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[2018] ZAFSHC 182
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Kriel obo I M v Road Accident Fund (1700/2015) [2018] ZAFSHC 182 (8 November 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1700/2015
In
the matter between:
ADV.
H. KRIEL obo I
M
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
05, 06, JUNE 2018 & 09 OCTOBER
2018
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
08 NOVEMBER 2018
[1]
The issue to be determined is the quantum for past and future loss of
income which the plaintiff is claiming arising out of
a motor vehicle
accident. The merits have been conceded by the defendant and an order
was made in that regard. Prior to the commencement
of the trial the
parties attempted settlement but such talks stalled.
[2]
The plaintiff relied on the evidence and reports compiled by Dr.
Herman Edeling (neurosurgeon
),
Me Franja Burger (Occupational Therapist), Me
Andri van der Westhuizen (Industrial & Counsellling Psychologist)
and Gregory
Whittaker (Actuary). The defendant did not call any
witness(ses) in rebuttal.
[3]
Dr. Edeling testified that he consulted with the plaintiff and is the
author of the report that is part of the record. He concluded
that
the plaintiff’s injuries included an abdominal injury with
rupture of abdominal wall and traumatic diaphragmatic hernia,
chest
injury with traumatic pneumothorax, fracture of the left humerus and
head injury with complicated traumatic brain injury
of a severe
degree. In essence he suffered from cerebral neurological
deterioration and fluctuations. He concluded that the plaintiff
has a
permanent brain injury. This rendered him to be a vulnerable
individual with neurological loss of ability. As a result his
capacity to work will be severely limited.
[4]
The Occupational Therapist testified that the plaintiff complained
that he cannot concentrate like before the accident. She
noted that
he had physical and psychological deficits. After performing numerous
tests she noted that his strength in gripping
has decreased, he
experienced low mood, decreased internal drive and motivation as well
as travel related anxiety or post-traumatic
stress. His memory was
below average and concentration in inadequate. She too concluded that
he was a vulnerable
employee.
[5]
The evidence of the Industrial and Counselling Psychologist
corroborates the other experts that the plaintiff will remain a
highly vulnerable worker. His chances of securing and
maintaining employment has been significantly reduced to the point
of
being non-existent. The plaintiff has not been in employment
for a period of approximately six (6) years and that he will
remain
mainly unemployed for the rest of his career life.
[6]
The calculations of the Actuary were also uncontested. He
stated that they were based on life tables and he had
applied a
discount rate of 2.5%. He calculated the total gross income as
being an amount of R1 765 537.00.
He went further and
testified that based on his experience, a generally allowable
contingency was 15%.
[7]
It is uncontradicted that the plaintiff has suffered injuries as
stated by various aspects. Equally so that with the result
that
he had been rendered a vulnerable worker with reduced prospects in
the open labour market. Undeniably he has suffered
loss and
must be compensated in accordance with the stipulations of the Act
[1]
and decided cases.
[2]
The
courts have repeatedly held that there is no cogent reason to depart
from the conventional tried and tested actuarial
approach. I
accept that this is the basis that the Actuary calculated the loss. I
accept that applying the 15% contingency,
the plaintiff suffered loss
in the amount of R1 500 706.45.
[8]
In the result I make the following order:-
1.
The Defendant is liable
for 100% (
One
Hundred percentum
)
of I M (hereinafter referred to as the “patient”) proven
or agreed damages pertaining to the injuries and loss of
income
sustained in a motor vehicle collision on 26 October 2011.
2.
The Defendant shall pay
damages in respect of patient’s damages relating to loss of
income to the Plaintiff’s Attorneys
pending the creation of a
trust to be established in accordance with paragraphs 7 and 8 of this
order in an amount of
R
1 500 000,00
within
14 (fourteen) days of this order.
3.
The issue regarding the
Plaintiff’s claim for general damages will be determined by the
Health Professions Council of South
Africa after the Defendant
rejected the Serious Injury Assessment Report of the Plaintiff.
4.
The Defendant shall pay
interest
a tempore
morae
on the
capital amount aforesaid at a rate of 10.25% per annum from
date of this order to date of final payment;
5.
Payment of the capital
amount, costs, as well as any interest is to be made into the
following account:-
Account
Name :
Edeling Van Niekerk Incorporated
Bank
: Nedbank
Branch
: Business Westrand
Account
number : […]
Branch
code
: 128605
6.
The Defendant shall
furnish the Patient, with an Undertaking in terms of Section 17(4)(a)
of the Road Accident Fund Act, Act No
56 of 1996 for 100% of the
Patient’s future accommodation in a hospital or nursing home,
or treatment or rendering of a service,
or supplying of goods or
related expenses in respect of injuries sustained by the Patient in
the motor vehicle collision which
occurred on the 26 November 2011;
6.1.
the reasonable costs
incurred in the establishment of the TRUST contemplated in paragraph
6 below;
6.2.
the reasonable costs
incurred by the TRUST in the administration of the Patient’s
estate;
6.3.
the reasonable costs
incurred in providing security to the satisfaction of the Master of
the High Court of South Africa for the
administration of the
Patient’s estate;
7.
