Spartan
Caselaw
ACTUARIAL CASE LAW REVIEW
Issue 143 – Monday 25 November 2024
ACTUARIAL – Loss of income – Expert witness – Unproven evidence – Based report on hospital records which were incomplete – One virtual consultation with child and mother – Conclusion that child suffered serious brain injury is speculative – Not supported by hospital records from first treating doctor – Such evidence cannot be relied upon – No suggestion that child required further medical treatment – Demonstrates that injury is not supported by objective facts – Claim dismissed.
Accident: A child was travelling with her mother by taxi when the taxi was involved in a collision with a car. She sustained head injuries and was taken to Chris Hani Baragwanath Hospital (CHBH) where she was treated and discharged the following day. Other than being seen at St John Eye Hospital the same day after her discharge from CHBH, she did not get any further medical attention. There is no evidence from the mother that the minor patient suffered any further physical pain requiring medical attention. The child was 9 years when the collision took place, and she is now 17 years of age.
Claim: This is a claim instituted by the plaintiff, Advocate Den Hartog, in his representative capacity as curator ad litem on behalf of the child, NAH, in terms of which he claims almost R10 million for loss of earnings. The only issue for determination is the quantum for the loss of earnings as a post-morbid sequelae owing to the alleged brain damage. The plaintiff contended that the brain injury is of such severe nature that it renders the child not able to achieve university education and thus limits her future earning capacity. This is disputed by the defendant on the basis that the experts have all based their reports on the primary report of Dr Edeling, the neurosurgeon, who based his report on the hospital records, which he admitted were incomplete, and the one virtual consultation with the child and her mother.
Expert evidence: Dr Edeling, the neurosurgeon, compiled two medico-legal reports about the child he assessed to have sustained a complicated head injury. He explained that the injury progressed from a minor concussive head injury. He founded his opinion by reference to the CHBH's record on the admission of the child. He also consulted once with the child in the company of her mother. No representative was called from the CHBH to corroborate the contents of the hospital record. Dr Edeling accepted some of the contents of the hospital record and criticised the treatment given to the child. He argued that she ought not to have been discharged a day after her admission at the hospital. He conceded that the records presented were not the complete set of records. He further conceded that he could not state that because no further documented information was available to him that there was in fact no further treatment or examination of the patient. He also conceded that because of the incomplete hospital record, he could not say whether there was negligence on the treatment of the child at the CHBH.
Assessment: The plaintiff bears the onus to prove his case. He relied principally on the medico-legal report of Dr Edeling upon whose report, as a neurosurgeon, all other experts based their opinions. What is concerning about Dr Edeling’s report and evidence, is that he conceded that the hospital records of CHBH was incomplete. This is so because the ambulance records and the CHBH trauma centre records were not included in the admission records where the recordings of the injuries of the child were made. Having regard to the incomplete hospital records and the criticism that he had about the incomplete record, it is difficult to fathom the basis of the opinion that the child had suffered serious brain injury that has a post traumatic amnesia with the result that the child will not be able to pursue her studies to Bachelor’s degree level as concluded by Ms Gibson. Dr Edeling conducted only one consultation which was held virtually during the Covid-19 restrictions. It is surprising that he could reach the conclusions as he did based on this one consultation and did not explain why he saw no need for further examination. He explained the injury as moderate brain injury which propelled itself to serious brain injury due to the concussion. This is speculative as it is not supported by the hospital records from the first treating doctor.
Findings: Other than the headaches that were reported by the mother of the child to Dr Edeling, there is no suggestion that the child has been receiving medical attention in respect thereof. The only inference to be drawn is that the reported headaches are probably not of serious nature to suggest permanent damage of the brain following the accident. The fate of the evidence and the medico-legal report of all other expert witnesses must fail as they relied on what Dr Edeling, as neurosurgeon, concluded. The plaintiff has failed to prove his claim.
Award: The claim is dismissed.
SENYATSI J
ACTUARIAL – Loss of income – Ability to work – Fall from moving train – Quantum – Undisputed facts and experts’ opinions – Plaintiff been rendered functionally unemployable – Capable of undertaking medium to hard physical work not involving significant foot activity – Retains capacity to meet demands of pre-accident position as general worker – Capable of earning income after incident – Unstable employment history – R500,000.
