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2024
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[2024] ZAECQBHC 22
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Mpuntshe v Road Accident Fund (3202/2021) [2024] ZAECQBHC 22 (18 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No: 3202/2021
In
the matter between:
NOMAWETHU
MPUNTSHE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BANDS
J:
[1]
The
plaintiff, who was a pedestrian at the time, claims damages for
injuries sustained by her in a motor vehicle collision, which
occurred in Beach Road, Gqeberha, on 12 May 2019. She was 25
years of age at the date of the collision and 29 at the date
of
trial. The nature and extent of the plaintiff’s injuries,
as well as their
sequalae
,
are common cause and include: (i) a compound open book pelvic injury
(with left sacroiliac joint dislocation and left external
iliac
artery injury); (ii) traumatic amputation of the left leg/mangled
extremity (multiple fractures involving the left distal
femur, left
knee and left tibia and fibula); and blunt abdominal trauma.
[2]
As
a consequence of the aforesaid injuries, the plaintiff suffers from
severe limitations in respect of general mobility and is
dependent on
crutches and a prosthesis, which offers limited mobilisation.
She is left with significant scarring of the right
lower limb; is
unable to sit for prolonged periods of time; is prone to headaches;
back pain; phantom pain of the left leg; and
activity related pain
episodes of the right leg. The plaintiff is dependent on a
colostomy bag. From a mental health
point of view, she
experiences mood swings; loss of concentration; disturbed sleep;
stress; and depression.
[3]
The
defendant previously admitted its liability to the plaintiff,
whereafter the issues of general damages and future medical expenses
were settled between the parties and recorded in an order of court,
dated 30 November 2022. The plaintiff’s claims
for past
hospital, medical and caregiving expenses and loss of earning
capacity were postponed to 17 April 2023. The defendant
was
further ordered to file and serve its expert reports in terms of
Uniform Rule 36(9)(b) on or before 28 February 2023.
[4]
When
the matter came before court on 17 April 2023, the expert reports
envisaged in the prior order had not yet come to hand.
A
further order was issued, by agreement between the parties, in terms
of which the defendant was to pay an amount of R1,000,000.00
as an
interim payment to the plaintiff in respect of her claim for past and
future loss of income/earning capacity. The defendant
was
afforded a further opportunity to file its expert reports; this time,
on or before 21 April 2023. The matter was postponed
to 6 June
2023, on which date a further order was granted, by agreement,
directing the defendant to pay an amount of R2,000,000.00
as a
further interim payment towards the same head of damages. Once more,
the defendant’s anticipated reports were not forthcoming,
and
the trial was postponed to 6 September 2023, being the first day of
trial.
[5]
What
remained in dispute for determination before me was the plaintiff’s
claims for: (i) past hospital, medical and caregiving
expenses; and
(ii) past loss of income and loss of earning capacity. Given
that the legal issue in respect of the first mentioned
claim
[1]
was still pending before the Constitutional Court at the time of
hearing, I separated the plaintiff’s remaining claims in
accordance with Rule 33(4) and postponed the plaintiff’s claim
for past hospital, medical and caregiving expenses
sine
die
.
[2]
It is undisputed that the plaintiff, post-morbidly, is unemployable
and accordingly, the issues, which I am called upon to
resolve are
limited to the plaintiff’s past loss of income and her loss of
earning capacity (which is limited to a determination
of the present
value of the plaintiff’s future income but for her injuries),
inclusive of the appropriate contingency deductions,
to which I
return in due course.
[6]
Despite
various expert witnesses having been engaged by both parties in
several disciplines, no expert summaries in terms of Uniform
Rule
36(9)(b) were filed on behalf of the defendant.
[7]
Notwithstanding
this, joint minutes were prepared by the parties’ respective
occupational therapists, Angela Dlepu and Ansie
van Zyl; and
orthopaedic surgeons, Dr M Aslam (“
Aslam
”)
and Dr C.S. Veerasamy (“
Veerasamy
”).
The joint minutes reflect a large degree of consensus among the
experts. I was advised by the plaintiff’s
counsel that
whilst the defendant had engaged the services of an industrial
psychologist, Ms K Naidoo (“
Naidoo
”),
to assess the plaintiff for the purposes of the present matter, the
defendant had elected not to file her report, which
had come to hand
shortly before the date of hearing, on 4 September 2023.
