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[2015] ZAGPPHC 954
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N.S obo S v Road Accident Fund (37019/2014) [2015] ZAGPPHC 954 (8 July 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES:
YES
DATE:
8/7/2015
CASE
NUMBER: 37019/2014
In
the matter between:
N.
S. obo
S.
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
LEPHOKO
AJ
[1]
The plaintiff sues the defendant for loss of support resulting from a
motor collision that occurred on 23 February 2013 in Kraaifontein,
Cape Town. The plaintiff sues in her personal capacity as well as in
her representative capacity as the mother and guardian of
her minor
son, S. Sigwebo (S.).
[2]
The defendant conceded that it is liable to pay the plaintiff/minor
son 100% of the proven or agreed damages arising out
of the
collision. It was agreed between the parties that the defendant
shall: Indemnify the plaintiff against any outstanding supplier
claims in respect of past medical and related expenses; Provide the
plaintiff with an undertaking in terms of section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996; Pay the plaintiff an amount of Rl
200 000-00 in respect of general damages.
[3]
The only issue in dispute is the claim for future loss of earnings.
The plaintiff placed the following expert reports before
the court:
Dr Johan Reid (neurologist); Dr Dale Ogilvy (speech and language
pathologist); EH Truter (occupational therapist); Elspeth
Burke
(psychologist); Petra Coetsee (architect); Esther Auret-Besselaar
(industrial psychologist); Alex Munro
(actuary).
The plaintiff led the oral expert evidence of Dr Dale Ogilvy, Esther
Auret-Besselaar and Alex Munro.
[4]
The defendant did not file any expert reports and did not present any
evidence. The plaintiff submitted that by virtue of paragraph
10 of
the rule 37 pre-trial minute dated 06 May 2015 the defendant is
deemed to have admitted the expert reports filed of record
by the
plaintiff. The defendant contended that the alleged admission was not
unequivocal and was therefore of no effect. Paragraph
10 reads as
follows: "The Plaintiff requests the Defendant to indicate, by
no later than 3 (three) court days before the hearing,
which of the
expert reports delivered by the Plaintiff it admits. Should the
defendant fail to indicate by the said date that it
does not admit
any of the reports, it shall be deemed that such report has been
admitted."
[5]
The pre-trial minute is a consensual document and, in effect,
constitutes a contract between the parties.
1
To allow a party, without special circumstances, to resile from an
agreement deliberately reached at a pretrial conference would
be to
negate the object of Rule 37 which is to limit issues and curtail the
scope of litigation.
2
The
agreement to deem the expert reports to be admitted under the
circumstances set out in the pre-trial minute is unequivocal.
Consequently the defendant's contention is without merit. The
plaintiff's expert reports are therefore admitted as evidence.
INJURIES
AND SEQUELAE
[6]
According to Dr Reid's report dated 12 November
2013 S. was admitted for medical
treatment at Tygerberg hospital on 23 February 2013. He was diagnosed
with severe closed head injury with worst Glasgow Coma Scale
5/15
(E1V1M3). The CT scan of the brain showed a cerebral oedema and
bifrontal, left temporal and basal ganglia contusion.
Hospital
management included intubation, ventilation, sedation, analgesics,
neuro observation, physiotherapy, speech therapy, occupational
therapy and rehabilitation.
[7]
It is recorded that he experiences the following ongoing symptoms,
among others: weakness of right side limbs with a gait disorder
and a
useless right hand (unable to write with his right hand or to use it
to assist activities of daily living), headaches, poor
concentration,
forgetfulness, unprovoked aggression, poor motivation, emotional and
behavioural change and disobedience. Post traumatic
seizure or
incontinence is denied.
[8]
The examination by Dr Reid revealed a right hemiparesis, a useless
right hand with significant contracture, hemiparetic gait
with
strength 4-/5 in the right leg, severe neurocognitive compromise,
including dyslexia, dyscalculia and a suggestion of dysphasia.
The
presence of frontal lobe signs, reciprocal incoordination, primitive
reflexes and perseveration could be elicited. The presence
of scars
over the right flank and back, left supra auricular area, left knee
and right elbow.
[9]
Dr Reid diagnosed S. with a severe closed head injury with cerebral
contusions and diffuse axonal shearing; permanent neurocognitive
compromise and right hemiparesis with useless right hand. S. used to
be right handed, but cannot write with his right hand after
the
accident.
