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[2024] ZAFSHC 194
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Ngwenya v Road Accident Fund (1358/2022) [2024] ZAFSHC 194 (13 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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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: 1358/2022
In
the matter between:
MBALI
CHANTEL
NGWENYA
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
CORAM:
HEFER
AJ
HEARD
ON:
12, 13 AND 15 MARCH 2024
DELIVERED
ON:
13 JUNE 2024
[1]
Plaintiff instituted action for the
recovery of damages arising from injuries which she
sustained during a motor vehicle collision
allegedly caused by the negligence of the respective insured drivers
at the time.
[2]
The Defendant conceded liability on the
basis that it shall pay 100% of the Plaintiff's proven or agreed
damages. The issues of
future medical expenses as well as general
damages had already been settled. These aspects had been dealt with
in an order of Court
which order was made by agreement between the
parties during November 2023.
[3]
What remain to be adjudicated upon are the
amounts in respect of past hospital - and medical expenses as well as
loss of earnings.
[4]
It needs to be mentioned at this stage that
although the Defendant has filed a plea and the matter proceeded
on the basis of it being defended, as in so
many matters where the Road Accident Fund is involved, there was no
appearance
on
behalf of the Defendant during the hearing of the matter.
Past
medical - and hospital expenses:
[5]
At the commencement
of the trial on 13 March 2024, Plaintiff
was granted leave to adduce the evidence of the relevant expert
witnesses appointed
for
purposes of quantifying her damages and the evidence of Faith
Lingham, regarding Applicant's claim for past hospital- and medical
expenses by means of affidavits in terms of the provisions of Rule
38(2) of the Uniform Rules of Court.
[6]
It is common cause that the Plaintiff was
at all relevant times a beneficiary of Momentum Medical Fund.
[7]
Ms Lingham is the administrator of
Momentum. In her affidavit she confirmed that she
perused the vouchers and schedules relating
to the medical expenses incurred by the Plaintiff and that they have
been duly honoured
by the medical scheme in respect of the injuries
which the Plaintiff sustained in the accident on 1 November 2020.
[8]
Ms Lingham further confirmed that these
past medical expenses are related to medical scheme claims submitted
to Momentum
Medical
Fund from the date of injury and as the claim submissions billed by
the healthcare practitioners, including health establishments
for the
treatment of the injuries sustained by the Plaintiff in the accident.
According to her she personally perused the schedule,
especially as
it pertains to items in conjunction with the billed and paid amounts
reflecting
on the
vouchers
and
confirms further that they are true and correct and directly related
to the injuries sustained by the Plaintiff in the motor
vehicle
accident in question.
[9]
Ms Lingham then states that the claimed
amount as shown in the schedule was assessed and the actual amount
paid by the medical fund
amounted to R381,537.33.
[10]
During the hearing, Mr
Cilliers,
appearing on behalf of the Plaintiff,
however indicated
that
the amount
should
be reduced to the amount
of R380,791.92, to cater for an amount not
to be included in such vouchers.
[11]
Mr
Cilliers
also
referred me to a judgment delivered by Molitsoane J in this division
in the matter of
Sondiyanzi
v Road Accident Fund
[1]
In
that matter the issue for determination was whether the Plaintiff was
entitled to claim the expenses incurred by the medical
aid on behalf
of the Plaintiff. With reference to
Discovery
Health (Pty) Ltd v RAF and Another
[2]
,
Molitsoane
J
held that the Road Accident Fund remains liable to the Plaintiff for
the past medical expenses notwithstanding that the medical
aid scheme
has paid the said expenses.
[12]
I respectfully align myself fully with this finding of Molitsoane J.
Loss
of earnings
[13] In respect of this
aspect, the Plaintiff herself as well as certain expert witnesses
testified during the hearing.
The
Plaintiff:
[14] The evidence
presented to Court, shows that the Plaintiff is an extraordinary
woman who, according to collateral information
gathered, is
considered to be a hardworking and dedicated employee in spite of
certain challenges she faced in the past and still
is confronted with
.
