FORM A FILING SHEET FOR EASTERN CAPE HIGH COURT, MTATA JUDGMENT

Transcription

1 FORM A FILING SHEET FOR EASTERN CAPE HIGH COURT, MTATA JUDGMENT PARTIES: Bulelwa Nonkwali VS Road Accident Fund 1. Case Number: 771/ Magistrate: 3. High Court: EASTERN CAPE HIGH COURT, MTHATHA DATE HEARD: 4 th 7 th May DATE DELIVERED: 21 st May 2009 JUDGE(S): Dawood J. LEGAL REPRESENTATIVES Appearances: 28.for the Plaintiff(s): Mr. AD Schoeman & Ms. HB Ayerst 29.for the Defendant(s): Mr. Mokutu Instructing attorneys: 38. Plaintiff(s): Mpambaniso Attorneys c/o Mgxaji & Co 39. Defendant(s): Potelwa & Co CASE INFORMATION - 19.Nature of proceedings : Civil Trial- Road Accident Fund- Claim for Damages- Appointment of Curator Bonis 1

2 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION: MTHATHA) CASE NO.:771/2004 In the matter between: BULELWA NONKWALI PLAINTIFF and ROAD ACCIDENT FUND DEFENDANT JUDGMENT DAWOOD, J [1] The plaintiff herein, Bulelwa Nonkwali, instituted action against the defendant herein, The Road Accident Fund. The merits of the matter were settled with the defendant accepting liability for 100% of the plaintiff s proven damages. 2

3 (a) The amount to be awarded to the plaintiff in respect of her claim for general damages; (b) The amount to be awarded to the plaintiff in respect of the past and future loss of income; (c) The contingencies to be applied to such loss, and (d) Whether or not the plaintiff is entitled to costs of two counsel; and (e) The scale of such costs. [3] The defendant at the commencement of the trail conceded the head injury however put the sequelae thereof in dispute. [2] The issues to be determined at present are the following:- [4] The defendant admitted the reports of the following experts:- (a) Dr Basil L Mackenzie, the orthopaedic surgeon; (b) Jane Bainbridge, the Occupational Therapist; (c) Grace Hughes, the physiotherapist; 3

4 (d) Dr Nirupa Shah; (e) Professor Schlebusch; and (f) Dr R.J. Kock s report dated 6 May 2009 (conceded during argument). [5] The following witnesses were called in support of the (a) Frances Slabber, a speech language therapist and audiologist, (b) Ian Meyer, a clinical Psychologist, and (c) Dr R.O Holmes, a psychologist. Plaintiff s case:- [6] The defendant did not call any witnesses to testify on its behalf. [7] The p1aintiff, according to the report of the Orthopaedic Surgeon, Dr Basic L. Mackenzie, sustained the following injuries in the accident which occurred on the 16 November 2001:- 4

5 (a) A pelvic ring disruption, involving her left inferior pubic ramus, pubic symphysis and left sacro-iliac joint; (b) A closed fracture of the mid-shaft of her left humerus; (c) A closed fracture of her mid-shaft right tibia; and (d) A subluxation C2 on C3, not associated with spinal cord nor nerve root damage [8] According to the records of the Cecilia Makiwane Hospital the plaintiff sustained fractures of the 5 th, 6 th and 7 th left ribs. This also appeared from the statutory report compiled from the records of Cecilia Makiwane Hopital. [9] The plaintiff also sustained a head injury with a compound fracture of the left parietal bone and a front parietal laceration on the left side. [10] According to Dr Ian Meyer, the Clinical Psychologist, the plaintiff sustained a traumatic brain injury which was at least of moderate severity, with accompanying diffuse axonal damage. 5

