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[2024] ZAFSHC 15
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K.L.M N.O obo T.M v Road Accident Fund (143/2017) [2024] ZAFSHC 15 (18 January 2024)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No:
143/2017
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
K
L M[...] N.O. obo T[…] M[…]
Plaintiff
And
THE
ROAD ACCIDENT FUND
Defendant
CORAM:
HEFER AJ
HEARD
ON
:
24 OCTOBER 2023
DELIVERED
ON:
18
JANUARY 2024
[1]    The
Plaintiff is before Court in her representative capacity as
curator
ad litem
for T[…] M[…] (herein later referred to as
“
the minor”
).
[2]    On
7 November 2017, Molemela JP (as she then was), made an order in
terms whereof
inter alia
:
(i)
The issues of merits and quantum were
separated in terms of Rule 33(4) and the issue of quantum was
postponed to a later date; and
(ii)
The Defendant is liable to pay 100% of the
Plaintiff’s proven or agreed damages.
[3]
The matter served before me in regards to the adjudication of the
quantum.
[4]
During the hearing Adv
BJ Marx
appeared on behalf of the
Plaintiff whilst there was no appearance on behalf of the Defendant.
Mr
Marx
also filed comprehensive Heads of Argument in regards
to the quantum which Heads were dated 14 October 2023.
[5]
At the onset of the trial the Plaintiff applied that the Plaintiff’s
affidavit and the confirmatory
affidavits of the experts obtained and
filed on behalf of the Plaintiff be accepted as evidence in terms of
Rule 38(2).
[6]
The Plaintiff further applied at the onset of the trial that the
aforementioned expert reports
and collateral information contained
therein be allowed as constituting admissible hearsay evidence both
in terms of Section 3(1)(c)
of the Law of Evidence Amendment Act and
Part VI of the Civil Proceedings Evidence Act 25 of 1965.
[7]
Both these applications have been granted at the onset of the
hearing.
[8]
The injuries of the minor, with reference to the loss of an ability
to work as well as the general
damages, were discussed by the various
experts who have evaluated the minor as will appear from a discussion
of the relevant expert
reports in this regard.
Lida
Möller (Educational Psychologist)
:
[9]
Lida Möller assessed the minor during August 2017. According to
her, in respect of his psycho-educational
assessment, the minor
presents as a child whose incapacity falls within the below average
range. His non-verbal abilities are adequately
developed whilst his
verbal skills are however underdeveloped. From the assessment results
he is a learner with a verbal learning
disability.
[10]
According to Me Möller, the minor struggles with the auditory
perception of verbal stimuli. He will
thus find it difficult to
interpret information presented verbally and to recall information.
He struggles significantly with his
ability to draw logical
conclusions or apply known principles. He further struggles to think
in the abstract and his innate ability
to do both calculations and
understand number concepts is poor.
[11]
According to Me Möller, the minor’s performance on tests
to assess his underlying scholastic skills
raises concern and reflect
the deficits noted in his profile. In addition, he demonstrates
considerable gaps in his skills matrix
in terms of language and
literacy, as well as numeracy. The minor is essentially illiterate,
he cannot read or write. According
to her, the minor is not able to
cope with the demands of mainstream schooling as is confirmed by his
limited academic progress.
He is better suited to be placed in a
special school with the focus on the development of vocational
skills. Non-verbal skills
is an area of strength and he is more
practically inclined.
[12]
According the RAF1 form, considered by Mr Möller, the minor was
involved in a pedestrian vehicle accident
on 16 May 2009 at
approximately 15h30 in Bloemfontein. It was specified that the minor
was run over by a speeding vehicle. He was
transported to the
Pelonomi Hospital in an unconscious condition where he was
hospitalised for approximately two months. He suffered
a serious head
injury and only regained consciousness after approximately a week.
The minor further sustained a left femur fracture
for which he
underwent an open reduction with internal fixation. He also sustained
bilateral tibia / fibula fractures and underwent
several debridement
and later open reductions with internal fixations and skin grafts.
[13]
The CT scan of the brain and cervical spine had no abnormalities and
it was confirmed that swelling to the
left side of the face and his
left eye was due to soft tissue injuries.
[14]    At
the time of the accident the minor was 2 years and 9 months and he
was not enrolled in an educational
institution.
