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[2017] ZAGPPHC 918
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M v Road Accident Fund (224/2014) [2017] ZAGPPHC 918 (24 February 2017)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 224/2014
24/02/2017
In
the matter between
B.J
M
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
DATES
OF HEARING
:
24 & 25 NOVEMBER
2016
DATE
OF JUDGMENT
:
24 FEBRUARY 2017
JUDGMENT
MANAMELA,
A.J
Introduction
[1] The plaintiff was
injured in a motor vehicle accident on 03 October 2011, which
occurred in Dennilton, Limpopo Province. He
was being ferried as a
passenger in a motor vehicle which was involved in an accident with
another motor vehicle. The defendant
is sued for damages arising out
of bodily injuries sustained by the plaintiff in terms of the
provisions of the
Road Accident Fund Act 56 of 1996
. Counsel advised
at the trial that the defendant has fully conceded the merits in this
matter and would therefore be liable to
pay 100% of the proven
damages suffered by the plaintiff.
[2]
The plaintiff sustained the following injuries due to the accident:
left haematoma; sub scapular haematoma and abrasions to
the left
leg.
[1]
He was admitted to
hospital for treatment and experienced pain and suffering and
discomfort. It is claimed that he will experience
pain and suffering
in the future and also require hospitalisation and medical treatment.
In the main, the plaintiff is said to
have experienced a loss of
earnings and earning ability and also suffered loss of enjoyment and
amenities of life.
[3]
The plaintiff issued summons in this Court. claiming a total amount
of R300 000.00.
[2]
The
significance of this amount will be relevant to the issue of costs,
which I will naturally deal with at the end hereof.
[3]
On the other hand, the defendant denied liability and also pleaded
reliance on the provisions of
section 17(1A)
of the
Road Accident
Fund Act
[4
]
and its regulations.
The matter was argued by counsel for two days on 24 and 25 November
2016, and at the end of hearing I reserved
this judgment. I deal next
with issues regarding the injuries and complaints of the plaintiff.
Plaintiff’s
injuries and complaints
[4]
In terms of the report of the thoracic surgeon being Dr Freek Steyn,
the plaintiff had a pneumothorax on the right-hand side
with several
rib fractures: had an underwater drainage tube inserted and was
treated conservatively.
[5]
These
injuries are admitted by the defendant.
[5]
Further, Dr Steyn states under medical history that the plaintiff
(obviously obtained from reports by other experts) is the
sole
provider for his family; he has two children and is held was very
good and was on no medication. ostensibly pre-accident.
[6]
[6] The plaintiffs
current complaints alleged to be arising from the injuries sustained
in the accident constitute the crux of a
determination to be made in
this matter.
Plaintiff's case
Plaintiff as a
witness
[7] The plaintiff
testified before the Court through an interpreter and confirmed
sustaining injuries around both sides of his rib
cage and on his
back.
[8] He told the Court
that he was employed at Legend Golf and Safari Resort (Legend) from
March 2009. He was mostly doing construction
work, which included
painting of roof trusses and general maintenance work, which he
described as very strenuous work. He described
a typical workday at
Legend as involving, among others, maintenance work, like skirting:
fitting of doorstops: sanding trusses
and glazing. He also performed
garden work and performed duties involving pushing wheelbarrows and
replacement of paving.
[9] He was still at
Legend at the time of the accident. After he was injured in the
accident he was hospitalised for about a month,
but there was no
complaint from his employer when he returned to work about his
performance. He testified that his employer, knowing
that he was
hospitalised and understanding his position after the accident,
allowed him to only perform light duties. He performed
this type of
work until his retrenchment. He coped well with the light duties and
was not off work after the accident. His light
duties involved
fitting of sanitary ware, like soap dispensers. He was retrenched
from Legend in 2015, after having worked there
for 6 years. He was
retrenched together with about 20 other people, some of whom had
worked for Legend for periods of between 5
and 8 years. He was
earning R4 700 monthly at Legend by the time he was retrenched.
