ACTUARIAL CASE LAW REVIEW

Facts and issue: This is an unopposed application for the removal of a trial from this Division in terms of section 27 (1) (b) of the Superior Courts Act 10 of 2013 and for it to be transferred to the jurisdiction of the High Court of South Africa, North North-West Division, Mahikeng. The applicant avers in her founding affidavit that circumstances have arisen dictating that it would be, apart from merely been convenient in terms of section 27(1)(b) of the Act, financially sensible and in the interest of justice should the matter be removed and transferred. The issue is whether it is convenient for a Division of the High Court whose roll is congested to remove and transfer a matter to another Division of the High Court in terms of section 27(1)(b) of the Act.

Discussion: The applicant further states in the founding affidavit that the trial roll in this Division is congested, and by transferring the matter, and having regard to where the applicant resides and where the incident occurred, it will help ease the overwhelming case load and logistical challenges faced by this court. The respondent would not be inconvenienced, so says the applicant, because it has access to the appointed State Attorney's offices in the North West Province and the exchange of pleadings, notices and reports may be done by way of e-mail. The applicant's founding affidavit is riddled with legal submissions which are of no assistance to the court. There is a glaring paucity of facts justifying the removal and transfer of the matter. Although not determinative regarding the granting of the transfer, no evidence was adduced regarding any of the witnesses to be called, where they are based or where consultations would be held. This would have demonstrated the convenience of the parties but instead the applicant stated that the parties will exchange pleadings by email. This can conveniently be done even if the matter is heard in this Division.

Findings: It may well be that if the matter was to be transferred to the Mahikeng High Court, it could be disposed of sooner than in this Division. That would not and does not render the matter transferable within the meaning of section 27 (1)(b) of the Act. It is not only the speedy disposal of litigation but also the convenience of the transferring court and the transferee court which is envisaged by section 27(1)(b) of the Act. The court is not persuaded that by simply removing cases from a Division which has overwhelming backlog of cases to another Division with fewer cases would be convenient to the transferring court as contemplated in section 27(1)(b) of the Act. It appears that the primary reason for the application is not because it would be convenient to all the parties but because the applicant seeks to address the inordinate delay in the prosecution of her claim in this Division. The applicant is thus seeking a transfer to expedite the finalization of her claim under the guise of section 27(1)(b) of the Act. This is not what is contemplated by section 27(1)(b) of the Act.

Order: The application is dismissed.

Facts: At the time of the accident, the minor child, aged 5 years at the time, was a pedestrian walking on a public road in the vicinity of a primary school, when he was knocked down by a motor vehicle driven by the insured driver.  The minor child, according to the hospital records, records that the minor child sustained a head injury (haematoma on the head); swelling and fracture on the left temporal region; and was ultimately diagnosed with a head injury. Other injuries noted in hospital reports are said to include a left eye injury and general body lacerations, which were treated conservatively, resulting in him being discharged with medication only.

Claim: The action was set down for adjudication of quantum. Merits were previously conceded 100% in favour of the minor child, a pedestrian at the time of the accident, who was knocked down by a motor vehicle driven by the insured driver.

Discussion: The minor child was in Grade R, aged 5 years and 3 months at the time of the accident. Collateral information suggests that he had never been in an accident before and was generally of good health, having reached all milestones favourably. Save for the contradictory indications that the minor child lost consciousness after the accident, all other assessments are demonstrative of the fact that he has suffered cognitive impairment which has impacted his scholastic performance which is described as consistently below the grade average. Expert opinion must be founded on logical reasoning to satisfy the court that it can safely be accepted when gauged against the onus on the plaintiff, to satisfy the court of same on a balance of probabilities. The court is satisfied that in the main the plaintiff has satisfied the onus on a balance of probabilities, subject to reservations on some of the postulations. These reservations are in the main on the postulations of the industrial psychologist which informs the actuarial calculations.

