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[2016] ZAGPPHC 612
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Bouwer obo N.M v Road Accident Fund (29762/2010) [2016] ZAGPPHC 612 (29 April 2016)

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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
DATE:
29/4/16
CASE
NO: 29762/2010
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
In
the matter between:
ADV
APJ BOUWER OBO N.
M.
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
DATE
OF
HEARING:
24
FEBRUARY 2016
DATE
OF
JUDGMENT:
29
APRIL 2016
JUDGMENT
MANAMELA
AJ
Introduction
[1]
The plaintiff cited above is an appointed
curator
ad litem
for
N. I. M, a minor born in 2003.
[1]
The minor was injured in a motor vehicle accident on 27 May 2009. She
was hit by the motor vehicle driven by an insured driver
after she
ran into the road from behind a bus parked in the middle of the road.
She was 7 years old and in grade 2 at the time
of the accident.
[2]
Summons was issued on her behalf on 19 August 2010 against the
defendant in terms of the provisions of the Road Accident Fund
Act 56
of 1996 (the RAF Act). The defendant conceded merits in this matter
on the eve of the trial and is therefore liable to pay
100% of the
proven or agreed damages suffered by the minor. The matter was argued
by counsel on 24 February 2016 and I reserved
this judgment. I also
directed that the defendant and its attorneys furnish reasons on some
aspect of this matter, on which more
will be heard later.
[2]
by not later than 03 March 2016. I deal with the injuries and
complaints of the minor next.
Injuries
and complaints (i.e. sequelae)
[3]
The minor sustained injuries, among others, to the head or brain
(i.e. moderate concussive brain injury
[3]
);
discus; both hip joints and lumbosacral spine.
[4]
She also had cervical soft tissue injury and spinal cord related
injuries, other than bruises and abrasions on the face, right
hip,
right lower leg and thigh.
[4]
Due to her injuries or their
sequelae,
the
minor reportedly has, among others, the following complaints since
the accident. Neuro-cognitive and neuro-psychological deficits:

frequent headaches; loss of memory and concentration problems:
hurting eyes and inability to see well; walks with difficulty and
a
limp: has pain in her right groin area: has pain to her chest. She
also experiences pain and discomfort; is depressed (i.e.
post-traumatic stress) and has a depressive disorder. She is not
doing well at school and is failing her grades. Her grandmother

reported some of the aforesaid problems, including that the minor has
difficulties in making decisions; needs encouragement to
complete
tasks; is easily agitated and irritated, and isolate herself when she
is angry; has violent mood-swings, and is easily
fatigued.
[5]
The contending parties herein agreed or accepted the contents of the
expert reports filed on behalf of the plaintiff.
[5]
No expert reports were filed on behalf of the defendant. However,
there is disagreement as to whether the agreement include the

assessment report required in terms of section 17(1A) of the RAF
Act.
[6]
read together with
regulation 3(3)(d(ii) of the Road Accident Fund Amendment
Regulations. 2013 (RAF Act Regulations).
[7]
I deal with this issue next.
Rejection
of RAF 4 form and general damages
[6]
In terms of the RAF Act Regulations, a third party intending to claim
general damages, referred to in this provision as “non-pecuniary

damages”, “shall submit himself or herself to an
assessment by a medical practitioner”. The third party
thereafter
ought to lodge with the fund, being the defendant herein,
a duly completed RAF4 form, referred to as a "serious injury
assessment
report''. The medical practitioner who assessed the third
party's injury has to determine whether the injury is "serious''

in accordance with three sets of criteria.
[8]
[7]
The minor was assessed by not less than four practitioners m this
regard. Duly completed RAF4 forms were delivered on defendant's

