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[2017] ZAGPPHC 217
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C.G.R v Road Accident Fund (12503/12) [2017] ZAGPPHC 217 (14 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
14/3/2017
Case Number: 12503/12
In
the matter between:
C
G
R Plaintiff
and
THE
ROAD ACCIDENT
FUND Defendant
JUDGMENT
BAM
J
Appearances:
For
plaintiff: Adv. L Visser.
For
defendant: Adv. S Matabathe
1.
The plaintiff instituted action against the
defendant consequent upon an accident that occurred on 5 November
2009. The merits were
resolved 100% in favour of the plaintiff. In
respect of the quantum of her damages the draft order reflects the
agreed upon issues
of loss of earnings and past medical expenses. The
only remaining dispute to be resolved by this court is the assessment
of general
damages.
2.
The plaintiff, whom at the time of the accident
was 28 years of age, sustained the following injuries: An injury to
her cervical
and lumbar spine; an injury to her thoracic spine;
injuries to her big toe nail beds (requiring surgery): and, she also
hit her
head. Apart from the surgery to her toe nail, she received a
lumbar fusion on levels L4/LS and C4/CS in April 2013. It is the
plaintiff's
case that the accident also caused psychological and
psychiatric sequelae. Her present condition can be summarised
as follows:
She has panic attacks once or twice a month; suffers from
depression; becomes forgetful; is anxious, frustrated and irritable;
has poor concentration and is easily distracted and
provoked; her appetite has increased resulting in
her
gaining weight; her libido is seriously affected; experiences
constant back and neck pain for which she has
to use
medication; she has problems with bladder control; she experiences
problems with her walking ability; and, suffers
from an overall
decline in enjoyment of life. There is also a 25% possibility of
further surgery to her neck.
3.
I have perused the numerous comprehensive expert
reports filed on behalf of both parties. However, in view thereof
that the issue
before this court turns solely upon general da mages,
I do not deem it expedient to refer in any more detail to the said
reports
and opinions.
4.
Mr Visser submitted, with reference to comparable
cases, that an amount of R525 000
"will
constitute fair compensation".
In this
regard Mr Visser referred to several decisions, including:
Shongwe
v Road Accident Fund:
Case Number A466/2013
(Full bench decision of this Court). General damages awarded R300
000: and,
Lawson v Road Accident Fund:
(Eastern Cape High Court, Port Elizabeth,
Case Number 1566/2006). General damages awarded - R300 000.
5.
It is the defendant's submission, presented by Mr
Matabathe, that an amount of R200 000 to R250 000, would be fair in
the circumstances.
It was further pointed out by Mr Matabathe that
the plaintiff, since the age of 7, as a result of a traumatic
experience, suffered
from certain psychological problems and
submitted that it contributed to her present psychological condition.
6.
I have considered the submissions made by counsel
as well as the effect of the incident on the plaintiff, reported upon
by the respective
experts in their reports.
7.
I am satisfied that the facts to be taken into
account, submitted by Mr Visser, correctly reflect the plaintiff's
situation.
8.
I am not convinced that the trauma experienced by
the plaintiff at the age of 7 should be considered to be material
concerning her
present psychological condition.
9.
In view thereof that other comparable cases can
only serve as guidance; each and every matter has to be considered on
its own merits.
Accordingly, after having taken into
account all relevant aspects, in exercising my discretion, I am of
the view that
an amount of R450 000 is fair in respect of general
damages.
10.
Mr Visser also raised the issue of a Trust to be
created in order to safeguard the award granted to the plaintiff.
(Paragraph 12
of the draft order.)
Mr
Matabathe raised the issue who would be liable for costs in creating
a trust. It was clear that the parties, concerning the issue
of a
trust, contrary to the wording of the said paragraph 12, were not at
idem.
I
then indicated that the issue of costs should be decided upon by the
court before which such application is enrolled. Accordingly
the
second sentence of paragraph 12 does not form part of the order I
intend to make and is deleted.
11.
The draft order marked X, as amended, and
including the sum of R450 000 for general damages, is made an order
of court.
______________________
A
J BAM JUDGE
9
March 2017
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
AT
PRETORIA ON THIS THE 8th
DAY OF MARCH 2017
BEFORE
___________________
CASE
NUMBER: 12503 /12
IN
THE MATTER BETWEEN:
C
G
R PLAINTIFF
AND
THE
ROAD ACCIDENT
FUND DEFENDANT
DRAFT
ORDER
(RAF
REF: last known 505/1585782/1/10)
(Plaintiff
Ref: R3029)
(Plaintiff
ID: [...])
