When loss or damage has occurred, it is customary to seek reprieve in the form of
compensation. The need for compensation is unarguably justified. However, in practice, the
bone of contention lies in the amount (quantum) which must be awarded to indemnify the loss
in instances where such loss cannot be quantified in monetary terms.
The determination of compensation for loss is a judicial task premised on the application of
experience, intuition, and “right thinking”. The court cannot adopt a non possumus attitude and
make no award where the merits have been settled. The actual damage or loss in monetary terms
is speculative which requires setting up assumptions about the future. This is where actuaries
come in, by making a mathematical computation of the loss or damage based on assumptions and
the information provided.
Globally, actuaries are actively involved in delictual computation and acting as expert witnesses
during trial, this trend has gained traction in South Africa as actuaries play a pivotal role in the sui
generis nature of these actions which are not subject to the ordinary rules of evidence and
procedure.
The most common delictual actions are those against the Road Accident Fund (“RAF”), which is a
statutory insurer of all road users in South Africa, local or foreign, against injuries or death arising
from motor vehicle accidents within the Republic. The RAF broadly compensates claimants and/or
their dependents for general and special damages occasioned by motor vehicle accidents.
Legal Practitioners solicit actuarial assessments or reports for the quantification of Past or Future
Loss of Income claims which arise when an individual is involved in a motor vehicle road accident
and is injured to an extent that they are unable to have the same career progression had the
accident not occurred, and Loss of Support claims by the dependents of the deceased who are
deprived of their legal duty of support.
The South African Law of Delict incorporates various actions that require actuarial input beyond
the habitual scope of the RAF. Cases of loss of income due to unfair dismissal, loss of income due
to a breach of contract, divorce settlements, maintenance and other wrongful career disruptions
arise and require the expertise of actuaries to quantify the loss to the individuals. Actuaries are
also instrumental in computing the capitalizing of future medical costs and interventions which
have been brought by an accident. In the advent of a multiplicity of medical procedures, the
prevalence of medical malpractice and medical negligence cannot be ignored. Therefore, the
necessity and diversity of actuaries in the legal sphere deserve closer analysis.
