ACTUARIAL CASE LAW REVIEW

Facts: Mr Sibanyoni testified that he worked as a gardener in Bedfordview for about two years ago. During his employment, he used the train to travel from his home in Soweto to work almost daily. He purchased a monthly train ticket. He took the train at Merafe Station in Mapetla Soweto and alighted at Johannesburg Park Station, where he caught a second train to Geldenhuys Station, which was within walking distance of his workplace. On the day of the incident, in 2015, Sibanyoni travelled by train with two others to Bedfordview. They worked until late afternoon and took a train from Geldehuys to Park Town, where they would make a changeover. The train they took was full of people travelling to Soweto and Vereeniging, and when it got to New Canada Station, commuters travelling towards Vereeniging had to alight to get on another train. The doors of the train used to be open during those days. There was pushing and shoving on the train. As he was standing in the middle of the compartment, he could not hold on to any handrail. The commuters who were meant to change over, as they rushed to get off the train, pushed him outside and he fell onto the platform facing down and could not move his left hip side.

Claim: An action in which damages are sought for bodily injuries. It raises the question of whether PRASA has a legal duty to act positively to prevent physical harm being sustained by train passengers who are pushed out of a moving train. The parties separated the issues relating to merits and quantum by agreement. Accordingly, the only issue for determination is whether PRASA is liable for the bodily injury sustained by Mr Sibanyoni.

Discussion: PRASA denied that the cause of this incident was due to the sole negligence of its employees or agents. It avers that its employees did not breach the alleged duty of care owed to Sibanyoni as alleged in his particulars of claim, and the incident was caused by his exclusive negligence in that he failed to avoid it and to keep a proper lookout. Alternatively, if the court finds that it breached its duty of care, PRASA pleaded that such breach or negligence was neither the cause of the incident nor that same contributed thereto. Ms Mayihlole testified that she was an employee of Vusisizwe Security Company and on that day she was deployed as a security officer at New Canada station. She conceded that there were instances where people were pushed out of the train, and other commuters screamed and shouted, while others approached the office to report the incident. She was certain that the incident did not happen because, considering the time the incident occurred, it being rush hour, the commuters would usually scream, triggering her attention to the scene.

Findings: Sibanyoni was a satisfactory witness. Phillip and Tshepo were also reliable and credible witnesses. The evidence that Phillip and Jacob called Tshepo for assistance and took him in Tshepo’s car from New Canada station to Baragwanath Hospital is not disputed. Mayihlole conceded that New Canada station had eight platforms and during rush hours, she could not have sight of all platforms at the same time, and that incidents have previously happened where people fell out of trains because of people pushing and shoving in a rush to get out of the train. Her insistence that the incident did not happen simply because she did not see it is not probable, given the number of platforms she had to monitor simultaneously during rush hour. Considering all the evidence, this court has no basis to reject Sibanyoni’s version, as it is more credible and probable. He was travelling in an overloaded train with open doors, was pushed by commuters and fell on the platform, resulting in his injuries. PRASA, its employees and agents knew or ought to have known about the trains moving with open doors and overloaded. Further, such circumstances exposed commuters to the danger of being pushed outside the trains and sustaining injuries. The reasonable employees and agents of PRASA would have foreseen the possibility of such causing harm, but they failed to take measures to prevent it.

Order: PRASA is liable to pay the plaintiff 100% of such damages as he may establish in due course arising out of his fall at Canada train station. PRASA shall pay the plaintiff’s costs of the suit.

MAHOSI J

Facts and issue: The plaintiff instituted action against the defendant for the payment of damages as a result of injuries sustained arising from a motor vehicle accident. The issues remaining in dispute are the quantum of the claim for past hospital and medical expenses; the quantum of the claim for loss of earnings/earning capacity; and the quantum of the claim for general damages.

Pre-accident: The plaintiff was successful in respect of the positions he held at different companies/ businesses throughout his employment career. He evidently seized different challenges and opportunities and had the ability to overcome retrenchment and other obstacles which occurred from time to time. Prior to the accident the plaintiff maintained a high level of physical activity and fitness and enjoyed playing golf and cycling. He did not have any significant medical history apart from a posterior Cruciate Ligament injury to his right knee.

