About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1227
|
|
Jiyane v Road Accident Fund (88870/2014) [2016] ZAGPPHC 1227 (26 July 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, PRETORIA)
CASE
NO: 88870/2014
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVIDES:
NO
In
the matter between
KLEINBOOI
MSANYANA
JIYANE
PLAINTIFF
And
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
CHESIWE
AJ:
[1]
The plaintiff claims for damages in terms of the
Road Accident Fund
Act 56 of 1996
, as amended (the Act), pursuant to a motor vehicle
accident that occurred on 24 May 2013, at Delmas, Mpumalanga
Province.
[2]
The plaintiff was a passenger in the vehicle with registration number
FMX 438 MP, which was driven by Vusi Mbonani (the insured
driver).
[3]
At the time of the accident, Mr Jiyane was 41 years.
[4]
Adv. J.J. Potgieter was appointed as his
curator ad litem.
[5]
The plaintiff sustained the following injuries:
5.1 Fractured vertebral thoracic spine
T4 and T5, the plaintiff is semi paraplegic;
5.2 Bilateral haemo- pneumothorax with
left lung contusion.
5.3 Left mid-clavicle fracture;
5.4 Sterna fracture;
5.5 Haemorrhagic shock;
5.6 Blunt abdominal trauma and two
liver lacerations with haemoperitoneum;
5.7 Crush injury and acute renal
failure with myoglobinaemia;
5.8 Injuries complicated by sacral as
well as bilateral trochanteric pressure sores, which resulted in
debrided right thigh and
right femurectomy (partial removal of
femur);
5.9 Head injury and brain injury;
[6]
Following the said injuries, the plaintiff was:
6.1. Admitted on the 04 May 2013 at
Steve Biko Academic Hospital, he was intubated and ventilated;
6.2. Taken to theatre for exploration
under general anaesthetic where a laparotomy was done and the liver
was sutured and packed;
6.3. Returned to
theatre on the 6 May 2013, for
a "relock" laparotomy and packs were
removed;
6.4. Operated under general
anaesthetic on 10 May 2013 where posterior fusion of the T4 and T5
was performed;
6.5. Developed pneumonia due to the
assisted ventilation, and a tracheostomy was performed on the 16 May
2013;
6.6. On 23 May 2013 tracheostomy was
removed and the plaintiff was transferred to a high care ward till 24
May 2013;
6.7. Developed pressure sores and was
returned to theatre on 1O August 2013 for sacral and bilateral
trochanteric pressure sores
debridement;
6.8. A further operation was performed
on 17 August 2013 for a debridement of the right thigh as well as a
femurectomy;
6.9. A skin graft to the right
proximal femur was performed on the 07 October 2013;
6.10. Experienced emotional trauma and
would in the future continue to experience further emotional trauma;
6.11. Experienced pain, suffering and
discomfort and would continue to do so in the future;
6.12. Has been permanently disabled
and has experienced loss of earnings and earning capacity;
6.13. Has sustained substantial loss
of enjoyment of amenities of life
[7]
The merits were previously adjudicated upon and the court found that
the defendant is 100% liable for such damages as the plaintiff
had
proven that the injuries are from the collusion. (Court order dated
18 October 2016).
[8]
The plaintiff in the particulars of claim, claimed
8.1. Future medical expenses in the
amount of R2 000 000.00;
8.2. Future loss of income in the
amount of R2 000 0 00.00; and
8.3. General damages in the amount of
R2 000 000.00.
[9]
The defendant in its amended plea, prays that the plaintiff's claim
be dismissed with costs, alternatively that the amount of
damages to
be awarded to the plaintiff be reduced by the Honourable Court in
terms of
Section 2(4)
of Act no 34 of 1956 as amended, to such an
extent as this court may deem just and equitable having due regard to
the degree of
the plaintiff's own negligence.
[10]
The issues for determination are the following:
10.1
The amount to be awarded to the plaintiff in respect of his
claim for general damages;
10.2
The amount to be awarded to the plaintiff in respect of past
loss of income;
10.3
The amount to be awarded in respect of future loss of income;
10.4
Undertaking in terms of
section 17(4)
(a) of the
Road Accident
Fund Act 56 Of 19966
;
10 .5 The issue of costs.
[11]
The parties further agreed that the expert reports on which the
defendant elected not to appoint counter experts can be argued
from
the said expert's reports and that the experts do not have to be
reserved for that. The defendant admitted to the schooling
and
educational history of the plaintiff as far as it was confirmed by
the defendant's experts. Defendant further admitted the
plaintiff's
work history, collateral evidence and income evidence from his work,
as far as it was confirmed by defendant's experts.
