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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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case No.: 72516/2012

In the matter between:

ADVOCATE S obo A S                                                                                              Plaintiff

and

THE ROAD ACCIDENT FUND                                                                              Defendant

 

JUDGMENT

 

MNGQIBISA-THUSI J

[1] The plaintiff, in her capacity as the mother and natural guardian of A S ("A"), who at time the action was instituted was a minor, aged 12 years, instituted an action against the Road Accident Fund ("the RAF") for damages as a result of injuries A sustained in a motor vehicle accident which occurred on 3 April 200-8, in or around Elsburg, while crossing a street on a bicycle and colliding with a motor vehicle bearing registration number […] GP.

[2] On 18 February 2015 the court appointed Advocate J S as A's curator ad litem.

[3] In the particulars of claim the plaintiff alleges that the accident was caused by the sole negligence of the Insured driver. It is common cause that as a result of the collision A sustained the following injuries:

3.1 a fractures to pelvis, tibia and fibula;

3.2 a head/brain injury.

[4] The issue of merits was settled 90%/10% basis in favour of the plaintiff.

[5] Advocate S has submitted his final report (to which his preliminary report is attached) whose salient features are:-

5.1 that there was an interim payment of R 500,000.00 made to the plaintiff by the RAF;

5.2 he confirmed that some payments were made to some of the medical experts;

5.3 that the funds awarded need to be protected. In this regard Advocate S submitted that all experts of the parties were in agreement that the funds needed to be protected. Reference was made to the report of Dr Smuts (psychiatrist) who c9ncluded that Andile's executive functions appear to. be impaired. Counsel contended that once this happens, inasmuch as such person can deal with dally activities, he or she would find it difficult to make decisions whose consequences he or she would appreciate. In 1his regard provision has been made in the draft order for the establishment of a trust In whi9h the plaintiffs attorney and his mother would be the trustees. Further that provision has been made for the dissolution of the trust on application to court if it can be shown that A was in a position to manage his ·own affairs. Counsel further submitted that in his discussions with A he had indicated that he was unable to handle lots of money particularly as he had displayed frustration that his peers were driving expensive motor vehicles.

[6] There is agreement on the issues of general damages and future medical expenses. With regard to general damages the parties have agreed on an amount of R800, 000.00. The RAF has agreed to provide A with an undertaking in terms of s 17(4) (a) of the Road Accident Fund Act 66 of 1996 (“the Act”) in respect of future medical expenses, which would be in accordance with the apportionment of merits.

[7] The remaining issues this court is called upon to determine is loss of earning and earning capacity and whether or not a cost order of two counsels should be granted.

[8] Both parties have filed reports of various medical experts, addenda to some of the reports, joint minutes of the various medical experts and addenda to some of the joint minutes, which reports, addenda and have been admitted.

 

Loss of earnings and earning capacity

[9] Drs SAC Haarhof and LT Kekana. educational psychologists, noted that due to A executive function deficits as a result of the injuries he sustained, it was unlikely that A would pass Grade 12 even if he attempted it the second time.

[10] Ms Ferreirra-Texeira, an occupational -therapist, stated the following in her report with regard to A loss of earning capacity:

“A will have difficulties when expected to stand, walk or sustain dynamic postures such as stooping, squatting or kneeling for long periods of time. He will not cope with medium and heavy occupations, nor with occupations that require prolonged periods of standing, walking, kneeling and squatting. These types of occupations will exacerbate his pain. He would benefit -from the application of pain alleviating strategies, spinal hygiene principles and joint care protection principles.

The claimant will be able to perform sedentary and light job demands until retirement age. However, his ability to obtain sedentary types of employment will depend on his academic achievements, as well as his cognitive difficulties which may be due to the head injury he sustained or related factors These may limit his options even further. However, the writer defers to an educational psychologist to comment on his pre- and post-cognitive potential".

[11] Ms M Hough, the industrial psychologist, opined that, as a result of his injuries, A is limited to activities of a sedentary to light physical strength and will not be suited to follow a career, as postulated by the occupational therapist, of an artisan. Ms Hough is of the view that A will not be able to earn on par with the salaries for an un-injured person with a Grade10/N3 level qualifications of Paterson level B3/B4. Further that A was unlikely to progress beyond Paterson Level B1/82. Ms Hough is also of the opinion that with his emotional challenges, A would find it difficult to keep a job.

