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[2019] ZAGPPHC 249
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Ntuli obo S v Road Accident Fund (51938/2015) [2019] ZAGPPHC 249 (25 May 2019)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTII AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
25/5/2019
CASE
NO: 51938/2015
In
the matter between:
NTULI
HILDA FUGLE obo S[….]
PLAINTIFF
And
ROAD
ACCIDENT
FUND
RESPONDENT
JUDGMENT
MAKHOBA,
AJ
[1]
The plaintiff is Ms H.F Ntuli she instituted a claim against the
defendant in her
representative capacity of her minor son. The claim
is for damages suffered as a result of injuries her son sustained in
a motor
vehicle collision which occurred on the 6th April 2014. The
minor child was born on the 11
th
January 2009. At the time
of the accident he was five (5) years old.
[2]
Liability
has been settled in terms of which the defendant is liable to
compensate the minor child 100% of the proven or agreed
damages
suffered by the minor child. The quantum of the plaintiffs claim is
in dispute. The parties agreed to postpone general
damages sine-die.
Thus therefore the only issue before court is loss of earnings.
[3]
The
parties agreed not to lead any oral evidence but admitted all the
medico legal reports and addressed the court. Both counsels
submitted
their heads of argument.
[4]
The
joint minutes of the following experts were handed in by agreement.
4.1.
Educational
psychologists - Mr W.M Kumalo and Alet Mathews
4.2.
Clinical
psychologist - Dr M 1V1 Katjene and Ms G Bokaba
4.3.
Industrial
psychologist-K Pulles and A Lamprecht
4.4.
Actuarial
report
[5]
According
to the nerosurgeons the minor child sustained a mild traumatic brain
injury and experienced post-concussion symptoms including
headaches.
The neuro cognitive deficits have a negative functioning.
[6]
Counsel
for the plaintiff submitted in his heads of argument that the
injuries had an impact on his future academic career as well
as
employment whereas for the defendant counsel submitted that the minor
child school performance is the same as his parents and
siblings and
not necessarily as a result of the accident.
[7]
In
Van Rij, NO v Employers' Liability Assurance Corporation Ltd,
1964
(4) SA 737
(W)
the
plaintiff was a minor who had not yet embarked on a firm career the
court allowed 20% for contingencies, see also
De
Jong v Gunther and Another
1975 (4) SA 78
(W) at page 80.
In
Prinsloo
v Road Accident Fund
2009 (5) SA 406
(SE)
the
court was called upon to adjudicate plaintiff's claim for loss of
earning capacity the court held that in assessing expert evidence,
the court had to be satisfied that the experts opinion had a
foundation in logical reasoning.
[8]
In Road Accident Fund v Kerridge
2019 (2) SA 233
(SCA) paragraph
25
the court said "Indeed, a physical disability which
impacts on the capacity to an income does not on its own, reduce the
patrimony
of an injured person. There must be proof that the
reduction in the income earning capacity will result in actual loss
of income".
[9]
On paragraph 40 to 42 of the same decision the SCA articulate what is
loss of future
earnings and the application of the contingency
deductions. In paragraph 40-42 the court said:
"E
[40] Any claim for future loss of earning capacity requires a
comparison of what a claimant would have earned had the accident
not
occurred, with what a claimant is likely to earn thereafter. The loss
is the difference between the monetary value of the earning
capacity
immediately prior to the injury and immediately thereafter. This can
never be a matter of exact mathematical calculation
and is, of its
nature, a highly speculative inquiry. All the court can do is make an
estimate which is often a very rough estimate,
of the present value
of the loss.
[41] Courts have
used actuarial calculations in an attempt to estimate the monetary
value of the loss. These calculations are obviously
dependent on the
accuracy of the factual information provided by the various
witnesses. In order to address life's unknown future
hazard, an
actuary will usually suggest that a court should determine the
appropriate contingency deduction. Often a claimant,
as a result of
the injury, has to engage in less lucrative employment. The nature of
the risks associated with the two career paths
may differ widely. It
is therefore appropriate to make different contingency deductions in
respect of the pre-morbid and post-morbid
scenarios. The future loss
will therefore be the shortfall between the two, once the appropriate
contingencies have been applied.
