ACTUARIAL CASE LAW REVIEW

Facts: Meyers, a self-employed flooring installer, was injured in a high-speed, head-on collision on the Malahat Highway in June 2016. He sustained soft tissue injuries, bruising, abrasions, and chronic hip pain. Although he returned to work after six weeks, his productivity and working hours were significantly reduced. He later transitioned to a sales role due to persistent pain. Meyers claimed damages for non-pecuniary loss, past and future income loss, special damages, and cost of future care. Liability was admitted by the defendant, Hall, and the matter proceeded on quantum.

Claim: Meyers sought damages exceeding $500,000, including compensation for pain and suffering, loss of earning capacity, and future care. The defendant accepted liability but disputed the extent of the claimed losses. The issue was the appropriate quantification of damages, particularly for income loss and non-pecuniary harm.

Discussion: The assessment of non-pecuniary damages focused on Meyers’ chronic pain, psychological trauma, and loss of enjoyment of life. He endured years of discomfort while continuing physical work, eventually transitioning to a lower-paying sales role. His sleep was disrupted, recreational activities curtailed, and driving anxiety persisted. Expert evidence confirmed ongoing pain and functional limitations. Meyers’ stoicism and pride in his former career were noted as aggravating factors. For past income loss, Meyers relied on an economist’s projections, which assumed steady growth in his business. These assumptions were found to be speculative and unsupported by business records or industry data. Witnesses confirmed his post-accident decline in speed and endurance but also noted his resilience. A year-by-year assessment was conducted, estimating a 15% impairment in earning capacity from 2017 to 2021, and a greater loss after his career change in 2022. The cumulative pre-tax loss was assessed at $147,150.

Findings: Future earning capacity was assessed based on Meyers’ new role in flooring sales. His base salary was significantly lower, and commission targets had not been met. While his employer expressed optimism, it was found that Meyers was unlikely to reach median industry earnings. A differential of $35,000 annually was accepted, with retirement assumed at age 67. The present value of future loss was assessed at $200,000. Recommendations for future care were considered but rejected, as Meyers had adapted to his new role and managed his symptoms with over-the-counter medication and lifestyle adjustments. Special damages were agreed at $2,220.67. Meyers was awarded $105,000 for non-pecuniary damages, reflecting chronic pain, psychological impact, and the loss of a fulfilling career. His past income loss was assessed at $147,150, based on a conservative impairment estimate and extrapolated earnings.

Order: Damages awarded as follows: Non-pecuniary damages: $105,000. Past loss of earning capacity: $147,150 (gross). Future loss of earning capacity: $200,000. Special damages: $2,220.67. Costs awarded on Scale B.

Facts: Pearson, a 28-year-old glazier apprentice, was involved in a motor vehicle accident at the intersection of Carnarvon Street and 6th Street in New Westminster. He was struck by a vehicle driven by Osseiran, who claimed she was blinded by the sun and felt dizzy at the time. Pearson sustained multiple injuries, including a left shoulder injury, soft tissue damage to his neck and back, post-traumatic headaches, and psychological symptoms. He alleged that these injuries impaired his ability to work and enjoy life, and sought damages for non-pecuniary loss, past and future income loss, special damages, and cost of future care. The defendants denied liability and disputed the extent of Pearson’s injuries.

Claim: Pearson claimed damages totalling over $1,3 million, including $225,000 for non-pecuniary loss and $1 million for future income loss. He alleged that the accident caused lasting physical and psychological injuries that diminished his earning capacity and quality of life. The defendants denied liability and argued that Pearson exaggerated his symptoms, failed to mitigate his injuries, and would likely recover with proper treatment.

Discussion: Liability was determined based on eyewitness testimony and admissions. Osseiran admitted she could not see the traffic light due to the sun and dizziness and had told the investigating officer she thought she had a yellow light. Pearson testified that he entered the intersection on a green light. It was accepted that Osseiran entered on a red light, breaching the standard of care and causing the accident. The injuries were assessed through extensive expert evidence. Pearson was found to have sustained a left shoulder injury diagnosed as biceps tendinopathy and subacromial bursitis, with surgery likely required. He also suffered chronic neck pain, post-traumatic headaches, and psychological symptoms including major depression, somatic symptom disorder, and features of PTSD. While some improvement was expected with treatment, full recovery was unlikely. Pearson’s credibility was generally accepted, though his reliability was affected by occasional overstatements and inconsistencies. His psychological symptoms were corroborated by expert psychiatric evidence and lay witnesses, including his mother, who described significant personality changes post-accident.