6 [11] Dr Nirupa Shah, a specialist Neurologist also placed the head injury in the moderately severe category. [12] The plaintiff s brain injury has, according to the reports and the testimoney of Frances Slabber, Ian Meyer, Dr Richard Holmes and the report of Professor Schlebusch, caused the Plaintiff to be severely intellectually, cognitively and psychologically compromised which has left her with a mood disorder, adverse changes in her personality, behavioural changes, persistent pain, variable neuropsychological and intellectual deficits consistent with a neuro-cognitive disorder, an impaired self image and a postmorbid loss of drive. [13] The plaintiff according to the testimony of the witnesses called is:- a) Unemployable in the open labour market; b) Unlikely, practically, to be able to secure sheltered employment or employment with a sympathetic employer; c) Unlikely to benefit from the government s policy pertaining 6

7 to disabled persons having regard to the sequelae of the brain injury. [14] The defendant despite placing the sequelae of the head injury in dispute:- a) Failed to call any experts to testify with regard to what they state the sequelae of the head injury was; b) Failed, under cross-examination, to challenge the experts called on behalf of the Plaintiff with regard to their testimony relating to the sequelae; and c) In fact admitted some of the reports pertaining to the sequelae without challenging them. [15] There is accordingly no reason to question or disregard the testimoney of the witnesses called pertaining to the head injury and the sequelae thereof. [16] The disputes between the parties originally appear to have arisen as a result of a failure to properly read the hospital 7

8 records and to some extent the failure on the part of the hospitals to record all the plaintiff s injuries or to properly investigate the sequelae thereof. [17] The Defendant did not, under cross examination, challenge the evidence of Dr. Holmes with regard to the plaintiff s career path, her progression and the date of her commencement of employment, or the amounts she would receive. [18] The Defendant accordingly accepted Dr Kock s certificate of value dated 6 May 2009 since his calculations were based upon the testimoney of Dr Holmes. CONTINGENCIES GENERALLY [19] The issue that remained was a determination of the contingencies to be applied to the loss of income both past and future. 8

9 [20] Mr Schoeman for the plaintiff argued that the normal contigencies of 5 percent in respect of past loss of income and 15 percent in respect of the future loss of income should be applied. [21] He conceded that the issue of contingencies lies in the discretion of the court seized with the matter. [22] He cited the principles to be adopted in considering the issue and cited cases in support of his argument regarding the contingencies to be applied. [23] He argued:- (a) That the contingency factors to be applied in each case are to be considered on the facts of each case. The usual considerations include the possibility of errors in the estimation of the Plaintiffs life expectancy, the likelihood of illness and unemployment which would have occurred in any event or which may in fact occur, inflation or deflation in the value of money, tax, alterations in the cost 9

10 of living allowances and accidents or other contingencies which would have affected the Plaintiff s earning capacity in any event. (b) That in the Quantum Yearbook 2009, page 100, Koch states as follows:- "It has also become customary for the Court to apply the so-called sliding scale to contingencies which entails that half a percent for year to retirement age i.e. 25%for a child, 20%for a youth and 10% in middle age. (see Goodall v President Insurance Companv Limited 1978 (1) SA 389 (W) (c) In Mehlo and Another v Road Accident Fund Corbett and Buchanan Vol 5 A2-30 (C) the claimant was a 20 year old male who had been rendered "functionally useless" as a result of a motor vehicle collision. The boy was further assessed as being "completely unemployable". The 10

11 learned Mr Justice Foxcroft held that the contingency deduction to be made in respect of the boy was 20% for future loss of income and 5% in respect of past loss of income. (d) In the matter Benjamin NO v The Road Accident Fund C& B Vol 5 B4-205 a 8 year old schoolgirl at the time of the accident and 15 at the time of the trial sustained severe brain injuries resulting in urinary incontinence, emotional liability, daily headaches, low self-esteem and was being subjected to ridicule by other children. She also suffered certain orthopaedic injuries and it was held that she would be incapable of earning an income. The Court applied 15% contingency to her claim for future loss of earnings. (e) Further, in the matter of Zarrabi v The Road Accident Fund C&B Vol 4 B4-231 a 30 year old female trainee medical specialist suffered severe diffuse axonal brain injury with severe neurophysical, cognitive and 11

