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[2016] ZAGPPHC 1116
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M.N.P.N obo L.N.N v Road Accident Fund (60812/14) [2016] ZAGPPHC 1116 (1 November 2016)
SAFLII
Note:
Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 60812/14
DATE
DELIVERED: 1 NOVEMEBR 2016
IN
THE MATIER BETWEEN
M.
N. P. N. obo L. N.
N.
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
VAN
NIEKERK, AJ
[1]
Plaintiff in her representative capacity as the mother and
natural guardian of a boy who was born on [...] 2003
("
the
minor" )
instituted an
action against the Defendant, a juristic persona in terms of the
provisions of Act 56 of 1996
("the
Act") pursuant to
a collision between a motor vehicle and the minor on the 9
th
day of December 2007 as a result of which the minor was injured as
set out infra. In the particulars of claim it was alleged that
the
collision was caused due to the sole negligent driving of the insured
vehicle as a result of which the minor sustained
a severe brain
injury, head injury, fracture of the ribs, shock and psychological
trauma and a claim was instituted against
the Defendant for
future medical, hospital and related expenses in the amount of R3 600
000.00, loss of earnings and/or earning
capacity in the amount of
R12 000 000.00, general damages in the
amount of R3 500
000.00, in total R19 100.00. By
agreement between the parties an order was made on the 29th of April
2015 in terms where of it
was declared that the Defendant is liable
for 100% of the damages suffered in consequence of the injuries
sustained by the minor
as a result of the motor vehicle collision
referred to
supra,
and it was
further ordered that the question relating to the quantum of the
Plaintiff's claim be determined separately in
terms of the provisions
of Rule 33(4) and such issue was postponed
sine
die.
It was further ordered that the Defendant
pay the Plaintiff's costs of suit attributable to the question of
liability.
[2]
The issue relating to the quantum of damages commenced before this
Court on 27 October 2016, and both parties 'counsel confirmed
that
the issues between the parties' were narrowed as a result of an
agreement reached between the parties prior to the commencement
of
the trial as follows:
[2.1]
In respect of future medical, hospital and related expenses it was
agreed that the Defendant would furnish the Plaintiff with
a suitably
worded written undertaking in terms of Section 17(4)(a) of the Act;
[2.2]
The Defendant has admitted the correctness of the contents of all the
expert reports filed on behalf of the Plaintiff, including
the joint
minutes filed by various of the experts, as a result of which
there would be a no factual dispute
relating to the
nature and extent of the injuries sustained by the minor,
nor the
sequelae
thereof;
[2.3]
In respect of the claim for a loss of future earnings it was agreed
that such claim should be computed and calculated on the
basis as set
out in an expert report of an Industrial Psychologist, Mr J J
Prinsloo, and Mr G W Whittaker, an Actuary, with the
exception of the
contingency deduction which has been applied by the Actuary in an
updated report filed by such expert witness
and that only the
contingency percentage should be decided by the court.
[3]
The effect of the aforesaid agreements reached between the parties
was namely that the only issues which this Court had to determine,
was the appropriate contingency adjustment to be made to the
actuarial figures in respect of the minor's future loss of earning
capacity, the quantum in respect of the general damages suffered by
the minor, and the issue of costs of the action. As a result
of the
aforesaid, the remaining issues was capable of being disposed of on
the basis of argument alone, without the necessity of
hearing
viva
voce
evidence, and it is commendable that the legal
representatives of both parties were able to curtail the proceedings
and resultant
costs substantially by applying their collective sound
logic, sense of reason and experience to the issues in question. The
parties
further assisted the Court by preparing a draft order which
provides for
inter alia
the appointment of a trustee to
safeguard any award this Court makes, the provision of a Certificate
in terms of Section 17(4)(a)
of the Act, and as a result of which all
that remains is for this Court to determine the quantum of the
general damages as well
as the contingency percentage deduction in
respect of the loss of future earnings, and that the sum total of
these amounts be inserted
into the draft order. The remaining issues
are dealt with separately hereunder:
GENERAL
DAMAGES:
[4]
In terms of Section 17(1)(b) and 17(1A) of the Act, general damages
can only be claimed for serious injury, and it was common
cause
between the parties that the injuries sustained by the minor
constitutes
"serious i
n
juries "
as
contemplated in terms of the Act. It is trite law that it is
the duty of the Court to award compensation under the heading
of
so-called
"general
damages"
which
is fair and reasonable compensation for pain, suffering, discomfort,
loss of amenities, shock and psychological trauma caused
by the
accident and that the particular circumstances of the case must be
considered. It is further established law that comparable
cases and
the decrease in the value of money since such cases were decided
could be considered, but that awards made in previous
cases can only
afford broad and general guidelines in the view of the differences
which inevitably arise in each case.
