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[2018] ZAGPJHC 691
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G N v Road Accident Fund (13/30599) [2018] ZAGPJHC 691 (4 December 2018)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE NO: 13/30599
In the matter between:
N
G
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
INGRID OPPERMAN j
INTRODUCTION
[1]
The plaintiff instituted action against the
defendant for damages for personal injuries arising out of a motor
vehicle accident
that occurred on 26 May 2011. The merits have been
settled, the agreement being that the plaintiff will be entitled to
100% of
her proven and/or agreed damages. This hearing concerns only
the quantum of the damages suffered. In addition, the defendant was,
previously, ordered (by agreement between the parties) to make an
interim payment of R500 000 and to furnish to the plaintiff,
the
statutory undertaking. The defendant has complied with such Court
order.
[2]
The plaintiff is G N born on […] 1994. At
the time of the collision she was 17 years of age and will turn 25,
in […]
2019.
[3]
The defendant, by way of a special plea, disputed
the plaintiff’s entitlement to general damages. The issue was
referred to
the HPCSA who ruled that the injury was serious and that
the plaintiff is entitled to an award for general damages.
[4]
The plaintiff sustained injuries comprising:-
4.1.
a
mild concussive head injury with a fracture of the frontal bone of
the skull with loss of consciousness and subdural haematoma;
4.2.
a
pubic ramus fracture; and
4.3.
soft
tissue injuries to the scalp.
[5]
In consequence of such injuries the plaintiff
claimed :-
5.1.
Past
Loss of Earnings R228
084
5.2.
Future
Loss of Earnings R5 997 811
5.3.
General
Damages R1 200 000
[6]
The plaintiff was assessed by a host of experts at
the instance of both parties. Although much, in relation to the
future loss of
earnings was, at the commencement of the proceedings,
in dispute, at the end of the trial, it was only the contingencies to
be
applied to the claims for past and future loss of earnings in the
uninjured and injured state, which remained to be determined by
this
court as well as the award for general damages.
SYNOPSIS OF UNDISPUTED FACTS
[7]
The orthopaedic injuries have resulted in the
plaintiff’s physical capacity being reduced to where she is now
only able to
meet the demands of sedentary, to some aspects of light,
work.
[8]
The head injury has resulted in epilepsy, a
post-traumatic organic brain syndrome, weaknesses in executive
functioning and mental
tracking memory. In addition, she suffers from
the following deficits: attention and concentration, immediate and
delayed auditory
recall, memory and learning, response speed,
psychomotor speed and information processing efficiency.
[9]
The plaintiff’s complaints are manifold and
include, amongst other things, headaches, being less sociable,
difficulties to
concentrate, lack of focus, being distractible, finds
working on a computer tiresome, suffers from fatigue and insomnia, a
lack
of appetite and mood swings. Her epilepsy seems to be
under control.
[10]
The chronic medication used by the plaintiff
comprises Epilim 300mg (for the epilepsy), Brufen and Paracetomol
500mg (for pain and
headaches) and Trepiline 10mg (a sleeping agent).
The epilepsy is under control because of the medication.
[11]
At the time of the collision (in 2011) the
plaintiff was in grade 11. Despite the injury sustained and an
extended period away from
school, the plaintiff passed the end of the
year exam as well as grade 12 in the subsequent year (2012).
[12]
But for the collision, the plaintiff would have
successfully completed tertiary studies in the form of a higher
diploma qualification
over a period of three years. Thereafter she
would have entered the open labour market on par with the median of
Patterson level
B1/B2, progressing to the median of level C2/C3 by
age 45 whereafter only annual inflationary increases would have
applied. The
plaintiff would have retired at age 65.
[13]
Having regard to the collision the plaintiff did
not pursue tertiary education in consequence of the injuries
sustained in the collision
but secured employment as detailed below:-
COMPANY
POSITION
COMMENCED TERMINATED
AIG
Call centre agent 29 April 2013
29
July 2013
Tiger Brands
Call centre agent 1 September 2013
6
March 2014
Metropolitan
Call centre agent 1 July
2014
December 2014
Accenture
IT service desk
November 2016 November 2017
Accenture
It service desk
Extended for three months
Expert Stores
Junior clerk 20
June 2018
Cotton On
Sales Assistant
19 October 2018
to date
[14]
Having regard to the plaintiff’s
difficulties she is not likely in her injured state to be able to
progress beyond the salaries
associated with Patterson level A2/A3 as
she would move into the semi-skilled band as per Robert Koch when she
moves to salaries
in the Patterson B – band.
