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[2024] ZAFSHC 141
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Hechter v Road Accident Fund (937/2021) [2024] ZAFSHC 141 (9 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no
:
937/2021
In
the matter between:
CJ
HECHTER
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
HEFER AJ
HEARD
ON:
6 and 7 FEBRUARY 2024
(Heads
delivered
on
19
February
2024)
DELIVERED
ON:
9
MAY 2024
[1]
The Plaintiff, an
adult female of 22 years of age, was involved in a motor vehicle
accident on 12 August 2020.
[2]
The Plaintiff alleges
that as a result of the accident, she sustained injuries and
sequelae
as
mentioned
in
the
various
medico-legal
expert
reports
served
and the RAF4 form
.
[3]
In the Plaintiff
'
s
action against the Defendant for recovery of her damages, the
merits-aspect
has
been settled.
The
parties have further settled the aspects
expenses
as the Defendant
has
tendered an undertaking
in
terms
of
Section 17(4A) of the
Road Accident Fund Act 19 of 2005.
[4]
The Court is
.
called
upon to determine the award to be made in respect offuture loss of
earnings/ earning capacity and contingencies to be applied.
[5]
At the outset of
proceedings, Plaintiff proceeded with a formal application in terms
of Rule 38(2) of the Uniform Rules of Court
to adduce the expert
evidence by way of affidavits incorporating the contents of the
expert reports. The application was not opposed
by the Defendant and
after argument an order was granted accordingly
.
[6]
The Plaintiff relied
on the expert reports of Dr L Smit (neurologist), Dr FJ Greyling
(orthopaedic surgeon), Mr C Etzebeth (clinical
psychologist), Me S
Maree (occupational therapist), Dr J Wilkinson (neurosurgeon) and Dr
EJ Jacobz (industrial psychologist).
Evidence
by the Plaintiff:
[7]
The Plaintiff
testified during the hearing
.
I must agree
at the outset, with the submission by Mr
Van
Onselen,
appearing
on behalf of the Plaintiff, that she was a good and reliable witness.
Her evidence made sense and was logical. She was
open and candid and
her evidence contained no contradictions. The Defendant did not argue
to the contrary in this regard.
[8]
The Plaintiff
testified that she completed her studies at the University
of North West
during 2023 and that she was to
be awarded her degree
during April
2024.
[9]
Of importance is that
the Plaintiff's field of studies is in respect of younger children,
in particular in respect of children in
Grade R to 3
.
This,
according to the Plaintiff, means that she, in the fulfilment of her
duties as a teacher, needs to often bend down to assist
the children
in their tasks in class.
[10]
The crucial part of
her evidence relates to her practically being employed as an educator
for a 6 month period at a primary school
in the Western Cape during
2023. During this time, she
was employed as an assistant teacher. It is important to remember
that her qualifications are a Bachelor
of Education degree in
Foundation Phase teaching. As the Plaintiff explained, this is to
teach young children from Grade R (pre-school
year) up to Grade 3. As
she testified, she is not qualified to teach grown children in higher
grades in primary school or high
school with this qualification.
[11]
The Plaintiff
described in detail what her daily activities entailed when she was
working as an assistant teacher with reference
to the physical
aspects such as constant standing, bending down, crouching, etc.
It was also
compulsory for her to coach extra-mural activities after school and
she gladly assisted with netball. It appears that
it is a common
occurrence that primary school teachers also double up after school
as coaches for tennis, netball, cricket, rugby,
swimming and alike.
Her work day was five
hours of teaching (with normal breaks at school) and from 02:00 in
the afternoon an additional two hours for
extra-mural activities.
[12]
The Plaintiff
testified that she struggled to cope
.
She
experienced intense pain and discomfort in especially her lower back
and hip. A teacher who she was assisting was aware of her
physical
shortcomings and often allowed her to take breaks (over and above the
regular school breaks). There were even occasions
when she was
allowed to go home early as she simply was not able to cope
.