[15]
According to Me Möller:
“
Based
on narrative, the Plaintiff was a vulnerable child prior to the
accident. He is mileu deprived, being raised in very poor

socio-economic circumstances and having been exposed to substance
abuse and violence in his environment. Based on the present
information, the Plaintiff does not appear to have sustained a
significant head injury which would result in cognitive deficits.
The
deficits identified in his past are probably indicative of his
pre-morbid functioning.
In a
child with pre-existing problems however, even a mild head injury can
result in more significant cognitive sequelae
(my emphasis).
The Plaintiff needs to be
assessed by a neurologist, neuropsychologist and psychiatrist to
determine the severity of the head injury
and the impact thereof on
his various spheres of functioning
”.
[16]    Me
Möller then further reports as follows:
“
Pre-accident:
Taking the family history, development and other background
information into account, the Plaintiff would have struggled
to
complete Grade 12 pre-accident. He needed educational support and
probably would have repeated two school years. He would have
entered
the open labour market 2 – 3 years later than his peers. He was
suited for a practical type of employment.
Post-accident: With
the identified learning difficulties present and injuries obtained
(sic) in the accident, it seems as if his
post-accident performance
and learning is exaggerated due to the accident. … The writer
is of the opinion that the accident
under discussion exaggerated
pre-existing learning vulnerabilities. His general functioning and
skills would have been better if
it was not for the injuries. His
level of education and career options are limited post-accident.”
[17]    Me
Möller further opines:
“
The
funds generated by this matter need to be protected and managed by a
trust to be available for the Plaintiff during his lifespan,
in order
to address issues as they arrive during the different developmental
stages. The latter is recommended as T[…] does
not have the
mathematical and emotional ability to manage money on his own. T[…]’s
functioning indicates that is vulnerable
to exploitation by others
.”
Joenita
Friedrichs (Occupational Therapist)
:
[18]    Me
Friedrichs assessed the minor during October 2017. She reports that
it appears that the minor sustained
a head injury, strabismus to the
left eye, left femur fracture and bilateral tibia and fibula
fractures. He received surgical and
conservative treatment. She
further confirms that the minor still presents with a left eye
strabismus, since the accident occurred
his hearing has decreased, he
experiences pain bilaterally in his ankles and he experiences
academic and psychosocial difficulties.
As far as loss of amenities
are concerned, she reported on the day of the evaluation no physical
difficulties were identified which
should limit the minor from
independently performing his activities of daily living or pursuing
any leisure activities.
[19]    As
far as the impact of the accident on the minor’s further
education is concerned, she reports that
the minor presented with low
muscle tone in his hands, arms, trunk and legs and with immature
nervous system. It is likely that
these difficulties were present
prior to the accident in question and that it could have been
exaggerated by the accident as the
minor was at a developmentally
vulnerable age when the accident occurred. Due to the low muscle
tone, it is likely that the minor
fatigues from sitting up right
against gravity and from holding and writing with a pencil. As he
fatigues, it is likely that his
already decreased work speed will
decrease even more making it more challenging to stay focused in
class and to keep up with the
work pace.
[20]    As
far as the impact of the accident on future work capacity and the
resultant residual physical capacity
is concerned, Me Friedrichs
reported that the minor’s future employment opportunities are
related to the level of education
he is able to obtain. She further
reports that the minor’s future employment opportunities appear
to be restricted to more
labour types of employment based on the
report of Me Möller who indicated that the minor “
would
need sympathetic employment under supervision
”. This of
course would limit his employment opportunities. Due to the
difficulties, Me Möller identified in her report
the minor is
not considered to be an equal competitor in the open labour market.
Should he be able to secure employment, the difficulties
Me Möller
identified would make him a vulnerable employee. She deferred to the
industrial psychologist for comment on the
potential future loss of
income the Plaintiff could suffer as his work opportunities are
restricted and he is considered to be
a vulnerable employee.