12 psychiatric consequences. She also suffered certain orthopaedic and other injuries. As a result of the a foregoing she suffered from intellectual impairment which meant that at best for Plaintiff she would manage some form of employment in a sympathetic environment. The Court allowed a 5% contingency deduction in respect of past and a 15% in respect of future loss of earning. (f) In Smit N.O v The Road Accident Fund C&B Vol 5 B4-251 a 12 year old schoolgirl suffered a severe diffuse axonal head injury together with certain orthopaedic and soft tissue injuries. The aforementioned injuries left her intellectually impaired with a personality change and a lack of drive. As a result of the above it was held that future employment would be limited to a sympathetic environment and/or for short periods of employment. A contingency of 15% was applied to her claim for future loss of income. 12

13 (g) In De Jonge v Du Pisanie N.O. C&B Vol 5 J2-103 a 35 year old electrician sustained brain injuries which left him with a changed personality lack of drive, aggression and a lack of judgment. These injuries resulted in him initially still being employable, albeit not in the same capacity that he had held prior to the accident. At the time of the trial, however, he had been medically boarded. The Court deducted a 10% contingency in respect of future loss of income. (h) Lastly, in the matter of Maholela v Road Accident Fund (391/2001) 2006 ZAFSHC 44 (7 November 2006) an unreported decision of the High Court of South Africa by Ebrahim J, a 7,5% contingency for accrued loss was applied by the Court where the plaintiff had been employed continuously for a period of 10 years by a multi-national company and it was found that, but for the accident, he would have continued earning the income he had been earning at the time of the accident. The Court 13

14 found further that the fact that he had a Standard 10 qualification and had undergone and completed a three year teaching course, which qualified him as an educated employee, favoured same as opposed to a higher contingency being applied. As regards the prospective loss of earnings the Court found that a contingency deduction of 12,5% should be made. The Court based its finding on the plaintiff s value as an employee and the fact that he had shown himself, since the date of the collision, to be positive despite his disabilities, having even attempted to obtain a further qualification. [24] The actuarial calculations, as already indicated, were not placed in dispute and can accordingly be taken as correctly reflecting the plaintiff s loss of income prior to the application of any contingencies. 14

15 [25] In assessing the contingencies to be applied, I have had due regard to the authorities, the applicable principles and in particular the facts peculiar to this case. PAST LOSS OF INCOME [26] In assessing the contingencies to be applied to past loss of income due cognisance has, in addition to the traditional factors, been taken of the following factors:- (a) That the plaintiff was not permanently employed at the time of the collision and in fact does not appear to have been gainfully employed at all from 1998 to (b) The plaintiff was temporarily employed in (c) Dr Holmes, attributed her unemployment in the teaching sector to the fact that posts had been frozen and no new teachers were being employed by the department. (d) Dr Holmes was however unable to testify as to when the department of education re-commenced employing new teachers. 15

16 (e) No explanation was furnished regarding what other attempts were made by the plaintiff to secure other forms of employment after obtaining her diploma, in 1998 until (f) Having regard to all the relevant factors and in particular the uncertainty relating to when the plaintiff would actually have commenced permanent employment an application of a 10% contingency to past loss of income is warranted. (g) The amount to be awarded in respect of past lost of income is accordingly R less 10% = R FUTURE LOSS OF INCOME [27] In determining the contingency to be applied to the plaintiff future loss of income the usual factors have been taken into account. [28] The following factors peculiar to this case have also been considered:- (a) That the plaintiff was in possession of a 3 year teaching diploma; 16

17 (b) That all her siblings had a teaching diploma and no further qualifications; (c) That the calculations and the figures in respect of her future income was based upon her successfully completing further studies; (d) That there is some uncertainty regarding whether or not she would have pursued further studies; (e) That the calculations were based upon her receiving a 3% increase every 2 years and a 6% increase every nine years; (g) These increases according to Dr Holmes testimoney are based on performance as assessed by external moderators and will not automatically accrue to the Plaintiff. (h) There is accordingly some uncertainty regarding whether or not she would have received these increases. (i) The plaintiff had a degenerative disc disease at the C5/C6 motion segment level which Dr Mackenzie attributed at least 50% to non-accident related factors. (j) This may or may not have caused the Plaintiff discomfort and impacted on her performance and may or may not have 17

