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[2011] ZAGPPHC 145
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Barker v Road Accident Fund (26292/09) [2011] ZAGPPHC 145 (6 May 2011)
NOT REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
Case number 26292/09
Date heard: 15 March 2011
Date of the
judgment:06/05/2011
In
the matter between:
R.F.
BARKER
...........................................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
.....................................................................................
DEFENDANT
JUDGMENT
HIEMSTRA
AJ
[1]
This matter concerns the plaintiffs claim for damages suffered as a
result of the death on 8 September 2007 of her son, Hamish
Llewellen
Barker, who was run down by a motor vehicle while cycling. She claims
that Hamish had during his lifetime supported her
in the amount of Rl
000 per week. The defendant had conceded that it was liable for
whatever damages the plaintiff may prove.
[2]
The plaintiff alleged that she is unable to work to earn a living as
a result of the trauma she had suffered as a result of
her son's
death. According to a medico-legal report, she presents with ongoing
psychological difficulties following Hamish's death.
They are
summarised as follows:
"1.
Unresolved mourning process concerning Hamish;
2.
Wakes up every night just after midnight and cannot get back to
sleep;
3.
Daytime fatigue;
4.
Recurrent nightmares/disturbed dreams about the event;
5.
Has left Hamish's room unchanged (can still feel Hamish's presence in
the house);
6.
Not infrequently can hear Hamish calling her name;
7.
Has developed panic attacks;
8.
Not infrequently goes into a trance like state (outside Hamish's
room)
9.
Decrease in appetite and weight loss;
10.
Difficulty in sustaining concentration;
11.
Memory difficulties;
12.
Emotional instability/tearfulness;
13.
Decrease in proficiency and productivity;
14.
Decrease in libido;
15.
Loss of interest in significant activities;
16.
Irritability."
[3]
The author of the medico-legal report, a psychiatrist, Dr David A.
Shevel, is of the view that the plaintiff should be able
to return to
any occupational functioning she had pursued prior to Hamish's death
within 12 months with recommended psychiatric
treatment.
[4]
Her previous work experience was office work in the hotel industry
where her former husband worked as a chef. She also helped
her
husband in the kitchen. At some stage prior to 1988 she worked for
Master Treads for about 1 year, earning R350 per month.
She also ran
the dairy of a Mr J.J. van Zyl, with whom she is currently living.
[5]
The plaintiff has two other sons, Donald (born in 1989) and Rodney
(born in 1998). Donald lives with his father, her former
husband.
Rodney lives with her. She has no contact with Donald and her former
husband and does not know where they live. She tried
to contact him
to ask him to pay maintenance for Rodney, but could not trace him.
She receives a child support grant of R240 per
month.
[6]
As stated above, the plaintiff lives with Mr J.J. van Zyl to whom she
refers as her fiance. She testified that she had no intention
of
marrying Mr van Zyl because of her previous experience with an
abusive husband. She did not, however, testify that Mr van Zyl
had
ever been abusive to her or her children. In fact, he came across as
a solid and caring man in his testimony. He took the plaintiff
and
her family into his home in January 2006, and has supported them ever
since. He had treated Hamish as a son, employed him and
entrusted
huge responsibilities to him. He said that Hamish had called him
"Pa". In statements to the SAPS, he referred
to Hamish
interchangeably as his "son" and "stepson".
[7]
Mr van Zyl testified that he is the owner of a construction company,
CMJW Konstruksie, which carried out substantial construction
projects. The company developed a chicken breeding facility, which Mr
van Zyl eventually ran together with Hamish. The company
had several
other projects, such as the construction of an old age home and a dog
unit for the South African Police Service. In
addition he ran a
substantial dairy farm for his own account, which the plaintiff
managed for him.
[8]
In August 2008 Mr van Zyl had an accident at the dairy which left him
in a coma for 63 days. His subsequent treatment lasted
for seven
months. He had to learn to walk again and has only been back on his
feet for a year. He reduced his dairy to only 15
cows. The
construction company is now dormant.
He
has a benign tumour on the brain, which he says may turn malignant at
any time.
[9]
Mr van Zyl testified that he had paid Hamish a salary of R2 000 per
week. The plaintiff testified that Hamish had given her
Rl 000 per
week, which she has now been deprived of. The only documentary
evidence of Hamish's employment and salary is a letter
written by Mr
van Zyl on the letterhead of CMJW Konstruksie to that effect. Mr van
Zyl said that after his accident, his construction
company became
dormant. His bookkeeper has all the documentation. The defendant
had requested the plaintiff's attorneys to
provide written proof of
Hamish's employment and salary, but received no response.
[10]
The plaintiff, Hamish and Rodney had lived with Mr van Zyl in his
home since January 2006. In reply to my specific question,
the
plaintiff testified that her relationship with Mr van Zyl started in
December 2005. She changed that shortly afterwards and
said that it
had started after Hamish's death. Mr van Zyl also testified that
their relationship had started after Hamish's death.
That cannot be
true. In an affidavit deposed to a few months after the accident, Mr
van Zyl said that he had handed the telephone
to his "fiance"
when the police phoned to inform them of the accident. He further
said in the affidavit that he had told
the police that Hamish was his
son. In another affidavit he said he had told them that Hamish was
his stepson. If the relationship
had been purely platonic, then
Hamish would not have called Mr van Zyl "Pa" and Mr van Zyl
would not have told the police
that Hamish was his son or step-son.
[11]
The relationship seems to be a stable one. Mr van Zyl referred to the
plaintiff in evidence as "my vrou" on at least
one
occasion. They are living together as man and wife. It is clear that
Mr van Zyl supports the plaintiff in every respect. Her
contribution
to the common household is housekeeping and cooking for the family.
She is clearly not destitute and dependent on
the Rl 000 that Hamish
allegedly gave her every week. It must be remembered that Hamish also
lived in the home. He earned money,
and it is only to be expected
that he would have paid rent or contributed to the expenses of the
common household. The Rl 000 per
week cannot be regarded as support
for his mother.
[12]
I therefore find that the plaintiff has not discharged her onus to
prove loss of support, either in the past or in the future.
I find,
however, that she has suffered severe trauma and requires psychiatric
treatment. An award of general damages is therefore
justified.
In
the result the defendant is ordered to pay to the plaintiff:
1.
The sum of R40 000 as general damages;
2.
The defendant is ordered to provide an undertaking to the plaintiff
in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
in respect of future medical expenses.
3.
Costs, including the costs of the expert witness.
J. HIEMSTRA
ACTING JUDGE OF THE HIGH
COURT
Date
of trial: 15 March 2011
Date
of Judgment: 4 May 2011
Counsel
for the plaintiff: Adv E. Botha
Attorneys
for the plaintiff: Savage Jooste & Adams
Counsel
for the defendant: Adv D.P. Mogagabe
Attorneys
for the defendant: T.M. Chauke Attorneys