Facts: The plaintiff was a fare paying passenger with a valid train ticket in a passenger coach when the train caught fire, and he was pushed through the open doors while the train was in motion by the other commuters who were trying to get away from the fire. The plaintiff suffered a soft tissue injury to his left ankle with no scarring. The parties have settled on the merits at 100% in favour of the plaintiff.
Pre-accident: The plaintiff’s highest qualification is Grade 10, without formal certification. The plaintiff had a job as a cleaner. The plaintiff worked from 22h00 – 06h00 from Monday to Friday. His duties consisted of cleaning the conference rooms and gambling floor using a vacuum cleaner, cleaning windows using a step ladder, and taking out trash bins. The previous employment of the plaintiff was light to medium in nature. He was employed at the time of the accident and earned R2,300 per month. After the accident the plaintiff did not return to his employment and has been self-employed ever since.
Claim: This case involves the quantum of damages PRASA must pay when a passenger is injured when falling out of a moving train. The issue of quantum is outstanding and to be decided by the court. The plaintiff is claiming a total amount of R1,838,560.
Assessment: The plaintiff indicated that he experiences pain with prolonged walking, standing and cold weather. The plaintiff indicated in the pleadings that he used to play recreational soccer and that he is no longer able to play soccer as a result of the pain that he chronically suffering in his left ankle. The medical opinion of Dr Kumbirai is that pain perception varies individually, and the plaintiff’s condition may be temporary. The plaintiff is still capable of earning an income that is similar than what he earned as a cleaner at his previous employment. The industrial psychologists’ report indicated the plaintiff is capable of doing plumbing jobs as an unqualified plumber. He is able to pay other workers R100 per day to dig trenches for him. It is thus clear that the plaintiff can still be employed, and he is capable of earning a similar income than what he did before the incident. As can be seen from the fact that the plaintiff averages up to five plumbing jobs per month, and as a result is capable of making upward of R3,000 per month.
Findings: It is clear from the evidence that the plaintiff has not been rendered functionally unemployable due to the minor injuries sustained in the accident. Although the plaintiff's condition limits his ability to perform tasks that require the extensive use of his foot, he remains capable of undertaking medium to hard physical work that does not involve significant foot activity. Additionally, the plaintiff retains the capacity to meet the demands of his pre-accident position as a general worker. With the appropriate rehabilitation, which would have been undertaken by this stage, the plaintiff is well-positioned to compete for employment opportunities within his field of work.
Award: The defendant shall pay the capital amount of R826,840 in respect of the plaintiff’s claim for delictual damages, calculated as follows: General Damages: R200,000; Assistive Devices: R19,038; Future Medical Expenses and Care: R107,802; and Past and Future Loss of Earnings: R500,000.
NKOENYANE AJ
ACTUARIAL – Expert witness – Realm of expertise – Clinical psychologist commenting on earning capacity when this not her area of expertise – Report one sided and relying on information provided by plaintiff – Another expert tendering evidence as though industrial psychologist when not so qualified – Reports outdated and collateral information differed from expert to expert – Plaintiff testifying after her expert witnesses to “close the gaps” – Absolution from the instance granted.
Liability: The plaintiff instituted action against the defendant for damages arising from the negligence of its doctors and nurses who treated her at King Edward VIII Hospital in 2009 when a caesarean section was performed. It is common cause that a post-surgical swab was left inside her body which resulted in septicaemia and various post-operative complications, including problems with her bladder and bowel functions. She was also reported to suffer from severe depressive disorder and PTSD. The parties agreed on an order awarding the plaintiff an amount of R1 million in respect of general damages.
Claim: The damages the plaintiff claimed were past hospital and medical expenses of R50,000; future hospital, medical and other related expenses of R5 million; transport expenses of R120,000; past loss of income of R1,033,790 and future loss of income of R2,409,495.