Post accident: The plaintiff had been intubated and ventilated at the accident scene and a Glasgow Coma Scale of 14/15 was recorded. His level of consciousness deteriorated. He suffered a traumatic head injury, a moderately severe brain injury and no further neurosurgical intervention will improve his neurocognitive deficits. The trauma of the accident caused not only physical issues, but also neuropsychiatric and physiological issues. His psychiatric injuries have rendered him a less capable person socially, intellectually and executively. The plaintiff presents with significant cognitive-communicative deficits and significant expressive and receptive communication impairments. The plaintiff’s cognitive-communicative deficits and communication impairments are pathological and neurogenic in nature and fully in keeping with the traumatic brain injury he sustained in the accident. These deficits and impairments can be considered permanent in nature.

Findings: Then plaintiff returned to work in January 2019 and was extensively accommodated by his employer. Further career progression is not envisaged. Although his renumeration was not adjusted, despite being responsible for a much smaller client, the plaintiff’s annual increases were lower than prior to the accident. It is assumed that this pattern will persist and that the plaintiff would thus continue to suffer a future loss of income resulting from lower annual increases than the other senior managers. The actuarial calculation filed by the plaintiff includes the assumption that the plaintiff’s earnings will increase by 1,5% to 2% lower than his peers. Increases have been assumed in line with long-term earnings inflation assumption.

Award: The defendant shall pay to the plaintiff the amount of R5,236,900 in respect of past and future loss of earnings/earning capacity.

Facts and issue: The plaintiff instituted a personal injury claim against the defendant arising from a motor vehicle collision. The plaintiff alleged that whilst driving his motor vehicle, an unknown motor vehicle driven by an unidentified driver driving at a high speed suddenly drove into his lane of travel. While trying to avoid a head-on collision, he collided with a stationary truck parked next to the road. As a result, the plaintiff suffered an injury on top of his left eye and a deep wound on the eyelids. The cause of the accident, pleads the plaintiff, was the sole negligence of the insured driver. The defendant is disputing liability.

Discussion: In defending the action, the defendant contested that the plaintiff was under the influence of alcohol. Therefore, the accident was caused by the plaintiff losing control of his motor vehicle and colliding with a stationary truck. It denied that there was an unidentified insured driver driving another unidentified motor vehicle. The evidence presented by the plaintiff was his own testimony about the accident. His evidence is not consistent. He could not explain the differences in the evidence. He based his claim, as contained in the particulars of claim, on averments different from his testimony and other pieces of evidence he disclosed in support of his case. There is no explanation why the allegations in the affidavit were not pleaded in the particulars of claim if he believed that was what happened on the night of the accident. Instead, different averments were made in the particulars of claim. The plaintiff’s evidence was self-contradictory, with inconsistent statements. He was not a credible witness.

Findings: The probabilities of the plaintiff’s version require further remark in that there was uncontested evidence that the plaintiff was under the influence of alcohol. The contradictions and inconsistencies in his evidence remain unexplained. The court finds that the plaintiff lost control of his motor vehicle, and whilst trying to control it, he drove into the stationary truck. Had there been another unknown vehicle, his testimony would have been to that effect. However, the plaintiff did not testify to that effect. Therefore, there was no unidentified driver whose negligent driving caused the collision, resulting in plaintiff’s injuries on the day in question.

Order: The plaintiff’s claim is dismissed with costs.

Facts and issue: This is an action for damages arising from a motor vehicle collision where the plaintiff was a pedestrian. As a result, he suffered personal injuries and claims damages in the amount of R2,475,575. The merits and future medical expenses had been settled at 80/20, which is 80% in favour of the plaintiff. The matter was before the court for determination of loss of income and general damages. The defendant argued that the plaintiff’s claim be dismissed as the plaintiff’s hospital records were not before the court. The ones the plaintiff relied on were for a certain Ndzimande or Nkosi. The plaintiff’s affidavit was not sufficient to explain the discrepancies.

