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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

1. Reportable:  No

2. Of interest to other judges: No

3. Revised: Yes

 

8 February 2019     

CASE NO: 94691/2016

 

In the matter between:

SIBANDA, LIBERTY                                                                                                       Plaintiff

and

ROAD ACCIDENT FUND                                                                                              Defendant

 

Heard on 5, 6 and 7 December 2018

Delivered on 8 February 2019

 

JUDGMENT

 

DE VILLIERS, AJ:

Introductory comments

[1]             The plaintiff sued the Road Accident Fund ("the RAF") for damages arising from a motor vehicle collision that occurred on the 23 of September 2015 near the intersection of WF Nkomo and Rose-Etta Streets, Pretoria West, between a light delivery vehicle and the plaintiff (who was driving a scooter).

[2]             In issue remained (a) if the insured driver was negligent, (b) if the plaintiff was contributory negligent, and (c) the amount of general damages, if any.

[3]             The parties agreed only the first day of the hearing on the amount of past and future loss of earnings in the sum of R821 340.00. The amount claimed was R1 500 000.00.

[4]             The parties also agreed on the first day of the hearing that the RAF would furnish the plaintiff with an undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of 1996 for payment of the future medical expenses.

The negligence of the insured driver

[5]             The collision occurred on WF Nkomo Street. I on occasion refer herein to this road as "the street" or "the road".

[6]             We conducted an inspection in loco before evidence was led. Such a step remains of the utmost importance to assess negligence.

[7]             The road is a tarred road, carrying traffic in two lanes in each direction, separated by a fixed barrier line. The road runs from East to West, with the city centre to the East.

[8]             The speed limit on the road is 60 kilometres per hour. A simple calculation shows that a vehicle travelling at that speed covers almost 17 meters every second.

[9]             The insured driver testified that he was parked perpendicular to the road on the North side of the road. He was parked in front of a hardware store. His vehicle faced the hardware store. In other words, the road was at the rear of his vehicle. As parked, the intersection referred to below was on the insured driver's left side. The time was about midday and normal weather conditions occurred.

[10]          The parking bay is about 95 meters from the East (near) side of a robot-controlled intersection where Rose-Etta Street crosses the road, running North to South. I on occasion refer herein to this intersection as "the intersection".

[11]          The parking bay is about 118 meters from the West (far) side of the intersection. In other words, Rose-Etta Street is about 23 metres wide.

[12]          Visibility form the parking bay to the West is unobstructed for a long distance as the road is largely flat (with only a slight downhill trend) and is straight. The clear visibility from the intersection is at least 200 meters. The same applies from the parking bay where the insured driver was parked looking towards the intersection and beyond.

[13]          The inured driver, a Mr Mathibedi, testified that he wanted to travel from East to West. He found himself on the wrong side of the road to do so. The simple, law abiding step for the insured driver was to join the traffic driving East, and to drive around a block to join the traffic going West, say at the intersection in issue.

[14]          Instead, the insured driver elected to cross the road in an inherently dangerous manoeuvre. In order to do so he carried out an inherently dangerous manoeuvre in two stages, the second of which resulted in catastrophic injuries to the plaintiff who has been rendered quadriplegic.

[15]          First the insured reversed into the lanes of traffic in order to turn his vehicle around. Such traffic travelled from West to East in two lanes. He succeeded in carrying out this manoeuvre and as a result faced the road with the intersection now somewhere to his right.

[16]          The insured driver testified that he faced the oncoming traffic. This would suggest that he reversed by making a U-turn of more than 180 degrees. He also did not testify that his view was obstructed by the A-pillar adjacent to his windshield. In the end all that matters, is that the front of his vehicle on his version faced towards the opposite side of the road, whether at an angle or not, before he started crossing the street at a place where the road markings did not allow such a step.

[17]          The insured driver then proceeded to cross over what remained of two lanes of traffic, crossed over the solid barrier line, in order to join WF Nkomo Street traffic travelling West.