[5]
For purposes of awarding damages under
the heading of so-called
"general
damages"
the expert reports referred to
supra
provides detailed
information about the minor child's injuries, which were:
[5.1]
A severe diffuse axonal brain injury;
[5.2]
A vocal brain injury demonstrated by an intracerebral haematoma;
[5.3]
A chest injury consisting of pulmonary contusion;
[5.4]
Lacerations of the left forehead and below the left side of the nose
and above the lip.
[6]
After sustaining the aforesaid injuries in the accident, the minor
was taken to a hospital in Nongoma and immediately transferred
to a
hospital in Empangeni where CT-scans of the brain were done.
Thereafter a request was made for a transfer to the Albert Luthuli
hospital in Durban due to the severe nature of the injuries. After
viewing the scans in Durban the neurosurgeons concluded that
the
minor's head injury was of such a serious nature that they would not
be able to do anything for him and consequently the brain
injury was
treated non-operatively in Empangeni where the minor child remained
in the Intensive Care Unit for seven days and thereafter
the child
spent another week in the General Ward. The child was thereafter
returned to Nongoma where he remained for a further
six weeks in
hospital before he was discharged. All indications are that, at the
time when the child was discharged, he was severely
regressed and
presented as new born baby who had to learn to sit, to crawl, to walk
and was in nappies as a result of a lack of
control. According to the
reports, the minor was unconscious for more than two weeks, which is
indicative of a severe head and
brain injury.
[7]
The expert witnesses agreed that the brain injury caused irreversible
and significant long term neurocognitive and neuro-physical
sequelae
and that the vocal brain injury has resulted in a spastic
hemiplegia on the left. A neurosurgeon described the minor's injury
as
"a
very severe brain injury"
which implies permanent brain damage with devastating effects in
multiple areas.
[8]
According to an ear-, nose- and throat specialist the minor suffers
from spontaN.us nystagmus of both eyes, a condition which
causes an
involuntary jumping movement of the eyes which is also a consequence
of the serious head injury. This condition is irreversible.
An
ophthalmologist diagnosed a left homonymous hemianopia of the minor
which is incurable, causes a reading problem, and
will have a
negative effect on the child's employment possibilities and his
enjoyment of life's amenities.
[9]
The minor presents with a depleted communication profile indicating
receptive and expressive language deficits, cognitive linguistic
deficits, executive dysfunction and pragmatic difficulty in personal
situations, and these problems have a negative impact
on the
minor's scholastic functioning and will be detrimental to his
education, vocational training, employability and ultimately
on his
dependence.
[10]
In terms of a neuropsychological assessment, it was found that the
minor is severely impaired in the fields of fine motor speed
-
dexterity for both hands and especially for the hemiparetic left
side, and in general experience problems with co-ordination,
concentration, ability to reason, slow comprehension, and an
indication of disturbances in the minor's behavioural functions
particularly
in the domain of temper control. According to the
reports, the child spent five years in Grd. 1where he was teased by
the other
scholars, acted towards them aggressively or withdrew and
cried. The minor is not able to cope in a normal mainstream school
environment
and will inevitably receive limited specialised
schooling.
[11]
The minor suffers from chronic headaches and his left arm and left
leg are underdeveloped. He struggles to pick up a pin or
a pen with
his left hand from a flat surface and his fine co-ordination is poor.
He has a poor sense of balance and he walks with
a spastic hemiplegic
gait on the left. This, in simple terms, means that the minor cannot
walk normally, run, play, participate
in sport or do many of the
things that an uninjured normal person take for granted.
