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[2020] ZAWCHC 15
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B.B and Others v Road Accident Fund (11676/2017) [2020] ZAWCHC 15 (28 February 2020)
SAFLII
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Certain
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Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. 11676/2017
Before:
The Hon. Mr Justice Binns-Ward
Dates
of hearing: 24-25 February 2020
Date
of judgment: 28 February 2020
In
the matter between:
B
B
Plaintiff
(In her
personal capacity and in her capacity
as
mother and guardian of her minor sons,
K B
(born 15 January 2004) and
S
B (born 3 May 2006).)
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
BINNS-WARD
J
[1]
The subject matter of this action is a
claim for compensation for the loss of financial support suffered by
the plaintiff and her
two sons consequent upon the death in a road
accident, on 9 May 2015, of the late P B (hereinafter referred to as
‘the deceased’).
[2]
The plaintiff had been married to the
deceased at the time of his death. Two children were born of
the marriage; K, whose
date of birth was 15 January 2004, and S,
who was born on 3 May 2006. It is common ground that the
deceased and
the plaintiff owed one another and their children a duty
of support, and that during the marriage the deceased had been the
family’s
principal breadwinner. It is also common ground
that the negligence of the driver of the motor vehicle that came into
collision
with the deceased’s motor cycle in the incident in
which he was killed caused the accident and resultant death. It
was consequently accepted that, subject to the limitations imposed in
terms of the
Road Accident Fund Act 56 of 1996
, the defendant is
liable to compensate the plaintiff and her sons for their loss of
support.
[1]
The only issue in the trial was the appropriate quantification of the
award in damages, and even in that regard there was
no dispute
concerning the relevant facts. In addition, no issue has been
taken with the approach as to how much of the deceased’s
and
the plaintiff’s respective earnings was, and would have been,
applied in respect of their mutual and common duties of
support;
namely, two parts thereof to him or herself, two parts to the other
spouse, and one part to each of their children while
they remained
dependant.
[3]
The deceased had qualified as a computer
programmer after leaving school, and at the time of his death, within
the week of his 39
th
birthday, he had been employed by Suiderland Development Corporation
(or that company’s subsidiary, Suiderland Yellowstone)
in its
IT department for approximately 16 years. He had been
appointed as an IT Manager in 2002 and by 2015 had reached
‘senior
management level’, with no opportunity of being able to rise
higher in his employer company. Although
highly regarded by his
employer, were he to seek to improve his earnings beyond the level at
which he was being paid by the company,
he would have had to obtain a
position elsewhere or launch out in his own business. An
industrial psychologist, Dr Richard
Hunter, who testified at the
instance of the plaintiff, opined that ‘
[c]onsidering
his age, education and training, employment history, as well as the
collateral obtained, it seems reasonable to conclude
that had [the
deceased] not died in the accident, he would probably have remained
with his employer … until normal retirement
age’. I
am in agreement with that assessment.
[4]
At the time of his death the deceased was
in receipt of an annual remuneration package worth R754 692 plus
an incentive bonus
of R50 000. It was accepted for the
purposes of the trial that his total annual income would have
increased over time
to R1 400 000 in 2019 values by 2021,
when he would have been 45 years old. It was assumed that from
that point
until he reached retirement his income would keep pace
with inflation.
[5]
The deceased underwent ‘compartment
syndrome surgery’ on both of his legs about two years before
his death. No
expert evidence was adduced concerning the nature
or effect of the condition that necessitated this surgery. From
the plaintiff’s
evidence it would appear that it was directed
at addressing a muscular condition in the deceased’s calves.
She said
that the surgery had been successful in eradicating the pain
that the deceased had been experiencing in his legs, and that, to the
best of her knowledge, the condition and its treatment had not left
the deceased exposed to complications later in life.
Furthermore, three months before he died, the deceased was diagnosed
as suffering from type 2 diabetes. The diagnosis was
made
incidentally during a routine medical check-up. The deceased
was placed on medication and advised to change his diet
and lifestyle
in order to manage the condition. He had taken this advice to
heart and, amongst other matters, had consulted
a dietician.
Nothing in the evidence suggested that the deceased’s diabetic
condition would shorten his working lifespan,
assuming the condition
were appropriately managed.
[6]
The plaintiff had been employed since
August 2014 on a half day basis as an office administrator at a
karate school in Durbanville,
which was the suburb in which she and
the deceased had their family home. She earned an income of
R5 500 a month.
