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[2018] ZAGPPHC 642
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Tromp N.O obo Weyers Road Accident Fund (19018/2015) [2018] ZAGPPHC 642 (2 March 2018)
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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
CASE
NO: 19018/2015
Not
Reportable
Not
of interest to other judges
2/3/2018
In
the matter between:
ADV MM TROMP N.O.
obo PH
WEYERS
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
PETERSEN
AJ
Introduction
[1]
The plaintiff Pieter Harold Wessels was
36 years and seven months old at the time of a collision on 19 August
2013 at the premises
of Laerskool Meiringspark, Klerksdorp on
Mahogany Road, Klerksdorp as a passenger in the back of a Nissan 1400
LDV with registration
number [….]. He initially instituted
action against the defendant in his personal capacity in terms of the
provisions of
the Road Accident Fund Act, Act 56 of 1996 ("the
Road Accident Fund Act"). He suffered damages as a result of
injuries
sustained in a collision that occurred. Adv MM Tromp was
subsequently appointed as curator
ad
litem
for the plaintiff and
substituted as plaintiff.
Issues of common cause and issues is dispute
[2]
The issue of liability (merits) was
conceded 100% in favour of the plaintiff. The defendant further gave
a statutory undertaking
in terms of section 17(4)(a) of the Road
Accident Fund Act for the future medical and related expenses of Mr
Weyers. An amendment
was sought in respect the amount in respect of
past medical expenses, to reflect an amount of R3003.75, which is not
in dispute.
Pursuant to a second Joint Minute received from the
parties Industrial Psychologists on 2 February 2018, the parties
agree that
the appropriate retirement age to be utilised as a basis
for actuarial calculations is 65 years. The said age of 65 years
finds
reflection in scenario 2 of the actuarial calculations which
was subsequently obtained after the industrial psychologists agreed
that the injured parties' income for calculation purposes be
calculated at R118 800.00 per annum as at 2014 increasing yearly in
accordance with the Consumer Price Index. The parties agree that a
10% contingency deduction be applied to past loss of income.
There is
no consensus however on the contingency deduction to be applied to
loss of earnings. The issue of an appropriate contingency
deduction
applicable to loss of earnings; and general damages which should be
awarded remains in dispute.
[3]
The plaintiff and defendant filed
several medico-legal reports of various experts inclusive of joint
minutes. The content of the
reports is not in dispute and was
received as evidence by the court.
[4]
The seriousness of the plaintiff'
injuries are not in dispute and the parties agree that he is entitled
to general damages and further
that he is unemployable in the open
labour market.
The injuries
[5]
According the neurosurgeons the
plaintiff sustained a moderate to severe traumatic brain injury. in
the motor vehicle collision
which has resulted in significant
long-term neurophysical, neurocognitive and neuropsychiatric
sequelae. He had further sustained
damage to both frontal lobes of
his brain which has further aggravated the sequelae of the diffuse
brain injury which makes it
a very significant brain injury. They
further describe the accident as having been a life changing event.
The plaintiff suffers
from post-traumatic epilepsy, balance and
co-ordination difficulties, he is unable to smell and has the
appearance of a person
with brain damage. A curator bonis is
accordingly recommended.
[6]
The clinical neuropsychologists agree
that significant cognitive and behavioural disturbances are present
due to the traumatic brain
injury sustained. They further agree that
his neuropsychological status is permanent and his prognosis for
depression is poor.
As a consequence the plaintiff is regarded as
unemployable in the open labour market and meets the narrative test
of significant
and long-term mental disturbance. The plaintiff will
require protection of any award made.
Loss of Earnings and Earning Capacity
Pre-Morbid
[7]
The plaintiff is currently 41 years old.
He completed Grade 10 at the Hoer Tegniese Skool Klerksdorp at the
age of 15 or 16, having
failed grade twice. He had enrolled himself
at the said school following a school career manifest with regular
moves from one school
to another. His subjects included, English,
Afrikaans, Mathematics, Science, Technical Drawing and Motor
Maintenance. Upon leaving
school he did a security grade E course
from 3 to 8 June 1995 and a grade D from 10 to 15 June 1995 at De
Bruyn Training Centre.
