Spartan
Caselaw
ACTUARIAL CASE LAW REVIEW
Issue 140 – Monday 4 November 2024
ACTUARIAL – Expert witness – Acceptance of reports – Court noting improper commissioning of affidavits of experts – Judgment referred to Legal Practice Council – Actuary's calculations based on reports of industrial psychologist – Court not accepting reports because of deficient commissioning and because of unexplained and significant discrepancies between the two reports – Second report appears to have been deliberately exacerbated – Loss of income claim dismissed.
Facts: In 2016, the plaintiff, a fifty-year-old adult female at the time, was a passenger in a taxi with a trailer that was hitched to the taxi when it was engaged in an accident. It was stated that the taxi overturned while travelling from Mokopane to Polokwane on the N1, where the driver allegedly lost control of the vehicle due to a burst tyre. The plaintiff pleaded that she sustained an L1 compression fracture, C-spine fracture, pelvis fracture, loss of control of the anal sphincter, and a left ankle fracture.
Commissioning: The acceptance of the expert reports is complicated by the improper commissioning of their subsequent affidavits. The bulk of the experts testified under oath that they did not sign the declarations before a commissioner but rather independently at their offices. If not properly commissioned, those affidavits must be rejected. For example, Dr Baloyi confirmed that hard copies of the affidavits were delivered to his practice for signature and he signed while alone. Before two distinct attorneys, the two purported affidavits were "commissioned”. And Dr Mazwi confirmed that he received the expert affidavit via email, printed it, and signed it when alone. His secretary couriered it back to the attorney on record. See the other examples of experts signing documents from para [15].
The industrial psychologist: The industrial psychologist does not provide a rationale for the substantial discrepancies between her two reports. The November 2023 report, the second to be compiled by this expert, appears to have been deliberately exacerbated. The plaintiff's assessment of past and prospective earnings is excessively inflated, as evidenced by the industrial psychologist's data analysis. This, in turn, had a direct impact on the actuary's calculations. The industrial psychologist did not satisfy the criteria for an expert witness. She failed to establish a foundation for her status as an expert witness in a trial, with the exception of her industrial psychology credentials. Her assessments were substantially predicated on unverified evidence that she had obtained from the plaintiff, rather than on established facts. Her testimony, when viewed objectively, was merely that of an advocate advocating for the plaintiff. It was not objective; rather, it was intended to substantiate the conclusions she had reached. That she did not sign the affidavits before a commissioner of oaths, and the vast discrepancies between her two reports, should weigh adversely against her.
Findings: Although the plaintiff endeavoured to substantiate her loss of earnings via the report and calculations of the industrial psychologist and the actuary who based his report on the findings of the industrial psychologist, the actuary's calculations lack evidentiary weight due to the fact that the court is unable to accept the industrial psychologist's reports and affidavits, as (a) their reliance on reports and subsequent declarations were not properly commissioned and sworn to under oath; and (b) the significant discrepancies between the two reports. The plaintiff's claim for past and future loss of earnings must be dismissed. In the absence of admissible evidence presented to the court demonstrating a loss of earnings and a prospective loss of future earnings due to the accident, no claim for quantum is compensable.
Order: The plaintiff’s claim for past and future loss of earnings is dismissed. The Registrar is directed to bring this judgment to the attention of the Director for the Limpopo LPC forthwith for their further investigations into the expert declarations that were not properly commissioned.
MARAIS AJ
ACTUARIAL – Expert witness – Missing medical records – Issue of negligence related to baby's brain damage and cerebral palsy – Defendant is statutory custodian to keep and protect records – Medical records of plaintiff existed – Experts based their conclusions on scant documentary evidence – Any definitive expert opinion on cause of injury to child is hamstrung by missing medical records – Court cannot proceed on tangent of speculation not founded on primary facts – Appeal dismissed.
Facts: The plaintiff avers that the negligence of the hospital staff led to her baby, R, suffering irreversible brain damage leading to cerebral palsy. The plaintiff was transferred by ambulance to the Lehurutshe Hospital. At Lehurutshe Hospital, her file was handed over to the medical staff. This was the last occasion that the plaintiff had seen her file. On visiting the hospital sometime after the birth of baby R, the plaintiff was informed that her file could not be located. The plaintiff avers that another file was opened. The plaintiff confirmed that the clinic card of baby R was handed over to her legal team. The primary questions are whether the medical staff were negligent in the care and treatment of the plaintiff, causing the defendant to be liable in law for the payment of damages for the injuries suffered by the minor child when the plaintiff and the unborn child were under the care of the staff.