[10] It is common cause
that the plaintiff was not retrenched from Legend due to the accident
and that retrenchment was solely based
on operational requirements of
Legend, as the employer of the plaintiff.
[11] After retrenchment,
he was on the job-hunt for about 4 months or so, but only did "piece
jobs" during that period.
These jobs ranged from working for
three times a week to fortnightly. He was, sometime during that
period, without work for up
to a month.
[12] He told the Court
that he cannot do the heavy work he did before the accident. Although
he finds those type of jobs, he cannot
cope. For example, he is
unable to push a wheelbarrow full of sand or bricks as he finds it
too heavy; cannot lift a painting-pot
full of paint without resting
and can only paint for only about 5 (five) metres before getting
tired. He experiences pain on both
sides of his rib cage, chest and
back towards the spinal cord when he performs these duties. He uses
medication or pain tablets
about three times a day (i.e. Brufen and
Panado), but experiences some pain in those areas during the night.
[13] The plaintiff also
told the Court that he is now employed by company known Edelweiss
Glass and Aluminum (Edelweiss). He earns
about R2 400 per fortnight
and sometimes depending on the workload, perform overtime duties for
which he earns additional income.
For example, in November 2016, as
of the date of trial, he had worked for one Sunday and two Saturdays
which is normally from 07h00
to 15h00. Overtime is remunerated by
Edelweiss at a higher than normal hourly rate. He says this is not a
permanent position.
[14] The plaintiff
attained grade 9 level of education and is now 44 years of age. He
has been doing physical work for the whole
of his working life,
including bricklaying in his private time. He earned about R7000 per
month for his bricklaying activities
before the accident and finds it
difficult to survive without this extra income. He can no longer do
this type of work.
[15] Under
cross-examination, the plaintiff told the Court that he has
complaints since the accident because he cannot do heavy
duty, like
before. For example, when he is to carry an object like a door-glass
he will need to rest about four times on the way
in a distance of
about 8 metres.
[16] He further told the
Court that prior to the accident he worked at Thekweni (he wasn’t
certain of the correct name of
this employer). He also conceded that
he was in permanent employment from 1993 to 2016, save for those
months after retrenchment
from Legend. He also confirmed that he
stayed at Legend for about 4 years after the accident. He estimated
his salary at Legend
to have been about R3000 per month in 2009 and
R4 700 per month when he was retrenched in 2015. These, he agreed,
indicate gradual
increments to his salary during his employment at
Legend.
Occupational
Therapist
(Mr
Riaan du Toit)
[17]
Mr Du Toit was called by the plaintiff to a testify as an
occupational therapist.
[7]
He
toldthe Court with regard to the plaintiff that post-accident is
distinctly different to pre-accident.
[18]
He further told the Court that the allocations of light duty at
Legend was appropriate due to the fact that it would have been
unsafe
for the plaintiff to perform heavy duties. This may lead to
anatomical and mechanical overloading and cause injuries due
to the
overloading of his capacity.
[8]
[19]
He told the Court that he examined the plaintiff and subjected him to
tests, including on limitation of vocational skills.
He said the
plaintiff is able to safely lift and carry lightweight up to 9 kg
without restriction.
[9]
His
conclusion is that the plaintiff can handle mid to medium weight up
to 2 hours and 45 minutes. However, the plaintiff had to
jerk for
weights over 16kg, which indicates internal stabilisation. There was
no malingering, but fear of weights, although he
completed the test
battery at 22kg. He referred to the relevance of Dr Akambi’s
statement that the plaintiff was diagnosed
with fibromyalgia and
chest pain.
[10]
[20] Regarding how the
future loss of earnings are affected, he told the Court that the
plaintiff is excluded from heavy duties.
like pushing wheelbarrow
full of sand or carrying a bucket full of water. He further told the
Court that the only jobs available
for the plaintiff are those of
sedentary, light duty and emerging medium weights nature (like as a
driver or performing administrative
duties). With regard to the
plaintiffs age and the relevance thereof. Mr Du Toit told the Court
that he is not quite certain, but
his age rnay relegate the plaintiff
further in the line. Both age and injuries are factors, he testified.
