Medical advancements work in advisers’ favour
South Africa is a world leader in many aspects. Unfortunately, one of the things that South Africa leads the world in is HIV infection rate. The upside to this is that there is a lot of development being lead in South Africa on fighting the disease and decreasing the stigma attached to it.
A lot of the medical research into HIV has to do with increased life expectancy. It has become clear that recent medical advancements have made it possible to significantly increase the life expectancy of an HIV patient. But there is a debate in the industry regarding how long this is extended to. This has been a contentious issue in recent court cases.
Gift Seme vs RAF
Sylvia Maila, from LindsayKeller Attorneys, points out that the matter of Gift Seme versus Road Accident Fund (RAF) dealt with the quantification of a claim for future loss of earnings, and considered the effect that an HIV-positive status has on one’s life expectancy in ruling.
The plaintiff instituted action against the RAF for payment of damages arising from a motor vehicle collision on 27 February 2001. The experts assessing this matter agreed that Seme would not be able to work again as a result of the accident. Seme then claimed, inter alia, an amount of R3 369 747 for his future loss of earnings.
When determining the life expectancy, the court accepted evidence proving that Seme is what is termed a long-term non-progressor; therefore, his HIV status would not affect his normal life expectancy and was to be considered as having no effect on his working life.
Judge President Tshabalala specifically stated that it is generally accepted that a person who is infected with HIV has a lower life expectancy. However, the extent of the reduction remains somewhat arguable. Final judgement in this case was that future loss of earnings in this case be calculated from the day of the accident until Seme turns 65.
A shot in the dark
Maila also highlighted the matter of Langalakhe Ncengokwakhe Njoko v Minister of Safety and Security, where the issue of the life expectancy of an HIV-positive claimant against the RAF was addressed again.
The plaintiff, Njoko, was unlawfully shot by a police officer and sustained serious injuries. As a result, he was effectively left without the use of his right arm. In order to quantify the compensation that could be awarded to him for his future loss of earnings, the court had to consider his life expectancy.
Judge Lopes accepted the evidence of Professor Francois Venter, president of the HIV/AIDS Clinicians Society, that Njoko’s HIV status would not have a negative effect on the plaintiff’s life expectancy or loss of earnings. Njoko was 30 years old when the hearing took place and, on the basis of professor Venter’s evidence, one could expect him to live for another 30 or 40 years.
Don’t rest on laurels
What is clear from the cases above is that the victims of accidents cannot use their HIV status as an excuse to get compensation out of companies. While in the first case it was not indicated how long Seme would live when compared with a person living without HIV, the second case gave an indication that the current thinking is that a person living with HIV can have a life expectancy which extends to within ten years of a person who does not have HIV.
This means that advisers need to make sure that their clients are properly covered so that they can get the compensation they need, as would be the case with any other client. Critical Illness cover makes provision for lifestyle changes and would have been a perfect product in the Njoko case where the plaintiff lost the use of his arm.
Life cover is also important as clients who are living with HIV would want to provide for their families once they pass away. There are a number of companies that accept people who are living with HIV, so the stigma that used to be attached to living with the disease is decreasing.
As with the court cases, the advice from doctors may play a vital factor in determining the level of cover clients get. It is particularly important that clients are not underinsured in these cases as the implications can be far reaching.
Editor’s Thoughts:
As proven in the court cases above, clients cannot successfully use medical conditions as a crutch to get increased payments out of companies. Advisers should make sure that clients are not underinsured when it comes to life and disability insurance. That way, clients are not left destitute when unfortunate events occur. Please comment below, interact with us on Twitter at @fanews_online or email me your thoughts [email protected].