[42]
Contingencies are arbitrary and also highly subjective. It can be
described no better than the oft-quoted passage in
Goodall v
President Insurance
where the court said: ' In the assessment of
a proper allowance for contingencies, arbitrary considerations must
inevitably play
a part, for the art or science of fortelling 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'
[10]
The
court further reiterated the general rules in regard to contingency
deductions as follows in paragraph 44:
[44]
Some general rules have been established in regard to contingency
deductions, one being the age ot4a claimant. The younger
a claimant,
the more time he or she has to fall prey to vicissitudes and
imponderables of life. These are impossible to enumerate
but as
regards future loss of earnings they include, inter alia, a downturn
in the economy leading to rejection in salary, retrenchment,
unemployment, ill health, death and the myriad of events that may
occur in one's everyday life. The longer the remaining working
life
of a claimant, the more likely the possibility of an unforeseen event
impacting on the assumed trajectory of his or her remaining
career.
Bearing this in mind, courts have, in a pre morbid scenario,
generally awarded higher contingencies, the younger the
age of the
claimant. The court, in
Guedes,
relying on Koch's
Quantum
Yearbook 2004, found the appropriate pre-morbid contingency for a
young man of 26 years was 20% which would decrease on a sliding
scale
as the claimant got older. This, of course, depends on the specific
circumstances of each case but is a convenient starting
point"
[11]
It
is clear from the above referred case law that it is trite¥ the
application of contingencies is a discretionary power exercised
by
the court seized with the matter. The contingency to be applied in
each case is to be considered on the facts of that particular
case.
The usual consideration include inter alia the possibility of errors
in the estimation of the plaintiffs life expectancy,
the likelihood
of illness and unemployment which would have occurred. The court must
also take into account inflation or deflation
in the value of money,
tax, alterations in the cost of living allowances.
[12]
In
the quantum year book 2009, at page 100, Koch states as follows:
"It
has also become customary for the court to apply the so-called
sliding scale to contingencies which entails that half a
percent for
every year to retirement age i.e 25% for a child, 20% for a youth and
10% in middle age
(See Goodall v President Insurance Limited
1978
(1) SA 389
(W) )"
[13]
The
clinical psychologists in their findings agree with the joint report
of the neurosurgeons. On paragraph 3.2.2.2 of their report
they say
the following "We agree that Ntando experiences concussion
headaches and physical pains that have an adverse effect
on his
emotional, psychological, behavioural and academic functioning"
However it ; should not be overlooked as well what
the educational
psychologist{said on page 2 paragraph 12 they say the following "It
is noted that his siblings present with
academic difficulties and
have repeated some grades, given ·the information made
available. A M opines that he would probably
have been able to
complete grade 12 with an endorsement to continue with a Higher
certificate. However given his family background,
it appears that he
would probably not have been able to cope with the demand of tertiary
training and would probably have been
a more suitable candidate for
vocational training" This indeed indicates that there is some
uncertainty regarding the minor
child's post-morbid level of
functioning"
[14]
In
my view although there is an element of the min child's family
struggling in school grades, it cannot be refuted that the accident
did have an impact on his future learning capabilities. I am
therefore satisfied that an application of a higher than normal
contingency
is w ted in respect of the child's post morbid
prospective income.
[15]
Having
regard to all the relevant factors an application of a 35%
contingency to uninjured earning and 50% injured earnings is deemed
to be appropriate.
[16]
The
minor child will accordingly be entitled to the sum of:
Uninjured
earnings of R5567300 - 35%
=
R3618745
Injured
earnings ofR3922 200.00- 50%
=
R1961100
Total
loss of earnings = R165 7645.00
[17]
I
make the following order:
17.1.