[12] The parties obtained actuarial calculations. It was agreed 1hat for the pre­accident scenario, the average of the combined amounts of the plaintiff and defendant's actuarial calculation would be taken and that a contingency percentage of 25% would be applied. With regard to the post-accident scenario, the parties agreed that the actuarial calculation of the defendant's actuary would be applicable.

[13] As a result, the parties have agreed that the quantum for A' s loss of earning capacity would be R4, 049 , 478.48, the apportionment having been taken into account less the amount of R500, 000.00 already paid to the plaintiff.

[14] Having read the expert reports and heard counsel, I am of the view that the agreed amount of R4, 049. 478.48 for loss of earning capacity is fair and reasonable.

 

Costs

[15] With regard to whether a cost order for two counsels should be made, counsel for the plaintiff submitted that it should in that this matter was a difficult case to prove, particularly with regard to proving the brain injury. Counsel submitted that initially A 's head injury was diagnosed as a mild concussive injury. Later the diagnosis was changed to moderate to severe concussive diffuse brain injury. Counsel argued that the difference between the two diagnoses would have made a huge difference with regard to the quantum for general damages and loss of earning capacity. Counsel further submitted that the. plaintiffs attorney had an obligation to make sure that he- briefed the counsel who could deal with this matter. It was further pointed out to the court that when the agreement as to the merits was made.an order of court, costs of two counsel were awarded.

[16] In support of the plaintiffs request for costs of two counsel. the curator submitted that he was also of the view that this matter was important to the plaintiff and in light of the educational psychologist's opinion that there was a possibility that A might have sustained a severe brain injury. it was necessary for two counsel to be appointed. Further, Advocate S submitted that even some of the experts had suspected that S could have sustained a moderate to severe brain injury which would have an impact on the quantification of the quantum for general damages and loss of earning capacity. Counsel submitted that the guidance of a senior advocate was necessary in order to secure the plaintiff's rights.

[17] It is my view and as correctly pointed out by counsel for the RAF that this matter was not so complex that it warranted employment of two counsel. The determination of the extent of A’s brain Injury was not within the competency of his legal representatives. It was that of his medical experts. All what needed to be done, if in doubt about the severity of A's brain injury, was for A's legal representatives to seek a second opinion, which thing was ultimately done hence the severity of A's brain injury was established in August 2018, One also needs to bear in mind that besid.es A's attorney and counsel, he also had the benefit of Mr S, his appointed curator ad litem.

[18] In the circumstances, I am of the view that the employment of two counsel was not justified or necessary and that the costs of two counsel should not be ordered.

[19] In the result an order is granted in terms of the amended draft order marked “X”.

 

NP MNGQIBISA-THUSI

Judge of the High Court

 

Appearances:

For plaintiff: Adv D Venter appearing with Adv E Van Wyk (instructed by Van der Hoff Inc)

For defendant: Adv L Coetzee (instructed by Maponya Inc)

 

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

BEFORE THE HONOURABLE MADAM JUSTICE MNGQIBISA-THUSI J

ON 20 March 2020

In court 6C

CASE NO: 72516/12

In the matter between:

ADV JS S N.O                                                                                                            Plaintiff

On behalf of A S

(herein referred to as “the Patient")

And

ROAD ACCIDENT FUND                                                                                      Defendant

 

DRAFT ORDER

 

After having heard counsel for the parties, it is ordered that:

1. (a) Defendant shall pay to the Plaintiff an amount of R3 549 478.48 (Three million five hundred and forty nine thousand four Hundred and seventy eight rand and forty eight cents) being the difference between the amount of R4 049 478,48 awarded as damages in full and final settlement of the Plaintiffs claim less an amount of R500 000,00 already paid by Defendant as interim payment.

(b) Interest on the said amount of R3 549 47, 8 48 at the rate of 10% per annum calculated 14 days from the date of this order to the date of payment;

2. The Defendant is ordered to furnish the Plaintiff with an undertaking In terms of section 17(4}(a) of the Road Accident Fund Act, No 56 of 1996, limited to 90% of the costs of the future accommodation in a hospital or nursing home, or the treatment of or the rendering of a service or the supplying of goods to him, after such costs had been incurred and on proof thereof, which costs had arisen out of the injuries and sequelae thereto as sustained by him in the motor vehicle collision which had occurred on 3 April 2008.

3. The Defendant shall pay the taxed or agreed costs the action, including the costs for the trial dates 6 February 2017 and 27 August 2018 and the following [all costs are subject to the discretion of the taxing master]:

3.1 The costs of counsel, including but not limited to the attendance of pre-trial conferences and preparation of pre-trial minutes , as well as consultations with expert witnesses and further the matter as on trial; being the difference between the amount of R4 049 478,48 awarded as damages in full and final settlement of the Plaintiffs claim less an amount of R500 000,00 already paid by Defendant as interim payment.