attorneys on 05 October 2011: 23 July 2014: 22 April 2014 and 07
December 2015.
[9]
Three of the
aforesaid RA F forms or assessment reports did not qualify the minor
to claim general damages. The fourth report by
Dr FA Booyse, an
orthopaedic surgeon, delivered on 07 December 2015 did qualify the
minor for general damages by classifying her
injury as serious.
Therefore, only this report is material for current purposes. More on
this later below.
[8]
Acting through its attorneys, the defendant rejected the assessment
report on 22 February 2016, literally a couple of days before
date of
trial, as indicated above. The defendant argues that it is entitled
to do so in terms of the RAF Act Regulations. It points
out that, the
material or rejected assessment report was delivered on 07 December
2015 and therefore rejection thereof on 22 February
2016 was within
90 days stipulated by the
RAF
Act Regulations. The plaintiff
disputes the competence of the defendant in doing this.
[9]
It is submitted on behalf of the plaintiff that, although it is a
statutory prerogative or right of the defendant to accept
or reject
the assessment report, even on the eve of a court trial, the
defendant is only entitled to do so, when there is still
a dispute
between the parties on general damages. The plaintiff submits that
through an agreement reached at the pre-trial conference
held on 16
February 2016 on behalf of the parties, the defendant has acquiesced
to the plaintiff’s right to claim damages
before the purported
rejection. As such there is complete acceptance of the plaintiff s
expert reports and therefore rejection
of the assessment report by
the defendant is incompetent.
[10]
As indicated above, the parties agreed that the views or op1mons of
the expert witnesses on behalf of the plaintiff be accepted
for what
they purport to be. The material part of the minutes of the pre-trial
conference reads:
“
Does
the Defendant admit that the minor child suffered the injuries as set
out in the respective medico legal reports filed by the
Plaintiff? If
not, full details are required of any injuries recorded in the
aforesaid reports, which the Defendant denies that
the Plaintiff has
suffered in the collision [sic].
Defendant’s
answer: The Defendant will revert in writing by the 18
th
of February 2016 failing which this is deemed to be admitted.”
[10]
[11]
It is common cause that the defendant did not revert as agreed by 18
February 2016. Therefore, the defendant is in terms of
the agreement
reached at the pre-trial conference "deemed" to have
admitted the injuries. The plaintiff submits that
this agreement
included the assessment report by Dr Booyse delivered on 07 December
2015 (the Final Assessment Report). The defendant
did not say much,
if anything, by way of submissions in this regard. It is simply
contended that it was legally justified for rejecting
the Final
Assessment Report. Therefore, I have to determine whether or not the
defendant's rejection of the Final Assessment Report
is valid or not.
[12]
The determination to be made centres largely around the above quoted
part of the minutes of the pre-tri al conference.
[11]
The minutes in this regard referred to the injuries as set out in the
respective "medico legal reports"'. Whether or
not the
assessment report was included in the reference medico-legal reports
is not clear from the papers, but it should be. Be
that as it may,
the Final Assessment Report was included as part of Dr Booyse's
"medico legal report” dated 20 October
2015.
[12]
Therefore, whether or not it is a medico legal report is not an
argument availing the defendant. However, in my view, the rub of
the
determination lies elsewhere.
[13]
To start with, the agreement between the parties [as contained in the
minutes of the pre-trial conference] is problematic.
It appears, to
me, to be about admission of the injuries sustained by the minor as
stated in the reports. It does not clearly state
whether or not the
defendant is required to admit [and eventually deemed to have
admitted] that the injuries were serious. But
whether or not the
defendant admitted that the minor suffered the injuries set out in
the reports. It is one thing to admit that
injuries were sustained
and another, to admit that those injuries are of a serious nature. It
may have been the plaintiff’s
intention to include the
admission of the Final Assessment Report or that the minor's injuries
are serious, but that much in my
view, is not clear from the minutes.
In my view such an admission need not be qualified by reference to
"injuries suffered"
but the entire contents of the reports.
But. even with this, I still caution against such a blanket admission
and urge practitioners
to make it clear what is the nature and extent
of the admissions sought and sufficiently record the agreement in
pre-trial conference
minutes. Otherwise. it may be difficult for the
court to determine or even the parties to establish whether or not
there was an
agreement on an issue. It is for the aforesaid reasons
that I find that the defendant did not admit that the injuries
sustained
by the minor are serious injuries. Therefore, the
defendant's rejection of the Final Assessment Form delivered by the
plaintiff
stands and is valid. I now turn to deal with the issue of
costs on this issue.
[14]
As indicated above, the rejection of the Final Assessment Form by the
defendant was two days before trial. The plaintiff argued
that this
conduct amounts to abuse of the court process. Consequently, I
directed the defendant and its attorneys to furnish reasons
by not
later than 04 March 2016, why I should not grant a punitive costs
order against them on an attorney and client scale or
de honis
propriis,
respectively. I have already indicated that there was
compliance with the court" s direction.
[15]
The defendant's explanation or contention, if you will. is that it
had 90 days from delivery of the Final Assessment Form on
07 December
201 5 to accept or reject it. It was exercising its rights in this
regard by doing so on the eve of the trial. This
may be so, but in my
view, the defendant's approach to the matter in this regard amounts
to employing the legal or statutory principles
for tactical gains.
Quite beknown to the defendant the trial was set down before the
lapse of the 90 day period for acceptance
or rejection of the Final
Assessment Form. Also known to the defendant was that the general
damages were not severed from the trial
or hearing and therefore, the
defendant should, despite the non-lapsing of the 90 day period, have
timeously rejected the document.
There was no reason whatsoever that
the rejection had to wait until the eve of the trial in this matter.
The pre-trial conference
was another opportune moment to do so or to
indicate to the plaintiff that determination of the general damages
should await this.
Not just to remain radio-silent, so to speak.
Naturally. plaintiff s preparation for trial included determination
of issues relating
to general damages. Therefore, a punitive costs
order on the scale as between attorney and client is warranted
regarding costs
wasted by the non-inclusion of the general damages,
as aspect of the trial. Such an order will be imposed on the
defendant.
[16]
Regarding the role of the defendant's attorneys in the late
rejection, I find their explanation unconvincing. Attorneys are
in
the forefront of litigation battles involving their clients. They may
act on instructions, but they should be catalysts for
acquisition of
relevant instructions, rather than appear to adopt a supine approach
to the running of matters or even complicit
in inaction by their
clients in matters. The acceptance or rejection of a RAF4 form is
unlike settlement of merits or
quantum
in the matter. It
comprises a critical part of the administration of a third party
compensation matter, which may serve as a hurdle
to a desperate
victim of a motor vehicle accident in accessing relief Therefore,
there is a responsibility on the fund and its
attorneys in this
regard, not to be intransigent. With reasons and on good cause the
fund has to accept or reject the RAF4 form.
It has to do so within 90
days and this does not mean that every day of the 90 days is required
for each and every matter where
the required determination is to be
made. The 90 days is a maximum permissible time period and in some
respect, like in this matter,
there may be reason to decide before
the expiry of the period. The fund does not have to wait for day 90
or anywhere near this
deadline. However, as I could not find reasons
to pierce the agency-veil inherent in attorney-client relationship. I
will not impose
any costs order directly on the attorneys.
Damages
[17]
I proceed to deal with issues relating to
quantum
of the
future loss of earnings. With the finding on the rejection of the
serious injury assessment reports made above determination
of general
damages will be postponed
sine die.
[18]
The order will also reflect that the defendant has committed to
furnish an undertaking in terms of section 17(4)(a) of the
RAF Act,
for payment of costs of future accommodation of the minor in a
hospital or nursing home, or her treatment or for services
rendered
or goods supplied to her 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.
[19]
In determining loss of earnings, I will be relying on expert reports
or medico-legal reports obtained by the plaintiff to support
the
claim that the minor's prospects of employment are affected by her
injuries and their
sequelae.
Also of assistance will be
counsel’s argument in this regard and further. I am grateful
for the written heads of argument
filed on behalf of the plaintiff. I
only deal with some aspects of some of these reports below for
purposes of the award I will
be making.
Neurologist
[20]
According to Dr Kevin D Rosman, a neurologist, the minor's "traumatic
social background" is probably the significant
contributing
factor to her headaches. She estimated the head injury to be only
contributing 50%.
[13]
Adv DE
Westebaar, appearing on behalf of the defendant belaboured this point
and appeared to be actually submitting that the injuries
sustained in
the accident had nothing to do with the headaches. Obviously, that's
not what Rosman said. He clearly attributed the
accident as 50% cause
of the headaches. I will revert to this aspect later.
Educational
Psychologist
[21]
Ms Paula Steyn furnished a report as an educational psychologist. She
had assessed the minor on 27 January 2015. In her opinion,
but for
the accident, the minor would probably have failed once or twice at
school, but she could have passed grade 12.
[14]
Post accident. Steyn note that the school reports reveal inconsistent
marks, which may be related to concentration difficulties
and
emotional barriers. In her opinion, the concentration difficulties
may have been present before the accident or perhaps exacerbated
by
the accident. She also holds the view that the minor's emotional
state may have been negatively influenced by the death of her