Clinical psychologist: She commented on, and her evidence appeared to be focused on, the plaintiff’s potential earning capacity and her employment, which was not her area of expertise, nor her role in terms of her mandate. She diagnosed the plaintiff with chronic depression and a severe adjustment disorder. She did no testing of the plaintiff and it would appear accepted the plaintiffs say so. Her findings and her opinion must be guarded and viewed with a great degree of circumspection. Her report is extremely one sided and only contains information provided to her by the plaintiff. Experts, despite being briefed and paid for by a particular litigant, ought to remain as objective as possible and place all relevant information before the court to enable the court to come to a just decision.
Industrial psychologist: His evidence was tendered as that of an industrial psychologist. It emanated that he was not qualified as an expert to proffer an opinion as he was not a qualified industrial psychologist. The defendant also placed on record that its expert would not have signed the joint minutes with him, had she been aware that he was not an industrial psychologist. In addition, in matters in which he had testified to in court and in which his opinion was accepted, it was not disclosed or made known to the court that in fact he was testifying about matters outside the realm of his expertise, and thus the value of his opinion in relation to the proposed career path and career progressions could not have been accepted and were inadmissible.
Further issues: It became apparent that the collateral information differed from expert to expert, and that some of the experts had not verified such collateral information, lending credence to the defendant’s submissions that this constituted hearsay. Some of the factual information relied on proved to be incorrect. The reports relied on where outdated. The plaintiff testified after all her expert witnesses had testified. What weight can one attach to her evidence when it was placed on record she had been made aware of all the evidence and the criticisms, which arose during cross-examination, and her evidence was essentially adduced to “close the gaps”? Throughout the plaintiff’s evidence, the court gained the impression that she did not want to help herself to improve and was content to harbour anger and self-pity, thereby not mitigating her damages. It emanated from her evidence that she is not medically compliant in relation to not only her ARV medication but also refused to take the medication prescribed to assist with her frequent need to urinate. The court cannot decide the matter on the available reports as the best evidence has not been placed before it.
Order: In respect of the plaintiff’s claims for past and future loss of earnings and future medical, hospital and related expenses not specifically abandoned, absolution from the instance is granted with costs.
HENRIQUES J
19 November 2024
MPHAHLELE AJ
PERSONAL INJURY – Malicious prosecution – Quantum – Charged with offence of rape – Incarcerated for 9 months – Plaintiff confined his claim to actio iniuriarum – Presented no evidence of any patrimonial damages suffered – Arrested in front of colleagues and detained in same police station – Occurred almost seven years ago – Appropriate compensation considered in light of circumstances of case – R180,000.
Facts and issue: The plaintiff claims damages against the National Director of Public Prosecutions (NDPP) for malicious prosecution. He was 30 years old and a police reservist on training as at the date of his arrest. The plaintiff was arrested and charged with the offence of rape. He was incarcerated for a period of 9 months. DNA tests were conducted, and the result came negative and not linking the plaintiff, however the defendant did not withdraw the charges against the plaintiff.
Discussion: Submissions made by the plaintiff of what transpired in prison are relevant to a claim of unlawful or wrongful detention than to malicious prosecution. The allegations that the plaintiff was labelled a rapist after charges were withdrawn are difficult to comprehend. It is the plaintiff's family members who paid bail for him, and it is difficult to fathom how they can after paying bail for him turn around and label him a rapist after charges against him were withdrawn. If the allegations are correct, the plaintiff has legal recourse against such persons. No evidence was tendered as to what steps the plaintiff took when he was "not allowed to take part in church duties since he was considered to be filthy" to establish that this not only occurred but that the plaintiff indeed took steps to resume with his church duties. Without proof of steps he took to do that, there is insufficient evidence to establish this fact.
Findings: The plaintiff confined his claim to the actio iniuriarum. He has presented no evidence of any patrimonial damages he has suffered. A claim for loss of earnings could not be pursued by the plaintiff. The plaintiff was arrested and charged with rape. The State opposed bail, and he was remanded into custody and eventually granted bail in March 2006. He remained in custody until his family members managed to pay bail in October 2006. He appeared before court on three other occasions before charges were withdrawn in 2007. He was a police reservist and was arrested in front of his colleagues and detained in the same police station.
Order: The defendant is ordered to pay the plaintiff R180,000.
