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[2012] ZASCA 69
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MacDonald and Others v Road Accident Fund (453/2011) [2012] ZASCA 69; [2012] 4 All SA 15 (SCA) (24 May 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 453/2011
In
the matter between:
LIZE-MARI MACDONALD
…................................................................
FIRST
APPELLANT
PETRUS MACDONALD
…...............................................................
SECOND
APPELLANT
SUMé MACDONALD
…........................................................................
THIRD
APPELLANT
v
THE
ROAD ACCIDENT FUND
….................................................................
RESPONDENT
Neutral citation:
MacDonald
v Road Accident Fund
(453/2011)
[2012] ZASCA 69
(24 May 2012).
Coram:
Navsa
,
Brand
et
Mhlantla JJA
Heard:
11
May 2012
Delivered: 24 May 2012
Summary:
Dependants’
claim for loss of support – application of
Assessment of
Damages Act 9 of 1969
– calculations based on assumptions and
contingencies not appropriate where actual figures available.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Western Cape
High Court, Cape Town (Bozalek J sitting as court of first instance):
The appeal is dismissed with costs,
including the costs of two counsel.
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA
(NAVSA AND MHLANTLA
JJA CONCURRING)
:
[1] On 3 March 1994 a motor vehicle
collision occurred on the N2 highway near Moorreesburg in the Western
Cape. The collision tragically
claimed the lives of two young
parents, Mr Petrus Geyser MacDonald and his wife, Mrs Myra MacDonald.
I propose to refer to them
as the deceased father and the deceased
mother, respectively. They were survived by three children: Sumé,
born on 24 July
1984; Petrus, born on 15 February1988 and Lize-Mari,
born on 30 March 1992 who are the appellants in this matter.
[2] The respondent is the Road
Accident Fund, a statutory insurer, established in terms of the Road
Accident Fund Act 56 of 1996
(the Act). The proceedings which
eventually led to this appeal commenced when a
curator ad litem
for the three appellants, who were still minors at the time,
instituted an action in the Western Cape High Court against the
respondent
for the loss of support that they had suffered due to the
death of their parents. Because of the lapse of time since the
collision,
all three children have since attained majority. In
consequence they are now cited as appellants in their own names. I
propose
to refer to them by their first names, or collectively, as
the appellants.
[3] The respondent conceded that the
collision was caused by the negligence of the insured driver, who
collided with the vehicle
of the deceased parents and that, in
consequence, it was liable for the appellants for whatever loss of
support they could establish
at the trial. The issues presented to
the court a quo for determination, thus turned on the quantum of the
appellants’ respective
claims. At the end of the proceedings
Bozalek J absolved the respondent from the instance, essentially on
the basis that the appellants
had failed to establish that their
reasonable maintenance needs could not be met by the proceeds of the
deceased father’s
estate. The appeal against that judgment is
with the leave of the court a quo.
[4] The issues arising on appeal will
best be understood in the light of the background facts that follow,
which proved to be largely
undisputed. Hence issues of credibility do
not arise. The deceased parents were married out of community of
property. During the
lifetime of the deceased father he owned a farm
and derived income from his farming activities as well as from a
small transport
business. Though the amount of the deceased father’s
projected future income was challenged by the respondent, the court a
quo determined this amount at the inflation adjusted value of his
income for the 1994 financial year which was R218 000. According
to the evidence, the deceased mother also generated a small income by
way of selling items of pottery as well as milk and meat
produced on
the farm. The court a quo found, however, that the appellants had
failed to establish that the deceased mother had
made an independent
monetary contribution to their maintenance. Even at this early stage
it can be stated, in my view, that these
factual findings of the
court a quo regarding the financial position of the deceased parents
were not and could not be criticised
by counsel for the respective
parties.
[5] Six months before their untimely
death, the deceased parents executed a joint will. The will provided,
inter alia, for the event
of their simultaneous demise. In which case
they bequeathed both their estates to a testamentary trust to be
created for the benefit
of their children. As to the powers of the
trustees, the will authorised them to utilise so much of the income
and the capital
assets of the trust as they regarded necessary, in
the exercise of their absolute discretion, for the maintenance,
upbringing,
education and other interests of the children. According
to the will, the testamentary trust thus created would be dissolved
when
the youngest child, Liza-Mari, turned 21 which, as we know, will
occur on 30 March 2013.
