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[2014] ZAGPPHC 440
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K.C.O v Road Accident Fund (47146/2012) [2014] ZAGPPHC 440 (10 June 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:
47146/2012
Date Heard: 3
June 2014
Date Handed down:
10 June 2014
Not reportable
Not of interest
to other judges
In the matter
between.
K[...]
C[...] O[...]
….........................................................................................................................
First
Plaintiff
ADV M VAN DEN
BARSELAAR
in
his capacity as
Curator
ad Litem
to
L[...]-G[...]
D[...] O[...]
and
ROAD
ACCIDENT
FUND
................................................................................................................
Defendant
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1] The first
plaintiff is the father of L[...]-G[...] D[...] O[...]
("L[...]-G[...]"), an adult male scholar born on
[...]. The
first plaintiff instituted action in his personal capacity for past
hospital and medical expenses incurred as a result
of the treatment
of his son.
[2]
The second plaintiff is Michael van den Barselaar N. O., an advocate
who sues in his official capacity as duly appointed
curator
ad litem
for
L[...]-G[...]
[3] L[...]-G[...]
sustained the following injuries in a motor vehicle collision that
occurred on 16 August 2008:
i) a severe head
injury;
ii) nasal fractures,
with resultant deviation of the nasal septum;
iii) a neck injury,
with displacement of the lateral mass of the C1 vertebra on C2, with
ligamentous injuries;
iv) a chest injury,
with resultant right pneumothorax, requiring intercostal drainage;
v) a fracture of the
left femur;
vi) a fracture of
the left tibia;
vii) a fracture of
the right clavicle; and
viii) an open wound
over the left eye.
[4] At the inception
of the trail, I was informed by the parties that the following issues
have been settled:
i) merits, in that
the defendant conceded liability to compensate the first plaintiff
and L[...]-G[...] for the damages that resulted
from the collision;
ii) past hospital
and medical expenses in the amount of R 183 089, 84;
iii) future medical
expenses by means of an undertaking in terms of the provisions of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
;
iv) general damages
in an amount of R 1 000 000, 00.
[5] L[...]-G[...]'s
future loss of earnings, however, remained in dispute.
[6] For purposes of
the determination of L[...]-G[...]'s future loss of earnings, the
defendant conceded the contents of the report
of Louise Schubert, an
industrial psychologist as well as the actuarial calculations by Ivan
Kramer, an actuary, based on the report.
[7] Ms Schubert
provided for two scenarios pertaining to L[...]-G[...]'s prospective
loss of income and Mr Kramer calculated the
loss in respect of the
two scenarios as follows:
but for the
accident
...............................................................
but
for the accident
Basis
A
..................................................................................
Basis
B
Diploma
.................................................................................
Learnership
Gross prospective
value of
income
.............
5 741 524
…...........................................................................
6
051 629
[8] For the purpose
of the calculation of contingency deductions, the parties have agreed
that the prospective loss is R 5 000 000,
00.
[9] The only
remaining issues pertaining to the prospective loss of income are:
i) whether
L[...]-G[...] has retained some residual capacity to work, and
ii) the contingency
deduction to be applied in respect of the prospective loss of income.
[10] Mr Stais SC,
counsel for L[...]-G[...], submitted that L[...]-G[...] did not
retain a residual work capacity. He further submitted
that a 15%
contingency deduction should be applied in respect of the prospective
loss of income.
[11] Mr Badenhorst,
counsel for the defendant, contended that L[...]-G[...] did retain a
residual work capacity and submitted that
the contingency deduction
should be 25%.
Residual work
capacity
[12]
Mr Badenhorst based his submission in respect of L[...]-G[...]'s
residual work capacity,
inter
alia,
on
the following extract from the report of ms Schubert:
"L[...]-G[...]
would probably be limited to performing unskilled work options in the
informal sector
;
at best Taking
into account; his credentials, as well as his significant
accident-related cognitive-, emotional-and behavioural
constraints,
L[...]-G[...] is not considered suited for working on his own (i.e.
working with money). Employment; where he was
able to work for
somebody else, would be very scarce (only 8% of individuals
functioning in the infomial sector work for somebody
else and many
ndividuals/discouraged job seekers are reliant on piece jobs, which
are difficult to secure). L[...]-G[...] could,
for example, as a last
resort,
consider
performing unskilled piece jobs, e.g. as a Gardener, or might be
required to generate an income on the odd occasion, as
an unskilled
worker (labourer/’handyman”).