Findings: Liability was attributed entirely to Osseiran, with her co-defendant vicariously liable. Pearson was found to have sustained multiple accident-related injuries that impaired his physical and psychological functioning. The claim for mild traumatic brain injury was rejected due to insufficient evidence of altered consciousness. However, the remaining injuries were accepted, and it was found that Pearson’s work capacity was significantly impaired. He was dependent on accommodations in his current role and faced a real and substantial possibility of future income loss. The defendants failed to prove a failure to mitigate, and the plaintiff’s treatment delays were not unreasonable. The cost of future care was awarded for physiotherapy, counselling, and vocational support, but not for retraining.

Order: Pearson was awarded the following damages: Non-pecuniary damages: $185,000. Past loss of income earning capacity: $399.20. Future loss of income earning capacity: $340,000. Cost of future care: $34,710.40 Special damages: as agreed. Total: $560,109.60, plus special damages and interest, less statutory deductions. Costs awarded on Scale B unless otherwise agreed within 45 days.

Facts: Evins was injured in a motor vehicle collision on in March 1972 while travelling as a passenger in a car driven by her husband, who died in the accident. She instituted action against Shield Insurance Company, the authorised insurer of the other vehicle, under section 21 of the Compulsory Motor Vehicle Insurance Act 56 of 1972. Her claim comprised two components including compensation for bodily injuries and compensation for loss of support due to her husband’s death. The first summons, issued in August 1973, included both claims. However, the MVA 13 form submitted prior to that summons contained full details only for the bodily injury claim, with the loss of support section marked “N/A”. In 1976, Evins submitted a second MVA 13 form properly detailing the loss of support claim and issued a second summons in January 1977. The two actions were later consolidated. Shield Insurance raised a special plea of prescription against the loss of support claim.

Appeal: Evins appealed against the dismissal of her loss of support claim, arguing that the first summons interrupted prescription for both claims, which she contended formed a single cause of action. The issue was whether the bodily injury and loss of support claims constituted one indivisible cause of action, and whether the first summons, despite procedural defects, interrupted prescription for both.

Discussion: The matter turned on whether the two claims, one for bodily injury and one for loss of support, arose from a single cause of action or from distinct legal bases. Evins’ counsel argued that both claims stemmed from the same wrongful act and should be treated as facets of a single cause of action, thereby benefiting from the interruption of prescription by the first summons. This view was rejected, as the claims were legally and factually distinct. The bodily injury claim arose from harm to Evins herself, while the loss of support claim derived from the death of her husband and required proof of a legal duty of support, actual dependency, and patrimonial loss. These elements did not overlap sufficiently to constitute a single cause of action. The analysis drew on established principles of delict, including the “once and for all” rule and the concept of res judicata. Treating the claims as one would lead to anomalies, such as conflicting prescription periods and procedural confusion.

Findings: The statutory framework of the Motor Vehicle Insurance Act 29 of 1942 did not alter the common law position, and there was no indication that the legislature intended to fuse the two claims into one. The bodily injury and loss of support claims constituted separate causes of action. The first summons, which was based on a defective MVA 13 form in respect of the support claim, did not interrupt prescription for that claim. The second summons, issued more than two years after the accident, was therefore too late. The statutory requirements under section 25 of the Act had not been met in time, and the loss of support claim had become prescribed. The special plea was correctly upheld.

Order: The appeal is dismissed with costs.

Facts: The plaintiff, a minor at the time, was assaulted by members of the public in Seshego on suspicion of theft. Police officers arrived at the scene, placed him in the back of a police bakkie, and transported him to the station. He was detained with adult inmates for four nights. During his detention, he was raped by two inmates and forced to shield others during toilet use. His complaints were dismissed by the investigating officer, Warrant Officer Dikgale. A clinical psychologist later diagnosed him with Dysthymic Depression and a high risk of developing post-traumatic stress disorder and intimacy issues. The plaintiff instituted a delictual claim against the Minister of Police for unlawful arrest and detention.