[10]
Dr Reid found S.'s whole person impairment to be 79%. He recommends
that physiotherapy, occupational therapy and remedial training
should
be continued at a special school. He is of the opinion that S. would
not succeed at mainstream schooling. The risk for epilepsy
is very
high, approximately four times that of the general population, with
highest spike during adolescence. He states that twice
annual follow
up by neurologist is indicated and that provision should be made for
alterations to the family dwelling to accommodate
S.'s severe
neurological deficits.
[11]
Dr Reid states that the injuries sustained by S. are severe and will
result in serious long term impairment with respect to
his work and
personal life. He will be unemployable in the open labour market and
will be dependent upon relatives for care, supervision,
support and
decision making for the rest of his life. He recommends that a
curator
bonis
should be appointed for S. once he has reached
majority age.
[12]
Dr Dale Ogilvy, a speech and language pathologist, assessed S. on 07
March 2014. During her testimony she confirmed the results
of the
assessment set out in her report of 22 May 2014. According to the
assessment S. presents with a mild residual motor speech
disorder,
which manifests in the odd mispronunciation of words and reduced
clarity of speech with increased rate of production
and the following
marked cognitive-communicative deficits, among others: a significant
word retrieval deficit; limitation in verbal
reasoning; severely
reduced auditory verbal information processing capacity, both for
length and complexity of information; poor
verbal selective
attention; significantly reduced communicative performance for
his age, both as a listener and as a speaker;
and disturbance of the
acquisition of written decoding skills, more specifically involving
his phonetic spelling rules.
[13]
Dr Ogilvy also consulted Ms Boysen who was S.'s grade 1teacher, Ms
Goddard the school principal as well as S.'s mother. Ms
Boysen and Ms
Goddard did not teach S. in Grade 4. Dr Ogilvy believes that S. will
not be able to cope in a mainstream education
due to his condition
although she did not see his school report for the period after the
accident. She testified that although
she is not an educational
expert her expertise involved, among others, assessing the impact of
speech development on educational
development. She concludes that
based on his physical limitations; his future restricted education;
and his cognitive-communicative
deficits, it is highly probable that
S. will be unemployable in the future and will need life-long
guidance and supervision. In
reaching her conclusion she also took
into account the expert reports of Dr Reid (neurologist) and Ms E
Burke (clinical psychologist).
[14]
Mrs E H Truter (occupational therapist) is of the opinion that S. is
suited to a school which caters for children with disabilities.
He
demonstrates significant neurocognitive deficits affecting
occupational performance. His physical disability is such that he
will have to choose a job type where standing, working and bilateral
hand function are not a prerequisite. He would have to perform
work
where intellectual prowess is not mandatory. She deferred to the
opinions of Dr Reid, Dr Ogilvy and Ms Burke. She consulted
Mr Makondo
who taught S. in grades 3 and 4. Her opinion is that S. is probably
unemployable other than in a protective workshop
environment.
[15]
Elspeth Burke (clinical psychologist) assessed S. on 14 March 2014.
She concluded that as a result of the severe head injury
S. sustained
diffuse neuropsychological sequelae. These are serious and little
improvement can be expected. He is unlikely to cope
at a mainstream
school and will be best placed in a LSEN (Learners with Special
Educational Needs) school due to his compromised
scholastic ceiling.
She predicts a bleak future regarding his employment. She deferred to
the opinion of Dr Reid, and considered
other relevant medical
records.
[16]
Ms Esther Auret-Besselaar (industrial psychologist) assessed S.
on 13 March 2014. The results of the assessment are set
out in her
report of 17 April 2014. She confirmed the contents of her report. In
reaching her conclusion she also took into account
the reports and
conclusions of plaintiff's other experts, namely, Dr Reid, Dr Ogilvy,
Ms Burke and Ms Truter. She also consulted
with S.'s mother. Her
several attempts to speak to Mr Makondo who was S.'s grade 3 and
grade 4 teacher were unsuccessful. She considered
S.'s grade 1report
but did not see his later reports. Her evidence is to the general
effect that post morbid S. has no residual
earning capacity
whatsoever.
[17]
Ms Auret-Besselaar is of the opinion that given S.'s background
history and profile, if the accident had not happened, he would
have
continued schooling, achieving above-average scholastic performance
and would have completed his schooling at Grade 12 level
at a
mainstream school by age 18. He would have secured an unskilled job
about 8 months after leaving school, earning between R2
500 - R4 000
per month with no benefits.
