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[2014] ZAGPPHC 100
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Botha v Road Accident Fund (50201/2012) [2014] ZAGPPHC 100 (7 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
number: 50201/2012
Date:
7 March 2014
In the matter
between:
L
BOTHA
.....................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
....................................................
Defendant
JUDGMENT
PRETORIUS J.
[1] This is an
action against the Road Accident Fund for damages and ancillary
relief due to a collision.
[2] In this action
the merits of the matter were conceded. The court only has to deal
with the quantum. The first day of trial the
case stood down as no
judge was available. It is important to note that on 28 February
2014, the first day of trial, the defendant's
attorney had not
received any instructions from his client.
[3] This caused the
plaintiffs attorney to address a letter to the defendant drawing the
defendant's attorney's attention to the
fact that the defendant's
attorney had not yet signed the pre-trial minute. Furthermore it was
recorded that the defendant had
not appointed any experts to deal
with the quantum in the matter. The attorneys for the defendant were
warned in this letter that
on the day when the trial commences, a
punitive costs order will be sought.
[4] On 3 March 2014,
the case was allocated to me. On the morning of 3 March 2014, the
defendant conceded the merits of the trial.
General damages were
conceded in an amount of R600,000.00; an undertaking was granted in
terms of
section 17(4)
of the
Road Accident Fund Act 56 of 1996
.
These concessions were made prior to the court’s commencement.
[5] This court has
to decide past medical expenses and the question of loss of income.
[6] Ms Botha, the
plaintiffs evidence was that she had been a teacher for approximately
21 years. She taught English to the seniors
and art to the juniors.
Her last employment was in 2005, when she had been teaching as a
substitute teacher since 2000. It was
explained that a substitute
teacher did not have a permanent post, but could teach as a
substitute teacher permanently, if there
were posts available for
substitute teachers.
[7] Ms Botha stopped
teaching, according to her evidence, primarily to help her son who
had learning difficulties. She worked for
her husband during the
mornings, but only to drive the workers and some administrative work.
Her intention had always been to go
back to teaching once her son had
completed matric. Her evidence was that at first she would have had
to teach as a substitute
teacher until a permanent post may have
become available. She testified that she would have gone back to
teaching fulltime.
[8] She confirmed
that the contents of the bundle of medical expenses related to all
medical treatment she had received due to the
injuries sustained in
the collision, which totalled R705,586.27. She was not cross-examined
on this amount and the court accepts
her evidence. The court accepts
her evidence as to the reason why she had stopped teaching. It is
clear from her evidence that
she had always intended to go back
fulltime to teaching and that is what she would have done, once her
son had completed matric
and she had not been involved in the
collision.
[9] It is so that Ms
Botha had not indicated to Dr Strydom, the industrial psychologist,
that she had stopped teaching to enable
her to assist her son, but
from the report of Ms Karin Havenga, the psychologist it is clear
that she reported:
"Mrs Botha is a
qualified teacher, but resigned in 2005, in order to focus on her
youngest son’s schooling. Mrs Botha
states that her son no
longer requires her support."
[10] It is so that
Ms Botha had attended numerous experts appointments, as she had
explained and according to her it is possible
that she forgot to
mention to Dr Strydom that she primarily stopped teaching to enable
her to help her son who had huge learning
difficulties. She only
mentioned that she was working for her husband.
[11] Dr Strydom
confirmed in evidence that it would be hard to find a permanent
teaching post immediately, but that the plaintiff
would have been
able to find a post as a substitute teacher. She further explained
that such a post could have lead to a permanent
position, when such a
permanent post became available.
[12] The defendant
did not lead any evidence. The only evidence I have to consider is
that of the plaintiff. I find that the plaintiff's
intention was
clearly to find a permanent position as a teacher, whilst teaching in
a substituted post, as soon as her son had
finished school.
[13] I can only rely
on Mr Sauer's actuarial calculations, as the defendant did not supply
any evidence. Mr Dredge, for the plaintiff,
correctly argued that a
higher contingency deduction should apply due to the fact that the
plaintiff would most probably first
have had to teach in a
substituted post. I find that a 15% contingency deduction in these
circumstances should be applied.
[14] Mr Kokela, for
the defendant could not convince the court not to award attorney and
client costs as there was no explanation
as to why the necessary
concessions were only made on 3 March 2014, although summons had been
issued on 29 September 2012.
[15] The defendant
did not endeavour to get its own experts and waited to the last
minute to make certain concessions, not including
past medical
expenses, although there was no evidence or cross examination to
dispute the plaintiff’s version at all.
[16] In the
circumstances a cost order on the attorney and client scale is
appropriate.
[17] I make the
following order.
1. The defendant to
pay the plaintiff’s attorney of record in the sum of
R3,747,135.47 as well as the taxed or agreed costs
on an attorney and
client scale;
The plaintiff’s
attorney’s trust account details are as follows:
Account holder: Van
Zyl Le Roux Inc
Branch: ABSA Van der
Walt Street
Brach Code: 3…………………
Type of account:
Trust Account
Account number:
0…………………………………..
In the event of
default on the above payment, interest shall accrue on such
outstanding amount at 15.5% per annum calculated from
14 (fourteen)
days after date of the court order until the date of payment.
2. The defendant
shall furnish the plaintiff with an undertaking in terms of Section
17(4)(a) of Act 56 of 1996, in respect of future
accommodation of the
plaintiff in a hospital or nursing home or treatment of or the
rendering of a service or supplying of goods
to the plaintiff (and
after the costs have been incurred and upon submission of proof
thereof) arising out of the injuries sustained
in the collision which
occurred on 9 October 2011. If the defendant fail to furnish the
undertaking to the plaintiff on due date,
the defendant shall
be held liable for
the payment of the taxable party and party additional costs incurred
to obtain the undertaking.
3. Payment of the
plaintiff’s costs on an attorney and client scale shall
include, but not be limited to the following:
3.1 The fees of
Senior Junior Counsel;
3.2 The costs of
obtaining all actuarial- and any other reports of an expert nature,
which were furnished to the defendant;
3.3 The reasonable
taxable qualifying, preparation and reservation fees of all experts,
if any;
3.4 The
above-mentioned payment with regard to costs shall be subject to the
following conditions;
3.4.1 The plaintiff
shall, in the event that costs are not agreed, serve the notice of
taxation on the defendant’s attorney
of record; and
3.4.2 The plaintiff
shall allow the defendant 14 (fourteen) court days to make payment of
the taxed costs.
Judge C Pretorius
Case number :
50202/2012
Heard on : 3
March 2013
For the Applicant
/ Plaintiff : Mr Dredge
Instructed by :
Van Zyl Le Roux INC
For the
Respondent : Adv Kokela
Instructed by :
AP Ledwaba
Date of
Judgment : 7 March 2014