SAFLII
Notice:
Sure
private/personal particulars of events or witnesses have been
redacted from this doc in compliance with the legislation
and SAFLII
Coverage

IN
THE HIGH COURT OF SOUTH AFRICA

(GAUTENG
 DIVISION, PRETORIA)

CASE
NO: 60812/14

DATE
DELIVERED: 1 NOVEMEBR 2016

IN
THE MATIER BETWEEN

M.
N. P. N. obo L. N.
N.       
                                                                                            Plaintiff

and

ROAD
ACCIDENT

FUND                                                                                          Defendant

JUDGMENT

VAN
NIEKERK, AJ

[1]
 Plaintiff in her consultant capability because the mom and
pure guardian of a boy who was born on […] 2003 instituted  an
motion in opposition to the Defendant, a juristic persona when it comes to the
provisions of Act 56 of 1996 Act”) pursuant to
a collision between a motorized vehicle and the minor on the ninth
day of December 2007 on account of which the minor was injured as
set out infra. Within the particulars of declare it was alleged that
the
collision was triggered because of the sole negligent driving of the insured
automobile on account of which  the minor sustained
a extreme mind
harm, head harm, fracture of the ribs, shock and psychological
trauma and a declare was instituted  in opposition to
the Defendant for
future medical, hospital and associated bills within the quantity of R3 600
000.00, lack of earnings and/or incomes
capability within the quantity  of
 R12 000 000.00,  normal  damages  in  the
 quantity  of R3 500
000.00, in complete R19 100.00. By
settlement between the events an order was made on the twenty ninth of April
2015 in phrases the place of it
was declared that the Defendant is liable
for 100% of the damages suffered in consequence of the accidents
sustained by the minor
on account of the motorized vehicle collision
referred to and  it was
additional ordered that the query referring to the quantum of the
Plaintiff’s declare be decided individually in
phrases of the provisions
of Rule 33(4) and such subject was postponed It was additional ordered that the Defendant
pay the Plaintiff’s prices of swimsuit attributable to the query of
legal responsibility.

[2]
The difficulty referring to the quantum of damages commenced earlier than this
Court docket on 27 October 2016, and each events ‘counsel confirmed
that
the problems between the events’ have been narrowed on account of an
settlement reached between the events previous to the graduation
of
the trial as follows:

[2.1]
In respect of future medical, hospital and associated bills it was
agreed that the Defendant would furnish the Plaintiff with
a suitably
worded written endeavor when it comes to Part 17(4)(a) of the Act;

[2.2]
The Defendant has admitted the correctness of the contents of all of the
knowledgeable experiences filed on behalf of the Plaintiff, together with
the joint
minutes filed  by varied of the specialists, on account of which
there would  be  a  no factual dispute
referring to the
nature and extent of the accidents  sustained  by the minor,
nor the thereof;

[2.3]
In respect of the declare for a lack of future earnings it was agreed
that such declare needs to be computed and calculated on the
foundation as set
out in an knowledgeable report of an Industrial Psychologist, Mr J J
Prinsloo, and Mr G W Whittaker, an Actuary, with the
exception of the
contingency deduction which has been utilized by the Actuary in an
up to date report filed by such knowledgeable witness
and that solely the
contingency proportion needs to be determined by the courtroom.

[3]
The impact of the aforesaid agreements reached between the events
was particularly that the one points which this Court docket needed to decide,

was the suitable contingency adjustment to be made to the
actuarial figures in respect of the minor’s future lack of incomes

capability, the quantum in respect of the overall damages suffered by
the minor, and the difficulty of prices of the motion. Because of this
of the
aforesaid, the remaining points was able to being disposed of on
the idea of argument alone, with out the need of
listening to proof, and it’s commendable that the authorized
representatives of each events have been in a position to curtail the proceedings
and resultant
prices considerably by making use of their collective sound
logic, sense of purpose and expertise to the problems in query. The
events
additional assisted the Court docket by making ready a draft order which
supplies for the appointment of a trustee to
safeguard any award this Court docket makes, the availability of a Certificates
when it comes to Part 17(4)(a)
of the Act, and on account of which all
that is still is for this Court docket to find out the quantum of the
normal damages as effectively
because the contingency proportion deduction in
respect of the lack of future earnings, and that the sum complete of
these quantities be inserted
into the draft order. The remaining points
are handled individually hereunder:

GENERAL
DAMAGES:

