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IN THE KWAZULU-NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH AFRICA

	Case No. 7400/2006
In the matter between
A’DAAN DE VILLIERS FRANSCIOUS DE VILLIERS	FIRST PLAINTIFF SECOND PLAINTIFF
and
THE ROAD ACCIDENT FUND	DEFENDANT

JUDGMENT

Delivered on: 01 October 2010

SISHI J

INTRODUCTION

[1] This is an action for damages arising out of injuries sustained by the second plaintiff in a collision on 25 December 2004 at Bergville, KwaZulu – Natal. On the day in question a collision occurred between two motor vehicles with registration details ND 40399 and CMW 987GP. At the time of the collision, the second plaintiff Francois De Villiers was a front seat passenger in motor vehicle ND 40399 driven by his mother, V M De Villiers.

[2] As a result of the collision, it is alleged that the plaintiff suffered the following damages:

First Plaintiff

Past Private Hospital Expenses R 7 712,24

Past Medical Expenses R 1 895,38

Second Plaintiff

Estimated future medical expenses R 35 025,00

Estimated future loss of earnings R5 425 037,00

General damages for pain and suffering,

Loss of amenities disability and disfigurement R 500 000,00

TOTAL R5 969 669,62

[3] At the commencement of the hearing of the 3 June 2009, the defendant conceded liability to compensate the plaintiff’s pursuant to the provisions of Act 56 of 1996 for all damages flowing from the injuries sustained by the second plaintiff as a result of the collision which occurred on 25 December 2004.

[4] The defendant conceded the quantum of the first plaintiff’s claim for past hospital and medical expenses incurred in relation to the second plaintiff in the sum of R9 607,62. The defendant also undertook to provide an undertaking in terms of Section 17(4) (a) of Act 56 of 1996 to meet all future medical and related expenses of the second plaintiff resulting from the injuries sustained in the motor collision.

[5] On the last day of the hearing, on 19 March 2010, the defendant also conceded the general damages in the amount R500 000,00.

[6] Consequently, the only issue to be determined by this Court are damages arising out of the loss of future earning capacity.

[7] The plaintiff called the following witnesses:

1. Dr Du Trevou, a Neurosurgeon;

2. Dr Phillips, an Eye Specialist;

3. Ms Hardy, a Neuropsychologist;

4. Dr Mc Cann, an Industrial Psychologist

5. Vanessa De Villiers, the second plaintiff’s mother.

[8] The plaintiff also called various educators involved with the second plaintiff’s schooling, namely;

1. Mrs Labuschagne, who had taught Francious at Bergville Primary School;

2. Mrs Linstrom, who had taught Francious at Bergcille Primary School;

3. Mrs Liversage, who had taught Fracious at Ladysmith High School in 2004;

4. Mr Liversage, the then principal of Ladysmith High School; and

5. Mr Nagel, who had taught Fracious at Ferrum High School in Newcastle during his failed attempt at Grade 10 from July to December 2006.

[9] In addition, the expert opinion of medical expert, specialist radiologist, Dr Mercouris with regard to MRI and CT scan of Francious’s brain dated 19 August 2005 and of a medical doctor who attended to Francious shortly after the collision, Dr C.A. Beukes, were admitted into evidence.

[10] The defendant only called one witness, an Industrial Psychologist, Mrs Couperthwaite.

[11] The evidence before Court is largely unchallenged and provides a clear picture of Francious’s life and abilities before and after sustaining his injuries.

[12] Francious sustained a deep laceration to his left eyebrow with muscle damage around the eye and various lacerations to his left leg and both arms.

[13] The most severe injury sustained by Francious was a head unjury. He sustained a severe brain injury. The evidence of the Neurosurgeon Dr Du Trevou, coupled with that of the MRI scan performed by Dr Mercouris demonstrates physical damage to Francious’s brain consistent with diffuse axonal injury. The MRI scan revealed multiple hypo-intense foci predominantly at the grey/white matter interfaces, more profuse in the left anterior parietal lobe and the right frontal lobe superiorly. In addition, an area of cystic encephalomalacia (which Dr Du Trevou explained is an area of wasting of the brain as a result of physical injury) in the periventricular white matter was shown. Dr Du Trevou confirmed that the symptoms exhibited by Francious after the collision and the conclusions of, inter alia, the Neuropsychologist Ms Hardy, were entirely consistent with the symptoms to be expected from the demonstrated physical damage to his brain. The head injury has had the further consequence that Francious experiences double vision in the form of overlapping images. Dr Phillips testified that this condition appeared to be a consequence of brain rather than ocular damage. It is permanent and not amenable to correction by means of corrective lenses.

