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[2017] ZAGPJHC 404
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Patel NO obo Mathonsi v Road Accident Fund (7993/17) [2017] ZAGPJHC 404 (14 December 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case
Number:
7993/17
Not
reportable
Not of
interest to other judges
Revised.
14/12/2017
In
the matter between:
ADVOCATE
M PATEL N.O.
obo
MZANO CHRISTOPHER
MATHONSI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
FISHER,
J:
INTRODUCTION
[1]
The order in this case was handed down on 03 November 2017. I now
hand down my reasons for such order.
[2]
The case involves a motor vehicle accident which occurred on 13
December 2015 near Heidelburg Road, Benoni, Gauteng. Mr
Mzamo
Christopher Mathonsi, an adult male born on […] November 1987,
was injured when the insured driver’s vehicle
collided with him
as he was pedestrian whilst assisting the driver of another vehicle
which had broken down.
[3]
As a result of the his injuries, Mr Mathonsi was declared unable to
act in his own defence and Mr Patel, an advocate of this
court was
appointed as his
curator ad
litem
with powers to
recommend how any monies derived from this litigation is to be dealt
with. Mr Mathonsi was referred to throughout
the hearing as “
the
patient
” and for purposes of consistency I have continued
with this nomenclature.
[4]
This matter came before me on the basis that many of the issues had
already become settled between the parties. Liability was
agreed at
100% as was the fact that the defendant was obliged to furnish the
patient with an undertaking in terms of section 17(4)(a)
of the Road
Accident Fund Act.
[5]
It was agreed further that the patient had suffered pain,
disfigurement and loss of amenities of life arising from the injuries
he sustained in the collision and the
sequelae
and that he is
properly compensated in the sum of R950 000,00 for this sub head
of damage.
[6]
The only aspect that was in dispute and which I was called on to
decide was the contingency factor to be applied in relation
to his
loss of earning capacity.
[7]
The patient has sustained a serious traumatic brain injury in the
form of a subarachnoid haemorrhage, brain contusion and
intraventricular
haemorrhage; abdominal injuries; and multiple
orthopaedic injuries. He has been left with headaches, poor memory,
right ankle pain
and an increased chance of developing epilepsy
(5-8%).
[8]
The Clinical Psychologists for the plaintiff and the defendant
respectively, Ms Mahudasa and Ms Nkuna both conducted
objective neuropsychological testing of the patient. These tests
showed cognitive fall-out in most of his brain faculties.
They
are agreed that the patient’s neuropsychological evaluation
demonstrate concentration and attention challenges; a poor
learning
capacity, and a significantly impaired memory and ability to reason.
His ability to verbalise was also affected. The evidence
of Ms
Mahudasa is that the patient has also sustained significant changes
in his personality, mood and behaviour which includes
post- traumatic
stress disorder with increased aggression and which may be a risk
factor in terms of his psycho-social functioning
and result in the
decline in his inter-personal relationships, including those with
employers.
[9]
The Occupational Therapists, Ms M September, on behalf of the
Plaintiff and Ms M Magoele on behalf of the defendant, both conducted
extensive functional and occupational testing of the Plaintiff. They
concurred in the joint minute that, in relation to the patient’s
employability he has poor occupational physical competency by virtue
of headaches, pain on the right hip, tenderness below his
right knee,
compromised dynamic postures owing to the right knee pain and reduced
agility. Both found that he suffered from
extensive pain on
both lower limbs and the right dominant hand and that his muscular
skeletal functions such as his gait pattern
and balance on the right
leg were poor.
[10]
With regards to his neuropsychological, behaviour and cognition, his
occupational barriers were found to include lack of motivation
as a
result of his major depressive mood, possible absenteeism from the
work owing to headaches, pain intolerance, reduced agility
and poor
work tolerance. He had features of effective dysfunction such
as extremely depressed mood and post- traumatic stress
disorder with
moderate anxiety and irritability. His psycho-social based work
competency was significantly reduced due to
aggression, low
self-esteem and irritability. These experts furthermore agreed that
the patient has poor work habits, poor work
presentation, reduced
psychological work competency - particularly under highly pressured
work context and reduced potential for
sustained employment. They
accordingly relegated the Plaintiff to sheltered type of working
environment, which, according to the
accepted evidence of Ms Magoele,
translate to a protected workshop type employment.
