ACTUARIAL CASE LAW REVIEW

Facts and issue: The plaintiff, in her capacity as mother and guardian of the minor child, instituted action against the defendant for damages following the birth of the minor. The plaintiff claimed that the defendant, through its agents and/or personnel at the Botshabelo Hospital, under the jurisdiction of the defendant, negligently caused the minor to suffer from cerebral palsy. The defendant has conceded liability on the merits. The quantification of the loss of earnings and applicable contingencies constitutes the only remaining issues between the parties.

Discussion: The industrial psychologists agreed that the minor has been ‘rendered uneducable, untrainable and unemployable, due to the incident that occurred leaving the minor with cerebral palsy requiring a full-time care giver.’ It is agreed by the industrial psychologists that it is generally known that children equal or obtain higher qualifications than their parents, which would probably have been the case with the minor. The calculation of the minor’s loss of earning capacity is based upon the agreement reached between the industrial psychologists having agreed that certain factors should be considered as the basis for computation. The minor’s life expectancy is until the age of 31.1 years. As a result of her injuries, she is unemployable. The minor would have attained a National Senior Certificate (NSC) (NQF level 4) in 2027(at age18). Tertiary education was a possibility rather than a probability and employment would be based on obtaining a Grade 12 level of education. The minor would have secured employment in the formal labour market after a period of two to five years.

Findings: The court agrees with the contention on behalf of the plaintiff that the high rate of unemployment in South Africa and the minor’s earning capacity being diminished or interrupted by are the normal vicissitudes of life taken into account by applying a contingency deduction of between 15% and 20%, being the normal contingency deduction. There are no special circumstances present to indicate that a higher contingency deduction ought to be implemented. In the circumstances, a 20% contingency deduction should be applied to the actuarially calculated loss of earnings.

Order: The defendant is ordered to pay the plaintiff, in her representative capacity, the amount of R635,740 in full and final settlement of the plaintiff’s claim for loss of earnings.

Facts and issue: The plaintiff (Ms Lambrechts) pleaded was involved in a motor vehicle collision. Ms Lambrechts sustained a head injury and had loss of consciousness for an hour. Her memory is affected. She does not recall events around the accident. She sustained a compression fracture of T9 in an accident that occurred in 1995 when she was 18 years old. She didn’t submit a claim to the Road Accident Fund for the accident in 1995. The issue pertains to the quantum for loss of income suffered by the plaintiff.

Discussion: The plaintiff sustained an injury to her back, neck and head at the age of 18. She continued to experience symptoms until the accident on 24 December 2017. She could possibly have sustained a compression fracture of T9 due to the high-speed impact. Ms Lambrechts is struggling with a severe PTSD, exacerbated by pre-morbid psychic fragility. It would appear her employment may have been at risk pre- accident. Post accident, it appears her inability to cope resulted in her leaving. Psychiatrically, Ms Lambrecht presents with an agitated depressive syndrome in keeping with recurrent Major Depressive episodes with anxious distress or a mixed mood state. Ms Lambrechts has the physical ability to perform administrative or sedentary type of work with reasonable accommodations in workplace. She suffers from ongoing discomfort and pain, and she needs to adjust her postures regularly during an eight-hour day. For future employment she will require an employer who is more understanding and supportive of her challenges and willing to allow reasonable accommodation in the workplace.

Findings: Ms Lambrechts reported that she was in a motor vehicle accident at the age of 18 years in 1995 and paralyzed for a month due to a neck, head and possible back injury. For this accident, 50% apportionment will be considered due to her previous back and neck pathology. As a result of the present accident, Ms Lambrechts has been compromised. She is probably limited to finding very simple and routine employment that only pays according to the National Minimum Wage. She should be fairly compensated for the decline in her earnings and eventually may become unemployable sooner, and it is therefore recommended that a higher than usual post morbid contingency deduction be applied. Based on the plaintiff’s medical expert reports on the impact that the plaintiff’s pre-existing conditions, the court must apply a higher contingency for future pre morbidly, 25% and future post morbidly 40% contingency.

Order: The defendant is liable for 60% of such damages as the plaintiff may be able to prove. The defendant shall pay to the plaintiff the amount of R1,342,892.46 for loss of earnings.

Facts and issue: This is an application for rescission of a default judgment brought by the applicant, the Road Accident Fund. The judgment was granted in favour of the respondent. Counsel for the applicant, in his application for leave to file a supplementary affidavit, submits that the purpose of the supplementary affidavit is to assist the court to have a full picture of the factual matrix. The main issue for determination is whether the applicant has met all the legal requirements in terms of common law, for the rescission of the default judgment.