The
defendant shall pay the sum of
R1657645.00
(One million six
hundred
and fifty seven. six hundred and forty five rands only)
in
settlement of the Plaintiff' s claim to the Plaintiff's attorneys,
Mphela & Associates, payable by direct transfer into their
trust
account with the following details:
ACCOUNT
HOLDER : MPHELA
& ASSOCIATES
BANK
: STANDARD BANK
BRANCH
CODE
: 05-26-27
ACCOUNT
NUMBER : [….]
REFERENCE
NUMBER : MMM/Gl187/ps
17.2.
The
aforementioned total amount of
R
R1657645.00
{One million six hundred and fifty seven, six hundred and forty five
rands only)
referred
to above will not bear interest unless the Defendant fails to effect
payment thereof within 14 (FOURTEEN) calendar days
of the date of
this Order, in which event the capital amount will bear interest at
the prescribed rate of 10% per annum calculated
from and including
the ·15
th
(FIFTEENTH) calendar day after the date of this Order and including
the date of payment thereof.
17.3.
The
Defendant is ordered to pay the Plaintiff's taxed or agreed party and
party costs on a High Court Scale,
17.4.
The
reasonable taxable costs of the experts mentioned herein below
including, but not limited to, travelling, travelling time,
preparation for trial, qualifying and reservation fees (if any and
upon proof thereof) as well as the costs of the RAF 4 serious
injury
assessment reports, medico-legal reports, addendum reports,
actuarial/revised actuarial calculations, court attendance and
joint
minutes of all of the Plaintiff's experts, which include, but will
not be limited to, the following experts:
17.4.1
Prof Lekgwara (Neurosurgeon);
17.4.2
Dr CJ B Smit (ENT)
17.4.3
Dr M Katjene (Clinical Psychologist):
17.4.4
Mr M W Kumalo (Educational Psychologist);
17.4.5
Thandi Motsepe (Occupational Therapist);
17.4.6
Andre Lamprecht (Industrial Psychologist)
17.4.7
Munro Forensic Actuaries (Actuary);
17.4.8
All other experts' reports served on the Defendant;
17.5.
All
the fees of the Plaintiff's Counsel on a High Court Scale, inclusive
of the drafting of the Heads of Argument and Advice on
Evidence,
where applicable, and Plaintiff's Counsel's day fee, for the
reservation for trial, preparation for trial, consultation
with
client, attorney and experts;
17.6.
The
reasonable costs for Plaintiffs attorneys, correspondent attorneys
which includes pre-trial preparation, traveling, traveling
time and
attendance of the respective pre-trial conferences, court attendances
and trial preparation;
17.7.
The
reasonable costs in respect of the preparation, drafting and copying
of all the bundles of documents, including trial bundles
and bundles
for the experts, containing expert reports, pleadings and notices,
and all other documents and all indexes thereto,
the traveling time,
traveling costs and time spent traveling to deliver the bundles;
17.8.
The
reasonable costs for the preparation, attending, traveling expenses
and time spent for conducting an inspection in loco, inclusive
of
work site visits;
17.9
The costs attendant upon the obtaining of payment of the amounts
referred to in this Order, including the
costs to obtain an
administer the Undertaking in terms of Section 17(4) (a);
17.10.
The
reasonable traveling costs (inclusive of toll gate and e-toll
charges), traveling time, subsistence, accommodation and
transportation
costs, if any and upon proof thereof, incurred by the
Plaintiff in attending medico-legal examination(s) with the parties'
experts
and in attending Court on the day(s) of trial;
17.11.
The
costs of a consultation between the Plaintiff and his/her attorney to
discuss the settlement offer received from the Defendant
and the
terms of this Order;
17.12.
The
above costs will be paid into the aforementioned attorneys trust
account.
18.