Claim: This was a damages claim for unlawful arrest and detention, brought by the plaintiff against the Minister of Police. The defendants initially raised a special plea of non-compliance with section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 but later abandoned it. They denied the arrest and detention on the pleaded date. The issue was whether the plaintiff had been unlawfully arrested and detained, and whether the discrepancy in the date of arrest affected the validity of the claim.

Discussion: The plaintiff testified that he was arrested on 19 November 2015, but documentary evidence, including a charge sheet, showed the arrest occurred on 26 November 2015. Despite this discrepancy, the evidence established that he was indeed arrested and detained by the police. The defendants did not dispute the arrest itself, only the date, and failed to amend their pleadings or call any witnesses. The charge sheet, discovered and admitted into evidence, listed Warrant Officer Dikgale as the investigating officer and confirmed the plaintiff’s detention. The litigation history showed that the defendants were aware of the correct date and had access to the relevant documents. The plaintiff’s failure to amend his pleadings was attributed to his legal representatives, and no prejudice to the defendants was identified. The arrest was prima facie unlawful, and the burden to justify it rested on the defendants, who offered no defence or explanation.

Findings: It was accepted that the plaintiff was arrested on 26 November 2015 and detained until 30 November 2015. The arrest was unlawful, and the detention, particularly with adult inmates, violated section 28(1)(g) of the Constitution, which protects children from detention except as a last resort and requires separation from adults. The plaintiff’s age, the conditions of detention, and the sexual assault he endured were aggravating factors. His psychological trauma was corroborated by expert evidence and his own testimony, which remained consistent despite the passage of time. The prolonged detention without court appearance on the first available day was malicious. The defendants failed to justify the arrest under section 40(1)(b) of the Criminal Procedure Act 51 of 1977 and did not meet the jurisdictional requirements for a lawful arrest. The plaintiff’s rights to dignity, bodily integrity, and freedom were severely infringed.

Order: The first defendant is ordered to pay the plaintiff R600,000 as compensation for unlawful arrest and detention, with interest at 10,50% per annum from the date of judgment until final payment. Costs of suit are awarded on a party-and-party Scale B, with interest at 10,50% per annum from 30 days after the date of allocator.

Facts: Mokone was shot, arrested without a warrant, and detained by members of the South African Police Service (SAPS) in Delft, Cape Town. The incident began when Mokone was approached by Cishe, a SAPS officer, who demanded repayment of a personal loan. Mokone offered to retrieve part of the money from his home, but when the officers insisted on going to Gugulethu Police Station instead, he drove off. A high-speed chase ensued, involving multiple SAPS vehicles. During the pursuit, shots were fired at Mokone’s vehicle, striking him in the hip. He crashed into a construction site and was pulled from the vehicle, allegedly assaulted, and later detained. A toy firearm was found in his car. He was hospitalised, then held at Harare Police Station, and released without charge. Mokone instituted a delictual claim for damages based on unlawful shooting, arrest, and detention.

Claim: This was a delictual claim for damages against the Minister of Police and Officer Cishe, arising from alleged unlawful shooting, arrest, and detention. The defendants admitted the shooting and detention but denied wrongdoing, relying on section 40(1)(b) and section 49(2) of the Criminal Procedure Act 51 of 1977. The issue was whether the SAPS members acted lawfully and proportionately in using force and detaining Mokone.

Discussion: The defendants alleged that Mokone pointed what appeared to be a firearm at Officer Cishe, justifying the pursuit and arrest. However, the firearm was later identified as a toy, and no charges were laid for pointing a firearm or any Schedule 1 offence. The defence relied on section 40(1)(b), which permits arrest without a warrant if a peace officer reasonably suspects a Schedule 1 offence. The evidence showed that the officers had ample opportunity to verify the nature of the object and did so at the scene, undermining any claim of reasonable suspicion. The justification for the shooting under section 49(2) was also scrutinised. No evidence was led by the officers who fired the shots, and the arresting officer admitted he did not communicate any imminent threat to others. The shooting occurred without warning shots or attempts to arrest by less intrusive means. The defendants failed to establish that Mokone posed a threat of serious violence or that no other reasonable means of arrest were available.

