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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

GAUTENG DIVISION, PRETORIA

 

Case number: 82697/2015

8/12/2017

 

In the matter between:

 

ADV M VAN ROOYEN NO                                                                                                       Plaintiff

(Curator ad item for JOHANNES PETRUS NEL VAN REENEN)

 

and

 

THE ROAD ACCCIDENT FUND                                                                                Defendant

JUDGMENT

BRAND AJ

[1]        The Plaintiff, Adv van Rooyen acting as curator ad litem on behalf of Mr JPN van Reenen, claims damages in the form of past loss of earnings, loss of future earning capacity, general damages for pain and suffering and past medical expenses resulting from injuries sustained in a motor vehicle accident. Liability has been settled 70% / 30% in favour of the Plaintiff and the parties have agreed on an amount for past hospital expenses. Accordingly only the quantum for past loss of earnings, loss of future earning capacity and general damages need be determined by this Court.

 

Past loss of earnings and loss of future earning capacity

[2]         In this respect the Plaintiff relied on an actuarial report and the testimony of Mrs Jelliman, a family member and the past employer of Mr· van Reenen; Ms Renee de Wit (clinical psychologist); Martinette le Roux (occupational therapist); Karen Kotze (industrial psychologist); and Jacqueline Swan (actuary).

[3]        What emerged from all of the testimony is that the consequences of Mr van Reenen's brain injury are so severe that he is completely unemployable post­ accident - indeed, this was not disputed by the Defendant. All that remained in issue were the amounts-to be awarded for past loss of earnings and loss of future capacity, given his complete post-accident unemployability.

[4]        On this the testimony of Mrs Jelliman, who impressed this court as an excellent witness, stands uncontested, despite various spirited attempts under cross examination by Ms Netshiozwi for the Defendant to impugn aspects of it.

[5]        In short Ms Jelliman testified that Mr van Reenen pre-accident was employed as a junior farm manager on one of her and her husband's farms from November 2011. He came to the farm with over six years of farming experience, obtained during two stints working on farms in the United States. He had also completed a plumbing course.

[6]        Mrs Jelliman, to whom Mr van Reenen reported, testified that Mr van Reenen was an excellent employee in all respects, with advanced technical skills, the ability to take responsibility and initiative, without being arrogant, that is, while being able to take orders and work under guidance and supervision. The latter in particular was for her an important skill, distinguishing him from others.

[7]        She predicted that Mr van Reenen , given his skills and aptitude for the job, would have been promoted into her own position from approximately June 2016.

[8]        On his appointment in 2011 Mr van Reenen earned a basic salary of R8000.00 per month and free accommodation, vehicle use and daily meals. This remuneration would have increased over time. She testified that a Mr Spruew, who was post-accident (in 2013) appointed in Mr van Reenen's stead, earns R12 000.00 in basic salary with a total +-R142 000.00 in benefits (housing, vehicle use, food, annual bonus) to be added to that. Given his level of performance, with which Mr Spruew's does not compare favourably, she anticipated that Mr van Reenen but for the accident would have earned at that time at least at the same level, but probably more than Mr Spruew does.

[9]        Mr Botha SC for the Plaintiff proposed that contingencies of 5% and 15% respectively should be applied to past loss of earnings and loss of future earning capacity. He pointed to the very conservative level at which past earnings and anticipated future earnings were calculated and the uncontested evidence of Mrs Jelliman that Mr van Reenen's work performance far outstripped Mr Spruew's and that he would have been promoted to senior farm manager by 2016.

[10]     These contingencies (the 'normal' ones to apply) were not seriously challenged by Ms Netshiozwi and I see no reason to depart from them. On this basis I accept as appropriate the amount of R924 700.00 for past loss and R6 880 300.00 for loss of future earning capacity.

 

General damages

[11]       The evidence in the various expert reports (which the parties had agreed are to be regarded as evidence for purposes of quantification of general damages) stands uncontested.

[12]       Taken together and by way of summary, this entails the following:

[12.1]  Mr van Reenen suffered a severe head injury that resulted in severe brain damage with permanent physical, cognitive, neuropsychological and psychological consequences. In short, post-accident he is severely and permanently impaired.

