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[2012] ZAKZDHC 49
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Chetty v Road Accident Fund (13347/2007) [2012] ZAKZDHC 49 (7 September 2012)
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
Case Number : 13347/2007
In the matter between:-
LEVESHAN CHETTY
......................................................................
Plaintiff
and
ROAD ACCIDENT FUND
................................................................
.Defendant
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
VAN ZYL, J.:-
The plaintiff claims damages for personal injuries sustained in a
motor collision which occurred on 1 September 2004 at or near
Ridley
Park Road, Malvern in the Durban area. At the time the plaintiff was
riding a motorbike when he was involved in a collision
with a motor
vehicle.
The issue of liability was resolved between the parties and by
agreement the defendant accepted liability for eighty percent
(80%)
of the plaintiff’s proven damages. In the result the trial
proceeded in respect of quantum only.
The plaintiff was born on 1 January 1985. In the collision he
suffered what was described by Dr Nadvi, the neurosurgeon who
treated him from the outset, as severe poly trauma signifying
injuries to many parts of the body. Dr Nadvi, in giving evidence,
broadly described these injuries.
The nature of the injuries are not seriously disputed. They include
an injury to the left side of the chest with the intrusion
of air
into the pleural cavity between the lungs and his ribcage (a left
haemothorax
). This had to be drained by a cardiothoracic
surgeon and healed with permanent scarring. The plaintiff further
suffered abdominal
injuries which required surgery by a general
surgeon and which involved also the removal of the plaintiff’s
ruptured spleen.
The plaintiff suffered a fracture of the right
femur, which required surgery by an orthopaedic surgeon involving an
open reduction
and internal fixation. Although healed there remains
stiffness in rotation of the right lower limb and surgical removal
of the
fixation device will likely be required at some stage.
Dr Nadvi’s main involvement with the injuries sustained by the
plaintiff concerned a brain injury which, whilst not requiring
surgery, was cared for in the intensive care unit (ICU) of the St
Augustine’s Hospital where the plaintiff was treated
for a
period of approximately sixteen days in all. The witness explained
that the plaintiff had not suffered any fracture of
the skull and
that the injury was in the nature of a high velocity injury, causing
the brain to impact inside the skull causing
what is commonly
referred to as a diffuse brain injury.
The assessment of the severity of the plaintiff’s
brain injury was complicated by the treatment which the plaintiff
received
for his other injuries at the same time. According to Dr
Nadvi the severity of brain injuries are generally classified as
being
mild, moderate or severe and in order to make such an
assessment three criteria are employed. The first of these relate to
the
level of consciousness of the patient following the injury. In
this regard the Glasgow Coma Sca
le
(GCS)
is used. This is
a
neurological
scale
that
provides a reliable objective recording of the level of
consciousness of the patient for assessment. A patient is assessed
against the criteria on a scale of fifteen (15), where a score of
three(3) signifies deep unconsciousness and a score of fifteen(15)
signifies full consciousness.
In the present instance the GCS was not useful as a diagnostic tool
because the plaintiff, due also to his extensive other injuries,
was
kept under sedation whilst in ICU.
The second criteria used to assess the severity of a brain injury is
the degree of post traumatic amnesia. That is, the extent
to which
the patient is unable to recall events following upon the event
giving rise to the brain injury. This Dr Nadvi stressed
is a more
subjective test, but is nevertheless used in determining the extent
of an injury. Generally, according to the witness,
any period of
post traumatic amnesia exceeding one week is regarded as indicative
of a severe brain injury. In the case of the
plaintiff the period of
post traumatic amnesia extended to approximately two and a half
(21/2) weeks in that the plaintiff only
started recalling events
after his transfer from ICU to the general hospital ward. Of course,
logically the extent of the plaintiff’s
ability to recall and
thus the reliability of this test, would also be adversely affected
by the fact that he was kept under
sedation whilst in ICU.
