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[2016] ZAGPPHC 588
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Coertze v Road Accident Fund (40279/2013) [2016] ZAGPPHC 588 (20 April 2016)
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personal/private details of parties or witnesses have been redacted
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IN
THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case No:
40279/2013
DATE: 20 APRIL 2016
In
the matter between:
ADV
M
VAN ANTWERPEN obo L D
COERTZE Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
D
S FOURIE, J:
[1]
The plaintiff acts in her capacity as the duly appointed curator
ad
litem
on behalf of L D Coertze. She claims damages from the defendant
in terms of the
Road Accident Fund Act 1996
for injuries sustained by
Coertze in a motor vehicle accident which occurred on 30 October
2008. Coertze sustained certain orthopaedic
and soft tissue injuries
in addition to a mild concussive brain injury. The defendant conceded
liability for payment of 100% of
Coertze's proven or agreed damages
flowing from the collision. The defendant has also tendered an
undertaking in terms of
section 17(4)(a)
of the Act in respect of the
claim for future hospital and medical expenses. The claim for past
and future loss of earnings (or
earning capacity) is the only
remaining issue.
[2]
Prior to the accident and thereafter Coertze was employed as a senior
sales representative at Homemark. During August 2014 (six
years after
the accident) he was involved in a shooting incident in which his
assistant was killed. He was shot in the left arm.
Summons was only
thereafter issued during July 2013. The defendant denies that Coertze
has suffered any past or future loss of
earnings, and if any such
loss has been suffered, then the defendant denies that it was caused
by the motor vehicle accident and
its
sequelae.
FACTS
WHICH ARE COMMON CAUSE:
[3]
The following facts are common cause between the parties:
•
the
orthopaedic and soft tissue injuries are not a major cause of
Coertze's inability to be gainfully employed, neither are
they
responsible for the difficulties which he experienced in the period
between the accident and the shooting incident;
•
Coertze has significant problems with regard to his language profile
and ability to communicate, mainly in the areas of speech
and
pragmatics;
•
his
ability to communicate is poor and his prospects for remaining in a
job as a sales representative was considered
to be poor
and not suited to a workplace situation which he found
himself in at the time when he was still employed;
•
Coertze
had an unstable and/or dysfunctional family life;
•
Coertze,
but for the accident, would have remained in the retail field where
he was employed as a sales representative
by Verimark and
later Homemark;
•
his
career and/or remuneration ceiling (irrespective of his job level
description) would have been in the region of R400
000.00 to
R450 000.00 per annum (albeit according to the plaintiff's
industrial psychologist in 2010 money terms and according
to the
defendant's industrial psychologist in 2015 money terms);
•
the
retirement policy of the employer of Coertze was retirement at the
age of 65 years;
•
a
high post-accident contingency deduction is indicated on any income
which Coertze may be postulated to earn.
[4]
It was also agreed at a pre-trial conference held on 6 October 2015
(par 12) that the parties are bound by agreements contained
in the
joint minutes of expert witnesses, unless disavowed by a party on
reasonable notice. Neither party did so and they are accordingly
bound by the agreements contained in such joint minutes.
MAIN
ISSUES:
[5]
The following are the main issues between the parties:
•
Coertze's actual career performance before the accident;
•
his actual career performance after the accident;
•
the role, if any, of the accident and its
sequelae
on
the post-accident career performance of Coertze;
•
the promotional prospects of Coertze but for the accident and at
what time he probably would have attained
it;
•
Coertze's ability to earn an income and to be gainfully employed at
the moment and the reason for any compromise in
this regard
• the
appropriate contingency deduction to be applied to any pre-accident
employment and the appropriate contingency deduction
for
post-accident earnings and the level at which he will probably
earn.
[6]
As far as these issues are concerned, the plaintiff has presented the
evidence of Ms Coertze, Mr Gaggiano, Dr Mazabow and Ms
Noble. The
defendant has presented the evidence of only Ms Pulles. There is also
a joint minute of the two experts, Ms Noble and
Ms Pulies.
EVIDENCE
FOR THE PLAINTIFF:
MS
COERTZE
[7]
Ms Coertze is the sister-in-law of Coertze. She testified that she
knew Coertze before the accident and had occasion to have
frequent
interaction with him on a social basis. According to her he was a
cheerful outgoing person. He was not aggressive and
always willing to
help other people. He would consume alcohol occasionally during
social events. She was aware of his use of cannabis
from time to time
but she is not aware of consistent or excessive alcohol or drug
abuse.
