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The Roles of Actuaries In Delictual Matters

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.

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