Spartan
Caselaw
ACTUARIAL CASE LAW REVIEW
Issue 131 – Monday 26 August 2024
ACTUARIAL – Medical negligence – Public healthcare defence – MEC seeking separation of issues – Contending for determination of damages to be determined in three phases – Reference to expert evidence does not constitute pleading – Not grounds for separation – Defendant can raise an exception or proceeding to set aside pleading as irregular – Proposed separation is neither convenient nor likely to lead to expedition or a saving of costs – Delay would prejudice child unduly – Application dismissed – Uniform Rule 33(4).
Facts: The actions of the defendant’s employees resulted in a minor child sustaining brain injuries known as cerebral palsy. The issue of liability was settled on the basis that the defendant is 100% liable for the child’s damages. The defendant seeks that quantification of the plaintiff's claim for damages for medical negligence be heard and decided separately from the issue of whether the defendant can provide the future medical expenses that have been decided as being reasonable and necessary, in terms of its plea. The latter plea it calls the Public Healthcare Defence (PHD). In essence it is a plea of mitigation of damages. The submission by the defendant is that its case on the PHD can only be conveniently run if the requirements of the child are first and separately determined.
Application: Interlocutory application brought by the defendant in terms or Uniform Rule 33(4) for separation of issues in an action for damages caused by the defendant in the birth process of the child on behalf of whom the action is brought.
Assessment: The defendant seeks to suggest that the PHD is a novel “incorporation” into common law. The argument proceeds on the basis that the availability of this new defence creates evidential challenges which can only be dealt with conveniently on the separated basis contended for. It argues that, if this separation is not allowed, the trial will become unduly lengthy and costly due to superfluous, speculative, and undirected evidence having to be led because the needs of the child have not been determined. The plaintiff disputes that there is anything novel or special about the defence and denies that it dictates that a separated procedure is indicated. The general reference in the particulars of claim to the R35 million being “an estimated amount based on the reports of the plaintiff’s experts” and reflecting “a projected amount which the plaintiff will in the future incur in respect of hospital, medical and related expenses in her representative capacity for and on behalf of her minor child” renders the pleading of the claim far from clear and precise.
Findings: The reference to expert evidence does not constitute pleading. This is not, however, grounds for a separation. A defendant faced with pleadings which may not give the particularity required to mount a defence, has various options open to it, including the taking of an exception or the setting aside of the pleading as irregular under Rule 30. The defendant has not availed itself of either of these options. The particularising of the treatment modalities required, and their costs will allow for the necessary narrowing of issues on the mitigation defence. The separating of an action of this nature into three distinct hearings is neither convenient nor indicated. The issues of need and requirement to meet the need are unlikely to be discrete. Evidence in relation to both issues is best determined together. To separate quantum into two stages will result in unconscionable delay for a vulnerable child and those caring for her. The plaintiff has succeeded in showing that the proposed separation is neither convenient nor likely to lead to expedition or a saving of costs and that the delay which it would occasion would prejudice the child unduly.
Order: The application for separation is dismissed with costs.
FISHER J
ACTUARIAL – Loss of income – Change of careers – Promising career in dramatic arts for talented plaintiff – Seriously injured in fall at university – Changing degree because field of performing artist no longer possible – Retirement age of 70 since professional people work for longer – Even without accident, plaintiff would have been compelled to branch out into teaching and therapy – Uninjured income of R17,225,965 less contingency deduction of 15% – Injured income of R8,598,397 less a contingency deduction of 40% – Net loss of R9,483,032 – Liability decided on basis that plaintiff entitled to 80% of her proven or agreed damages.
Pre-accident: The plaintiff matriculated in 2016 and then enrolled for a Bachelors degree in dramatic arts. It was her intention to have a career as a performing artist. She was potentially well-equipped to work as a performing artist as she was what is known as a “triple threat” – she could act, sing and dance. Because of this, the industrial psychologist was of the opinion that had she not been injured the plaintiff would have been in a situation where the “world was her oyster.” However, performing artists often find that there is not sufficient work in the entertainment industry and they then gravitate towards teaching and therapy. In 2017, before the accident, the fields of performing arts, teaching and therapy were all open to her. During her schooldays she took part in sport and excelled in touch rugby at provincial level. It was important to her to pay towards our own studies and she worked to pay for her tuition. Before the incident her health was good.
