ACTUARIAL CASE LAW REVIEW

Facts and issue: The plaintiff instituted action against the Road Accident Fund for damages in respect of serious bodily injuries sustained as a result of a collision when a motor vehicle driven collided with him when he was a pedestrian. The Fund conceded liability for 100% of the proven damages Mr Henry suffered. The remaining issue for consideration in the action is his future loss of earnings. The dispute in question revolves largely around the dichotomous approach of the two industrial psychologists on the effect, if any, that the injuries suffered have had upon Mr Henry’s future earning capacity. Mr Henry is 28 years old. He was 19 years old at the time of the collision which occurred less than a year after he had completed his Grade 12 in 2014.

Discussion: The figures Dr Jacobs proposed implies that Mr Henry would have worked in a non-corporate sector first (such as a contractor for a mine) in an unskilled capacity as the scales overflows between unskilled and semi-skilled. He regarded this as the most conservative earnings scenario because here only learnership is required. In his view, scenario 3 is unlikely for reasons that it was Mr Henry’s intention to attain artisanship. Dr Jacobs was further of the view that financial constraints would not have stymied his career path as an artisan and there appears to be no reason why he could not have been successful in his studies. This was so because Mr Henry worked for his uncle to earn an income and there are many study opportunities, particularly in the mining area where he hails from, such as bursaries, internships, learnerships, scholarships and others. Dr Jacobs noted that, in respect of Mr Henry’s injured career, he was able to earn R4,250 per month at The Olive Guesthouse, which is equivalent to R51,000 per annum in 2021. He therefore estimated his residual earning capacity as R51,000 per annum in 2021 reaching a plateau of R78,000 per annum in 2023 at the age of 45 and working until the retirement age of 63.

Findings: The court has no reason not to accept Dr Jacobs’s substantive motivation that financial constraints could not have impeded Mr Henry’s career progression and that he would have pursued his career as an artisan. It is disingenuous that at the present day, where various student financial aid schemes are available to the youth of this country irrespective of their impecunious background, argument could still be raised that Mr Henry stood no chance to study further. Dr Jacobs’ evidence adduced to establish the quantum of Mr Henry’s loss of earnings is logical and sound. As to the injured scenario, counsel for Mr Henry suggested 80% contingency deductions as both parties agreed that Mr Henry would remain unemployable following the injuries. The contingencies suggested are reasonable. The estimation of Mr Henry’s loss of earnings in terms of the actuarial calculation is R6,019,276 considering the contingency deductions which are accepted.

Order: The defendant is to pay to the plaintiff the sum of R6,019,276 for his future loss of earnings.

Facts and issue: This is a claim for damages arising from a motor vehicle accident. The plaintiff who was a passenger at the time of the collision, was 22 years of age at the time of the accident and is currently 25 years old. Merits and loss of earnings were resolved. General damages were postponed sine die for purposes of the referral thereof to the Health Professions Council of South Africa. The Tribunal found that the plaintiff had sustained serious injuries according to the narrative test. This court is now called upon to deal with the claim for general damages, proceeding on a default basis.

Discussion: According to Dr Mare, the plaintiff’s orthopaedic surgeon, the plaintiff’s main injury is the spine and the torn ligaments at D12/L1 level. The rods and screws remain fixed to the vertebrae and the fusion healed well without detectable complications. The plaintiff also had laceration of the right knee which healed with some visible scarring but no remaining symptoms. The plaintiff further has chest injuries which have healed without remaining symptoms. Dr Mare further notes that plaintiff is limited at present in terms of what she can tolerate and sitting for too long causes symptoms in her legs. Dr Mare opines that the plaintiff will in future require surgical treatment for removal of the rods and screws. The plaintiff’s neurosurgeon confirmed that the plaintiff did not sustain a head injury or traumatic brain injury in the accident, he further does not suggest any further clinical evaluation or special investigations to evaluate for possible traumatic brain injury sustained in the accident.

Findings: The plaintiff’s clinical psychologist noted that she suffered a mild head injury which is not usually expected to result in significant long-term neuropsychological difficulties. The clinical assessment indicated that the plaintiff was suffering from symptoms of a post-traumatic stress disorder. Consideration of previous cases is only for the purpose of offering guidance in the assessment of general damages. Each case must be decided on its own merits, and no one case is exactly the same as another. After considering the previous awards granted in the comparable cases, plaintiff’s injuries and the sequelae thereof, R700,000 is a fair and reasonable compensation for general damages.

Order: The defendant is ordered to pay the plaintiff an amount of R700,000 for general damages.

Facts and issue: The plaintiff instituted action against the defendant in his personal capacity for loss of support and representative capacity on behalf of his minor child, the second plaintiff claiming in excess of R7,000,000. The action arises from an accident in which the plaintiff’s wife and minor children were involved in. The plaintiff’s wife lost her life in the accident and the second plaintiff suffered injuries. The court is called upon to decide if there was a proverbial 1% negligence on the side of the insured driver in causing the accident, in which event the parties agreed that the defendant shall be liable to compensate the first and second plaintiffs in respect of any damages they suffered in respect of loss of support from the deceased.