[6] In accordance with the nominations
in the joint will, the sister of the deceased father, Mrs Susan van
Rensburg, was appointed
as the executrix in both estates while the
brother of the deceased father, Mr Hermanus MacDonald, and his wife,
Marlene (the MacDonalds)
were appointed as guardians of the minor
children. Shortly after the death of the deceased parents, the
appellants moved in with
the MacDonalds who looked after them
admirably and took responsibility for their upbringing until they
each reached the age of
independence. Mrs van Rensburg took control
of the financial affairs of the estates. Unfortunately, she also died
in a motor vehicle
accident in March 1997. After her death an
attorney, Mr Phillipus de Villiers, was appointed as the executor in
the estates of
the deceased.
[7] At the time of her death Mrs van
Rensburg had not yet registered the trust envisaged by the deceased
parents. That was done
by De Villiers only in 1997. De Villiers and
the MacDonalds were then formally appointed as joint trustees of the
trust. In practice,
however, De Villiers took sole control of the
trust’s financial affairs. Mrs van Rensburg had also not
finalised the liquidation
and distribution accounts in the estates.
De Villiers thus prepared the accounts which were eventually approved
by the Master.
According to his evidence, the early history of the
financial affairs of the trust was unfortunately left largely
obscure. What
we do know from the evidence of De Villiers and Herman
MacDonald, however, is that Mrs van Rensburg paid an amount of R700
per
month per child to the MacDonalds. After the appointment of De
Villiers he continued with the same practice.But, as the children
grew older, their needs increased and a pattern was then established
whereby the MacDonalds were regularly reimbursed by De Villiers
for
the expenses they incurred on behalf of the children. Over the years,
so it seems, a system thus developed which satisfied
the requirements
of the MacDonalds and at the same time served the best interest of
the children.
[8] According to De Villiers’
evidence at the trial, the payments thus made from the death of the
deceased parents up to the
end of February 2010, amounted to
R1 979 390, 46. A schedule prepared by De Villiers also
shows that during the first
years the amounts paid were relatively
small. In fact, during the first four years they were limited to
R25 200 (calculated
on the basis of R700 x 3 x 12) per year. In
later years, from about 2001, the amounts paid increased
substantially. The explanation
for this phenomenon by Herman
MacDonald in his evidence was that the larger amounts included
college fees and the purchase price
of motor cars for the two older
children as well as an amount of R70 000 for the wedding of Sumé
in November 2009.
[9] The nett assets in the estates of
the deceased parents, which eventually devolved to the trust, appear
from the final liquidation
and distribution accounts prepared by De
Villiers. The assets in the estate of the deceased mother essentially
derived from the
proceeds of two insurance policies which came to
about R326 000. Her only other asset was a credit balance of
some R9 000
on a credit card account. Her liabilities, on the
other hand, were hardly worthy of mention.
[10] The final liquidation and
distribution account in the estate of the deceased father showed the
following:
(a) The total nett assets in his
estate after provision had been made for liabilities and estate duty
came to about R2,2 million
which included the proceeds of insurance
policies in an amount of some R1 683 281.
(b) The non-insurance portion of his
estate included his farm, which was reflected at its Land Bank
valuation of R378 000;
his shares in Orange Rivier Wine Cellars
Co-op Ltd, valued at R8 250; and his farm implements and
equipment valued at R94 500.
[11] It is plain, however, that at
least some of the assets in the deceased father’s estate were
substantially undervalued.
This is borne out by an agreement of sale
entered into during May 1997. In terms of that agreement the farm was
sold for R1,2 million;
the shares in the Orange River Wine Cellars
for R70 000; and the farm implements and equipment for R200 000.
Three assets
valued in the liquidation and distribution account at
less than R500 000 were thus sold for almost R1,5 million. In
terms
of the deed of sale the purchase price was payable by way of
three instalments of R500 000 each. The first instalment became
due upon transfer while the second and third instalments were payable
one year and two years later respectively. In terms of the
sale
interest was payable on the last two instalments at the rate of 18
per cent per annum from date of transfer to date of payment.
