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[2024] ZAFSHC 363
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Z.R.S obo L.T.S v Road Accident Fund (277/2021) [2024] ZAFSHC 363 (15 November 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable/Not
reportable
Case number:
277/2021
In
the matter between
Z[...]
R[…] S[…] obo L[…] T[…] S[…]
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
Coram:
Loubser J
Heard:
13 August 2024
Delivered:
15 November
2024
Summary:
Young child aged 8 years injured in accident –
child functioned below average with cognitive difficulties before
accident
– contingencies
ORDER
1.
The
draft order is made
and order of court.
JUDGMENT
LOUBSER J
[1]
On 16 July 2019 a young boy by the name of L[…]
T[…] S[…] was hit by a car when he was walking to
school in
the morning. The accident happened along the Tebang-Main
Road in the area of Makwane in the Free State Province. At the time,
L[…]
was 8 years old and in Grade 2. He suffered serious
injuries in the accident in the form of a concussive brain injury and
an occipital
haematoma.
[2]
As a consequence, summons was issued against the
Defendant for the payment of damages in the total amount of
R11 031 418.00.
The proceedings came before this Court.
L[…] is now 13 years old and he is represented in the
proceedings by his mother
and natural guardian, Z[…] R[…]
S[…], who is suing in her personal as well as in her
representative capacity.
[3]
At the
commencement of the proceedings counsel appearing for the Plaintiff
informed the Court that the issues of the Defendant’s
liability, the general damages to be paid by the Defendant and the
payment of future medical treatment by the Defendant have all
been
settled by the parties. It was agreed that the Defendant would be
100% liable for the Plaintiff’s proven or agreed damages,
that
the Defendant would pay an amount of R600 000.00 for general
damages, and that the Defendant would provide an undertaking
in terms
of Section 17(4)(
a
)
of the Road Accident Fund Act
[1]
for the future medical treatment of L[...].
[4]
The Court was further informed that it only had
determine the loss of earnings suffered by L[...]. It soon transpired
that in respect
of this item, only the contingencies to be applied
remained an issue between the parties. An application was made by
counsel for
the Plaintiff for the expert evidence of the Plaintiff
and of the Plaintiff herself to be presented by way of affidavit in
terms
of Uniform Court Rule 38(2), to which application the Defendant
had no objection. Ms. Bornman, representing the Defendant, informed
that there would be no need to cross-examine the expert witness,
since only the contingencies remained in dispute.
[5]
The expert evidence of the Plaintiff comprised of
the evidence of a general practitioner, a neurologist, a clinical
Psychologist,
an educational psychologist, an occupational therapist,
an industrial psychologist and an actuary. The actuary made his
calculations
on the basis of the opinions expressed in the evidence
of the experts mentioned. In view thereof that there were no
objection to
the handing in of the affidavits and expert reports, the
Court then granted the application in terms of Rule 38(2).
[6]
In the evidence, the experts dealt with the
situation of the minor pre-accident as well as post-accident. It
appears that he was
in Grade 2 when the accident happened. Before the
accident, he had to repeat Grade 1, while he also had to repeat Grade
2 after
the accident. After the accident, he suffered from recurrent
headaches, poor memory and concentration, nose bleeds, behavioral
changes and seizures. It is indicated that he needs placement in a
special school catering for the needs of children with cognitive
impairments. The industrial psychologist is of the opinion that
L[...] has been rendered exceptionally vulnerable by the accident
and
the related sequelae. His eligibility for sheltered employment means
that he would be precluded from gainful employment. He
will probably
remain largely unemployed because of the mild traumatic brain injury
he suffered in the accident.
[7]
It is further indicated that L[...]’s mother
completed Grade 11 and his father Grade 10. Before the accident, he
was likely
functioning at a below to average level of intellect. He
showed pre-existing cognitive difficulties during the period before
the
accident. Even disregarding the accident, he may have experienced
periods of unemployment during his career. It is suggested by
the
industrial psychologist that an appropriate pre-morbid contingency be
applied to cater for the aforementioned factors.
[8]
The actuary based his calculations on the reports
of the experts referred to above, and on instructions by the
attorneys representing
the minor child. As for the post-accident loss
of earnings, the actuary assumed that the child would be unemployable
in the future
with nil earnings. Post-accident contingencies were
therefore not applicable. The pre-accident earnings, in other words
the present
value of earnings had the accident not occurred, were
calculated by applying a 20% contingency deduction. So calculated,
the loss
of earnings amounted to the sum of R2 369 399.00, the
actuary found.