[18]
After 12 - 18 months he would probably have secured formal employment
at Level A3 on the Paterson scale receiving basic earnings
with
benefits. He would probably have remained on this level for 3 - 5
years before progressing to job level Bl on the Paterson
scale
(Median basic earnings). Thereafter he would probably have progressed
to level B2 through to BS every 4 - 7 years on each
grade level
earnings as per the basic salary on the median level plus certain
benefits. His overall employability and career advancement
would
probably have increased and would probably have retired at age 65.
She is of the opinion that S. will be unemployable in
the open labour
market and will be dependent upon relatives for care, supervision,
support and decision making for the rest of
his life.
[19]
S.'s mother, Nelisa Sigwebo, testified that her son was 9 years old
at the time of the accident. He went to creche and pre-school.
He did
grade 1in 2011 and grade 2 in 2012 and the accident occurred in
February 2013 when he was in grade 3. He never went back
to school in
2013. He went back to repeat grade 3 in 2014. Before the accident S.
was a clever child and excelled in his school
work and his
teachers were pleased with his performance. Before the accident he
assisted his sibling with school work. After
the accident he
struggled with his school work. He did not pass his grade 3 but was
condoned to grade 4 because of his age. He
failed the first term of
grade 4 in 2015. His current school has recommended that he be taken
to a special school. She has
completed the necessary
application forms to move him to a special school.
LOSS
OF EARNINGS AND CONTINGENCIES
[20]
Mr Alex Munro (actuary) testified that he relied on Ms
Auret-Besselaar's opinion for the computation of his actuarial
calculations. He confirmed the contents of his report and the basis
of his assumptions. The calculations assume, among others,
that S.
has not suffered a past loss of income due to the accident, that he
will not earn any income in the future and that he
would have retired
at age 65. It is also assumed that his income would have increased in
line with inflation until his retirement.
[21]
Before the application of contingencies, the actuarial calculations
estimated the capital loss at R2 843 000-00. A contingency
deduction
of 25% was then applied leaving an estimated future loss of income of
R2 132 250-00. The plaintiff submitted that a 20%
contingency
deduction would be appropriate whilst the defendant contended that a
contingency deduction of 50% would be fair and
equitable.
[22]
Contingencies could be defined as uncertain circumstances of a
positive or negative nature which, independent of the defendant's
conduct and if they should realise, would probably influence a
person's health, income, earning capacity, quality of life, life
expectancy or dependency on support in future or could have done so
in the past. These "uncertain" circumstances must
consequently be taken into account in a fair and realistic manner by
increasing or decreasing the plaintiff's damages during the
quantification process. If the relevance of a positive contingency is
proved it will increase the amount of damages to be awarded,
and if
the relevance of a negative contingency is proved, it will decrease
the amount of damages to be awarded.
3
Contingencies are the normal consequences and circumstances of life,
which beset every human being and which directly affect the
amount
that the plaintiff would have earned.
4
[23]
According to Koch, when assessing damages for loss of earnings
or support, it is usual for a deduction to be made for
general
contingencies for which no explicit allowance has been made in the
actuarial calculation. The deduction is in the prerogative
of the
courts. General contingencies cover a wide range of considerations
which may vary from case to case and may include early
death, loss of
employment, promotion prospects, and divorce. He states that the
following are some of the guidelines as regards
general
contingencies: "Normal contingencies" as deductions
of 5% for past loss and
15% for
future loss; Sliding scale: 1/2%
per year to retirement age, i.e. 25% for a
child, 20% for a youth and 10% in middle age.
5
[24]
Contingencies are used as method of adjusting the loss suffered by a
plaintiff according to the circumstances of each case.
The purpose of
the deduction is to arrive at the most appropriate estimate of a
plaintiff's loss whilst ensuring that the award
is fair and equitable
to both parties. To this end actuarial calculations are a useful
guide for establishing the quantum and assist
the court in the
exercises of its discretion.
[25]
It was contended by the defendant that the evidence of Dr Ogilvy and
Ms Auret- Besselaar regarding S.'s current performance
at school
should be ignored as inadmissible hearsay evidence as neither Ms
Boysen nor Ms Goddard taught him in grade 4. I will
ignore that
evidence for the purpose of this judgment. However, both Dr Ogilvy
and Ms Aure-Besselaar conducted independent assessments
of S. and
deferred to the opinions of other experts which were accepted by this
court.