Eventually the farm was only transferred in 1999 so that the
instalments of R500 000 each only became due in 1999, 2000 and
2001.
[12] With the benefit of hindsight, it
is apparent that the affairs of the trust were extremely well managed
by De Villiers and
that, acting on the advice of experts, wise
investment decisions were made. In the result the assets of the trust
grew steadily
and towards the end of February 2010 the total
portfolio of these investments stood at about R7,4 million. That was
over and above
the R1,97 million which had been expended over the
years for the benefit of the appellants.
[13] Essentially relying on the facts
and figures thus far recounted, an actuary, Mr P W Ennis, was
instructed on behalf of the
appellants, to calculate the quantum of
the loss of the support they each suffered. These calculations by
Ennis, in turn, formed
the basis of their claims in the court a quo.
But before I revert to those calculations, I find it convenient to
turn to the legal
principles involved.
[14] The historical background and the
general principles underlying the action of dependants for loss of
support by their breadwinners,
have by now become well known (see eg
Jameson’s Minors v Central South African Railways
1908
TS 575
, 602
et seq
;
Hulley v Cox
1923 AD 234
;
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A); Boberg’s
Law
of Persons and the Family
2 ed (by Belinda van Heerden, Alfred
Cockrell and Raylene Keightley) at 298
et seq
; Joubert (ed)
The Law of South Africa
2 ed Vol 7 para 88). As I see it, a
restatement of these principles can hardly serve any purpose. Hence I
focus the spotlight only
on those principles that have a direct
bearing on this case.
[15] First amongst these relevant
principles is that loss of support is confined to actual pecuniary
loss. In the first place that
means that the dependants cannot claim
compensation in the form of a
solatium
for the grief, the
stress and the hurt brought about by the death of a loved one,
because these are not capable of being calculated
in money. It also
means that the dependants are not allowed to profit from the
wrongdoing of the defendant. Accordingly, the actual
pecuniary loss
to which the dependants are entitled, can only be ascertained by a
balance of losses and gains, that is by having
regard not only to the
losses suffered, but also to the pecuniary advantage which may come
to the dependants by reason of the breadwinner’s
death (see eg
Hulley v Cox, supra,
243;
Indrani v African Guarantee and
Indemnity Co Ltd
1968 (4) SA 606
(D) at 607F-H). This requires
one to take into account any income available to the dependants by
way of an inheritance from the
erstwhile breadwinner (see eg
Jameson’s Minors, supra,
603-604). And it matters not,
as I see it, whether the income thus available would come to the
dependants directly from the deceased
breadwinner’s estate or
indirectly through the mechanism of a trust. If the nett assets in
the estate of a deceased parent,
together with the income derived
from those assets are therefore sufficient to support the dependants
in full, no claim for loss
of support as a result of the
breadwinner’s death can be sustained (see eg
Lambrakis v
Santam
Ltd
2002 (3) SA 710
(SCA) paras 19 and 20).
[16] The second legal principle
relevant to this case derives from statute, more particularly from
the
Assessment of Damages Act 9 of 1969
. The Act is a model of
brevity. Its operative provisions are all contained in s 1,
which provides:
‘
When
in an action, the cause of which arose after the commencement of this
Act, damages are assessed for loss of support as a result
of a
person’s death, no insurance money, pension or benefit which
has been or will or may be paid as a result of the death
shall be
taken into account.’
[17] This brings me to the calculation
of the quantum of the appellants’ claims by their actuary,
Ennis. These calculations
were reflected in a number of reports. The
hypotheses and factual bases relied upon in these different reports
slightly differed
in each case. I shall soon return to these
differences. But what these reports have in common is that they all
start with a calculation
of the amount of maintenance the appellants
would have received from their deceased parents had they not died.
With regard to the
deceased mother Ennis’ calculation departed
from the assumption that, at the time of the accident, she had earned
R12 756
per annum. However, as I have indicated in the course of
the factual narrative, the court a quo held this assumption to be
unsubstantiated
by the evidence. Since I am of the view that this
finding is unassailable, we do not have to concern ourselves any
further with
the appellants’ claims based on the death of the
deceased mother. This results from the trite principle that no loss
of support
is claimable unless it is established that the deceased
actually contributed to the support of the plaintiff-dependant.
