About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 409
|
|
Ndinisa v Road Accident Fund (55792/12) [2014] ZAGPPHC 409 (23 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 55792/12
Date: 23
May 2014
Not
reportable
Not of
interest to other judges
In the matter between:
NTOZAKHE
ALFRED NDINISA
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
Coram:
HUGHES
J
JUDGMENT
Delivered
on: 23 May 2014
Heard
on: 21 May 2014
HUGHES J
1.
The
plaintiff Ntozakhe Alfred Ndinisa instituted a claim against the
defendant, Road Accident Fund, arising from a motor vehicle
collision
on 29 October 2008. The defendant conceded 100% liability.
2.
The
plaintiff sustained the following injuries:
2.1
a
severe injury to the right tibula and fibula resulting in a traumatic
amputation of the right ankle;
2.2
eventual
above knee right leg amputation;
2.3
extensive
lacerations and scaring;
2.4
psychological
stress and trauma;
2.5
ghost
pains and neurological complications in amputated stump.
3.
Prior
to these proceedings the parties agreed on the following:
3.1.
an undertaking in terms of
section 17(4)
(a) of the
Road Accident
Fund
Act,
56 of 1996
would cater for future medical expenses;
3.2
the compensation of general damages would be
R700 000.00
3.3
the calculation in the actuarial report of Human and Morris dated 14
May 2014 in respect of future loss of earning and /or earning
capacity.
4.
The
crisp issue left to be determined is the applicable contingencies to
be applied. Fortunately the parties are in agreement that
the
applicable contingency to be applied to past loss of earnings is 5%.
This leaves me to determine the relevant contingency
to be applied to
future loss of earnings.
5.
The
following reports were handed in by consent :
5.1
Dr J
F Ziervogel ( Orthopaedic Surgeon and Radiologist)
5.2
Genesis
Actuarial Solutions (Actuary)
5.3
Brian
Redelinghuys (Orthotist Prosthetist)
5.4
Dr
Kobus Truter (Clinical Psychologist)
5.5
Dion
Rademeyer (Mobility Consult)
5.6
Dr J
P M Pienaar (Plastic & Reconstructive Surgeon)
5.7
Dr D
A Birrel (Orthopaedic Surgeon and Radiologist)
5.8
Laura
Joyce (Occupational Therapist).
5.9
Andre
F Kok (Industrial Psychologist)
5.10
Human
& Morris (Actuary)
6.
The
plaintiff’s highest level of education is that of grade 10. His
work history as recorded in the reports is that he was
self-employed
from 2003 to 2007 performing the services of gardening in various
households earning a monthly income of R800.00.
In 2007 he obtained a
position at Spar performing duties in the bakery. At Spar he earned a
monthly salary of R1 800.00. His
services were terminated on 29
October 2008 due to his incapacity to work as a result of this motor
vehicle collision.
7.
Andre`
Kok states in his report that “
according
to Dr Birrel, the client has a 60% loss of work capacity due to
the accident and has a tiny chance of being able
to find light duty
work, but in all likelihood will not find any work again in the
future.”
Kok postulates that in his opinion the plaintiff is unlikely to
secure and maintain an appropriate position in the open labour
market
and as such the plaintiff is practically unemployable. Thus the
plaintiff has suffered a total loss of income from the date
of the
accident.
8.
As a
source of income the plaintiff does receive a monthly State Grant. In
the scenario of the plaintiff Kok suggested that he be
categorised as
an unskilled worker entering the labour market at Paterson level A1
and progressing to Paterson A3 which he would
reach at age 45 and his
career lifespan will be age 65 being retirement. In addition there is
the suggestion that he be place in
the non-corporate labour sector
categories which would entitle him to a basic salary without fringe
or employee benefits.
9.
Mr
Alberts SC for the plaintiff argued that in the circumstances of the
plaintiff it would be fair and equitable to apply a contingency
deduction of 15% only and nothing higher against the future loss of
earnings calculation. He attributes this suggestion to the
fact that
the plaintiff will have nil earnings for the rest of his life as he
is unemployable.
10.
Mr
Westebaar for the defendant contended that in this instance a
contingency of 25% should be applied. He submitted that this was
because the earnings of the plaintiff prior to the accident had not
been confirmed. Further that the plaintiff had only been in
the
employ of Spar for a mere 18 months. Lastly that the job market
comprising of Spar and the like, that is retail sector, was
a
volatile sector and it could not be guaranteed that the plaintiff
would have been able to hold down his job for a long time.
Thus it
could not be said that the plaintiff had been in a secure job.
11.
The
determination of contingency allowances involves a process of
subjective impression or estimation rather than objective
calculation,
in other words, allowance on which judicial opinions
vary appreciably.
See
Shield Insurance Co Ltd v Booysen 1979(3) SA 953(A) at 965 G-H
12.
