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[2018] ZAGPPHC 473
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Killiam N.O v Road Accident Fund (73766/2016) [2018] ZAGPPHC 473 (13 February 2018)
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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
CASE NO: 73766/2016
Not Reportable
Not of interest to other
judges
13/2/2018
In
the matter between:
ADVOCATE
JOHAN MALHERBE KILLIAN N.O.
as
curator
ad litem
to
JOHANNES
HENDRIK BARNARD (“
the
injured”)
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
PETERSEN AJ
[1]
This is a stated case. The parties are in agreement on the facts. The
issue of liability
(merits) has been resolved in favour of the
plaintiff with the defendant undertaking to pay 100% of plaintiff's
proven or agreed
damages. The defendant has further given a statutory
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
for the future medical and related expenses of the
plaintiff and payment of the past medical and hospital expenses in
the sum of
R254 995.49.
[2]
The plaintiff instituted action against the defendant for damages
suffered as a result
of injuries he sustained as a passenger in a
motor vehicle collision that occurred on the 04
th
of
September 2010 at approximately 20h30pmon the Sannieshof/Delareyville
main road when a motor vehicle with registration number
[….]
driven by the insured driver lost control and overturned.
[3]
The quantification of the loss of
earnings and general damages remains in dispute.
[4]
The parties are in agreement on the
seriousness of the injuries sustained by the plaintiff, which
include:
4.1
A severe traumatic brain injury;
4.2
Mandible fracture;
4.3
Cervical spine fractures involving the
spinous processes C7, T1 and T2;
4.4
Fractures of the bilateral acetabula;
4.5
Blunt chest injury with lung contusion
and rib fracture on the right 5-10 and on the left 8-10;
4.6. Soft tissue injuries to the
forehead and right arm.
[5]
The
sequelae
of the injuries to the plaintiff are
as follows:
5.1
suffers from severe headaches;
5.2
has backache;
5.3
is forgetful and has a short memory;
5.4
procrastinates;
5.5
has concentration problems;
5.6
is easily irritated;
5.7
has post traumatic brain syndrome
(moderate severity) with associated symptoms and signs consistent
with a degree of frontal lobe
dysfunction;
5.8
has neuro-psychiatric sequelae that can
be summarised as follows:
5.8.1
post-accident occupational impairment;
5.8.2
slow reaction time and difficulty
anticipating problems when driving;
5.8.3
difficulty understanding concepts;
5.8.4
increased appetite;
5.8.5
impulsivity;
5.8.6
emotional liability and tearfulness;
5.8.7
feelings of uselessness;
5.8.8
daytime fatigue;
5.8.9
recklessness with financial matters;
5.8.10
inability
to multi-task;
5.8.11
naive
childlike demeanour;
5.8.12
often
smiles inappropriately and fatuously;
5.8.13
cognitive
deficits;
5.9
suffers from neuropsychological and
neurocognitive deficits which inter alia include difficulties with:
5.9.1
visual scanning and attention;
5.9.2
attention;
5.9.3
sustained attention;
5.9.4
speed of information processing;
5.9.5
psychomotor speed;
5.9.6
double tracking and more complex tasks;
5.9.7
working memory;
5.9.8
immediate recall;
5.9.9
long term visual memory for complex
material;
5.9.10
long
term memory retrieval of crystallized material;
5.9.11
cognitive flexibility;
5.9.12
problem solving on more complex tasks;
5.9.13
initiation and productivity;
5.9.14
inhibition;
5.9.15
self-monitoring;
5.9.16
impulse control;
5.9.17
emotional maturity;
5.9.18
lack
of insight into his situation;
5.9.19
Fatigue.
[6]
The plaintiff passed Grade 12 and at the
time of the accident he was in his second year of studies towards a
boilermaking certification
at an FET College. He was struggling to
cope with Mathematics and Engineering Science and had in fact failed
the subjects carrying
them over from his first year. Whilst the
defendant signed off on the stated case that the plaintiff would have
completed his studies
towards a boilermaker certification in 2013,
followed by an apprenticeship of 3 years where he would have an
earning capacity within
the Paterson 81 level, counsel for the
defendant in oral submissions to this court submitted that it cannot
be said that the plaintiff
would have completed his studies in 2013
bearing in mind his academic record in failing Mathematics and
Engineering Science. The
latter submission, however, does not accord
with the opinion of the experts and it cannot be said to have been
shown on a balance
of probabilities that the plaintiff would not have
completed his studies in 2013. Upon completion of his apprenticeship
on the
facts in the stated case, he would have earned an income
within the Paterson C2 Level Guaranteed package with inflationary
increases
until retirement at age 65.
