ACTUARIAL CASE LAW REVIEW

Facts: Klaasen was injured in a motor vehicle collision while riding his bike at the corner of Halt Road and Viking Way in Elsies River. The vehicle was driven by Mr Maqula. Klaasen sustained injuries that affected his ability to work and earn an income. Liability was settled on the basis that the Road Accident Fund (RAF) would compensate him for 50% of proven damages. All heads of damages were resolved except for the claim relating to loss of earnings. Both parties appointed industrial psychologists who produced individual reports and a joint minute outlining areas of agreement and disagreement. Six scenarios were developed and sent to an actuary for calculation, reflecting various assumptions about Klaasen’s pre- and post-accident earning capacity.

Claim: This was a claim for damages against the RAF, limited to loss of earnings. The issue was which of the six actuarial scenarios should be used to calculate Klaasen’s future loss of earnings, and what contingency deductions were appropriate.

Discussion: The parties agreed to a 60% deduction from Klaasen’s uninjured earnings, replacing the 70% used in the original actuarial report. The remaining disputes concerned which scenario to adopt and the general contingency deduction. The plaintiff proposed averaging all six calculations to avoid arbitrary preference, arguing that the evidence did not support selecting one over another. The defendant argued for the worst-case scenario, suggesting that Klaasen could still complete his studies and perform sedentary work. However, this position was not supported by the joint minute or tested in cross-examination. Neither expert had expressed a preference for any single scenario. The averaging approach was accepted as fair and balanced, incorporating both parties’ assumptions without bias. The plaintiff’s future uninjured earnings were subject to a 20% contingency deduction, based on his age and comparative precedent.

Findings: Klaasen was found to have suffered a measurable loss of earnings. The averaging of all six actuarial scenarios was adopted as the most equitable method of calculation, avoiding arbitrary selection and reflecting the full spectrum of expert opinion. The 20% contingency deduction was deemed appropriate given the plaintiff’s age and the nature of the evidence. The defendant’s argument for a higher deduction was rejected, as it relied on limited factors and did not justify deviation from the standard. The plaintiff had presented all available evidence, and the uncertainties in calculation did not preclude an award. Damages must be assessed even where precision is not possible, and a rough estimate based on available evidence was sufficient.

Order: The plaintiff’s claim succeeded with costs on a party and party scale, including counsel’s fees on Scale B. The parties were directed to submit a revised draft order based on the agreed 60% deduction and the averaged actuarial calculations.

Facts: Ndlovu was 14 years old when he was struck by a motor vehicle while walking as a pedestrian. He sustained a mild concussive head injury and later reported memory and concentration difficulties. At the time of the hearing, he had progressed to Grade 12 without failing any grades post-accident. He aspired to become an accountant and was described as coping well at school, with average intellectual functioning. Despite this, he experienced emotional distress and cognitive challenges that affected his academic and social life. Expert reports were submitted by both parties, but no joint minutes were produced due to the Road Accident Fund (RAF) terminating its service provider, who arranged for the appointment of and liaising with experts. The matter proceeded on the basis of competing expert affidavits and actuarial calculations.

Claim: This was a damages claim against the RAF for general damages and future loss of earnings. The issue was whether Ndlovu’s post-accident academic and vocational prospects had been materially diminished, and what contingency deductions should be applied to calculate the appropriate compensation.

Discussion: The parties agreed on general damages of R700,000. The remaining dispute concerned the extent of future loss of earnings. Ndlovu’s experts projected that he would have obtained a Bachelor’s degree and earned a medium-tier professional income, reaching his career ceiling by age 45. Post-accident, he was expected to achieve only a Grade 12 qualification, limiting his earning potential. The RAF’s experts offered more generalised assessments, noting cognitive and emotional difficulties but acknowledging that he remained capable of entering the open labour market. The RAF argued that he could still obtain an NQF6 qualification, and that his impairments were not severe enough to prevent meaningful employment. The evidence showed that Ndlovu had retained significant academic ability, though his emotional and cognitive challenges narrowed his vocational options and made him vulnerable in the labour market.

Findings: Ndlovu had suffered cognitive and emotional impairments but retained the capacity to complete Grade 12 and pursue further education. His pre-accident trajectory was adjusted to reflect a likely NQF7 qualification, while his post-accident prospects were limited to NQF6. A 30% contingency deduction was applied to the pre-morbid scenario, considering his age and the uncertainty of future study. A 40% deduction was applied post-morbid, reflecting the impact of his impairments. Regarding the duty to mitigate damages, it was observed that early therapeutic and educational interventions could have improved the plaintiff’s prospects. The absence of such efforts, particularly by his mother or legal representatives, was noted with concern, though not held against him. Minors injured in accidents should receive timely support to reduce long-term harm and improve vocational outcomes.

