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[2017] ZAECPEHC 1
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Van Niekerk v Road Accident Fund (2521/2015) [2017] ZAECPEHC 1 (17 January 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case
no: 2521/2015
Date
heard: 9
th
December 2016
Date
delivered: 17
th
January 2017
In
the matter between:
DEON
VAN
NIEKERK
Plaintiff
vs
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
TSHIKI
J:
[1]
The plaintiff herein issued summons against the defendant for damages
arising from a motor vehicle accident which occurred in
a motor
vehicle collision in which the plaintiff was seriously injured.
[2]
When the matter was called before me, I was advised by the parties
that both the merits of the plaintiff’s claim and quantum
of
his damages as well as what follows hereunder:
(a)
the defendant agrees to pay the plaintiff’s taxed or agreed
party and party costs
on the applicable High Court scale subject to
the following conditions:
(i)
the plaintiff shall serve a notice of taxation on the defendant’s
attorney
of record; and
(ii)
the plaintiff shall allow the defendant 14 (fourteen) court days to
make payment
of the taxed costs.
[3]
The aforementioned offer of costs includes payment of the qualifying
fees, if any, of any expert in respect of whom plaintiff
has given
notice in terms of the provisions of Rule 36(9)(a) and (b).
[4]
In the event of this offer being accepted, the plaintiff’s
attorneys are requested to furnish in their notice of acceptance
details of their trust account to enable the defendant to make direct
payment of the amount involved.
[5]
If the plaintiff has concluded a contingency fee agreement with his
attorney, acceptance of this offer of settlement will serve
as
confirmation that the plaintiff and his attorney have complied with
section 4(1) and (2) of the
Contingency Fees Act 66 of 1997
through
having filed the required affidavits with either the Court, if the
matter is before Court, or with the relevant professional
controlling
body, if the matter is not before Court.
[6]
The offer was made subject to it replacing all previous offers made
in this matter, which are also hereby withdrawn.
[7]
The parties were, however, unable to reach agreement in respect of
the costs order to be made. Even in respect of the
costs issue
the only issue is about the costs of two counsel. For the above
reasons, the Court had to listen to counsels’
argument in Court
regarding the issue of costs.
[8]
I have been referred to four judgments of our division meaning the
Eastern Cape Division. The first judgment has facts
similar to
those of the one in issue in
Gerrit
Smit v The Road Accident Fund
in
case no 448/2013 heard on 3
rd
March 2014 in Port Elizabeth.
[9]
In the above judgment, the parties were also unable to reach
agreement in respect of the costs order to be made. The
defendant has tendered the plaintiff’s costs including the
qualifying expenses of expert witnesses on a party and party scale.
The plaintiff on the other hand sought a further order that the
defendant be liable to pay costs of two counsel.
[10]
The plaintiff suffered serious injuries as a result of the collision
being a head injury with concussion, a traumatic brain
injury, a
ligament injury to the left foot and a haematoma to her right
temporal area. The original particulars of claim
included only
a nominal estimated amount for loss of earnings and future loss of
income or capacity which claim under these heads
of damages was
substantially increased in April 2015 shortly before the allocated
trial date. In order to substantiate the
plaintiff’s
claim founded upon the fact that she had suffered a traumatic brain
injury resulting in a loss of earning, the
plaintiff qualified nine
expert witnesses. One of the expert reports were admitted until
a few days before the trial was
to commence on the 12
th
June 2015 for some good reasons though. The matter was
ultimately settled.
[11]
The order that was granted by consent states as follows:
“
[11.1]
Defendant is liable for 80% of plaintiff’s proven or agreed
damages;
[11.2] Defendant is
to pay to plaintiff the sum of R3 573 162.58 in full and
final settlement of plaintiff’s
claim for damages;
[11.3] Payment of
the aforesaid amount in paragraph [11.2] above shall be made within
14 days from date of this order directly
to plaintiff’s
attorney of record, Morne Struwig Inc., trust account, details of
which are as follows:
Name
: Morne
Struwig Inc.
Bank
:
Standard Bank
Branch
:
Pickering Street
Branch
code
:
050017
Account
Number :
[0...]
[11.4] Failing
payment of the aforesaid amount in paragraph [11.2] above
defendant is to pay interest on the aforesaid
amount in paragraph
[11.2] above from a date 14 days from date of this order to date of
payment at the rate of 10.5% per annum;
[11.5] Defendant
shall furnish plaintiff with an undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund, Act 56 of 1996
, for 80% of the
costs of future accommodation of plaintiff in a hospital or nursing
home, or treatment of or rendering of a service
to him or supplying
of goods to him, and as further detailed in the reports filed by the
parties to date, arising out of the injuries
sustained by him in the
collision on 24 October 2012, after such costs have been incurred and
upon proof thereof;
[11.6] Defendant is
to pay plaintiff’s costs of suit on the party and party scale
up to and including the date on which
this judgment is delivered, as
taxed or agreed, such costs are to include:
[11.6.1]
The costs of the reports and supplementary reports, if any,
of:
[11.6.1.1]
Dr J Dippenaar;
[11.6.1.2]
Dr PA Olivier;
[11.6.1.3]
Dr E de Wit;
[11.6.1.4]
Mrs A van Zyl;
[11.6.1.5]
Dr K Piro;
[11.6.1.6]
Munro Forensic Actuaries.
