Ncangisa v Road Accident Fund (4535/2005) [2008] ZAFSHC 152 (11 December 2008)

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[2008] ZAFSHC 152
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Ncangisa v Road Accident Fund (4535/2005) [2008] ZAFSHC 152 (11 December 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 4535/2005
In the case between:
S. E.
NCANGISA
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
_____________________________________________________
JUDGMENT:
RAMPAI, J
_____________________________________________________
HEARD ON:
25, 26 & 28 NOVEMBER 2008
_____________________________________________________
DELIVERED ON:
11 DECEMBER 2008
_____________________________________________________
[1] The matter came to
court by way of action proceedings. The plaintiff, Sandile Ernest
Ncangisa, sued the defendant, the Road
Accident Fund, for the payment
of the sum of R2 835 256,70. The action was defended. The aspects
of the merits were settled on
the 31 July 2007. The defendant
conceded that the negligence of the insured driver was the exclusive
cause of the accident.
[2] The plaintiff was
involved in a road accident at Botshabelo on the 17 January 2001.
The accident occurred in section J in the
vicinity of Lerato
Secondary School at or about 11:00. The plaintiff was a pedestrian
at the time. He was struck down by a motor
vehicle with registration
number BGM521FS which was driven by a certain J M Qiba.
[3] In the accident the
plaintiff suffered head injury, right upper leg injury and right
forearm injury. Both the right hip injury
and the right forearm
injury were soft tissue injuries. The plaintiff has fully recovered
from these injuries. The head injury
was the most severe of the
injuries. It consisted of a laceration of the skull, fracture of the
base of the skull, depressed fracture
of the skull and cerebral
contusion. In short he sustained brain injury - Vide neurosurgical
assessment report: Dr P. Repko,
page 17:2 record.
[4] The plaintiff was
born on the 23 June 1983. He was 17 years at the time of the
accident. He was a grade 9 learner at Leratong
Secondary School in
2001. The adverse impact of the victim’s brain injury was alluded
to in various experts’ reports relative
to the aspect of quantum.
Such reports include the following:
4.1 Dr P. Repko :
neurosurgical assessment report
4.2 Ms Thea Zwiegers:
psychological assessment report
4.3 Mrs Sune Minnaar:
occupational assessment report
4.4 Mr Deon
Ceronio: audiological assessment report
4.5 Prof E van Zyl:
industrial assessment report
4.6 Dr R J Koch:
actuarial assessment report
4.7 Ms Christa du Toit:
industrial assessment report
4.8 Dr R J Koch:
actuarial assessment report
[5] The parties have
mutually settled the following components of the quantum according to
Mr Jordaan and Mr Coetzer, their legal
representatives:
5.1 General damages: R300
000
5.2 Future medical
expenses: written undertaking
[6] The issue for
determination has therefore been narrowed down to only two components
of quantum, namely: past and future loss
of earnings.
[7] At paragraph 4.6.6 of
her industrial psychological assessment report, Prof E van Zyl state
as follows on the 31 October 2008:
“
Had the accident not occurred,
Mr Ncangisa would therefore probably have progressed to semi-skilled
levels (B1 – B5: see notes p. 10). He probably would have
started
to work on a Paterson B1 level at about age 20 years and progressed
at approximately 5 year intervals to Paterson level
5. The
possibility of moving to higher levels (skilled levels: C1-C5 on the
Paterson scale) is difficult to predict, but unlikely.
The
qualifications/job levels attained by his family members (see
paragraph 3.20, should be taken in consideration here.
Currently
,
he will not be able to compete in the open labour market.”
[8] The defendant was
unhappy about the scenario. Ms Christa du Toit was accordingly
appointed at the instance of the defendant
to compile another
industrial psychological assessment report. She did so on the 8
October 2008. On page 7 of her assessment
report, the industrial
psychologist stated:
“
It usually takes a school leaver
2-3 years to enter the formal labour market. Considering Ernest’s
family education and economic
background, he would most probably have
started in the more informal/semi-formal labour market earning on a
Paterson level A1 or
slightly lower. Usually jobseekers opt for
whatever job is available. Approximately 5 years from then, he could
successfully
have secured himself a position in the
semi-formal/formal labour market and could have grown towards a
general matric scenario
following the Paterson level A3 (Basic
Salary) with growth towards Paterson level B3/B4 (Basic Salary) with
3-5 year intervals
between levels towards age 40/45 years. The
ceiling caters for growth in the formal sector or for alternative
career options of
a semi-skilled nature.”
Vide p. 8, exhibit a.
