Tag Archive | seminars

Loss of Earning Capacity vs An Actual Patrimonial Loss

Dear Reader,

Welcome to the thirtieth edition of Independent Actuaries & Consultant’s (IAC’s) monthly newsletter.

IAC Training 2012 – Time Management Workshop for all supporting staff

Based on the lack of response regarding the training seminar on how to work with the IAC blog we have decided not to proceed with same.

However, in line with our ethos of adding value to our clients business, we are looking at presenting a time management workshop aimed at equipping your supporting staff (personal assistants, office managers, legal secretaries, typists and article clerks) to better manage their time and your resources thereby increasing productivity.

The workshop will take place during the July 2012 recess, depending on your response.

Please indicate via return mail whether you are interested and how many people from your firm might attend.

court

LOSS OF EARNING CAPACITY vs AN ACTUAL PATRIMONIAL LOSS – Mvundle v Road Accident Fund (63500/2009) [2012] ZAGPPHC 57 (17 April 2012)

The plaintiff, the driver of a Mercedes-Benz bus, was involved in a motor vehicle collision. As a result of the collision the plaintiff sustained the following injuries: soft tissue injury of the scalp, neck, shoulder and ankle; loss of 50% of his sight to the left eye and emotional trauma.

The Plaintiff was employed as a professional driver for most of his working life. His claim for loss of earning capacity was based on him no longer being physically able to drive because of the shoulder injury, loss of sight in his left eye and head injuries sustained in the accident.

In considering the claim the court held that it’s trite law that any claim in respect of future loss of earnings / earning capacity requires:

“36.1 A loss of earning capacity as a result of a damage causing event; and
36.2 An actual patrimonial loss of income as a result of the above mentioned loss of earning capacity. In which case, either the one or the other may be claimed for the same amount.”

The court further held as trite that damages for loss of income can be granted where a person has in fact suffered or will suffer a true patrimonial loss in that his or her employment situation has manifestly changed. The plaintiff’s performance can also influence his patrimony if there was a possibility that he could lose his current job and be limited in the number and quality of his choices should he decide to find other employment.

In casu the honourable Judge found that had the plaintiff remained in his erstwhile employment he would not have succeeded in his claim for loss of earnings / earning capacity. But because he left the job, irrespective of what the cause was, he must be compensated if he could establish that but for the accident he was no longer fit to drive and that his choices, either in number or quality, of finding alternative employment were now limited and his chances of retraining for a new career were negatively affected.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for a joke –

Q: What’s the difference between a lawyer and a herd of buffalo?
A: The lawyer charges more

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Depression as Sequlae of – Quantum of damages to be awarded

Training

I am excited to announce that IAC will again be presenting training on the calculation of simple loss of income and loss of support
calculations. The training is aimed at attorneys in order to equip them to give better instructions, have a better understanding of the actuarial calculation process and to aid in settlement of matters.

Same will be taking place on the following dates:

Durban 13 July 2010
Johannesburg 15 July 2010
Pretoria 15 July 2010
Cape Town 28 July 2010
Port Elizabeth 29 July 2010

Further details will follow.

VAN DER MESCHT v THE ROAD ACCIDENT FUND – 12182/2008 [UNREPORTED] – JUDGEMENT 12 MARCH 2010

Bicycle Share the road sign

The plaintiff claimed damages from the defendant arising from bodily injuries she sustained in a motor vehicle collision on 8 January 2005. The plaintiff was a cyclist on the Kliprivier Road when the insured vehicle, travelling in the same direction, collided with her from the rear. The collision caused her to fall from the bicycle and she sustained a head injury as well as orthopaedic injuries.

Both the merits and certain heads of quantum were in dispute. The Court found in favor of the plaintiff in regards to the merits.

The plaintiff’s past hospital and medical expenses as well as future medical expenses was settled. The court had to assess the plaintiff’s loss of earning capacity and general damages. It was common cause that the plaintiff suffered a head injury. What remained to be considered were the psychological sequelae of the brain injury. The plaintiff’s psychiatrist testified that the head injury had resulted in a post-traumatic neuropsychological disorder, as well as depression.

The crucial issue in quantifying the plaintiff’s damages for loss of income was to consider the effects of the psychological deficits on her employability and therefore earning capacity. Pre-morbid she excelled in the workplace and moreover fostered excellent relationships. Outside the workplace she proved her organisational capabilities in organising her own cycling events attracting some 2500 participants.