[11.7] The
reasonable qualifying fees and expenses, if any, of:
[11.7.1]
Dr PA Olivier;
[11.7.2]
Dr E de Wit;
[11.7.3]
Mrs A van Zyl;
[11.7.4]
Dr K Piro;
[11.7.5]
Munro Forensic Actuaries
[11.8] The trial
costs.
[11.9] The
reasonable costs of consultations of plaintiff’s counsel and
plaintiff’s attorney with plaintiff’s
experts and lay
witnesses in the preparation for the trial.
[11.10] The costs
involved in attending a pre-trial inspection
in loco
with
counsel.
[11.11]
The costs of the employment of two counsel.”
[12]
In my view, the fact that this Court has also furnished the plaintiff
with an undertaking in terms of section 17(4)(a) of the
Road Accident
Act, Act 56 of 1996, for 80% of the costs of future accommodation of
plaintiff in a hospital or nursing home, or
treatment of or rendering
of a service etc is indicative and proof of the seriousness of the
injuries sustained by the plaintiff.
[13]
What I have also said above also applies to the necessity for the
matter and its litigation to be dealt with by senior counsel
to show
that the litigation in this matter necessarily merits the appointment
of two counsels.
[14]
In the result, I make the following order:
“
[1]
Defendant is liable for 80% of plaintiff’s proven or agreed
damages;
[2]
Defendant is to pay to plaintiff the sum of R3 573 162.58
in full and final settlement
of plaintiff’s claim for damages;
[3]
Payment of the aforesaid amount in paragraph [11.2] above shall be
made within 14 days from
date of this order directly to plaintiff’s
attorney of record, Morne Struwig Inc., trust account, details of
which are as
follows:
Name
: Morne
Struwig Inc.
Bank
:
Standard Bank
Branch
:
Pickering Street
Branch
code
:
050017
Account
Number :
[0...]
[4]
Failing payment of the aforesaid amount in paragraph [11.2]
above defendant is to
pay interest on the aforesaid amount in
paragraph [11.2] above from a date 14 days from date of this order to
date of payment at
the rate of 10.5% per annum;
[5]
Defendant shall furnish plaintiff with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund, Act 56 of 1996
, for 80%
of the costs of future accommodation of plaintiff in a hospital or
nursing home, or treatment of or rendering of a service
to him or
supplying of goods to him, and as further detailed in the reports
filed by the parties to date, arising out of the injuries
sustained
by him in the collision on 24 October 2012, after such costs have
been incurred and upon proof thereof;
[6]
Defendant is to pay plaintiff’s costs of suit on the party and
party scale up to and including
9 December 2016, as taxed or agreed,
such costs are to include:
[6.1]
The costs of the reports and supplementary reports, if any, of:
[6.1.1]
Dr J Dippenaar;
[6.1.2]
Dr PA Olivier;
[6.1.3]
Dr E de Wit;
[6.1.4]
Mrs A van Zyl;
[6.1.5]
Dr K Piro;
[6.1.6]
Munro Forensic Actuaries.
[6.2]
The reasonable qualifying fees and expenses, if any, of:
[6.2.1]
Dr PA Olivier;
[6.2.2]
Dr E de Wit;
[6.2.3]
Mrs A van Zyl;
[6.2.4]
Dr K Piro;
[6.2.5]
Munro Forensic Actuaries
[6.3]
The trial costs.
[6.4]
The reasonable costs of consultations of plaintiff’s counsel
and plaintiff’s attorney
with plaintiff’s experts and lay
witnesses in the preparation for the trial.
[6.5] The costs involved
in attending a pre-trial inspection
in loco
with counsel.
[6.6] The costs of the
employment of two counsel.
[7]
Defendant is to pay interest on plaintiff’s said taxed or
agreed costs at the
rate of 10.5% per annum from a date 14 days after
allocatur
or agreement to date of payment.”
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the applicant
:
Adv Frost together
with Adv Williams
Instructed
by
: Morne Struwig Inc.
PORT
ELIZABETH
Ref:
Morne Struwig/BJ/VAN142
Tel:
041 – 379 2736
For
the defendant
:
Adv Paterson
Instructed
by
: Friedman Scheckter
PORT
ELIZABETH
Ref:
N America/af/L34900