[15] The Plaintiff
incurred several injuries as a result of the motor vehicle accident
on 1 November 2020, the most serious being
a so-called
"hangman's
fracture"
to the neck, which had/has severe implications on
her past academic- and employment performance as well as her present
and future
employment potential, as will be shown from a discussion
of the relevant expert evidence presented during trial.
[16] The other injuries
which the Plaintiff sustained in the accident are
inter alia
right
parental scalp haematoma, C2 spine injury, liver injury, subarachnoid
haemorrhage, head injury, fractured ribs, right ear
lacerations and
injury to the right hip.
[17] According to the
Plaintiff, she experienced a period of alteration in level of
consciousness and that her first memory of the
accident was about two
weeks thereafter.
[18] According to the
Plaintiff she experiences:
(i)
headaches regularly;
(ii)
pain in her right hip;
(iii)
pins and needles in her right hand,
her neck gets tired every
often;
she struggles with walking or standing for long periods; she cannot
sit on chairs that do not support her back; and
(iv)
she
herself tires easily.
[19] As far as the
Plaintiffs psychological functioning is concerned, the Plaintiff
testified that she experiences increased anxiety
since the accident.
[20] The Plaintiff
further testified that she sometimes have difficulty remembering
things. She sometimes struggles remembering
what was discussed in
meetings at work. Her mentor at work suggested that she gets a
notebook to assist her with her memory. She
also has problems with
concentration.
[21] The Plaintiff
successfully completed her Grade 12 National Certificate
qualification and has also successfully completed a
Bachelor of
Commerce degree with specialisation in economics, which degree was
conferred upon her during April 2022. This qualification
is regarded
to be a NQF7 qualification. This will be expanded upon later in this
judgment.
[22] The Plaintiff had to
rewrite two examinations during her first - as well as her second
year of studies. The Plaintiff did not
fail any of the modules during
2020. From the Plaintiff's UFS academic results, it appears that she
passed the Investment Module
with an average mark of 61% and repeated
the module during 2021 which resulted in an average mark of 67%.
According to the Plaintiff,
she repeated Investment Management during
2021 because she wanted to improve her marks in order to be able to
gain access to an
Honours Degree in future, of which the 61% which
she had attained during 2020 would not have sufficed. The mark
obtained was however
insufficient to gain entrance in a Honours
Degree program.
[23] It further appears
that the .Plaintiff discontinued the Managerial Finance Module during
2021. According to her, the Managerial
Finance was an elective module
she took on her own accord for her own personal development outside
of the prescribed compulsory
modules needed to complete her degree.
She however discontinued it after having felt that she was
overwhelmed and stressed at the
time.
[24] The Plaintiff is
currently employed as a transactional banker at Absa Bank, Kimberley.
She attended the Industry Regulatory
Examination at the beginning of
2023, a prerequisite for when giving advice in the banking industry
as a transactional banker role.
However, she was not successful. The
timeframe for completion is 3 years.
[25] She explained that
she is currently enrolled for a post-graduate Diploma in Financial
Planning at the University of the Free
State, which is a NQF4
qualification. The relevance of the latter will be dealt with herein
later.
[26] The Plaintiff
further testified that she gets headaches all the time. This started
progressively since the accident and she
eventually consulted with a
doctor in this regard. She described the level of severity of these
headaches on a scale between 1
and 10 to be on 7. She further
testified that she refrains from using medication for the headaches
because she had been diagnosed
with an ulcer and it appears that this
medication can contribute to the ulcer. She further experiences
sleeping problems because
of the pain in her neck.
Expert
Evidence
.
[27] The evidence by the
expert witnesses, will be dealt with on the basis of the calculation
of the amount to be awarded in respect
of loss of earnings of the
Plaintiff and in particular the contingencies to be applied in the
calculation thereof.
[28] Ms Nina du Plessis,
an educational psychologist, assessed the Plaintiff during June 2022.
During her evidence she started off
by briefly explaining the so
called "NQF" educational system referred to before. In
short it can be defined as the
system that records the credit
assigned to each level of learning achievement in a formal way to
ensure that the skills and knowledge
that have been learned are
recognised throughout the country.
