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[2018] ZAGPPHC 442
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Barnard v Road Accident Fund (82476/2014) [2018] ZAGPPHC 442 (9 March 2018)
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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)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE
NO: 82476/2014
9/3/2018
In
the matter between:
KIRSTEN
BARNARD
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
L
BAM AJ:
[1]
The
Plaintiff instituted action against the Defendant consequent upon an
accident that occurred on 31 July 2013. The merits were
conceded 100%
in favour of the Plaintiff and the quantum is largely settled but for
the contingencies applicable to the post-morbid
award recommended by
the actuary. The actuary's assessment is based on relevant
information gleaned from joint expert minutes.
[2]
The
Plaintiff, a 23-year-old sports management student got injured when
the insured driver's vehicle crashed into a shop where she
was a
customer and knocked her .Her injuries are common cause and the
experts are in agreement regarding her future treatment needs
as well
as the effect of the injury on her employment and advancement
prospects.
[3]
Counsel
for the Plaintiff brought the court's attention to the fact that even
though the orthopaedic surgeon and industrial psychologist
acknowledged the consequences expected from future invasive
operations of total knee replacement, the actuary does not seem to
have made provision for these in his assessment. The orthopaedic
surgeon indicated in his report that the Plaintiff will need
rehabilitative treatment and assistive devices as well as domestic
assistance during recuperation. It is envisaged that these operations
may well become obstacles to her getting a job or if employed, a
reason for termination of her employment. The actuary himself
states
as follows in his notes
"it is
suggested that all the debilitating aspects be considered and
addressed by means of
a
significantly higher
post-accident contingency deduction .. .".
[4]
The
Defendant on the other hand called for a higher contingency spread of
40%. The basis for this was said to be the opinion of
the Defendant's
Industrial Psychologist Ms Kheswa who expressed contrary views during
the preparation of the joint minute. It appears
however that the
matter was discussed by the parties before the hearing started and Ms
Kheswa was excused as a witness after the
parties reached a consensus
on the content of the joint minute. The court therefore was left with
only the Plaintiff's submissions
while the defendant sought to stress
the point that joint minutes are binding on both litigants to the
extent of the experts' agreements.
Defendant’s counsel also
submitted that the Plaintiff can mitigate her loss by studying
further and changing her current
career path which requires a lot of
physical activity.
[5]
At
the end of the day, both parties acknowledged that the setting of
contingencies remains the prerogative of the court guided by
the
expert reports. A holistic view of the facts is needed so that focus
is not only on the injury itself, but on the life of the
plaintiff
going forward. Both favourable and adverse contingencies have to be
taken into account in determining the appropriate
contingency
deduction. Bearing in mind that contingencies are not always adverse,
the court should, in exercising its discretion
keep in mind that the
Plaintiff would not have been placed in the position where her income
would have to be the subject of speculation
if the accident had not
occurred. (See Mali AJ in DLAMINI v ROAD ACCIDENT FUND
[1]
).
[6]
I
am satisfied that the contents of the various reports and joint
minutes correctly reflect the Plaintiff's situation. I am also
in
agreement with the submission that a holistic assessment of the
post-morbid award should take into account the consequences
that will
necessarily flow from the Plaintiff's further and more involved
operations. The fact that the Plaintiff is still young
and is
expected; as is expected of any reasonable person; to mitigate some
of the adverse effects of the injury, should not retract
form the
reality that hers is not an improving condition. The experts agree
that with time there will be degeneration that will
result in her
ending up doing only sedentary work.
[7]
In
the premises I find it necessary to adjust the actuary's recommended
award for post-morbid loss slightly higher to cater for
the reality
of the Plaintiffs situation going forward. I am also mindful of the
fact that the Defendant should not be unduly burdened
with
unreasonable awards as its resources are very limited. The parties
have already agreed on the amount of R13 507.02 in respect
of past
medicals as well as the pre morbid contingency deduction of 15
percent.
[8]
I
am satisfied that a 30 percent spread in respect of the contingencies
is reasonable and therefore the Plaintiff is entitled to
the
following:
A
In respect of past medicals
R 13 507.00
B
In respect of past loss of income
R 7 953.00
In respect of future loss:
Pre-Morbid
R 7 122 026.00
Less 15% contingency
R 1 068 304.00
R 6 053 722.00
In respect of future loss:
Post-Morbid
R 5 862 560.00
Less 45% contingency
R 2 638 152.00
R 3 224 408.00
C
TOTAL
FUTURE LOSS: TOTAL
R 2 829 314.00
AWARDED:
A + B + C =
R 2 850 774.02
[9]
The
Plaintiff has submitted a draft order which will be duly amended and
made an order of court.