Payment
of the above costs by the Defendant is subject to the following
conditions:
18.1
The
Plaintiff is ordered to serve the Notice of ,'.Taxation of the
Plaintiffs party and party bill of costs on the Defendant's attorneys
of record;
18.2
The
Defendant is order to pay the Plaintiffs' taxed and/or agreed party
and party costs within 14 (fourteen) days from the date
upon which
the accounts are taxed by the Taxing Master and/or agreed between the
parties;
18.3.
Should payment not be effected timeously, the Plaintiff will be
entitled to recover interest at the prescribed
rate of 10% on the
taxed or agreed costs from the date of the allocator to date of final
payment.
19.
The
capital must be protected by way of a trust. To this end, the
Defendant is ordered to pay:
19.1
The
reasonable costs of the creation of a trust for the benefit of the
minor as principal beneficiary, in accordance with the Trust
Deed
attached hereto marked as Annexure "A";
19.2
The
costs of the first trustee to be appointed as well as reasonable
costs of Trustees to be appointed in administering the capital
amount
referred to in paragraph 2 hereof as determined by the Administration
of Estate Act 66 of 1965, as amended, and which is
usually the
reasonable costs in the administration of an estate, according to the
prescribed tariff applicable to
curators
as
provided for in the Government Gazette R 1602 of 1 July 1999 and
subsequent amendments thereof and more specifically paragraphs
3(a)
and 3(b) of the Schedule thereto, alternatively as prescribed by
Section 22 of the Trust Property Control Act 57 of 1988,
as amended
and;
19.3
The
reasonable costs of the furnishing of security of the obtaining of an
annual bond, if required by the Master of the High Court,
or to meet
the requirements of the Master of the High Court.
20.
The
Defendant shall pay the capital into the trust account of Mphela &
Associates; and
21.
Mphela
& Associates shall be entitled to make payment of the expenses
incurred and accounts rendered by experts and Counsel
employed on
behalf of the minor from the said sum and/or costs upon taxation or
agreement;
22.
Mphela
& Associates shall pay the capital of the said amount and taxed
or agreed costs directly into the trust account of the
Trustee of the
Trust to be created and administered by Standard Trust Limited;
23.
The
party and party costs referred to, as agreed or taxed, shall bepaid
by the Defendant directly into the trust account of Mphela
&
Associates, for the benefit of the minor;
24.
Mphela
& Associates shall be entitled to deduct the fee of the legal
costs consultant for the drafting of the party and party
Bill of
Costs and for the attendance pertaining to settlement;
25.
Standard
Trust Limited is ordered to furnish security to the satisfaction of
the Master;
26.
Until
such time that the trustees are able to take control of the capital
sum and to deal with same in terms of the Trust Deed,
Mphela &
Associates are:
26.1
authorized
to invest the capital in an interest-bearing account in terms of
Section 78(2A) of the Attorneys Act to the benefit of
the minor, with
a registered banking institution, pending finalization of the
directives in paragraph 7 above;
26.2
are
authorized and ordered to make any reasonable payments to satisfy the
needs of the minor that may arise and that is required
to satisfy any
reasonable need for trea1ment, medical intervention, care, schooling,
equipment and any other reasonable . ;nary
needs that may arise from
time to time, pending the finalization of the directives referred to
in paragraph 7 above.
27.
The
issue of general damages is postponed
sine
die.
BY
ORDER OF COURT
Counsel
for Plaintiff: Adv P.M. Leopeng 012 3344102/ 083 665 1466
Counsel
for Defendant: Adv P. Nonyana 012 303 7812/ 073 233 318
D.
MAKHOBA
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
ATTORNEY
FOR PLAINTIFF
: MPHELA
& ASSOCIATES
COUNSEL
FOR PLAINTIFF
: ADV P.M LEOPENG
ATTORNEY
FOR DEFENDANT
: LEKBU PILSON ATTORNEYS
COUNSELFORDEFENDANT
: ADV P.
NONYANA