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[2011] ZAECPEHC 7
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Jonathan obo Jonathan v Road Accident Fund (731/08) [2011] ZAECPEHC 7 (17 March 2011)
IN THE HIGH COURT OF SOUTH AFRICA NOT
REPORTABLE
EASTERN CAPE, PORT ELIZABETH
Case No.: 731/08
Date Heard: 7-9 March 2011
Date Delivered: 17 March 2011
In the matter between
MERCIA SOPHIE JONATHAN
…............................................................
First
Plaintiff
Obo SHERNICE LAUREN JONATHAN
SHERRON JONATHAN
…..................................................................
Second
Plaintiff
and
THE ROAD ACCIDENT FUND
…................................................................
Defendant
JUDGMENT
EKSTEEN
J:
[1] One Lawrence Jonathan (the
deceased), a taxi operator, died in and as a result of a motor
vehicle collision which occurred on
9 September 2004. The first
plaintiff had previously been married to the deceased. The marriage
was terminated by divorce during
1999 after three children had been
born of the union.
[2] The first plaintiff herein sues
the defendant in her representative capacity for and on behalf of
Shernice Lauren Jonathan (Shernice),
the youngest child born of the
union with the deceased, for the loss of support which she alleges
that Shernice was entitled to
receive from the deceased and which she
in fact would have received but for his demise. The second plaintiff
was also born of the
marriage between the first plaintiff and the
deceased and sues herein on the same cause of action in her personal
capacity, she
having now attained the age of majority.
[3] The merits of the plaintiffs’
claim relating to the negligence giving rise to the death of the
deceased is no longer in
issue. By agreement between the parties an
order of court was granted on 18 August 2009 which recorded that “the
defendant
fully concedes the merits of the plaintiffs’ claims”.
What is in issue in these proceedings is accordingly the extent
of
the damages which the plaintiffs are able to prove that they are
entitled to receive in consequence of the death of the deceased.
[4] The claim by a dependant for loss
of support has historically been regarded as a right of property. The
deprivation of which
by a wrongful act of a defendant would found a
claim for patrimonial damages. As patrimonial loss is a
sine qua
non
for any action under the
lex Aquilia
the action can
only succeed where there has been a legal duty on the deceased to
maintain the plaintiff and where he in fact did
so. (See
Corbett
and Gauntlett: The Quantum of Damages – Vol 1
p. 60 and the
authorities referred to therein.)
[5] It is not in dispute that both
Shernice and the second plaintiff are the children of the deceased
born from the union with the
first plaintiff. The legal obligation of
the deceased to maintain them was accordingly formally admitted in a
pre-trial conference
held on 2 November 2010. In evidence before me
it was not disputed that the deceased did in fact contribute to the
maintenance
of Shernice and the second plaintiff until his demise in
September 2004 and it was formerly admitted at a pre-trial conference
that both Shernice and the second plaintiff would have required such
maintenance and that the deceased would have continued to provide
such maintenance until each of them reached the age of 21.
[6] Two matters which underlie the
assessment of damages remain in issue, namely, the extent of the
maintenance which the deceased
did in fact contribute to Shernice and
the second plaintiff respectively and the ability of the deceased to
have continued to pay
such maintenance.
[7] Much of the argument before me
centres on submissions of Mr
Dala
, for the defendant,
that there is simply not sufficient evidence before me to make any
assessment. He accordingly asks that I should
absolve the defendant
from the instance. In the light of this it is perhaps desirable first
to consider the approach which is to
be adopted in a matter of this
nature before I turn to consider the actual evidence.
[8] I have set out above that the
right of the dependants of the deceased to receive maintenance and
support is not in issue nor
is it disputed that the deceased made
such contributions. It is accordingly manifest that each of the
plaintiffs have in fact suffered
patrimonial damages. In
Hersman
v Shapiro and Co.
1926 TPD 367
Stratford J at 379 said in
this regard:
“
Monetary
damages having been suffered, it is necessary for the court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the court is little more than
an estimate; but even so, if it is certain that
pecuniary damages
have been suffered, the court is bound to award damages”.
