Mdlalose v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Mccall J
• Judgment Date: 10 July 2000
• Citation: 2000 (4) SA 876 (N)
• Docket Number: 2116/97
• Hearing Date: 14 February 2000
• Counsel: Y N Moodley SC for the plaintiff. P A C Rowan for the defendant.
• Court: Natal Provincial Division

McCall J:

The plaintiff instituted action against the defendant, claiming damages suffered by him as a result of bodily injuries sustained in a motor vehicle accident on 18 March 1993. Before the matter went to trial before Howard JP on the issue of the quantum of the plaintiff's damages, it had I been agreed by the parties:

'(a)

that the defendant was liable to compensate the plaintiff for 80% of the damages suffered by him;

(b)

that the plaintiff's past medical and hospital expenses were R1 233;

(c)

that an appropriate undertaking in terms of art 43(a) of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 would be furnished in respect of future medical and hospital expenses; J

McCall J

(d)

that an amount of R6 688,57, being compensation payable to the plaintiff under the provisions of the Compensation for A Occupational Injuries and Diseases Act 130 of 1993 fell to be deducted from the amount of damages awarded by this Court.'

Howard JP was therefore called upon to assess the amount to be awarded for past and future loss of income or earning capacity and general damages for shock, pain and suffering, disability and loss of B amenities of life. After hearing evidence, Howard JP assessed the quantum of the plaintiff's damages, other than for future medical, hospital and related expenses, as follows:

'Past medical and hospital expenses	R1 233
Future loss of income	R7 781 C
General damages	R70 000
	R79 014'

On the basis that the plaintiff was entitled to 80% of that amount, viz R63 211,20 less an amount of R6 688,57 payable under the provisions of Act 130 of 1993, he granted judgment against the D defendant for payment of:

'(a)

R56 522,63;

(b)

interest thereon at the rate of 15,5% per annum from the date following the lapse of 14 days from the date of this judgment;

(c)

costs of suit, including the qualifying fees of the witnesses Usdin and Koch'. E

After that judgment had been delivered, it was drawn to the attention of Howard JP that because the defendant had made an offer, or offers, of settlement in terms of Rule 34 of the Uniform Rules of Court the issue of costs had to be reconsidered in terms of Rule 34(12) in the light of the offers of settlement. As Howard JP was no longer available to hear the matter, it was set down for argument before me. F

The trial before Howard JP commenced on 12 May 1999 and continued on 13, 14 and 28 May 1999. Judgment was handed down on 28 June 1999.

Before the trial commenced the defendant had made three offers of settlement to the plaintiff. G

The first, purporting to be in terms of Rule 34(1) and Rule 34(5), was dated 2 February 1999 and, in terms of it, the defendant offered to pay the plaintiff direct the sum of R46 027,09 and made the further tenders referred to hereinafter. In view of the fact that Mr Rowan, who appeared for the defendant in argument before me, stated that the defendant did not intend to rely upon this offer, it is H not necessary to consider it any further.

The second offer was headed 'Notice of offer of settlement in terms of Rule 34(3)'. It is in the following terms:

'Kindly take notice that without prejudice and by way of an offer in full and final settlement of the plaintiff's claim the I defendant hereby offers:

1.

Payment direct to the plaintiff of the sum of R58 027,09.

2.

In the event of this offer of settlement being accepted by the plaintiff, the defendant undertakes to supply the plaintiff with a certificate indemnifying the plaintiff against payment of all past J

McCall J

provincial hospital expenses in the sum of R986,40 in relation to the A injuries he sustained as a result of the accident which forms a subject matter of this action.

3.

To furnish the plaintiff with an undertaking in terms of art 43(1) of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 to compensate the plaintiff for 80% of: B

3.1

the costs of the plaintiff's future accommodation in a hospital or nursing home; and

3.2

the costs of treatment to the plaintiff; and

3.3

the costs of rendering a service to the plaintiff and the supplying of goods to him.

4.

Payment to the plaintiff of the costs of accommodation, treatment, the rendering of a service and the supplying of goods C referred to in para 3 above shall only be made on the following conditions:

4.1

that the accommodation, treatment, services and supply of goods are incurred as a direct consequence of the injuries the plaintiff D sustained in the collision.

4.2

that such costs have been actually, necessarily and reasonably incurred.

5.

In the event of the offer of settlement being accepted, the defendant undertakes to pay the plaintiff's legal costs as between E party and party to date of service of this notice including any costs attendant upon obtaining payment of the amount referred to in para 1.

Kindly take notice further that the defendant has been authorised in writing to make this offer of settlement.'

The offer is dated 8 April 1999 but it is stamped with the Registrar's stamp and with a stamp acknowledging receipt by the F plaintiff's attorney on 12 April 1999.

The third offer, dated 7 May 1999, was apparently sent by telefax on 10 May 1999 and bears the plaintiff's attorney's stamp indicating that it was received on that date, two days before the date of commencement of the trial, at 12:37. It is in identical terms G to the second offer reproduced above, save that the amount offered to the plaintiff in terms of para 1 was increased from R58 027,09 to R70 027,09.

It will be observed that in both the second and third offers made by the defendant the amount in para 1 exceeded 80% of the amount awarded by Howard JP for future loss of income and general damages (80% of H R77 781 = R62 224,80 less the R6 688,57 payable under the provisions of Act 130 of 1993), ie R55 536,23.

It will also be noted that:

(a)

the amount offered in para 2 of the second and third offers in respect of past provincial hospital expenses, ie R986,40, is 80% of the amount awarded by Howard JP, before reducing I that amount by 20%, ie R1 233;

(b)

neither of the offers contain a tender to pay the qualifying fees of any witnesses as part of the costs of suit.

Mr Rowan submitted that the defendant was entitled to rely upon the second offer notwithstanding the fact that an increased amount was J

McCall J

offered in the third offer, and that the Court should substitute for the order of costs contained in para (c) of the judgment A of Howard JP the following order:

'(c) (i)

The defendant is ordered to pay the plaintiff's costs of suit up to and including 12 April 1999.

(c) (ii)

The defendant is awarded...