Findings: Considering the pre and post-morbid career paths postulated by the industrial psychologist, it is difficult to accept that, with the minor child having been in Grade R at the precipice of his schooling, and performing on an average basis with his peers, and with the academic history of his parents that it could be said emphatically that he would have achieved a Grade 12 with a bachelor’s pass and then proceeded on to a bachelor’s degree. The statistical data for such an assumption is simply not there. This speculation impacts the determination of his uninjured future earnings. Absent an established scholastic record, considering the minor child was in Grade R at the time of the accident, the degree of speculation on his pre-accident scholastic ability versus his post-accident ability which renders him unemployable, unfortunately does not avail the plaintiff and does not assist the court. The peculiar facts of the matter are such that a contingency deduction of 40% on the uninjured future earnings should be made to address what is speculative hypothesis on the minor child’s ability to complete Grade 12 post-accident and to pursue tertiary studies; and the speculative hypothesis on the child’s ability pre-accident with no statistical data for such assumption.

Award: The defendant shall pay the plaintiff the amount of R3,366,204.60 in respect of the claim for loss of earning capacity.

Facts and issue: The manner in which the applicants approached court was one application in which an order to compel compliance with a specified rule is sought, together with an order that should the respondent fail to comply with the court order within the time provided for in that order, the strike out must ipso facto apply without the applicant having to come back to court for an order to strike out either the claim or defence, as the case may be. The applicant provided two reasons why the orders should be granted at the same time. The first was to obviate costs. The second reason was because the practice directives allowed it.

Discussion: A reading of rule 30A(1) leads to the conclusion that the wording of the subrule affords the applicant an election whether to apply for an order compelling compliance or strike out. The phrase “or” sets out that election. It means that either an order for compliance or an order for strike out may be sought and ordered by the court. I do not get a sense that subrule (1) of rule 30A envisions a process where an order for compliance should be considered as a prelude for an order for striking out. Each of the applications sought and/or orders to be granted, are distinct applications and/or orders, and each must stand on own facts. It follows therefore that if an order for compliance is required, an aggrieved party must notify the defaulting party that he or she intends applying to court for an order compelling him or her to comply. Depending on the non-compliance, the aggrieved party must notify the defaulting party that he or she intends to apply to court for an order to strike out the claim or defence.

Findings: Rule 30A is a twostep process. Firstly, a determination must be made whether there has been non-compliance or not. If there has been non-compliance, the second step process kicks in, the aggrieved party must apply to court for an order to strike out the claim or defence. Rule 30A does not entitle the litigant to apply for the two orders, that of compliance and strike out, in the same application. The two-stage process must be maintained as required by the rule.

Order: The orders to strike out are refused. The orders sought to compel the respondents to comply with the respective rules in the applications are granted.

Facts: A collision occurred between a motor vehicle being driven by the plaintiff (who was about 42 years of age at the relevant time), and a motor vehicle being driven by Moloi (the insured motor vehicle). To establish a causal link between the accident and the injuries sustained by the plaintiff and the sequalae thereof, the plaintiff presented evidence by way of expert reports on affidavits by the relevant authors, the said experts having consulted with and examined the plaintiff post the accident.

Claim: The plaintiff instituted action for damages against the Road Accident Fund in terms of s17(1)(a) of the RAF Act 56 of 1996, as amended, as the statutory. The issue of the future hospital and medical expenses became settled, with merits being settled at 80% in favour of the plaintiff. The issue of the loss of earnings became postponed sine die by agreement between the parties. The only issue remaining for determination is the general damages.

Discussion: Dr Kimburai calculated the plaintiff’s whole person impairment at 20% WPI and found that the plaintiff’s injuries have resulted in serious long-term impairment/loss of body function. The neurologist’s outcome diagnosis of the plaintiff was that of him presenting with slowly progressive difficulty walking following the accident and undergoing a spinal surgery 2 years post-accident. He is now paraplegic. The accident left him with profound physical manifestations that carry a poor prognosis for recovery. His ability to be independent has been hampered and he will be dependent on the assistance of him family/caretakers for the rest of his life. The plaintiff’s counsel submits that the plaintiff has become socially dysfunctional and suffers from clinical anger. He has become aggressive to his household members, suffers from mild neurocognitive disorder and is suicidal.