Dr
H E T van den Bout (Orthopaedic Surgeon)
:
[21]    Dr
Van den Bout assessed the minor during August 2017. According to him
the minor complains of squinting
and decreased vision of his left eye
since the accident. According to the minor’s uncle he struggles
to concentrate and he
is forgetful. He often forgets what he was
supposed to do, he often forgets what he has been told before and
forgets instructions
given to him as well. He is not doing well at
school. The minor complains of discomfort over both legs when walking
far and when
he is active. He is able to walk far, run and jump but
he tires quickly. As far as problems which were experienced at the
date
of the assessment by Mr Van den Bout, he referred to the
scarring of the minor on the left side of his face, on the right
cheek,
on the left distal thigh, on the left distal lower leg and
ancle, on the right knee as well as on the lower legs. He further
referred
to the strabismus of the left eye which is still present. He
commented that the minor has a normal gait and is able to run and
jump. The examination of both lower limbs, except for the scars, was
normal. The left hip and both knee and ankle joints appear
normal.
From an orthopaedic point of view there is no impairment anymore due
to the orthopaedic injuries sustained. Dr Van den
Bout also commented
that as far as the head injuries are concerned, a whole person
impairment should be obtained from a neurologist
or neurosurgeon.
[22]
From an orthopaedic point of view, the minor does not pass the 30%
rule of point of the RAF1 report. In his
opinion however, the minor
passes the narrative test for permanent serious disfigurement due to
the disfiguring scars sustained
due to the accident. He further
opines that the minor will possibly also pass the narrative test for
the head injuries sustained
which should be assessed by the relevant
experts.
[23]    As
far as general damages are concerned, Dr Van den Bout further
referred to the pain and suffering which
the minor already has
endured due to the injuries that he has sustained. Those injuries
sustained would have caused pain and suffering
of at least one week
severe and four weeks moderate. The operations done would have
increased his pain and suffering for a few
days. He went to theatre
three times. He further opined that the minor needs plastic surgery
to improve the appearance of the scars.
Pain and suffering associated
with such surgical procedure should be determined from a plastic
surgeon.
Dr
D Hoffmann (Plastic and Reconstructive Surgeon)
:
[24]    In
his report Dr Hoffmann dealt with the disfigurement of the minor and
in particular the scarring already
referred to. According to Dr
Hoffmann at the stage when he evaluated the minor, he was 12 years
old and multiple scars were troublesome
as it were very visible and
unsightly. According to the prognoses by Dr Hoffmann, the minor’s
scarring will always be visible
and is therefore permanent. Such
scarring cannot be improved by surgery as expressed by Dr Hoffmann.
Dr
I Hasrod (Ophthalmologist)
:
[25]    Dr
Hasrod examined the minor during December 2021. According to his
report, the minor complains of a squint
in both eyes since the
accident. The minor has no evidence of extra-ocular muscle paralysis
or cranial nerves from the accident.
The minor does have a mild
alternating esotropia which cannot be attributed to the accident.
Dr
D K Mutyaba (Neurosurgeon)
:
[26]    Dr
Mutyaba evaluated the minor during September 2018. As far as the
minor’s cognitive functions are
concerned, the following
observations were made during the assessment: Cognitive functions –
it was difficult to assess the
minor’s intelligence whereas he
did not speak much during the assessment (overall he came across as
below average intelligence
for a 12 year old), the minor’s
attention was not sustained for more than 5 minutes, he lost interest
towards the end and
he had a poor short-term memory.
[27]
The assessment by Dr Mutyaba shows that, in his opinion, in addition
to the minor’s multiple fractures,
the minor suffered “
in
the least a concussive brain injury
”. He further commented
that an MRI scan of the brain is required to assess the minor fully,
especially as the CT scan he
had with the accident was normal.
Looking at the mechanism of the injury, head trauma cannot be ruled
out.
Lindie
Grootboom (Neuropsychologist)
:
[28]    Me
Grootboom evaluated the minor during September 2018 as well. In her
report she refers to the reports and
assessments by Dr Van den Bout,
Me J Friedrichs, Me K Kotze (the Industrial Psychologist) and Me L
Möller.
[29]
She reports that the minor’s uncle described him as a
well-adjusted child that was playful and quick
to warm to others
prior to the accident. Cognitively, his pre-morbid functioning is
difficult to ascertain as he was only 2 years
and 9 months old at the
time of the accident. “
Considering factors such as his
family’s socio-economic status and the fact that none of them
completed their secondary schooling,
it is likely that his pre-morbid
cognitive functioning was compromised
”. Post-accident,
according to the minor’s uncle, he is naughty and defiant
following the accident, he is physically
aggressive and fights with
his peers and younger siblings and he displays rapid mood changes.