[9] This approach holds good today and
was confirmed in the Appellant Division of the Supreme Court of South
Africa, as it was then
known, by Holmes JA in
Anthony and
Another v Cape Town Municipality
1967 (4) SA 445
(A) where
the learned Judge is reported as saying at 451B-C:
“
I therefore
turn to the assessment of damages. When it comes to scanning the
uncertain future, the Court is virtually pondering
the imponderable,
but must do the best it can on the material available, even if the
result may not inappropriately be described
as an informed guess, for
no better system has yet been devised for assessing general damages
for future loss.”
(Compare also
Southern Insurance
Association v Bailey NO
1984 (1) SA 98
at 113G-114A.)
[10] I am alive to the fact that the
evidence which is criticised in the present matter is, at least in
part, of past events. It
is, however, as well to bear in mind the
general basis of the assessment which is in issue in an action such
as the present. It
was summarised by Innes CJ in
Jameson’s
Minors v CSAR
1908 TS 575
at 602 where the learned Chief
Justice stated:
“
The general
principles which should guide us are plain. I need only refer to
Voet, who lays down the rule very clearly. He says
(9.2.11):
‘According to the modern practice the scope of this action
(i.e., an action by the widow or children of a man who
has been
killed through the default of another) has been extended, in so far
as an action is now allowed to the wife and children
of any husband
or father killed through another’s default, for such damages as
the equity of the judge will determine, account
being taken of the
maintenance which the deceased would have been able to supply, and
had usually supplied, out of his labour to
the wife and children, or
to other near relatives’. I do not think that Voet intended to
restrict, or that we should restrict,
the word ‘maintenance’
–
victus
–
to
the supply of mere necessaries of life. It must include all the
material advantages, conveniences, comfort and support, which
the
father would have afforded the claimants, but for his death. The
language used shows that the court must pay regard to what
the
deceased has been used to supply in the past – that is, to the
station in life of the parties, the comforts, the conveniences
and
advantages to which they have been accustomed.”
[11] In respect of the method of
assessment Innes CJ, on considering the Roman-Dutch authorities, said
this in
Hulley v Cox
1923 AD 234
at 243-244:
“
Some
authorities consider that the calculation should be based upon the
principle of annuity … Voet, on the other hand, favours
a more
general estimate. Such damages, he thinks, should be awarded as the
sense of equity of the Judge may determine, account
being taken of
the maintenance which the deceased would have been able to afford and
had usually afforded to his wife and children
…. That would
seem the preferable view as giving a greater latitude to deal with
varying circumstances. It is at any rate
desirable to test the result
of an actuarial calculation by a consideration of the general
equities of the case.”
[12] It is now accepted that the court
is not bound by any one method of calculation, (compare
Southern
Insurance Association v Bailey NO
, supra at 114C-E) however,
the general approach of our courts is usually to utilise the annuity
basis of calculation and thereafter
to adjust the figure obtained in
accordance with the general equities.
[13] What clearly emerges from the
aforegoing is that this is not the kind of case where the evidence is
required to be of such
a nature as to establish the quantum of
damages with mathematical precision. In the final analysis the court
will award such damages
as the equity of the Judge will determine,
having regard to the maintenance which the deceased would have been
able to provide
and which he use to provide.
[14] The approach to the evidence
which was set out in
Hersman v Shapiro and Co
supra
and in
Anthony’s
case to which I have referred
will hold good only where the plaintiff has tendered the best
evidence which she can reasonably be
expected to lead in the
circumstances of the case (see
Esso Standard SA (Pty) Ltd v
Katz
1981 (1) SA 964
(A) at 970E).
[15] The evidence establishes that the
first plaintiff was divorced from the deceased in 1999. She has since
lived apart from the
deceased until he died. In these circumstances
she has no direct knowledge of the earnings of the deceased and she
had no access
to documentation in that regard. In response to a
notice in terms of Rule 35(3) of the Uniform Rules of Court the first
plaintiff
records that she has no knowledge of whether the deceased
rendered tax returns or not. This is fully explained by the nature of
their relationship at the time. The second plaintiff has since the
divorce resided with the first plaintiff and accordingly suffers
from
the same deficiency.
