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[2013] ZAGPJHC 108
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I.M v Road Accident Fund (11/23686) [2013] ZAGPJHC 108 (10 May 2013)
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REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 11/23686
REPORTABLE:
YES
/NO
OF INTEREST TO OTHER JUDGES: YES
/NO
REVISED
DATE: 2013/05/10
In the matter between:
M[…],
I[…]
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
N.F
KGOMO, J
:
INTRODUCTION
[1] This is
an action or claim for damages for bodily injury arising out of a
motor vehicle accident or
collision that occurred on 22 June 2008
along the N12 East freeway at the Xavier Road on-ramp in Johannesburg
South where the motor
vehicle in which the plaintiff was a passenger,
to wit MVP[...], then and there driven by one I[...] M[...](“
the
insured
driver
”) collided with another motor vehicle
with registration letters and numbers NUR[...] then and there driven
by one Jeniffer
van Niekerk.
[2] The
insured driver died at the scene of the collision.
[3] The
plaintiff ascribed the cause of the collision on the sole negligence
of the insured driver in one
or more of the grounds set out in the
particulars of claim.
[4] The
parties herein have settled the merits in the matter on the basis
that the defendant is liable
for 100% of all proven or agreed upon
damages of the plaintiff.
[5] It was
also agreed between the parties that as a result of the aforesaid
collision the plaintiff suffered
the following injuries:
5.1
a
“
paraplegia
”
as a
result of the confusion of the spinal cord at points T.2 to T.3;
5.2
fracture
of the right “
ala
of sactum
”
extending
into the right L.5 to S.1 facet joint;
5.3
abrasions
of the right arm and right leg;
5.4
injury
of the chest;
5.5
bladder
contusion with “
haematuria
”
;
and
5.6
a
severe head injury.
[6] The
parties are also
ad idem
that as a result of the injuries
sustained as aforesaid, the plaintiff –
6.1
incurred
past medical expenses, which had been settled by the medical
facilities where she was admitted or sought medical attention;
6.2
will in
future require medical treatment;
6.3
has and
will endure future pain and suffering;
6.4
has and
will in future incur or endure a loss of amenities of life; and
6.5
has and
will in future suffer permanent disability.
[7] The
plaintiff’s claim is computed as follows:
7.1
Estimated future medical expenses:
R
500 000,00
7.2
Past loss of earnings:
R
253 017,00
7.3
Future loss of earnings:
R7
154 171,00
7.4
General damages for pain and
suffering and loss of amenities
of life and disability:
R1
500 000,00
TOTAL:
R9
407 188,00
[8] It is so
that the plaintiff has abandoned the claim for past hospital
expenses. In respect of estimated
future medical expenses the
defendant has agreed to issue the plaintiff with an Undertaking in
terms of section 17(4)(a) of the
Road Accident Fund Act 1996 (Act 56
of 1996) as amended (“
the Act
”).
[9] Both
parties agreed that the reports of the following experts be admitted
as such as well as admitting
that the contents thereof are the truth
of what they depict as well as that they should be admitted as
evidence without their authors
being called to testify:
9.1
Plaintiff’s experts
(a)
Dr Sara
(Orthopaedic Surgeon);
(b)
Dr
Kevin Sneider (Radiologist);
(c)
Dr
Solly Hurwitz (Pulmonologist);
(d)
Dr
Kevin Fisher (Urologist);
(e)
Lindela
Grootboom (Clinical Psychologist);
(f)
Dr
David Shevel (Psychologist);
(g)
Nokuthula
September (Occupational Therapist);
(h)
Injury
assessment report compiled by Dr Kevin Rosman (Neurologist);
9.2
Defendant’s experts
(a)
Dr P F
B von Borman (Orthopaedic Surgeon);
(b)
Elzeth
Jacobs (Occupational Therapist);
(c)
P C
Diedericks (Industrial Psychologist);
9.3
Gerald
Jacobson (Actuary).
[10] The following
joint minutes of experts were also admitted as containing the truth
of what they depicted:
10.1
Dr Sara
and Dr Van Borman (Orthopaedic Surgeons);
10.2
Ms N
September and Ms L Jaquire (Occupational Therapists); and
10.3
Ms P
Ngoako and Mr N van Niekerk (Industrial Psychologists).
