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REPUBLIC OF SOUTH AFRICA
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NR: 80725/2018
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED:
DATE:19 April 2024
SIGNATURE:
In the matter between:
ADV CLAIRE CAWOOD N.O
obo A-L P APPLICANT
and
ROAD ACCIDENT FUND RESPONDENT
Delivered: This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to
the Parties / their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The date of the
judgment is deemed to be 19 Apri 2024
___________________________________________________________________
JUDGMENT
MARUMOAGAE AJ
[1] The plaintiff, Advocate Claire Cawood, instituted action proceedings in her
representative capacity on behalf of A -LP against the defendant for the
injuries sustained by A -LP as a passenger in a motor vehicle accident that
occurred on 17 December 2016. A-LP is a minor.
[2] The defendant conceded the merits in writing and admitted 100% liability for
the harm suffered by A -LP because of the accident. The details of this
accident will be narrated below. The court is called upon to determine the
amounts of damages that the defendant should be ordered to pay relating to
loss of earnings (including earning capacity) and general damages.
[3] It was contended on behalf of the plaintiff that at the time of the accident, A -
LP was fourteen months old. Further, she was taken to Swellendam Hospital
where she was stabilized. She was further transferred to Red Cross Hospital
where it was established that she sustained a traumatic brain injury with
extensive degloving scalp injury with underlying comminated fractures.
[4] The plaintiff submitted evidence from various expert witnesses : an Industrial
Psychologist, an Occupational Psychologist; an Educational Psychologist; a
Clinical Psychologist; a Speech Therapist; an Ophthalmologist; a Neurologist;
and a Neurosurgeon. The evidence contained in the reports of these expert
witnesses’ highlights how the accident impacted A-LP’s life.
[4.1] A-LP sustained a serious traumatic brain injury with extensive skull
fractures and a degloving scalp injury and has residual cognitive and
behavioural problems that are in keeping with the severity of the brain
injury she sustained. She suffered moderately severe head trauma and
bilateral occipital contusions.
[4.2] A-LP remains at risk of developing late post -traumatic epilepsy and the
accident negatively impacted her performance at school and future
employability. A-LP will not be able to progress at a mainstream
school. She would probably increasingly fall behind her peers in all
areas of development. Had the accident not taken place, A -LP would
have been able to complete her grade 12.
[4.3] A-LP’s probability of securing gainful employment in the future seems
exceptionally small and almost non -existent. Her future occupational
functioning and subsequent career prospects have been obliterated by
the sequelae of the injuries sustained in the accident.
[4.4] Due to the se injuries, A-LP experience s some cognitive -linguistic,
communicative, and cognitive difficulties which are attributable to the
traumatic brain injury she sustained. She needs specialised education
because she will experience severe difficulties in mainstream primary
school education. She is also at a high risk of experiencing severe
difficulties in the acquisition of literacy.
[4.5] A-LP is vulnerable to being exploited and she will need supervision and
guidance for the rest of her life . Her mental processing speed is
generally slow, including her capacity to reason and respond.
[4.6] The appointment of a curator ad litem and curator bonis is necessary.
[5] According to the plaintiff, A -LP is currently performing poorly at school
because of cognitive problems. It was further submitted that this poor
performance will likely continue which will have a bearing on her future
employability. Further, while she would have been able to work had she not
been involved in the accident, following the accident she will be unable to
work and sustain herself financially. She will remain dependent on the
guidance and supervision of others.
[6] It was contended that A -LP was probably going to obtain grade 12 had it not
been for the accident, with a possibility of attaining some form of tertiary
qualification. It was submitted further that the accident has drastically and
irrevocably changed the trajectory of A-LP’s life and the gap between her, and
her peers will continue to widen exponentially. It was also submitted that she
has significant scarring on the left side of her scalp of which she is severely
self-conscious.
[7] Concerning the future loss of earnings, A -LP would probably have
commenced earning an income associated with the National Minimum Wage
and have reached the upper quartile for semi -skilled workers. I agree with the
plaintiff that it would be fair and reasonable to apply contingencies of 25% to
future uninjured income. I had regard to the Actuarial Report prepared by
Munro Consulting where they calculated the total loss of earnings, after
applying contingencies of 25%, to be R 2 202 375.00. This amount appears to
be an adequate amount under the circumstances.
[8] The plaintiff also claimed general damages in this matter. General damages
are within the discretion of the court. Each case must be determined on its
own merits having regard to its own unique facts. The defendant accepted
that the injuries that A -LP sustained are serious and made an offer to
compensate her with general damages. The amount of compensation
suggested by the defendant has been rejected by the plaintiff.
[9] In a reported decision of Megalane v Road Accident Fund ,1 an eleven-year-
old boy who was a passenger in a motor vehicle accident sustained a severe
head injury, including left intradural hematoma and a diffuse axonal injury.