Post-collision the plaintiff remained in the employ of her employer but her capabilities dwindled resulting from her neuropsychological profile. Briefly stated, she lacked motivation and drive and often became emotional and irritable, resulting in a decline in performance and resultant loss of income to her employer.

It was common cause that depression manifested itself once prior to the collision. In addition a family history of depression had been identified. However, since the collision she often suffered from bouts of depression. In this regard the plaintiff’s psychiatrist testified that the plaintiff, prior to the collision, was pre-disposed to developing depression which could be treated and, in any event, did not cause any level of dysfunction. In contradistinction hereto, the depression the plaintiff now suffers is as a result of organic injury to the brain cells.

The depression the plaintiff now has to endure affects her coping and adaptation skills. The depression can be treated but not cured and she will therefore function at a lower level. In addition the plaintiff also suffers from cognitive deficits post-morbid.

A comparison by the plaintiff’s Industrial Psychologist between the plaintiff’s performance and that of her rival co-employee revealed that Pre-collision, the plaintiff out-performed her rival but postcollision the plaintiff brought in less than half the business her rival did.

As a result two possibilities was advanced by the plaintiff’s Industrial Psychologists: either that she remains employed at her present place of employment earning substantially less or employment in a less stressful and demanding work environment in a secretarial environment.

The defendant’s Industrial Psychologist’s opposing view was disregarded by the court. Plaintiff suggested a contingency allowance of 10% pre-morbid, and 20% post-morbid. The defendant contended for a contingency allowance of 50%.

The Honourable Judge held that a contingency deduction of 15% on the pre-morbid scenario is appropriate taking into account plaintiff’s age of 46 years, her consistent and stable employment history in public relations/marketing, the absence of any indications that she would not have further excelled in her work environment and the positive attitude she had displayed towards her work prior to the accident.

The Honourable Judge further held that a contingency deduction of 10% on the post-morbid scenario is appropriate taking into account the plaintiff’s current employer although aware of her condition since 2005, has kept her on and increased her salary from time to time; the plaintiff has no formal qualification; the plaintiff’s husband’s evidence that she was steadily improving and the negative effects a lower category employment is likely to have on her mood and therefore functioning.

Referring to the judgment of the Supreme Court of Appeal in De Jongh v Du Pisani NO [2004] All SA 565 (SCA) the Honourable Judge further held that the sum of R400 000 would constitute fair and adequate compensation in respect of the plaintiff’s general damages.

The plaintiff was awarded R3 333 068.00 for future loss of income and general damages of R 400 000.00 as well as Costs.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

With the trial season heating up here are a few wise words to keep you humble and your anger in check –
“A man wrapped up in him self makes a very small package.” – unknown
“Be not angry that you cannot make others as you wish them to be, since you cannot make
yourself as you wish to be.” – Thomas A` Kempis

NPD rules on meaning of “delivered by hand” in S 24(1)(b) OF RAF ACT 56 of 1996

Dear Reader,

Welcome to the fourth edition of Independent Actuarial Consultant’s (IAC) monthly newsletter. Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents and the quantification of damages relating to personal injury claims.

I would like to thank all the members of the legal community who took time from their busy schedules to join us at the various training sessions and trust that what you learnt will assist you in practice. In all we had 182 attorneys who attended the training sessions in Johannesburg, Pretoria, Durban and Cape Town.

I would especially like to thank all the attendees for their various e-mails in which they praised us for the manner of presentation and content of the training material. With such a positive reponse from our readers we will definitely keep investing in future training sessions.

CHETTY v THE ROAD ACCIDENT FUND 2009 (5) SA 193

In the afternoon of the last day (28 March 2002) before the Appelant’s (plaintiff a quo) claim for compensation would have become prescribed the Appelant’s attorney attempted to deliver the claim by hand at the Respondent’s office. However, the Respondent’s office had closed at noon in accordance with its practice to do so on the day before a public holiday.

The attorney was refused access to the building by the security guards and instructed to deposit the claim in a wooden box in the foyer the Respondent used to receive documents. She did so and left. The Appelant subsequently instituted action in the magistrates court to which the Respondent raised a special plea of prescription as they contended that the claim had only been lodged on 4 April 2009. This was based on the contention that the Appelant did not comply with S 24(1)(b) of the Act which states that a claim shall “…(b) be sent by registered post or delivered by hand to the fund at its principal, branch or regional office… and the fund … shall at the time of delivery by hand acknowledge receipt thereof and the date of such receipt in writing.”