[16] The plaintiffs did however call
one Shane Fortuin to testify. Fortuin confirms that the deceased
operated a taxi which he states
was a very beautiful taxi which was
well kept. Fortuin says that he was employed by the deceased as his
“sliding door operator”.
The taxi service operated six
days a week. Fortuin was responsible for collecting the fare from
passengers as they boarded the
taxi and accordingly he has firsthand
knowledge of the takings. He controlled the money and would hand over
the takings to the
deceased at the end of each day. He testified that
they took about R1 400-R1 600 per day as fares. From this Fortuin
says must
be deducted the daily expenses which varied from
approximately R610–R660 per day. The expenses for which he
allows are R400
in respect of petrol, R150-R200 in respect of the
remuneration paid to himself and a further R60 per day for food.
[17] In cross-examination Fortuin
concedes that there are additional expenses to operating a taxi which
are of an irregular nature.
The vehicle requires to be serviced from
time to time and tyres need to be replaced from time to time. Fortuin
and the deceased
used to service the vehicle themselves when
necessary. The tyres which were fitted to the vehicle at the time
cost R2 500 for a
set of four tyres. He acknowledged too that when
they serviced the vehicle the vehicle was of necessity out of
operation which
would have a negative effect on the income of that
day. In addition, the witness says, that the deceased had a very good
relationship
with his daughters and there were times that he would
take time out of work to visit his daughters and to attend to their
needs.
[18] Mr
van Rooyen
on
behalf of the plaintiffs has asked me to accept, for purposes of a
calculation, on the strength of this evidence that the deceased
earned R790 per day (i.e. R1 400 less R400 for petrol; less R150 for
Fortuin’s salary; less R60 for food). This calculation
clearly
has no regard to the irregular expenses which attach to the running
of a motor vehicle nor does it have regard to the occasions
when the
taxi is not in operation. Some allowance must of course be made for
these expenses, however, having regard to the manner
of calculation
of the claim which Mr
van Rooyen
urges me to accept, as
will appear below, it seems to me to be immaterial.
[19] On an acceptance of the evidence
of Fortuin and adopting the income figure of R790 per day as a
starting point, the deceased
would have generated a monthly income of
some R19 750 per month had he operated for 25 days of the month. It
is immediately apparent
that if I were, for illustrative purposes, to
reduce the estimated earnings by a further, say 25%, which seems to
me to be excessive,
to provide for the irregular expenses postulated
above, the deceased would still have retained net earnings of nearly
R15 000 per
month. The plaintiffs contend that the deceased paid to
the plaintiffs’ household approximately R5 000 per month as
will
appear more fully below.
[20] In all the circumstances given
the manner in which Mr
van Rooyen
urges me to quantify
the claim, which is more fully set out below, the evidence clearly
establishes that the deceased did have
the ability to have paid the
maintenance which the plaintiffs claim that he did pay. I pause to
mention that none of the figures
put forward by Fortuin have in any
way been challenged.
[21] I turn to consider the evidence
of the maintenance which the deceased in fact paid to the plaintiffs.
[22] The first plaintiff, as I have
recorded above was divorced from the deceased in 1999. There is no
suggestion that any order
was contained in the decree of divorce
which would entitle her to maintenance. There was therefore no duty
on the deceased to maintain
her. She testifies, however, that she and
the children moved out of the common home after the divorce and took
up their residence,
initially with her mother at 44 Highfield Road,
Shauderville. The first plaintiff occupied these premises together
with Shernice,
who was just 5 years old at the time, the second
plaintiff, who was 13 years old and Shervago, her eldest son born of
the union
with the deceased, who was 16 years old at the time. She
states that notwithstanding the fact that the decree of divorce did
not
provide for any maintenance to be paid by the deceased to her or
the children born of the marriage, he continued to provide in every
need which she and the children had.
[23] The objective facts which emerge
from the evidence reveals, however, that in September 1999, some six
months after the issue
of the decree of divorce an order was made by
the Magistrate for Port Elizabeth in terms of the Maintenance Act, 23
of 1963 which
compelled the deceased to pay maintenance in the sum of
R700 per month to the first plaintiff in respect of the three
children.