3.2 The costs for the curator ad litem for attending all pre-trial conferences. consultations, Court appearances, preparation for trial and compiling of all reports.

3.3 Any costs attendant upon obtaining payment of the capital amount;

3.4 The Plaintiffs reasonable and taxable travelling costs for attending the Plaintiffs and Defendant's expert consultations and the trials on 6 February 2017 and 27 August 2018.

3.5 The preparation qualifying and day fees, If any, of the following expert witnesses, including the costs with regard to all reports, addendums and attending to joint minutes [all costs are subject to the discretion of the taxing master];

3.5.1 Dr LA Oelofse (Orthopaedic surgeon);

3.5.2 Ms T Caga (M Ferreira-Texeira) (Occupational therapist);

3.5.3 Ms Michelle Hough (Industrial Psychologist);

3.5.4 Dr JA Smuts (Neurologist);

3.5.5 Prof. PL Lekgwara (Neuro Surgeon);

3.5.6 Ms Eleanor Bubb (Clinical and Educational Psychologist);

3.5.7 All actuarial reports by GRS Consulting;

3.5.8 All actuarial reports.

3.6 Any costs incurred with regard to enforcing and obtaining any amounts due to the Plaintiff.

4. The PlaintiffIs declared a necessary witness for purposes of the trial.

5. The following persons attended the Court as witnesses for purposes of the trial:

5.1 Mr . Thabo l. Masenya;

5.2 Ms. Akhona E. Ngcukana;

5.3 Ms. M E S.

6. If costs are not agreed. the Plaintiffs attorney of record sliall serve notice of taxation on the Defendant's attorney of record and shall allow the Defendant 14 (fourteen) court days to make payment. where after interest shall be payable at the prescribed rate of 10% per annum calculated 14 (fourteen) days from the stamped allocator to date of payment.

7. lt is recorded that a contingency fee agreement is applicable between the Plaintiff and the attorneys of record.

8. Payment of the capital amount and all costs shall be effected by way of deposit into the Plaintiff's Attorneys' Trust Account, the details of which are as follows:-

ACCOUNT NAME   : VAN DER HOFF INC TRUST ACCOUNT

BRANCH, ACB       : MONTANA, 632005

ACCOUNT NR        : […]

REF.                        : S273

0cm; line-height: 150%">9. The Plaintiff and the Plaintiffs attorneys of record are directed to cause a deed of trust to be registered by the Master of the High Court Incorporating the provisions normally to be found In an inter vivos trust on behalf of the patient within 3 (three) months from the date of this Order, or such longer period as the Master may on application direct and/or by way of obtaining directions on approach to this Honourable Court with regard to the manner in which the capital amount should be further and/or alternatively administered on behalf of the- patient , as well as cause the relevant amounts of capital and costs .is eventually received on behalf of the patient to be paid to the trust tor the purpose of administering the said amounts on behalf of the patient.

10. The deed of trust shall provide -for the-following additional provisions:

10.1 that there will be, if practically possible two or three trustees consisting of the mother of the patient and one or two professional trustees being an attorney and a chartered accountant;

10.2 that the trustees appointed or their successors in title shall have the. powers of assumption;

10.3 the property of the trustees shall be separated from the trust property;

10.4 ownership of the trust property shall vest in the trustees in their capacity as trustees;

10.5 the trustees shall provide security to the satisfaction of The Master of the High Court in limns of section-6(2)(a) of the Trust Property Control Act 57 of 1988 (as amended);

10.6 the appointment of and the exercise by the trustees of their aforesaid powers shall be subject to the control of the Master of the High Court:

10.7 procedures to resolve any disputes shall be subject to the review of any decision made in accordance therewith by the above Honourable Court ;

10.8 amendment and/or dissolvement of the "trust deed shall be subject to only with the leave of the above Honourable Court;

10.9 the trustees shall be authorised to recover the following costs incurred;

10.9.1 the reasonable costs of the creation of the trust and the appointment of the trustees;

10.9.2 the reasonable costs incurred in the furnishing of security;

10.9.3 the costs of the trustees in administering the capital and income of the trust, including accounting fees, in accordance with the prescribed tariff for tutors and curators, as provided for in section 84(1)(b) of the Administration of Estates Act 66 of 1965 (as amended) and published in the relevant Gazette, which remuneration shall be taxable by the Master of the High Court in accordance therewith;