The special plea was upheld by the magistrate in the court a quo. The Appelant appealed to the Natal Provincial Division. The Appeal turned on whether depositing the claim in the box in the foyer amounted to delivery of the
claim to the Respondent on the day on which it was deposited or not. No evidence was led by the Respondent to gainsay that of the Appelant’s attorney as set out above. Accordingly the court held that what was required for delivery by hand in terms of s 24(1)(b) was that delivery takes place when a person is placed in possession of the relevant documentation. In the present matter the Appelant had to prove that depositing the claim in the wooden box amounted to the respondent being placed in possession of the claim. The court further held that the physical and mental elements of possession were present as the Respondent had physical control over the box and one of the Respondent’s claims handlers gave evidence that the Respondent regarded documents deposited into the box as having been received the
day they were placed there The Respondent had thus been placed in possession of the claim when the Appelant’s attorney
deposited the claim by hand in the box.

Appeal upheld with costs.

Sending us an Instruction
Our dedicated full time professional team receive instructions by any of the following means:
• Fax : (021) 422 4378,
• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000

And I leave you with my parting joke for the month –
Q: What’s wrong with Lawyer jokes?
A: Lawyers don’t think they’re funny, and nobody else thinks they’re jokes.

SCA rules that claim for additional injury discovered after institution of action does not constitute a new cause of action

Dear Reader,

Welcome to the third edition of Independent Actuarial Consultant’s (IAC) monthly newsletter. Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents and the quantification of damages relating to personal injury claims.

Please note that due to the massive interest we have received in relation to the training sessions in Johannesburg, Pretoria, Durban and Cape Town during the recess period of 28 September 2009 to 2 October 2009 WE HAVE EXTENDED THE DEADLINE FOR RECEIVING YOUR CONFIRMATION OF ATTENDANCE TO 9 SEPTEMBER 2009.

A further e-mail, enclosing the confirmation of attendance form, will follow.

NONKWALI v THE ROAD ACCIDENT FUND 2009 (4) SA 333

On 16 October 2001 a motor vehicle in which the Appellant (plaintiff’s a quo) was a passenger was involved in a collision as a result of which she sustained serious bodily injuries. She instituted an action for damages against the appellant (the Road Accident Fund) in the Mthatha High Court which was duly defended. The Appellant amended her pleadings, without objection, on 10 June 2005, almost four years after the collision, to include a claim for damages consequent upon a head injury allegedly sustained as a result of the accident. The head injury was not previously listed in her claim form and accompanying medical report as it was discovered subsequently. The Respondent filed a special plea alleging that, in respect of the head injury, the Appellant had not complied with s 24 in that it failed to specify such injury. In the alternative that such claim was prescribed in that it was instituted more than three years after the accident.

The Court a quo upheld the special plea on the main ground, on the basis that the Appellant was obliged to first submit an amended claim form to the Respondent before amending her pleadings so as to enable the Respondent to investigate whether or not the head injury was sustained as a result of the accident. The Court further held that even if it had decided the main question in favour of the Appellant, such claim would be unenforceable by reason of prescription. On appeal it was submitted on the Appellants behalf that she substantially complied with the provisions
of s 24 of the Act as she completed the claim form in good faith and filled in all details as was available to her at the time. Counsel further contended that the additional claim was merely a new item of damages and not a new cause of action and therefore it was not necessary to amend her claim form to avoid prescription.

Counsel for the Respondent contended that s 24 obliged the Appellant to submit a claim form, including a medical report, in respect of the head injury. Her failure to do so was fatal as it meant no claim had been lodged in respect of the head injury. The Court could not agree with the Respondent’s submissions as the fact that the head injury had not been diagnosed when the claim form had been completed and submitted was not in issue It was further not in dispute that the Appellant had placed all the facts available to her at the time at the Respondent’s disposal. There is no basis on which it can be found that the Appellant did not comply with s 24 of the Act.

As regards the alternative argument of prescription the Court held that authorities are legion to the effect that a plaintiff who claimed compensation for damages sustained due to wrongful and negligent driving under the Act had but a single indivisible cause of action and the various items constituting the claim were thus not separate causes of action. In the event the Appellant’s claim in relation to the head injury did not constitute a new cause of action
but was merely an additional item to her original cause of action. The Appellant’s amendment to her summons did, therefore, interrupt the running of prescription in respect of the further claim and it was not necessary for her to lodge an amended claim form.

Appeal upheld with costs.