Defendant
further admitted that the plaintiff will in future suffer loss
of income as far as same is confirmed by the defendant's
experts.
[12]
No oral evidence was led. The evidence and opinions in the bundles of
expert reports was placed on record as evidence. The
bundles were
handed in and admitted into the records.
[13]
Plaintiff's counsel submitted that plaintiff sustained a moderate to
a severe head injury and has 10 to 15% future risk for
seizures as a
result of his cranial injuries.
[14]
The defendant's counsel argued that plaintiff's injuries, if compared
to others cases, are not that severe. He made reference
to the case
of
Mosupi v Road Accident Fund (11/23686 ZAGPJHC 108 (10 May
2013)
, in which the plaintiff was19 years old and fully
paraplegic and was awarded R1 million, (2012). In the case of
Webb
v Road
Accident
Fund 2203/14 [2016] ZAGPPHC 15 (14 January 2016),
the
plaintiff was 20 years of age and was awarded R1, 5 million (2013).
He was also rendered a full paraplegic. He submitted that
the
plaintiff in this case is 41 years old. He is stable and able to
walk, though only for short distances with crutches, and he
still
uses the wheelchair if he has to go for longer distances or to places
to far from home. He submitted that plaintiff can continue
to run his
taxi business.
[15]
The defendant’s counsel raised the issue that proof of income
was not submitted, neither a bank statement of the plaintiff,
but
conceded and accepted that the plaintiff does not have a bank account
and will therefore accept the plaintiff's submitted proof
of income
as contained in annexure
"F".
The plaintiff's
counsel submitted that the calculations were done based on the
defendant's own actuarial report.
[16]
Evidence of the Orthopaedic Surgeon
Dr.
P. Engelbrecht, an orthopaedic surgeon, interviewed the plaintiff on
19 June 2015 and filed a report on behalf of the plaintiff.
The
report showed that the plaintiff was admitted at Steve Biko Hospital
on 04 May 2013. The plaintiff was taken to theatre on
04 May 2013 for
a general exploration of the laparotomy. The liver was sutured while
the inferior laceration was packed. The plaintiff
went back to
theatre on 06 May 2013 for a "relock" laparotomy.
[17]
A third operation was done on 10 May 2013 where a posterior fusion of
the T4 and TS was performed. Plaintiff developed ventilator
assisted
pneumonia and tracheostomy was performed on 16 May 2013. The
plaintiff was taken off the ventilator and the tracheostomy
was
removed. The plaintiff was transferred to a high care ward on 23 May
2013, stayed there until 24 May 2013. The plaintiff developed
pressure sores and was returned to theatre on 10 August 2013, for a
sacral and bilateral trochanteric pressure sore debridement.
A
further operation was done on 17 August 2013; a debridement of the
right thigh and right femurectomy was performed.
[18]
On the 07 October 2013, a split skin graft to the right proximal
femur was performed. The plaintiff received physiotherapy
as well as
occupational therapy and was discharged on 19 November 2013. The
plaintiff was transferred to the Tshwane Rehabilitation
facility on
19 November 2013 where he remained until the 07 February 2014. Upon
his discharge the plaintiff made use of crutches
interchanging it
with a wheel chair.
[19]
Dr. Engelbrecht expressed the opinion that the plaintiff, who did not
have a proven pre-existing condition now had permanent
loss of his
proximal femur, leg length discrepancy which should be accepted as
permanent disability and further that the plaintiff
will require a
shoe raise and regular maintenance of orthotics which include a
walker and wheel chair.
[20]
In a joint minute meeting between Dr. Engelbrecht and the defendant’s
orthopaedic surgeon, Dr. B.E. Ramasuvha, it was
concluded that the
injuries sustained by the plaintiff are common cause. They both
advised on future treatment.
[21]
In the joint minute meeting between the neurosurgeons Drs. D.J.J. De
Klerk and N.D. Chula, they both agreed on the injuries
as sustained
by the plaintiff. Dr. De Klerk expressed the opinion that it was not
necessary that a
curator ad /item
be appointed, but that the
money awarded by this court should be protected in a trust. Dr. Chula
did not address the issue of curatorship.
