Spartan
Caselaw
ACTUARIAL CASE LAW REVIEW
Issue 141 – Monday 11 November 2024
ACTUARIAL – Loss of income – Child aged 15 – Significant injuries – Ability to pursue career goals impeded – Quality of life significantly diminished – Experienced delayed entry into labour market – Impairments render plaintiff vulnerable and less competitive candidate – Dismissed from work due to injury associated challenges – Likely reached career ceiling and income potential – 30% contingency deduction for past and future uninjured losses – R4,818,176.90.
Pre-accident: The plaintiff was 15 years old at the time of the accident and in Grade 10. She harboured aspirations of a career in Correctional Services or Traffic Enforcement, fields she viewed as offering stability, advancement and the promise of financial independence. Tragically, the accident altered the course of her life, impeding her ability to pursue these career goals and significantly diminishing her quality of life. Before the accident, the plaintiff’s academic records reveal varying marks ranging from 37% to 66%, with an overall average of 45% in the year preceding the accident. Despite her academic struggles, she was advanced to Grade 10 following adjustments made to her marks.
Accident: The plaintiff was a passenger in a taxi. The taxi collided with a vehicle at an intersection. The collision was severe, and the plaintiff lost consciousness at the scene. Upon regaining consciousness, she found herself lying on the ground, where paramedics attended to her before transporting her by ambulance to Sunshine Hospital for emergency treatment. The sole remaining issue for determination is the quantum of damages and, specifically, loss of earnings and future medical expenses.
Post-accident: In the wake of the accident, the plaintiff was absent from school for two months and failed her academic year in 2015. Her school advised a subject change for Grade 11, and she ultimately achieved her National Senior Certificate in 2018, with an admission to diploma-level studies. Post-matriculation, the plaintiff was employed as a cashier at Spar. However, she was dismissed after receiving several warnings related to missing funds. Following this dismissal, she assisted her mother in her business until she secured a permanent position as an educational assistant at a secondary school, where she currently earns approximately R4,070.63 per month.
Assessment: The plaintiff suffered significant injuries, including soft tissue injury to the lumbar spine, left pubic ramus fracture, soft tissue injuries to both ankles and a minor head injury with loss of consciousness with resultant neurocognitive and neuropsychological sequelae. In considering the plaintiff’s post-accident circumstances, Ms Theron (industrial psychologist) noted that the accident has significantly compromised her educational and career potential. The plaintiff has already experienced a loss of earnings due to delayed entry into the labour market, having repeated Grade 10, and her highest educational attainment remains at Grade 12 (NQF Level 4). This limitation places her in direct competition with able-bodied matriculants. At the same time, her impairments, including mild traumatic brain injury, and physical, neurocognitive, and neuropsychological difficulties, render her a vulnerable and less competitive candidate in the open labour market. Ms Theron concluded that, for quantification purposes, the plaintiff has likely reached her career ceiling and income potential.
Findings: The court is satisfied that, absent the accident, the plaintiff would have likely completed her matriculation in 2017, with an entry-level qualification suited to pursuing an NQF Level 5 programme. Furthermore, it is reasonable to infer that she would have embarked on further studies towards a higher certificate, positioning herself for career advancement and professional development consistent with her aspirations and potential. Considering that the matter is being heard approximately nine years after the collision and that the plaintiff has now been out of school for five years, it is evident that her cognitive challenges have significantly constrained her employment prospects. The post-accident projections provided by the industrial psychologist are accepted, which conclude that the plaintiff has reached her career ceiling. This limitation is consistent with the severe impact of her cognitive impairments on her employability and her capacity for progression within the labour market. A 30% contingency deduction for both past and future uninjured losses is appropriate. For the injured loss, the suggested contingency deduction of 35,5% is accepted.
Award: Default judgment is granted in favour of the plaintiff against the defendant. The defendant shall pay the amount of R4,818,176.90 to the plaintiff’s attorneys in settlement of the plaintiff’s loss of income claim.