He followed this with a course in motor
maintenance and repairs at the Speciss College, starting on 31
January 1996 and completed
230 hours. During August and September
1997 he did a security grade C and mining security course. The
plaintiff could not provide
the industrial psychologist for the
plaintiff a curriculum vitae of his early work career. He reported to
have worked at a Supermarket
called Schoonspruit Supermarket as a
security officer and attending to cleaning duties. He moved to
Johannesburg in search of his
mother and worked as a security officer
at a building In Hillbrow where his uncle was employed as caretaker,
for three to four
years. He did a trade test in Zimbabwe after 240
hours of work and qualified as a welder. He returned to South Africa
and did contract
welding for Bond Industries in Klerksdorpfor a
certain Pieter Rossouw of Dynamic Machinery. At some stage he did
cellphone repairs
with two other persons for about six to seven years
to generate a better income. When the building where he did cellphone
repairs
was sold he returned to welding and worked for Consulmet
Construction in Klerksdorp. His employment with Consulmet took him to
Kenya, Ghana and Sierra Leone where he did arc-welding, tick-welding
and argon welding at diamond plants. He left this employment
after
three years as a result of physical abuse from his employer. His work
career was manifest with periods of unemployment. At
the time of the
collision he was unemployed for at least six months. He remains
unemployed after the accident.
Post-Morbid
[8]
The plaintiff can no longer engage in
welding as a career and it is common cause that he is totally
unemployable in the open labour
market. According to Mr Bobby
Stopforth, a friend of the plaintiff for some 15 years, he took the
plaintiff from Potchefstroom
where he was living with family members
who were not taking care of him. Mr Stopforth and his wife have
become the primary caregivers
of the plaintiff whom he describes as a
child who is incapable of taking care of himself.
Quantification of the heads of damage: Loss
of earnings and earning capacity and general damages
[9]
As stated above the dispute between the
parties is predominantly premised on the contingency deduction that
should be applied to
loss of earnings (future loss) with the
plaintiff submitting that a 25% contingency deduction be applied
whilst the defendant maintains
a 30% contingency deduction should be
applied. Ms Ferguson for the plaintiff submits that the 25% deduction
should be applied based
on the plaintiff's working career where he
had on the job training, security and welding experience, his
intermittent periods of
unemployment and the fact that he was
unemployed at the time of the accident. The submission is made in the
plaintiff's heads of
argument, that "It follows that contingency
deductions (or additions, although in practice these are usually the
former) are
adjusted upward or downward depending on the nature of
the underlying assumptions. In other words, the more liberal the
underlying
assumptions the higher the contingency deductions will be,
and the more conservative the underlying assumptions, the lower."
Mr
Mhlanga submits that a 30% deduction premised predominantly on the
periods of unemployment and uncertainty as to the plaintiffs
income.
[10]
In
Shield Insurance Co Ltd v Booysen
1979 (3) SA 953
(A) at
965 G-H, Trollip JA stated:
'... the
determination of allowances for such contingencies involves, by its
very nature, a process of subjective impression or
estimation rather
than objective calculation, in other words, allowances on which
judicial opinions may vary appreciably,...'.
[11]
In
Southern
Insurance Association v Bailey NO
1984
(1) 98 AD at 113 to 114C D, two approaches to determine future
loss of earnings is identified by Nicholas JA:
"One
is for the Judge to make a round estimate of an amount which seems to
him to be fair and reasonable. That is entirely
a matter of guess
work, a blind plunge into the unknown. The other is to try to make an
assessment by way of mathematical calculations,
on the assumptions
resting on the evidence. The validity of this approach depends of
course upon the soundness of the assumptions,
and these may vary from
the strongly probable to the speculative. It is manifest that either
approach involves guesswork to a greater
or lesser extent.
In a case
where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the
first
approach offers any advantage over the second. On the contrary, while
the result of an actuarial computation may be no more
than an
"informal guess" it has the advantage of a logical basis".
[12]
In his book "The Quantum Yearbook"
Robert J Koch notes the following guidelines to contingency
deductions:
"Sliding
Scale: % per year to retirement age, i.e 25% for a child, 20% for
youth and 10% in middle age (See Goodall v President
Insurance
1978
(1) SA 389
(W)... ".