Findings: The arrest was unlawful, as the suspicion of a Schedule 1 offence was not based on solid grounds. The toy firearm was known to be non-functional at the time of arrest, and no charges were laid for possession or pointing. The detention was also unlawful, as Mokone was held without just cause and never appeared in court. The shooting was disproportionate and unjustified under section 49(2), with no evidence of imminent danger or necessity. The officers who fired the shots were not called to testify, and their actions could not be justified through inference. The defendants’ attempt to reopen their case to call these witnesses was dismissed due to late preparation and lack of explanation. The plaintiff’s version was consistent and credible, and the discrepancies in his pleadings were minor and adequately explained. The Minister was held vicariously liable for the conduct of SAPS members.

Order: Mokone was wrongfully and unlawfully shot, arrested, and detained by SAPS members on 10 February 2023. The Minister of Police is liable for damages to be proven in relation to the shooting, arrest, and detention. Costs of the hearing on the merits are awarded, with counsel’s fees taxed on Scale C.

Facts: McCarthy was searched, arrested without a warrant, and detained by police officers in Galvandale, Gqeberha, on 12 October 2018. He was found in possession of a small packet of tik (methamphetamine), which he claimed was used for pain relief following a recent injury to his private parts. At the time, he was walking on crutches. The search was conducted in public, and McCarthy alleged it was invasive and humiliating. He was detained overnight in allegedly unsanitary conditions and released on bail the following evening. He sued the Minister of Police for R130,000 in damages for unlawful search, arrest, and detention. The Magistrates’ Court dismissed his claims, prompting this appeal.

Appeal: McCarthy appealed against the dismissal of his claims, arguing that the search was unlawful and not based on informed consent, that the arresting officer failed to exercise discretion rationally, and that his detention was unjustified. The issue was whether the search, arrest, and detention were lawful under the Criminal Procedure Act 51 of 1977, and whether the trial court erred in accepting the police version and rejecting McCarthy’s.

Discussion: The appeal focused on whether McCarthy had given informed consent to the search and whether the arresting officer had properly exercised discretion. McCarthy testified that he was not informed of his right to refuse the search or that any incriminating items found could be used against him. He claimed the search aggravated his injury and was conducted indecently, though he conceded that tik was found in his possession. The arresting officer, Sgt Jakavula, stated that McCarthy consented to the search and was informed of the reason for the police’s presence. His version was corroborated by Sgt Bodlani and supported by a contemporaneous pocketbook entry, although McCarthy had not signed it. The trial court drew an adverse inference from McCarthy’s failure to call witnesses, but this was found to be unjustified as their availability was never established. It was considered whether the absence of a signed entry invalidated the officer’s account and whether the standing orders were strictly binding. Substantial compliance with procedural safeguards, supported by objective facts, was sufficient to establish lawful conduct.

Findings: McCarthy’s search was found to be lawful, based on his own admission that he would have consented if asked, and his awareness of his rights. The absence of a signed pocketbook entry did not invalidate the officer’s version, which was corroborated and consistent. Allegations of indecency and aggression during the search were unsupported by pleadings or evidence. The arrest was justified under section 40(1)(a) of the Criminal Procedure Act, as McCarthy was found in possession of an illegal substance in the presence of a peace officer. The discretion to arrest was exercised properly, considering the nature of the offence and the circumstances. However, the detention became unlawful after Captain Jansen decided to release McCarthy on bail due to his injury. He remained in custody for approximately two and a half hours after this decision, with no explanation provided. This period of detention was unjustified, and damages were awarded accordingly.

Order: The appeal against the dismissal of the claim for unlawful search and arrest is dismissed. The appeal against the dismissal of the claim for unlawful detention is upheld. The Minister of Police is ordered to pay R10,000 in damages for unlawful detention, with mora interest at 10% per annum from date of summons to payment. The Minister is to pay the costs of the trial and appeal, including the condonation application.