mother.
[15]
She concluded that
it will not be unreasonable to predict that the minor might fail once
every phase: will find school increasingly
difficult and might leave
school with grade 11 (NQF level 3) as her highest qualification. Her
depressed mood and concentration
problems are significant factors
regarding her postulated academic achievements.
[16]
[22]
However, the accident does not appear to have been the only
contributing factor to the minor’s academic performance.
Her
grade 1 teacher reportedly remembered no significant changes after
the accident, whereas the other staff members also considered
her an
“average learner”.
[17]
Her first two reports in 2009 actually indicated an improvement after
the accident.
[18]
The accident
was in May of that year. However, thereafter her performance was
inconsistent but above average.
[23]
It is apposite, for current purposes, to highlight that Steyn also
reported another factor, than the accident to the minor's
complaints.
The death of her mother. I will return to this aspect below.
Psychologists
[24]
Ms Bev van Zyl acted as a psychologist and conducted
neuropsychological evaluation on behalf of the plaintiff. She
concluded
in her report
[19]
that the minor was capable of attaining grade 12 level of education
followed by further studies for a higher certificate (NQF5)
level of
education, had the accident not occurred.
[20]
Due to her injuries from the accident and their
sequelae,
the
minor's attainment of grade 12 will be “with failures along the
way, is likely to represent scholastic ceiling, at best"
[21]
.
This, obviously contradicts. Steyn’s view that post accident
the minor would not pass grade 12.
[25]
Dr Merryll Vorster acted as a forensic psychiatrist. She examined the
minor on 05 November 2015. She recorded that the minor
complained
about missing her mother a lot and remembers the day she died. The
grandmother also reported that the minor cries about
her mother. She
had witnessed the death of her mother through the hand of her father
in 2014. The father had since disappeared.
[22]
[26]
Vorster's mental state clinical evaluation confirmed that her
cognitive capacity appeared largely intact. She was not irritable,