[12]
The experts further agree that the minor child runs a 5% to 8% chance
of developing epilepsy in future. Presently the child
experience
periodic seizures.
[13]
The effect of the aforesaid injuries and the
sequelae
thereon on the minor's life is devastating. As stated
supra,
he is unemployable in the open market. The minor will need
assistance and care for the rest of his life. He is unable to play
like
a normal
child
with his peers and neither will he be able to enjoy a normal adult
life. The compound effect of all of these disabilities
in relation to
the issue of loss of amenities, pain and suffering, and emotional
trauma is obvious.
[14]
This Court was referred to various precedents relating to the issue
of the
quantum
of damages. As can be expected, Plaintiff's
Counsel referred this Court to precedents where damages in present
day terms amounting
of Rl.8 million was awarded,
whereas
Counsel acting on behalf of the Defendant referred to various
precedents where less than R l million was awarded. This Court
can
only be guided by these precedents, as none of those precedents are
factually on all four to the matter
in casu.
Considering
the proverbial low water marks and high water marks of the precedents
referred to by Counsel acting on behalf
of the respective
parties, and considering the facts
in
casu,
this Court is of the opinion that a fair and reasonable
amount of damages to be awarded under the heading of
"general
damages"
amounts to R l 400
000.00.
CONTINGENCY
ISSUE:
[15]
It is common cause between the parties that the actuarial calculation
of the value of the minor's pre-accident income earning
amounts to RS
819 748.00. This is the amount as calculated in the actuarial
report of Algorithm Consultants and Actuaries
dated 12 August
2016. This Court must determine the so-called
"actuarial
percentage"
for general contingency deductions for
items such as a loss of earnings, savings in relation to travel
to and from work,
risk of future retrenchment and
resultant unemployment, and other factors which may negatively and/or
positively
influence the earning capability of the minor should he
have not been injured. All that the Court can do is to make an
estimate.
Vide:
Southern Insurance Association
v Bailey NO
1984 (1) SA 98
(A) at p. 113
G
-
1
[16]
Again I was referred by Counsel to precedents where as much as 50%
was applied for a contingency deduction, and referred to
the Quantum
Yearbook 2016 at p. 124 where the learned author Koch states:
"It
has
become customary
for
the
court to apply
the
so-called sliding scale to contingencies
which entails
a half
percent
per
year
to retirement
age that is 25% per
child,
20%
for
a young
and
10% in the middle age."
[17]
It is obvious that there is risk involved in calculation of future
earnings, based on life's truth that intervening events
may reduce
an individual earning capacity whereas at the
same token, other events may increase an individual's
earning
capacity. This is all speculative. In my opinion the effect of this
speculation should not be to substantially reduce a
legitimate claim
for damages, the purpose of which is to take care of a disabled
individual for the rest of that individual's life.
I further cannot
subscribe to the notion that some form of calculation or formula
should apply in terms whereof, the younger the
child the greater the
percentage contingency should be applied. I am of the view that there
is merit in the submissions made on
behalf of Counsel for the
Plaintiff who argued that it is unfair to provide for the risk of
survival of a young child by increasing
the percentage contingency
where the actuarial calculation of future earnings is already based
on an actuarial life expectancy
and which therefore results in a
proverbial
"double jeopardy''
for a young claimant.
[18]
Counsel for Plaintiff invited me to apply a 20% contingency deduction
and I cannot fault this suggestion. Counsel for Defendant
invited me
to deduct a 30% contingency deduction, the effect of which would be
to substantially decrease the available funds for
the minor which is
supposed to provide for his living expenses for the remainder of his
life. I am of the view that it would
not be fair and
reasonable.
[19]
In the premises, I find that the contingency deduction in respect of
the minor's claim for a loss of future earnings should
be 20% and the
minor's net loss of income in future will amount to the sum of R4 655
798.00.
COSTS:
[20]
Defendant failed to make any formal offer and placed all issues in
dispute in the pleadings. Defendant's Counsel properly conceded
that
the Defendant should be liable for all the costs incurred,
including costs of the expert employed on behalf of the Plaintiff.