The
unemployed victim: The actuarial calculations will usually be based
on the earnings of the last known occupation. Deductions
can be as
high as 50% (see AA Mutual v Maqula
1978 (1) SA 805
(A)), but even
less, can be justified depending on the employment history and
occupation. In Gwaxula v RAF 2013 (SGH unreported
25.09.2013 case
number 41896/2009) 30% was deducted.
[13]
No two cases ever present with the same
facts. The salutary practice is that each case must be assessed on
its own peculiar facts.
The employment history supplied by the
plaintiff was very erratic and had to be pieced together by the
industrial psychologist
of the plaintiff. The plaintiff's employment
history included periods of unemployment. He was, however, a
qualified welder whose
skills would always be in demand. He could in
my view have secured employment with relative ease as a welder. At
times, however,
he consciously chose not to engage in employment with
this particular skill set. At the time of the collision he reported
that
he was unemployed for about six months .
[14]
Having regard to the peculiar facts of
this matter and in view of what has been said above, I am satisfied
that the contingency
deduction of 30% in respect of future loss of
earnings as proposed by the defendant is not unreasonable. I am
accordingly satisfied
that a 10% contingency deduction in respect of
past loss of earnings as agreed and a 30% contingency deduction in
respect of future
loss of earnings and earning capacity would be fair
and just. An amount of R1 926 974.00 is accordingly awarded in
respect of loss
of earning capacity.
General
Damages
[15]
Both counsel for the plaintiff and the
defendant referred to various comparative authorities or case law in
making submissions on
the amount that should be awarded as general
damages. The result is that counsel for the plaintiff submits that an
amount of R1,6
million rand should be awarded for general damages
whilst counsel for the defendant submits that an amount of R1 million
should
be awarded. The submission in the present matter regarding the
said amount was that there has been a tendency since 2003 for courts
to award higher amounts in general damages as opposed to previously
decided cases.
[16]
In considering a fair award for general
damages in the present matter, it would be appropriate to restate the
approach to be adopted
by the court. In
De
Jongh v Du Pisani
2004 (2) All SA
565
(SCA);
2005 (5) SA 457
(SCA), the court said the following
(loosely translated from Afrikaans to English):
'56 Rabe
is entitled to fair compensation for this loss. The amount of such
compensation must, however, also be fair towards the
defendant. It is
particularly so in a matter such as this, that the Court must avoid
the human tendency to over compensate. Or,
as Innes CJ stated it in
in
Hulley v Cox
1923 AD 234
op 246, 'we cannot allow our
sympathy for the claimants in this very distressing case to influence
our judgment'.
58 The
problem is of course that compensation can only be paid in money and
the Court's dilemma is the award of monetary value for
loss that
money cannot buy. One of the accepted guidelines utilised by the
Courts as a solution to this dilemma is to look at previous
awards in
comparative cases.
60 The
tendency of rising awards in general damages in the recent past is
clearly noticeable... The following statement of Holmes
J in
Pitt
v Economic Insurance
Co
Ltd
1957
(3) SA 284
(D) op 287E - F is equally applicable to the present matter:
'(T)he
Court must take care to see that its award is fair to both sides - it
must give just compensation to the plaintiff, but it
must not pour
out largesse from the horn of plenty at the defendant's expense.'
Conservatism
in the award of general damages has its origin in the need that
fairness should also be extended to the defendant and
not as result
of the miserliness of the community towards the plaintiff.
…
.
64 ... In
the exercise of the Court's discretion comparisons with awards in
previous cases is a valuable aid since it indicates
to the Court the
broad parameters or pattern within which the Court's award should
resort. It is also so that uniformity in awards
is a requirement of
fairness. Nonetheless it remains a guideline. It does not replace the
Court's discretion by being slavishly
bound to the letter of adjusted
values of previous awards.'