labile or disinhibited. According to Vorster, her sorrowful
witnessing of her mother's death is ''likely to account for her
general
apathetic, depressed demeanour”
[23]
.
She is likely to have cognitive deficits, but Vorster found this
difficult to measure due to intrusive factor of her mother's

death.
[24]
Industrial
Psychologist
[27]
Mr Friedl van der Westhuizen compiled a report
[25]
and addendum
[26]
as an
industrial psychologist. He assessed the minor on 03 May 2015 and
naturally relied on other expert reports for his opinions.
However,
he says that due to unavailability of school reports and limited
“objective information” he was unable to
“make
conclusive assumptions” on the minors likely pre- and
post-accident cognitive and educational potential. For
this reason,
he qualified his opinions and deferred to the opinions expressed by
Steyn, the educational psychologist.
[27]
He does not explain why the school reports were not made available to
him. Clearly Steyn was in possession of same for her assessments
and
report.
[28]
He reported that it is generally accepted amongst industrial
psychologists that a person with a grade 12 level of education
could
enter the labour market on a Paterson A3/B1 level and advance to a
Paterson B4/5 level career-wise and regarding his or her
earning
potential. On the other hand, a person with a certificate level of
education would enter the labour market on a Paterson
83 level and
probably advance to a Paterson C1/2 level in his or her career and
earning potential.
[28]
Van der
Westhuizen projected two scenarios regarding the minor's earnings
assumptions in quantifying her potential, but for the
accident.
[29]
In terms of scenario 1, the minor would have found herself a job
after waiting for around two years, following her completion
of grade
12 at the age of 19-20 years. She would have entered the market at a
Paterson level A2/3 and progressed with three to
five years intervals
between levels until career ceiling Paterson level 83 with median
earnings at the age of 45 years.
[30]
Scenario 2 follows the same career path as scenario 1, save that she
would have secured employment in the non-corporate sector
all her
working life, due to inability to secure employment in the corporate
sector. She would probably have remained at a basic
salary level, but
been able to progress to career ceiling Paterson level 83 with median
basic earnings at the age of 45 years.
Van der Westhuizen proposed
that a straight line increase be applied from entry level earnings
until the career ceiling, with normal
increases thereafter. The minor
would have retired at the age of 65 years.
[29]
[31]
Regarding her post-morbid situation. Van der Westhuizen’s views
are as follows. The minor would have entered the labour
market armed
with only a grade 11 education at the age of 19-20 years and managed
to secure a job after a waiting period of around
three years. She
would have entered the market between the lower quartile of unskilled
workers earnings: progressed to between
median and midpoint of the
median and upper quartile of semi-ski l led worker earnings by age of
45 years, which will be a career
ceiling, due to ''the negative
impact of the neurocognitive, neuropsychological and psychiatric
deficits on her ability to sustain
employment activities and job
duties”.
[30]
He also
proposed that a straight li ne increase be applied from entry level
earnings until the career ceiling, with normal increases
thereafter.
The minor would have retired at the age of 65 years.
[31]
[32]
Van der Westhuizen also opined, among others, that the minor would be
a vulnerable employee due to her head injury with permanent

