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[2023] ZAFSHC 54
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Z obo Plaintiff v Road Accident Fund (3462/2017) [2023] ZAFSHC 54; [2023] 2 All SA 563 (FB) (22 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
Number: 3462/2017
In
the matter between:
MR
Z[...] obo Plaintiff
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
Link: 4[...] |
Claim No: 5[...]
CORAM:
BERRY, AJ
HEARD
ON:
08 FEBRUARY 2023
DELIVERED
ON:
This
judgment was handed down electronically by email to the parties'
representatives and by release to SAFLII. The date and time
for
hand-down is deemed to be 15h00 on 22 February 2023.
JUDGEMENT
BY:
BERRY,
AJ
JUDGEMENT
[1]
Plaintiff acts on behalf of her minor child to whom I shall refer to
as the Plaintiff.
[2]
The Plaintiff was walking home from day-care when she was hit by a
vehicle on 26 September
2016.
[3]
The Plaintiff was born on 04 August 2011, thus she was 5 years old at
the time of
the accident.
[4]
Summons was issued on 10 July 2017 and the matter came before Court
on 08 February
2023.
[5]
The Plaintiff is currently 12 years old.
[6]
The Defendant only accepted liability and tendered an undertaking for
future medical
treatment on the day of trial whilst the Plaintiff was
doli incapax
at the time of the accident.
[7]
This prevented the Plaintiff from receiving the required medical
treatment to rehabilitate
earlier.
[8]
The Defendant should have realised that the Plaintiff, being 5 years
old at the time
of the accident, was
doli incapax
when the
claim was instituted.
[9]
The Plaintiff could not receive treatment for 7 years of her young
life. Her chances
of rehabilitating have been negatively affected by
the failure of the Defendant.
[10]
On admission to hospital the Plaintiff had a Glasgow Coma Scale
(‘GCS’) score of
11/15.
[11]
The Plaintiff claims the following:
Past
Medical and Hospital
Expenses
R5 000.00
(This
claim was abandoned at the start of the trial.)
Estimated
Future Medical Treatment
R1 000 000.00
(Undertaking)
Future
Loss of Income
R2 388 394.00
General
Damages
R2 000 000.00
Total:
R5 393 394.00
[12]
The parties agreed that the expert reports of the Plaintiff can be
accepted as evidence and indicated
that they will argue contingencies
only.
[13]
The Plaintiff relied on the following expert reports:
Dr
LF Oelofse (Orthopaedic Surgeon)
Dr
APJ Botha (Specialist Physician)
Dr
JH Kruger (Neurosurgeon)
Lindelwa
Grootboom (Clinical Psychologist)
Lida
Moller (Educational Psychologist)
Anel
Booyse (Occupational Therapist)
Ben
Moodie (Industrial Psychologist)
J
Sauer (Actuary)
[14]
The Defendant did not submit any expert reports.
[15]
In
Prince v Road Accident Fund
(CA 143/2017) [2018] ZAECGHC 20
(20 March 2018) the Court held at paragraphs 55, 56 and 59 in the
evaluation of the probabilities
in respect of expert evidence.
“
[55]
Sufficient proof is established when an inference can be drawn about
the 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.
[56]
Further, once prima facie proof or 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 it. The
fact of the matter is, however,
that the Court must at the end of the case review all the evidence
and evaluate this according
to the applicable primary criterion.
[59]
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 probative
strength of Plaintiff’s case, being whether it is sufficient to
cast, an evidential burden
on the Defendant to present evidence.
”
FUTURE
MEDICAL EXPENSES
[16]
The Defendant tendered an undertaking in terms of Sec 17(4)(A) of the
Road Accident Fund, No.
56 of 1996 for future medical, hospital and
related expenses relating to goods, services and accommodation
required.
[17]
PLAINTIFF’S INJURIES
Dr
LF Oelofse (Orthopaedic Surgeon)
[18]
On admission to the hospital, the Plaintiff presented with the
following injuries:
-
Laceration on
the left side of her forehead.
-
Cervical spine
tenderness.
-
Tenderness on
palpation of the supra-pubic area.
-
Multiple
abrasions on the head, face, abdomen, and upper and lower limbs.
[19]
X-rays and CT scans were conducted, which revealed the following:
-
Traumatic
subarachnoid haemorrhage localised to the left temporal region.
-
Mild brain
oedema.
-
Bilateral lung
contusions and right middle lobe collapse.
-
Supra-condylar
fracture of the right elbow.
-
Grade three
(3) hepatic injury.
-
Grade four (4)
splenic injury.
-
Right renal
artery injury.
-
Bilateral
renal vein thrombosis.
-
Hemoperitoneum.
-
Bilateral
pelvic rami fractures.
[20]
The Plaintiff was admitted to the Intensive Care Unit (‘ICU’)
for observation.
[21]
The laceration on her forehead was cleaned and sutured. She was
provided with prescriptions for
analgesia and non-steroidal
anti-inflammatories (‘NSAIDS’).
[22]
the Plaintiff developed and was treated for sepsis during her time in
ICU. She was subsequently
discharged from the ICU to the normal ward
on an unknown date.
[23]
The Plaintiff underwent an open reduction and internal fixation of
the supra-condylar fracture
of the right elbow on 30 September 2016.
Post-operatively, the pain management and antibiotic therapy were
continued.
[24]
The Plaintiff was discharged and provided a prescription for
analgesics on 03 October 2016.
[25]
The Plaintiff was unable to attend her follow-up appointments as
scheduled.
[26]
The Plaintiff returned to school after a year of recuperating. Upon
her return, the Plaintiff
struggled to cope at school because of the
injuries sustained in the accident.
[27]
On discharge the Plaintiff experienced pain in her head/face, neck,
chest, abdomen, right elbow,
and pelvis.
[28]
After the accident the Plaintiff continued to suffer from pain in her
head, abdomen, and right
elbow. The Plaintiff experienced recurrent
headaches and still has difficulty urinating.
[29]
The Plaintiff struggled to carry her school bag, due to the pain in
her right elbow.
[30]
The abrasions and forehead laceration healed well with minimal
scarring.
[31]
The Plaintiff suffered from poor concentration, was often irritable
and withdrawn after the accident.
She occasionally experienced
nightmares and suffers from frequent abdominal pain and often has
difficulty urinating.
[32]
Dr Oelofse noted there was tenderness on palpation of the suprapubic
area.