18 adversely affected her health and required medical and/or surgical intervention and her having to stay away from work. (k) There is accordingly some uncertainty regarding the sequelae of the degenerative disc on her employment. [29] In assessing all the relevant factors and the facts peculiar to this case a contingency of 20% is deemed to be an appropriate one to be applied to the plaintiff s future loss of income. [30] The amount to be awarded to the plaintiff in respect of future loss of income will accordingly be the sum of R less 20% =R GENERAL DAMAGES [31] The plaintiff has claimed an amount of R in respect of general damages. 18

19 [32] In assessing the amount to be awarded to the plaintiff for general damages, all the admitted reports were considered, as well as the testimoney of the witnesses and the authorities referred to in argument. (a) With regard to her orthopaedic injuries Dr Mackenzie, the Orthopaedic Surgeon stated as follows in his report on the issue of pain, suffering and shock. (a) As a consequence of her polytrauma, Ms Nokhali would here suffered very severe pain. There would have an exacerbation pain when she underwent open reduction and internal stabilization of her humerous fracture. Her suffering and inconvenience were protracted in that she was subjected to Cervical Skeletal Traction by means of skull calipers for several weeks. During this period she 19

20 would have been recumbent all the time and would have been totally reliant on nursing staff for mundane activities of daily living including toilet, washing, etc. After the skeletal traction was removed, she had the further inconvenience of wearing uncomfortable cervical braces for several more weeks. Presently, due to the continued drainage of pus from the sinus on her left arm he suffering continues. She will never become independent of analgesia / NSAID as these will be necessary to counter anticipated long term discomfort emanating from her left sacroiliac joint and the progressively degenerative motion segment levels in her spine. She will suffer further severe pain when the internal fixatures are removed from her left humerous. 20

21 (b) Ms Bainbridge, the occupational therapist stated in her report that the plaintiff had suffered a loss of amenities in that she is no longer independent in domestic activities. Her social and leisure pursuits have been compromised and her occupational capacity as an educator has been significantly compromised by her dual disability. (c) According to Ian Meyer, the plaintiff was left with some disfiguring scarring. She presented with a 5cm scar reaching from the mid-forehead that recedes to the left into her hair-line. There is a disfiguring scar on her chin and lower lip which leaves her feeling self-conscious and objectively less attractive. On the upper left arm the plaintiff has a lengthy disfiguring scar measuring approximately 10,5cm to 2cm. On the right lower leg 21

22 there is also a significant scar that is unsightly and similar scarring on the inner section of her right ankle. The plaintiff is no longer able to run and cannot participate in sport. Pre-mobidly she participated in volleyball, netball, atletics and soccer. She can no longer sit or walk for longer than approximately an hour before developing pain in her lower back, neck and right leg. Traveling in taxis has become uncomfortable. Her ability to dance is compromised and her ability to attend youth meetings is compromised due to her physical injuries. He states that the plaintiff should be compensated for both physical and psychological pain and suffering. Her loss of amenity has been significant. 22

23 (d) Dr Holmes also stated that the plaintiff has suffered an appreciable loss of amenities of life and that consideration should be given to this aspect of her posttraumatic condition altered personality circumstances. (e) According to Professor Schlebusch, in his report, the plaintiff presented with:- (i) A post-mva moderate mood disorder (depression); (ii) Personality / behavioural changes (irritability, moodiness, fatigue, reduced self esteem, etc); (iii) Persistent pain (especially headaches and pain in the neck and lower back consistent with a pain disorder); (iv) Need to take pain killers-risk of substance use disorder; 23

