ACTUARIAL CASE LAW REVIEW

Facts: The plaintiff, Rathihaya, claims damages of R1,550,000 from the Passenger Rail Agency of South Africa (PRASA) for injuries sustained on 29 August 2015. He was a fare-paying passenger on a Metrorail train traveling from Bosman Station to Saulsville Station in Gauteng. The plaintiff alleges that he was pushed out of the train due to the doors remaining open while the train was in motion, resulting in head injuries and scarring. He argues that PRASA was negligent for failing to close the doors and provide adequate security. PRASA denies liability, claiming the plaintiff was contributorily negligent for boarding an overcrowded train and standing near an open door.

Issue: The court must determine whether PRASA’s failure to close the train doors caused the plaintiff’s injuries or if the plaintiff’s actions (e.g., standing near the open door) were the primary cause of the incident.

Discussion: The plaintiff must prove that PRASA’s negligence directly caused his injuries. This involves establishing that PRASA breached its duty of care by failing to close the train doors, which created a foreseeable risk of harm. PRASA argued that the plaintiff’s decision to stand near the open door on an overcrowded train constituted contributory negligence. The court analyzed the evidence, including the plaintiff’s testimony and PRASA’s admission that the doors were open while the train was in motion. The train is made of several carriages, and a passenger can manoeuvre from one carriage to the other even when the train is moving. The plaintiff boarded a train that was full and stood next to the open door the whole trip when he had an opportunity to move to the other coaches or look for a safe space to occupy. The court found that PRASA breached its duty of care but also concluded that the plaintiff’s actions contributed to the accident.

Findings: The court found PRASA 60% liable for the plaintiff’s injuries due to its failure to close the train doors, which was a breach of its duty of care. The defendant was negligent and such negligence did contribute to the plaintiff’s being pushed out of the train. The plaintiff is also guilty of contributory negligence and the damages suffered by the plaintiff was reduced proportionate to the degree of his negligence. The plaintiff was found 40% contributorily negligent for standing near the open door on an overcrowded train, thereby assuming some risk. The plaintiff is entitled to recover 60% of the proven damages.

Order: PRASA is 60% liable for the plaintiff’s damages. The issue of quantum is postponed indefinitely. Costs are reserved for future determination.

Facts: Coetzee sued the Minister of Police and the National Prosecuting Authority for unlawful arrest, detention (pre- and post-court appearance), and malicious prosecution. Coetzee was arrested without a warrant at the Johannesburg Magistrates Court for possession of a dangerous weapon, specifically a shard of glass wrapped in tape, which was allegedly passed to his son, who was in court for his own trial. He was detained at a police station and then a prison until his release.

Issue: The key issues were whether the arrest and detention were lawful, whether the plaintiff had proven malicious prosecution, and the appropriate quantum of damages for the unlawful arrest and detention.

Discussion: The evidence presented by both sides was analysed. The defendants argued the arrest was lawful under section 40(1)(a) of the Criminal Procedure Act 51 of 1977, as the offense was committed in the presence of a peace officer. However, the arresting officer must have firsthand knowledge of the offense, not just a suspicion or information from others. The evidence of the defendants' witnesses, particularly regarding the alleged passing of the object and the signing of the rights document, was found to be inconsistent and unreliable. The requirements for lawful possession of a dangerous weapon and the duty of police officers when making an arrest were also discussed. The court considered the lawfulness of the detention after the first appearance, focusing on whether the police actions were the cause of the continued detention.

Findings: The arrest was unlawful because the arresting officer, Warrant Officer Molapo, did not personally witness the alleged crime, a requirement under section 40(1)(a) of the CPA. The arrest for possession of a dangerous weapon was also unjustified, as the weapon was found on the plaintiff’s son, not the plaintiff. The detention following the unlawful arrest was also unlawful. The defendants failed to provide evidence justifying the plaintiff’s detention after his first court appearance, and the conditions of detention were found to be degrading and inhumane. However, the court dismissed the claim for malicious prosecution, as the plaintiff failed to prove malice or lack of reasonable cause.

Order: The first defendant (Minister of Police) was ordered to pay the plaintiff R125,000 for the initial unlawful detention. The first and second defendants (Minister of Police and National Prosecuting Authority) were jointly and severally liable to pay the plaintiff R450,000 for the further unlawful detention.