[13]
The Plaintiff further
confirmed that she still experiences daily backpain and cannot stand
for periods longer than 30 minutes
.
The same
occurs when she has to sit doing administrative duties. In her own
words, the only way she can alleviate the pain is to
lie down.
[14]
Currently the
Plaintiff is employed as a swimming coach at Ryk Neethling's Academy
in Stellenbosch. She commenced this endeavour
towards the end of
2023. She testified further that she experiences pain and discomfort
doing this job but it is less physically
demanding (with reference to
her injuries) and she spends the majority of her time in the pool and
in water
.
The
buoyancy assists and she manages to cope with her daily duties. The
Plaintiff further confirmed that
she
decided
to
rather
work
as
a
swimming
coach
than
actively
seeking
employment
as an educator (given her qualifications). With reference to her
experience in the six months during 2023 when she assisted
as an
educator, she simply realised that she cannot cope with the physical
demands and hence she feels that she is not physically
ready to
pursue her lifelong passion of teaching.
[15]
The Plaintiff further
testified that she has not received any treatment in the form of
physiotherapy or by a chiropractor.
She confirmed that
this is due to the lack of funds and that her intention is to pursue
a treatment regime once she received funds
from her claim. Once her
injuries and symptoms abate slightly and/or improve she intends she
to enter the education labour market
in approximately two years'
time.
[16]
When the Plaintiff
was asked why she did not attend a government hospital for treatment,
her response was
"/
do not know
why".
[17]
The Plaintiff further
described two episodes of epilepsy where she fainted in the bathroom.
No collateral history is however available
at present.
[18]
The Plaintiff
testified that there is no history of epilepsy in her family and the
seizures and/or episodes only commenced after
the accident.
Mr
Van
Onselen
submitted
that the issue of whether or not the so-called epileptic seizures
and/or seizures / episodes are a
sequelae
of the
brain injury which she incurred is a moot point.
He further submitted
that it is clear from the calculations and the reports by the
experts,
that
the Plaintiffs
claim
for loss of income is not based in loss of income on the
neurocognitive
sequelae
of the
brain injury.
[19]
In this regard, it
must also be borne in mind that the clinical psychologist,
Mr C Etzebeth, who
has done the neurocognitive assessment of the Plaintiff, opined that
the traumatic brain injury has not resulted
in
any
significant neurocognitive
sequelae
.
[20]
This aspect is according to Mr
Van
Onselen
a
very minor element which has caused slight issues with short-term
memory and concentration. At best
,
according
to
him,
this
is
an
aspect
which
can
be
taken
into
account
when
determining reasonable
post-morbid contingency deductions from the actuarial calculations.
The Plaintiff's case
is according to Mr
Van
Onselen
predominantly
based on the serious vertebrae and hip fractures and the devastating
daily pain and
sequelae
from those
injuries. The impact on her physical functionality is the reason she
will suffer a loss of earnings in future.
Expert
evidence:
Dr
L Smit (neurologist)
[21]
According to Dr Smit,
the hospital records confirm a pelvis fracture (superior inferior
rami on the left), L5 transverse process
fracture, diastasis of right
SI joint, displaced sacral body fracture with S2 level sacral
angulation, laceration on her scalp
and forehead including
concussion, a spinal injury and various soft tissue injuries.
[22]
She further confirms
that Plaintiff's main complaints included lower back pain and pelvic
pain between her legs.
[23]
Specific enquiries
elicited complaints of headaches two to three times per week, reduced
hearing in her left ear and short-term
memory deficits.
[24]
Neurological
examination revealed normal cranial nerves, except for hearing of the
right ear. Motor-, sensory- and cerebellar examination
as well as her
gait is within normal limits.
[25]
Dr Smit opined that
the Plaintiff probably suffered a mild traumatic brain injury over
and above her orthopaedic injuries sustained.
She further opined that
the two episodes of loss of consciousness is in keeping with
defaecation syncope. The Plaintiff has a 5%
change of developing
epilepsy later in life according to her
.