[21]
In the result I make an order in terms of the draft order handed in
by agreement between the parties which I have marked "x"
with the proviso that the amount in paragraph 1thereof should read
R_6055 798.00.
P
A VAN NIEKERK
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
__________________________
P.
A. Van Niekerk
Acting
Judge of the High Court,
Gauteng
Division, Pretoria.
Hearing:
28 October 2016
Judgment:
1 NOVEMBER 2016
HEARD
ON: 28/10/2016
FOR
THE APPELLANT: ADVOCATE G. ALBERTS SC
INSTRUCTED
BY: SAVAGE JOOSTE AND ADAMS
FOR
THE RESPONDENT: ADVOCATE F. MATIKA
INSTRUCTED
BY: TAU PHALANE INC. ATIORNEYS
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Before
the Honourable Mr. Justice
P.A
van NIEKERK,
DATE:
27 October
2016
CASE
NO.: 60812/2014
In
the matter
between:
N.P.
N.MBATHA o.b.o L. N.
N.
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
DRAFT
ORDER
By
agreement between the parties:
1.
The Defendant is ordered to pay the Plaintiff an amount of R6055
79800 for the benefit of the minor, L. N. N., which amount shall
be
paid within 14 days to the credit of the trust account of the
Plaintiffs Attorneys of record,
Savage
Jooste &
Adams Inc, Pretoria, whose trust account details are as follows:
Nedbank name
NEDCOR - ARCADIA
Account type
Branch code
TRUST ACCOUNT
16-33-45-07
Account no
Reference no
[1...]
Mr Makole/KM262
2.
In the event that the aforementioned amount in paragraph 1 above Is
not paid timeously by the Defendant, interest will be payable
on the
full outstanding amount at the rate of 10.25% calculated from the due
date up to and including the date of payment.
3.
The award as pertaining to the minor,
(L. N. N.) shall be properly
shall be
protected by means of a Trust ("the trust").
4.
It is hereby authorized that Jean Vosloo, of Standard Bank Trust, is
to be the Trustee of the trust and is to establish the trust
of which
L. N. N.
shall be the sole beneficiary. A copy of the
trustee's consent is attached hereto and marked as Annexure "A".
The appointment
of the Trustee is subject thereto that the Trustee
furnishes security to the satisfaction of the Master of the High
Court. It is
in the Trustee's sole and absolute discretion to:
4.1
Acquired any shares, until trust, debentures, stocks,
negotiable
instruments, mortgage bonds, notarial bonds, securities, certificates
and any moveable property or any incorporeal rights
and to invest in
such assets and to lend funds to any party or make a deposit or
investment with any institution, such investment
to be of such nature
and on such terms and conditions as the Trustee may deem fit.
4.2
Exchange, replace, re-invest, sell, let, insure,
manage, modify,
develop, improve, convert to cash or deal in any other manner with
any asset which from time to time forms part
of trust funds:
4.3
Borrow money;
4.4
Pledge any trust assets, to encumber such assets
with mortgage bonds
or notarial bonds to utilize same as security in any manner
whatsoever;
4.5
Institute or defend any legal proceedings or otherwise
to take any
other steps in any court of law or other tribunal and to subject
controversies and disagreements to arbitration;
4.6
To call up and/or collect any amounts that may
from time to time
become due to the trust fund;
4.7
Settle or waive any claim in favour of the trust;
4.8
Exercise any option and to accept and exercise
any rights;
4.9
Exercise any rights or to incur any obligation
in connection with any
shares, stocks, debentures, mortgage bonds or other securities or
investments held by this trust;
4.10
Open account at any bank or other financial institution and to manage
such accounts and if necessary to overdraw such account;
4.11
Draw any cheque or promissory note, to execute or endorse same;
4.12
Take advice from any attorney or advocate or any other expert for the
account of the relevant trust account;
4.13
Lodge and proof claims against companies in liquidation or under
judicial management
and against insolvent or deceased estates;
4.14
Appoint professional or other person on a temporary or permanent
basis
to conduct the whole or any portion of the business of the
trust under supervision of the trustee or to manage the investment of
part or the entirety of the funds of the trust and to remunerate such
persons for their services out of the funds of the trust;
4.15
Form any company and to hold any interest in any company and to form
any other trust to hold an interest in any other trust or partnership
or undertaking for the purposes of this trust or in the interest
of
any beneficiary;
4.16
Amalgamate with any other trust with the same or similar aims as this
trust;
4.17
Commence any business or continue such business or to acquire an
interest therein
and for such purpose to acquire assets or to incur
expenses and to partake in the management, supervision and control of
any business
and to conclude any partnership or joint venture;
4.18
Accept any disposal in favour of this trust and to comply with any
conditions
regarding such disposal;
4.19
In general do all things and to sign all documents required to give
effect
to the aims of this trust.