CONTINGENCIES
[15]
Contingencies are
the hazards that normally beset the lives and circumstances of
ordinary people. Allowance for contingencies
involves, by its
very nature, a process of subjective impressions or estimations
rather than objective calculations
[1]
.
[16]
Where a party contends for a higher than normal
contingency, that party must, of course, adduce facts which render a
higher than
normal contingency factor applicable. The contrary is
also true – where a party contends for a lower than normal
contingency,
no contingency or a positive contingency, the onus would
rest on such party. This follows the trite principle that he who
alleges
must prove.
[17]
Insofar as past loss of earnings is concerned, it
is generally accepted, and the norm to apply, is a 5% contingency
deduction. No
argument was advanced to deviate from this norm.
[18]
Support for what
can be considered to be a normal contingency applicable to future
loss of earnings, would be half a percent for
every working year
[2]
.
Thus in this instance, a 20% contingency deduction would constitute
the norm over a 40 year period i.e. to a retirement age of
65.
[19]
This formula should not be followed rigidly in
each and every case. The assessment remains largely arbitrary and
dependent on the
Court’s impression of the case. It is but a
starting point.
[20]
Contingencies are
not to be viewed as always operating adversely to the plaintiff.
There is often the lost prospect of a marked
improvement in his or
her lot
[3]
.
[21]
The so-called normal contingencies referred to
takes into account that a plaintiff might ordinarily sustain some
loss in his future
income by virtue of: falling sick from time to
time; the prospect of unemployment and an inability to secure
alternate employment
immediately; the prospect of being injured in
circumstances where the plaintiff would receive no compensation from
any source;
the saved costs of employment.
Uninjured earnings
[22]
It is evident that the plaintiff could have done
better but for the collision than that postulated i.e. she could have
secured a
degree as opposed to a diploma. It is instructive to note
that had the plaintiff secured a degree, the value of her uninjured
income
would have amounted to R10 122 047 whereas the value
of her uninjured income on the basis of a diploma amounts to
R7 963 955.
i.e. a difference in excess of R2 million rand.
Injured earnings
[23]
The unchallenged opinion expressed by the
industrial psychologist called on behalf of the Plaintiff, Ms Kotze
was:-
“
Provision
should then also be made for the fact that any residual
neuropsychological difficulties could adversely affect her ability
to
sustain employment over the remainder of her working
life. This would best be addressed by means of a higher post-morbid
contingency deduction. Of concern is Ms N’s chequered career
history at a fairly young age. It is furthermore evident that
she has
not been able to secure employment for the past two years despite her
efforts to secure same. As such NK believes that
her chances to
secure employment is likely to diminish as time passes. Even though
she may then retain some residual employability,
her future
employment prospects are deemed severely compromised as employers
would be hesitant to employ her once they learn that
her compromised
employment record is connected to a brain injury. As such, chances
are that Ms N may ultimately find herself unemployable.”
[24]
An examination of the laboratory of life in
relation to the plaintiff's work history reveals that over a period
of six years (72
months) she has enjoyed 34 months of employment.
Ignoring all other factors to be considered, the plaintiff's period
of unemployment
on its own, amounts to approximately 50%. In my view,
this factor alone, warrants a 50% contingency. I am mindful of the
fact that
there is no evidence that she was ever dismissed from any
employment nor that there were any complaints about her performance
at
work.
