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[2019] ZAGPPHC 285
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Du Toit obo S v Road Accident Fund (50598/2016) [2019] ZAGPPHC 285 (22 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NO: 50598/2016
22/5/2019
In
the matter between:
ADV
AJ DU TOIT obo S[….] N[….]
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
KUBUSHI J
INTRODUCTION
[1]
The plaintiff, Albertus Johannes Du
Toit, an adult male advocate, acts herein in his representative
capacity as the duly appointed
curator
ad litem
to the claimant, S[….]
N[….], a minor male born on 2 February 2007.
[2]
The claimant, who was a pedestrian at
the time, was seriously injured in a motor vehicle collision and the
plaintiff is claiming
compensation for damages for such injuries from
the Road Accident Fund.
[3]
The merits part of the claim was decided
at 90% in favour of the plaintiff. What remains to be decided is
quantum,
that
is, damages for: future medical and hospital related expenses, past
medical and hospital expenses, general damages and future
loss of
earnings/earning capacity.
[4]
The parties are to argue the matter on
the basis of the joint minutes of the respective experts. The
plaintiff, however, intends
calling his industrial psychologist to
give evidence in respect of loss of earnings.
[5]
The joint minutes upon which argument
will be based are those of the neurologists, educational
psychologists, the industrial psychologists
and the plaintiff's
admitted actuarial report. The expert report of the plaintiff's
orthopaedic surgeon, which is uncontested,
also forms part of the
record.
[6]
The parties are agreed in respect of the
past medical and hospital expenses in the amount of R312 583, 27 and
the undertaking to
be provided in respect of future medical and
hospital expenses. It is only the general damages and damages for
loss of earnings
that will be argued. I deal hereunder with those
damages in turn.
INJURIES
[7]
The injuries sustained by the
complainant are common cause. According to the report of the
plaintiffs orthopaedic surgeon, the complainant
suffered from
polytrauma in that: he suffered a severe head injury; chest injury
and the fracture of the tibia and fibular (these
have healed and do
not require further treatment). As a result of the injuries, the
claimant lost various amenities of life (some
have been regained) and
he is disabled and functionally impaired by the head injury.
[8]
As
per
the joint minutes of the
neurologists the claimant suffered the following injuries: a severe
closed head injury with permanent neurocognitive/linguistic
compromise and personality change. As a result the injuries should be
classified as serious with increased risk of epilepsy; main
stream
schooling will not be possible and the claimant is likely to arrive
in adult life unemployable in the open labour market.
[9]
The findings of the educational
psychologists in their joint minute are that:
9.1
Post-accident
the claimant is more suited for special schooling and will probably
only progress, on a sympathetic level and appears
to be incapable to
pass on academic terms.
9.2
Pre-accident the claimant would have
passed a grade 12 of education. According to the plaintiff's
educational psychologist the highest
level of education the claimant
would have obtained is an NQF level 5 (certificate). Whilst the
defendant's educational psychologist
opined that it is possible that
the claimant could have reached a NQF level 5 certificate but that it
was not likely than the achievement
of a Grade 12 as the highest
level of education.
GENERAL DAMAGES
[10]
The expert witnesses of both parties are
agreed that the injuries sustained by the complainant are serious and
warrant compensation
for general damages.
[11]
The submission by the plaintiffs counsel was that an amount of R2 000
000 was in the circumstances
of this matter fair and reasonable as
compensation for the plaintiff s general damages. The defendant's
counsel on the other hand
argued for an amount of R1 200 000 as
sufficient compensation for general damages in this matter. The
plaintiffs counsel ended
conceding that an amount of between R1 000
000 and R1 200 000 would be adequate compensation in the
circumstances.
[12]
Both counsel referred me to a number of
judgments with injuries almost similar to those of the plaintiff and
where different amounts
were awarded.
[13]
The plaintiffs counsel referred me to
the judgment in
Megalane NO v The
Road Accident Fund
[1]
wherein the court awarded general damages of R1 000 000, with a
current value of R2 142 000, to an 11-year-old schoolboy at the
time
of the accident and 14
years
old
at the time of the trial. The boy had sustained a severe brain injury
with diffuse and focal brain damage in the form of a subdural
haemotoma
resulting
in cognitive impairment characterised by poor verbal and visual
memory; poor concentration and distractibility; impaired
executive
function characterised by frontal lobe disinhibition causing
inappropriate behaviour; speech difficulties characterised
by
dysarthria and word retrieval difficulties; bilateral hemiparesis
with severe spasticity of all four limbs and left facial paralysis
as
well as
aphasis.