Sending us an Instruction
Our dedicated full time professional team receive instructions by any of the following means:
• Fax : (021) 422 4378,
• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000

And I leave you with two parting jokes for the month –
A stingy old lawyer who had been diagnosed with a terminal illness was determined to prove wrong the
saying, “You can’t take it with you.”
After much thought and consideration, the old ambulance-chaser finally figured out how to take at least
some of his money with him when he died. He instructed his wife to go to the bank and withdraw
enough money to fill two pillow cases. He then directed her to take the bags of money to the attic and
leave them directly above his bed. His plan: When he passed away, he would reach out and grab the
bags on his way to heaven.
Several weeks after the funeral, the deceased lawyer’s wife, up in the attic cleaning, came upon the two
forgotten pillow cases stuffed with cash.
“Oh, that darned old fool,” she exclaimed. “I knew he should have had me put the money in the
basement.”

SCA rules that dependant who died contemporaneously with breadwinner not a collateral benefit

Dear Reader,

Welcome to the second edition of Independent Actuarial Consultant’s (IAC) monthly newsletter.

Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents and the quantification of damages relating to personal injury claims. In keeping with our stated aim of empowering you, the reader, we are proud to announce that we will be presenting training seminars in Johannesburg, Pretoria, Durban and Cape Town during the recess period of 28 September 2009 to 2 October 2009.
For more information please refer to the content underneath the heading “TRAINING’ hereunder.

THE ROAD ACCIDENT FUND v MONANI and another 2009 (4) SA 327

The respondents (plaintiff’s a quo) instituted action against the appellant (the Road Accident Fund) for damages for loss of support flowing from the death of the deceased in a motor vehicle accident.

At the time that he died he had a duty to support and supported his “wife”, the plaintiff’s and another child dependant (Thando) who died in the same accident. The question for adjudication by the Court a quo was whether the death of Thando in the accident constituted a collateral benefit resulting from the accident, for which the Plaintiff’s should not be compensated. The parties were agreed that should the Court find that the death of Thando was not a collateral benefit resulting from the accident, Plaintiff’s would be entitled to receive damages in a further
sum of R 163 428.00, the parties having already agreed the plaintiff’s were entitled to a sum of R 1 389 531.00.
The Court a quo held that the additional amount of R 163 482.00 was payable and gave judgment for the amount of R 1 552 959.00. The fund appealed against the decision to the Supreme Court of Appeal where counsel for the fund contended that the award to the surviving dependants had to be restricted to what they would have received had Thando not died.

During his argument he was willing to concede that if, hypothetically, Thando had died at any time before the deceased then her share would have been distributed between her mother and surviving siblings. However, he was not willing to concede that if Thando had died after the deceased the same situation would have applied save for the such maintenance as would have been appropriated for her maintenance between the date of the deceased’s death and the date on which she died. Counsel hung his hat on the contention that there appeared to be no decided cases in our law which dealt with the computation of compensation in a dependant’s claim where one or more of the dependants died simultaneously with the breadwinner. He therefore asked that the matter be considered res nova.

The court held that the defendant had correctly conceded that if Thando had died before the date of delict, the plaintiff’s would have been entitled to the extra amount of R 163 428.00, and that would also have been the position had she died at any time after the date of delict (save for any amount of maintenance that would have accrued to her between that date and date of her death). There could therefore be no basis, in logic or otherwise, for a contention that since her death occurred contemporaneously with the deceased, the amount of R 163 482.00 should be excised from the award.

Appeal dismissed.

TRAINING

Mr Johan Olivier of IAC, a qualified senior actuary and head of our MVA department, will be presenting training sessions on the computation of a simple loss of income and loss of support calculations.

The aim of the sessions are to acquaint practitioners with the basic premise of an actuarial calculation thereby empowering you to understand the effects of the various factors that play a part in the computation of loss of income and support. This will result in a better understanding of the process and also aid in the settlement of claims.

The dates for the training sessions are as follows:

  1. Johannesburg 29 September 2009
  2. Pretoria 29 September 2009
  3. Durban 30 September 2009
  4. Cape Town 1 October 2009

Further information will follow. Hope to see you all there.

Sending us an Instruction
Our dedicated full time professional team receive instructions by any of the following means:

• Fax : (021) 422 4378,
• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000

And I leave you with two parting jokes for the month –
“Q: What’s the difference between a lawyer and a herd of buffalo?
A: The lawyer charges more. “

Lawyer: “Let me give you my honest opinion.”
Client: “No, no. I’m paying for professional advice.”