[8]
As far as the workplace is concerned the witness confirmed his
dedication and described him as a neat, punctual and clean shaven
person. He acted socially appropriate with good personal skills. All
of this changed after the motor vehicle accident.
[9]
After the accident she noticed that he was complaining about
headaches. He then also started to deteriorate as far as his personal
behaviour was concerned. He failed to keep social appointments and
indicated that he did not want to see people. He preferred to
be left
alone. He started to stutter and to forget things. He also became
"verbally aggressive". He no longer wanted
to travel far
distances and his employer accommodated him in this regard. He was no
longer neat and clean shaven.
[10]
After the shooting incident during August 2014 he was totally
devastated. He was admitted to Weskoppies Hospital and was suffering
from post-traumatic stress. His appearance also changed. He painted
his nails black and was always fiddling with his hands. At
some stage
the witness became afraid of him.
[11]
In cross-examination she described Coertze, with reference to his
other family members, as the "normal one" prior
to the
accident. She also explained that after the accident he
"deteriorated" and was no longer socialising with his
family. She confirmed that he was treated in Weskoppies Hospital
during October/November 2014.
MR
GAGGIANO
[12]
Mr Gaggiano was the manager of Coertze at Homemark. He knows him for
the last 12 to 14 years. According to him Coertze was
the best
employee with whom he had ever worked with. He described him as hard
working, never been off sick and very loyal. He promoted
Coertze to
be his senior sales representative. He took a lot of pride in his
work and was never late. He rated him "far above
the rest".
[13)
According to the witness he was grooming Coertze for the key accounts
manager post which he envisaged would materialise within
11/2
to
2 years from 2008. It would have been his decision to promote Coertze
to this position. From there Coertze could have become
the national
key accounts manager. As key accounts manager he would have earned
between R400 000.00 to R600 000.00 during 2010
and as national key
accounts manager his salary would have been between R600 000.00 and
R1 million also calculated according to
2010 money terms.
[14]
After the accident Coertze was given sick leave for a period of one
month but according to the witness he returned after six
days.
Initially there were no problems but later he started to look
"scruffy". When he was reprimanded, he got aggravated.
During or about 2011 the witness noticed that Coertze started to
change and was no longer coping as before. He received complaints
about Coertze and noticed that he became forgetful. He behaved as if
he was suffering from depression and also started to stutter.
It was
then decided to give him an assistant. If it was not for him (the
witness) Coertze would not have been further employed
by Homemark.
The witness testified that he "felt sorry for him".
However, as there was no improvement, Coertze was demoted
to his
previous position of an ordinary sales representative. His amount of
calls and travelling was also reduced.
[15]
Coertze's assistant was killed during the shooting incident.
Thereafter Coertze became a nervous wreck. The witness then requested
the human resources department to assist him. Coertze was then sent
to Weskoppies Hospital where the witness visited him a few
times. His
employment contract was finally terminated during October 2014.
[16]
In cross-examination the witness explained that he would have
appointed Coertze as key account manager from 2010 until
approximately
2012. However, during 2009 and also 2010 he appointed
two other people at national level. He conceded that he did not
appoint Coertze
at local level during 2010 as there was no "budget
available" to appoint him also. He said that he would have
appointed
Coertze during 2012 or later if his performance was
acceptable, the position still available and the budget sustainable.
According
to him Coertze was at that stage not promoted due to budget
constraints. According to his opinion it was not the accident, but
the shooting incident which caused Coertze to become unemployable.
DR
MAZABOW
[17]
Dr Mazabow is a clinical psychologist. He prepared a
neuro-psychological assessment of Coertze dated 17 August 2015. He
considered
collateral information from,
inter a/ia,
Ms
Coertze and Mr Gaggiano. He testified that Coertze was a vulnerable
individual in terms of his pre-accident psychological make-up.
Despite this vulnerability, he functioned effectively in the
workplace. His intellect was at least average to high average and
he
managed to channel his skills into the work arena effectively and
consistently.
[18]
After the accident in 2008 a significant deterioration in his work
situation occurred in terms of memory, not meeting deadlines
and
complaints which were received from stores. This was due to a
deterioration in his psychological functioning - the trauma
experienced in the motor vehicle accident was magnified.
[19]
As a result of the shooting incident during 2014 he experienced a
further serious decline in his psychological functioning.
He became
severely depressed and was admitted twice to Weskoppies Hospital. The
witness described his current functioning as "very
low", he
is suicidal, paranoid and engages in self-mutilation. Finally, the
witness described him as a person who "is
out of touch with
reality".