He
was confined to a wheelchair with intelligence level that of a young
child. Although limited, still has insight into his predicament.
An
above average scholar before the accident, who would probably have
undergone tertiary education, was left with severe permanent
physical
and mental disabilities rendering him unemployable.
[14]
The defendant's counsel referred me to
the judgment in
Vakota v The Road
Accident Fund
[2]
wherein the claimant with scarring and other injuries was rendered
unemployable and was awarded an amount of R600 000 which presently
translate to R746 640. The other judgment was in
Mohale
v The Road Accident Fund
wherein in
2014 the claimant had suffered swelling to the brain similar to that
of the claimant
in casu
and
was awarded R650 000 which translate to R774 970.
[15]
As can be expected it is always not easy
to find cases with injuries that are in all respect similar. As such,
it is apparent from
the judgments I was referred to that none is on
all fours with the current matter. It is also apparent from the
injuries in
Megalane
that
the claimant in that case suffered injuries that are more severe than
those suffered by the present claimant, this was conceded.
[16]
As a result, my view is that, a fair and reasonable amount to
compensate the plaintiff in the
present circumstances is an award of
R1 200 000.
LOSS OF EARNINGS/EARNING CAPACITY
[17]
The parties argue this head of damages on a joint minute by the
industrial psychologists and
the actuarial report quantifying the
joint minute, filed of record.
[18]
The industrial psychologists are agreed that:
18.1
Post-accident, given the severe head
injury, resulting in permanent neurocognitive deficits, including
neuropsychological problems,
the claimant will arrive in adult life
unemployable in the open labour market. No residual earning capacity
is foreseen.
18.2
Pre-accident: there are two scenarios,
firstly, assuming that Grade 12 (NQF4) would have been the highest
level of education; and
secondly, assuming that Grade 12 plus
occupational related Certificate on NFQ5 level would have been
obtained through in-house
job training.
[19] The
industrial psychologists are agreed on the job description and
remuneration in both scenarios,
they, however, disagree on the time
frames for progression. The plaintiffs industrial psychologist allows
for a longer time frame
between job grading whilst the defendant's
industrial psychologist allows for a shorter time frame.
[20] Obviously,
the industrial psychologists do not agree regarding the probability
of which scenario
would be more probable. The plaintiffs industrial
psychologist opines that probabilities are that the claimant would
have progressed
further than his parents because of the available
opportunities at his disposal - his parent went to school and the
claimant’s
own non-academic schooling record would have been to
his advantage. To the contrary, the defendant’s industrial
psychologist
opines that the claimant's parents and siblings are an
indication that the claimant would not have progressed any further
than
his parents. It is on this point that argument between the
parties rests.
[21]
The actuarial calculations are based on
the two scenarios as indicated by the joint minutes of the industrial
psychologists. The
parties did not argue the contingencies applied by
the actuary to the scenarios. The arguments were, as already stated,
on the
time frames for progression between job grading. Based on the
opinion of the plaintiffs industrial psychologist the plaintiffs
counsel argued that scenario 2 which allowed for a longer time frame
should not be discounted but be considered in the circumstances
of
the claimant as the most appropriate. Failing which, the average
calculation of the two scenarios will, in the interest of justice,
be
appropriate. The defendant's counsel argued for the calculation in
scenario 1 as most appropriate due to the short time frame
opined for
by its industrial psychologist.
[22]
The defendant's industrial psychologist
considered that the claimant would, after grade twelve, have obtained
a tertiary qualification.
The plaintiffs industrial psychologist on
the other hand did not consider tertiary qualification but a
situation where the complainant
would have been employed after grade
12 by an employer who would have provided him with work skills.
[23] In scenario
2 the complainant would have entered employment as an unskilled
worker and for the
first fifteen years, with skills provided at work,
would have taken efforts to improve his lot by on the job training.
[24] When it
comes to the issue of which of the two scenarios is probable, it is
my view that scenario
2 would be appropriate in the circumstances.
