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[2016] ZAFSHC 226
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Mjone v Road Accident Fund (2255/2014) [2016] ZAFSHC 226 (27 October 2016)
I
N
THE HIGH COURT OF SOUTH
AFRICA
FREE
STATE
DIVISION, BLOEMFONTEIN
CASE
NO : 2255/2014
In
the matter between :
MALITABA
FRANCINA
MJONE
Plaintiff
and
THE
ROAD ACC
I
DENT
FUND
Defendant
CORAM
:
ZIETSMAN AJ
HEARD
ON
:
20, 21 and 23 SEPTEMBER 2016
JUDGMENT
BY
:
ZIETSMAN AJ
DELIVERED
ON
:
27 OCTOBER 2016
[1]
Plaintiff issued summons against the Defendant on the
20
th
of May
2014
claiming damages in and because of a motor vehicle accident
that took place on the
12
t
h
of December
2010
in
Botshabelo.
[2]
The claim as far as the quantum is concerned, was based upon past
medical and hospital expenses, future medical and hospital
expenses,
loss of income and general damages. The total of the claim amounted
to
R5,500,948.83
.
[3]
On the
3rd
of
February
2016
Pienaar AJ
made the following order:
"1.
The
merits and
quantum is separated in terms of Rule 33(4).
2.
Defendant
concedes
the
merits
in
favour
of
the
Plaintiff
and therefore
is
liable
for
100%
of
the
Plaintiff's
proven
or
agreed damages.
3.
Defendant pays the Plaintiffs costs."
[4]
On the 1
7
th
of June
2016,
and by agreement between the parties, Moloi
J
made the following order :
"1.
The Defendant is to furnish the Plaintiff with an undertaking in
terms of Section 17(4)(a) of Act 56 of 1996 to compensate
the
Plaintiff for 100% of :
1.1
the
costs
of
the
Plaintiff's future accommodation in
a hospital or
nursing
home;
1.2
the
costs
of treatment to the
Plaintiff;
1.3
the costs of rendering a service
to the Plaintiff
(including but limited to an assistant)
and the supply of goods to her arising
out
of injuries sustained
by
her in the motor vehicle collision
which
occurred
on
the
1ih
of December 2010;
2.
Defendant admits the contents of the medico-legal report of Dr
JF Ziervogel, filed in terms of Rule 36(9)(b) on 20
January 2006."
[5]
The balance of the claim was enrolled to be heard on the
20
th
,
21
st
and
23rd
of September
2016
as far as the quantum is concerned with reference to
paragraphs 8.1, 8.3 and 8.4 of the Particulars of Claim.
[6]
On the
20th
of September
2016
the parties further agreed and settled part of the quantum
insofar as it was agreed that the past medical and hospital expenses
amounted to
R75,164.31
and
that the general damages amounted to
R300,000.00,
which amounts Defendant is liable for, and which should be
made an order of court. The only disputes left were the past and
future
loss of income of the Plaintiff as well as the costs of the
action.
[7]
Except for the legal-medico report of Dr Ziervogel, which was
admitted by the Defendant, none of the other reports were admitted.
[8]
The Plaintiff was called as a witness explaining her injuries
sustained during the accident which entailed mainly injuries to
her
right foot from the calve downwards, as well as her left foot from
the middle of the ankle to the foot. She had
three
operations on her right leg as well as an operation on her left foot.
She was in hospital from the 12
th
of December
2010
until the
22
nd
of December
2010,
but she only
started working again in January
2012.
She experienced a lot of pain and is still experiencing the
same pain to her legs, which makes it impossible for her to do a full
day's work standing on her feet in her occupation as teacher in the
Department of Education. The Plaintiff was indeed the Head
of a
Department in the foundation phase, at primary school. The foundation
phase being grade R to grade 3 children.
[9]
The Plaintiff also applied previously for a post of Deputy Principal
although she was not appointed as such. She testified that
she would
have applied again, and that if it was not for the accident she in
future most probably would have been appointed at
a stage as Deputy
Principal.
[10]
In evidence in chief she indeed testified that she have to stand in
class most part of the day which she can no longer do because
of her
injuries, and which hampers her in her job as a teacher. She also
testified during cross-examination that she experiences
pain even if
sitting.
[11]
The next witness the Plaintiff called was Ms Susan van Jaarsveld,
being an occupational therapist at the University of the
Free State.
She conveyed her opinion to the court based on the legal-medico
report of Dr Ziervogel, as well as consultations she
had with the
Plaintiff. Amongst others, this witness testified that the Plaintiff
would not be able to work until the age
of 65 and that at best she
would in future only be able to be employed in a low level
administrative post because of her
injuries. It is unsure for
how long she would still be able to work as a teacher.
[12]
The third witness the Plaintiff called was Mr Johan Sauer, an
actuary. Mr Sauer has been involved in quantum work since December
1998 until 2004 in own name and was admitted in 2004 as a qualified
actuary. It is clear that he has vast experience in determining
the
quantum of damages in the actuarial field.
[13]
As far as past loss of income is concerned, and taking
cognisance of Mr Sauer's evidence as well as the written heads
of
argument filed on behalf of the Plaintiff and the Defendant, it
seemed that it is common cause between the parties that the
total
damages suffered by the Plaintiff in this regard
amounts to R137,886.00 .