[33]
Dr Oelofse diagnoses a head injury with chronic headaches,
behavioural changes, cognitive changes,
decreased hearing bilaterally
and psychological trauma. Dr Oelofse also diagnoses blunt abdominal
trauma with residual abdominal
pain and bladder problems.
[34]
Dr Oelofse defers to the relevant experts, however state that in his
opinion the Plaintiff has
suffered a head injury which satisfies the
narrative test.
[35]
The Plaintiff struggles to bend her elbow. Writing for prolonged
periods of time is increasingly
difficult.
[36]
The Plaintiff’s daily functioning is significantly impacted as
she is right hand dominant.
[37]
Dr Oelofse noted a surgical scar on the elbow and there is tenderness
upon palpation over
the instrumentation.
[38]
Dr Oelofse perused the radiological report of Burger Radiologist Inc
and noted the following:
-
Evidence of
previous significant supracondylar bony injury.
-
The lateral
supracondylar area is fixed with a surgical screw with screw
head
just above the epiphysis.
-
Prominent
medial pathology identified with medial modulation deformity
and bony
spurring at medial epicondyle in keeping with previous medial
epicondyle-growth plate injury.
-
There is
distortion of the right elbow joint due to the injury.
-
The growth
plate of the capitellum looks to be intact, but the growth plate
area
of trochlea demonstrates abnormal structure post injury.
[39]
Dr Oelofse diagnoses a significant supracondylar injury and fracture
of the right elbow with
painful instrumentation and disruption of the
medial or trochlea growth plates.
[40]
Dr Oelofse states that there is a possibility that the Plaintiff will
develop growth deformities
as she was eight (8) years old at the time
of examination.
[41]
Dr Oelofse states that the Plaintiff will need to take analgesics and
anti-inflammatories on
a regular basis and may experience serious
side effects.
[42]
Dr Oelofse states that the Plaintiff will require time off from
school.
[43]
In respect of the Plaintiff’s productivity, Dr Oelofse states
that the Plaintiff is right
hand dominant and sustained an injury to
her right elbow, as well as head and abdominal injuries.
[44]
Dr Oelofse opines that the injuries sustained had an impact on the
Plaintiff’s productivity
and amenities of life, and still do.
Dr
APJ Botha (Specialist Physician)
[45]
Dr Botha summarises that the Plaintiff experienced polytrauma
including head injury, facial abrasions
and lacerations, abrasions
and lacerations of both arms, fracture of the right elbow, bilateral
chest trauma, liver and splenic
injuries, bilateral kidney vascular
injuries and bilateral pelvic fractures.
[46]
Dr Botha assess each of the injuries as follows:
[47]
Head Injury: Based on the history and the medico-legal assessments,
there are evidently neurocognitive
and neuropsychological sequelae
that need to be addressed by the relevant experts.
[48]
Chest Trauma: Based on the clinical assessment she has recovered from
the bilateral lung contusion
and there is no evidence of significant
residual pulmonary dysfunction.
[49]
Liver and Splenic injuries: The liver injuries have resolved as
expected.
[50]
Kidney injuries: Renal vein thrombosis is a rare occurrence following
trauma and usually resolves
completely. The kidney impairment that
resulted from the polytrauma and crush injury has also recovered
fully. Dr Botha would nevertheless
recommend follow-up imaging of the
right kidney.
Dr
JH Kruger (Neurosurgeon)
[51]
The Plaintiff was unconscious immediately after the accident.
[52]
She has post-traumatic amnesia for events thirty minutes after the
accident.
[53]
She has full recollection of the accident. She has no retrograde
amnesia.
[54]
When she was attended to by paramedics on 15 September 2016, at
15:55, twenty-five (25) minutes
after the accident, the Glasgow Coma
Scale was recorded as 15/15.
[55]
At Pelonomi Provincial Hospital she was evaluated with radiological
investigations. She was given
dormicum prior to the examination.
After the Plaintiff was given dormicum (sedative) her Glasgow Coma
Scale deteriorated to 9/15.
[56]
A computed tomography (CT scan) of the brain done on the day of the
accident, revealed traumatic
subarachnoid haemorrhage.
[57]
The Plaintiff struggles with concentration in class and is
hyperactive.
[58]
Since the accident, the Plaintiff has struggled with symptoms of
post-traumatic stress disorder
(‘PTSD’). The Plaintiff
regularly gets nightmares where she relives the accident. The
Plaintiff regularly wets her
bed.
[59]
The above are signs of a mild to moderately severe traumatic brain
injury, with neurocognitive
and neuropsychological sequelae.
[60]
Because of the severity of the mild-moderately severe traumatic brain
injury and the traumatic
subarachnoid haemorrhage, the Plaintiff has
a 5% chance of developing epilepsy in future.
[61]
The Plaintiff currently complains of chronic, moderately severe
muscle tension headaches and
chronic, moderately severe pain in the
right elbow.
[62]
Dr Kruger makes the following outcome diagnosis:
-
Neurocognitive
sequelae, with lack of concentration.
-
Neuropsychological sequelae, with symptoms of post-traumatic stress
disorder.
-
Altered
educational ability.
-
Chronic muscle
tension headaches.
-
Chronic pain
in the right elbow.
-
Permanent,
surgical scarring over the right elbow.
-
Well-healed
chest trauma.
-
Well-healed
abdominal trauma.
[63]
From a neurosurgery perspective, the accident has had a negative
influence on her educational
ability. This will influence her ability
to work in the open labour market and her retirement age.
[64]
Dr Kruger states that accident has had a severe impact on her
physical, neurocognitive, psychological,
and educational wellbeing.
[65]
The injuries sustained qualify as serious injuries in terms of the
narrative test in that the
Plaintiff suffers:
-
Serious
long-term impairment or loss of a body function.
-
Permanent
serious disfigurement.
-
Severe
long-term mental or severe long-term behavioural disturbance or
disorder.
Lindelwa
Grootboom (Clinical Psychologist)
[66]
The Plaintiff performed well academically, with no complaints prior
to the accident.
[67]
Post-accident the following difficulties were noted.
-
The Plaintiff experiences abdominal
pain, stomach pain, and reduced hearing.
-
From a cognitive perspective, her
teachers note that she has poor memory, she forgets things easily
that was taught to her. It was
observed during the assessment that
she was a very "busy" child.
-
Double mental
tracking for visuo-motor tasks.
-
Simple visual
scanning.
-
Visuo-spatial
attention.
-
Complex visual
memory.
-
Psychomotor
and processing speed.
-
Divided
attention.
-
Non-verbal
abstract and social reasoning skills.
-
Higher-order
reasoning: response inhibition, pace control, self-monitoring
and
selective attention.
