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[2011] ZAGPJHC 192
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Modan v Road Accident Fund (14435/2009) [2011] ZAGPJHC 192 (7 December 2011)
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REPORTABLE
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO
:
14435/2009
DATE:07/12/2011
In the matter between:
MODAN
BILKES OBO N
.................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
.............................................................................
Defendant
J U D G M E N T
MALULEKE, J
:
[1] The Plaintiff, BILKES MODAN,
adult female, brings this claim for personal injury damages against
the ROAD ACCIDENT FUND (Defendant)
in her personal capacity and in
her capacity as a mother and natural guardian of her minor daughter N
M (N) born on the 27 September
1998 who sustained bodily injuries in
a motor vehicle collision which occurred on the 25 April 2003 at
18h45 at the intersection
of Main Reef Road and Park Drive in City
Deep, Johannesburg.
[2] Both the issues of liability
and quantum are in dispute and are therefore both to be determined in
this trial.
COMMON CAUSE FACTS ON LIABILITY
[3] The following are the
material facts which are undisputed and are therefore common cause:
[3.1] The minor child was a rear
seat passenger in a Volkswagen Golf bearing Registration Number : BTZ
715 EC (“Golf”),
and the Plaintiff was a front seat
passenger in this vehicle which was being driven by Mr H KHAN
(“Khan”);
[3.2] The Golf was travelling
from North to South on Park Drive and collided with a Minibus taxi
with Registration Number: WHM 404
GP
(“Minibus”)
driven by Mr S KUBHEKA (“Kubheka”) which was travelling
from West to East along Main Reef Road.
The first impact involved
the Golf and the Minibus. A Toyota Corolla bearing Registration
Number: CNK 693 GP (“Toyota”)
driven by Mr T H GODONGWANE
(“Godongwane”) travelling from East to West on Main Reef
Road, was involved in the second
impact of the same collision. The
collision therefore involved a first and second impact.
[3.3] The collision occurred in
the traffic lights controlled intersection of Main Reef Road and Park
Drive. The tarmac surfaced
roads were dry, the intersection was
reasonably well lit with street lights, and all three vehicles had
their lights on and the
sun had already set and it was getting dark.
Main Reef Road has two lanes of travel in both directions. Park
Drive also has
tow lanes of travel in either direction although the
inside lane was marked for right turn vehicles only.
[3.4] The second impact which
involved the Toyota did not play any role in the primary collision
between the Golf and the Minibus.
The point of impact of the
primary collision is in the North - Eastern portion of the
intersection and the second impact is in
the South - Eastern portion
of the intersection.
THE DISPUTE ON THE ISSUE OF LIABILITY
[4] The Plaintiff contends that the traffic lights had turned green
for the Golf when they moved from a stationery position into
the
intersection and the Minibus came from their right side against a red
robot and collided into the Golf on its right front side.
Defendant,
on the other hand contends that the Minibus entered the intersection
with the traffic lights green when the Golf entered
the intersection
from the left side against the red traffic lights and collided into
the minibus.
[5] It is contended on behalf of
the Plaintiff that as a result of the first impact the Golf veered
and collided with the Toyota,
and the Defendant contends that it is
the Minibus which veered and collided with the Toyota. Nothing
material really turns on
this dispute.
[6] It is trite that in order to
succeed, the Plaintiff has to prove on a balance of probabilities
that the Minibus driver was negligent
and that such negligence caused
the collision and the consequent injuries. The test for negligence
has been succinctly stated
as follows in
Kruger
v Coetzee
1966 (2) SA 428
at 430 E – G:
“
For
the purposes of liability
culpa
arises if-
a deligens paterfamilias in
the position of the defendant-
would foresee the reasonable possibility of his conduct
injury another in his person
or property and causing him patrimonial loss; and
would take reasonable steps to guard against such
occurrence; and
The Defendant failed to take such steps”.
In other words the Plaintiff has
to establish on a balance of probabilities that Kubheka failed to
take reasonable steps to prevent
the collision when he could and
should have done so. However, as the minor child was a passenger, her
claim will suceed in full
if the proverbial 1% contributory
negligence is established against Kubheka.