[12.2]  Post-accident he was hospitalised for a prolonged period and underwent a rang of invasive medical procedures. The accident occurred on 4 May 2013 and he was eventually discharged from the reahbilitation centre on 2 August 2013.

[12.3]  He is severely physically disabled: he suffers from persistent hemiparesis (weakness on one side of the body); he has problems with incontinence and with feeding; he is essentially wheelchair bound (although he is able to walk, it is only for short distances and his right side must be supported); he experiences spasticity in all four limbs, to the extent that his left hand is useless; and his hand coordination and dexterity in his right hand remains poor. His physical condition is such that he requires constant assistance from a carer to help him walk and in other respects.

[12.4]  He has suffered severe and disabling cognitive and behavioural changes and impairments: poor attention, working memory, processing speed, verbal and visual memory, visual organisation executive functioning. His speech and language have also been badly affected (slowness, poor articulation, distortions, reduced clarity and unintelligibility of speech, poor word retrieval and listening attention).

 

[13]      Mr Botha helpfully referred me to a number of similar cases and the awards determine there as a guide for assessing the suitable award in this case.

[14]      These include:

[14.1]  Bonesse v Road Accident Fund (Eastern Cape High Court, Port Elizabeth: case number 1505/2009, 20 February 2014) CPDO (Vol VII) A 3-1, a case slightly more serious than this, in which an inflation adjusted award of R3 000 000.00 was made;

[14.2]  Megalane NO v Road Accident Fund 2006 (5A4) QOD 10 (W), a case of comparable severity, but where life expectancy was limited to 49 years, unlike here where there is no cap on life-expectancy, so that the Mr van Reenen's pain and suffering is extended by comparison. Here an inflation adjusted award of R1 946 000.00 was made;

[14.3]  Webb v Road Accident Fund (Gauteng Division, Pretoria: case number 2203/2014, 14 January 2016) QOD (Vol VII) A3-24, a case of paraplegia without any brain damage, in which the victim was still employable (an updated amount of R1 600 000.00 was awarded); and

[14.4]  Bhekisisa Simon Dlamini (Gauteng Division, Pretoria, case number 59188/2013, 3 September 2015) (a brain injury only, without hemi- or paraplegia) where an amount (updated) of R1 500 000.00 was awarded.

 

[15]      Taking account of these comparable cases and the higher or lesser degrees of severity in them, I am satisfied that the amount of R2 200 000.00 for general damages proposed by Mr Botha is appropriate, in particular because it was not contested by Ms Netshiozwi.

[16]       I have concluded that the Plaintiff should be awarded the following amounts:

For loss of earnings                                                                                       R924 700.00

For loss of future earnings capacity                                                              R6 880 300.00

For general damages                                                                                     R2 200 000.00

 

To this must be added the agreed amount for

past medical expenses                                                                                  R989 959.18

The resultant total of R10 994 959.18 must be adjusted according to the 70% / 30% attribution of fault.

This renders a total award of R7 696 471.43.

[17]      These amounts have been entered into the appropriate spaces in the draft order that was provided to this court, which draft order, including its terms relating to costs, is attached to this judgment marked "A" and is made an order of this court.

 

 

JFD Brand

Acting Judge of the High Court

 

Appearances:

For the Plaintiff:                      Mr JJ Botha SC

Instructed by Adendorff Inc

For the Defendants:             Ms TE Netshiozwi

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

AT PRETORIA ON FRIDAY 13 OCTOBER 2017 IN COURT 8D

BEFORE THE HONOURABLE ACTING JUSTICE BRAND

 

In the matter between:                                                                                       Case no: 82697 / 2015

 

ADV MARYKE VAN ROOYEN N.O obo JPN VAN REENEN                        Plaintiff

 

and

 

THE ROAD ACCIDENT FUND                                                                           Defendant

 

DRAFT ORDER

 

AFTER HAVING HEARD COUNSEL FOR BOTH PARTIES, AND AFTER DUE CONSIDERATION, THE FOLLOWING ORDER IS MADE:

 

THE MERITS

The Defendant to pay 70% (Seventy percent) of the Plaintiffs proven damages.