Having
heard counsel and perused the papers,
THE COURT ORDERS:
1.
The defendant is
ordered to pay to the plaintiff by way of delictual
damages on/.before 28 APRIL 2017 the
amount of r1 743 864,
06
(no apportionment to be
applied).
1(a) The judgment amount
stipulated in paragraph 1 above consists of the following:
(i)
R
1,141,370.00 (one one four one three seven zero Rand and zero cents)
(in respect of the plaintiff's claim for payment of loss
of earnings
I
earning capacity;
(ii)
R 450,000.00 (in respect of the
plaintiff's claim for payment of
general damages;
(iii)
R
152,494.06 (in respect of the plaintiff's claim for
payment of past medical and hospital expenses.
1(b) The amounts recorded
in paragraphs 1(a)(i) and 1(a)(ii) are payable in full and final
settlement of plaintiff's claims for
those heads of damage. The
defendant contends that the amount reflected in paragraph 1(a)(iii)
constitutes payment of all provable
past medical and hospital
expenses whereas the plaintiff contends that it does not and that a
balance is due. The defendant will
provide within 10 court days from
date of trial to plaintiff s attorney a copy of the medical
department's bill review. The parties
agreement are recorded that the
plaintiff is at liberty to pursue the alleged balance but that she
will do so at her own risk and
that she will bear any future costs
should she so proceed and not be able to prove any balance. The
alleged balance in respect
of the past medical and hospital expenses
is hereby separated in terms of rule 33(4) from the resolved issues
and postponed sine
die.
2. If the defendant does
not pay the agreed amount or any portion thereof on or before the
date stipulated in paragraph 1 above
interest will run on the
outstanding amount from date of this order until date of final
payment to be calculated at the applicable
statutory mora rate of
interest.
3. The plaintiff s claim
for payment of past medical and hospital expenses is hereby separated
from the resolved issues in terms
of rule 33(4) and postponed sine
die at defendant’s request. Any wasted costs occasioned by
reason of the postponement of
this head of damage is immediately
taxable and payable against the defendant in favour of plaintiff.
4. The defendant will
within 4 months from date of this order furnish the plaintiff with an
unlimited undertaking in terms of the
provisions of Section 17(4)(a)
of the Road Accident Fund Act, Act 56 of 1996 for the costs
stipulated in terms of the said Section
arising out of the injuries
sustained by the plaintiff in the motor vehicle collision that is the
subject of the claim instituted
under the abovementioned case number.
By agreement between the parties any accident related future costs
relating to gardening
I
domestic
I
maintenance
assistance (if any) will be payable under and in terms of the
undertaking.
5. The defendant is
ordered to pay the plaintiff s taxed or agreed party and party costs
of suit on the opposed High Court scale
which costs will include, but
not necessarily be limited to the following:
5.1 The defendant is
liable to pay the wasted costs occasioned by the postponement of the
trial on 3 March 2017 to include but not
necessarily be limited to:
the reasonable travelling and subsistence costs of the plaintiff and
her witnesses for trial on 3 March
2017, the fees of counsel for the
plaintiff to be taxed on the senior-junior scale and reasonable
taxable preparation, qualification
and day fees of Dr W Pretorius for
trial on 3 March 2017 and the reasonable taxable preparation,
qualification and reservation
fees of all the plaintiff s other
experts for trial on 3 March 2017;
5.2 The reasonable
taxable costs of the necessary consultations with the plaintiffs
experts (if any); the costs of all the expert
reports and
assessments, follow up and addendum reports and assessments by all
plaintiff's experts (if any); the costs incurred
in respect of any
meetings between the experts and in procuring the joint reports of
all the plaintiff's experts (if any); the
costs of all the actuarial
calculations and the reports thereon procured on plaintiff s behalf;
5.3 The additional costs
(if any) incurred by reason of the fact that the defendant employed
more than one attorney to represent
it in the action are to be costs
in the cause;
5.4 The reasonable
taxable costs of one consultation with the plaintiff in order to
consider the offer of the defendant, to procure
performance by the
defendant of its obligations in terms hereof as well as the costs
incurred in preparing all discovery affidavits