[29] The various NQF
levels are as follows: Level 7- Bachelor Degree; Level 8 -
Post-Graduate Diploma; Level 9 - Masters Degree
and Level 10 -
Doctorate Degree. She explained that the level of income
I
potential income is directly related to the NQF levels. The
higher the level, the more favourable a particular person is looked
upon in consideration of being employed or promoted.
[30]
Ms Du Plessis confirmed that the B.Com
degree conferred upon the Plaintiff and the diploma she is currently
enrolled for are on
NQF levels 7 and 8 respectively.
[31]
Based on the Plaintiff's available academic
results and certificates obtained, it appears
that the Plaintiff
presented
most
probably
with an
average
to above
average pre-morbid learning ability. The Plaintiffs University
studies were negatively impacted by pre-existing stress
and anxiety
(caused by trying to manage full time studies and past time work),
the Covic pandemic and related negative
sequelae.
[32]
Ms
Ou
Plessis
conducted
several
tests
on
the
Plaintiff,
the
most
important
results and implications thereof being the following:
(i)
The Plaintiffs below average working memory
can be expected to
cause
her to learn at a slower than normal pace, thereby limiting her
ability to keep up with the pace of mainstream education.
(ii)
There appears to be some decline in the
Plaintiffs post-morbid
cognitive
functioning in comparison to her estimated pre-morbid ability. Ms Du
Plessis states as follows in this regard:
"It
is
noted
from
received
documentation
that
Ms
Ngwenya sustained
a
head injury in the said accident."
(iii)
The Plaintiff most probably represented
with a vulnerable pre-morbid psychological profile attached to the
reported stress and anxiety.
It is further likely that this stress
and anxiety was attached
to
having to study
full
time as well as work part time, which most probably
resulted in Ms Ngwenya repeating two
modules during her first year of studies .
(iv)
As far as her scholastic functioning is
concerned, following the accident there does appear to be a decline
in her scholastic
ability
in
comparison to
her pre-morbid scholastic functioning at school. Lowered scholastic
functioning can also be the consequence of the
experienced
post-accident onset of headaches, fatigue, memory difficulties, slow
learning pace and reported increase in pre-morbid
stress
I
anxiety under test conditions. It is
however important to note that following the accident, the Plaintiff
was still successful in
completing her degree qualification.
[33]
With regards to the diploma course for
which the Plaintiff is currently enrolled, Ms Du Plessis first of all
points to the fact
that although this is a higher level of
qualification, this is also accompanied by a greater volume of work
which
might
increase
in
future
as well.
Furthermore,
the
work
is more
complex
and
is online based. There are also certain concerns regarding the
Plaintiffs mathematical abilities.
[34]
Ms Du Plessis finally concludes that
considering all the factors, it is "unlikely but not impossible"
for the Plaintiff
to complete her diploma course within the required
maximum term of 3 years.
[35]
According to Ms Du Plessis the assessment
results
indicated
that the Plaintiffs
post-accident
cognitive
and
scholastic
ability
is somewhat
lower
than her
estimated
pre-morbid potential, because
of
the injuries sustained and the related negative
sequelae
of these injuries and the negative
psychological impact attached to the injuries sustained as well as
her involvement in the accident
itself which in turn had exasperated
the likely pre morbid vulnerability. As a result, the Plaintiff
has been placed in an
increased vulnerable and disadvantaged position
in comparison to her likely pre-morbid status.
[36]
According to Dr J Preddy, an orthopaedic
surgeon, who had been in practice for 45
years, the CT scans of the Plaintiffs brain, cervical spine, chest
and abdomen revealed
the following:
(i)
Right parietal scalp haematoma;
(ii)
Subarachnoid
haemorrhage;
(iii)
Hangman's fracture;
(iv)
Vertebral injury at C2 level; and
(v)
Grade 1 liver injury.
[37]
The so-called handman's fracture was
described as follows:
"C2
fracture involving the past interarticularis on the left extending
to
the
articular
facet
and
the
right-sided
pedicle
and
vertebral
foramen (C2 hangman's type fracture
involving
the right-sided
vertebral
artery canal)."
[38]
From
the
hospital records which he considered in compiling his medico-legal
report, it was ascertained that the Plaintiff has undergone
an
"uncomplicated C2-3 spine fusion"
on 7 November 2020.
