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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)

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED YES

 

CASE NO: 97027/2016

 

In the matter between:

RAYMOND GEORGE PETTIT                                                                        Plaintiff

 

and

 

ROAD ACCIDENT FUND                                                                               Defendant

 

Heard: 11 June 2020

Judgment: 14 September 2020

 

JUDGMENT

 

MOVSHOVICH AJ:

[1]        The plaintiff, Mr Raymond George Pettit, was involved in an accident on 8 January 2016.

[2]        The plaintiff sued the Road Accident Fund for damages under several heads.  Most issues are agreed between the parties; the only issue which remains in dispute is the quantum of general damages.

[3]        As held by this Court in Yimba v Road Accident Fund:

[3.1]            the Court enjoys a wide discretion when awarding general damages;

[3.2]            comparable cases may "offer some guidance in assisting a court to arrive at its award" but "should not be viewed as an absolute standard"; and

[3.3]            "a modern approach should be infused into the process of assessing damages and to consider individual freedom of opportunity , rising standards of living and the recognition that past awards have been significantly low."[1]

 [4]       Ultimately, the award should, of course, strive to be fair to both sides.[2]

[5]        I was referred to a number of judgments which were said to provide guidance for the purposes of the current proceedings.  I do not propose to deal with them in any depth in this judgment.  I have taken them all into account in accordance with the approach in Yimba.  The most significant judgments included: Sofute v Road Accident Fund [2007] ZAECHC 128 (Ck); Aeschliman v Road Accident Fund [2009] ZAECPEHC 7 and Schwartz v Road Accident Fund [2010] ZAECPEHC 61.

[6]        The salient facts are essentially common cause.  The plaintiff sustained the following injuries: facial abrasions, sensory neural hearing loss, injury to the middle finger on his left hand, injury to the spine and contusion of the left knee with a tear to the cruciate ligament.

[7]        The plaintiff has suffered several injuries with serious short and long-term adverse consequences.  He has a permanent sensory-neural hearing loss in both ears, which will affect his quality of life.  The plaintiff suffers great discomfort and chronic pain, which has also resulted in him not being able to perform tasks which he used to do prior to the accident and having difficulty mobilising.  The plaintiff's memory has been affected, he experiences nightmares and feels tired and depressed consequent on the accident.

[8]        On balance, in view of the full conspectus of the facts and the past case authorities, my view is that an award of R425,000.00 is appropriate, just and fair compensation.

[9]        In the circumstances, I make the following order:

[9.1]     it is recorded that the merits were resolved on the basis that the Defendant shall pay 80% of the Plaintiff’s proven or agreed damages;

[9.2]     the extent of injuries sustained and damages suffered by the Plaintiff relating to the Plaintiff’s claims for past and future loss of earnings and earning capacity and general damages (“the resolved portion of the quantum”), is separated from the extent of injuries sustained and damages suffered by the Plaintiff relating to the Plaintiff’s claim for past medical expenses (“the remaining issue”);

[9.3]     the Defendant shall pay to the Plaintiff the sum of R986,528.00 in respect of past and future loss of earnings and R425,000.00 in respect of general damages, to be paid within 15 calendar days of the date of this Order;

[9.4]     in the event of the aforesaid amounts not being paid timeously, the Defendant shall be liable for interest on the unpaid amount at the rate of 8.75% per annum, calculated from the 15^th calendar day after the date of this Order to the date of payment;

[9.5]     the Defendant shall pay the Plaintiff’s taxed or agreed party and party costs on the High Court scale, up to and including 12 June 2020, subject thereto that:

[9.5.1]        in the event that the costs are not agreed:

[9.5.1.1]          the Plaintiff shall serve a notice of taxation on the Defendant’s attorney of record;

[9.5.1.2]          the Plaintiff shall allow the Defendant 14 (FOURTEEN) days from date of allocatur to make payment of the taxed costs;

[9.5.1.3]          should the payment not be effected timeously, the Plaintiff will be entitled to recover interest at the rate prescribed under the Prescribed Rate of Interest Act, 1975 on the taxed or agreed costs from date of agreement or the allocatur to date of final payment.