24 (v) Variable neuro-psychological and intellectual deficits consistent with a neurocognitive disorder; (vi) Decreased physical mobility and agility; (vii) Difficulty to cope as well with her premorbid occupation and lifestyle, physical and social activities. (viii)an impaired body-image and self image. (ix) Annedonia and a morbid loss of drive (but not the point of an amotivational syndrome.) (x) These variables have impacted adversely on her post morbid psychological adjustment. (xi) He stated that her pattern of performance was associated with both her functional pathology as well as 24

25 cognitive symptoms characteristic of a closed head injury. (xii) Her cognitive deficits overlap with and are exacerbated by her other medical and psychological deficits. (xiii)he stated that in addition to her pain and suffering in respect of her medical problems she has also suffered psychological distress. (xiv)he stated that her psychopathology including her neuro-psychological deficits have contributed to a degree of psychological disability. (xv) He stated that in addition to the loss of amenities of life she has already suffered, her loss of certain aspects of enjoyment of life, and her adverse psychological profile contribute to a loss of amenities of life. 25

26 (xvi)he also discusses psychological disfigurement and states that her selfesteem and body image are negatively, affected, also given her pain disorder and facial scarring and other difficulties. [32] The plaintiff s counsel referred the court to numerous authorities similar to the present one to justify the plaintiff s claim of R in respect of general damages. Mr. Schoeman referred the court to inter alia the following cases:- (i) Johnson Currie v The Road Accident Fund, a fairly recent, unreported decision of the High Court of South Africa (Eastern Cape, Port Elizabeth) by Jansen J in Case No. 1471/95 dated 23 May In this matter a 37 year old assistant superintendent employed by the Ibhayi City Council, Johnson Currie, sustained a fracture of the occipital region of his skull, various lacerations, a fracture of the right 26

27 forearm, a compound fracture of the left forearm, a fractured nose, a fracture of the Zygoma on the right side and an injury to his right hip which left him unable to lift or carry heavy weights and unable to manipulate objects. He further had significantly reduced grip strength and dexterity in both hands which rendered him incapable of driving a truck and only able to drive his motor vehicle for short periods of time. He furthermore sustained a moderately severe diffuse axonal traumatic brain injury that resulted in a significant intellectual compromise which caused him to suffer from a chronic adjustment disorder with mixed anxiety and depressed mood. He underwent a number of surgical interventions has suffered, and continues to suffer, from pain in his right hip and severe throbbing headaches which plague him approximately three times a month. Pre-morbidly the plaintiff was actively involved in sports and he is unable to return to these activities. He was further found to be permanently and totally unemployable. An award of R550,000.00, which has a present day value of 27

28 approximately R 599,000.00, was made by the Court. (ii) In the matter of Johannes Lodewickus Benade (Snr)and Johannes Lodewickus Benade(Jnr) v The Road Accident Fund, an unreported decision of the Eastern Cape Division of the High Court, Mthatha, by Schoeman J in Case No. 536/2007 (dated 18 December 2008), the First Plaintiff sued in both his personal and representative capacities on behalf of his minor son who had suffered multiple injuries comprising a moderate to severe head injury leading to a changed personality and intellectual impairment and orthopaedic injuries comprising multiple lacerations, an extensive comminuted fracture of the mid-shaft area of the left clavicle, closed and displaced fractures which involved the mid-shafts of the left fourth and fifth metacarpals, an intra-articular fracture of the right distal radius, compound fractures of the mid-shaft areas of both the left radius and the left ulna, undisplaced fractures of the right superior and inferior pubic rami, a laceration of the anterior aspect of the 28

29 left knee over the patella, a compound fracture of the left tibia and fibula (grade 1) and a developing injury of the medial aspect of the right leg. As a result of the injuries various operations were performed on the Second Plaintiff and he suffered permanent physical and psychological damage and would be unable to perform any work on a permanent basis then or in the future. At the time of the collision the Second Plaintiff was 19 years old and would have experienced a severe degree of pain and discomfort for a period of six months after the accident from the several major orthopaedic surgical procedures he underwent. He was awarded the amount of R653,000.00, in 2009 terms, as and for general damages. In Benade's case (supra), Schoeman J, in arriving at the quantum to be awarded in respect of general damages, considered the awards made in the following cases: Zarrabi v Road Accident Fund supra where the Court awarded R which would today amount to 29

