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[2012] ZAGPPHC 321
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Dithebe obo N.P.D v Road Accident Fund (42251/2011) [2012] ZAGPPHC 321 (29 November 2012)
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No: 42251/2011
DATE:29/11/2012
In
the matter between:
DITHEBE.
MOTETEKOANE MARIA obo NPD
…....................................
Plaintiff
and
ROAD
ACCIDENT FUND
…..........................................................................
Defendant
JUDGMENT
RANCHOD
J:
[1]
The plaintiff in this matter sues in her
personal capacity as well as in her representative capacity as the
mother and natural guardian
of her minor child NPD born on 12 May
1998 ('the child').
[2]
On 20 November 2007, at approximately
19h30, a motor vehicle collision ("the collision") occurred
in Phakamile Street,
Jouberton, between a motor vehicle with
registration
letters and numbers BXK 061 GP, driven by T A Molefe ("the
insured driver") and the child who was a pedestrian
at the time.
[1]
From the
record it appears that the child sustained a growth plate injury and
fracture through her distal right femur, multiple
lacerations,
contusions and abrasions, and psychological shock and trauma.
[2]
Shortly before the commencement of the
trial the defendant conceded 100% liability on the merits of the
claim. The only issue remaining
was the determination of the quantum
of plaintiffs damages.
[3]
When the
trial commenced I was informed that past medical expenses and general
damages had been settled leaving only the issue of
future loss of
income in dispute. I was also informed that whereas the plaintiff had
obtained her expert reports timeously, the
defendant had failed to do
so. In fact the defendant only obtained its expert reports less than
two weeks before the trial. I was
informed by plaintiff's counsel
that due to the late filing of the reports by the defendant they were
not before court. However,
plaintiff accepts the report of the
defendant's Industrial Psychologist Ms Lowane-Mayayise as she relies
upon the medico-legal
report by Ms Noble (plaintiff's expert) in
arriving at her conclusions.
[4]
I was also informed that the only issue
relating to the quantum for future loss of income was the
contingencies to be applied and
not so much the amount as calculated
by the plaintiff's actuary, Mr Whittaker.
[5]
The plaintiff then led the evidence of
an educational psychologist Ms Elmarie Prinsloo. The defendant did
not lead any evidence.
In the result, I have before me the
plaintiff's expert's evidence on quantum and that of Ms
Lowane-Mayayise written report.
[6]
Plaintiffs counsel's submission was that
the actuarial report prepared by Mr Whittaker cannot be faulted and I
should therefore
accept the calculations as set out in his report.
[7]
Defendant's counsel submitted that even
though the medico-legal reports of plaintiff's experts indicated that
the child will in
all likelihood attain a level of education that
would prepare her for semi-skilled work, I should nevertheless find
that she would
be in fact qualified only to do unskilled work.
However, asked as to the basis on which the submission was made
defendant's counsel
could not provide any, other than a reference to
the minor child's pre-accident school performance, more in particular
at the Roosheuwel
primary school. However, I have considered Ms
Prinsloo's evidence and her medico-legal report. I am of the view
that that aspect
has been adequately taken into account.
[8]
Defendant's counsel then submitted that
the general contingency deductions of 20 per cent pre-morbid and 50
per cent post-morbid
suggested by the actuary, Mr Whittaker, appeared
to be in order. However, counsel submitted, a further 50% deduction
should be
made on the net amount of R488,267.00 arrived at by the
actuary. Once again, pressed on this point, counsel was unable to
substantiate
the submission by reference to any expert or other
acceptable evidence.
[11]
In all the circumstances, and having considered the evidence of Ms
Prinsloo and the other relevant opinions of the plaintiffs
experts
which were referred to by her as well as that of defendant's expert
referred to earlier, I am satisfied that a proper case
has been made
out for awarding an amount of R488,267.00 for the child's future loss
of income as calculated by Mr Whittaker.
[12]
In the result I make the following order:
1.
The defendant shall pay:
1.1
Past medical expenses RI0,163.40;
1.2
Future
loss of income R488,267.00;
1.3
General damages R250,000.00.
2.
The defendant is to furnish the
plaintiff with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
in terms of which the defendant
undertakes to pay the costs of future accommodation of the minor
child in a hospital or nursing
home or treatment of or rendering of a
service or supplying of goods to her pursuant to the injury sustained
by her in a motor
vehicle collision which occurred on 20 November
2007, after the costs have been incurred and on proof thereof.
3.
The defendant is to pay plaintiff's
taxed or agreed party and party costs on the High Court scale which
costs shall include the
following:
3.1
The fees of senior-junior counsel on the
High Court scale;
3.2
The reasonable taxable costs of
obtaining all expert, medico-legal, addendum medical legal and
actuarial reports from the plaintiffs
experts which were furnished to
the defendant;
3.3
The reasonable taxable preparation and
reservation fees, if any, of the following experts of whom notice has
been given, being:
3.3.1
Prof. H Myburgh
3.3.2
Ms A Greef
3.3.3
Mr P B White
3.3.4
Miss E Prinsloo
3.3.5
Miss E Noble
3.3.6
Mr G A Whittaker.
(In
this regard it is to be noted that the only expert present in court
and who gave oral evidence was Ms E Prinsloo.)
3.4
The reasonable taxable transportation
costs incurred by the plaintiff in attending medico-legal
consultations with the parties'
experts as well as the court
proceedings, subject to the discretion of the taxing Master;
3.5
The reasonable taxable transportation
and other costs incurred by the plaintiffs legal representatives in
conducting an inspection
in loco at the scene of the collision,
subject to the discretion of the taxing Master.
4.
The
following provisions will apply to the determination of the
aforementioned taxed or agreed costs:
4.1
The
plaintiff shall serve the notice of taxation on the defendant's
attorneys of record;
4.2
The plaintiff shall allow the defendant
seven court days to make payment of the taxed costs from date of
settlement or taxation
thereof;
4.3
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 the allocatur to
date of final payment.
5.
The defendant will not be liable for
interest on the amounts referred to in 1 above provided that same is
paid timeously, failing
which interest at the rate of 15,5% per annum
will be payable by the defendant from the date 14 days after the date
of judgment.
6.
All amounts to be paid in terms of this
order shall be paid into the plaintiff's
attorneys'
trust account:
Adams
& Adams Trust Account Nedbank, Pretoria Branch Branch code:198765
Account number: …....8902 REF: MMM/LEB/ksk/LT45.
N
RANCHOD
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for Plaintiff: Adv. E. Milanzi
Instructed
by: Adams & Adams Incorporated
Counsel
for Defendant: Adv. M. Veldsman
Instructed
by: Sekati Monyane & Partners
Judgement
Handed Down: 29/11/2012