[9] On the 17 November
2008 Dr R J Koch compiled the first certificate of value in respect
of the victim’s loss of earnings:
“
Income now injured:
Assumed never to work again. State disability grant payments for
06/2005 to 11/2008 totalling R35600. Grant assumed to cease
after
compensation paid 11/2008.
Results Uninjured Injured NetValue
R R R
Past income: 364538 0 364538
Less contingencies (5%) (18227)
Net value past 346311
Future income: 2526117 0 2526117
Less contingencies (15%) (378918)
Net value future 0 2147199
Total for above items 2494510
Less State disability grant (35600)
Net value 2457910”
[10] On the 24 November
2008 Prof E van Zyl on behalf of the plaintiff and Ms C du Toit on
behalf of the defendant held a pre-trial
meeting of experts. The
minutes were recorded as follows:
“
MINUTE OF A TELEPHONIC PRE-TRIAL
MEETING BETWEEN CHRISTA DU TOIT (CDT), COUNSELLING & INDUSTRIAL
PSYCHOLOGIST, AND PROF. EBEN
VAN ZYL (EVZ)
ON 24 NOVEMBER 2008 IN THE MATTER OF
MR S E NCANGISA
The agreement was based on the
documentation at hand and may be changed if further information is
received, either before or at
the trial.
1. PRE-ACCIDENT:
1.1
We
agree
on the facts
regarding Mr Ncangisa’s family background, education and career
history as a matter of fact.
1.2
We
agree
that Mr Ncangisa
would probably have entered the labour market on a Paterson Level B1
(lower quartile) (
EVZ
)
from Jan 2004) (
CDT
from approximately 2008 with earnings approx. Paterson A1 for the
first 4 years). We agree on progress to Paterson Level B3 median
as
a ceiling.
EVZ
– B2 and then to B3 with 3 years intervals.
CDT
gradual progress to B3 median towards age 40 years.
2. POST-ACCIDENT:
2.1
We
agree
that Mr Ncangisa is
in all practical terms unemployable in the open labour market.
SIGNED:
____
(SIGNED)
_______
____
(SIGNED)___
___
CHRISTA DU TOIT
EBBEN VAN ZYL”
[11]
On
the 25 November 2008 Dr R J Koch was called upon to compile the
second certificate of value in respect of the plaintiff’s loss
of
earnings on the basis of the expert agreement reached between the two
industrial psychologists. His second certificate appears
on p. 12,
“exhibit a” and reads:
“
Income
uninjured:
R55578 per year (A1 MED) from 01/2004; inflation increases only
until R90391 by (B1 MED) from 01/2008; inflation increases only
until
R104189 py (B2 MED) from 01/2016; inflation increases only until
R117614 py (B3 MED) from 01/2024. 2007 rand vaules. Escalation
in
line with inflation to age 65.
Income now
injured:
Assumed never to work. State disability grant payments for 06/.2005
to 11/2008 totalling R35600. Grant assumed to cease after

compensation paid 11/2008.
Results: Uninjured Injured NetValue
R R R
Past income: 275032 0 275032
Less contingencies(5%) (13752)
Net value
past
261280
Future income: 2312267 0 2312267
Less contingencies(15%) (346840)
Net value future
0 1965427
Total for above items 2226707
Less State disability grant (35600)
Net
value 2191107
”
Still the issue of
quantum remained unresolved. On the 28 November 2008 the matter was
argued before me.
[12] As
regards past loss of earnings, Mr Jordaan informed me that the
plaintiff was prepared to argue the matter on the strength
of the
industrial assessment report compiled by Ms Christa du Toit, the
defendant’s own industrial psychologist. He pointed
out that the
plaintiff obtained the second actuarial certificate on the strength
of the industrial assessment report compiled by
the defendant’s
expert.
Moreover,
the plaintiff was prepared to go even further by raising the
contingency level as applied by the actuary from 5% to 20%.
I other
words, instead of reducing the past income of R275 032 by R13 752
(5%) to R261 280 the plaintiff was prepared to decrease
it by R55 006
(20%) to R220 025 net value past income.
[13] As
regards future loss of earnings, the plaintiff was similarly prepared
to readjust the actuary figure by raising the contingency
level the
actuary had applied from 15% to 30%. Instead of reducing the future
income of R2 312 267 by R346 840 (15% thereof) he
was willing to have
it decreased by R693 680 (30% thereof) to R1 618 587 net value future
income.
In
the circumstances the net value of past loss of earnings viz R220 025
plus the net value of future loss, viz R1 618 587 add
up to the total
sum of R1 838 612.
[14] Mr
Coetzer contended that in view of the plaintiff’s low intellectual
capability as evidenced by his poor scholastic track
record and low
educational achievements within his family unit as a whole coupled
with his low socio-economic family background
his claim for both past
and future loss of earnings was unrealistically exaggerated.