[22]
In the joint minutes meeting between the clinical psychologists, Ms
E. Tromp and Mrs A. Cramer, they both agreed that the plaintiff
sustained a moderate brain injury comprising of a diffuse concussive
injury. The plaintiff had not reported of any pre-accident
physical
or mental health problems to them. The plaintiff had on-going
complaints of pain, limited mobility, cognitive difficulties
and
neurovegetative changes. They further agreed that the plaintiff has
suffered a considerable loss of amenities due to his loss
of mobility
and the impact on his self-esteem, interpersonal relationship and
social functioning, which has diminished. They agreed
that the
plaintiff's funds need to be protected, by way of creation of a
trust.
[23]
In the joint minute meeting on the 03 October 2016 between industrial
psychologists, Ms Luzette Viljoen and Mrs. Cecile Nel,
both indicated
that the collateral information obtained by them seemed to be
contradictory as far as the employment of the plaintiff
is concerned.
This places the actual state of employment of the plaintiff at the
time of the accident in question. Mr Nkosi indicated
that the
plaintiff stopped working for him in 2010, further that the plaintiff
actually purchased a taxi from Mr Nkosi. According
to the information
they received from Mr Nkosi and the plaintiff, the plaintiff became
self employed as a taxi driver. Ms.
Cecile Nel indicated that in
that case the plaintiff will be required to provide proof of income.
[24]
They noted that the plaintiff was registered with the Delmas Taxi
Association in 2011. Further proof of vehicle registration,
a Toyota
Quantum, showed that the plaintiff is the registered owner of the
vehicle with engine number of 2TR8353284.
[25]
They agreed that for quantificaiton purposes, the plaintiff would
have continued to function in his pre-morbid position as
a
self-employed Taxi Driver/Owner or as Ms Nel said 'as
whatever he
was.'
It was noted that the plaintiff informed Drs Greeff (p.01)
Engelbrecht (p. 05) and Wiele (p. 04) he was a Taxi Driver. Counsel
for
the plaintiff submitted that if there is a discrepancy in this
regard it can be resolved by contingency.
[26)
They further agreed that the plaintiff would have worked until normal
retirement age. However, they disagreed with regard to
the retirement
age. Ms Cecile Nel indicated that it could be sixty (60) to sixty
five (65) years. Alternatively, the plaintiff
might have opted for an
old age grand from the age of sixty (60) years depending on the
plaintiff's state of health. Ms Lizette
Viljoen indicated that she
disagreed on the issue of old age grant by sixty (60) years as the
plaintiff had been earning far more
than the current pension of R1
500.00
per month.
[27)
Ms Lizette Viljoen indicated that far more people retire later than
the usual 60 - 65 years of age and made reference to the
case
of
Mogal v RAF (case 29208/13),
where Castennen, J confirmed the
reality
and
said:
"That
people today are healthier and continue to work after the age of 65".
[28]
For quantification purposes, they suggested that a earning scale
between scales1 & 2 for Taxi Owners (R74 725,00 p.a -
2013) value
as a baseline with an annual CPI percentage increase until normal
retirement age of 60 - 65 years and sixty five years
(LV/KP) with a
contingency deduction in place for the discrepancy and any unknown
factors.
[29]
The Occupational Therapists, Ms Adroos and Ms Montwedi also stated
that the plaintiff is only suited for a sedentary work.
He is unable
to function as a taxi driver or any postural demands that will allow
him to sit for most periods of the day or requiring
a physical input
that is more than sedentary in nature.
[30]
Based on the above expressed views of the experts, which were largely
common cause the pertinent question arose as to what
award would be
fair and adequate compensation for the plaintiff in respect of loss
of earning and earning capacity as well as general
damages.
[31]
Counsel for the plaintiff submitted that R2 000 000.00 for general
damages would be a fair award as the plaintiff s injuries
are
permanent. It was submitted that the plaintiff accepts Scenario 2 as
calculated by the actuarial as well as a 5% contingency
deduction in
the part concerning the income, taking into consideration the
discrepancies
GENERAL
DAMAGES
[32]
The basic principle underlying an award for general damages in such
actions is that the compensation must be assessed as to
place the
plaintiff as far as possible in the position he would have been had
the wrongful act causing him injuries not been committed.
The
assessment of compensation is done by comparing the plaintiff’s
"properties" meaning a universitas or complex
of general
relations, including the plaintiff's rights and duties, as it is
after the commission of the wrongful act with its projected
state had
the wrongful act not been committed.
(See Union Government
(Minister and Harbours v Warneke
1911 AD 657
at 665.)