LIPSHITZ AJ
ACTUARIAL – Loss of income – Taxi driver and mechanic – Diminished earning capacity – Plaintiff’s ability to perform light physical work is limited – Not able to continue working as a driver – Limited educational attainment – Cannot be seen as an equal competitor in any sector of labour market – Must be categorised as unemployable – 5% contingency deduction to past loss income uninjured – 15% contingency deduction to future loss of income uninjured – R1,014,96.50.
Facts: The plaintiff was involved in a motor vehicle collision. Pursuant to this collision, the plaintiff sustained a bifacet fractured dislocation, a severe left femur fracture, severe bodily scarring, a mild uncomplicated concussion, shock and psychological trauma. The court of first instance ordered that the defendant was liable for 100% of the plaintiff’s agreed or proven damages in consequence of the injuries sustained. The earning capacity was further limited by both parties contending that the head of damages for future loss of earnings had been agreed upon in the amount of R965,636,25. Resultantly, the outstanding head of damages related to the past loss of earnings.
The compromise: It would be apposite to address the compromise in respect of the future loss of earnings. Given the argument that followed in respect of the past loss of earnings, Adv Gianni for the plaintiff posited that the opposition to the past loss of earnings, by Mr Mohale for the defendant was irrational. This contention was founded on the concession so far as it relates to the quantum for future loss of earnings. The past and future loss of earnings are inextricably intertwined. This being so, the ineluctable conclusion was that the compromise was bad in law, given Mr Mohale’s opposition. The compromise by Adv Gianni and Mr Mohale no doubt was intended to delineate to the court the way the future loss had to be resolved. This compromise became muddled when oral submissions were made in respect of past loss. The result was that the compromise in respect of the future loss did not meet the watermark of a valid compromise in our law. See: Mafisa v Road Accident Fund [2024] ZACC 4. Given the stance of Mr Mohale on the past loss of earnings, the court is enjoined to consider both the past and future loss of earnings in the absence of the compromise.
Past and future loss: An impaired ability to earn an income should establish that there was in fact a diminution in earning capacity. Prior to the injury the plaintiff had, but for the Covid-19 pandemic and national shutdown that followed, been working as a taxi driver ferrying children to school and worked as a mechanic over the weekend. Dr du Plessis was of the view that the plaintiff had suffered approximately a 10% loss of efficiency due to his neck injury and has suffered a significant loss of earning capacity due to the injury on his left leg. Moreover, Dr du Plessis opined that the plaintiff’s ability to perform light physical work is limited, which has the result of the plaintiff not being able to continue working as a driver. The plaintiff was compelled to use two crutches for a year after the incident, followed by a single crutch until October 2022. In the opinion of Dr Mazabow, the vocational choices that avail the plaintiff are closed due to his limited ability to perform physically demanding activities or drive. Additionally, the plaintiff’s psychological disturbances coupled with the effects of depression, anxiety and pain, present additional obstacles in the work environment. The result, in the view of Dr Mazabow, given his findings together with the plaintiff’s limited educational attainment, would make the plaintiff unemployable. Dr Prins reiterated the view that the plaintiff cannot be seen as an equal competitor in any sector of the labour market. Tellingly, the plaintiff must be categorised as unemployable.
Findings: The plaintiff functioned in a depressed labour market in the North West Province, with an official unemployment rate in 2019 of 26,4% and an expanded unemployment rate of 44%. These percentages increased during the first quarter of 2023 to an official unemployment rate of 38% and the expanded unemployment rate of 54%. Mr Prinsloo opined that these statistics do not bode well for an individual with health conditions in a labour market with an oversupply of prospective younger and healthier work seekers.
The opinion of the experts had a logical source. The experts had considered comparative risks and benefits and reached a defensible conclusion. The value of the past loss of income uninjured was R119,685, less a 5% contingency deduction of R5,984, resulting in a net past loss of R113,701. The value of the future loss of income uninjured was R1,287,515, less a 15% contingency of R193,127, resulting in a net future loss of R1,094,388, with a total net loss of R1,208,089.