[26]
The defendant contended that the evidence of Auret-Besselaar was
not reliable as she is an industrial psychologist and
a person best
suited to give the opinion was an educational psychologist. The
defendant also took issue of the fact that Auret-Bessellat
had not
considered S.'s latest school report. Her response was that she did
not have to be an educational expert in order to give
the opinion as
she was also a counselling psychologist and her expertise also
involved career guidance.
[27]
She stated that an educational psychologist is not the only person
who is qualified to give an opinion on education. She was
of the view
that educational psychologist expertise was limited to schooling
issues whilst neuropsychologist and neurologist opinions
were
holistic and concerned broader issues inclusive of education. Their
opinion is superior to that of an educational psychologist
as their
scope of practice include aspects dealt with by educational
psychologist. Ms Auret-besselaar deferred to the opinion
of Dr Reid
who is a neurologist. She stated that the school report is not the
only factor to be considered but issues such as family
background,
the school system and numerous other factors were important
considerations.
[28]
In
M
enday
v Protea Assurance
Co Ltd
6
it was stated that: "In essence the function of an expert is
to assist the Court to reach a conclusion on matters on which the
Court itself does not have the necessary knowledge to decide. It is
not the mere opinion of the witness which is decisive but his
ability to satisfy the Court that, because of his special skill,
training or experience, the reasons for the opinion which
he
expresses are acceptable...
Nonetheless
the Court, while exercising due caution, must be guided by the views
of an expert when it is satisfied of his qualification
to speak with
authority and with the reasons given for his opinion . . . . . . . .
The expert must either himself have knowledge
or experience in the
special field on which he testifies (whatever general knowledge he
may also have in pure theory) or he must
rely on the knowledge or
experience of others who themselves are shown to be acceptable
experts in that field."
[29]
The defendant deemed it not necessary to call its own experts. What
the defendant seeks to do is to criticise the evidence
of the
plaintiff's experts without presenting its own expert evidence.
Counsel for the defendant tried his best to discredit the
expert
evidence presented on behalf of the plaintiff. His argument was not
supported by any expert evidence or opinion. Good argument
without
factual basis may amount to mere conjecture and does not assist the
court in unravelling the disputed issues. Good argument
alone has its
own limitations and cannot ordinarily be used to dispense with sound
expert knowledge or opinion.
[30]
The defendant contended for a 50% contingency deduction. One must
always bear in mind that even though contingencies are only
applied
after the income that the plaintiff will lose in the future has been
determined, actuarial assumptions and contingencies
are based on
available evidence, in particular the experts' evidence regarding the
consequences of the accident on the life of
the plaintiff and can
thus not be properly determined in isolation thereof. In
Union and
National Insurance
Co.
Ltd v Coetzee
7
the court held that it must be established that the disability
gives rise to a patrimonial loss, which in turn will depend on the
occupation or nature of the work which the Plaintiff did before the
accident, or would probably have done if he had not been injured.
In
the absence of appropriate supportive evidence the submissions made
by the defendant are of little help to the court.
[31]
In
Coopers
(SA) (Pty) Ltd
v Deutsche
Gesellsch
a
ft Fur Schadlingkampfung
Mbh
8
it was held that an expert's opinion represents his reasoned
conclusion based on certain facts on
data,
which are
either common cause, or established by his own evidence or that of
some other competent witness. Except possibly where
it is not
controverted, an expert's bald statement of his opinion is not of any
real assistance. Proper evaluation of the opinion
can only be
undertaken if the process of reasoning which led to the conclusion,
including the premises from which the reasoning
proceeds, are
disclosed by the expert.
[32]
Ms Auret-Bessellar's testimony does not amount to
a mere bald statement or
conjecture. It
is based on her assessment of S. and the input of other experts. She
has 27 years of experience in which she has
completed approximately
5000 assessments pertaining to employment issues, job analysis,
selection, promotions, career development,
job suitability,
remuneration and incentive design. For the past twelve years she has
specialized in medico legal employment
assessments and expert
witness testimony in the High Courts of South Africa. She has given
expert evidence pertaining to loss of
earnings in personal damages
claims, loss of support and employability assessments in maintenance
claims.