Order: The RAF was held liable for 100% of the plaintiff’s proven or agreed damages. General damages of R700,000 were awarded. R3,360,288 was awarded for loss of earnings and earning capacity. A certificate in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 was to be issued. Interest would accrue on the above amounts if not paid within 180 days. Costs were awarded on Scale B, including counsel’s fees and expert reports. Costs were to be paid into the plaintiff’s attorney’s trust account.

Facts: Jere, a Zimbabwean national residing in Soshanguve, Pretoria, was a passenger in a JMC bakkie travelling through the N1 Kranskop Toll Plaza in Limpopo. The vehicle, driven by Mabika, was towing a Nissan when it braked suddenly, causing the towed vehicle to collide with the rear of the bakkie. Jere sustained injuries and was transported to FH Odendaal Hospital, where he was treated for neck, rib, leg, and head pain. A laceration on his head was sutured, and X-rays revealed no fractures. He was discharged the same day. Following the accident, Jere avoided heavy labour due to medical advice warning of potential spinal damage. He resumed light work after four months and continued operating his gamazine paint business, though with reduced capacity and earnings. He hired additional staff and a driver to assist with operations. His pre-accident income was estimated between R40,000 and R45,000 per month, while post-accident earnings dropped to around R8,000 to R10,000. He registered a new company in 2024 but was unable to provide financial records to support his income claims.

Claim: This was a claim for damages against the Road Accident Fund, focused on past and future loss of earnings. The issue was whether Jere’s injuries had materially affected his earning capacity and whether the claimed amount was supported by credible evidence.

Discussion: Jere was the sole witness and did not call anyone to corroborate his earnings. He failed to provide proof of pre-accident income, relying instead on verbal testimony and limited documentation. His claim was amended to R4 million, but his counsel argued for more than R7,5 million based on expert reports. This discrepancy was noted. The credibility of the expert opinions was examined, which were based on unverified information supplied by Jere. His industrial psychologist accepted his earnings without supporting documentation, and the actuary’s calculations were based on inflated figures. Jere’s post-accident income was also unclear, and he admitted to misleading the court about having financial statements prepared. Jere exaggerated both pre- and post-accident earnings to widen the compensation gap. His injuries were not serious, and medical records did not confirm fractures or cognitive impairments.

Findings: Jere was found to have sustained injuries that likely impacted his earning capacity, but the extent of the loss was overstated. The expert assessments were inconsistent with the hospital records, and no clinical psychologist was appointed to verify neurological symptoms. His testimony was unreliable, and the expert opinions lacked corroboration. Higher contingency deductions were applied to account for the inflated pre-morbid earnings and absence of supporting documentation. A 50% deduction was applied to both pre-morbid earnings and future earnings, and 5% and 25% to post-morbid earnings and future earnings respectively. This resulted in a total award of R1,122,830.

Order: The RAF was ordered to pay R1,122,830 for past and future loss of earnings. An undertaking certificate in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 was to be issued within 30 days. The amount was to be paid into the applicant’s attorney’s trust account. Interest at 11,75% per annum would accrue from 180 days after the order until payment. Costs were awarded on a party and party scale, including counsel’s fees on Scale B. The issue of general damages was postponed sine die.

Facts: Dube was arrested at his workplace on suspicion of involvement in the theft of firearms. He was employed as a supervisor at a private security company and was detained from 31 October 2017 until 26 March 2019, when the charges were withdrawn due to insufficient evidence. During his detention, he was held at Johannesburg Prison (“Sun City”), where he claimed to have been assaulted and coerced into signing a confession. He testified that he was unaware of his right to bail until informed by a private attorney, whose services he could not afford. Despite multiple court appearances, the matter was repeatedly postponed for further investigation, and no explanation was given for his continued detention. Dube lost his job, missed the birth of his child, and suffered reputational harm in his community. He was recorded as a Zimbabwean national on the charge sheet, although he is South African, and alleged that this misidentification contributed to his prolonged detention.

Claim: This was a claim against the Minister of Police for unlawful further detention and malicious prosecution. The issue was whether the plaintiff’s continued incarceration was unjustified and whether the conduct of the police amounted to malice.