[18] As to the appellants’ loss
suffered through the death of their father, the first premise of
Ennis’ calculation
was the assumption that he had earned
R218 761 per annum when he died and that his earnings would have
remained level with
adjustments for inflation in later years. He then
assumed that Sumé would have remained dependant until 23 –
which
was an historical fact – while Petrus and Lize-Mari would
have become self-supporting at age 21. Finally Ennis assumed that
the
deceased father’s projected income would have been consumed on
the basis of two shares to each parent and one share to
each
dependant child. After making allowances for certain contingencies,
he arrived at the conclusion that because of the death
of the
deceased father the appellants had been deprived of maintenance in
the following amounts:
(a) Sumé R410 581;
(b) Petrus R523 436;
(c) Lize-Mari R779 385.
[19] The court a quo considered these
calculations and found some of the assumptions wanting. So, for
example, it found the division
of two shares for each parent and one
share per dependant child, inappropriate in the circumstances. But I
have a more fundamental
problem with the actuarial approach based on
assumptions, hypotheses and contingencies when we know the actual
amount that was
required for the maintenance of the appellants after
the death of their parents. At the time of the trial two of the
appellants
were already self-supporting while the youngest had almost
reached the age of 21. It had also been established that until that
stage about R1,97 million was expended for the benefit of the
children.
[20] In addition, it would appear that
throughout their upbringing all of the appellants’ maintenance
needs were met. No evidence
was led that the appellants had lacked
for anything within reason. On the contrary, it would appear that De
Villiers adopted a
generous approach to any claim made on their
behalf. Indeed, judging by the trust’s contribution of R70 000
towards
Sumé’s wedding expenses at a time when she was
already self-employed, maintenance needs were liberally construed.
There is therefore no reason to think that, but for the death of
their father, the appellants would have received more than R1,97
million in maintenance. In the circumstances an elaborate actuarial
calculation of the maintenance the appellants would notionally
have
received seems to amount to an exercise in futility. What is more, it
is in conflict with the general principle that ‘where
facts are
available they are to be preferred to prophecies’. (See
Simpson
v Jones
[1968] 2 All ER 929
(Ch) at 935, referred to with
approval in
Inter Maritime Management SA v Companhia Portuguesa de
Transportes Maritimos EP
[1990] ZASCA 112
;
1990 (4) SA 850
(A) at 869G-H. See also
Road Accident Fund v Monani
2009 (4) SA 327
(SCA) para 9.)
[21] This brings me to the differences
between Ennis’ divergent reports, which differences all relate
to the monetary benefits
the appellants in his view, received from
the estate of their deceased father and, more particularly, to the
valuation of the assets
in his estate. In his first report Ennis
relied on the values reflected in the liquidation and distribution
account in the deceased
father’s estate. On that basis the
total capital, nett of estate duty, transferred to the trust amounted
to R2 213 511,
which included the proceeds of life
insurance policies to the value of R1 683 281. On that
basis he determined the portion
of trust capital not attributable to
insurance policies at some 24 per cent. In Ennis’ opinion the
Assessment of Damages Act thus
requires a deduction of 24 per cent of
the maintenance actually received by the appellants, that is R1,97
million, from the amount
of maintenance they would have received from
their deceased father.
[22] As pointed out in my earlier
narrative of the facts, it became apparent, however, that some of the
estate assets were substantially
undervalued when these assets were
sold in May 1997. The disparity was particularly striking with
reference to the farm valued
for estate purposes at R378 000, to
be sold three years later for R1,2 million. Other assets that were
sold in May 1997 at
markedly higher prices included farm equipment
and implements, as well as the shares held by the deceased father in
Orange River
Wine Cellars Co-op. In his subsequent reports Ennis
therefore tried to accommodate these higher values. One of the ways
in which
he did so was to assume that the Land Bank valuation
underlying to the R378 000 was one third less than the true
market value
of the property. He therefore adjusted the value of the
farm upwards by 50 per cent. On this basis the nett asset value of
the
estate became R2 402 511 of which the non-insurance
component changes to about 30 per cent.
[23] Another way in which Ennis tried
to provide for the increased value of estate assets was to include
the farm at the value of
R1,2 million in May 1997, adjusted for
inflation back to 3 March 1994, which was the date of the accident.
