ACTUARIAL CASE LAW REVIEW

Accident: The appellant, NKP, suffered injuries as a result of a motor vehicle in 2016 on the N11, between Ermelo and Hendrina, Mpumalanga. The appellant was a passenger in one of the vehicles involved and was born in 2001. The appellant was 15 years old and pregnant at the time of the accident. She lost the foetus during the accident. As a result of the injuries, particularly the head injury, the experts state that she suffers from neuro-cognitive difficulties, neurobehavioral difficulties, problems coping with pressure and stress, neuropsychiatric difficulties and post-traumatic stress disorder.

Appeal: The court a quo awarded the appellant R1,100,000 for future loss of income. The court a quo found that there was no verified specialist radiology report to confirm the alleged "severe brain damage" suffered by the plaintiff. It was submitted that the court a quo erred in not finding that the brain injury was severe.

Severe brain injury: It is not correct that there is no verified specialist radiology report to confirm the alleged "severe brain damage" allegedly suffered by the plaintiff. The CT scan indicates that amongst others, there was “brain contusion and cerebral oedema”. All the experts refer to these CT scans in their reports; this shows that they all had regard for the CT brain scans when they assessed the appellant. The specialist neurosurgeon states that the plaintiff sustained a severe traumatic brain injury and the neurologist stated that the  appellant has suffered a serious head injury but moderate brain injury. The court a quo clearly misdirected itself in finding that the absence of a qualified diagnostic radiologist report creates a non-existent link between severe brain damage and motor vehicle accidents. The court a quo simply disregarded the admitted hospital records, which included the CT scan reports. Thus, the court a quo erred in not finding that the brain injury was severe.

Loss of income: The trial court’s award of R1,100,000 was not reasonable and fair in the circumstances, however, the court cannot find persuasive reasons to confine to the total amount of R9,130,303 as per the actuarial report after the cap. The actuary applied a 25% contingency deduction to the pre-morbid future loss of earnings and a 35% contingency deduction on the post-morbid future loss of earnings. The appellant enrolled for a second-year psychology course at a university with no reports of not coping with the course she studies. She can still work and build her career even as a consultant, where she would work at her own pace, without any pressure, and earn a decent living wage. the best way to deal with this matter is to apply higher contingencies: 50% deduction pre-morbid and 45% deduction post-morbid.

Order: The appeal is upheld and prayer 2 of order of the court a quo replaced with an order that the Fund pay the plaintiff an amount of R6,842,894.

SETHUSHA-SHONGWE AJ (MOLOPA-SETHOSA J and MOGALE AJ concurring)

Accident: In August 2015, the minor child, MSG, born in July 2012, was a pedestrian crossing the road along Seleke Road, Limpopo Province, when knocked by a motor vehicle. The child was going to a tuck-shop with other children. The child is represented by her biological mother, Ms MOL. The child's mother was not at the scene when the accident took place. The child was taken to the clinic in Seleka and transferred to Witpoort Hospital by an ambulance. According to the hospital records the child had a swollen head injury and was fully awake. The child was discharged on the same day.

Claim: The issue of merits was settled 100% in favour of the plaintiff and the agreement was made an order of court. The plaintiff claimed R11,000,000 made up of future medical expenses of R1,000,000; loss of earnings of R9,000,000; and general damages of R1,000,000. According to the neurosurgeon the child lost consciousness immediately after the accident. The neurosurgeon opined that as a result of the accident in question the child suffered a grade 3 concussion as a subset of mild head injury. It is evidenced by a history of loss of consciousness, chronic headaches and memory problems.

Loss of consciousness: The plaintiff was not present when the accident took place and only heard about the accident. The plaintiff has reported to different experts that the child had lost consciousness on the scene. The driver of the insured vehicle is the one who immediately after the accident took the child to Seleka clinic and no loss of consciousness was reported by the driver. There is no evidence of an eye witness before this court who has witnessed the child's loss of consciousness. Medical records submitted before this court indicated that the GCS was 15/15, the child was awake, and discharged same day. The court on the balance of probabilities finds that the child did not lose consciousness during the accident, therefore, the diagnosis and opinion of all the medical experts who noted loss of consciousness were based on the wrong information and such information has influenced their opinion in their respective reports.

