South Africa: Eastern Cape High Court, Port Elizabeth
You are here:
SAFLII >>
Databases >>
South Africa: Eastern Cape High Court, Port Elizabeth >>
2014 >>
[2014] ZAECPEHC 101
| Noteup
| LawCite
B and Another v Road Accident Fund and Others (1505/2009) [2014] ZAECPEHC 101 (20 February 2014)
Download original files |
PDF format
RTF format
|
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy |
REPORTABLE/NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case no: 1505/2009
Date heard: 28-31 January 2014
3-7 February 2014
12 February 2014
Date delivered: 20 February 2014
In the matter between
C[…] C[…] B[…]...............................................................................................................First Plaintiff
OLAV HAROLD RONASSEN NO...............................................................................Second Plaintiff
vs
ROAD ACCIDENT FUND.............................................................................................First Defendant
MARLON PAULSE....................................................................................................Second Defendant
RALTON VAN ROOYEN.............................................................................................Third Defendant
LION OF AFRICA INSURANCE
COMPANY (PTY) LTD..............................................................................................Fourth Defendant
JUDGMENT
PICKERING J:
This is an action for damages arising out of a collision involving a motor vehicle with registration letters and number D[…] which occurred on 10 September 2007 in Stanford Road, Port Elizabeth. At the time of the collision the said motor vehicle, a taxi, was being driven by one Ralton van Rooyen and one C[…] K[…] B[…] was a passenger therein.
In consequence of the collision C[…] B[…] (“C[…]”), who was 13 years of age at the time, sustained certain severe bodily injuries.
In due course C[…]’s mother, Ms. C[…] B[…], instituted action against the Road Accident Fund as the first defendant, one Martin Paulse, the owner of the motor vehicle, as the second defendant, the aforesaid Ralton van Rooyen, the driver of the insured vehicle at the time of the collision as third defendant, and Lion of Africa Insurance Company (Pty) Ltd, as fourth defendant, the said company being the underwriter of a short term insurance policy in terms whereof it had agreed to indemnify the second defendant by payment in respect of any bodily injury occasioned to a third party in consequence of any negligence on the part of the driver of the insured vehicle, namely third defendant.
In due course Adv. Ronaasen was appointed as curator ad litem to C[…] and the particulars of claim were amended to reflect Ms. C[…] B[…] suing in her personal capacity as first plaintiff and Adv. Ronaasen, in his representative capacity as curator ad litem to C[…], as second plaintiff.
The case against first defendant has been separated from that against second, third and fourth defendants. The merits of the action against first defendant have been conceded and the matter proceeded before me on the issue of quantum only.
First plaintiff’s claim in her personal capacity is set out in the particulars of claim as follows:
1. Past medical and hospital expenses R 963 980,65
2. Past expenses in respect of a
caregiver and transport R 219 300,00
TOTAL R1 183 280,85
Second plaintiff’s claim in his representative capacity is set out in the particulars of claim as follows:
1. Estimated future medical, hospital, paramedical and travelling expenses.......................R2 431 954,32
2. Future loss of income/earning capacity............................................................................R6 540 884,00
3. General damages..............................................................................................................R3 000 000,00
4. Cost of a caregiver............................................................................................................R3 300 000,00
5. Cost and security of a curator bonis...............................................................................R2 203 002,25
TOTAL............................................................................................................................. R14 175 840,57
During the course of the trial first defendant agreed to furnish Second plaintiff with an Undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 and, accordingly, it became unnecessary to deal with the second plaintiff’s claims under paragraphs 1,4 and 5 above. The issues in dispute before me related to first plaintiff’s claims as set out above as well as to second plaintiff’s claims in respect of future loss of earning capacity and general damages.
The medico-legal reports of a number of experts were admitted by first defendant. It appears therefrom that immediately after the collision C[…] was transferred by ambulance to the Livingstone Hospital Casualty department. She had no spontaneous respiration and had to be sedated on the scene. She was connected to a ventilator and administered pure oxygen. An intercostal drain was inserted. She was transferred to St. George’s Hospital, Port Elizabeth, later the same day. On her arrival she was unconscious and in a state of hypovolemic shock. She was admitted to an Intensive Care unit. It was ascertained that she had sustained multiple rib fractures and a haemopneumothorax. She had also sustained a burst fracture of the seventh thoracic vertebra, injuring her spinal cord and causing paraplegia. A brain scan revealed extensive brain contusions and severely raised intracranial pressure.
On 19 September a burr-hole operation was performed and an intracranial pressure monitor was inserted. A catheter was placed in the ventricle to drain cerebro-spinal fluid in an attempt to lower the intracranial pressure. At the same time a tracheotomy was performed.
An MRI scan performed on 23 September confirmed the very extensive brain injury and showed extensive evidence of haemorrhagic contusions and cortical injury which was indicative of poor functional recovery.
On 26 September 2007 C[…] underwent a five hour procedure involving a thoracotomy and a spinal decompression of the T7 and T8 thoracic vertebrae with a fusion of the T6 - T9 vertebral bodies with internal fixation. On 29 September 2007 C[...] started occasionally opening her eyes spontaneously.
On 10 October 2007 she underwent a thirty five minute procedure for the insertion of a VP shunt.
On 24 October 2007 she underwent a sinus washout performed by an ENT surgeon, Dr. Retief.
Thereafter, on 12 November 2007, a so-called PEG to facilitate her feeding was inserted. A neurosurgeon, Dr. Keeley, explains this procedure as follows:
“Percutaneous endoscopic gastrostomy – the endoscope is passed through the mouth into the stomach, and this guides the placement of a large bore catheter which is passed through a puncture wound from the anterior abdominal wall, straight into the stomach. This is the optimal way of feeding unconscious patients.”
She was transferred from the intensive care unit at St. George’s Hospital to Aurora Rehabilitation Centre for multi-disciplinary rehabilitation. At that stage she was a total invalid, being fed through a PEG and breathing through the tracheostomy. She also had an indwelling Foley catheter draining urine. She was eventually discharged home into the care of her mother and grandmother on 24 January 2008 whereafter she attended at Aurora on 1 day a month for physiotherapy and speech therapy.
Her present condition is not in dispute. It is described in a number of the medico-legal reports as well as in a medico-legal report and testimony of a clinical psychologist, Mr. Ian Meyer. It is not in dispute that C[…] has reached a maximum medical improvement period and that her condition is permanent in nature.
Although C[…] does not sleep during the day she suffers from insomnia at night and spends most of the night awake unless given sleeping tablets.