EVIDENCE LED
[11] The plaintiff
led the evidence of the plaintiff only.
[12] It is common
cause that she is presently 25 years old and was 19 years old when
the accident occurred.
She was a full-time second year B.Com
student at the University of Johannesburg studying towards marketing.
During weekends she
worked part-time as a sales consultant at
Foschini Stores to augment her pocket money and/or to assist with
home expenses at her
parental home in Vosloorus, Ekurhuleni,
Johannesburg. On the date of the accident she was on duty at
one of her other part-time
employments, namely, for Student Wise,
promoting products and doing events for her focus group.
[13] She was doing
well in her studies with the result that she was even awarded a merit
bursary at the beginning
of her second year of study, i.e. in 2008,
which bursary covered all her academic expenses. She would have
completed her
degree in the year 2009 and entered the work
environment during 2010.
[14] Her father is
a driver by profession. Her mother used to be a full-time domestic
worker but was forced to
stop working during 2008, i.e. immediately
after this accident so that she could act or serve as a whole-time
caregiver to and/or
for the plaintiff who needs same.
[15] As a result of
the accident, the plaintiff was hospitalised for five months. After
her discharge she stayed
home to recuperate and plot or chart the way
forward.
[16] As the
accident occurred in June 2008 and she was hospitalised for an
additional five months, she could
not write her university
examinations in 2008. During 2009 she tried to re-register at
University of Johannesburg to proceed with
her interrupted studies
but could not do so as would be made clear hereunder. She
registered with the University of South
Africa, a distant-learning
institution, but could not cope, passing only two of the four courses
she had registered for because
her studies were interrupted by
constant or periodic admission to hospital for various infections
associated with her injuries.
She could also not attend the
compulsory tutorial classes.
[17] According to
the plaintiff, she entered university with high hopes of succeeding
where her parents could
not in life. She dreamt of being in a good,
well-paying job that allowed her to travel around this country and
the rest of the
world, networking with peers within the marketing
sphere and generally doing well for herself and her parents and
siblings.
She had a steady boyfriend who promptly dumped her
immediately after becoming aware of the fact that the
sequelae
of this accident has rendered her paralysed from just below her
arm-pits downwards. That traumatised her to no end.
She
is now wheelchair bound, unable to transfer herself from the
wheelchair to a bed or sofa or chair. She relies on help from
her
mother and siblings. She also has to be turned regularly during
the day or at night when she is asleep so as not to develop
sores.
Her mother has assumed this unenviable task of waking up several
times each night and throughout the day to turn her.
She cannot sit
upright – be it in the wheelchair or on a seat – for more
than two hours at a time. Someone must help
her off the seat or
wheelchair and place her in a lying position, with the concomitant
regular turnings.
[18] It was her
uncontested evidence that on Friday 26 April 2013 she was at this
Court for the whole day, seated
in the wheelchair, eating nothing
solid but only having some drinks, waiting for this matter to be
allocated to a judge for hearing.
Unfortunately no judge was
available for the day and she had to be taken home after 16h00.
That night she could not fall
asleep due to the trauma of sitting in
a wheelchair the whole day. The following morning her condition
deteriorated so much
that she even fainted.
[19] She confirmed
her paralysis from her arm-pits downwards. She stated that she
has lost all feel and
sensation in her body. At times she
experiences a unexpected burning sensation in her body which usually
end up or result
in her developing inexplicable urinary tract
infections that necessitate her being taken to hospital each time
they occur.
[20] She also
experience constant headaches and whenever she stays too long in a
sitting position she experiences
stomach or abdominal pains.
[21] She has
developed a phobia for groups of people and cannot stand being near
or with a group of people.
It is one of the reasons why she
cannot go back to university.
[22] Each day, her
mother would come and take her off the bed, bathe and dress her up
and then carry her to a
sofa from whence she would watch television
(“
TV
”) the whole day. She would be moved
interchangeably from the sofa to the floor throughout the day,
constantly turning her
to avoid the
sequelae
already alluded
to hereinbefore.