The injuries sustained in the accident resulted in poor verbal and visual
memory, poor concentration, and speech difficulties. It was found that had it
not been for the accident, the boy would have been able to obtain grade 12
and possibly tertiary education. The court awarded general damages of R 1
000 0000.00, with the current value of R 2 584 000.00. 2 It appears to me that
a similar approach must be adopted in this case. I agree with the plaintiff that
the adequate amount of general damages would be an amount of R 2 750
000.00
[10] In the result, I make the following order:
1. The Defendant is ordered to pay to the Plaintiff the amount of R 4 952 375.00
[Four million nine hundred fifty -two thousand three hundred seventy-five rand
1 [2007] 3 All SA 531 (W)
2 Koch R The quantum yearbook (2023) 21.
only) (“the capital”), by way of a lump sum payment within 180 (one hundred
and eighty) calendar days of service of the order, by way of electronic transfer
to the trust account, details of which are set out hereunder (“the capital
payment”) which is calculated as follows:
1.1 Future Loss of Earnings: R 2 202 375.00.
1.2 General Damages: R 2 750 000.00
1.3 Total: R 4 952 375.00
2. Payment of the aforesaid sum must be made directly to the Plaintiff’s
Attorneys of Record, ADENDORFF INC by direct transfer into their trust
account with the following details:
ACCOUNT HOLDER: ADENDORFF INC
BANK: FIRST NATIONAL BANK
BRANCH CODE: 2[...]
ACCOUNT NUMBER: 6[...]
REFERENCE NUMBER: J[...]
3. The Defendant is ordered to furnish the Plaintiff with an undertaking within 30
days from the date hereof, free from caveats and qualifications, in terms of section
17(4)(a) of the Road Accident Fund Act, for 100% (one hundred percent) of the costs
of the future accommodation of the Plaintiff in a hospital or nursing home or
treatment of or rendering of a service to the Plaintiff or supplying of goods to the
Plaintiff arising out of the Plaintiff’s injurie s sustained in the motor vehicle collision
which gave rise to the action, after such costs have been incurred and upon pro of
thereof.
4 The Defendant shall pay the reasonable costs of the Trustee appointed in
terms of paragraph 7 hereof, in respect of establishing a Trust and any other
reasonable costs that the Trustee may incur in the administration thereof
including her fees in this regard, which shall be recoverable in terms of the
Section 17(4)(a) Undertaking, and which may also include and be subject to
the following:
4.1 The fees and administration costs shall be determined in accordance
with the Trust Property Control Act, 57 of 1988 (the Trust Act), as
amended from time to time, and shall include but not be limited to
disbursements incurred.
4.2 The costs associated with the yearly audit of the Trust by a chartered
accountant.
4.3 The reasonable costs of the furnishing of security in obtaining an
annual bond, if required by the Master of the High Court.
4.4 The costs incurred in administering the Undertaking in terms of Section
17(4)(a).
5 That the net proceeds of the amount referred to in paragraph 1 above, after
the deduction of Plaintiff’s attorney’s attorney and client costs (“the capital
amount”), shall be payable to a Trust in respect of the AVA -LEE PIETERSE
TRUST, to be established within 6 months from date of receipt of the “capital
amount”.
6 Upon the establishment of the Trust referred to in paragraph 5 above and
opening of a bank account of the Trust, the Plaintiff’s attorneys shall pay the
capital amount as referred to in paragraph 6 above, including the accrued
interest, into the Trust’s said bank account.
7 The Terms of the Trust are as follows:
7.1 The proposed Trustee is Shalene Schreuder (ID Number: 6[...]), whose
written consent to act as Trustee in the Trust is loaded on case lines.
7.2 If Shalene Schreuder (ID Number: 6[...]), failing which, a nominee of
Shalene Schreuder Attorneys is unable or unwilling to accept the
appointment or for any reason becomes unable to continue to act once
having been appointed, then the Master of the High Court will in his/her
sole discretion be entitled to appoint and/or nominate another trustee.
7.3 The trustee is required to furnish security for the administration of the
assets of the trust.
7.4 The Trustee’s fees for the administration of the trust are to be
calculated at the rate of 1% per annum of the trust assets under
administration.
7.5 The trustee shall administer the trust subject to the powers and terms,
which follow as from paragraph (7.6) to (7.23) herein below.
7.6 The trustee must in writing accept her appointment as such and th e
benefits and duties conveyed by the trust deed and acknowledge
receipt of the donation in terms of which the trust will be established.
7.7 The trustee may at any time in writing appoint additional trustees
limited to one additional trustee.
7.8 A trustee shall cease to act as such if he/she resigns, becomes
mentally disturbed or ill, or alcoholic, or incompetent or unable to act as
the trustee, or being a corporate body, it is liquidated. If any trustee
ceases to act, the remaining trustee/s shall continue to act and shall
have full powers in terms hereof.
7.9 In administering the trust, the trustee shall follow such procedure as
they deem fit.