[7]
The experts hold the view that the
plaintiff is functionally unemployable as a result of the accident.
[8]
The parties agree with the actuarial
calculation of the plaintiff's actuary, Algorithm Consultants and
Actuaries, save for the contingencies
to be applied to future loss of
income or loss of earnings. The quantum of general damages, which
arose after the matter was allocated
for trial, likewise remains in
dispute.
[9]
The joint minutes of the opposing
experts were admitted as evidence in respect of the aspects on which
the experts are in agreement.
That in brief is the stated case.
[10]
On the issue of general damages plaintiff's counsel submits that an
amount in the region of R1
300 000 to R1 600 000 will be a fair
amount, placing reliance on the unreported decision of
Ewan
Opperman v RAF
(Case Number 07/276816) handed down by Jajbhay J
in the Gauteng Local Division on 27 August 2009. In the
Opperman
case, it is noted at paragraph 15 that the plaintiff sustained
"...a moderately severe brain injury as well as a range of
orthopaedic
injuries in the accident, inclusive of fractures to his
left collar bone, his left scapula, a left hip injury, a left knee
injury
and a neck injury." An award of R800 000.00 was made in
2007. The court referred by way of comparison to the matter of
Zarrabi v Road Accident Fund
2006 5 QOD 84-231 (T) where an
award of R800 000.00 was similarly made. The award in
Zarrabi
translates to R1 655 000.00 in 2018 terms.
[11]
The defendant's counsel holds
instructions to tender an amount of R1 000 000.00 in respect of
general damages and concedes that
nothing less would suffice as a
fair award. In proposing the said amount counsel referred to the
award in
Torres v Road Accident Fund
2007 6 QOD A4-1 (GSJ) and
Herbst
v Road Accident Fund
2007 6 QOD A4-7
(WLD) where an amount of R600 000.00 was awarded in 2007 in respect
of each of the cases, translating to R1 159
000.00 in 2018 terms.
[12]
The difficulty in quantifying the
monetary value of loss in claims of this nature is succinctly stated
in
Terblanche v Minister of Safety
and Security and Another
2016 (2) SA
109
(SCA) at paragraph [14]:
'The difficulty with claims of
this nature is generally not so much the recognition that earning
capacity constitutes an asset in
a person's estate, but rather the
quantification of the monetary value of the loss of earning capacity
by a trial court.
Each case naturally depends on its own facts and
circumstances, as well as the evidence before the trial court
concerned.'
(my emphasis )
[13]
It is widely accepted that no two cases
present with the same factual matrix in matters of this nature. In
De
Jongh v Du Pisani
2004 (2) All SA
565
(SCA) at 682i it was reiterated that the court in determining
quantum for general damages must have regard to previous comparable
cases. The principle is that an award will be fair if it demonstrates
consistency with previously decided cases of a similar nature.
In
doing so, however, it must not be overlooked that a court is vested
with a discretion which is to be exercised with due regard
to the
peculiar facts of the matter it is seized with.
[14]
Having
regard to the case law referred and whilst bearing in mind that the
injuries of the plaintiff in the present matter are distinct
from
those the
Opperman,
Torres
and
Herbst
cases
I am satisfied that an award in line with the decisions of
Torres
and
Herbst
would
be justified.
[15]
There is a dispute between the parties
regarding the basis of the calculation of the loss of earnings in
terms of the contingencies
to be applied. The plaintiff relies on the
actuarial calculation with a 5% contingency deduction being applied
to past loss of
income and 20% on future loss of income. The
defendant takes no issue with the 5% pre-morbid contingency deduction
but submits
that the historical learning disability of the plaintiff
inherent in him failing Mathematics and Engineering Science cannot be
ignored. The argument is that the plaintiff cannot be compared with a
student who has passed the said subjects and who would ordinarily
complete the qualification within the usual time frame for the
qualification. On this basis it is submitted that a higher
contingency
be applied to loss of earnings or future loss of income,
by adding an additional 5% to the 20% contingency deduction. The
submission,
however, does not accord with the opinions of the expert
which does not place the plaintiff at a disadvantage in the time
frame
within which he would complete the qualification. It would, in
any event be purely speculative to suggest that the plaintiff would
not complete the qualification in the prescribed period, when regard
is had to his academic record as a whole.