[9.5.2]        such costs shall include:

 [9.5.2.1]         the costs of and consequent to the appointment of Counsel, Adv C M Dredge, on the Senior-Junior scale, including, but not limited to his full day fees for both 10 June 2020 and 11 June 2020, as well as his full preparation, and the costs of and consequent to him preparing, drafting and bringing out Advice on Evidence, Heads of Argument and Memorandum of Settlement for the Presiding Officer;

[9.5.2.2]          the costs of all medico-legal, radiological, MR, sonar, pathologist, audiological, actuarial and addendum reports and/or forms obtained, as well as such reports and/or forms furnished to the Defendant and/or its attorneys, as well as all reports and/or forms in their possession and all reports and/or forms contained in the Plaintiff’s bundles, as well as said experts’ reasonable preparation and qualifying fees allowed by the Taxing Master for both 10 June 2020 and 11 June 2020, including, but not limited to the following:

[9.5.2.3.1]         Dr I D Vorster;

[9.5.2.3.2]         Dr H B Enslin;

[9.5.2.2.3]         Dr B H Pienaar;

[9.5.2.2.4]         Carin Steenkamp;

[9.5.2.2.5]         P C Diedericks and/or N Brink;

[9.5.2.2.6]         Elzeth Jacobs and/or Elmien de Klerk;

[9.5.2.2.7]         Dr Callaghan;

[9.5.2.2.8]         M du Plooy;

[9.5.2.2.9]         Johan Potgieter and/or designated Actuary for GRS Actuarial Consulting.

[9.5.2.3]          the reasonable costs incurred by and on behalf of the Plaintiff in attending all medico-legal examinations by both parties’ experts, which shall include, but not be limited to necessary travelling costs and expenses (time and kilometres);

[9.5.2.4]          the costs of and consequent to the Plaintiff’s trial bundles and witness bundles, as well as the costs of 3 (THREE) copies thereof (2 for the Judicial Management Meeting and 1 for Counsel for trial);

[9.5.2.5]          the costs of and consequent to the holding of all pre-trial conferences, round table conferences and judicial management meetings, and special COVID19 pre-trial conferences, including counsel’s charges in respect thereof, which shall include, but not be limited to their attendance, preparation and the costs of and consequent to them preparing, drafting and bringing out minutes of such;

[9.5.2.6]          the costs of and consequent to the Plaintiff ensuring compliance with Case Lines (both time and tariff);

[9.5.2.7]          the costs of and consequent to the parties’ experts holding joint meetings, as well as preparing, drafting and bringing out minutes of joint meetings;

[9.5.2.8]          the costs of and consequent to drafting and procuring affidavits from the experts in paragraph 9.5.2.2, with a view to applying for default judgment, as well as these experts’ charges in respect thereof,

[9.6]     all the amounts referred to in this Order will be paid to the Plaintiff’s attorneys, Gert Nel Incorporated, by direct transfer into their trust account, details of which are the following:

ABSA Bank

Account number: [….]

Branch code: 335545

REF: GN9982

[9.7]     the remaining issue is postponed sine die;

[9.8]     the parties record that the Plaintiff entered into a valid contingency fee agreement with his attorneys.

Hand-down and date of judgment

[10]     This judgment is handed down electronically by circulation to the parties' representatives by email and by being uploaded onto Caselines, as envisaged in the Judge President's Directives: Judge President's Consolidated Directive In re: Court Operations in the Pretoria and Johannesburg High Courts during the extended COVID-19 National Lockdown for the remainder of Term 2/2020 [2020] ZARC 44 (11 May 2020), extended under Gauteng Division of the High Court of South Africa - Extension of the 11 May 2020 Consolidated directive regarding Court operations in the Gauteng Division of the High Court, Pretoria and Johannesburg [2020] ZARC 56 (2 August 2020).  The date and time of hand-down of the judgment are deemed to be 11:00 on 14 September 2020.

 

 

VM MOVSHOVICH

ACTING JUDGE OF THE HIGH COURT

Plaintiff's Counsel:                                 CM Dredge

Plaintiff's Attorneys:                               Gert Nel Incorporated, Pretoria

 

Defendant's Counsel:                            Not represented

Defendant's Attorneys:                          Not represented

 

Date of Hearing:                                   11 June 2020

Date of Judgment:                                14 September 2020

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