neurocognitive and neuropsychological sequelae/deficits: depressive
disorder. She would need an understanding and sympathetic employer

and would face longer periods of unemployment, with constant threat
to her earnings capacity. He suggested a higher post-accident

contingency deduction than pre-accident.
Actuarial
calculations
[33]
Johan Potgieter of GRS Actuarial Consulting prepared an actuarial
report
[32]
heavily relying on
the findings of the industrial psychologist. He calculated the future
income of the minor.
[34]
In his view, if the accident did not occur, the minor's income or
earnings would have been R2 626 471.00 in terms of scenario
1 and R2
205 743.00 in terms of scenario 2, stated above.
[35]
Now that the accident had occurred, her income will be R 933 41 7 .00
in terms of both scenarios 1 and 2. The difference is
R 1 693 054.00
for scenario 1 and R 1 272 326.00 for scenario 2. General
contingencies had to be effected or applied to these figures.
[36]
It is proposed in respect of both scenarios that a 15 % pre-morbid
and 25% post morbid, contingencies be applied to the above
mentioned
future earnings. The results will be a net loss of R 1 532 437.60
(being R2 232 500.35 - R700 062.75) for scenario 1
and R1 174 818.80
(being R1 874 881.55 - R700 062.75) for scenario 2.
Plaintiff's
further submissions
[37]
Further, from reliance on the opinions of experts, including those
stated above. Mr SG Maritz, appearing for the plaintiff,
made the
following submissions in both written and oral submissions. He
submitted that the minor's career will plateau at 84, and
that 83 is
the conservative. He mentioned his preference of scenario 1
pre-accident. A spread of 10%, being 15% pre-accident and
25%
post-accident is reasonable, he submitted. He also postulated an
alternative submission in terms of which 20% pre-morbid and
30%
post-morbid is applied as contingencies. The nett loss, after
applying these alternative contingency reductions, is in an amount
of
R l 447 785.00.
[33]
Defendant's
submissions regarding the above
[38]
Defendant's counsel. Mr Westebaar, reiterated that the minor has a
substance abuse problem. He also, with respect, belaboured
the fact
that the neurologist stated that only 50% of the headaches are
attributable to the head injury. And that the orthopaedic
surgeon
said that “there will be 10% loss of functional work abilities
due to the lumbar discus pathology and probably future

discussectomy.
[34]
I did not
get the full benefit of the logic of his submissions on this,
particularly as he was not armed by controverting expert
reports.
Analysis
of the submissions and expert opinions
[39]
The facts of this matter reveal a very tragic and unfortunate story
involving a very young human being. Whilst the minor was
coming to
terms with the sad reality and consequences of her injuries from the
accident, she had to experience the horror of the
death of one parent
by another. The two experiences, gathering from expert opinions, have
now become influential and relevant for
her emotional and
psychological make-up. Some of the experts are even suggesting that
it is difficult to make a determination on
the
sequelae
of the
accident because of the minor’s parental tragedy. However, in
my view, there is sufficient expert guidance in the reports
to come
to a determination of appropriate award for the minor’s future
earnings.
[40]
The critical aspect of the determination to be made concerns the
minor’s academic prospects, pre and post morbid. She
was
injured at a very early age with no long spanning previous or track
record academically. However, she performed well despite
her injuries
and their consequences, immediately after the accident. Thereafter,
her performance became inconsistent. According,
to the educational
psychologist, “it would not be unreasonable to predict that she
might fail in every phase”; found
schooling increasingly
difficult and ultimately quit school in grade 11. This view is
expressed in an addendum report dated 01
February 2016. It is
conspicuous by its absence from this expert's main report dated 11
February 2015 compiled after the assessment
of the minor, a few days
before, on 27 January 2015. The addendum refers to the same
assessment. Therefore, no new material or
source for the changed or
supplementary opinions is disclosed.
[41]
With respect, I find no clear basis for the conclusion that the minor
will not achieve a grade 12 certificate. Even if I were
to accept
that this is so, I find it improbable that the accident will be the
only cause for this lack of achievement. This view
is supported by
the same expert's (i.e. educational psychologist) opinion that the
death of the minor’s mother "aggravated
her
situation'"
[35]
and that
there were concentration difficulties without the accident.
[36]
Therefore, the accident is but one of the causes of her complaints.
[42]
The industrial psychologist significantly relied on the educational
psychologist's opinions for his conclusions.
[37]
The actuaries, in turn, based their calculations and forecasts on the
industrial psychologist's views.
[38]
[43]
Therefore, I find it difficult to accept the scenarios proposed above
as they are. There is no logical basis laid for the view
that the
minor would not achieve a grade 12 certificate. And even if she
doesn't, available evidence clearly state that the accident
would not
be the only cause for her failures. Therefore, I accept the
pre-morbid phase of scenario 1. Post-morbid, with a grade
12
education, the minor's income would be different from what is
proposed by the actuaries, but will be along the lines of the