Findings: The plaintiff does indeed qualify for compensation for general damages for serious injury in terms of the narrative test in that he suffered long-term impairment and loss of a body function, permanent serious disfigurement, and further that his injuries disadvantage him immensely and adversely affect his quality of life. The court finds that the amount of R2,300,000 for general damages would be fair and reasonable under the circumstances less the 20% apportionment.

Order: The defendant shall pay the plaintiff in total and post 20% merits apportionment R1,840,000 for general damages.

Facts and issue: The plaintiff was a 25-year-old female passenger in a vehicle when the accident in question occurred. At the time of the accident, the plaintiff had not only passed grade 12 in 2009 but had completed a Computer End User Certificate.  She was at the time employed as a practical trainee at Goldi Early Bird Farm as part of her further tertiary studies. The tertiary studies were for a national diploma in agricultural management at UNISA. Although the completion of these studies was delayed by a year and the plaintiff had to complete her practical training later, at a different farm, she completed the diploma in 2016. The issue of the quantum of the plaintiff’s loss of earnings is the only outstanding issue.

Discussion: In a claim for loss of earnings against the Road Accident Fund, the plaintiff sought to rely only on affidavit evidence in terms of Rule 38(2), including that of her experts. The plaintiff is a very bright and ambitious young woman. The expert reports postulating a limitation of her aspirations is almost demeaning to her. For expert opinion to be of assistance to a court, it must be based on a proper factual basis. There is nothing to suggest that any consequence of the injuries sustained in the accident limited any of the plaintiff’s academic capabilities. The only limitation of academic progress experienced to date, was that of a lack of finances, which is completely unrelated to the accident. Regarding the report of the orthopeadic surgeon, there is nothing to suggest that the occupational therapist’s opinion that the plaintiff is only suitable for sedentary employment, has any factual basis. There is also insufficient factual basis to conclude that the diminished strength of the plaintiff’s left arm and wrist would preclude her from being able to perform “supporting”, “supervisory” or “managerial” functions, even in an agricultural environment. It was always clear that the plaintiff was never going to be a general farm labourer.

Findings: Of the three scenarios postulated, scenario two is the one which is factually supported.   The actuary has calculated that the plaintiff’s uninjured income potential, based a scenario 2, would be R7,109,582, after he had applied a 15 % contingency deduction. The court however parts ways with the actuary where he calculated, based on the views of the occupational therapist and the industrial psychologist, that the plaintiff’s post-accident income would only be a percentage of a projected income of R1,104,542. The projected future post-accident income of the plaintiff would be the same as in the pre-accident scenario, but with a higher contingency deduction to be applied. The court considers that doubling the contingency deduction to 30% would be a sufficiently “higher” contingency.

Award: The defendant shall pay the plaintiff in the amount of R2,238,368 in respect of loss of earnings.

Facts: The plaintiff was born on 16 March 1989. At the time of the accident the plaintiff was employed as an Approach Radar and Procedural Controller at the Air Traffic Navigational Services, Bloemfontein International Airport. The plaintiff was single at the time. The plaintiff has since got married and they emigrated to New Zealand in 2023. Initially he was employed as a Procedural Approach and Aerodrome Controller in Invercargill, which employment he started in June 2023.  After approximately seven months an internal position opened as a Wellington Approach Radar Controller in Christchurch. He applied for the position and was successful and they moved to Christchurch in March 2024 and at the time of the drafting of the addendum report, the plaintiff was still busy with training in the new position.

