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[2018] ZAGPPHC 14
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Groining obo K v RAF (49021/2013) [2018] ZAGPPHC 14 (5 March 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED
Case No.49021/2013
5/3/2018
In
the matter between:
GROINING,
A
obo FT
K
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MILLAR.
AJ
1. The plaintiff
brought an action for damages on behalf of her son France
T K “T")
for damages arising out of injuries suffered in a motor vehicle
collision. The action was brought against the
defendant the statutory
body responsible for such claims.
2. It is common
cause that all issues between the parties, save the quantum
of loss
of earnings and the costs of this hearing, have already been resolved
between the parties. No evidence was led, and the
issue was argued,
it being agreed between the parties that the expert reports filed by
the respective parties were admitted into
evidence and I could have
regard thereto as though those experts had testified. The minutes
prepared by the experts and in particular
between the educational
psychologists and industrial psychologists were similarly admitted.
3. The injured,
T was born on 28 January 2006 and was 6 years old at the time
of the
collision and of his injuries on 25 November 2011. The injuries
suffered were extensive and included an open depressed skull
fracture, a fracture of the left femur, lacerations on the right
foot, left knee, left arm, chin and forehead. He also suffered
conjunctiva! hemorrhages in both eyes, a contusion of the right lung
and abrasions to his abdomen.
4. The
seriousness of the injuries is not in dispute and neither are their
sequelae. T would but for the injuries have completed a grade 12
education, a matric, and had the potential to obtain a further
qualification but will now only be able to complete the equivalent of
a grade 8 level of education at a special school. He has
for all
intents and purposes been rendered virtually unemployable on the open
labour market.
5. What is in
dispute is whether he would, had he not been injured been educated
beyond grade 12 and if so to what level. The industrial psychologists
agreed on a grade 12 pre morbid career path and the
earnings
commensurate with this as derived from the Patterson scales. They
also agreed that there was a "realistic possibility"
stated
to be 50% of him obtaining a further post grade 12 qualification. In
regard to his post-morbid earning potential they agreed
that he was a
vulnerable individual who was best suited to unskilled labour. The
quantification of his post-morbid earnings was
recommended in
accordance with the Quantum Yearbook 2015, by Koch and was stated to
be from "R7 300- R18 600 - R53 500 per
annum". Put
differently this would be an income of R608 per month at the lower
end of the spectrum to R 4 458 per month at
the upper end of the
spectrum.
6. The plaintiff
has a post grade qualification and the two siblings of T
have both
attained a grade 12 level of education and it seems probable that had
he not been injured he would have attained the
grade 12 and possibly
progressed further. I am fortified in my view having regard to his
current age and the improved access to
further education for children
from modest backgrounds, that the possibility that he would have
progressed beyond grade 12 is a
realistic one.
7. The
parties presented actuarial calculations based on the scenarios
postulated by the industrial psychologists. The calculation presented
by the plaintiff for the post grade 12 qualification scenario
amounts
to R3 175 508,00 and that presented for the defendant to R3 124
989,00. The difference arises from the application contingencies.
8. The
principle to be applied is that set out in Southern Insurance
Association Ltd v Bailey NO
[1]
-
"Even where method of actuarial calculations is
adopted the trial Judge still has
a
discretion to award what he considers right
-
Can make
a
discount
for contingencies
-
Nature
of contingencies that can be taken into account
-
Such contingencies not always adverse"
9. Another
factor to be considered and which weighs heavily in this particular
matter, is the age of the T
[2]
.
10. The plaintiff's
calculation provides for the deduction of a 15% pre-morbid
contingency and 35% post morbid contingency whereas the defendant has
applied 20% to both. The difference in calculation is not
material.
11. While given the age of
T, I am of the
view
that the pre-morbid contingencies deducted
by both the plaintiff and defendant appear low
[3]
,
I am mindful of the fact that similarly the contingencies in respect
of the post-morbid scenario are also too low.
12. Adjustment to the
respective contingencies by this court, by increasing the pre and
post morbid contingencies is likely to yield substantially the same
result and, in the circumstances, there is no need for me to
interfere with the calculations. I am however inclined to accept the
calculation prepared on behalf of the plaintiff for the reasons
set
out above.
13. In the circumstances, I
make the following order:
13.1 The Defendant is ordered pay to the Plaintiff
the amount of R3 175 508.00 (Three million one hundred and
seventy-five thousand five hundred and eight rand only) on or before
the 20
th
day of March 2018.
13.2 The Defendant is ordered to pay interest on the
aforementioned sum from the 21st March 2018 at the rate of
10.5% per
annum to date of payment.
13.3 The aforementioned amount shall be paid into
the following bank account:
Name of Account Holder: NS Swan Attorneys Trust Account
Bank Name: Nedbank
Branch Code: 160345 (Gezina) Trust Account Number: [….]
13.4 The Defendant is ordered to pay the Plaintiff's
taxed or agreed party and party costs, which costs are to
include all
costs not previously recovered in terms of an order of this court
together with the costs of senior-junior counsel.
13.5 The Plaintiff's attorney is ordered to pay the
net proceeds, after the deduction of taxed attorney and own
client
costs in terms of the
Contingency Fees Act 1997
into the FT K Trust.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
16 FEBRUARY 2018
JUDGMENT
DELIVERED ON:
5 MARCH
2018
COUNSEL FOR
THE PLAINTIFF:
ADV AA LUBBE
INSTRUCTED
BY:
NS SWAN ATTORNEYS
REFERENCE:
MR N SWAN
COUNSEL FOR
THE DEFENDANT: ADV S MATHABATHE
INSTRUCTED
BY:
TAU PHALANE INC
REFERENCE:
MR
K RACHUENE
[1]
1984 (1) SA 98
(A) at 98 E-F
[2]
Goodall v President Insurance Co. Ltd 1978 (1) SA 389 (WLD)
[3]
ibid