Dr
J Greyling (orthopaedic surgeon):
[26]
Dr Greyling confirmed
the injuries sustained and treatment received which correlate with
that recorded by Dr Smit.
[27]
At the date of
examination the Plaintiff complained of constant pain in her lower
back and pelvis, pain in her lower back causes
numbness in her legs
if she sits too long, difficulty for long periods of time to study,
problems with short-term memory which
interfered with studies and an
inability to be physically
active.
[28]
As far as the
Plaintiffs work ability is concerned, the injuries she incurred and
the pain she experiences has an impact on her
ability to sit or stand
for long periods of time which is expected of this work. She is also
no longer able to pursue a career
of becoming a professional netball
player or swimmer. From an orthopaedic point of view, the accident
and injuries has had a profound
impact on her career. According to Dr
Greyling, the Plaintiff may continue to have difficulties in becoming
a teacher without reasonable
accommodations for the pain she
experiences on a daily basis. She may require a sympathetic employer
to allow for these accommodations
.
[29]
After Dr Greyling had
insight in the report by Dr Wilkinson, the neurosurgeon, he did find
it necessary to revise his initial prognosis
concerning the patient's
working life expectancy. He refers to Dr Wilkinson's suggestions that
the Plaintiff may experience progressive
neurogenic symptoms that
could significantly impact her ability to maintain employment. These
symptoms are directly related to
the complex nature of her spinal and
sacral injuries and may lead to chronic pain, ability issues and
other neurological deficits
.
[30]
Dr Greyling then
concludes as follows:
"
In
light of this new evidence and after a careful re-evaluation of the
patient's current and anticipated future medical condition,
I concur
with Dr Wilkinson's assessment. It is my revised opinion that Ms
Hechter
may
(own emphasis) indeed
face a necessity of early retirement
,
potentially
up to 10 years prior
to the normal retirement age
."
Dr
J Wilkinson (neurosurgeon)
:
[31]
According to Dr
Wilkinson the Plaintiff uses painkillers on a weekly basis to relieve
headaches and lower back pain. He confirmed
that the Plaintiff
complained of weekly headaches in the frontal area. This causes
sensitivity to sharp light. She also has daily
lower back ache when
sitting, standing or walking for periods exceeding 30 minutes.
[32]
According to Dr
Wilkinson he also has ascertained from the Plaintiff that she has
memory deficits and her short-term memory is mildly
affected. Her
long term memory is slightly better. She is aware of this and
has to put in extra effort studying for exams.
She also has
impaired
concentration
as she takes regular rests breaks when her concentration wanes. Her
concentration was much better prior to the accident.
[33]
Dr Wilkinson's own
observations reveal that
inter
alia
the
Plaintiff sustained a head-, pelvis- and lumbar spine injury.
[34]
In a later addendum
to his report, Dr Wilkinson expressed his opinion as follows:
"
Education
is very strenuous occupation and involves physical activities
.
By
the age of 50 years, she might not be able to resume her work as a
teacher
.
Even
her sitting ability and standing ability would be compromised as a
result of spine problems
.
If
her retirement age is postulated at 65 years, early (ill-health
retirement) could follow at the age of 50 years
.
That would be
15 years prior to retirement age.
I
agree
with
Dr
Greyling
that
her
occupational
career
might
(own
emphasis)
be shortened by spine
problems
.
The
client
also
sustained
a mild
traumatic
brain
injury
and
posttraumatic
dementia might follow
in later years. That would also contribute to future occupational
disability
."
Mr
Cobus Etzebeth (clinical psychologist):
[35]
According to Mr
Etzebeth, it would appear that the mild traumatic brain injury has
not resulted in any significant neurocognitive
sequelae.
Me
S Maree (occupational therapist):
[36]
This expert evaluated
the Plaintiff to determine the impact of the injuries on her
functionality
.
Her report,
compiled subsequent to the evaluation of the Plaintiff, revealed
inter alia
that the
Plaintiff complained of constant lower back pain aggravated by
prolonged standing and sitting in a vehicle. Pain is also
exacerbated
with swim training and during her monthly menstrual cycle. The most
important function or loss is her inability to
play netball on a
professional level.