[21] He further told the
Court that at Legend, the employer was sympathetic to the plaintiff
as he was compromised from the accident,
which left him vulnerable.
Regarding whether his current job and job conditions augour well with
this condition. Mr Du Toit told
the Court that it depends
particularly on his capacity.
[22] Under
cross-examination Mr Du Toit, among others, testified as follows.
Regarding the plaintiffs age as a 44-year-old male
and with regard to
weights that he can carry, he told the Court that age is no indicator
of capacity. As to how long the plaintiff
would have carried on with
this type of work without the accident, he answered that this is
speculative, but he may have carried
on up to 55 years of age. He
reiterated that the plaintiff is using compensating lifting
mechanism, like jerking when picking
up heavy weights with a strain
on his spine. This, he told the Court, could lead to injuries or
re-injuries to the plaintiff.
[23]
Regarding the issue of hypertension crisis, Mr Du Toit said that this
was not due to injury, but the testing was stopped for
safety
reasons,
[11]
although people
with hypertension do fatigue easily. There was no indication as to
when the hypertension started and if it was
hereditary it would have
been gradual.
Industrial
Psychologist (Ms Christa Du Toit)
[24]
Ms Christa du Toit testified as an industrial psychologist called by
the plaintiff. She had evaluated the plaintiff on 11 May
2015 and
filed a report together with an addendum thereto.
[12]
However, she told the Court that she was not aware of the plaintiffs
new job at Edelweiss. which was after she had compiled her
addendum
report.
[13]
[25]
When referred to the fact that in the actual report it is said that
the plaintiff would have continued working until retirement
age at 62
1/2 years of age, she told the court that average is between 60 and
65 years.
[14]
[26] According to Ms Du
Toit. after retrenchment the plaintiff was likely to experience
vulnerability due to the accident. She told
the Court that the
plaintiffs unemployment was due to vulnerability and lower
exceptional skills to market himself. She agrees
with the other
industrial psychologist that the plaintiff would be excluded in a
range of jobs; he will have to be selective due
to his current
limitation.
[27] Regarding the
possibility of the plaintiff reskilling himself, Ms Du Toit told the
Court that due to his low scholastic achievement
and age, this will
pose a challenge. She suggested therefore that to address the problem
the Court should award a high contingency
post- accident.
Defendant's case
[28] As indicated above,
the defendant’s pleaded case simply denied liability and also
raised technical defences relating
to the provisions of
section 17(
1
A) of the
Road Accident Fund Act. However
, other than expert reports
filed, the defendant called Ms Cecile Nel to testify, as an
industrial psychologist.
Industrial
psychologist (Cecile Nel)
[29]
Ms Cecile Nel confirmed her assessment of the plaintiff on 24
November 2015, as documented in her filed report.
[15]
[30] She, among others,
confirmed that the plaintiff cannot work as a glazier, but only
sealer; mentioned that employees of Edelweiss
are employed per
project and, as such, drift from job to job or project to project, as
they are not permanent: conceded that the
plaintiff will be excluded
from heavy jobs, and agreed that WPI does not translate into job
prospects. She also admitted that factors
affecting productivity also
affect employability.
[31] However, Ms Nel did
not concede that the plaintiff now works at a slower pace, as
according to her the feedback indicates that
his performance is
satisfactory. He had resigned a previous the job due to better offer
at Edelweiss, she added. He secured the
job at Edelweiss, despite
having few employment options.
Legal Argument
Submissions on
behalf of the Plaintiff
[32]
Ms M Olivier, appearing for the plaintiff pointed out that the
defendant relies heavily on the unreported decision of
Sunette
Liebenherg v Road Accident Fund
[16]
per
Hughes J, which she submitted is distinguishable on the facts from
this matter, I agree.