THE CAPITAL

 

1.          The Defendant is ordered to pay to the Plaintiff the amount of R 7 696 471.43 (Seven Million Sic Hundred and Ninety Six Thousand Four Hundred and Seventy One Rand and Forty Three Cents) ("the capital") by way of a lump sum payment on or before 28 November 2017, by way of electronic transfer to the trust account, details of which. are set out hereunder ("the capital payment").

1.1      The capital is made up as follows:

1.1.1    Past Loss of earnings / earning capacity – R 647 290.00)

1.1.2    Future Loss of earnings / earning capacity – R 4 816 210.00)

1.1.3    General Damages – R 1 540 000.00)

1.1.4    Past Medical and Hospital Expenses - R 692 971.43)

 

COSTS

2.         The Defendant shall pay the Plaintiff's taxed or agreed High Court Scale party and party costs, including for the sake of clarity, but not limited, to the costs of the Plaintiff's instructing attorneys, Adendorff Incorporated in Cape Town, the correspondent attorneys in Pretoria, Savage Jooste and Adams Inc, as well as the other costs set out hereunder.

3.          The Plaintiff shall, in the event that the costs are not agreed, serve the Notice of Taxation on the Defendant or Defendant's attorney of record.

4.          Plaintiff shall allow the Defendant 60 (sixty) calendar days to make payment of the taxed or agreed costs.

 

GENERAL COSTS

5.         Any taxed or agreed costs incurred after the date of this order in obtaining payment of any of the amounts referred to herein.

6.         The Defendant will not be liable for interest on the outstanding amount.

 

EXPERT WITNESSES

7.          Regarding the expert witnesses listed hereinbelow ("the experts"), the taxed or agreed qualifying expenses, the actual attendance, travelling, waiting time and reservation fees of the experts listed herein below, if any, the actual costs attached to the procurement of the medico legal and other reports, inclusive of those referred to, as well as joint expert minutes of the experts, including x-rays, MRI scans, Pathology reports, interpreter's services and addendum reports and all consultations with counsel, Plaintiff attorneys, as well as time spent traveling and conducting home and work visits.

7.1     The experts are:

7.1.1        Dr J Reid (Neurologist) (RAF4 and expert report);

7.1.2        Dr Keir le Fevre (Psychiatrist) (RAF4 and expert report);

7.1.3        Dr E Baalbergen (Rehabilitation Practitioner) (RAF4 and expert report);

7.1.4        Dr Dale Ogilvy (Speech and Language Pathologist);

7.1.5        Ms Martinette le Roux (Occupational Therapist);

7.1.6        Ms Renee de Wit (Neuropsychologist);

7.1.7        Ms Karen Kotze of Messrs KDBIP (Industrial Psychologist);

7.1.8        Mr Edward Theron of Messrs Munro Consulting (Actuaries);

7.1.9        Ms Jacqualine Swan of Messrs Munro Consulting (Actuaries);

7.1.10      Ms Petra Coetsee (Architect);

 

TRAVELLING, ACCOMMODATION AND RELATED COSTS

8.          The Defendant shall be liable to pay for the reasonable costs of the Plaintiffs legal representatives, the actual travelling, waiting time, and accommodation and related costs incurred by Plaintiffs legal representatives and counsel in respect of settlement discussions with Defendant or Defendant's attorneys, and in respect of consultations with experts for trial preparation, costs for preparing for Pre-Trial Conferences and formulation of Pre-Trial Conferences, Pre-Trial Agendas, Rule 37(4) & 37(6), further particulars, if any, and Rule 35(9) & Rule 36(10) notices, trial preparation, the preparation of 6 trial bundles as in terms of the Practice directives and cost of this draft Order.