She was initially incapable of feeding herself and could not chew and swallow hard food. Presently, however, she can feed herself with a fork using her left hand without making an excessive mess if the food is presented in a manner she can manage. She can drink beverages unassisted.
She is extremely limited in her ability to manage bimanual tasks. She is dependent on a wheelchair for mobility. She has weak non-functional spastic movement in her hips and knees. She has no movement in her ankles and feet. She has weak spastic movement in her right arm and limited functional use thereof. She has intact muscle power in her left arm and hand and can accordingly propel her wheelchair to a very limited extent.
She is unable to sit in her wheelchair for much longer than an hour. Mr. Meyer testified that during his consultation with her he observed her very obvious distress after she had been sitting in the wheelchair for approximately an hour. When she does become distressed at sitting it is necessary for whoever is supervising her to move her from her wheelchair to a bed or couch. As appears from the medico-legal report of the occupational therapist, Ms. Ansie van Zyl, however, she is very anxious and traumatised by any attempt to move her by anybody other than her close family members. She is unable to sit independently when brought from a lying to a sitting position. She requires the use of a belt to stabilize herself in her wheelchair.
Although she initially required a catheter to enable her to pass urine this was removed in March 2008 because of recurring urinary tract infections. She is incontinent of urine and of bowel and is reliant on a combination of suppositories in order to maintain regular bowel function. She is accordingly also dependent on the use of diapers.
She has no meaningful self-directed social interaction.
As appears from the medico-legal report of Ms. van Zyl she has a limited understanding of the extent of her injuries, her disability and the level of care required. According to Mr. Meyer she does, however, have some insight into what she has lost in life which causes her to become irritable and frustrated in her interactions with other persons, especially her first cousin, S[…] P[…], to whose evidence I shall refer hereunder. She relates very much better to younger people who are less demanding of her.
Mr. Meyer stated further that C[…] presents with a dyscontrol syndrome typical of a frontal dementia with an inclination to become aggressive in response to minimal provocation and, simultaneously, also to be dysinhibited, laughing in a disproportionately intense manner. She is also emotionally labile to the point of being “emotionally incontinent”.
Her working memory is severely impaired as is her executive function. It is Mr. Meyer’s opinion, which is not disputed by first respondent, that C[…] will remain severely mentally retarded and dependent on care and supervision for the rest of her life. Her injuries have had a profound effect on her physical, cognitive, executive and socio-emotional domains of functioning. As he put it, she has been cut down as a youth when her life with all its promise lay before her. She has accordingly suffered a severe and pervasive loss of amenities of life.
Her present position was summed up by Dr. Keeley in his Serious Injury Assessment Report dated 30 September 2013 as follows:
“It is now 6 years since Ms. B[…] sustained a closed brain injury. The hoped for continuing recovery, to some extent at least, has not come about. She is the same total invalid previously reported (17/7/2008). She remains with a severe post traumatic dementia, severely compromised speech and vision. She is a central tetraplegic with flaccid leg paralysis; total bladder and bowel incontinence and dysaesthetic pain.”
Dr. Keeley assessed her “whole person impairment” as being 93%.
During 2006 C[…] was in grade 6 at Triomf Primary school, Salsoneville , Port Elizabeth. Her teacher during the course of that year was Mrs. D[…] J[…]. She is a teacher of obviously vast experience, having commenced her teaching career 42 years ago, the last thirty two years of which she has spent at Triomf teaching English, Social Science and Life Orientation subjects to grade 6 pupils. She is also in charge of the school library.
Mrs. J[…] testified that she knew C[…] very well. She described her as having been a very intelligent, confident, helpful and friendly girl who stood out from her peers. She was well-adjusted and emotionally stable to the extent that Mrs. J[...] was extremely surprised to learn that her father did not live with the family. C[…]’s mother and maternal grandparents were always involved in and supportive of her schoolwork.
Mrs. J[...] stated that C[...] had a great love of reading and was eager not only to learn but to share her knowledge. She became a member of Mrs. J[...]’s library team. In order to be selected as a member of this team a child was required to have a love of reading; to be helpful; to be able to interact with her peers; to be able to do research work and thereafter to help other children with their projects; and, generally, to be friendly and helpful. C[...] possessed all these traits in abundance.
Mrs. J[...] testified further that Triomf Primary became involved with an American programme known as People to People World Forum which was initiated many years ago by the then President of the United States, Dwight Eisenhower. In terms thereof three outstanding pupils from grade 8 at Triomf were selected every second year to participate in the programme in the United States. Mrs. J[...] stated that had C[...] not been injured she would definitely have been one of the chosen three in 2008.
She was one of six class captains in grade 6 and was elected a prefect in grade 7. There were approximately 15 prefects chosen from each of the three grade 7 classes who were responsible for the approximately 1000 pupils at the school from grade R through to grade 7. Mrs J[...] referred to two school reports, the first dated December 2006 in respect of C[...]’s grade 6 year and the second dated October 2007 in respect of the grade 7 year up to the end of the third term (exhibits A3-4 and A5-6 respectively). C[...]’s results in both grades generally fell within the range of “Outstanding/Excellent Achievement” or “Substantial/Meritorious Achievement” which, according to Mrs J[...], equated on the lower levels to well over 70% and, on the higher levels, to above 80%.
Mrs. J[...] confirmed that C[...] had also been awarded various certificates recognising her achievements during the course of her school career. These were, inter alia, for academic achievement in grades 3 and 4. In grade 6 C[...] was awarded a certificate of merit for “diligence” (exhibit A10).
With special regard to her award for “diligence” Mr. Meyer testified that he was concerned that the concept of “diligence” had not been adequately canvassed during the course of the evidence of Mrs. J[...]. He had accordingly discussed the matter both with Mrs. J[...] and with the principal of Triomf. It emerged from these discussions that the diligence award was an outflow of Outcomes Based Education, taking into account a combination of the mastery of skills, knowledge and values. The award was given to only one pupil in each grade 6 class who best exhibited the combination above, underpinned by a good attitude to teachers, the school and fellow pupils. According to the principal C[...] had been a well rounded individual fully deserving of the award.
Mr. Meyer also spoke to C[...]’s grade 5 teacher, Ms. B[…]. Although Ms. B[…] did not testify herself, no objection was raised by first defendant to Mr. Meyer’s evidence in this regard.
According to Mr. Meyer, Ms. B[…] described C[...] as having a very good academic aptitude and as being “highly achievement orientated.” She was “diligent, cooperative and well-behaved”. Ms. B[…], a teacher of 35 years experience, informed Mr. Meyer that she had no doubt that, owing to a combination of C[...]’s intellectual potential, scholastic ability and personal adjustment, she would have continued to achieve at a high level in high school and would have been a candidate for tertiary education at university level.
