THE DATA DOESN’T WORK

If you’re a woman and you’re claiming from the RAF for loss of support, the probability of your remarrying will be a factor. The problem is that that formula is based on some outdated figures and notions

When a woman’s husband dies in a car crash, and she claims from the Road Accident Fund (RAF) for loss of support, she is usually in for a big shock. Most people have no idea that in such a case her claim will be subject to a “contingency” deduction that will reduce her payout, sometimes significantly.

And on top of that the courts might also approve an additional “remarriage” contingency, reducing the agreed amount still further, depending on how likely the judge believes it is that she will marry again.

Attorney Jacqui Sohn, who chairs the Law Society of SA’S personal injury law committee, agrees that to many people such deductions will seem punitive and even chauvinistic. However, the courts must ensure that the outcome of a claim is fair to both sides. In RAF claims, for example, the fund’s money comes from the taxpayer and has to be fairly and properly administered so that it can help as many people as possible.

But there is another element to this equation that has now caught the attention of the judiciary. The formula most often used to work out an appropriate contingency deduction, particularly for remarriage, is based on population data that is way out of date, stemming from the period of high apartheid when most black people were excluded from SA census figures because of the fiction that they were part of fictionally independent homelands.

In a recent judgment involving a woman who claimed damages for loss of support after the death of her husband in a vehicle crash, the judge had some strong words about the data and its reliability — even whether it was offensive to constitutional dignity provisions.

The woman, “L”, whose name is not being disclosed here to protect the identity of her child for whom a claim was made at the same time, had been married just five months when her husband was killed.

Her claim from the fund for loss of support was, as usual, subject to a contingency deduction. This is a court-approved sum deducted from the total agreed amount, by way of “contingency” to allow for “the vicissitudes of life”.

It is intended to reflect the fact that though an expert might have quantified in monetary terms the amount of support lost through an accident, life sometimes has a way of turning out rather differently. Perhaps the spouse who died in an accident would have died soon of natural causes, or perhaps the couple would have divorced. No-one can tell what would have happened, and a “contingency deduction”, which varies from case to case, makes some allowances for that.

In L’s claim, resthe court was also asked to decide on an appropriate remarriage contingency. This deduction is made where it is thought necessary to take account of the fact that the woman (it is almost always a woman involved in this additional “remarriage contingency” deduction) might marry again and the “support” she had lost would thus be less.

It is only recently that the courts have started frowning on the idea that a woman’s “attractiveness” may be added to the mix when deciding the “remarriage contingency” deduction.

In the mid-1960s, for example, one court wrote that the remarriage contingency deduction depended on “the appearance, personality, nature and attitude to remarriage of the person concerned”, among other factors. In that case, the woman was, in the view of the court, “in appearance an average person for her age, and . . . not unattractive”. On appeal, however, the remarriage deduction in that case was changed for a number of reasons including the fact that “the widow was disfigured because of the removal of her right breast”.

Some years later in another case, the court wrote that in deciding on a remarriage deduction a judge should consider “such matters as the age, health, appearance and nature of the widow” as well as how many children she had.

Since the introduction of the new constitution there have been some attempts to persuade the courts that any “remarriage deduction” is unconstitutional. So far these have failed, but the courts have held that it would offend constitutional equality provisions to consider appearance when deciding on the deduction.

The two sides in L’s matter had agreed that a further 20%-30% should be deducted as a “remarriage contingency”, figures arrived at based on the work of Cape Town actuary Robert Koch.

His Quantum Yearbook is widely consulted to estimate appropriate settlements in SA cases involving damages such as this, and it deals with the “remarriage contingency” among other issues.

In L’s case, however, the judge did some close reading of the yearbook, and quoted from a section in the 2018 edition headed “Notes to remarriage deduction”. These “notes” explain that the table provided is based on SA’S census data from 1970 and 1980 and that the percentages to be deducted are usually adjusted depending on “perceptions of the likely financial status of a second notional husband”.

Then comes this: “For black widows subject to the influence of customary law it is appropriate to use something less than the rate for coloured widows, perhaps one half, to allow for cultural and financial impedances to remarriage. For urbanised higher-income blacks the coloured rate would seem to be appropriate.”

The judge expressed his disquiet, saying the statistics came from data between 38 and 48 years old, from a period when apartheid was at its height. The majority of the population, and women in particular, were then subjected to legal disabilities, and due to the homelands policy a significantly large part of the population was excluded from the census during this time.

Much had changed, and he was convinced that any reliance on those statistics “and the racially based expression of them” had “no value whatsoever”. In a footnote he added that aspects of the suggested statistical application were “demeaning and offensive”.

He decided that in L’s case, given the facts of the matter, there was no need for an additional remarriage deduction, and it should be included in the general contingency.

Contacted for comment, Koch says the remarriage deduction has been the subject of “divergent opinions” for years, and that it will