[18]          The insured driver must have foreseen the reasonable risk of harm caused by undertaking his inherently dangerous manoeuvres and ought to have taken steps to avoid the occurrence (Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) Para 12).

[19]          The law is clear. Msimeki J (Molopa-Sethosa J and Arnoldi AJ concurring) recorded the position in Jacobs v Road Accident Fund (A402/2008) [2011] ZAGPPHC 121 (13 June 2011) Para 12:

" 1. Our Provincial Divisions and the Supreme Court of Appeal have held that to turn across the path of oncoming or following traffic is an 'inherent dangerous manoeuvre' and that a driver who intends executing such a manoeuvre bears a stringent duty to do so after satisfying himself that it is, indeed, safe and then choosing the right moment (often called the opportune moment) to do so. (See in this regard AA Mutual Insurance Association Ltd v Noneka,  1976 (3) SA 45 (AD) at 52E; R v Cronhelm  1932 TPD 86; Sierborger v SAR & Harbours,  1961 (1) SA 498 (AD) and Johannesburg City CounciI v Public Utility Transport Corporation Ltd,  1963 (3) SA 157 (W)). It is therefore understandable why a driver turning right has a greater duty towards both the traffic following as well as traffic approaching from the opposite direction.

2. …"

[20]          Although this is not a right turn case where a driver deviates from his normal line of travel, the principle is the same. The facts of this matter are not that different to a driver who makes a U-turn across the line of oncoming traffic. In this regard Caney J (Van Heerden AJ concurring) held in Bell v Minister of Economic Affairs 1966 (1) SA 251 (N) at 256H-257G:

"The driver of a vehicle stationary at the side of the road who wishes to drive out into the stream of traffic has, however, a particular duty to assure himself that it is safe to do so; more especially is this so if he wishes, in driving out, to cross the stream of traffic. This is so because his vehicle is not one of those obvious to other drivers as a contestant for space in the stream; he is not directly under their observation. Although they must appreciate the possibility of such as he, he is a newcomer to the stream; they are not to expect every 'parked' vehicle to be about to move, but are entitled to have, and the driver of such a vehicle is under a duty to give, a clear and unequivocal signal of his intention in such a manner as to be visible to them. He is also under a duty not to carry out his manoeuvre unless and until it is safe to do so. It is for him to assure himself that there is no other vehicle likely to be impeded by it or that the drivers of such vehicles are aware of his intention and are accommodating their movements to his.  This is so whether the stream of traffic consists of a number of vehicles or, as in the present case, one vehicle.

These principles I consider have support from the following decisions. In Montgomery v Hulston and Hulston, 1917 AD 183 at p. 187, INNES, C.J., said:

'The position was this: she had drawn up her car facing the traffic, and was unavoidably on the wrong side of the road; she was perfectly entitled to cross, but with due regard to the rights of those approaching her on their proper side. If her diagonal advance would have created a position of danger with regard to approaching traffic, it was for her to wait until that traffic had passed or until it had signified its willingness to make way for her. And having started across the line of traffic the duty was upon her of exercising special care and of giving way when necessary to those who were using the street upon their proper side.'

This related to a motorist whose car was 'parked' on the incorrect side of the road, but the principle appears to me to be substantially the same. Barendse v Smith, 1923 E.D.L. 269, on its facts was not dissimilar to the present case; at p. 273, GRAHAM, J.P., said of the motorist whose car was stationary:

'Now we think that it is the duty of the driver of a motor car, before he turns at right angles to a street and so obstructs the traffic by means of his car, not only to put his hand out and hoot, but also to look around and see that there is no oncoming traffic. If he does not do so he turns at his peril and is guilty of negligence.'

(With respect, I would make a reservation on the question of sounding the hooter). See also Rex v Fig, 1933 (1) P.H. 07 (C) -

'it was accused's duty to take precautions to see that everything was safe before he emerged into the line of traffic'.