-
Psychologically, it was reported that
although she does not have any significant challenges, she is
irritable, she has physiological
reactions to being in a vehicle
(sweating and heart racing), and she is generally fearful of
vehicles.
[68]
Neuropsychological tests result reveal areas of intact functioning as
well as areas of deficits
in some of the domains assessed.
[69]
The following areas below found to be intact from the
neuropsychological assessment:
[70]
The areas below were deficits found from the neuropsychological
assessment:
-
Variable
auditory attention and concentration.
-
Poor auditory
working memory.
-
Poor simple visual memory.
-
Variable
immediate memory.
-
Defective rote
verbal learning.
-
Compromised
verbal recall.
-
Impaired
verbal recognition.
-
Poor narrative memory.
-
Developmental
delays in visual-motor-perception (2-year-delay).
-
Defective manual dexterity for fine motor skills on both hands.
-
Poor verbal
conceptual and abstract reasoning.
-
Impaired
verbal fluency and linguistic development.
-
Higher-order
reasoning: relative difficulties in planning and impulse control,
focused attention, and cognitive flexibility.
[71]
The Plaintiff presents with mild to more pronounced deficits, which
appear to relate to memory,
concentration, and attentional
capacities, in addition to visual-motor-perceptual challenges, manual
dexterity and higher-order
reasoning deficits.
[72]
Based on her developmental trajectories falling within normal ranges,
her family's education
and her reportedly performing well
academically prior to the accident, Grootboom concurs with the
Educational Psychologist that
the Plaintiff did not present with any
difficulties pre-accident.
[73]
Post-accident, Grootboom opines that the Plaintiff presents with many
deficits that will be a
barrier to learning, especially as the work
becomes more complex and abstract.
[74]
Grootboom agrees with the Educational Psychologist and the
Neurosurgeon that the accident caused
noted deficits, which will
likely be permanent.
[75]
She will struggle to obtain Matric, due to the work becoming more
difficult, abstract, and complex
and her vocational outcomes will be
directly impacted due to her cognitive challenges.
Lida
Moller (Educational Psychologist)
[76]
The Plaintiff possess a below average intellectual ability according
to full scale, verbal scale
and non-verbal scale.
[77]
The discrepancy of five points between her verbal and non-verbal
scales is not statistically
significant. The non-verbal scale gives
an indication of her ability to apply visual perceptions and visual
motor skills in a meaningful
way, whilst the verbal scale gives an
indication of a person’s ability to complete tasks where
language and verbal reasoning
are involved.
[78]
The Plaintiff has never been diagnosed with any severe illnesses, or
sustained injuries bar those
sustained in the accident. After the
accident the Plaintiff remains with pain in her right arm, complaints
of abdominal pains,
and diurnal and nocturnal enuresis.
[79]
The Plaintiff's parents both completed Grade twelve (12). Her father
works as a welder and her
mother worked on contract as a bricklayer
but is currently unemployed.
[80]
Lower educational levels, with reports of failures and learning
difficulties in the extended
family, were reported. The Plaintiff's
uncles who live with the family, are unemployed. Her grandmother is
employed as a domestic
worker. Her grandfather worked as a miner,
until he was medically retrenched due to epilepsy. This indicates the
Plaintiff's genetic
potential and reflects her didactic environment
and the work ethic to which she has been exposed.
[81]
The Plaintiff has always lived in an extended family setup with her
maternal family. She has
had limited contact with her parents. The
Plaintiff has not had contact with her father since 2016, and her
mother currently resides
in Limpopo.
[82]
The Plaintiff's maternal grandparents act as her parental figures.
Relationships within the family
are described as positive. No welfare
problems such as violence, substance abuse or addiction were
reported.
[83]
The family's socioeconomic position is poor. The Plaintiff was
still a pre-schooler when
she was involved in the accident.
[84]
She commenced her formal schooling at the more mature age of seven
years in 2018, when she entered
Grade one at the N[...] Primary
School. A copy of her school report shows good academic progress, and
her grandmother states that
she has not received any complaints
regarding the Plaintiff's behaviour.
[85]
The results of the psycho-educational assessment indicate that the
Plaintiff's intellectual ability
falls in the below average to lower
average range. She presents with numerous barriers to her learning.
[86]
Although the Plaintiff's receptive language is well developed, her
comprehension and interpretation
of language is poor, which makes it
more challenging for her to express herself.
[87]
She struggles to draw logical conclusions and apply principles. Poor
memory and problematic auditory
perception make it difficult for the
Plaintiff to recall information that she hears.
[88]
The Plaintiff's visual motor integration and visual perceptual skills
are below par, and she
struggles with visual recognition and
identification, or distinguishing between essential and non-essential
details. The Plaintiff
is thus challenged in her ability to make
sense of information presented aurally or visually.
[89]
Her learning and working capacity are significantly undermined by a
lack of attention and concentration,
and poor motivation. Her
short-term memory is reduced, and she struggles to access her working
memory.
[90]
The deficits identified in her profile were reflected in her
performance on tests to assess her
developing scholastic skills.
[91]
The Plaintiff cannot read yet, with an obvious limited comprehension
of phonics.
[92]
Her handwriting is clumsy, with deterioration noted in her writing.
[93]
The Plaintiff has limited comprehension of mathematical functions and
is only able to do addition
using concrete reference.
[94]
Her performance is not congruent with her high academic achievements
as reflected in her school
progress report, and sheds doubt on the
quality of learning and assessment criteria in her school.
[95]
The Plaintiff has not commenced her formal schooling at the time of
the accident; thus it is
not possible to quantitatively assess her
pre- and post-morbid academic functioning.
[96]
The Plaintiff is currently seemingly coping in school with the
challenges of grade one, but according
to the psychometric tests,
this is not a true image of her scholastic skills and development.
[97]
She is a milieu-deprived individual, who lives in poor socio-economic
circumstances and who has
limited academic support.
[98]
In a vulnerable individual, the effects of even a mild head injury
are exacerbated.
[99]
Behavioural problems as noted during the assessment and obvious
interest scatter, indicates the
possibility of more significant brain
damage than might be considered probable, considering the type of
injury sustained in the
accident.
[100]
The true impact of her serious injuries will be more prominent at a
later stage in her life when she will have
to cope with more abstract
work and also a higher workload.
[101]
Pre-accident: Taking the family history in account, the current
school system, and her intellectual ability into
account the
Plaintiff would have been able to complete at least grade twelve (12)
pre-accident. She would have been able to find
employment in the open
labour market.