[33] According to the
plaintiff’s counsel, there is no real dispute with regard to
the facts of the matter, but only as to
the spread of the contingency
to be applied in respect of future loss of earnings. I don't think
there is necessarily complete
agreement as to
sequelae
of the
plaintiff’s injuries or current complaints, but I will expand
on this below.
[34]
It was further submitted that, when the plaintiff was retrenched his
vulnerability became a reality, Counsel referred to the
matter of
Santam
Versekeringsmaatskappy Bpk v Byleveldt
[17]
also
referred to in the
Liebenberg
matter.
[35] Counsel further
submitted that it is beyond contention that the plaintiff is a
vulnerable employee due to his age; his vocational
skills or lack
thereof; level of education; the rate of unemployment in the sector;
his limited job choices, and the fact that
he will have to be
employed in a sympathetic employment. Counsel emphasised Ms Christa
Du Toit's evidence that re-skilling of the
plaintiff will be a
problem and submitted that the plaintiff is stuck in his current
circumstances. But, it is also submitted that,
the plaintiff can be
let go at any time and he has nowhere to go.
[36] With regard to the
sequelae,
counsel submitted that, these can only get worse.
Further, it was submitted that the plaintiff may have lost
self-confidence. With
regard to hypertension (which is submitted it
was not proven that it was pre-existing condition), counsel submitted
that the egg
or thin skull principle applies. However, she submitted
that hypertension will exacerbate the plaintiffs situation in the
labour
market.
[37]
Regarding the figures or amounts for the loss of earnings, it was
submitted that, had the plaintiff stayed at Legend he would
have
earned more. The change of jobs after Legend may discourage
prospective employers. Counsel submitted that Ms Cecile Nel says
that
a slighter high contingency should he applied, which counsel
submitted confirms the defendant’s admission that there
is a
loss. Counsel submitted that the actuarial calculations of R 161
928.00 for future loss, plus R36 025.00 for past loss, amounting
to R
197 953.00
[18]
should be
ordered as the appropriate award for the plaintiffs total loss. It is
also added, but rather tentatively in my view,
that there is no
evidence to the contrary that an undertaking, in terms of section I
7(4)(a) of the
Road Accident Fund Act, ought
to be given by the
defendant.
[38] With regard to costs
it is submitted that it should the normal order on a party and party
scale.
Submissions on
behalf of the Defendant
[39] Ms KA Wilson,
appearing for the defendant, submitted (upon heaving reliance on the
Judgment in the
Liebenberg
matter above) that the Court ought
to look at direct loss of earnings and that there is no case proven
for past loss of income,
as retrenchment cannot be past loss.
Further, the plaintiff was only unemployed for about four months
after retrenchment, but still
did “odd jobs” during this
time. It is submitted that there is no claim for brickmaking and
therefore this part of
the plaintiff’s testimony must be
ignored.
[40]
With regard to future loss, counsel for the defendant submitted,
among others, the following: there is no reason for awarding
damages
on emotions, but only on the basis of proven loss or figures (i.e.
numbers);
[19]
the defendant
does not dispute that the field of jobs has diminished for the
plaintiff but that there is minimal loss: the plaintiff
left the
previous job for better work and he is skilled and was headhunted,
and there is no concrete evidence in the form of payslips
on overtime
from Legend and Legend would not pay overtime when it was retrenching
employees.
[41] It is submitted that
the Court ought to consider applying to the future loss figures in
the actuarial report a contingency
of 2.5%. equalling an amount of
R20 240.90 (arrived at as follows: R809 636 x 5% = R40 481 /2).
[42]
With regard to costs of suit, Ms Wilson submitted that no costs
should be awarded in this Court. as only R300 000.00 was claimed.
[20]
The plaintiff knew that he did not qualify for general damages and
should therefore have approached the Magistrates Court for relief.
In
reply, Ms Olivier disputed that costs should be on the Magistrates
Court’s scale for. among others, the following reasons:
the
defendant's industrial psychologist Ms Cecile Nel admitted Jacobson’s
report and conceded all facts of the spread; the
pre-trial conference
minutes did not mention referral of the matter to another forum; the
issue is only raised for the first time
in argument, and that the
matter is complicated. It was submitted, on behalf of the defendant
that, there was a formal offer which
included costs and the
section
17
undertaking.