[7] The versions of the parties
are opposed and irreconcilable and the dispute has therefore to be
determined by making findings
on the credibility as well as
reliability of the various factual witnesses together with the
probabilities. The principle is pertinently
stated as follows in
SFW
Groups Ltd & Another v Markel et Cie & Others
2003
(1) SA II (SCA) at 14 I-J.
“
The
technique generally employed by the Courts in resolving factual
disputes of this nature may conveniently be summarised as follows:
To come to a conclusion on
the disputed issues a Court must make findings on;
the credibility of the various factual witnesses;
their reliability; and
the probabilities”.
THE EVIDENCE
[8] Khan and the Plaintiff
testified for the Plaintiff. Kubheka and Godongwane testified for
the Defendant. Briefly Khan and the
Plaintiff testified that when
they reached the intersection the traffic lights were red for them
and they then stopped the Golf
at the stop line. They noticed the
Toyota travelling slowly from East to West on Main Reef Road come to
a stand still on the stop
line on the East – Southern side of
the intersection, and at that moment the robot turned green for them
and Khan moved the
Golf into the intersection they suddenly noticed
the Minibus approach from West to East and crash into the right front
side of
the Golf, inside the intersection, causing the Golf to spin
once or twice and crash onto the Toyota. The first impact was very
hard which gave Khan the impression that the Minibus was travelling
fast through the intersection. The first impact was near the
point at
which the Golf entered the intersection and the second impact was at
the point where the Toyota had stopped. As a result
of the first
impact the minor child was flung from the rear seat and hit the
windscreen with her head and face thereby breaking
her nose and
injuring her head. The Plaintiff and Khan also sustained bodily
injuries which were more serious and necessitated
prolonged
hospitalisation in the case of the Plaintiff. Khan testifies further
that after the collision Kubheka came to the Golf
and apologised for
causing the accident and he was smelling strongly of alcohol and
appeared to have been intoxicated. Immediately
Khan accused Kubheka
of having caused the collision because he was intoxicated, and when
the police arrived he pointed out to them
that Kubheka was under the
influence of alcohol.
[9] The version of Kubheka and
Godogwane is that the traffic lights were green for traffic on Main
Reef Road and red for traffic
on Park Drive, they both drove into the
intersection, Kubheka first, and the Golf came speeding into the
intersection against the
red traffic light, crashed into the Minibus,
causing it to veer to its right and collide with the Toyota which was
on the point
of entering the intersection. Kubheka testifies that he
was prevented by the Plaintiff from speaking to Khan, but he noticed
that
Khan who was coming out of the Golf was staggering like someone
under the influence of alcohol. Kubheka further testifies that
he
then went to speak to Godongwane about the accident and the damages
to their vehicles. Godongwane was then standing outside
the Toyota
and by the time that the Police arrived Khan had disappeared from
the scene.
[10] All the four witnesses were
cross examined extensively and their credibility and reliability was
intensively tested. In argument
it is strongly contended on behalf
of the Defendant that Godogwane is an independent witness in regard
to the primary collision
and his evidence should be regarded as
reliable because, it is contended, he was not involved in the primary
collision, he did
not know both Khan and Kubheka and did not speak to
neither of them on the accident scene.
[11]
ANALYSIS OF THE
EVIDENCE
(11.1)
Did the Golf move
from a stationary position?
Khan and Plaintiff are adamant
that they stopped at the red robot and drove into the intersection
fro m a stationary position where
the robot turned green for them and
did not see the minibus until it was upon them. Kubheka supported by
Gondongwane is adamant
that the Golf come speeding into the
intersection and he only saw it when it was upon him. These factual
disputes require to be
resolved in the light of the principle in the
SFW Group (Supra)
case.
From the analysis of the evidence of the four factual witnesses as
set out bellow, I come to the conclusion that the evidence
of Khan
and plaintiff is the more credible and reliable and is not
inconsistent with the probabilities.
(11.2)
Which vehicle
collided with the Toyota?
Both the Plaintiff and Khan are
adamant that the Golf was involved in the second impact with the
Toyota and that they did not
see when the Minibus came to a
standstill after the collision. Kubheka and Godongwane are adamant
that only the Minibus collided
into the Toyota. The version that it
is the minibus that collided with this Toyota is the more probable.