[102]
Post-accident: With the identified learning difficulties present
(arithmetic speed, reading and Visual Motor Integration,
Visual- and
Auditory Discrimination) and various serious injuries obtained in the
accident (including a head injury), her post
accident performance and
learning is negatively influenced due to the accident.
[103]
As she progresses in school, the impact of her injuries will become
more prominent. She will struggle to obtain
matric, and if she indeed
manages to complete matric in the current school environment, it will
be with lower marks and relevant
learning support and extra time to
complete exams.
[104]
She would benefit from learning support but would perform lower than
she would have pre-accident.
Anel
Booyse (Occupational Therapist)
[105]
The Plaintiff presented with inadequate feelings, insecurity, social
isolation, withdrawal tendencies, some hyperactive
features as well
as situational anxiety, irritability, self-esteem, and anger.
[106]
Poor self-esteem and emotional challenges in early life can manifest
later in more significant difficulties including
Major Depressive
Disorder.
[107]
The emotional challenges appear to be a direct result of her
involvement in the accident and the aftermath thereof.
[108]
Booyse is of the opinion that the Plaintiff will benefit from group
therapy as a teenager to assist her with acquiring
appropriate social
skills.
LOSS
OF AMENITIES
[109]
The Plaintiff’s grandmother noted that the Plaintiff frequently
fight with friends.
[110]
The Plaintiff does not currently participate in school sports as she
is still in the foundation phase. Her right
elbow injury will hamper
her from participating in ball sports.
[111]
If the Plaintiff’s psycho-emotional difficulties are not
addressed it will impact on her interaction with
her peers within
sports teams.
[112]
Should the symptoms in her right elbow become more severe, she may
find dressing tasks as well as personal care
tasks e.g. doing her
hair difficult to perform.
[113]
The Plaintiff was at a vulnerable age at the time of the accident.
[114]
Her attention difficulties are likely to impact greatly on her school
performance and would become more significant
in higher grades.
[115]
Considering her difficulties, she may find placement in a remedial
school beneficial as all therapies can be accessed
within the school
[116]
The Plaintiff need to receive, Speech Therapy, Occupational Therapy,
Psychotherapy and Remedial Therapy.
[117]
It is of utmost importance that all intervention starts as soon as
possible to benefit the Plaintiff optimally.
[118]
If the Plaintiff does not receive the recommended intervention, it
could impact on her progress in school, especially
higher grades
where workload and pace of work becomes greater. It may lead to the
Plaintiff not being able to complete her class
work or test within
given time frames, impacting on her marks.
[119]
The Plaintiff's right elbow injury should be monitored closely, and
treatment should be adhered to. Should the
Plaintiff remain
symptomatic, or her symptoms increase it may negatively impact on her
work pace and accuracy within the classroom.
Bilateral tasks will
also be impacted.
[120]
The Plaintiff may find amanuensis helpful in higher grades if she
does not meet the time standards, due to the
injury sustained to her
right elbow or due to remedial difficulties.
RESIDUAL
WORK CAPACITY
[121]
From a neurocognitive point of view the Plaintiff does not receive
remedial intervention and recommended treatment,
her career options
will be impacted.
[122]
Research regarding Cognitive impairment indicate that two out of
every three survivors of severe TBI have cognitive
deficits that
affect their everyday mental wellbeing. These include:
-
Lapses in memory.
-
Diminished attention span and awareness.
-
Trouble concentrating.
-
Altered overall intelligence.
-
Slow or impaired decision making.
-
Lack of motivation.
-
Displaying poor judgment.
-
Lack of impulse control.
[123]
These concerns will impact dramatically on Plaintiff's ongoing
treatment and ability to return to normal function.
[124]
If the Plaintiff presents with psycho-social difficulties on entering
the open labour market, it could impact
on relationships with her
peers and her managers. She may have inappropriate anger outburst or
may find it difficult to be assertive
within the workplace.
THE
PLAINTIFF’S LOSS OF INCOME
Pre-accident
income potential:
[125]
The Plaintiff was only five years of age when the accident under
review occurred.
[126]
Moodie was placed in possession of the report from the Educational
Psychologist where she opined that when considering
the current
school system and the Plaintiff’s intellectual ability into
account, the Plaintiff would have been able to complete
at least
grade twelve. She would have been able to find employment in the open
labour market.
[127]
Noting the above opinion, Moodie is of the opinion that but for the
accident, the Plaintiff after completion of
school, due to the
current unemployment rate, would have only been able to secure
permanent employment one to two years after completing
school.
[128]
In the interim, while the Plaintiff was searching for a permanent
position, the Plaintiff would have been able
to secure piece jobs,
earning between approximately R1 500.00 to R2 500.00 per month, or
R150.00 to R200.00 per day, a couple of
days per week.
[129]
The Plaintiff would have continued working in this capacity for at
least one to two years before entering the
open labour market earning
salaries between R3 000.00 to R5 000.00 per month.
[130]
The Plaintiff would have continued working in such a capacity for a
period of between four to five years.
[131]
Should the Plaintiff have been fortunate to obtain work in the
corporate sector, the Plaintiff would have been
able to enter the
open labour market on Paterson level A1 (lower quartile), earning a
basic salary of R6 400.00 per month plus
a possible 13
th
cheque for approximately two to three years, before the Plaintiff
would have been able to negotiate additional fringe benefits,
earning
on par with the stated total guaranteed packages.
[132]
One can expect that the Plaintiff would, like any other matriculant,
have been able to progress to the median
of Paterson level B3/B4
before reaching her career ceiling at age forty-five, where after
only annual inflationary increases would
have applied until reaching
retirement age.
[133]
But for the accident the Plaintiff would have been able to continue
working until the normal retirement age of
sixty-five.
Paterson-
Grading
Basic
Monthly Salary
Annual
Guaranteed Package
Lower
Quartile
Median
Quartile
Upper
Quartile
Lower
Quartile
Median
Quartile
Upper
Quartile
A1
6800
7800
9200
99
600
115
500
135
900
A2
7900
9000
10400
119
000
135
300
160
600
A3
9100
10500
12200
137
200
158
500
189
000
B1
10300
12200
14500
154
400
185
600
221
600
B2
12500
14100
16800
185
300
217
400
254
000
B3
14200
16400
19000
221
100
254
700
295
900
B4
16200
19000
22200
260
700
298
700
344
200
Post-accident
income potential:
[134]
The accident occurred on 15 September 2016. She did not return to the
creche for the remainder of the year.