[8]
Save
for the report of the plaintiff’s industrial psychologist, Lani
Gregor Martiny (“
Martiny
”),
the remainder of the expert reports filed in support of the
plaintiff’s claim were admitted by the defendant, namely:
[8.1]
RAF
1 compiled by general surgeon, Dr Bogani Mabaso dated 17 March 2022;
[8.2]
RAF
4 serious injury assessment report compiled by orthopaedic surgeon,
Dr M. Aslam dated 28 July 2021;
[8.3]
Medico-legal
report compiled by orthopaedic surgeon, Dr M. Aslam dated 28 July
2021;
[8.4]
Radiology
report compiled by specialist in diagnostic radiology, Dr Mike Eddles
dated 3 November 2020;
[8.5]
Psycho-legal
report compiled by educational psychologist, Mr Gerhardt Goosen dated
2 December 2021;
[8.6]
Medico-legal
report compiled by specialist psychiatrist, Dr Peter Crafford dated
22 March 2022;
[8.7]
Medico-legal
report compiled by plastic and reconstructive surgeon, Dr Keith
Cronwright dated 23 August 2022;
[8.8]
RAF
4 compiled by plastic and reconstructive surgeon, Dr Keith Cronwright
dated 23 August 2023;
[8.9]
Medico-legal
report compiled by medical orthotist and prosthetist, Mr Lafras
Moolman dated 21 October 2020; and
[8.10]
Medico-legal
report compiled by clinical psychologist, Mr Ian Meyer dated 18
August 2022.
[9]
The
admission in respect of the aforestated reports (inclusive of the
joint minutes to which I have referred), as recorded in a
pre-trial
minute, dated 4 and 5 September 2023 (“
the
pre-trial minute
”), was as
follows:
“
The
Defendant, in respect of the… expert reports/joint minutes
served and filed by the Plaintiff,
admits that the
reports/joint minutes
are what it (sic) purports to
be, the correctness of all the contents of the reports/joint minutes,
including the opinions expressed
and factual information relied upon
for reaching conclusions and for the reports/joint minutes being
handed up at the trial and
received in evidence without any further
proof thereof…
”
[10]
Insofar
as the plaintiff’s actuary is concerned, the parties agreed
that a copy of the actuarial report may be tendered into
evidence
without the need to call an actuary as a witness.
[3]
[11]
Whilst
the defendant’s pleaded case, at trial, was that of no
knowledge, it recorded at paragraph [4] of the pre-trial minute
that:
“
The
Defendant contends that Plaintiff’s life expectancy has been
compromised and curtailed as a result of the extent and severity
of
the injuries to her left lower limb and the associated medical
sequalae based on paragraph 10 of the amended joint minute dated
4
July 2023 between Orthopeadic Surgeons Dr M Aslam and Dr CS
Veerasamy. Plaintiff denies this contention and accordingly
records that there is no agreement between the parties in this
regard.
”
[12]
Following
the closure of the defendant’s case (and prior to argument),
both parties sought amendments to their respective
pleadings, which
were granted by agreement between them. The amendment to the
plaintiff’s particulars of claim served
to bring her claim in
line with the various expert reports and joint minutes, read together
with the actuarial calculation, to
which I have referred. The
defendant’s amended plea introduced two aspects of substance.
Firstly, a positive
assertion in respect of the plaintiff’s
pre-morbid earnings; and secondly, allegations to bring the
defendant’s plea
in line with what is contained in paragraph
[4] of the pre-trial minute. I deal with each of these, in
turn, during the course
of this judgment. Ultimately however,
the matter, after the hearing of all the evidence, came down to an
argument in respect
of the applicable contingencies to be applied.
[13]
The
plaintiff called three witnesses, namely educational psychologist, Mr
Gerhardt Goosen (“
Goosen
”);
Industrial psychologist, Martiny; and the plaintiff’s cousin,
Ms Andiswa Mpuntshe (“
Mpuntshe
”).
[4]
The expertise of the plaintiff’s experts in their respective
fields was not placed in dispute. The defendant
elected to call
no witnesses.
[14]
Notwithstanding
the defendant’s admission in respect of the content of Goosen’s
report, the plaintiff, for reasons unclear
to me, elected to call him
to give evidence at trial. Such evidence was, for the most
part, a repetition of that contained
in his admitted report and a
recount of the admitted evidence of clinical psychologist, Mr Ian
Meyer.