[37]
The constant pelvic
pain is aggravated by standing, sitting and walking for long periods
and is worse at night. The most functional
loss is her inability to
be as competitive and skilful with swimming as pre-morbidly.
[38]
As far as
post-concussion symptoms are concerned, Me Maree commented that the
Plaintiff complained of frontal headaches at least
once a week.
[39]
Testing by the
expert, elicited pain when sitting for more than 30 minutes and
standing for longer than 15 minutes. Pubis symphysis
pain occurred.
The same was applicable to her lower back. Maintaining positions
during testing was extremely awkward. The deviation
she demonstrated
interferes
significantly
with functionality.
[40]
As far as standing is
concerned, the Plaintiff was able
to
maintain a
standing posture for 5 -
10
minutes with two positions and adjustment during testing. She
required a rest time after each activity and would sit down for
a few
minutes
.
[41]
In summary, during
the occupational therapy assessment, Plaintiff presented with
diminished postural tolerances in stooping and
lowered work in
sitting while tolerating constant lower back- and pelvic pain. She
struggled with dynamic strength activities and
performed tasks with a
progressing slower pace, moderate deviations and constant lower back
pain.
[42]
Before the accident,
the Plaintiff was competitive in the open labour marker and had the
same chance as everyone else to work until
retirement age.
[43]
Plaintiff's career
path of becoming an educator is within the light to medium work
demands. She will require certain work accommodations
to cope with
her physical demands of teaching with reference to constant standing,
stooping and sitting. Due to her brain injury,
she has secondary
complications of frequent headaches, tinnitus, hearing loss
,
vertigo and
decreased memory and concentration. This will place her at a
disadvantage when performing work in the open labour market.
Teaching
requires a significant amount of dedication and the ability to plan
and work independently
.
[44]
The Plaintiff is
currently an unequal competitor for her future work position because
she needs to tolerate lower back and pelvic
pain while performing her
job requirements
.
She will
probably struggle to fulfil all the physical requirements of the
profession. She will experience physical and cognitive
limitations in
her career as a foundation phase educator. Her work opportunities are
narrowed and she would probably have to be
very selective. This
negatively impacts on her employability and she will struggle to
teach classes for specialised education.
This will in all probability
cause periods of unemployment and a truncation of her vocational
progression
.
Functional
capacity tests results concluded that she will be suited to frequent
sedentary to frequent light work demands.
Dr
E Jacobs (industrial psychologist)
:
[45]
This expert evaluated
the Plaintiff on two occasions
,
before the
original reports were filed. Due to updates on her studies and
receipt of addendum reports by certain of the other experts,
this
culminated in a final addendum report
.
[46]
He obtained
collateral information from Ms Aldrich
.
This is the
person with whom Plaintiff did her practical training at Willem
Postma School for one month. The collateral was that
Plaintiff was
good with her learners and passionate about teaching
.
It was
confirmed that for Grade 1 an educator needs to sit on the floor
,
on the knees
,
bends and
assist the young kids at all times
.
It is
physically demanding and strenuous.
[47]
After collating all
the opinions of the other experts
,
this expert
opines that it seems that Plaintiff is not regarded as suitable to
work as a teacher
.
She will have
to tolerate pain and discomfort. Teaching requires light to medium
demands and Plaintiff is only suited for frequent
sedentary to light
medium demands. She will need accommodations
.
Periods of
unemployment
are
to be expected as well as foreseen probable early retirement (with
reference to the neurosurgeon and orthopaedic surgeon)
.
[48]
The expert tabulates
the income scales applicable for educators as per Koch as well as
STATSSA.
[49]
Pre-morbidly
,
in his
opinion, the Plaintiff would have been able to complete her degree
and she would have been able to be renumerated as teacher
with a four
year degree and progress per notch as per policy and apply for
promotions as any healthy and ambitious teacher will
do
.