[11]
Dr Barlin, an orthopaedic surgeon who testified for the plaintiff as
to the patient’s physical injuries noted difficulties
with
lower limb joint movements and problems with a significantly injured
right ankle. He found that, even with intensive physiotherapy
combined with analgesics and anti-inflammatories, the patient is
unlikely to regain a full range of motion in the affected joints.
Dr
Barlin found that patient is incapable of performing his work as a
security guard. This is substantiated by the common cause
evidence of
the two Occupational Therapists.
[
12]
The Defendant on the other hand led the
evidence
of the plaintiff’s former employer Mr Schoeman. He confirmed
that the plaintiff was employed at a company managed
by Mr Schoeman,
Secure Group during the period March 2017 to September 2017, this
period being post the accident. He further confirmed
that the
plaintiff was employed in the same capacity of a Grade C security
guard as he was pre-accident with similar duties to
those which he
performed pre-accident.
[13]
His evidence was that the plaintiff conducted his work satisfactorily
over the rough terrain of the area he was assigned to
without any
complaints.
[14]
The medical experts for both parties have recommended treatment and
therapy which may enhance his capacity over time.
[15]
In determining the contingency to be applied, I take into account
that plaintiff did not have strong and established employment
history
prior to the accident. His school performance was also weak. I accept
that he lied about his circumstances in that he told
experts that he
was not employed when he was employed in a similar position to that
held prior to the accident.
[16]
Mr Schoeman conceded that had he been apprised of the true extent of
the disabilities suffered by the plaintiff, he would not
have
employed him. It must thus be considered that, if the plaintiff is
hiding the effects of his injuries from his employers in
order to
earn a living, as he has a family to support.
[17]
In
Gwaxula v RAF
-
Case No 09/41896 SGHC p14 at 25 it was held (per Moshidi J):
“
the
contingencies are an important control mechanism to adjust the loss
suffered to the circumstances of the individual case to
achieve
equity and fairness to the parties.”
[18]
Contingencies are the hazards that normally beset the lives
and circumstances of ordinary people. In
Shield Insurance Co Ltd v
Booysen
1979 (3) SA 953
(AD) at 965G it was held
(
per
Trollip JA):
“
The
determination of allowance for such contingencies involves, by its
very nature, a process of subjective impression or estimation
rather
than objective calculation…
”
[19] In
Southern
Insurance Association v Bailey N.O.
1984 (1) SA 98
(A) at 113
Nicholas JA held in relation to the process of imposing an apposite:
“
One
(possible approach) 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”.
[20]
Obviously the latter approach, even with its limitations are to be
preferred. In this matter the parties are in agreement that
the
patient’s earnings as a security guard projected to age 65 are
as calculated by an actuary, Mr Whittaker and set out
in his report
dated 17 October 2017. In terms of this report the patient’s
future loss of income is agreed at R 1 100 962.
CONCLUSION
[21]
On the basis of the circumstances above, it is my assessment that it
is fair and proper to impose a 20% contingency deduction
to the
agreed future loss.
ORDER
An
order was thus handed down as follows on
03 November 2017
:
1.
The
Defendant is directed to pay the sum
of
R 1 901 009
to
the Plaintiff for the sole benefit of Mzamo Christpoher
Mathonsi , an adult male born on […] November 1987 , and
whose
identity number is […] (hereinafter referred to as “the
patient”) arising from the delictual damages
sustained by the
patient in the motor collision which occurred on 13 December 2015 ,
at or near Heidelburg Road between Dube and
Lancaster Roads, Benoni,
Gauteng and which comprises:
a.
General
Damages R
950 000.00
b.
Past Loss of Income
R
70 239.00
c.
