Regulations (2008). There is nothing in regulation 3(1)(b) which suggests that the narrative test should be applied only in ‘rare and isolated cases’. The functionary of the Fund who declined the third applicant’s request in terms of regulation 3(2)(b) gave no consideration whatsoever to the possible effect of the application of the narrative test and plainly did not consider that the narrative test fell to be applied together with AMA Guides as ‘a collective’ and not as a fallback procedure when the AMA guidelines has not been met.

The decision by the Fund to decline the third applicant’s request in terms of regulation 3(2)(b) of the Road Accident Fund Regulations (2008) was set aside.

Sending us an Instruction
Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for some words of wisdom –
“The blessing of the Lord makes truly rich, and He adds no sorrow with it (neither does toiling
increase it)” – Proverbs 10:22 (AMP)

Passenger Claims – The Mvumvu (CCT 67/10 ZACC 1) aftermath

Dear Reader,

Welcome to the twentieth edition of Independent Actuaries and Consultant’s (IAC’s) monthly newsletter.

WE PROVIDE LOSS OF INCOME AND LOSS OF SUPPORT CALCULATIONS TO ATTORNEYS DEALING WITH MVA & OTHER DAMAGES CLAIMS. WE ALSO PROVIDE FREE TRAINING SEMINARS ON THE RAF AMENDMENT ACT TO ALL OUR VALUED CLIENTS.

If you send us instructions you are entitled to the same.

Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle
accidents, the quantification of damages relating to personal injury claims and dates and
venues of training seminars.

Passenger Claims – The Mvumvu aftermath

The facts of this matter are that Ms Mvumvu and 2 other sustained serious injuries in separate collisions, prior to 1 August 2008, whilst being conveyed as passengers. They launched an application to declare section 18 of the RAF Act (“the Act”), which places a R 25 000.00 limitation on their claims for damages, invalid. The Western Cape High Court (WCHC) declared parts of S 18 invalid as it found the limitation to be unconstitutional. However, it ordered that Ms Mvumvu and the other Applicants would qualify for no greater compensation than those who suffered bodily injury after the Amendment Act took effect.

The order was referred to the Constitutional Court (CC) for confirmation and Ms Mvumvu and the 2 others applied to the CC that the order made by the WCHC insofar as it limited their claims to that which they are entitled to recover under the Amendment Act, be set aside, as they were injured prior to the amendment act coming into effect.  The fund did not oppose the declaration of unconstitutionality of S 18 but opposed an order granting all passengers injured prior to 1 August 2008, whose claims had not finally been dealt with, being allowed to claim on an unlimited basis.  The fund cited financial reasons and the sustainability of the fund to motivate their argument not to allow the order of unconstitutionality to operate retrospectively.  The CC confirmed the order of invalidity of parts of S 18 of the Act and ruled that the matter must be remitted to Parliament for it to provide relief for the inequality which the old scheme continues to cause passengers injured prior to 1 August 2008, whose claims has not been finalized.   The invalidity order is therefore suspended for 18 months to give Parliament the opportunity to fix the problem.

If Parliament fails to cure the defect within the period stated above, which runs out on 16 August 2012, the invalidity order will come into operation with immediate effect and it will operate retrospectively to the date on which the Act came into force. What this means is that the applicants will be entitled to unlimited compensation as if the cap was never enacted. However, the declaration of invalidity ought not to apply to claims in respect of which a final settlement has been reached or a final judgment has been granted, before the date of this judgment (17 February 2011).   As a result of the CC judgement the fund has revoked their previous directive not to make any offers on claims i.t.o. S 18(1)(a)(i) (persons injured while being conveyed “for reward”), S 18(1)(b) (passengers who were conveyed under circumstances other than those referred to in section 18(1)(a)) and S 18(2) (persons who has a COIDA claim) and will once again make offers up to the maximum of R 25 000.00.
Sending us an Instruction:

Our dedicated full time professional team receive instructions by any of the following means:
• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for some words of wisdom –
“The thing a wicked man fears shall come upon him, but the desire of the (uncompromisingly)
righteous shall be granted” – Proverbs 10:24 (AMP)

Scale of costs – High court or not

Dear Reader,

Welcome to the twelfth edition of Independent Actuarial Consultant’s (IAC) monthly newsletter. Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents and the quantification of damages relating to personal injury claims.

We will also keep you updated of IAC developments, events and training seminars and lighten up your day with a joke or inspirational quote.

Training

I am excited to announce that IAC will again be presenting training on the calculation of simple loss of income and loss of support calculations. The training is aimed at attorneys in order to equip them to give better instructions,
have a better understanding of the actuarial calculation process and to aid in settlement of matters.

Same will be taking place on the following dates:

Durban 13 July 2010
Johannesburg 15 July 2010
Pretoria 15 July 2010
Cape Town 28 July 2010
Port Elizabeth 29 July 2010

KINDLY COMPLETE YOUR CONFIRMATION OF ATTENDANCE DOCUMENTS FOR THE CAPE TOWN AND PORT ELIZABETH SESSIONS AND E-MAIL SAME TO roelf.nel@iac.co.za OR FAX TO 011 333 9663 ON/BEFORE 16 JULY 2010.