In terms of the order this sum was to be paid at the
Magistrate’s Court. Shortly hereafter, it would appear early in
2000,
the first plaintiff lodged a complainant with the magistrate
claiming that the deceased had not paid the amounts due under the
order. The deceased then paid up the amount of the apparent arrears
as reflected in the records of the maintenance officer.
[24] These events are of course
inconsistent with her evidence that the deceased continued to provide
voluntarily in all their needs.
The plaintiff was, understandably,
confronted with these facts under cross-examination. She explained
that at that time she was
still somewhat hurt by the events which had
led to the divorce. The deceased had acquired a girlfriend and
accordingly, in spite,
she hauled him before the maintenance court.
She states that although the deceased was in fact paying more than
R700 a month towards
his children at the time she agreed to an order
for R700 per month in the knowledge that he would continue to pay for
all their
needs. After the order was made she says that she agreed
with the deceased that he may pay the money directly to her rather
than
to pay it at the Magistrate’s Court. In this manner the
records of the maintenance officer showed a shortfall by virtue of
the deceased’s failure to deposit the money with the
Magistrate’s Court. The first plaintiff says that she, again in
spitefulness, lay a complaint, which was false, that he had failed to
comply with the order.
[25] The first plaintiff’s
explanations in this regard are unconvincing and I have little
hesitation in rejecting them as
false. Clearly there was a measure of
friction surrounding the payment of maintenance in the initial period
following the divorce.
The matter does however end there.
[26] The first plaintiff testified
that at some stage prior to the passing of the deceased she and her
children moved to a new house
at 29 Britton Crescent, Bethelsdorp.
This was a house which belonged to one Thysse. They rented the house
from Mr Thysse for R750
per month. The first plaintiff was unemployed
at the time. Shervago reached the age of majority in 2001, but as he
was unemployed
he remained entirely dependent upon the deceased. The
two daughters were still at school. At this time, and until he died
the deceased
paid for their rental and provided for all their living
expenses.
[27] Whatever the position may have
been in the initial period following upon the divorce the first
plaintiff’s evidence that
the deceased paid for all their needs
prior to his death enjoys considerable support in uncontested
evidence. The evidence of the
first plaintiff is corroborated by the
evidence of the second plaintiff in regard not only to the
contributions but also to the
extent thereof. Both the first
plaintiff and the second plaintiff state that the deceased paid the
rent directly to Mr Thysse.
Mr Thysse also testified. He confirms
that the deceased paid the rental of the home occupied by the first
plaintiff and her children
directly to him. He states too that
Shervago had a child with his daughter. Because Shervago was still
unemployed the deceased
voluntarily assisted with the maintenance of
this child too. The evidence of Mr Thysse was not challenged at all
and is entirely
uncontested.
[28] The first plaintiff testified
that apart from paying the rent in respect of the house the deceased
also paid other expenses.
In this regard she states that the home
which they occupied was fitted with an electricity box for prepaid
electricity. This too
is confirmed both by Thysse and second
plaintiff. They consumed approximately R50 of electricity per week,
which the deceased paid
for. Her evidence in this regard is
corroborated by the second plaintiff who was not challenged in this
regard. A number of municipal
water accounts in the name of the first
plaintiff were produced in evidence which span the period September
2003 to July 2004.
The average charge in respect of this service is
R92 per month. The first plaintiff states that they expended on
average about
R800 per week on food and groceries. All of these
expenses, she says, were funded by the deceased. The expenses
incurred and the
source of the money in respect of the food and
groceries is equally corroborated by the second plaintiff. The
evidence of the second
plaintiff has again not been challenged.
[29] Both the first plaintiff and the
second plaintiff have testified that they conducted three clothing
accounts prior to the death
of the deceased, one at Edgars, one at
Foschini and one at Truworths. All the members of the household
purchased clothing on these
accounts and the deceased also purchased
clothing on the account at Edgars. The deceased provided money to pay
the monthly instalments
in reduction of these accounts and the first
and second plaintiff paid the accounts. There is some discrepancy in
the evidence
as to the sum paid on the Edgars account, which in any
event, included purchases for the benefit of the deceased. This
account
has accordingly been left out of reckoning in the calculation
of the plaintiff’s claim. It is not in dispute that the
deceased
provided R400 per month and R300 per month respectively for
payment of the Foschini and Truworths accounts.