[20]
Dr Mazabow explained the decline in his psychological functioning on
the basis of the formula "V+T1S+V2+T2
S2
". He used this
equation to explain the pre-existing vulnerability (V) which resulted
in psychological symptoms as a result
of the accident in 2008 (T1)
which in turn resulted in an even more serious vulnerability (V2).
This more serious vulnerability
then increased exponentially as a
result of the second trauma (shooting incident (T2)) whereafter his
symptoms became exponentially
worse
(S2)
resulting in his current
psychiatric/psychological condition. The witness was of the view that
this condition is permanent and
psychotherapy will be supportive
rather than curative.
[21]
In cross-examination he explained that prior to the accident his
symptoms would be more evident at home than at his workplace.
After
the accident symptoms like aggressiveness would occur more gradually
and rudeness would go hand-in-hand with depression.
He also explained
that if the shooting incident did not occur Coertze would have
continued to display all those symptoms (aggressiveness,
rudeness and
depression) in his workplace. These symptoms would then manifest as
memory problems, problems with impulse control,
working memory and
mental tracking. He also was of the view that if Coertze was
malingering about these symptoms, it would have
been exposed by the
tests which he conducted.
MS
NOBLE
[22]
This witness is an industrial- and counselling psychologist. She
prepared a medico-psychological report after she had consulted
with
Coertze on 2 June 2015. She is also a co-signatory to the joint
minute concluded between herself and Ms Pulles on 5 October
2015.
[23]
In paragraph 8 of the joint minute it appears that both industrial
psychologists (this witness and Ms Pulles) agree that, pre-accident,
Coertze's career/remuneration ceiling (no matter what his job level
or job title would have been) is expected to have been approximately
R400 000.00 to R450 000.00 per annum to be reached at approximately
37 to 40 years of age. According to Ms Noble Coertze would
thereafter
have enjoyed real growth over and above yearly general increases to
the median to be reached by the age of approximately
45 whereafter
only yearly increases based on the consumer price index is
recommended until retirement at the age of 65. She was
also of the
view that the calculation should be done according to 201O money
terms.
[24]
In cross-examination she conceded that Mr Gaggiano did not disclose
to her that the next level of promotion would be subject
to
availability and budget constraints. She however also explained that
one should also look at Coertze's potential and his ability
to apply
that in the open labour market. She also explained that Coertze was
at that stage fairly young and therefore she expected
further growth
in his workplace to be reached by the age of approximately 45 years.
EVIDENCE
FOR THE DEFENDANT:
MS
PULLES
[25]
Ms Pulles is an industrial psychologist who prepared a psycho-legal
evaluation report dated 30 September 2015. She is also
a co-signatory
of the joint minute concluded between herself and Ms Noble on 5
October 2015. She evaluated Coertze on 28 September
2015.
[26]
She testified that according to what Mr Gaggiano had informed her,
Coertze's productivity started to decrease about one year
after the
accident. He also started to experience memory problems and that he
tried to address these problems. She was also informed
by Mr Gaggiano
that Coertze was "one of the best" and if it was not for
the accident, he would possibly be promoted to
key accounts manager
within the next two years, but that would be the pinnacle of his
career.
[27]
She also testified that she had spoken to the human resources manager
of Homemark and was informed that the current remuneration
for a
person employed at the level of key accounts manager, is R420 000.00
per annum. That, according to her, is comparable to
a C2 level on the
Patterson scales calculated in current (2015) money terms. She was
also of the view that it seems unlikely for
a person to be promoted
from senior sales manager directly to national key accounts manager.
[28]
In paragraph 8 of the joint minute both industrial psychologists
(this witness and Ms Noble) agree that, pre-accident, Coertze's
career/remuneration ceiling is expected to have been approximately
R400 000.00 to R450 000.00 per annum to be reached by the age
of
approximately 37 to 40 years of age. However, while Ms Noble was of
the view that this remuneration package should be applied
according
to 2010 money terms, Ms Pulles was of the view that this should be
according to 2015 money terms comparable to the upper
quartile of a
C2/median of a C3 package income.
[29]
In cross-examination the witness conceded that the evaluation of a
person should not be confined to one employer, but his potential
in
the open labour market should also be taken into account. She also
conceded that if Coertze would have lost his position at
Homemark, he
"would have had a problem". She agreed that he could not
perform his duties after the accident as he was
able to do before the
accident. She was also not aware that Coertze had been demoted after
the accident but before the shooting
incident took place. She also
conceded that she has to defer to Dr Mazabow with regard to the
employability and incapacity of Coertze
after the accident in 2008
and also after the shooting incident in 2014.