KINDLY NOTE THAT THERE ARE STILL 16 SPOTS LEFT FOR THE DURBAN SESSION AND 9 SPOTS FOR THE JOHANNESBURG SESSION,
PLEASE PHONE ME ON 083 393 8530 SHOULD YOU BE INTERESTED IN TAKING UP SAME.

Pedestrian crossing street with cars

TSELE REGINALD KANONO v THE ROAD ACCIDENT FUND – 7072/2008 [UNREPORTED] – FREE STATE HC

The Plaintiff instituted action against the Defendant for payment in the amount of R124 919, 24 for damages suffered as a result of motor vehicle accident.

The Plaintiff chose the High Court as appropriate forum to institute proceedings.

The Plaintiff abandoned the whole amount of R100 000 for general damages and subsequently the merits and quantum of damages were settled in the amount of R24 919,24 being special damages. The Defendant tendered party and party costs on Magistrates Court scale and increased advocates fees.

Counsel for the Plaintiff argued that the Defendant never objected to the High Court’s jurisdiction before trial even when Defendant had ample opportunity to do so during the R37 conference. It was also argued that Defendant had sufficient time to settle the matter before the trial date and all the costs could have been prevented.

Counsel for Defendant argued that proper investigation had to be done by Defendant to consider the claim and that Defendant had indeed tried to settle the claim.

From the beginning it was clear that Plaintiff’s claim would be limited.

The court held that the general rule that costs follow the event is subject to the overriding principle that the court has a judicial discretion in awarding costs.

The court further held that the fact that the Plaintiff claimed more than she succeeded in recovering is insufficient ground for refusing her costs or to justify the court in depriving her of costs. The claim must be excessive, or grossly disproportionate to the amount awarded, before that would be done.

Plaintiff’s injuries were described as:

“minor bodily injuries to the head as well as fairly severe injuries to the chest which include laceration
of the left side of the face and fracture of the left ‘scapula’”.

The purpose of an award of cost to a successful party is to indemnify him for the expense to which he has been put by having unjustly been compelled to initiate or defend litigation.

The cost order is not intended to be compensation for a risk to which a litigant has been exposed, but a refund of expenses actually incurred PAYEN COMPONENTS SA LTD v BOVIC GASKETS CC 1999 (2) SA 409 (W) 417. The award of costs is a judicial discretion and must be exercise on grounds upon which a reasonable person could have come to the conclusion arrived at.

After due consideration of the facts the court held that the matter did not “present considerable difficulties in fact or law” as was indicated in the BARNARD v SA MUTUAL FIRE & GENERAL INSURANCE CO LTD 1979 (2) SA 1012 ( SE) case.

The Plaintiff had been over optimistic in regard to the amount she claimed as damages.

The court ordered that the cost’s is to be taxed on a scale applicable in the Magistrate’s Court.

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The appropriate scale of costs to be awarded to counsel in the Magistrate’s court

Dear Reader,

Welcome to the seventh edition of Independent Actuarial Consultant’s (IAC) monthly newsletter. Via
this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents
and the quantification of damages relating to personal injury claims.

We will also keep you updated of IAC developments, events and training seminars and lighten up your
day with a joke or inspirational quote.

ANNOUNCEMENT
Please take note of our new fax to e-mail number 086 616 8308.

BRAND v THE ROAD ACCIDENT FUND (CA 170/09) [2009] ZAECGHC 85 – UNREPORTED

This is an appeal against a cost order granted by a Magistrate in a trial action.  On 4 February 2005 the appellant – plaintiff in the court a quo – sustained bodily injuries in a motor collision.  The appellant had abandoned a portion thereof to bring it within the jurisdiction of the magistrate’s court.
The matter was set down for trial on 8 August 2008 on both merits and quantum.  The appellant’s attorney, however, pursued an application for a separation of the issues and the application was granted.  The magistrate’s judgment did not, however, deal with the question of costs.  Immediately thereafter an 80/20 settlement in favor of the plaintiff was reached and the costs of the day would be
reserved for determination by the trial court adjudicating the issue of quantum.
The matter was set down again for hearing on 6 February 2009. On that day, and prior to evidence being led, the issue of quantum was settled.  General damages would be fixed at R50 000,00, an undertaking would be furnished for future medical expenses and the respondent would pay the appellant’s taxed party and party costs.

Two issues of costs were then argued by the parties before the magistrate:

(a) the liability for the costs which had been reserved on 8 August 2008;
(b) whether the fees of counsel who represented the appellant should be limited to the tariff set out in Part IV of Annexure 2 to the magistrate’s court Rules1 or whether the magistrate should allow higher fees.

After hearing argument the magistrate gave judgment granting the appellant her taxed party and party costs, but limited counsel’s fees to those stipulated in the tariff. He omitted to deal with the costs which were reserved on 8 August 2008. In his further reasons for judgment, however, the magistrate recorded an order that the “wasted costs” of 8 August 2008 be paid by the appellant.