.
This amount was determined by the actuary taking into account that
the salary payments the Plaintiff received from her employer,
as
ex
gratia
payments, since 12 December 2010 until 31 December
2011. This was also common cause between the parties.
[14]
As far as future loss of earnings is concerned, the only real dispute
left between the parties, Mr Sauer worked on a 30% contingency,
which, if the RAF capped requirement is taken into account, amounts
to R1,844,101.00.
[15]
The total loss of income, past and future, according to Mr Sauer
would then have amounted to R1,981,988.00, if the RAF cap
is
considered and taken into account.
[16]
In argument on behalf of the Plaintiff, which is evident from the
written heads of argument by Plaintiff, it was argued that
at least a
60% contingency should have been taken into account with reference to
the likelihood that the Plaintiff would be able
to work in future as
a teacher. On her own evidence she testified that she would not be
able to work for longer than five years
from now. On behalf of the
Defendant it was argued that a contingency of 35% as far as this
scenario is concerned, would be the
appropriate contingency to be
taken into account.
[17]
Taking into account the arguments on behalf of the Defendant, it
seems that after the RAF cap is taking into account, with
a 35%
contingency as to future loss of income the amount as determined by
Mr Sauer, it would be R2,247,623.00.
[18]
On behalf of the Plaintiff it was argued that a 35% contingency is in
direct contrast with the direct evidence of the Plaintiff
as well as
the industrial psychologist, taking cognisance of the legal-medico
report by Dr Ziervogel. Plaintiff reiterated that
a contingency of
60% should be the appropriate contingency to be taken into account as
far as future loss of income is concerned.
[19]
Taking into consideration all the arguments and the evidence
before me, I am of the view that a 40% contingency as far
as future
loss of income would be the appropriate contingency to be taken into
account and on that basis I am satisfied that the
calculations as
made by the actuary, Mr Sauer, as set out in Exhibit E5,
would be the correct contingency and amount
of loss suffered by the
Plaintiff.
[20]
Taking into account the RAF capped claim in this regard, I am of the
view that as far as past loss of income is concerned,
that the
Plaintiff is entitled to judgment in the amount of R137,887.00, and
as far as future loss of income is concerned in the
amount of
R2,357,592.00. I again refer to the actuarial certificate after the
RAF cap has been taken into consideration and therefore
find in
favour of the Plaintiff of the total loss of R2,495,478.00 as far as
loss of income is concerned.
[21]
It was also argued on behalf of the Plaintiff that a punitive cost
order should be awarded in favour of the Plaintiff on the
basis of
attorney and client costs. The reason being that the Defendant
dragged its feet so that in the circumstances the first
two days of
the three-day trial were wasted days, whilst the Defendant did not
put up any evidence itself during the trial. On
behalf of the
Defendant it was argued that a punitive cost order would be
inappropriate whereas the matter had in any case been
enrolled for
three court days, and that the first two days had been utilised by
the parties in order to try and settle the matter.
This, according to
the Defendant's counsel, was a
bona
fide
attempt to come to some or other fair settlement, and that the
Defendant cannot be blamed to say that it dragged its feet.
[22]
In my discression, and in my view, I am of the opinion that a normal
cost order should be awarded in favour of the Plaintiff
as being the
successful party to the action, and in that circumstances I award
costs against the Defendant on a party and party
scale.
WHEREFORE
I MAKE THE FOLLOWING ORDER:
1.
Judgment in favour of Plaintiff against the Defendant for payment as
far as past medical and hospital expenses is
concerned, in the amount
of R75,164.31.
2.
Judgment in favour of Plaintiff against the Defendant for payment as
far as general damages is concerned, in the
amount of
R300,000.00.
3.
Judgment in favour of the Plaintiff against the Defendant for payment
as far as loss of income is concerned, in the
amount of
R2,495,478.00;
4.
The Defendant is ordered to make payment of the Plaintiff's taxed or
agreed party and party costs on High Court
scale which will include
the following:
4.1
The reasonable preparation
/
qualification,
reservation, travelling and accommodation expenses including
expenses of obtaining the expert reports (if any)
of :
4.1.1
Dr J F Ziervogel;
4.1.2
Ms Susan van Jaarsveld;
4.1.3
Mr Johan Sauer.
4.2
The costs attended upon obtaining the payment of the amounts referred
to in this order;
4.3
The Plaintiff shall serve the notice of taxation on the Defendant's
attorney of record; and
4.4
The Plaintiff shall allow the Defendant
fourteen
(14)
court
days
to make payment of the taxed costs;
4.5
The Defendant will be liable to payment of interest on the
judgment
amounts referred to
in
paragraphs
1, 2 and 3 above, as well as the taxed costs calculated at 10.5% per
annum, should the Defendant fail to make timeous
payment of the
judgment amounts as well as payment of the taxed costs.
4.6
The costs to include three (3) trial days.
_____________________
P
ZIETSMAN AJ
On
behalf of the Plaintiff :
Adv HJ Cilliers
Instructed by : Mr P Skein
22 Captain Proctor Street Brandwag
Bloemfontein
On
behalf of the Defendant :
Adv PC Ploos van Amstel
Instructed by : Maduba Attorneys
Office Park 2 - Unit 7
153 President Reitz Avenue Westdene
Bloemfontein