Accident: The plaintiff was an 18-year-old student studying towards a BA degree in Dramatic Arts at the University of the Witwatersrand when she was seriously injured in 2017 during the course of practical tuition that took place on the roof of the Wits Theatre complex. She fell through a skylight and onto a tiled floor. She sustained a neck injury, injuries to both knees, soft tissue injuries to her heels and mid-feet, pelvic fractures, wrist fracture and spinal injuries. As a result of the incident she changed her enrolment to that of a Bachelors’ degree in performing and visual arts as the desired field of performing artist was now no longer open to her.
Loss of income: Professional people tend to work longer than others and in recent years advancements in pharmaceutical and medical science as well as economic pressures have led to people retiring later in life. A calculation based on a retirement age of 70 is the correct one. The earnings of performing artists are uncertain and variable and it must be taken into account the probability that even if the accident had not happened the plaintiff would have been compelled by circumstances to branch out from the performing arts into teaching and therapy. This was done in the actuarial calculations. Calculations were made on the value of income uninjured of R17,225,965 less a contingency deduction of 15% and a value of income injured of R8,598,397 less a contingency deduction of 40%, which gave a total net loss of R9,483,032. The issue of liability had been settled on the basis that the plaintiff was entitled to 80% of her proven or agreed damages. After application of apportionment, this resulted in a figure of R7,586,425.60.
NHI and contingencies: The National Health Insurance Act 20 of 2023 was signed by the President and the date of commencement still has to be proclaimed. Users of the Fund will be entitled to receive necessary quality health care services free at the point of care and to purchase health care services that are not covered by the Fund through a complementary voluntary medical insurance scheme. The defendant argued for a 10% contingency deduction to be applied to damages awarded in respect of future medical expenditure. It is a notorious fact that the legislation is controversial and that it may be subjected to constitutional challenges. It appears that the question whether a specific product or service will be available “for free” through the Fund depends on whether it is included in the Formulary or a complementary list. It is at present not possible to identify the ambit of coverage. There are too many uncertainties to apply a contingency at present.
Order: The defendant shall pay R11,289,412.86, calculated as follows:
Past medical expenditure – R60,592,06
Past loss of earnings – R30,240
Future loss of earnings – R7,586,425.60
Future medical expenses – R3,052,155.20
General damages – R560,000.
MOORCROFT AJ
ACTUARIAL – Interest – In duplum rule – Award for damages against PRASA – Order for payment of interest from date of service of summons – Delays caused by appeal to full bench and then SCA – Outcome that trial court order reinstated – Claim was for unliquidated damages which became fixed when trial court assessed and awarded damages – Such pre-judgment interest not arrear interest – Pre-judgment interest referring to period from service of summons to judgment date – Pre-judgment interest award made in terms of section 2A on an unliquidated debt, which then became liquid when court fixed the quantum – Prescribed Rate of Interest Act 55 of 1975, s 2A.
Facts: In 2001, Mr Reyners fell out of a moving train while travelling to work and suffered various injuries, including a skull fracture and severe traumatic brain injury. The trial court found that the parties had settled the merits of the matter on the basis that PRASA was liable for 80% of the plaintiff’s proven damages and on 3 June 2020 the trial court made an order where PRASA was “ordered to make payment to plaintiff in the amount of R3,246,484, together with interest thereon from the date of service of summons to date of payment.” The award was for past and future loss of earnings, medical expenses and general damages. There were delays caused by an appeal to the full court and then to the Supreme Court of Appeal, which resulted in the order of 3 June 2020 being reinstated. After the sheriff attached and removed 23 vehicles belonging to PRASA, it made the following payments which it states is in satisfaction of the principal debt: R3,326,484 on 15 March 2024 and R3,589,397.32 on 16 April 2024 which came to a total of R6,835,881.32.
Application: According to PRASA, it satisfied the judgment debt with interest once it made its last payment on 16 April 2024. The plaintiff calculates the judgment debt plus interest as being a total sum of R10,143,617.02, but PRASA’s view is that the plaintiff’s calculation of interest is incorrect as he has not suspended the running of interest after it reached the in duplum amount of R3,246,484 until the SCA’s judgment date of 28 November 2023. The major dispute revolves around the application of the in duplum rule and the date when post-judgment interest on the judgment debt commences. A secondary issue is whether the judgment debt comprises the capital sum awarded by the trial court plus pre-judgment interest.