DISCUSSION:
[30]
Before considering the issues, it is not only appropriate but also
necessary to say something about the credibility and reliability
of
the witnesses. Counsel for the defendant criticised Mr Gaggiano and
argued that his evidence should be rejected as being false.
An
assessment of the credibility and reliability of a witness has to
take into account the general context, the witness' intelligence,
memory and the ability to express him- or herself properly. It is a
well-known fact that sometimes witnesses do make mistakes.
One should
therefore distinguish between
bona fide
errors and
intentional untruths. I have had the opportunity to observe the
demeanour of Mr Gaggiano and also to listen carefully
to his evidence
and have no reason to conclude that he or any of the other witnesses
were untruthful. I have to take into account
that the accident in
this matter occurred during October 2008 and that some of the events
about which Mr Gaggiano testified, had
already taken place during
2011. There is, in my view, no reason to make a finding against him
or any of the other witnesses with
regard to their reliability or
credibility. This is a matter that should be decided on the evidence
before me and the probabilities.
[31]
It was contended on behalf of the plaintiff that, having regard to
the proven and agreed facts, I should accept the actuarial
calculation indicating a loss amounting to R4 174 146.00 after
application of the loss limit in terms of
section 17(4A)(a)
of the
Road Accident Fund Amendment Act, No 19 of 2005
. Counsel for the
defendant submitted that I should dismiss the plaintiff's claim for
past and future loss of earnings as the plaintiff
had been unable to
prove any loss. It was contended in the alternative that the
plaintiff's earning potential, pre- and post-accident,
is the same
and therefore no loss is indicated.
PRE-ACCIDENT:
[32]
When considering the issues one has to take into account, not only
the evidence, but also facts which are common cause between
the
parties. It was agreed at a pre-trial conference that the parties are
bound by agreements contained in the joint minutes of
expert
witnesses, unless disavowed by a party on reasonable notice. Not one
of the parties did so and they are accordingly bound
by the
agreements contained in such joint minutes. For this reason I have to
take into account what was agreed upon between Ms
Noble and Ms Pulles
in their joint minute of 30 October 2008. They have agreed that
Coertze's career or remuneration ceiling (no
matter what his job
level or job title would have been) is expected to have been
approximately R400 000.00 to R450 000.00 per annum
to be reached by
the age of approximately 37 to 40 years of age.
[33]
Ms Noble was of the view that, having regard to these figures, the
calculation should be done according to 2010 money terms,
whereas Ms
Pulles was of the view that the calculation should be performed
according to 2015 money terms. Another dispute between
them relates
to promotional prospects had the accident not taken place. According
to Ms Noble Coertze would have enjoyed real growth
over and above
yearly general increases to a median to be reached by the age of
approximately 45, whereafter only yearly increases
based on the
consumer price index should be accepted until normal retirement age
of 65. According to Ms Pulles provision should
be made for
inflationary increases only, having regard to earnings of
approximately R400 000.00 to R450 000.00 per annum calculated
according to 2015 money terms.
[34]
Coertze was regarded by Mr Gaggiano as his best representative. He
was also promoted to a senior sales representative and there
is no
evidence of any disciplinary record prior to the accident. Mr
Gaggiano envisaged promotion of Coertze to key accounts manager
within the next two years from the date of accident (i.e. plus-minus
2010). According to this witness he would then have earned
between
R400 000.00 to R600 000.00 during 2010.
[35]
The opinion of Ms Pulles that the promotion for which Coertze was in
line during 2010 should be assessed according to 2015
money terms,
appears to be unrealistic. It is common cause that Ms Pulles did not
investigate to what extent the job level of key
accounts manager (for
which she obtained the income level from Ms Venace) accords with the
job level and responsibilities of a
key accounts manager in 2010. She
conceded that it would have been necessary for her to have done so.
Furthermore, the evidence
of Mr Gaggiano was to the effect that as
key accounts manager Coertze would have earned between R400 000.00 to
R600 000.00 during
201O. Furthermore, it makes no sense whatsoever
that the income attributed to a job in 201O would remain static at
the lowest level
for a period of five years without any increases. Ms
Pulles conceded that the absence of allowance for real growth by her
in the
joint minute does not accord with reality, given that Coertze
fell within the age group (i.e. below 45 years of age) where one
would in the ordinary course expect real growth over and above
inflationary increases. For these reasons I prefer the opinion of
Ms
Noble that the calculation should be done according to 2010 monetary
terms and that Coertze would thereafter have enjoyed real
growth over
and above yearly general increases as set out in the joint minute.