[5]
The main thrust
of the evidence was in relation to the plaintiff’s pre- and
post-morbid scholastic performance; her
pre- and post-morbid
intellectual functioning; and her most probable future scholastic
functioning, all of which was common cause
and can best be described
with reference to the following paragraphs contained in the report of
Goosen:
“
9.3
Intellectual
functioning:
9.3.1
It
is estimated that Ms Mpuntshe’s pre-morbid intellectual
abilities would have been within the average range. This
is
based on the history and her previous scholastic achievements. There
is no history of prior learning disability.
9.3.2
Her
current intellectual functioning is estimated to be within the
average range. There is no evidence of a lowering of intellectual
performance post-accident.
…
9.10
Academic
functions
:
Ms
Mpuntshe has failed Grade 12; she passed her languages and Tourism,
but failed Mathematics Literacy, History and Geography.
She has
attempted to complete Grade 12 but has not been able to attend a
college since the accident. Prior to the accident
she was
studying at a college and indicated that she had expected to pass and
to complete the course successfully, but the lockdown
due to the
COVID-19 pandemic disrupted her studies.
…
10.2
It
is estimated that Ms Mpuntshe’s pre-morbid intellectual
abilities would have been within the average range. This is based
on
the history and her previous scholastic achievements. There is no
history of prior learning disability. She progressed to Grade
11,
without difficulty, before failing three subjects in Grade 12.
It is probable that she would have completed Grade 12
at FET college,
and at least a certificate course.
10.3
In
the post-accident scenario, her ability to function at pre-morbid
levels has been severely compromised. While her intellectual
functioning has not been impaired, she presents with significant and
serious psychological and psychiatric disorders, the symptoms
of
which could negatively affect concentration, memory, motivation,
reading comprehension and energy level. She has not received
any
psychotherapeutic or psychiatric assistance since being discharged
from Aurora Hospital. A significant length of time has elapsed
since
the accident, which may cause the above symptoms and disorders to
become chronic. She is expected to benefit from both psychiatric
treatment and psychotherapy. However, the extent to which she would
benefit from such intervention, is currently impossible to
predict.
Should she benefit significantly, then her coping skills and general
functioning may improve, increasing their chances
of successfully
completing a course of study.
”
[15]
Further
perplexing is that the defendant thereafter proceeded to
cross-examine Goosen’s evidence. The cross-examination
firstly served to canvass, in general terms, the investigative
process and methodology of an educational psychologist (both as
a
treating educational psychologist and as a forensic educational
psychologist); and secondly, was aimed at casting doubt on the
admitted conclusions referred to above, with reference to academic
transcripts of the plaintiff, which came to hand on the morning
of
the hearing
[6]
and to which
Goosen had not had sight of when preparing his report. Put
differently, the defendant sought to test the process
of Goosen’s
reasoning, which led to the admitted conclusions, with specific
reference to the premise from which his reasoning
proceeded. At
no stage prior to the cross-examination did the defendant signal its
intention to depart from its admission
in respect of Goosen’s
report nor was there an amendment to the defendant’s plea.
I enquired from the defendant’s
counsel as to the relevance and
permissibility of the cross examination considering the aforesaid.
Ultimately, the issue
was taken no further than to elicit the
following two facts from Goosen: (i) that he was not in possession of
the academic records
at the time of his investigation and report; and
(ii) that had they been in his possession, he would have explored the
content
thereof with the plaintiff, which may have served to
supplement his report. In the absence of having consulted
thereon, any
views expressed would amount to speculation.
Having said that, Goosen was in any event of the view that nothing
contained
in the documentation, to which he was referred, was of such
a nature as to prompt a change his opinions and conclusions reached.
[16]
Goosen
impressed me favourably as a witness. His opinion, apart from
having been admitted, was not only well
reasoned
and logical but also consistent with the common cause facts.
This view was in no way altered by his cross-examination.
[17]
Given
that Naidoo’s report had only come to hand two days prior to
trial, she (whilst awaiting instructions from the defendant)
and
Matiny, in consultation with each other and in an endeavour to assist
the court, attended to the compiling of a joint minute
on 5 September
2023. As previously stated, the defendant elected not to file
the report of Naidoo, for reasons known only
to it. Insofar as
I make reference to the content of the joint minute prepared by
Martiny and Naidoo, I do so only in light
of the fact that the joint
minute formed the basis of Martiny’s evidence at trial.