[25]
Though not raised by the defendant in the end, I
have regard to Mr Patel’s submissions made in respect of the
unemployment
rate in South Africa, as it applies to the plaintiff. He
argued that it is correct and accepted that South Africa enjoys a
high
unemployment rate. He however, urged this court to
remember, when considering the high unemployment rate, that “
apples
must be compared with apples
”
. He
argued, in my view correctly, that it is wrong to simply say that the
unemployment rate is as high as 38.2% among young people
because
graduates do not suffer the same fate. The graduate unemployment rate
is 33.5% for those aged between 15 - 24, 10.2% among
those aged 25 -
34 and as low as 4.7% for those aged between 35 to 64. In the result,
a 10.2% unemployment rate is applicable to
the plaintiff at this
stage of her life had she been uninjured and had she secured a
diploma. Having regard to the collision, the
plaintiff finds herself
lumped together with the broad category of job seekers where the
unemployment rate is as high as 38.2%.
[26]
The defendant contended for a 30% injured
contingency. No reasons supported by facts were advanced for this
position. The uninjured
contingency of 5% was common cause between
the parties.
[27]
The result of the aforegoing findings, translates
into the following:-
PAST LOSS OF EARNINGS
Value of income
uninjured
R505 009.00
less 5% contingency
deduction
R 25 250.00
R479 759.00
less value of income
injured
R264 922.00
R214 837.00
FUTURE LOSS OF EARNINGS
Value of income
uninjured
R7 963 955.00
less 15% contingency deduction
R1 194 593.25
R6 769 361.75
Value of income
injured
R3 257 413.00
Less 50% contingency deduction
R1 628 706.50
R1 628 786.50
R5 140 575.25
GENERAL DAMAGES
[28]
The purpose of an award for general damages is to
compensate the injured party for the pain and suffering, and loss of
amenities
of life, that the plaintiff has suffered:
“
The
damages awarded therefore bear a direct relationship to the personal
suffering of the injured party and are intended for his
personal
benefit. The damages awarded to him are in a sense analogous to the
solatium which is awarded under the action injuriarum
to someone as a
salve to his wounded feelings.”
[4]
[29]
Whilst it is
correct that previous awards provide a useful guide in determining
what a fair and adequate award is, previous awards
should serve as no
more than that and should not fetter or exclude the discretion of the
court. The facts of the cases being compared
should be comparable.
[5]
[30]
The position with
regard to general damages is that comparisons with previous awards
are not decisive. The Appellate Division
[6]
(as it was referred
to then) has summarised the position as follows:-
“
...
the trial Court or the Court of Appeal, as the case may be, may pay
regard to comparable cases. It should be emphasised, however,
that
this process of comparison does not take the form of a meticulous
examination of awards; nor should the process be allowed
so to
dominate the enquiry as to become a fetter upon the Courts 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.”
[31]
The general
principle was summarised as follows
[7]
:
“
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.”
[32]
Ms Mahomed,
representing the defendant, submitted that an appropriate award
having regard to the facts of this case, lies between
R800 000 and
R1400 000.
[8]
Mr Patel, relying
on the matter of
Bismilla
v RAF
[9]
,
contended that an award of R1 000 000 is appropriate. During argument
he submitted that having regard to the authority relied
upon by the
defendant ie the Pele case, a more appropriate award would be R 1 200
000. The amount awarded in the
Bismilla
case was R700 000
(current value R 737 100). Mr Bismilla did not suffer from epilepsy
as a result of the injuries sustained in the
accident nor did he
sustain any orthopaedic injuries. Ms N suffers from epilepsy,
sustained orthopaedic injuries (which have healed)
but in addition,
has full insight into the consequences of her injuries.
[33]
In
Chatterpaul v The
Road Accident Fund
(unreported
judgment) NGHC (‘
Chatterpaul
’
)
which judgment was handed down on the 22
nd
of September 2016
by Justice Tolmay, the plaintiff, a 30 (thirty) year old attorney,
suffered a brief period of post-traumatic
amnesia; bruising on the
lateral side of the chest and anterior abdominal wall together with
multiple abrasions; an undisplaced
fracture to the lateral wall of
the left orbit followed by swelling of the upper and lower eyelids; a
lateral herniation of the
C6 to C7 disk to the left; a minor
concussive head injury; emotional shock and trauma and multiple
lacerations.
She
was admitted to ICU
overnight for observation, given pain medication and discharged the
following day where she was booked off for
2 (two) to 3 (three)
weeks.
The Plaintiff suffered from anxiety,
mild global weakness of the left arm, pain in her jaw, pain in her
right knee when she runs
at the gym, severe headaches approximately
twice a month, left shoulder and scapula cramping and moderate
depression.