Prior to that she had been unemployed for
three and a half years since 2011, when the deceased was transferred
from Piet Retief
to his employer’s head office in Cape Town.
She was in receipt of a pension after her husband’s death, but
it
was payable for only one year.
[7]
Had it not been for her husband’s
death, the plaintiff considers that it was likely that the family
would have continued living
indefinitely in Cape Town, where they
were very happy. She said that it was unlikely that they would
have emigrated as both
she and her husband were content in this
country, where their wider family still lives and, it would seem, is
likely to remain.
Only one member of her wider family, a
cousin, lives abroad.
[8]
The emotional and financial impact of her
husband’s traumatic death unsettled the plaintiff, however, and
caused her to decide
that it would be in the best of interests of
herself and the children to start afresh somewhere else. As one
of her grandparents
had been born in the United Kingdom she was able
to obtain an ancestral visa that allowed her to live and work in that
country.
Availing of that facility, the plaintiff and her sons
emigrated to Britain in December 2016 and settled in Buckingham,
where they
have lived for the past three years. The boys attend
‘The Buckingham School’ there. It describes itself
as ‘a specialist sports college’, but nothing in the
evidence suggested that it was anything other than an ordinary
school. The plaintiff has obtained employment in Buckingham on
an income of £1 500 per month. She and her
sons
reside in a house there that she rents for £905 per month.
In the circumstances her evidence that she is currently
unable to
afford anything other than the bare necessities might well be an
understatement.
[9]
The plaintiff’s older son, K, is
doing satisfactorily at school. The evidence is that he is
expected to complete his
A levels and then proceed at the age of 18
to university. In the circumstances it is expected that he will
continue to be
dependent on his mother until he is 21.
[10]
The younger son, S, suffers from attention
deficit disorder. It would appear that he also has other
learning difficulties.
The plaintiff testified that despite
these handicaps S has made progress over the years and that his
performance at school has
improved. It is nevertheless evident
from his school reports, some of which were put in evidence, that he
is unlikely to
qualify to go to a university. The grading
reflected in the school reports is not easy to follow, and I am not
convinced
that the plaintiff’s evidence concerning their
interpretation, more particularly concerning the significance of the
column
headed ‘MEG’ and the scoring in that column, was
correct. The import of the acronym ‘MEG’ was not
elucidated.
[2]
Mrs B, if I understood her correctly, understood the scoring under
‘MEG’ to be on a grading of 1-9, with 1 representing
the
lowest score and 9 the highest. If that were so, S’s
reported scores of between 1 and 3 would be very poor.
The
plaintiff’s explanation of how the reports should be read does
not, however, tally sensibly with their content.
For example,
S’s MEG score of ‘
Level 1
Distinction
’ for Business Studies
in his year 9 report would not make sense if 1 reflected the lowest
obtainable score. How could
one succeed to the attribute of
distinction with the lowest possible score? The MEG grading
obtained by S for Construction,
viz. ‘
Level
2 Pass
’ also does not make sense
in the context of the plaintiff’s understanding of how the MEG
scoring works.
[11]
On the other hand, the teachers’
comments in the columns of the reports headed ‘
attitude
to learning
’ and ‘
extended
learning
’, respectively, read
with the ‘
report key
’
that explains the scoring under those headings, include much positive
and encouraging matter. Those remarks are inconsistent
with S
having performed very poorly. For that reason, I am persuaded
to accept the plaintiff’s evidence, which was
supported by Dr
Hunter, that S is likely to proceed to a technical college when he
leaves school at age 16 after writing his GCSE
examinations. He
would be expected to spend three years at college, and therefore
remain dependent on his mother for support
until the age of 19.
That scenario was indeed accepted by the defendant’s counsel
for the purposes of quantifying S’s
claim for loss of support.
[12]
Being a claim for loss of support, the
quantification of what the court is permitted to award in damages is
limited by the cap imposed
in terms of
s 17(4)(c)(ii)
of the
Road Accident Fund Act, which
in this case falls to be read as
follows:
Where a claim for compensation under subsection (1)—
…
(c) includes a claim for loss of income or support, the
annual loss, irrespective of the actual loss, shall be
proportionately calculated
to an amount not exceeding—
(i) …
(ii) R228 430 per year, in respect of each deceased
breadwinner, in the case of a claim for loss of support.