Discussion: The plaintiff must prove his claim of loss of income and general damages on a balance of probabilities. The hospital records did not reflect the name of the plaintiff as a patient or a person who was treated for personal injuries from a motor vehicle accident. Prima facie, the records are not of the plaintiff. They are for Sandile Nkosi and or Sandile Ndzimande. Undoubtedly, they are integral to the plaintiff’s experts’ reports. All his experts, except the actuary, considered same when they did the assessment, formulated their opinions and compiled the reports. Notably, no experts raised any issue regarding the fact that the names in the hospital records differed from the person they alleged to have interviewed, except the industrial psychologist. The hospital records relied on were not that of the plaintiff.  The issue of different names in the records is a material discrepancy on an important document, which confirms whether the plaintiff was the same person who was involved in a motor vehicle accident, sustained injuries and whose relatives and the ambulance brought him to receive medical treatment at Ermelo Hospital.

Findings: The plaintiff was not the person who was treated at Ermelo Hospital on 2 April 2023 and discharged in May 2023, but the person or persons mentioned in the hospital records. The question the court entertained was whether, under the circumstances and considering the whole body of evidence, it was competent to absolve the defendant or dismiss the claim. Even if the plaintiff intends to reinstate the claim later, without prejudging, the evidence presented is unlikely to change. If the evidence remains the same, there are no prospects of success. Even when the court considers the absolution in the interest of justice, by considering prospects of success in the future. Given the evidence and the particularity in the hospital records and the two persons, Nkosi and Ndzimande, in one set of hospital records, there appear to be no prospects of success. Therefore, his claim stands to be dismissed as he had not made out a case for loss of earnings and general damages.

Order: The plaintiff's claim for loss of earnings and general damages is dismissed.

Facts and issue: The plaintiff is a taxi driver. Prior to the collision, he was the owner of four taxis, but on his return home after his hospitalisation, one taxi had been stolen and two others had been damaged in collisions. He is making use of one taxi. This taxi was not roadworthy for some time. He, being a qualified mechanic, repaired it. The plaintiff was 32 years old when he was injured in a motor vehicle collision. He is now 43 years old. He instituted action against the Road Accident Fund to claim damages allegedly suffered as a result of the injuries sustained in the collision. The only outstanding issue is the claim for general damages.

Discussion: The plaintiff was a bodybuilder prior to the collision. He cannot do any bodybuilding anymore but keeps himself fit with aerobic exercises. He services and repairs his own taxi when required but finds it difficult to work for too long with tools such as spanners. He also finds it difficult to drive for a long time. According to him, he still experiences daily pain in his right shoulder and cannot sleep on his right side. When referred to the report of Dr Ziervogel, he merely stated that he personally was the one feeling the pain daily. Fact of the matter is that the plaintiff has been operating his taxi for many years since the collision and this is still the situation. According to him, he usually conveys two loads of people in the mornings and two to three loads during the afternoons although it is not always possible to work a full day. He works every day of the week.

Findings: One golden thread running through the collateral evidence relied upon by the experts and confirmed by the plaintiff in his oral testimony is the frequent and almost daily headaches from which he is suffering, as well as the pain and discomfort experienced because of his right shoulder injury. He, for example, finds it difficult to write. The plaintiff’s evidence confirmed the behavioural changes provided as collateral evidence to the experts. There is no reason to reject his version. The plaintiff has incurred a loss of amenities of life. According to the doctor, the plaintiff will have to use chronic medication for the remainder of his life.

Award: The defendant shall pay the plaintiff the amount of R850,000 for general damages in respect of shock, pain, suffering, disfigurement, disability and loss of amenities of life.

Facts and issue: The plaintiff, a farmer, instituted action against the defendant for the payment of damages as a result of injuries sustained arising from a motor vehicle accident. The court is called upon to determine the award to be made in respect of the claim for past and future loss of earnings/earning capacity. The plaintiff was ejected from the vehicle because of the collision. He sustained a head injury and lost consciousness. He has no recall of the events occurring immediately after the impact. He was taken from the accident scene by ambulance to the Mediclinic Hospital. He was assessed and stabilized in the emergency room at the hospital and a cervical collar was applied. A Glasgow Coma Scale of 12/15 was reported on arrival at the hospital.