[16]
I am satisfied that the calculations
with the contingencies applied by the actuary accords with the expert
opinions based on the
evidence and are sound.
[17]
Having regard to the reasons stated
above, I am satisfied that award the plaintiff is entitled to should
be calculated as follows:
General
damages
R1 159 000.00
Loss of earnings and earning
capacity R6 743 226.00
Past medical
expenses
R
25
4 995.00
Total
R8 157 221.00
[18]
In the result I make the following order, as set out in the Draft
Order marked
"X",
the contents of which is
specifically set out herein as part of this judgment:
1. The defendant shall pay the
amount of RB 157 221.00 (Eight million, one hundred and fifty seven
thousand, two hundred and twenty
one Rand) calculated as follows:
General
Damages:
R 1 159 000.00
Loss
of Earnings:
R 6 743 226.00
Past medical
expenses
R254 995.00
to the Plaintiff in his capacity
as
curator ad litem
to
JOHANNES HENDRIK BARNARD
("the
injured") which payment shall be made to attorneys, Du Toit
Attorneys, in settlement of the Plaintiffs claim which
amount shall
be payable by direct transfer into their trust account, details of
which are as follows:
DU TOIT ATTORNEYS
FNB
Branch code: 250130
Trust Account Number: [….]
Ref.: RAF1068/MJ DU TOIT
1.
The
amounts 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 rate of 10.25% per annum calculated
from and
including the 15 (FIFTEENTH) calendar day after the date of this
Order to and including the date of payment thereof.
2.
The
Defendant shall provide the Plaintiff with an Undertaking as
envisaged in Section 17 (4) (a) of Act 56 of 1996, 100% for the
costs
of the future accommodation of the injured
JOHANNES
HENDRIK BARNARD
in a hospital or
nursing home and such treatment, services or goods as the injured may
require as a result of the injuries that
the injured sustained as a
result of the accident which occurred on 11 May 2013, as set out in
the medico legal reports obtained
on behalf of the Plaintiff, after
such costs have been incurred and upon proof thereof, which costs
shall include:
2.1
The
agreed or taxed cost to be incurred in the establishment of a trust
to
inter alia
protect,
administer and/or manage the capital amount and the proceeds thereof
referred to in paragraph 1
supra;
2.2
The
costs of the trustee in administering the capital amount referred to
in paragraph 1
supra
as
determined by the Administration of Estates Act, Act 66 of 1965 (as
amended), according to the prescribed tariff applicable to
curators
as reflected in the Government
Gazette Notice R1602 of 1 July 1991, and in particular paragraphs
3(a) and 3(b) of the Schedule thereto;
2.3
The
costs of the furnishing of annual security in terms of section 77 of
the Administration of Estates Act, Act 687 of 1965 (as
amended);
2.4
The
Plaintiff shall appoint Enonix Trust Administration in this regard..
3.
That the attorneys for the Plaintiff, Du
Toit Attorneys, are ordered:
3.1
To
cause a trust ("the trust") to be established in accordance
with the Trust Property Control Act No 57 of 1988 to administer
the
estate of the injured;
3.2
To
pay all monies held in trust by them for the benefit of the injured,
to the trust;
3.3
The
trust instrument contemplated above shall make provision for the
following:
3.3.1
that
the injured is the sole beneficiary of the trust;
3.3.2
that
the first trustee(s) shall be Marisca de Beer of Enonix (Pty) Ltd
acting through its nominee(s) from time to time;
3.3.3
that
the trustee(s) are to provide security to the satisfaction of the
Master;
3.3.4
that
the ownership of the trust property vest in the trustee(s) of the
trust in their capacity as trustees;
3.3.5
procedures
to resolve any potential disputes, subject to the review of any
decision made in accordance therewith by this Honourable
Court;
3.3.6
that
the trustee(s) be authorised to recover the remuneration of, and
costs incurred by the trustee(s), in administering the undertaking
in
terms of Section 17(4)(a) of Act 56 of 1996 in accordance with the
certificate of undertaking to be provided by the Defendant;
3.3.7
the
suspension of the injured's contingent rights in the event of
cession, attachment or insolvency, prior to the distribution or
payment thereof by the trustee(s) to the injured;
3.3.8
that
the amendment of the trust instrument be subject to the leave of this
Honourable Court;
3.3.9
the
termination of the trust upon the death of the injured
altematively
upon the consensus of the trustees,
in which event the trust assets shall pass to the estate of the
injured;
3.3.10
that
the trust property and the administration thereof be subject to an
annual audit.