Cognitively, concentration-, memory-
and problem-solving difficulties
were reported. Physically, he seems to be suffering from pain and
occasional swollenness in both
legs and feet, dizziness, numbness in
his feet and painful and teary eyes. Me Grootboom agrees with the
opinion of Me Möller
in particular that: “
In a child
with pre-existing problems, even a mild head injury can result in
more significant cognitive sequelae”.
[30]    Me
Grootboom’s prognosis is the following:
“
In
conclusion, there are significantly emotional and neurocognitive
sequelae. Prognosis is guarded, as more than two years have
passed
since the accident and pre-morbid factors likely play a role in the
suggested sequelae”
.
Evaluation
of medical evidence
:
[31]    As
stated, there was no appearance on behalf of the Defendant during the
hearing. It needs to be mentioned
that Defendant has also filed a
number of notices in terms of Rule 36(1) and (2) in regards to
certain medical expert reports and
opinions. However, whereas none of
these reports had been presented to me in evidence, the evidence as
presented by the Plaintiff
therefore presently stands uncontested.
[32]
The first aspect which needs to be considered is the fact at the time
the accident occurred, the minor was
a mere approximately 2½
years old. As pointed out by some of the experts, because the minor
was not attending school at
that stage, it is difficult to compare
the minor’s pre-accident performance with his post-accident
performance. It is basically
impossible to do so.
[33]    In
the absence of such comparison, the Court therefore needs to consider
the opinions of the various experts
in particular in regards to the
head injury which relates to the minor’s educational
performance as well as his future potential
employment. In this
respect the evidence as per his report presented before Court, by the
neurosurgeon, Dr Mutyaba needs to be
considered. According to him the
CT scan of the brain at the time of the accident, did not show any
evidence of intracranially
injury. There was mere evidence of
extracranial soft tissue swelling. In his assessment, Dr Mutyaba
concluded that the minor suffered
in the least a concussive brain
injury. As indicated, he also recommended that an MRI scan of the
brain is required to assess the
minor fully especially, as he had
stated, the CT scan he had with the accident, was normal. It is
unfortunate that no evidence
has been placed before Court in regards
to such further MRI scan of the brain. It is therefore necessary that
the opinions of some
of the other experts need to be considered in
conjunction with the opinion of Dr Mutyaba.
[34]
According to the report of Me Möller, the minor does not appear
to have sustained a significant head
injury which would result in
cognitive deficits. The deficits, according to her, identified in his
profile, is probably indicative
of his pre-morbid functioning. She
however goes further by saying that in a child with pre-existing
problems, even a mild head
injury can result in more significant
cognitive
sequelae
. She then also went further to recommend
that the minor needed to be   assessed by a neurologist, a
neuropsychologist
and psychiatrist to determine the severity of the
head injury and the impact thereof on his various spheres of
functioning. Thereafter
as discussed, the minor was indeed assessed
by a neurosurgeon, Dr Mutyaba. As indicated, Dr Mutyaba only
concluded that the minor
at least suffered a concussive brain injury
during the accident.
[35]
Furthermore, the opinion of Me Möller is supported in the
finding by the neuropsychological assessment
by Lindie Grootboom, the
Clinical Psychologist, to the effect that she is in agreement with
the opinion of Me Möller in this
regard.
[36]    Me
Grootboom in her report also in effect came to the conclusion that
the pre-accident cognitive limitations
and educational potential of
the minor were exacerbated by the injuries and in particular the head
injury which the minor sustained
during the accident.
[37]
Mr
Marx
referred me to the matter of
Prins
v Road Accident Fund
[1]
where Lowe, J in the evaluation of the probabilities in respect of
certain expert evidence held as follows:
“
It
is useful to be reminded, again at the first principal level, that
the party at a civil trial whose version of the facts appears
to be
the more probable is entitled to judgment, the proof being on a
balance – preponderance – of probabilities.
Sufficient proof is
established when an inference can be drawn about fact in issue,
providing that the inference is consistent with
all the proven facts.
In civil matters, it suffices if the inference is the most probable
inference.