[4]
When it comes to Part 17(1)(b) and 17(1A) of the Act, normal damages
can solely be claimed for severe harm, and it was widespread
trigger
between the events that the accidents sustained by the minor
constitutes as
contemplated when it comes to the Act.  It’s trite legislation that it’s
the obligation of the Court docket to award compensation below the heading
of
so-called which
is truthful and affordable compensation for ache, struggling, discomfort,
lack of facilities, shock and psychological trauma triggered
by the
accident and that the actual circumstances of the case have to be
thought-about. It’s additional established legislation that comparable
circumstances and
the lower within the worth of cash since such circumstances have been determined
might be thought-about, however that awards made in earlier
circumstances can solely
afford broad and normal pointers within the view of the variations
which inevitably come up in every case.

[5]
For  functions  of  awarding  damages  below
 the  heading  of  so-called  

See also  The Simpsons Arcade Game (Game)

the knowledgeable experiences referred to supplies detailed
details about the minor kid’s accidents, which have been:

[5.1]    
A extreme diffuse axonal mind harm;

[5.2]    
A vocal mind harm demonstrated by an intracerebral haematoma;

[5.3]    
A chest harm consisting of pulmonary contusion;

[5.4]    
Lacerations of the left brow and under the left aspect of the nostril
and above the lip.

[6]
After sustaining the aforesaid accidents within the accident, the minor
was taken to a hospital in Nongoma and instantly transferred
to a
hospital in Empangeni the place CT-scans of the mind have been accomplished.
Thereafter a request was made for a switch to the Albert Luthuli

hospital in Durban because of the extreme nature of the accidents. After
viewing the scans in Durban the neurosurgeons concluded that
the
minor’s head harm was of such a severe nature that they might not
be capable to do something for him and consequently the mind
harm was
handled non-operatively in Empangeni the place the minor baby remained
within the Intensive Care Unit for seven days and thereafter
the kid
spent one other week within the Basic Ward. The kid was thereafter
returned to Nongoma the place he remained for an additional
six weeks in
hospital earlier than he was discharged. All indications are that, on the
time when the kid was discharged, he was severely
regressed and
offered as new born child who needed to study to sit down, to crawl, to stroll
and was in nappies on account of an absence of
management. In response to the
experiences, the minor was unconscious for greater than two weeks, which is
indicative of a extreme head and
mind harm.

[7]
The knowledgeable witnesses agreed that the mind harm triggered irreversible
and vital long run neurocognitive and neuro-physical
and that the vocal mind harm has resulted in a spastic
hemiplegia on the left. A neurosurgeon described the minor’s harm
as
which suggests everlasting mind harm with devastating results in
a number of areas.

[8]
In response to an ear-, nose- and throat specialist the minor suffers
from spontaN.us nystagmus of each eyes, a situation which
causes an
involuntary leaping motion of the eyes which can be a consequence
of the intense head harm. This situation is irreversible.
 An
ophthalmologist recognized a left homonymous hemianopia of the minor
which is incurable, causes a studying downside, and
may have a
destructive impact on the kid’s employment  potentialities and his
enjoyment of life’s facilities.

[9]
The minor presents with a depleted communication profile indicating
receptive and expressive language deficits, cognitive linguistic

deficits, govt dysfunction and pragmatic problem in private
conditions, and these issues  have a destructive influence
on the
minor’s scholastic functioning and will probably be detrimental to his
schooling, vocational coaching, employability and finally
on his
dependence.

[10]
When it comes to a neuropsychological evaluation, it was discovered that the
minor is severely impaired within the fields of high-quality motor velocity

dexterity for each palms and particularly for the hemiparetic left
aspect, and basically expertise issues with co-ordination,

focus, potential to purpose, gradual comprehension, and an
indication of disturbances within the minor’s behavioural capabilities
significantly
within the area of mood management. In response to the
experiences, the kid spent 5 years in Grd. 1where he was teased by
the opposite
students, acted in direction of them aggressively or withdrew and
cried. The minor isn’t in a position to cope in a standard mainstream college
setting
and can inevitably obtain restricted specialised
education.

[11]
The minor suffers from continual complications and his left arm and left
leg are underdeveloped. He struggles to choose up a pin or
a pen with
his left hand from a flat floor and his high-quality co-ordination is poor.
He has a poor sense of steadiness and he walks with
a spastic hemiplegic
gait on the left. This, in easy phrases, implies that the minor can’t
stroll usually, run, play, take part
in sport or do lots of the
issues that an unhurt regular particular person take as a right.