[14] The defendant has not placed the injuries sustained in dispute but has challenged the alleged sequelae. The consequences for Francious have been dramatic and are not in dispute.

[15] Whilst his residual intelligence on testing after the sustaining of the brain injury remains in the average to above-average range (as testified to by Ms Hardy and Dr McCann), he displays all the classical symptoms of both a diffuse brain injury and injury to the frontal lobe. His ability to concentrate and process information is severely compromised; his “execution function” which ordinarily would allow him to plan and organise his life, to reason and essentially to make use of that residual intelligence are compromised. In addition, he has undergone severe personality changes. All of the witnesses who testified on this issue (including the Defendant’s Industrial Psychologist, Mrs Couperthwaite) agreed that he is likely to behave irrationally and to generally lack tact in his interaction with others, including employers.

[16] The evidence of the various witnesses who testified with regard to their knowledge and experience of Francious prior to the collision is all to the same effect. This evidence can be summarised as follows:

1. Francious was regarded as a very bright young boy blessed also with the rare quality of innate leadership abilities. He was well-liked by his teachers, adults and his peers alike.

2. According to Mrs Labuschagne and Mrs Linstrom, who taught him at Bergville Primary School, he had always stood out as being above-average.

3. He achieved outstandingly in academics, being “first in the standard” in both Grades 6 and 7. He was very involved in activities at the school. In his final year, he was elected head boy and performed well as such. He was also the school swimming team’s captain and took part in other activities such as producing the school magazine.

4. This evidence is borne out by the documents, including his school reports and certificates received.

5. In his final year at Bergville Primary School, he achieved an average of 68% in respect of the primary subjects and an average of 72.6% in respect of additional subjects (computer studies, art and culture, economic business studies, life orientation and science and technology).

6. These marks are compared to the grade average of 54% in respect of the primary subjects and 63.6% in respect of the additional subjects. The evidence that he was the highest academic achiever in his year is further borne out by the evidence by way of a certificate that he was awarded the “Academic Leader in Grade 7” prize at the end of 2003.

[17] The teachers at Bergville Primary School testified that the standards set at the school were extremely high. The setting of a high standard obviously has the effect of depressing the scores achieved by pupils. Hence the apparent marks achieved by the pupils overall may be lower that those allocated at some other schools. It is consequently the difference between Francious’s marks and those of the average which point to his academic superiority.

[18] This is borne out by evidence of Francious’s results obtained in an academic Olympiad during his Grade 7 year. He achieved at platinum level (90 – 100%) in three subjects, gold (80 – 89%) in a further three subjects and bronze (60 – 69%) in another.

[19] Mrs De Villiers testified that Francious’s academic achievement appeared to come naturally to him in that he did not appear to have to spend a great deal of time studying. Francious himself testified that, during his school years prior to the accident, he had found that it was sufficient for him to concentrate carefully during class and that he only devoted time to study in advance of mid-year and final year exams.

[20] In 2004, Francious commenced high school at the Ladysmith High School, where he was a weekly boarder. He was placed in Class 8A2. There was some debate as to whether his placement in this class rather than the A1 class placed doubt on the question of his academic achievement as dealt with above. A co-pupil, one John Weweger, was place in the A1 class. Francious indicated that it was his understanding that this apparent anomaly was due to placement in class at Ladysmith High School; being made mindful of sibling unhappiness. John Weweger’s sibling had been in the 8A1 class whereas Francious’s older sister had been in the 8A2 class. The direct evidence is clear: Francious was top performing academic student at his primary school.

[21] In his first year at high school (his last year of schooling before the accident) Francious obtained an average of 68% taking all subjects into account. This was effectively the same as the class average in Grade 8A2. Mr Liversage (the headmaster of Ladysmith High School at the time) pointed out that the particular grade obtained a general higher achievement than usual, 42 of the children achieving A aggregates in matric.

[22] Francious’s innate leadership was demonstrated again at Ladysmith High School. Within weeks of his arriving there, he was elected by the class as the male class representative for the year. This despite the fact that most of the other children came from feeder schools where they knew each other and Francious was largely an outsider, knowing only one pupil prior to commencing his schooling there.

