M S v Road Accident Fund (10133/18) [2019] ZAGPJHC 84 (25 March 2019)

Actions against the RAF are routinely treated by the parties as being sui generis and thus not subject to the usual rules of evidence and procedure. Courts are often told that expert reports relating to the claim are “admitted” or “not
in dispute” or that “the Merits” or “Liability” has been settled/conceded. Rule 33 prescribes the correct procedure for recording of admissions or a statement of issues. Compliance with these rules should be insisted on by courts, unless compelling reasons exist for departing therefrom in a given case. An admission as to “the Merits” or “Liability” should not be construed as an admission that the negligence of the driver caused the loss. Such an admission can mean no more than an admission that the insured driver caused the accident. The former construction will lead to a failure to prove causation of loss. The inquiry in RAF actions is best undertaken in Four Stages: First: Did negligence of the insured driver cause the accident? (i.e. the Merits Inquiry) Second: Did the plaintiff sustain the alleged injuries in the accident?; Third: How have these proven injuries affected the plaintiff? (both the First and Second Stages are Causation Inquiries) Fourth: How should the plaintiff be remunerated for the effects of such injuries? ( i.e. the Quantum Determination). It is important to discern where the inquiry as to Causation ends and the evaluation of Quantum begins. The evaluation of the quantum does not involve proof on a balance of probabilities, as is required in the other three stages, but is a matter of estimation which is a Judicial task in which the judge, on the basis of the case as proved, determines how
the plaintiff should be compensated for his loss. It involves the application of experience, intuition, and general right-thinking and is a matter where the court has a wide discretion. Actuarial Calculations are merely an aid to this evaluation process and should not be
regarded as being prescriptive of or limiting the court’s discretion. An insufficiency of evidence of causation of loss cannot be remedied by theapplication of contingencies to reduce quantum. If the case is not proved there can be
no damages and thus the Quantum Determination stage is not reached at all.