ACTUARIAL CASE LAW REVIEW

Facts: The plaintiff, acting on behalf of her minor child, A, instituted a claim against the MEC for Health for the Province of KwaZulu-Natal for damages arising from brain injuries sustained by A during her birth at Christ the King Hospital. Liability was resolved 100% in favour of the plaintiff, and an interim payment of R2.5 million was made. The trial proceeded to determine quantum, focusing on life expectancy, general damages, loss of earnings, caregiving expenses, case management, home adaptations, transport requirements, and the costs of attending a special needs school.

Issue: The court was required to determine the appropriate quantum of damages for the plaintiff, including life expectancy, general damages, loss of earnings, caregiving expenses, case management, home adaptations, transport requirements, and the costs of attending a special needs school. The key issue was the life expectancy of A, as this would impact the calculation of future medical expenses, caregiving costs, and other related damages.

Discussion: Evidence from multiple expert witnesses was heard, including physiotherapists, occupational therapists, speech therapists, and life expectancy experts. The plaintiff’s experts, including Dr. Campbell, estimated A’s life expectancy at 19.4 additional years, while the defendant’s expert, Dr. Botha, estimated it at 12 to 16 additional years. The methodologies used by both experts were evaluated, with Dr. Campbell’s approach being based on established literature and peer-reviewed studies, while Dr. Botha’s methodology was self-devised and not peer-reviewed. The necessity of various expenses was also considered, such as home adaptations, transport, and caregiving, and the appropriateness of awarding general damages.

Findings: Dr. Campbell’s life expectancy estimate of 19.4 additional years was found to be fair and reasonable, based on established literature and logical reasoning. Dr. Botha’s methodology was rejected due to its lack of peer review and inconsistencies. Damages were awarded for past medical expenses, loss of earnings, home adaptations, transport, attendance at a special needs school, caregiving expenses, case management, and general damages. The experts agreed on the requisite need for A to attend Pathways until she reaches the age of 18 years. Costs were also awarded, including the costs of two counsel, given the complexity and importance of the case.

Order: The court ordered the defendant to pay a total of R13,159,579.68. The defendant was directed to pay the amount within 30 days, failing which interest would accrue at 11.75% per annum. The defendant was also ordered to pay the plaintiff’s costs, including the costs of two counsel, with senior counsel’s fees at Scale C and junior counsel’s fees at Scale B. The trial regarding other outstanding claims was adjourned sine die for later determination.

Facts: The plaintiff, a 21-year-old woman with a history of a previous cesarean section, sought medical care during her pregnancy at Elim Hospital in Limpopo. She was classified as a high-risk patient due to anemia and her prior cesarean. On October 25, 2018, she was admitted to the labour ward after experiencing labour pains. Despite her high-risk status, she was not adequately monitored. On October 26, she experienced severe abdominal pain, indicating a possible uterine rupture, but her cries for help were ignored by hospital staff. Hours later, she was finally attended to, and an emergency cesarean was performed, but the baby was delivered as a fresh stillborn due to the ruptured uterus. The plaintiff sued the defendant, the Member of the Executive Council for the Limpopo Provincial Government: Department of Health, for delictual damages, alleging negligence by the hospital staff.

Issue: The central issue was whether the defendant's medical staff at Elim Hospital were negligent in their care of the plaintiff, leading to the death of her unborn child, and whether this negligence constituted a breach of their duty of care.

Discussion: The evidence, including expert testimonies from both parties, was examined. The plaintiff's expert, Dr. Songabau, argued that the hospital's management of the plaintiff was substandard, and the tragic outcome was preventable with proper monitoring and timely intervention. The defendant's expert, Dr. Mbokota, contended that the uterine rupture was a sentinel event that could not have been predicted or prevented, and the hospital staff acted promptly once the complication was identified. The legal principles related to medical negligence were applied, with emphasis on the duty of care owed by medical practitioners to patients and the need for reasonable skill and care. The plaintiff was classified as a high-risk patient, she had complications and was a previous C-Section patient. She was admitted in Elim Hospital to be monitored because she was a high-risk patient. She was transferred and admitted in the labour ward. The defendant therefore knew that she was a high-risk patient, with complications and was in labour, they knew she had to be monitored closely. They never discussed the mode of delivery with the plaintiff.

Findings: The hospital staff failed to provide the standard of care expected of reasonable medical practitioners. The plaintiff, as a high-risk patient, should have been closely monitored, especially after showing signs of distress. The death of the plaintiff's unborn child was caused by the negligence of the staff of the defendant in failing to properly and timeously care for the plaintiff. The defendant did too little too late, which was shockingly unacceptable, and amounted to gross negligence, especially because the plaintiff was all along admitted in hospital. The outcome could have been prevented with timely intervention, and the defendant was therefore liable for the plaintiff's damages.

Order: The court ruled in favour of the plaintiff, holding the defendant 100% liable for the proven damages. The defendant was ordered to pay the plaintiff's costs, including the costs of expert witnesses and legal representation.