[23] It was ultimately agreed by all witnesses (including Mrs Couperthwaite) that the most accurate picture of Francious’s character and abilities was his performance in his Grade 7 year. There is no reason not toig

Accept that Francious was an extraordinary young boy. He was unusually bright and blessed with many talents. The consequences for Francious’s brain injury are graphically illustrated in his life after the accident. His average mark over eight subjects in the first term of 2005 was 44.6%. He reportedly had extreme difficulty concentrating and was continually falling asleep. Francious was ostracized and mocked by the children who had previously been his friends and looked up to him, being referred to as “half-brain” and other derogatory terms.

[24] A move to Richards Bay High School did not assist matters. He managed to pass Grade 9 (with an average of 46.8%). Francious was unable to pass Grade 10. He spent the first two terms at Richards Bay High School and endeavoured to complete Grade 10 at the Ferrum High School in Newcastle but failed to gain promotion to Grade 11.

[25] Thereafter, in 2007, Francious was enrolled at the Majuba FETC where he studied electrical infrastructure construction (light current). After making some initial progress, he failed. Subsequent thereto, Francious moved from one job to another, being unemployed for periods in between.

[26] The problems were manifold. Francious’s limited level of education restricts his employment opportunities. His deficits limit his usefulness to an employer and his irrational decision-making leads him to simply resign from one position without securing another. Over the past two years, he has been employed or “worked” for family members roughly half the time.

[27] Francious’s employment at Markon Projects for a few months in early 2009 and subsequently in 2010, can only be characterised as “sympathetic employment”.

[28] Mr Ronald Shamrel testified that he had secured employment for Francious. Francious was initially romantically involved with the step-daughter of his brother Mr Tinus Shamrel. He was unemployed and living with the family in Springs, Gauteng. Ronald Shamrel required the services of a Code 10 driver to drive a truck carrying sand and bricks to various building sites.

[29] Ronald Shamrel testified that things did not go well. Francious caused damage to the truck on a number of occasions, colliding with pillars in circumstances where there was no real explanation for the collisions. He had also damaged tyres driving over kerbs and had been issued with a final warning shortly before resigning to move to the Eastern Cape. His move to the Eastern Cape was for the purpose of following Ronald Shamrel’s sister whom he had met and with whom he had formed a relationship. He left without warning, leaving Mr Shamrel no opportunity to find a replacement.

[30] Francious moved in with Mr Shamrel when the latter’s parents, together with his sister and Francious, moved to Springs to live on Mr Shamrel’s property.

[31] Mr Shamrel procured employment for him again, this time as a general worker at a reduced salary. He testified that he was doing so simply in order to assist his father who was otherwise supporting Francious. The difficulties continued, Francious would forget instructions and, when he did not act in his own initiative, would make foolish decisions.

[32] One of the difficulties faced by Ronald Shamrel is that Francious’s co-workers felt that he was being unfairly advantaged. His mistakes did not result in disciplinary proceedings whereas theirs did. Ronald Shamrel testified that he could not continue to employ Francious, even on the basis of sympathy and could not honestly recommend him for any employment.

[33] All of the psychologists who testified concur that Francious’s brain injury will preclude him from advancing or even staying in any particular employment for any length of time. His employment history to date graphically bears this out. Francious creates a good initial impression as a pleasant and personable young man. It may be enough to gain him employment, but his deficits will soon reveal themselves. In any event, he will likely make irrational decisions, leaving employment even if not dismissed. Within a few years, his chequered work history will make it practically impossible for him to secure employment. For the past two years, he has been employed roughly half the time earning a minimal wage generally between R1 000,00 and R2 000,00 per month when employed.

[34] Dr McCann expressed the view that Francious would certainly be unemployed for more than 50% of the time during the remainder of his working life. Miss Couperthwaite agreed that an assessment of unemployment for 75% of the time would be more realistic and further that the plaintiff would probably progressively find it harder to obtain employment, ceasing to be employable by the time he reached the age of thirty.

[35] It was submitted on behalf of the plaintiff that given evidence of Mr Ronald Shamrel, it is difficult to avoid the conclusion that even a 75% unemployment period is optimistic. Opportunities for sympathetic employment, assuming they still exist, will ultimately disappear.

[36] Dr McCann expressed the revised view that a level of income (when employed) would be based on the lowest available Peromnes level, namely level 19 and at the lowest published percentile, namely the 25^th percentile. In February 2009, that translates to an income of R3 250.00 per month, an amount which exceeds Francious’s income both at that time and at present (with overtime he earns approximately R2 400.00 per month).

