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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

EASTERN CAPE, PORT ELIZABETH                            

                                                                                                Case No: 448/2013

                                                                                                Date Heard: 3 March 2014

Date Delivered: 6 March 2014

In the matter between:

GERRIT SMIT                                                                                                       Plaintiff

and

THE ROAD ACCIDENT FUND                                                                        Defendant

 

 

JUDGMENT

EKSTEEN J:

 

[1] The plaintiff issued summons against the defendant for damages in respect of personal injury arising from a motor vehicle collision which occurred on 8 October 2008 in the intersection of the […].  When the matter was called before me I was advised by the parties that both the merits of the plaintiff’s claim and the quantum of his damages had been agreed between the parties.  I made an order in respect thereof in the following terms in accordance with the agreement between the parties:

“1.       Defendant is to pay to Plaintiff the sum of R3,050,612-16 (Three Million Fifty Thousand Six Hundred and Twelve Rand and Sixteen Cents) in full and final settlement of his             damages.

2.         Payment of the aforesaid amount in paragraph 1 above shall be made within 14 days from date of this Order directly to Trust Account of Plaintiff’s attorney of record, Pierre Kitching             Attorneys.

3.         Failing payment of the aforesaid amount in paragraph 1 above Defendant is to pay interest on the aforesaid amount in paragraph 1 above at the rate of 15,5% per annum from a             date 14 court days after date of this Order to date of payment.

4.         Defendant shall furnish Plaintiff with an Undertaking in terms of Section 17(4) (a) of the Road Accident Fund Act, Act 56 of 1996, for 100% of the costs of future accommodation of             Plaintiff in a hospital or nursing home, or treatment of or rendering of a service to him or supplying of goods to him arising out of the injuries sustained by him in the collision on 08             October 2008 and the sequelae thereof, after such costs have been incurred and upon proof thereof.” 

[2] The parties were, however, unable to reach agreement in respect of the costs order to be made.  The defendant has tendered the plaintiff’s costs including the qualifying expenses of expert witnesses on a party and party scale.  The plaintiff, however, seeks a further order that the defendant be liable to pay the costs of two counsel.  This is the only issue in dispute. 

[3] In the Particulars of the Plaintiff’s Claim it is alleged that the plaintiff was the driver of a motor vehicle on 8 October 2008 when the collision occurred.  The collision is alleged to have been caused by the sole negligence of the driver of a motor vehicle bearing registration letters and number […..] (the insured vehicle).  It is alleged that he was negligent in that he failed to keep a proper lookout, failed to apply the brakes of the insured vehicle timeously or at all and failed to keep the vehicle under proper control.  It is alleged moreover that the driver of the insured vehicle failed to bring his vehicle to a stop at a red robot.

[4] In the medico-legal report by Dr Roger Keeley, a neurosurgeon, which is annexed to the Particulars of Claim the collision is described in the following manner: 

“It was on a Wednesday at about 10h15 when the stationary motor car of which he was the driver waiting at a traffic light, was struck a glancing blow on the right side by a runaway truck. 

Gerrit was unaware of what was about to happen and was therefore unable to take any avoiding action.

He struck the right side of his head on the door post and was thrown up against his seatbelt.  He was stunned or bewildered for a short period of time.  He may even have been unconscious.”

[5] The plaintiff proceeded to allege in the Particulars of his Claim that in and as a result of the collision he suffered multiple injuries, including:

1.            A dislocation of the C5, C6 and C7 cervical vertebrae;

2.            contusions of his right chest, right side of his head, right shoulder and right elbow;  and

3.            lacerations to his left thumb and left knee.

[6] As a result of the injuries, the plaintiff pleaded, that he was admitted to the St George’s Hospital where he was initially treated conservatively for whiplash and provided with a soft cervical collar and analgesics and was discharged.  He was readmitted to St George’s Hospital on 9 October 2008 and underwent an anterior fusion of the C5, C6 and C7 cervical vertebrae with plate and screw fixations and was later discharged on 14 October 2008 to spend six weeks in bed at home wearing a SOMI brace.  After the lapse of six weeks the SOMI brace was replaced with a cervical collar which he wore for a period of three months.