Appeal: The court a quo dismissed the plaintiff’s claim. Central to this finding, the court a quo found that because of the missing medical records, the experts could not find negligence on the part on the defendant. It followed that no negligence can be attributed to the defendant. To this end, the missing medical records were a neutral factor. In respect of the injury sustained by baby R, it was found to be “acute” and was therefore (by analogy) sudden and could not be prevented. It followed, so the court a quo reasoned, that the probable cause and time of injury was critical in considering the question of negligence. The plaintiff assails these findings. This appeal is with leave of the court a quo.
Discussion: Advocate Van Der Walt SC contended that in the absence of any explanation by the defendant, it was incorrect for the court a quo to have readily accepted that the hospital records were missing. The assertion was that a finding ought to have been made that the defendant had intentionally withheld the hospital records. Advocate Van Der Walt SC concluded on the issue of the missing records that the court a quo ought to have found that the missing records cannot on its own be used to support an argument that the plaintiff was unable to discharge the burden of proof. The submission continued that the defendant would have had a positive duty to lead evidence as to what occurred in the hospital and/or clinic to upset the inference to be drawn of negligence. The only way this could have been done was by way of the medical records. The argument concluded that the defendant can now not hide behind the fact that the medical records (which are required to be protected and kept) were not to be found.
Findings: The evidence presented unquestionably establishes that the plaintiff, on being transferred from Moshana Clinic, was placed in possession of her hospital file. Likewise, the plaintiff, when requested to discover medical records that were in her possession, duly complied. These two fragments of evidence lead to the inescapable finding that medical records of the plaintiff existed. To suggest that the defendant was mala fide in intentionally withholding the medical records of the plaintiff is not borne out by the record of proceedings. This contention by Advocate Van der Walt SC is misplaced. There is no underscoring the documented evidence as regards the treatment of the plaintiff. It is on the scant documentary evidence that the relevant experts based their conclusions. The body of evidence, where consensus is reached by the experts, demonstrates that any definitive expert opinion on the cause of the injury to R is hamstrung by the missing medical records. It serves no moment to proceed on a tangent of speculation not founded on primary facts or not capable of inferential reasons, as the plaintiff sought.
Order: The appeal is dismissed with costs.
REDDY AJ (HENDRICKS JP and BODIBE-DIBETSO AJ concurring)
ACTUARIAL – Interim payment – Just award – Severe physical disability – Unemployed and does not earn income – Has extensive medical needs and daily assistance requirements – Incurred further expenses pertaining to legal fees due to respondent’s delay regarding interim payment – Justification of need – Nature and extent of injuries not disputed – Total paralysis from chest downwards – Medical costs and loss of income accommodated in award – R4,744,924 – Uniform Rule 34A.
Facts: The applicant’s attorney, Mr Cohen, stated that the underlying claim was for damages suffered by the applicant because of personal injuries sustained in a motor vehicle accident. The matter went to trial but only for the determination of liability. The court a quo held the respondent liable for such damages as the applicant was able to prove. The judge made no finding in relation to contributory negligence. The respondent’s appeal was unsuccessful. The quantification of damages remains to be determined. The applicant described the extensive personal injuries that he suffered, including a cervical spine fracture that has caused total paralysis from his chest downwards. He relied on several expert reports to substantiate his claim.
Application: This is an interlocutory application for an interim payment of R7,500,000 in terms of Uniform Rule 34A(1), pending the outcome of the action proceedings. The applicant also seeks an order prescribing the procedure for the further conduct thereof. In the present matter, his claim is expressly based on past and future medical expenses as well as past and future loss of earnings or earning capacity that arise from his physical disability; he has excluded general damages. The applicant has satisfied, on the face of it, the essential requirements of Rule 34A.