Damages to be
awarded (a discussion)
[43] The nub of the
determination to be made in this matter regarding the plaintiffs past
and future loss is whether the plaintiff
is still able to perform his
duties as he did prior to the accident. This is a factual enquiry
facilitated by witness testimony,
including by experts, as well as,
the particular circumstances of this matter. I am also grateful for
oral submissions by counsel.
[44]
Although the plaintiff’s injuries are common cause between the
parties, the effect thereof on his earning capacity is
contested. The
evidence points to the fact that after the accident the plaintiff
reverted to his then employer. Legend and continued
working there for
another four years when he was retrenched together with a number of
other employees, due to the employer's operational
requirements.
According to the actuarial report there was no accrued laws or past
loss of earnings in this regard, as the plaintiff
continued working
until he was retrenched on 19 March 2015.
[21]
The plaintiff says his employer was sympathetic and even allocated
him duties that were lighter (in effort) than before. However,
save
for about four months, he was still able to secure some employment
and is currently employed. Therefore, he was not without
income.
[45] It is further
submitted on behalf of the plaintiff that, every employer after the
accident, including Legend, were or are sympathetic
employers. But,
this is contested by the defendant on the basis of the positive
performance feedback regarding the plaintiff and
the fact that the
plaintiff was able to change jobs to his current employer on the
basis of his skills and performance. I also
do not agree that all the
employers, particularly the current employer, retained the plaintiff
on sympathetic or compassionate
grounds. The plaintiff is clearly
able to perform some duties although he may not be able to do
everything he did before the accident.
[46]
I also do not agree that the status of the plaintiffs employment,
being whether he is employed on a temporary or permanent
basis, is
exclusively determined by the facts that he can no longer lift
heavier objects that he did before the accident. The plaintiff’s
job or employment history states more than two employers and
including his retrenchment from Legend, which clearly confirms the
vulnerability of his job sector. The plaintiff began working as a
general labourer on building or construction sites doing heavy
duty
work in 1992 after he completed grade 7. He continued in this field
of work over the years doing medium to heavy duties until
in 2009
when he was employed by Legend as a maintenance worker.
[22]
Between 2000 and 2009 the plaintiff had at least two other employers
before joining Legend. Actually, this number ought to be higher
as no
details are provided for the employers between 1992 and2000. Not much
has changed in this regard, as the plaintiff was able
to secure jobs
after the accident.
[47] I agree that what
the plaintiff can or cannot currently do differs from his
pre-accident duties. However, the only change in
his abilities is
with regard to degree of heavy objects he can carry due to his chest
and back pains. However, his current complaints
do not completely
shut him out of the job market, as he was able to secure employment
albeit not necessarily in the same areas
as before the accident.
Therefore, the accident has had some bearing on his level of
performance and therefore will affect his
earning capacity in the
future.
[48] I do not intend to
consider overtime pay as a factor to the plaintiffs loss. Overtime is
discretionary, fluctuates and depends
on the availability of
additional work. Besides, the plaintiff is still able to perform
overtime duties, whenever there is an opportunity,
including with his
current employer.
Conclusion
[49]
Gerard Jacobson Consulting Actuaries delivered a report dated 18
November 2016.
[23]
I do not
intend crisscrossing every aspect of the actuarial report. Although I
have considered its contents in their entirety,
I will discuss the
summary of the loss of income and the suggested award against the
principles that actuarial reports, like other
expert reports.
Actuarial reports, although based on actuarial expertise and of
immense benefit to the Court, just like other expert
reports, are
only a guide and part of all of the other evidence before the
Court.