It seems the Plaintiff
and Khan are
bona
fid
e mistaken on this
point, particularly since their vehicle spun around as a result of
the minibus. There is clearly no reason for
them to lie about this
since nothing really turns on the issue in point.
(11.3)
Which of
the drivers was probably intoxicated?
The evidence of Khan that
Kubheka was visibly intoxicated when he came to him whilst he was
getting out of the Golf and apologised
to him for the accident was
never challenged nor was the version of Kubheka that he is a
teetotaller and that it was Khan who was
visibly drunk put neither to
Khan nor to the Plaintiff. Neither was Khan’s evidence
challenged that when the police came
to the scene he pointed out to
them, that Khubeka was intoxicated, in the presence of Khubeka. The
inference is inescapable that
this is a late fabrication on the part
of Kubheka.
(11.4)
Did
Kubheka speak to Godongwane at the scene?
(a) The Plaintiff and Khan agree
with Kubheka that after speaking to Khan, Kubheka immediately went to
speak to Godongwane. Godongwane
denies that he spoke to Kubheka.
The crucial question then is why does Godongwane deny this? could it
be he does not want to
testify on the state of intoxication of
Kubheka? or could it be he is protecting a liaison between the two of
them?
Whatever the reason, this is a
material contradiction in the evidence of Kubheka and Godongwane
which puts into question whether
he is truly an independent witness.
Kubheka is clearly untruthful
that he was accosted by the Plaintiff who already was outside the
Golf and had no visible injuries,
and that the Plaintiff prevented
him from speaking to Khan or getting near Khan. The objective facts
are that the Plaintiff
was so seriously injured that she had to be
taken out of the Golf into the ambulance and remained in hospital
for a long time.
Godongwane heard Khan and Kubheka arguing loudly
as to who of them had gone through a red robot; Kubheka denies that
he spoke
to Khan. Kubheka’s further evidence that he did not
notice that any of the occupants of the Golf were injured is belied
by the objective facts. Khubeka’s evidence is improbable and
falls to be rejected as false. Plaintiff and the child were
clearly
seriously injured and were removed from the accident scene by
ambulance in the presence of Khubeka. Further Khubeka
is untruthful
that Khan left the scene before the ambulance and the police came.
It is further strange that when the two drivers
were arguing about
the cause of the accident, Godongwane who was involved in the same
accident stood apart indifferently.
(11.6) Kubheka’s testimony
that he could not have seen the Golf earlier because it was partly
obscured by a large tree near
the intersection is also more like a
recent fabrication and is unconvincing. Further, this version was
never put to the Plaintiff
nor to Khan. This evidence of the
existence of the tree, which obscured his vision, did not arise until
Kubheka testified.
Godongwane also says nothing about a large
tree which could have obscured Kubheka’s version, no one but
Kubheka’s
speaks about this tree. At any event if his vision
was so obscured, then there would have been greater reason for him to
approach
the intersection with even greater caution. On his own
evidence and also on the evidence of Godongwane Kubheka did not
reduce speed
as he approached and drove into the intersection.
(11.7) In my view the previous
consistent statement of Godongwane falls to be disregarded. In
S
v Scott Crossley,
2008 (1) SACR 223
(SCA) at
Paragraph 17
the principle was restated that a prior
consistent statement
to the Police can have no probative value. See also
Holthausen
v Roodt
1997 (4) SA 766
(W) at 774 A.
A
previous consistent statement may not be used as corroboration of the
witnesse’s evidence, but may be used only to show
that his
story is not a recent fabrication, that is if his evidence is so
challenged in cross examination.
[12] Khan concedes that when the
traffic lights turned green for him he entered the intersection and
does not recall looking to
his right to see if there were vehicles
coming, and that otherwise he would have seen the Minibus approach
and enter the intersection
in other words, he concedes he should
looked to the right before he entered the intersection. This is a
hallmark of a candid and
truthful witness. Kubheka’s version
is that when he was about 100 meters away, he for the first time saw
the traffic lights
being green for him, he had not see when they
turned green; he proceeded at the same speed, there was a large tree
on his left
so he could not see if there were approaching vehicles
from his left, and because the traffic lights were green for him, he
considered
that he was entitled to go right through the intersection
at the same speed “in absolute confidence”, in spite of
the fact that his view was impaired by the large tree. A reasonable
driver in the position of Kubheka would in these circumstances
have
exercised greater caution and as he neared and entered the
intersection he would have reduced speed and adjusted his driving
to
enable him to take appropriate avoiding action as he should have
done.