7.10 Proper books of account shall be kept.
7.11 The trustee may appoint an auditor for the trust but is not obliged to do
so. Shalene Schreuder (ID Number: 6[...]), shall have the sole signing
powers on all banking accounts and shall have the power to veto any
decision. Nevertheless, she shall consult with the other trustees, if any,
as to any distributions.
7.12 The trustee has the power to perform in the name of the trust or in their
own name on behalf of the trust, any acts and enter into any contracts
and undertake any obligations, whether commercial or otherwise,
which may be done by a natural person of full legal capacity, which
powers include but are not limited to the following:
7.12.1 To purchase necessary movable and immovable property
for the beneficiary once she requires same.
7.12.2 To insure, build on , and improve all or any part of its
property and assets, if so required.
7.12.3 To borrow money, only for the necessary living expenses
of the beneficiary, only until such time as the Road
Accident Fund claim is finalised, 100% (one hundred
percent) of the remainder of the claim.
7.12.4 To invest money in any financial institution accredited by
the South African Reserve Bank, in an investment, or
investments that is risk aversive, such as a money market
account.
7.12.5 To open and operate a banking account.
7.12.6 To make donations to the beneficiary.
7.13 The assets of the trust must be held in the name of the trust.
7.14 The trustee has an absolute and unlimited discretion, in all matters
relating to the trust but may not act contrary to this order and the trust
deed to be drafted in accordance herewith.
7.15 The trustee and/or her successor or successors shall be required to
provide security for the due administration of the trust.
7.16 The trustee shall not be personally liable to the beneficiaries for any
trust losses, except caused by gross negligence or deliberate wrong.
7.17 The trustee shall under no circumstances be personally liable to
creditors of the trust.
7.18 The beneficiary for income and capital is AVA- LEE PIETERSE.
7.19 No asset, capital, or income of the trust will vest in any beneficiary until
such is actually paid over, handed over , or delivered by the trustee to
the beneficiary.
7.20 No capital or income benefit to which any beneficiary is or may become
entitled by virtue of this trust deed shall, prior to actual payment or
transfer thereof by the trustees to the beneficiary, be capable of being
ceded, assigned or pledged, or transferred in any way, or be capable of
attachment by any creditor or trustee of a beneficiary upon insolvency,
unless the trustees consent thereto in writing.
7.21 Any asset or money that the beneficiary receives pursuant to this trust
deed shall not form part of any joint estate, and shall not be subject to
any marital power.
7.22 The trust deed can only be amended in writing with the consent of the
Master of the High Court and, failing such consent, with the leave of
this Court provided however that no amendment which is in conflict
with the provisions of the Court Order may be effected without the prior
leave of the Court having been granted thereto.
7.23 The Master of the Western Cape High Court, is directed to register the
Trust.
8 The Defendant shall pay the Plaintiff’s taxed or agreed High Court Scale party
and party costs, subject to the discretion of the Taxing Master, inclusive of the
costs related to any motions and applications and including for the sake of
clarity, but not limited, to the costs of the Plaintiff’s instructing attorneys,
Adendorff Incorporated in Cape Town and the correspondent attorneys in
Pretoria, Savage Jooste and Adams Inc, as well as the other costs set out
hereunder;
8.1 The costs of the experts employed as per case lines, inclusive of
reports, consultations and confirmatory affidavits, being:
8.1.1 Dr Zayne Domingo (Neurosurgeon);
8.1.2 Dr Johan Reid (Neurologist);
8.1.3 Dr Johann Slazus (Eye Specialist);
8.1.4 Dr Keith Cronwright (Plastic and Reconstructive Surgeon);
8.1.5 Dr Dale Ogilvy (Speech and Language Therapist);
8.1.6 Ms Renee De Wit (Clinical Psychologist);
8.1.7 Ms Yolande Bekker (Educational Psychologist);
8.1.8 Ms Michelle Bester (Occupational Therapist);
8.1.9 Ms Karen Jerling-Kotze (Industrial Psychologist);
8.1.10 Munro Consulting (Actuary).
8.2 The costs of Plaintiff’s counsel, inclusive of preparation, day
fees and Heads of Argument.
8.3 The costs of the Curatrix ad Litem, inclusive of day fees.
8.4 The application costs of appointing the Curatrix ad Litem.
9 The capital is to be paid within 180 days of service of this order, but interest
shall accrue at the prescribed interest rate, from the 15th day of service of this
order.
10 Costs are to be paid within 14 days of settlement or taxation, failing which
interest shall accrue at the prescribed interest rate.
11 The above costs shall be paid into the Applicant attorney’s trust account as
mentioned in paragraph 2 above.
12. It is recorded that the Plaintiff entered into a contingency fee agreement and
that same complies with the Act.
C MARUMOAGAE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Counsel for the plaintiff: Adv Frans Ras SC
Instructed by: Adendorff Attorneys
Counsel for the defendant: Ms Boitumelo Kgoebane
Instructed by: State Attorney
Date of the hearing: 07 November 2023
Date of judgment: 19 April 2024