Myhill NO v Road Accident Fund (09/30430) [2010] ZAGPJHC 174 (4 August 2010)

Myhill NO v Road Accident Fund (09/30430) [2010] ZAGPJHC 174 (4 August 2010)

The court found that, although the particulars of claim did not specify the exact amounts that should have been paid to avoid prejudice, the averments made by the plaintiff were sufficient to inform the nature of the prejudice and that it arose at the time of the compromise. The plaintiff alleged that the settlements were inadequate given the severity of the minors' injuries and their legal incapacity, and that the compromise should have reflected substantially higher compensation. The court accepted that an action to avoid a compromise on behalf of a minor is legally competent if the compromise was prejudicial from its inception. The opposition to the amendment was reasonable, but the...

Citation
[2010] ZAGPJHC 174
Parties
Plaintiff: ELE Myhill N.O (obo S Minors); Defendant: Road Accident Fund
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 August 2010
Case Number
09/30430
Procedural Posture
Civil Trial / Application for Amendment of Particulars of Claim and Postponement
Outcome
The plaintiff's amendment of particulars of claim was allowed; the defendant's application for separation of issues and the action itself were postponed sine die; costs were reserved.
Judges
P.A. Meyer
Legal Topics
Compromise of Claim, Curator Ad Litem, Minor Prejudice, Amendment of Particulars, Restitutio in Integrum
Civil Procedure Delict Family and Children Compromise of Claim Curator Ad Litem Minor Prejudice Amendment of Particulars Restitutio in Integrum

Case Brief

Summary, issues, holding and outcome

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Parties

ELE Myhill N.O (obo S Minors)

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Application for Amendment of Particulars of Claim and Postponement

Legal Issues

  1. 1 Whether the plaintiff's amendment of particulars of claim should be allowed.
  2. 2 Whether the compromise entered into on behalf of the minors can be avoided due to prejudice.
  3. 3 Whether the particulars of claim sufficiently plead the prejudice suffered by the minors at the time of compromise.

Ratio Decidendi

The court found that, although the particulars of claim did not specify the exact amounts that should have been paid to avoid prejudice, the averments made by the plaintiff were sufficient to inform the nature of the prejudice and that it arose at the time of the compromise. The plaintiff alleged that the settlements were inadequate given the severity of the minors' injuries and their legal incapacity, and that the compromise should have reflected substantially higher compensation. The court accepted that an action to avoid a compromise on behalf of a minor is legally competent if the compromise was prejudicial from its inception. The opposition to the amendment was reasonable, but the...

Court Disposition

The plaintiff's amendment of particulars of claim was allowed; the defendant's application for separation of issues and the action itself were postponed sine die; costs were reserved.

Orders

  • The plaintiff’s amendment of particulars of claim dated 3 August 2010 is allowed.
  • The defendant’s application for a separation of issues is postponed sine die.