[7] The Particulars of Claim proceed to allege that the plaintiff now suffers from debilitating headaches on seven to eight occasions per month, ongoing neck pain punctuated by intermittent symptomatic flair ups and a significant loss of movement of his neck.  He suffers from neuralgia in his left arm associated with weakness in the arm and in the left hand and he was disabled for a period of four months.  He presents with post-traumatic stress disorder, alternatively, chronic adjustment disorder with mixed anxiety and dysphoric mood.  In consequence of the aforegoing he was unable to return to his former employment and it is currently anticipated that he will be incapable of continuing in his current employment beyond 2021.  He is 33% whole person impaired. 

[8] The plaintiff’s employment history and the effect of his current disability is set out in his Particulars of Claim as follows:

“12.1   At the time of his collision, Plaintiff was employed overseas by Afrideca as a construction project manager.

12.2      As a consequence of his injuries and their sequelae, Plaintiff was unable to return to his former employment and has taken up less lucrative short term employment in Port Elizabeth.

12.3      Should the Plaintiff’s current employment contract not be renewed he is unlikely to secure further employment.

12.4      As a further consequence of his injuries and their sequelae, Plaintiff will be unable to continue working as a project manager beyond 2021.

12.5      But for the collision, Plaintiff:

12.5.1   would have continued working for Afrideca until the age of 50 years;

12.5.2   would have returned to South Africa and started his own Project Management Company until the age of 65 years;  alternatively

12.5.3   would have sought employment locally until the age of 65 years.

In the circumstances and as a result of the aforegoing, Plaintiff has suffered a loss of earning capacity in the sum of R7 025 411.00 …”

[9] The plaintiff claimed damages in the sum of R8 144 578.52 comprised of the following:

1. Past hospital and medical expenses                               R     75 217.52

2. Future medical expenses                                                R   300 000.00

3. Loss of earning capacity                                                  R7 025 477.00

4. General damages in respect of shock, pain

and suffering, discomfort, disability and loss

of amenities of life                                                               R   700 000.00

[10] Summons was originally issued in February 2013 and the Particulars of Claim were prepared and signed by junior counsel.  I pause to mention that the original Particulars of Claim claimed an amount of R6 082 652.00. A subsequent amendment in February 2014 inflated the figures, notably those in respect of loss of earning capacity and general damages, so as to claim the amount of R8 144 578.52. 

[11] The defendant’s plea was filed in May 2013.  In respect of all of the foregoing averments set out in the Particulars of Claim it was pleaded:

“Defendant has no knowledge of the allegations made in these paragraphs, cannot admit or deny same and puts Plaintiff to the proof thereof.”

[12] In respect of the collision, it was accordingly evident from the plea which was filed that the defendant had no evidence at its disposal as to the manner in which the collision occurred and it was inevitable that the merits of the plaintiff’s claim would in due course have to be conceded.  Indeed, the plaintiff’s version of events as relayed to Dr Keeley confirms that the insured vehicle entered the intersection in the face of a red traffic light.

[13] In respect of the quantum of damages the plaintiff had annexed to the Particulars of his Claim medico-legal reports obtained from Dr R J Keeley, a neurosurgeon dated 21 September 2011, Ms A van Zyl, an occupational therapist dated January 2012 and Mr I Meyer, a clinical psychologist dated 18 May 2012.  All three these reports were annexures to the original Particulars of Claim to which the defendant had pleaded as set out earlier herein.  The plaintiff’s claims were founded on the opinions expressed in these reports.  The defendant did not require the plaintiff to submit to a medical examination by any medical experts.  The medical opinions expressed by Dr Keeley, Ms van Zyl and Mr Meyer accordingly stood uncontradicted. 

[14] On 1 October 2013 the plaintiff’s attorney of record instructed a second counsel to lead the junior counsel who had drafted the pleadings and to conduct the trial.  The matter was enrolled for 3 March 2014.  In these circumstances it is argued on behalf of the plaintiff that the plaintiff is entitled to recover the costs of two counsel.

[15] It is evident from the computation of the plaintiff’s claim which I have set out earlier herein that the bulk of the claim relates to loss of earning capacity and general damages.  The claim in respect of past hospital and medical expenses is unproblematic and the estimation of future medical expenses is founded on the uncontradicted opinions of the plaintiff’s experts. 

[16] Generally, I think that the computation and proof of a claim for loss of earning capacity does usually involve complex issues of fact and law.  Where the claim is large, then it is usually a reasonable and prudent precaution for a plaintiff to engage the services of two counsel. 