Post-accident: Apart from the serious injuries sustained in the accident, the plaintiff experienced far reaching sequelae as is evident from the medico-legal reports submitted by the plaintiff. The plaintiff experiences headaches associated with dizziness and loss of balance. He struggles to open his left eye because of the head injury. He experiences chest pains and shortness of breath which causes him to struggle to perform physical tasks. The plaintiff returned to his pre-accident occupation as a farmer after approximately 12-18 months. He can no longer do the physical work on the farm as the injuries sustained in the accident limit his movement and abilities to a great extent. He sold 755 of his cattle as he was unable to handle all the animals. He furthermore sold two of his farms and relies upon the assistance of his son to continue with his farming operations.

Assessment: The deficits impact upon his work and psychological functioning and should be regarded as irreversible. The plaintiff is unable to remember the formulas to calculate the dosage of herbicides and is no longer able to do basic calculations. He forgets specific tasks in the daily executive planning of functions on the farm. He is constantly searching for his keys. The plaintiff has been a farmer throughout his working life and farming has become a part of his identity and livelihood. The impact of his lack of performance has left him hopeless and despondent. The plaintiff experiences pain and suffering, discomfort, loss of amenities of life and will continue to experience these because of the accident-related injuries. He has reduced physical work ability and is thus an unequal competitor and a very vulnerable competitor in the open labour market.

Award: The defendant shall pay to the plaintiff the amount of R4,754,382.40 made up as follows: Past and Future Loss of Earnings/Earning Capacity: R3,554,382.40; General Damages: R1,200,000.

Facts and issue: A minor child, P, aged seven years and four months at the time, was a passenger in a motor vehicle that was involved in an accident. The plaintiff is the mother and natural guardian of P, and as such sues in her representative capacity and claims damages from the defendant as a result of the injuries sustained by P. The court is called upon to adjudicate the two outstanding issues, namely the plaintiff’s claim for general damages and loss of future earnings, with reference also to the contingencies to be applied.

Post-accident: It is not in dispute that P sustained bodily injuries because of the accident. These included a traumatic concussive brain injury, degloving injury to the head, right subgaleal heamatoma with pneumocrania, severe depressed comminuted frontal and parietal skull, underlying cortical injury and contusion, brain herniation of the right parietal lobes into the subcutaneous tissues, lacerations and hemiparesis (slight, right arm and leg).

Expert evidence: Ms Mattheus confirmed her expert report filed and the conclusions reached by her. But for the accident, and "given the very limited information available", the minor would have completed mainstream education until Grade 12, and if given the opportunity to pursue tertiary studies, she would have been able to attain a Higher Certificate (NQF5) or a Diploma (NQF6) before entering the open labour market. Having regard to the accident, she opined that the plaintiff will only obtain a NQF2 qualification. Ms Theron testified that with P's anticipated highest post-morbid qualification and accompanied challenges, she would have to rely on sympathetic employment.

Scenarios: The proposed postulation regarding P’s tertiary education, namely that of both Scenario 1 (the NQF5 qualification- a certificate) and the NQF6 (diploma) qualification, is well-founded. The postulations of Ms Theron in respect of the applicable Paterson scales, are likewise accepted, as well as her testimony. Mr Immerman in his actuarial report indicates that he was instructed to calculate the plaintiff’s future loss of income based on the information provided to him by the plaintiff’s attorneys of record. The basis of his calculations was that P would retire at the age of 65. Mrs Theron postulated two possible scenarios in respect of the calculations to be done respectively in the income but for the accident and income having regard to the accident. Basis I is premised on a certificate level of education, whilst basis II deals with a diploma level of education.  This included an instruction to apply contingency deductions on the value of plaintiff’s income “but for the accident” scenario at 25% and in respect of the value of the income “having regard to the accident” at a 70% deduction.

Order: The defendant shall make payment to the plaintiff, in her representative capacity on behalf of the minor, the amount of R6,018,475. This is composed of future loss of earnings of R4,218,475 and general damages of R1,800,000.