I wish to highlight the following at paragraph
21 of the judgment, where the court endorsed the view of the experts
in the context
of that matter in respect of brain damaged persons:
‘
As
a result the experts were in agreement that the determination of a
brain injured person , like Rabe, the actual cognitive abilities
does
not necessarily depend on the results of psychometric tests, but how
he copes with daily life'
[17]
In the unreported decision of
Minister
of Police v Dlwathi
(20604/14)
[2016] ZASCA 6
(2 March 2016), Majiedt JA said:
"8
It is well established that an assessment of an appropriate award of
general damages (sometimes also referred to as non-pecuniary
damages)
is a discretionary matter and has as its objective to fairly and
adequately compensate an injured party (see
Protea Assurance
Co
Ltd v Lamb
1971 (1) SA 530
(A) at 534H-535A and
Road
Accident Fund v Marunga
ZASCA (144/2002) [2003) ZASCA 19;
2003
(5) SA 164
(SCA) para 23)..."
[18]
In a recent matter,
Minister
of Safety and Security v Augustine and Others
2017
(2) SACR 332
(SCA), Gorven AJA restated the approach:
'28 ...
Both counsel pointed to a number of previously decided matters which,
they submitted, should guide this exercise. It is
worth remembering
the part played by previous awards in comparable cases. This was
clearly expressed by Potgieter JA
(Protea Assurance
Co
Ltd
v Lamb
1971 (1) SA 530
(A) at 535H - 5368):
'It should
be emphasised... that this process of comparison does not take the
form of a meticulous examination of awards made in
other cases in
order to fix the amount of compensation; nor should the process be
allowed so to dominate the enquiry as to become
a fetter upon the
Court's general discretion in such matters. Comparable cases, when
available, should rather be used to afford
some guidance, in a
general way, towards assisting the Court in arriving at an award
which is not substantially out of general
accord with previous awards
in broadly similar cases, regard being had to all the factors which
are considered to be relevant in
the assessment of general damages.
At the same time it may be permissible, in an appropriate case, to
test any assessment arrived
at upon this basis by reference to the
general pattern of previous awards in cases where the injuries and
their
sequelae
may
have been either more serious or less than those in the case under
consideration.'
And, while
a court should also take into account a significant reduction in the
value of money, the mechanical application of the
increase in the
Consumer Price Index between the date of the award and the present
case should likewise be guarded against. Some
effect should, however,
be given to it.'
[19]
I refer to the more apposite cases
referred to by counsel for the plaintiff and defendant by way of
comparative analysis. In
Seme v Road
Accident Fund
2008 5 QOD A4-33 (D)
the plaintiff, a 36 year old male AIDS facilitator/counsellor,
sustained a severe head and brain injury, fractures
of the maxilla
with multiple loss of teeth, bilateral pulmonary contusion, fractures
of the right tibia and fibula, compound fracture
of the left knee,
multiple scalp and facial lacerations, dislocation of the right elbow
as well as the lumber spine and pelvis.
The plaintiff was awarded
general damages of R1 million on 9 September 2008, which equates to
R1 731 000.00 in 2018 (The Quantum
Yearbook, 2018 p36)
[20]
In
D'Hooghe
v Road Accident Fund
2010 (6J2) QOD
1 (ECP) the plaintiff, a 21 year old male, sustained a diffuse axonal
brain injury, with fractures of the humerus,
tibia, and tibial
plateau, severe trauma to the lungs and chest and development of
respiratory distress syndrome requiring intubation
and ventilation
for two months. The injuries left him unable to work and compete in
the employment market. The plaintiff was awarded
general damages of
R650 000.00 which equates to R1 051 000.00 in 2018 (The Quantum
Yearbook, 2018 p10)
[21]
In
Anthony
v Road Accident Fund
(27454/2013)
[2017] ZAGPPHC 161 the plaintiff, a 22 year old female law student,
sustained a traumatic brain injury described as
significant. The
plaintiff was awarded general damages of R1 600 000.00 in 2017.
[22]
In
Smit
v Road Accident Fund
2013 (6A4) QOD
188 (GP) the plaintiff a 27 year old gardener suffered a moderate to
severe organic brain syndrome with post
traumatic associated
frontal lobe symptomatology and post-traumatic epilepsy; and a
fractured femur. The plaintiff was awarded
general damages of R650
000.00 on 16 November 2012, which equates to R908 000.00 in 2018.