Discussion: Ms Mdevu testified that she was a passenger in her cousin’s motor vehicle travelling on the freeway on the fast late when she noticed the insured driver’s motor vehicle stationary in the slow lane next to the emergency lane with its hazard lights on. She saw the motor vehicle driven by the deceased collide with the insured driver’s stationary motor vehicle at the back and proceeded to collide with the motor vehicle she was travelling in. The motor vehicle driven by the deceased overturned and two children flew out through the windows. She tried to assist the injured children until the emergency services arrived. She confirmed the video footage that depicted the accident and specifically testified that there was an emergency lane to the left of the insured driver and that there was nothing prohibiting the insured driver from moving into and stopping in the emergency lane. Regulation 304 of the National Road Traffic Act specifically prohibits the stopping of a vehicle on the roadway except for a cause beyond the control of the driver.

Findings: By stopping in the road, the insured driver was contravening regulation 304 without any justification. The evidence shows that he was travelling on the road and then came to a standstill in the road next to the emergency lane. The uncontested evidence is further that there was nothing preventing him from stopping in the emergency lane or travelling to a point where it was safe to stop out of the roadway. Mr Thabede could and should have pulled off the roadway into the emergency lane, although it seems that he could still travel and should have pulled off at a place where it was lawful and safe to do so. Mr Thabede should have foreseen the possibility of a collision by being stationary in the roadway and was therefore negligent. But for the insured driver’s stationary motor vehicle’s presence on the road, the accident would not have occurred, and his negligence is therefore casually connected to the collision.

Order: The Defendant is liable for 100% of the first and second plaintiffs’ proven or agreed damages in respect of loss of support. The defendant is liable for 100% of the second plaintiff’s proven or agreed damages in respect of the injuries she sustained.

Facts and issue: The plaintiff seeks judgment for the balance of its claim against the defendant arising out of the injuries sustained by the plaintiff when he, as a pedestrian, was driven into by one Mr Mdlalose. With all other aspects of the claim having already been resolved between the parties, what remained for determination at the hearing was the quantification of general damages and the issue of future medical expenses. The determination rested predominantly on whether all injuries sustained in an incident are relevant for the determination of general damages, or limited portions of those injuries where multiple RAF4 serious injury assessment forms have been submitted and part of the injuries determined as serious.

Discussion: The defendant’s argument that the injuries can be separated by virtue of submission of different RAF4 forms is not envisaged by the Road Accident Fund Act, though neither is the plaintiff’s submission of multiple RAF4 forms from the same incident. The difficulty with the defendant’s argument is that it seeks to impose a restriction on the damages claimable based on the arbitrary practice of separating out the RAF4 forms. This is not an interpretation that it supported from any of the express provisions of the Act or the Regulations. It is a whole person impairment that is being assessed, in assessing the injuries arising out of a particular instance. To allow the separation of injuries into different categories could effectively empower the defendant to selectively choose certain injuries and assess them individually as against the 30% whole person impairment threshold in order to try justifying a rejection of the RAF4 form. This cannot have been the intention of the legislature in the assessment.

Order: The Act makes it clear that the assessment of an injury sustained in a particular instance is serious or not is not a matter of degree or individual qualification but rather a Boolean, once the injuries have been established as serious, an entitlement to general damages then after exists. The full scope of the injuries sustained in the incident are therefore claimable and will then form the quantification of general damages, and any restriction on quantification based on what the Road Accident Fund might have accepted or rejected or the Health Professions Council would have accepted or rejected, would be an irrelevance as neither of these bodies are permitted by the legislation to exclude parts of the quantification of damages, and such decision is limited to assessing the extent of the injuries as serious or not.

Order: Judgment is granted against the defendant in respect of general damages in the amount of R425,000.

Facts and issue: This is an opposed interlocutory application in terms of which the defendant seeks an order to have the patient assessed by an alternative industrial psychologist. The defendant’s industrial psychologist, Dr Madlabana-Luthuli, assessed the patient and furnished her report. The industrial psychologists compiled a joint minute followed by an addendum joint minute. The defendant indicated that it does not bind itself to the joint minute and was intent on appointing a different industrial psychologist. The plaintiff objected thereto.