Finally, the third measure used to determine the severity of a brain
injury is a
computerised
tomography (
CT
or CAT
)
scan
which
uses
X-rays and a computer to create detailed images of the inside of the
patient’s body. In the case of the plaintiff the
CT scan was
done on the day of the collision and the result indicated an
abnormality in the form of a cerebral oedema, or cerebral
swelling,
which was indicative of a severe brain injury.
One of the unfortunate results of the brain injury in the case of
the plaintiff included excessive ossification of the left elbow.
Dr
Nadvi explained that the severity of the plaintiff’s brain
injury resulted in, what he described as an outpouring of
adrenalin
and other chemical agents. Where, at the same time, the patient in
such a case has also suffered a fracture and in
particular if the
patient is rendered immobile, this causes excessive bony formation
at the locality of the fracture site which
can even penetrate the
surrounding muscle resulting in a condition called
myocitis
ossificans
. That is what occurred in the case of the plaintiff,
with the result that he is left with permanent impaired movement or
stiffness
of the left elbow, with loss of function of the left upper
limb. In addition there also occurred a degree of myocitis
ossification
at the fracture site in the right thigh, with some
pressure symptoms suggesting the possible future need for surgical
intervention.
In the course of his evidence Dr Nadvi observed that the period of
recovery of brain injuries lasted approximately one year,
after
which no further improvement would be expected. In the case of the
plaintiff he considered him fortunate in not being left
with
significant paralysis or speech impediment, but stressed that
generally the problems patients such as the plaintiff would
be
likely to be left with would include those related to cognition,
memory, behaviour, attention span, concentration and mood.
However,
he stressed that these deficits fell within the field of expertise
of the neuropsychologists.
In this regard the plaintiff called Professor T. Lazarus and the
defendant Dr B. A. Bosch. At the end of the day their conclusions
were largely consistent. In argument the defendant did not seriously
dispute the injuries sustained by the plaintiff as a result
of the
collision, but the
sequellae
or extent of the impairment
resulting from the brain injury was the subject of debate and
differences of opinion and emphasis.
The defendant’s main line
of attack centred upon the plaintiff’s drug usage, both before
and after the collision.
At the time of the collision on 1 September 2004 the plaintiff was a
second year student at the Durban Institute of Technology
studying
for a diploma in quantity surveying. In his first year he had passed
five out of seven subjects but did not sit for
examinations at the
end of 2004 due to the injuries sustained in the collision. He
resumed his studies during 2005 and passed
four out of six subjects.
During 2006 he attempted four subject courses, but failed three and
passed only one (Quantity Surveying
II). During 2007 the plaintiff
again enrolled for a repetition of the previous year’s
courses, but was again unsuccessful
and then abandoned his studies.
The picture of the plaintiff which emerged pre-accident was of a
young man who was an average student and who may have taken
an extra
year, or even two, to complete his diploma studies. Post accident he
rallied and achieved initial limited success, but
in circumstances
where he enjoyed strong family and peer support. However, as the
support of friends and fellow students waned,
so did his academic
successes. His sister Aneshree in particular gave graphic evidence
of his impairments at the time following
his discharge from hospital
and how he eventually resumed his studies. Her evidence also cast
light upon the discovery of the
plaintiff’s drug usage and the
decisive steps immediately taken to address the problem.
The essential issue in the debate about drugs was not the nature and
extent of the neuropsychological deficits which the plaintiff
suffered from after the collision, but rather whether such deficits
were attributable to the brain injury sustained during the
collision, or to his drug usage and if the latter, then to what
extent. Dr Bosch in particular sought to highlight the use of
drugs
in this regard.
Having heard to the evidence I am not persuaded that the plaintiff,
prior to the collision, had developed any serious or sustained
drug
usage habit. My impression is rather that of a young male student
who, in company of others, experimented with drug usage,
probably in
a social context. The subsequent discovery of drug usage by the
plaintiff came at a stage where he was suffering
the complex after
effects of the injuries sustained in the collision and his
apparently successful treatment thereafter, coupled
with the strong
family support he enjoyed, suggests that his neuropsychological
deficits are primarily attributable to the brain
injury sustained in
the collision.