The fact that Coertze suffered from a pre-existing
psychological
vulnerability does not affect the principle according to which the
calculation has to be done. However, this is a
fact to be taken into
account when applying contingencies.
POST-ACCIDENT:
[36]
It was contended on behalf of Coertze that, having regard to the
accident, he is permanently and totally unemployable. According
to
the evidence of Dr Mazabow, with reference to the shooting incident,
the more serious vulnerability of Coertze increased exponentially
resulting in Coertze's current psychiatric/psychological condition.
He was also of the view that this condition is permanent and
psychotherapy will be supportive, rather than curative. Having regard
to this evidence, I am satisfied that Coertze should be regarded
as
totally unemployable. The question is whether this total
unemployability can be attributed to the accident?
[37] Counsel for the
plaintiff submitted that he does not avail the defendant to argue
that Coertze's pre-existing vulnerability
should not be visited upon
the defendant. He pointed out that according to our case law, it is
clear that the
"thin skull"
rule applies in
matters of this nature where a pre-existing condition is either
aggravated or causes
sequelae
which may not necessarily
have followed in other persons who suffered the same
sequelae.
In
support of this argument he relied,
inter
alia,
on
Gibson
v
Berkowitz
&
Another
1996 (4) SA 1029
(W) and
Prinsloo
v
Road
Accident
Fund
2015 (6) SA
91
(WCC).
[38]
This argument relates to the question of causation. It is trite that
the conduct of the defendant must have caused the loss
suffered by
the plaintiff and the resulting harm must not be too remote. This
principle was explained as follows by Corbett JA
in
Minister
of
Police
v
Skosana
1977 (1) SA 31
(A) at 34 F:
"Causation
in the
law of delict gives rise to two rather
distinct problems. The first
is
a
factual
one
and relates
to
the question
as to whether the
negligent
act
or
omission in question caused or
materially
contributed
to
...
the
harm
giving
rise
to
the
claim.
If
it
did not,
then no legal liability
can
arise
and cadit
quaestio.
If
it did, then the second problem becomes relevant, viz. whether
the negligent
act or omission
is linked
to the harm sufficiently
closely
or
directly for legal liability
to ensue or,
whether, as it is said,
the harm is too remote.
This is basically
a
judicial problem in which considerations
of legal policy
may play
a
part."
[39]
It therefore appears that the test for factual causation seems to be
that of
sine
qua
non.
This was
further explained as follows in
International Shipping
Co
(Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700 F:
"The
enquiry
as
to factual causation
is
generally conducted by applying
the so-called
'but for'
test
which is
designed
to
determine whether
a
postulated
cause
can
be
identified
as
a
causa
sine
qua
non
of
the
loss
in
question.
In
order
to
apply
this
test
one
must make
a
hypothetical
enquiry
as
to
what probably
would
have happened but for the wrongful conduct of the
defendant.
This enquiry
may
involve
the mental
elimination
of
the
wrongful conduct and
the
substitution
of
a
hypothetical
cause
of
lawful
conduct
and the posing
of
the
question
as
to
whether
upon
such
an
hypothesis plaintiff's
loss
would
have
ensued
or
not.
If
it
would
in
any
event have
ensued then
the
wrongful
conduct
was
not
a
cause
of
the plaintiff's loss
...
On
the
other
hand,
demonstration that
the wrongful
act
was
a
causa
sine
qua non of
the loss
does not necessarily
result
in legal liability.
The second
enquiry
then arises, viz
whether
the
wrongful
act is
linked
sufficiently
closely
or
directly to
the
loss
for
legal
liability
to
ensue
or
whether,
as
it
is
said,
the loss is too remote."
[40]
The application of the
sine
qua non
test
becomes particularly important when regard is had not only to the
accident, but also the shooting incident which took place
several
years later. Put differently, what is the direct cause of Coertze's
total unemployability? According to the evidence Coertze
was still
employed for a considerable period after the accident. It was only
after the shooting incident, which is unconnected
to the accident,
that he had to be treated in Weskoppies Hospital during
October/November 2014 and, according to the evidence of
Ms Coertze,
that
"he
was
totally devastated".