Further observations: The court on the balance of probabilities finds that whatever challenges noted by the educational psychologist which are currently affecting the child's school performance, would likely not have any adverse impact on the child's school performance even in the future. The clinical psychologist indicated that after the neurocognitive assessment it certainly becomes clear that the child's abilities have not been compromised by the accident in question. According to the clinical psychologist the child has an above-average memory span. The court on the balance of probabilities finds that the child has no memory problem nor forgetfulness. This court finds that the accident did not affect the child's performance at school. There is no factual basis which was submitted before this court to support the educational psychologist's opinion that although the child's school performance is currently satisfactory, the child would likely struggle in the high grades in future. The court on the balance of probabilities finds that the child's injuries as a result of the accident in question will not likely have any adverse impact on the child's school performance, nor future loss of earnings.

Compensation: The court is of the view that although there is no apparent loss of future income foreseen, the child should be compensated by applying a spread of 5% of the different between the pre- and post-morbid which are regarded equal. In doing so, the court considered the conclusion of the clinical psychologist who opined that the child has a post traumatic disorder and psycho-social problems and such may probably have a slight effect in the child's future income. The court accepted that the child has the potential to obtain an honours degree and the calculations are set out at para [25]. The Fund shall pay R880,947 for future loss of earnings.

MASHAMBA AJ

Accident: At the time of the motor vehicle accident in 2017 the plaintiff was 12 years old. He was, at the time when the matter came before court, 19 years old and had substituted his mother who had initiated the action on his behalf. A minibus taxi (a grey Siyaya with a specified registration number) ran him over. The allegations of the taxi having been driven at a high speed appear from the contents of a police docket. The plaintiff sustained a number of injuries, the most significant being a head injury diagnosed as having resulted in a mild traumatic brain injury.

Claim: The experts concluded that the mental deficits negatively impacted on the plaintiff’s post-accident scholastic performance, and that he failed certain grades. It was postulated that but for the accident, he would have passed matric and, had he done so with good grades, could have applied for bursaries or NFSAS assistance. The plaintiff could then, so the experts postulated, have obtained a degree and have entered the labour market at a Patterson B3/4 level and would have reached a career ceiling at the B2 Upper Quartile level at age 45. He would then have enjoyed straight-line increases until his retirement at age 65. The actuarial calculations performed, relied on these premises. Applying a 15% contingency, the actuary calculated a loss of R10,366,800 after applying the “cap” prescribed in the Road Accident Fund Amendment Act.

Assessment: Guided by the report of the occupational therapist, the industrial psychologist was of the view that the plaintiff, post-accident, “is unemployable due to his physical and mental state”. The actuarial calculations therefore provided for R0 as a post-accident earnings postulation. Criticism was justified of the plaintiff’s experts’ leap from the educational psychologist postulating the obtaining a FET qualification post-accident to the industrial psychologist’s postulation of the plaintiff being completely unemployable. Bracketed in between these two extremes is the occupational therapist’s conclusion that the plaintiff would only be suitable for sheltered employment. Both the last two conclusions are without solid foundation. On a conspectus of the reports, there are ample indications of a residual earning capacity. This has, however, not featured in the actuarial calculations.

Compensation: Apart from having passed Grade 6 on a first attempt, all indications of the plaintiff’s subsequent performance point to a downward educational spiral. The occupational therapist concluded that his performance “significantly deteriorated as his average was below the elementary achievement”. Rather than to non-suit a deserving plaintiff completely, a court must do the best it can with the evidence regarding the quantum of damages put before it. The only way in which this can be achieved in the circumstances of this case is to assume that the post-accident scenario would reflect a largely discounted amount of the pre-accident postulated earnings. This has been done in the heads of argument provided by the plaintiff’s counsel, resulting in a calculated loss of R6,738,420. This was done utilizing an additional 35% contingency in respect of future earnings, above that already applied.

Order: The Fund is ordered to pay the plaintiff R6,738,420.

DAVIS J