Discussion: The parties agree that interest on the capital sum as awarded by the trial court of R3,246,484 commenced to run from the date of service of summons being 23 August 2013, at the rate of 15, 5% per annum. (In the trial court’s order, the capital amount awarded is R3,246,484, and not R3,326,484 which PRASA uses throughout its calculation.) The plaintiff’s case is that the in duplum rule finds no application to pre-judgment interest and while the rule applies to post-judgment interest, it is not applicable in these circumstances. The plaintiff submits that a distinction must be drawn between a liquidated and an unliquidated debt, and submissions were made regarding the moment when an unliquidated debt becomes liquidated. The plaintiff holds the view that because an unliquidated debt is not due until the court’s judgment fixes or grants it, thus the in duplum rule does not apply to pre-judgment interest on unliquidated debts but only applies to arrear interest and post-judgment interest.
Findings: Given that the plaintiff’s claim was for unliquidated damages, which then became fixed when the trial court assessed and then awarded damages as set out in its order, plus interest payable thereon from the date of service of the summons, it cannot be said nor held that such pre-judgment interest is or was arrear interest. The court shares the view held by counsel for the plaintiff, that the trial court awarded pre-judgment interest in terms of section 2A(2) of the Prescribed Rate of Interest Act 55 of 1975 as it awarded interest on the capital sum as from date of service of the summons on PRASA (see para [31] and the judge’s emphasis). Section 2A(1) refers to “the amount of every unliquidated debt as determined by a court of law . . . shall bear interest as contemplated in section 1”. Pre-judgment interest would refer to the period from service of the summons on 23 August 2013 to judgment on 3 June 2020, and the court accepts that the pre-judgment interest award was made in terms of section 2A of the Act on an unliquidated debt, which then became liquid when the court fixed the quantum of damages owed by PRASA. As to post-judgment interest, the court is inclined to the precedent that the applicable rate to apply to post-judgment interest is the rate of interest applicable at the time that the trial court delivered its judgment, on 3 June 2020, as opposed to the 15,5% per annum applicable when the matter commenced. Accordingly, the rate of interest applicable on the 3 June 2020 was 9,75% which is applicable to post-judgment interest.
Order: The counter-application is granted in the following terms: It is declared that as at 7 August 2024, and after taking into account payments made by PRASA pursuant to the judgment of the trial court dated 3 June 2020, PRASA is presently obliged to pay the plaintiff a balance of R2,320,322.68, which amount is presently due, owing and payable, together with interest thereon at the rate of 9,75% per annum from such date to date of payment.
PANGARKER AJ
22 July 2024
PULLINGER AJ
CIVIL LAW – Delict – Trench in road – Lost control of motorcycle when traversing trench – Fatally injured deceased – Loss of support – Deceased’s earnings paid for whole family’s expenses – No explanation could be proffered for absence of warning sign – Absence of warning signs of both curve and uneven road surface caused accident – Led to fatal injury – Defendant acted wrongfully and negligently by not posting warning signs – R2,093,717.
Claim: This is an action for loss of support. The plaintiff sues in delict in her personal capacity and in her capacity as the mother and legal guardian of the three minor children borne from the marriage between her and the deceased. The deceased, then riding a motorcycle, lost control of that motorcycle and was fatally injured. The dispute is whether there was a danger (trench) in the road upon which the deceased was travelling, and, if so, whether there was adequate warning of such danger to him.
Liability: On a balance of probabilities, the trench was not properly reinstated. The clear and unequivocal evidence was that it is very difficult in such a narrow space to properly compact the subterranean surfaces thus leading to subsistence in the reinstated trench. No explanation could be proffered for the absence of a warning sign on the approach to the curve in circumstances where, on curves in the road further up the street, and along the path of travel of the deceased, warning signs were present. The photographs of the scene taken by Sergeant Lottering, and particularly the skid marks, lead to a conclusion that it was primarily the existence of the subsistence in the road surface that occasioned the deceased's loss of control of his motorcycle. None of the evidence presented by the plaintiff was seriously challenged. The evidence of Dr de Beer and Namir Waisberg is accepted. The conclusions they reached are supported by the facts proved by the plaintiff. The absence of warning signs of both the curve and the uneven road surface caused the deceased to lose control of his motorcycle and this led to him being fatally injured.