It remains, however, to consider the nature and extent of these
neuropsychological deficits in order to determine the issues
which
are in dispute between the parties. The parties reached agreement in
respect of the past medical expenses in the sum of
R177 027-82
and with regard to future medical expenses the defendant will
provide for 80% of the plaintiff’s needs
in terms of an
undertaking in terms of
Section 17(4)
of the
Road Accident Fund Act
56 of 1996
. The contentious areas relate to the determination of the
extent of the general damages suffered by the plaintiff, as well as
of his future loss of income.
Pre-accident the plaintiff was an energetic young man, particularly
fond of swimming and fastidious about his appearance. He
also
achieved a degree of success in competitive swimming. Whilst at
school doing grade 8 he obtained Natal Colours in swimming
and then
obtained his South African Development Colours during Grades 9 and
10. He apparently competed in several provinces and
obtained a
number of prises and awards for swimming, including endurance
events. Other sporting activities included water polo
and life
saving.
A significant number of family members such as uncles, aunts and
cousins embarked upon tertiary studies, are employed in management
or executive positions, or are in business for their own account.
His father attended a diploma course in building science at
the M L
Sultan College, but at the time of the trial was the general manager
of a shipping agency. His mother worked as a part-time
saleslady at
a department store during December holiday periods only, but was
otherwise a housewife. His younger sister Aneshree
attended a
yearlong course in computer science after completing her schooling
and at the time of the trial was employed as a
technical sales
representative by a company marketing civil engineering products. As
such she interacts on construction sites
with professionals, such as
civil engineers and architects, where she also does some on-site
training.
Given the family background and support system and in the light of
the close family relationship which existed pre-accident I
concluded, as already indicated, that the plaintiff is likely to
have successfully completed his diploma in quantity surveying.
Even
after the collision the plaintiff had moderate initial success in
resuming his studies, which is supportive of my conclusion
in this
regard.
Prior to the collision the plaintiff had dabbled with casual work,
mainly in the promotional field, to supplement his income.
After the
collision and once he had sufficiently recovered, he again sought
casual employment. However, he had tired of promotional
works and
instead tried other avenues of employment, but with limited success.
During 2005 he found employment in a construction
company owned by
the husband of one of his maternal aunts. However, he found routine
tasks and discipline annoying and left.
He tried his hand at sales
in a department store, but left after a few days. He did pizza
deliveries, but the sustainability
of this line of employment is
doubtful, not least because the plaintiff’s ability to drive
safely, particularly for sustained
periods, is doubtful.
Essentially the plaintiff is left with a complex combination of
neuropsychological deficits, some of which are quite subtle,
but all
of which in combination have a devastating impact upon the
plaintiff’s inter personal relationships, his ability
to
follow a career or even just to earn a living, as well as upon the
quality and enjoyment of life.
The plaintiff is able to perceive some of the effects of his
injuries. For instance, he acutely experiences the frustration
brought about by the limited use of his left upper arm, especially
against the background of his prior sporting achievements.
He would
also be aware of and annoyed by certain limitations, such as lapses
in his short term memory and the inability to recall
events or
information. A basic example referred to in evidence was his going
shopping and then being unable to recall what he
went there to
purchase.
However, there are no doubt other deficits which he is unable to
comprehend. He apparently still has illusions of starting his
own
business. Prior to the collision his intended career path included
completing his diploma, then going on to complete a B.Tech
degree in
quantity surveying before eventually starting his own business,
presumably as a practising quantity surveyor. Objectively
that is no
longer achievable, but the full implications of his post accident
limitations are probably not yet subjectively apparent
to the
plaintiff.