[23]
In
Van
Zyl NO v Road Accident Fund
2012
(6A4) QOD 138 (WCC) the plaintiff a 19 year old part-time law student
suffered a severe diffuse axonal brain injury, multiple
lacerations
of the head and face, fractures of the right tibia and fibula and
injuries to the left arm. This resulted in neurophysical,
neurocognitive and neuropsychological deficits with right hemiplegia,
right upper limb weakness, ataxia, impaired balance, headaches,
fatigue, cognitive and executive mental impairment and
neuro-behavioural disorder. The plaintiff was rendered unemployable
as
a result of the accident.
[24]
I further had regard to a number of
other cases. In
Zarrabi v Road
Accident Fund
2006 5 QOD 84-231 (T)
where the plaintiff, a 30 year old female trainee medical specialist,
sustained severe diffuse axonal brain
injury with severe neuro
physical , neuro -cognitive and neuro-psychiatric consequences. The
cognitive and physical sequelae
of her injuries left her totally
unemployable as a medical doctor. The plaintiff was awarded general
damages of R800 000.00 on
6 April 2006, which equates to R1 655
000.00 in 2018 (The Quantum Yearbook, 2018 p42).
[25]
In
Nepgen
NO v Road Accident Fund 2012
JDR
0410 (ECP); 2012 (6) QOD A4- 129 (ECHC), a 40 year old manual worker,
sustained a severe closed brain injury, fractures of the
right tibia
and fibula, fracture of the left clavicle and extensive soft tissue
injuries. The plaintiff was awarded general damages
of R900 000.00 on
15 March 2012, which equates to R1 258 000.00 in 2018 (The Quantum
Yearbook, 2018 p25)
[26]
The cases demonstrate the vastly
different views held by various judicial officers in the context of
the peculiar facts in those
matters.
[27]
In the final analysis this court is
called upon to look at the peculiar facts of this matter. The experts
agree that the plaintiff
presents as a person who is brain damaged.
The collateral information from his friend Mr Stopforth is that
behaviour of the plaintiff
is akin to· that of a child who is
unable to take care of himself. The collateral information accords
with the expert opinion
on the plaintiff. There is no better example
of a brain damaged person who suffers the effects thereof in his
daily life and has
had his quality life significantly altered as a
result of the accident.
[28]
Having carefully considered the peculiar
facts of the present matter and the comparable cases alluded to I am
of the view that in
exercising my discretion in ensuring fairness to
both the plaintiff and the defendant, that an amount of R1 200 000.00
in general
damages be awarded to the plaintiff. A
curator
bonis
has been appointed by court
order dated 8 February 2018.
[29]
The defendant shall therefore pay to the
plaintiff an amount of R3 129 977.75 in settlement of the Plaintiff's
claim, comprised
as follows:
29.1
Past
medical and hospital
expenses
R 3003.75
29.2
Future
hospital, medical and related expenses:
Section 17(4)(a)
undertaking
29.3
Past
and Future Loss of income and earning capacity:
R1 926 974.00
29.4
General
damages
R1
200 000.00
Total:
R3
129 977.75
Order
[30]
In the result I make the following
order, as set out in the Draft Order marked
"X",
which is incorporated as part of
this judgment.
AH PETERSEN
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
Appearances
For the Plaintiff: Adv. R Ferguson SC
Instructed by: Adams & Adams
For
the Defendant: Adv. K Mhlanga
Instructed
by: Lekhu Pilson
Attorneys
Date Heard: 15 February 2018
Date
of Judgment: 02 March 2018
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
HELD
AT PRETORIA ON THIS THE 15
th
DAY OF FERUARY 2018 AT COURT 8A BEFORE THE
\
HONOURABLE
JUSTICE PETERSEN (AJ)
CASE NO: 19018/15
In
the matter between:-
ADV
M M TROMP NO obo WEYERS, PIETER HAROLD
("the
patient")
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
ORDER OF
COURT
HAVING HEARD COUNSEL
for
the Plaintiff ;
THE COURT GRANTS JUDGEMENT
in favour of the Plaintiff, in her
representative capacity as
Curatrix
ad Litem
for P H Weyers (hereinafter
referred to as "the patient") against the Defendant in the
following terms:-
1.