13 November 2024
NAUDE-ODENDAAL J
PERSONAL INJURY – Unlawful arrest and detention – Reasonable suspicion – Rape charges where complainant a child – Considerations by arresting officer prior to arrest – Severity of the offence – Age of complainant – Alleged offence occurred on a number of times – Possibility that plaintiff could also commit offence towards other children and posed a threat – Alleged to have threatened complainant with death – Officer had reasonable suspicion – Action dismissed – Criminal Procedure Act 51 of 1977, s 40(1)(b).
Facts and issue: The plaintiff instituted action for damages against the defendants arising from his arrest and detention which the plaintiff alleges was unlawful. The plaintiff alleges that he suffered damages in the amount of R1,000,000. The plaintiff was arrested on charges of rape and was detained for a period of 10 days. The complainant was a minor female child born in 2009. She alleged that she was raped by a neighbour when she went to the neighbour's homestead to charge her phone.
Discussion: Captain Matabane testified that based on the complainant's statement, her age, the evidence in the docket and the pointing out by the complainant and her mother, he arrested the plaintiff. Captain Matabane testified that he did not ask the plaintiff any questions before arresting him as his duties were not to investigate or to usurp the duties of the trial court, but to arrest. He merely informed him of the reason for his arrest and of his Constitutional Rights. Captain Matabane further testified under cross-examination that he believed he should have affected arrest because according to the complainant's statement the plaintiff had perpetrated the offence multiple times against the complainant, and he feared the plaintiff may commit the same offence against other victims. Captain Matabane testified that the complainant was still very young, and she was also told by the plaintiff not to tell anybody of the incident and if she told anybody, he threatened to kill her.
Findings: Captain Matabane considered the severity of the offence, the age of the complainant, the fact that the offence had occurred several times, the possibility that the plaintiff could also commit the offence towards other children and posed a threat, as well as the fact that the plaintiff threatened the complainant that if she told anybody, he would kill her. Captain Matabane also considered the fact that the plaintiff was well-known to the complainant and that they were in fact neighbours. Captain Matabane had a reasonable suspicion that the plaintiff had committed a Schedule 1 offence. His suspicion was based on reasonable grounds and the arrest was therefore lawful.
Order: The action is dismissed.
15 November 2024
MONENE AJ
RAF – Liability – Contributory negligence – Plaintiff been driving 20 km above 60 km per hour speed limit at time of accident – Not disputed – Speed alone points to some contribution by plaintiff to negligence – Balance of negligence appear on evidence led to be with insured driver – Insured driver’s evidence appeared uncertain of events of day and exaggerated his answers – Liability apportioned 70/30 percent in favour of plaintiff.
Facts and issue: The plaintiff instituted action proceedings against the defendant for damages arising from a motor vehicle accident. The plaintiff was a driver of a motor vehicle which collided with the motor vehicle of the insured driver. The defendant defended the action, in the first place denying that the accident occurred, in the first alternative blaming the accident on the sole negligence of the plaintiff and in the second alternative pleading contributory negligence.
Discussion: The plaintiff stated that he was driving a white motor vehicle when the insured driver’s mini-bus or “taxi” motor vehicle drove from opposite the direction he was going and encroached onto his lane and collided with his motor vehicle. He stated that the minibus had only one headlamp on at the time of the collision and blamed the entire accident on the negligence of the minibus driver. The insured driver testified that the collision happened the plaintiff’s motor vehicle while trying to avoid a collision with another car, an Isuzu bakkie, rammed into his minibus. He denied that his minibus had “one eye”. He countered the plaintiff’s version that he encroached into the plaintiff’s lane and thus denied any negligence on his part, averring that it was the plaintiff who was solely responsible for the collision. It is correct that the plaintiff did not dispute that he had, at the time of the accident, been driving at a speed of 20 above the 60 km per hour regulated for the scene of the accident.