Loss of support: The plaintiff's case is predicated upon a breach of a legal duty the defendant owed to the deceased. The trench is not clearly visible at night under the lighting conditions the deceased encountered. There was no warning of the dangerous road surface nor of the curve in the road. The fact that there have been other accidents at the same point required that the defendant investigate that portion of the road. The evidence from the defendant is that no investigations have taken place. The defendant acted wrongfully and negligently by not posting warning signs. In failing to do so, the defendant did not adhere to the SA Roadside Manual. The defendant breached its legal duty to the deceased. 15% future contingency should be applied.
Award: Judgment is granted against the defendant in an amount of R2,093,717.
13 August 2024
GOVINDJEE J
PERSONAL INJURY – Medical examination – Presence of legal representative – Minister refutes entitlement to presence of legal representative at psychological and psychiatric assessments – Minister’s experts considered presence of third party to be unnecessary and risky – Seeking to limit plaintiff’s rights is a non-starter – Plaintiff is entitled to be legally represented at medical examination – Uniform Rule 36.
Facts and issue: Is a plaintiff entitled to have her own legal representative present during psychological and psychiatric assessments required by the defendant in terms of Uniform Rule 36? The plaintiff was abducted by an unknown assailant, held captive, raped and abandoned. She instituted action against the Minister for psychological trauma and psychiatric injury suffered due to the way the police searched for her and investigated the incident. The Minister does not dispute that a plaintiff is entitled to have her legal representative present at medical assessments for physical injury. The dispute turns on whether the same entitlement prevails at psychological and psychiatric assessments, which the Minister refutes.
Discussion: The Minister objects to the presence of the plaintiff’s legal representative at the interviews and evaluations to be conducted by his experts largely because of the views of the Minister’s experts themselves. Dr Colin, a registered psychiatrist, considered the presence of any third party to be unnecessary, undesirable, and risky due to the possible impact on the validity of the outcome of the examination. The Minister’s stance was to concede that Ms Kawa was, in general, entitled to have her legal representative present during psychological and psychiatric assessments. On the Minister’s approach, however, this right was to be ‘balanced’ against the state’s constitutional entitlements. The outcome turns on the proper approach to be given to Uniform Rule 36(1). In Goldberg v Union and SWA Insurance Co Ltd 1980 (1) SA 160 (E), the court concluded that ‘a claimant is entitled to be legally represented at a medical examination held in terms of Rule 36’. That decision remains the leading authority on point.
Findings: The result is that the court bound by the decision in Goldberg, unless of the view that it is clearly wrong. The interpretation of the rule and its consequence, as articulated in Goldberg, was correct. Absent a law of general application, seeking to limit the plaintiff’s rights with reference to the kinds of considerations listed in section 36(1) of the Constitution is a non-starter. Instead, the preferred approach is to broaden the content of the constitutional rights implicated, notably the rights to bodily and psychological integrity and dignity.
Order: It is declared that the legal representative of the respondent is entitled to be present and seated behind her during the interviews with Drs Olivier and Colin.
19 August 2024
MASIKE AJ
PERSONAL INJURY – Unlawful arrest and detention – Quantum – Warrantless arrest with no explanation – Elderly plaintiff – Overcrowded cell – Request for medication refused – No evidence to justify necessity of arresting and detaining plaintiff – Unlawful – Detained for five days – Did not have opportunity to address any allegations – Constitutional rights wilfully trampled by employees of defendant – Just and fair amount of compensation – R175,000.
Facts and issue: Claim for unlawful arrest and detention of the plaintiff for a period of five days and four nights. The plaintiff received a phone call from a person who identified himself as Pule. Pule informed the plaintiff that members of the SAPS had found stolen cattle on the plaintiff’s farm, and he should report to the police station, which the plaintiff did. On arrival, Pule informed the plaintiff that he was under arrest. No warrant of arrest was presented, and the plaintiff was not given an opportunity to make a statement or to make a phone call to his family to let them know that he had been arrested.