10.10 the patient shall be the sole income and capital beneficiary;

10.11 the suspension of the patient's rights. In the event of cession, attachment or insolvency, prior to the distribution or payment thereof by the trustee to the minor;

10.12 in the event of the patient entering into a marriage the trust property is to be excluded from any community of property or any accrual In terms of Section 2 of the Matrimonial Property Act 88 of 1984;

10.13 that the trust property and the administration thereof be subject to an annual audit and report by a chartered accountant;

10.14 the trust property may not be used to purchase shares in any company listed on any stock exchange,

10.15 The trust deed shall furthermore provide for inter alia and at least the following provisions regarding the duties and obligations of the trustees:

i. to receive, take care of, control and administer all the assets of the patient:

ii. to carry on or discontinue, subject to any law which may be applicable, any trade, business or undertaking of the patient;

iii. to acquire. whether by purchase or otherwise, any property, movable or immovable, for the benefit of the patient;

iv. to let, exchange, partition, alienate and for any lawful purpose. to mortgage or pledge any property belonging to the patient, or in terms of which he has-an interest;

v. to perform any contract relating to the property of the patient entered into by him before creation of the trust;

vi. to exercise any power to give any consent required for the exercise of such power, where the power is vested in the patient for his own benefit or is in the nature of beneficial interest to him;

vii. to raise money by way of mortgage or-pledge of any of the immovable property of the patient for the payment of his debts or expenditure incurred or to be incurred for his maintenance or otherwise for his benefit or provision for the expenses of his future maintenance or the improvement of the maintenance of his property;

viii. to apply any money for the maintenance, support or towards the benefit of the patient;

ix. to incur expenditure in respect of the improvement of any property of the patient by means of building or otherwise;

x. to expend any monies belonging to the patient on the maintenance, education or advancement of any relative of the patient or any other person wholly or partially dependent on the patient, to continue such other acts of bounty or charity exercised by the patient as the Master of the High Court, having regard to the circumstances and the value. of the estate of the patient, considers proper and reasonable;

xi. to invest or re-invest any monies of the patient which become available from time to time for investment- and which are not immediately required for the purposes defined In section 82(c) of the Administration of Estates Act 66 of 1965 (as amended);

xii. to institute proceedings which may be necessary for the interest of the patient, or for the due and proper administration of the patient's estate;

xiii. to, as far as possible, ensure that the patient is, by the payment of the capital figure settled upon and any other figures payable In terms of this order, and by the use to which the payment is put, protected from the consequences of any handicap associated with youthfulness or otherwise that he may suffer from and in as far as possible enable thereby to obtain such financial well-being as the patient could have, were it not for any handicap, have been able to obtain;

xiv. to incur expenditure to ensure that the patient is properly cared for.

11. The plaintiffs attorneys in their discretion if so re-quested by the plaintiff may make Interim paymen.ls to the patient, pending the creation of the trust referred to in paragraph 7 supra, to provide for the patient's maintenance or other pressing financial needs that may arise.

12. The monies received on behalf of the patient, after deduction of the attorneys' reasonable fees, costs and disbursements including counsel and expert fees, shall be paid Into an Interest-bearing account, for the benefit of the patient, as provided for by section 78(2A) of the Attorneys Act 53 of 1979 (as amended) pending the creation of the trust and the issuing of letters of authority referred to in paragraph 7 supra.

13. The plaintiffs attorneys shall render an attorney-and-client reconciliation statement of account in respect of fees and disbursements to the trustees in terms of the fee contract concluded with the plaintiff and shall be entitled to payment from the aforesaid -funds to be deposited In terms of paragraph 10 supra.

14. The costs owed to the patient as represented by the Plaintiff shall be paid Into the account referred to In paragraph 8 for the benefit of the minor after deduction of the legal cost consultant's fee for drawing the bill and attending to its settlement and/or taxation. Where after same shall be paid into the trust following its creation for the benefit of the patient. The Investment thereof shall be utilised as may be directed by the trustees of the trust.

15. This Order must be served by the Plaintiff's attorneys on the Master of the High Court within 30 (thirty) days of the making hereof.

 

 

By order

 

 

 

REGISTRAR

 

APPEARANCE O.B.O. PLAINTIFF:

Adv Dirk Venter (082 895 8342)

Adv Eugene van Wyk (082 902 3932)

Adv Japie S S (082 269 2947)

 

APPEARANCE O.B.O. DEFENDANT:

Adv L Coetzee (083 324 9540)

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