My reference to the joint minute
is not to be misunderstood as
binding the defendant to the content thereof, which for obvious
reasons, it is not.
[18]
Martiny,
with reference to the joint minute, testified that the plaintiff, at
the date of the collision, was 25 years of age.
She was a
student at the Russel Road TVET College, attempting her second year
as a NCV (National Certificate Vocation) student.
She engaged
in part-time work, employed in various promotional positions, from
Friday to Sunday on a weekly basis. It is
likely that she would
have been earning approximately R6,202.50 per month,
[7]
up until 25 March 2020. Thereafter, due to the restrictions
imposed, nationally, in reaction to the Covid-19 pandemic, it
is
likely that the plaintiff would have been unemployed until 2022 when
she is likely to have engaged in part-time employment up
until 2025.
[19]
But
for the collision, the plaintiff would have proceeded to obtain a
grade 12 equivalent in 2020 and would probably have commenced
with
studies towards a level 5 and level 6 certificate/diploma
qualification/s. It is likely that the plaintiff at the age
of
32 years (in 2025) would probably have been able to enter employment
taking into consideration in-service training, as was a
requirement,
earning approximately R172,566.00 per annum. The plaintiff
would probably have experienced career development,
with her income
increasing gradually up to the age of 49 years, earning approximately
R413,891.00 per annum. It was postulated
that she would
probably have received average annual increments of CPI + (1% - 2%)
up until the retirement age of 65.
[20]
Insofar
as the plaintiff’s past loss of income is concerned, Martiny
testified that she: (i) was not remunerated during her
period of
hospitalisation and recovery; (ii) did not return to her pre-accident
employment; (iii) remained unemployed following
the collision; and
(iv) is dependent upon a state social disability grant since 2019 to
date.
[21]
The
brief cross-examination of Martiny in respect of the plaintiff’s
academic records was of no moment. He remained
steadfast in his
opinion regarding the plaintiff’s pre-morbid career path, which
was unchallenged.
[22]
The
plaintiff’s loss of earning capacity was calculated by Arch
Acturial Consulting, which postulated one scenario based on
the
assumptions contained in the joint minute, which, as stated, was
consistent with the evidence of Martiny. That this is
so, was
confirmed by Martiny in evidence. Confusion on this aspect
arose during cross examination, with reference to the
figure utilised
by the actuary in respect of the plaintiff’s pre-morbid
earnings per month. It was put to Martiny that
whilst the
postulated earnings of R74,430.00 per annum (R6,202.50 per month) was
consistent with the evidence of Mr Martiny, it
was contrary to the
amount contained in the joint minute (upon which he relied).
This contention was based on a misreading
of the joint minute; the
relevant paragraph, recording as follows:
“
7.
Pre-morbid
career scenario:
7.1
We
agree
that at the time of the
MVA she was a student and she was doing part time work. It is
likely that she would have been earning
approximately
R6
202.50 per month
(average of
reported income to LGM & KN). However, given the lack of
collateral to motivate the said earning, KN proposes
the earning as
per Table 1 below to be considered, where the claimant is likely to
have earned between R48 000 to R55 000
per annum. It
is further suggested that a contingency can be applied given the lack
of collateral. Such contingencies
are to be determined by the
relevant Legal Counsels and the Court
.
…”
[Table
omitted for the purposes of this judgment.]
[23]
Immediately
apparent is that whilst an agreement was reached as to the
plaintiff’s likely monthly earnings (approximately
R6,202.50),
Ms Naidoo had proposed a lower annual income (between R48,000.00 and
R55,000.00 per annum) given the lack of collateral
to motivate the
plaintiff’s earnings. This proposed lower annual income
formed the basis for the amendment to the defendant’s
plea, to
which I have referred, in which it was recorded, at paragraph 7.2
thereof that “
the
plaintiff’s average pre-morbid part-time monthly income, before
applying contingencies, would have been R4,291.66 on the
basis of the
condition appearing at paragraph 7.1 of the joint minute by the
industrial psychologists LG Martiny and K Naidoo,
dated 5 September
2013
.”