[33]
It is correct that notwithstanding the best available medical
treatment that the plaintiff have receive and will still receive
in
the future. The plaintiff's current condition will never be restored
to its original position. The difficulties he now has following
the
motor vehicle accident, he will always have to depend on other people
around him to help him to move around. Though not a full
paraplegic,
he will still have to make use of a walker or crutches.
[34]
In
Protea Insurance Company v lamb
1971 (1) SA 530
(A) at 534H
and
Road Accident Fund v Marunga
2003 (5) SA 164
(SCA) at 23,
it
was stated that: " A claim for general damages comprises of pain
and suffering, disfigurement, permanent disability and
loss of
amenities of life."
[35]
In
Southern Insurance Association Limited v Baliey N.O. 1984 at
99H
the following was stated:
"The AD has never
attempted to lay down rules as to the way in which the problem of an
award of general damages should be approached.
The amount to be
awarded as compensation can only be determined by the broadest
general consideration and the figure arrived at
must necessarily be
uncertain depending upon the Judges's view of what is fair in all the
circumstances of the case."
That
does not mean of course that the function to be served by an award of
damges should be excluded from consideration. That is
something which
may be taken into account together with all the other circumstances.
[36]
The opinions of the various experts who examined the plaintiff
indicates that the plaintiff sustained a severe brain injury with
the
following
sequelae:
Orthopeadic
Seguelae
36.1
Plaintiff uses wheelchair (Report of Dr. Engelbrecht on p.16),
36.2
Plaintiff uses up to four types of tabletseveryday as well as
analgesic tablets (Report of Dr. Engelbrecht on page 6 of the
bundle
marked "D"),
36.3
8.5 cm shortening to plaintiff left leg,
36.4
Lower back movement impaired,
36.5
The left hip joint is totally non-functional as part of the femur had
been rejected, and
Plaintiff
is unable to walk independently without the assistance of a walker.
Brain
injury
Sequelae
36.7
The plaintiff's recorded Glasgow score was 8/10.
36.8
The plaintiff experiences headaches every day and has a problem with
memory as there has been a decline in his short term memory.
[37]
Dr. De Klerk is of the opinion that the plaintiff sustained moderate
diffusec traumatic brain injury. According to the defendan'ts
neurosurgeon, Dr. Child, the plaintiff sustained a moderate to severe
head injury and has 10 - 15% future risk for seizures in
relation to
his cranial injury.
[38]
According to Ms. Annelies Cramer (plaintiff's appointed clinical
psychologist, the plaintiff appears to have sustained a mild
to
moderate primary head/brain injury and that the plaintiff's attention
is average, processing of information is below average,
planning and
problem solving abilities are below average , verbal fluency is below
average and his manual dexterity has been reduced.
[39]
When considering aspects like pain and suffering and loss of
amenities of life in order to determine general damages, it is
not
possible to measure these losses in certain and precise measured
financial terms or by reliance on other cases. In many of
these cases
the difficulty that was expressly mentioned in the matter
of
Sgatya V Road accident Fund
(Eastern Cape Division dated 4 July
2001) Jennet J stated as follows: "There are of course no scales
upon which one can weigh
things like pain and suffering and amenities
of life nor is there a relationship between either of them and money
which makes it
possible to express them in terms of money with any
approach to certainty".
[40]
In the matter of
Road Accident v Marunga
2003 (5) SA 164
(SCA),
is
the authority for the approach that all assessments of general
damages were historically too low and should be adjusted
significantly
upward. The upward tendency, it must be added, is
but one of the factors to be considered in the exercise of the courts
discretion
in assessing the amount of general damages, and should
only be applied, if the facts of the matter warrants such an
approached.
[41]
It is also undisputed that the plaintiff suffered pain at the time of
the accident. He is still in pain and shall continue
to suffer pain
in future.
It
is stated in Dr. Engelbrecht’s report that the plaintiff takes
up to four
tablets
and analgesic every day. It is undisputed that the plaintiff
continues to from recurrent headaches. The neurosurgeon’s
opinion - which I accept - is that:
"In my opinion there
is significant cognitive abnormaltiy. Given the information regarding
the head injury diffuse brain trauma
is likely a factor influencing
his ability although other factors might have some significance in
this patient. My concern is however,
that he also has frontal brain
dysfunction and poor control and planning ability".
The
brain injury therefore has resulted in increased risk of developing
late post traumatic epilepsy.
[42]
It is evident from the reports of the experts that the plaintiff has
suffered and will continue to suffer loss of amenities.
The
sequelae
of injuries as considered by the experts in their joint minutes
show that the plaintiff is permanently unemployable and is disabled.