The
Defendant shall pay the sum of
R3
129 977.75 (Three Million, One Hundred and Twenty Thousand, Nine
Hundred and Seventy Rand and Seventy Five Cents
to the patient's attorneys , Adams & Adams attorneys, in
settlement of the patient' s claim, which amount, and any costs
payable
in terms of this order, shall be payable by direct transfer
into their trust account, details of which are as follows:
Account holder
: Adams &
Adams Trust Account
Bank
: Nedbank
Branch
: Pretoria
Branch code
: 198765
Account number
: [….]
Reference
: DBS/KW/P1369
The amount of
R3 129 977,75 (Three
Million, One Hundred and Twenty Nine Thousand Nine Hundred and
Seventy Seven Rand and seventy five cents)
to pe apportioned
as follows
:
1.
Past
and Future Loss of earnings
:
R
1 926 974.00 (One Million Nine Hundred and Twenty Six Thousand
Nine Hundred and Seventy Four Rand).
2.
General
damages:
R 1 200 000.00 (One
Million, Two Hundred Thousand Rand).
3.
Past
medical expenses
: R 3003,75
(Three Thousand and Three Rand, Seventy Five Cents).
2.1
The
Defendant shall furnish the Curator
bonis
appointed in terms of a court
order dated 8 February 2018 with an undertaking in terms of Section
17(4}(a) of Act 56 of 1996, in
respect of 100% of the costs of the
future accommodation of the patient, in a hospital or nursing home or
treatment of or rendering
of a service or supplying of goods to him
resulting from the injuries sustained in the accident that occurred
on 19 August 2013,
after the costs have been incurred and upon proof
thereof.
2.2
It
is declared that the undertaking in paragraph 2.1 above shall cover
the full amount of:
2.2.1
The remuneration of the Curator
bonis
,
calculated in accordance with the
tariff prescribed by the Administration of Estates Act, Act 66 of
1965 (as amended from time to
time}, disbursements incurred and
collection commission calculated at 6% on all amounts recovered from
the defendant in respect
of the Section 17(4)(a) undertaking;
2.2.2
The cost of providing security to the
satisfaction of the Master of the High Court by the Curator
bonis
in respect of the insurance cover
that he will have to take out in order to furnish such security as
may be required by the Master
of the High Court for the award herein.
2.2.3
The costs of and associated with the
preparation and auditing of curatorship accounts and financial
statements as required by the
Master.
2.2.4
To the extent that the aforesaid costs
are based on a percentage of the amount administered, they are not to
be subjected to any
apportionment and are to be met by the Defendant
in terms of the Undertaking on a 100% basis;
2.2.5
The appointment and reasonable costs of
a case manager.
3.
This
order should be read in conjunction with the order dated 8 February
2018 (confirming the appointment of Constant Wilsnach as
curator
bonis ),
as
specifically included herein.
4.
The
powers of the
Curator bonis,
as
set out in the court order dated 8 February 2018, are extended to
include the power to make investment of the award and any other
funds
or monies of the patient by means of any reasonable investment
vehicle other than only depositing such funds or monies in
an
interest bearing account with a bank or similar registered financial
institution, subject to the following:
4.1
This order shall be suspended for a
period of 30 calendar days from date of this order for the Master to
consider the extension
of this power provided for in paragraph 4 and
to submit a motivated written objection thereto should the Master
wish to do so,
in which event the suspension shall be automatically
extended until the matter has been reconsidered by this court or a
judge in
chambers (whichever is directed by the Deputy Judge
President).
4.2
If the Master does not object as
provided for above, the extension of the powers of the
Curator
bonis
shall become final after the
lapse of the aforesaid period or on receipt of a written consent by
the Master, whichever is the earlier.
5.
