ACTUARIAL CASE LAW REVIEW

Facts: The plaintiff alleges that in 2021 in Germiston, Gauteng Province, she was hit by a motor vehicle, being a taxi, driven by the insured driver, whilst a pedestrian. She alleges that the insured driver skipped the robot. She did not cross at the pedestrian crossing because when she arrived there, the robots were red for her. Since she was in a hurry to catch a taxi and the taxi queue was long, she then decided to walk further and crossed in the middle of the road. As a result of the accident, the plaintiff sustained bodily injuries including a fracture of the right tibia and fibula, as well as a lumbar back sprain. The plaintiff has a Grade 11 education and has an employment history limited to working as a domestic worker.

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Claim: The plaintiff seeks that the RAF compensate her 100% of her proven damages. She seeks compensation of R2,039,621, payment of interests in the event the RAF fails to make payment within the 180 days from the date of the order; postponement of the general damages, sine die; and her party and party costs on High Court Scale B.

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Discussion: The accident happened during the afternoon rush hour on a busy road. The plaintiff was not a stranger to the area as she was from work. She knows how busy the road is around 17h00. There is no plausible reason why the plaintiff did not cross at the designated crossing. The plaintiff was also negligent and the court apportions her liability at 50%. The industrial psychologist proposed that a higher post-morbid contingency be applied to compensate the plaintiff as she has been rendered practically unemployable in the open market until such time she has received the recommended rehabilitation. However, the plaintiff did not return to work on her own volition and there is no evidence that she is declared medically unfit as opined by her experts. The plaintiff has a healed fracture of the mid shaft of the tibia, with an intramedullary nail in situ and the segmental fibula fracture has united. It is opined that the plaintiff suffers from obesity, which condition is not accident related. Her difficulty only rests on pain and endurance.

Findings: There was never any attempt on the part of the plaintiff to return to work post the accident. The plaintiff was only hospitalised for a week and discharged. The loss of income calculations that the plaintiff, who is currently an unskilled labourer, will in less than 13 years progress from being an unskilled labourer earning in the medium quartile to the upper quartile of the semi-skilled worker, were unrealistic. The court chooses the scenario where the plaintiff obtains employment, subject to limitations. A 15% deductions on scenario 1 having regard to the accident is fair. The compensation due to the plaintiff is R1,099,223.00 less 15% contingency deductions which equals R934,339.55, to which the 50% apportionment must be applied.

Order: The Fund is ordered to pay the plaintiff R467,169.76 as damages for loss of income and earning capacity.

MAKGATE AJ

Facts: In 2019, the plaintiff was shoved by the crowd from the open doors of a moving train, which was owned by and under the control of PRASA, due to the alleged negligence of its employees. The occupational therapist concluded that due to the injuries the plaintiff will only be capable of performing sedentary work in the future. Her biggest concern in this regard is that the plaintiff has no skills for sedentary work having only completed Grade 11 and only having work experience in the light to medium physical work segment of security guarding.

Claim: The plaintiff’s amended particulars of claim were for R2,500,000 which were made up of R1,000,000 for loss of earnings; R500,000 for future medical expenses and R1,000,000 for general damages). A previous judgment included an order that PRASA was 100% liable for the plaintiff’s proven damages.

Discussion: The day before the scheduled trial, PRASA gave notice that it wished to use further documents, pertaining to a claim that the plaintiff had lodged with the Road Accident Fund. PRASA wished to introduce the documents for the purpose of showing how other claims for loss of earnings and future medical expenses settled in favour of the plaintiff amounted to a duplication of his claims in this action. The court ruled that the documents could be used by PRASA in the trial only for the purpose of attempting to show duplication in the claims before this court. The RAF report recorded that the plaintiff had suffered a head injury, fractured right tibial plateau and soft tissue injury of the cervical spine. The orthopaedic surgeon confirmed that the plaintiff will experience a more severe loss of amenities of life in the current claim than in the RAF claim as he now no longer had any “good” leg to compensate for a “bad” leg. It was expressly put to the industrial psychologist that the RAF had or would be compensating the plaintiff for loss of earnings for the rest of his life, based on the motor vehicle accident in 2015 and the expert reports based on that incident concluding he would not work again.