* Inadvertently, an unintended omission occurred in the order. This related to the failure to include the past loss of earnings in the order. A 30% contingency was applied to the future loss of earnings with the past loss of earnings accepted to be R113,701. This should have resulted in an intended order of R1,014,961.50.
Award: The defendant is to pay to the plaintiff the amount of R1,014,96.50 in respect of loss of earning and/earning capacity.
REDDY J
ACTUARIAL – Loss of income – Expert witnesses – Industrial psychologist evidence – No evidence of head injury – Attempted to create version to justify plaintiff’s dismissal on grounds of dishonesty – Failed to conduct any investigation – Made no real attempt to obtain critically important factual information from plaintiff’s employers – Report simply falls short of standard required by expert witnesses – Disregarded – Possible future surgeries envisaged – R632,596 for loss of earnings.
Facts: The plaintiff, an adult male born in 1981, has instituted action against the defendant for damages suffered as a result of personal injuries sustained in a train accident. The merits of the action had been settled with a 70/30 apportionment in the plaintiff’s favour. As a result of the accident, the plaintiff allegedly sustained serious bodily injuries. It is further the plaintiff’s pleaded case that, because of the injuries sustained, and the sequelae thereto, the plaintiff has suffered damages in the amount of R9,430,088.59. At the time of the accident, he was employed as a truck driver. He was employed as such for four days before the accident and lost this employment as he could not return to his occupation as a truck driver.
Discussion: After his dismissal, the plaintiff struggled to obtain employment. According to him, this is because of his injuries as he can no longer work as a truck driver. He also testified that he is not qualified to apply for administrative jobs. The plaintiff testified that the injuries impact his personal life as he can no longer go to the gym where he used to lift weights. He struggles to do his duties at home. He is being impacted by cold weather. He rates his pain as moderate but with deterioration when it is cold and rainy. When working at Naxatouch CC, the plaintiff testified that he was earning a basic salary of R15,000 per month and a weekly allowance of R12,000 per month. This equated to R27,000 per month. No proof of such income was provided. In the joint minute, it is noted that the plaintiff is employed as a restaurant manager. Dr Kumbirai was informed by the plaintiff that the necessary lifting of heavy weights exacerbates pain in the right upper limb. This pain is worse during stock count. Dr Sefeane reports that the plaintiff informed him that the injuries are not affecting his job.
The industrial psychologist: Mr Sechudi’s explanation, and insistence, that the plaintiff’s dismissal on grounds of dishonesty relates to the accident, as it would constitute a behavioural change, casts a dark shadow over the role of Mr Sechudi as an expert witness. There is no evidence that the plaintiff suffered a head injury, and no attempt was made to present any evidence by a clinical psychologist in this regard. Mr Sechudi conceded that he is not a registered clinical psychologist and as such it is untoward of him to attempt to present evidence in a field in which he is not qualified in. Mr Sechudi attempted to create a version to justify the plaintiff’s dismissal on grounds of dishonesty, and that version must have been that there were behavioural changes because of the accident. This version is rejected in its totality. It is further concerning that Mr Sechudi failed to conduct any investigation of his own and solely relied on what the plaintiff told him about his employability. Mr Sechudi made no proper attempt to verify the plaintiff’s employment, nor discuss the nature of the plaintiff’s employment with his supervisor or the impact of his injuries on his work performance. It is not the role or function of an expert to advance any particular party’s case. By doing this, Mr Sechudi has flouted his role as an expert witness, namely, to provide objective opinion evidence to assist the court. Mr Sechudi became the proverbial “hired gun” which is frowned upon.