[33]
Ms Auret-Besselaar's undisputed opinion is that S. would have
probably started work at age 19 and retired at age 65. This estimates
a working life of 46 years. I am of the view that applying a
contingency deduction on the sliding scale would be most appropriate
given the age of S.. In the circumstances I am of the view that a
contingency deduction of 23% calculated at 1/2
%
of what
would probably have been his estimated working life of 46 years would
be fair and equitable to the both parties. Consequently
an amount
R2 189 110-00 awarded as damages for his loss of earnings or
loss of earning capacity.
In
the circumstances the following is ordered:
THE
UNDERTAKING
1.
The defendant shall furnish the plaintiff with an undertaking in
terms of section 17(4)(a) of the Road Accident Act 56
of 1996 in
respect of 100% of the costs relating to the future accommodation of
the plaintiff/the minor in a hospital or nursing
home or treatment of
or rendering of a service or supplying of goods to the plaintiff/the
minor after the costs have been incurred
and on proof thereof and
arising from the collision which occurred on 23 February 2013.
PAST
HOSPITAL AND MEDICAL EXPENSES BY STATE SERVICE PROVIDERS
2.
The defendant indemnifies the plaintiff against any claims by
suppliers in respect hereof.
THE
CAPITAL
3.
The defendant is ordered to pay the plaintiff the sum of R3 389
110-00 (the capital) by way of a lump sum payment within 14 days
from
this order, by way of electronic transfer to the trust account ,
details of which are set out hereunder (the capital payment).
4.
The capital is made up as follows;
4.1
Loss of earnings
I
earning capacity: R 2 189 110-00, as
determined by the court.
4.2
General damages: R l 200 000-00, as settled by the parties
on 09 June
2015.
COSTS
5.
The defendant shall pay the plaintiff's taxed or agreed High Court
Scale party and party costs,
including for the sake of clarity, but
not limited to, the costs of plaintiff's instructing attorneys,
Adendorff Incorporated in
Cape Town and correspondent attorneys,
Savage Jooste and Adams in Pretoria, as well as the costs set out
hereunder:
6.
The plaintiff shall, in the event that the costs are not agreed,
serve the notice of taxation on the defendant's attorney of record.
7.
The plaintiff shall allow the defendant 14 (fourteen) calendar
days to make payment of the taxed costs.
GENERAL
COSTS
8.
Any taxed costs or agreed costs incurred after the date of this
order in obta ining payment of any of the amounts referred to herein.
EXPERT
WITNESSES
9.
The taxed or agreed qualifying expenses and reservation fees of
the experts listed in this paragraph 9, the taxed or agreed costs
attached to the procurement of the medico legal and other reports as
well as joint expert minutes of the experts, including x-rays,
MIR
scans and Pathology reports, as well as home and work visits.
9.1
Dr Johan Reid (neurologist);
9.2
Dr Dale Ogilvy (speech and language pathologist);
9.3
M Truter (occupational therapist);
9.4
Elspeth Burke (psychologist);
9.5
Petra Coetsee (architect);
9.6
Esther Auret-Besselaar (industrial psychologist);
9.7
Alex Munro (actuary).
TRAVELLING,
ACCOMMODATION AND RELATED COSTS
10.
The defendant shall be liable to pay the actual travelling,
accommodation and related costs incurred as follows:
10.1
In respect of the plaintiff attending medico
legal examinations
with expert witnesses in Cape
Town.
10.2
In respect of the plaintiff's legal representative travelling from
Cape Town to Pretoria
and back to conduct the hearing on 9 June 2015
and on 17 June 2015.
10.3 In
respect of the plaintiff and her husband travelling from Cape Town to
Pretoria to attend and testify at the
hearing on 9 June 2015 and on
17 June 2015.
10.14
In respect of Dr J Reid travelling from Cape Town to Pretoria
to attend and testify at the hearing on 9 June 2015.
10.15
In respect of Dr 0 Ogilvy, E Auret-Besselaar and Alex Munro
travelling from Cape Town to Pretoria to attend and testify
at the
hearing on 9 June 2015 and on 17 June 2015
COUNSEL'S
FEES
11.
The full fees of the plaintiff's counsel Adv. A Laubscher
(senior junior) and Adv C Cawood (junior).
FEES
OF THE INTERPRETER
12.
The full fees of the plaintiff's Xhosa interpreter.
