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[2014] ZAGPPHC 448
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Smith v Road Accident Fund (5009/2012) [2014] ZAGPPHC 448 (21 May 2014)
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
NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case No:
5009/2012
Date heard: 19
May 2014 until 21 May 2014
Date handed
down: 21 May 2014
In the matter
between:
CATHERINE
SMITH
...........................................................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
................................................................................................................
Defendant
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1] The plaintiff
sustained the following injuries in a motor vehicle collision that
occurred on 15 August 2007:
i) a soft tissue
injury to her neck, which caused numbness in her left arm immediately
after the accident; and
ii) a soft tissue
injury to het thoracic spine.
[2] The plaintiff
was a passenger in the vehicle.
[3] In the present
action, the plaintiff claims compensation for the damages she has
suffered as a result of the aforesaid injuries.
[4] The defendant
conceded its liability to compensate the plaintiff for the damages
she suffered as a result of the collision and
consequently the matter
only proceeded in respect of the quantum of the plaintiffs claim.
[5] The plaintiff
claims damages under the following heads:
i) Past private
hospital
.........................................................................................
R
20 000, 00
ii) Past medical
expenses
....................................................................................
R
60 000, 00
ii) Future medical
expenses
................................................................................
R
100 000, 00
iii) Loss of
earnings / earning
capacity
............................................................
R
3 000 000, 00
iv) General
damages
...........................................................................................
R
250 000, 00
[6] The parties have
agreed that the plaintiffs past medical expenses amounts to R 2
738,00.
[7] The plaintiff
will receive an undertaking in terms of section 17(4) of the Road
Accident Fund Act, Act 56 of 1996, in respect
of any future medical
treatment that is necessitated by the injuries she suffered as a
result of the collision.
[8]
General damages have been agreed between the parties in the amount of
R 250 000, 00.
[9] The issue
pertaining to the plaintiffs loss of earnings and/or earning capacity
remained in dispute between the parties.
[10] The parties
did, however, agree on the following calculation prepared by the
actuary, I B Kramer in respect of the accrued
and prospective value
of the plaintiffs income:
but for the
accident
.................................................
having
regard to the accident
Gross accrued value
of income
…...................................
567
989
...................................................................
31
110
Gross prospective
value of income
…..........................
5 584
260
….......................................................
4
880 478
[11] The parties
agreed on the following contingency deductions:
i) in respect of the
accrued value of income, but for the accident 15% and having regard
to the accident 5%;
ii) in respect of
prospective value of income, 20% for the but for the accident
scenario.
[12] The crux of the
dispute is, therefore, the percentage in respect of contingencies
that should be deducted from the having regard
to scenario pertaining
to the plaintiffs prospective loss of income.
EVIDENCE AND EXPERT
OPINIONS:
[13] The plaintiff,
born on 14 September 1988,was an apprentice hair stylist at the time
of the accident. She was 19 years of age.
[14] At the time of
the collision the plaintiff was employed as an apprentice hair
stylist. Subsequent to the collision she recuperated
for a period of
three months whereafter she returned to work.
[15] On a conspectus
of the evidence of the plaintiff, Ms Kaveberg, an occupational
therapist and Mr Brett Tompsett, the plaintiffs
employer at the time,
it is evident that the plaintiff, although she completed her hair
stylist diploma, will not be able to continue
in her career as a hair
stylist.
[16] Consequently
the plaintiff has embarked on a career path in accounting, which
career option is, on the evidence, sedentary
of nature and more
suitable to the plaintiffs present physical condition.
[17] A career in
accounting will entail that the plaintiff is mostly seated in front
of computer. Making use of the necessary occupational
adaptations,
the plaintiffs back, neck and shoulder problems should abate to such
an extent that she will be able to cope physically
with her work.
[18] According to ms
Klaveberg, the plaintiff will, however, still need to take breaks
from time to time in order to relax her back
and to do stretching
exercises.
[19] One further
aspect that is of concern, is the fact that the plaintiff suffers
from serious headaches when she studies. I presume
that the headaches
are caused by either her concentrating more and/or the stress
associated with examinations.