[24]
[50] With regard to past
loss. I do not accept that the plaintiff suffered complete loss of
income, as he did odd jobs and had some
income. He was completely
without income for a month or so after he was retrenched. It is
common cause that his retrenchment was
not due to factors relating to
injuries sustained in the accident. I am also not certain as to what
effect, if any, his condition
due to the accident, had on his
employment prospects. Therefore, I will only allow damages for two
months’ worth of his Legend
salary of R4 723.92 in an amount of
R9447.84 rounded off to R9 500.00.
[51] For the
above-mentioned reasons and regarding the plaintiff's future loss, I
will accept the calculations by the actuary, save
that instead of
applying a contingency of 35% post accident, I will apply 25%.
This would result in a contingency deduction
in an amount R202 409.00
from R809 636.00 (income having regard to accident) and a balance of
R607 227.00 (net value of income
having regard to accident). The
result is a net future loss of R80 964.00. Therefore. I will award to
the plaintiff an amount of
R90 464.00 (i.e. R9 500.00 for past loss
and R80 964.00 for future loss) as past and future loss of income.
[52] The order will also
reflect that the defendant furnish an undertaking in terms of section
I 7(4)(a) of the
Road Accident Fund Act, for
payment of costs of
future accommodation of the plaintiff in a hospital or nursing home,
or his treatment or for services rendered
or goods supplied to him
arising out of injuries sustained in the motor vehicle accident and
their
sequelae.
Payment of these costs will be made once
incurred and proven to the defendant.
Costs
[53] Counsel for the
defendant submitted that, even if successful, the plaintiff ought not
to be granted costs on scale of this
Court, but Magistrates’
Court's scale. Submissions made by counsel for the defendant in this
regard included that the plaintiff
all along new that its claim for
general damages was not meritorious and overall sued for an amount of
R300 000.00. On the other
hand, the counsel for the plaintiff
submitted that there was justification for suing in this Court due to
the complexity of the
matter and complained that the issue was never
raised before, including in the pleadings and at the pre-trial
conference, but rather
belatedly in argument at the trial. Counsel
for the plaintiff submitted that costs ought to be awarded at normal
party and party
scale of this Court.
[54]
In my view, damages claims are by their nature considerably difficult
to manage in as far as court jurisdiction is concerned.
This is
particularly a challenge at the stage when a litigant has to decide
whether to go to the Magistrates’ Court or approach
a Court, at
this level. Therefore, it does not become an automatic determination
for a Court when deciding on what the appropriate
scale of costs
should be and always depends on a consideration of facts in the
matter.
[25]
In this matter,
the plaintiff issued summons in early 2014. The monetary jurisdiction
for the Magistrates· Courts was increased
to R200 000.00 at
the district level and R 400 000.00 for the regional court only with
effect from 01 June 2014.
[26]
Therefore, in my view, it was always going to be difficult for the
plaintiff to firmly decide on which court to approach when monetary
jurisdictions were as aforesaid. I do not find the choice of this
Court unreasonable under the circumstances.
[55] Further. I am
concerned by the fact that the issue was only raised at this late
stage, as this deprived the plaintiff of an
opportunity to reconsider
his position as to the appropriate forum, including making
submissions to this Court regarding an appropriate
costs order to be
granted or referring the matter to the Magistrates Court. Therefore,
on these considerations, I consider it justified
to grant costs in
favour plaintiff on a party and party scale of this Court.
Order
[56] I therefore make the
following order:
1.
The Defendant shall pay to the Plaintiff
the sum of
R90 464.00 (ninety thousand
four hundred and sixty-four rand).
2.
In the event of the aforesaid amount not
been paid timeously, the Defendant shall be liable for interest on
the amount that the
rate of I 0.5% per annum, calculated from the 1
5
th
calendar day after the date of this order to date of payment.
3.
The Defendant shall furnish the Plaintiff
with an undertaking in terms of
Section 17(4)(a)
of the
Road Accident
Fund Act 56 of 1996
for payment of costs of future accommodation of
the Plaintiff in a hospital or nursing home, or his treatment or for
services rendered
or goods supplied to him arising out of injuries
sustained in the motor vehicle accident that occurred on 03 October
2011, to compensate
the Plaintiff in respect of the said costs after
the costs have been incurred and upon proof thereof, limited to 100%.