It is common cause that C[...]’s mother, first plaintiff, left school after grade 10 because she was pregnant with C[...]. She had been a prefect. She was employed as an operator at Formex Engineering in Port Elizabeth working on the production floor. She has recently been promoted to the position of Senior Inspector checking the quality of motor vehicle exhausts and other components manufactured by the company. She earns R1050,00 per week.
C[...]’s father, Mr. E[…] C[…], confirmed that he and first plaintiff had never married. Despite this he had, prior to the accident, had regular contact with C[...]. They used to engage in social activities such as camping or going to the movies and she would regularly spend weekends with him at his home in Overbaakens. He described her as a lively and very friendly girl who liked going out.
He stated that he had enrolled her at L[…] B[…] High School starting in 2008. He considered L[…] B[…] to be an excellent school and he had wanted to widen C[...]’s range of opportunities.
He stated that he had two other children, one being C[…], an 18 year old girl in her grade 12 year and the other being R[…], a young boy attending a Montessori Pre-primary school.
With regard to his own working career he testified that he had matriculated at Chapman High School in Gelvandale. He began a fitting and turning course at a Technikon after school but did not complete it. After working a few months as a checker he joined the company presently known as Autocast where his father was employed as a supervisor. Presently aged 40 years Mr. C[...] has been employed as Autocast for the past 19 years. Autocast, which has three plants, manufactures metal components such as cylinder heads for the motor industry including clients such as Volkswagen, Ford and Toyota. When Mr. C[...] commenced his employment at the Struandale plant in 1994 he was a machine operator in the so-called Core Shop department. He attended a number of short courses whilst working as a operator and after four years was appointed as group leader in the Core Shop of his plant, thereby becoming responsible for running his own shift.
He continued attending courses and studying and was in due course appointed to the position of Department Manager in the Core Shop. After approximately 18 months he was appointed as manager of the Machine Shop in addition to his duties as Core Shop manager. He then attended and completed a number of short part-time production management courses including courses such as “Management Skills for the 21st Century” by Nelson Mandela Metropolitan University (Exh A41); “Basic Management: Production Planning and Organising” presented by Strata HR Solutions (Exh A43) and “Cast Iron Foundry Technology” presented by Midrantec (Exh A46).
For the last 2 years he has been in charge of production at his plant. As such he reports to his own production manager as well as to the sole director of all three plants. In turn, so he said, a number of employees in supervisory, operational and quality control positions reported to him. He stated that it was his intention in the new financial year to study further at University for a Diploma in Production Management.
The production manager at Autocast’s Struandale plant, Mr. Charles van Rensburg, testified, inter alia, as to the workforce profile of Autocast and as to Mr. C[…]’s functions at the plant. It is, in the view I take of the matter, not necessary to deal with his evidence in any detail. Suffice to say that the import thereof was that Mr. C[…] was a valued employee who, based on his skills, was in what Mr. van Rensburg regarded as being a middle management position. He referred to Exh N as being a “snapshot” of his functions. He confirmed that Mr. C[…] reported to him on a daily basis and that a number of foremen in turn reported to Mr. C[…].
Ms. S[…] P[…] (“S[...]”), a 19 year old woman, testified that C[...] was her first cousin, their mothers being sisters. Until the age of 6 years she and her mother as well as C[...] and her mother lived with her maternal grandparents. S[…] and her mother moved out when her mother married S[…]’s stepfather who is presently a senior co-ordinator at General Motors. S[…] had no contact with her own father at all and did not know her paternal grandparents. Her father has since passed away.
She described her maternal grandfather as a father figure. Her maternal grandmother, Mrs. C[…] B[…], was a strong influence in her life, encouraging her and C[...] to always give of their best. Her mother is employed by the South African Police Service as an accounting clerk at the finance department at Algoa Park police station.
She and C[...] commenced school together in grade R at Triomf Primary school. S[...] remained at Triomf until the end of grade 5 whereafter her parents enrolled her at Greenwood Primary School.
According to S[…] she and C[...] were both amongst the top pupils at Triomf. She regarded C[...] as being on the same intellectual level as herself. She said that they were healthily competitive, each of them trying to achieve high marks. After S[…] left Triomf she still had contact with C[...] every day as she used to go after school to her grandmother’s house where she and C[...] would compare their notes, work on their projects and do their homework together.
She described C[...] as being ambitious, adventurous and lively and, in her words, always up to doing things. She was a natural leader. She and C[...] would often discuss their future plans. Both wanted to further their education and, at that stage, both wished to become doctors. It was, said S[…], very definitely not C[...]’s intention to marry and start a family immediately after matriculating.
S[…] was awarded a number of merit certificates whilst at Triomf and at Greenwood. In grade 7 she was elected as deputy head monitor.
From Greenwood she went to Collegiate Girls High where she excelled academically. She decided during the course of grade 11 that she wanted to become a chartered accountant. She attributed her interest in accounting not only to her mother but also to a so-called “work shadow” experience which she had undergone at General Motors.
She passed her National Senior Certificate with three distinctions and is presently in her second year of studying at Nelson Mandela Metropolitan University, having successfully passed her first year.
She stated that she no longer has much in common with C[...] who becomes very irritable towards her during her visits especially if S[...] chats about her University life and her friends.
FIRST PLAINTIFF’S CLAIMS
PAST MEDICAL AND HOSPITAL EXPENSES – R945 893,60
Those were eventually agreed upon, well into the course of the trial, in the sum of R945 893,68.
PAST EXPENSES IN RESPECT OF A CAREGIVER – R183 300,00
First Plaintiff claims past care-giving expenses in the total sum of R219 300,00. In this regard the undisputed evidence of Ms. Boreham, an occupational therapist, was to the effect that C[...]’s grandmother, Ms. C[...] B[...], had trained briefly as a care-giver and had obviously undergone practical training whilst attending to C[...]’s needs. She testified that C[...] had required the full time services of a caregiver from the day of her discharge from Aurora Hospital and still so required such services. According to Ms. Boreham a caregiver’s remuneration varied between R150,00 and R180,00 per day.
It is common cause that the amount claimed by first plaintiff is in accordance with the remuneration paid to domestic workers as set out in Koch: Quantum Yearbook 2008 – 2014 (Exhibit S). First defendant does not dispute that the amount claimed is reasonable.
Ms. C[…] B[…] testified that since C[...]’s discharge from Aurora she and first plaintiff had cared for C[...] on a full time basis. She stated that even though first plaintiff had agreed that on finalisation of this claim she would compensate her, she had been prepared to do so for free as she loved C[...]. Ms. Boreham stated that C[...] was indeed very well cared for and that a wonderful family support structure existed in her home.