On this basis the value
of the farm became R980 985, as a result
whereof the nett asset value of the estate grew to R2 816 497,
of which
the non-insurance component became about 40 per cent. In his
final report Ennis again took the value of the farm at R980 985.
In addition he adjusted the value of the farming equipment and
implements as well as the shares in the Orange River Wine Cellars
to
reflect the prices at which these assets were eventually sold in May
1997. On this basis he determined the total nett capital
received by
the trust at R2 983 797 which left the non-insurance
component at 43,6 per cent.
[24] The different calculations based
on different valuations obviously led to different results in Ennis’
determination of
the benefits that came to the appellants through the
death of their father. For purposes of further discussion, I will,
however,
refer to the last report only. From the 43,6 per cent
threshold established in that report, Ennis proceeded to calculate
that the
loss suffered by the appellants as a result of their
father’s death, should be reduced by 43,6 per cent of the R1,97
million
they actually received from his estate via the trust. On that
basis Ennis determined that the appellants’ loss suffered as
a
result of the death of their father should be reduced by the
following amounts:
(a) Sumé R213 447;
(b) Petrus R281 732;
(c) Lize-Mari R444 555
[25] According to Ennis’
calculations the appellants were thus entitled to payment of the
following amounts from the respondent:
‘
(a)
Sumé R 432 191
Less
213 447
R197 134
(b)
Petrus R 523 436
Less
281 732
R241 704
(c)
Lize-Mari R779 385
Less
444 555
R
334 830’
[26] The appellants’ argument in
support of Ennis’ underlying thesis of a percentage split
between insurance and non-insurance
money received by the trust,
proceeded along the following lines. The total monetary benefit
received by the appellants from their
deceased father’s estate
came to R1,97 million. Part of that benefit, however, derived from
the proceeds of life insurance
policies. In terms of the
Assessment
of Damages Act, that
part ‘shall [not] be taken into account’
in calculating the appellants’ loss of support. We know that
both the
insurance money and non-insurance money found its way into
one communal account of the trust. But it is not possible to
determine
whether the maintenance payments by the trust came from the
proceeds of the insurance policies or from a non-insurance source.
For that reason a practical approach to the facts dictates that the
same percentage split to maintenance payments should be applied
as
the percentage split between insurance and non-insurance money that
came to the trust from the deceased father’s estate.
[27] The fundamental problem with
Ennis’ thesis, as I see it, is that the
Assessment of Damages
Act does
not support the notion of a percentage split on which it
relies. As I see it, s 1 of the Act requires that damages for
loss
of support resulting from a breadwinner’s death must be
calculated without reference to the proceeds of insurance policies.
In the assessment of benefits resulting from the breadwinner’s
death, the proceeds of insurance policies must thus be ignored.
The
position of both the plaintiff-dependant and the defendant-wrongdoer
is the same as if the deceased breadwinner’s estate
had
received no money from insurance policies at all.
[28] According to the appellants’
argument in support of the percentage split thesis, the Act requires
a determination of
where the maintenance actually received by the
dependants came from. If we know that all the maintenance received by
the dependants
came from the proceeds of insurance, the Act therefore
requires that all maintenance received be ignored. Any other
approach, so
the appellants’ argument went, will result in the
wrongdoer reaping the benefit of insurance policies which is exactly
what
the Act is intended to prevent.
[29] I agree that the intention of the
Act is that a wrongdoer should not benefit from the proceeds of
insurance. But I cannot see
how the wrongdoer can benefit from the
proceeds of an insurance policy if the policy is completely ignored.
The inescapable consequence
of the appellants’ argument would
be that the executor in a deceased breadwinner’s estate, who
has both non-insurance
and insurance money available, could decide
whether the application of the Act should have any effect or none at
all. If the executor
decides to pay all maintenance from money
derived from a non-insurance source, everything is deductable from
the maintenance loss.
But if the executor should decide to pay all
maintenance from insurance money these payments are ignored.
[30] Moreover, the appellants’
argument avoids the question as to what the approach should be in the
event that no maintenance
had yet been paid when the assessment is
made. Should one’s approach then also be that the assessment
depends on the executor’s
likely decision whether to pay the
future maintenance from insurance policies or from non-insurance
sources where both are available?