[41]
In both the cases of
Gibson
and
Prinsloo
reference
is made to
"additional stressors"
which
cannot be regarded as a supervening cause and therefore the defendant
should be held liable. In
Gibson (
supra,
at
1049 A-8) it was specifically pointed out that the plaintiff's
emotional over-reaction to the stimuli emanating from
"these
additional
stressors"
cannot be
regarded as a supervening cause. In
Prinsloo
(supra,
at 112 par 91) it was also pointed out that:
"The
plaintiff's
reaction
to
what
would otherwise
have
been
normal stressors
cannot be regarded
as
a
supervening
cause and the defendant
should
thus
be
held
liable
for
her
total
loss
of
income caused by her early retirement."
[42]
The present matter is, in my view, to be distinguished from the case
law referred to above. The shooting incident in this case
can hardly
be described as
"additional or normal
stressors".
According to the evidence this was a traumatic event during which
Coertze was shot in the left arm and his assistant had been killed.
No doubt, this is a supervening cause that should be taken into
account to avoid visiting the defendant with consequences which
are
too remote. I am therefore not convinced that it has been proven on a
balance of probabilities that the accident in question
directly
caused Coertze to become totally unemployable. On the contrary,
having regard to the evidence, it is more probable than
not that the
shooting incident caused him to become totally unemployable. The
result is that Coertze's loss, having regard to the
accident, should
be calculated as if the shooting incident did not take place.
[43]
It is common cause that after the accident (2008) Coertze was still
employed, albeit not without problems caused by the accident,
and
that his employment contract was only finally terminated after the
shooting incident (October 2014). The fact that he was still
employed
for a considerable period (six years) after the accident, is an
indication that he still had at least some residual earning
capacity,
but for the shooting incident. Ms Pulles pointed out in this regard
(in the joint minute) that he may have remained limited
and captured
in his post-accident capacity, without the possibility of promotion
as was indicated prior to the accident. According
to her his earnings
level may have remained between the lower and median of a C1 Paterson
level until retirement age. Ms Noble
also pointed out that his
prospect for promotion evaporated due to the
sequelae
caused by the accident and she recommended the figures in Table 1
of her report (par 9.1.11 thereof) for quantification purposes.
Both
experts have agreed that a high post-accident contingency deduction
is indicated.
THE
CALCULATION:
[44]
A variety of actuarial calculations on different bases were performed
by the actuary, Mr Whittaker, It is not necessary to
refer to all of
them. The historical earnings of Coertze for the 2008 to 2014 tax
years have been summarised in Table 3 of each
of the calculations.
These are not in dispute. The defendant has admitted the salary slips
and clearly does not dispute the underlying
tax documentation relied
on by the actuary. Each of the different calculations was based on
the same information regarding this
income. The actuarial basis and
assumptions pertaining to the calculation date (i.e. 1 November
2015), Coertze's personal information
and life expectancy and the
approach, method and assumptions listed in paragraph 3 of each of the
various calculations as well
as the loss limit referred to in
paragraph 5 of each of the calculations, also appear not to be in
dispute.
[45]
It was contended on behalf of the plaintiff that scenario 2A of the
actuarial calculation dated 15 October 2015 indicating
a total net
loss amounting to R4 174 146.00 (after the loss limit in terms of
section 17(4)(A)(a)
of the
Road Accident Fund Amendment Act has
been
applied) should be accepted. When analysing this calculation it
appears that past loss, taking into account both the value
of income
uninjured and injured, amounts to a net figure of R137 224.00 (after
application of the loss limit).
[46]
As far as future loss is concerned, it appears that the calculation
has been performed on the basis that Coertze has no residual
earning
capacity, indicating a net future loss (after application of the loss
limit) of R4 036 921.00. Although the net past loss
of R137 224.00
appears to be a conservative calculation which may favour the
defendant, I cannot see why it should not be acceptable.
As far as
this past loss is concerned, a contingency deduction of 5% with
regard to senior sales representative and 10% with regard
to key
accounts manager (both uninjured) have been applied. These
contingency deductions appear to be realistic.
[47]
The fact that future loss has been calculated on the assumption that
Coertze is totally unemployable (but for the shooting
incident) is
not in accordance with my conclusion referred to above. I have
already concluded that Coertze would have had (but
for the shooting
incident) at least some residual earning capacity as indicated by the
industrial psychologists. Taking into account
a remuneration ceiling
of R425 000.00 (the average between R400 000.00 and R450 000.00 as
agreed upon by the industrial psychologists),
that the calculation
should be done according to 2010 money terms and that Coertze would
have enjoyed real growth as suggested
by Ms Noble, the actuarial
calculation dated 7 October 2015 has been performed on the assumption
that Coertze would have had the
ability to earn an income after the
accident as discussed by the industrial psychologists (scenario 1
thereof, future loss only).