In addition, see R v Faburichi, 1958 (3) SA 802 (SR) at p. 803B-D, and Woods v Administrator, Transvaal and Another,  1960 (1) SA 311 (T); Sun Insurance Office Ltd v van Pletzen, 1965 (2) P.H. O.40 (A.D.), and, for the facts of this case, 1961 (1) P.H. O13."

[21]          The plaintiff cannot remember where the point of impact was. He remembers travelling in the slow lane, the left lane, the lane closest to where the insured driver was parked. It is a probable version, as will appear below. On his version the insured driver suddenly drove into the lane on which he was travelling.

[22]          The insured driver had conflicting versions as to where the plaintiff was when he first saw him. On his version the point of impact was just after he had crossed over the central barrier line, in other words in the lane of oncoming traffic for the plaintiff. The insured driver's version was that drove diagonally across the street to where he said the collision occurred, some 43 metres from the parking bay. In other words, he travelled for about 40 metre on the wrong side of the road as he gradually crossed over to the other side of the street. By that stage, on his evidence, he was about 60 metres from about the middle of the intersection then diagonally to his right.

[23]          This version of events was presented to fit an improbable version, as will appear below, of a speeding plaintiff. The more likely case is that the plaintiff intended to drive diagonally across the street (on the wrong side of the road, another inherently dangerous manoeuvre), but that the collision occurred shortly after he had set off. I do not know with any degree of precision where the point of impact was, but it appears to have been in the lane closest to where the insured driver was parked, probably close to the hardware store.

[24]          Evidence must not be evaluated piecemeal, but on the common cause facts very unusual circumstances had to exist in order for me not to find that the insured negligently caused the plaintiff's life changing injuries. I saw no remorse by the insured driver, no indication that he at all felt some level of responsibility for his actions. His evidence was peppered with contradictions.

[25]          The plaintiff's evidence was straightforward. He was employed by a fast food chain to deliver food orders. On the day in question, he travelled on his scooter in an eastern direction on his way to do a delivery. The order consisted of food and drinks. He was travelling in the slow lane, the extreme left lane. He was travelling slowly as the scooter is slow, and as he could spill the drinks that he was transporting. He wore a uniform, consisting of pants and a shirt, and not protective clothing. The robot was green. He crossed the intersection. All of a sudden, the insured driver drove across his line of travel. He could do nothing to avoid the collision and remembers little else.

[26]          Issue was taken in cross-examination of the plaintiff with his omission to mention the intersection in an affidavit prepared for him when he was in hospital, the colour of the robot, and his speed.

[27]          This is not a matter where I have to weigh up two contradictory versions with no probabilities.

[28]          The essence of the insured driver's version was that the plaintiff had driven past vehicles that had stopped at the intersection, passed these vehicles on their extreme right (next to the barrier line), entered the intersection at very high speed against the traffic lights, lost control of his scooter, and slid on the tarred road for up to about 60 metres before colliding with his vehicle.

[29]          The insured driver's version could not have been true:

[29.1]         The insured driver had a changing version referred to already. The insured driver had difficulties to explain in cross-examination where the plaintiff was when he first saw him, when and if he saw him entering the intersection, and what aspects of his evidence were reconstructions. His version did not remain consistent. The RAF could perhaps not have foreseen fully that this would happen. I say fully, as had any attempt been made to consult the insured driver before the hearing, someone must have noted that the RAF assessor's report (prepared on the insured driver's version to the assessor) contains a sketch reflecting a single vehicle stopped at the intersection, and the plaintiff passing that vehicle in the slow lane (the lane in which the plaintiff testified he travelled). I was informed that the RAF briefed counsel the day before the hearing and that the counsel did not have a proper consultation with the RAF's only witness before he testified. I repeat, the entity funded with public funds to assist persons injured in road accidents, failed to prepare for a hearing in which a vulnerable quadriplegic person sought help. That failure shows further in the failure to concede expert reports before the date of the hearing;

[29.2]         The plaintiff had no abrasive injuries consistent with the insured driver's version. This the RAF must have foreseen this and should not have proceeded with a palpably improbable (and only partial) defence. The failure to prepare for the hearing seems to be the likely reason why negligence and contributory negligence remained in issue. The matter really ends here, but I refer below to two further indications that the insured driver's version is improbable;

[29.2.1]           The insured driver's version of a scooter traveling at high speed is contradicted by the nature of a scooter and the version that the plaintiff had to drive carefully due to the drinks that he was transporting. On any version the insured driver had sufficient time to observed the approaching scooter;

[29.2.2]           It is further improbable that a person on a scooter (an exposed driver) would enter a robot-controlled intersection against the traffic lights having driven past vehicles that had stopped.