[37] It was submitted on behalf of the plaintiff that there simply is not in fact a Peromnes level which is capable of being applied to the current income earning capacity of Francious.

[38] It was further submitted on behalf of plaintiff that Francious’s income in his injured state should be based upon his current income, R2 200.00 per month, adjusted for inflation for a period of ten years and applying a 75 contingency deduction for unemployment during that period (i.e. reducing from the current 50% to nil over that period).

[39] The real issue that crystalised in the cross examination of Mrs Couperthwaite is that what she indicated was that she accepted that the difference between the modern calculation of the prospective income that is, the loss of income earning potential produced by Dr McCann and her model – does not predict on a balance of probabilities that Francious would have gone to an academic University on the one hand which results in Dr McCann’s model, or only to a technikon, with the result that one can use Mrs Couperthwaite’s model. This resolves itself into a very limited issue, namely, whether Francious would, having completed his schooling, engage in tertiary education at either a technical college (or university of technology) or an academic university.

[40] The defendant submitted that under re-examination Mrs Couperthwaite explained that the Peromnes Grade 7 is not reserved for technikon graduates, but includes amongst its subjects university graduates as well. In other words, the defendant does not negate the possibility of a University education. The defendant’s case is simply that, the plaintiff would not have achieved the higher level at the Peromness Grade. Dr McCann under cross examination explained that Peromness Grade 6 includes such high ranking positions as project managers, company secretaries and plant engineers. There are executive positions at the higher middle management level. Mrs Couperthwaite, however, maintained that the plaintiff was more likely to obtain Peromness Grade 7 which is middle management as opposed to the higher management scenario. The defendant contends that this is a more likely scenario as opposed to the best case scenario.

[41] Dr McCann concluded that the more reasonable assumption is that Francious would have attended a university. On that basis, he produced a model upon which Francious’s career progression and income could be assessed. In doing so, he relies on Peromnes grading.

[42] Mrs Couperthwaite did not disagree with Dr McCann’s views as to Francious’ likely advancement in earnings assuming a university education. She, however, also using Peromnes grade for the purposes of projected advancement and income contend that the calculation of Francious’s income earning potential in his uninjured state should be based upon his obtaining a technikon qualification.

[43] It was submitted, correctly in my view, on behalf of the plaintiff that the objective evidence clearly indicate that Francious would probably had proceeded to study at the university and obtain a university degree. The evidence dealt with earlier on establishes that Francious level of intelligence prior to the collision was well above average. This is despite the submission made on behalf of the defendant that Francious was an average student. Francious clearly had innate inter-personal skills and abilities and rare quality of leadership.

[44] Francious’s mother and adoptive father, whilst not having tertiary education themselves had set their minds on ensuring that Francious had those opportunities and in particular are determined that he should have the opportunity of going to the university.

[45] Mrs De Villiers further testified, to that end, that she had already managed to set aside a sum of R80 000.00 to cater for the tertiary education of her children and, in particular, Francious.

[46] Francious, himself, even at an early stage, was used to success and achievement and had himself determined that he would ultimately study at a university and make a significant success of his life.

[47] All indications are therefore that Francious had the attributes and abilities which would enable him both to complete a university education and to achieve in his chosen field.

[48] Mrs Couperthwaite’s written report, prepared in May 2009, reflected the conclusion that Francious would more likely have studied at a technikon. It is apparent, from her report and her evidence, that her report was based upon limited information. The only “objectively verifiable” information she had with regard to Francious’s academic performance prior to the accident was his results in Grade 8 in 2004. From that she concluded that there was no evidence to suggest any level of intellectual superiority. He was a “C” student and, assuming that he could maintain that level of achievement, he would be capable of acquiring a qualification at a technical institution. She further based her conclusion on the historical levels of education of Francious’s parents and the assumptions that, since neither of them had been educated at university, the social influences on Francious would be directed elsewhere. In the course of her testimony and confronted with the clear evidence of Francious’s achievements in particular during 2003, she conceded that his level of intelligence prior to the accident was within the above-average to superior range, and that he had demonstrated other qualities, including the rare quality of leadership. The net result was that the various assumptions upon which Mrs Couperthwaite had based her original reported conclusion were acknowledged by her to have been proved inaccurate, despite that she endeavoured to cling to her initial conclusion.