[17] The accident in the present case, however, occurred on 8 October 2008.  The Road Accident Fund Act, 56 of 1996 (as amended) (herein referred to as “the Act”) was amended with effect from1 August 2008 to place a cap on claims for loss of earning capacity.  Section 17(4)(c) of the Act then provided as follows:

“Where a claim for compensation … includes a claim for loss of income or support, the annual loss, irrespective of the actual loss, shall be proportionately calculated to an amount not exceeding

(i)          R160 000 per year in the case of a claim for loss of income;  and

(ii)         R160 000 per year, in respect of each deceased breadwinner, in the case of a claim for loss of support.”

[18] In terms of the provisions of section 17(4)(a) the loss limit of R160 000 per year is adjusted quarterly.  Whereas the accident occurred on 8 October 2008 the loss limitation at the time of the accident was R160 000 per annum.

[19] The plaintiff’s claim in respect of his actual loss of earning capacity amounted to R7 025 477,00 as calculated by an actuary on behalf of the plaintiff.  The claim was calculated on the assumption that the plaintiff would have continued in its employment on a tax-free basic salary of US$96 000 per annum.  His loss of earning capacity computed and capped in accordance with section 17(4)(c) of the Act as calculated by the same actuary, amounted to R2 583 000,00.

[20] In the absence of any opinion contradictory to those expressed by Dr Keeley, Ms van Zyl and Mr Meyer, it seems to me that it was always a foregone conclusion that the plaintiff’s actual loss of earning capacity would far exceed the limit set by section17 of the Act.  In these circumstances I do not think, on the facts of this case, that the calculation and proof of the plaintiff’s entitlement involved any significant factual or legal difficulty.  (Compare Sweatman v Road Accident Fund 2013 JDR 2821 at paragraph [20].)

[21] The assessment of general damages, similarly, is dependent primarily on the lay evidence of the plaintiff himself as to his personal experience and the evidence of Dr Keeley, Ms van Zyl and Mr Meyer.  This too did not present any significant factual or legal difficulty.  Certainly I do not think that the matter, though not entirely simple, was so complex as to justify the employment of two counsel.  (Compare Ixopo Irrigation Board v Land And Agricultural Bank of South Africa 1991 (3) SA 233 (N).)  I do not lose sight of the fact that the quantum involved is significant, however, the volume of evidence was extremely limited and undisputed.  In my view one counsel of sufficient seniority and experience could have properly handled the matter without any significant difficulty.

[22] It is significant that on the facts of the present matter, the plaintiff did not employ two counsel at the outset.  Such a decision might have been justified at that stage.  The decision to employ a second counsel came about, however, after the defendant had pleaded in the manner which I have set out above and with full knowledge thereof that the defendant had not requested the plaintiff to submit to any medical examination.  It was taken, accordingly, at a time that the plaintiff knew or ought to have foreseen, that neither the facts alleged by the plaintiff in respect of the occurrence of the accident nor the opinions expressed by its experts in respect of his medical and psychological condition and prognosis of the plaintiff would be challenged.  Whilst the claim for loss of earning capacity is large it was always clear, in the absence of any contradictory expert opinions, that the plaintiff’s claim would exceed the maximum cap set out in the Act and would accordingly be pegged at such capping.

[23] In all the circumstances I do not think that there is any justification to saddle the defendant with the costs of two counsel in this case.  The parties are, however, agreed that I should order the defendant to pay the qualifying fees, if any, of any experts in respect of whom the plaintiff has given notice in terms of the provisions of Rule 36(9)(a) and (b) of the Uniform Rules of Court.

[24] In the result, I make the following further order:

 

1.         The defendant is ordered to pay the plaintiff’s party and party costs of suit on a High Court scale as taxed or as agreed, such costs to include the qualifying fees, if any, of any experts in              respect of whom the plaintiff has given notice in terms of the provisions of Rule 36(9)(a) and (b).

 

2.         The defendant is ordered to pay interest on the plaintiff’s taxed or agreed costs of suit at the rate of 15,5% per annum from a date 14 days after allocatur or agreement to the date of payment.

 

J W EKSTEEN

JUDGE OF THE HIGH COURT

 

Appearances:          

For Plaintiff:               Adv J Nepgen & Adv Kent Williams instructed by Pierre Kitching           Attorneys, Port Elizabeth

For Defendant:          Ms O Phillips instructed by Friedman Scheckter Attorneys,                    Port Elizabeth

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