He is also at risk of developing further ailments due to his cranial
injuries. The plaintiff has suffered the loss of his independence
and
enjoyment of life.
[43]
The evidence is undisputed as the defendant's own appointed experts
are in agreement with the injuries; I am thus inclined
to accept it
for purposes of quantifying the damages. Also taking into
consideration that the plaintiff's wife had left him after
the
accident, due to the permanent disability and/or disfigurement. The
plaintiff is now without spousal support and therefore
has to depend
on other people for any assistance.
[44]
The above having been said, I am mindful of the caution in
De Jong
V Du Pisane N.O
2005 (5( SA 547
(SCA) at paragraph 60
wherein the
court after noting the tendency towards increased awards in respect
of general damages in recent times was readily perceptible,
the court
re-affirmed conservatism as one of the multiple factors to be taken
into account in awarding damages. The court concluded
that the
principle remained that the award should be fair to both sides, it
must give just compensation to the plaintiff, but not
pour out
largesse from the horn of plenty at the defendant expense as was also
pointed out in
Pitt v Economic Insurance Co LTD
1975 (3) SA 264
(N) at 267.
[45]
There is no doubt that the plaintiff sustained fatal and irreversible
injuries as a result of the accident. Furthermore the
pain and loss
of amenities suffered by the plaintiff are overwhelmingly stated. The
plaintiff was hospitalised for a period of
more than six month and
even continued with physiotherapy post his discharged from hospital.
Due to these injuries the plaintiff
cannot even manage and take care
of his personal affairs, resulting in the appointment of a curator ad
litem.
[46]
Having regard to the above in my opinion an award of R1,600 000 would
be a fair compensation in relation to general damages.
LOSS
OF INCOME
[47]
It is common cause that at the time of the accident the plaintiff was
self-employed as a taxi driver and this was also confirmed
by the
defendant's' experts. Dr Daan De Klerk (Plaintiff's expert witness)
stated that: "In my opinion he will not be employed
again. I am
of the opinion that he will not even be competitive in the labour
market section for disable individuals".
[48]
Dr JA Smuts stated that the plaintiff has cognitive problems as well
as serious personality changes and physical impairment
that make
working most likely impossible. In his opinion the plaintiff is
permanently disabled.
[49]
Ms Abida Adroos is of the opinion that from a practical perspective,
when taking into consideration the injuries of the plaintiff,
his
limited educational level, work experience, as well as declined with
the plaintiff’s cognitive functions he will not
be employable
in the open labour market.
[50]
The joint minutes of the Orthopaedic Surgeons of both the plaintiff
and the defendant experts confirmed that the plaintiff
remains
unemployable and is permanently disabled and will therefore not
manage to go back to work. The joint minutes of the Industrial
Psychologists shows that for quantification purposes they agreed that
the plaintiff would have to continue to function in his pre-morbid
position, though they disagreed on the retirement age of the
plaintiff.
[51]
With regard to an appropriate retirement age, there is a general
understanding that the "normal” retirement age
is 55, 60
or 65, but this understanding is too vague to be useful in
specific instances. As in this case the plaintiff is
a taxi
driver/Owner. As a self-employed person, he could have chosen any
reasonable age to retire, depending on his health, or
if he was not
involved in an accident. The plaintiff could either draw a state
pension. The taxi industry is unregulated with regard
to retirement
age. Retirement age is regulated in the formal employment with regard
to the Government Employees Pension Fund and
Provident Fund for
employees in the private sector. In the matter of
Mogal v RAF
(case 29208/13),
where Castennen, J confirmed the reality and
said:
"that
people today are healthier and continue to work after the age of 65".
[52]
I am therefore inclined to accept the retirement age on the pre
morbid scenario of the industrial psychologist of the
plaintiff that
he would have retired at age 65.
[53]
The plaintiff's loss of earning since the collision and his future
loss of earning capacity have been calculated by an actuary
instructed by the defendant. It is evident from the actuarial report
that the defendant specifically instructed the calculation
be taken
in consideration with regard to scenario 2. The industrial
psychologists suggested that for quantification purposes the
earnings
at a scale between point 1 and 2 for taxi owners be used as a
baseline, with an annual CPI percentage until normal retirement.
The
actuarial calculations applied a 5 % contingency to past loss
earnings as indicated by the Plaintiff's industrial psychologist
amounts to R152 086 (160 091-5%). And applying a contingency
deduction to the actuarial calculation of the defendant's industrial
psychologist for past loss of earnings amounts to R261 719, 30 (R275
494 - 5%).