PAYMENT
PROVISIONS
13.
Payment of the capital amount as reflected above shall be effected
within 14 days from this order (the capital due date) by
way of
electronic transfer into the plaintiff's attorneys trust banking
account, details of which are listed herein below.
14.
Payment of the taxed or agreed costs reflected above shall be
effected within 14 days of agreement or taxation (the costs due date)
and shall be effected by way of electronic transfer into the
plaintiff's attorneys trust banking account, details of which are
listed herein below:
15.
Should the capital and/or the costs not be paid by the relevant
due date(s), the defendant will be liable for interest thereon at
the
prescribed statutory rate.
PLAINTIFF'S
ATTORNEYS
TRUST
BANKING
ACCOUNT
16.
Bank: First National Bank Account
Name:
Adendorff Inc Branch
Name:
Adderley Street
Branch
Code: 201-409
Account
Number: [.....].
__________________________
A
L C M LEPHOKO
(ACTING
JUDGE OF THE HIGH COURT)
Heard
on: 17 June 2015.
Judgment
delivered on: 07 July 2014
For
the Plaintiff: Adv: A Laubscher, with him, Adv C Cawood
Instructed
by: Adendorff Attorneys, Cape Town; Savage Jooste & Adams
Attorneys, Pretoria.
For
the Defendant: Adv F Makita Instructed by: Tau Phalane Inc, Pretoria.
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
AT
PRETORIA ON WEDNESDAY 8 JULY 2015
BEFORE
THE HONOURABLE JUSTICE
Lephoko (AJ)
Case
no: 37019 12014
In
the matter
between:
N.
S.
obo
S.
Plaintiff and
THE
ROAD
ACCIDENT
FUND
Defendant
ORDER
HAVING
HEARD COUNSEL AND EVIDENCE ON WEDNESDAY 17 JUNE 2015, IN RESPECT OF
THE PLAINTIFF'S CLAIM FOR DAMAGES, AS SET DOWN FOR HEARING
IN RESPECT
OF THE QUANTUM AS FROM 9 JUNE 2015 AND THEN POSTPONED TO 17 JUNE 2015
DUE TO A SHORTAGE OF JUDGES, THE CLAIM FOR FUTURE
LOSS OF EARNINGS AS
DETERMINED BY THE COURT (THE OTHER QUANTUM ISSUES HAVING BEEN SETTLED
BY THE PARTIES), IT IS ORDERED THAT:
THE
UNDERTAKING
1.
The Defendant shall provide an undertaking in terms of Section
17(4)(a) of the Road Accident Fund Act 56 of 1996 ("the
undertaking"), to compensate the Plaintiff/the minor for 100%
(one hundred percent) of the costs relating to the future
accommodation
of the Plaintiff/the minor in a hospital or nursing
home or treatment of or rendering of a service or supplying of goods
to the
Plaintiff/the minor after the costs have been incurred and on
proof thereof and arising from the collision which occurred on 23
FEBRUARY 2013.
PAST
HOSPITAL
AND
MEDICAL EXPENSES
BY
STATE SERVICE
PROVIDERS
2.
The Defendant indemnifies the Plaintiff against any claims by
suppliers in respect hereof.
THE
CAPITAL
3.
The Defendant is ordered to pay to
the Plaintiff the amount of
R 3 389
110,00
("the
capital") by way of a lump sum payment within 14 calendar days
from this Order, by way of electronic transfer to
the trust account,
details of which are set out hereunder ("the capital payment").
4.
The capital is made up as follows:
4.1
Loss of earnings
I
earning capacity - as
determined by the Court – R
2189 110,00.
4.2
General damages - R1 200 000,00 - as settled by
the parties on 9 June
2015.
COSTS
5.
The Defendant shall pay the Plaintiff's taxed or agreed High Court
Scale party and party costs, including for the sake of clarity,
but
not limited, to the costs of the Plaintiff's instructing attorneys,
Adendorff Incorporated in Cape Town and the correspondent
attorneys,
Savage Jooste and Adams in Pretoria, as well as the other costs
set out hereunder.
6.
The Plaintiff shall, in the event that the costs are not agreed,
serve the Notice of Taxation on the Defendant's attorney of
record.
7.
The Plaintiff shall allow the Defendant 14 (fourteen) calendar days
to make payment of the taxed costs.
GENERAL
COSTS
8.
