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[2024] ZAFSHC 326
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Smith obo Sakman v Road Accident Fund (2337/2018) [2024] ZAFSHC 326 (17 October 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no.
2337/2018
In
the matter between:
LIZL
SMITH obo PATRICIA SAKMAN
and
ROAD
ACCIDENT FUND
Plaintiff
Defendant
Neutral Citation
:
Lizl Smith obo Patricia Sakman v Road Accident Fund (2337/2018)
Coram:
Manye AJ
Heard:
04, 05 and 10 June 2024
Delivered:
17 October 2024
JUDGMENT
Manje
AJ
Introduction:
[1]
The Plaintiff, Patricia Sakman claims damages from the Road Accident
Fund (the defendant) arising
out of bodily injuries sustained in a
motor vehicle accident which occurred on 31 May 2015 between Xhariep
Dam and Norvalspont,
in the Free State Province, between a motor
vehicle with registration number: DDM[…] (herein
referred to as the first
insured vehicle) at the time driven by one
Mr T Mwnautlala and a vehicle with registration number: ND 7[…]
(herein referred
to as the second insured vehicle) at the time driven
by one Mr T Makhonxa. At the time of the aforesaid collision, the
plaintiff
was pregnant and was travelling as a passenger in the
second insured vehicle.
[2]
On 10 December 2018 before the Honourable Acting Judge President
Musi, it was ordered that:
i)
Defendant is liable for the payment of 100% of the plaintiff’s
proven or agreed
damages arising from the collision that occurred on
31 May 2015;
ii)
The defendant is liable for the payment of plaintiff’s taxed or
agreed party
and party costs in respect of the merits on the High
Court scale up to the date of that order.
[3]
The only heads of damages for determination by this Court is the
issue of general damages and
the contingencies to be applied. By
agreement between the parties, this determination should be based on
the expert medico-legal
reports inclusive of joint minutes. As a
consequence, no oral evidence was led. The plaintiff and the
defendant’s legal representatives
submitted heads of argument
addressing same.
[4]
The injuries sustained by the plaintiff as a result of the collision
and the
sequelae
thereof are common cause between the parties.
Treatment received by the plaintiff and her future treatment is also
common cause
between the parties. The parties agree that the
plaintiff is entitled to be awarded general damages and further that
she is unemployable
in the open labour market. There is no agreement
between the parties on the amount to be awarded for general damages.
[5]
As I have already indicated above the only issue to be determined by
this Court is the general
damages and the contingencies. The
plaintiff raises a contingency on the future loss of earnings of 18%
and the defendant seeks
to apply for a contingency of 20%.
[6]
In
De
Jongh v Du Pisanie
[1]
the following fundamental principles in relation to the award of
damages are stated as follows:
‘
The Court must
take care to see that its award is fair to both sides – it must
give just compensation to the Plaintiff, but
it must not pour
legalese from the horn of Plaintiff at the Defendant’s
expense.’
[2]
[7]
The determination of appropriate award for general damages involves a
consideration of the plaintiff’s
pain and suffering, loss of
amenities of life and applicable disabilities. The determination is
also factual as it involves having
regard to all the relevant facts
and circumstances relevant to the plaintiff and the nature and extent
of her injuries. The permanency,
severity and the impact of the
injuries sustained on the lifestyle of the plaintiff form part of the
consideration. The discretion
of the Court to award fair and adequate
compensation is wide.
[8]
The injuries that the plaintiff sustained and the
sequelae
thereof have been documented in the expert reports that have been
admitted without oral evidence. The plaintiff sustained an array
of
injuries and a multiplicity of orthopaedic surgeries and amputation
above the elbow of the left arm which limits her lifting
and normal
functioning on a day-to-day.
[9]
The plaintiff’s legal representative submitted in the heads of
argument that the claim for
general damages in an amount of
R2 300 000.00 will be adequate compensation for the
plaintiff’s general damages.
To this end the Court is referred
to cases which, in their view, are comparable cases in support of the
submission that the amount
for general damages claimed will be
adequate.
[10]
In respect of loss of income, I must mention that at the commencement
of the hearing, the Court was presented
with an actuarial calculation
dated 16 May 2024, and by agreement between the parties this
actuarial report is considered correct
in all respects, and on that
basis, it defines the correct position of the plaintiff’s
progress pre-accident and that post-accident
she was unemployable.