Educational opportunities in this day and age are more available than
they were at
the time the claimant’s parent went to school.
Children are encouraged to educate themselves through media and other
information.
Bursaries and scholarship are more readily available to
children who want to educate themselves than there were before. There
appears
to be no grounds why the claimant would not want to educate
himself. In actual fact, that his parents are educated or not does
not play such a pertinent role in determining whether the claimant
would have progressed educationally or not.
[25] Even though
scenario 2 would be appropriate in the circumstances of the matter
before me, I,
however, still have to take into account that
considerations of this kind are speculative in nature. I would, thus,
in the interest
of justice award damages as proposed by the
plaintiffs counsel, that is, the average calculation of the two
scenarios. The just
and appropriate amount for compensation should be
R2 405 588.
[26] I am,
therefore, satisfied that the plaintiff is entitled to the amount
stated in scenario 2
of the actuarial calculations. But, on
consideration that the calculations are broadly speculative, it is my
view that the average
amount between the two scenarios ought to be
awarded to compensate the plaintiff for loss of earnings. The
plaintiff is, thus,
entitled to the following award in total:
General Damages
R1 200 000, 00
Past medical and hospital expenses
312 583, 27
Loss of earnings/earning capacity
2
405 588. 00
Total
3 918 171, 27
[27]
A value of 10% of the total amount of
R391 817, 10, should be deducted because liability was determined at
90% in favour of the
plaintiff. The plaintiff is only entitled to 90%
of the total amount of the award, which is R3 526 354, 17. In
addition, and as
offered, the defendant must furnish the plaintiff
with a section 17 (4) certificate for all future medical and hospital
related
expenses.
[28] I make the
following order:
1.
The Draft Order marked
'xx'
is made an order of court.
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for Plaintiff
: Adv. Anton Laubscher
Instructed
by
: Andenorff Attorneys
Attorney
for Defendant
: Adv. L. M. Maite
Instructed
by
: Lekhu Pilson Attorneys
Date
heard
: 02 May 2019
Date
of judgment
: 22 May 2019
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
AT
PRETORIA ONTHURSDAY, 22 MAY 2019, IN COURT 6D.
BEFORE
THE HONOURABLE JUSTICE KUBUSHl.
Case
no: 50598/2016
In
the matter between:
ADV
ALBERTUS JOHANNES DU TOIT N.O.
obo
S[….] N[….]
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
ORDER
HAVING PERUSED THE PAPERS, HEARD ORAL
EVIDENCE AND HEARD ARGUMENT BY BOTH COUNSEL, lT IS ORDERED THAT, IN
FULL ANO FINAL SETTLEMENT
OF THE PL AINTIFF'S CLAIM FOR DAMAGES ("THE
PLAINTIFF"), IN RESPECT OF THE MERITS AND QUANTUM, AS SET DOWN
FOR HEARING
ON THURSDAY, 02 MAY 2019, THE FOLLOWING TERMS BE MADE AN
ORDER OF COURT:
THE UNDERTAKING
1.
The Defendant shall provide an
undertaking in terms of Section 17(4)(a) of the Road Accident Fund
Act 56 of 1996 ("the undertaking"),
to compensate the
Plaintiff / S N[….] for 90% (Ninety percent) of the costs
relating to the future accommodation of the
Plaintiff / S N[….]
in a hospital or nursing home or treatment of or rendering of a
service or supplying of goods to the
Plaintiff / S N[….] after
the costs have been incurred and on proof thereof and arising from
the collision which occurred
on 11 October 2014.
THE MERITS
2.
It is recorded that the merits were
settled 90% (Ninety percent) in favour of the Plaintiff/ S N[….]
on Tuesday 30 April
2019, and the Defendant is ordered to pay 90%
(Ninety percent) of the Plaintiff / S N[….]’s proven
claim.
PAST HOSPITAL AND MEDICAL EXPENSES
BY STATE SERVICE PROVIDERS
3.
It is recorded that the Plaintiff's Past
Medical and/or Hospital expenses have been settled in the amount of
R281 324,94 (Two Hundred
and Eighty One Thousand Three Hundred and
Twenty Four Rand and Ninety Four Cents) after the application of the
merits apportionment
of 90/10% (Ninety percent) in favour of
Plaintiff.