[23] She has lost
control of her bowel system and has developed what is called
incontinence, i.e. urine or faeces
coming out spontaneously, she
being unable to control their exit. She is obliged to use a catheter.
[24] Her parental
home is not suited for a wheelchair. It has to be adapted to
accommodate her disability.
The bathroom is too small to let
the wheelchair in. As such, someone has to lift her off the
wheelchair and place her on the toilet
seat and thereafter pick her
up from the toilet seat, back to the wheelchair.
[25] She has
developed allergy for certain foodstuffs like rice since the
accident.
[26] She stated
further that her social life has been destroyed : She had always
cherished or dreamt of being
married one day. However, since
this accident those dreams have dissipated. In addition to her
boyfriend having dumped
her unceremoniously as set out above, she has
lost appetite to be with friends. She is constantly on her own
and/or withdrawn
as she experiences panic attacks whenever people are
around her. Her uncontrollable bowel and bladder movements
contributes
to this loss of confidence and decision to be on her own
and alone all the time. She has not yet received any
counselling
or specialised treatment due to the impecuniosity of her
parents as well as the fact that the defendant did not make her any
offer,
interim or otherwise.
[27] She has lost
her sex desire, let alone drive and cannot stand the sight of the
opposite sex. Experts
have also told her that she will never
enjoy sexual encounters again. As a result she is afraid of dating a
man.
[28] None of her
parents had any medical aid.
[29] Her previous
part-time employment, especially with Student Wise, was
studies-appropriate. As such
she reckons she would have had a
head-start in the employment world, especially the Corporate World
which she craved to be part
of.
[30] According to
her the experts she consulted with, especially the occupational
therapists for both the plaintiff
and the defendant, have told her
that for the rest of her natural life she would require the services
of a full-time caregiver
or helper.
[31] Life in
general had become so intolerable that she even attempted suicide on
more than one occasion by ingesting
an overdose of pills.
[32] She is
positive that if she is sufficiently compensated, she would seek the
best specialists to ameliorate
her plight and discomfort. However, a
work situation is off-bounds or limits for her as stated above.
[33] She cannot use
public transport as same is not wheelchair compatible. She also
struggles to fall asleep
at night.
[34] Her condition
is affecting her family detrimentally and emotionally and the same
spirit is also enveloping
her. She sees herself as a burden for
her family, especially financially.
[35] She was not
cross-examined to any meaningful effect or extend. It was only
put to her that she can
start a home-based business to alleviate her
plight without explaining what type of business that is.
[36] The defendant
closed its case without leading any evidence or calling any
witness(es).
CLOSING ARGUMENT
[37] Both counsel
for the plaintiff and the defendant argued on the merits. However,
they only confined their
arguments on the contingencies to be applied
to the award(s) this Court may grant.
EVALUATION
[38] The condition
of the plaintiff as caused by the collision herein is not in dispute.
The opinions of the
respective experts are not challenged by the
defendant. In fact, material experts on both sides are agreed as to
the effects and
sequelae
that the plaintiff suffered as a
result hereof. The actuarial calculations of Gerald Jacobson
are also admitted and put beyond
dispute.
[39] The only
aspect the parties are not agreeing on is the contingencies to be
applied and general damages.
The plaintiff submitted that a
contingency of 5% should be applied on the award for past loss of
earnings and of 20% on future
loss of earnings. The defendant’s
submission was that the contingencies should be 15% and 25%
respectively. On the issue
of costs, the plaintiff’s submission
was that the defendant should be ordered to pay the costs hereof on a
scale as between
attorney and client because they failed to make an
offer to the plaintiff. I will come back to this aspect later.
[40] In support of
their contentions both sides relied on the cases of
Mxolisi
Nokemane
(Case 621/2008 – Eastern Cape, Grahamstown)
delivered on 8 March 2010 by Robertson J, and a judgment in the Free
State Provincial
Division by Ebrahim J in
Ntoi Mikea Maholela v
Road Accident Fund
dated 7 November 2006. The defendant, in
addition to the two above cases, also relied on a judgment by Eksteen
J in the Eastern
Cape Provincial Division, Port Elizabeth
in re
Devon Shaw Wright v Road Accident Fund
, dated 5 May 2011.