The court awarded R600 000 to
the plaintiff in 2016 (2018 value is R658 006).
[34]
In
Mngomezulu v The
Road Accident Fund
2012 (6A4) QOD 95
(GSJ) the plaintiff sustained compound right tibia – fibula
fractures; a closed chest injury with lung contusion;
a 30cm
laceration on the right thigh and a moderate head injury.
The
plaintiff had reported the following sequelae:
pain
and weakness in the right leg when walking;
mild
memory difficulty;
difficulty sustaining
concentration, distractibility;
had become
impatient and irritable;
suffered from
mood
swings and depressive phases;
had a
poor
self-image and feelings of uselessness;
experienced
disturbed
sleep patterns with mid-cycle insomnia;
daytime
fatigue;
increase in weight;
s
ituational
anxiety;
diminished enjoyment of life and
concerns about the future.
The court
awarded R600 000 in respect of the plaintiff's General Damages in
2011 (the 2018 value is an amount of R885 000).
[35]
In
Chetty v The Road
Accident Fund
2012 (6J2) QOD 115 (KZD)
the plaintiff was 19 (nineteen) years of age studying for a Diploma
in Quantity Surveying at the time of
the accident. The
plaintiff sustained an injury to the left side of the chest with
intrusion of air into the pleural cavity
between the lungs and rib
cage (a haemothorax). This had to be drained and healed causing
permanent scarring;
the abdominal injuries
which required surgery by a general surgeon involved the removal of a
ruptured spleen;
a
fracture of the right
femur which required surgery by an orthopaedic surgeon involving an
open reduction and internal fixation;
a
diffuse brain injury resulting in an outpouring of adrenalin and
other chemical agents causing ossification of the left elbow;
the Plaintiff was left with stiffness in the left
elbow; the plaintiff was left with a complex combination of
neuropsychological
deficits, some of which were quite subtle but all
of which in combination had a devastating impact on his interpersonal
relationships
and his ability to follow a career or earn a living and
had an impact on his quality of life.
The
court awarded an amount of R600 000 in 2012 (this amount translates
to an amount of R838 000 in 2018).
[36]
It is now recognised that awards pre- 2003 are not
representative or accurate benchmarks as there is now a tendency for
awards to
be higher than they were in the past. See
Road
Accident Fund v Marunga
2003 (5) SA 164
(SCA) at 170F-G;
Schoombee v Road
Accident Fund
(unreported case no.
18426/2007), South Gauteng judgment delivered by Gautschi AJ on 24
February 2012 at para 14.
[37]
In the
Schoombee
matter, the Plaintiff had suffered a mild to
moderate concussive brain injury combined with signs of more focal
(right-sided) frontal
dysfunction. His left knee was immobilised in a
knee brace for a period of three months during which he had to use
crutches and
after the knee brace was removed, he used crutches for a
further month. An award of R700 000 was made (present day value
R982 345).
[38]
In
Torres v Road
Accident Fund
(unreported case no.
29294/04), South Gauteng High Court, a 24-year old male, 20 years old
at the time of injury had sustained significant
neurocognitive and
neuro behavioural deficits. He suffered from depression and
adjustment disorder. His successful career
in jewellery design
had been limited to sympathetic employment. The amount for
general damages awarded to him was R600 000.
[39]
In
Herbst v Road
Accident Fund
(Witwatersrand Local
Division: Case No: 3035/2004) the plaintiff was a 34-year old male
cyclist and specialist anaesthetist.
The Plaintiff
suffered severe brain damage and he was functionally permanently
unemployable with no residual earning capacity.
An amount of
R600 000 was awarded.
[40]
In this highly inexact science and having regard
to the particular facts of this case, the nature and extent of the
injuries sustained,
the permanence and severity of the injuries, the
impact the injury has had on her life, awards in comparable cases and
the inflationary
effects of the monetary values awarded in such
cases, I conclude that an appropriate award is R 800 000.
COSTS - 21 AND 21 NOVEMBER 2018
[41]
The plaintiff closed her case, very early during
the morning of 21 November 2018. The court was informed that the
defendant’s
expert witnesses were otherwise engaged, leaving a
distinct impression that they were involved in other courts in this
division.