[11]
Counsel for the plaintiff submitted that the plaintiff is 29 years
old and in terms of the admitted calculations,
she was likely to work
up to the age of 65 pre-accident. She further argues that having
regard to the aforesaid, the plaintiff
had future employment
prediction of 36 years and, applying the general principle, the
contingency should be 18%. On the other hand,
the defendant argued
for the application of contingency of 20%.
Contingencies:
[12]
The evidence of experts irrefutably establish that the Plaintiff’s
injuries have impaired her earning
capacity and this has resulted in
a loss.
Undeniably there has been a loss of
earning capacity, the value of which must be calculated in terms of
what the plaintiff would
have earned in money if she had not become
incapacitated.
[13]
The claim for loss under the
lex
Aquilia
in
our law is wholly compensatory and is, in a case
In
Dippenaar
v Shield
[3]
the court stated as follow:
‘
in
our law, under the Aquilia, the defendant must make good the
difference between the value of the plaintiff’s estate after
the commission of the delict and the value it would have had is the
delict had not been committed. The capacity to earn money is
considered to be part of a person’s estate and the loss or
impairment of that capacity constitutes a loss, if such a loss
diminishes the estate.’
[4]
[14]
It is trite that the court is to make a reasonable allowance for
‘contingencies, the result of which
it is impossible to
assess’.
[5]
The
determination of percentage of contingency deduction is primarily
based on the guidelines of what is often referred to as a
‘sliding
scale’ is used under which is to allocate a 1/2% (half a
percent) for a year to retirement age, i.e 25% for
a child, 20% for a
youth and 10% in the middle age.
[6]
[15]
It is true that ‘
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.’
[7]
[16]
Taking into consideration the submissions by both legal
representatives, I consider that a 20% contingency deduction to the
plaintiff’s
total loss of income is to be applied.
Order:
[17]
In light of the above I make the following order incorporating the
draft order with courts necessary amendment
as follows:
1. That judgment is
granted in favour of the plaintiff against the defendant in the
following terms:
1.1
The defendant shall pay the capital amount of R1 700 000.00 (one
million seven hundred thousand rand) as compensation for delictual
damages to Lizl Smith N.O. (the plaintiff) in her representative
capacity as curator
ad litem
to Patricia Sakman (the
plaintiff);
1.2
The amount of R1 700 000.00 (one million seven hundred thousand rand)
shall be paid directly to the attorneys for the plaintiff, Renier van
Rensburg Incorporated, with the following bank account details:
Name of account
:
Renier van Rensburg Incorporated Trust account
Bank
:
Standard
Bank – Melville
Branch Code
:
006105
Account number
:
4[…]
1.3
Payment is to be made on 17 April 2025 which is 180 (one hundred
and
eighty) days from date of judgment which is 17 October 2024.
1.4
Interest on the aforesaid amount
a tempore morae
from 17 April
2025 to date of payment.
1.5
That the attorneys for the Plaintiff, Renier van Rensburg
Incorporated,
are ordered:
1.5.1
to cause a Trust (the Trust) to be established in accordance with the
Trust Property Control Act no.
57 of 1988;
1.5.2
to deposit all the proceeds minus the deductions as per paragraph 1.6
hereof in an interest-bearing
account, for the benefit of the
patient, as contemplated in the
Legal Practice Act 28 of 2014
,
pending the establishment of the Trust;
1.5.3
to pay all monies held in the Trust by them for the benefit of the
patient, immediately to the Trust
upon creation of the Trust;
1.5.4
the Trust instrument contemplated above shall make provisions for the
following:
1.5.4.1
that the
patient is the sole beneficiary of the Trust;
1.5.4.2
that the
first Trustee shall be Lee-Anne Edwards (in her capacity as
nominee
of the ABSA Trust Limited and is hereby authorized to
act as trustee or failing the trustee, such an employee of ABSA Trust
Limited
as they may nominate;
1.5.4.3
that the
trustee(s) are to provide security to the satisfaction of
the Master;
1.5.4.4
that the
ownership of the Trust property vest in the trustee(s) of
the trust in their capacity as trustee(s);
1.5.4.5
procedures
to resolve any potential dispute, subject to the review of
any decision made in accordance therewith by this Honourable Court;
1.5.4.6
that the
trustee(s) be authorized to recover the remuneration of, and
costs incurred by the trustee(s), in administering the undertaking
in
terms of
s 17(4)
(a)
of Act 56 of 1996 in accordance with
the Certificate of Undertaking to be provided by the defendant;
1.5.4.7
the trustee(s)
shall be entitled to:
1.5.4.7.1
an acceptance fee of 0.75% of capital received
plus VAT;
1.5.4.7.2
a management fee of 1% per annum plus VAT,
calculated on the capital
held under administration. In addition,
1.5.4.7.3
a termination fee of 2% plus VAT upon finalization
of the Trust;
1.5.4.7.4
charge market-related fees in respect of
specialised services which
it may have performed on behalf of the Trust.
