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[2011] ZAKZPHC 10
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Mphanza v Road Accident Fund (6501/07) [2011] ZAKZPHC 10 (17 March 2011)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. 6501/07
In the matter between
:
JUDITH ZANDILE MPHANZA
........................................................
PLAINTIFF
and
ROAD ACCIDENT FUND
….....................................................
RESPONDENT
JUDGMENT
Delivered on 17 March 2011
SWAIN J
[1] In this matter I am
asked to determine by way of a stated case, the general damages of
the plaintiff as a consequence of injuries
the plaintiff suffered in
a motor vehicle collision.
[2] I have been furnished
with a document entitled “Facts Agreed On” which details
the injuries sustained by the plaintiff
and the consequences of these
injuries for the plaintiff. I find it unnecessary to repeat the
contents of this document in this
Judgment.
[3] I have also been
furnished by Mr. Singh, who appeared for the plaintiff, and by Mr.
Ori, who appeared for the defendant, with
heads of argument in which
they refer to various authorities where awards were made which they
submit are comparable to the agreed
facts in the present case. Again,
for the purposes of the present Judgment I find it unnecessary to
enumerate and deal with these
authorities. Suffice to say, that I
have given careful consideration to each of these authorities in
reaching the conclusion I
have.
[4] I am of the view that
the general damages of the plaintiff are an amount of R90,000.00.
[5] In order to quantify
the plaintiff’s total damages, to this amount has to be added
an amount of R12,828.89, being the
plaintiff’s agreed medical
expenses, producing a total of R102,828.89.
[6] A further issue to be
determined is whether plaintiff’s costs are to be on the High
Court scale, or the Magistrates’
Court scale. It is common
cause that when the plaintiff instituted her claim in 2007, the
jurisdictional limit of the Magistrates’
Court was R100,000.00,
which however with the introduction of the Civil Regional Court was
increased to R300,000.00, with effect
from 09 August 2010. However,
in the light of the fact that any increases in the Magistrates’
Court civil jurisdiction in
terms of Section 29 (1) (g) of the
Magistrates’ Court Act No. 32 of 1944, are not retrospective
and do not affect pending
proceedings, the fact remains that as at 09
August 2010, the plaintiff’s claim was pending before this
Court. The plaintiff
is consequently entitled to her costs on the
applicable High Court scale.
[7] As regards the issue
of costs, Mr. Ori in his heads of argument, submits that the
plaintiff was not ready to proceed on the
first day, being 14 March
2011 and should therefore bear the wasted costs of that day. However,
when Mr. Ori and Mr. Singh, appeared
before me in Chambers when the
trial was allocated to me, they both told me that they wished me to
decide the issue of the plaintiff’s
general damages, by way of
a stated case. I then pointed out to them both, that they would have
to present me with an agreed statement
of facts for this purpose.
They both then agreed they would need until the following day to
accomplish this. However, on the following
day they each presented me
with what were essentially heads of argument, with their own
contentions of what the relevant facts
were. When I pointed this out
to them they conceded the shortcoming and went away to produce the
document headed “Facts Agreed
On”. This document was
produced shortly before lunch on 15 March 2011. In the light of the
aforegoing, I am not satisfied
that the blame for the matter taking
up two days, can be laid squarely at the door of the plaintiff.
[8] The terms of the
order to be granted by me, once I had determined the plaintiff’s
general damages and the applicable costs
scale, were agreed upon
between the parties.
The order I make is the
following:
The defendant is ordered
to pay the plaintiff the sum of R102,828.89 within fourteen days of
the granting of this order, failing
which the defendant will be
liable for interest on the aforesaid sum, at the rate of 15.5
percent per annum.
An undertaking in terms
of the provisions of Section 17 (4) (a) to pay the costs of the
plaintiff’s future accommodation
in a hospital or nursing
home, or treatment of or rendering of a service to her, or supplying
of goods to the plaintiff arising
out of the injuries sustained by
her in the motor collision, after such costs have been incurred and
proof thereof, is to be
furnished by the defendant.
The defendant is ordered
to pay the plaintiff’s legal costs on the High Court Scale, as
between party and party including:
The plaintiff’s
legal representative, acting as Counsel.
(b) The reasonable
qualifying, consultation and reservation fees (if any), and expenses
of the following expert witnesses, the quantum
of which will be
determined by the taxing Master or as agreed between the parties.
Dr. Domingo
Dr. P. Gongal
Dr. W.G. Reitz
Dr. J.N. Smith
(c) The reasonable costs
for the drafting of the expert’s reports and consultation with
the plaintiff and/or plaintiff’s
representatives by the
experts, referred to in paragraph 3 (b)
supra.
(d) The reasonable
consultation costs, such costs to include travelling time and
travelling expenses incurred by the plaintiff’s
legal
representatives with the expert witnesses, referred to in paragraph 3
(b) above, such costs to include the costs incurred
in respect of the
inspection
in loco
held with Inspector S.M. Roberts, plaintiff
and plaintiff’s legal representative.
(e) All necessary and
reasonable consultation costs incurred by the plaintiff’s legal
representatives with:
Plaintiff
Sayed Cassim
The Manager of Discovery
Health
Investigating Officer
Superintendant of St.
Anne’s Hospital
Inspector B.H. Mhlongo
Inspector N.E. Monakali
Inspector N.P. Mhlongo
Inspector Jali
Inspector S.M. Roberts
(f) The reasonable costs
of the inspection
in loco
by plaintiff’s representative,
such costs to include the consultation with plaintiff and plaintiff’s
witnesses, travelling
time to scene of collision and travelling
expenses.
(g) Costs in respect of
preparation for trial.
(h) The following
witnesses are declared as necessary witnesses:
Plaintiff
Sayed Cassim
The Manager of Discovery
Health
Investigating Officer
Superintendant of St.
Anne’s Hospital
Inspector B.H. Mhlongo
Inspector N.E. Monakali
Inspector N.P. Mhlongo
Inspector Jali
Inspector S.M. Roberts
The reasonable costs of
the consultation incurred by the plaintiff and her legal
representatives to consider the offer, costs
incurred to accept the
offer, as well as all costs incurred to obtain payment of the claim
and costs.
_________
K SWAIN J
Appearances /
Appearances
(In Chambers)
For the Appellant
:
M.S. Singh
Instructed
by
:
Sundeep Singh & Associates
Pietermaritzburg
For the Respondents
:
M.K. Ori
Instructed
by
:
Mastross Incorporated
Pietermaritzburg
Date of Hearing (In
Chambers)
:
14/15 March 2011
Date of Filing of
Judgment
:
17 March 2011