30 R 1 023, for a trainee medical specialist who had suffered from, inter alia, intellectual impairment, a personality change, spasticity of the right side of the body and a lack of drive. In Smit N.O. v The Road Accident Fund supra the Court awarded R to a 12 year old school girl who suffered multiple facial lacerations, fractures of the right humerus, left ulna, ankle and the pelvis together with a brain injury which resulted in her intellectual impairment and a change in her personality. In today's terms the award would amount to R In Benjamin N.O. v The Road Accident Fund supra the Court awarded an amount of R to an 8 year old school girl who had suffered a brain injury that had resulted in urinary incontinence, emotional fluctuation, daily headaches, low self esteem and ridicule by other children. The award would be worth R today. Lastly, in Adlem v The Road Accident Fund (reported in 30

31 Corbett &Honey op cit Volume 5 J2-41) the injured person was a 17 year old girl that suffered a head injury and multiple fractures of the upper and lower limbs, the pelvis, a degloving injury of the knee and dislocation of the sacroiliac joints. She was awarded an amount with a present day value of R Here it must be borne in mind that the Court found that she was able to continue working. (iii) In the matter of Taylor v Union and South West Africa Insurance Company Ltd. (reported in Corbett & Buchanan, Volume 2, page 507) a white male school teacher aged 62 had sustained a fracture dislocation of the right hip with gross displacement. There was also a fracture of the superior articular surface of the acetabulum, a probable injury to the right knee and possible injury to the right ankle and foot. There was also a fracture of four ribs which led to complications of traumatic pneumonitis and there was a fracture at the base of the skull which caused bleeding from the right ear and deafness, together with multiple lacerations 31

32 and abrasions. He suffered intense pain immediately after the accident, an emergency operation was performed and the dislocated hip was reduced and he was put on continuous traction. His condition thereafter deteriorated due to the chest injury which caused pneumonitis. After 11 weeks he was discharged from hospital on crutches, there was pain in his right foot and he had persistent discomfort and pain. He attempted to return to teaching but his state of intellectual disability compared with his former self was real and demonstrable due, in all likelihood, to cerebral anoxia which caused irreversible changes in respect of concentration, memory and personality. He was unable to return to teaching as he was unable to cope and was retired on medical grounds. The injury had also aggravated a pre-existing condition. He was awarded an amount of R605, ( in 2009 terms) as and for general damages. (iv) In the unreported matter of Robarts v Road Accident Fund Eastern Cape Division under case number ECD707/07 Pillay 32

33 J, awarded R 480, to a 12 year old boy who had sustained only head injuries and was still, to a limited degree, employable. (v) Lastly, in De Jongh v Du Pisanie N.O. (reported in Corbett & Buchanan, Volume 5 at page J 2-103) a 35 year old male sustained orthopaedic injuries as well as a fracture of the frontal skull causing an extradural haematoma causing brain damage giving rise to intellectual impairment as well as changed personality. He was awarded general damages in the amount of R 387, in 2009 terms. [33] The nature and extent of the plaintiff s pain and suffering and loss of amenities of life have been well documented in the various medical reports that have been admitted as well as by the testimoney of the witnesses. [34] The sequelae of the head injury combined with the sequelae of orthopaedic injuries have severely impacted on the 33

34 plaintiff s quality of life and has caused her and will continue to cause her pain and suffering and a significant loss of amenities of life for the rest of her life. [35] The plaintiff s claim of R in respect of general damages is reasonable having regard to the nature and extent of her injuries and how it has impacted upon her and also taking into account the comparable relevant authorities. [36] The Plaintiff is accordingly awarded R in respect of general damages. COSTS [37] Mr. Schoeman in arguing for the costs of two counsel set out the principle adopted by the court when considering whether or not to award the costs of two counsel. He stated as follows in his heads of argument:- In considering whether to award the costs of two Counsel, it must first be determined whether this was a "wise and reasonable precaution 1 1 Van Wyk v Rondalia 1967 (1) SA 373 (T), Steenkamp v Steenkamp 1966 (3) SA 294 (T) at 297 G 34