[135]
She started Grade R in 2017 in the N[...] Primary School in B[...].
During a telephonic follow-up consultation
with the Plaintiff's
grandmother on 24 January 2020, she confirmed that the Plaintiff
passed Grade two (2) at the end of 2019 and
is currently (2020) a
Grade three (3) scholar.
[136]
The Educational Psychologist opined that with the identified learning
difficulties present (arithmetic speed,
reading and Visual Motor
Integration, Visual and Auditory Discrimination) and various serious
injuries obtained in the accident
(including a head injury), her post
accident performance and learning is negatively influenced due to the
accident.
[137]
She will struggle to obtain matric and if she indeed manages complete
matric in the current school environment,
it will be with lower marks
and relevant learning support and extra time to complete exams.
[138]
It is likely that the Plaintiff will leave school without a Grade
twelve level of education or even on a lower
level of education.
[139]
The Educational Psychologist opined that one of the following
scenarios would be applicable.
Scenario
1 - Grade 10/11:
[140]
In general, it is accepted that individuals that hold a below Grade
twelve level of school qualification enter
the open labour market in
an unskilled capacity, progressing with time and experience to the
semiskilled category.
[141]
If the Plaintiff enter the open labour market directly after leaving
school, then one can expect, that due to
the current unemployment
rate, that she would have only been able to secure permanent
employment one to two years after completing
school.
[142]
In the interim, while she was searching for a permanent position, she
would have been able to secure piece jobs,
earning approximately R1
500.00 to R2 500.00 per month, or between R150.00 to R200.00 per day,
a couple of days per week.
[143]
If the Plaintiff was able to obtain a job within a non-corporate
environment, she would thereafter have progressed
in a straight line,
reaching the pinnacle of her career on par with the upper quartile of
the unskilled sector i.e., R82 000.00
per annum, by age
forty-five.
[144]
Robert Koch indicates the following annual salaries in his Quantum
Yearbook 2019: Unskilled workers: R20 700.00
to R36 300.00
to R82 000.00 per annum.
[145]
An income of R82 000.00 per annum divided by twelve months equal
to R6 833.00 per month or R1 578.00
per week or R315.00 per
day (working five days per week).
[146]
The daily wage of R315.00 by the age of between forty to forty-five
is not an unrealistic figure taking note that
now already in 2019,
employers remunerate their Gardeners/Domestic Workers on par with
between R220.00 to R250.00 per day.
[147]
Moodie is of the opinion that, in this scenario, the amount of
R82 000.00 per annum can be regarded as her
pre-accident income
potential, receiving annual inflationary increases until retirement
age.
Scenario
2 – Lower-Level Grade 12:
[148]
If the Plaintiff opted to seek employment after completing Grade
twelve and due to the high unemployment rate
amongst school leavers
in the open labour market, the Plaintiff would have, in all
probability, sought work in the informal sector
of the labour market,
working in a semi-skilled capacity.
[149]
In this scenario, it is not unreasonable to conclude that if the
Plaintiff decided to enter the open labour market
directly after
leaving school, that due to the current unemployment rate, the
Plaintiff would have only been able to secure permanent
employment
one to two years after completing school.
[150]
In the interim, while the Plaintiff was searching for a permanent
position, the Plaintiff would have been able
to secure piece jobs,
earning approximately R1 500.00 to R2 500.00 per month, or between
R150.00 to R200.00 per day, a couple of
days per week.
[151]
If the Plaintiff was able to obtain employment within a non-corporate
environment, the Plaintiff would thereafter
have progressed in a
straight line, reaching the pinnacle of her career between the
average of the median and upper quartile of
the semi-skilled category
of work i.e. R130 000.00 per annum, by the age of forty-five.
[152]
As per Robert Koch's Quantum Yearbook of 2019, these individuals earn
as follows: R36 300.00 to R82 000.00
to R178 000.00
per annum. Once the Plaintiff reached this level, the Plaintiff would
have only received annual inflationary
increases until retirement
age.
[153]
The above progression will probably not be achievable.
[154]
Noting the opinion expressed by the Educational Psychologist, the
Plaintiff will have to resort manual labour.
[155]
When note is taken of the opinion of the Clinical Psychologist,
coupled with the opinion expressed by the Occupational
Therapist,
Moodie is of the opinion that her cognitive and
psychological/emotional impairments will influence her post-accident
employability as well as her ability to compete fairly for
promotional possibilities.
THE
ACTUARIAL CALCULATION
[156]
The Plaintiff appointed Johan Sauer Actuarial Consulting who
calculated the following the Plaintiff’s loss
of income based
on the Industrial Psychologist report and the above-mentioned
scenario.
[157]
A 5% contingency deduction was applied to the past loss and a 20%
contingency deduction was applied to the future
income pre-morbid.
[158]
Post-morbid: Lower-level Grade 10/11.
Pre-morbid
NQF 4
Had
the
accident
not
Happened
Now
that the
accident
has
happened
Difference:
Loss
Future
Earnings
Less
contingency
deductions
(25% / 40%)
4 200 214
1
050 054
1
619 628
647
851
Total
loss of future earnings
3
150 160
971
777
2
178 383
Minus
effect of RAF cap (given the above contingency values apply) R 0.00
Total
loss of earnings after RAF cap
R 2 178 383
[159]
Post-morbid: Lower-level Grade 12.
Pre-morbid
NQF 4
Had
the
Accident
not
happened
Now
that the
accident
has
happened
Difference:
Loss
Future
Earnings
Less
contingency
deductions
(25% / 40%)
4 200 214
1
050 054
2 058 610
-823
444
Total
loss of future
earnings
3
150 160
1 235 166
1
916 194
Minus
effect of RAF cap (given the above contingency values apply) R 0.00
Total
loss of earnings after RAF
cap
R 1 916 194
Post-morbid:
Lower-level Grade 12
Earnings
had the accident not happened (pre-morbid)
[160]
According to the report of Moodie (Industrial Psychologist), dated 26
February 2020 for the Plaintiff until after
completing Grade 12,
therefore until 01 January 2030.
[161]
From then on, she would have been able to earn, performing piece
jobs, R2 000.00 per month in 2020/04/01
monetary terms.
[162]
Thus, an annual income of R24 000.00 2020 monetary terms, or
R27 534.00 in current monetary terms.
[163]
She would have earned this income with inflationary increases for one
and a half to two years, therefore until
01 July 2031, when she would
have secured permanent employment.
[164]
Thereafter she would have been able to earn a salary of R4 000.00
per month on 01 April 2020 monetary terms.