[20] Dr Raath, a
pain management practitioner, concluded as follows in respect of the
plaintiffs condition:
'It
is my opinion that this patient has whipiash associated disorder or
chronic whiplash disorder which is seriously decreasing
her quality
of life and decreasing her ability to function and to earn a living a
she is only 25 year old. She has had to already
leave one profession
because of this pain and she is battling to qualify herself for
another career and so this pain is totally
decreasing her quality of
life and decreasing her career prospects. Therefore this needs to be
addressed and the way to address
it is as mentioned above and these
procedures needs to be performed regularly over the rest of her life,
it might get less frequent
as she gets older, but these will reduce
her pain to the extent that she can function normally. These might
not get her absolutely
pain free but it will definitely give her pain
reduction and will definitely reduce the amount of pain medication
she needs to
ingest in order to control pain.
/\s
we know, long term
use of pain medication is very detrimental to the kidneys, stomach
and liver."
[21] Although the
plaintiff will be able to cope with her new career path, she remains
an unequal competitor due to her chronic
pain syndrome.
[22] Save for the
normal contingencies associated with an unsure future, the fact that
the plaintiff will remain a vulnerable employee
needs to be taken
into consideration.
[23] Mr van Tonder,
counsel for the plaintiff, suggested a 27,5% contingency deduction in
this regard.
[24] Ms Vorster,
counsel for the defendant, argued that a 25% deduction would suffice
in the circumstances.
[25]I
am of the view that a 25% deduction is too conservative, if one have
regard to the facts set out
supra.
[26] I agree with mr
van Tonder, that a 27,5% deduction will fairly and adequately
compensate the plaintiff in the circumstances.
ORDER
I grant an order in
terms of the draft attached hereto and marked "X".
JANSE VAN
NIEUWENlHUlZEN
JUÚGE OF
THE GAUTENG HIGH COURT, PRETORIA
Applicants’
attorneys: Levin Van Zyl Incorporated
c/o Vorster
& Brandt
Applicants
counsel: Adv Hugo Van Tonder
Respondent
attorneys: Dyason incorporated
Respondent
counsel: Adv A Vorster
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, PRETORIA
Case No.: 5009/12
BEFORE THE
HONOURABLE JUDGE JANSE VAN NIEUWENHUIZEN
ON THIS THE 21
st
DAY OF MAY 2014
In the matter
between:-
SMITH,
CATHERINE
.........................................................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
...............................................................................................................
Defendant
ORDER
It is ordered that:
1. The defendant
shall oav to the Dlaintiff the amount of R 1635 035, 00 which amount
shall be paid into the plaintiffs attorneys’
bank account with
the following details:
Name of Account
Holder: Levin Van Zyl Inc.
Bank Name :
Nedbank
Bank Branch:
Business Northrand
Account Type:
Trust Account
Account Number:
1[...]
Branch Code:
1[...]
2.
The Defendant shall pay interest on the amount referred to in
paragraph 1 above at the rate of 15,5%
per
annum
fourteen
days from date of judgement/settlement to date of final payment.
3. The Defendant
shall furnish the Plaintiff with an undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act, no 56 of 1996
, which
undertaking shall cover 100% (ONE HUNDRED PERCENT) of the costs of
future accommodation in a hospital or a nursing home
or treatment of
or rendering of a service or supplying of goods to Plaintiff arising
out of the injuries sustained by her in the
motor vehicle collision
which occurred on the 15 August 2007.
4. The Defendant
shall pay the taxed or agreed party and party costs of the Plaintiff
in this action, including any costs attendant
upon the obtaining of
the payment of the amounts referred to in paragraph 1 supra, and such
costs shall include the qualifying
and/or preparation fees, if any,
addendum reports, joint minutes, as approved by the taxing master of
the following experts:
(i) orthopaedic
surgeon, Dr Enslin (attended Court on 20 May 2014);
(ii) occupational
therapist, Kim Kaveberg (attended Court on 16, 19 and 20 May 2014);
(iii) industrial
psychologist, Ms C Du Toit (attended Court on 21 May 2014);
(iv) chronic pain
specialist and anaesthesiologist, Dr Raath;
(v) neurosurgeon, Dr
J Earle;
(vi) clinical
psychologist, Dr J Watts;
(vii)
actuary,
Mr I Kramer.
and Counsel’s
fees, and subject to:
4.1. The plaintiff
serving the bill of costs on the defendant’s attorneys of
record; and
4.2 The defendant
shall be allowed 14 (fourteen) days for payment of the plaintiff’s
bill of cost after allocatur.
5. The Plaintiff
does not have a contingency fee agreement with his attorneys of
record.
BY ORDER
REGISTRAR