Further, once prime
facie proof of all evidence has been provided, that is proof calling
for an answer. This becomes conclusive
proof on the point in issue
usually if no evidence is produced to rebut. The fact of the matter
is, however, that the court must
at the end of the case review all
evidence and evaluate this according to the applicable primary
criterium.
It must be accepted,
of course, that where for example, a defendant fails to produce
evidence, this does not mean necessarily that
the opponent’s
version in the case, falls to be accepted. The acceptance of
plaintiff’s case depends on the strength
of plaintiff’s
case, being whether or not it is sufficient to cast an evidential
burden on the defendant to present evidence.”
[38]    In
view of the opinion of Dr Mutyaba coupled with that of Me Möller
and Me Grootboom, I hold that the
Plaintiff indeed provided
prima
facie
evidence which called for an answer from the Defendant. In
absence of such rebuttal evidence presented by the Defendant, I
therefore
hold that the present “cognitive sequelae” are
indeed as a result of the injuries and more in particular the head
injury
which the minor sustained during the accident.  The
Plaintiff has succeeded in proving on a balance of probabilities that
the minor had incurred a mild head injury in the  form of a
concussive brain injury which exaggerated the minor’s
pre-accident
cognitive limitations and educational potential.
[39]
The next step is to determine which damages should be awarded to the
Plaintiff.
Future
medical expenses
:
[40]
In his Heads of Argument, Mr
Marx
made the submission that there is no dispute to the fact that the
Plaintiff is entitled to an undertaking in terms of section 17(4)(a)

of the Road Accident Fund, 56 of 1996 (“
the
Act
”),
in respect of future medical, hospital and related expenses relating
to goods, services and accommodation required. Mr
Marx
’s
contention in this regard is correct. However, mention must be made
to the matter of
K
obo M v RAF
[2]
where the Full Bench of the Gauteng High Court held as follows:
“
The
result is that, once a plaintiff proves his claim as contemplated in
section 17(4)(a), it is entitled to claim an order catering
for a
direction to the fund to furnish such an undertaking and the court is
entitled to grant such an order. This will also apply
in instances
where orders by default, are sought.”
[41]
The Plaintiff has indeed shown that there are certain potential
future medical expenses which needs to be
covered by an undertaking
in terms of Section 17(4)(a) of the Act.
Loss
of earning capacity
:
[42]
According to the actuarial reports by Johan Sauer Actuarial
Consulting, the actuarial calculations took into
account
contingencies differential of 40% and 60% on the future pre-morbid
income.
[43]
The legal principles applicable to the assessment of contingencies
have been set out on numerous occasions
in the past in various case
law. It is by now accepted that in assessment of these kind of
damages, which cannot be assessed with
any amount of mathematical
accuracy, the Court has a wide discretion. In regards to the
Plaintiff’s claim for loss of earnings
and earning capacity as
well as the legal principles applicable thereto, the latter were
succinctly set out in
Southern
Insurance Association Ltd v Bailey NO
[3]
where Nicholas JA said as follows:
“
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 judges’ ‘gut feeling’
(to use the
words of appellant’s counsel) as to what is fair and reasonable
is nothing more than a blind guess.”
[44]    As
stated, the contingencies differentials already applied by the
actuaries in the present matter, are 40%
and 60% whereas the
Defendant made no submissions on loss or contingencies to the future
loss, I agree with the submission made
by Mr
Marx
in this
regard that given the uncertainties of the Plaintiff’s income,
this is fair and reasonable in the circumstances.
The amount to
which the Plaintiff is  entitled in regards to loss of income
and income capacity therefore amounts to
R1,050,917.00.
General
damages
:
[45]
The amount in regards to general damages still remains in dispute. In
a letter dated 28 September 2022 from
the claims officer on behalf of
the Road Accident Fund addressed to the Plaintiff’s attorneys,
it appears that the Defendant
formally accepts the claim for general
damages for the following reasons:
“
The
claimant sustained the following injuries: Left femur fracture, left
open tibia fracture, right open tibia fracture, and abrasions
and
swelling left side and head.
The RAF4 forms by Dr D
K Mtyaba, neurosurgeon and Dr H E T van den Bout, orthopaedic surgeon
are therefore accepted in terms of
Regulation 3(3)(c)
and (d) of the
Road Accident Fund Amendment Act 90 of 2005
.”