[54]
The plaintiff must prove that he will probably suffer financial loss
or diminution of his income. In
Sandler v Wholesale Coal Suppliers
Ltd 1941 (A) 194
it was stated that:
"It is no doubt
exceedingly difficult to value the damage in terms of money, but that
does not relieve the court of the duty
of doing so upon the evidence
placed before it. This is a principle which has been acted on in
several cases in South African courts."
[55]
In
Rudman v Road Accident Fund 2003 (2) SA
234 (SCA)
at
para
[11]
the court said.
"There must be
proof that the reduction in earning capacity indeed gives rise to
pecuniary loss."
[56]
In
Road Accident Fund v Delport 2005 (1)
SA 468 (SCA) and De Kok v Road Accident Fund 2009 9851/07,
the
SCA stated that:
"A claim for loss of
earning and loss of earning capacity, cannot exist without the
other. Therefore any patrimonial claim
of this kind requires;
(a) Loss of earning capacity as a
result of a damage causing event ; and
(b) An actual patrimonial loss of
income as a result of the above mentioned loss of earning capacity in
which case neither the one
nor the other may be claimed for the same
amount."
[57]
Without loss of income the loss of earning capacity becomes a
misnomer and remains a non-patrimonial loss at best that cannot
be
quantified in money because it has truly led to monetary loss(this is
true for future scenarios as well). Likewise, without
loss of earning
capacity as a result of damage causing event, it is difficult to say
that any patrimonial loss of income was caused
by such damage causing
event. Thus loss of earning capacity in my view acts as somewhat of a
causal link between the damage causing
event and the patrimonial loss
suffered through the loss of earnings. Thus I am of the view that
loss of earnings and loss of income are part and parcel
of the same concept are vital for each other's existence.
[58]
According to the calculations when applying the contingency deduction
of 10 % and the post morbid scenario as indicated by
the plaintiff's
industrial psychologist amounts to a future loss of earnings will be
an amount of R1 003 950. If one applies a
contingency deduction of 1O
% to the actuarial calculation of the defendant, and the post morbid
scenario as indicated by the defendants'
industrial psychologist,
amounts to future loss of earnings in the amount of R942 247.80. It
is evident that from the two amounts
there is a mere R61 702, 20
differences in the two scenario in respect of future loss of income.
[59]
The total loss according to the plaintiff industrial psychologist is
R1
003 950 + R152 086. 45 = R1 156 036. 45 and the total loss according
to the defendan'ts industrial psychologist is
R
942 247. 80 + R261 719 . 30 = R 1203 967. 10
[60]
In
Southern Insurance Association Ltd v Bailey No
1984 (1) SA 98
{A) at 114 C-D,
Nicholas JA Said:
"In a case where the
court has before it material on which an actuarial calculation can be
usefully made. I do not think that
the first approach offers any
advantage over the second. On the contrary, while the result of an
actuarial computation may be no
more than an "informed guess",
it has the advantage of an attempt to ascertain the value of what was
lost on a logical
basis; whereas the trial Judge's "gut feeling"
(to use the words of appellant's counsel) as to what is fair and
reasonable is nothing more than a blind guess.
(see
Goldie v City Council of Johannesburg
1948 (2) SA 913
(W) at 920).
[61]
It is trite that contingency deductions are whether the discretion of
the court and depends upon the Judge's impression of
the case.
Contingencies are normally calculated at 5% for post loss and 15%
future loss of earning capacity, (See Southern Insurance
Association
v Bailey NO 1984 (1) SA 98
(A).
[62]
Ms. Lizette Viljoen, Industrial Psychologist, in her report
recommended that the normal pre-morbid contingency deduction should
be applied. She further recommends a significantly higher contingency
than the pre-morbid contingency for the period 01 January
2014 to
December 2017 due to the high risk profile of the plaintiff and
rightly so, she mentions that the contingences is the prerogative
of
the court together with the negotiations between the parties.
[63]
The actuarial report of Mr. T. Doubel, did not make any contingency
adjustments to the loss of income. It stated that these
contingencies
are not determined by actuarial calculations but are decided upon by
the court or by agreement.
[64]
Factors which the court must take into consideration when determining
contingencies are: the possibility that the plaintiff
may eventually
have less than a normal expectation of life, and that he or she may
experience periods of unemployment by reason
of incapacity due to
illness, or accident or to labour unrest or general economic
conditions. The amount of the discount may therefore
vary, depending
upon the circumstances of each case
(see Bailey above at 116 G-H).