Findings: Mr Sechudi has made no real attempt to obtain critically important factual information from the plaintiff’s employers, which would have had a material bearing on the opinion rendered about the plaintiff's employment prospects, and which appeared to be entirely speculative and aimed squarely at trying to achieve a loss of income award to the plaintiff. The version placed before the court by Mr Sechudi is rejected and as such the court will be guided by the scenario as set out by Mokhethi. The actuary applied the general contingency deductions: 15% had the incident not occurred and 15% as suggested by Mokheti, having regard to the incident. The aftermath of the accident caused the plaintiff pain and suffering and loss of amenities of life. It negatively impacts on the plaintiff’s quality of life. For this, the plaintiff must be compensated.
Award: The defendant shall pay the plaintiff the sum of R632,596 for loss of earnings (to which the other awards are added before the apportionment is applied).
MINNAAR AJ
31 October 2024
BRAND AJ
MEDICAL NEGLIGENCE – Cerebral palsy – Negligence – Causal link – Failure to adequately monitor – Plaintiff’s evidence corroborated by experts – Injury most likely caused during birth – Nursing staff knew or should have known that plaintiff was a high-risk plaintiff – Must be monitored continuously – Failed to monitor plaintiff and child as prescribed – No indicators of other possible causes than an intrapartum insult – Defendant is 100% liable for plaintiff’s damages.
Facts and issue: The plaintiff, Ms EN claims damages on behalf of her daughter, SN, from the defendant (the Member of the Executive Council for Health of the Gauteng Provincial Government) for injuries resulting in severe permanent impairment that her daughter sustained on her version during birth, because of the negligence of health care professionals employed by the defendant. Only the question of the defendant’s liability is before court. The plaintiff gave birth to her daughter SN at the Chris Hani Baragwanath Hospital (CHBH), under the care of health care professionals (nurses and a medical doctor) employed by the defendant. SN suffers from cerebral palsy and is severely impaired as a result.
Discussion: The plaintiff alleges that her daughter’s cerebral palsy resulted from an injury to her brain caused by prolonged and severe foetal distress that occurred during the time from when she was admitted to CHBH until she gave birth the next morning; and that this injury was caused by the negligence of the nursing staff attending her in failing to monitor her and her daughter adequately and as required during birth, so that they did not notice the foetal distress and could not intervene until it was too late to prevent the resultant injury. The plaintiff’s evidence is in all material respects corroborated by the evidence given by the experts called on her behalf. Prof Gericke gave evidence that there were no risk factors that would have predisposed SN to an antenatal cause of the cerebral palsy and that, on the available evidence he could not detect evidence of any sentinel hypoxic event that could have caused the injury that resulted in the cerebral palsy. On this basis he concluded that the injury most probably occurred during birth, rather than before or after it. He continued that the risk of SN developing cerebral palsy would have been reduced had there been an earlier delivery intervention and that it could reasonably have been detected earlier that SN was compromised during birth if the CTG monitoring was done more regularly during the hours preceding birth.
Findings: The plaintiff’s version that the nursing staff were negligent must stand. The nursing staff attending to her and her unborn baby at CHBH were negligent in failing to monitor the plaintiff and her unborn baby according to the frequency prescribed by the maternal guidelines. SN suffered the injury to her brain that in turn caused her cerebral palsy and impairment intrapartum, due to a partial prolonged hypoxic insult. The nursing staff’s negligence in not monitoring mother and baby as prescribed caused SN’s injury (and so her condition and impairment) in that, had they not been negligent and had they monitored the plaintiff and SN as prescribed, SN’s distress would have been detected earlier, and action would also have been taken earlier to prevent any injury.
Order: The defendant is liable for 100% of the plaintiff’s damages, as proven or agreed to.
6 November 2024
REDDY J
PERSONAL INJURY – Unlawful arrest and detention – Quantum – Three hours while removed from home, assaulted and interrogated – Arrested in sanctity of personal abode – Circumstances surrounding arrest and peripheral facts relevant thereto remain unknown – Medical evidence corroborates infliction of assault – Grave violation of several constitutionally preserved rights – Appeal upheld – Just and equitable award – R30,000.