Thus, an annual income of
R48 000.00 which is R55 068.00 in current monetary terms.
[165]
This income will increase with linear increases until age 45,
therefore until 04 August 2056.
[166]
Thereafter she would have been able to earn a total package, equal to
the median B3/B4 Paterson level, of R330 500.00
per annum
(Quantum Yearbook 2023 figure) in current monetary terms.
[167]
10% Of this income is assumed to consist of non-taxable fringe
benefits. This income would have increased with
inflation until
retirement at age 65.
Earnings
now that the accident has happened (post-morbid)
[168]
No income is projected for the Plaintiff until after completing Grade
12, therefore until 01 January 2030.
[169]
From then she will be able to earn, performing piece jobs, of
R2 000.00 per month in 2020/04/01 monetary
terms. Thus, an
annual income of R24 000.00 in 2020 monetary terms, which is
R27 534.00 in current monetary terms.
[170]
This income will increase until the age of 45, therefore until 04
August 2056, when she will likely reach her
career ceiling.
[171]
Thereafter she will be able to earn an income, equivalent to the
average of the median/upper quartile income of
semi-skilled workers,
of R142 000.00 (Quantum Yearbook 2023 figure) in current
monetary terms.
[172]
This income will increase with inflationary until retirement at age
65.
[173]
Past escalation rate of 4.92% per annum. (Average CPI over past
period) and future escalation rate: 4.6% per annum
were used.
[174]
Past earnings are taxed at the tax rates applicable in the relevant
financial year.
[175]
Future earnings are taxed at the latest available tax rates.
[176]
A rate of 7.22% per annum. interest was used to discount future
earnings.
[177]
Therefore, the actuary assumed a real discount rate of 2.5% per
annum.
[178]
No interest was calculated on past losses.
[179]
Mortality was deducted according to life table 2 published in The
Quantum Yearbook of Robert Koch.
RAF
Amendment Act (Act 19 of 2005)
[180]
The actuary applied the value of the RAF cap published just before
the date of the accident without inflationary
increases thereon, to
the annualised loss of income in each year, after income tax,
mortality, discounting general contingency
deductions. This is in
line with the
RAF Amendment Act
(Act 19 of 2005) and the
precedent set in
Sweatman v RAF
(WCC) (unreported 17258/11,
2013/12/03) subsequently confirmed by the SCA.
Contingencies
[181]
0% Deduction for past losses (pre-morbid) and 0% deduction for past
losses (post-morbid).
[182]
25% Deduction for future losses (pre-morbid) (approximately 0.5% per
future working year).
[183]
40% Deduction for future losses (post-morbid). A higher future
post-morbid contingency deduction is applied to
allow for increased
employment vulnerability, labour incapacity, uncertainty, possible
long periods of unemployment and early retirement.
APPROACH
TO CONTINGENCIES
[184]
The actuarial calculations applied contingencies of 5% on the Past
loss of income and 20% on the Future pre-morbid
income.
[185
] In
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) at [114] at 114C-D, Nicholas JA said:
“
In
a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the
first
approach offers any advantage over the second. 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 Judge’s “gut feeling” (to use the words of
appellant’s counsel) as to what is fair and
reasonable is
nothing more than a blind guess. (cf
Goldie
v City Council of Johannesburg
1948
(2) SA 913
(W) at 920.)”.
[186]
The Defendant accepted the Plaintiff actuarial calculation of
potential earnings but submitted that a 25% contingency
should be
applied pre-morbid and 35% post-morbid. However, no basis was
provided for this submission.
[187]
Given the uncertainties of the Plaintiff’s income, the
contingencies applied by the actuary is accepted.
This brings the
loss off earnings to R1 988 373.00.
GENERAL
DAMAGES
[188]
The Plaintiff qualifies for general damages as per Drs Oelofse &
Kruger, who concluded, from an Orthopaedic
Surgeon and Neurosurgeon’s
perspective, that the Plaintiff meet the requirements for “Serious
long-term impairment
or loss of body function, thus she qualifies in
terms of the Narrative Test.
[189]
In
Protea Assurance Co. Limited v
Lamb
1971 (1) SA 530
(A) at
535H-536B the Court held:
“
...
[T]he Court may have regard to comparable cases. It should be
emphasised, however, that this process of comparison does not
take
the form of a meticulous examination of awards made in other cases to
fix 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
substantially out of general accord with previous awards in broadly
similar cases, regard being had to all the
factors which are
considered to be relevant in the assessment of general damages. At
the same time, it may be permissible, in an
appropriate case, to test
any assessment arrived at upon this basis by reference to the general
pattern of previous awards in cases
where the injuries and their
sequelae may have been either more serious or less than those in the
case under consideration.”
[190]
In
Minister of Safety and Security v Seymour
2006 (6) SA 320
(SCA) pp. 325-326 the Court held:
“
The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty. The facts
of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to what other
courts
have considered to be appropriate, but they have no higher value than
that ...”
[191]
The Plaintiff suffered serious and debilitating physical and
cognitive deficits.
[192]
This is exacerbated by the fact that the Defendant should have
accepted liability and issued an undertaking when
the claim was
submitted, as the Plaintiff was 5 years old at the time of the
accident and no blame could be apportioned to her,
as she was
doli
incapax
.
Authority
on Humerus Elbow Fractures:
[193]
In
Khumalo v Road Accident Fund (
A5020/05)
[2006] ZAGPHC 26
(24 March 2006) a forty-one (41) year old female was involved in a
motor vehicle accident. Khumalo suffered a transient concussion,
left
midshaft humerus fracture, a commuted left upper tibia fracture and a
fracture of the left tibia neck.
[194]
The Court awarded R400 000.00 compensation for general damages, which
is equivalent to R1 016 000.00
in 2023.
[195]
The Plaintiff suffered a similar humerus fracture injury as Khumalo
but at the supracondylar of the humerus. The
Plaintiff suffered
additional pubic rami fractures.
[196]
In
Mokwena v Road Accident Fund
(75931/2017) [2020] ZAGPPHC
320 (3 July 2020) a thirty-seven (37) year old male was involved as a
pedestrian in a motor vehicle
accident. Mokwena suffered a compound
fracture of the right humerus, a left closed fibula fracture, a head
injury, and a soft tissue
neck injury.
[197]
The Court awarded R850 000.00, which is equivalent to R970 000.00
in 2023.
[198]
In
Makwakwa v Road Accident Fund (
6756/2019) [2021] ZAGPJHC
139 (26 July 2021) a twenty-six (26) year old male was involved as a
passenger in a motor vehicle accident.