Although Mr. van der Linde somewhat faintly alluded to the absence of any formal contract between first plaintiff and Mrs. C[…] B[…] it is clear that family members and relatives are entitled to reasonable compensation for care-giving services rendered by them and that it is not necessary that there be a formal signed agreement to that effect. See: Webster and Others v Commercial Union Insurance Company of South Africa, Ltd 1997 QOD 4 A4 – 154 (C) at A4 – 156; Zarrabi v Road Accident Fund 2006 QOD 5 B4 – 231 (T) at B4 – 244 – 246.
I am satisfied therefore that first plaintiff has proved her claim and that she is entitled to payment of the sum of R183 300,00 in respect thereof.
PAST TRAVELLING EXPENSES – R36 000,00
It is common cause, as appears from the evidence of Ms. Boreham and Mrs. C[…] B[...], that it was not possible for C[...] to use public transport. First plaintiff’s claim was calculated on the basis of expenditure of an estimated R600 per month for 60 months. Ms. van Zyl in her medico-legal report confirmed that such transport costs were reasonable and first defendant did not dispute this.
Mr. van der Linde submitted, however, that Mrs. C[...] B[…] had failed to distinguish which amounts had been paid by herself and first plaintiff respectively. It is clear, however, that upon finalisation of this claim first plaintiff will reimburse C[…] B[…] for such amounts as she may have disbursed. I am satisfied therefore that first plaintiff has proved her claim in this regard.
SECOND PLAINTIFF’S CLAIM
LOSS OF EARNING CAPACITY
Apart from the evidence set out above each of the parties relied on this aspect of the case upon the expert evidence of an industrial psychologist. In this regard Mr. Martiny testified on behalf of second plaintiff and Dr. Whitehead on behalf of first defendant.
Both experts were in agreement that C[...] would never gain employment in future, either in the open labour market or within the informal sector, owing, inter alia, to her severe dementia and paraplegic status. They were also in agreement that C[...] would have obtained her National Senior Certificate on completing grade 12. It is at this point that their opinions diverge. The issue as to the loss of C[...]’s future loss of earnings resolved itself into a fairly narrow dispute.
Plaintiff’s case, founded on the opinion of Mr. Martiny supported by that of Mr. Meyer, was to the effect that C[...] would have completed her matric with exemption and that in all probability she would thereafter have attended a University and completed a three or four year Bachelor’s degree, whereafter she would have entered into employment as a trainee and advanced eventually to a middle management position. First defendant’s case, however, based on the opinion of Dr. Whitehead, was that in all probability, after completing grade 12, she would at the most have enrolled for further tertiary studies at a Further Education and Training College (FET) where she might have studied for a certificate of one or two years.
Before dealing with their evidence it would be convenient to consider the merits of the witnesses who testified on behalf of second plaintiff. I was very favourably impressed by Mrs. J[...]. As I have said, she is obviously a teacher of vast experience who has had many children pass through her hands in the course of her career. In my view, her evidence must be afforded considerable weight especially as she was the person who had probably the closest professional relationship with C[...] before the accident. At no stage did I get the impression that she was in any way exaggerating C[...]’s abilities and potential.
I was also very impressed by Mr. C[…] who came across as a down to earth, hard working individual who had achieved much despite the limited opportunities offered to him in consequence of his lack of a tertiary education. My impression of him was fully confirmed by the evidence of Mr. van Rensburg. As stated above, his evidence discloses that Mr. C[…] was a valued employee who was regarded as being in middle management.
S[...] P[…] was an obviously very intelligent young woman who was an exceptionally good witness. I have no hesitation in accepting her evidence, in particular that she regarded C[...] as her intellectual equal prior to the accident.
I have set out above Mr. Meyer’s evidence with regard to his discussions with C[...]’s teachers concerning her scholastic achievements.
He stated further that in attempting to assess what C[...]’s future career path may have been it was important to consider all relevant factors holistically. In this regard, in particular, he was of the view that the Court should be astute not to be blinded to the exclusion of the individual by the dismal statistics relating to the large percentage of those students fortunate enough to attend a University who thereafter failed to graduate. As he put it, rather less prosaically, the background noise of the numbers should not drown out the music of this particular child.
He was of the view that, whilst the qualifications of the immediate family played an important role, sight should also not be lost of the fact that C[...]’s maternal grandparents and parents were previously disadvantaged and would not have had access to the resources such as bursaries which were available to students in similar situations today. In his view, C[...]’s family exhibited a trend of upward mobility and it was clear that her father valued education and had been determined to better himself. Her stable family also provided security, support and motivation for her. It was reasonable therefore to assume that C[...] would have had better opportunities to progress educationally and occupationally than the previous generations of her family.
He stressed too the importance of the evidence relating to S[…], her intellectual abilities and achievements and stated that, in his view, there was no reason not to expect C[...] to have done as well as her in later life.
Most importantly, in his view, however, were C[...]’s personal achievements; her adjustment; and her attitude to academic achievement. She was, in his opinion, of above average intelligence and had obviously been a well-adjusted and high achieving learner with leadership skills who, in all probability, would have proceeded to University. As pointed out by him there was no opposing trend to her achievements.
Although he conceded under cross-examination that the plotting of C[...]’s career path fell within the domain of the industrial psychologists he stated, correctly in my view, that it fell also within his domain as a clinical psychologist. I accordingly do not agree with the submission by Mr. van der Linde S.C., who with Mr. Williams appeared for the first defendant, to the effect that Mr. Meyer’s evidence as to C[...]’s career potential should be ignored. Mr. Meyer was an excellent witness whose evidence provided an invaluable insight into C[...]’s personality and potential.
I turn then to deal with the evidence of the two industrial psychologists.
In his evidence plaintiff’s industrial psychologist, Mr. Martiny, confirmed the
details relating to C[...] and her mother and her father. His opinion as to C[...]’s potential was based on a wealth of collateral information. In this regard he testified that he had interviewed not only C[...]’s mother and father but also her maternal grandparents as well as the teachers at Triomf Primary school and he had had regard to the achievements of her relatives. He had also had sight of all C[...]’s school reports and certificates as well as the formally admitted medico-legal reports.
He stated that C[...]’s maternal grandmother, Mrs. C[…] B[…], had passed grade 9 and had been employed at Cadbury’s as a factory worker for 20 years. C[...]’s maternal grandfather passed grade 8 and worked as a printer for the Port Elizabeth City Council for 25 years.