Discussion: The difficulty with the respondent’s position is that the facts that Mr Potgieter relied upon to dispute the applicant’s claim for loss of income are far from clear. He placed no evidence before the court to demonstrate that Dr Whitehead’s report was factually incorrect. He merely referred to extracts therefrom to draw certain adverse conclusions, without the benefit of cross-examination to test the factual basis therefor. The same approach was adopted in argument. Mr Potgieter also failed to address Dr Whitehead’s methodology and findings. A vague reference was made to the respondent’s intention to appoint her own industrial psychologist, but that was all. The possibility cannot be excluded that the ensuing report might well correspond with Dr Whitehead’s. In the absence of positive evidence to the contrary in the respondent’s papers or at least an indication that she would present such evidence at trial, no real dispute of fact arises. Dr Whitehead’s report is, prima facie, adequate documentary proof of the applicant’s claim for past and future loss of earnings or earning capacity. It satisfies the requirements of Rule 34A(2) and establishes a provisional factual basis upon which the court can exercise its discretion in the making of an order that is just in the circumstances.
Findings: The respondent has not disputed the nature and extent of the applicant’s injuries. The seriousness thereof ought not to be understated. The accident occurred more than 12 years ago, and the applicant has had to adjust to a lifestyle that accommodates his total paralysis from the chest downwards. A substantial portion of his indebtedness pertains to outstanding legal fees that were incurred in the pursuit of his claim. He has since obtained judgment, as well as several costs orders, but these remain contested. It would be fair to take these factors into consideration when determining a just amount. In a situation where the applicant suffers severe physical disability, where no real dispute arises on the papers in relation to the nature and extent of his claim for medical costs and loss of income and where no serious doubt has been cast thereon, and where the applicant has been constrained to spend or borrow funds to pursue the action and where he will require further funds for the determination of quantum, it would seem entirely just to permit the applicant to invoke the remedy available under Rule 34A. Fairness dictates that the court should also make an award that accommodates a significant percentage of the medical costs and loss of income claimed.
Order: The respondent is ordered to make a further interim payment of R4,744,924 to the applicant in terms of Rule 34A(1), pending trial.
LAING J
24 October 2024
DAFFUE J
CIVIL PROCEDURE – Organs of state – Notice – Minor child pedestrian killed in collision – Driver of vehicle a SAPS employee on official duty – Foster mother’s notice of claim for emotional shock and funeral expenses delivered late – Attorney did not have expertise required – Letter of demand issued immediately after receiving correct advice – Prospects of success are more than reasonable – Good cause established – Condonation granted – Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3.
Facts and issue: A minor child, she being a pedestrian at the time, was killed in a motor vehicle accident. The driver of the State vehicle was a member of the SAPS who was on duty at the time. The minor child’s foster parent, Matli, belatedly received advice from a legal representative to institute action against the Minister of Police to claim damages for emotional shock and funeral expenses due to the alleged negligence of the SAPS driver. It was hopelessly out of time. The plaintiff filed the required application for condonation in terms of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 which was opposed by the defendant.
Discussion: The applicant inter alia claims damages from the respondent for the alleged emotional shock that she has suffered as a result of the death of her foster child. The applicant’s prospects of success are more than reasonable. It is apparent that the attorney that the applicant initially consulted did not display expertise in respect of claims for emotional shock. Therefore, he tried to claim damages in this regard from the RAF. Earlier, this was possible. Any negligence on his part may play a role in adjudicating the application, but it is obviously not the only factor to be considered. There cannot be any doubt that she is a lay person and that the attorney that she approached at the time did not have the expertise required of a legal representative specialising in personal injury claims. Obviously, he believed and advised her that the RAF was the correct entity to be held responsible. Act 40 of 2002 does not apply to the RAF. Immediately after receiving the correct advice from counsel in August 2022, the letter of demand was issued.
Findings: It is the applicant’s case that the driver drove the vehicle at an excessive speed, failed to keep the vehicle under control and failed to avoid the collision. There are relatively strong merits favouring the applicant’s case. Also, strong merits may mitigate fault. The respondent failed to present facts indicating that he will be prejudiced if condonation is granted. Good cause has been established for condonation to be granted under s 3(4) of Act 40 of 2002. It is in the interests of justice that the applicant has access to court as provided for in s 34 of the Constitution to allow her to attempt to prove her claim. The respondent has not been unreasonably prejudiced, and the applicant’s delays should be condoned.
Order: The applicant’s non-compliance with section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 is condoned.