The
amount applicable in terms of
s 17(4)(c)(ii)
is the cap that had
been determined by the Fund, in terms of
s 17(4A)(a)
of the Act,
as being applicable at the date of the deceased’s death.
[3]
[13]
The manner in which the calculation of a
loss of support claim falls to be approached in the context of the
cap introduced in terms
of
s 17(4)(c)(ii)
has been settled by
the appeal court’s judgment in
Road
Accident Fund v Sweatman
[2015] ZASCA
22
(20 March 2015);
[2015] 2 All SA 679
(SCA);
2015 (6) SA 186.
Two calculations fall to be made. The first is done on the
conventional basis, taking into account the adjustments
merited by
the application of the positive or adverse contingencies that court
considers appropriate in the given case. The
second calculation
is undertaken assuming that present value of the annual loss of
support sustained by the claimant is in the
sum provided for at the
time of the breadwinner’s death in terms of
s 17(4)(c)(ii).
The amount that falls to be awarded is the lower figure of the
product of the two calculations.
[14]
Calculations of the plaintiff’s loss
of support claim were made in accordance with the approach endorsed
in
Sweatman
by
the actuaries engaged by the plaintiff and the defendant
respectively. The only difference between them in respect of
their conceptual approach bore on the question of whether provision
should have been made for the value of an accelerated inheritance
benefit by the plaintiff, who had been the sole heir to her husband’s
estate. During the course of the trial, however,
the parties
reached agreement that insofar as there might have been any
accelerated inheritance benefit, its effect on the calculation
of the
plaintiff’s loss was negligible, and could therefore be ignored
for the purposes of the computation of her loss of
support claim.
A note recording that agreement was handed in as exhibit B.
[15]
There was nothing in dispute between the
parties concerning the plaintiff’s actuary’s computation
of the loss of support
claim in respect of K on the basis that he
would be dependent until the age of 21, and it was ultimately
accepted that the calculation
of S’s claim should assume that
he would remain dependant until age 19. As a calculation had
already been done assuming
that S would be dependant until he turned
18, the plaintiff’s counsel indicated that the plaintiff would
be content to accept
that figure as representing the value of S’s
claim. I was informed by counsel that she was willing to do so
because
actuarial advice was that because of the effect of the
statutory cap the difference between the present value of the claim
calculated
to age 18 and that calculated to age 19 was negligible.
As matters transpired, a more precise calculation was actually done
later, in circumstances to be described at the end of this judgment.
Counsel were agreed that the computation of children’s
claims
should be subject to contingency deductions of five percent in
respect of past loss and 10 percent in respect of future
loss.
[16]
There was some debate in argument, however,
as to level at which the plaintiff’s personal claim should be
subject to contingency
deductions in respect of future loss.
The plaintiff’s counsel submitted that the rule of thumb in an
unexceptional
case such as the plaintiff’s was to apply a 15
percent contingency deduction to allow for the general hazards of
life over
the reasonably long period that the plaintiff, who is
currently 40 years of age, might reasonably be expected to survive.
The defendant’s counsel countered by arguing for a contingency
deduction of 50 percent, which is exceptionally high.
In
support of his argument, he suggested that the court should give
significant weight to the plaintiff’s remarriage prospects,
and
also that it should consider that, even if the deceased had not met
an untimely death, there had been a prospect that when
the children
had left home the plaintiff might have obtained employment at a
higher remuneration in real terms than that which
she had been
earning at the karate school.
[17]
The plaintiff testified that she had not
formed a romantic relationship with anyone in the almost five years
since the death of
her husband. She obviously could not exclude
the possibility that she might eventually remarry, but, in her words,
and she
spoke convincingly, remarrying was ‘not a priority’.
Her evidence is that she dedicates all her free time and
emotional
energy to her two sons. It bears mention in this regard that
the plaintiff has never in her lifetime had a relationship
with any
other person other than her late husband. They became
romantically involved when the plaintiff was still at the
school that
they had both attended in Piet Retief, and were married five years
later, when the plaintiff was aged 21. In
all the circumstances
I am not persuaded that the plaintiff’s prospects of remarrying
should weigh especially in making provision
for a contingency
deduction in respect of the actuarily quantified extent of her loss.
They can be taken into account as
part of the basket of general
contingencies for which provision will be made.