[30] Both the second plaintiff and
Shernice were at school at the time of the death of the deceased. A
number of receipts have been
provided to show the payment of school
fees in respect of the second plaintiff. It is the evidence of both
the plaintiffs that
the deceased provided the money for the payment
of the school fees. The first plaintiff states that the deceased paid
the school
fees in respect of Shernice as well. The school fees
amounted to R400 per annum. In addition to the school fees the
evidence of
both the first plaintiff and the second plaintiff is that
both the second plaintiff and Shernice commuted from home to school
by
taxi. The taxi fare in respect of the second plaintiff amounted to
R20 per day and that in respect of Shernice to R10 per day. The
funds
for the payment of these transport costs were provided on a regular
basis by the deceased. In addition to these contributions
certain
irregular expenses, such as medical treatment of the second plaintiff
and Shernice was always paid for by the deceased.
No record exists in
this regard.
[31] Virtually all this evidence in
respect of the maintenance contribution made in 2004 has not been
seriously disputed. The deceased
also had an illegitimate daughter,
one Lee-Ann du Preez. She was the same age as the second plaintiff.
It is apparent that Ms du
Preez had a very good relationship with the
other children of the deceased. She too testified. Her evidence does
not take the matter
much further, save that she states that the
deceased also contributed to her maintenance by a regular payment of
R300 per month
to her mother. Over and above this, when large
irregular expenses arose, such as a dress for her matric farewell
dance, she says
that he was always ready to help. This benevolence of
the deceased towards his illegitimate daughter accords with the
plaintiff’s
evidence of the deceased’s voluntary
contributions to their household. There is no evidence to contradict
such contributions.
[32] The uncontradicted evidence
accordingly establishes that the deceased made the following
contributions to the household of
the first plaintiff:
Rental R750 per month
Municipal water account R92 per month
Electricity R200 per month
Food and Groceries R3 200 per month
Foschini Account R400 per month
Truworths Account
R300
per
month
Total
R4 942
per month
(For reasons set out above the Edgars
account is excluded from the calculations.)
[33] In addition to the household
expenses established the plaintiff has also testified that the
deceased paid the school fees and
transport fees in respect of
Shernice and the second plaintiff which amounts were expended, of
course, on the two daughters exclusively.
[34] Second plaintiff was 18 at the
time of the death of the deceased and in fact in the process of
writing her matriculation examinations.
She testified that she had
intended to proceed to study for a health and skincare qualification
after completing her schooling.
This required three years of study
and, she testified, that she had already discussed it with the
deceased prior to her death.
But for the demise of the deceased he
would have paid the fees associated with these studies. It is
therefore apparent that the
deceased’s contribution to her
maintenance would in all probability have increased after she left
school had he not died.
I shall revert to this aspect below.
[35] I have recorded above that the
deceased’s eldest son Shervago, although an adult, was a member
of the household of the
first plaintiff and remained dependent upon
the deceased until he died. The evidence establishes that Shervago
obtained employed
during 2008 and he is therefore assumed to have
become self-supporting in 2008.
[36] The plaintiff’s have handed
in a number of actuarial calculations done by Mr Gerard Jacobson, an
actuary. Mr
Dala
, on behalf of the defendant admits the
soundness of the actuarial methodology and the accuracy of the
calculations and consented
to the reports being handed in in evidence
without the need to call Mr Jacobson. He has recorded that the
factual assumptions which
underlie the calculations are not admitted.
[37] The calculation which Mr
van
Rooyen
urges me to adopt assumes that the deceased earned
R790 per day at the time of his death and that such income would have
continued
and increased thereafter in line with the consumer price
index. The R790 per day is taken from the evidence of Fortuin. For
the
reasons set out before I do not think that the accuracy of the
calculation of this figure is material. What is clear from the
evidence
is that the deceased had an adequate income from which to
pay that which was paid and there is no reason to believe that such
income
and contribution would not have increased in accordance with
inflation.