[50]
Post-morbidly
,
the Plaintiff
will still be able to complete her degree
.
In the opinion
of Dr Jacobs
,
she will
strive and obtain teaching positions
,
but she will
face various challenges (not physically and mentally fully suitable
to work as teacher; periods of unemployment, will
need continuous
accommodation, will not be able to work to retirement age
,
will not be an
equal competitor and might not be a candidate
for
choice for a vacancy
and later promotion
or position)
.
She might
leave teaching and seek a lighter physical career at some stage. She
will experience productivity problems due to pain
and the effects of
her brain injury. Additionally, she might not be able to coach sport
in future.
[51]
He states as follows:
"In
summary
,
due to the
lack of a timeframe for early retirement provided by the relevant
experts, it is suggested to deal with her case by not
allowing for
promotions and regular movement between schools (only notch
increases) and secondly applying a contingency deduction
on her
postmorbid earnings
.
It is for the
court or parties to decide, but in my opinion her future loss might
be significant.
"
[52]
Furthermore, it is
stated:
"It
is my revised
opinion that Ms Hechter may indeed face a necessity of early
retirement, potentially up to 10 years prior to the normal
retirement
age
.
"
[53]
In this regard he
concurs with the assessment by Dr Wilkinson, save for the fact that
according to Dr Wilkinson, the Plaintiff might
retire 15 years
instead of 10 years earlier. In summary, his initial projection of Ms
Hechter's
work
life
expectancy until the normal retirement age is no longer tenable in
light of Dr Wilkinson's report and the associated clinical
findings.
[54]
Dr De Jager further
opined that the Plaintiff is not an equal competitor in the labour
market and also not in the teaching profession.
She will however in
his opinion, continue with a career as a teacher as she is very
committed to teaching but will most likely
not be able to perform on
the same level as compared to her being fully physically and mentally
fit. She will in particular not
be an equal competitor when applying
for teaching jobs or become an HOD:
"She
will not be an
equal competitor when applying for teaching jobs or become an HOD.
Although it is not unlikely that she will become
a HOD it is
uncertain whether she will be able to stay in teaching until age 45
and/or thereafter
.
It is normally
expected from a teacher to also do physically demanding tasks such as
coaching sport teams, standing on their feet
teaching
,
negotiating
stairs and walking around the class and school terrain for discipline
or order purposes
.
"
[55]
He then continues as
follows:
"It
is therefore
my opinion that a promotion to HOD is less likely compared to being
uninjured and that too many uncertainties exist
to credit her for
certain any promotions
.
She will
however receive her notch increases
.
Take note that
the role of the industrial psychological is to address likely
scenarios and the injuries have resulted in her to
not being able to
complete equally for promotions. Take also note that a HOD is still
an 'active' teacher in a classroom for some
additional administrative
responsibilities (it is not an office job)
.
"
Mr
G Whittaker (actuary):
[56]
Updated
actuarial
calculations
have been
obtained
based
on the addendum
report
of
the
industrial
psychologist,
Dr Jacobs and using
the opined income levels
premorbid
and
postmorbid
scenario.
The
updated
calculations
also include the
recently opined early retirement. From this report it is noted that
the figures have not increased substantially
due to the inclusion
of early retirement. This is due to the effect of the capitalising
of the losses in
those future years. The early
retirement
makes
approximately
a
R500,000 difference to the claim
,.
for loss of
earnings.
[57]
The actuary has for
illustrative purposes computed two scenarios with deferring
contingencies differentials. Scenario 1 is based
on a 15%
differential (15% higher post-morbid contingency deduction) and
scenario 2, 20%.
Loss
of earnings and contingencies:
[58]
Mr
Van
Onselen
submitted
that for the reasons listed in the report of the industrial
psychologist, that these differentials are more than justified
and
reasonable under the circumstances. The Plaintiff has been blighted
and will suffer continuously from the effects of the polytrauma
throughout her entire working career.
[59]
Mr
Van
Onselen
then
further submitted to be fair to the Defendant, that the scenarios be
averaged out. This will imply a 17
.