Future Loss of Income and income
earning
capacity R
880 770 .00
2. The aforesaid sum of
R
1 901 009
shall be payable within 14 days hereof to the
Plaintiff’s attorney, Mngomezulu Inc Trust account with the
below-mentioned
bank details:
M P
Mngomezulu Trust account
Standard
Bank
Germiston
branch
Branch code: 51001
Account no: […]
3 The
Defendant shall be liable for interest on the aforesaid amount or any
part thereof,
a tempora mora
,
from 14 days after judgment to date of final payment.
4.
The
sum of
R 1 901 009
shall
be kept in the trust account of Attorneys Mngomezulu Inc Attorneys,
in an interest bearing account in terms of Section 78(2)(A)
of the
Attorneys Act, No.53 of 1979, for the sole benefit of the patient
pending the formation of a trust for the patient’s
benefit as
referred to below.
5.
Plaintiff’s attorney, Mngomezulu Inc shall:
5.1 cause a Trust to be
established in accordance with the provisions of the Trust Property
Control Act, No. 57 of 1988 in favour
of the patient within three
months hereof;
5.2 in the event that the
Trust is not established within the prescribed period, approach this
Honourable Court by way of application
for further direction
concerning the establishment of the Trust;
5.3 be entitled to deduct
their disbursements for professional services rendered to the patient
from the capital amount;
5.4 pending the formation
of a Trust as aforesaid, make provision for the patient to receive a
monthly stipend of R 3000.00.
6. The Trust instrument,
contemplated in paragraph 4.1 above, shall inter alia make provision
for the following:
6.1. The patient to be
the sole beneficiary of the Trust;
6.2. Subject to the
approval of the Master of the High Court, the
nomination
of Nolwazi Matheatsie on behalf of Standard Trust Limited as the
First Trustee and whose consent is annexed hereto
marked “A”;
6.3. The Trustee of the
Trust should immediately take all the requisite steps to secure an
appropriate bond of security, to the
satisfaction of the Master of
the High Court, for the due fulfilment of her obligations and to
ensure that the bond of security
be submitted to the Master of the
High Court at the appropriate time as well as to all other interested
parties.
6.4. The powers of the
Trustees to be exercised with specific reference to the circumstances
of the patient and such to include
but not be limited to:
6.4.1 The right to
purchase, sell and mortgage immovable property, invest and reinvest
the Trust capital and/ or income;
6.4.2 applying the nett
income of the Trust Fund and if that is not adequate at any time for
the purpose, the capital thereof, for
the maintenance including,
without derogating from the meaning of the term, the maintenance of
the patient and his lawful minor
dependants, their reasonable
pleasures, entertainment, general upkeep, welfare benefits and
rehabilitation and the acquisition
or provision of residential
facilities or a residence for the patient. The income not used as
aforesaid shall accumulate to the
capital;
6.5 The duty of the
Trustee to disclose any personal interest in any transaction
involving the Trust property to the Master;
6.6 The amendment of the
Trust instrument subject to the leave of the High Court;
6.7. The termination of
the Trust on the death of the patient or with the leave of the High
Court only;
6.8. The right of the
Trustee to pay the Plaintiff’s attorney his fee for services
rendered herein;
6.9 The Trustee shall be
entitled to call for a taxation of the Plaintiff’s attorney’s
attorney and client fee, if deemed
necessary;
6.10 The provisions
referred to above shall, in accordance with the provisions of the
Trust Property Control Act, No. 57 of 1988,
be subject to the
approval of the Master.
7. The
Defendant
is directed to furnish the patient 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 the patient in a hospital
or nursing home or the treatment of or rendering
of a service
to him or the supplying of goods to him arising out of the injuries
sustained by the patient in the motor vehicle
collision which
occurred on 13 December 2015 and the
sequelae
thereof, after such costs have been
incurred and upon proof thereof.
8. The Undertaking
referred to above shall be provided within 14 days of judgement.