The appellant, sought orders from this court:
(a) setting aside the magistrate’s order and substituting therefor an order allowing counsel’s fees in an amount three times the amount set out in the tariff;
(b) an order that the costs of the hearing on 8 August 2008 be paid by the respondent.

Counsel were agreed, and correctly so, that the following principles were applicable. An order for costs falls within the discretion of the trial court. An appellate tribunal will not readily interfere with the exercise by a trial court of such discretion. It will only do so where the trial court exercised its discretion, not judicially, but capriciously or upon a wrong principle or where the order is incompetent.
See eg. Cronje v Pelser 1967 (2) SA 589 (A) at 592H-593A; Merber v Merber 1948 (1) SA 446 (A) at
452-3.

In his judgment the magistrate recorded that he had been referred to two unreported decisions in this Division: Road Accident Fund v Forbes (Case No CA 197/05, 28 September 2006) and van Zyl v Road Accident Fund (Case No CA 243/07, 19 October 2008). Both decisions were given in appeals against costs orders made by a magistrate in matters of the same nature as the present.

In the first matter Jones J inter alia upheld the magistrate’s order allowing counsel’s fees at three times the amount set out on
the tariff. In the second matter Jones J set aside a magistrate’s refusal to allow counsel’s fees at a rate and ordered that the defendant pay the costs of counsel’s fees in an amount not exceeding three times the amount set out in the tariff. The magistrate, however, sought to distinguish these two decisions.

The first basis on which a distinction was drawn was that in the two earlier cases expert evidence was led on the issue of the quantum to be awarded, whereas in the present matter the quantum was settled without any evidence being led. The distinction is without merit. As recorded earlier, the settlement of the quantum was reached only on the day the matter was set down for hearing. The appellant, and her legal team, had therefore perforce to prepare themselves on the issue of quantum in order to be in a position to lead the necessary evidence.
The second basis of distinction was that in van Zyl the defendant had conceded that there was no contributory negligence on the part of the plaintiff, whereas in the instant matter the appellant had accepted that her contributory negligence be fixed at 20%. Again, the magistrate proceeded on a wrong principle: the appellant had achieved success in the action and to base the refusal to make an order in terms of Note (b) referred to above on the fact of the apportionment of liability was not a judicial exercise of the discretion.
Referring to the fact that the parties had reached agreement on the issues the magistrate again stated that no expert witnesses had been called; hence, there was nothing justifying the court finding that “this is a matter which warrants an advocate as such” in that it was a case which the court dealt with on a daily basis.
Suffice it is to say that the magistrate’s approach can clearly not be endorsed. The restriction of the engagement of counsel to “special cases” enjoys no foundation in the rules of the magistrate’s court nor in the practice followed in that court, and is clearly unacceptable.
With reference to the circumstance that the appellant abandoned a portion of her claim to bring it within the jurisdiction of the magistrate’s court the magistrate’s further reasons contain the following paragraphs:
“Though someone may argue that the matter has been brought to district court because of expenses I strongly feel that a irregardless (sic) of that argument a High Court matter deserve to be taken to High Court otherwise we will find ourselves in a situation where a Mini High Court is created by practice in the District Court.  I do not think this is the intention of our legislature.”
Suffice it to say that this reasoning is difficult to follow and that to the extent that this approach contributed to the magistrate’s coming to the conclusion reached by him, it is clear that a wrong principle was adopted. The court held that where a plaintiff is awarded an amount that falls within the jurisdiction of the magistrate’s court it does not lie within the mouth of that plaintiff, in an attempt to secure an order for costs on a higher scale, to point to the fact that it was alleged that the claim was in an amount in excess of that jurisdiction, but that the claim was reduced to the limit of that jurisdiction.
The issue of the costs of the hearing on 8 August 2008 remains. The magistrate was not entitled in his further reasons to supplement the orders made in his judgment by the addition of a further order. In any event he did not motivate his finding that the costs in question were “wasted costs” nor his ruling that same should be paid by the appellant. Neither can be supported.
The appeal succeeds. The costs order issued by the magistrate is set aside and for it is substituted with the following:
“The defendant will pay the plaintiff’s taxed party and party costs, such costs to include:
1. the costs of the hearing on 6 August 2008;
2. counsel’s fees in amounts not exceeding double the amounts set out in the relevant tariff contained in Part IV of Annexure 2 to
the Rules.”

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:
• Fax : (021) 422 4378,
• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax 2 e-mail : 086 616 8308

And to lighten up your day here’s your joke –
NASA was interviewing professionals to be sent to Mars. Only one could go — and couldn’t return to Earth.  The first applicant, an engineer, was asked how much he wanted to be paid for going. “A million dollars,” he answered, “because I want to donate it to M.I.T.”

The next applicant, a doctor, was asked the same question. He asked for $2 million. “I want to give a million to my family,” he explained, “and leave the other million for the advancement of medical research.”
The last applicant was a lawyer. When asked how much money he wanted, he whispered in the interviewer’s ear, “Three million dollars.” “Why so much more than the others?” asked the interviewer.
The lawyer replied, “If you give me $3 million, I’ll give you $1 million, I’ll keep $1 million, and we’ll send the engineer to Mars.”