[46]
It is trite law that in assessing general damages to be awarded, a
court may pay regard to comparable cases.
In
Protea
Assurance Co Ltd v Lamb
[4]
,
Potgieter JA said as follows:
“
It
should be emphasized however that this process of comparison does not
take the form of meticulous examination of awards made
in other cases
in order to reflects the amount of compensation; nor should the
process be allowed so to dominate the enquiry as
to become a fetter
upon the court’s general discretion in such matters. Comparable
cases, when available, should rather be
used to afford some guidance,
in a general way, towards assisting the court in arriving at an award
which is not sustained out
of general accord with previous accords in
broadly similar cases, regard being had to all the factors which are
considered to be
relevant in the assessment of general damages.”
[47]    I
had been referred to numerous comparable authorities by Mr
Marx
in this regard. In determining the appropriate amount to be awarded
as general damages, I will only refer to those in which the

circumstances are the most similar as to those of the minor in the
present action.
[48]
In the matter of
Nsele
v Road Accident Fund
[5]
,
a 34 year old male was involved as a pedestrian in a motor vehicle
accident.  Nsele suffered a moderate to severe traumatic
brain
injury   that was   diffuse in nature. Nsele also
suffered a femur fracture and several lacerations on
his legs and
face facial area. Nsele was determined to suffer a WEI of 20%. Nsele
suffered severe headaches, has difficulty speaking
properly or
understanding, has retrograde amnesia, has withdrawn socially and
suffers from speech dysphasia. He remained unemployed
subsequent to
the accident. Nsele suffered a similar moderate traumatic brain
injury to the minor in the present matter and the
cognitive and
emotional
sequalae
from the injuries appear largely similar to the Plaintiff in this
matter. Both Nsele and the minor suffered an additional femur

fracture and visible lacerations. The minor was considerably younger
than Nsele at the time of the accident. While Nsele has been
deemed
unemployable in the open labour market, the Plaintiff’s future
career opportunities have been truncated by the injuries
sustained.
The Court found a fear and reasonable equitable amount for general
damages to be R1,100,000.00 which is equivalent to
R1,197,000.00 in
2023.
[49]
In the matter of
Kaduku
v Road Accident Fund
[6]
,
an adult male was involved as cyclist in a motor vehicle accident. He
lost consciousness at the accident scene and only regained
his
consciousness five days later. Kaduku sustained a left tibia and
fibula fracture and head injury with laceration of the scalp.
Kaduku
suffered a mild brain oedema and based on the evidence it appears
that he suffered a moderate severe diffuse brain injury.
Kaduku
experienced a loss of amenities of life and now is unable to walk
long distances and no longer runs. Kaduku further suffered
a similar
tibia / fibula injury as the minor in this matter. The minor’s
tibia / fibula injury was a bilateral fracture.
Kaduku also suffered
a similar additional head injury in the accident. The minor and
Kaduku experience a similar
sequelae
as a result of the injuries. The Court found a fair and reasonable
award for general damages to be R650,000.00 which is equivalent
to
R859,000.00 in 2023.
[50]
Mr
Marx
also referred me to the matter of
M
Louw NO obo NL Oliphant v The Road Accident Fund
[7]
,
where an amount of R2,100,000.00 was held to be a reasonable award
for general damages. If one compares the circumstances and
in
particular the injuries which the Plaintiff sustained in that matter,
it is distinguishable from the present that the Plaintiff
sustained a
serious spine injury and the patient had a very high probability to
have pain for the remainder of his life. Furthermore,
the patient has
the probability of more than 50% for surgery. The injuries do however
correspond with the injuries of the minor
in the present matter, in
that there was also a certain degree of permanent disfigurement due
to his scarring.
[51]
The pain and suffering endured by the minor in the present matter,
has been described by Dr Van den Bout
as being severe for a week and
then moderate for four weeks. One must also consider that the minor
was hospitalised for approximately
two months, post-operative plaster
was applied to both legs after the debridement and the minor had to
return to theatre to have
the plaster and other screws removed from
his legs. He also had to go to theatre three times. As far as the
loss of amenities is
concerned, it appears that although the minor is
currently able to run and walk, he tires quickly. In the
circumstances, I find
the amount of R1,450,000.00 to be a fair and
equitable amount in regards to general damages to be awarded.