Discussion: The initial arrest was based on information from co-workers and was lawful. The plaintiff’s evidence focused on the conditions of his detention, the absence of legal representation, and the lack of communication regarding bail. He maintained that he was tortured into signing a confession and that the police failed to investigate his claims of innocence. The defendant argued that Dube chose to remain in custody to prove his innocence and that his failure to apply for bail broke the chain of causation. However, the plaintiff testified that he lacked the financial means and was unaware of his rights. The misidentification of his nationality and the absence of prosecutorial scrutiny were highlighted as contributing factors. The plaintiff’s detention was prolonged without just cause and the police failed to inform the prosecutor of the weak evidentiary basis for the case.

Findings: The plaintiff’s continued detention was found to be unlawful. His failure to apply for bail was not viewed as a voluntary act but as a consequence of systemic failures, including lack of legal advice, financial constraints, and misinformation. The police neglected their duty to investigate his claims and to communicate relevant information to the prosecution. The misidentification of his nationality was considered a serious error with potential implications for his detention. The claim for malicious prosecution was dismissed due to insufficient evidence of animus iniuriandi. The plaintiff’s testimony regarding the conditions of his detention and personal losses was accepted as credible and unchallenged. He was awarded R900,000 in damages for the unlawful deprivation of liberty.

Order: The Minister of Police was held liable for R900,000 for unlawful further detention. Interest at 7% per annum was awarded from the date of summons. The claim for malicious prosecution was dismissed. Costs were awarded on a party and party basis on Scale B, including reserved costs from 13 August 2021.

Facts: Khosa was arrested without a warrant in May 2013 and detained at Ritavi Police Station on suspicion of assault with intent to do grievous bodily harm and murder. He remained in custody for over three years, until November 2016, when he was acquitted of all charges. The arrest followed a mob justice incident in Nkowankowa, where a man was assaulted by community members and later died in hospital. Khosa was implicated by a witness, Dumela, who claimed he had blocked and assaulted the deceased. Khosa denied any involvement and maintained that he had called the police to the scene. He handed himself over to the police and was subsequently detained. During his incarceration, he was denied bail and suffered reputational harm, psychological trauma, and loss of income. His arresting officer, Detective Warrant Officer Homu, passed away before the trial, and his statement was introduced as hearsay.

Claim: This was a claim for damages against the Minister of Police for unlawful arrest and detention. The issue was whether Khosa’s arrest and prolonged detention were justified under section 40(1)(b) of the Criminal Procedure Act 51 of 1977, and whether hearsay evidence could be relied upon to establish reasonable suspicion.

Discussion: The defendant argued that Khosa was lawfully arrested based on reasonable suspicion and that his detention was justified due to the seriousness of the offence and his prior conviction. The arresting officer’s statement was introduced as hearsay, supported by testimony from other officers and witnesses. Khosa’s version was that he had not participated in the assault and had merely called the police. His neighbour corroborated this account. The admissibility of hearsay evidence and the reliability of the statements used to justify the arrest were examined. Contradictions emerged between witness statements, particularly regarding Khosa’s alleged involvement. The deceased officer’s suspicion could not be tested, and the hearsay evidence lacked sufficient probative value.

Findings: The arrest was based on a single witness statement, and no further corroboration was provided. Suspicion must rest on solid grounds and cannot be arbitrary or flighty. The absence of direct evidence and the reliance on untested hearsay undermined the justification for the arrest. Khosa’s arrest unlawful. The jurisdictional requirements under section 40(1)(b) were not met, as the arresting officer’s suspicion could not be shown to rest on reasonable grounds. The hearsay evidence was excluded, and the remaining testimony failed to establish a lawful basis for the arrest. The detention was also unlawful, as it flowed directly from the initial arrest. The police failed to exercise the necessary caution and failed to justify the deprivation of liberty. Khosa was detained for over three years without just cause, and the impact on his dignity, freedom, and livelihood was significant. The defendant was held liable for the full period of detention.

Order: The plaintiff’s arrest was declared unlawful. The plaintiff’s detention from 29 April 2013 to 17 November 2016 was declared unlawful. The defendant was ordered to pay costs as agreed or as determined by the Taxing Master. The quantum hearing was postponed sine die.

Facts: In September 2011, a six-week-old infant was injured in a motor vehicle accident on Chatsworth Road, Malmersbury. The insured vehicle, in which the child was a passenger, veered off the road and collided with a cement sewage barrier. The child sustained serious injuries, including cognitive and communicative deficits, and was later diagnosed with epilepsy. The child’s mother instituted a damages claim in her representative capacity on behalf of the minor. The Road Accident Fund (RAF) conceded liability and settled the general damages claim for R1,400,000. The plaintiff’s case is that the collision is attributable to the negligence of the driver of the insured motor vehicle. As a direct consequence of the accident caused by the negligence of the driver of the insured motor vehicle, the minor suffered bodily injuries.