[12]
The specialists additional agree that the minor baby runs a 5% to eight% likelihood
of creating epilepsy in future. Presently the kid
expertise
periodic seizures.

[13]
The impact of the aforesaid accidents and the thereon on the minor’s life is devastating. As said he’s unemployable within the open market. The minor will want
help and take care of the remainder of his life. He’s unable to play
like
a standard

baby
along with his friends and neither will he be capable to take pleasure in a standard grownup
life. The compound impact of all of those disabilities
in relation to
the difficulty of lack of facilities, ache and struggling, and emotional
trauma is apparent.

[14]
This Court docket was referred to numerous precedents referring to the difficulty
of the of damages. As may be anticipated, Plaintiff’s
Counsel referred this Court docket to precedents the place damages in current
 day phrases  amounting
of  Rl.8 million was  awarded,

whereas
Counsel performing on behalf of the Defendant referred to numerous
precedents the place lower than R l million was awarded. This Court docket
can
solely be guided by these precedents, as none of these precedents are
factually on all 4 to the matter Contemplating
the proverbial low water marks and excessive water marks of the precedents
referred to by Counsel performing on behalf 
of the respective
events, and contemplating the information this Court docket is of the opinion {that a} truthful and affordable
quantity of damages to be awarded below the heading of quantities to R l 400
000.00.

CONTINGENCY
ISSUE:

[15]
It’s common trigger between the events that the actuarial calculation
of the worth of the minor’s pre-accident revenue incomes
quantities to RS
819 748.00. That is the quantity  as calculated within the actuarial
report of Algorithm  Consultants and Actuaries
dated 12 August
2016. This Court docket should decide the so-called
for normal contingency deductions for
objects equivalent to a lack of earnings, financial savings  in relation to journey
to and from  work,
 danger of future  retrenchment  and
resultant unemployment, and different elements which can negatively and/or
positively
affect the incomes functionality of the minor ought to he
haven’t been injured. All that the Court docket can do is to make an
estimate.

See also  The Best Pest Control Companies in Cleveland, OH (2021) - This Old House

[16]
Once more I used to be referred by Counsel to precedents the place as a lot as 50%
was utilized for a contingency deduction, and referred to
the Quantum
Yearbook 2016 at p. 124 the place the discovered writer Koch states:

[17]
It’s apparent that there’s danger concerned in calculation of future
earnings, primarily based on life’s fact that intervening occasions
might cut back
 an  particular person  incomes  capability whereas on the
similar token, different occasions might enhance a person’s
incomes
capability. That is all speculative. For my part the impact of this
hypothesis shouldn’t be to considerably cut back a
reputable declare
for damages, the aim of which is to deal with a disabled
particular person for the remainder of that particular person’s life.
I additional can’t
subscribe to the notion that some type of calculation or components
ought to apply in phrases whereof, the youthful the
baby the higher the
proportion contingency needs to be utilized. I’m of the view that there
is advantage within the submissions made on
behalf of Counsel for the
Plaintiff who argued that it’s unfair to offer for the danger of
survival of a younger baby by rising
the proportion contingency
the place the actuarial calculation of future earnings is already primarily based
on an actuarial life expectancy
and which due to this fact leads to a
proverbial for a younger claimant.

[18]
Counsel for Plaintiff invited me to use a 20% contingency deduction
and I can’t fault this suggestion. Counsel for Defendant
invited me
to deduct a 30% contingency deduction, the impact of which might be
to considerably lower the accessible funds for
the minor which is
supposed to offer for his dwelling bills for the rest of his
life.  I’m of the view that it might
not be truthful and
affordable.

[19]
Within the premises, I discover that the contingency deduction in respect of
the minor’s declare for a lack of future earnings ought to
be 20% and the
minor’s internet lack of revenue in future will quantity to the sum of R4 655
798.00.

COSTS:

[20]
Defendant did not make any formal supply and positioned all points in
dispute within the pleadings. Defendant’s Counsel correctly conceded
that
the Defendant ought to  be chargeable for all the prices incurred,
together with prices of the knowledgeable employed on behalf of the  Plaintiff.

[21]
Within the end result I make an order when it comes to the draft order handed in
by settlement between the events which I’ve marked “x”

with the proviso that the quantity in paragraph 1thereof ought to learn
R_6055 798.00.

P
A VAN NIEKERK

ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA

 

__________________________

P.
A. Van Niekerk

Performing
Choose of the Excessive Court docket,

Gauteng
Division, Pretoria.