[30]          Once the negligence of the insured driver is clear, the RAF had an onus to show that the plaintiff was negligent too (Union National South British Insurance Co Ltd v Vitoria 1982 (1) SA 444 (A)). The RAF had no prospect to prove contributory negligence for the reasons set out above. No such case was pleaded.

[31]          Considering the evaluation as set out in Stellenbosch Farmers' Winery Group Ltd and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA) Para 5, I find that the RAF did not discharge the onus to show contributory negligence by the plaintiff.

[32]          I find the insured driver solely responsible for the collision, with no contributory negligence by the plaintiff.

[33]          The plaintiff was subjected to a trial lasting three days, two days of which was spent dealing with the insured driver's improbable version. It was in fact a matter that should have lasted less than a day on the quantum of general damages. Those matters are now customarily presented as argument based on admitted expert reports and joint minutes.

[34]          The last pre-trial conference was on 22 November 2018. On the facts known to me, at the very latest, by that date the following matters should have been resolved if the RAF and its attorneys prepared properly for the hearing:

[34.1]         The insured driver's sole negligence should have been admitted;

[34.2]         Past and future loss of earnings should have been settled;

[34.3]         The furnishing of an undertaking in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of 1996 should have been undertaken;

[34.4]         The plaintiff's expert reports should have been admitted. Expert reports delivered months earlier, and where there were no conflicting reports, were only admitted at or during the hearing. I know of no fact or conclusion in any expert report that was seriously in issue requiring expert witnesses to remain on standby to testify at great cost. I was informed from the bar that in the absence of an appropriate order, only insignificant witness fees are allowed on taxation in respect of expert witnesses who have to keep their diaries open to testify.

[35]          The plaintiff is one of the most vulnerable litigants. It would be unfair to leave the plaintiff out of pocket in respect of expenses incurred in respect of those four matters after 22 November 2018 and I make a penalising costs order against the RAF in my order.

  General damages

[36]          General damages are intended to compensate a victim in a case such as this one for physical pain, mental pain, loss of amenities of life, the handicap of disability, and the like. I should add that in our law the compensation is a conservative amount. No amount of money ever could compensate someone such as the plaintiff for the injuries he sustained. He was a healthy, active person, who worked and lived as able-bodied persons do. The plaintiff's injuries were catastrophic: He has been rendered quadriplegic..

[37]          The assessment of the palintiff's recoverable general damages (if any) cannot be done as an arithmetical calculation. Such damages "… are not susceptible to exact or immediate calculation in monetary terms. In other words, there is no real relationship between the money and the loss" as confirmed in Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust as Amicus Curiae) [2006] ZACC 4; 2006 (4) SA 230 (CC) Para 39.

[38]          The plaintiff originally claimed general damages in the sum of R2.5 Million, which was increased before the hearing to R3 Million. I was referred to broadly comparable cases to assist me in my assessment. I also looked for other comparable cases.  

[39]          In applying these guiding cases, I must guard against my sympathy resulting in an award that is unfair to the RAF (De Jongh v Du Pisanie NO 2005 (5) SA 457 (SCA) Para 56-66 and Road Accident Fund v Delport NO [2006] 1 All SA 468 (SCA) Para 24).

[40]          In all of the cases that I considered catastrophic injuries were sustained and the plaintiffs have been rendered quadriplegic. They suffered comparable types of injuries, past medical treatment, past suffering, future medical treatment, ongoing suffering, continued loss of the amenities of life, ongoing impairment of dignity, physical pain, mental pain, and the like.