Facts: The plaintiff sued the Member of the Executive Council for Health of the Free State Provincial Government in her representative capacity as the mother of her minor child, R. The claim arose from the alleged negligence of the medical and nursing staff at Pelonomi Hospital during the plaintiff’s labour and delivery. The plaintiff alleged that the failure to properly monitor and manage her labour led to R sustaining a hypoxic brain injury during the intrapartum period, resulting in cerebral palsy, mental retardation, and epilepsy. The defendant denied negligence, arguing that the medical staff acted with reasonable care and skill. The trial focused on liability, with the key issues being negligence and causation.

Issue: The central issues were whether the defendant’s medical and nursing staff were negligent in monitoring and managing the plaintiff’s labour and delivery, and whether such negligence caused or contributed to R’s brain damage.

Discussion: The plaintiff’s experts, including Dr. Murray (obstetrician), Dr. Lewis (paediatrician), and Dr. Pearce (paediatric neurologist), testified that the hospital staff failed to monitor the foetus adequately during the critical stages of labour, particularly in the last two hours before delivery. They argued that the lack of proper monitoring and the plaintiff’s unassisted delivery in the toilet were clear indicators of substandard care, which led to the hypoxic-ischaemic injury. The defendant’s experts, including Dr. Mbokota (obstetrician) and Professor Cooper (neonatologist), contended that the injury occurred after delivery when the baby fell on the floor, and that the foetal condition was normal until 21h20. However, defendant’s evidence was speculative and not supported by the medical records, particularly the Partogram, which showed no monitoring after 20h20.

Findings: The defendant’s medical and nursing staff were negligent in failing to provide adequate care and monitoring during the plaintiff’s labour. The failure to monitor the foetus half-hourly, as required, and the lack of attention during the critical stages of labour constituted substandard care. The plaintiff’s expert evidence that the negligence caused R’s hypoxic-ischaemic brain injury, leading to cerebral palsy, was accepted. The defendant’s argument that the injury occurred after delivery was rejected, as it was not supported by credible evidence.

Order: The court held the defendant 100% liable for the damages suffered by R. The defendant was ordered to pay the plaintiff’s costs, including the costs of expert witnesses, preparation, and trial appearances.

Facts: The plaintiff, Damon, sued the Minister of Police for damages following his arrest and detention. During his detention, Damon was allegedly assaulted by a fellow detainee, resulting in severe neck and spinal injuries. He underwent surgery and required ongoing medical treatment. Damon claimed R2,600,000 in damages, including R500,000 for general damages, R250,000 for past medical expenses, R100,000 for future medical expenses, and R1,750,000 for past and future loss of earnings. The merits of the case were previously decided in Damon’s favour, and the trial proceeded to determine quantum.

Issue: The court was required to determine the appropriate quantum of damages for Damon’s claims, including general damages, past and future loss of earnings, and past and future medical expenses.

Discussion: The evidence presented included testimony from medical experts and Damon himself. Dr. Boer, a specialist physician, testified about Damon’s injuries and the need for future medical intervention, but conceded that his report was outdated and speculative. Damon claimed he could no longer work as a broker due to his injuries but failed to provide sufficient evidence of his income or employment prior to the incident. Damon relied on state-provided medical treatment and did not provide receipts or evidence of past medical expenses. The court considered previous cases to assess the appropriate award for general damages but found that Damon’s evidence was insufficient to support his claims for loss of earnings and medical expenses.

Findings: Damon was awarded R150,000 for general damages, acknowledging his pain and suffering but it was found that there was insufficient evidence to support higher claims. The claims for past and future loss of earnings and past and future medical expenses were dismissed due to a lack of substantiating evidence. The court ordered each party to bear their own legal costs, as Damon was not wholly successful in his claims.

Order: The defendant shall pay the plaintiff R150,000 for general damages. The plaintiff’s claims for past and future loss of earnings are dismissed. The plaintiff’s claims for past and future medical and related treatment are dismissed.

Facts: The plaintiff, Sekwati, instituted a claim against the Road Accident Fund (RAF) for loss of support following the death of Maja (the deceased) in a motor vehicle collision. The deceased was driving a Mazda when she collided head-on with a Scania Marcopolo Bus driven by the insured driver, Mr. Tshisikule. The collision occurred on a straight stretch of road between Makureng and Mamaolo, with good visibility. The deceased died at the scene. The plaintiff claimed that the insured driver was at least 1% negligent, contributing to the collision. The trial proceeded on the merits, with quantum separated for later determination.

Issue: The central issue was whether the insured driver was negligent, even to a minimal extent (1%), and whether such negligence contributed to the collision. The plaintiff argued that the insured driver failed to take evasive action, while the defendant contended that the collision was solely due to the deceased’s negligence in veering into the wrong lane.

Discussion: The plaintiff relied on the testimony of an expert witness, Mr. Manamela, who opined that the insured driver was negligent for failing to observe oncoming traffic and take evasive action. However, the expert’s testimony was unreliable, as it was based on hearsay and lacked a factual basis. The plaintiff closed its case after the expert’s testimony, and the defendant applied for absolution from the instance, arguing that the plaintiff had not proven any negligence by the insured driver. The court dismissed the application, allowing the defendant to present evidence. The insured driver testified that he had no opportunity to avoid the collision, as the deceased’s vehicle suddenly swerved into his lane. He claimed he could not swerve left due to a sharp drop-off or right due to oncoming traffic, and his only option was to brake suddenly. The explanation of observing the deceased’s vehicle at a 2-meter distance was unconvincing but it was accepted that he could not have taken evasive action given the circumstances.