His
earnings prospects in any viable scenario are; however, perceived to
be poor. In this regard, the bracket between the lower
quartile and
median of an unskilled worker could possibly serve as a reference
(i.e. between R6400 and R16 400 per annum; according
to relevant
survey information presented- as per Quantum yearbook, Koch 2013.)"
[13] The paragraph,
however, continues as follows:
"Considering
the constraints; however, which L[...]-G[...] might face (probably
being reliant on public transport, and as a
Handyman, requiring
various tools), he would probably have a very limited (diminishing)
client base. When taking into consideration
the risk factors
discussed in the various expert reports, particularly considering the
fact that L[...]-G[...] would be prone to
erratic and inconsistent
behaviour and performance levels, L[...]-G[...] might well be
rendered totally unemployable. He might
be a good candidate for
sheltered/sympathetic employment at a facility where his retained
abilities could be put to good use. This
would; however
;
be more for
purposes of creating meaning in his life
,
rather than
securing a sustainable source of income."
[14]
During argument, Mr Badenhorst referred to the unreported decision of
Kollapen J in
Advocate
M. Patel N.O. (on behalf of K.M.) v Road Accident Fund
Gauteng
Division, case number 7464/2010.
[15] The facts of
the matter, in so far as residual work capacity is concerned, are on
par with the facts herein.
[16] In paragraph
11.2.7 (p.7) of the report Kollapen J held as follows:
"While
the prospects of finding a sympathetic employer do exist, they are so
remote in my view that they render K.M.
(the
patient)
unemployable.
In addition, the kind of sympathetic employment Ms Pulles
contemplates has been regarded as largely therapeutic in
nature with
little financial reward
."
[17] In view of the
aforesaid, Kollapen J held that the patient did not retain any
residual work capacity.
[18] The facts
herein lead to a similar conclusion and I find that L[...]-G[...] has
not retained any residual work capacity.
CONTINGENCY
DEDUCTION
[19]
L[...]-G[...] is presently 19 years of age. I have had regard to the
reasoning in
Goodall
v President Insurance
1978
(1) SA 389
W, pertaining to the so-called
"sliding
scale"
approach
in respect of the appropriate contingency deduction for future loss
of income.
[20] Having regard
to L[...]-G[...]'s youth, I am of the view that a 20% contingency
deduction is appropriate in the circumstances.
[21] The award in
respect of future loss of income is therefore R 4 000 000, 00.
ORDER
I grant an order in
terms of the draft attached hereto and marked "X".
JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE
GAUTENG HIGH COURT, PRETORIA
Applicants’
attorneys: De Broglio Inc c/o De Broglio Inc
Applicants
counsel: Adv Stais SC
Adv N Van Den
Barselaar (in his capacity as Curator ad Litem)
Respondent
attorneys: Mr Mphalele
Respondent
counsel: Adv C Badenhorst
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No:
47146/2012
PRETORIA, ON THIS
10
th
DAY OF JUNE 2014
BEFORE THE
HONOURABLE JANSEN VAN NIEWENHUIZEN, J.
In the matter
between:
K[...]
C[...]
O[...]........
.........................................................................................................................
1
st
Plaintiff
ADV.
M. VAN DEN
BARSELAAR
................................................................................................
2
nd
Plaintiff
in
his capacity as Curator-ad-Litem to
L[...]-G[...]
D[...] O[...]
and
ROAD
ACCIDENT
FUND
................................................................................................................
