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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)    REPORTABLE : YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

 

Case number: 24434/2017

Heard on: 10 September 2019

Date of judgment: 19 September 2019

 

In the matter between:

 

ADV S SAYED N.O obo SM ZITHA                                                                       Plaintiff

 

and

 
THE ROAD ACCIDENT FUND                                                                              Defendant

JUDGMENT

SWANEPOEL AJ:

[1]          This is a claim for damages pursuant to a motor vehicle collision which occurred on 24 July 2016. Defendant has accepted liability for 100% of plaintiff's proven or admitted damages.

[2]          The parties have agreed the quantum of general damages in the amount of R 900 000.00. The only remaining issue for determination is that of plaintiff's loss of future income. Defendant has accepted plaintiff's expert reports, and the only matter to be determined are the contingencies to be applied to the calculated loss.

[3]        At the time of the accident plaintiff was 44 years of age. He suffered a moderately to severe diffuse brain injury, a fracture dislocation of the neck at level C6n, a dislocation of the right elbow and right wrist, a pneumothorax on the left side, and a laceration to the head.

[4]          As a result of the brain injury plaintiff is left with residual neurocognitive problems, which manifest themselves as:

4.1      Memory problems;

4.2      An decreased ability to concentrate;

4.3      A reduced ability to multi-task;

4.4      Word-finding problems;

4.5      Irritability and social withdrawal behaviour;

 

[5]          Plaintiff suffers from headaches on a daily basis, pain to his neck and right eye, as well as to his right elbow and wrist. At the time of the accident plaintiff was employed as a Human Resources Assistant, but he has had to take up a less demanding position as Time and Attendance Clerk. His employer has been very understanding of his plight, and has allowed plaintiff to take up the less demanding post. However, his performance and productivity is reportedly much reduced. He has suffered neuro-cognitive, neuro-behavioural and neuro­ psychiatric changes which have had an impact on his self-esteem, his interpersonal relationships, as well as on his career progression and earning capacity. No improvement to his condition is expected.

[6]          Plaintiff has much reduced competence for work as a human resources assistant. He is not able even to do light physical work and his physical competency is expected to reduce even further in future. The parties accepted that he is not expected to work beyond the age of 55 years. It is also possible that he might lose his current employment before that time, in which case it is highly unlikely that he will obtain other employment.

[7]          Both parties agree that 10% contingency should be applied to plaintiffs earnings but for the collision. Based on plaintiffs current income, his future earnings taking the accident into consideration have been calculated at R 2 134 004. Plaintiff says that a contingency deduction of 45% should be made to this figure given the probability that plaintiff would lose his employment before the age of 55 years. Defendant is more optimistic that plaintiff will retain his employment, and has contended for a 20% contingency deduction (post- morbid). Plaintiff later conceded that a 30% contingency deduction was probably more appropriate than the originally proposed 45% deduction.

[8]          It seems to me that plaintiff is utterly reliant on a sympathetic employer, and there is little argument that should he lose his employment, he will most likely not be employed again. There is also the likelihood that plaintiffs condition will continue to deteriorate, which might well lead to a loss of employment, immaterial of how sympathetic his employer is.

[9]          Given the aforesaid I am of the view that a higher than normal contingency of 30% must be applied post morbidly, and I calculate plaintiffs future loss of earnings as follows:

Future loss of Income (but for accident:)                   R 3 749 898.00

10% contingency deduction:                                          R 374 990.00

Net value but for accident:                                             R 3 374 908.00

Future loss of income (having regard to accident:) R2 134 004.00

30% contingency deduction:                                         R640 201.20

Net value having regard to accident:                             R1493802.80

 

R 3 374 908.00- R 1 493802.80= R 1 881 105.20

 

[8]          I therefore find that plaintiffs net loss of income amounts to R 1 881 105.20. To this must be added the general damages of R 900 000.00 bringing plaintiffs total damages to R 2 781 105.20.

[9]          Plaintiff has presented me with a draft order with which, save for the amount of the damages, the parties are in agreement. Consequently I make the following order:

9.1     The draft order marked "X" and initialled by me is made an order of Court.

 

 

Swanepoel AJ

Acting Judge of the High Court,

Gauteng Division, Pretoria

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Case No: 24434/17

 

On 10 September 2019, before the Honourable Justice Swanepoel AJ

 

In the matter between:

 

ADVOCATES. SAYED N.O.

(CURATOR AD LITEM OF S M ZITHA)                                                 PLAINTIFF

 

And

 
ROAD ACCIDENT FUND                                                                          DEFENDANT

 
DRAFT ORDER

Having heard Counsel

IT IS ORDERED THAT:

 

1.          Merits are settled 100% in favour of the Plaintiff.

2.          The defendant pay the Plaintiff an amount of R2 781 105 – 20 (Two Million Seven-Hundred and Eighty One Thousand One Hundred and Five Rand Twenty Cents) in full and final settlement of the Plaintiff's claim for General Damages and Loss of Earnings, payable into the Plaintiff's attorneys of record trust account with the following details:

Account Holder: Ehlers Attorneys

Bank Name: FNB

Branch Code: 261550

Account Number: [….]

 

3.        The Defendant will not be liable for interest on the above mentioned amount, save in the event of failing to pay on the due date, in which event the Defendant will be liable to pay interest on the outstanding amount at a rate of 10.25% per annum.

4.        The Defendant is ordered to furnish the Plaintiff with an undertaking, in terms of Section 17 (4) (a) of the Road Accident Fund Act 56 of 1996, for the costs of future accommodation in a hospital or a nursing home or treatment of or rendering of a service or supplying of goods to the injured after such costs have been incurred and on proof thereof, relating to the injuries sustained by the Plaintiff on 24 July 2016.