Listening to:             
28 October 2016

Judgment:          
1 NOVEMBER 2016

HEARD
ON:  28/10/2016

FOR
THE APPELLANT: ADVOCATE G. ALBERTS SC

INSTRUCTED
BY: SAVAGE JOOSTE AND ADAMS

FOR
THE RESPONDENT: ADVOCATE F. MATIKA

INSTRUCTED
BY: TAU PHALANE INC. ATIORNEYS

IN
THE HIGH COURT OF SOUTH AFRICA

GAUTENG
DIVISION, PRETORIA

Earlier than
the Honourable Mr. Justice

P.A
van NIEKERK,

DATE:
27 October 2016

 CASE
NO.: 60812/2014

In
the matter
between:                                                          

N.P.
N.MBATHA o.b.o  L. N.
N.                                                                               

PLAINTIFF

and

ROAD
ACCIDENT FUND           
                                                                        

DEFENDANT

DRAFT
ORDER

By
settlement between the events:

1.
The Defendant is ordered to pay the Plaintiff an quantity of R6055
79800 for the advantage of the minor, L. N. N., which quantity shall
be
paid inside 14 days to the credit score of the belief account of the
Plaintiffs Attorneys of document, Jooste &
Adams Inc, Pretoria, whose belief account particulars are as follows:

Nedbank title

NEDCOR – ARCADIA

 

Account sort

 

Department code

TRUST ACCOUNT

 

16-33-45-07

 

Account no

 

Reference no

[1…]

 

Mr Makole/KM262

2.
Within the occasion that the aforementioned quantity in paragraph 1 above Is
not paid timeously by the Defendant, curiosity will probably be payable
on the
full excellent quantity on the charge of 10.25% calculated from the due
date as much as and together with the date of cost.

3.
The  award  as  pertaining  to  the  minor,
 (L. N.  N.)  shall  be correctly
shall be
protected via a Belief (“the trust”).

4.
It’s hereby approved that Jean Vosloo, of Normal Financial institution Belief, is
to be the Trustee of the belief and is to ascertain the belief
of which
L. N. N. shall be the only real beneficiary. A replica of the
trustee’s consent is connected hereto and marked as Annexure “A”.
The appointment
of the Trustee is topic thereto that the Trustee
furnishes safety to the satisfaction of the Grasp of the Excessive
Court docket. It’s
within the Trustee’s sole and absolute discretion to:

4.1             
Acquired any shares, till belief, debentures, shares,
negotiable
devices, mortgage bonds, notarial bonds, securities, certificates
and any moveable property or any incorporeal rights
and to put money into
such property and to lend funds to any get together or make a deposit or
funding with any establishment, such funding
to be of such nature
and on such phrases and situations because the Trustee might deem match.

4.2             
Change, exchange, re-invest, promote, let, insure,
handle, modify,
develop, enhance, convert to money or deal in every other method with
any asset which every so often types half
of belief funds:

4.3             
Borrow cash;

4.4             
Pledge any belief property, to encumber such property
with mortgage bonds
or notarial bonds to make the most of similar as safety in any method
in anyway;

See also  Clam AntiVirus Free Download

4.5             
Institute or defend any authorized proceedings or in any other case
to take any
different steps in any courtroom of legislation or different tribunal and to topic
controversies and disagreements to arbitration;

4.6             
To name up and/or gather any quantities that will
every so often
turn out to be because of the belief fund;

4.7             
Settle or waive any declare in favour of the belief;

4.8             
Train any possibility and to simply accept and train
any rights;

4.9             
Train any rights or to incur any obligation
in reference to any
shares, shares, debentures, mortgage bonds or different securities or
investments held by this belief;

4.10         
Open account at any financial institution or different monetary establishment and to handle

such accounts and if essential to overdraw such account;

4.11         
Draw any cheque or promissory word, to execute or endorse similar;

4.12         
Take recommendation from any legal professional or advocate or every other knowledgeable for the

account of the related belief account;

4.13        
Lodge and proof claims in opposition to firms in liquidation or below
judicial administration
and in opposition to bancrupt or deceased estates;

4.14         
Appoint skilled or different particular person on a short lived or everlasting
foundation
to conduct the entire or any portion of the enterprise of the
belief below supervision of the trustee or to handle the funding of

half or everything of the funds of the belief and to remunerate such
individuals for his or her companies out of the funds of the belief;