From the evidence one gathers that following the collision the
plaintiff has undergone behavioural, personality and emotional
changes. Whereas before he was gregarious, likeable and tolerant of
the views and behaviour of others, subsequently he became
self
absorbed, was easily angered or provoked and became intolerant and
argumentative. His resilience suffered, he is easily
fatigued and
tends to sleep a lot. However, his sleep is of a disturbed nature,
he suffers nightmares and awakens in a state
of anxiety.
Reports that he tends to grinding his teeth during sleep are
indicative of minor seizures and gives rise to a possibility of
their eventual development into full blown epilepsy. There is some
support for the
concern in this regard to be
found in the results of an
electroencephalograph
(EEG) performed upon the plaintiff by Dr Bhagwan, a specialist
neurologist on 21 April 2009 and which demonstrated
abnormalities in
the left anterior as well as the right posterior quadrants. A
subsequent
Magnetic
resonance imaging (
MRI
)
scan on 12 May
2009 revealed hyperactivity in the white matter adjacent to the
anterior aspect of the right lateral ventricle.
Subsequent to the collision the plaintiff suffers from feelings of
frustration, as well as poor body image. The latter is brought
about
by the limitations imposed by the injury to his arm, the stiffness
of the hip joint and the scarring resulting both from
the collision,
as well as subsequent operative treatment. In the result his social
interaction has deteriorated. His attitude,
ill temper and
argumentative nature has given rise to tension and it would appear
that the initial tolerance of his behaviour,
engendered by loyalty
and sympathy amongst his friends and acquaintances, eventually
dwindled thus eroding his support base.
He has also demonstrated a
sustained inability to take instructions and to submit to the
discipline involved in an employment
situation.
The plaintiff’s change of mood is echoed, also in apparently
unrelated activities, such as the enjoyment of food. Subsequent
to
the collision the plaintiff is alleged to have lost his appetite and
enjoyment of food. He now only eats because he has to.
It is also
alleged that his sense of smell has been adversely affected, but
this has not been properly verified. However, the
lack of interest
in food also correlates with a general lethargy and lack of volition
now attributed to the plaintiff.
The plaintiff’s history of employment since the collision is
indicative of an inability to sustain a competitive edge in
the
employment market, including relatively mundane activities, such as
retail sales or product deliveries. His employment is
likely to be
terminated, either by reason of inter personal conflict, or because
the plaintiff loses interest, becomes bored
and leaves. Whilst he
appears to find an occupation involving driving a motor vehicle more
stimulating than the monotony of a
repetitive task, he appears to
have lost his ability to do so with safety. As a result he has been
involved in a number of minor
collisions and there appears to be
little future for him in driving.
Part of the difficulty in the circumstances in which the plaintiff
finds himself is that with the passage of time and as he gets
older,
employment opportunities are likely to progressively diminish so
that, at some stage, if not already so, he will effectively
become
unemployable in the open market. It was suggested by the evidence,
inter alia
by Ms Hill, that the practical solution would be
for the plaintiff to be employed in a situation of structured
sympathetic employment.
However, the likelihood of finding such an
employer and sustaining the plaintiff’s employment in that
situation, particularly
given the plaintiff’s tendency towards
annoyance, impatience and aversion to boredom, would appear to be
relatively remote.
The situation is further complicated by the
plaintiff’s tendency towards socially inappropriate behaviour,
such as was
related by the educational psychologist Ms Talbot.
It remains to consider how these deficits are to be applied to the
plaintiff’s claims for general damages and loss of income.
In
this regard it is relevant that the injuries suffered by the
plaintiff are not expected to adversely affect his life expectancy.
On behalf of the plaintiff it was submitted that an award of
R700 000-00 in respect of general damages would be appropriate
in all the circumstances of this case. Counsel for the defendant
submitted that an award under this heading should more properly
be
in the region of between R350 000-00 and R400 000-00.