4.
The
Defendant must make payment of the Plaintiff's taxed or agreed party
and party costs on the High Court scale, including costs
of
senior-junior counsel and the following:-
4.1
The
costs of senior-junior counsel (which is to include,
inter
alia,
preparation, perusal, and
counsel’s day fees for 12 February 2018);
4.2
The
costs of attorney's, which includes reasonable travelling costs,
costs for preparing for Pre-Trial Conferences, and costs for
actual
attendance to Pre-Trial Conferences, the costs of and consequent to
compiling all Pre-Trial Agenda's and Pre-Trial minutes,
including
counsel’s charges, the costs of holding round table meetings
between the legal representatives for both the Plaintiff
and the
Defendant, including counsel's charges in respect thereof,
irrespective of the time elapsed between pre-trials, all costs
for
preparing for trial, and the attorney's day fees in attending to
trial on 12 February 2018, which shall include all costs previously
reserved, the reasonable cost of consulting with the Plaintiff to
consider the offer, the cost incurred to accept the offer and
make
the offer an order of Court;
4.3
All
the cost in obtaining all medico legal/expert and actuarial reports
as well as the Plaintiff's travelling and lodging costs
in attending
the Plaintiffs experts. The Plaintiff filed the medico legal/expert
reports referred to in sub-paragraph 5.5 below.
4.4
The
reasonable costs for preparation for trial and consultations with
Plaintiff and witnesses and experts and Counsel;
4.5
The
reasonable taxable preparation, reservation and attendance fees, if
any, of the following experts of whom notice have been given,
being:-
4.5.1
Dr. G. Marus (Neurosurgeon);
4.5.2
Dr. C. Barlin (Orthopaedic Surgeon);
4.5.3
Dr. Sulman (Radiologist);
4.5.4
Dr. D.A. Shevel (Psychiatrist);
5.5.5
Alison Crosbie Inc. - Kirsten du Toit (Occupational Therapist);
4.5.6
Dr. H. Roodt (Eye Specialist;)
4.5.7
Stevens, Valer & Verster (Hearing & Balance Clinical
Audiology);
4.5.8
Dr. S. Bouwer (Ear, Nose and Throat Surgeon);
4.5.9
Dr. A.P.J. Botha (Specialist Physician);
4.5.10 CPRD Consulting
- Riana De Villiers (Counselling Psychologist);
4.5.11 Dr. L.
Berkowitz (Plastic and Reconstructive Surgeon);
4.5.12 Eleanor Bubb
(Clinical and Educational Psychologist);
4.5.13
Michelle Gaspar (Speech Therapy & Audiology);
4.5.14
Prof. R. Lurie (Maxilla-facial and oral surgeon;)
4.5.15
L. Linde (Industrial Psychologist;)
4.5.16 G. Whittaker
(Actuary).
5.6
The reasonable travelling costs of the Plaintiff, who is hereby
declared a necessary witness;
4.7
The
costs consequent to the Plaintiff's trial bundles and witness
bundles, including the costs of 4 (four) copies thereof;
4.8
The
costs consequent upon the appointment of the
curator
ad litem
and the further reasonable
costs of the
curator ad litem;
4.9
The above costs will also be paid into the aforementioned trust
account.
5.
The
following provisions will apply with regards to the determination of
the aforementioned taxed or agreed costs:-
6.1 The
Plaintiff shall serve the notice of taxation on the Defendant’s
attorney of record;
5.2
The
Plaintiff shall allow the Defendant 14 (FOURTEEN) court days to make
payment of the taxed costs from date of settlement or taxation
thereof;
5.3
Should
payment not be effected timeously, the Plaintiff will be entitled to
recover interest at the rate of 10.25% on the taxed
or agreed costs
from date of allocator to date of final payment.
6.
No contingency fee agreement was
concluded between the Plaintiff and her Attorney.
AH PETERSEN
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
APPEARANCES
For the Plaintiff: Adv.DJ Combrink
Instructed by: M du Tait Attorneys
For the Defendant: Adv. Magwane
Instructed
by: Maluleke Msimang and Associates
Date
Heard: 12 February 2018
Date
of Judgment: 13 February 2018