[18]
It should be remembered in this regard that
the provision for contingencies, be they positive or negative,
involves nothing more
than a judicially intuitive tempering of the
actuarily calculated loss with a view to trying to minimise the
chances of the plaintiff
being overcompensated, or the defendant
over-penalised. The actuarial calculation of future loss is
itself predicated on
assumptions as to the likely course of events,
which in the nature of things must be speculative to a greater or
lesser degree
depending on the facts of the case. The provision
for contingencies is the best that can be done to allow for the
unpredictable
variations – sometimes referred to as the
‘hazards’ or ‘vicissitudes’ of life - that
the fates will,
after the award has been made, almost inevitably
bring to bear on the accuracy of the actuary’s predictive
model. Making
provision for contingencies is an incidence of
the judicial discretion that is involved in determining any award in
damages of
the sort that, of necessity, entails making an estimation;
cf. e.g.
Road Accident Fund v Guedes
[2006] ZASCA 19
(20 March
2006); 2006 (5) SA 583
(SCA) at paras 5 and
8 and
Road Accident Fund v CK
[2018] ZASCA 151
(1 November 2018).;
[2019] 1 All SA 92
(SCA);
2019 (2) SA 233
, at paras. 40-44.
[19]
It has not proved necessary in the
circumstances to express any determinative view about the dictum in
Esterhuizen and Others v Road Accident
Fund
[2016] ZAGPPHC 1221 (6 December
2016); 2017 (4) SA 461
(GP) at para. 13, ‘
that
it must also be borne in mind
[in the
determination of contingencies]
that a
second marriage may not result in financial support
’,
to which I was referred by the plaintiff’s counsel.
Suffice it to say that I am, with respect, doubtful about
its
correctness in principle. Any inherent right to continued
support by virtue of a marriage is terminated if the dependant
spouse
contracts a subsequent marriage. The patrimonial advantages or
disadvantages of the second marriage would therefore
be irrelevant in
the determination of contingencies in respect of the quantification
of a loss of support claim following on the
death of a spouse in the
first marriage.
[20]
With regard to the argument that account
should be taken of the possibility that the plaintiff might in any
event, irrespective
of the intervention of her husband’s
demise, have obtained more remunerative employment later in her life,
in the determination
of the adverse contingencies, the defendant’s
counsel recognised that it would be necessary to distinguish the
matter from
the approach enunciated in this regard in the appeal
court’s judgment in
Peri-Urban
Areas Health Board v Munarin
1965 (3)
367 (A);
[1965] 3 All SA 471
, at 375G-376D (SALR), which approved the
statement of the law set out by Vieyra J in
Ongevallekommissaris
v Santam Versekeringsmaatskappy Bpk
1965 (2) SA 193 (T);
[1965] 2 All SA 270
, at 200A-206C, more
especially, at 203F- H and 205H-206C (SALR). In
the first of the aforementioned passages
in
Ongevallekommissaris
,
the learned judge stated:
I have no difficulty about the relevancy of the widow's
earning capacity in so far as that must be considered for the purpose
of
determining what proportion of the husband's earnings, had he
lived, would have gone to the support of his wife. Although not bound
to seek employment she may during her husband's lifetime in fact have
earned an income by engaging in some remunerative occupation
or
professional activity, even despite the necessity of raising a
family. Or the evidence may show that at some stage she would
in all
probability have undertaken remunerative work. These are
factors which in my view have a bearing on the position,
because they
are germane to the determination of what in all the circumstances the
husband would in fact have afforded to his wife
had he not been
killed. But that does not assist to determine in how far these
factors
must again be considered
viewed in the light of the
fact that the plaintiff is a widow earning a livelihood or having a
potentiality so to do. (My
underlining.)
In the
second passage mentioned, he concluded:
What a wife loses as a result of the death of her
husband is the support which the deceased would have been able to
afford and would
probably have afforded to his wife had he not been
killed … . It derives from the marital relationship. It
releases a wife
pro tanto
from any economic necessity to find
the amount involved from other sources, whether these consist of
investments or the ability
to earn a wage or salary or in any other
manner. The loss is not merely a loss of a monetary nature. It is a
loss of support, a
benefit outside the orbit of her own earning
capacity. That loss is not diminished because she has created or can
create other
sources of revenue, for the moneys to be derived from
other sources have their origin elsewhere and do not constitute
support.
Should she decide to work after her husband's death, even
assuming she had had no intention of doing so whilst her husband
lived,
she is not in any way minimising the amount of the loss of
support. That loss remains. It seems to me that this is the correct
view to take.