Makwakwa suffered a fracture
of the left humerus and lacerations to the right wrist. Makwakwa
suffered negative sequelae as a result
of the injuries, namely a
weakened arm and mild depression.
[199]
The Court awarded R480 000.00 for general damages, which is
equivalent to R522 000.00 in 2023.
Both
the Plaintiff and Makwakwa presented with similar negative sequelae
because of the accident, with the true extent of the Plaintiff’s
sequelae only to manifest later in life.
Authority
on Mild to Moderately Severe Traumatic Brain Injury:
[200]
In
Kruger v Road Accident Fund
(27383/2009) [2022] ZAGPPHC 73
(14 February 2022) the Plaintiff suffered a skull fracture which
resulted in a moderate to severe
traumatic brain injury resulting in
deficits in his neuropsychiatric, neuro-behavioural and
neuro-psychological functions. He also
suffered injuries to his
cervical and lumbar spine.
Kruger
experienced drastic
personality changes as he was aggressive and anti-social.
[201]
The Court awarded R1 400 000.00 for general damages, which
is equivalent to R1 474 000.00
in 2023.
[202]
In Kruger a moderate to severe traumatic brain injury was diagnosed.
Kruger suffered additional spinal injuries
whereas the Plaintiff
suffered additional pubic rami and humerus fractures.
[203]
In
Nsele v Road Accident Fund
(70447/2019) [2021] ZAGPPHC 455
(13 July 2021) a thirty-four (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
facial area.
[204]
The Court awarded general damages of R1 100 000.00, which is
equivalent to R1 197 000.00 in 2023.
[205]
In
Claassens
v Road Accident Fund
(35716/2017) [2019]
ZAGPPHC 471 (24 July 2019) a thirty-four (34) year old male was
involved in a motor vehicle collision. He suffered
several severe
injuries including a moderate to severe traumatic brain injury, rib
fractures, lung contusions and lung infection
developed in ICU.
Claassens suffered from chronic headaches, traumatic brain injury
sequelae with loss of short-term memory, chronic
chest pain, severe
surgical scarring, chronic lumbar backache, and an altered ability to
work in the open labour market.
[206]
The Court awarded general damages of R1 200 000.00, which is
equivalent to R1 412 000.00 in 2023.
Authority
on Pubic Rami Fractures:
[207]
In
Kgopyane v Road Accident Fund
(43235/2014) [2016] ZAGPPHC
872 (22 September 2016) a twenty-two (22) year old female was
involved, as a passenger, in a motor vehicle
accident. She sustained
a pelvic fracture, a fracture of the right superior rami as well as a
left inferior ramus fracture, a chest
contusion, injury to her right
foot and soft tissue injuries to her neck and shoulder.
[208]
The Court awarded R600 000.00 for general damages, which equates
to R805 000.00 in 2023.
[209]
In
Masemola v Road Accident Fund
(53419/2014) [2017] ZAGPPHC
1202 (3 April 2017) a male was involved, as a pedestrian, in a motor
vehicle accident. Masemola sustained
a left compound tibia fracture,
a closed injury of the pelvis, fracture of the right acetabulum,
fracture of the right pubic rami,
injury to the left knee and an
unspecified soft tissue injury of the neck.
[210]
The Court awarded R850 000.00 for general damages, which equates
to R1 102 000.00 in 2023.
[211]
In
M M v Road Accident Fund
(4119/2015)
[2019] ZAFSHC 5
(4
March 2019) a thirty-five (35) year old female was involved, as a
driver, in a motor vehicle accident. M sustained a fracture
right
pubic rami and ischium, a fractured right tibia and fibula, a
compression wedge fracture of the L2 – L4 as well as
a moderate
traumatic brain injury.
[212]
The Court awarded R850 000.00 for general damages, which is
equivalent to R1 014 000.00 in 2023.
Authority
on Scarring:
[213]
In
Mashigo v Road Accident Fund
(2120/2014) [2018] ZAGPPHC 539
(13 June 2018) a female was involved in a motor vehicle accident. She
suffered severe scarring to
her breasts and arms. In addition to this
Mashigo also suffered soft tissue injury to the left wrist and knee.
The
Court awarded R450 000.00 for general damages, which is
equivalent to R552 000.00 in 2023.
[214]
In
Redelinghuis v Parity Insurance 1963
, a four (4) year old
girl suffered a lacerated wound on her forehead and on the bridge of
her nose and below her right eye in a
motor vehicle accident.
She suffered some disfigurement of the forehead, on the nose and the
right cheek.
[215]
The Court awarded R760.00 for general damages, which is equivalent to
R160 000.00 in 2023.
[216]
In
Davies v Minister of Post and Telegrams
1948 (1) QOD 297
ED, an eighteen (18) year old girl suffered severe cuts on her
forehead passing through the eyebrow and only minor
further bodily
injuries. She presented with breaks which caused her hair not to grow
where the scarring was, necessitating a skin
grafting operation. She
also suffered from contraction of her skin that prevented full
closure of the right eyelid.
[217]
The Court awarded R1 200.00 for general damages, which is equivalent
to R220 000.00 in 2023.
[218]
The Defendant referred the Court to several authorities with similar
injuries than the ones discussed above, where
lower amounts were
awarded for general damages.
Howard
v
RAF
[2011] LNQD 8 (GNP) – R350 000.00
Jenneker
NO V Marine & Trade Insurance Co Ltd
[1978] LNQD 11(SE) -R357 400.00.
Schutte
v RAF
[2019]
LNQD 4 (NCK) – R367 600.00.
Begley
v General Accident Insurance Company of Supplementary Affidavit Ltd
[1995] LNQD 4(W) – R371 400.00.
M
v RAF
[2019]
LNQD 56 (GP). – R420.000.00
Pietersen
(obo J ST I) v RAF
[2011]
LNQD 20 GSJ – R1 193 400.00
[219]
Taking all the injuries, the consequences the Plaintiff suffer in
future as well as the delay in receiving treatment
and unnecessary
suffering the Plaintiff had to endure for seven years, because the
Defendant did not issue an undertaking when
the claim was lodged the
amount of R1 600 000.00 is awarded for general damages.
ORDER
[220]
The following order is made:
1.
The Defendant is liable to pay
100% (one hundred percent)
of
the Plaintiff’s proven or agreed damages.
2.