Defendant
DRAFT ORDER
HAVING heard counsel
for the parties, it is ordered that:
1. Defendant shall
pay 1
st
Plaintiff in his personal capacity a capital
amount of R183 089.84 (ONE HUNDRED AND EIGHTY-THREE THOUSAND AND
EIGHTY-NINE RAND
AND EIGHTY-FOUR CENTS) in delictual damages.
2. Defendant shall
pay 2
nd
Plaintiff in his representative capacity as the
duly appointed Curator-ad-Litem on behalf of L[...]-G[...] DANZEL
OOR, born on
[...] ("the Patient") a capital amount of R 5
000 000-00 (five million rand) in delictual damages.
3. The aforesaid
amounts are payable to the Plaintiffs attorneys' trust account, the
particulars of which are:
De Broglio Inc.
Nedbank Business :
North Rand
Account Number :
1[...]
Branch Code : 146
905
Reference : P515
through means of a
direct transfer within fourteen (14) days.
4. Should the
Defendant not pay the aforesaid amount on or before the due date for
payment thereof, Defendant will be liable for
interest on such amount
at the rate of 15.5% per annum from the due date to date of payment,
both days inclusive.
5.
5.1.
The 2
nd
Plaintiffs attorneys of record shall retain the aforesaid amount,
nett of the attorney's agreed fees and disbursements, in an
interest-bearing account in terms of Section 78(2)(A) of the
Attorneys Act, for the benefit of the Patient, pending the
appointment
of a Curator
Bonis
and/or
Curator
ad
Personam
in
terms of Rule 57 on behalf of the Patient.
5.2.
The 2
nd
Plaintiff's attorneys, upon receipt of the capital above, shall
forthwith pay a once off amount of R60,000.00 and thereafter an
amount of R12,000.00 on a monthly basis to the 1
st
Plaintiff, who is his biological father and current caregiver,
pending the appointment of a Curator
Bonis
and/or
Curator
ad
Personam
in
terms of Rule 57 on behalf of the Patient.
6.
Defendant shall furnish the 2
nd
Plaintiff
and/or the Patient with an undertaking in terms of Section 17(4)(a)
of the Road Accident Fund Act, 56 of 1996 ("the
undertaking"),
to reimburse the 2
nd
Plaintiff
and/or the Patient for the cost of the future accommodation of the
Patient in a hospital or nursing home, or treatment
of, or rendering
of a service, or the supplying of goods to him, arising out of the
injuries he sustained in the motor vehicle
accident that occurred on
16 August 2008, after such costs have been incurred and upon proof
thereof. In addition, the undertaking
shall include the costs of
annually obtaining a security bond as required and the costs of the
Curator
Bonis
in
respect of the administration of the estate and the costs of a
Curator
ad
Personam.
7.
The First Plaintiff shall forthwith apply for the appointment of a
curator
bonis
to
the patient in terms of Rule 57.
8. Defendant shall
pay Plaintiffs taxed or agreed party and party costs on the High
Court scale, such costs to include:
8.1. the costs
attendant upon the obtaining of payment of the full amount referred
to in paragraphs 1 and 2 above; and
8.2. the costs of
all 2
nd
Plaintiff's expert medico-legal reports, as well
as the reasonable taxable, qualifying and reservation fees, if any,
of such experts;
and
8.3. the 2
nd
Plaintiff's reasonable travel and accommodation costs to attend the
Defendant's and own experts, the costs of the actuarial report
of Mr.
Ivan Kramer; and
8.4. the taxed or
agreed costs of senior counsel; and
8.5. Plaintiffs are
declared necessary witnesses; and
8.6. the costs
relating to the appointment of the 2
nd
Plaintiff as
Curator-ad-Litem, as well as the reasonable costs of the
Curator-ad-Litem as marked on brief;
8.7.
the costs relating to the application and appointment of a curator
bonis
in
terms of Rule 57.
9. Plaintiff shall,
in the event that costs are not agreed upon, serve the Notice of
Taxation on Defendant's attorneys of record.
10. Plaintiff shall
allow Defendant fourteen (14) Court days after taxation to make
payment of such taxed costs.
BY THE COURT
REGISTRAR