Findings: The speed alone points to some contribution by the plaintiff to the negligence behind the accident. The plaintiff’s version on a key and germane aspect of negligence, to wit, the one headlamp on, is corroborated by his passenger and was not scathed by any cross-examination. The court was generally not impressed by the insured driver’s evidence who appeared uncertain of the events of the day and exaggerated his answers. The attitude of the defendant in pleading first that there was no accident and then that there was contributory negligence does not sit well with the court as it is reflective of a litigant treating a trial as a fishing expedition which, for the court, dents credibility. The scales are tilted in the plaintiff’s favour on account of the above considerations. All that was proven against the plaintiff was that he drove at a speed of 20 above the speed limit of the area. The balance of the negligence involved in the matter appear, on the evidence, to be with the insured driver.
Order: The defendant shall be liable 70/30 percent for damages suffered by the plaintiff arising from the motor vehicle accident.
Apportionment: Following upon a question posed by the court as to whether the insured driver had not himself lodged a claim with the defendant and some kind of reversed roles where the would have been the insured driver, counsel for the defendant informed the court that the insured driver had indeed had his claim settled on an 80/20 percent apportionment in his favour. The court does not know what evidence was led in the other matter and how it was led. Court is unable to take anything that allegedly happened in the other matter under consideration as such was not tendered as evidence to court. Even if evidence led before the other court was presented to in this court, it would still have had to be assessed and evaluated together with what was led before this court. The question of which matter happened to be settled before another would be an unhelpful and unfair exercise akin to the biblical pool of Siloam into which the first to jump in was the only one advantaged. Suffice to say that this situation presents an anomaly whose curing is urgent but can only become to be addressed by a vigilant and less supine defendant who should be able to identify such matters and perhaps ensure that they are heard simultaneously or jointly in some way. One wonders exactly how many of this kind of matters are out there where parties have exchanged roles to both benefit from the fund in a manner which is clearly untenable. Something must give. We cannot continue to have saints and devils conveniently exchanging roles so easily and call that justice.
7 November 2024
TEFFO J
RAF – Loss of income – Post-accident disability – Traumatic brain injury – Combination of physical and psychiatric sequelae – Functional effects considered permanent and irreversible – Career prospects remain unchanged – Reached career ceiling at time of accident – Career progression post-accident proves that plaintiff has not struggled to find work – Contingency deductions of 15% pre-accident and 20% post-accident applied – R621,930 – 80% apportioment applied for R497,544.
Facts and issue: This is a claim for damages suffered because of the injuries sustained in a motor vehicle accident. The issue of liability has been previously resolved and the defendant is liable to pay 80% of the plaintiff’s proven or agreed damages. The only issue for determination is the issue of loss of earnings. As a result of the collision, the plaintiff sustained a mild brain injury and a lumbar spine fracture. The neurosurgeon states that since the plaintiff was fully functional pre-accident and since there is no alternative injury or illness to explain his shortcomings; the blame for his post-accident disability lies with the accident, no matter the finer details of how the accident caused one or other part of his disability.
Discussion: Dr Naidoo is of the view that the plaintiff has depressive symptoms due to injuries sustained in the accident in question including a traumatic brain injury. The plaintiff also has symptoms of Post-Traumatic Stress Disorder due to accident-related emotional shock, and accident-related depression secondary to the psychiatric and emotional sequelae of his physical injuries and his experience of chronic pain and limitations, where all of these conditions have since become established in their chronic form due to the lengthy period of time that lapsed since the accident and also exacerbated by him being Bipolar. The combination of his physical and psychiatric sequelae is having an effect on his ability to perform and enjoy his normal activities of daily living and life amenities. The plaintiff retains the ability to function as an independent person but with increased vulnerability for difficulties of various kinds but mainly in mild cognitive impairment, loss of efficiency and an increased risk for psychiatric difficulties.
Findings: Ms Kruger mentioned that at the time she assessed the plaintiff, on a mental level he appeared to be coping at work with his work demands although with some adaptations to his work format like making notes or writing everything down, etc. despite the difficulties she identified during assessment. According to the industrial psychologist, the plaintiff’s career prospects remain unchanged. When the accident happened, he had already reached his career ceiling. He would still continue to work on a contract basis, and he is not at a risk of going on early retirement. Having considered the totality of the evidence, the court accepts the contingency deductions of 15% pre-accident and 20% post-accident.
Order: The defendant shall pay to the plaintiff the capital amount of R497,544 in respect of loss of earnings, together with interest a tempore morae.