[48] Having regard to the evidence of both Mrs Couperthwaite and Dr McCann, I am satisfied that there is no basis upon which to challenge the evidence of Dr McCann with regard to Francious’s likely advancement and earnings as set out in Dr McCann’s final report.

[49] The other issue where Mrs Couperthwaite differed with Dr McCann relates to the assumption that on obtaining his highest level of promotion (at Peromness Grades 6) at the 50^th percentile level of income, Francious’s income would increase over the next three year period to 90^th percentile, whereafter it would increase only with reference to inflation. Mrs Couperthwaite’s model involved utilising the 50^th percentile throughout. It was submitted that it must be borne in mind that:

1. Mrs Couperthwaite’s model had initially been prepared on the basis that Francious would be regarded as an average or (a “C”) student. He is acknowledged to have been of above average intelligence. Also, no account was taken of his rare social and leadership qualities, all of which would suggest an increased capacity for advancement beyond that flowing purely from an assessment of his intellectual capacity; and

2. Mrs Couperthwaite herself testified that, at Peromnes level 6, annual increases are not restricted purely to increases covering inflation, but historically and predictably in the future will exceed the rate of inflation.

[50] In the circumstances, there is no reason whatsoever not to accept Dr McCann’s predictions. The remaining issue with regards to the claim for loss of income earning potential relates to the level at which general contingency should be applied. In this regard, it must be borne in mind that each case must be considered on its own merits and contingencies are both positive and negative, the result must be a balanced assessment.

[51] Counsel for the second plaintiff referred to the case of Bresatz v Przibilla [1962] HCA 54; (1962) 36 ALJR 212 (HCA) at 213 (cited with approval in, inter alia, Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 117 B-D) where the following was said:

“ It is a mistake to suppose that it necessarily involves a ‘scaling down’. What it involves depends, not on considering what the future might have held for the particular concerned. He might have fallen sick from time to time, been away from work and unpaid. He might have become unemployed and unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these ‘contingencies’ or ‘vicissitudes of life’ as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction … Moreover, the generalisation, that there must be a ‘scaling down’ for contingencies seems mistaken. All ‘contingencies’ are not adverse, all ‘vicissitudes’ are not harmful. A particular plaintiff might have had prospects of chances of advancement and increasingly remunerative employment. Why count the possible buffets, and ignore the rewards of fortune. Each case depends on its own facts.”

[52] In the case of Francious, there is ample room for the approach that considerably greater allowance must be made for possible positive contingencies than in the ‘average’ case. See for example RAF v Reynolds Corbett & Buchanan Vol.5 Page D3-1.

[53] It was submitted, correctly in my view, on behalf of the plaintiff that there are a number of positive factors applying in this case which, predictably, would have that result that Francious would exceed the normal expectations as to advancement and income of a university graduate. His social skills and, in particular, his rare innate leadership ability would made his personal advancement likely to exceed that of his peers as fellow university graduates.

[54] It was submitted on behalf of the plaintiffs that in the circumstances of this case that contingency deduction with regard to future loss of earnings should be set at 10% or a maximum of 15%.

[55] In recent judgment of the Supreme Court of Appeal in Bane v D’Ambrosi (279.08) [2009] ZASCA 98 (SCA) the court described a contingency of 20% (in circumstances where scope for a larger negative contingency would clearly be far greater than in this case), as “robust”.

[56] It was submitted that with regard to Francious’s future income in his injured state, that income should be assessed on the basis of an income of R2 200,00 per month over a maximum period of 10 years, adjusted annually for inflation only and subject to a 75% contingency allowance for unemployment. His performance currently reflects a rate of unemployment of approximately 50% and it can only get worse. By the time he is thirty it ought to stop altogether.

[57] It was further submitted on behalf of the defendant that the plaintiff as a child at the time of the collision, that contingencies at 25% be applied to the pre-collision earnings and contingencies between 15% to 50% to the post-collision earnings. The Court was referred to the case of Nhlumayo v General Insurance Company Limited 1986(3) SA 859D and Bane’s case, supra.

[58] After considering all the circumstances of this case, I am of the view that it was appropriate to apply a 12% contingency on the plaintiff’s uninjured state and 60% contingency on the plaintiff’s injured state.