[21]
My understanding of the import of this
jurisprudence, by which I am bound, is that the dependant spouse’s
actual earnings
at the time of the deceased’s death and his or
her probable future income had the dependant status continued but for
the
intervening death are matters properly taken into account in
calculating her loss of support claim. This is so because they
are relevant to the calculation of the extent to which dependant
spouse would have actually been legally entitled to support from
the
deceased, currently and prospectively, at the time of his death.
In other words, evidence on those matters goes to the
essentially
empirical calculation of the loss, being the value of the right to
support that was lost upon the deceased’s
death. That has
been done in this case on the basis of the evidence that the
plaintiff was earning R5 500 per month
at the time of her
husband’s death and its indication that, had he not died, she
would have continued to do so in real terms
for the rest of her
working life. The calculation of the claim on that basis is
supported on the probabilities. It
would be inappropriate,
applying the principle distilled in the two judgments just mentioned,
to then provide for a contingency
deduction to the loss, so
calculated, so as to cater for the possibility that the plaintiff
might subsequently improve her position
by obtaining full day
employment or employment at a higher rate of remuneration. The
position was pithily summed up by Holmes JA
in
Munarin
supra, at 376 (SALR): ‘
What
[the plaintiff spouse]
has lost is a
right—the right of support. She cannot be required to mitigate
that loss by incurring the duty of supporting
herself
’.
[22]
The plaintiff’s personal claim was
actuarially calculated applying a five per cent contingency deduction
in respect of past
loss (i.e. up to the time of the trial) and 15 per
cent in respect of her future loss. Before the application of
the aforementioned
contingency deductions, the plaintiff’s
expectation of life had already been taken into account using the
published mortality
tables generally used for that purpose. In
my judgment, the application of a 15 percent contingency deduction
seems fair
in all the circumstances. In arriving at the amount
which it was suggested should be awarded, the actuary thereafter took
into account the effect of the statutory cap provided in
s 17(4)(a)(ii)
of the
Road Accident Fund Act. As
mentioned, the evidence in that regard was not in dispute.
[23]
The calculations were revisited at my
request, after the conclusion of argument, to deal with the effect of
the evidence that S
would probably be dependant not until the age of
18 or 21, as postulated in the expert evidence summary of the
plaintiff’s
actuary, but actually until age 19. I was
informed that the recalculation gave the following result:
[
Loss after Cap, contingencies and accelerated benefits
]
K to 21, S to 19
Past Loss
Future Loss
Total Loss
B B
R462 800
R3 835 500
R4 298 300
K B
R318 200
R 393 200
R 711 400
S B
R318 200
R 393 200
R 711 400
TOTAL
LOSS OF SUPPORT
R 5 721 000
[24]
In the result the following order is made:
1. Judgment is granted in favour of the plaintiff in her personal
capacity in the sum of R4 298 300;
2. Judgment is granted in favour of the plaintiff in her
representative capacity as mother and natural guardian of K B (born
15
January 2004) in the sum of R 711 400;
3. Judgment is granted in favour of the plaintiff in her
representative capacity as mother and natural guardian of S B (born 3
May 2006) in the sum of R 711 400;
4. The defendant shall be liable to pay interest on the aforesaid
amounts
a tempore morae
at the rate of 10,25% per annum from
14 days after the date of this order to date of payment;
5. The defendant shall pay the plaintiff’s costs of suit as
taxed or agreed, which shall include the qualifying fees of Mr Charl
du Plessis (actuary) and Dr Richard Hunter (industrial
psychologist).
6. The defendant shall be liable to pay interest on the amount of the
plaintiff’s costs of suit, as taxed or agreed, at 10,25%
per
annum from 14 days of the
allocatur
of the taxing master or
the date of agreement, whichever applies, to date of payment.
A.G. BINNS-WARD
Judge of the High Court
[1]
Section 17(1)(a)
of the
Road Accident Fund Act.
[2]
My own research on the internet suggests that, in the context of the
UK education system, ‘MEG’ stands for ‘
minimum
expected grade
’. The import of that concept seems
somewhat esoteric, and to be properly understood for the purposes of
the adjudication
of the claim should have been explained through the
evidence of an appropriately qualified expert. It is clear,
however,
that it does not denote an examination mark.
[3]
Section 17(4A)(a)
of the Act provides:
‘
The Fund shall, by notice in the Gazette, adjust the
amounts referred to in subsection (4) (c) quarterly, in order to
counter
the effect of inflation
’.