The
powers and obligations of the
Curator
bonis,
as set out in the order dated
8 February 2018, are extended in that the
curator
bonis
shall:
5.1
furnish such security as may be required
by the Master of the High Court as a result of the increase of the
patient's estate by
and as a result of this order; and
5.2
exercise
the aforesaid powers, subject to the control of the Master of the
High Court; and
5.3
administer
or arrange for administering of the undertaking referred to in
paragraph 2 above; and
5.3 effect
payment of the reasonable attorney and own client costs (fees,
disbursements, interest
on unpaid disbursements, any advance payments
made to the patient and interest on same) in respect of the
professional services
rendered herein by the firm of attorneys that
represented the patient in this matter, in so far as same have not
been deducted
from the award made on receipt thereof from the
Defendant, prior to effecting payment of the available balance to the
Curator
bonis.
6.
The
patient's attorneys are authorised to invest the capital amount and
taxed party and party costs in an interest bearing account
in terms
of Section 78(2A) of the Attorneys Act to the benefit of the
patient's estate with a registered banking institution pending
the
finalization of the directives referred to in paragraph 5 above.
7.
Pending
written confirmation by the Master of the furnishing of sufficient
security by the
curator bonis
and
payment is able to be effected of the nett proceeds of the claim, the
patient's attorneys of record are authorised and ordered
to pay from
the capital amount:
7.1
any
reasonable payments to satisfy any of the patient's needs that may
arise and that are required in order to satisfy any reasonable
need
for treatment, care, aids or equipment that may arise in the interim;
7.2
the
attorney and own client costs (fees, disbursements, interest on
unpaid disbursements any advance payments made to the patient
and
interest on same) of the patient's attorneys;
7.3
such
other amount(s) as may reasonably be indicated and/or required for
the wellbeing of the patient and/or in his interest which
a diligent
curator bonis
would
have paid.
8.
The
Defendant shall make payment of the Plaintiff's taxed or agreed party
and party costs on the High Court scale of the action,
which costs
shall include the following:-
8.1
The
costs of Senior Junior Counsel, inclusive of but not limited to his
reasonable, taxable full day fee for 15 February 2018 and
fees for
the preparation of Heads of Argument, if any;
8.2
The
fees of the Curatrix
ad Litem
on
the High Court Scale, inclusive of her reasonable, taxable full day
fee for 15 February 2018 and costs for preparation, attending
consultations, preparation of her report etc, as well as for
regarding the application her appointment as Curatrix
ad
litem;·
8.3
The
legal fees incurred regarding the application for the appointment of
the Curator
bonis;
8.4
The reasonable taxable costs of
obtaining all expert, medico-legal, actuarial and other medical
reports obtained from the Plaintiff’s
experts;
8.5
The reasonable taxable preparation,
qualification, reservation and travelling fees, if any, of the
following experts of whom notice
have been given, being:-
8.5.1
Dr M Mazabow;
8.5.2
Dr JJ du Plessis ;
8.5.3
Dr DA Shevel;
8.5.4
Ms Guy;
8.5.5 Ms
Holshausen;
8.5.6
Ms Noble; and
8.5.7
Mr G Whittaker.
8.6
The
reasonable taxable costs associated with joint meetings and minutes
of the parties ' experts, and consultations with such experts
in
preparation for trial.
8.7
The
reasonable taxable transportation costs incurred by the patient in
attending medico-legal consultations with the parties ' experts,
consultations with Plaintiffs legal representatives and the court
proceedings, inclusive of Toll and E-Toll charges, subject to
the
discretion of the Taxing Master;
8.8
The
reasonable, taxable costs incurred by the
curator
bonis
in performing his duties and
powers pertaining to this action;
8.9
The
costs of all consultations between the Plaintiff and/or her
attorney/s and/or the experts, and/or the patient and/or the
witnesses
in preparation for the hearing and to discuss the
settlement offer received from the Defendant and the terms of this
order;
8.10
The
above costs shall also be paid into the aforementioned trust account.
11.
The
following provisions shall apply with regards to the determination of
the aforementioned taxed or agreed costs:-
11.1
The
Plaintiff shall serve the notice of taxation on the Defendant's
attorney of record;
11.2
The
Plaintiff shall allow the Defendant 7 (SEVEN) court days to make
payment of the taxed costs from date of settlement or taxation
thereof;
11.3
Should
payment not be effected timeously, plaintiff shall be entitled to
recover interest at the rate of 10,5% on the taxed or agreed
costs
from date of allocator to date of final payment.
BY
ORDER OF THE COURT