I think the answer to the question
posed is obvious. One should ignore the insurance policy and enquire
whether there is sufficient
non-insurance money in the estate to meet
the future maintenance needs of the dependants. As I see it one’s
approach can
be no different if the maintenance had already been
paid. The Act requires one to ignore the proceeds of insurance
policies. Whether
the maintenance actually paid came from an
insurance or a non-insurance source is of no consequence.
[31] In accordance with what I see as
the correct application of the Act, the first step is thus to ignore
the proceeds of insurance
policies. The second step that follows is
an enquiry which is no different from the one embarked upon in a case
such as
Lambrakis, supra,
where there is no insurance money
available. That inquiry is in essence whether the (non-insurance)
assets in the deceased estate
together with the income derived from
those assets would be sufficient to meet the maintenance needs of the
dependants (see
Lambrakis, supra,
paras 19 and 20). In a case
such as the present where the maintenance needs of the dependants had
already been met, the inquiry
is even less complicated. It is simply
whether the amount of maintenance we know the dependants had actually
received could be
produced by the (non-insurance) assets in the
estate together with the income generated by those assets. That is
the actuarial
exercise Ennis should have been asked to perform, but
which he was obviously not requested to do.
[32] As appears from what I have said
with reference to Ennis’ divergent reports, he was asked to
determine the notional market
value of the non-insurance assets in
the deceased father’s estate as at the date when he died. That,
as I see it, was an
irrelevant exercise which led to equally
irrelevant answers. What we need to know was whether the maintenance
actually paid could
be covered by the non-insurance part of the trust
assets. Far more relevant for that purpose, for example, is the
purchase price
actually received for those assets instead of their
notional market value at some stage in the past. It is therefore
again a case
of relying on notional calculations based on hypotheses
and assumptions rather than available facts. Because Ennis was not
asked
to determine whether the non-insurance part of the estate was
sufficient to pay the amount of R1,97 million disbursed in respect
of
maintenance, we do not know that exact answer to this question, which
lies at the heart of the case.
[33] But even a rough, non-detailed
appraisal of the available figures seems to indicate that the
non-insurance part of the trust
was sufficient to cover the
appellants’ maintenance needs of R1,97 million. If I understood
the appellants’ counsel
correctly, that much was conceded by
him and in my view rightly so. We know, for example, that from 1999
until 2001 the trust received
an amount of R1,5 million together with
interest in an amount of R270 000 from the sale of the farm and
other movables. That
in itself would prima facie be sufficient to
cover the maintenance payments subsequently made. We also know that
from the schedules
produced on behalf of the appellants, the
maintenance they received between 1994 and 1998 was no more than
R25 200 per annum
and in 1999 it was R35 200. Despite the
absence of any direct evidence with regard to the income of the trust
during those
early years, there is no reason to believe that it did
not exceed these moderate amounts. We also know, for example, that
the trust
is the owner of a flat valued at R650 000 which is
occupied by the appellants’ grandmother and from which no
income
had been received by the trust. Finally, we know that after
all maintenance needs of the appellants had been met there is still
an amount of about R7,4 million left in the trust. I am not losing
sight, of course, of the fact that a large part of both the
R1,97
million paid out as maintenance and the remaining R7,4 million
originated from insurance policies. Nonetheless, the sheer
magnitude
of the remaining amount seems to support the conclusion that the
non-insurance part of the deceased father’s estate
was more
then sufficient to provide the maintenance that the appellants
actually received. However, in the absence of any exact
actuarial
calculations, it is perhaps advisable to adopt the more cautious
approach followed by the court a quo. That is, to absolve
the
respondent from the instance rather than to dismiss the appellants’
claims.
[34] In the result the appeal is
dismissed with costs, including the costs of two counsel.
_________________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES
:
For
AppellantS: D J Coetsee
Instructed
by: Honey Attorneys
TYGER
VALLEY
Correspondents:
Honey & Partners
BLOEMFONTEIN
For
Respondent: D Jacobs SC
S
Mahomed
Instructed
by: Z Abdurahman Attorneys
CAPE
TOWN
Correspondents:
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