[65]
Counsel for the defendant submitted that a higher deductions should
be allowed as the plaintiff can still walk, even if it
with
assistance of a walker. The plaintiff can follow discussions and can
therefore continue to run his taxi business.
[66]
When a court is called upon to exercise an arbitrary discretion that
is largely based on speculated facts it must do so with
necessary
circumspection. Bearing in mind that contingencies are not always
adverse, the court should exercise its discretion and
lean in favour
of the plaintiff as he would not have been placed in that position
where his income would have to be the be subject
of speculation if
the accident had not happened.
[67]
Under the circumstances therefore, I am of the view that the
actuarial calculations depicted above are fair and equitable and
will
serve to balance the interest of both parties.
[68]
The plaintiff's claim is calculated as follows:
General
Damages
R1 600 000
Past
Loss of earnings
R261
719. 30
Future
Loss of Earnings
R 1 203 967 .10
COSTS
[69]
The plaintiff seeks punitive costs against the defendant. Counsel
submitted that the pre-trial was held on 20 December 2016
and that
the plaintiff was ready to proceed with the trial. Counsel indicated
that the defendant was in possession of all the reports
as well as
the calculations, but the defendant failed to tender for future
medical expenses. Counsels further submitted that the
defendant works
with public funds and should minimise unnecessary litigation. It us
for this reason that punitive costs should
be awarded against the
defendant.
[70]
Counsel for the defendant argued that the matter is before court for
the first time and that no court time was wasted. Counsel
submitted
that the defendant had a legitimate point to raise with regard to the
plaintiff's proof of income and bank account that
were not submitted
Therefore the defendant was unable to make proper calculation in that
regard. Counsel submitted that there is
therefore no justification
for a punitive cost order against the defendant.
[71]
Under the circumstances, the defendant's argument with regard to
costs was a legitimate point as it is for obvious reason difficult
to
work on calculations if there was no proper proof of income. I am of
the view that a punitive costs order is not warranted.
[72]
Therefore defendant shall pay the plaintiff costs on a party and
party scale.
[73]
Accordingly I make the following order.
a)
The draft order as amended marked with an "X" and
initialled by me is made an order of this court.
____________________
S
CHESIWE
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date of hearing: 16 MAY
2016
Date
of judgment: 26 July 2016
For
the plaintiff:
Instructed
by:
For
the defendant:
Instructed
by:
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
ON
THIS THE 26
th
DAY
of
JULY
2017 AND BEFORE THE HONOURABLE CHESIWE
Case
Number: 88870/2014
In
the matter between:
ADV
JJ POTGIETER N.O
KLEINBOOI
MSANYANA
JIYANE
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
DRAFT
ORDER
After
heard of counsel read the papers filed and considered the matter,
IT
IS ORDERED THAT:
1.
The Merits were previously adjudicated upon and found that the
Defendant is liable for 100% of the Plaintiffs proven and/or agreed
damages.
2.
The Defendant shall
pay to
the
Plaintiff the sum
of:
2.1
R261 917 + R1 203 967,00 = R1 465 686 in respect of general damages;
2.2
R 1,6 million in respect of general damages;
3.
The amounts mentioned in [aragraphs 2 above in the sum of R 1 456
686,00
is to be paid to the Plaintiff within 14
(FOURTEEN) days of the date of this Court Order;
4.
In the event of the aforesaid amount not being paid timeously,
the Defendant shall be liable for interest on
the amount at the rate
of 10,5% per annu..!:11, ca! ulated from
1he
15
calendar day_pfte[Jhe date of this Order to date of payment.
5.
The Defendant shall furnish the Plaintiff with an undertaking in
terms of Section 17(4)(a) of Act 56 of 1996 for payment of the
future accommodation of the Plaintiff in a hospital
or nursing home or treatment of or rendering of a service
or
supplying of goods to him resulting the injuries sustained by the Mr.
Jiyane in the motor vehicle accident that occurred on
the 4th
of
May 2013,
to compensate the Plaintiff in respect of the said
costs after the costs have been incurred and upon proof thereof.
6.
The Defendant shall pay the Plaintiff's taxed or agreed party
and partyon the High Court scale, subject thereto that:
6.1
In the event that the costs are not agreed:
6.1.1
The Plaintiff shall serve a notice of taxation on the
Defendant's attorney of record;
6.1.2
The Plaintiff shall allow the Defendant 7 (SEVEN) Court days
from date of allocator to make payment of the taxed costs.