[24]
The
confusion that arose was later cleared up in re-examination.
Whilst a lower annual income was proposed by Naidoo, the
agreement
between the parties (and the scenario ultimately postulated by
Martiny) was that the plaintiff had historically likely
earned an
income of approximately R6,202.50 per month. However, given the
lack of collateral, it was to this figure that
contingencies would be
applied. This is consistent with the clear wording of paragraph
7.1 of the joint minute. The
evidence on behalf of Martiny,
which I accept as reasonable and correct, was unambiguous; clear;
well-reasoned; logical; and factually
corroborated in all material
respects. In the absence of any evidence to the contrary by
Naidoo, there is no basis upon which
to depart from the figure,
postulated by Martiny as the likely starting point for the
plaintiff’s pre-morbid monthly income,
or from his opinion as a
whole, which scenario falls to be accepted.
[25]
Notwithstanding
the defendant’s assertion that a lower average historical
pre-morbid monthly income be utilised, prior to
the application of
contingencies, this aspect was correctly not persisted with on behalf
of the defendant during argument.
[26]
The
evidence of Mpuntshe was uncontroversial and in all material
respects, undisputed. It gave credence to the plaintiff’s
likely pre-morbid career path, which in any event was common cause.
Accordingly, for the purposes of this judgment, it suffices
to
summarise her evidence in brief.
[27]
Mpuntshe,
who is the plaintiff’s older cousin,
[8]
grew up with the plaintiff in the same household up until the date of
the collision in 2019. Mpuntshe described the plaintiff
as
‘driven’. She, as did the plaintiff, failed grade
12 on her first attempt. She thereafter went on to
pass grade
12 as well as various short courses. Whilst she was enrolled at
Russel Road College, working towards a diploma
in tourism, she was
offered a permanent position at Woolworths during October 2016.
Having worked within the organisation
as a seasonal employee since
2015 and seeing the protentional for growth, Mpuntshe elected to
terminate her studies in favour of
the opportunity which presented
itself. She initially started off as a till operator whereafter
she progressed to a supervisor.
Later, she took up a higher
position in administration and currently earns approximately
R7,650.00 after deductions. She
described the family unit in
which she and the plaintiff grew up in as supportive, with value
being attached to education. Her
cross examination served to
elicit further information about the current position held by
Mpuntshe and her future prospects for
growth within the organisation.
[28]
I
accordingly proceed on the basis that the calculation of the
plaintiff’s past loss of income is to be approached on the
accepted evidence as set out above (subject to the application of
appropriate contingencies), with her future loss of earning capacity
based on the scenario described in paragraphs [18] and [19] of this
judgment. The actuarial report, which is unchallenged
as to its
calculation, is based on the (now) accepted evidence. I
accordingly turn to the appropriate contingency deductions.
[29]
The
plaintiff’s counsel submitted that a contingency deduction of
5% ought to be applied to the plaintiff’s past loss
of income,
with 20% being appropriate, in the circumstances of this matter, in
respect of her future loss of earning capacity.
The submissions
on behalf of the plaintiff mirrors the contingency deductions, which
have been applied in the actuarial calculation.
On behalf of
the defendant, it was submitted that a larger than usual contingency
deduction ought to be applied to the plaintiff’s
past loss of
income, without advancing what this would be, with a contingency
deduction of 25% to be applied to the plaintiff’s
future loss
of earning capacity.
[30]
It
is settled law that the provision for contingencies is a matter of
judicial discretion, which of necessity is a rough estimate.
[9]
They
are arbitrary and highly subjective,
[10]
with the often-quoted passage in
Goodall
v President Insurance Co Ltd
[11]
being illustrative of this fact:
“
In
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or
science of
foretelling the future, so confidently practiced by ancient prophets
and soothsayers, and by authors of a certain type
of almanack, is not
numbered among the qualifications for judicial office.”
[31]
It
was argued, on behalf of the plaintiff, that the contingency
deduction to be applied in this matter (with reference to the
so-called
sliding scale to contingencies), for future loss of earning
capacity, is 17.5% and accordingly, the application of a higher
contingency
deduction of 20% (as suggested on her behalf) was
generous in the circumstances. It has become customary for the
court to
apply the sliding scale to contingencies, as referred to by
Koch as follows:
“
Sliding
Scale: ½ per cent per year to retirement age, ie 25% for a
child, 20% for a youth, and 10% in the middle age…
”
[32]
The
application of the sliding scale is of course not an exact science,
and by no means operates to usurp the adjudication of contingency
deductions, which falls squarely within the court’s discretion.