[52]
According to the report by Me Möller, it appears that any funds
to be awarded to the minor needs to
be protected. A trust for the
benefit of the minor is envisaged by the Plaintiff and her
instructing attorney. For those purposes
a Deed of Trust had already
been signed for such trust to be established. Whereas it is
undisputed that such protection of the
funds are necessary for the
benefit of the minor, I agree that such trust should be established
for the benefit of the minor.
[53]    A
signed Deed of Trust apparently concluded between the donor being the
attorney acting on behalf of the
Plaintiff and the proposed trustee
dated 27 October 2023 had been also been placed before me to be
considered as part of the draft
order which was also placed before
me. Such Deed of Trust will be incorporated in the order of court.
[54]    As
far as costs is concerned, there is no reason why the Defendant
should not be held liable for the costs
of the action.
Order
:
Therefore, I make the
following order:
1.
The Defendant is ordered to pay the
Plaintiff’s attorneys in the sum of
R3,100,917.00
in respect of earning capacity and general damages, set out as
follows:
1.1
Loss of earning capacity
R1,050,917.00
1.2
General damages
R1,450,000.00
Total
R3,100,917.00
2.
Such amount to be paid into the trust
account of Plaintiff’s attorneys with the following details:
Account holder:
VZLR Incorporated
Branch:
Absa Business Bank
Hillcrest
Branch
code:
632005
Type
of account:
Trust account
Account
No:
3[…]
Ref:
MAT91567
3.
In the event of default on the above
payment, interest shall accrue on such outstanding amount at
11.75%
at the
mora
rate of 3.5% above the repo rate on the date of this order as per the
Prescribed Rate of Interest Act 55 of 1975
as amended) per annum
calculated from the due date as per the Road Accident Fund Act, until
the date of payment.
4.
Defendant is ordered to furnish the trustee
appointed in respect of
T[…]
M[...]
(the minor) an undertaking in
terms of
Section 17(4A)
of the
Road Accident Fund Act 56 of 1996
for
the costs of the future accommodation of the minor in a hospital or
nursing home or the treatment of or rendering of a service
or the
supplying of goods (of a medical and non-medical nature) to the minor
arising out of injuries sustained by him in the motor
vehicle
collision on 16 May 2009, in respect of which undertaking the
Defendant will be obliged to compensate the trustee in respect
of the
said costs after the costs have been incurred by either the Plaintiff
or by the trustee or by any party on behalf of the
minor and on proof
thereof.  The Defendant is ordered to pay the reasonable
traveling costs and accommodation for the minor
and his caretaker to
and from the location where he is to receive treatment covered under
the undertaking.
5.
Without derogating from the generality of
the aforesaid, the undertaking shall include the reasonable costs of
the formation of
an
inter vivos
trust for the benefit of the minor and the costs of administration of
the said trust by the trustee, including the costs attended
upon the
provision of security by the trustee, and auditing and/or accounting
services.
6.
A case manager be appointed as per the
discretion of the trustee of which the costs of such appointment, if
necessary, is covered
under
Section 17(4A)
undertaking.
7.
Defendant is to pay the Plaintiff’s
taxed or agreed party and party costs, as to and including the trial
dates of 24, 25 and
27 October 2023 and the date when this order is
made an order of court, for the instructing and corresponding
attorneys, which
costs shall include but not be limited to the
following:
7.1
The fees of counsel, including but not
limited to the preparation for trial, preparation, consideration and
completion of the Heads
of Argument accompanying this order and day
fees in respect of trial dates of 24, 25 and 27 October 2023;
7.2
The reasonable taxed for qualifying and
reservation fees for 24, 25 and 27 October 2023 of the following
experts:
Dr H E T van den Bout,
Dr D K Mutyaba,
L Grootboom,
L Roos,
Dr I Hasrod,
Dr D Hoffmann,
Me J Friedrichs,
Ms K Kotze,
J Sauer.
7.3
In event of default on the above payments,
interest shall accrue on such outstanding amount at the
mora
rate of 3.5% above the repo rate on the date of taxation / settlement
of the bill of costs, as per the
Prescribed Rate of Interest Act 55
of 1975
, as amended, per annum calculated from due date until date of
payment.
8.
The award to the Plaintiff shall be
protected by means of it being entrusted to a trust to be formed for
the benefit of the minor.