Claim: This was a delictual claim for damages against the RAF, limited to future loss of earnings. The issue was what earning parameters and contingency deductions should be applied to calculate the minor’s loss of earning capacity, given her injuries and long-term limitations.

Discussion: Expert reports were filed by both parties. Oral evidence was led by the plaintiff’s speech therapist and industrial psychologist. The minor was found to have normal speech production but significant cognitive and communicative deficits, including poor verbal reasoning, word retrieval issues, and difficulty following instructions. These impairments were expected to limit her academic progress and employment prospects. The industrial psychologists agreed that, pre-accident, the minor would likely have completed matric and obtained a four-year university degree, entering the labour market with earnings aligned to early-career professionals. Post-accident, she was projected to enter the labour market as an unskilled worker, with limited earning potential and reduced employability due to her intellectual impairments and epileptic condition. The actuaries used these projections to calculate future income scenarios.

Findings: The plaintiff’s actuarial figures were accepted as fair and appropriate, with minimal differences between the parties’ calculations attributed to timing. The pre-accident earning potential was set at R9,105,200, and the post-accident scenario at R2,707,500. A 20% contingency deduction was applied to the pre-morbid scenario, based on the claimant’s age and projected work life. For the post-morbid scenario, a 37.5% deduction was applied, reflecting the severity of the injuries, limited academic and vocational prospects, and the likelihood of needing a sympathetic employer. The proposed 50% deduction was considered excessive, but a higher-than-normal contingency was justified. The net loss of earnings was calculated at R5,591,973.

Order: The RAF was ordered to pay R5,591,973 for loss of earnings. Costs were awarded on a party and party basis, including counsel’s fees on High Court Scale C and costs of reports, addendum reports, and qualifying fees of medico-legal experts.

Facts: Van Rhyn sustained injuries when the vehicle she was driving veered off Bo-Dal Josafat Street in Paarl and collided with a boundary wall on the opposite side of the road. The incident occurred at night on a dark stretch of road with no streetlights. Just before the collision, Van Rhyn passed a vehicle travelling in the opposite direction with its headlights on bright. She attempted to signal the driver to dim the lights but received no response. She described feeling shocked and confused by the brightness, after which everything went blank. She could not recall what happened after the vehicle passed her. Her car left the road and struck the wall. A witness, Mr De Villiers, confirmed seeing the bright lights of the oncoming vehicle and hearing a bang shortly thereafter, but did not witness the collision itself.

Claim: This was a claim for damages against the Road Accident Fund. The issue was whether the insured driver’s failure to dim the headlights caused Van Rhyn to lose control of her vehicle and whether the Fund was liable for the resulting damages.

Discussion: Van Rhyn alleged that the insured driver’s conduct was negligent and the sole cause of the collision. Her particulars of claim listed excessive speed, failure to keep a proper lookout, and failure to dim headlights among the grounds of negligence. The Fund denied liability and argued that the plaintiff had not established a causal link between the insured driver’s conduct and the collision. Van Rhyn testified that she was familiar with the area and had just exited a bend when she encountered the bright lights. She claimed that the shock and confusion caused her to lose control but could not explain how her vehicle ended up colliding with a wall located far from the road. The witness did not observe the collision and could not assist in establishing causation.

Findings: The evidence presented did not clarify the sequence of events following the moment of visual impairment. The insured vehicle had already passed by the time the collision occurred, and no explanation was offered for why Van Rhyn continued driving into the wall. The insured driver’s failure to dim the headlights was negligent. However, this alone did not establish liability. The collision occurred after the insured vehicle had passed, and the plaintiff’s account did not explain how her vehicle left the road and struck a stationary object. The absence of evidence regarding the moments leading up to the impact was fatal to the claim. The plaintiff’s version relied on a generalised sense of confusion and shock, which was insufficient to establish causation. The court was not prepared to speculate in the absence of concrete evidence.

Order: The plaintiff’s claim was dismissed with costs on the party-and-party scale.

Facts: Matandabuzo was injured in a motor vehicle accident while travelling as a passenger in a vehicle driven by Silinga. The vehicle veered off the road and capsized, resulting in serious injuries including a dislocation at the C4-C5 vertebrae level, a fractured right distal radius, and soft tissue damage. She underwent surgery involving neck fusion and internal fixation. Following initial treatment at Bizana Hospital, she was transferred to Hibiscus Hospital for further care. A direct claim was lodged with the Road Accident Fund (RAF) in 2006, which was settled for general damages and an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996. Years later, Matandabuzo appointed new attorneys to pursue the unresolved portion of her claim relating to loss of earnings.