[41]          The cases are comparable, but also are difficult to distinguish with any degree of substance in order to rank them in order of severity.

[42]          The plaintiff was born in 1992. He is 27 years old. As appears to be the norm in these matters, the plaintiff did not testify about the impact of the collision, and I am asked to make my assessment on various admitted reports by expert witnesses (by a Urologist, a Clinical Psychologist, and a Neurosurgeon), as well as in some cases admitted joint minutes (by Orthopaedic Surgeons, Occupational Therapists, and Industrial Psychologists).

[43]          The plaintiff's injuries were severe and their effects are ongoing, inter alia (I emphasise the words "inter alia" in this paragraph and the ones that follow):

[43.1]         He suffered a fracture of C6 and C7 vertebra and was rendered a C5/C6 quadriplegic patient; and

[43.2]         He suffered a mild diffuse traumatic brain injury.

[44]          The plaintiff's initial treatment reflected his severe injuries, inter alia:

[44.1]         Various emergency treatments were administered;

[44.2]         A C5 to C7 anterior corpectomy and decompression was done and a fusion was performed;

[44.3]         The plaintiff was discharged on 17 November 2015 which was approximately 3 (three) months after admission on 23 September 2015. According to the report by the Orthopaedic Surgeon, the plaintiff was in acute pain for one to two days, and moderate pain for six to eight weeks.

[45]          The plaintiff's condition, and subsequent and future treatment also reflect his severe injuries. One must bear in mind that his (restricted) expected life expectancy is to reach the age of 55 to 60:

[45.1]         The plaintiff suffers from neck pain, and has a significant chance of developing further degenerative changes to his spine. He has occasional headaches;

[45.2]         The plaintiff has sensory and motor level at C5/C6 level. He cannot use his upper limbs. His hands are non-functional. His wrist extensions are poor. In practical terms, he cannot drink from a cup, or use a cellphone, but he can use a computer. He cannot transfer himself out of his wheelchair into his bed or to bathroom facilities. He has to be bed washed;

[45.3]         Although the plaintiff can feed himself to a degree, he has difficulty when he chokes, as he cannot cough properly;

[45.4]         The plaintiff does not have normal control over his bladder and rectal functions. He cannot catharise himself and is at risk of developing chronic bladder infections and other complications. The plaintiff uses diapers around the clock. With a permanent catheter in the bladder the Plaintiff will still experience regular bladder infections. Leaving aside procedures for complications, a procedure, an ileo-cystoplasty, is likely He has to follow a bowel programme;

[45.5]         The plaintiff is at great risk to develop pressure sores and will require plastic surgery;

[45.6]         The plaintiff has severe spontaneous spasms in both legs;

[45.7]         The plaintiff feels depressed. He is unable to work. His life, as he knew it, stopped. He is separated from his family at a rehabilitation clinic. The plaintiff will require nursing care for the rest of his life as he cannot take care of himself. In short, his life with normal enjoyments enjoyed by healthy, active persons, changed dramatically. He is fearful when transported. He complains about forgetfulness.

[46]          Against this background, the plaintiff referred me to the following cases. I do not summarise them fully:

[46.1]         In Goba v Road Accident Fund 2013 JDR 1504 (ECG), Huisamen AJ awarded general damages in 2013 of R2 300 000.00 (2019 value about R3.1 Million). The plaintiff was 35 years old at the date of the collision. In that instance the plaintiff could not breath, was dependent on a ventilator, and was unable to speak when not on a speaking tracheostomy. An alert, intelligent person could make no movement "apart from her mouth, lips and tongue and blinking and moving her eyes";

[46.2]         In Bonnesse and Another v Road Accident Fund and Others 2014 JDR 0303 (ECP), Pickering J awarded general damages in 2014 of R2 500 000.00 (2019 value about R3.2 Million). The plaintiff was 13 years old at the date of the collision. In that instance the plaintiff suffered a severe brain injury as well limiting her understanding of her disability and level of care required;