[39]
In the opinion of Dr Preddy, this fusion
was however not 100% effective.
[40]
As far as the cervical- and lumbar spine
injuries are concerned, during Dr Preddy's examination of the
Plaintiff during June 2022,
she complained
of
inter alia
the following:
(i)
Pain in her neck;
(ii)
Her pain is aggravated by rotational neck
movements;
(iii)
She rates her neck pain as 7/10 on the pain
scale;
(iv)
The pain in her neck is exacerbated by
increased physical activities;
(v)
Due to her pain, she struggles
to sleep and constantly
has to change her sleeping position
throughout the night;
(vi)
She experiences pain in her lower back;
(vii)
Her lower back pain is worsened by
inclement weather conditions;
(viii)
The pain is aggravated by standing, walking
and sitting for long periods of time;
(ix)
She struggles to lift heavy objects, due to
the pain associated with her lower back injury; and
(x)
She also struggles with activities that
require her to bend over, such as dressing her lower body and
performing house chores.
[41]
These pains, according to Dr Preddy, can be
severe.
[42]
Analysis of the cervical spine also
revealed that the Plaintiff experiences discomfort in extending her
neck and that there is a
loss of extension.
[43]
Dr Preddy opined that as for the pain the
Plaintiff experiences in her lower back, the latter injury is not the
main problem but
indeed an underlying anthropology of her cervical
spine injury. His prognosis in respect of the cervical spine injury
is that in
conjunction with the normal wear and tear, an extended
fusion of the Plaintiff's cervical spine is foreseeable. He went
further
and described it as follows:
“
Any
time there is
a
fusion
this will lead to
a
next
fusion like
a
ladder."
[44]
Dr Preddy's opinion in respect of the
Plaintiff's productivity
can
be
summarised
inter alia
as
follows:
(i)
That the injuries which the Plaintiff
sustained had an impact on the patient's
productivity and amenities of life;
(ii)
The Plaintiff is going to be absent from
work on a regular basis for conservative / surgical interventions;
(iii)
There is a 30-40% chance that she will
require adjacent level fusion of her cervical spine;
(iv)
From an orthopaedic
perspective, even with successful treatment
of her cervical spine injury, the Plaintiff
will always have a deficit;
(v)
The Plaintiff has become an unfair
competitor
in the
open labour market with regards to advancement in her current career
or gaining future employment;
(vi)
The Plaintiff
will find it difficult to compete with
other healthy subjects for work;
(vii)
The Plaintiff's working abilities have been
negatively affected by the accident; and
(viii)
The Plaintiff should be accommodated in a
light duty / sedentary environment (in this regard he however
deferred to the opinion
of an occupational therapist).
[45]
Dr Preddy testified
that he has operated on plenty of hangman
fractures during his years of practice and find that headaches are
commonly associated
with such injury.
[46]
To treat the Plaintiff in future, so-called
"pain blocks"
will
be necessary because such pain becomes chronic.
[47]
In conclusion, Dr Preddy foresees early
retirement for the Plaintiff due to the challenges which she will
face.
[48]
In her report,
Ms
F Steyn, the occupational therapist, concluded the following:
(i)
The Plaintiff is currently restricted to
sedentary and some light work;
(ii)
Her productivity and efficacy will be
negatively affected even in sedentary work, due to increased
symptomology
in
her neck and lower back with prolonged periods of sitting;
(iii)
Early retirement will probably become indicated
considering her young age, her changes of requiring a secondary
fusion; and
(iv)
The Plaintiff will struggle to compete fairly with pain free
individuals and she will probably struggle with career progression
due to her greater need for task adaption compounded by her inability
to progress beyond an NQF level 7.
[49]
In the latter regard, Ms Steyn referred to
the opinion of the educational psychologist according to whom it is
unlikely that the
Plaintiff shall obtain a NQF level 8 or 9 as was
the case prior to the accident and that she will consequently be left
with a NQF
level 7 and her income generating capacity has thus been
affected as she will not be able to compete with individuals with
better
qualifications for higher positions. This will be again
referred to here later
.
[50]
In his assessment of the Plaintiff, Dr D
Boungou-Poati, a neurosurgeon, opined that the Plaintiff suffered at
least a mild moderate
traumatic brain injury (TBI) with the accident.