Discussion: Counsel argues that it is in the interest of justice that the court determines the application with all the relevant facts before it, inclusive of those facts reflected in the supplementary affidavit. Counsel submits that the issue raised in the supplementary affidavit is relevant to the issue of rescission, which the court is called upon to determine. In weighing up the prejudice of allowing the supplementary affidavit on the respondent versus the prejudice on the applicant, the balance tips in favour of the applicant. The applicant’s supplementary affidavit does not significantly prejudice the respondent, and it will in fact assist the court in reaching a decision. It should thus be allowed. The respondent’s non-compliance with Rule 28(2) deprived the RAF of its right to contest the amendment and this led to a judgment that may not reflect the true extent of the applicant’s liability. Upholding such a judgment would undermine the principles of fairness and justice, as it would enforce an order obtained through procedural irregularities.

Findings: The respondent’s failure to comply with Rule 28(2) is a critical procedural flaw that cannot be overlooked. This non-compliance renders the purported amendment invalid, and the default judgment with such an amendment must be rescinded. The facts set out in the applicant’s founding and supplementary affidavits constitute an applicant’s commitment to satisfy the requirements for rescission of the default judgment in terms of common law. The applicant has shown good cause in the form of a potential or possible triable case with prima facie prospects of success in the main action. The respondent’s non-compliance with Rule 28(2) and the subsequent granting of the default judgment necessitates the rescission of the judgment. The applicant has demonstrated that the judgment was granted owing to procedural irregularities, which if known to the court at the time, would have precluded the granting of the judgment.

Order: The applicant is granted leave to file its supplementary affidavit supplementing its founding affidavit. The order is rescinded and set aside.

Facts and issue: The plaintiff instituted action in her representative capacity as mother of a minor child against the defendant for the payment of damages the minor suffered as a result of a motor vehicle collision. The minor was a passenger in the vehicle. The minor was admitted to Van Velden hospital and according to the hospital records the minor suffered a head injury and an injury to the right eye during the accident. The minor was 8 years old and a grade 2 learner at the time of the accident. The court addresses the issue of the child’s loss of income.

Discussion: To determine the impact of the head injury on the minor’s earning ability, the plaintiff presented the evidence of an educational psychologist, Ms Masipa. The evidence of an industrial phycologist, Ms Lowane-Mayayise was presented to provide an opinion on the probable career paths of the minor pre-and post- accident. Both the opinions of Ms Masipa and Ms Lowane-Mayayise are problematic insofar as they considered only one pre-accident scenario, to wit that the minor would have obtained a degree. It is not clear from their respective reports why other scenarios were not considered. The minor’s mother has a grade 11 highest level of education and although Ms Lowane-Mayayise indicated that the father’s highest level of education is unknown, Ms Masipa indicated that the minor’s father obtained a grade 12. It is common cause that the minor’s father worked as general worker prior to his demise in 2007. The minor’s sister was condoned to grade 12 and has a grade 12 qualification.

Findings: There is no indication in the minor’s pre-accident scholastic performance that the most probable pre-accident academic path would have been that of obtaining a degree. Not every child in South Africa that has the ability to obtain a grade 12 qualification automatically proceed to obtain a degree. Even if a degree is obtained, the minor’s career path envisaged by Ms Lowane-Mayayise in her report is not a given. There are no facts that support the opinions of Ms Masipa and Ms Lowane-Mayayise. Having had regard to the minor’s family history, the lack of any facts that establishes the minor’s probable pre-accident scholastic and career path coupled with a balanced and more realistic approach to the career path of a person that obtains a grade 12 qualification, the court deems it fair and just to deduct 50% from the pre-accident future income.

Order: The defendant is ordered to pay an amount of R4,270,075 to the plaintiff in respect of the minor’s loss of earning capacity.

Facts and issue: This is an action for a claim for damages arising from personal injuries sustained by the plaintiff in a motor vehicle accident. The issue of liability has already been settled between the parties and the defendant conceded to the 100% in favour of the plaintiff. The court is required to determine the quantum of damages suffered by the plaintiff. The plaintiff was 25 years old at the time of the accident. The plaintiff left school when he was in grade 9. His highest level of education is grade 8. The evidence indicated that prior to the accident the plaintiff was sympathetically employed as a taxi driver.

Discussion: The plaintiff was unemployed at the time of the accident. From the said accident, the plaintiff sustained brain injury and soft tissue injuries. He remained unemployed for three years after the accident and was later assisting his uncle transporting school children and people to work, for only three months thereafter. The Actuaries are of the view that the plaintiff is entitled to claim the amount of R1,904,013 for past and future loss of earning. The Actuaries calculations were arrived at on the basis that the plaintiff was employed as a taxi driver from 2014 until the date of the accident. Further, that post accident, the plaintiff has remained unemployed and has been rendered totally unemployable because of the accident. The Actuaries relied on the opinion evidence of the industrial psychologists, who obtained information from the plaintiff. According to the industrial psychologist, the plaintiff was unemployed at the time of the reported accident and was seeking employment as a light motor vehicle driver or taxi driver. The industrial psychologist indicated that the plaintiff has suffered no actual loss of earnings because of the accident because he was unemployed at the time of the reported accident, although he was still seeking employment.

