ACTUARIAL CASE LAW REVIEW

Facts: In 2018, Mr Buthelezi (plaintiff) was a passenger in a vehicle which was involved in a collision where sustained injuries. He was hospitalised at Vryheid Hospital overnight and then transferred to Greys Hospital for further treatment. Prior to the accident he was healthy but now it is reported that he cannot eat solid foods, lift heavy loads and cannot stand or walk for prolonged periods. The maxillofacial and oral surgeon noted that the plaintiff has a permanent facial disfigurement with multiple scars on the face and fractured anterior teeth which affects his self-esteem. The occupational therapist reported that the plaintiff uses medication to cope with pain as he suffers from recurrent headaches. He also reported loss of memory and that he forgets easily and avoids social gatherings.

Claim: The industrial psychologist noted that the plaintiff entered the open labour market in 2012 as a general worker and probably would have worked until he retired at the age of 65 depending on his health, personal circumstances and his employer’s retirement policy. Considering the plaintiff’s age, she opined that he was likely to have progressed from his reported earnings and his salary could have escalated to the upper quartile earnings of an unskilled non-corporate worker. In the amended particulars of claim the plaintiff is claiming damages of R3,158,536.

Discussion: The industrial psychologist opined that having to work with pain, discomfort and restrictions, the plaintiff will remain an unequal competitor and vulnerable employee. The plaintiff’s future employability seemed severely curtailed and job opportunities severely limited. She opined that the injuries he sustained will have an indomitable effect on his ability to compete fairly in an open labour market. The highly-competitive labour market will not make it any easier for the plaintiff to secure employment. For future loss of earnings, the plaintiff suffered injuries that placed a restriction in his physical capabilities which had and will have a negative effect on his future earning potential. In view of the plaintiff’s level of education, work exposure and that he will require a sympathetic employment which is difficult to come by, in all probability the plaintiff will remain unemployed for the remainder of his life.

Findings: The actuary calculated the loss of income suffered as a result of the accident. Pre-morbidity income calculations arrived at R54,780. Post-morbidity the plaintiff never returned to work. The actuary postulated that the plaintiff suffered loss of past earnings as a result of the accident and the actuarial calculation was that the loss of past earnings (pre-morbid) was the sum of R416,640 and future loss of earnings was R2,158,356. It followed that in respect of loss of earnings, the plaintiff discharged the onus of proving on a balance of probabilities actual loss suffered that was as a direct result of the accident. The contingency factors which have been considered were: the high rate of unemployment that is current in the country; and the fact that the plaintiff had left employment due to an injury to his hand which could have affected his overall ability to earn a living. The court finds the postulation by the actuary fair on the facts and was satisfied with the 5% contingency deduction for past loss of earnings (pre-morbid) and 15,5% contingency deduction future loss of earnings (pre-morbid).

Order: The Fund shall pay R1,867,558 in respect of loss of earnings.

MNCUBE AJ

Facts: The plaintiff was driving on the road between Tshipise and Bokmakierie in Limpopo Province in 2015 when his vehicle suddenly struck a spiked expanding metal trap strip which was pulled across the road. As a result, all the four tires of his vehicle were punctured. He heard the sound of semi-automatic rifle fire from the side of the road hitting his vehicle. He realized that he was under attack. He decided to continue driving in order to get away from the fire. The police arrived at the scene and arrested the members of the SANDF who were stationed at SMG Military Base, in Musina. The members involved accepted responsibility claiming that it was a mistaken identity. The plaintiff was severely traumatised by the attack. He suffered severe emotional and mental shock and had to undergo psychiatric treatment.

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Claim: The issue of liability was settled at 100% in favour of the plaintiff. The court is called upon to determine the issue of quantum. Counsel for the Minister argued that the fact that liability was conceded does not mean that the plaintiff is entitled to be compensated. It is trite that the onus rests on the plaintiff to prove his case on a balance of probabilities.

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Discussion: The plaintiff won an award for the best farmer in the citrus industry. He testified that the incident happened in the most productive years of his life, being between 55 and 65 years old. The plaintiff became so incapacitated that he was requested by his sons to leave the farming business, which he did. The effect was that the plaintiff’s salary before the incident as being R540,000 per year was reduced to R140,000 per year, according to his IRP5’s. He had copies thereof in court and testified that he handed it to the industrial psychologist. This reduced the plaintiff’s income for the past eight years by R400,000 per month. The plaintiff went for counselling, but this did not have much effect and was he also placed on prescription drugs. Although nearly ten years have passed since the incident the plaintiff is still emotional and sensitive about what happened. The experts were in agreement that the plaintiff’s primary psychiatric diagnosis is a Post-Traumatic Stress Disorder with depression and it was also noted that there was an additional possibility of an underlying psychosis.