In developing their respective arguments counsel for the plaintiff
and defendant each relied upon a number of previously reported
decisions. It must, however, be remembered that each matter needs to
be considered in the light of its own peculiar facts and
circumstances and that general damages cannot, by the very nature
thereof, be calculated to compensate a plaintiff for her or
his
exact losses.
The assessment of such damages also needs to strike a balance
between the entitlement of the plaintiff on the one hand to adequate
compensation and the entitlement of the defendant on the other hand
not to be saddled with a liability which is unreasonable,
or which
unduly favours the plaintiff by reason of sympathy for his plight.
Whilst previous decisions are therefore useful aides
to arriving at
a determination in the case under consideration, their importance
should not be overestimated.
In particular the plaintiff’s counsel referred for guidance to
Adlem v Road Accident Fund 2003 (5J2) QOD 41 (AF) where
the
plaintiff, a 17 year old young woman, reportedly suffered physical
injuries more severe that the present matter, but cognitive
deficits
arguably of lesser severity. In the Arbitration Forum the plaintiff
was awarded general damages of R400 000-00.
Counsel also drew
attention to Smit NO v The Road Accident Fund 2006 (5) QOD B4-251
(T) where a 12 year old schoolgirl suffered
physical and cognitive
deficits arguably more severe than the present plaintiff and where
the award for general damages was one
of R600 000-00. Counsel
also referred to Myhill NO v Road Accident Fund (5B4) QOD 271 (T)
where an award of R750 000-00
was made to a plaintiff who, as a
result of a focal and diffuse brain injury, was described as
suffering disorientation and gross
cognitive malfunction and who
would remain grossly malfunctional for the remainder of his life. In
addition counsel referred
to Torres v Road Accident Fund 2010 (6A4)
QOD 1 (GSJ) where a 24 year old male (20 at the time of the
collision) suffered a severe
diffuse brain injury with resultant
cognitive and behavioural deficits limiting him to sympathetic
employment. Willis, J awarded
him general damages of R600 000-00
in the circumstances of that matter.
Counsel for the defendant drew attention to the Arbitration Forum
decision of Sauerman v Road Accident Fund (QOD) Vol. V at B190
where
the plaintiff suffered a concussive injury resulting in severe
impairment of his neuro-psychological and intellectual functioning,
rendering him no longer employable as a policeman. The award under
general damages during July 2004 was one of R200 000-00.
The
circumstances of the injuries in this decision, however, would
appear to differ from the present matter in various respects.
Adopting the approach of striking a balance between the competing
interests of the plaintiff and defendant and against the background
of the extensive body of evidence, as well as the authorities
counsel have referred me to, I have come to the conclusion that
the
sum of R600 000-00 would fairly compensate the plaintiff in
respect of the general damages he has suffered in the present
matter.
I turn now to consider the remaining issue of the plaintiff’s
lost income. It would appear that the parties, whilst differing
as
to the causes of the plaintiff’s incapacity, are nevertheless
largely
ad idem
that he has limited earning capacity and
would ultimately be reliant for any employment opportunity upon the
goodwill of a sympathetic
employer.
Counsel for the plaintiff conceded that, when considering the
plaintiff’s losses in respect of his earning capacity had
he
not been injured in the collision, a conservative approach was
called for. The plaintiff had not pre-accident demonstrated
academic
excellence of a high order and counsel conceded that the
probabilities militated against him achieving a B.Tech degree
in
quantity surveying, after completion of his diploma. That is a
concession fairly made in the circumstances of the matter.
Counsel for the plaintiff contended, however, that on the
probabilities the plaintiff would have completed his diploma
studies,
but submitted in the circumstances that conservatively an
extra year of study should be assumed against the plaintiff.
Thereafter,
so counsel submitted, a further six(6) years service as
a candidate quantity surveyor should be allowed before it was
assumed
that he would have sought admission as a fully fledged
quantity surveyor.