Facts: Chinodakufa, Mabvirekare, and Butoyi were travelling in a yellow Nissan Micra in Betrams, Johannesburg, when police officers discharged firearms at the vehicle. Chinodakufa and Mabvirekare, seated in the rear, sustained gunshot injuries. The shooting occurred after a man named Odar, who had been involved in a street altercation and was chased by several individuals, entered the Nissan Micra. Police officers Muhlari and Maponyane, responding to the commotion, fired shots at the vehicle, claiming they believed the occupants were involved in a crime. No weapons were found in or near the vehicle, and none of the plaintiffs were acquainted with Odar. The plaintiffs instituted a delictual claim against the Minister of Police, alleging unlawful or negligent conduct by the officers.

Claim: This was a damages claim arising from a shooting incident involving members of the South African Police Service. The plaintiffs alleged that the shooting was unlawful or, alternatively, negligent. The Minister of Police denied liability, asserting that the officers acted within the bounds of section 49(2) of the Criminal Procedure Act 51 of 1977, which permits the use of force in effecting arrest under specific conditions. The issue was whether the officers were justified in discharging their firearms at the vehicle and whether the requirements of section 49(2) had been met.

Discussion: The matter turned on whether the police officers had reasonable grounds to suspect that a crime had been committed and whether the use of force was necessary and proportionate. Both officers testified that they saw a group chasing a man and heard calls for help. They claimed that the man entered the Nissan Micra, which then drove off at speed, prompting them to fire warning shots and then aim at the tyres. Their justification relied on a perceived threat from a hand gesture inside the vehicle, which they interpreted as someone pointing a firearm. However, their accounts were riddled with contradictions, including discrepancies about visibility, the timing of the shots, and whether the windows were open. The gesture was not mentioned in their initial statements or the amended plea, and no weapon was found. The plaintiffs’ evidence, particularly from Chinodakufa, was consistent and supported by earlier affidavits and procedural documents. He testified that the runner entered the vehicle without invitation and that the occupants were surprised and attempted to eject him. Shots were fired shortly thereafter, and both rear passengers were injured.

Findings: The police officers did not have reasonable grounds to suspect that a crime had been committed. They were not privy to the altercation on Sydney Street and acted on assumptions rather than objective facts. No attempt was made to arrest the occupants, and the use of force was not preceded by any meaningful engagement or warning. The officers failed to consider alternatives, such as pursuing the vehicle or calling for backup. Their response was immediate and disproportionate, based solely on a vague hand gesture observed under poor lighting conditions. The gesture was not corroborated by any physical evidence, and the timing of the shots contradicted their own testimony. The use of deadly force was unjustified under section 49(2), which requires a clear threat of serious violence or a crime involving grievous bodily harm. None of these conditions were met. The shooting was unlawful.

Order: The defendant is liable for all the damages to be proven which resulted from the shooting incident, together with costs of the action on the High Court scale, including the costs of counsel on Scale B.

Facts: The plaintiff, a 17-year-old minor at the time, was arrested at his home in Rebone, Steiloop, Limpopo, while watching television with a friend. Police officers entered without explanation, placed him in a vehicle, and drove around for approximately three hours before reaching the station, a journey of only 21 kilometres. He was detained for about 36 hours in a small, overcrowded cell with more than five inmates, despite the cell being designed for one or two. The toilet was dysfunctional and filled with human waste, and no bedding or heating was provided. During the cold winter night, detainees huddled together for warmth. Upon release, the plaintiff was labelled a prisoner by other children, causing humiliation. The Minister of Police admitted liability for unlawful arrest and detention.

Claim: This was a damages claim for unlawful arrest and detention. The Minister of Police accepted liability, and the only issue for determination was the appropriate quantum of damages. The plaintiff sought compensation for the physical discomfort, emotional trauma, and reputational harm suffered as a result of the arrest and detention.

Discussion: The plaintiff testified to the degrading conditions of his detention and the emotional impact of being labelled a criminal by peers. No explanation was provided for the excessive delay in transporting him to the station or for the prolonged detention without charge. The absence of any defence or witnesses from the Minister’s side left key aspects of the plaintiff’s account uncontested. The vulnerability of minors in detention was emphasised, with reference to the United Nations Convention on the Rights of the Child, which South Africa ratified in 1995. The Convention requires that detention of children be a last resort and that dignity be preserved. The plaintiff’s experience, including the lack of bedding, exposure to unhygienic conditions, and emotional distress, was particularly severe given his age. Counsel for the plaintiff cited comparable awards ranging from R60,000 to R70,000, while the defence proposed R20,000 to R40,000, arguing the matter was simple and fell within the jurisdiction of the magistrates’ court.