[38] Mr
van Rooyen
argues that I should accept that the deceased’s contribution to
the maintenance of Shernice and the second plaintiff was
limited to
their
pro rata
share of the joint household expenses which the
deceased provided, together with their school fees and transport
costs. The contribution
made to the household expenses, as set out
above, amounts to R4 942 per month. The household expenses were,
however, not utilised
exclusively by the second plaintiff and
Shernice. Whilst the deceased had no obligation to maintain the first
plaintiff she in
fact benefited from the contributions made by the
deceased. Similarly Shervago was an adult, but, being unemployed,
remained dependent
upon the deceased. The second plaintiff was 18 at
the time that the deceased died. She too was an adult at the time. As
earlier
recorded it is, however, agreed that she would, but for the
death of the deceased, have remained dependent upon the deceased
until
the age of 21. The household accordingly consisted of three
adults and Shernice.
[39] In the absence of meticulous
records of precisely how the family expenditure was divided our
courts have accepted a convenient
formalism which attributes one part
to each child and two parts to each parent (compare for example
Groenewald v Snyders
1966 (3) SA 237
(A) at 247F-H). Mr
van Rooyen
has urged me in this matter to apportion the
household expenditure in similar fashion with one part to Shernice
and two parts to
each of the other occupants. The second plaintiff
turned 21 on 6 November 2007, and in accordance with the agreement
between the
parties, she would thereafter have been self-sufficient.
Shervago became self-sufficient, as set out above, in 2008. In the
absence
of an accurate recordal of the date of his employment Mr
van
Rooyen
argues that it would be appropriate to accept that he
became independent on 1 July 2008.
[40] I find the approach suggested by
Mr
van Rooyen
commendable. On this basis Mr Jacobson has
calculated Shernice’s loss at R248 283 and that of the second
plaintiff at R60
441.
[41] The thrust of the argument on
behalf of the defendant is that there is insufficient evidence to
establish such a loss. It is
argued firstly that there is
insufficient evidence to establish the earnings of the deceased. I do
not agree. Firstly, as recorded
above this is a matter where it has
indisputably been established that monetary damages have been
sustained. In such cases the
court is called upon to do the best it
can with the evidence which may often be inconclusive, provided that
the plaintiff has led
the best evidence that it could reasonably be
expected to lead. (See
Hersman v Shapiro and Co.
supra
;
and
Anthony and Another v Cape Town Municipality
supra
). Mr
Dala
argues that the plaintiff could
and should have called an expert to testify in respect of the running
costs of the deceased’s
vehicle. That he could have done
provided that evidence was available as to the mileage covered by the
deceased’s vehicle.
Such evidence is not available. Instead the
plaintiff called Mr Fortuin who was able to give firsthand evidence
of actual earnings
and of actual costs associated with the daily
operation of the vehicle. In respect of the irregular expenses Mr
Fortuin was able
to provide actual expenditure which would have been
incurred from time to time in respect of, for example, replacement of
tyres.
It is true that not all the expenses which may be incurred are
covered by his evidence, however, I consider that it is indeed the
best evidence which the plaintiff could reasonably have been expected
to tender in the circumstances. Secondly, given the manner
of
calculation of the loss which Mr
van Rooyen
proposes
the exact extent of the deceased’s income is not decisive. What
is of importance is the question whether the deceased’s
income
was sufficient reasonably to have made the contributions claimed. It
seems to me that the evidence clearly establishes such
a sufficiency.
The evidence relating to the extent of his actual contributions
remained largely unchallenged. For these reasons
I consider that the
evidence is sufficient to found a basis for an actuarial calculation
which can usefully be made (compare
Southern Insurance
Association v Bailey NO
supra
at 114C-F).
[42] Mr
Dala
argues
further that the calculations are incorrect because the evidence
shows that the first plaintiff was in fact employed at
least from
2006 to 2007. The first plaintiff makes no claim in respect of her
maintenance. Her earnings are entirely irrelevant
to the claim of the
children. What is in issue is the “damages as the equity of
Judge will determine, account being taken
of the maintenance which
the deceased would have been able to supply, and had usually
supplied, out of his labour” to the
plaintiffs. (Compare
Jameson’s Minors v CSAR
supra
.)