Any taxed or agreed costs incurred after the date of this order
in obtaining payment of any of the amounts referred to
herein.
EXPERT
WITNESSES
9.
Regarding the expert witnesses listed hereinbelow ("the
experts"), the taxed or agreed qualifying expenses and
reservation
fees of the experts listed in paragraph 10 below, the
taxed or agreed costs attached to the procurement of the medico legal
and
other reports as well as joint expert minutes of the experts,
including x-rays, MRI scans and Pathology reports, as well as home
and work visits.
10.
The experts are:
10.1
Dr J Reid (neurologist) (RAF4 and expert report).
10.2
Dr D Ogilvy (speech and language pathologist).
10.3
E Burke (psychologist).
10.4
M Truter (occupational therapist).
10.5
P Coetsee (architect).
10.6
E Auret-Besselaar (industrial psychologist).
10.7
Alex Munro of Munro Consulting (Actuary).
TRAVELLING,
ACCOMMODATION
AND
RELATED
COSTS
13.
The Defendant shall be liable
to pay the actual
travelling, accommodation and related costs incurred as
follows:
13.1
In respect of the Plaintiff attending medico legal examinations with
expert
witnesses in Cape Town.
13.2
In respect of the Plaintiff's legal representatives travelling from
Cape Town
to Pretoria and back to conduct the hearing on 9 June 2015
and on 17 June 2015.
13.3
Regarding the experts listed in paragraphs 11 and 12 above, in
respect of them
travelling from Cape Town to Pretoria to attend and
testify at the hearing on 9 June 2015 and on 17 June 2015.
13.4
In respect of the Plaintiff and her husband travelling from Cape Town
to Pretoria
to attend and testify at the hearing on 9 June 2015 and
on 17 June 2015.
COUNSEL'S
FEES
14.
The full fees of the Plaintiff's two counsel Adv. A Laubscher (senior
junior) and Adv. C Cawood Uunior).
FEES
OF THE INTERPRETER
15.
The full fees of the Plaintiff's Xhosa interpreter.
PAYMENT
PROVISIONS
16.
Payment of the capital amount as reflected above shall be effected
within 14 days from this Order ("the capital due date")
by
way of electronic transfer into the Plaintiff's attorneys trust
banking account, details of which are listed herein below.
17.
Payment of the taxed or agreed costs reflected above shall be
effected within fourteen (14) fourteen days of agreement or taxation
("the costs due date") and shall
likewise be effected by way of
electronic
transfer into the Plaintiff's attorneys trust banking account,
details of which are listed herein below.
18.
Should the capital and/or the costs not be paid by the relevant due
date(s), the Defendant will be liable for interest thereon
at the
prescribed statutory rate.
TRUST
BANKING
DETAILS
19.
The Plaintiff's attorneys' trust banking account details are as
follows:
Bank:
FIRST NATIONAL BANK
Account
Name: ADENDORFF INC.
Branch
Name : ADDERLEY STREET
Branch
Code : 201-409
Account
number: […...]
BY
ORDER OF THE COURT
_____________________
COURT
REGISTRAR
Box
71: Savage Jooste & Adams
Ref
no: M Haasbroek
I
gk
I
MHA 209
Plaintiffs
counsel: Adv A Laubscher (082 658 4112) & Adv C Cawood (083 887
6780).
Defendant's
counsel: Adv F Matika (073 009 7867).
1
Chemical Energy Paper Printing Wood and Allied Workers Union and
Others v CTP and Another (2013) 34 IU 1966 (LC) @ para 105.
2
Filta-Matix (Pty) Ltd v Freudenberg 1998 (1) SA 606 (SCA) at 614B-C;
see also Price NO v Allied-JBS Building
Society 1986 (3) SA
874 (A) at 8820-E.
3
L Steynberg: "Fair" Mathematics in Assessing Delictual
Damages, PER/PELJ 2011(14) 2; see also Southern Insurance v
Bailey
1984 (1) SA 98 (A).
4
Southern Insurance v Bailey 1984 (1) SA 98 (A).
5
The Quantum Yearbook, Robert Koch, 2015, at 120.
6
1976
(1) SA 565 (ECD) at 569B-F
7
1970 (1) SA 295 (A); see also Rudman v Road Accident Fund 2003 SA
234 (SCA) at paras 10 and 11.
8
1976 (3) SA 352 (A) at 371E-G.