A request was made to stand the matter until the following
day. After some debate, the matter stood down until 14h00 on 21
November
2018 to see whether 1 of the 3 intended witnesses’
attendance at court could not be secured. The hearing resumed at
14h30
on 21 November 2018 with the defendant leading its Industrial
Psychologist, Mr van Blerck.
[42]
During Mr Patel’s opening address on 19
November 2018, he expressly drew attention to the inadequacy of
the evidence
of Mr van Blerck. He pointed out that Mr Van Blerck’s
report had become stale (the colloquial term used for expert reports
prepared more than 2 years prior to the date of the hearing). During
the evidence of Mr Van Blerck it soon became apparent that
he too was
uncomfortable testifying without having had a further consultation
with the plaintiff. This was so, he explained, in
particular as the
plaintiff was a minor at the time of the collision and at school and
was now working. On 22 November 2018 and
at the commencement of the
days proceedings, reliance on his evidence was abandoned. Thereafter,
the defendant closed its case.
[43]
This debacle, in my view, could have been avoided
had a consultation with Mr Van Blerck been arranged. This is
particularly so as
the parties had recorded at a pre-trial held on 5
April 2018 that a few expert reports had become dated and that
addendum reports
would be obtained. This was again recorded at a
further pre-trial on 25 September 2018. This was never done.
Two court days
were wasted by virtue of this and I accordingly intend
disallowing costs for both the defendant’s attorney and its
counsel
for such days.
ORDER
[44]
I accordingly make the following order:
1.
The
defendant is ordered to pay the sum of R 5
665 412.25 [R5 140 575.25 (future loss of earnings) + R800 000
(general damages)
+ R214 837 (past loss of earnings) – R500 000
(interim payment)) to the plaintiff, arising from the delictual
damages
sustained by her in a motor vehicle collision which occurred
on 26 May 2011.
2.
The
amount referred to in paragraph (1)
supra
shall be payable within 14 days from date hereof
and is to be paid into the plaintiff’s attorneys, Ivan Maitin
Attorneys Trust
account, the details of which are as follows:
Ivan Maitin Attorneys Trust Account
Bank
: First National Bank
Branch code
: 254 005
Account no.
: 6245 288 0414
3.
Interest
a tempora mora
shall
be payable from fourteen (14) days from date hereof to date of
payment.
4.
The
amount referred to in paragrpah 1 hereof together with interest
thereon, shall be kept in the trust account of Ivan Maitin
Attorneys,
in an interest-bearing account in terms of Section 78(2)(A) of the
Attorneys Act, No.53 of 1979, for the sole benefit
of the plaintiff,
pending the formation of a Trust for her benefit as referred to below
and the opening of a bank account for the
Trust.
5.
The
Plaintiff’s attorneys, Ivan Maitin Attorneys shall:
a.
cause a
Trust (“trust instrument”) to be established in
accordance with the provisions of the Trust Property Control
Act, No.
57 of 1988 in favour of the plaintiff within three months of receipt
of the payment of the amount
in paragraph (1)
supra
;
b.
be
entitled to deduct its fees and disbursements for professional
services from the aforesaid capital amount, only after the taxation
of the party and party bill of costs;
c.
pending
the formation of the Trust, make provision for the plaintiff to
receive a stipend of R5 000 (five thousand rand) per month
for the
exclusive use of the plaintiff, from the amount referred to in
paragraph (1)
supra
;
d.
The Trust
instrument, contemplated in paragraph a. hereof, shall make provision
for, inter alia, the following:
i.
The
plaintiff to be the sole capital and income beneficiary of the Trust;
ii.
The
Trust Property is to be excluded from any community of property or
accrual arising from any valid marriage concluded by the
plaintiff;
iii.
The
sole purpose of the Trust is to administer the funds in a manner
which best takes account of the plaintiff’s interests;
iv.
The
number of Trustees for the purpose of transacting the business of the
Trust (save the appointment of the Trustees) shall be
three (3) and
such number shall not be exceeded or reduced;
v.
The
appointment of, at least, one (1) independent professional Trustee
who should be properly qualified to administer the Trust
assets;
vi.