Counsel for the plaintiff, in addition and pursuant to the
conservative approach to which he referred in the circumstances,
indicated that he was content to adopt the approach and remuneration
figures as set out in Table 5 of the Supplementary Report
of the
defendant’s witness Ms Couperthwaite relevant to technikon
students, together with Table 3 relevant to public sector
employees
and to accept a 20% likelihood of the plaintiff securing public
service employment.
Counsel submitted that on this approach the plaintiff would have
completed his diploma studies at the end of 2006, would have
commenced employment as a candidate quantity surveyor at the
beginning of 2007, would have progressed as per Table 5 of the
supplementary Report of Ms Couperthwaite and would have retired at
age 65.
Counsel for the plaintiff further contended for contingency
deductions of 2,5% in respect of past uninjured earnings and of 10%
to 15% in respect of future uninjured earnings. Counsel contended
that any earnings of the plaintiff in his injured state were
so
negligible, that they should be discounted in their entirety.
Counsel for the defendant submitted that although contingencies are
in the discretion of the court, the plaintiff’s approach
to
them were overly generous. Counsel suggested that usually a proper
approach would require a contingency deduction calculated
roughly at
one half of a percent per annum over the expected working life of
the plaintiff, thus arriving at a contingency of
20%.
But, so counsel for the defendant submitted, there were additional
uncertainties relevant to the position of the plaintiff which
rendered such a “normal” contingency allowance
unsuitable and which called for a much higher contingency to be
applied to the plaintiff’s notional lost earning capacity. In
this regard counsel proposed that a contingency of between
35% and
40% should be applied to future earnings.
In developing his argument counsel referred to various factors.
These included the uncertainty that the plaintiff would have
qualified as a quantity surveyor at all, particularly in view of his
incidents of drug taking and, assuming he qualified, then
that the
demand for the services of quantity surveyors fluctuated with the
fortunes of the building industry, so that constant
employment could
not be assured. Counsel further submitted that plaintiff was not
such a hopeless case that his actual future
earning capacity should
be discounted, as contended for by counsel for the plaintiff.
Accordingly, so the argument ran, the possibility
of the plaintiff
earning not inconsiderable income in the future should be provided
for by means of an increased contingency
allowance.
In my view a contingency as high as 20% is already calculated to
provide for many of the uncertainties arising from long-term
projections, such as where assumptions have to be made about career
paths spanning several decades. What counsel for the defendant
proposes in effect doubles his “normal” contingency and
duplicates many of the considerations already built into
such a
contingency.
In my view counsel for the plaintiff is overly optimistic in his
submissions regarding the determination of a balanced contingency
allowance. In the present matter there are some substance in the
submissions of counsel for the defence, except that I believe
he
errs on the side of conservatism. Factors such as the average
student epithet and the incidents of drug taking tend to detract
from the likelihood of the plaintiff qualifying as a quantity
surveyor. On the other hand, as already discussed, the probabilities
suggest that he would have qualified in the end. In fairness to the
defendant, on balance I therefore tend to agree that in this
instance the allowance of 20% is probably not sufficient. I am,
however, not persuaded that a contingency as high as 40 to 45%
is
called for. In considering an increased contingency I have in mind
that such contingency also takes account of the fact that
the
plaintiff may have taken longer to qualify than the table of
progression postulated by his counsel.
Although counsel for the plaintiff submitted that, in respect of the
loss of past earnings a contingency deduction of 2,5% should
be
applied, no claim for such loss appears in the plaintiff’s
amended particulars of claim. Counsel for the defendant therefore,
not surprisingly, did not address this issue at all. Lest there be
the need to determine a contingency in this regard I propose
to do
so, but such determination will probably be of academic interest
only.
In my view, having considered the various submissions against the
backdrop of the voluminous expert reports and evidence, as
well as
the probabilities as I evaluate them in all the circumstances, I
have come to the conclusion that an contingency allowance
of twenty
five percent (25%) should be made in respect of the plaintiff’s
future loss of earnings, or earning capacity.