Claim: The plaintiff claims damages for injuries he suffered as a result of an accident which occurred between the motorcycle he was driving and a motor vehicle in 2017. The parties previously settled the merits in favour of the plaintiff on an 80/20 percentage basis. The only remaining issue in dispute is the determination of the contingency to be applied in respect of the plaintiff`s post-morbid future loss of earnings. In this regard the plaintiff contends that the just and fair contingency percentage to be applied is 22.5%, whilst the defendant contends that 17,5% is the just and fair contingency deduction.

Discussion: The occupational therapist concluded that the plaintiff, seven years’ post-accident, continues to struggle coping with the demands of his everyday life and this is eroding his autonomy.  She further opined that ongoing sequelae which have developed post-accident should be seen as confirmation of the accident being a watershed event in his life, also as his difficulties is expected to be of a permanent nature and there is a risk that his level of functioning will continue to decline. With regard to his work ability, she concluded that the sequelae from his brain injury will prevent him from becoming a commercial pilot. With regard to his cognitive and emotional challenges, the plaintiff indicated to Ms Wassermann that his job requires high levels of focus and concentration, which he struggles to maintain. The plaintiff further expressed to Ms Wassermann that he must work significantly harder than his colleagues to achieve the same results which is a substantial mental challenge. The plaintiff worries that if he does not succeed in his current position, he has no other career path to fall back on and it has been a big mental challenge for him not to give up.

Findings: Regarding the future employment functioning of the plaintiff, Ms Wassermann opined that he would continue experiencing difficulties with his work tasks. His concentration and cognitive difficulties are specifically of concern as his work requires a great deal of focus, problem-solving and cognitively demanding tasks. It seems less likely that he will be successful in securing employment at a prestige airport such as Dubai (as he aspired to). She opined that if he makes a gross mistake he could lose his employment and even his licences to work. Should he lose his current employment, he will likely experience difficulty securing alternative employment, which may result in a period of unemployment or even under-employment. A contingency deduction in respect of the plaintiff’s post-morbid future loss of earnings of 22,5% be applied, as contended by Mr Thompson, who appeared on behalf of the plaintiff.

Order: The defendant is liable to pay 80% of the plaintiff`s proven or agreed damages. The plaintiff`s attorney of record is ordered to forthwith request the actuary, Mr J Potgieter, to prepare an actuarial calculation on the postulations as agreed upon between the parties, but with a 22,5% contingency for plaintiff's post-morbid future loss of earnings.

Facts and issue: The appellant launched a claim under the Road Accident Fund Act, 56 of 1996 for damages, pursuant to injuries that the appellant suffered in an accident. The claim was instituted more than eleven years after the cause of action arose. The respondent did not enter an appearance to defend the action, it did not participate in the proceedings before the court a quo, nor did it appear in this appeal. The court a quo dismissed the claim without giving judgment. The appellant launched the present appeal.

Discussion: The appeal is brought on two grounds. Firstly, that the issue of prescription had not been pleaded, and that a court is not at liberty to raise prescription mero motu; and secondly, that the court a quo had not considered that there were two alternative claims in respect of which prescription could not be determined simply on a consideration of the facts pleaded in the summons. The Constitutional Court held that the provisions of section 23 (1) of the RAF Act were inconsistent with section 12 (3) of the Prescription Act, and that, as provided by section 16 of the Prescription Act, claims in terms of the RAF Act therefore were subject to the prescription period provided for in section 23 (1). As a consequence, a court hearing a matter under the RAF Act is also not, by virtue of section 17 (1) of the Prescription Act, entitled to take notice of prescription of its own volition.

Findings: There is a further aspect to the matter. The alternative claims are, firstly, contractual, and secondly, delictual in nature. One cannot, from the papers alone, determine when the alleged contractual breach occurred in respect of the first alternative claim, nor when the respondent allegedly breached its duty of care in terms of the second alternative claim. Even if it was open to the court a quo to take notice of prescription mero motu, there were no facts upon which the court a quo could have determined a date upon which the alternative claims fell due, and as a consequence, it could not have come to the conclusion that the alternative claims had prescribed.

Order: The appeal is upheld. The matter is referred back to the default judgment court for determination.