5 August 2024
KOK AJ
RAF – Loss of income – Pre-morbid projections – Amendment of pre-accident potential – Influence on court's award – Plaintiff pre-accident already faced challenges which would have impacted on scholastic progress – Pre-accident employment and remuneration prospects were already limited – Post-accident prospects decreased further – Could face limited employment prospects until retirement or extended periods of unemployment – Evidence established patrimonial loss – R2,000,000.
Facts and issue: The plaintiff was injured in a motor collision. The merits have been settled. The defendant also provided an undertaking in relation to the plaintiff's future medical expenses. General damages stand over for later determination. In this judgment the court only considers the plaintiff's claim for future loss of earnings. The main disagreement between the plaintiff and defendant was how an amendment to the expert reports should influence the court's award.
Discussion: In Dr Maritz's initial report, it was stated that pre-accident the plaintiff had the potential to complete a NQF level 4 qualification, either through a vocational college or by completing grade 12. The post-accident prognosis was a condoned grade 11. Dr Maritz's subsequent report notes that the plaintiff was at the date of such report registered for office administration at a TVET college for a National Certificate (Vocational) level 3 qualification, which is the equivalent to grade 11. The report then states that "with the transfer to TVET, the plaintiff will probably be exposed to more practical application of skill sets. Given her circumstances prevail, she can probably acquire the NCV qualification on NQF level 4". The expert reports taken as whole establish that the plaintiff pre-accident already faced some challenges which would have impacted on her scholastic progress. Pre-accident her employment and remuneration prospects were already limited. Post-accident her prospects decreased further still.
Findings: The actuarial calculation is based on the assumption that pre-accident the plaintiff's prospects were to qualify with an NQF 4 level (grade 12), while these prospects diminished to grade 11 post-accident. The later addendum to Dr Maritz's report speculates that the plaintiff could probably obtain a vocational qualification on NQF level 4, which were not reflected in the industrial psychology report and subsequently not in the actuarial calculations. On the other hand she will probably face limited employment prospects until retirement or even face extended periods of unemployment. The evidence established that the plaintiff suffered a patrimonial loss. Even taking the deductions into account that the actuary has already applied, the calculation still seems to be somewhat inflated, as it is based on the more pessimistic forecast of a post-accident grade 11 qualification. The actuarial calculation should be adjusted downwards.
Order: The merits of the action have been settled between the parties as 100% in favour of the plaintiff, payment of R2,000,000 to the plaintiff as loss of earnings, with costs.
31 October 2024
NONCEMBU J
RAF – Liability – Robot-controlled intersection – Plaintiff’s version – Supported by documentary evidence – Corroborated in material aspects by eyewitness – Material contradictions by defence witnesses – Reasonable driver maintaining a proper look-out should have been able to take evasive measures to avoid collision – Insured driver failed to do so – Plaintiff established that his version is true and accurate – No contributory negligence – Defendant 100% liable.
Facts and issue: This is a claim for damages arising from a motor vehicle collision which occurred at an intersection. The plaintiff’s vehicle collided with an Atlas security vehicle which was driven by the insured driver who was employed as a reaction officer at Atlas security. It is alleged that the insured driver was the sole cause of the collision. It is further alleged that as a result of the collision, the plaintiff sustained serious bodily injuries.
Discussion: The plaintiff testified that as he was approaching the intersection, the traffic light was red on his side, but it changed to green, thus allowing him to proceed. He had his right indicator on. He proceeded to enter the intersection after making the necessary observations. He looked on his left, and when he looked on his right again, the insured vehicle was already at the intersection, and he could not avoid the collision. His vehicle was bumped on the right-hand side, and it spun around. Sutch was the second witness for the plaintiff. On the night in question, he was standing by the robot smoking, when he noticed two Atlas vehicles speeding towards the robot-controlled intersection. The traffic lights were red on their side. He also saw a white Nissan that was driving towards the intersection. The traffic lights were green on its side, and therefore it had a right of way. The Nissan entered the intersection, when it was on the second lane, one of the Atlas vehicles jumped a red traffic light, rammed onto the body of the Nissan on the right-hand side it in the middle, whilst the second vehicle passed it from behind.