This is evidenced by looking at the period of alteration in level of
consciousness
(ALOC), as reported by the Plaintiff herself, which is
indicative of acceleration / deceleration forces applied to the
cranium.
The Plaintiffs current complaints of forgetfulness can also
be classified as post concussion syndrome.
[51]
According to him he foresees
that the Plaintiff will retire 3 -
5 years earlier than usual.
[52]
An actuary, Mr Kambaran,
of the firm 21st Century,
who had been instructed to quantify the
estimated present value of loss of earnings suffered by the
Plaintiff, compiled a report
in this regard.
[53]
The calculations by Mr Kambaran were based
on the report of the industrial psychologist Dr W Naude.
[54]
Dr Naude refers to the fact that future
medical intervention and treatment is anticipated which will likely
have a detrimental impact
on the career prospects and earning
potential of the Plaintiff. Possible early retirement has also been
indicated.
[55]
Reference is then made that no pre-existing
conditions
were
mentioned during the interview with the Plaintiff nor the respective
medical reports.
[56]
As far as the Plaintiffs pre-morbid
vocational review and progression is concerned, it is common cause
that at the time of the accident,
the Plaintiff was a student and
therefore not earning an income (apart from the part time work she
performed over weekends).
[57]
On the evidence of the Plaintiff, her
career plans
pre-accident
are similar to that in the post-accident.
[58]
The retirement age of
65 years may be assumed according to Dr
Naude.
[59]
As far as pre-accident risks are concerned,
Dr Naude recommended that the following risks be considered when
applying contingencies
comparative to the pre-accident state, namely:
"Given the
claimant's educational focus and ambition, it is possible that she
would have furthered her educational studies
(post-graduate)."
[62]
Consequently, according to him
higher educational attainment could have resulted in increased
vocational opportunities and earnings
in the pre-morbid scenario. He
then states as follows:
"The
educational psychologist's opinion indicates
a
NQF 8 or 9 level
-
attainment potential. However, it is
noted that post-graduate selection criteria are up the discretion of
the tertiary education
institution in general and the department I
faculty in particular."
[63]
The facts however now show that the
Plaintiff has indeed enrolled for a diploma for which she is
currently studying at UFS.
[64]
At this stage
I need to indicate that although Ms Du
Plessis, the educational psychologist, impressed as a credible and
good witness, her opinion
on the possibility or likelihood that the
Plaintiff will not complete her diploma qualification within the
prescribed 3 year period,
is nothing more than a mere speculation.
This is her opinion based on the increase in the volume of work, time
constrains but not
on medical or psychological evidence. Although
there are medical indications that there was a decline in the
Plaintiffs cognitive
abilities post-morbid, I am not satisfied that
the Plaintiff will not complete her diploma
in the
3-years'
time. The Plaintiffs
own performance
and dedication to date shows quite the
contrary. If the Plaintiff does not complete her
diploma, it cannot be held that the
decrease in her cognitive abilities is the reason for the Plaintiff
not completing her diploma
within the 3-year period.
[65]
Dr Naude then also refers to
collateral information obtained from Ms A
Herman
,
the
Plaintiffs
direct
line
and
area
manager
at
Absa
Bank,
who expressed the opinion that given the
Plaintiff's aspirations of Financial
Planner/ Advisor, she will obtain the same,
provided she achieves the necessary educational requirements.
[67]
The medical evidence presented by
the Plaintiff shows that currently she is suffering from severe neck
and back pain accompanied
by headaches which
is associated with the serious neck injury.
[68]
The uncontested expert evidence
further shows that the Plaintiff will have to undergo further
fusion(s)
of the
cervical spine in future. There is
approximately a 40% possibility
of such further fusions. This will lead to
certain periods of time which the Plaintiff will have to recuperate
from such medical
interventions. This may also influence her
employment and promotion abilities.
[69]
It is also uncontested that the
Plaintiff needs to take breaks and make use of special seating to
make life easier for her at work.