[9]
In making final submissions to the Court, counsel
for the Plaintiff contended that the contingency deduction of 20% was
the appropriate
percentage in the circumstances. However, it was
submitted on behalf of the Defendant that a 55% deduction should have
been applied
due to the below average performance of the minor before
the accident.
[10]
The
Court was referred to the recent judgment of Bhoopchand, AJ in the
matter of
Advocate
A.J. du Toit and the Road Accident Fund
.
[2]
The facts of the matter are very similar to the facts of the present
matter. The injured minor in that case was almost 9 years
old when
the accident happened, and he also sustained a mild traumatic brain
injury which caused a loss in concentration and poor
attention which
affected his learning. It also appeared that he was a vulnerable
learner before the accident, just as the minor
child in the present
case. In the case referred to, the Court found that a contingency
deduction beyond 22% was not justified in
determining the patient’s
loss of earnings in the injured state.
[11]
In the present case the child functioned below
average with cognitive difficulties before the accident. That does
not mean, however,
that he could be regarded as someone without any
prospects of progressing in a special school to a level where he
would be able
to find some form of employment, even if such
employment is periodic in nature. In the circumstances, I am of the
view that a contingency
deduction of 25% should be applied in
determining the child’s loss of earnings in the injured state.
[12]
The Plaintiff has been substantially successful,
and there is no reason why he should not be awarded his costs. The
following orders
are premised upon a draft order presented by counsel
appearing for the plaintiff.
1.
The issue of liability is settled for 100%.
2.
The Defendant shall pay to the Plaintiff a capital amount of R2 821
312.00 being:
2.1
R2 221 312.00 for loss of earnings;
2.2
R600 000.00 for general damages.
3.
Payment will be made directly to the trust account of the Plaintiff’s
attorneys of
record, details as follows:
Holder:
Mokoduo
Erasmus Davidson Attorneys Trust Account
Bank
and Branch:
First
National Bank (FNB), Rosebank
Account
number:
6[…]
Code:
253305
Ref:
S244
4.
Payment of the
capital amount referred to in paragraph 2 above shall be made on or
before 180 (one hundred and eighty days) days
from the date of this
court order.
5.
Interest
a
tempore-morae
shall
be calculated in accordance with the Prescribed Rate of interest Act
55 of 1975, read with
section 17(3)(a)
of the
Road Accident Fund Act
56 of 1996
, fourteen (14) days.
6.
The Defendant is ordered to furnish the
Plaintiff with the
100%
Undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, for the costs of the future
accommodation in a hospital or nursing home or treatment of or
rendering of a service or supplying
of goods to the L[...] T[...]
S[...] arising out of the injuries sustained by the Plaintiff in the
motor vehicle collision which
occurred on the 16 July 2019 after such
costs have been incurred and upon proof thereof.
7.
The statutory undertaking referred to in
paragraph 6 above shall be delivered by the Defendant to the
aforesaid Mokoduo Erasmus
Davidson Attorneys on or before thirty (30)
days from the date of this court order.
8.
From the mentioned
amount in paragraph 2,
R100 000.00
(
One
Hundred Thousand Rand)
shall
be paid to the Plaintiff and will not be subject to the discretion of
the Trust.
9.
In terms of the statutory undertaking
referred to in paragraph 6 above, the Defendant shall pay:-
9.1
the reasonable costs
of the creation of the Trust referred to in paragraph 8 above and the
appointment of the Trustee;
9.2
the reasonable costs
of the furnishing of security by the Trustee;
9.3
the costs of the
Trustee in administering the
L[...]
T[...] S[...]’s
estate
shall be entitled to recover its full fees of office in accordance
with its tariff in force from time to time during the
subsistence of
the trust fund as follows:
9.3.1
1.00% acceptance fee
is charged on the value of the assets placed under the management of
Mwanga Fiduciary Services subject to a
minimum fee of R15 000.00 once
off.
9.3.2
1.2% management fee
per annum subject to a minimum fee of R500 per month charged monthly
in arrears.
9.3.3
Where the clients are
non-resident, a 0.1% premium will be charged.
9.3.4
2.28% distribution
fee is payable on the capital value of assets released from the
administration of Mwanga Fiduciary Services.
The distribution fee is
payable in recognition of the time and costs related to the releases
of capital. It is payable irrespective
of the reason for the
release of assets or capital.
9.3.5
Costs relating to
fixed property, shares and to any other assets requiring specific
address will be treated as an expense and charged
separately if
applicable.
10.
