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[2010] ZAGPPHC 288
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Green v Road Accident Fund (6621A/2009) [2010] ZAGPPHC 288 (26 April 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT, PRETORIA)
Case
number 6621A/2009
DATE:
26 APRIL 2010
In the matter
between
CAROLYN MARGARET
GREEN
….......................................
Plaintiff
And
THE ROAD ACCIDENT
FUND
.......................................
Defendant
JUDGMENT
BOTHA J:
This is a so-called
third party matter in which only the quantum of the plaintiffs claim
is in dispute
By agreement no
evidence was presented The court was referred to the plaintiffs
bundle of expert reports The parties were in agreement
that the
contents of the reports could be accepted as correct
The plaintiff was
involved in a motor vehicle collision on 31 March 2008 She was the
driver of her own vehicle At present she :s
50 years old She is
employed as a portfolio manager by a property company Her expected
retirement age is 65
The plaintiff
sustained a soft tissue injury of the neck (whiplash) and a soft
tissue back injury she received medication and physiotherapy
According to Dr Birrell an orthopedic surgeon, there is a 3% to 4%
chance that she will have to undergo cerv«ca! surgery
He
assessed her loss of work capacity at 2% to 3%
Dr du Plessis a
neuron-surgeon confirmed Dr Birrell’s findings He assessed her
loss of work capacity at 3% He did not foresee
any early retirement
Mr Kobus Truter, a
clinical psychologist stated that the plaintiff suffered from
depression, partly caused by the collision and
anxiety disorder
entirely caused by the collision She did not want to drive a motor
car outside Pretona and she was now suffering
from headaches
Dr Shevell, a
psychiatrist, confirmed the plaintiffs psychological symptoms
According to him she will require therapy and an increased
dosage of
medication
Tracy Brown, an
occupational therapist, found that the plaintiffs physical and
psychological tolerance had been reduced Her concentration
levels are
reduced and she is suffering from fatigue She has problems with
extended sitting
Linda Krause an
industrial psychologist, had an interview with the plaintiff's
employer. He informed her that the plaintiff had
lost her innovation
and ability to identify and manage problems. He had earmarked her for
promotion to a more senior post, but
had to abandon the idea
On the income
figures supplied by Linda Krause the plaintiff s actuary Mr
Whittaker, has calculated her future income without injury
as R 2 634
546.0 After
deduction of a 15% contingency factor it amounted to R 2 249 364 00
He assumed that her income with her injury would
be the same, but
from it he deducted a contingency factor of 35%. giving a future
income of R 1 712 455,00 The nett loss is R 526
905.00. the
difference between the amounts of R 2 239 364.00 and R 1 712 455.00
The plaintiff
annexed documentation in support of her claim for past medical
expenses It amounts to R 7 847,40
Ms Lmgenfelder who
appeared for the plaintiff argued that the court should make an award
m respect of general damages in an amount
between R 120 000,00 and R
150 000.00 She referred to the awards in two cases reported in volume
V of Corbett and Honey Daniels
v Road Accident Fund C 3-1 where R 80
000.00 was awarded for a whiplash injury in 2000, and Jacobs v Road
Accident Fund C3-131
where R 80 000.00 was awarded for a similar
injury in 2003. She adjusted the awards to their present day values
according to the
tables in Koch’s Quantum Yearbook 2010 to R
147 000,00 and R 120 000 00 respectively
In respect of future
medical expenses Mr ledwaba who appeared for the defendant, accepted
that the defendant should t>e ordered
to furnish an undertaking as
formulated in a draft submitted by Ms Lmgenfelder
In respect of
general damages I find the cases of Daniels and Jacobs supra
instructive In my view however the injuries and their
squeal in those
two cases were somewhat more serious than m this case. Bearing that
in mind. I am of the view that an amount or
R 100 000.00 would be a
fair award in respect of general damages.
No reason was
advanced why the amount claimed in respect of past medical expenses
should not be awarded In respect of future medical
expenses. Mr
Ledwaba who appeared for the defendant, accepted that the defendant
should be ordered to furnish an undertaking as
formulated in a draft
submitted by Ms Lsngenfelder
In respect of the
future loss of earnings I find it impossible to consider making an
award in the form of a lump sum I would simply
not know where to
begin The plaintiff s loss in this respect is not inconsiderable,
even though the evidence is that she will be
able to continue doing
her work until her normal age of retirement It «s. however,
dear that her work is not of the quality
that it used to be and that
she will have to forgo the prospect of advancement. I find the
approach In the actuarial report useful
and rational I would, however
apply a differential contingency of 15% (the same as in the case of
Jacobs supra) On that oasis the
future loss of earnings amounts to R
395 181 90
The total amount to
be awarded to the plaintiff is R 503 029.30, being the total of the
amounts of R 7 847,40. R 100 000.00. and
R 395 181.90.
The plaintiff is
obviously entitled to her costs, which costs should include the
qualifying fees of her expert witnesses
The order that I
make largely follows the wording of the draft submitted by Ms
Lmgenfelder It is as follows
1. The defendant
must pay the plaintiff an amount of R 503 029.30 as damages, which
amount is to be paid on or before the 28m May
2010.
2. The amount of R
503 029.30 will not bear interest before the 28'" May 2010.
Thereafter, if not paid in due time, it will
bear interest at the
rate of 15.5% por annum until date of payment.
3. The defendant
will furnish the plaintiff with an undertaking in terms of section
17(4)(a) of Act 56 of 1996 in respect of future
accommodation of the
plaintiff in a hospital or nursing home or treatment of or rendering
of a service or supplying of goods to
her resulting from the motor
vehicle collision on 31 March 2008 to compensate the plaintiff in
respect of the costs of such
Accommodation,
services or goods after the costs have been incurred and upon proof
thereof.
4. The defendant
shall pay the plaintiff's taxed or agreed party and party costs on
the High Court scale up to and including the
26"’ April
2010 provided that:
4.1 if the costs are
not agreed:
4.1.1 the plaintiff
shall serve a notice of taxation on the defendant's attorney of
record;
4.1.2 the plaintiff
shall allow the defendant seven court days from the day of the
allocator to make payment;
4.1.3 Should payment
not be effected on time, the plaintiff will be entitled to recover
interest at the rate of 15,5% per annum
on the taxed or agreed costs
from the date of the allocator until the date of payment.
4.2 Such costs shall
include:
4.2.1 the costs
incurred in obtaining payment of the amount of R 503 029.30;
4.2.2 the costs of
counsel;
4.2.3 the qualifying
fees of Dr Birrell, Dr du Plessis, Dr Shevell. Mr K Truter, Ms T
Brown, Ms L Krause, and Mr Whittaker; and
4.2.4 the reasonable
costs of plaintiff in attending medico-legal examinations in such
amounts as allowed by the taxing master.
5. Any amounts
payable to the plaintiff in terms of this order shall be paid to the
plaintiff's attorneys. Adams & Adams, by
direct transfer into
their trust account, the particulars of which are:
Bank: Nedbank,
Pretoria Branch Code: 1604 4500 Account number: 1604 318 902
Reference: GWW/ren/S314/08
C BOTHA
JUDGE OF THE HIGH
COURT