Discussion: The plaintiff was released from the cells by a police officer whose names and ranks are to the plaintiff unknown with no explanation given for the reason of his arrest and subsequent release. There is no evidence to justify the necessity of arresting and detaining the plaintiff. In the absence of an explanation for the arrest and detention by the employees of the defendant, the arrest and detention of the plaintiff was unlawful. The court considers relevant factors in arriving at a just and fair quantum for the unlawful arrest and detention of the plaintiff. The plaintiff cooperated with Pule, since he travelled from Soweto to Phokeng SAPS out of his own volition. The employees of the defendant did not explain the reason for the arrest of the plaintiff and his detention. The plaintiff did not have an opportunity to address the allegations, if any, against him. The conditions of the cells from the description by the plaintiff were inhumane and unhygienic.
Findings: The employees of the defendant failed to do the bare minimum, that is provide the plaintiff with his medication. The Constitutional rights of the plaintiff in terms of Section 12(1)(a) and section 35(1)(d) were wilfully trampled by the employees of the defendant, the very people who were tasked with defending the Constitutional Rights of the plaintiff. The Constitution jealously guards the freedom of the freedom of the individual and the court will be remiss in not making an award which is commensurate with the damages suffered by the plaintiff.
Order: The arrest and detention of the plaintiff is declared unlawful. The defendant is to pay the plaintiff an amount of R175,000.
8 August 2024
REINDERS J
RAF – Liability – Contributory negligence – Heavy machinery and road construction site – On site injury – Injuries sustained on leg resulted in amputation above knee – Both plaintiff and defendant were negligent – Both knew or should have known that they at all times had to keep a proper lookout – Driver ostensibly became bewildered and drove over plaintiff again – Just and equitable finding – Defendant was negligent for 60% and plaintiff for 40% – R4,029,180.
Claim: The plaintiff was working at a road construction site when he was struck by an eight-ton roller, operated by Mr Mpempe (insured driver). The plaintiff sustained serious multiple fractures to his left lower leg as well as multiple fractures of his right foot and upper right forearm. The injuries sustained on his leg sadly resulted in an amputation above his knee. It is alleged by the plaintiff that the injuries were caused by the negligence of the insured driver who was negligent (in one or more ways). The defendant denied liability towards the plaintiff, alleging that the plaintiff was the sole cause of the collision as he was negligent.
Liability: The plaintiff was injured at a construction site and conceded that due to the potentially hazardous nature of the roller, pedestrian movement should be restricted to the greatest extent feasible. The roller is equipped with a buzzing siren that alerts those in the rear that it is in reverse mode and warns them to yield, making forward and backward movements whilst the siren was in reverse mode. Counsel for the defendant submitted that the only negligence that can be attributed to the insured driver is that he did not keep a proper lookout when he reversed. The court finds that both plaintiff and defendant were negligent.
Contributory negligence: Both knew that they were in a secured area where members of the public were excluded due to the operation of heavy machinery and the inherent danger of the work undertaken. Both knew or should have known that as a result they at all times had to keep a proper lookout. The defendant was well qualified to operate the roller and should have known that a failure to keep a proper lookout could result in serious injuries to others and in particular the plaintiff who was in the immediate vicinity of the roller. The plaintiff was neither an ordinary pedestrian nor a less qualified, inexperienced construction worker. The uncontested evidence is that the driver ostensibly became bewildered and drove over the plaintiff again. In this respect, the plaintiff was on the ground and could not prevent any further injury. It would be just and equitable to make a finding that defendant was negligent for 60% and plaintiff for 40% of the damages sustained by plaintiff.
Award: An apportionment of 60% / 40% is awarded in favour of the plaintiff in respect of the merits of the claims against the defendant. The defendant shall pay to the plaintiff a capital amount of R4,029,180.
13 August 2024
NORMAN J
RAF – Loss of income – Child – Age 7 when suffering severe crush injury to foot – Minor was healthy and would have worked until age 65 years – Actuaries based assumptions on career and earnings as projected by industrial psychologists – Not persuasive and rejected – Not considered an equal competitor in open labour market – Delay attributed to period of recuperation from injuries – Contingency deductions of 25% pre-morbid and 40% post-morbid applied – R915,925.
Pre-accident: At the time of the accident, the minor, Z, was seven years old and a scholar in Grade 1. At the time of the collision the minor was healthy and would have worked until age 65 years.