[41] In all the
above cases, the injuries sustained by the plaintiff as well as the
sequelae
of those injuries were similar to those suffered by
the plaintiff in this case.
[42]
In the
Ntoi
Mikea Maholela
case
the court awarded R600 000,00 as general damages. In the
Mxolisi
Nokemane
case
general damages were awarded at. In the
Devon
Shaw Wright
case
the court awarded R750 000,00 as general damages.
[43] On behalf of
the defendant it was submitted that there are no compelling reasons
why the amount of R950
000,00 should not be awarded as general
damages. On the other hand, the plaintiff’s submission
was that the amount
of R1 583 000,00 should be awarded due to the
lower age of the plaintiff herein, the fact that she will never be
capable of doing
anything for herself, unlike the claimants in the
above-stated cases as well as the longer trauma and humiliation that
the plaintiff
herein still has to suffer as a result of the
sequelae
of her injuries.
[44] The plaintiff
has admitted that she has not yet undergone any trauma and/or past
traumatic counselling.
She also admitted and it was never contested
on her behalf that with the necessary funds that she is likely to get
from this matter,
she will consult the best specialists who are
likely to make her life and/or lot far much better.
[45] In determining
the quantum of general damages the court has a wide discretion to
award what it considers
to be a fair and equitable compensation
having regard to a broad spectrum of facts and circumstances
connected to the plaintiff
and the injuries suffered by her, which
includes their nature, permanence, severity and impact on her
lifestyle.
[46] The plaintiff
has suffered severe injuries which are of a permanent nature. They
have impacted upon virtually
every facet of her life. Her dreams of a
future career and a stable family life have been shattered. Her very
considerable and
continuous discomfort was readily evident in the
witness box and her evidence of how she now spends her day is on
record.
[47] It was
reported in
Wright v Multilateral Motor Vehicle Accident Fund
as reported in
Corbett and Honey
, Vol 4 at E3-31 and in
particular, the passage at E3-36 as follows per Broom DJP:
“
I
consider that when having regard to previous awards, one must
recognise that there is a tendency for awards now to be higher than
they were in the past. I believe this to be a natural
reflection in the changes of society, the recognition of greater
individual
freedom and opportunity, rising standards of living and a
recognition that our awards in the past have been significantly lower
than those in most other countries.
”
[48] What the
learned judge said is apt and relevant to the present day.
Awards of general damages must
keep pace with inflation and the
ever-rising costs of living.
[49] It is my
finding that the peculiar circumstances of our case and the impact
the injuries has and are likely
to have on the plaintiff should guide
what award this Court should grant. I have given careful
consideration to the cases
referred to by the parties herein. I
must take into account the ravages inflation has had on those
“
templates
”. I have made certain that I do
not –
“…
pour
out largesse from the horn of plenty …
”
as said in
Pitt v Economic
Insurance Co Ltd
1957 (3) SA 287
(N).
[50] After taking
all relevant considerations into account it is my finding that an
award of R1 000 000,00 would
reflect fair compensation for general
damages.
[51] As regards
loss of earning capacity the only disparity between the parties is on
contingencies. The
parties are agreed on the rest of relevant
considerations that should be taken into account. The plaintiff’s
future earning
capacity has been well articulated.
[52] Nicholas JA
summed the assessment of future loss of earning capacity as follows
in
Southern Insurance Association Limited v Bailey NO
1984 (1)
SA 98
(A) at 113F-114E:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.
It has opened it to two possible
approaches. One is for the judge to make a round estimate of an
amount which seems to him
to be fair and reasonable. That is
entirely a matter of guesswork, a blind plunge into the unknown.
The other is to try to make an
assessment, by way of mathematical calculations, on the basis of
assumptions resting on the evidence.
The validity of this approach
depends of course upon the soundness of the assumptions, and these
may vary from the strongly probable
to the speculative.
It
is manifest that either approach involves guesswork to a greater or
lesser extent. But the Court cannot for this reason adopt
a
non
possumus
attitude
and make no award.