5.         The Defendant is ordered to pay the Plaintiffs taxed or agreed party and party costs on High Court scale, subject to the discretion of the taxing master, which costs will include, but will not be limited to the following:

5.1       The reasonable taxed fees for consultation with the experts mentioned below, together with delivery of expert bundles including travelling and time spent travelling to deliver such bundles, preparation for trial, qualifying and reservation fees (if any and on proof thereof), including the costs (fees and disbursements) of all consultations (inclusive of telephonic consultations) with Counsel and/or Plaintiff's attorney and the costs (fees and disbursements) of all consultations between the Plaintiff's and Defendant's experts, as well as costs of the reports, addendum reports, joint minutes and addendum joint minutes and full day fees for court attendance (if at Court) of the following experts:

5.1.1          Dr P Engelbrecht - Orhtopaedic Surgeon

5.1.2          Dr P H Krtizinger - Neurologist

5.1.3          I Jonker - Neuropsychologist

5.1.4          Dr T P Meja - Neurosurgeon

5.1.5          Dr APJ Botha - Specialist Physician

5.1.6          M Sissison - Clinical Psychologist

5.1.7          Dr M Naidoo - Psychiatrist

5.1.8          D Rademeyer - Mobility Expert

5.1.9          N Davidoff - Speech Therapist

5.1.10       Dr C Weitz - Ophthalmologist

5.1.11       Dr JPM Pienaar - Plastic Surgeon

5.1.12       Dr I J Van Heerden – Urologist

5.1.13       Dr GM Fredericks- Disability & Impairment Assessor

5.1.14       N September- Occupational Therapist

5.1.15       Jacobson IP's- Industrial Psychologist

5.1.16       G Jacobson - Actuary

 

5.2        The costs for Accommodation and transportation of the injured as well as a family member, with JT Transportation Services or any alternative transport provider, to the medical legal examination(s) arranged by Plaintiff and the Defendant.

5.3        The costs for Accommodation and transportation with JT Transportation Services or any alternative transport provider, for the injured as well as a family member to attend Court.

5.4        The costs of an inspection in loco by the Plaintiffs attorney.

5.5        The costs of appointing an assessor to investigate merits.

5.6        The costs for the Plaintiffs attorney travelling to and spending time travelling to pre-trial conferences and attendance at pre-trial conferences by the Plaintiffs attorney.

5.7        The costs for preparation of Plaintiffs bundles of documents for trial purposes, as well as the travelling costs and time spent to deliver these bundles.

5.8        The costs for preparation of Plaintiffs bundles of documents for experts, as well as the travelling costs and time spent to deliver these bundles.

5.9       The costs and fees of the curator ad litem, including but not limited to any consultations deemed necessary, including but not limited to consultations with trustees, the Masters office, the Plaintiffs attorney, family members of the injured, medical experts and any other experts deemed necessary, as well as the drawing of reports and day fees.

5.10    The costs for preparation of Plaintiffs bundles of documents for the curator ad litem, as well as the travelling costs and time spent to deliver these bundles.

5.11     The costs of Advocate Jaco Barn briefed and appearing for trial, including but not limited to the following:

5.11.1       Preparation for Trial;

5.11.2       Consultations with Plaintiffs Attorney in respect of Preparation for Trial;

5.11.3       Consultations with Plaintiff and or family members in respect of Preparation for Trial;

5.11.4       Drafting heads of argument;

5.11.5       Day fee for 10 September 2019.

 

6.         The Defendant is ordered to pay the Plaintiffs taxed and/or agreed party and party costs within 14 days from the date upon which the accounts are taxed by the Taxing master and/or agreed between the parties.

7.         Should payment of taxed costs not be effected timeously, Plaintiff will be entitled to recover interest at the rate of 10.25% on the taxed or agreed costs from date of allocator to date of payment.

8.          The Plaintiffs attorneys of record; Ehlers Attorneys, shall attend to the creation of an inter vivos trust in order to protect the awarded funds for the exclusive benefit of the injured, in accordance with the recommendation of the curator ad litem regarding the investment and management of the funds on behalf of the injured. The curator ad Iitem recommends the following trustees for the trust: Saqsby Wealth Management (Pty} Ltd and RW Robbertse.

9         The Plaintiff's attorneys: Ehlers Attorneys, must keep the monies received as set out in clause 2 of this order in their trust account and will only be allowed to pay such monies over to the trustees of the trust to be created in terms of clause 8 of this order, once the Master of the High Court has issued the trustees with the necessary letters of authority;

10.1    The Plaintiff's abovementioned attorneys are however, authorized to pay the attorney and client fees and expenses of the Plaintiff from the above-mentioned funds held in trust;

10.2    The Plaintiff's abovementioned attorneys are further authorized to pay from the abovementioned funds held in trust, the costs to set security to the Master of the High Court by the trustees of the trust to be created, which costs in turn must be refunded by the Defendant to the Plaintiff.

11.        The Defendant is ordered to pay the costs in respect of the creation and future administration of the said trust to be formed in order to manage and administer the compensation payable to the Plaintiff as referred to in paragraph 2 of this order, which costs will include the fees of the trustees.

12.        There is a valid Contingency Fee Agreement signed by the Client and ratified by the Curator ad litem.

 

 

Counsel for the Plaintiff: Advocate Jaco Barn 082 828 2388

Counsel for the Defendant: Advocate Thabethe 083 298 5690

 

 

BY ORDER

REGISTRAR

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