Should there be any losses in respect of past earnings, then these
too are subject to a number of uncertainties, but less so
than the
long term future earnings. For that reason I would apply a
contingency deduction of twelve percent to such past loss
of
earnings(12%), if any.
In the course of the pre-trial conference, the minutes of which were
admitted as exhibit “A”, the parties agreed
that
actuarial evidence would be dispensed with and that instead the
court would be requested to rule only on the facts and assumptions
relevant to the actuarial calculations to be made, together with
determining the contingency alowances. In the light of the rulings
and assumptions thus made the actuary (or actuaries) would then be
requested to calculate the plaintiff’s future loss of
earnings
and the final figures would then, by implication, be formally
incorporated in an order of court. However, in the event
of any
dispute arising with regard to the actuarial evidence, the matter
would then again be enrolled for further hearing.
Of course, it should be borne in mind that the final damages figure
would be subject also to the apportionment as earlier agreed
to
between the parties and in terms of which the defendant would only
be liable for 80% of the plaintiff’s damages.
I therefore make rulings in regard to the issues in dispute between
the parties relevant to the determination of the plaintiff’s
losses of future earnings, or earning capacity, as follows:-
a. It is assumed, for purposes hereof, that the plaintiff was born on
1 January 1985 and that he commenced his studies towards
a three(3)
year diploma in quantity surveying with effect from the beginning of
2003.
b. It is however assumed that the plaintiff would not have completed
his diploma studies within the prescribed time and would have
taken
an additional two(2) years to do so. In the event it is therefore
assumed that he would have completed his studies and achieved
the
diploma in quantity surveying as at the end of five(5) years. That
is, as at the end of 2007. It is further assumed that he
would not
have progressed to achieving a B.Tech degree in quantity surveying.
c. It is uncertain that the plaintiff would, in those circumstances
inevitably immediately have found employment as a candidate
quantity
surveyor. Allowance is made for a period of unemployment so that it
is assumed that the plaintiff would only have commenced
employment as
a candidate quantity surveyor only with effect from the beginning of
2009.
d. Once so employed it is assumed that his earnings would have
progressed in accordance with the incomes for technikon graduates
as
set out in Table 5 of the Supplementary Report of the Industrial
Psychologist Ms F. Couperthwaite dated 22 February 2010.
e. I is further assumed that the plaintiff would have retired at age
sixty five(65).
f. Finally, it assumed against the increased contingency allowance
that the plaintiff will not actually earn any future income.
In conclusion it is necessary to deal with the issue of costs. On
behalf of the plaintiff counsel submitted that costs should
follow
the result and that the matter was one of sufficient complexity to
have justified the employment of two counsel by the
plaintiff.
Counsel for the defendant submitted that the matter was not of
sufficient complexity to warrant the employment of
two counsel and
that it could have been dealt with by senior counsel alone. In my
view the nature of the matter was such that
the precaution of the
plaintiff in employing two counsel cannot be faulted.
In the result I rule that the plaintiff would be entitled to his
costs of the action, including any reserved costs, on the party
and
party scale, but including the costs of two counsel where actually
so employed. In addition the plaintiff’s costs will
include
the costs of all the expert witnesses whose reports are included in
exhibit “B” (including the additional
research by Ms S
Hill and included as B105A), as well as the qualifying costs of all
the expert witnesses called by the plaintiff
during the course of
the trial.
Insofar as may be relevant and pending the finalisation of the
actuarial calculations, the matter is adjourned
sine die
.
_____________________
VAN ZYL , J.
APPEARANCES:
For Plaintiff : Adv T. N. Aboobaker SC and Adv M. L. Bahadur,
Instructed by Marlan Naidoo & Associates of Durban.
Ref: AN/PC1232/kg
For Defendant : Adv M. Maharaj
Instructed by Linda Mazibuko & Associates of Durban.
Ref: Ms Thaker/NWN/U709.6
Date argued : 20 January 2011.
Delivered
: 7 September
2012
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