[43] In addition Mr
Dala
argues that the evidence establishes that the second plaintiff held
down employment from 2006 to 2008. These earnings he argues
should be
accounted for and it should be accepted that she became
self-sufficient in 2006. This argument is problematic for the
defendant. Firstly it has been agreed that, but for the death of the
deceased, the second plaintiff would have been entitled and
would
have continued to receive maintenance and support to the age of 21.
The defendant is bound by this agreement. Secondly, the
argument
fails to recognise the nature of the action. What the plaintiffs have
lost is a right – the right to support. The
plaintiffs are not
required to mitigate their loss by going out into the job market and
finding employment at a time when they
were entitled to receive such
support (compare
Peri-Urban Areas Health Board v Munarin
1965 (3) SA 367
at 376;
Legal Insurance Company Limited v Botes
1963 (1) SA 608
(A); and
Groenewald v Snyders
supra
).
[44] I consider that the assumptions
which underlie the calculations of Mr Jacobson have been established
in evidence with sufficient
certainty to found a useful basis for an
actuarial calculation. What remains accordingly is to adjust the
figure, if need be, in
accordance with the general equities of the
case.
[45] Mr Jacobson has provided certain
contingency deductions in his calculation purely for illustrative
purposes. Mr
Dala
argues that by virtue of the
uncertainties in some of the assumption made for purposes of
calculation I should provide for a greater
contingency reduction. It
is correct, as pointed out above, that there are a number of
uncertainties relating to the actual net
earnings of the deceased
prior to his demise. Given the manner of calculation adopted by Mr
van Rooyen
these seem to me to be immaterial. The
calculation does not proceed on a consideration of the distribution
of the net income of
the deceased but merely on the sum in fact paid
to the plaintiffs’ household. Whatever his actual earnings were
the evidence
clearly shows that he earned more than sufficient to
afford these payments. These uncertainties should accordingly, on the
facts
of this case, not be given undue weight.
[46] Finally, when considering
contingencies, it would be wrong to “regard the fortunes of
life as being always adverse: they
may be favourable”. (See
Southern Insurance Association v Bailey NO
supra
at 117B.)
[47] On a consideration of the
evidence I consider that there are a number of factors which may
indicate that the calculation made
of the alleged loss is somewhat
conservative. Firstly, second plaintiff had discussed with the
deceased her tertiary educational
plans and he had undertaken to fund
such studies. This his earnings indicate that he could do. No
allowance is made for such an
increased level of support during the
second plaintiff’s tertiary education. Similarly, Shernice may
well undertake tertiary
studies which would have resulted in an
increased contribution to her maintenance by the deceased. Secondly,
there is evidence
of irregular contributions made by the deceased
which have not been included in the assessment. The payment of
medical treatment
as and when it was required is an example. Thirdly,
the payment of the Edgars account, which at least in part was in
respect of
the second plaintiff and Shernice has been excluded from
the calculation.
[48] Given the duration of the period
of calculation of the past losses I consider that these positive
contingencies outweigh the
general negative contingencies of life.
Accordingly I do not intend to adjust the figure arrived at by Mr
Jacobson for losses accrued
prior to trial at all. In respect of
Shernice’s future loss which is calculated up to 2015 a 5%
reduction would in my view
adequately provide for the vicissitudes of
life.
[49] In the result the following order
is made:
1. The defendant is ordered to pay to
the first plaintiff the sum of R242 261 as and for damages in her
representative capacity.
2. The defendant is ordered to pay to
the second plaintiff the amount of R60 441 as and for damages.
3. The defendant is ordered to pay
interest on the aforesaid amounts calculated at the legal rate from a
date fourteen (14) days
after judgment to the date of payment.
4. The defendant is ordered to pay the
plaintiffs’ cost of suit, together with interest on the
plaintiffs’ taxed costs
calculated at the legal rate from a
date fourteen (14) days after taxation to the date of payment.
____________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff:
Adv C van Rooyen
instructed by Rory Liesching Attorney, Port Elizabeth
For Defendant:
Adv I Dala
instructed by Boqwana Loon & Connellan