Findings: The court is not satisfied that with the opinion of the industrial psychologist that the earning capacity of the plaintiff had been lost to a point that his patrimony is reduced in due course. The opinion of the industrial psychologist is not properly motivated at all, it is contradictory. Some of the industrial psychologist’s conclusion were based merely on information which was supplied by the plaintiff only. Another point which works against the plaintiff is that he indicated that he has been employed as a taxi driver without having obtained a driver’s licence as well as the applicable Professional Driving Permit (PDP). This means that the plaintiff was operating a public vehicle transporting passengers without the required documentation to do so. The plaintiff was successful on the issues of liability and general damages.

Order: General damages are awarded to the plaintiff in the amount of R1,350,000.

Facts and issue: The principal dispute is whether, by way of concessions made at a pre-trial conference, the Road Accident Fund (RAF) should be deemed to have accepted the seriousness of injuries sustained by a minor as contemplated in the proviso to section 17(1) of the Road Accident Fund Act 56 of 1996. The third party contemplated in the RAF Act on whose behalf the action had been instituted is a minor. He was six years old when he, as a pedestrian, was injured in a motor vehicle accident.

Discussion: The RAF had not delivered any expert reports and did not, in writing, as agreed, dispute any of the plaintiff’s expert reports, at the agreed date and time. Reliant on the general principals regarding admissions in civil proceedings, the plaintiff argued that the consequence of the RAF’s failure, amounted to an admission that the plaintiff was entitled to claim general damages for the minor. The RAF itself had, by the exercise of a deliberate election, chose to accept the conclusion of the plaintiff’s expert regarding the seriousness of the minor’s injuries. It must be accepted that, before exercising this election, the RAF must have satisfied itself as to the correctness of that conclusion. The RAF is found to be bound to its acceptance of the assessment of the minor’s injuries as serious, and the RAF had thereby satisfied itself that the plaintiff is entitled to claim general damages on behalf of the minor.

Findings: The court finds that by utilizing the RAF’s own admissions, the plaintiff has, on a balance of probabilities, proven that the jurisdictional requirements for a claim for general damages, have been satisfied. The minor’s undisputed injuries and the consequences thereof were that he had suffered head and facial trauma, with forehead and facial lacerations, a dental injury and a mild to moderate brain injury.  Consequently, he suffers from attention and concentration difficulties, memory and learning difficulties, speech and language difficulties.  He presents with a moderate dysarthria as well as a neurocognitive disorder with behavioural disturbance.  He also suffered some hearing loss, although minimal. The plaintiff’s counsel suggested a lump sum award of between R600,000 to R800,000. Without making any formal concessions, the State attorney was of the view that an award of R700,000 would be fair and reasonable in the circumstances. The court agrees.

Order: It is declared that the defendant is liable for 100% of the plaintiff’s proven or agreed damages. The defendant shall pay the plaintiff an amount of R4,903,359.50 in full and final settlement of the plaintiff’s claim for general damages and loss of earnings.

Facts and issue: The plaintiff sued the defendant for damages arising from injuries suffered by her arising from a motor accident. The defendant filed three special pleas: substantial compliance, premature summons, and prescription. The defendant objected to the claim's validity in terms of section 24(5) of the Road Accident Fund Act 56 of 1996. The RAF pre-assessed the claim for substantial compliance with section 24 of the Act and found that the claim did not meet the requirements.

Discussion: The defendant contended that the plaintiff’s failure to complete the RAF1 Claim Form in its entirety authorized the defendant to request and be provided with information and documentation to investigate its liability (if at all), provide supporting documentation as requested by the defendant at lodgment of her claim, and then filing of contradictory reports and employer’s certificates; results in the defendant being unable to timeously investigate the claim, and determine its liability (if any). The plaintiff submitted that the RAF1 form and supporting documents such as the accident report, hospital record, medical records, and section 19(f) affidavit submitted to the defendant provided the necessary information to conduct its investigation into the merits of the plaintiff’s claim. The plaintiff has, therefore, substantially complied with the provisions of the Act. The letters of objection deal with documents such as payslips, medico-legal reports, and proof of payment of medical expenses, which refer to the quantum of the claim and are not required for the investigation of the merits.

Findings: In Road Accident Fund v Busuku it was stated that the RAF 1 form does not call for detailed information. It is not intended, of itself, to enable the Fund to assess the quantum of the plaintiff’s claim. It seeks to enable it to investigate the impact of the injuries sustained. To do so the RAF 1 form requires the disclosure of information to guide and facilitate the investigation. The purpose of s 24(5), in the context of the Act and bearing in mind the principles of interpretation set out earlier, is to enable a plaintiff who has timeously lodged a claim but has failed to comply fully with the procedural requirements of s 24(1) and (2) to remedy any deficiencies which arise from the completion of the RAF 1 form.

Order: The special pleas are dismissed.