Accident: A truck collided with a minor boy child, Z, who was a pedestrian. The plaintiff is his biological mother who instituted the action, on his behalf, and claimed general damages, past and future medical expenses, future loss of income and/or reduction of earning capacity. The claim is for damages claim involving the minor child.
Post accident: But for the collision, the minor would have obtained his Grade 12 by December 2030 and commenced his tertiary studies in January 2031. He would have earned R100 per day as a casual worker, 2-3 days a week was completing his studies for the period January 2031 to December 2034. He would have completed his tertiary studies by December 2034. Because of the accident, Z sustained a crush injury of the right foot and ankle with severe lacerations of the lower leg, ankle and foot and laceration of multiple tendons. He will at no stage be fully mobile and in fact would be very restricted in this area. This will affect him in that he is a Grade behind in school and once he has completed his schooling, he will be restricted in what physical work he can apply when he decided on his future career.
Assessment: There is the one-year delay attributed to the period of recuperation of Z from the injuries. He is going to lose earnings during tertiary studies. Ms Futshane submitted that a person with disability like Z would receive preferential treatment within the labour market. This submission is not supported by the various experts whose evidence has been admitted by the defendant. There is no basis to find that a 30% contingency should be applied to earnings pre and post – morbidly. The contingency deductions of 25% pre-morbid and 40% post-morbid proposed by the plaintiff are reasonable and consistent with the proven facts and the risk factors relevant to the case. The defendant did not object to the proposed draft order sought by the plaintiff. In the draft order plaintiff considered the contingency deductions proposed by him. The plaintiff has been successful in its argument for justification of higher contingencies on the injured income.
Award: The defendant shall pay an amount of R915,925 in full and final settlement in respect of the plaintiff’s claim for loss of income.
12 August 2024
HOLLAND-MUTER J
RAF – Default judgment – Notice of intention to defend – Procedure – Notice delivered evening before application for default in court – Defendant relying on Rule 19(5) – Alleging it has no obligation to explain belated delivery or seeking condonation – Proviso does not operate to exclusion of provisions of Rule 27 – Belated delivery of notice of intention to defend constitutes gross abuse of process – Set aside – Plaintiff may proceed to enrol matter for default judgment – Uniform Rule 19(5).
Facts and issue: On the eve before the matter was to be heard on the default judgment role, the RAF filed a belated notice of intention to defend the action. The notice was “filed” by email after close of business to the office of the plaintiff’s attorney and when the matter was called, such notice was not uploaded onto the CaseLines. Mr Vermeulen, counsel for the plaintiff, disclosed the existence of the notice to defend. The defendant uploaded the notice of intention to defend on 24 April 2024. The plaintiff uploaded the notice of intention to defend on 19 April 2024. In the present matter there was no appearance on behalf of the RAF and Mr Vermeulen requested default judgment.
Discussion: In view of his disclosure of the notice of intention to defend, the matter was postponed until 16 May 2024 for arguments by both parties on the issue of Rule 19 (5) of the Uniform Rules of Court and whether the belated notice of intention to defend could be held as an abuse of process. The accident occurred on 29 August 2021. The claim was duly lodged with the RAF on 22 July 2022. The respective 60 and 120 days in terms of the Act for the RAF to investigate the matter lapsed on 21 November 2022. The RAF raised no objection of kind in the matter. Summons was issued and served on 8 December 2022 on the RAF and attorneys’ office, some 1 year and 4 months later. No notice of intention to defend was filed within the allowed dies. The plaintiff requested the RAF on three occasions whether the RAF was content to oppose the matter, to file notice of intention to defend. Despite these three letters, no response was forthcoming from the RAF.
Findings: Counsel on behalf of the RAF dealt with the issue of abuse of process and as starting point submitted that a proper reading of Rule 19(5) excludes any abuse of process. A defendant’s electing to make muse of this sub-rule should not be construed as an abuse of process, but rather a necessary step in the administration of justice. The abuse complained about is the belated delivery of a Notice of Intention on the eve before the application for default judgment was set down for adjudication. The RAF at all material times failed or neglected to participate in the litigation process, even after at least three requests were sent to it on behalf of the plaintiff, to become involved in the matter. The plaintiff did more than expected to engage with the RAF to have the RAF involved in the matter. The RAF’s belated delivery of the notice of intention to defend constitutes a gross abuse of process of court.