[13] The following dicta from the
case of
South British
Insurance Company Ltd v
Barrable
1952 (3) SA
239
(TPD) at 243 B
are
apposite for collisions in robot controlled intersections;
“……
I
regard it as dangerous for Courts of Law to tell drivers that there
are certain circumstances in which they are under no duty
to look in
certain direct cons. A driver is always under a duty to take due
care, according to the circumstances, and I should
hesitate to lay
down that there are any circumstances in which he is entitled to go
right ahead, in absolute confidence, looking
neither to the right nor
to the left. I would even go further and say that no driver entering
an intersection on the green light
is entitled to ignore the
possibility that there may be other traffic moving across his course
which has not yet cleared the intersection.”
[14] The issue of the colour of
traffic lights is an important factor, but it need not in the
circumstances of this case be decisive.
Kubheka saw the robot being
green for him when he was 100 metres away. Khan agrees that the
robot was red for him when he reached
the intersection. There is no
evidence of at what stage this state of robots changed, as it must
have. Godongwane’s testimony
is that the robot was green for
him as he approached the intersection. But the “independent
witness” credibility is
considerably weakened by his
untruthfulness about his discussions with Kubheka. Khan and the
Plaintiff are consistent and unwavering
that they stopped for the red
robot and moved into the intersection as soon as the robot turned
green. No expert evidence was
led as to the mathematical sequences
of changes of the particular traffic lights. The issue of whether
Kubheka was partly to blame
for the collision, it seems to me, can be
determined without having to rule on which robot was green or red;
and at what stage.
Accordingly I do not rule on the issue of the
changes of the robots.
[15] As to which of the two drivers was probably under the influence
of alcohol
or at least smelt strongly of
alcohol, I consider that the probabilities are on the side of Khan.
He raised the issue of Kubheka
being intoxicated immediately first
with Kubheka himself and also with the Police when they arrived.
Kubheka, on his own evidence
did not raise it with Godongwane and the
police and not even with his Counsel. It comes across as a recent
fabrication, otherwise
Khan and Plaintiff would definitely have been
challenged on the issue in cross examination.
[16] It is, in my view, evident
that the conduct of both Kubheka and Khan deviated
from the norm, of a reasonable
man. Kubheka did not see the Golf earlier because he did not keep a
proper lookout as a reasonable
man should have done. His story
about the large tree obscuring his vision is rejected as a late
fabrication. Khan on his own
admission did not look to his right as
a reasonable man would have done before entering the intersection.
They both did not keep
a proper lookout at a very critical moment.
The duties of a driver entering an intersection are to keep proper
lookout. See
Netherlands
Insurance CO of South
Africa Ltd v Brummer 1978 (4) (AD)
at
head note
.
Evidently
the Golf and the minibus did not enter the intersection on the same
split second. The evidence of the speed of either
vehicle is at best
contradictory and unsatisfactory to found a basis for reliable
inferences. Khan and Plaintiff did not observe
the minibus until it
was upon them; Khubeka similarly did not observe the Golf until it
was upon him. Godongwane did not see the
Golf until the collision.
Khubeka did not reduce speed until the collision. It is not necessary
for this case to determine the
degree in which the two drivers were
respectively at fault or contributed to the collision. Both drivers
are substantially to blame
for the collision.
[17] Accordingly I determine that
the Defendant is liable for the full proven damages suffered by the
Plaintiff in her aforesaid
capacities.
QUANTUM OF DAMAGES
[18] The following medico-legal
reports and joint minutes of medical and psychological experts have
been handed into evidence by
consent of the parties:
[18.1]
Index of
medico-legal reports by plaintiff’s experts (Exhibit “C
”)
Dr Ormond Brown –
Neuropsychologist.
Dr G Marus – Neurosurgeon.
Ms Linda de Rooster –
Educational Psychologist.
Mr Ben Moodie – Industrial Psychologist.