11 October 2024
MORGAN AJ
PERSONAL INJURY – Unlawful arrest and detention – Factors for damages – Quantum – Allegations of involvement in commission of various crimes – 523 days detention – Trend of awarding R15,000 per day – Severe infringement of constitutional rights – Prolonged detention based on unsubstantiated claims – Prosecution initiated without prima facie evidence – Absence of evidence suggesting plaintiff was assaulted and suffered severe psychological harm other than that associated with deprivation of liberty – R3,922,500.
Facts and issue: Before court is a narrow issue to determine the quantum of damages suffered by the deceased plaintiff for his unlawful arrest, detention, and malicious prosecution by members of the SAPS and the National Prosecuting Authority (NPA). The deceased plaintiff was arrested without a warrant and remained in custody for a total period of 523 days. The matter was referred back to the court a quo for the determination of quantum, with due regard to the findings of the Full Court on appeal. However, the plaintiff contends that the quantum for unlawful arrest and detention against the Minister of Police (R15,000 per day) was not appealed and is therefore res judicata. The plaintiff argues that only the quantum for malicious prosecution against the National Prosecuting Authority needs to be determined.
Discussion: The plaintiff now claims R7,845,000 (R15,000 x 523 days) plus interest from the first defendant for unlawful arrest and detention. For the malicious prosecution claim against the second defendant, the plaintiff suggests an amount of R500,000. The defendants contest these amounts, arguing for lower damages based on comparable cases and legal principles of fair compensation. The plaintiff’s detention for 523 days represents a severe infringement of his constitutional rights. The Full Court's judgment confirms that both defendants caused harm to the plaintiff, satisfying all requirements for a claim under the actio iniuriarum. The conduct of the police and the NPA, particularly prosecutor Mr. Bondesio, falls short of the standards expected of these institutions. Their actions resulted in a gross violation of the plaintiff's rights, causing significant emotional distress and reputational harm. Regarding malicious prosecution, the Full Court's finding of liability against the National Prosecuting Authority is significant. The prosecution's initiation and continuation without reasonable and probable cause, as evidenced by the reliance on an uncommissioned statement and lack of prima facie evidence, justifies a substantial award.
Findings: In the absence of any evidence suggesting that the deceased plaintiff was assaulted and suffered severe psychological harm or trauma other than that associated with a deprivation of liberty, the amount of R15,000 per day, as determined, is without proper justification. More so, the plaintiff has not placed evidence relating to the deceased plaintiff's qualification, the highest level of education, opportunities to generate an income missed while incarcerated, dependants who may have suffered financial prejudice. In contrast, he was incarcerated and any other factors which would have justified the amount sought. R15,000 as the determined rate for his pain and suffering associated with the deprivation of his liberty without averring the above might just be too excessive. It is apposite and in the interests of justice to reduce the amount to R7,500 daily.
Order: The first defendant is ordered to pay the plaintiff the sum of R3,922,500 as a composite sum for his unlawful arrest and detention for the duration of his incarceration.
29 October 2024
MULLINS AJ
PERSONAL INJURY – Fall at radiologists – Foreseeability – Injury from fall resulting in amputation of arm – Reasonable foreseeability that plaintiff could faint and fall off x-ray apparatus on which she was standing – Factual situation is complex and legal position uncertain – Interests of justice better be served by refusing absolution – Whether a fall was reasonably foreseeable – Not a clear-cut case – Absolution from instance refused.
Facts and issue: It is the plaintiff’s case that because of an incident, the plaintiff suffered a brachial plexus injury of the right arm which ultimately led to the amputation thereof. Although the matter commenced as what is known as a medico-legal dispute, by the time it came before court it had become a straightforward delictual action. At the conclusion of the plaintiff’s case, the defendant applied for absolution from the instance. The issue is whether the defendant is in law responsible for the plaintiff’s loss of her right arm. Essentially this boils down to whether, on the plaintiff’s evidence, the incident giving rise to the injury was reasonably foreseeable.
Discussion: The incident giving rise to this litigation occurred in the defendant’s x-ray room. On entering the x-ray room, the lady told her to stand against an apparatus, which had a raised platform, and the camera was positioned. Despite numerous attempts, and the assistance of two other persons who were called in to help, for some reason the x-ray machine wouldn’t work. The Plaintiff estimates that this took about 20 minutes, during which time she remained standing on the apparatus. While still standing on the apparatus she blacked out and fell. When she came to, she was on the ground and there was, in her words, a lot of blood. As a result of this fall that the plaintiff suffered a brachial plexus injury, which in due course resulted in the amputation of her right arm becoming necessary. Foreseeability is an objective test. It is also fact specific, with no two cases being the same. It is the defendant’s argument that if the plaintiff having a fainting spell / blackout was not objectively foreseeable, then one of the elements of delictual liability is missing and absolution from the instance must inevitably follow.