[10] In the result the
following order is made:
10.1 Draft Order marked
"X", as amended, is made an order of court.
L
BAM
ACTING JUDGE OF THE HIGH COURT
Counsel for the Applicant:
Adv Furgeson
Instructed by:
WEHMEYERS ATTORNEYS
Counsel
for the Respondent: Adv Matika
Instructed
by:
TAU PHALANE INC ATTORNEYS
Date
of Hearing:
6 March 2018
Date
of Judgment:
9 March 2018
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 82476A/14
PRETORIA
09 MARCH 2018
BEFORE
THE HONOURABLE MADAM JUSTICE BAM, AJ
In the matter between:
KIRSTEN
BARNARD
Plaintiff
And
ROAD ACCIDENT FUND
Defendant
HAVING HEARD counsel(s) for the parties and
having read the documents filed the court reserved its judgment.
THEREAFTER ON THIS DAY
THE COURT ORDERS
JUDGMENT
Draft
Order marked
"X",
as amended, is made an order of
court.
BY
THE COURT
REGISTRAR
AM
Attorney:
WEHMEYERS
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
ON THIS 6
TH
OF MARCH 2018 AT
PRETORIA IN COURT
BEFORE
THE HONOURABLE BAM AJ
CASE NUMBER: 82476/2014
In the matter between:
KIRSTEN
BARNARD
PLAINTIFF
ROAD ACCIDENT
FUND
DEFENDANT
ORDER
THE COURT ORDERS THAT:
1.
The Defendant is ordered to pay damages to the Plaintiff in a total
amount of
Two million, eight hundred and fifty thousand, seven
hundred and seventy-four rand and two cents (R2 850 774-02)
2.
The Defendant shall pay the Plaintiffs taxed or agreed party and
party costs
on the High Court scale, subject thereto that:
2.1.
In
the event that costs are not agreed:
2.1.1
the Plaintiff shall serve a notice of
taxation on the Defendant's attorney of record;
2.1.2
the Plaintiff shall allow the Defendant
14(fourteen) Court days from date of
allocator
to make payment of the taxed costs;
the costs incurred to accept the offer and make the offer an order of
Court;
2.1.3
should
payments not be effected timeously, the plaintiff will be entitled to
recover interest at the rate of 10.25% per annum on
the taxed or
agreed costs from the date of
allocato
r
to date of final payment;
2.2
such costs shall include:
2.21 the
costs incurred in obtaining payment of the amounts mentioned in
paragraphs 2 above;
2.2.3 costs to
date of this order, which, preparation for trial and attendance at
court which shall
include all costs previously reserved, the
reasonable costs incurred to accept the offer and make the offer and
order of Court;
2.2.4
the
costs of all medico-legal, radiological, actuarial, addendum and
joint reports obtained by the Plaintiff, as well as such reports
furnished to the Defendant and/or to the knowledge of the defendant
and/or its attorneys, as well as all reports in their possession
and
all reports contained in the Plaintiffs bundles, irrespective of the
time elapsed between any reports by an expert;
2.2.5
the
reasonable and taxable preparation, qualifying and reservation fees,
if any, in such amount as allowed by the Taxing Master,
of the
experts as in 2.2.4 above; .
2.2.6
the
reasonable cost incurred by and on behalf of the Plaintiff in, as
well as the costs consequent to attending the medico-legal
examinations of both parties;
2.2.7
the
costs consequent to the Plaintiffs trial bundles and witness bundles,
including the costs of 6 (six) copies thereof;
2.2.8
the
costs of holding all pre-trial conferences, as well as roundtable
meetings between the legal representatives for both the Plaintiff
and
the Defendant, including senior-junior counsel's charges in respect
thereof, irrespective of the time elapsed between pre-trials:
2.2.9
the
costs of and consequent to compiling all minutes in respect of
pre-trial conferences, including senior-junior counsels charges;
2.2.10 the cost of holding all
inspections in
loco,
if any;
2.2.11 the reasonable travelling
costs of the Plaintiff, who is hereby declared unnecessary witness.
3.
The amounts referred to in paragraphs 2 will be paid to the
Plaintiff's attorneys,
Wehmeyers Attorneys, by direct transfer into
their trust account details of which are the following:
Name:
Wehmeyers Attorneys
Bank:
First National Bank
Account Number: [….]
Branch Code :
252 345
Ref:
WB0127
4.
it is recorded that no valid contingency fee agreement is applicable
in this
matter.
BY
ORDER OF THE COURT
REGISTRAR
Adv
R Ferguson
Plaintiff's
Counsel
082
770 0775
Adv
Defendants
Counsel
[1]
(59188/13) [2015) ZAGPPHC 646 {3 September 2015) at [31]