The attorneys for the
Plaintiff, EDELING VAN NIEKERK INCORPORATED of Clearview Office Park,
Block A, Unit 2, Wilhelmina Road, Constantia
Kloof, Roodepoort, are
ordered :
7.1.
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 Patient;
7.2.
to pay all monies held
in trust by them for the benefit of the Patient, to the TRUST;
8.
The trust instrument
contemplated in paragraph 6 above shall make provision for the
following :
8.1.
That the Patient at all
times remain the sole beneficiary of the TRUST;
8.2.
That the trustee(s) are
to provide security to the satisfaction of the Master;
8.3.
That the powers of the
trustee(s) shall specifically include the power to make payment from
the capital and income for the reasonable
maintenance of the Patient,
or for any other purpose which the trustee(s) may decide to be in the
Patient’s interest, and
if the income is not sufficient for the
aforesaid purpose, that the trustee(s) may utilise capital;
8.4.
That the ownership of
the trust property vest in the trustee(s) of the TRUST in their
capacity as trustees;
8.5.
Procedures to resolve
any potential disputes, subject to the review of any decision made in
accordance therewith by this Honourable
Court;
8.6.
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
in terms of the
provisions in paragraphs 5 above;
8.7.
The exclusion of any
and all benefits accruing to the Patient as beneficiary of the TRUST
from any community of property and/or
accrual system in any marital
regime in the event of the Patient's marriage;
8.8.
The suspension of the
Patient's contingent rights in the event of cession, attachment or
insolvency, prior to the distribution or
payment thereof by the
trustee(s) to the Patient;
8.9.
That the amendment of
the trust instrument be subject to the leave of this Honourable
Court;
8.10.
The termination of the
TRUST upon the death of the Patient, in which event the trust assets
shall pass to the estate of the Patient;
8.11.
That the trust property
and the administration thereof be subject to an annual audit.
9.
The Defendant pays the
Plaintiff’s taxed or agreed party and party costs on the High
Court Scale inclusive of correspondent’s
fees which costs will
include the following:
9.1.
The Costs of Counsel;
9.2.
All costs in obtaining
all medico-legal-reports and an actuarial report as well as the
Plaintiff’s travelling and lodging
costs in attending the
Plaintiff’s and Defendant’s Experts as well as trial on 5
June 2018. The Plaintiff filed
the following expert reports:
9.2.1.
Dr. D. Irsliger
(General Practitioner) (RAF4);
9.2.2.
Dr. H.E.T. van den Bout
(Orthopaedic Surgeon);
9.2.3.
Dr. T. P. Olivier
(Ophthalmologist);
9.2.4.
Dr. L. Fine
(Psychiatrist);
9.2.5.
Dr. H.J. Edeling
(Neurosurgeon);
9.2.6.
Ms. F. Burger
(Occupational Therapist)
(Alison
Crosbie’s Therapists);
9.2.7.
Ms. C. Du Toit
(Industrial Psychologist);
9.2.8.
Mr. G.A. Whittaker
(Actuary).
9.3.
The costs occasioned by
the appointment of the
curator
ad litem
;
10.
The Plaintiff's
attorneys shall be entitled, subject to the approval thereof by the
curator ad litem
,
to make payment of expenses incurred in respect of accounts rendered
by :
10.1.
Expert witnesses,
namely:
10.1.1.
Dr. D. Irsliger
(General Practitioner) (RAF4);
10.1.2.
Dr. H.E.T. van den Bout
(Orthopaedic Surgeon);
10.1.3.
Dr. T. P. Olivier
(Ophthalmologist);
10.1.4.
Dr. L. Fine
(Psychiatrist);
10.1.5.
Dr. H.J. Edeling
(Neurosurgeon);
10.1.6.
Ms. F. Burger
(Occupational Therapist)
(Alison
Crosbie Therapists);
10.1.7.
Ms. C. Du Toit
(Industrial Psychologist);
10.1.8.
Mr. G.A. Whittaker
(Actuary);
10.2.
Counsel employed on
behalf of the patient; and
10.3.
The
curator
ad litem
;
from
the aforesaid funds held by them for benefit of the Patient.
11.
The Plaintiff's
attorneys shall be entitled to payment, from the aforesaid funds held
by them for the benefit of the Patient, of
their fees in accordance
with their fee agreement, such fee agreement having been approved by
the
curator ad
litem
;
12.
The trustee(s) will
ensure that the payment in terms of such agreement will be fair and
reasonable and the Master of the High Court
and/or the trustee(s) may
insist on the taxation of an attorney-and-own-client bill of costs.
_____________
MATHEBULA,
J
On
behalf of Plaintiff: Adv. J. S. Rautenbach
Instructed
by: McIntyre & vd Post
Bloemfontein
On
behalf of Defendant: Adv. L Collins
Adv.
C.J. Hendriks
Instructed
by: Maduba Attorneys
Bloemfontein
[1]
Road Accident Fund Act 56 of 1996
.
[2]
Road Accident Fund v Sweatman
2015 (6) SA 186
(SCA).