…
In
a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the
first
approach offers any advantage over the second. On the contrary, while
the result of an actuarial computation may be no more
than an
‘informed guess’, it has the advantage of an attempt to
ascertain the value of what was lost on a logical basis;
whereas the
trial Judge’s ‘gut feeling’ … as to what is
fair and reasonable is nothing more than a blind
guess …
”
.
[53] Mr Jacobson
has calculated the value of the plaintiff’s earning capacity
but for the accident in the
amount of R6 329 117,00. The actuarial
soundness of the calculations has not been challenged at all. I am
satisfied that a sufficiently
sound basis for the assumptions
underlying the calculations has been laid for me to place reliance
upon the actuarial approach.
[54] I am alive to
the realisation that while accepting actuarial calculations as an
attempt to ascertain the
value of what was lost on a logical basis, a
judge is not tied down by inexorable actuarial calculations because
he has a large
discretion to award what he considers right.
Compare:
Legal Assurance Co Ltd v
Botes
1963 (1) SA 608
(A) at 614F.
[55] One of the
elements in exercising that discretion is the making of a discount
for contingencies or what
others call, vicissitudes of life. What
contingencies are to be allowed for depends on the facts and
circumstances of each case.
See:
Van der Plaats v
South African Mutual Fire and General Insurance Co Ltd
1980 (3)
SA 105
(A) at 114-115.
[56] Just like in
the assessment of general damages the allowance for contingencies is
not something that is
readily ascertainable or can be accurately or
mathematically ascertained. Nicholas J put it as follows on
this aspect in
De Jongh v Gunther and Another
1975 (4) SA 78
(W) at 80F:
“
In the
assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or
science of
foretelling the future, so confidently practised by ancient prophets
and soothsayers, and by modern authors of a certain
type of almanak,
is not numbered among the qualifications for judicial office.
”
[57] The assessment
and/or calculation of a contingency discount is largely arbitrary and
will always depend
on or upon the particular judge’s
impressions in the case being heard.
See:
Southern Insurance
Association v Bailey NO (supra)
at 116H-117A.
[58] The
plaintiff’s predicted career path was common cause to the
parties. It is also so that the
plaintiff’s general
condition and future prospects of recovery or amelioration in her
condition has been compromised by her
lack of psychological
counselling and adequate medical attention or procedures. As a
result, a contingency deduction of 5%
on past loss of earnings is not
supported by the facts and circumstances prevailing in this case.
[59] Sight must not
however be lost of the fact that contingencies need not only be
adverse, thus necessitating
a “
scaling down
”. This
was what was held among others in the Australian case of
Bresatz v
Przibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at 213 quoted with approval by
the judge in the
Southern Insurance Association Ltd v Bailey NO
case. The court thereat held that –
“
It is a
mistake to suppose that it necessarily involves a ‘scaling
down’. What it involves depends, not on arithmetic
but on
considering what the future may have held for the particular
individual concerned … …
[T]
he
generalisation that there must be a ‘scaling down’ for
contingencies seems to be mistaken. All ‘contingencies’
are not adverse: all ‘vicissitudes’ are not
harmful. A particular plaintiff might have had prospects or enhances
of advancement and increasingly remunerative employment. Why count
the possible buffets and ignore the rewards of fortune?
Each
case depends on its own facts.
”
[60] In our present
case, there are a number of considerations which tend to favour a
slightly downwards adjustment
of the calculated figures.
Contrary to what counsel for the plaintiff submitted, regarding the
youthfulness of the plaintiff,
her youthfulness presupposes that her
claim is being calculated over an extended period of time during
which events that may possibly
be adverse may arise or occur.
Secondly, the plaintiff’s intended career path in marketing is
more risky and uncertain than
a sedentary or desk-bound career.
Furthermore, the fact that she would be home-based and bound, should
no improvement in
her condition occur, means that she would be saving
on clothing for work and pleasure as well as transport expenses to
and from
work and/or accommodation expenses she was likely to incur
as a marketing executive. The world’s financial or economic
uncertainties
may also play a part.