C[...]’s aunt, the mother of S[…] and sister of first plaintiff, is employed as a Senior Accounting Clerk – Finance in the South African Police Services. Her uncle passed grade 12 and is employed as a supervisor at Firestone. Her paternal grandmother passed grade 11 and is employed as a screenwriter. Her paternal grandfather was a Group Leader in a factory before retiring. Mr. Martiny was of the opinion, having regard to the totality of evidence, that in all probability C[...] would have obtained a matriculation exemption and would have proceeded to obtain a University degree. In this regard he confirmed the evidence of Mr. Meyer, that given the fact that C[...] comes from a previously disadvantaged background, persons of her generation have better opportunities than did their parents and he confirmed that each generation of the family had slowly and progressively improved themselves.
He provided the court with two scenarios as to C[...]’s future career path both utilising the well-known Paterson Grading System. These scenarios were described as follows:
“Scenario 1: The following scenario is similar to that achieved by C[...]’s father.”
-
Year
Age @ 01
Details
1994
C[...] was born on June 21, 1994
2007
12
Grade 7 (The MVA occurred on September 10, 2007
2012
17
Grade 12
2013
18
1st year student
2014
19
2nd year student
2015
20
3rd year student
2016
21
4th year student
2017
22
Paterson B2 (Trainee) – probably including part time studies
2018
23
Paterson B3 (Trainee) – probably including part time studies
2019
24
Paterson C1 probably including part time studies
2022
27
Paterson C2
2025
30
Paterson C3
2030
35
Paterson C4/C5
2035
40
Paterson D1
2040
45
Paterson D2
“Scenario 2: Considering that C[...] would have been able to pass matric and would most likely have progressed to obtain a professional type of degree, as well as having the capability to deal with complexity at a high level, she had the potential to advance as follows:
-
Year
Age @ 01
Details
1994
C[...] was born on June 21, 1994
2007
12
Grade 7 MVA September 10, 2007
2012
17
Grade 12
2013
18
1st year student
2014
19
2nd year student
2015
20
3rd year student
2016
21
4th year student
2017
22
Paterson B2 (Trainee) – probably including part time studies
2018
23
Paterson B3 (Trainee) – probably including part time studies
2019
24
Paterson C2/C3 probably including part time studies
2022
27
Paterson C4/C5
2025
30
Paterson D1
2030
35
Paterson D2
2035
40
Paterson D3
2040
45
Paterson D4
Mr. Martiny was of the view that C[...] would have retired at the age of 65 years. He conceded that his description of scenario 1 as being similar to that achieved by Mr. C[…] was incorrect. It appears to me that his error in this regard was based to an extent upon the fact that he had overvalued Mr. C[...]’s various certificates.
He stated that in his view the second scenario was clearly the more probable of the two, having regard to all the evidence, especially that of Mrs. J[...] and S[…]. He stated that the fact that scenario 2 referred to a “professional type of degree” did not mean that the career path postulated therein was not a “general” career path.
First defendant’s industrial psychologist, Dr. Whitehead, took issue with the scenario’s postulated by Mr. Martiny.
In his medico-legal report, dated 29 November 2013, Dr. Whitehead dealt with C[...]’s personal and family background and then proceeded to state that “taking into account the social status and level of skill of the family, it appears as if most family members are functioning on a semi-skilled level, with some having a grade 12 qualification and others not.”
He stated further that “in all likelihood C[...] would have been exposed to this level of functioning and thinking during the remainder of her life” and concluded that “it is possible that at best she would have completed a grade 12 with some short of certificate or diploma courses after matric ... most probably at a Further Education and Training College (FET)”. At the FET she “may have studied a certificate of one or two years which may have prepared her to function on a semi-skilled level, and even have taken her to supervisory level in an organisation.” He stated that FET courses were more vocationally directed and were offered up to NQF7 levels, this being the equivalent of grade 12 plus three years tertiary education. The type of courses offered at a FET appear from exhibit J, such courses in the main relating to Human Resources Management, Business Management, Marketing, Information Technology, Financial Accounting and Hairdressing.
Dr. Whitehead did not foresee that C[...] would have functioned on a skilled level. His view, as expressed in his report, with reference to the Paterson Grading System, was that C[...] would accordingly have at best progressed no further than the Paterson B4 level where her career would have “plateaued” until her retirement at the age of 60 years. He stressed that an employee might be fully skilled at his or her occupation but, because of his or her qualifications, might fall within the semi-skilled band according to the Paterson Grading System. The typical semi-skilled worker would have passed grade 12 or its equivalent, the NQF4.
In order to progress from the Paterson B Band to the Paterson C or skilled Band a person would require a grade 12 qualification, together with what Dr. Whitehead termed was a three year body of knowledge acquired at a tertiary institution.
He stated that he had looked at C[...]’s situation holistically; her family background, their socio-economic circumstances, as well as their academic performances. He conceded, however, that at the time of compiling his report he had not had the benefit of any interaction with C[...]’s teachers and agreed that their views must be accorded considerable weight. He conceded further that his statement that “C[...]’s father was never part of the family” was, in the light of the evidence led at the trial, incorrect and conceded that Mr. C[...] had played an important role in C[...]’s life.
He initially persisted in his opinion that C[...] would not have attended University, referring in particular in this regard to the fact that only 17,6% of Eastern Cape students passed matric with exemption. During the course of his cross-examination, however, he conceded that having listened to the evidence “and the potential that she had, there is a probability of that, yes.” He stated, however, that of the 17,6% of matriculants who made it to University less than 20% graduated.
He was also of the view that Mr. Martiny had used a professional career path as opposed to a general career path and that in doing so he had taken C[...] “too high and had advanced her too quickly” on the Paterson bands. He stated correctly in my view,that the premise upon which scenario 1 was based was incorrect based as it was upon the incorrect view that Mr. C[...] was currently on a Paterson D1 level.
It is, in my view, unfortunate that Mr. Martiny labelled the respective scenarios as he did. Largely because of the fact that scenario 1 was described as being similar to Mr. C[...]’s career path the trial proceeded down highways and byways irrelevant to the main issue in dispute and became bogged down in the minutiae of Mr. C[…]’s position on the Paterson bands, so much so that I was eventually and, unfortunately belatedly, moved to put the following to Dr. Whitehead:
“We have gone on at what seemed to me at times to be inordinate length about Mr. C[…] as if the case has been about Mr. C[...] but we know from Mr. van Rensburg’s evidence what Mr. C[...] has achieved and we know what his level of qualification is and his functions. Are we not now missing the wood for the trees by going on at this dissecting whether he is middle management or not, whether he is B grade or whether he managed to get to C grade?”