[70]
It is further uncontested
that a 3 -
5
year early retirement is also postulated. On the evidence of Ms Du
Plessis, it must be held that due to the Plaintiff's
"poor
productivity and efficacy, the Plaintiff will be
a
vulnerable employee who will not be able
to compete
fairly
with pain free individuals
of
the same age and educational level".
[71]
Importantly, Dr Naude notes for
actuarial purposes:
'It
is postulated that she will likely
pursue
a
career
as
Financial
Planner, albeit taking her longer to do so
,
given her accident related injuries
(neurocognitive
,
psychological
and physical)
"
[72]
Again, I agree with Dr Naude's
sentiments that
"given the
collateral provided by the claimant's area manager, noting her
passion and dedication, it is postulated that she
remains
sufficiently driven to her goals in the post accident scenario".
[72]
Two scenarios are then
postulated in respect of the Plaintiff in
the calculation of the loss of earnings by
Dr Naude and then subsequently
by
the actuaries.
Scenario
1
:
[73]
In this scenario the earnings of a
certified Financial Planner/Advisor are postulated to be similar to
the pre-accident scenario.
In this scenario it is postulated
that the Plaintiff
in all likelihood
will continue
in
pursuing
her
studies during 2024. This the Plaintiff indeed has done and will
complete her studies during 2027. She is expected to commence
the
role of assistant financial planner/ advisor during 2027.
Scenario
2
:
[74]
This scenario is postulated on
the possibility that the Plaintiff fails
the post graduate diploma in financial planning
"owing
to the fact that she already attempted the RE5 examination without
success"
and the possibility of
failing the diploma cannot be excluded.
[75]
Consequently, according to the
report, the Plaintiff
may
continue in her current path as a transactional planner without any
future progressions in her career.
[76]
The expert's sentiments expressed to the effect
that the Plaintiff will not complete her diploma within the 3-year
period due to
the fact that she was not able to successfully
complete the RE5 examination
without success, cannot be taken as a
reason to argue that in all probability she will not complete her
diploma within the requisite
3-year
period.
As with
all tertiary qualifications and courses the possibility exist that
such diploma or degree may not be completed. However,
I
cannot
find that
it
is likely
that
she will not complete this diploma for the reasons as advanced.
[77]
In view of the above, scenario 1 is
therefore to be used in the calculations
of
the Plaintiffs loss of earnings.
[78]
In
Southern
Insurance Association v Bailey NO
[3]
the
Supreme Court of Appeal stated that where the method of actuarial
computation is adopted in assessing damages for loss of earning
capacity, it does not mean that a trial judge is
"tied
down by inexorable actuarial calculations".
The
trial court has "a
large
discretion to award what he considers right".
One
of the elements in exercising that discretion is the making of a
discount for
"contingencies"
or
"vicissitudes
of
life".
These
include
such
matters
as
a possibility
that
a Plaintiff may
in
the result
have
less
than
a
"normal"
expectation
of
life; and that he/she
may
experience periods of unemployment by reason of incapacity due to
illness or accident, or to labour unrest or general economic
conditions.
[79]
In making such a discount for
contingencies or the vicissitudes of life, it is, however erroneous
to regard the fortunes of life
as being always adverse: They may be
favourable.
[80]
In
Road
Accident
Fund v Guedes
[4]
,
Zulman
JA stated the following:
"The Court
necessarily exercises a wide discretion when it assesses the quantum
of damages due to loss of earning capacity
and has a large discretion
to award what it considers right. Courts have adopted the approach
that, in order to assist in such
a calculation, an actuarial
computation is a useful basis for establishing the
quantum
of
damages. Even then the trial court has a wide discretion to award
what it believes to it is right. (See, for example, the Bailey
case
and Van der Plaatz v South African Mutual Fire and General Insurance
Company Ltd)."
[81]
As stated, the scenario to be used
in calculation of the Plaintiffs earning capacity, is indeed the
first scenario used by the actuaries.
[83]
Mr
Cilliers
argued that the 20% contingency used by
the actuaries in regards to the pre-morbid future loss of earnings,
is supported, with which
contention I agree.
[84]
As far as the post-morbid
contingencies are concerned, Mr
Cilliers
however submitted
that
whereas
provision
had
not been
made
for
early
retirement
in
using such contingency
percentage,
the post-morbid
contingency
should be increased. With this contention I
also agree.