The Defendant will pay the agreed or taxed party and party High Court
costs of the action up to and
including the date on which this draft
is made an order of the above Honourable Court, such costs to include
inter alia:-
10.1
the costs of Counsel
(scale B);
10.2
the costs attendant upon the obtaining of
payment of the capital amount referred to in paragraph 2 above;
10.3
the trial costs up to and including the
date of judgment;
10.4
the costs of the Plaintiff’s expert
reports. Such experts to include, but not limited to:
10.4.1
Dr Makua (General Practitioner);
10.4.2
Dr Scher (Orthopaedic Surgeon);
10.4.3
Dr Taniel Townsend (Neurologist);
10.4.4
Talita da Costa (Clinical
Psychologist);
10.4.5
Alet Mattheus (Educational
Psychologist);
10.4.6
Sharilee Fletcher (Occupational Therapist);
10.4.7
Lee Leibowitz (Industrial
Psychologist) and
10.4.8
Wim Loots (Actuary), if any, as may
be agreed or allowed by the Taxing Master;
10.5
the Plaintiff’s attorneys shall serve
the notice of taxation on the Defendant’s attorneys and shall
allow the Defendant
180 (one hundred) days within which to make
payment of such costs.
11.
The requisite steps shall be taken by the Plaintiff’s Attorneys
with a view to forming a trust
to,
inter alia
, administer
and/or manage the financial affairs of L[...] T[...] S[...] and that
such trust shall be formed within a reasonable
period from the date
of this order.
12.
The trust instrument shall provide for the
following as a minimum:-
12.1
there shall be a
minimum of two trustees and a maximum of three, of which at least one
shall be a qualified professional person;
to the extent possible and
practical.
12.2
if the number of
trustees drops below the prescribed minimum the remaining trustees
are prohibited from acting other than to appoint
a replacement
trustee
;
12.3
the composition of
the board of trustees and the voting rights shall be such that any
single trustee cannot be outvoted in relation
to management of trust
assets by any other trustee who has a personal interest in the manner
in which the trust is managed;
12.4
the powers and
authority of the trustees shall not exceed those usually granted to
trustees of special trusts;
12.5
procedures to resolve
any potential disputes, subject to the review of any decision made in
accordance therewith by this Honourable
Court;
12.6
the trust should be
stated to have the purpose of administering the funds in a manner
which best takes account of the interests
of the Minor;
12.7
the separation of the property of the
trustee/s from the trust property;
12.8
ownership of the trust property vests in
the trustee/s in their capacity as trustee/s;
12.9
the independent trustee/s shall provide
security to the satisfaction of The Master in terms of Section
6(2)(a) of the Trust Property
Control Act, 57 of 1988;
12.10
amendment of the trust instrument shall be
subject to the leave of the above Honourable Court;
12.11
the trustee/s is authorised to recover the
remuneration of and cost incurred by the trustee/s in administering
the Section 17(4)(a)
RAF undertaking in accordance with the
undertaking;
12.12
L[...] T[...] S[...] shall be the sole
income and capital beneficiary;
12.13
the trust property is excluded from any
community of property in the event of the marriage of L[...] T[...]
S[...];
12.14
the trust shall terminate upon the
beneficiary’s attaining the age of twenty-one (21)
whereafter the trust assets shall
be
paid to the beneficiary.
12.15
the trust property and administration
thereof is subject to annual reporting by an accountant;
13.
The capital amount referred to in paragraph 2
above, shall be paid by the Defendant directly into the trust account
of the Plaintiff’s
Attorneys of record, Mokoduo, Erasmus,
Davidson Attorneys, for the benefit of the
Minor
.
14.
Mokoduo, Erasmus, Davidson Attorneys will invest
the capital amount less the reasonable attorney and client fees and
disbursements
in terms of
Section
86(4)
of the
Legal Practice
Act
28
of 2014
, with First National
Bank, Rosebank, for the benefit of the
Minor
,
the interest thereon, likewise accruing for the benefit of the
Minor
which investment shall be utilized
as may be directed by the trustee of the Trust, when created;
15.
The party and party costs referred to in paragraph
8 above, as taxed or agreed, shall be paid by the Defendant directly
into the
trust account of Mokoduo, Erasmus, Davidson Attorneys.
P.J. LOUBSER, J
Appearances
For
the Plaintiff:
Adv.
C. Hendriks
Instructed by:
MED
Attorneys, Bloemfontein
For
the Defendant:
Adv.
C. Bornman
Instructed
by:
The
State Attorneys, Bloemfontein
[1]
Act
56 of 1996
[2]
Unreported
judgment in the Western Cape High Court under case no 22528/2018
delivered on 1 August 2024