Facts: Kleyn slipped and fell on a wet floor/stairs at KFC Somerset West, sustaining a soft tissue injury to her lower back. This injury resulted in disc degeneration at the L4/5 level, causing her ongoing pain and discomfort. Kleyn initially received conservative treatment, but her condition worsened, leading to pins and needles in her feet and increased back pain. She consulted a general practitioner, and further investigations revealed the narrowing of the L4 disc space. Kleyn, a 36-year-old security officer with an active lifestyle before the accident, experienced limitations in her mobility, impacting her ability to sit, walk, and stand for extended periods. She delayed a recommended spinal fusion procedure due to her personal circumstances and advice from her physician but eventually decided to undergo the surgery. The case proceeded to court to determine the quantum of damages after the court had previously found KFC liable for 50% of Kleyn's proven damages.

Issue: The issue before the court was to determine the appropriate amount of damages to compensate Kleyn for her injuries, including past and future medical expenses, and general damages for pain and suffering. Kleyn claimed for past medical expenses (R24,779.77), future medical expenses (R338,777), and general damages (R350,000).

Discussion: Kleyn presented expert testimony from Dr. Olivier, an orthopedic surgeon, who diagnosed her with a significant soft tissue injury leading to mechanical backache and symptomatic disc degeneration. Dr. Olivier recommended that one spinal fusion procedure was necessary. He estimated a 60% probability that Kleyn would undergo the surgery. An actuary, Barnard, calculated the costs of these procedures based on Dr. Olivier's updated report. The judge considered the evidence regarding the likelihood of future procedures, Kleyn's pain, limitations, and the impact on her life. They also compared Kleyn's case to similar cases presented to determine an appropriate award for general damages, acknowledging that none were perfectly analogous. The judge adjusted the actuarial calculations, taking into account the plaintiff's past reluctance to undergo procedures and the updated medical opinion. The judge also considered the fact that some of the initial conservative treatment costs were already covered by her medical aid.

Findings: The court accepted Dr. Olivier's updated assessment that Kleyn would likely require one spinal fusion procedure and adjusted the actuarial calculations accordingly, reducing the future medical expense claim to R338,777. They also made a 10% contingency deduction, down from Dr. Olivier's 60% probability, based on Kleyn's past hesitancy, resulting in a future medical expense award of R292,205. Past medical expenses of R24,779.77 were proven with vouchers. The court found that R300,000 was an appropriate amount for general damages, considering Kleyn's pain, reduced mobility, frustration with her condition, and the impact on her life, comparing her situation to the cited case law. The judge specifically noted the chronic pain experienced by the plaintiff in RAF v Maasdorp as a relevant factor. The judge also disallowed the amount of R30,293 for initial conservative treatment as these costs were already covered by medical aid.

Award: The court ordered KFC to pay Kleyn R308,492.38, representing 50% of her total damages after apportionment. This amount comprised R24,779.77 for past medical expenses, R292,205.00 for future medical expenses, and R300,000 for general damages. KFC was also ordered to pay Kleyn's legal costs on a party and party basis on scale B, including the costs of her expert witnesses, Dr. Olivier and Michelle Barnard. Interest a tempore morae at 10.25% was also granted. The payment was ordered to be made into the trust account of Kleyn’s attorneys.

Facts: The appellant appealed a magistrate court's award of R45,000 for unlawful arrest and detention against the Minister of Police. The appellant was arrested without a warrant for alleged illegal hunting and detained for three days. He claimed he was sodomized by another inmate, threatened, and held in unsanitary conditions without basic amenities. He also claimed to have lost his vehicle as a result of the arrest.

Issue: The appeal focused solely on the quantum of damages, as the unlawfulness of the arrest was conceded. The court had to determine a fair and reasonable amount of compensation for the unlawful arrest and detention, considering the circumstances.

Discussion: The principles governing the assessment of damages for unlawful arrest and detention were discussed, with emphasis that the goal is not to enrich the aggrieved party but to provide solatium for injured feelings. There was a consideration of factors like the circumstances of the arrest, the conditions of detention, the impact on the individual, and comparable case law. Crucially, the appellant's claim of sodomization was addressed, it being noted that it was not pleaded in his initial claim and was only mentioned cursorily in his testimony. The importance of proper pleading and the potential prejudice to the respondent when unleaded facts are introduced were emphasized. The lack of corroborating evidence for the sodomization and the alleged loss of the vehicle was further noted.