[85]
Considering all the facts already
referred to, I therefore find that a 48% contingency
should be used in regards to post-morbid
contingencies. The total amount of the loss
of earning capacity is therefore R5 491 395.00
Order
:
Therefore,
I make the following order:
1.
The Defendant shall pay to the Plaintiff
the sum of
RS 872 186.92
within
180
(one hundred
and
eighty)
days
of
this
order in
respect
of the
Plaintiffs
claim against the Defendant for:
1.1
Past hospital - and medical
expenses
R
380,791.92
1.2
Past and future loss of earning
capacity
R 5 491 395.00
2.
In the event of the aforesaid amount not
being paid within
180 (one hundred and
eighty) days
from date of this order,
the Defendant shall be liable for interest on the amount at the
prevailing interest rate, calculated from
the 15
th
calendar day after the date of this
order to date of payment in line with prevailing legislation.
3.
The Defendant
shall pay the Plaintiffs taxed or agreed
party and party costs on a High Court scale in respect of both the
merits and quantum up
to and including
15
March 2024
and notwithstanding and over
and above the costs referred to in paragraph 5.2.1 below, subject
thereto that:
3.1
In the event that the costs are not
agreed:
3.1.1
the Plaintiff
shall serve
a
notice of taxation on the Defendant's attorney of record;
3.1.2
the Plaintiff shall allow the Defendant
180
(one hundred and eighty) days
from date
of allocator to make payment of the taxed cost; and
3.1.3
should payment not be effected within
180
{one hundred and eighty)
days
from date of allocator, the Plaintiff
will be entitled to recover interest at the
prevailing interest rate on the taxed or agreed costs from
15
{fifteen) days
from date of allocator
to date of final payment.
3.2
Such costs will include, as allowed
by the Taxing Master:
3.2.1
the costs incurred in obtaining payment of
the amounts mentioned in paragraphs 1 and 3
above;
3.2.2
the costs of and consequent to the
appointment of counsel, on scale B, including but not limited to the
following: For trial, including,
but not limited to counsel's full
fee for
12, 13 and 15 March 2024;
3.2.3
the reasonable and taxable preparation,
qualifying and reservation
fees,
if any, in such amount as allowed by the
Taxing Master, of the below experts:
3.2.3.1
Dr D Hoffman, plastic surgeon;
3.2.3.2
Dr J Preddy, orthopaedic surgeon;
3.2.3.3
Ors Van Dyk & Partners, radiologists;
3.2.3.4
Mr N du Plessis, educational psychologist;
3.2.3.5
Ms TJ Magubane, clinical psychologist;
3.2.3.6
Dr D Boungou-Poati, neurosurgeon;
3.2.3.7
Ms F Steyn, occupational therapist;
3.2.3.8
Dr W Naude, industrial psychologist;
3.2.3.9
Mr N Kambaran, actuarial consultant.
3.2.4
the cost of and consequent to the
Plaintiffs trial bundles and witness bundles, including
the costs of
5
(five) copies
thereof;
3.2.5
the Plaintiff is declared a necessary
witness and therefore the Plaintiffs reasonable traveling expenses to
attend the trial, as
allowed by the Taxing Master.
4.
The
amount
referred
to
in paragraph
1
will be paid to the Plaintiffs attorneys, A
Wolmarans Incorporated, by direct transfer into their trust account,
details of which
are the following:
Name of account holder:
A Wolmarans Incorporated
Name
of Bank and Branch:
[…] Bank, Northcliff
Account
number:
[….]
Branch
code:
[…]
Type of account:
Cheque (trust)
Reference:
Mrs […] […]/MAT13082
Appearances
on behalf of the Plaintiff:
Adv HJ Cilliers SC
Instructed
by:
A Wolmarans
Incorporated
Bloemfontein
On
behalf of Defendant:
No appearance.
[1]
(1092/2021)
[2023] ZAFSHC 162
(8 September 2023)
[2]
(2022/016179)
[2022] ZAGPPHC 768 (26 October 2022)
[3]
1984
(1) SA 98 (AD)
[4]
2006
(5) SA 583
(SCA)