[18.2]
Index of
medico-legal reports by defendant’s experts (Exhibit “D
”)
Mr McGill Scott – Educational Psychologist.
Mr Brian Mallinson – Neuropsychologist.
Dr Yusuf Osman – Neurosurgeon.
Ms Anne Jamotte – Industrial Psychologist.
[18.3]
Index of joint
minutes of experts (Exhibit “E
”)
Educational Psychologist –
Ms De Rooster and Mr McGill Scott.
Neurosurgeons – Dr Marus and Dr Osman.
Industrial Psychologists – Mr B Moodie and Ms A Jamotte.
[19] In their joint minutes the
neurosurgeons confirm that the minor child (N) who was 4½
years old at the time sustained
the following injuries in the
collision:
[19.1] A head injury involving a probable mild concussive brain
injury;
[19.2] A fractured nasal bone; and
[19.3] A soft tissue injury to the forehead with scalp haematoma.
The neurosurgeons further minute
the
sequelae
and after effects of the injuries as follows:
“
Cognitive
dysfunction – the brain injury as noted would usually not be
expected to cause long-term cognitive dysfunction.
The mother has
some concern with the minor child being short-tempered and has
intermittent dazed look: no definite evidence of
post-traumatic
epilepsy, no physical neurological deficits are evident; the child
suffers from headaches as a result of the injuries.
”
[20] Dr Marus was called to
testify on behalf of the plaintiff. He confirmed the contents of his
medico-legal report wherein he
expressed his opinion as follows: in
paragraph 2 thereof:
“
It
is clear that she sustained trauma to the head. She reports a period
of post-traumatic amnesia. One would thus conclude that
she
sustained a concussive brain injury in the accident in question on
the above information.
”
The information available would
tend to indicate a more significant concussion, and that normality
was not restored within 24 hours.
He further testified that in his
opinion about 80% of children who sustained this magnitude and type
of brain injury do not suffer
long term neuropsychological fallout,
but that about 20% of them do. This could be caused by a lower
threshold for the injury
which could be due to a pre-existing or
genetics problem. In the 20% of the cases the child may evidence
learning dysfunction
and a lack of coping skills and psychological
problems.
[21] The educational
psychologists are agreed in their joint minute that as a result of
the brain injury the minor child has “
significant
difficulties pertaining to attention and concentration
”
and that she now only “
retains
the ability to matriculate and obtain or complete a 1 to 2 year
tertiary diploma course at a college, but in a less complex
area of
study than prior to the accident
”
whereas prior to the collision she had the capacity to matriculate
and obtain a three year tertiary diploma or possibly
a degree.
[22] There is regrettably no
joint minute between the neuropsychologists Dr Brown and Mr Mallinson
both of whom were called to
testify. The opinion of Dr Brown is in
all material respects in agreement and consonant with the opinions of
the neurosurgeons
and the educational psychologists. Mr Mallinson on
the other hand maintained that on the basis of the battery of
neuropsychological
tests that he performed it is his opinion that it
is improbable that the mild concussive brain injury sustained by the
minor child
could result in the neuropsychological deficits
presented; rather he ascribes these deficits he ascribes to a
pre-existing language
disorder which gave rise to mild concentration
difficulties. I do not find that these opinions of Mr Mallinson are
persuasive.
It is the evidence of the plaintiff as mother of the
child as well as the opinions of the rest of the medico-legal experts
that
since the collision the child has signs of neuropsychological
fallouts, consisting in mild cognitive dysfunction, attention and
concentration difficulties and behavioural and emotional problems.
Her most significant difficulties pertain to the mild concentration
and attention disorder. On the undisputed evidence of the plaintiff
the minor child had a normal birth and development history
with no
significant illnesses or injuries prior to the collision. The
probabilities favour the view that the minor child is in
the 20%
category as defined by Dr Marus.
[23] The industrial
psychologists are agreed that but for the accident the child could
have matriculated and obtained a three year
tertiary diploma or
degree. In the opinion of Ms Jamotte post-accident the minor child
will still matriculate, but may not be able
to do additional studies.
However, Mr Moodie contends, persuasively in my view, that “
the
accident has an influence on her cognitive state and in terms of any
potential, one can accept that she would not be able to
reach the
same income levels than anticipated in the but for scenario
”.