5%
post-morbid contingency deduction.
[60]
Ms Banda, appearing
on behalf of the Defendant, with reference to the calculation of the
actuary in respect of the first scenario
by the actuary, submitted
that the Plaintiff has not suffered a loss of earnings but rather her
earning capacity would be effected
thus contingencies of 26% should
be applied on the pre-accident scenario and 30% on the post-accident
scenario.
[61]
In support of her
submissions, Ms Banda argued that Dr Greyling compiled an addendum
report approximately one year after his initial
examination and after
considering the report of Dr Wilkinson. Dr Wilkinson compiled his
addendum report one year after the initial
examination and after
considering the report of Dr Greyling. In their initial reports, both
experts did not foresee the need for
surgical intervention or that
she will retire early. According to Ms Banda, these experts' opinions
should be treated with caution
as there was no new clinical
information such as revised X-rays
I
MRI scans
/ EEG reports or follow-up consultations
.
According to
Dr Wilkinson, not only age-related but injury accelerated
degeneration of her lumbar spine will follow
.
He then
indicates that surgery
might
follow and the
chances of her requiring surgical intervention in future in the next
five years is at 10% and it accumulates with
10% every 5 years.
Furthermore, the experts also indicated that the Plaintiff would
retire early with Dr Wilkinson indicating that
she will retire 15
years prior to normal retirement age whilst Dr Greyling indicated
that she will retire 10 years earlier
.
Mr
Van
Onselen
on
the other hand, however submitted that the
"inevitable"
extensive
spinal surgery foreseen is the main reason for early retirement.
[62]
I must agree with the
contentions on behalf of the Defendant more in particular to the
effect that the primary expert reports of
Dr Wilkinson and Dr
Greyling indicate that the finding and recommendations are based
largely on the probabilities and an anticipation
of what the
Plaintiff's future condition may
I
might be.
Furthermore
,
I
agree that the physical demands of a teacher are of light to medium
work. According to the occupational therapist
,
the Plaintiff
has a physical capacity for sedentary to light work with
accommodations. Given that
the
Plaintiff can apply for work within Government,
she can be
accommodated, as Government will not discriminate against her injury
thus can continue working. To date, the Plaintiff
has not attended
treatment but with rehabilitation her condition should improve.
[63]
Furthermore, in relation to future promotions, it must be noted that
the Plaintiff will only be promoted
if and when a position is
available, thus no guarantee that she will be promoted. These factors
should be taking into consideration
when contingencies are applied.
[64]
It is trite law that when actuarial calculations are adopted to
quantify loss, the trial judge is not tied
down by inexorable
calculations. There is a large discretion to award what is considered
right. One of the elements in the exercise
of that discretion is the
making of a discount for contingencies for the
"vicissitudes
of
life'
[1]
In
De
Kock v RAF
[2]
,
Kgomo
J held as follows:
"[6]
Contingencies may
consist of a wide variety of factors
.
They include
matters such as a possibility of error in the estimation of a
person's life expectancy, the likelihood of illness,
accident or
unemployment which in any event would have occurred and therefore
affects a person's earning capacity
... "
[65]
In
AA
Mutual Insurance v Van Jaarsveld
[3]
it
was held that a court has a wide discretion that must however be
based upon a consideration of all the relevant facts and
circumstances.
Justice and fairness for the parties is served by
contingencies to be applied on the particular proven facts of the
case.
[66]
Taking into account the evidence before Court, and the submissions on
behalf of the parties, I find that
contingencies of 23% should be
applied to the pre accident scenario and 34% to the
post-accident scenario.
Therefore,
I make the following order:
Order:
1.
Defendant is liable
to compensate the Plaintiff for 100% of her proven or agreed damages
resulting from the injuries the Plaintiff
sustained in the motor
vehicle collision which occurred on 12 August 2020.
2.
