Archive | July 2010

Scale of costs – High court or not

Dear Reader,

Welcome to the twelfth edition of Independent Actuarial Consultant’s (IAC) monthly newsletter. Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents and the quantification of damages relating to personal injury claims.

We will also keep you updated of IAC developments, events and training seminars and lighten up your day with a joke or inspirational quote.

Training

I am excited to announce that IAC will again be presenting training on the calculation of simple loss of income and loss of support calculations. The training is aimed at attorneys in order to equip them to give better instructions,
have a better understanding of the actuarial calculation process and to aid in settlement of matters.

Same will be taking place on the following dates:

Durban 13 July 2010
Johannesburg 15 July 2010
Pretoria 15 July 2010
Cape Town 28 July 2010
Port Elizabeth 29 July 2010

KINDLY COMPLETE YOUR CONFIRMATION OF ATTENDANCE DOCUMENTS FOR THE CAPE TOWN AND PORT ELIZABETH SESSIONS AND E-MAIL SAME TO roelf.nel@iac.co.za OR FAX TO 011 333 9663 ON/BEFORE 16 JULY 2010.

KINDLY NOTE THAT THERE ARE STILL 16 SPOTS LEFT FOR THE DURBAN SESSION AND 9 SPOTS FOR THE JOHANNESBURG SESSION,
PLEASE PHONE ME ON 083 393 8530 SHOULD YOU BE INTERESTED IN TAKING UP SAME.

Pedestrian crossing street with cars

TSELE REGINALD KANONO v THE ROAD ACCIDENT FUND – 7072/2008 [UNREPORTED] – FREE STATE HC

The Plaintiff instituted action against the Defendant for payment in the amount of R124 919, 24 for damages suffered as a result of motor vehicle accident.

The Plaintiff chose the High Court as appropriate forum to institute proceedings.

The Plaintiff abandoned the whole amount of R100 000 for general damages and subsequently the merits and quantum of damages were settled in the amount of R24 919,24 being special damages. The Defendant tendered party and party costs on Magistrates Court scale and increased advocates fees.

Counsel for the Plaintiff argued that the Defendant never objected to the High Court’s jurisdiction before trial even when Defendant had ample opportunity to do so during the R37 conference. It was also argued that Defendant had sufficient time to settle the matter before the trial date and all the costs could have been prevented.

Counsel for Defendant argued that proper investigation had to be done by Defendant to consider the claim and that Defendant had indeed tried to settle the claim.

From the beginning it was clear that Plaintiff’s claim would be limited.

The court held that the general rule that costs follow the event is subject to the overriding principle that the court has a judicial discretion in awarding costs.

The court further held that the fact that the Plaintiff claimed more than she succeeded in recovering is insufficient ground for refusing her costs or to justify the court in depriving her of costs. The claim must be excessive, or grossly disproportionate to the amount awarded, before that would be done.

Plaintiff’s injuries were described as:

“minor bodily injuries to the head as well as fairly severe injuries to the chest which include laceration
of the left side of the face and fracture of the left ‘scapula’”.

The purpose of an award of cost to a successful party is to indemnify him for the expense to which he has been put by having unjustly been compelled to initiate or defend litigation.

The cost order is not intended to be compensation for a risk to which a litigant has been exposed, but a refund of expenses actually incurred PAYEN COMPONENTS SA LTD v BOVIC GASKETS CC 1999 (2) SA 409 (W) 417. The award of costs is a judicial discretion and must be exercise on grounds upon which a reasonable person could have come to the conclusion arrived at.

After due consideration of the facts the court held that the matter did not “present considerable difficulties in fact or law” as was indicated in the BARNARD v SA MUTUAL FIRE & GENERAL INSURANCE CO LTD 1979 (2) SA 1012 ( SE) case.

The Plaintiff had been over optimistic in regard to the amount she claimed as damages.

The court ordered that the cost’s is to be taxed on a scale applicable in the Magistrate’s Court.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

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