Findings: The plaintiff failed to discharge the onus of proving negligence on the part of the insured driver. While the insured driver’s explanation of observing the deceased’s vehicle at a 2-meter distance was improbable, there was no evidence to suggest that he could have taken evasive action to avoid the collision. The plaintiff presented no evidence regarding road conditions, vehicle positions, or other factors that could support a finding of negligence. Consequently, the plaintiff had not proven even 1% contributory negligence by the insured driver.

Order: The court dismissed the plaintiff’s claim with costs, finding that the plaintiff had not established any negligence on the part of the insured driver that contributed to the collision.

Facts: The plaintiff, Rathlogo, was involved in two motor vehicle accidents in 2007. The first accident occurred on March 3, 2007, while he was driving, resulting in head injuries. The second accident, which is the subject of this case, occurred on December 8, 2007, when the plaintiff was a pedestrian and was hit by a taxi from behind. He sustained severe injuries, including a fractured jaw, injuries to his left arm, and loss of consciousness. He was hospitalized for two months. The plaintiff filed a claim for general damages against the Road Accident Fund (RAF), seeking R250,000. The RAF had previously been ordered to pay 50% of the plaintiff’s proven damages.

Issue: The issue before the court was to determine the appropriate amount of general damages to be awarded to the plaintiff for the injuries sustained in the December 2007 accident, considering the RAF’s liability for 50% of the proven damages.

Discussion: The plaintiff testified about his injuries, including chronic headaches, memory loss, loss of smell and taste, jaw pain, and difficulty chewing. Medical reports from a neurosurgeon and a maxillofacial surgeon confirmed the injuries and recommended further surgical procedures to correct his jaw. The medical evidence highlighted the plaintiff’s ongoing pain, difficulty chewing, and the need for further surgical intervention to correct his jaw. The plaintiff’s main complaint was his inability to chew properly due to his jaw injury, and the maxillofacial surgeon recommended urgent corrective surgery, which had not been performed by the time of the trial.

Findings: The plaintiff’s injuries, particularly the jaw injury and its impact on his quality of life, warranted an award of general damages. After considering the medical evidence and comparable cases, it was determined that an award of R190,000 would be fair and adequate compensation for the plaintiff’s pain, suffering, and loss of amenities of life. However, since the RAF was liable for only 50% of the proven damages, the award was reduced accordingly.

Order: The court ordered the defendant (RAF) to pay the plaintiff the sum of R95,000 (50% of R190,000) for general damages, along with costs on a party and party scale at Scale A.

Facts: Marais, the appellant, sued the Road Accident Fund (RAF) for damages following a motor vehicle collision. The appellant claimed R 6,883,196.42 for past and future medical expenses, loss of income, and general damages. The RAF admitted 100% liability for proven damages, and the trial court was tasked with determining the quantum. Before the trial, the parties agreed to limit the issues to be adjudicated, specifically focusing on the contingencies to be applied to the actuarial calculation of the appellant’s loss of earnings. However, the trial court went beyond the agreed scope, finding that the appellant’s resignation from his job constituted a novus actus interveniens (a new intervening act) and dismissed his claim for loss of earnings. The appellant appealed this decision, arguing that the trial court erred by adjudicating issues outside the agreed parameters.

Issue: The central issue was whether the trial court erred by adjudicating matters beyond the scope of the parties’ pre-trial agreement, particularly by finding that the appellant’s resignation constituted a novus actus interveniens and dismissing his claim for loss of earnings.

Discussion: The trial court’s judgment had overstepped the agreed limitations. The parties had confined the trial to determining the appropriate contingencies for the actuarial calculation, and the trial court was not entitled to adjudicate on issues such as the appellant’s resignation or causation of loss. The principle of pacta sunt servanda (agreements must be honoured) was emphasized, and precedents were cited that limit a court’s authority to issues raised by the parties. The uncontested expert evidence, including reports from orthopaedic surgeons, occupational therapists, and an industrial psychologist, established that the appellant’s injuries rendered him unable to perform his pre-accident work.

Findings: The trial court erred by adjudicating issues outside the scope of the parties’ agreement. The uncontested expert evidence proved the appellant’s case, and the trial court should have limited its decision to determining the appropriate contingencies. The court agreed with the appellant’s suggested contingencies of 10% for past loss and 25% for future loss in the uninjured scenario, with no contingencies applied to the injured scenario.

Order: The appeal was upheld, and paragraphs 1, 2, and 3 of the trial court’s order were set aside. The appellant’s claim for past and future loss of earning capacity was referred to Munro Actuaries for recalculation based on the agreed contingencies. The RAF was ordered to pay the appellant’s costs, including the costs of the appeal and the applications for leave to appeal. The actuarial calculation, once finalized, would be made an order of court, with an interim payment of R 1,000,000 deducted from the final amount.