Loss of income: Is there any difference between the value of the plaintiff’s estate regarding his lifelong earnings between when he boarded the train in 2019 and now? The short answer is "No". As a result of the injuries suffered by the plaintiff in a motor vehicle accident in 2015, he was able to claim compensation from the RAF for the total loss of his remaining lifelong earnings. The plaintiff was already compensated for an entire lifetime of earnings from another source at the time of this incident. He could thus not have sustained any further loss of earnings as a result of this incident as he can only receive one lifetime of earnings – and not two. He has accordingly suffered no loss and is thus not entitled to any damages under this claim. The court cannot, as suggested by the plaintiff, compensate him for any alleged under-compensation by the RAF.

• The court deals with the future medical expenses from para [97] and makes deductions for items that appear to be duplicated.

** General damages are discussed from para [112] and the court notes that the plaintiff was previously injured, which would exacerbate the effects of any future leg injuries after 2015. This is the state in which PRASA permitted him to board their train in 2019 and they are thus saddled with the impact of his prior injuries on those later injuries for which they are liable to compensate him.

Award: The plaintiff is awarded R1,000,000 as general damages. He is entitled to R585,211,50 for future medical expenses.

HARDY AJ

Facts: In 2013, the plaintiff, Ms Radebe, was operated on at a hospital controlled by the defendant, the MEC. The aim of the surgery was to replace her left knee with a prosthetic joint. The surgery went badly wrong. Although the knee joint was replaced, Ms Radebe now cannot bend her knee at all. Her left leg is, as a result, stuck in a fully extended position. She has apparently been in this condition for the last decade. The MEC accepts that the knee replacement surgery was negligently performed, and has assumed liability for Ms Radebe’s proven losses.

Claim: In all but two respects, the MEC and Ms Radebe agree what the losses are. The parties disagree about whether and to what extent Ms Radebe will require domestic assistance because of the injuries caused by the negligent surgery, and accordingly whether and to what extent the MEC should have to pay for such assistance. In addition, the parties do not agree on the quantum of general damages.

Discussion: The weight of evidence was that, other than high blood pressure, Ms Radebe was healthy and mobile before the surgery. The court heard no evidence of any kind that suggested that Ms Radebe’s pre-operative arthritis was such that it would eventually have immobilised her. Ms Radebe is now substantially immobile without the assistance of a crutch and her left leg is stuck in a fully extended position as a result of the negligent surgery. A decade after the operation, the knee-joint is still painful and swollen. There can be no serious issue taken with the proposition that Ms Radebe’s conceded need for domestic assistance is the direct result of the debilitating effects of the poorly-performed knee-replacement surgery. The MEC’s calculation for domestic assistance for the rest of her life was R437,024 while Ms Radebe’s calculation was R594,126. The midpoint between the two is R515,575.

Findings: The MEC has undertaken to fund a further surgery at a public hospital in which a rehabilitation of Ms Radebe’s knee replacement will be attempted. She has accepted this offer. These operations are risky and the outcome is unknowable. The court cannot wait and see how or if she will improve. Instead a contingency deduction will be applied. Counsel for the plaintiff contended it would be appropriate to reduce the award by 15%. Counsel for the MEC sought a deduction of 20%. Given that the 15% suggestion was calculated on the higher figure provided by Ms Radebe’s expert, it seems only fair to apply that deduction to the lower amount the court reached. The amount due to Ms Radebe for future domestic assistance is R438,250.

• A just and fair award for general damages is R850,000. See paras [19]-[25].

Costs: Ms Adam asked for costs on the “B” scale. But this is an unexceptional personal injury case. Though obviously important to Ms Radebe, it presents no novel or complex questions. An enhanced order for counsel’s costs is accordingly inappropriate.

WILSON J