Facts and issue: The court a quo ordered that the respondent pays the appellant an amount of R20,000 as solatium for the unlawful arrest and detention pursuant to an incident that had occurred. The nub of the appellant’s discontentment with the order of the court a quo was the assertion that the court a quo erred in the exercise of a judicial discretion. Simply put, the court a quo committed a material misdirection by failing to appreciate the cumulative factors that form the award for damages. The appeal is unopposed.
Discussion: What is discernible from the facts, was that the appellant was arrested in the sanctity of her abode. The precise circumstances surrounding her arrest and the peripheral facts relevant thereto remain unknown. Thereafter, the appellant was removed and interrogated regarding a murder. An unprovoked assault followed. The medical evidence submitted corroborates the infliction of the assault. Whilst the appellant was not detained in what can be described in a traditional detention facility, her freedom of movement was inhibited for approximately 3 hours. The unlawful arrest and detention of the appellant was a grave violation of several constitutionally preserved rights, the most critical of which was the right to liberty.
Findings: The assault of the appellant was an infringement upon and violation of the bodily integrity of her person. It trespassed on several constitutional injunctions. The appellant pleaded that given the unlawful conduct of the respondent, she suffered emotional, physical, psychological harm and contumelia in the sum of R200,000. These averments were unsupported by evidence. On a careful consideration of all the factors, an award of R30,000 would be a just and equitable one.
Order: The appeal is upheld. The order of the court a quo is set aside and substituted with an order that the defendant is directed to pay the plaintiff the sum of R30,000.
22 October 2024
MFENYANA J
PERSONAL INJURY – Unlawful arrest and detention – Quantum – Three years and seven months – Charged for possession of unlicensed firearm and ammunition – Police officers provided no plausible explanation for arrest – No explanation provided for lengthy detention – No reasonable grounds for arrest and detention – Deprivation of liberty was arbitrary – Negative impact considered – Arrest and detention was unlawful – R2,200,000.
Facts and issue: Application for default judgment against the defendant, sued in his official capacity as the executive head for the SAPS. The plaintiff instituted proceedings against the defendant for damages arising from his alleged arrest and detention by members of the SAPS on 19 July 2016 until 2 March 2020. The plaintiff seeks judgment for payment of an amount of R3,000,000. He was arrested and detained by members of the defendant without a warrant. He was charged for possession of unlicensed firearm and ammunition.
Discussion: The plaintiff pleads that his arrest was wrongful and unlawful as it was without just cause as there were no reasonable grounds for the police officers to suspect that he had committed the offence of possession of unlicenced firearm and ammunition and suspected stolen property. The police officers provided no plausible explanation for the arrest. The defendant having elected not to file a plea, the evidence of the plaintiff stands undisputed. What is even more concerning is the lengthy period for which the plaintiff remained in detention. No explanation has been provided why it was considered necessary to detain the plaintiff for a period of over 3 years. The plaintiff has discharged the onus of proving on a balance of probabilities that there were no reasonable grounds for his arrest and detention. The deprivation of the plaintiff’s liberty is not only unlawful but also objectionable in these circumstances.
Findings: The plaintiff was 39 years old at the time of the arrest. The arrest took place when he was going about his own business on his way to church. The deprivation of his liberty was arbitrary. Members of the defendant took no care to enquire into the circumstances of the alleged offence and the plaintiff’s involvement, if any. The duration of the plaintiff’s detention endured for a period of three years and seven months. This makes a mockery of the constitutional gains and the seriousness with which the Constitution view the deprivation of liberty. The plaintiff was not informed of the reason for his arrest until he was taken to the police station. What is striking is that the police paid no regard to the plaintiff’s rights for the entire duration of his detention. No evidence was provided that they made any attempts bring him before court. There can be no doubt in the circumstances that the members of the defendant flagrantly disregarded the plaintiff’s right to liberty.
Order: The arrest and detention of the plaintiff was unlawful. The defendant is liable for payment of the plaintiff's damages for his unlawful arrest and detention in the sum of R2,200,000.