4.15         
Kind any firm and to carry any curiosity in any firm and to kind
every other belief to carry an curiosity in every other belief or partnership
or endeavor for the needs of this belief or within the curiosity
of
any beneficiary;

4.16         
Amalgamate with every other belief with the identical or comparable goals as this

belief;

4.17        
Start any enterprise or proceed such enterprise or to amass an
curiosity therein
and for such objective to amass property or to incur
bills and to partake within the administration, supervision and management of
any enterprise
and to conclude any partnership or three way partnership;

4.18         
Settle for any disposal in favour of this belief and to adjust to any
situations
concerning such disposal;

4.19         
On the whole do all issues and to signal all paperwork required to offer
impact
to the goals of this belief.

5.
The Defendant is ordered to furnish the trustee (to be appointed in
phrases of paragraph 3 hereto) with an Endeavor in phrases
of Part
17(4)(a)
of the Street Accident Fund Act, No 56 of 1996, to compensate
the minor for 100% of the price of future lodging
in a hospital or nursing residence or therapy of or rendering of a
service or supplying of products
to the minor ensuing from accidents
sustained by her on account of an accident that occurred on the 09
DECEMBER 2007. The aforesaid
Prices shall embrace:

5.1.         
The affordable remuneration of and the affordable prices incurred by
the
trustee of the Belief to be fashioned in administering and managing
the capital quantity referred to in paragraph 1 above, which
remuneration
and prices shall not exceed the equal quantity which a
would have been entitled in
phrases of and as decided by the Administration  of
Estates Act, Nr 66 of 1965, as
amended, and the prescribed tariff relevant to as contained within the Authorities Gazette
Discover R1602 of 1st of July
1991, and, extra particularly, paragraphs(a) and (b) of the
schedule thereto;.

6.
The Defendant is ordered to pay the Plaintiff’s taxed or agreed Get together
&

Get together
Prices on the Excessive Court docket Scale, which shall embrace the next:

6.1     
The prices of consultations, preparation and drafting of knowledgeable
experiences, addendum experiences (if any),
joint minutes, preparation and
reservation (if any)  and attendance of Court docket for the next
specialists:

6.1.1        
Dr. J J Du Plessis, Neurosurgeon;

6.1.2        
Dr Mazabow, Scientific Neuropsychologist;

6.1.3        
Dr J S Enslin, Ear Nostril & Throat Surgeon;

6.1.4        
Dr Konig, Ophthalmologist;

6.1.5        
Archer & Mann, Audiologist;

6.1.6       
Mirriam Shut, Psychiatrist;

6.1.7        
Malusi Mokgata, Speech Therapist;

6.1.8       
Elmarie Prinsloo, Instructional Therapist;

6.1.9       
Anneke Greeff, Occupational Therapist;

6.1.10     
Kobus Prinsloo, Industrial Psychologist;

6.1.11   
Algorithm, Consultants & Actuaries.

6.2            
The travelling and lodging prices of the Plaintiff
and the minor
in attending all of the medico-legal appointments and attendance of
Court docket;

6.3            
The Prices of Senior Counsel;

_______________________

BY
ORDER

REGISTRAR

 

_______________________

obo
Plaintiff: Adv G W Alberts SC

                  
082 499 2000

                  
Brooklyn Chambers

Standard

Belief

Savage
Jooste & Adams Inc P 0 Field 745

Pretoria

0001

Oocex
58 Pretoria

Belief
for N.P. N.M.obo L. N. N..

We
affirm that Normal Belief Restricted will take up the appointment as
Trustee of the Belief to be created for the advantage of L.
N. N..

We
place on document that as Trustees,Normal Belief Restricted needs to be
entitled to levy our full tariff of charges for the administration
of
the Belief. We function throughout the following tiered construction and
cost charges month-to-month in arrears as indicated under:

  • 1%
    a
    12 months on
    any worth
    as much as
    Rl.5 million (topic to a minimal payment of R540.00 monthly)

  • 0.9%
    a 12 months on
    that worth
    greater than Rl.5
    million

I
hereby declare Normal Belief restricted is ready to:

•   
Create a Belief for the
good thing about the beneficiary to obtain and handle the property from the

RAF.

•   
Act as Trustee to handle
and make investments the property in accordance with the rules of the courtroom order
for the advantage of the beneficiary.

Yours
faithfully

 

Jean
Vosloo

18/10/2016

Leave a Reply

Your email address will not be published.