Findings: The plaintiff’s evidence was corroborated in material aspects, by that of Mr Sutch, and supported by the documentary evidence presented to court. Overall, his evidence was clear, straightforward and remained consistent and steadfast even under strenuous cross-examination. The same, however, cannot be said of the defence witnesses. The material contradictions in their evidence make one wonder if they were at all at the same accident scene. Common cause evidence is that the plaintiff’s vehicle was travelling at a normal speed, thus indicating that it did not suddenly jump into the intersection. Therefore, a reasonable driver maintaining a proper look-out should have been able to take evasive measures to avoid colliding into it. This, the insured driver failed to do.
Order: The defendant is liable for 100% of such damages as plaintiff can prove.
15 November 2024
LOUBSER J
RAF – Loss of income – Child – Aged 8 when injured in accident – Concussive brain injury – Rendered exceptionally vulnerable by accident and related sequelae – Functioned below average with cognitive difficulties before accident – Cannot be regarded as someone without any prospects of progressing in a special school – Contingency deduction of 25% applied in determining child’s loss of earnings in injured state – Loss of income R2,221,312.
Facts and issue: A child was hit by a car when he was walking to school in the morning. At the time, the child was 8 years old and in Grade 2. He suffered serious injuries in the accident in the form of a concussive brain injury and an occipital haematoma. Consequently, summons was issued against the defendant for the payment of damages in the total amount of R11,031,418.00. The child, L, is now 13 years old and he is represented in the proceedings by his mother and natural guardian who is suing in her personal as well as in her representative capacity.
Discussion: In the evidence, the experts dealt with the situation of the minor pre-accident as well as post-accident. It appears that he was in Grade 2 when the accident happened. Before the accident, he had to repeat Grade 1, while he also had to repeat Grade 2 after the accident. After the accident, he suffered from recurrent headaches, poor memory and concentration, nose bleeds, behavioral changes and seizures. It is indicated that he needs placement in a special school catering for the needs of children with cognitive impairments. The industrial psychologist is of the opinion that L has been rendered exceptionally vulnerable by the accident and the related sequelae. His eligibility for sheltered employment means that he would be precluded from gainful employment. He will probably remain largely unemployed because of the mild traumatic brain injury he suffered in the accident. Before the accident, he was likely functioning at a below to average level of intellect. He showed pre-existing cognitive difficulties during the period before the accident. Even disregarding the accident, he may have experienced periods of unemployment during his career. It is suggested by the industrial psychologist that an appropriate pre-morbid contingency be applied to cater for the aforementioned factors.
Findings: The child functioned below average with cognitive difficulties before the accident. That does not mean, however, that he could be regarded as someone without any prospects of progressing in a special school to a level where he would be able to find some form of employment, even if such employment is periodic in nature. In the circumstances, a contingency deduction of 25% should be applied in determining the child’s loss of earnings in the injured state.
Order: The defendant shall pay to the plaintiff a capital amount of R2,821,312.00 being: R2,221,312 for loss of earnings; R600,000 for general damages.
BOOKS / RESEARCH / ARTICLES
Authors: Maggie Lee, Simon Guthrie and Steven Girvan
This report provides an exploration of the potential impact of Artificial Intelligence (AI) on medical malpractice claims, with a focus on one specialty (radiology) and one state (New York). The discussions in this report are targeted to actuaries who are interested in developing a method to quantify the potential impact of AI to their own medical malpractice portfolio or to their own work. The research is focused on one specialty i.e., radiology and one jurisdiction of the United States (US) i.e. New York. New York was chosen as the state that had the highest average annual per-capita medical malpractice cost for all practitioners from 2012-2016 (Belk, 2019). The research is limited to this focus because exploration of all the different intended uses of AI across the healthcare industry and legal considerations across all jurisdictions will likely be limitless and far beyond the intended scope of this study.
PROFESSIONAL GUIDANCE NOTES
APN 701: Delictual and Other Legal Matters
APN 901: General Actuarial Practice
APN 904: Market conduct and treating customers fairly
Recommended Experience Requirements: Calculations for delictual and other legal matters
The Actuarial Case Law Review is published in collaboration with Algorithm Consulants & Actuaries