[61] After taking
all aspects into account it is my finding that the nett loss of
income but for the accident
in respect of past loss should be
subjected to a contingency deduction of 10%. However, the contingency
deduction for the nett
loss but for the accident in respect of
prospective of future loss of income should be 20%. I have
taken into account that
the actuary has already factored into his
calculations the limit for losses with effect from 31 January 2013 in
the amounts up
to R204 904,00 per annum as required by the
Road
Accident Fund Amendment Act 19 of 2005
.
CONCLUSION
[62] In the
circumstances, the calculated amount for accrued or past loss of
income but for the accident in the
sum of R348 515,00 should be
subjected to a contingency deduction of 10% with the following
results:
Accrued/past loss but for accident:
R348
515,00
10% contingency deduction:
R
34 851,50
Nett accrued loss:
R313
763,00
[63] The
prospective or future loss of income but for the accident in the sum
of R5 223 733,00 should be subjected
to a contingency deduction of
20% with the following results:
Prospective/future value
Value of income but for accident:
R5
223 733,00
20% contingency deduction:
R1
044 747,00
Nett prospective/future loss:
R4
178 986,00
[64] The total nett
loss of future earnings would thus amount to R4 492 749,50.
[65] In the result,
the plaintiff’s damages (excluding those covered by the
section
17(4)(a)
undertaking) arising out of the accident are assessed as
follows:
1
General damages =
R1
000 000,00
2
Loss of earnings and
earning capacity =
R4
492 749,50
(rounded to =
R4
492 750,00)
TOTAL =
R5
492 750,00
ORDER
[66] The following
order is made:
1. The
defendant is ordered to pay to the plaintiff the sum of R5 492 750,00
(Five Million Four Hundred
and Ninety Two Thousand Seven Hundred and
Fifty Rand) in delictual damages within 30 (thirty) days of date of
handing down of this
order or judgment;
2.
Should payment not to have been effected on or before 10 June 2013
the defendant shall pay interest
to the plaintiff on the above amount
a tempore morae
from the said date of 10 June 2013 until date
of payment;
3. The
defendant shall furnish the plaintiff with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, as
amended, for the costs of future accommodation of the plaintiff in a
hospital or nursing home or similar institution for the
treatment of
or the rendering of a service to her or the supplying of goods to her
arising out of the injuries sustained by her
in the motor vehicle
collision which occurred on 22 June 2008, which shall include, but
not limited to medical treatment as prescribed
by the experts herein
after such costs had been incurred;
4. The
defendant shall pay the plaintiff’s taxed or agreed party and
party costs on a High
Court scale, such to include the reasonable
preparation costs of the plaintiff’s experts, namely:
4.1
Dr Sara
(Orthopaedic Surgeon);
4.2
Dr
Sneider (Radiologist);
4.3
Dr S
Hurwitz (Pulmonologist);
4.4
Dr K
Fisher (Urologist);
4.5
Ms L
Grootboom (Clinical Psychologist);
4.6
Dr
Shevel (Psychiatrist);
4.7
Ms
September (Occupational Therapist);
4.8
Dr K
Rosman (Neurologist);
4.9
Ms P
Ngoako (Industrial Psychologist); and
4.10
Mr
Jacobson (Actuary).
5.
In the
event of the quantum of the plaintiff’s costs of suit not being
agreed on, the plaintiff’s attorneys will serve
a notice of
taxation on the defendant’s attorneys of record; and
6.
The
defendant will be granted a period of 7 (seven) days after taxation
to pay the aforesaid taxed costs.
N F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
FOR
THE PLAINTIFF
F.
DOCRAT
INSTRUCTED
BY
E
P SEFATSA ATTORNEYS
c/o
MAFATE ATTORNEYS
COMMISSIONER
STREET, JOHANNESBURG
TEL
NO: 011 046 9272
FOR
THE DEFENDANT
J.
MAGODI
INSTRUCTED
BY
KEKANA
HLATSHWAYO RADEBE INC
PARKTOWN,
JOHANNESBURG
TEL
NO: 011 484 4114
DATE OF HEARING
30 APRIL 2013
DATE OF JUDGMENT
10 MAY 2013