proposal for her pre-morbid income. However, accepting that the
accident contributed to her current complaints. I will also accept

that even though she would pass matric, if she does, it may not be
with competitive results. Her accident-related complaints or
sequelae
will also present a hurdle to her employability and
competitiveness in this regard. Therefore, I accept the post morbid
income of
R933 41 7.00, but for the abovementioned reasons I would
not apply any contingency and the result is a net loss of R 1 299
083.35.
Any adverse effect on this income is ameliorated by the fact
that the income may significantly be far higher with the minor's
attainment
of a grade 12 certificate and a job opportunity in the
postulated sector indicated above. I avoided applying a higher
contingency
for a post-morbid income based on my view that she would
obtain grade 12 and the postulated employment opportunities.
[44]
Actuarial reports, although based on actuarial expertise, just like
other expert reports, generally benefit the court when
making
determinations, but are only a guide.
[39]
An actuary is an expert witness whose opinion is part of all of the
other evidence before the court
[40]
.
The actuary's report is only a base to be used with others in making
an appropriate award of damages.
[41]
[45]
I also acknowledge counsel's referral to comparable cases or previous
awards, particularly on possible contingencies to be
applied. The
comparisons offer broad and general guidelines and will inherently be
influenced by the factual matrix of a particular
matter.
[42]
Conclusion
[46]
Therefore, an amount of R l 299 083.35 in respect of future loss of
earnings will be awarded. Determination of the general
damages will
be postponed
sine die
awaiting the disposal by the parties of
issues regarding assessment thereof as serious injury or not.
[47]
Further, the defendant will furnish the undertaking [in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
] to pay the
cost of future medical and hospital expenses.
[48]
Costs will follow the result and also include the punitive costs
order indicated above regarding wasted costs occasioned by
the late
rejection of the assessment report and the consequential postponement
of determining issues regarding general damages.
Order
[49]
I therefore make the following order:
1
. The
curator ad litem
is given leave to settle the above
mentioned matter on behalf of N. I. M. (the minor child), as set out
hereunder:
2.
The minor child is entitled to 100% of her proven/agreed damages;
3.
The Defendant shall pay the total sum of
R1 299 083.35 (one
million two hundred and ninety nine thousand and eighty three rand
thirty five cents)
to the Plaintiff s attorneys. Frans Schutte
Attorneys, in settlement of the Plaintiff’s action regarding
future loss of earnings.
in his representative capacity in respect of
the minor child, payable by direct transfer into the trust account of
Frans Schutte
Attorneys, details of which are as follows:
Bank:
Standard

Bank White River
Branch
code:                                                   053052
Account
Holder:                                               Frans