Dr. Whitehead responded that:
“I also do not understand that, it has been two/three days testimony about Mr. C[...]. I think I understand what plaintiff is trying to do but it is irrelevant...”
In the view that I take of the matter it is not necessary to attempt to resolve the dispute between Mr. Martiny and Dr. Whitehead as to whether scenario 2 was in conflict with the agreement that a general or generic career path would be plotted by the industrial psychologists. I say so because, whatever the position might be, I am satisfied on a conspectus of the evidence as a whole that scenario 2 is indeed a probable scenario as to C[...]’s career path. In this regard I gained the impression that Dr. Whitehead, having formed his initial opinion of C[...]’s potential, found it rather difficult to deviate therefrom, despite being obliged from time to time to make certain concessions in the light of the evidence.
As I have said above, he conceded that he had not had the full picture when he drafted his report and that this had put him at a disadvantage. He had also stated in his report that C[...] would in all likelihood have been exposed to the social status and “level of functioning and thinking” of her family “on a semi-skilled level”. He was obliged, however, to concede that, as testified to by Mr. Martiny, she would in fact at school be exposed to different people and ideas and that, in this age of television, cellphones and other technological devices, would have been exposed to a great deal more than her parents or grandparents ever were.
He was also of the view that Mr. Martiny had placed too much emphasis on S[...]’s achievements whose background he considered, was totally different to that of C[...]. In this regard he stated that they had lived in different houses since the age of 6 years and they had been in different schools since grade 6: whereas S[...] had attended Collegiate Girls High School C[...] had been booked into Lawson Brown High School; furthermore S[...] had been exposed to a very different home environment to that of C[...], especially taking into regard her mother’s employment as an accounting clerk and her stepfather’s employment with General Motors.
In my view, however, Dr. Whitehead clearly placed insufficient weight on S[...]’s evidence and her achievements. It is clear that the common thread between C[...] and S[...] was their grandmother, Mrs. C[...] B[...]. She was, as S[...] said, a very big influence in their lives, a caring person who had continually emphasised the importance of them bettering themselves. After S[...] had left her grandmother’s home and even after leaving Triomf, she still came back to Mrs. Bonnesse’s home every day to do her homework with C[...]. Although S[...] attended Collegiate, C[...] was booked into Lawson Brown. Dr. Whitehead agreed that L[[…] B[…] was a highly rated school which achieved excellent results.
As was submitted by Mr. Frost, S[...] by virtue of being a family member of the same age, gender and intellectual capabilities and coming from the same social circumstances as C[...], is clearly the most realistic example of what C[...] could have achieved but for the accident.
In the circumstances I do not agree with Dr. Whitehead that S[...]’s and C[...]’s backgrounds are totally different. In my view they are actually very similar and I accept Mr. Meyer’s evidence in this regard.
Dr. Whitehead eventually conceded, albeit reluctantly, that C[...] “would have gone far in life” and that, through her prefectship, she had shown early indications of leadership potential.
He also eventually conceded that scenario 2 was “possible” albeit that it was “the best case scenario” and “at the upper limit of probability”. He justified his opinion in this regard not only with reference to the paltry percentage of students who, after commencing their studies at University actually graduated, but also with reference to the Paterson Grading System. During the course of his testimony he stated that having had regard to all the evidence and “on the assumption that C[...] would have qualified with a National Diploma or degree from a University or a University of Technology” he had plotted a possible career path for C[...] as set out in a document, Exhibit R, as follows:
“Matriculate by the age of 18 – 2012
Enrol for tertiary studies at a University or University of Technology the following year
Complete a B Degree 4 years later – by end 2016
Find employment on a Paterson B2 level as intern/trainee for one year – 2017
Find employment on a Paterson B3 level as intern/trainee for one year – 2018
Be appointed on Paterson C1 level where she remains for 5 years – 2019 – 2023
Be appointed on Paterson C2 level where she remains for 5 years – 2024 – 2028
Be appointed on a Paterson C3 level where she remains for 7 years – 2029 – 2035
Be appointed into Managerial level on Paterson C4 where her career will plateau – 2036”
Dr. Whitehead stated further that by reaching the Paterson C4 level C[...] would have progressed further than 90% of most employees. He did not believe she would have progressed any further especially in view of the fact that none of her close family members had progressed beyond the Paterson B band. It was, in his view, highly improbable that C[...] would have reached a Paterson D4 level, as postulated by Mr. Martiny as only the top 1,7% of employees reach this level.
It is noteworthy that, despite having conceded earlier that C[...] would in all probability have attended University, Dr. Whitehead continued to postulate a scenario involving a diploma with a much slower rate of progression through the Paterson bands than was postulated by Mr. Martiny. Asked to comment on Dr. Whitehead’s view that he had progressed C[...] “too quickly” through the C bands because the progression of the average person only occurred every five years Mr. Martiny, correctly in my view, replied that sight should not be lost of the fact that C[...] was above average and that persons in possession of a University degree progressed faster than those holding a diploma from, for instance, a FET college.
In my view Mr. Frost is correct in his submission that, in plotting C[...]’s future career path, Dr. Whitehead was still influenced to some extent by his initial views and that this in turn influenced his overly pessimistic view of C[...]’s probable rate of progression through the Paterson bands.
Exhibit R was produced by Dr. Whitehead at a late stage of the trial with the result that it was never put to Mr. Martiny who therefore obviously did not have the opportunity of dealing with it. In all the circumstances I am of the view that Mr. Martiny’s evidence as to C[...]’s rates of progression through the Paterson bands should be accepted.
I have given careful consideration to all the relevant evidence. Having done so I am of the view, as I have said above, that Mr. Martiny’s scenario 2 is indeed the most probable career path and that Dr. Whitehead’s opinion to the contrary is, with respect to him, too conservative and affords too much weight to statistics at the expense of the evidence led on behalf of second plaintiff.
Mr. Martiny and Dr. Whitehead were also at loggerheads as to C[...]’s probable retirement age. I am of the view, with regard especially to Koch: Quantum Year Book 2014, at page 78, that her retirement age should be taken as 65 years.
In adopting scenario 2 I have a discretion to make a discount for contingencies. As set out in Corbett: The Quantum of Damages in Bodily and Fatal Injury cases vol 1 (General Principles) at 51-52 the contingency factors to be applied in any given case are to be considered on the facts of that case. The usual considerations include the possibility of errors in the estimation of the injured party’s life expectancy, the likelihood of illness and unemployment which would have occurred in any event or which may in fact occur, inflation or deflation in the value of money, tax, alterations in the costs of living allowances and accidents or other contingencies which would have affected the plaintiff’s own capacity in any event. As was stated in Southern Insurance Association vs Bailey supra at 117 B – D it is “erroneous to regard the fortunes of life as being always adverse; they may be favourable.”