This opinion is consistent with the opinions of the neurosurgeons in
particular Dr Marus and also the educational psychologists.
Dr Brown
states in his report and in his testimony that it is his overall
impression that the minor child did suffer a significant
concussive
head injury and appears to have been left with permanent residual
problems. On the basis of this medico-legal evidence
and on his
clinical examination of the minor child, the opinion of Mr Moodie is
that post-morbid this minor child will still matriculate
but will now
only at best be able to obtain a one to two years tertiary diploma
and Ms Jamotte agrees with this opinion. Accordingly
the reduced
earning capacity suffered by this child should be on the basis that
but for the collision the child would have attained
a three year
tertiary education diploma which would have enabled her to enter the
labour market on the Patterson level A3 and after
obtaining the three
year diploma she would have progressed to a B3 level and reach a
ceiling at Patterson C3/C4 and she would retire
at age 65.
Post-morbid she will at best obtain a one to two year tertiary
diploma which will enable her to enter the labour market
at a
Patterson A3 level and progress at intervals of five to six years up
to a ceiling of C1.
[24] I have been furnished an
actuarial report by the consulting actuary Mr Johan Sauer who has
calculated the claim for loss of
earning capacity or reduced earning
capacity on the basis stated in the preceding paragraph and also on
the basis that the life
expectancy of the child has not been affected
by the injuries. Mr Sauer has applied contingency deductions of 10%
on the
but for
scenario and 20% on the having regard scenario and I am in agreement
with this approach. On this basis the actuary has calculated
the
claim for reduced earning capacity at R1 376 952,00 and I consider
this amount to be eminently reasonable and fair in the circumstances.
[25] Mr Shepstone for the
defendant contends that an amount of R150 000,00 should be awarded in
respect of the heading for general
damages for pain and suffering,
loss of amenities, disablement, shock and discomfort. Plaintiff has
claimed in her particulars
of claim the sum of R450 000,00 under this
heading. Plaintiff has referred me to a matter of
Makupula
v The Road Accident Fund
(Eastern
Cape High Court, Mthata, Case No. 16305/2007 which is reported in
Quantum of Damages
by
Corbett and Honey Volume VI B4-48 where Nhlangulela J awarded an
amount of R300 000,00 as general damages for a 5 year old boy
who
suffered a mild to moderate diffuse axonal concussive brain injury
which resulted in neurocognitive deficits associated with
attention
deficit hyperactivity disorder, memory dysfunction and behavioural
problems. I have also had regard to the matter of
Donough
v The Road Accident Fund
(South
Gauteng High Court, Case No. 8962/06) which is also reported in
Volume VI of
Quantum of
Damages
. In this
matter Mbha J awarded R325 000,00 for a 30 year old plaintiff who
sustained a head injury associated with a brain injury
which rendered
the plaintiff 10% permanent employment disability and orthopaedic
injuries. The injuries and
sequelae
in the present case are similar to the
Makupula
(Supra) case
.
The
collision in this matter occurred in 2003 which is over 8 years ago
and the child to date still suffers from neurocognitive
deficits
associated with attention disorder, memory dysfunction, uncooperative
and aggressive behaviour and headaches. The child
still has to
undergo psychological therapy and management of posttraumatic
headiches. In addition the child also had a temporary
facial palsy
which required cortisone treatment before the condition gradually
remitted. On a consideration of the extent of the
injuries and their
sequaele
and
taking into account the awards in recent comparable cases, I consider
that a fair and just award under this heading should be
R350 000,00.
The total amount of the word is therefore:
Reduced Earning Capacity - R137 652,00
General Damages - R350 000,00
R1 726 952,00
[26] I am informed that a section 17(4) undertaking will be tendered
by the defendant in settlement of the claim for future medical
costs.
I will accordingly so order.
In the result I give judgment for the plaintiff in her personal
capacity and also in her capacity as mother and natural guardian
of
her minor child N M as follows:
1. (a) Payment of the sum of R1
726 952,00;
(b) Interest on the said amount of R1726952,00 at the rate of 15.5%
per annum calculated 14 days of the date of this judgment to
date of
payment.