Discussion: The relief sought is for an order to have the patient assessed by an alternative industrial psychologist in circumstances where the patient was already assessed by various experts such as a neurosurgeon, psychiatrist, occupational therapist and industrial psychologist. Experts’ reports were compiled. The exposition of the chronology elucidated that Dr Madlabana-Luthuli assessed the patient and furnished her report in March 2023. This, after the plaintiff’s industrial psychologist, Ms Grobbelaar, had already filed her report on 14 December 2021. It was only after the matter was certified trial ready that the defendant sent correspondence to the plaintiff wherein they effectively attempted to repudiate the joint minutes compiled by the industrial psychologists. The plaintiff mooted that this application is in essence an attempt to sidestep a repudiation application by merely insisting that the patient be assessed by a third industrial psychologist. This exposes an obvious void that the defendant could not explain at the hearing of the application when confronted about why there was no prayer for repudiation as it was manifest that the defendant had at all times intended to repudiate the joint minute.

Findings: This application irregular in its form for various reasons as it is brought in total disregard to the case management judge who directed that a repudiation application be brought and subsequent to a defective notice in terms of Rule 36. This application can at best be described as an anorexic application, falling dismally short of the threshold required for a repudiation application. It is uncontroverted that there is no substantive application for repudiation, which is unequivocally necessary and integral in circumstances where there is an extant joint minute compiled by experts. This requirement is consistent with the courts approach adopted in the authorities in terms of regulating the processes that should be followed.

Order: The application is dismissed with costs.

Facts and issue: The plaintiff sues the defendant for loss of earnings as a result of a motor vehicle accident. The plaintiff was the driver of the motor vehicle when he attempted to avoid a head on collusion with a motor vehicle bearing unknown registration number and letters driven by an unknown insured driver. The issue before the court is whether the plaintiff suffered any past and future loss of earnings.

Discussion: He was asked about the two conflicting versions of the industrial psychologist and occupational therapist. He informed the occupational therapist that, at the time of the accident he was unemployment and actively seeking employment. He was called in for a fitness test at a certain mine in the North West. However, upon his assessment with the industrial psychologist, he denied being called for a fitness test at a mine. He started by denying that he was called for a fitness test.  However, he later admitted that pre-accident, he secured employment with a certain company and was called for a fitness test. He was unable to start work as a result of the accident. He did admit that this company sent him letter appointment, however he was not able to produce it in court. He did not bring the collaterals when he consulted with the industrial psychologist because she never asked for them.

Findings: The plaintiff was supposed to produce collateral evidence in order to prove his case. However, this did not happen. The suggested loss of earnings is not supported by proper evidence. The industrial psychologists and occupational therapist had no collateral evidence when compiling their reports. They relied on self- reporting by the plaintiff. The plaintiff failed to make available collateral evidence when such evidence was required. There were several sources available to the plaintiff to produce in support for his claim however, he chose not to do so. He could have produced bank statements, tax returns, salary slips, certificate of employment and/or confirmatory affidavit that he indeed was employed prior to the accident. The plaintiff has failed to prove his case on a balance of probabilities.

Order: Absolution from the instance is granted in respect of the plaintiff’s claim for loss of earnings.

Facts and issue: The defendant is being sued for damages which arise from injuries the plaintiff sustained as a result of a motor vehicle accident. The plaintiff was a passenger in a motor vehicle when it collided with another vehicle. He sustained a laceration of the forehead and a fracture of the left tibia and fibula. The plaintiff went to school until Grade 9 and has no formal education. At the time of the accident he was 28 years old employed as a technician a trade he learned on the job. The only issue to determine is the contingency deductions to be applied to the award relating to past and future loss of earnings.

Discussion: According to the experts, the fracture on the leg has healed but he still suffers from pains which are exacerbated by cold weather conditions. He also experiences back pain caused by the uneven gait resulting from the leg fracture. The pains are aggravated by prolonged standing, walking and sitting and although they can be managed by domestic pain killers and his normal life expectancy has not been affected, the plaintiff is no longer able to work on heights or climb ladders as required by his trade as a result thereof, his capacity and ability to perform his trade as a technician has been restricted. The experts submit that this fact is also evidence by the series of retrenchments post­ accident. The experts agree that there is no need for the plaintiff to retire early however, if he does work, he should only perform sedentary and light work duties where he can be granted sufficient resting periods. His lack of both formal qualifications and sedentary skills, the limited amount of job vacancies available as well as the injuries puts him at unfair disadvantage in competing in the open labour market. The experts postulate that the plaintiff would have been able to follow the same career path in the uninjured scenario earning R51,600 per annum until the age of 65 but due to the injuries, his ability to perform all the physical tasks required by his trade has been curtailed.

Findings: The examination of the experts' reports instead reveal that the plaintiff was retrenched due to the companies' closure. The plaintiff's evidence that due to the injuries and their sequelae, he is no longer able to do the work which he formerly did as a technician has not been gainsaid by evidence to the contrary. Having regard to the facts of the matter and the entirety of the plaintiff's evidence, a 25% contingency deduction in respect of the plaintiff's pre-morbid future loss of earnings and a 60% contingency deduction in respect of his post­ morbid future loss of earnings is justified.

Order: The defendant shall pay the plaintiff an amount of R1,075,800.