on behalf of the
plaintiff; the costs in respect of the preparation, drafting and
copying of all the bundles of documents, pleadings
and notices and
all indexes thereto; the costs of the preparation for and attendance
of the pre-trial conference(s) and the pre
litigation court
pre-trial (if such was held) by the plaintiff s legal representatives
to include the taxable costs incurred in
preparing the pre-trial
minutes in regard to all pre-trials held;
5.5 Any costs reserved in
the past are to be costs in the cause;
5.6 The costs incurred in
respect of the examinations
I
evaluations by the plaintiff s
experts as required by regulation 3 of the 2008 RAF Regulations to
include the preparation of the
raf-4 serious injury assessment report
forms and narrative reports (if any);
5.7 The reasonable
taxable travelling, subsistence and accommodation costs of the
plaintiff in attending all the medico legal examinations
I
evaluations
I
assessments;
5.8 The fees of counsel
occasioned by the drafting and procurement of all affidavits for the
experts on behalf of the plaintiff
and the fees
I
costs
incurred in procuring such affidavits from the experts;
5.9
The duplication in costs incurred as the result that the defendant
appointed more than one attorney to represent it in the action;
5.10
The fees of counsel for plaintiff to be taxed on the senior-junior
scale to include his fees in respect of both the trial dates
of 3 and
8 March 2017.
6. It is noted and
recorded that by agreement between the parties no preparation,
reservation or qualification fees are to be allowed
in respect of any
of plaintiff s experts for the trial date of 8 March 2017.
7. The costs incurred by
the plaintiff in connection with the interim applications (if any)
are to be taxed in accordance with the
cost orders made therein.
8. The plaintiff hereby
abandons by agreement with the defendant paragraphs 1 and 2 of the
order of His Lordship Mr Justice Teffo
dated 11 January 2016 with the
result that the defendant's defence is hereby re-instated ex tune to
date when the defence was struck
out but with the proviso that the
cost order provided for in that order remains in force and that such
costs remain taxable against
and payable by the defendant and with
the further proviso that the defendant complies within 40 calendar
days from today with the
default by the defendant underlying the
order to strike solely to the extent that it relates to the
plaintiffs claim for payment
of past medical and hospital expenses to
further steps to compel such compliance.
9. All payments of the
plaintiff s capital and legal costs are to be made by paying the
amount(s) and taxed or agreed costs to the
credit of the Trust
account of Salome Le Roux Attorneys, the detail of which is as
follows:
SALOMe
LE ROUX ATTORNEYS
BANK:
THE STANDARD BANK OF SOUTH AFRICA
BRANCH:
PRETORIA, CHURCH SQUARE
BRANCH
CODE: 01-00-45-00
ACCOUNT
NUMBER: […]
ACCOUNT
HOLDER: SALOMe LE ROUX TRUST ACCOUNT
TYPE
OF ACCOUNT: TRUST CHEQUE ACCOUNT
REF:
R3029
10. In the event of the
parties not being able to agree on the amount of the legal costs
payable by the defendant, the plaintiff
shall:
serve a notice of
taxation on the defendant's attorneys in the
action; and
and shall allow
the defendant FOURTEEN calendar days
to make payment of the costs
so taxed.
If the defendant falls in
mora to pay the plaintiff s taxed or agreed to legal costs the
defendant will pay interest on any such
outstanding costs to be
calculated on the outstanding amount at the statutorily
prescribed mora rate of interest applicable
from time to time to be
calculated from date of mora to date of final payment.
11. It is noted and
recorded that the plaintiffs claim is subject to a contingency fee
agreement.
12. The defendant is in
agreement that application has to be made to the motion court in
order to have the question determined whether
a trust needs to be put
up for the plaintiff to safeguard her award due in terms of this
order. The defendant is furthermore in
agreement that if the
plaintiff s award requires protection in the form of a trust that the
formation costs, the costs in administering
same, the annual audit
fees, the costs in furnishing security and the fees and costs of the
trustee are to be payable from time
to time under and in terms of the
undertaking to be issued in terms of
section 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
.
BY
ORDER OF THE COURT
_________________
THE
REGISTRAR
S
LE ROUX '
082
338 1904
M
OELOFSE
072
298 7476
L
VISSER
0824525254
S
MATHABATH E
079
966 3756