Findings: The arrest was executed without explanation and in front of a peer, contributing to reputational harm. The delay in transportation and the 36-hour detention was excessive and unjustified. The conditions of detention, overcrowding, poor hygiene, lack of bedding, and absence of heating, were accepted as aggravating factors. The plaintiff’s age and vulnerability were central to the assessment, as minors are more susceptible to trauma and humiliation. The absence of any justification or mitigating explanation from the police reinforced the seriousness of the infringement. The emotional and physical suffering endured was significant, and the claim was upheld. While the matter was procedurally straightforward, the impact on the plaintiff warranted a higher award than the defence proposed.

Order: The Minister of Police is ordered to pay the plaintiff R80,000 in damages for unlawful arrest and detention. Interest on the damages accrues at 11% per annum from the date of judgment until payment. Costs are awarded on High Court Scale A.

Facts: A minor child sustained injuries in a motor vehicle accident on the R579 near Phokwane, Limpopo, while travelling as a passenger in a Toyota Hilux bakkie driven by Mr Mokgomogane. The collision occurred when another vehicle cut in front of the bakkie, forcing Mr Mokgomogane to swerve and ultimately collide with a third vehicle. The minor child suffered a mild traumatic brain injury and was hospitalised. The child was eight years of age at the time of the accident. His mother, acting as natural guardian, instituted a claim against the Road Accident Fund for general damages, medical expenses, and loss of earnings. General damages and a section 17(4)(a) undertaking were settled, and the claim for medical expenses was abandoned. The matter proceeded on the issue of future loss of earnings.

Claim: This was a default judgment application for damages arising from the accident, specifically for future loss of earnings. The Fund’s defence had been struck for failure to comply with discovery obligations. The issue was whether the minor child’s injuries were causally connected to the accident and whether the claimed loss of earnings was supported by expert evidence and actuarial calculations.

Discussion: Evidence was presented through affidavits under Rule 38(2), supplemented by oral testimony from Mr Mokgomogane, who confirmed that the minor child was a passenger in the vehicle at the time of the accident. Although the child’s name was omitted from the police report, the testimony and surrounding evidence established his presence and injury. Multiple expert reports were submitted. These reports detailed the neurocognitive, emotional, and behavioural impairments resulting from the head injury. Symptoms included headaches, poor concentration, social withdrawal, and declining academic performance. The educational psychologist noted a significant drop in scholastic ability, while the industrial psychologist predicted limited career prospects and reduced earning capacity. The actuary calculated future loss of earnings based on pre- and post-accident scenarios, applying contingency deductions and statutory caps. The evidence supported a prognosis of long-term impairment affecting the minor’s ability to compete in the labour market.

Findings: It was accepted that the minor child sustained a mild traumatic brain injury with lasting neurocognitive and psychological sequelae. Expert assessments confirmed moderate symptoms of depression, anxiety, and post-traumatic stress disorder, along with impaired memory, attention, and processing speed. These deficits were found to negatively affect his academic trajectory and future employability. The industrial psychologist concluded that the child would likely remain financially dependent into adulthood. The actuarial calculations, based on a retirement age of 65 and adjusted for contingencies, yielded a post-cap loss of earnings of R8,821,514. An implementation of the higher than normal contingencies must be applied which has the effect that 20% is directed to uninjured earnings, whilst on the other hand, 25% (injured earnings) on future loss of earnings.

Order: The defendant is ordered to pay the plaintiff, within 180 calendar days from 28 July 2025: R8,821,514 for loss of earnings and a section 17(4)(a) undertaking for future medical expenses. Interest will accrue on any unpaid amount after the 180-day period. Costs are awarded on a High Court scale, including counsel’s fees on Scale B. Reasonable costs for all expert reports and consultations are to be paid. All payments are to be made to the trust account of Chauke J Attorneys Inc. In the event of a dispute over costs, the plaintiff may serve a notice of taxation. Interest on unpaid costs will accrue from the date of allocator or settlement. The plaintiff’s claim is subject to a contingency fee agreement.