The net future loss according to this
calculation (after application of the loss limit) amounts to R3 807
846.00. This is after
a contingency deduction of 20% for income
uninjured and 50% for income injured have been applied. As was
pointed out by counsel
acting for the plaintiff, a 15% contingency
deduction for income uninjured would have been acceptable, but for
Coertze's pre-existing
psychological vulnerability. Having regard to
this condition, I am of the view that a 20% deduction appears to be
reasonable. As
far as the value of income injured is concerned, both
industrial psychologists have agreed that a high percentage
contingency deduction
is indicated. In this regard one should also
take into account the evidence of Dr Mazabow that Coertze (but for
the shooting incident)
would have continued to display symptoms like
aggressiveness, rudeness and depression in his workplace. No doubt,
these
sequelae
call for a high contingency deduction
and 50% appears to be reasonable.
[48]
In the result I conclude that the total loss suffered by Coertze
amounts to R3 945 070.00 calculated as follows:
•
Net past loss after contingencies and application of the loss limit,
R 137 224.00 plus
•Net
future loss after contingencies and application of the loss limit, R3
807 846.00
ORDER:
In
the result I grant the following order:
The
draft order attached hereto and marked "X", is made an
order of Court.
D
SFOURIE
JUDGE
OF THE HIGH COURT PRETORIA
Date:
26 April 2015
VAN
ANTWERPEN OBO COERTZE V RAF_JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
HELD
AT PRETORIA BEFORE THE HONOURABLE JUSTICE D S FOURIE
DATE:
20 APRIL 2016
Case
No: 40279/2013
In
the matter between:
M
VAN ANTWERPEN obo L
D
COERTZE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
ORDER
OF COURT
HAVING
HEARD COUNSEL for the parties, the Court grants judgment in favour of
the plaintiff against the defendant in the following
terms:
1.
The defendant shall pay an amount of R3 945 070.00 (three million
nine hundred and forty five thousand and seventy rand) to
the
plaintiff's attorneys, Adams & Adams, in settlement of the
plaintiff's claim, by direct transfer into their trust account,
details of which are as follows:
Account
holder Bank:Adams
&
Adams Trust Account
Branch:
Nedbank
Branch
code:[ 19....]
Account
number : [160...]
Reference:[DB.....]
2.
The Defendant shall furnish the Curator bonis to be appointed
(subject to the approval of the honourable court) with an undertaking
in terms of Section 17(4)(a), in respect of 100% of the costs of the
future accommodation of
LESLIE
DENNIS COERTZE
(hereinafter referred to as "the Patient") in a
hospital or nursing home or treatment of or rendering of a service or
supplying of goods to him after the costs have been incurred and on
proof thereof, resulting from the accident that occurred on
30
October 2008.
3.
The aforementioned undertaking shall include and also cover the full
amount of the following costs:
3.1
The reasonable fees and disbursements of the Curator
bonis
to be appointed herein for the administration of the estate of the
Patient and the Undertaking referred to in paragraph 3 above,
inclusive of the costs pertaining to the furnishing of security and
the costs of a case manager, which costs shall also be recoverable
100% in terms of the said Undertaking;
3.2
Th.e remuneration of the Curator bonis to be appointed, shall be
calculated in accordance with the tariff prescribed by the
Administration of Deceased's Estate Act, Act 66 of 1965,
disbursements incurred and collection commission calculated at 6% on
all amounts recovered from the Defendant in terms of the Section
17(4) (a) Undertaking;
3.3
The costs of and associated with the preparation and auditing of
curatorship accounts and financial statements as required
by the
Master;
3.4
The cost of providing security to the satisfaction of the Master of
the High Court by the Curator
bonis
in respect of the
insurance cover that he will have to take out in order to furnish
such security as maybe required by the Master
of the High Court;
3.5
The appointment and reasonable costs of a case manager;
3.6
To the extent that the aforesaid costs are based on a percentage of
the amount administered, they are not to be subjected
to any
apportionment and are to be met by the Defendant in terms of the
Undertaking on a 100% basis.
4.