5.
The Defendant is ordered to furnish the trustee (to be appointed in
terms of paragraph 3 hereto) with an Undertaking in terms
of
Section
17(4)(a)
of the
Road Accident Fund Act, No 56 of 1996
, to compensate
the minor for
100%
of the cost of future accommodation
in a hospital or nursing home or treatment of or rendering of a
service or supplying of goods
to the minor resulting from injuries
sustained by her as a result of an accident that occurred on the 09
DECEMBER 2007. The aforesaid
Costs shall include:
5.1.
The reasonable remuneration of and the reasonable costs incurred by
the
trustee of the Trust to be formed in administering and managing
the capital amount referred to in paragraph 1 above, which
remuneration
and costs shall not exceed the equivalent amount which a
curator
bonis
would have been entitled in
terms of and as determined by the
Administration of
Estates Act,
Nr 66 of
1965,
as
amended, and the prescribed tariff applicable to
curators
as contained in the
Government
Gazette
Notice
R1602
of 1st of July
1991,
and, more specifically, paragraphs(a) and (b) of the
schedule thereto;.
6.
The Defendant is ordered to pay the Plaintiff's taxed or agreed Party
&
Party
Costs on the High Court Scale, which shall include the following:
6.1
The costs of consultations, preparation and drafting of expert
reports, addendum reports (if any),
joint minutes, preparation and
reservation (if any) and attendance of Court for the following
experts:
6.1.1
Dr. J J Du Plessis, Neurosurgeon;
6.1.2
Dr Mazabow, Clinical Neuropsychologist;
6.1.3
Dr J S Enslin, Ear Nose & Throat Surgeon;
6.1.4
Dr Konig, Ophthalmologist;
6.1.5
Archer & Mann, Audiologist;
6.1.6
Mirriam Close, Psychiatrist;
6.1.7
Malusi Mokgata, Speech Therapist;
6.1.8
Elmarie Prinsloo, Educational Therapist;
6.1.9
Anneke Greeff, Occupational Therapist;
6.1.10
Kobus Prinsloo, Industrial Psychologist;
6.1.11
Algorithm, Consultants & Actuaries.
6.2
The travelling and accommodation costs of the Plaintiff
and the minor
in attending all the medico-legal appointments and attendance of
Court;
6.3
The Costs of Senior Counsel;
_______________________
BY
ORDER
REGISTRAR
_______________________
obo
Plaintiff: Adv G W Alberts SC
082 499 2000
Brooklyn Chambers
S
tandard
Trust
Savage
Jooste & Adams Inc P 0 Box 745
Pretoria
0001
Oocex
58 Pretoria
Trust
for N.P. N.M.obo L. N. N..
We
confirm that Standard Trust Limited will take up the appointment as
Trustee of the Trust to be created for the benefit of L.
N. N..
We
place on record that as Trustees,Standard Trust Limited should be
entitled to levy our full tariff of fees for the administration
of
the Trust. We operate within the following tiered structure and
charge fees monthly in arrears as indicated below:
1
%
a
year on
any value
up
to
Rl.5 million (subject to a minimum fee of R540.00 per month)
0.9%
a year on
that value
more than Rl.5
million
I
hereby declare Standard Trust limited is prepared to:
•
Create a Trust for the
benefit of the beneficiary to receive and manage the assets from the
RAF.
•
Act as Trustee to manage
and invest the assets according to the guidelines of the court order
for the benefit of the beneficiary.
Yours
faithfully
Jean
Vosloo
18/10/2016