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[2012] ZAECPEHC 18
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De Lange v Road Accident Fund (2176/2010) [2012] ZAECPEHC 18 (22 March 2012)
OF
INTEREST
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: 2176/2010
In the matter between:
JOHAN DE LANGE
….......................................................................................
Plaintiff
And
ROAD ACCIDENT FUND
…..........................................................................
Defendant
Coram:
Chetty, J
Date Heard:
19 March 2012
Date Delivered:
22 March 2012
Summary:
Damages
–
Quantum – Motor
vehicle collision – Contingency deductions – No reason to
award higher contingencies
General Damages
– Fair award
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] The plaintiff, Mr
Johan
de Lange
, suffered multiple
injuries to his face, head, chest, abdomen, back, upper and lower
limbs, especially the pelvis in a motor vehicle
collision on the 26
th
April 2009. Arising therefrom he
instituted an action for damages against the defendant alleging that
the collision was occasioned
by the sole negligence of the insured
vehicle. The merits of the action have been settled 80% / 20% in the
plaintiff’s favour
and the defendant has furthermore agreed to
furnish the plaintiff with a certificate as contemplated by section
17(4)(a) of the
Road
Accident Fund Act
1
for 80% of such costs. The agreement
reached by the parties further recorded that the said certificate
would encompass the costs,
if any, associated with the employment of
a carer.
[2] The only issues which remain for
adjudication are the contingencies to be applied to the past and
future loss of income suffered
by the plaintiff and the amount to be
awarded for general damages. Mr
Mouton
,
who appeared together with Ms Barnard for the plaintiff, submitted
that a contingency of 5% for past and 15% for future loss of
income
be applied whilst Mr
Paterson
has urged me to apply a contingency of
7½% and 20% respectively. He submitted that given the generous
approach adopted by
the experts’
vis-à-vis
the plaintiff’s possible
earnings and the admitted fact that he would probably have worked
more overtime than the average,
a higher contingency was indeed
justified. The basis for the actuarial calculations is encapsulated
in the report of Dr
Piro
,
the contents of which the defendant admitted as conclusive proof. The
deduction for contingencies is the prerogative of the court
and in
assessing the percentage to be decided, recourse is often had to
actuarial guidelines. The contingency deductions reflected
in the two
reports commissioned by the plaintiff and defendant emanated from
themselves and not the actuary. I did not understand
Mr
Paterson
to suggest that the deduction
advocated by Mr
Mouton
was not the norm. The argument for a
higher contingency deduction was premised upon a speculative
hypothesis at variance with the
evidence adduced. There is, to my
mind, no valid basis justifying a higher contingency deduction. The
capped loss, to which a contingency
of 5% and 15% was applied
according to the actuarial report, was calculated as follows: -
Past loss of income R 427 570.00
Future loss of income R1 728 700.00
On the evidence adduced, the deduction
is entirely appropriate. In terms of the apportionment the defendant
would thus be liable
to pay the plaintiff the sum of R1 725 016.00.
[3] As far as general damages are
concerned, the reports of all the experts, not only Dr
Piro
,
were admitted as constituting conclusive proof of their content. It
would serve no useful purpose to regurgitate their contents
in this
judgment. The uncontroverted evidence of the plaintiff’s wife,
Mrs
Cheryl Ann de Lange
, demonstrates, quite unequivocally,
the changes the collision has wrought upon him – in short, it
has completely altered
his life. I have been referred to a host of
cases dealing with the issue of general damages and these have been
useful in my assessment
of what the award should be.
[4] As far as costs are concerned, I
was urged to award the plaintiff the costs of two counsel. Mr
Mouton
submitted that although the defendant formally admitted the medical
reports during the pre-trial conference on the 14
th
March
2012, the actual minute recording the agreement had only been signed
by the defendant on the morning of the trial. Consequently,
so he
argued, it was prudent to engage junior counsel. There is no
justification for mulcting the defendant with the costs of an
additional counsel. It is a luxury which the plaintiff must bear.
[5] In the result the following order
will issue:-
The defendant is ordered to pay the
plaintiff the sum of R1 725 016.00 for past and future
loss of income.
The defendant is ordered to pay the
plaintiff the sum of R600 000.00 as and for general damages.
Interest on the aforesaid amounts at
the legal rate fourteen days from date of judgment to date of
payment.
The defendant shall furnish the
plaintiff with an undertaking in terms of section 17(4)(a) of the
Road Accident Fund Act No, 56 of 1956
in respect of future
expenses referred to therein and to include therein the costs, if
any, associated with the possible employment
of a carer.
The defendant is ordered to pay the
plaintiff’s costs of suit together with interest thereon at
the legal rate from date
of judgment to date of payment, such costs
to include the qualifying expenses, if any, of the following
experts:-
Dr P.A Olivier, Orthopaedic Surgeon;
Prof Louise Stroud, Clinical
Psychologist;
Ansie van Zyl, occupational
therapist;
Dr Karen Piro, Industrial
Psychologist;
Dr Ernest Bonnet, Urologist;
Alex Munro, Actuary.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
On
behalf of the Plaintiff: Adv P.H. Mouton together with Adv N. Barnard
instructed by Struwig Hattingh, 28 – 7
th
Avenue,
Newton Park, Port Elizabeth, Ref: Morne Struwig, Tel (041) 364 2624
On
behalf of the Defendant: Adv N. Paterson instructed by Joubert Galpin
& Searle, 173 cape Road, Mill Park, Port Elizabeth,
Ref: R
Mohamed, Tel (041) 396 9219
1
Act
No, 56 of 1996