ACTUARIAL CASE LAW REVIEW

Pre-accident: The plaintiff was born in 1978 and is a traditional healer and was earning R7,000 per month. He holds a Grade 12 certificate as well as a traditional healer certificate. He has been doing the work of a traditional healer since 2003 and his duties are that he collects the herbs from the mountain and bushes and once he is home, he would crush it and package it. He would go to the mountain once a week. A Sangoma must at all times be attentive and concentrate on what the ancestors and bones are telling him before healing of the clients. They should be able to remember and concentrate on mixing herbs for the right disease and also the correct measurements of muthis. An assistant assists him with harvesting the herbs, plants and roots as he is blind. The blindness is not accident related. He paid the assistant, Mr Mr Masangu, R1,500 a month.

Accident: The accident occurred in 2018 and the plaintiff sustained a soft tissue back injury, soft tissue right knee injury and a buttocks injury.

Post-accident: The evidence is that he returned to his work, but only earns R4,500 per month and he has seen lesser patients as he has to take rest breaks. Plaintiff can no longer stand for long or walk far and currently only sees about one patient a day. He is struggling with longer sessions and he is no longer able to pay Mr Masangu R1,500 per month. He has been diagnosed with symptoms of post-traumatic stress disorder (PTSD) due to accident-related emotional shock and depression. He can no longer go out to the field or up the hills to dig out the roots and herbs due to the pain in his lower back and legs.

Assessment: Taking into consideration that he has been a traditional healer for about 16 years prior to the accident, it is reasonable to assume that he can be viewed as a more senior traditional healer and that he had a stable and established business with regular patients. He would have continued working as a traditional healer until age 70, considering collateral information. The pre-accident earnings of R7,000 seems reasonable and acceptable. According to collateral information an entry-level sangoma earns R9,000 month. Due to his vision impairment, it is unlikely that he will seek other employment. It is also important to note that traditional healers generally view their role as a calling and to deviate from this can be considered to be almost unthinkable.

Award: The calculation of loss is done up to the age of 70 years so the court is inclined to apply a higher pre-morbid future income deduction of 15% to also make provision for uncertainties relating to his income. The court is inclined to increase the pre-morbid past income contingency deduction to 10% as well. The differential should be 10% to make provision for the fact that treatment is anticipated to have a positive outcome and the psychiatrist ascribes a 10% WPI from his perspective. The 3% orthopaedic impairment rating is taken into account but the 13% is reduced to 10% following the positive prognosis for the results of treatment. The end result is that the past loss is R263,693 and the future loss is R799,194 with a combined total loss of R1,062,887.

LUBBE AJ

Pre-accident: The plaintiff was a mine machine operator at Sasol Mine. The plaintiff reported that he never failed any years in school. He reported that he passed Standard 9 in 1997. He subsequently left school due to financial reasons. He claimed to have completed training as security officer albeit that he did not furnish proof of his qualifications. He had previously worked for five different security companies. The plaintiff was described as a nice person and was considered as a hard worker. He was always willing to work over-time and he had a very good attendance record. The plaintiff reported that he did not suffer from any serious illness or any impairment and was in good general health at the time of the accident.

Accident: The plaintiff was injured in a motor vehicle accident in 2017 and was the driver of motor vehicle which was forced to swerve off the road to avoid a collision with an unknown motor vehicle that had entered its path of travel. He sustained severe injuries which included a traumatic amputation of his right dominant arm. He also sustained a spinal dislocation at the level of L2 and L3, which was stabilised with a L1 to L4 fusion which it was said basically renders his lumbar spine immobile.

Post-accident: The occupational therapist reported that his current position as a clerk falls in the sedentary category of work. He should be able to continue working in a sedentary position until normal retirement age. The accident affected the plaintiff’s options of work in the open labour market. If the plaintiff loses his current position he might struggle to perform any tasks that require bilateral lifting or carrying of objects. He will most probably need a sympathetic employer who will be willing to accommodate him.

Assessment: Although the plaintiff remains in employment, it can hardly be contended that the employer is obtaining as much financial gain from an employee who is 67% physically challenged as it would had he been fit. Even with sedentary work, which is the area in which he is currently involved, he remains ineffective because of the lumber spine pain and the fact that he utilises one arm to pick up paper for filing purposes. The evidence that the employer has indicated that the plan is to discontinue the position of the plaintiff stands uncontested. This means that as soon as the plaintiff has a meaningful financial security such as the award that this case will make, there will be no need to keep him as he will have financial security for the rest of his life. For all practical purposes, the plaintiff is unemployable. In the matter of Santam v Beyleveldt 1973 (2) SA 146 (A), it was held that when an employee was employed purely on compassionate grounds, his salary should not be considered when dealing with the claim for loss of earnings.

Award: the contingency deductions on the value of income but for the accident should remain at 5%. However, the value of income having regard to the accident is raised from 15% to 25%. The court was not furnished with reasons why his salary is expected to only stabilize at age 48 to 50 instead of 45. For that reason, the increase in the contingency will take care of any inflation of the loss that could be brought about as a result of the 6% salary increases extending up to age 50 instead of age 45. The Fund is liable for payment of R4,096,366 to the plaintiff being R2,976,366 for loss of earnings and R1,120,000 for general damages.

MASHILE J

Pre-accident: The plaintiff’s highest level of education is Grade 9. Her work history revealed that she has work experience as a farm worker. Her duties involve planting and harvesting fruits of the season. To do this, she had to carry a bag where she puts the fruits when harvesting from the trees. At times she would use a 20-liter bucket. At the time of the accident the plaintiff was 38 years old and at an establishment phase of her career. She was left with 6 years and 11 months to reach her career ceiling at the age of 45. There was 12 years left to reach active involvement in the open labour market before she reached the retirement age of 65 years.

Accident: In 2017 a taxi she was travelling in (the insured vehicle) lost control and rolled several times before hitting a pavement. In the accident the plaintiff sustained injuries on the upper eye and scalp and also dislocated her knee. She was discharged from hospital the same day but attended for follow up treatment.

Post-accident: The plaintiff was absent from work for a period of two months after the accident. However, she was remunerated in full while she was recuperating at home. Upon her return to work she was accommodated to work in the factory as she was experiencing pain when standing for too long and when climbing trees.

Assessment: The industrial psychologist indicated that the plaintiff’s earnings would have increased mid-point between the median and upper quartile, unskilled non-corporate. It was postulated that her remuneration would have doubled in seven years. This is improbable and no basis for this assumption was put forward. An expert witness is not expected to use speculative reasoning but should rather bring specialised knowledge to the court. See further on expert witnesses at para [33]. Since the accident, her salary has increased. Although the experts state that she experiences a painful lower back, right shoulder and right knee, there is no collateral information to suggest that she has ever requested time off work. The injuries have clearly not hindered her working ability over the past seven years whilst working at the factory. She has been accommodated to do light physical work since 2017 and it has been almost 7 years post-accident where the employer has accommodated her whilst she retains the same job title.

Conclusion: The court is not persuaded that the plaintiff suffered any loss. The accommodation by the employer is likely to allow her to maintain productivity at her current work which may enable her to retain employment until retirement. The plaintiff’s earning capacity does not appear to have been affected. She was accommodated by placing her at a factory. She continues to be employed by the same employer in a different capacity. The upshot of it is that she performs all the necessary tasks in her new position, albeit with attendant pain. Be that as it may, there has been no change in her remuneration. Instead, her salary increased. The plaintiff’s claim for loss of earnings is dismissed.

MOLELEKI AJ