AD and Another v MEC for Health and Social Development, Western Cape Provincial Government (27428/10) [2016] ZAWCHC 182 (1 December 2016)

AD and Another v MEC for Health and Social Development, Western Cape Provincial Government (27428/10) [2016] ZAWCHC 182 (1 December 2016)

The court held that, by agreement between the parties, the generally accepted actuarial method should be used to calculate future loss of earnings and medical expenses, which accounts for mortality risk year by year rather than applying a strict cut-off at the expected death age. The court confirmed that damages should be paid into a trust founded by the plaintiffs, with Nedgroup Trust Ltd as trustee, exempt from furnishing security. The court made supplementary orders quantifying the damages and setting out the process for payment and administration, pending further determination of costs and the amount to be awarded for trust administration.

Citation
[2016] ZAWCHC 182
Parties
Plaintiff: AD; Plaintiff: IB; Defendant: MEC for Health and Social Development, Western Cape Provincial Government
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 December 2016
Case Number
27428/10
Procedural Posture
Civil Trial / Supplementary Judgment Following Main Judgment and Actuarial Submissions
Outcome
Supplementary orders granted quantifying damages and confirming payment into trust; costs and trust administration award reserved for later determination.
Judges
Rogers
Legal Topics
Quantification of Damages, Actuarial Calculation, Contingency Deduction, Trust Administration, Lost Earnings, Life Expectancy Assessment
Delict Civil Procedure Family and Children Quantification of Damages Actuarial Calculation Contingency Deduction Trust Administration Lost Earnings +1 more

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Parties

AD

Plaintiff

IB

Plaintiff

MEC for Health and Social Development, Western Cape Provincial Government

Defendant

Procedural Posture

Civil Trial / Supplementary Judgment Following Main Judgment and Actuarial Submissions

Legal Issues

  1. 1 How should the plaintiff's reduced life expectancy be factored into the actuarial calculation of future loss of earnings and medical expenses.
  2. 2 Is it permissible for damages to be paid into a trust rather than to a curator bonis.
  3. 3 Which actuarial method best reflects the court's findings on life expectancy and lost years.

Ratio Decidendi

The court held that, by agreement between the parties, the generally accepted actuarial method should be used to calculate future loss of earnings and medical expenses, which accounts for mortality risk year by year rather than applying a strict cut-off at the expected death age. The court confirmed that damages should be paid into a trust founded by the plaintiffs, with Nedgroup Trust Ltd as trustee, exempt from furnishing security. The court made supplementary orders quantifying the damages and setting out the process for payment and administration, pending further determination of costs and the amount to be awarded for trust administration.

Court Disposition

Supplementary orders granted quantifying damages and confirming payment into trust; costs and trust administration award reserved for later determination.

Orders

  • The amount awarded pursuant to para 2 of the previous orders is R12,323,224, calculated as set out in appendix 1 to the joint report of the actuaries dated 7 October 2016.
  • The amount awarded pursuant to para 4 of the previous orders, after a 17.5% contingency deduction, is R3,057,858, calculated in accordance with the generally accepted actuarial method.