[33]
In
advancing its argument that a higher than ‘normal’
contingency deduction ought to be applied to the plaintiff’s
future loss of earning capacity,
the defendant placed reliance on paragraph 10 of the joint minute
compiled by the respective orthopaedic
surgeons, which reads as
follows:
“
10.
Life expectancy
We
agree to the following:
Amputation
patients are at a relatively higher risk of early mortality (due to
cardiovascular abnormalities and other medical problems
post
amputation). We defer to the option of a life expectancy
expert/physician in this regard.
”
[34]
Whilst
I accept that no evidence of a life expectancy expert has been placed
before me, I cannot close my eyes to the admitted opinion
of the
orthopaedic surgeons that amputation patients are at a relatively
higher risk of early mortality. This, in any event,
was the
plaintiff’s pleaded case if regard is had to paragraph 9.30 of
her amended particulars of claim, which records that
the plaintiff,
“
being
an amputee, now has a diminished life expectancy.
”
This in no way detracts from the admitted fact that the plaintiff,
pre-morbidly, would have worked up until the normal
retirement age of
65, as postulated by Martiny (and taken into account in the actuarial
calculation). The aforesaid risk,
albeit
that the extent of it is uncertain, is a factor which falls to be
included in the assessment of the contingency deduction applicable
to
the plaintiff’s future loss of earning capacity.
[35]
On
a consideration of the facts particular to the matter at hand and
considering the usual factors which find application in the
determination of contingency deductions, as well as the various
arguments submitted on behalf of the respective parties, I am of
the
view that the application of a 7.5% contingency deduction in respect
of the plaintiff’s past loss of income is fair in
the
circumstances, particularly if regard is had to the lack of
collateral. Insofar as the plaintiff’s future loss
of
earning capacity is concerned, I am of the view that there is merit
in Mr Gajjar’s submission that a reduction for contingencies
ought to be applied, taking into account not only the usual
vicissitudes of life, but also the plaintiff’s diminished life
expectancy. Having said that, I am further of the view that,
but for this factor, the
appropriate
contingency deduction to be applied on the facts of this matter,
would more appropriately have been in the region of
17.5%.
Accordingly, in considering the overall contingency deduction to be
made (inclusive of the plaintiff’s diminished
life expectancy
on the basis of which it is before me), and in the absence of further
evidence, I am satisfied that a contingency
deduction of 20% as
suggested by the plaintiff is
fair
and reasonable in the circumstances. I can see no reason as to
why a higher continency deduction ought to be applied.
[36]
It
is common cause that the plaintiff has received a disability grant in
the sum of R90,731.00, which amount the parties agreed
to have
deducted from the plaintiff’s past loss of income. In the
result, the plaintiff’s past loss of income
amounts to
R124,993.00. The actuarial calculation in respect of future
loss of earning capacity in the amount of R5,286,894.00
falls to be
accepted. Given the interim payments, to which I have referred,
an amount of R3,000,000.00 is to be deducted
from the plaintiff’s
overall award.
[37]
There
is no reason to depart from the usual cost order, that costs should
follow the event. I am further of the view that
the matter
justified the employment of two counsel.
[38]
In
the result, the following order shall issue:
1.
The
defendant is directed to pay to the plaintiff the amount of
R2,411,887.00 as damages for past and future loss of income and
earning capacity, because of the injuries sustained by the plaintiff.
2.
Payment
of the aforesaid amount in paragraph 1 above shall be made directly
to the plaintiff’s attorney of record, Meyer Inc.,
trust
account, details of which are as follows
Account
Holder:
M[…] I[…]
Bank:
S[…] B[…]
Branch:
P[…] E[…]
Branch
code:
0[…]
Account
Number:
0[…]
3.