1.5.4.8
the trustee(s)
may further employ the specialized services of
accountants, tax consultants or any other professional service
provider which would
be needed to perform its duties towards the
Trust and the beneficiary. The trustee(s) is/are authorized to pay
market-related fees
in respect of the services rendered by such
accountants, tax consultants and service providers from the Trust
capital or Trust
income.
1.5.4.9
the suspension
of the patient’s contingent rights in the event
of cession, attachment, or insolvency, prior to the distribution or
payment
thereof by the trustee(s) to the patient;
1.5.4.10
that the amendment of the Trust
instrument be subject to the leave of
this Honourable Court;
1.5.4.11
the termination of the Trust upon
the death of the patient,
alternatively upon the consensus of the trustee(s), in which event
the Trust assets shall pass to the
estate of the patient;
1.5.4.12
that the Trust property and the
administration thereof be subjected
to annual audit.
1.6
The plaintiff’s attorneys shall be entitled to make payment
of
fees and/or expenses incurred in respect of:
1.6.1
the fees and disbursements owing and due to Renier van Rensburg
Incorporated;
1.6.2
an amount of R150 000.00 directly to the patient pending the creation
of the Trust;
1.6.3
the curator
ad litem
;
1.6.4
accounts rendered by the expert witnesses; and
1.6.5 counsel
and appearing attorneys employed on behalf of the plaintiff, from the
aforesaid funds held by them for
the benefit of the patient.
1.7
The defendant is to provide an undertaking to the plaintiff in his
representative capacity in terms of
Section 17(4)
(a)
of the
Road Accident Fund Act 56 of 1996
, for the costs of the future
accommodation of the patient in a hospital or nursing home or
treatment of or rendering of a service
to her or supplying of goods
to her arising out of the injuries sustained by her in the motor
vehicle collision on 31 May 2015
which costs shall include:
1.7.1
the agreed or taxed costs to be incurred in the establishment of a
Trust to
inter alia
protect, administer and/or manage the
capital amount and the proceeds thereof referred to above;
1.7.2
the costs of the trustee(s) in administering the capital amount
referred to above;
1.7.3
the costs of the furnishing of the annual security.
1.7.4
the costs of the appointment of a case worker (occupational therapist
and/or social worker);
1.8
The defendant is to pay the plaintiff’s taxed or agreed costs
on a party and party High Court scale, including the following:
1.8.1
the costs of trial on 4, 5 and 10 June 2024;
1.8.2
the costs incurred by senior counsel;
1.8.3
the costs of the curator
ad litem
;
1.8.4
the costs of the plaintiff’s attorneys, which include
reasonable travelling costs, costs for
preparing for pre-trial
conferences, and costs for actual attendance to pre-trial
conferences, the costs of and consequent to compiling
all pre-trial
agendas and pre-trial minutes, including counsel’s charges, the
costs of holding roundtable meetings between
the legal representative
for both plaintiff and the defendant, including counsel’s
charges in respect thereof, irrespective
of the time elapsed between
pre-trials, all costs for preparing for trial, and the plaintiff’s
attorneys hourly fees in attending
to trial on the 4
th
,
5
th
and 10
th
of June 2024 which shall include
all costs previously reserved (if any), the reasonable costs of
consulting the plaintiff and plaintiff’s
parents;
1.8.5
the costs of:
1.8.5.1
obtaining
expert medico-legal reports delivered in terms of
Rule
36(9)(a)
and (b) by experts listed below as well as the patient’s
travelling and lodging costs in attending the plaintiff’s
experts and, if applicable Defendant’s experts;
1.8.5.2
reservation,
qualifying, attendance and accommodation fees for the
following of Plaintiff’s experts, namely:
1.8.5.2.1
Dr Herman Edeling, Neurosurgeon;
1.8.5.2.2
Ms A Gibson, Neuropsychologist;
1.8.5.2.3
Dr L A Fine, Psychiatrist; and
1.8.5.2.4
Dr E Jacobs, Industrial Psychologist.