In the Bailey case supra Nicholas JA stated as follows at 116 G – 117 A:
“Where the method of actuarial computation is adopted, it does not mean that the trial Judge is "tied down by inexorable actuarial calculations". He has "a large discretion to award what he considers right" (per HOLMES JA in Legal Assurance Co Ltd v Botes 1963 (1) SA 608 (A) at 614F). One of the elements in exercising that discretion is the making of a discount for "contingencies" or the "vicissitudes of life". These include such matters as the possibility that the plaintiff may in the result have less than a "normal" expectation of life; and that he may experience periods of unemployment by reason of incapacity due to illness or accident, or to labour unrest or general economic conditions. The amount of any discount may vary, depending upon the circumstances of the case. See Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980 (3) SA 105 (A) at 114 - 5. The rate of the discount cannot of course be assessed on any logical basis:
the assessment must be largely arbitrary and must depend upon the trial Judge's impression of the case.”
Mr. van der Linde submitted, with reference to Bobape v President Insurance Co. Ltd 1990 (4) QOD A4 – 43 (W) that, given that C[...] was 13 years old at the time of the accident it would be appropriate to apply a contingency factor of 30% to her future loss of earnings. Mr. Frost, however, submitted that a contingency deduction of 20% should be applied. He referred in this regard to Koch: Quantum Year Book 2014 at page 114 where the learned author states that it has become customary for the court to apply a so-called sliding scale to contingencies “ie 25% for a child, 20% for a youth and 10% in middle age.”
It would appear that although contingency factors which have been applied in cases involving youths and/or children range from 15% to 40% the Courts have generally been inclined to apply a contingency figure of 20% in respect of youthful plaintiffs in their teenage years.
Having regard to all the circumstances of this matter including C[...]’s age I am of the view that a contingency factor of 25% should be applied.
The parties agreed by way of a pretrial minute dated 22 January 2014, that second plaintiff’s actuary, Mr. Morris, be placed in possession of the factual date required for his assessment of C[...]’s loss of earning capacity and agreed that the certificate of value as calculated by him be handed into Court as being a correct calculation of her said loss.
Mr. Morris’ calculations in respect of scenario 2 are set out as follows in Exhibit C:
“ Uninjured......................Injured.............................Net
Future loss.................11 072 281..........................0...................................11 072 281
Contingencies …............. 0...................................0 …...............................................0
Net Future loss............ 11 072 281.......................0......................................11 072 281
The above results ignore the RAF CAP of R160 000, being the annual claim limit in effect per our understanding of the Transition Act 15 of 2012. We have applied the Sweatman ruling and kept the present CAP constant in nominal terms from the date of accident onwards.
In order to apply the RAF CAP, for each year the difference between the actuarially discounted values of “uninjured” and “injured” earnings is compared against the CAP. (Actuarially discounted value refers to earnings net of tax, net of contingencies, after applying survival probabilities per the appropriate mortality table, and reduced to the date of calculation at the applicable net discount rate.) If the annual actuarially determined loss exceeds the CAP, then the loss for that year is taken as the CAP amount. (i.e. Actuarially valued loss in any given year is limited to a maximum of R160 000).
If we apply a 20% “uninjured” contingency,
And then apply the CAP, the capped result is: R6 540 884.
If we apply a 25% “uninjured” contingency,
And then apply the CAP, the capped result is: R6 458 342”
The reference to the Sweatman judgment is a reference to the judgment of Griesel J in Sweatman v Road Accident Fund unreported case no 17258/2011 dated 3 December 2013 with which judgment I respectfully agree.
In the circumstances second plaintiff is entitled to judgment in the sum of R6 458 342,00 in respect of future loss of earnings.
GENERAL DAMAGES
The principles relevant to the assessment of general damages are well-known and appear from cases such as Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194; Protea v Lamb 1971 (1) SA 530 (A); AA Onderlinge Assuransie Assosiasie Bpk v Sodoms 1980 (3) SA 134 (A) and Southern Insurance Association v Bailey N.O. 1984 (1) SA 98 (AD) at 119 G – H.
In summary, in determining what would constitute fair compensation in a particular matter the Court has regard, inter alia, to the circumstances of the case, amounts previously awarded in broadly comparable cases and the decrease in the value of money since those previous cases were decided. The court must bear in mind, however, that awards made in previous cases can only afford broad and general guidelines in view of the differences that inevitably arise in each case.
As appears from the medical evidence which I have set out above C[...] has suffered devastating injuries which have had a profound effect on her physical, cognitive, executive and socio-emotional domains of functioning.
The evidence establishes that prior to the accident she was an attractive, vivacious girl who was very intelligent and popular with her peers and her teachers. She was only 13 years of age at the time of the accident. Her whole life with all its promise lay before her. In consequence of the accident she has, as Mr. Meyer put it, been deprived of the most simple amenities of social fulfilment and has suffered a severe and pervasive loss of the amenities of adult life, including the joys of marriage and motherhood. It is also of relevance that her life expectancy has not been affected and that she will therefore endure her dismal future for an estimated period of 65 years.
Furthermore, she has a degree of insight into her condition and an awareness therefore of what she has lost.
Both Mr. Frost, who with Ms. Westerdale appeared for the plaintiffs, and Mr. van der Linde referred me to a number of cases, which, so they submitted, were broadly comparable to the present matter. Mr. Frost relied in particular upon the matters of Marine and Trade Insurance v Katz N.O. 1979 (4) SA 961 (AD); Goba v Road Accident Fund, unreported Eastern Cape, Grahamstown, case no 1349/12 and Paterson N.O. v Road Accident Fund, unreported Eastern Cape, Port Elizabeth, case no 10671/05.
Mr. van der Linde referred further to Pieter van Zyl v Road Accident Fund, unreported Eastern Cape, Grahamstown, case no 1349/12; Delport N.O. (obo Helen van Rooyen v Road Accident Fund 2003 QOD 5 – A41 (T) and, in particular Megalane N.O. v The Road Accident Fund 2008 QOD, V A4 – 10.
It may be convenient to commence with a discussion of Megalane’s case supra as, in Mr. van der Linde’s submission, the injuries sustained by the injured child therein were the most closely comparable to those sustained by C[...].