8.1    The Defendant shall be liable to pay the actual travelling, waiting time, and accommodation and related costs incurred as follows:

i.          In respect of the Plaintiff/ JPN Van Reenen attending medico legal examinations with expert witnesses in Cape Town & Gauteng.

ii.         In respect of Mr JJ van Reenen and the Plaintiff / ·JPN van Reenen, attending medico legal examinations with expert witnesses in Cape Town & Gauteng.

iii.        In respect of the Plaintiffs attorney, Ms Martinette Le Roux and Ms Karen Kotze conducting home visits and consultations and inspections in loco at the Plaintiffs residence in Harrismith. 3 Hours.

iv.        In respect of the Plaintiffs attorney, Ms Martinette Le Roux and Ms Karen Kotze conducting work visits and consultations with the Plaintiff's previous employers, in Harrismith. 3 Hours.

v.          In respect of Mr JJ van Reenen, Mrs M van Reenen and the Patient / JPN van Reenen travelling to attend consultations with the Curator ad Litem and Curator Banis.

vi.         In respect of Plaintiffs legal representatives conducting the Trial on Thursday 12 October 2017 from 09:00 - 16:00 and on Friday 13 October 2017 from 09:00 - 14:00.

vii.       In respect of Ms Renee de Wit, Neuropsychologist, attending the trial on Thursday 12 October 2017 to testify from 09:00 - 16:00 at R 2000.00 per hour per day.

viii.      In respect of Ms Martinette Le Roux, Occupational Therapist, attending the trial on Thursday 12 October 2017 to testify from 09:00 - 16:00 at R 1200.00 per hour per day.

ix.        In respect of Ms Karen Kotze, Industrial Psychologist, attending the trial on Thursday 12 October 2017 to testify from 09:00 - 16:00 at R 1500.00 per hour per day.

x.          In respect of Mr Edward Theron (Actuary), attending the trial on Thursday 12 October 2017 from 09:00 - 16:00, and Ms Jacqualine Swan (Actuary), attending the trial on Friday 13 October 2017 to testify from 09:00 -14:00 at R 3160.00 ex VAT, per hour per day.

 

COUNSEL'S FEES

9.         The fees of the Plaintiff's senior counsel, inclusive of day fee, preparation, consultations with expert witnesses and drafting of submissions.

 

COSTS OF THE CURATOR AD LITEM

10.       The Defendant shall pay the costs of the application to appoint the Curator ad Litem on the High Court scale, as between party and party, including the costs of the medical reports filed as part of the said application, as taxed or agreed, plus VAT.

11.       The Defendant shall pay the costs of the Curator ad Litem on the High Court scale, as between party and party, as taxed or agreed, plus VAT.

 

COSTS OF A CURATOR BONIS

12.       In the event of the Western Cape High Court in Cape Town, or another competent Court having jurisdiction, appointing a Curator Banis to the Patient / JPN Van Reenen, the Defendant shall pay the costs of the Curator Banis, as taxed or agreed, such costs including for the sake of clarity, but not limited to:

a.       the costs of the application to appoint the Curator Banis on the High Court scale as between party and party, as taxed or agreed, plus VAT ("the application costs");

b.        the fees of the Curator Banis calculated at 7,5% of the capital sum, payable upon appointment of the Curator Banis by way of a once off lumpsum.

 

13.         The fees of the Curator Bonis shall be paid from the Undertaking.

 

PAYMENT PROVISIONS

14.       Payment of the capital amount as reflected above shall be effected on or before 28 November 2017 ("the capital due date") by way of electronic transfer into the Plaintiffs attorneys trust banking account, details of which are listed herein below.

15.        Payment of the taxed or agreed costs reflected above shall be effected within 60 (sixty) calendar days of agreement or taxation ("the costs due date") and shall likewise be effected by way of electronic transfer into the Plaintiffs attorneys trust banking account, details of which are listed herein below.

16.        Upon receipt of the capital amount in Plaintiffs attorneys trust banking account, same will be invested in an interest-bearing trust account pending the appointment of the Curator Bonis.

 

CONTINGENCY FEE AGREEMENT

17.       It is recorded that the Plaintiff entered into a contingency fee agreement and that same complies with the Act.

 

TRUST BANKING DETAILS

18.        The Plaintiffs attorneys' trust banking account details are as follows:

Bank                          :           FIRST NATIONAL BANK

Account Name          :           ADENDORFF INC.

Branch Name            :           ADDERLEY STREET

Branch Code             :           201-409

Account number       :           [….]

 

BY ORDER OF THE COURT

 

 

COURT REGISTRAR

 

Box 71: Savage Jooste & Adams

Ref no: M Haasbroek / gk / MHA493

Plaintiff's counsel: Adv JJ Botha (082 466 8818)

Defendant's counsel:

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