6.1.3
Should payment not be effected timeously, the Plaintiff will
be entitled to recover interest at the rate of 10,5% per annum on the
taxed or agreed costs from date of an agreement being reached and/or
from date of the allocatur to date of final payment.
6.2
Such costs shall include but not be limited to:
6.2.1
The costs incurred in obtaining payment of the amounts
mentioned above;
6.2.2
The costs of and consequent to the employment of Counsel,
including counsel's charges in respect of her full day fee for 16 MAY
2017, as well as reasonable preparation;
6.2.3
The costs of all medico-lega,l radiological, actuarial,
accident reconstruction, pathologist and addendum reports obtained by
the
Plaintiff, as well as such reports furnished to the Defendant
and/or its attorneys, as well as all reports in their
6.2.5
The reasonable costs incurred by and on behalf of the
Plaintiff in, as well as
the
costs both parties.
consequent
to attending the medico-legal examinationsof
6.2.6
The costs consequent to the Plaintiff's trial bundles and
witness bundles if any;
6.2.7
The cost of holding all pre-trial conferences, as round table
meetings between the legal representatives for both the Plaintiff and
the Defendant including counsel's charges in respect thereof;
6.2.8
The cost of and consequent to compiling all minutes in respect
of pre-trial conferences
6.2.9
All cost incurred in the appointment of and subsequent thereto
by the
Curator
ad Utem
7.
The amounts referred to above will be paid to the Plaintiff's
attorneys, Spruyt
Incorporated as
per Aiinexure "A" hereto (The consent ana instruction), by
direct transfer into their trust account, details
of which are the
following:
Standard
Bank
Account
number: [...]
BARNCH
CODE: Hatfield (01 15 45)
REF:
SO 1813
8.
There is no contingency agreement applicable.
9.
The Defendant is liable for payment of 100% of the reasonable costs
of the Trustee to be appointed herein, in respect of establishing
a
Trust and any other reasonable costs that the Trustee may incur in
the administration thereof including his/her fees in this
regard,
which shall be recoverable in terms of the Undertaking issued in
terms of Section 17(4)(a), and which costs will also include
and be
subject to the following:-
9.1
The fees and administration costs shall be determined on the basis of
the directives pertaining to curator's remuneraiton and
the
furnishing of security in accordance with the provisions of the
Administration of Deceased Estates Act, Act 66 of 1965, as
amended
from time to time;
9.2
The monthly premium that is payable in respect of the insurance cover
which is to be taken out by the Trustee to serve as security
in terms
of the Trust Deed;
9.3
All the above mentioned costs shall be limited to payment of the
reasonable costs whictLthe _Defendant would have had to pay regarding
appointment, remuneration and disbursements had the Trustee been
appointed as a
Curator Banis;
10.
The costs associated with the yearly audit of the Trust by a
chartered accountant as determined in the Trust Deed.
11.
That the nett proceeds of the payment referred to above as well as
the Plaintiffs taxed or agreed party and party costs payable
by the
Defendant, after deduction of the Plaintiffs attorney and own client
legal costs (the "capital amount") , shall
be payable to a
Trust, to be established within six months of the date of this order.
The following shall apply to the trust:
11.1
The trust's main objective will be to control and administer
the capital amount on behalf of the Plaintiff;
12.
Should the aforementioned Trust be established within the six month
period, the Trustee thereof is authorised to pay the Plaintiffs
attorney and own client costs out of the Trust funds in so far as any
payments in that regard are still outstanding at that stage.
13.
Should the aforementioned Trust not be established within the six
month period:-
13.1
The Plaintiff is directed to approach the court within six
months thereafter in order to obtain further directives in respect of
the manner in which the capital amount is to be utilized in favour of
the Plaintiff;
13.2
The Plaintiffs attorneys
are prohibited from dealing with the capital amount in any other
manner unless specifically authorised
thereto by this court sublect
to the provisions contained in.paragraphs 4 to 6 hereof.
14.
The Plaintiffs 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 Plaintiff with a registered
banking institution pending the establishing of a trust.;
15.
Until such time as the Trustee is able to take control of the capital
sum and to deal with same in terms of the trust deed,
the Plaintiffs
attorneys are authorised and ordered to make any reasonable payments
to satisfy any of the Plaintiffs
needs that may
arise and that are required in order
to satisfy
BY
ORDER OF THE COURT
APPEARANCE
FOR THE PLAINTIFF:
Adv.
C Spangenberg 079 507 4819
APPEARANCE
FOR THE DEFENDANT:
Adv.
Tshabalala 082 510 2398