4.
The Defendant shall pay the Plaintiffs
taxed or agreed party and party costs on the High Court scale subject
to paragraphs 4.1 and
4.2 of the draft order marked "X" and
initialled with other corrections in manuscript. The same draft
reflects the other
parts of this order.
5.
The amount referred to in paragraphs 1. 2
and 4 hereof wi11 be pa id to the Plaintiff’s attorneys Gustav
Smit Attorney by
direct transfer into their trust account, details of
which are as follows:
Name
: Gustav
Smit Attorney
Bank
: ABSA
Bank
Account number
: […]
Branch code
:
632005/ABSA Menlyn Square
Reference
:
AM1086
6.
No contingency agreement existed this
matter.
____________________
K.
La M. Manamela
Acting
.Judge of the High Court
24
FEBRUARY 2017
Appearances:
For
the Plaintiff
:
Adv M
Olivier
Instructed
by
: Gustav
Smit Attorneys, Pretoria
For
the Defendant
:
Adv KA
Wilson
Instructed
by
: Diale
Mogashoa Attorneys, Pretoria
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Before
The Honourable Judge Manamela AJ
On
the 24
th
of February 2017
Case
no:
224/2014
In
the matter between:
B.J.
M
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
DRAFT ORDER
AFTER
HEARING THE PARTIES, THE DEFENDANT IS ORDERED:
1. The Defendant shall
pay to the Plaintiff the sum
R90 464.00 (ninety thousand four
hundred and sixty four rand).
2. In
the event of the aforesaid amount not being paid timeously, the
Defendant shall be liable for interest on the amount at the
rate of
10.5% per annum, calculated from the 15th calendar day after the date
of this Order to date of payment.
3. The Defendant shall furnish the
Plaintiff with an undertaking in terms of Section 17(4)(a) of Act 56
of 1996 for payment of the
future accommodation of the Plaintiff in a
hospital or nursing home or treatment of or rendering of a service or
supplying of goods
to him/her resulting the injuries sustained by the
Plaintiff in the motor vehicle accident that occurred on
3 October
2011,
to compensate the Plaintiff in respect of the said costs
after the costs have been incurred and upon proof thereof, limited to
100%.
4. The Defendant shall pay the
Plaintiff's taxed or agreed party and party costs on the High Court
scale, subject thereto that:
4.1 In the event that the costs are
not agreed:
4.1.1. the Plaintiff shall serve a
notice of taxation on the Defendant's attorney of record;
4.1.2. the Plaintiff shall allow the
Defendant 14 (fourteen) Court days from date of allocatur to make
payment of the taxed costs.
4.1.3. should payment not be effected
timeously, the Plaintiff will be entitled to recover interest at the
rate of 10.5% per annum
on the taxed or agreed costs from date of
allocatur to date of final payment.
4.2. such costs shall include:
4.2.1. the costs incurred in obtaining
payment of the amounts mentioned in paragraphs 1 and 3 above;
4.2.2. the costs of counsel, including
counsel's charges in respect of her full day fee for
24 and 25
November 2016,
as well as reasonable preparation;
4.2.3. the cost to date of this order,
which costs shall further include the costs of the attorney, which
include necessary travelling
costs and expenses (time and
kilometers), preparation for trial and attendance at Court which
shall include all costs previously
reserved, reasonable costs of
consulting with plaintiff to consider the offer, the cost incurred to
accept the offer and make the
offer an order of Court to the
discretion of The Taxing Master;
4.2.4. the costs of all medico-legal,
radiological, actuarial, addendum 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
Plaintiff's bundles, i.e. all reports that have not been paid for
yet;
4.2.5. 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 4.2.4
above;
4.2.6. the reasonable
costs incurred by and on behalf of the Plaintiff in, as well as the
costs consequent to attending the medico-legal
examinations of both
parties.