In that matter, an 11 year old schoolboy at the time of the accident, sustained a severe brain injury with diffused and focal brain damage in the form of a subdural haematoma resulting in cognitive impairment characterised by poor verbal and visual memory; poor concentration and distractibility; impaired executive function characterised by frontal lobe disinhibition causing inappropriate behaviour; speech difficulties characterised by dysarthria and word retrieval difficulty; bilateral hemiparesis with severe spasticity of all four limbs and left facial paralysis as well as aphasis. He was confined to a wheelchair. His intelligence level was that of a young child. He had limited insight into his predicament. Prior to the accident he had been an above average scholar who would probably have undergone tertiary education, but who had been left with severe permanent physical and mental disabilities rendering him unemployable. He was awarded the sum of R1 million as general damages, the present value of which is R1 662 000,00.
Whilst it is indeed correct that Megalane’s case is broadly comparable to the present there are, on the other hand, a number of other matters which may also be regarded as being broadly comparable in which considerably higher awards were made. In the Goba case supra plaintiff, a 35 year old mother of two, was rendered a tetraplegic. She also suffered severe injuries including multiple high cervical fractures, a brain haemorrhage, a right haemothorax and numerous lacerations and abrasions. As a result of her injuries, she required a ventilator as she was unable to breathe on her own. Her life expectancy had also been reduced. She was awarded the sum of R2 3000 000,00, the present day value of which is R2 437 974,45.
In the Paterson matter supra a 20 year old female student sustained a very severe diffuse brain injury and was rendered a total invalid for the rest of her life. She would never be able to care for herself and no really useful recovery would take place. Her brain injuries were both primary and secondary. She required the use of a wheelchair although she was able to move around her house with the aid of a walking frame in a crabbing fashion to a maximum of 30 metres. She also sustained a fracture of the mandible. She was initially rendered incontinent although this gradually improved and she was generally able to use the toilet on her own. She was able to feed herself using her left hand and predominantly ate a soft food diet. Three years after the accident she began using the odd clear word and her speech gradually improved. She had further suffered an epileptic fit and was on anti-epilepsy medication. She suffered from depression and was on anti-depression medication. She was rendered unemployable. Kroon J awarded her the sum of R1 600 000,00 as general damages, the updated value of which is R2 226 543,00.
I have read and considered all the other cases to which I was referred. In my view no point would be served in burdening this judgment with a recital of the dismal litany of injuries in each case. Each of those cases in turn refers to other cases which were considered, or contended to be, broadly comparable to the one in hand. Having done so I am of the view that the figure of R1 800 000,00 contended for by Mr. van der Linde as an appropriate award for general damages is clearly too low. On the other hand the amount of R3 000 000,00 contended for by Mr. Frost is, in my view, too high in the circumstances of this case when compared to similar cases. Having regard to all the factors set out above I am of the view that a fair award would be one of R2 500 000,00.
CURATOR BONIS
I should record that at the conclusion of argument on 12 February 2014 I made an order appointing Mr. Morne Struwig as curator bonis to the estate of C[...].
COSTS
Mr. Frost submitted at some length that the conduct of the trial by first defendant had been of such a nature that a punitive costs order was called for. I do not intend to detail his submissions in this regard. I have considered them together with the submissions to the contrary by Mr. van der Linde. In my view, the circumstances of the matter are not such as to justify a punitive costs order even although the conduct of the case by first defendant has in certain respects fallen short of what one would expect from a responsible litigant.
ORDER
Judgment is accordingly given in first and second plaintiffs’ favour against the first defendant as follows:
As regards First Plaintiff:
1.1 Payment of the sum of R945 893,68 in respect of past hospital and medical expenses.
1.2 Payment in the sum of R183 300,00 in respect of past caregiving expenses.
1.3 Payment in the sum of R36 000,00 in respect of past travelling expenses.
As regards Second Plaintiff:
2. First defendant is ordered to pay to second plaintiff:
2.1 The sum of R6 458 342,00 in respect of future loss of income and/or loss of earning capacity
2.2 The sum of R2 500 000,00 in respect of general damages.
Payment of the aforesaid amounts in paragraphs 1 and 2 above shall be made within 14 days from date of this Order directly to first and second plaintiffs’ attorneys of record, Roelofse Meyer Incorporated, trust account, details of which are as follows:
Name Roelofse Meyer Inc
Bank Standard Bank
Branch Port Elizabeth
Branch Code 050017
Account number […]
Failing payment of the aforesaid amounts in paragraph 1 above first defendant is to pay interest on the aforesaid amounts in paragraph 1 above at the rate of 15,5% per anum from a date 14 days after date of this order to date of payment.
First defendant shall furnish second plaintiff with an undertaking in terms of section 17(4) of the Road Accident Fund Act, no 56 of 1996 for 100% of the costs of future accommodation of C[...] Kayla Bonnesse 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 collision on 10 September 2007 and the sequelae thereof, after such costs have been incurred and upon proof thereof. The undertaking is to include payment of the costs of a Curator Bonis.
First defendant is to pay first and second plaintiffs’ costs of suit including the costs of two counsel as taxed or agreed, such costs are to include:
6.1The qualifying expenses, reservation and testifying fees, if any, of:
6.1.1 Dr. R.J. Keeley
6.1.2 Dr. D. Rademeyer;
6.1.3 DR. P.A. Olivier
6.1.4 Dr. V.B. Gardiner
6.1.5 Mr. I. Meyer
6.1.6 Mr. a. Grobler
6.1.7 Mr. L. Martiny
6.1.8 Mrs. A. Van Zyl
6.1.9 Mr. Morris
6.1.10 Dr. D. Malherbe
6.1.11 Dr. M. Marais
6.1.12 Dr. L. Le Roux
6.1.13 Dr. S. Basson
6.1.14 Dr. H. Kritzinger
6.1.15 Dr. Erasmus
6.1.16 Dr. E Rabe
6.1.17 Dr. E Steenkamp
6.1.18 Dr. J Parsons
6.1.19 Dr. Campbell
6.1.20 Dr. J. Azhar.
6.2 Costs of an inspection in loco with one Counsel
6.3 Costs of the Curator ad Litem
Defendant is to pay interest on first and second plaintiffs’ taxed or agreed costs of suit at the rate of 15,5% per annum from a date 14 days after allocator or agreement to date of payment
____________________
J.D. PICKERING
JUDGE OF THE HIGH COURT
Appearing on behalf of Plaintiff: Adv. A. Frost and Adv. B. Westerdale
Instructed by: Roelofse Meyer Inc.: Mr. Meyer
Appearing on behalf of Defendant: Adv. H.J. van der Linde S.C and Adv. K.D. Williams
Instructed by: Boqwana Loon and Connellan Ms. Tifloen