[59] The initial actuarial report, dated 19 February 2010 filed on behalf of the plaintiff, did not take into consideration any contingencies. The actuaries Wells Faber-Human Morris were given further directions to recalculate the second’s plaintiff’s future loss of income with certain directions dealing with the contingencies and the factual assumptions set out below:

SECOND PLAINTIFF’S CAREER PROGRESSION AND REMUNERATION IN UNINJURED STATE

[60] The factual assumptions for the purposes of calculating the second plaintiff’s future earning capacity had he not sustained the injuries are as follows:

1. The second plaintiff would have completed his schooling and would immediately thereafter have completed a university education of 3 to 4 years duration.

2. Upon completion (age 21 to 22) he would have secured employment and, taking into account his lack of work experience, would have secured employment for one year at a rate of pay of R7 000,00 per month.

3. Thereafter (age 24), he would have secured employment at the 25^th percentile, at Permones Grade 11.

4. After 3 years (age 27) his salary would have increased to the 50% percentile, at Peromnes Grade 11.

5. Thereafter, at 5 – year intervals for a 15 – year period (age 28 to 43), his salary would have increased to the 50^th percentile at Peromnes Grade 8.

6. Thereafter, over a 10 – year period (age 44 to 54), his salary would have increased to the 50^th percentile at Peromnes Grade 6.

7. Thereafter, over a 3 – year period (age 55 to 58), his salary would have increased to the 90^th percentile at Peromnes Grade 6.

8. Thereafter, he would have received inflationary increases to retirement at age 65.

9. A general contingency deduction of 12% is to be applied to the resultant amount.

SECOND PLAINTIFF’S INCOME IN INJURED STATE

[61] Past earnings to 31 March 2010 amount to R31 000,00 (as conceded by the Plaintiff)

[62] The factual assumptions for the purposes of calculating the second plaintiff’s future earning capacity in his injured state are as follows:

1. The calculation is to be based on earnings of R2 200,00 per month.

2. The aforementioned earnings are to be calculated for 10 years (from 1 April 2010 to 31 March 2020) adjusted for inflation only.

3. Thereafter, the second plaintiff is to be considered to be unemployable.

4. A contingency deduction of 60% is to be applied to the resultant amount.

[63] The actuaries Wells Faber - Human & Morris recalculated the second plaintiff’s future loss of income and forwarded the report date 11 August 2010 which is the basis of the award of compensation for the second plaintiff in this regard. The actuaries calculated damages for loss of income/earning capacity in the sum of R5 315 242,00. This amount was calculated in terms of the assumptions and contingencies set out in the Court directives referred to above.

[64] Taking into consideration the circumstances of this case, the amount calculated by the actuaries is in this regard, is fair and reasonable.

[65] There is no reason why the costs should not follow the result.

[66] In the result, the following order is made:

Judgment is granted in favour of the plaintiff as follows:

1. In favour of the first plaintiff:

1. Payment of the sum of R9 607, 62;

2. Interest thereon at the prescribed rate of 15,5% per annum calculated from the date 14 calendar days following the date of judgment.

2. In favour of the second plaintiff for:

1. An order directing the defendant to provide to the second plaintiff a certificate in terms of Section 17(4)(a) of the Road Accident Fund Act No.56 of 1996 (prior to its amendment by Act 19 of 2005), the services referred to therein to include the costs occasioned by any proceedings required for the appointment of a curator bonis and the costs of fees of a curator bonis if so appointed;

2. General damages in the sum of R500 000,00.

3. Damages for loss of income/earning capacity in the sum of R5 315 242,00.

4. Interest on the amount of damages awarded for loss of earning capacity at the said rate of 15.5% per annum calculated from 14 calendar days after the determination thereof by this Court.

5. Costs of suite, which costs shall include:

1. The qualifying fees of the expert witnesses, Dr Du Trevou, Dr Phillips, Dr McCann and Ms Hardy;

2.5.2 Costs of actuarial reports by I.W. Morris;

2.5.3 The travelling and accommodation cots in relation to the plaintiff’s attendance in March 2010, on the basis that he is declared a necessary witness; and

4. The costs of two counsel where employed.

__________________________________

SISHI J

JUDGE OF THE KWAZULU-NATAL

HIGH COURT – DURBAN

Representation

Plaintiff’s Counsel : S R MULLINS SC with

T E SEERY

Instructed by : KOHLER INCORPORATED

Suite 1107, 11^th Floor

Metlife Building

391 Smith Street

DURBAN

Ref: 01D2117

Defendant’s Counsel : I PILLAY

Instructed by : HAJRA PATEL & ASSOCIATES

12^th Floor, Metlife Building

391 Smith Street

DURBAN

Ref: ANDISA/an/03R422H590

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