Schutte Attorneys
Account
number:                                             […]
Reference:
D3639
4.
The Defendant shall not be liable for interest on the aforesaid
amount. if paid timeously:
5.
The capital amount referred to 3 hereof, shall be invested by the
Plaintiff’s Attorney in an interest bearing account in
terms of
section 78(2)(
A) of Act 53 of 1979 pending the establishment of the
trust to be created.
6.
WILLEM FRANCOIS BOUWER of WF BOUWER ATTORNEYS situated at […],
Pretoria, is appointed as Trustee to the minor child and
he is to
provide security to the satisfaction of the Master of the High Court
for the due fulfilment of his obligations in terms
of the Trust
Property Control Act. No 57 of 1988, as amended, with the powers as
set out in the trust deed, a copy of which is
annexed hereto as
annexure “A”:
7.
The aforementioned appointment of the exercising by the Trustee of
his powers as set out in the annexed trust deed is subject
to the
control of the Master of the High Court by virtue of the provisions
of Act 66 of 1965:
8.
Defend ant shall furnish the
Trustee
with an Undertaking in
terms of Section 17(4)( a) of the
Road Accident Fund Act. No 56 of
1996
. to pay the costs of the future accommodation of the minor child
in a hospital or nursing home, or treatment of or rendering of
a
service or supplying of goods to the minor child. arising out of the
injuries he sustained in the motor vehicle collision on
27 May 2009,
and the
sequelae
thereof, after such costs have been incurred
and upon proof thereof:
9.
The Undertaking referred to in paragraph 8 hereof, will include
payment of :
9.1
the reasonable costs of the
trustee
in establishing and
administering the trust and the costs of administering the statutory
Undertaking furnished in terms of
Section 17(4)(a)
of the
Road
Accident Fund Act No 56 of 1996
. limited to the fees allowed for a
curator honis
in terms of
Section 84
of Act 66 of 1965: and
9.2
the costs of the furnishing of security by the
trustee .
10.
The Defendant shall pay the Plaintiff s taxed or agreed party and
party costs on the High Court scale, subject thereto that:
10.1
In the event that the costs are not agreed:
10.1.1
the Plaintiff shall serve a notice of taxation on the Defendant"
s attorney of record:
10.1.2
the Plaintiff shall allow the Defendant 14 (fourteen) Court days
from date of allocatur to make payment of the taxed costs.
10.
1.3 should payment not be effected timeously. the Plaintiff will be
entitled to recover interest at the rate of 9.75% per annum
on the
taxed or agreed costs from date of allocatur to date of final
payment.
10.2
such costs shall include:
10.2.
1 the costs incurred in obtaining payment of the amounts mentioned
herein:
10.2.2
the costs of Senior-Junior counsel where employed, including his day
fee and reasonable preparation:
10.2.3
the costs and fees of and consequent to the appointment of the
curator ad litem,
which costs and fees shall include, but not
be limited to, perusal, preparation, consultation(s) as well as the
costs of and consequent
to the
curator ad litem
compiling his
report and fee attending Court;
10.2.4
the costs of all medico-legal. radiological, actuarial, addendum and
joint 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:
10.2.5
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 9.2.4 above:
10.2.6
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.
10.2.7
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;
10.2.8
the costs of and consequent to compiling all minutes in respect of
pre-trial conferences:
10.2.9
the costs of and consequent to the parties of both parties attending
joint meetings, as well as costs of and consequent to
compiling
minutes of joint meetings between the experts, if any:
10.2.10
the costs of and consequent to the holding of all expert meetings
between the medico-legal experts appointed by the Plaintiff,
if any:
10.2.11
the reasonable travelling costs of the minor child, who is hereby
declared a necessary witness:
10.2.12
the reasonable travelling costs of the witness. whose attendance is
necessary:
10.2.13
the costs of the Court interpreter, where employed.
11.
The appointment of a trustee is subject thereto that:
11.1
the
trustee
furnishes security to the satisfaction of the
Master of the High Court.
11.2
the exercise by the
trustee
of his aforesaid powers will be
subject to the control of the Master of the High Court.
11.3
The trustee's fees in administering the trust. will be limited to
the fees allowed for a
curator honis
in terms of section 84 of
Act 66 of 1965.
12.
Determination of the issues relating to general damages is postponed
sine die and the Defendant is liable for wasted costs occasioned,
by
the postponement on an attorney and client scale.
---------------------------
K. La
M. Manamela
Acting
Judge of the High Court
29
APRIL 2016
Appearances:
For the Plaintiff:
Adv

SG Maritz
Instructed
by:                       Frans

Schutte Attorneys. White River
c/o
Schutte De Jong Inc.
Pretoria
For the
Defendant:               Adv
DE Westebaar
Instructed
by:                       Brian