Findings: The appellant's claim of sodomization, due to the lack of proper pleading and corroborating evidence, could not be considered in the assessment of damages. Similarly, the claimed loss of the vehicle was not proven to be a direct result of the detention. The appellant's difficult conditions of detention and the unlawful nature of the arrest were acknowledged. Considering comparable cases and the principles of fair compensation, the initial award of R45,000 was inadequate.

Order: The appeal was upheld. The magistrate court's order was set aside and replaced with an order that the Minister of Police pay R90,000 in damages, with interest, and cover his legal costs in both the magistrate court and the appeal.

Facts: The late Mr Esack was injured in a motor vehicle collision and subsequently claimed damages from the Road Accident Fund (RAF). He passed away on May 4, 2020, before the case was finalized, and his executrix and spouse, Ms Esack, was substituted as the plaintiff. The RAF's liability was determined separately, leaving only the quantum of damages in dispute. Prior to the hearing, most heads of damages were settled, except for past hospital, medical and related expenses, the date from which interest would accrue, and costs. The RAF disputed liability for the medical expenses, arguing they were covered by the deceased's medical aid (Discovery Health), a fact not previously pleaded. The parties agreed on the amount of these expenses (R115,436.14) and stipulated that Discovery Health had paid them. They further stipulated, for the purposes of this case only, that these expenses constituted prescribed minimum benefits (PMBs) or treatment for emergency medical conditions (EMCs) for which Discovery was statutorily obliged to pay.

Issue: The central issue was whether the RAF was liable to compensate the plaintiff for past medical expenses paid by the deceased's medical aid, given the RAF's contention that the deceased suffered no loss as a result of the medical aid's payment, especially in light of the Discovery Health judgment. Related issues were the date from which interest on the awarded amounts should run and the appropriate scale of costs.

Discussion: The RAF argued that it should not be liable for the medical expenses because they were paid by Discovery Health, relying on Discovery Health (Pty) Ltd v Road Accident Fund [2024] ZAGPPHC 1303. The plaintiff argued that the payment was a private matter between the deceased and his medical aid and cited the principle of res inter alios acta. The Discovery Health judgment was analysed, noting that it did not definitively decide the deductibility of medical aid benefits, particularly PMBs and EMCs, and that it raised considerations without answering the question. The stare decisis doctrine and the Bane decision, which supported the plaintiff's position, were discussed. It was emphasized that the RAF did not present any evidence or arguments based on public policy, fairness, equity, or reasonableness to justify departing from the principle of res inter alios acta. The provisions of section 17(3) of the Road Accident Fund Act 56 of 1996 regarding interest were discussed, and arguments for the scale of costs were considered.

Findings: It was found that the Discovery Health judgment did not change the legal landscape regarding the res inter alios acta principle. It was held that the RAF was liable to compensate the plaintiff for the past medical expenses, as the payment was a matter between the deceased and his medical aid. It was determined that interest on the awarded amounts would run from 14 days after the date of the order, in accordance with section 17(3) of the Act. Costs were awarded to the plaintiff, on a party-party scale until January 27, 2025 (when most issues were settled), and on an attorney-client scale for costs incurred after that date due to the RAF's pursuit of a poorly pleaded and ultimately unmeritorious defence.

Order: The RAF was ordered to pay the plaintiff R935,477.28 for past loss of earnings and R115,436.14 for past medical expenses. These amounts were to be paid within 180 days of the order. Interest on the capital amounts was to run from 14 days after the order, and interest on costs from 14 days after settlement or taxation. Execution on the capital and costs was stayed for 180 days. The existence of a contingency fee agreement between the plaintiff and her attorneys was noted.

* See also Machi v Road Accident Fund [2025] ZAGPJHC 78 at paras [89]-[100].

Facts: The plaintiff was a passenger in a motor vehicle accident on 16 July 2009 in Johannesburg. She sustained multiple injuries, including a fractured right radius and ulna, soft tissue injuries to the cervical and lumbar spine, and a mild concussive head injury. The defendant, the Road Accident Fund (RAF), conceded liability, and the only issue for determination was the quantum of general damages. The plaintiff initially claimed R700,000 for general damages but sought to amend this to R1,600,000 on the day of the trial. The defendant opposed the amendment and raised in limine issues, arguing that a previous court’s declaratory order regarding the seriousness of the plaintiff’s injuries was ultra vires and that the matter should be referred back to the Health Professions Council of South Africa (HPCSA). The plaintiff argued that the defendant’s objections were mala fide and that the court had jurisdiction to determine the matter.