Findings: Where the factual situation is complex and the legal position uncertain, the interests of justice will often better be served by the exercise of the discretion that the trial judge must refuse absolution. If this is done, the facts on which the decision must be made can be determined after hearing all the evidence, and the decision can be given in the light of all the circumstances of the case, with due regard to all relevant factors. This has the merit of avoiding the determination of issues based on what might prove to be hypothetical facts. When it comes to absolution from the instance there is no “bright line”. Although some cases may be clear-cut, this is not such a case.
Order: Absolution from the instance is refused.
25 October 2024
MAZIBUKO AJ
RAF – Loss of income – Intern plumber – Failed to complete plumbing practical due to sequelae of accident – Expert reports – No loss can be attributed to RAF during period of Covid-19 – Internship programme was stopped due to Covid-19 – Actuarial postulations of an income loss are incorrect and based on no facts nor collateral evidence – Postulations do not recognise interruption caused by Covid-19 – Application of lower quartile scale justified – R2,100,000.
Facts and issue: The plaintiff, Ms Sambo, instituted a claim against the defendant, the Road Accident Fund (RAF), for damages she suffered as a result of injuries she sustained when a motor vehicle driven by an identified driver collided with her. At the time of the accident, Ms Sambo was a pedestrian, 26 years of age and an intern plumber. Merits were settled at 100% in her favour. The parties agreed that the issue before the court for determination was quantum for past and future loss of income.
Discussion: Experts' reports give opinions on facts and documents provided to them by claimants. The court has concerns about accepting the industrial psychologist's evidence and actuarial report without reservations if regard is given to the evidence before the court. Regarding past loss of earnings, the loss was stated at R24,000. However, it was clear Ms Sambo lost earnings from September 2019 to February 2020 as the internship stopped in March 2020 due to Covid-19. There is uncontested evidence that Ms Sambo was contracted as an assistant teacher until November 2022, earning R3,500 per month. She left at the end of her contract. There can be no loss attributed to RAF in this regard. The assumption that Ms Sambo would have done a Trade Test and secure employment within three months, from 1 April 2020, as a young, inexperienced, but qualified plumber cannot be correct. The uncontested evidence before the court is that the internship was scheduled to run from 2018 until 2021. The internship programme was stopped in March 2020 due to Covid-19. Ms Sambo, together with her colleagues the interns in her then class, would not have received any stipends after March 2020, so there can be no loss due to the accident. If any, it would be due to Covid-19. Therefore, the actuarial postulations of an income loss of R266,000 per year calculated from 1 April 2020 are incorrect and are based on no facts nor collateral evidence. Therefore, they cannot be accepted.
Findings: Regarding future loss of earnings, no justification is found for applying the median scale. The lower quartile is justified, considering the plumbing industry. Ms Sambo is compromised, and her future earnings from plumbing and any other work will be affected due to the accident. However, whilst recuperating in 2022, she could still secure sedentary employment. Sadly, the experts' reports do not show an accurate picture as per the given facts and evidence. The postulations do not recognise the interruption caused by COVID-19; it is as if all was due to the accident, contrary to Ms Sambo's evidence and the uncontested evidence and common facts before the court. The court considered all the evidence, factors and the experts' reports and decided to make a round estimate of an amount which, in its view, is fair and reasonable, notwithstanding that the basis of the Industrial psychologist's postulations was not reliable as they were not based on the available evidence.
Order: The defendant is ordered to pay the plaintiff the amount of R2,100,000 with respect to loss of earnings, within 180 days.
15 October 2024
NONCEMBU J
RAF – Liability – Plaintiff’s version – Onus of proving balance of probabilities as claimed – Particulars of claim pertaining to how accident happened differ materially to testimony in court – Police evidence and accident report – Nothing links skid marks to accident – Material contradictions that go to core of plaintiff’s case – Plaintiff’s different versions and evidence presented on how accident happened render it highly unlikely that state of affairs sought to be proved existed – Claim dismissed.