Ramaboa Inc.
Pretoria
[1]
An order substituting the current plaintiff for the minor's late
mother was granted at the beginning of the hearing on 24 February

2016. The mother tragically passed on in 2014. See par 21 below.
[2]
See par 14 below.
[3]
Also described as
moderate
diffuse rotational axonal shear head injury
by
the neuropsychologist B van Zyl at pp 12-13 of expert reports bundle
“B”. This expert defers to the opinions of
the
neurosurgeons regarding the nature, mechanism and severity of head
injury.
[4]
See reports by orthopaedic surgeons Drs C Edelstein and FA Booyse on
indexed pp 1-68 of expert reports bundle ''A''.
[5]
See pre-trial conference minutes at indexed pp 21 -28 of the
pleadings bundle; par 12 on pp 5-6 of plaintiff’s heads of

argument.
[6]
Section 17(1A) reads in the material part:
"(a)
Assessment
of a serious injury shall be based on a prescribed method adopted
after consultation with medical service providers
and shall be
reasonable in ensuring that injuries are 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. 1 974 (Act
No.
56 of 1 974).''
[7]
Regulation 3(3)(d)(ii) of the Road Accident Fund Amendment
Regulations 2013 which were published on 15 May 2013 reads in the

material part: "The Fund or an agent must. within 90 days from
the date on which the serious injury assessment report was
sent by
registered post or delivered by hand to the Fund or to the agent who
in terms of section 8 must handle the claim, accept
or reject the
serious injury assessment report or direct that the third party
submit himself or herself to a further assessment
[8]
See generally
Road
Accident Fund v Duma and three related cases (Health Professions
Council of South Africa as amicus curiae)
[2013]
1 Al l SA 543 (SCA) for how the claims regimen in terms of the RAF
Amendment Act Regulations applies in this regard.
[9]
See pars 2-5 of the explanatory affidavit filed on 03 March 20 1 6
as per directions of the court.
[10]
See paragraph 7.1 of the minutes of the pre-trial conference on
indexed p25 of the pleadings bundle.
[11]
See par 10 above.
[12]
See pp 39-68 of expert reports bundle "A..: annexure "D"
of the defendant’s explanatory affidavit dated
03 March 2016.
[13]
See par 9.8 on indexed p 77 of the expert reports bundle “A”.
[14]
See indexed p 30 of the expert reports bundle “B”.
[15]
See indexed p 22 of the expert reports bundle “B”.
[16]
See indexed p 35 of the expert reports bundle “B”.
[17]
See indexed p 22 of the expert reports bundle “B”.
[18]
Ibid.
[19]
See indexed pp 1-16 of the expert reports bundle “B”.
[20]
See indexed p 14 of the expert reports bundle "B".
[21]
Ibid.
[22]
See indexed pp 94-95 of the expert reports bundle "A".
[23]
See indexed p 95 of the expert reports bundle ''A''.
[24]
See indexed p 96 of the expert reports bundle ''A".
[25]
See indexed pp 62-82 of the expert reports bundle "B".
[26]
See indexed pp 85-90 of the expert reports bundle "B".
[27]
See indexed p 73 of the expert reports bundle “B”.
[28]
See indexed p 74 of the expert reports bundle “B”.
[29]
See indexed p 75 of the expert reports bundl e “B”.
[30]
See indexed p 79 of the expert reports bundle “B”.
[31]
See indexed p 75 of the expert reports bundle “B”.
[32]
See indexed pp 91 -95 of the expert reports bundle “B”.
[33]
See par 24.4 of the plaintiff’s heads of argument on p20.
[34]
See indexed p 51 of the expert reports bundle “A”:
indexed p 86 of the expert reports bundle “B”.
[35]
See indexed p 34 of expert reports bundle “8”.
[36]
See indexed p 35 of expert reports bundle “8”.
[37]
See indexed p 78 of expert reports bundle “8”.
[38]
See indexed p 92 of expert reports bundle “8”.
[39]
See
Potgieter JM, Steynberg L and Floyd TB Visser & Potgieter Law of
Damages (3
rd
edition) (Juta Cape Town 2012) at p 467.
[40]
Ibid
[41]
See Klopper H B
Law
of Third-Party Compensation
3rd
edition (LexisNexis Durban 2012) at p 177.
[42]
See
Protea
Assurance Co. Ltd v
Lamb
1971
(1) SA 530
(A) at 535H to 536 A.