The Defendant shall
pay the following amount to the Plaintiff's attorney, Stefan Greyling
lncorporated's trust bank account, in
full and final settlement of
the Plaintiff's claim in respect of the following heads of damages:
2.1
General damages
R 700,000.00
2.2
Loss of earnings
R2,032,088.00
Total
R2,732,088.00
3.
The amount referred
to in paragraph 2 above shall be payable by direct transfer into the
trust account of Stefan Greyling Incorporated
details of which are as
follows:
Account
Name:
Stefan
Greyling Inc.
Bank
Name:
First
National Bank
Account
number:
6[…]
Branch
number:
252
445
Reference:
HEC1/SG
4.
The Plaintiff shall
allow the Defendant 180 (one hundred and eighty) calendar days to
make payment of the capital from date of this
court order, failing
which the Plaintiff will be entitled to recover interest at the
applicable interest rate from the 15 (fifteenth)
day of this court
order to the date of the payment of the capital amount. The Plaintiff
will not proceed with issuing of a writ
prior to the expiry of the
aforesaid period.
5.
The Defendant must
furnish the Plaintiff with an undertaking in terms of Section
17(4)(a) in respect of 100% of the costs of the
future accommodation
of the Plaintiff in a hospital or nursing home and treatment of or
rendering of a service
or
supplying of goods to her, after the costs have been incurred and on
proof thereof
,
resulting from
the accident that occurred on 12 August 2020.
6.
The Defendant shall
make payment of the Plaintiffs taxed or agreed party and party costs
in a High Court scale subject to the Taxing
Master's discretion
,
which shall
include the following
:
6.1
The fees of counsel
for 6 and 7 February 2024 and the cost of preparing Heads of Argument
and Supplementary Heads of Argument requested
by the Court
;
6.2
The reasonable
qualifying fees incurred by the following experts appointed by the
Plaintiff:
6.2.1
Dr Greyling;
6.2.2
Dr L Smit;
6.2.3
Dr J Wilkinson;
6.2.4
Mr C Etzebeth;
6.2.5
Ms S Maree;
6.2.6
Mr EJ Jacobs;
6.2.7
Mr GA Whittaker.
6.3
The reasonable
taxable costs of obtaining all expert
,
medico
-
legal,
RAF4 serious injury assessment and actuarial reports from the
Plaintiffs experts which were served and filed;
6.4
The reasonable
taxable accommodation and transportation costs incurred by or on
behalf of the Plaintiff in attending medico-legal
consultations with
the experts listed in subparagraphs 6
.
2.1
to 6.2.7 above, as well as the trial proceedings. The Plaintiff is
declared a necessary witness;
6.5
The above costs will
also be paid into the aforementioned account. It is recorded that the
Plaint
i
ff's
instructing attorneys do not act on a cont
i
ngency-fee
basis herein
.
7.
The
following
provisions
will
apply
with
regards
to
the
determination
of
the aforementioned
taxed or agreed costs
:
7.1
The Plaintiff shall
serve the notice of taxation on the Defendant's attorney of record;
7.2
The Plaintiff shall
allow the Defendant 180 (one hundred and eighty) calendar days to
make payment of the taxed costs from date
of settlement or taxation
thereof;
7.3
Should payment not be
effected timeously
,
the Plaintiff
will be entitled to recover interest at the applicable interest rate
on the taxed or agreed costs from date of allocator
to date of final
payment
;
7.4
The Plaintiff shall
not issue a writ prior to the expiry of the 180 (one hundred and
eighty) day periods.
HEFER
AJ
Appearances
on behalf of the
Plaintiff
:
Adv
C van Onselen
Instructed
by:
Stefan
Greyling Incorporated
Kimberley
c/o
EG Cooper Majiedt Inc.
Bloemfontein
On
behalf of Defendant:
Adv
NP Banda
State
Attorney
Bloemfontein
[1]
South
Insurance
Association
Ltd
v
Bailey
NO
1984
(1)
SA
98
(A)
at
117 B
-
D
.
[2]
(3237/2013)
[2015]
ZAGPPHC 224
(22
April
2015)
[3]
1974
(4)
SA 72
(A)