Although he conceded that the contingencies
of 20% in respect of past
loss and 30% in respect of future loss were quite generous, he
submitted perhaps it is more appropriate
to say he felt, rather than
submitted, that the net value of the compensation package was
excessive.
[15] It
can only be that Mr Coetze felt this way because he implicitly
questioned the very assumptive foundation of the actuary’s

quantification. The actuary’s starting point was that had the
plaintiff not been injured he would have earned an income of R55
578
per annum on A1 medium. Mr Coetzer felt that the basic salary level
in this case should be much lower than the Paterson salary
level A1.
However, the two industrial psychologists were agreed that Paterson
level A1 for the first four years could be accepted
as a realistic
assumption. Therefore, I find that the net values as quantified by
the actuary were realistic and informed by the
expert views including
those of the defendant’s own expert.
[16] In
GRIFFITHS
v MUTUAL AND FEDERAL INSURANCE COMPANY LIMITED
[1993] ZASCA 121
;
1994 (1) SA 535
(AD) at 546f – h Vivier JA said:
“
In a case where
there is no evidence upon which a mathematical or actuarially based
assessment can be made, the Court will nevertheless,
once it is clear
that pecuniary damage has been suffered, make an award of an
arbitrary, globular amount of what seems to it to
be fair and
reasonable, even though the result may be no more than an informed
guess
.
(See
Southern
Insurance Association Ltd v Bailey
NO
1984 (1) SA 98
(A) at 113G – 114E and the cases there cited.)”
[17] Mr Coetzer relied on
this passage. There unlike here there were virtually no informed
expert opinions to guide the court about
the labour market earning
trends, relative likely to future earning patterns of a victim who
was not yet employed at the time of
the injury. Mr Jordaan’s
argument that the said decision does not apply to the facts of the
instant case, is sound. I do not
have to make an informed guess in
this matter. In the circumstances I am inclined to award the
plaintiff compensation along the
lines as proposed by Mr Jordaan.
There is sufficient expert evidence to justify the quantum of damages
sought by the plaintiff
in this matter.
[1
8] The
opposite expert witnesses are of the common view that the plaintiff
will never be gainfully employed. Since June 2005 to
November 2008
he has received a disability grant totalling R35 600. The disability
grant will cease once the defendant has paid
him the third party
compensation. Probably the plaintiff has already received his
monthly disability grant for Desember 2008.
However, I shall deal
with the matter as if he has not yet received such a grant. The
difference is quite minimum at any rate.
The sum of the disability
grant paid has to be deducted from the third party compensation. From
the cash component hereof the
disability grant of R35 600 must be
deducted.
[19] As
regards costs, the parties are agreed that the defendant has to pay
the plaintiff’s taxed costs on the scale as between
party and party
for Tuesday, 25 November 2008, Wednesday 26 November 2008 and Friday
28 November 2008 which costs must include
the qualifying professional
fees of the plaintiff’s expert witnesses as fully listed in
paragraph 4
supra
.
[20] To summarise, the
whole compensation package is as follows:
20.1 general
damages 300 000
19.2 future medical
expenses + undertaking
19.3 past loss of
earnings + 220 025
19.4 future loss of
earnings + 1 618 587
19.5
disability grant -
35 600
Net
value due to the plaintiff
2 103 012
[
21] Accordingly
judgment is granted to the plaintiff as follows:
21
.1 The
defendant is directed to pay the sum of R2 103 012 to the plaintiff
in respect of the general damages plus future loss of
income.
21
.2 The
defendant shall be liable to pay interest on the capital sum of R2
103 012 at the rate of 15,5% per annum from the fifteenth
day of this
judgment;
21
.3 The
defendant shall furnish the plaintiff with a written undertaking in
respect of his future medical expenses;
21
.4 The
defendant is directed to pay the plaintiff’s taxed costs on the
scale as between party and party for Tuesday the 25 November
2008,
Wednesday the 26 November 2008 and Friday the 28 November 2008.
21
.5 The
costs referred to in the aforegoing paragraph shall include the
qualifying fees of the plaintiff’s five expert witnesses
as more
fully listed in paragraph 4,
supra.
______________
M. H. RAMPAI, J
On behalf of the
plaintiff: Adv. A. F. Jordaan SC
Instructed
by: Honey Attorney
BLOEMFONTEIN
On behalf of the
defendant: Adv. C. Coetzer
Instructed by:
Horn & Van
Rensburg
BLOEMFONTEIN
ex Mohlala Attorneys
JOHANNESBURG
/em