[46.3]         In Joko v RAF 2016 (7A2) QOD 1 (WCC), Smuts AJ I awarded general damages in 2016 of R2 000 000.00 (2019 value about R2.3 Million). The plaintiff was 19 years old at the date of the collision. In that instance the plaintiff could not use his hands, but could propel a manual wheelchair over short distances, and did not suffer a brain injury;

[46.4]         In Morake v Road Accident Fund (52700/15) [2017] ZAGPPHC 761 (6 November 2017), Thlapi J awarded general damages in 2017 of R3 000 000.00 (2019 value about R3.3 Million). In this instance the plaintiff also suffered a greater brain injury. He was slow to respond when spoken to, made no eye contact, and was unable to recall or name any of simple items that were mentioned five minutes before. He was much older than the plaintiff before me, he was 64 at the time of the collision.

[47]          The RAF referred me to Swanepoel v Road Accident Fund (1271/2004) [2008] ZANCHC 34 (13 June 2008). Mokgohloa A J awarded general damages in 2008 of R800 000.00 (2019 value about R2.2 Million). It is important to note that in that case, the plaintiff for instance could still walk. He claimed general damages of R900 000.00, his own counsel suggested an award of                 R866 000.00.

[48]          I searched for cases publicly available and also had regard to the cases contained in The Quantum of Damages in Bodily and Fatal Injury Cases (by Corbett and Honey) under Injures of the Utmost Severity in the Spine and Brain category, Quadriplegia (Tetraplegia). The awards in the last twenty years that also seem comparable were:

[48.1]         In Sgatya v Road Accident Fund, Eastern Cape Division, Case No 682/2000, Jennett J awarded general damages in 2001 of R800 000 (2019 value about R2.2 Million). The plaintiff was 29 years old at the date of the collision;

[48.2]         In Cunningham v Road Accident Fund, South East Cape Local Division, Case No 2603/201, Pillay J awarded general damages in 2002 of R700 000 (2019 value about R1.7 Million). The plaintiff was 48 years old at the date of the collision. In that instance the plaintiff did not suffer a brain injury and appears to have regained a higher level of independence.

[49]          Each of the cases referred to differ slightly from the facts of the matter before me. It is an impossible task to seek to rank them in order of severity of damages suffered.

[50]          The plaintiff did not testify about this part of his claim. The experts also did not testify. This report-based approach necessarily in my view would indicate that a court must take a more cautious approach (a) not to allow experts, not even subjected to cross-examination, to usurp its functions and (b) as the person best placed to testify about the impact of the collision, did not do so.

[51]          As reflected earlier, a claim for general damages is not capable of arithmetical calculation, I must consider comparable awards as broad and general guidelines, and I must I must guard against my sympathy for the plight of the plaintiff resulting in an award that is unfair to the RAF. In this case, the plaintiff has my sympathy beyond what I can express in words.

[52]          The approximate average award in the cases mentioned herein is about R2.5 Million, with an upward trend it appears.  Having regard to the cases, the facts in this case, and the principles that I have to apply, it appears to me that a fair award in respect of general damages would be R2 800 000.00 in this case.

[53]          I cannot criticise the RAF in contesting general damages. The comparable awards differ by some margin. One would expect a proper tender from the RAF of general damages, which the plaintiff could then elect to seek to better in court. A proper tender would have safeguarded the RAF against a costs order.

Costs

[54]          I have been advised that there is no contingency fee agreement in place. The plaintiff's attorneys will have to tax or agree a reasonable fee with the plaintiff.

