Bovungana v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Froneman J
• Judgment Date: 27 February 2009
• Counsel: AG Dugmore for the plaintiff. NM Paterson for the defendant.
• Docket Number: 2090/2007
• Court: Eastern Cape Division

Froneman J: I

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.' J

Froneman J

A (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, regretably, the Road Accident Fund (the Fund) did not administer the plaintiff's claim with B 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 C 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 D 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 E 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 F 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 G 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.

H [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 I 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.

Froneman J

The Fund's attorney filed her affidavit timeously and it is apparent from A 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. B

[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 C 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 D 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 would take that attitude disclosed by the Fund E 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, F 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 from earlier. This allowed the plaintiff to G 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 H 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 I 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 J

Froneman J

A 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 B 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 C 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 D 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 E 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 F which his post-morbid income was quantified was not of a majorly 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.

G [9] This responsible course was, in fact, the route...