21 October 2024
MANAMELA AJ
RAF – Loss of income – Earlier retirement – Primary schoolteacher – Plaintiff still working – Managed to venture on despite postulations of expert – Intends to continue working until her early retirement in 2025 – Able to time early retirement to accord with prevailing legislation for optimum retirement benefits – Injuries not the only reason applicant is stepping down earlier – Injuries or sequelae have a bearing but did not prevent plaintiff from continuing work despite reaching maximum medical improvement – R2,582,176.
Facts and issue: Ms Palayi, the plaintiff, was born 8 September 1970. She is now 54 years old. The plaintiff is a primary schoolteacher. On 8 September 2017, the day she turned 47 years of age, she was injured in a motor vehicle accident. She was a passenger in one of the two motor vehicles involved in the accident. She blamed the negligent driving of the two drivers of the vehicles involved in the accident (insured drivers) for her injuries. She caused summons to be issued against the Road Accident Fund, the defendant, to recover damages suffered due to her injuries sustained in the accident and/or sequelae. She still holds her position as a teacher despite her involvement in the accident.
Discussion: The plaintiff was still working as a teacher as at the date of trial. She had, thus, managed to venture on despite the postulations of Ms Phasha (expert). She still intends to continue working until her early retirement in 2025 when she turns 55 years of age. The pertinent aspects of the report by the industrial psychologist are that Ms Palayi would have retired at age 65 if it was not for the accident. The industrial psychologist is of the opinion that, Ms Palayi is likely to continue working in her current employment position, earning the same salary, with inflationary increments as determinant factor of her increases. She's experiencing pain daily as a teacher. She stated that she must walk between all the students’ desks to assist them. There is seldom time to sit and rest except between periods. The moment she reaches age 55, when retiring or resigning from her job as a teacher, then it is unlikely for her to re-enter the open labour market in any job that she would be physically capable of doing. Provision must therefore be made for a total loss of income, from the time that she retires prematurely or resign, until age 65.
Findings: Notably, a 5% contingency has been applied on the injured earnings which equals to that applied to uninjured earnings. Although the plaintiff is not being punished for her tenacity, she was able to continue doing the same job despite her injuries and their resultant deficits or sequelae. She was able to time her early retirement at 55 years of age to accord with the prevailing legislation for optimum retirement benefits. Therefore, the injuries will not be the only reason the applicant is stepping down at the age of 55 years or before 65 years of age. The injuries or their sequelae have a bearing, but they did not prevent her from continuing as teacher to date despite reaching maximum medical improvement in the opinion of the experts. As suggested by the orthopaedic a 20% contributory effect or apportionment for the plaintiff’s pre-existing condition of hallux valgus in the right big toe would have to be factored into the calculations for the plaintiff’s loss of earnings.
Order: The defendant shall pay the plaintiff the sum of R2,582,176.
30 October 2024
THERON AJ
RAF – Liability – Plaintiff’s version – Pedestrian “hit and run” accident – Single witness – Contradictory and highly improbable evidence – Failed to supply a plausible explanation for difference in dates – Did not take court into confidence – Explanation for failure to seek immediate medical treatment implausible – Evidence of plaintiff in relation liability rejected as false – Failed to prove injury due to negligence as claimed – Claim dismissed.
Facts and issue: The plaintiff claims damages due to injuries he sustained in a so called “hit and run” pedestrian accident. The plaintiff is a 46-year-old male who claims that he was walking home from a vigil he attended through the night, when he was struck down by an unidentified vehicle on the pavement, next to the road. The insured vehicle came from behind and it happened at around 02:11 in the morning. He was taken to hospital for treatment.
Discussion: The plaintiff was asked whether he was under the influence at the time of the collision. He answered that he was sober. The court then referred him to the notes on the records that indicated that he was under the influence of alcohol and asked his comment. He replied by stating that there was a flu going around and he was taking medication. When asked why he refused treatment and discharged himself, he explained that there was no one at his house and he wanted to go home for security reasons. It is further important to note that after discharging himself, he only went back to hospital after two weeks. No explanation was given for the two weeks where he did not seek medical attention. This begs the question as to what extend his unwillingness to receive treatment, exacerbated his ultimate injuries and sequelae or whether he in fact suffered those injuries (later confirmed) on that same day. The plaintiff did not supply a plausible explanation for the difference in dates as reflected in his claim form, the AR and supporting affidavit.