35 The Court has discretion whether to allow the fees of two Counsel. 2 Whether it was a wise and reasonable precaution to employ two Counsel has been determined not to be the only test but that the Court will also have regard to the amount involved and the nature of the issues in dispute. In De Naamloze Vennootskap Alintex v Van Gerlach 1958 (1) SA 13 (T) at 16E it was held that the important factors to be considered in making an award for the costs of two Counsel were the following:- The length of the hearing or argument, the importance of questions of principle of law involved and the number of legal authorities quoted. The Court is then asked to view costs against the backdrop of the circumstances of the case. 3 2 Intematio (Pty) Ltd. v Lovemore Bros. Transport CC 2000 (2) SA 408 (S ) at 413I 3 Gundelfmger v Norwich Union Fire Insurance Society Ltd TPD

36 His Lordship Mr Justice Coleman, J in Koekemoer v Parity Insurance Co Ltd. & Another 1964 (4) 138 (T) at 144 H A held that relevant considerations pertinent to whether the costs of two Counsel should be awarded are as follows : "(a) The volume of evidence (oral or written) dealt with by counselor which he or they could reasonably have expected to be called upon to deal with; (b) The complexity of the facts or the law relevant to the case; (c) The presence or absence of scientific or technical problems and their difficulty if they were present; (d) Any difficulties or obscurities in the relevant legal principles or in their application to the facts of the case; (e) The importance of the matter in issue, insofar 36

37 as that importance may have added to the burden of responsibility undertaken by counsel. " In the matter of Benade supra Schoeman, J, in the Transkei Division, allowed the costs of two counsel. In this matter there were no defence experts and numerous experts called on the part of the Plaintiff. [38] Mr. Schoeman submitted that the present matter is more complicated when regard is had to the fact that the Defendant had obtained its own contrary expert reports. [39] He submitted that the total amount of damages claimed against the Defendant in this action is very substantial, which, alone sufficiently warrants the costs of two counsel. [40] I am persuaded by the arguments advanced by Mr Schoeman that the plaintiff was not unreasonable in engaging the services of two counsel in this matter. [41] The plaintiff is accordingly awarded the costs of two counsel. 37

38 [42] Mr. Schoeman referred the court to numerous authorities in an attempt to convince the court to grant costs against the Defendant on a punitive scale. [43] It appears that the poor hospital records and the uncertainty relating to the head injury and some of the reports of the defendant s experts may have resulted in the stance adopted by the defendant. [44] The defendants counsel in argument further submitted that an offer had been made to the plaintiff at some stage. [45] The conduct of the defendant can most certainly be criticized since it was at liberty to obtain the MRI scan and CT scans requested by its experts and obtained supplementary reports 38

39 timeously to enable it to consider making a proper offer to the plaintiff. [46] Its conduct however was not so unreasonable in the circumstances of this case as to warrant a punitive costs order being awarded against it. [47] The costs order is accordingly granted on a party and party scale and not on an attorney and client scale. [48] In summary:- a) The plaintiff will be compensated as follows by the defendant:- 4. General damages - R Past loss of income - R Future loss of income - R TOTAL: R

40 CURATOR BONIS [49] It further arose from the testimony of Dr Holmes that the plaintiff was incapable of managing her own affairs and the parties agreed to a draft order pertaining to the appointment of a Curator Bonis. [50] The master s report was furnished to me on the 20 May 2009 wherein he indicated that he had no objection to the court:- a) Appointing Mr Mgxaji as the Curator Bonis, b) The court exempting the Curator Bonis from giving security to the master in terms of Section 77 of the Estates Act No. 66 of 1965; and c) That he abides the decision of the court. 40