The
composition of the Board of Trustees and the structure of the voting
rights of the Trustees to be such that:
1.
The
calling and holding of meetings is specified;
2.
The
taking of all resolutions is properly regulated and recorded in
writing;
3.
An
adequate procedure is specified to resolve disputes between the
Trustees;
4.
The
independent Trustee/s cannot be overruled or outvoted in relation to
the management of the Trust assets by any Trustee who
has a personal
interest in the manner in which the Trust is managed;
5.
A
deadlock between the Trustees is avoided;
6.
The
remaining Trustees are prevented and/or precluded from acting
otherwise than to achieve the appointment of a replacement Trustee,
in the event of their number being reduced below that prescribed;
7.
To act in
a tax efficient and cost-effective way at all times including but not
limited to making investments and/or recovering
their remuneration
and/or costs;
8.
No charge
should be made by any Trustee in relation to the receipt of the
initial payment to the Trust of the proceeds of the litigation.
vii.
The
powers of the Trustees to be exercised with specific reference to the
circumstances of the plaintiff and such to include but
not be limited
to:
1.
The right
to purchase, sell and mortgage immovable property, invest and
reinvest the Trust capital and/ or income;
2.
applying
the nett income of the Trust Fund, and if that is not adequate at any
time for the purpose, the capital thereof, for the
maintenance
including, without derogating from the meaning of the term, the
maintenance of the plaintiff, her reasonable pleasures,
entertainment, general upkeep, welfare benefits and rehabilitation
and the acquisition or provision of residential facilities or
a
residence for the plaintiff. The income not used as aforesaid shall
accumulate to the capital;
viii.
The
duty of the Trustees to disclose any personal interest in any
transaction involving the Trust property to the Master of the
High
Court;
ix.
The
amendment of the Trust instrument subject to the leave of the High
Court only;
x.
The
termination of the Trust on the death of the plaintiff or with the
leave of the High Court;
xi.
The
right of the Trustees to pay the plaintiff’s attorney’s
costs in terms of the contingency fee agreement entered
into between
the plaintiff and the plaintiff’s attorney;
xii.
The
Trustees shall be entitled to call for a taxation of the plaintiff’s
attorneys, attorney and client fee, if deemed necessary;
xiii.
Subject to the approval of the Master of the High Court, the
nomination of
the below – mentioned
Trustees:
1.
G
N (the plaintiff) whose identity number is […] (no consent
required);
2.
Surishini
Prem on behalf of Standard Trust Limited as an Independent Trustee;
3.
Fallon
Malissa Letsoalo, an adult female attorney as an Independent Trustee
with identity no: […];
xiv.
The
Trustees should immediately take all the requisite steps to secure an
appropriate bond/s of security, to the satisfaction of
the Master of
the High Court, for the due fulfilment of their obligations and to
ensure that the bond/s of security be submitted
to the Master of the
High Court at the appropriate time as well as to all other interested
parties.
xv.
That the
plaintiff is exempted from filing security as a Trustee to the Master
of the High Court;
xvi.
The
provisions referred to above shall, in accordance with the provisions
of the Trust Property Control Act, No. 57 of 1988, be
subject to the
approval of the Master.
e.
The
defendant has previously furnished the plaintiff
with an undertaking in terms of
Section 17(4)(a)
of the
Road Accident
Fund Act 56 of 1996
, for the costs of the future accommodation of the
plaintiff in a hospital or nursing home or the treatment
of or rendering
of a service to her or the supplying of goods to her
as recommended by the experts for the injuries she sustained in the
motor
vehicle collision which occurred on 26 May 2011 and the
sequelae thereof, after such costs have been incurred and upon proof
thereof.
f.
The
undertaking referred to above shall include payment of:
i.
The costs
of the creation and administration of the Trust and the appointment
of the Trustees as referred to in paragraphs (5)
and (6) above;
ii.
The
costs of the Trustees in administering the estate of the plaintiff
and the costs of administering the statutory undertaking
furnished in
terms of
Section 17(4)
(a) of the
Road Accident
Fund Act
>; and
iii.