The
defendant is directed to pay the plaintiff’s costs of suit,
including:
3.1
The
reasonable qualifying and travelling expenses, if any, for:
3.1.1
Dr B Mchayo;
3.1.2
Dr M Aslam;
3.1.3
Dr M Eddles;
3.1.4
Mr G Goosen;
3.1.5
Dr P Crafford;
3.1.6
Mr I Meyer;
3.1.7
Ms A van Zyl;
3.1.8
Mr L Martiny;
3.1.9
Dr K Cronwright;
3.1.10
Mr L Moolman;
3.1.11
Arch Actuarial Consulting.
3.2
The costs of all joint minutes and supplementary reports of:
3.2.1
Dr M Aslam;
3.2.2
Ms A van Zyl;
3.2.3
Mr L Martiny;
3.2.4
Arch Actuarial Consulting.
3.3
The attendance and testifying fees of:
3.3.1 Mr L
Martiny, for 6 and 7 September 2023;
3.3.2 Mr G
Goosen for 6 September 2023.
3.4
The travelling costs, including flight tickets and accommodation,
incurred by or on behalf of the plaintiff
for Mr L Martiny’s
attendance at trial.
3.5
The reasonable costs of consultations involving plaintiff’s
counsel, attorneys and witnesses,
in preparation for trial.
3.6
The costs of trial for 6, 7 and 8 September 2023.
3.7
The defendant is directed to pay the costs of two counsel, where so
employed.
3.8
The defendant is directed to pay interest on the above amounts, at
the prescribed legal rate calculated
from:
3.8.1
14 calendar days after the date of this order until date of payment,
in relation to paragraph 1 above; and
3.8.2
14 calendar days after the date of allocatur or written agreement
until date of payment, in relation to paragraph
3 above.
4.
The
issue of the plaintiff’s claim for past hospital and medical
expenses be and is hereby separated in terms of Rule 33(4)
from the
remainder of the plaintiff’s claim for damages, the
determination thereof being postponed
sine die
.
I
BANDS
JUDGE
OF THE HIGH COURT
Heard:
6 to 8 September 2023
Delivered:
18 March 2024
Appearances:
For
the Plaintiff:
Adv
A Frost (together with Adv K Pask)
Instructed
by:
Meyer
Inc.
29 Bird Street
Central
Gqeberha
For
the Defendant:
Adv
GJ Gajjar
Instructed
by:
State Attorney, Gqeberha
29 Western Road, Central,
Gqeberha
[1]
In
matters of this nature.
[2]
At
the request of the parties.
[3]
Such
agreement being recorded in the following terms:
“
The
parties agree to arrangements whereby the Plaintiff’s actuary
not be subpoenaed and not be required to attend to the
hearing of
this matter in order to avoid incurring unnecessary expenses, but
instead to be placed in possession of whatever factual
or financial
data which he may be required to assess from time to time in order
to provide Certificates of Value/Actuarial calculations
as required,
and that these certificates can then be placed before court with the
agreement that they are correctly calculated.
”
[4]
The
plaintiff herself did not testify at trial. According to the
admitted report of Dr Crafford, the plaintiff, on account
of her
high levels of anxiety and cognitive impairment, would be at a great
disadvantage if required to testify at trial.
In light of the
parties’ agreement in respect of the expert reports (inclusive
of the joint minutes), which included an
agreement regarding the
factual information, the parties were in agreement that the matter
could proceed before me on the admitted
facts and that to call the
plaintiff would only serve to place her under further unnecessary
stress.
[5]
With
reference to Meyer’s report.
[6]
Handed
to the defendant’s legal representative on the morning of the
first day of trial in a bundle referred to as “Plaintiff’s
bundle of collateral documents”. Once it became clear
that the documents had not previously been discovered by either
of
the parties, the plaintiff’s legal representatives placed on
record that: (i) the plaintiff had no intention of relying
on the
documents; and (ii) the evidential value of the documents and the
evidence elicited therefrom was being placed in dispute.
[7]
Which
was the average of the reported income as was reported to Mr Martiny
(R2,750.00 per month) and to Ms Naidoo (R9,655 per
month).
[8]
Referred
to as ‘my cousin’s sister’ by
Mpuntshe
in
evidence.
[9]
Road
Accident Fund v Guedes
2006 (5) SA 583
(SCA) at paras 5 and 8.
[10]
RAF v
Kerridge
(1024/2017)
[2018] ZASCA 151
(01 November 2018) at para 42.
[11]
1978 (1) SA 389
(W) (
Goodall
)
at 392H-393A.