Facts and issue: The plaintiff has instituted a claim for damages arising from a motor vehicle accident. In his particulars of claim, he alleges that he was driving a red Toyota Conquest when a white van came towards his vehicle on the left-hand side of the road as he was approaching a T-junction. In trying to avoid colliding with the said vehicle, he swerved his vehicle to the right-hand side out of its lane of travel and in the process his vehicle collided with the fence of a Girls High School nearby. He alleges that the insured vehicle was the sole cause of the collision in that the insured driver was negligent. The only issue for determination is the negligence of the insured driver at time of the accident and the liability of the defendant.
Discussion: The substratum of the plaintiff’s evidence is that he was faced with a sudden emergency when an unknown white bakkie which was flashing bright lights, drove towards his vehicle onto his lane of travel. He swerved his vehicle to avoid a collision, applied breaks which unfortunately failed, resulting in him losing control of his vehicle and landing into a ditch and colliding with a school fence nearby. The plaintiff did not present as a very impressive witness in court. His version is fraught with challenges, some of which cannot be said to be of an insignificant nature. A first hurdle which is insurmountable, is that his particulars of claim pertaining to how the accident happened differ materially to his testimony in court. A second challenge is that the plaintiff testified that he told the police at the scene about how the accident happened; that he was approaching a stop street when a bakkie came onto his lane speeding and flashing bright lights into his eyes. He swerved and went straight into a ditch. He then collapsed afterwards and regained consciousness in hospital. Interestingly, this is not what is reflected on the AR report under the description of how the accident happened, which report according to Sgt Xinindlu’s evidence, was completed at the scene based on what he was told by the plaintiff before he collapsed.
Findings: Earlier on during the plaintiff’s examination in chief, an impression was created that he had actually gone to the police station to report the accident. It was only when he was asked to clarify this, that it became clear that he had told the police who were at the scene what had happened. The evidence of Sgt Xinindlu is even more of a conundrum than that of the plaintiff. His evidence in court on what he was told by the plaintiff at the scene regarding how the accident happened differs to what he recorded on the AR report. According to the AR report he was proceeding straight when his brakes failed, he bumped the pavement and the fence of a school nearby. These contradictions are very material and go to the very core of his case. The situation is compounded by the two witnesses he called to corroborate his version, especially Sgt Xinindlu with his thwarted half-attempt at resiling from what he recorded in the AR report at the scene. The plaintiff’s different versions and the evidence presented on how the accident happened, render it highly unlikely that the state of affairs sought to be proved existed.
Order: The plaintiff’s claim is dismissed with costs.
31 October 2024
DIBETSO-BODIBE AJ
RAF – Loss of income – Child – Age 4 and four months at accident – Head injury – Quantum – Impact of injuries – Persistent behavioural problems and PTSD – Reached maximum medical improvement – Capacity to achieve potential is compromised – Occupational therapy required – Risk of dismissal or retrenchment if employed – Suffered an impairment of earning capacity – Not expected to reach suggested pre-accident career potential – R2,843,750.
Facts and issue: The plaintiff is TDT, an adult female acting in her representative capacity as the mother and natural guardian of a minor child, TGS. The plaintiff claims damages from the RAF arising from injuries sustained by TGS because of a motor vehicle accident. TGS was conveyed as a passenger enroute home from school in a taxi when the driver encroached on an oncoming lane trying to avoid potholes and entered an intersection without stopping thereby colliding with the other motor vehicle. TGS sustained a head injury, laceration on the forehead and on the head. He was 4 years, 4 months old when the accident occurred. The outstanding issue for determination is future loss of earnings or earning capacity.
Discussion: The plaintiff enlisted the services of several medical and other experts, who opined on the injuries sustained, future treatment and medical expenses. An actuarial report was compiled based on the findings and recommendations of the relevant experts. At the time of injury, he was at pre-school. He has made progress at school without repeating a grade. TGS pre-injury status is that he was physically fit and healthy, had no chronic medical problems, no prior history of neurological problems and no previous history of epilepsy. He was well-orientated and could follow instructions, and his speech was normal. TGS presents with persistent behavioural problems. He sustained mild brain injury (concussion) with extensive soft tissue wound on his head. He is left with a large disfiguring scar on his head. He presents with persistent behavioural problems. He has no residual neurophysical deficits. He has reached maximum medical improvement. TGS presents with change in personality, behaviour, concentration and memory problems and PTSD and mild to moderate cognitive difficulties with scholastic performance. He is unlikely to find decent employment due to poor scholastic performance.