Findings: The court is baffled by the suggestion that the plaintiff would suffer a serious fracture to the ankle and wait two weeks before seeking treatment without any attempt to explain this strange behaviour. According to his own version, he was not intoxicated and merely wanted to make sure his house is safe. Why would it take two weeks to plan for someone to watch his house before being able to go to hospital? In absence of a reasonable explanation, this cannot be found on a balance of probabilities to be true. The plaintiff did not take the court into his confidence and his evidence was highly improbable. The evidence of the plaintiff in relation to the issue of liability, stands to be rejected as false. The plaintiff did not prove on a balance of probabilities that he was injured due to the negligent driving of a motor vehicle.
Order: The plaintiff’s claim is dismissed.
30 September 2024
SWANEPOEL J
RAF – Loss of income – Erratic employment history – Likely that plaintiff will not become employed again – Not solely because of accident – Main drivers of plaintiff’s unemployment seem to be his erratic employment history – Failure to return to work after accident and limited education – Had a pre-existing condition – Accident might have hastened symptoms – 5% contingencies applied on past loss and 25% on future income – R2,726,616.70.
Facts and issue: The plaintiff seeks damages pursuant to a collision that occurred when the plaintiff was 46 years of age. The plaintiff says that he was stationary at a traffic light-controlled intersection, when the insured driver collided with his vehicle from behind. There is no evidence that the plaintiff contributed to the collision. The defendant conceded liability for 100% of the plaintiff’s damages in the section 17 (4) undertaking. The defendant is, consequently, liable for 100% of the plaintiff’s proven damages. The plaintiff seeks payment for general damages and for loss of earning capacity.
Discussion: It is likely that the plaintiff will not become employed again, although, not solely as a result of the accident. The main drivers of the plaintiff’s unemployment seem to me to be his erratic employment history, his failure to return to work after the accident, and his limited education. The plaintiff says that he collapsed at work, whereafter he never returned. There is no evidence whatsoever whether the plaintiff went to a doctor to ascertain why he ‘collapsed’, nor that he was then unable to work. There is no evidence regarding what other steps he took to obtain other employment or to improve his educational lot so that he could obtain sedentary employment. A significant consideration is that the plaintiff had a pre-existing condition and that the accident might have hastened his symptoms. They may likely also have led to the hastening of his retirement age. All the above considerations should result in the application of substantial contingencies to the figures proposed by the actuary.
Findings: All the above considerations should result in the application of substantial contingencies to the figures proposed by the actuary. The plaintiff has submitted that the court should apply contingencies of 5% to the past loss and 10% to the future loss. That would normally be appropriate. However, given the various factors outlined above, that would likely have impacted on the plaintiff’s longevity in his employment, the court proposes to rather apply 5 % on the past loss, and 25% on future income.
The contingency fee agreement: The manner in which this contingency fee agreement is framed allows the attorney to take his normal attorney/client fee. To this fee is then added a success fee, which in itself may be double the normal fee, but subject to the limitation that the success fee may not exceed 25% of the award. The limitation to 25% of the award is applied only to the so-called success fee, which is then charged in addition to the normal attorney/client fee. The plaintiff’s submissions also confirm that this is the attorney’s understanding of the Contingencies Fees Act 66 of 1997, that the success fee is charged over and above the normal fee, and that the aggregate fee is not limited as provided for in section 2(2) of Act. This Act is intended to ensure that a client receives at least 75% of the amount awarded to the client. It is clear that the contingency fee agreement in this case does not comply with the Act. It must be declared to be invalid.
Order: The defendant is ordered to pay to the plaintiff the amount of R2,726,616.70 in respect of loss of earning capacity. The contingency fee agreement entered into by the parties in 2017 is invalid.