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The stale reports: The experts assessed the plaintiff and made reports in 2018, 2019 and 2020. The joint minutes were prepared in 2024 and counsel for the Minister argues that the joint minutes are based on stale reports. The court agrees. Due to the fact that the reports are stale, the best evidence is not before court to assess the state of mind of the plaintiff. It is also correct that if the plaintiff’s circumstances have improved then the plaintiff will be over-compensated and if his circumstances have deteriorated then he would be under-compensated. Therefore, the court cannot make a decision on these expert reports. As the parties cannot reach any agreement on the evidence before the court, the court is requested to refer the case to a court hearing of the evidence of the experts.

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Order: The plaintiff’s request to refer the case to a court hearing of the evidence of the experts is granted.

JOYINI AJ

Facts: In 2020 the plaintiff was injured in a motor vehicle collision caused by the negligence of the insured driver. He sustained lacerations and a fractured left medial malleolus. The plaintiff is an unemployed major male born in 1974. He was 46 years old at the time of the collision and is now 50 years old. He was employed as a truck driver at the time of accident and was earning about R9,000 per month. The plaintiff’s highest scholastic achievement is Grade 11. He was diagnosed with HIV and was on ARV and was also diagnosed with Pulmonary TB in 2012. He now has ongoing pain and difficulty with prolonged walking and standing, as well as bending, carrying and lifting heavy objects and difficulty doing overhead activities.

Claim: The plaintiff instituted an action against the Fund. The merits were previously settled at 85% in favour of the plaintiff. The Fund had made an offer for general damages and loss of earnings, but the plaintiff rejected it. The court is called to determine the general damages, loss of earnings and future medical expenses.

Discussion: The plaintiff’s injuries and sequalae can be categorised as orthopaedic injuries and head injuries. The actuaries prepared loss of earnings calculations based on the bases that the plaintiff received lower earnings during recuperation and has been unemployed and will only be able to find lower paying jobs in future and is not expected to reach his pre-accident career potential. It is noted by the occupational therapist that the residual pain and limitation has affected the plaintiff’s vocational and functional capacity. The accident has significantly curtailed the plaintiff’s occupational choices in an open labour market. Dr Mazwi states that the plaintiff had brief loss of consciousness and amnesia. Dr Mazwi’s statements about the plaintiff’s loss of consciousness were not supported by the EMS report. The EMS report states that he was found lying on supine position alert and oriented. The hospital clinical records, as does the EMS report, markedly differed with the plaintiff’s allegations that he lost consciousness. Splig J penned some valuable insights regarding the value of expert witness in Ndlovu v Road Accident Fund 2014 (1) SA 415 (GSJ), where he held at para [80] that "If the patient is the source of the information regarding the injury and the facts he or she supplies differ from those recorded by the hospital or doctors at the time of the accident or other primary source documents then this should be clearly stated."

The injuries and the experts: Regard being had to the contradiction in Dr Mazwi’s report and the EMS and hospital records, the court is not satisfied that the plaintiff lost consciousness after the collision. Dr Mureriwa conducted certain tests, which showed neurocognitive and other psycho-behavioural and psychiatric impairments. The court accepts that the plaintiff suffered mild traumatic brain injury without any loss of consciousness. Dr Mureriwa opined that the below average performance on the neuropsychological test is consistent with the mild traumatic injury. While some of the injuries are mentioned in the hospital record, they were provisional diagnosis not the final one. The doctors that completed the RAF 1 and RAF 4 forms clearly recorded the injuries suffered by the plaintiff as gleaned from the hospital records. Unfortunately, Dr Mafeelane, Dr Mazwi and Dr Mureriwa’s report did not distinguish between the information received from the plaintiff and the information gleaned from the hospital records.

Findings: An award of R800,000 for general damages is fair and reasonable. 5% contingences must be applied to the pre-morbid position and 25 % to the post-morbid position. The capital value of loss of earnings is R1,802,051.