The
costs of obtaining annual security bond/s to meet the requirements of
the Master of the High Court in terms of
Section 77
of the
Administration of Estates Act, No. 66 of 1965
, as amended.
6.
The
defendant is directed to pay the plaintiff’s party/party costs
of the action which costs shall include but not be limited
to:
a.
The costs
attendant upon obtaining payment of the capital amount set out in
paragraph (1)
supra
;
b.
The costs
consequent upon the employment of counsel, which costs shall include
but not be limited to, preparation, consultations,
appearances on
trial for seven (7) days, commencing on 15 November 2018 up to and
including 23 November 2018;
c.
The
reasonable costs of the reports, addendum reports, (if any), RAF4
forms, joint minutes, (if any), and the qualifying, preparation,
reservation fees, if any, to be determined by the Taxing Master of
the following expert witnesses:
i.
Dr
.Lewer-Allen Neurosurgeon
ii.
Dr.
Marus Neurosurgeon
iii.
Dr.
Pearl Specialist
Neurologist
iv.
Dr.
Matisonn Radiologist
v.
Prof.
Andronikou Neuroradiologist
vi.
Ms.
Hattingh Speech
Pathologist
vii.
Ms.
Macnab Clinical
and Educational Psychologist
viii.
Dr.
Smith Psychiatrist
ix.
Dr.
Shevel Psychiatrist
x.
Dr.
Botha Specialist
Physician
xi.
Dr.
Read Orthopaedic
Surgeon
xii.
Ms.
Salamon Occupational
Therapist
xiii.
Dr.
Choonara Urologist
xiv. Ms.
Kotze Industrial
Psychologist
xv.
Mr.
Whittaker Consulting
Actuary
d.
The
attendance costs of the following expert witnesses:
i.
Ms.
Macnab Clinical
and Educational
Psychologist
ii.
Dr.
Shevel Psychiatrist
iii.
Ms.
Kotze Industrial
Psychologist.
e.
The
reasonable costs consequent upon the plaintiff attending medico-legal
assessments at the instance of both parties.
f.
The
costs for the production of an additional bundle of papers for the
defendant’s counsel for the trial.
g.
Payment
of costs is subject to the following conditions:
i.
The
plaintiff shall, in the event that costs are not agreed, cause the
notice of taxation to be served on the defendant’s
attorney of
record;
ii.
The
plaintiff shall allow the defendant 14 (fourteen) court days after
taxation to make payment of the taxed costs;
iii.
The
aforesaid costs are to be paid by the defendant directly to the
plaintiff’s attorney to be held in trust as detailed in
paragraph (2) hereof,
alternatively
to the Trustees.
7.
The Order
is to be served by the plaintiff’s attorneys on the Master of
the High Court within 30(thirty) days from the date
of this Order.
8.
The
defendant’s counsel and the defendant’s attorney of
record, are precluded from raising any fees for work done on
21 and
22 November 2018.
___________________________
I
OPPERMAN
Judge
of the High Court
Gauteng
Division, Johannesburg
Heard:
19 - 23 November 2018
Judgment
delivered: 5 December 2018
Appearances:
For
Applicant: Adv M Patel
Instructed
by: Ivan Maitin Attorneys
For
Respondent: Adv S Mahomed
Instructed
by: Mayat Nurick & Associates
[1]
1979
(3) SA 953
(AD) at p965G
[2]
Koch
– quantum year book. See too RAF v Guedes, 2006 (5) SA 583
(SCA)
[3]
Southern
Ins Co Ltd v Bailey
1984(1)
SA 98(A) at 117B
[4]
Hoffa
v S.A.Mutual & General Insurance
1965
SA 944
(A) at 954
[5]
DeJonge
v DuPlessis
,
2004 (2) All SA 565
(SCA)
[6]
Protea
Assurance Company Ltd v Lamb
1971
(1) SA 530 AD at 535 H TO 536A
[7]
Protea
(footnote
6) at 536A-B
[8]
She
referred to
Bulelwa
Nonkwali v RAF
,
771/2004 delivered 21 May 2009 and
Pele
and 1 other v RAF
,
31509/2014 heard 13 to 17 October 2017
[9]
Corbett
& Honey, The Quantum of Damages
–
Vol
VII at B4 - 64