The Plaintiff's application for the appointment of a curator
bonis
is herewith postponed
sine
die
to
afford the Master of the High Court an opportunity to furnish the
above honourable court with its recommendation, in addition
to the
recommendation to be made by the duly appointed curator
ad !item,
within the statutory time frame provided for in terms of the
Uniform Rules of Court;
5.
The parties are granted leave by the above honourable court, to
approach the relevant Registrar to have the application for the
appointment of a curator
bonis
re-enrolled on a preferential
date on the unopposed motions roll;
6.
The Plaintiff's attorneys are authorised to invest the capital amount
in an interest bearing account in terms of Section 78(2A)
of the
Attorneys Act to the benefit of the Patient, with a registered
banking institution pending the finalization of the directive
referred to in paragraph 4 above;
7.
Until such time as the appointed
curator bonis
to be
determined in terms of the application referred to in paragraph 4 is
able to take control of the capital sum, the Plaintiff's
attorneys
are authorised and ordered to pay from the capital amount:
7.1
any reasonable payments to satisfy any of the Patient's needs that
may arise and that are required in order to satisfy any
reasonable
need for treatment, care, aids or equipment that may arise in the
interim;
7.2
the attorney and own client costs (fees, disbursements and interest
on unpaid disbursements) of the Plaintiff/Patient;
7.3
such other amount(s) that may reasonably be indicated and/or required
for the well- being of the Patient and/or in his interest
which a
diligent
curator bonis
would have paid if such
curator
had
been appointed.
8.
The Defendant shall make payment of the Plaintiff's taxed or agreed
party and party costs on the High Court scale which costs
shall
include the following:-
8.1.
The fees of Senior Counsel on the High Court Scale, inclusive of but
not limited to Counsel's full, reasonable day fees
for 8, 13, 14,
15, 16 and 19 October 2015, and fees for the preparation of heads
of argument;
8.2
The fees of the
Curatrix ad Litem
on the High Court Scale,
inclusive of her full, reasonable, day fees and costs for
preparation, attending consultations, the preparation
of her report
etc;
8.3.
The reasonable, taxable costs of obtaining all medico-legal
I
expert, RAF4 Serious Injury Assessment and actuarial reports
from the Plaintiffs' experts which were furnished to the Defendant;
8.4.
The reasonable preparation, qualification, travelling and reservation
fees, if any, of the experts of whom notice have been
given;
8.5.
The reasonable fees of Mr Royce Buda, an interpreter appointed by the
court, to assist the factual witnesses in giving
testimony during
the trial on 14 October 2015;
8.6.
The costs of all consultations between the Plaintiff and/or the
Patient, his/her attorneys and/or counsel in preparation
for the
hearing of the action and to discuss the terms of this order;
8.7.
The costs of all consultations between the Plaintiff's attorneys,
and/or counsel and the experts in preparation for the hearing
of
this action;
8.8.
The costs of all consultations between the Plaintiff's attorneys, the
factual and other witnesses in investigating the issues
of
liability and quantum in preparation for the hearing of this
action, and the preparation of typed consultation notes thereof
for
furnishing to counsel and the experts. Such costs shall include but
not be limited to Plaintiff's attorneys' reasonable
travelling time
which shall be recoverable on the full party and party tariff;
8.9.
The reasonable, taxable accommodation and transportation costs
(including Toll and E-Toll charges) incurred on behalf of
or by the
Patient in attending medico-legal consultations with the parties'
experts, all consultations with his legal representatives
and the
court proceedings, subject to the discretion of the Taxing Master;
8.10.
The reasonable costs of the application for the appointment of the
curator
bonis
which is to be brought herein in terms
of paragraph 4, inclusive of the reasonable day fees of
senior-junior counsel and the curator
ad litem
to attend to
the application and the hearing thereof;
8.11.
The above costs shall also be paid into the aforementioned trust
account;
8.12.
It is recorded that the Plaintiff's attorneys do not act in terms of
a contingency fee agreement in this matter.
The
following provisions shall apply with regards to the determination
of the aforementioned taxed or agreed costs:-
9.1.
The Plaintiff shall serve the notice of taxation on the
Defendant's attorney of record;
9.2.
The Plaintiff shall allow the Defendant 7 (SEVEN) court days to make
payment of the taxed costs from date of settlement
or taxation
thereof; and
9.3.
Should payment not be effected timeously, the Plaintiff shall be
entitled to recover interest at the rate of 9% on the taxed
or
agreed costs from date of settlement /allocatur to date of final
payment.
BY ORDER OF THE COURT
DBS/MD/5417/10