In
Southern
Insurance Association v Bailey NO 1984(1) 98 AD
the two approaches that can be used to ascertain future loss of
earnings are discussed on
page
113
where the following is said by
Nicholas
JA
:
“
One
is for the Judge to make a round estimate of an amount which seems to
him to be fair and reasonable. That is entirely a matter
of guess
work, a blind plunge into the unknown. The other is to try to make an
assessment by way of mathematical calculations,
on the assumptions
resting on the evidence. The validity of this approach depends of
course upon the soundness of the assumptions,
and these may vary from
the strongly probable to the speculative. It is manifest that either
approach involves guesswork to a greater
or lesser extent.”
Continues
on page 114C-D to state:
“
In
a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the
first
approach offers any advantage over the second. On the contrary, while
the result of an actuarial computation may be no more
than an
“informal guess” it has the advantage of a logical
basis”
.
In addition refer to in
Smit
NO v The Road Accident Fund
,
The Quantum of Damages, Corbett and Honey, Volume 5, B4-251.
13.
Robert
J Kock
in
his book “The Quantum Year book” states that there are no
fixed rules as regards general contingencies and one of
his helpful
guidelines is that of the sliding scale contingency theory:
“
Sliding
scale: ½ % per year to retirement age, i.e. 25% for a child,
20% for a youth and 10% in middle age”.
14.
Kock’s
support of this
sliding scale theory is attained from
Goodall
v President Insurance
1978 (1) SA 389
(W).
In
Goodall
,
Margo J applied a contingency of 10% to the future loss of earnings
calculation of a 46 year old male buyer in a commercial company.
Margo J attributed this percentage to the fact that the buyer was a
steady employee, the period of calculation for his loss of
earnings
was short and the fact that he had enjoyed a good life but for this
accident. In the judgment at
393
A-E
the methodology of the sliding scales madness is illustrated. At
393B-E
the following was stated “
In
Van Rensburg’s (
Van
Rensburg v President Versekeringsmaatskappy WLD 21.11.68, The Quantum
of Damages Volume 2 at page 65
)
case the plaintiff was 25 years old and in De Jongh’s (
De
Jongh v Gunther and Another
1975 (4) SA 78
W
)
case, which was a claim by dependants for loss of support, Nicholas J
adopted the figure of 20 percentage for contingencies
in
relation to deceased ‘s earning power, the deceased having been
approximately 25 years of age at the time of death…In
the
well-known case of
Sigournay
v Gillbanks
1960 (2) SA 552
AD, Schreiner J A at p 569
,
made provision for contingencies in an amount equal to approximately
16%. The plaintiff in that case was 33 years of age, a fact
which
appears from the report of the case in the Appellate Division or in
the court of first instance, or Corbett and Buchanan”.
15.
In
the present case the plaintiff was 25 years old at the time of the
motor vehicle collision. The plaintiff’s highest level
of
education was grade 10. The majority of his working life he worked as
a gardener earning R800.00 per month. His employment at
Spar at a
salary of R1800.00 per month was short lived and only lasted for 18
months.
16.
Mr
Alberts SC submitted that the sliding scale method merely amounts to
a thump suck and should not be applied. I tend to disagree
as is
evident from the case law above the sliding scale has been in
existence and utilised as far back as 1960 in the Appellant
Division.
.
17.
In
this matter we have a situation where the plaintiff earned a salary
of R23 400.00 per annum at the date of the collision.
Kock
sets his future loss to commences at R53 400.00, this is
R30 000.00 more than what he earned as at the date of the
accident.
Further, that the future loss of the plaintiff would need
to be calculated over a longer period in order to reach retirement
age
65. It is also relevant to take into account the fact that
the plaintiff is unemployable for the rest of his life and that
he
has endeavoured to hold down a job from the time he existed school.
I am of the view considering
Sigournay’s
case above and
Kock’s
Quantum year book, in the circumstances a contingency of 20% would be
appropriate to apply as a contingency deduction to the future
loss of
earnings.
18.
In
the result as set out in Human & Morris’s report if 5%
contingency deduction is applied to the past loss as agreed,
20% is
applied to the future loss and the disability grant is deducted the
net total amounts to
R1 341
571.00
.
19.
The
net loss together with the amount agreed in respect of general
damages totals
R2 041 571.
00
.
20.
The
order granted is in terms of the order attached marked X, duly
incorporated into the judgment, with the insertion of the amount
of
R2 041 571.00
.
_____________________________
W. Hughes Judge of the
High Court
Delivered
on: 23 May 2014
Heard
on: 21 May 2014
Attorney for the
Plaintiff
SAVAGE JOOSTE &
ADAMS INC.
141 Boshoff Street
Nieuw Muckleneuk
PRETORIA
Ref: MR
HAYES/MS/RP2789
Attorney for the
Defendant
MSMM
INC.
980
Park Street
Hatfield
PRETORIA
Ref:
RAF11671/1/1 File No. C11919