4.2.7. the costs consequent to the
Plaintiff's trial bundles and witness bundles, including the costs of
5 (five) copies thereof;
4.2.8. the costs of
holding all pre-trial conferences, as well as round table meetings
between the legal representatives for both
the Plaintiff and the
Defendant, including counsel's charges in respect thereof;
4.2.9. the costs of and consequent to
compiling all minutes in respect of pre-trial conferences;
4.2.10. the reasonable travelling
costs of the Plaintiff, who is hereby declared a necessary witnesses;
4.2.11. the cost of an
interpreter.
5. The amounts referred
to in paragraphs 1, 2 and 4 will be paid to the Plaintiff's
attorneys,
Gustav Smit Attorney,
by direct transfer into their
trust account, details of which are the following:
Name:
Gustav Smit Attorney
Trust
Account
Bank: ABSA Bank
Account Number: [...]
Branch code: 632005 /
ABSA Menlyn Square
Ref: AM1086
6. No contingency
agreement exists in this matter.
BY
ORDER OF THE COURT:
________________________
REGISTRAR
OF THE HIGH COURT PRETORIA
Counsel
on behalf of Plaintiff
:
Adv. M. de Meyer
(Olivier) (012-303-7696)
Counsel
on behalf of Defendants:
[1]
See par 9
of the particulars or claim to the summons on indexed p 8 of the
pleadings bundle.
[2]
The
plaintiff claimed R50 000.00 for past medical and hospital expenses:
R50 000.00 for future medical, hospital and related expenses:
R 100
000.00 for past and future loss of income/earning capacity and R 100
000.00 in respect of general damages.
[3]
See pars
53-55 below.
[4]
Section 17(
IA) of the Road Accident Fund reads as follows: "(IA (a)
Assessment of a serious injury shall he based on a prescribed
method
adopted after consultation with medical service providers and shall
he reasonable in ensuring that injuries arc assessed
in relation to
the circumstances of the third party.
(b)
The
assessment shall be carried out by a medical practitioner registered
as such under the Health Professions Act 1974 (Act No.56
of 1974 )."
[5]
See
plaintiff’s experts bundle indexed on p 97.
[6]
See
plaintiff’s experts bundle indexed on p 97.
[7]
See Du
Toit's report on pp 32-52 of plaintiff experts bundle.
[8]
See job
description and analysis on indexed p 36 of the plaintiff experts
bundle
[9]
Sec par 4.2
on indexed p 42 of the plaintiff experts bundle.
[10]
See par 3.2
on indexed p 37 of the plaintiff experts bundle.
[11]
See par 3.3
on indexed p 38 of the plaintiff experts bundle.
[12]
See indexed
pp 55-64 and 71-77 plaintiff experts bundle.
[13]
See par 6
on indexed p 120 of the plaintiff experts bundle: par 4.1.2 on
indexed p 81 of the plaintiff’s experts bundle.
[14]
See
plaintiff’s experts bundle at par 4.1.1 on indexed p 81.
[15]
See
defendant's experts bundle on indexed pp 45-64.
[16]
Unreported
decision of this division under case number: 56326/2011, decided on
8 May 2015.
[17]
1973 (2) SA
146
(A).
[18]
See
plaintiff’s experts bundle on indexed p 126.
[19]
See the
unreported decision in the Liebenberg matter at par 16.
[20]
See
pleadings bundle on p 12.
[21]
See
plaintiff’s experts bundle on indexed p 80.
[22]
See
plaintiff’s experts bundle indexed p 35.
[23]
See the
actuarial report on indexed p 123-127.
[24]
See
Potgieter et al
Visser
& Potgieter Law of Damages
3
rd
ed (Juta Cape Town 2012) at p 467: See Klopper HB
Law
of Third-Party Compensation
3
rd
ed (LexisNexis Durban 2012) at p 177.
[25]
See Van
Loggerenberg
Erasmus
Superior Court Practice
Vol. 2. 2
nd
ed (Juta Cape Town 2015) at D5-14 to D5-16.
[26]
Se
Government Notice 2017 in Government Gazzette 37477 of 27 March
2014.