1.8.6
the travelling and accommodation fees of Plaintiff’s attorneys,
counsel and Curator
ad Litem
to attend the trial on 4
th
,
5
th
and 10
th
June 2024;
1.8.7
the costs of experts attending to RAF.4 Serious Injury Report;
1.8.8
the costs of experts to attend to the commissioning of expert
affidavits;
1.8.8.1
Dr J J
Schutte, Medical Practitioner;
1.8.8.2
Dr D Irsigler,
Medical Practitioner;
1.8.8.3
Dr van
Aswegen, Neurosurgeon;
1.8.8.4
Dr Herman
Edeling, Neurosurgeon;
1.8.8.5
Ms M A
Gibson, Neuropsychologist;
1.8.8.6
Dr L A
Fine, Psychiatrist;
1.8.8.7
Ms E Prinsloo,
Educational Psychologist;
1.8.8.8
Mr B White,
Plastic and Reconstructive Surgeon;
1.8.8.9
Dr S Burgin,
Gynaecologist;
1.8.8.10
Dr L F Oelofse, Orthopaedic Surgeon;
1.8.8.11
Dr Hans Volkersz, Orthopaedic
Surgeon;
1.8.8.12
Sunninghill Radiology, Radiologists;
1.8.8.13
Mr G Shnier, Orthotist Prosthetist;
1.8.8.14
Ms M Georgiou, Occupational Therapist.
1.8.8.15
Ms S Gouws, Occupational Therapist;
1.8.8.16
Dr E Jacobs, Industrial Psychologist;
and
1.8.8.17
Alex Munro, Actuary.
1.8.8.18
Algorithm Consultants and Actuaries.
1.8.9
the reasonable travelling and accommodation costs of the patient and
her mother, who is hereby declared
as necessary witnesses in respect
of trial for 5 and 10 June 2024;
1.8.10 the costs of
six (6) sets of trial bundles;
1.9
The following provisions will apply with regards to the determination
of the aforementioned taxed or agreed costs:
1.9.1
the plaintiff shall serve the notice of taxation on the defendant’s
attorneys of record;
1.9.2 the
plaintiff shall allow the defendant fourteen (14) court days to make
payment of the taxed costs from the date
of settlement or taxation
thereof;
1.9.3
should payment not be effected timeously, the plaintiff will be
entitled to recover interest on the
aforesaid amounts
a tempore
morae
from date of allocator to date of final payment.
T.L.
MANYE, AJ
Appearances
On
behalf of the Plaintiffs:
Advocate Aad Den Hartog
Cell number: 082
413 6901
E-mail:
denhartogaad@gmail.com
Ms L Smith
Cell number: 079
695 2986
E-mail:
lizlsmi@gmail.com
Instructed
by
:
Renier
van Rensburg Incorporated Attorneys
Mr
R van Rensburg
Telephone
number: 001 646 6888
E-mail:
renier|@renierslaw.co.za
On
behalf of the Defendant
:
Office
of the State Attorney
Ms
C Bornman
Cell
number: 079 840 9150
E-mail:
charleneb@raf.co.za
[1]
De
Jongh v Du Pisanie
2005
(5) SA 457 (SCA).
[2]
Ibid para 60, citing
Pitt
v Economic Insurance Co Ltd
1957 (3) SA 284
(D) at 287E-F.
[3]
Dippenaar
v Shiel Insurance Co Ltd
1979 (2) SA 904 (A).
[4]
Ibid
at 917A-B.
[5]
Smith v
RAF
2013 JDR 0902 (ECG) para 15.
[6]
Road
Accident Fund v Guedes
2006 (5) 583 (A) at 588D.
[7]
Southern
Insurance Association v Bailey
1984
1 SA 98.