4.
The Defendant
indemnifies the Plaintiff and his representatives against any future
claims by suppliers in res
pect
hereof.
THE
CAPITAL
5.
The Defendant is ordered to pay
to the Plaintiff the amount of
R
5 526 354,17 (Three Million Five Hundred and Twenty Six
Thousand Three Hundred and Fifty Four Rand 17/100
Only), ("the capital") by way of a lump sum payment on or
before 30 August 2019, by way of electronic transfer to the
trust
account, details of which are set out hereunder ("the capital
payment").
6.
It is recorded that the Capital amount,
as per paragraph 5 above. is made up as follows:
6.1 Future Loss of Earnings:
R 2 165 029-20 (Two Million One Hundred and Sixty Five
Thousand Twenty Nine Rand and Twenty Cents.
6.2 General Damages: R
1 080 000-00 (One Million and Eighty Thousand Rand)
COSTS
7.
The Defendant shall pay the Plaintiff's
taxed or agreed High Court Scale party and party costs, including for
the sake of clarity,
but not limited, to the costs of the Plaintiffs
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.
The Plaintiff shall, in the event that
the costs are not agreed, serve the Notice of Taxation on the
Defendant or the Defendant's
attorney of record.
9.
The Plaintiff shall allow the Defendant
30 (thirty) calendar days to make payment of the taxed or agreed
costs.
GENERAL
COSTS
10.
Any taxed or agreed costs incurred after
the date of this order in obtaining payment of any of the amounts
referred to herein.
11.
The Defendant will not be liable for
interest on the outstanding amount.
EXPERT
WITNESSES
12.
Regarding the expert witnesses listed
hereinbelow ("the experts"), the taxed or agreed qualifying
expenses , the reasonable
attendance, travelling, waiting time and
reservation fees of the experts listed herein below, if any, the
reasonable costs attached
to the procurement of the medico- legal and
other reports , inclusive of those referred to, as well as joint
expert minutes of
the experts, including x-rays, MRI scans, Pathology
reports, interpreter's services and addendum reports and all
consultations
with counsel, Plaintiff attorneys, as well as time
spent travelling, subject to the discretion of the Taxing Master.
13.
The experts are:
13.1
Dr. JS Sager (Orthopaedic Surgeon);
13.2
Dr. J Slazus (Opthalmologist);
13.3
Or. J Reid (Neurologist);
13.4
Dr. K Le Fevre (Psychiatrist);
13.5
Dr. D Ogilvy (Speech and Language
Pathologist);
13.6
Ms R De Wit (Clinical- and Neurological
Psychologist);
13.7
Ms Y Bekker (Educational Psychologist);
13.8
Ms M Bester (Occupational Therapist);
13.9
Ms E Auret-Besselaar (Industrial
Psychologist);
13.10
Messrs Munro Consulting (Actuaries).
TRAVELLING, ACCOMMODATION AND RELATED
COSTS
14.
The Defendant shall be liable to pay the
reasonable costs of the Plaintiff's legal representatives, the
travelling, waiting time,
and accommodation and related costs
incurred by Plaintiff's legal representatives and counsel in respect
of settlement discussions
with Defendant or Defendant's attorneys,
and in respect of consultations with experts for trial preparation,
costs for preparing
for Pre-Trial Conference(s) and formulation of
Pre Trial Conference Minutes, Pre-Trial Agendas, Rule 37(4)&(6)
Further
Particulars, if any , Rule 35(9) & Rule 36(10) notices ,
Rule 38(2) affidavits , trial preparation, the preparation of 6 trial
bundles as in terms of the Practice directives and the cost of this
order, subject to the discretion of the Taxing Master.
15.
The Defendant shall be liable to pay the
reasonable travelling, waiting time, and accommodation and related
costs incurred as follows;
subject to the discretion of Taxing
Master.
15.1 In respect of the
Plaintiff/ S N[….], and his family member accompanying him, to
attend medico-legal
examinations with expert witnesses in Cape Town
and Gauteng respectively;
15.2
In respect of consultations held on 25
April 2019, between Plaintiff, Adv AJ Du Toit
(Curator
Ad litem),
Plaintiffs
representatives, Adv A Laubscher, Dr. K Le Fevre (Psychiatrist), Dr.