9.
Until such time as the trustee (Jeanne
Hellen Rabie), still to be appointed and the trust to be erected, is
able to take control
of the capital sum and to deal with same in
terms of this order, the Plaintiff’s attorney of record:
9.1
Shall be prohibited from dealing with the
capital in any other manner unless specifically authorised thereto by
the Court subject
to paragraphs 9.2 to 9.5 hereunder;
9.2
Is authorised to invest the capital amount
in an interest-bearing account with a registered banking institution
in terms of Section
86(4) of the Legal Practice Act, Act 28 of 2014
to the benefit of the minor and will only be allowed to pay such
monies over to
the trustee of the trust to be created in terms of
paragraph 5 of this order, once the Master of the High Court has
issued the
trustee with the necessary letters of authority;
9.3
Is further authorised to pay the costs to
set the security of this funds held in the trust, from the capital
received, to the relevant
insurer by the trustee of the trust to be
created, with costs, in turn must be refunded by the Defendant to the
Plaintiff;
9.4
From the date of receiving the capital
until the Master of the High Court has issued the trustee with the
necessary letters of authority,
is authorised an order to make
payment in the amount of R5000.00 per month, as well as such other
amounts that may be reasonably
indicated and/or required for the
well-being of the minor and in his interest which a diligent trustee
would have paid had such
trustee been appointed;
9.5
Is authorised to make payment of the attorney and own client cost,
being fees, disbursements and interest
on paid disbursements of the
Plaintiff’s attorneys.
10.
The nominated trustee is ordered to furnish
security to the satisfaction of the Master of the High Court.
11.
The nominated trustee shall attend to the
creation of an
inter vivos
trust in order to protect the awarded funds to the exclusive benefit
of the minor.
12.
That the trust to be erected for the
benefit of the minor on these papers, with powers which shall include
(but not limited to)
the powers as referred to in the Deed of Trust
dated 27 October 2023.
13.
The Defendant is ordered to pay the costs
in respect of the creation and fees of the administration of the said
trust, to be formed
in order to manage and administer the
compensation payable to the minor as referred to in paragraph 1 above
of this order, which
costs will include the fees of the trustee.
14.
The reasonable remuneration to which the
trustee will be entitled in respect of the execution of the trustee’s
official duties
is as follows:
14.1
An acceptance / establishment fee of 1%
(excluding VAT) on all capital introduced into the Trust;
14.2
An annual administration fee based on a
percentage of the value of the assets and administration, which
percentage will be subject
to the following sliding scale:
14.2.1 R0.00 –
R500,000.00:  1.5% (excluding VAT);
14.2.2 R500,000.00 –
R1,000,000.00:  1.25% (excluding VAT);
14.2.3 R1,000,000.00 and
more:  1% (excluding VAT).
14.3
The undertaking contemplated by Section
17(4)(a) of Act 56 of 1996 will be administered by the trustee and
the trustee or his/her
agent/attorney will be entitled to an
administration fee of 10% on all successful claims;
14.4
Travel expenses for purposes of attending
trust-related matters;
14.5
A termination fee of 2% (excluding VAT) on
the assets of the Trust at the time of termination / dissolution of
the Trust;
14.6
The parties recognise that the trustee, an
attorney, is a professional trustee and agree that the Trust shall
pay to the trustee
the trustee’s legal charges for only work
performed by the trustee beyond the ambit of the trustee’s
official duties,
in her capacity as an attorney acting on behalf of
the Trust.
J J F HEFER, AJ
Appearances
on behalf of the Plaintiff:
Adv
D J Marx
Instructed
by: VZLR Incorporated
c/o
Du Plooy Attorneys
Bloemfontein
On
behalf of the Defendant:
No
appearance.
[1]
CA 143/2017 [2018] ZAECGHC 20 (20 March 2018)
[2]
2023 (3) SA 125 (GP)
[3]
1984 (1) SA 98
(A) at 144C - D
[4]
1971 (1) SA 530
(A) at 535H – 536B
[5]
(70447/2019) [2021] ZAGPPHC 455 (13 July 2021)
[6]
(83408/2014) [2017] ZAGPPHC 432 (22 March 2017)
[7]
Unreported, case number 854/2017, Free State High Court, delivered
on 9 May 2022