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[2012] ZAGPPHC 205
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Iershaad v Road Accident Fund (33182/2011) [2012] ZAGPPHC 205 (7 September 2012)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH AND SOUTH PROVINCIAL DIVISION)
CASE
NO: 33182/2011
DATE:
7 SEPTEMBER 2012
In
the matter between
ADAM
IERSHAAD
…............................................................................................
PLAINTIFF
And
ROAD
ACCIDENT
FUND
…................................................................................
DEFENDANT
JUDGMENT
LI
VORSTER (AJ)
[1]
The plaintiff claims from the defendant damages resulting from a
motor collision which caused personal injury to the plaintiff.
[2]
At the beginning of the trial I was informed by counsel appearing on
behalf or the parties that the merits as well as the amount
of
general damages, past hospital medical and related expenses and past
loss of earnings have been agreed and settled by the parties.
The
future loss of earnings and/or earning potential of the plaintiff and
the question of costs are the only two remaining issues
between the
parties. I have been given a draft order recording the amounts
referred to above and leaving blank any amount in connection
with
future loss of earning and\or earning capacity.
[3]
The sole issue that was debated in court was the question whether a
separate award should be made for future loss of earning
capacity. In
this connection I may mention that an actuarial report was filed of
record and part of the papers before me. That
actuarial report was
drafted and submitted by Algorithm Consultants &. Actuaries. That
report deals with two scenario's. The
first is on the basis that the
plaintiff will be able to complete a bookkeeping certificate and earn
an income on that basis. The
second scenario on the assumption is
that the plaintiff does not complete the book keeping certificate. It
was accepted by counsel
in argument that the first scenario would be
applicable. In terms of that scenario the future loss of income is
calculated in the
amount R 697 029,00.
[4]
The plaintiff also called Esme Noble, and industrial and counselling
Psychologist to give evidence. She also completed a report
which is
part of the papers before me. She recognised the fact that the
plaintiff as a result of his injury and previous history
of drug
abuse is vulnerable as a prospective student and employee. On page 24
of her report she says the following:
"The
writer's of the view that the above possibilities [eventualities,
limitations and implications should be dealt with means
of a higher
post-accident contingency deduction, based on a financial career path
described above..."
[5]
The Actuarial report clearly took into account future disability in
connection with the earning potential of the plaintiff and
applied a
contingency deduction in respect thereof. The question is whether
there can be room for a separate award on the basis
of loss of future
earning capacity. In my view it can not because any future loss in
earning capacity has already been taken into
account by the actuarial
calculation in the application of a contingency factor in its
calculation of future loss of income.
[6]
I have completed the draft order furnished to me. In the missing
figures that I have added I accepted the Actuarial calculations
to
which I have referred above.
[7]
Consequently, I make the following order:
[7.1]
As to the merits of the matter, the Defendant is ordered to
compensate the Plaintiff for 80% (EIGHTY PERCENT) of the Plaintiff's
damages arising from the collision;
[7.2]
In settlement of the Plaintiff's claims the Defendant shall pay the
sum of
R
1,070 396.71, over and above the apportionment set out in paragraph 1
above, which amount is calculated as follows:
[7.2.1.1]
General damages
…..............................................................
R450
000.00
[7.2.1.2]
Past hospital, medical and related expenses
…....................
R148
440.89
[7.2.1.3]
Past loss of earnings
….........................................................
R42
526.00
[7.2.1.4]
Future loss of earnings and/or earning potential
…...............
R697
029.00
Subtotal
…...........................................................................................
Rl,337
995.89
[7.2.1.5]
Less apportionment
(20%)
.....................................................
R
267 599.17
…
..............................................
Total
…...............................................
R
1,070 396.71
[7.2.2]The
Defendant shall pay the aforesaid sum to the Plaintiff's attorneys,
Adams & Adams, which amount shall be payable
by direct transfer
into their trust account, details of which are as follows: Nedbank
Account
numbe : …....
Branch
number : 198765
Pretoria
Ref:
NK/JLLG/S595/10
[7.2.3]The
capital amount referred to in paragraph 2 above will not bear
interest unless the Defendant fails to effect payment thereof
within
14 (FOURTEEN) calendar days of the date of this Order, in which event
the capital amount will bear interest at the rate
of 15,5% per annum
calculated from and including the 15 (FIFTEENTH) calendar day after
the date of this Order to and including
the date of payment thereof.
[7.3]
The Defendant shall furnish the Plaintiff with an undertaking in
terms of Section 17(4)(a), in respect of the costs of the
future
accommodation of the Plaintiff in a hospital or nursing home or
treatment of or rendering of a service or supplying of goods
to the
Plaintiff after the costs have been incurred and on proof thereof,
resulting from the accident that occurred on 11 May 2010,
limited to
80% (eighty percent).
[7.4]
The Defendant must make payment of the Plaintiff's taxed or agreed
party and party costs on the High Court scale which costs
shall
include the following:-
[7.4.1]
The fees of Counsel on senior-junior level, on the High Court Scale;
[7.4.2]
The reasonable taxable costs of obtaining medico legal and related
reports (and addenda thereto, if any) of the following
experts that
were employed by the Plaintiff, as well as any others whose reports
have been furnished to the Defendant:
[7,4.2.1]
Dr VM Close, orthopaedic surgeon, which shall include
the
costs of any radiology performed at her insistence;
[7.4.2.2]
Dr DA Le Roux, vascular surgeon;
[7.4.2.3]
Dr PB White, plastic and reconstructive surgeon;
[7.4.2.4]
Mrs C Pretorius, occupational therapist;
[7.4.2.5]
Mr D Rademeyer, mobility consultant;
[7.4.2.6]
Mr K Truter, clinical psychologist;
[7.4.2.7]
Dr DA Shevel, psychiatrist;
[7.4.2.8]
Prof VU Fritz, neurologist;
[7.4.2.9]
Mrs E Noble, industrial psychologist;
[7.4.2.10]
Mr GA Whittaker, consulting actuary.
[7.4.3]
The reasonable taxable qualification, preparation and reservation
fees, if any, of the Plaintiff's experts set out in paragraph
4.2
above.
[7.4.4]
The costs associated with the holding of meetings and the preparation
of joint minutes between the following opposing experts:
[7.4.4.1]
Dr Close and Dr JJL Heymans;
[7.4.4.2]Mrs
Pretorius and Mrs B Ngwato;
[7.4.4.4]
Mrs Noble and Mrs Karin Pulles of Dr Willie Pretorius &
Associates.
[7.4.5]
The reasonable taxable transportation costs incurred by the Plaintiff
in attending medico-legal consultations with the parties'
experts, in
such amounts that the Taxing Master may allow;
[7.4.6]
The above costs will also be paid into the aforementioned trust
account of the Plaintiff's attorneys of record.
[7.5]
The following provisions will apply with regards to the determination
of the aforementioned taxed or agreed costs:-
[7.5.1]The
Plaintiff shall serve the notice of taxation on the Defendant's
attorney of record;
[7.5.2]The
Plaintiff shall allow the Defendant 7 (SEVEN) court days to make
payment of the taxed costs from date of settlement or
taxation
thereof;
[7.5.3]Should
payment not be effected timeously, Plaintiff will be entitled to
recover interest at the rate of 15.5% on the taxed
or agreed costs
from date of allocator to date of final payment.
LI
VORSTER
ACTING
JUDGE IN THE HIGH COURT
Date
heard: 31 AUGUST 2012
Date
judgment: 7 SEPTEMBER 2012