Order: The defendant’s notice of intention to defend is set aside. The plaintiff may proceed to enrol the matter on the Default Judgment Roll for adjudication of the quantum portion of the claim.
5 August 2024
MALI J
RAF – Loss of income – Cash in transit security guard – Injuries resulted in serious long-term impairment or loss of body function – Significant impact on his pre-morbid job – Performs lesser duties – Can no longer carry heavy firearms – Ability to compete in open labour market negatively affected – Diminished physical capacity proven to have negative impact on future earnings – 10% contingency had accident not occurred and 30% contingency for future loss of earnings applicable.
Pre-accident: The plaintiff who was 25 years old was employed as a cash in transit security guard by Fidelity Security Company for a period of approximately 8 years. The plaintiff ‘s highest standard of education is grade 11. He further possesses Grade C Security Certificate. He earned an amount of R5,000 per month for the whole period before accident.
Accident: The plaintiff claims damages for the injuries he sustained due to the negligence of the insured driver who caused the accident whilst the plaintiff was driving a motor bike. The court is satisfied that the accident was solely caused by the negligence of the insured driver.
Post-accident: On post morbid the plaintiff earns an amount of R6,000 per month, though he no longer performs the same duties due to injuries. He testified that he performs lesser duties as he could no longer carry heavy firearms and was therefore accommodated by the employer. The orthopaedic Dr NC Hadebe opines that the plaintiff suffered severe acute pain for about 5 weeks. He continues to suffer discomfort of standing prolonged periods. In the result his injuries resulted in a serious long-term impairment or loss of body function. The plaintiff can be managed with pain medication and surgical treatment.
Assessment: In quantification of the plaintiff’s claim for loss of earnings, reports of experts were admitted as evidence. Regarding the plaintiff’s occupation and future employability, the orthopaedics considered opinion is that since the plaintiff has pain in his right leg his choices of occupation requiring prolonged standing and walking will be limited. His ability to compete in an open labour market has been affected. The plaintiff will not reach the pre-accident postulated position of a Custodian. The plaintiff’s working capacity is compromised. The diminished physical capacity has been proven to have negative impact on the plaintiff’s future earnings. In the result the plaintiff has succeeded in proving that he will suffer a true patrimonial loss in that his employment situation has patently changed. Deductions of 10% contingency but for the accident presents a fair value and 30% having regard to the accident will fairly compensate the plaintiff for the loss suffered because of the accident.
Award: The defendant is ordered to pay the plaintiff the amount of R1,677,040 for loss of earnings.
BOOKS / RESEARCH / ARTICLES
Authors: Bernardino Romera-Paredes, Mohammadamin Barekatain, Alexander Novikov, Matej Balog, M Pawan Kumar, Emilien Dupont, Francisco J R Ruiz, Jordan S Ellenberg, Pengming Wang, Omar Fawzi, Pushmeet Kohli and Alhussein Fawzi
Large language models (LLMs) have demonstrated tremendous capabilities in solving complex tasks, from quantitative reasoning to understanding natural language. However, LLMs sometimes suffer from confabulations (or hallucinations), which can result in them making plausible but incorrect statements. This hinders the use of current large models in scientific discovery. Here we introduce FunSearch (short for searching in the function space), an evolutionary procedure based on pairing a pretrained LLM with a systematic evaluator. We demonstrate the effectiveness of this approach to surpass the best-known results in important problems, pushing the boundary of existing LLM-based approaches. Applying FunSearch to a central problem in extremal combinatorics—the cap set problem—we discover new constructions of large cap sets going beyond the best-known ones, both in finite dimensional and asymptotic cases. This shows that it is possible to make discoveries for established open problems using LLMs. We showcase the generality of FunSearch by applying it to an algorithmic problem, online bin packing, finding new heuristics that improve on widely used baselines. In contrast to most computer search approaches, FunSearch searches for programs that describe how to solve a problem, rather than what the solution is. Beyond being an effective and scalable strategy, discovered programs tend to be more interpretable than raw solutions, enabling feedback loops between domain experts and FunSearch, and the deployment of such programs in real-world applications.
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
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