31 October 2024
NEUKIRCHER J
RAF – Leave to appeal – Irregular proceedings – RAF sat supine after it was served with court order until writ was served – Despite RAF imposing a 180-day payment rule, it took no steps at all until writ was served – RAF has been dilatory in every single aspect – Neither request for reasons, nor application for leave to appeal were filed within stipulated time period – No application for condonation or extension of time – Application for leave to appeal and request for reasons are set aside as an irregular step – Uniform Rule 30.
Facts and issue: Before the court is a request for reasons for judgment; an application for leave to appeal filed by the defendant (RAF); and a Rule 30 application to set aside the application for leave to appeal. The plaintiff served and filed her summons on 17 March 2020. She acts on behalf of her minor child who was injured at the age of 6. Despite proper service being effected on the RAF, it failed to enter an appearance to defend. It also failed to get out of its starting blocks when plaintiff served an interlocutory application for permission to set the matter down for hearing. An order to this effect was granted.
Discussion: When the matter served before the Trial Default Judgment Court, the plaintiff had jumped through every hoop set up not just in terms of the Uniform Rules, but also the Practice Directives of this division, all of these were met with deafening silence from the RAF. Thus, after considering the papers and hearing submissions, the court granted an order in terms of which it ordered the RAF to pay to plaintiff an amount of R5,600,129 in respect of the loss of earnings component of her quantum claim. The plaintiff issued a writ of execution which was followed up with a notice of attachment. An application to suspend the writ was served by e-mail which plaintiff opposed, but this application was never proceeded with. Instead, a request for reasons and an application for leave to appeal was served on the plaintiff, this despite advice to the contrary by the RAF's attorney. The RAF sat supine after it was served with the court order until the writ was served. Despite the RAF imposing a 180 day payment rule, as opposed to the 14 days set out in the Road Accident Fund Act 56 of 1996, it took no steps at all until the writ was served.
Findings: The RAF has been dilatory in every single aspect of this matter, from failing to enter an appearance, to waiting for approximately four months after the writ was served before filing its application for leave to appeal. Neither the request for reasons, nor the application for leave to appeal, were filed within the stipulated time period. It is also clear that there is no application for condonation, nor is there an application for an extension of time. There is therefore nothing before this court to consider. The request for reasons must follow the same path as the application for leave to appeal: the request for reasons was filed to form the basis of the application for leave to appeal. That is to be set aside, and therefore with it, the request that forms its basis. The RAF’s conduct must be frowned upon and is deserving of a punitive cost order.
Order: The application in terms of rule 30 is granted and the application for leave to appeal and request for reasons are set aside as an irregular step. The RAF is ordered to pay the cost of this application on the attorney and client scale.
BOOKS / RESEARCH / ARTICLES
Authors: Alice Gutteridge, Chris Francis, Gaynore Moss, Hannah Iscoe, Jordan Brett, Josephine Mursoi, Justin Thomas, Katie Saunders, Krishma Sahni, Luke Armitage, Niel Daniels, and Tvisha Gupta
The Institute and Faculty of Actuaries’ Periodical Payment Orders Working Party 2022 industry survey consists of a quantitative industry survey, the data for which was taken as at 31 December 2021, and a qualitative industry survey, the responses for which were collected between January 2022 and March 2022 inclusive. This release of the IFoA PPO Working Party 2022 industry survey supersedes any prior publication. Similar studies have been published by the IFoA PPO Working Party annually since 2010. Each year, the participants in the quantitative industry survey have changed, and, each year, the analysis uses a new, full historic snapshot from each of the participating companies. The February 2022 escalation of the conflict between Russia and Ukraine is having significant economic effects through disruptions of global trade and the supply of food as well as increases to energy costs. This has exacerbated inflationary pressures due to supply chain disruptions and labour shortages resulting from the impact of the global COVID-19 pandemic. The data and survey responses were collected prior to these events, which should be considered when reading this report.
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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