The Defendant shall pay the Plaintiff, within
180 days
, the
sum of
R3 516 194.00 (three million five hundred and
sixteen thousand one hundred ninety-four rand)
in respect of loss
of earnings and general damages, set out as follows:
Loss
of earnings:
R1 916 194.00
General
damages:
R1 600 000.00
TOTAL
R3 516 194.00
3.
The Defendant shall pay the abovementioned amount into the trust
account of the
Plaintiff’s Attorneys:
The
Plaintiff’s Attorney’s trust account details are as
follows:
ACCOUNT
HOLDER: V[…] INC
BRANCH:
ABSA BUSINESS BANK H[…]
BRANCH
CODE:
6[…]
TYPE
OF ACCOUNT: TRUST ACCOUNT
ACCOUNT
NUMBER: 3[…]
REFERENCE:
M[…]
4.
Interest shall accrue on such outstanding amount at 10.75% per annum,
(at the
mora rate of 3.5% above the repo rate on the date on this
order, as per the Prescribe Rate of Interest Act, 55 of 1975, as
amended)
calculated from 14 days of this order, until the date of
payment.
5.
The Defendant is ordered to furnish the appointed Trustee of the
Plaintiff 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 the rendering of
a service or the supplying of goods
(of a medical and non-medical nature) to the Patient arising out of
injuries sustained by her
in a motor vehicle collision on 15
September 2016, in terms of which 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 Plaintiff and on proof thereof. The
Defendant is ordered to pay the reasonable travelling costs and
accommodation for the
Plaintiff and her caretaker to and from the
location where she is to receive treatment.
6.
Without derogating from the generality of the foregoing, the
undertaking shall
include the reasonable costs of the formation of an
inter vivos
trust for the benefit of the Plaintiff and the
costs of administration of the said trust by the Trustee, including
the costs attendant
upon the provision of security by the Trustee,
and auditing and/or accounting services, however, such costs shall
not exceed the
costs which would otherwise be payable in respect of a
Curator Bonis
.
7.
A case manager may be appointed, as per the discretion of the
Trustee, of which
the cost of such appointment is covered under the
Section 17(4)(a)
Undertaking.
8.
The defendant shall pay the Plaintiff’s taxed or agreed party
and party
cost, up to and including the trial dates of 7 and 8
February 2023, for the instructing and correspondent attorneys, which
costs
shall include, but not be limited to the following:
a.
The fees of Counsel, including but not limited to the preparation for
trial and
day fee in respect of the trial dates of 7 & 8 February
2023.
b.
The reasonable taxable qualification fees, of all the Plaintiff’s
experts
whose reports had been furnished to the Defendant.
c.
The reasonable taxable reservation fees, of the following experts:
Dr JH Kruger
Neurosurgeon
Dr Deacon
Orthopaedic Surgeon
Dr APJ Botha
Internist/Specialised Physician
L Grootboom
Clinical Psychologists
L (Moller) Roos
Educational Psychologist
Anel Booyse
Occupational Therapists
B
Moodie
Industrial
Psychologist
Johan Sauer
Actuary
d.
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 cost, as per the
Prescribed Rate of Interest Act, 55 of 1975
,
per annum, calculated from the 15
th
(fifteenth) calendar
day after the date of settlement/taxation of the bill of cost, until
the date of payment.
e.
The above costs to be paid into the trust account of the Plaintiff’s
attorney.
9.
By agreement between the parties 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 Plaintiff.
10.
Until such time as the Trustee can take control of the capital sum
and to deal with same
in terms of this order, the Plaintiff’s
attorney of record:
10.1.
Is prohibited from dealing with the capital in any other manner,
unless specifically authorised thereto by Court,
subject to paragraph
10.2 to 10.5.
10.2.
Is authorised to invest the capital amount in an interest-bearing
account with a registered banking institution
in terms of
Sec 78
of
the Attorney’s Act, 53 of 1979, for the benefit of the
Plaintiff and will only be allowed to pay such monies over the
Trustee of the trust to be created in terms of paragraph 9 of this
order, once the Master of the High Court has issued the Trustee
with
the necessary letters of authority.
10.3.
Is authorised to pay the costs to set security for the funds held in
trust, from the capital received, to the
relevant insurer by the
Trustee, which costs must be refunded by the Defendant to the
Plaintiff.
10.4.
From date of receiving the capital and up and till the Master of the
High Court has issued the Trustee with the
necessary letters of
authority, is authorised to make payment in the amount of R5 000.00
per month, as well as such other
amounts that may reasonably be
required for the wellbeing of the Plaintiff a diligent Trustee would
make.
10.5.
Is authorised to make payment of the attorney and client costs, being
fees, disbursements, and interest on paid
disbursements, of the
Plaintiff’s attorney.
11.
The Trustee is ordered to furnish security to the satisfaction of the
Master of the High
Court.
12.
The nominated Trustee shall attend to the creation of an
inter
vivos
trust to protect the awarded funds to the exclusive benefit
of the Plaintiff.
13.
The trust to be erected for the benefit of the Patient on these
papers, with powers which
shall include (but not be limited to) the
powers as referred to in the Trust Deed attached hereto as
Annexure
“A”
and is incorporated into this order.
14.
The Defendant is ordered to pay the costs in respect of the creation
and future administration
of the trust, which costs will include the
fees of the Trustee.
15.
The reasonable remuneration to which the Trustee will be entitled in
respect of the execution
of the Trustee’s official duties is as
follows:
15.1.
An acceptance/establishment fee of 1% (Excluding VAT) on all capital
introduced into the Trust.
15.2.
An annual administration fee based on a percentage of the value of
the assets under administration, which percentage
will be subject to
the following sliding scale:
15.2.1
R0.00 – R500 000.00 –
1.5%
15.2.2
R500 000.00 – R1 000 000.00
– R1.25%
15.2.3
> R1 000 000.00 – 1%
16.
The undertaking contemplated by
Sec 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 including:
16.1
Travel expenses for purposes of attending to Trust related matters.
16.2
A termination fee of 2% (Excl. VAT) on the assets of the Trust at the
time of termination/dissolution of
the Trust.
16.3
The Trustee is an attorney and the Trust shall pay to the Trustee the
Trustee’s usual charges for any
work performed by the Trustee
in her capacity as attorney, acting om behalf of the Trust.
AP
BERRY, AJ
APPEARANCES:
For
the Plaintiff:
Adv. M Steenkamp
Instructed
by:
VZLR Incorporated, Pretoria
c/o Du Plooy Attorneys,
Bloemfontein
For
the Defendant:
M Booysen
Instructed
by:
The Road Accident Fund
Bloemfontein