Issue: The primary issue was the quantum of general damages to be awarded to the plaintiff. Additionally, whether to grant the plaintiff’s application to amend the quantum of general damages from R700,000 to R1,600,000 and whether the defendant’s in limine objections were valid.

Discussion: The defendant’s in limine objections were dismissed as they were found to be a waste of time, particularly given the age of the previous court’s declaratory order and the defendant’s failure to act on its objections earlier. The plaintiff’s application to amend the quantum of general damages was granted, it being found that the defendant would not suffer prejudice, especially since no offer had been made by the defendant. The expert reports detailing the plaintiff’s injuries and their sequelae were considered, including chronic pain, psychological trauma, and loss of amenities. The plaintiff’s experts testified to the severe impact of the injuries on her life, including multiple suicide attempts, emotional disturbances, and permanent unemployability. The plaintiff’s case was compared to previous awards in similar cases to determine a fair and reasonable amount for general damages.

Findings: The plaintiff’s injuries and their sequelae were found to be severe and warranted compensation. However, the plaintiff’s requested amount of R1,600,000 was excessive. Instead, the court awarded R850,000 for general damages, considering the plaintiff’s injuries, the impact on her life, and comparable case law. Costs were awarded on a party-and-party scale, as the defendant’s conduct, including its failure to make an offer and its frivolous objections, justified a costs order in favour of the plaintiff.

Order: The plaintiff’s application to amend the quantum of general damages from R700,000 to R1,600,000 was granted. The defendant was ordered to pay the plaintiff R850,000 for general damages. The defendant was ordered to pay the plaintiff’s costs, including the costs of the curator ad litem, on a party-and-party scale. The defendant was also ordered to pay the costs of the plaintiff’s application for a postponement on an attorney-and-client scale.

Facts: The plaintiff, Masemola, was involved in a motor vehicle accident on 13 February 2021 while driving on Moloto Road. He sustained severe injuries, including compression fractures of his T12-L1 vertebrae, resulting in temporary paraplegia. After surgery and rehabilitation, he regained mobility but now walks with a walking stick. The plaintiff, a 30-year-old petrol attendant at the time of the accident, lost his job in August 2023 due to his injuries. He filed a claim against the Road Accident Fund (RAF) for general damages (non-pecuniary) and loss of earnings. The RAF made two settlement offers, including an amount for general damages, but the plaintiff did not accept them. The matter proceeded to court, with the RAF failing to appear or present evidence.

Issue: The central issue was whether the RAF’s offer to pay general damages constituted an acceptance that the plaintiff’s injuries were serious, as required by section 17(1) of the Road Accident Fund Act 56 of 1996, thereby entitling the plaintiff to claim general damages even if the offer was not accepted.

Discussion: The question of whether the RAF’s settlement offers, which included amounts for general damages, could be deemed an acceptance of the seriousness of the plaintiff’s injuries was examined. Previous cases were referenced, including Mertz v RAF [2022] ZAGPPHC 961 and Chetty v RAF [2021] ZAGPPHC 848, where it was held that an offer for general damages implies the RAF’s acceptance of the injuries as serious. The argument that the offers were merely attempts to settle the case without admitting liability was rejected, with emphasis that the RAF is statutorily prohibited from offering general damages unless it is satisfied that the injuries meet the required threshold. The “without prejudice” nature of the offers was also addressed, with the conclusion that the offers were admissible as evidence of the RAF’s acceptance of the seriousness of the injuries, even though the amounts offered remained privileged.

Findings: The RAF’s offers for general damages demonstrated its acceptance that the plaintiff’s injuries were serious, satisfying the jurisdictional requirement under section 17(1) of the RAF Act. On the merits, it was found that the plaintiff was not negligent and that the RAF was 100% liable for the damages. The plaintiff no longer suffered from paraplegia and was not bed-ridden or wheelchair-bound. His case was distinguished from those where plaintiffs suffered higher degrees of immobility with accompanying bedsores and other impairments. The plaintiff was awarded R1,100,000 for general damages and R3,377,433 for loss of earnings, totalling R4,477,433. The RAF was also ordered to provide an undertaking for future medical expenses and to pay the plaintiff’s legal costs.

Order: The RAF is ordered to pay the plaintiff R4,477,433, comprising R1,100,000 for general damages and R3,377,433 for loss of earnings. The RAF must provide an undertaking for future medical expenses under section 17(4)(a) of the RAF Act.