[55]          I have given my reasons for in part a penalising costs order. I did not do so lightly as I have hindsight. However, the RAF knew or must have known that it would not contest the plaintiff's expert evidence. It must have known that the insured driver's version was improbable. See the remarks on its duties in Road Accident Fund v Klisiewicz (192/2001) [2002] ZASCA 57 (29 May 2002) Para 42:

"I agree with the submission for the respondent that, on a broad conspectus, the trial was lengthened through the appellant's fault in the above mentioned respects from about seven days to fourteen. A special costs order is therefore not only appropriate but necessary. The appellant exists to administer, in the interests of road accident victims, the funds it collects from the public. It has the duty to effect that administration with integrity and efficiency. This entails the thorough investigation of claims and, where litigation is responsibly contestable, the adoption of reasonable and timeous steps in advancing its defence. These are not exacting requirements. They must be observed."

[56]          The plaintiff sought a detailed costs order prescribing what expenses the Taxing Master must allow, how taxation is to work. If I make such an order, I will transgress into matters that are governed by the Rules of Court and/or the discretion of the Taxing Master. This is an important matter, the Taxing Master must (and I have no doubt, will) apply his/her discretion in such a manner that the plaintiff properly recovers his costs.

[57]          I make the following order:

1.                  The defendant, by agreement, is ordered to make payment to the   plaintiff of the sum of R821 340.00 in respect of past and future loss of earnings/earning capacity;

2.                  The defendant is ordered to make payment of interest on the aforesaid amount at the rate of 10.5 percent per annum calculated from the 15^th calendar day from date of this judgment until date of payment in full;

3.                  The defendant is ordered to furnish the plaintiff with an undertaking in terms of Section 17(4)(a) of Road Accident Fund Act 56 of 1996 for payment of the future accommodation of the plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him resulting the injuries sustained by the plaintiff in the motor vehicle accident that occurred on 23 September 2015, to compensate the plaintiff in respect of the said costs after the costs have been incurred and upon proof thereof;

4.                  The defendant is ordered to deliver the aforesaid undertaking within two weeks from date of service of this order;

5.                  The defendant is ordered to   pay   to   the   plaintiff   the   sum of                  R2 800 000.00 (R2.8 Million) in respect of general damages,

6.                  The defendant is ordered to make payment of interest on the aforesaid amount at the rate of 10.5 percent per annum calculated from the 15^th calendar day from date of this judgment until date of payment in full;

7.                  The defendant is ordered pay the plaintiff’s taxed or agreed party-and-party costs until 22 November 2018 and for 7 December 2018, and is ordered pay the plaintiff’s taxed or agreed attorney-and-client costs for the period from 23 November 2018 until 6 December 2018. Included in the aforesaid costs payable by the defendant (at the scale appropriate for the dates when the services were rendered or to be rendered) are-

                                          i.    The costs of all expert reports obtained by the plaintiff furnished to the defendant and/or its attorneys, including, but not limited to the reports by-

1.    Dr E Mennen – Orthopaedic surgeon;

2.    Dr D De Klerk – Neurosurgeon;

3.    Dr PAG Botha – Urologist;

4.    Dr Annalie Pauw - Clinical Psychologist;

5.    Ms A Greeff – Occupational Therapist;

6.    Mr NJ Cohen – Mobility consultants;

7.    Ms A Stewart – Architect;

8.    JJ Prinsloo & Associates – Industrial Psychologist;

9.    Argen Actuarial Solutions – Actuary

                                        ii.    The costs of the plaintiff's aforesaid experts for preparation, qualifying themselves, their reservation fees, and any attendance at court;

                                       iii.    The costs of the plaintiff's attorneys and counsel;

                                       iv.    The costs incurred by and on behalf of the Plaintiff in, as well as the costs consequent to attending the medico-legal examinations of both parties;

                                        v.    The reasonable travelling costs of the plaintiff, who is declared a necessary witness;

                                       vi.    The reasonable costs for the interpreter Mr P Maleka (who was present at court 6 December 2018)

8.                  The defendant is ordered to pay amounts referred to above to the plaintiff’s attorneys, Spruyt Incorporated, by direct transfer into their trust account.         

 

DP de Villiers AJ

 

On behalf of the Plaintiff:              SG Maritz

Instructed by:                                 Spruyt Inc

On behalf of the Defendant:          (Name withheld)

Instructed by:                                 Moche Attorneys

 

 

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