Claim: This was a claim for damages against the RAF, limited to loss of earnings. The issue was whether the injuries sustained in the accident had materially affected Matandabuzo’s ability to continue working as a teacher, and what compensation was appropriate for the resulting financial loss.

Discussion: Matandabuzo testified that she had taken early retirement at age 60 due to the physical demands of her teaching role, which she could no longer meet. She described difficulty writing on the chalkboard and maintaining neck posture, which made teaching untenable. She also abandoned her studies due to concentration issues and time constraints during exams. Both parties appointed occupational therapists and industrial psychologists, who agreed in a joint minute that her vocational prospects had been significantly impaired and that early retirement was medically justified. Actuarial reports were prepared based on these assessments. The plaintiff’s actuary projected a loss of R3,142,149, while the RAF’s actuary calculated R3,486,215. The plaintiff elected to rely on her own actuary’s figures. The RAF’s defence was struck for non-compliance with Rule 35(1), and although its counsel appeared at trial, no evidence was led or cross-examination conducted.

Findings: The evidence supported the conclusion that Matandabuzo’s early retirement was a direct consequence of the injuries sustained in the accident. Her inability to perform core teaching functions and the abandonment of further studies were consistent with the expert findings. The joint minute confirmed that her vocational limitations were permanent and justified her decision to retire five years earlier than the statutory retirement age. The plaintiff’s actuarial projections were accepted, and a 20% contingency deduction was applied to future loss of earnings. This resulted in a final award of R2,513,719.20.

Order: The RAF was ordered to pay R2,513,719.20 for loss of earnings. Costs were awarded on a party and party basis, including counsel’s fees and expert costs.

Facts: Van Vuuren was driving on a rural road between Morebeng and Soekmekaar when her vehicle veered off the tarred surface onto the gravel shoulder. While attempting to return to the road, she lost control and collided with an oncoming vehicle. The impact resulted in the death of two passengers and caused Van Vuuren to suffer severe injuries, including the above-knee amputation of both legs. The road was part of the national network maintained by the South African National Roads Agency Ltd (SANRAL), with engineering oversight provided by Worley Parsons RSA and maintenance carried out by Penny Farthing Engineers SA. The plaintiff alleged that an excessive edge-drop between the tarred surface and the gravel shoulder contributed to the loss of control.

Claim: This was a claim for damages against SANRAL, its engineers and contractors, and the Road Accident Fund (RAF), brought on the basis that all were joint wrongdoers. The issue was whether any of the defendants had breached their duties in a manner that caused or contributed to the accident, and how liability should be apportioned.

Discussion: The plaintiff relied on expert evidence showing that the edge-drop at the accident site ranged between 160mm and 230mm, exceeding the ground clearance of her vehicle. It was argued that this created an unstable dynamic when the vehicle attempted to re-enter the road, causing a sudden yaw and loss of control. SANRAL and its contractors contended that the road had been recently resurfaced and maintained, and that prioritisation of repairs was based on severity and available resources. The supervising engineer had not identified the edge-drop as a critical hazard requiring immediate attention. The plaintiff’s expert conceded that the shoulder could erode quickly due to rain and that industry standards allowed up to six months for edge-drop repairs. The insured driver was found to have been travelling at excessive speed, which reduced his ability to avoid the collision.

Findings: The plaintiff had no recollection of the accident and provided no direct evidence of her driving conduct. Her vehicle was found to have entered the gravel shoulder without justification, and her attempt to return to the road was executed in a manner that contributed to the loss of control. The plaintiff was found to have been negligent in veering off the road and in the manner she attempted to return to it. The insured driver was also found to have contributed to the accident by travelling at an excessive speed. SANRAL, Worley Parsons, and Penny Farthing were not found to have acted negligently or wrongfully. Their maintenance practices exceeded industry standards, and no evidence showed that the edge-drop had been ignored or improperly prioritised. The plaintiff’s claim against these parties was dismissed. Liability was apportioned equally between the plaintiff and the insured driver. The RAF was held liable for 50% of the plaintiff’s proven damages.

Order: The RAF was declared liable for 50% of the plaintiff’s agreed or proven damages. The RAF was ordered to pay the plaintiff’s trial costs. The plaintiff was ordered to pay the costs of SANRAL and Worley Parsons. The plaintiff was ordered to pay Penny Farthing’s costs up to 23 April 2025. SANRAL was ordered to pay Penny Farthing’s costs from 24 April 2025. All costs included those of senior and junior counsel, where employed.