The defendant shall provide the
plaintiff with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
for the costs of the future
accommodation of N M in a hospital or nursing home or treatment or
rendering of a service or supplying
of goods to her arising out of
the injuries sustained in the motor vehicle accident of 25 April
2003, after such costs have
been incurred and upon proof thereof
(undertaking).
In terms of the aforesaid undertaking the defendant shall pay:
The reasonable costs of the
creation of the Trust (as referred to below) and the appointment of
the trustees. Such costs being
limited to and determined by section
84(1)(b) of the
Administration of Estates Act 66 of 1965
as amended
according to the prescribed tariff;
The reasonable costs of the furnishing of security by the
trustee/s;
The costs of the trustee/s in administering the capital amount as
determined by
Section 84(1)(b)
of the
Administration of Estates
Act, 66 of 1965
, as amended, according to the prescribed tariff
applicable to curators, as reflected in Government Gazette Notice
R1602 of
1 July 1991, specifically paragraphs 3(a) and 3(b) of the
schedule thereto;
The cost of administering the undertaking.
The defendant shall pay the taxed or agreed cost of the action to
14 October 2011, including:
The reasonable preparation expenses and attendance fees (if any) of
the plaintiff’s experts, Mr D S Ormond-Brown, Dr
G Marus, Ms
L de Rooster, Mr B Moodie, Mr J Sauer;
The costs of suit which will include
The cost of the preparation of heads of argument;
Any cost attendant upon obtaining payment of the capital amount;
Any cost upon obtaining the undertaking and of obtaining payment
thereunder;
If costs are not agreed, the plaintiff’s attorney of record
shall serve notice of taxation on the defendant’s attorney
of
record and shall allow the defendant 7 court days to make payment.
The plaintiff shall take the
requisite steps with a view to establish a trust
inter
vivos
in accordance
with the Trust Proeprty Control Act, 57 of 1988,
inter
alia
to administer
and/or manage the financial affairs of N M and such trust shall be
formed within 4 months of the date of this
order (“
the
Trust
”).
The Trust instrument shall provide for the following:
The separation of the property of the trustee/s from the trust
property;
Ownership of the trust property vests in the trustee/s in their
capacity as trustee/s;
The trustee/s shall provide security to the satisfaction of the
Master in terms of section 6(2)(a) of the Trust Property Control
Act, 57 of 1988;
Procedures to resolve any dispute shall be subject to the review of
any decision made in accordance therewith by the above
Honourable
Court;
Amendment of the Trust instrument shall be subject to the leave of
the above Honourable Court;
The trustee/s is authorised to recover the remuneration of and cost
incurred by the trustee/s in administering the undertaking
in
accordance with the undertaking;
N M shall be the sole income and capital beneficiary;
The Trust property is excluded from any community of property in
the event of the marriage of N M;
The Trust shall terminate on
the 25
th
birthday of N M;
The Trust property and administration thereof is subject to annual
reporting by an accountant.
8. The plaintiff’s
attorney of record shall invest the capital amount, less attorney and
client fees and disbursements, in
terms of section 78(2)(A) of the
Attorneys Act, 53 of 1979, in an interest bearing trust account (“
the
s 78(2)(A) account
”)
for the benefit of N M, the interest thereon accruing for the benefit
of N M, which investment shall be utilised as may
be directed by the
trustee/s of the Trust, when created.
9. The plaintiff’s attorney of record shall render an attorney
and client statement of account to the trustee/s in terms
of the fee
contract entered into with the plaintiff.
10. The cost shall be paid into the trust account of the plaintiff’s
attorney of record for the benefit of N M. After deduction
of the
legal cost consultant’s fee for drawing the bill and attending
to its settlement and/or taxation, the balance shall
be paid into the
Trust unless same has not yet been created, in which event such
balance shall be invested in the s 78(2)(A) account
for the benefit
of N M, the interest thereon accruing for the benefit of N M, which
investment shall be utilised as may be directed
by the trustee/s of
the Trust, when created.
_____________________________
G S S MALULEKE
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Counsel
for the Plaintiff :
Advocate
Singh
Instructed
by :
Win Krynauw
Attorneys
Tel : (011) 333 7782
Counsel
for the Defendant:
Advocate
Sheptone
Instructed
by :
Eversheds
Attorneys
Tel : (011) 286 6900