41 [51] For the sake of completeness it is deemed prudent to incorporate the contents of the draft order pertaining to the Curator Bonis into this order. [52] ORDER I accordingly make the following order:- [1] That SITHEMBELE LAWRENCE MGXAJI be appointed as Curator Bonis to BULELWA NONKWALI; who is hereby declared incapable of managing her own affairs. [2] That the Curator Bonis be vested with the following powers:- (a) to receive, take control of, control and administer all the property constituting the estate of the Plaintiff; (b) to take any proceedings which may be necessary in the interests of the Plaintiff or for the due and proper administration of the Plaintiff s property; 41

42 (c) to carry on or discontinue, subject to any law which may be applicable, any business or undertaking of the Plaintiff; (d) to invest any monies which may be available from time to time and which are not immediately required for the purpose referred to in section 82 (c) of the Administration of Estates Act, Act 66 of 1965 as amended; (e) to raise money by way of mortgage or pledge of any of the movable or immovable property of the Plaintiff for the payment of her debts or for the payment of any debt or expenditure incurred or to be incurred for her maintenance or otherwise for her benefit or the improvement or maintenance or any of her property; (f) to let, exchange, petition, alienate and for any lawful purpose, to mortgage or pledge any property, movable or immovable, whether in whole or in part, belonging to the Plaintiff; 42

43 (g) to acquire movable and/or immovable property, whether by way of purchase or otherwise, for the benefit of the Plaintiff; (h) to exercise any power or give any consent required for the exercise of any power where such power is vested in the Plaintiff for her benefit or in the nature of a beneficial interest to the Plaintiff; (i) to apply an income or capital of the estate of the Plaintiff for her maintenance, support or benefit, preservation, safe custody or improvement of any of her property. [3] That the powers conferred on the Curator Bonis in paragraph 2(a) to (i) above be exercised subject to the approval of the Master of the High Court. [4] That the Curator Bonis, for as long as he remains a practicing attorney, be exempted from furnishing security to the Master of the High Court. 43

44 [5] That the Defendant be liable for the cost of the appointment of the Curator Bonis, the costs of this application, if any, together with the cost of the Curator Bonis in administering the Plaintiff s affairs. [6] The plaintiff is awarded the sum of R as damages together with interest thereon at the legal rate of 15, 5% per annum from 14 days after date of issue of the judgment to date of payment. [7] The Defendant is directed to furnish the Plaintiff with an undertaking, as contemplated by Section 17(4)(a) of the Road Accident Fund Act 56 of 1996, for such future hospital and medical costs as may be incurred by the plaintiff in respect of the injuries sustained by her arising from the collision that occurred on 10 October

45 [8] Costs of suit including costs of two counsel, together with interest thereon at the legal rate from a date 14 days after allocator to date of payment. [8.1] The aforementioned costs shall include:- (a) The costs of two counsel attending the Rule 37 conference on 16 April (b) The qualifying expenses, reservation costs, and attendance costs, if any, of the following experts; 1. Dr Mackenzie; 2. Jane Bainbridge; 3. Grace Hughes; 4. Ian Mayer; 5. Frances Slabber; 6. Dr Richard Holmes; 7. Dr Erlank; 8. Dr Strydom; 45

46 9. Dr Nadvi; 10.Dr Shah; and 11.Dr Robert Kock. [9] The defendant is directed to pay the aforesaid damages to the curator bonis, Mr. Sithembelele Lawrence Mgxaji, to be administered by him on behalf of the plaintiff on the terms and conditions set out in paragraphs 2 and 3 above. [10] The Defendant is directed to furnish the aforesaid Curator Bonis with the Section 17(a) undertaking to enable him to administer the same on behalf of the plaintiff. 46

47 F.B.A. DAWOOD JUDGE OF THE HIGH COURT Heard on : 4 th to the 7 th May 2009 Masters report Furnished on : 20 May 2009 Delivered on : 21 May 2009 Counsels for the Plaintiff : Mr AD Schoeman, and Ms HB Ayerst Instructed by : Mpambaniso Attorneys c/o Mgwaji & Co. Inc. Counsel for the Defendant : Mr Mokutu Instructed by : Potelwa & Co. 47