D Ogilvy (Speech and Language Pathologist), Ms R
De Wit (Clinical and
Neurological Psychologist,) Ms M Bester (Occupational Therapist) and
Ms E Auret-Besselaar (Industrial Psychologist;)
15.3
In respect of consultations held on 25
April 2019, between Plaintiff, Adv Du Toit, Plaintiff s
representatives, Adv A Laubscher
and Mr. Pl Gxokhwe (eye witness);
15.4
In respect of S N[….]and his
family member ("The Applicant"), travelling to attend
consultations with Plaintiffs
Representatives and the
Curator
ad Litem
and/or
Curator
Bonis
respectively;
15.5
In respect of Plaintiffs representatives
attending the trial as set down for hearing on 02 May 2019;
15.6
In respect of Ms E Auret-Besselaar
attending court for the trial as set down for hearing on 02 May 2019,
at her respective hourly
rate;
15.7
In respect of Adv AJ Du Toit (Curator ad
Litem) attending court for the trial as set down for hearing on 02
May 2019 , at his respective
hourly rate.
THE
FEES OF COUNSEL
16.
The fees of Plaintiffs senior junior
counsel, which costs are inclusive of the day fee(s), perusing
reports and documents in preparation
for trial, consultations with
expert-witnesses and drafting of submissions.
COSTS OF THE
CURATOR AD LITEM
17.
The Defendant shall pay the costs of the
application to appoint the
Curator ad
Litem
on the High Court scale, as
between party and party, including the costs of the medical reports
filed as part of the said application,
as taxed or agreed, plus VAT.
18.
The Defendant shall pay the costs of the
Curator ad Litem
on
the High Court scale, as between party and party, as taxed or agreed,
plus VAT.
COSTS
OF
CURATOR BONIS
19.
In the event of the Western Cape High
Court, or another competent Court having jurisdiction, appointing a
Curator Bonis
to
S N[….], the Defendant shall pay the costs of the
Curator
Bonis,
as taxed or agreed. such
costs including for the sake of clarity, but not limited to:
20.
The costs of the application to the
appoint the
Curator Bonis
on
the High Court scale as between party and party, as taxed or agreed,
plus VAT ("the application costs"):
20.1
The costs, if any, incurred by the
Curator Bonis
in
furnishing security to the Master;
20.2
The fees and costs of the
Curator
Bonis
in respect of administering
the capital and the undertaking in terms of Section 17(4)(a).
20.3
The fees of the
Curator
Bonis
shall be paid from the
Undertaking.
PAYMENT PROVISIONS
21.
Payment of the capital amount as
reflected above shall be effected on or before 30 August 2019 ("the
capital due date")
by way of electronic transfer into the
Plaintiffs attorneys trust banking account, details of which are
listed herein below.
22.
Payment of the taxed or agreed costs
reflected above shall be effected within 30 (thirty) calendar days of
agreement or taxation
("the costs due date") and shall
likewise be effected by way of electronic transfer into the
Plaintiff's attorneys trust
banking account. details of which are
listed herein below.
23.
Upon receipt of the capital amount in
Plaintiff's attorneys trust banking account, same will be invested in
an interest-bearing
trust account pending the appointment of the
Curator Bonis.
CONTINGENCY
FEE AGREEMENT
24.
It is recorded that the Plaintiff
entered into a contingency fee agreement and that same complies with
the Act.
TRUST
BANKING DETAILS
25.
The Plaintiff's attorneys' trust banking
account details are as follows:
Bank
: FIRST
NATIONAL BANK
Account
Name
:
ADENDORFF INC.
Branch
Name
:
ADDERLEY STREET
Branch
Code
: 201-409
Account number
: [….]
BY
ORDER OF THE COURT
COURT
REGISTRAR
Box
71: Savage Jooste & Adams
Ref
no: M Haasbroek / gk / MHA620 / GX02/0001
Plaintiffs
counsel: Adv A Laubscher (082 658 4112)
Defendant's
counsel: Adv L Maite (079 502 2951)
[1]
2006 (SA4) QOD 10 (W) Koch: 2019.
[2]
2014 (3) QOO 1 Koch .