Findings: Due to his cognitive and psychological condition, should TGS secure employment and his employer not being sympathetic and understanding, he is at risk of dismissal or retrenchment. The expert recommended that TGS be re-assessed in 2 to 4 years’ time to determine whether any change has occurred. The experts all concluded that TGS is not the person that he used to be. He has been compromised by the injuries sustained in the collision. The plaintiff has discharged the onus on a balance of probabilities, proving that TGS suffered an impairment of earning capacity. The Actuaries based their calculation for the underlying loss of earnings on information provided by the plaintiff’s attorney including the industrial psychologist’s report. According to the Actuaries, the information provided indicates that TGS is not expected to reach the suggested pre-accident career potential.
Order: The defendant shall pay to the plaintiff the sum of R2,843,750 in respect of loss of earnings.
30 October 2024
UYS AJ
RAF – Liability – Plaintiff’s version – Uncertainty, ambiguity, and contradiction – Evidence is mutually contradictory indicating point of impact on different sides of road and stop sign respectively –Destructive – No factual version from plaintiff on causal negligence issue – Contradictions are devastating to plaintiff’s credibility and reliability of evidence – Contradictory, reconstructed, unsubstantiated and unreliable – Default judgment dismissed.
Facts and issue: The defendant was served with the summons in the action and did not enter an appearance to defend. This action served on the civil trial default judgment roll. The plaintiff drove a delivery motorcycle while delivering pizza for his employer, Debonairs Pizza. While approaching a stop street the plaintiff suddenly felt an impact from behind which caused him to lose control of the motorcycle and fall. A fellow employee arrived at the scene and informed the plaintiff that an unidentified vehicle collided with the motorcycle from the rear.
Discussion: Ms Smit argued that the plaintiff continuously insisted that he was hit from behind by an unknown and unidentified vehicle. The evidence was not contradictory but rather curtailed by the language barrier which confused the plaintiff. Mr Ngomana argued that the plaintiff’s evidence is riddled with uncertainty, ambiguity, and contradiction. Further that it contradicts the statutory affidavit which states that the plaintiff has no independent recollection of the collision and is mutually contradictory indicating the point of impact on Exhibits A and B on different sides of the road and the stop sign respectively. The supporting affidavit contains no factual version from the plaintiff himself on the causal negligence issue; averments in the third person; a version of an alleged eyewitness. The court disagrees with Ms Smit that the plaintiff’s confusion emanated from the language barrier. The plaintiff had a clear command of the English questions and explanations of questions and used simple but descriptive English during his answers.
Findings: The plaintiff previously attested that he has no independent memory of the collision. The plaintiff’s viva voce evidence contradicts the essence of the section 19(f)-statutory affidavit, and no explanation was proffered on the discrepancy. The plaintiff’s version of the area of impact depicted in Exhibits A and B are mutually contradictory and destructive. The depicted points of impact in the two photos are on opposite sides of the road, stop sign and intersection respectively. Both versions can simply not be true. These contradictions are devastating to the plaintiff’s credibility and the reliability of his evidence. No direct or circumstantial evidence was adduced on the material damage to the motorcycle or the momentum and direction of the impact. The evidence of the plaintiff was contradictory, reconstructed, unsubstantiated and unreliable. In the absence of corroborating evidence from the essential eyewitness and circumstantial evidence on the material damages and momentum of impact, it remains impossible to conclude on the probability of the plaintiff’s version.
Order: Default judgment is dismissed with costs.
BOOKS / RESEARCH / ARTICLES
Authors: Mathias Lindholm, Filip Lindskog and Felix Wahl
This paper provides a complete program for the valuation of aggregate non-life insurance liability cash flows based on claims triangle data. The valuation is fully consistent with the principle of valuation by considering the costs associated with a transfer of the liability to a so-called reference undertaking subject to capital requirements throughout the runoff of the liability cash flow. The valuation program includes complete details on parameter estimation, bias correction and conservative estimation of the value of the liability under partial information. The latter is based on a new approach to the estimation of mean squared error of claims reserve prediction.
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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