9. The Undertaking
referred to above shall include payment of :
9.1 The costs of the
creation and administration of the Trust and
the appointment of a
Trustee as referred to in paragraphs 5 above;
9.2. The costs of the
Trustee in administering the patient’s estate and the costs of
administering the statutory Undertaking
furnished in terms of
Section
17(4)(a)
of the
Road Accident Fund Act
>, as determined by the
Administration of Estates Act, No. 66 of 1965
, as amended, limited to
the prescribed tariff applicable to a curator bonis, as reflected in
Government Notice R1602 of 1st July
1991, specifically paragraphs
3(a) and 3(b) of the Schedule thereto; and
9.3. The costs of
obtaining an annual security bond to meet the requirements of the
Master of the High Court in terms of
Section 77
of the
Administration
of Estates Act, No. 66 of 1965
, as amended.
10. The Defendant is
directed to pay the Plaintiff’s taxed or agreed party and party
costs of the action on the High Court
scale, which party and party
costs shall include but not be limited:
10.1 costs incurred in
securing
payment of the capital sum set out in
paragraph 1 and/or any part thereof and the issuing of the statutory
Undertaking in terms
of
Sec 17
(4) (a);
2.5c
m; margin-bottom: 0cm; line-height: 150%">
10.2 the costs of the
appointment of the Curator ad Litem and his preparation,
consultation/s, preparation of his report and attendances
at court on
26, 27, 30 and 31 October 2017 and 1, 2 and 3 November 2017
respectively;
10.3 the costs of counsel
including preparation, consultation/s,
drafting of
heads of argument and appearances on trial on 26, 27, 30 and 31
October 2017 and 1 and 2 November 2017 respectively
and on
appearance/s to note judgment;
10.4 the reasonable
preparation, reservation and attendance costs to be determined
by the Taxing Master of the below-mentioned
experts including but not
limited to consultations, preparation of report/s and/or
addendum report/s, RAF 4 assessments and
joint minutes where
applicable:
10.4.1
Prof
Karan (neurosurgeon);
10.4.2 Dr. Barlin
(orthopaedic surgeon);
10.4.3. Dr Louis Sulman &
Partners (radiologist)
10.4. Ms Mahudasa
(clinical neuropsychologist);
10.4.5 Prof M Vorster
(forensic psychiatrist);
10.4.6 Ms N September
(occupational therapist);
10.4.7n Dr AS Strydom
(industrial psychologist);
10.4.8
Mr Whittaker (actuary);
10.5
the costs of the preparation and attendances at pre- trial
conference/s and certification court including the drafting of an
agenda and minutes of a pre- trial conference;
11.
The aforesaid costs are to be paid by the Defendant directly to the
Trustee, alternatively to the Plaintiff’s attorney
to be held
in trust as per paragraph 4 supra.
12. Payment of costs is
subject to the following conditions:
12.1.
The Plaintiff shall, in the event that costs are not agreed, cause
the notice of taxation to be served on the Defendant’s
attorney
of record; and;
12.2.
The Plaintiff shall allow the Defendant 7 (seven) court days after
taxation to make payment of the taxed costs.
13.
The Defendant is liable for interest
a
tempora mora
on the agreed or taxed
costs from 8 days after agreement or taxation to date of final
payment.
14 The
Contingency Fee agreement concluded between the patient and his
attorney of record is declared invalid. The patient’s
attorney
shall be entitled to charge his ordinary attorney and client fee for
services rendered, subject to same not exceeding
25 % of the capital
awarded to the patient.
15
The
Order must be served by the Plaintiff’s attorneys on the Master
of the High Court within 30(thirty) days from the date
of this Order.
______________________________________
FISHER
J
HIGH
COURT JUDGE
GAUTENG LOCAL
DIVISION, JOHANNESBURG
DATE
OF HEARING:
31
October 2017 - 03 November 2017
DATE
OF ORDER:
03
November 2017
DATE
OF JUDGMENT:
14
December 2017
LEGAL
REPRESENTATIVES:
FOR
THE PLAINTIFF
Adv
F Docrat instructed by
MP
Mngomezulu inc
FOR
THE DEFENDANT:
Adv
S Mahomed instructed by Dev Maharaj.