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[2009] ZASCA 18
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Road Accident Fund v Monani and Another (241/2008) [2009] ZASCA 18; 2009 (4) SA 327 (SCA) ; [2009] 3 All SA 317 (SCA) (20 March 2009)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 241/2008
THE ROAD ACCIDENT FUND
Appellant
and
THEMBEKA MONANI
First Respondent
THEMBEKA MONANI N O
Second Respondent
Neutral citation:
Road
Accident Fund v Monani
(241/2008)
[2009] ZASCA 18
(20 March 2009)
Coram:
Lewis, Maya JJA and
Hurt AJA
Heard:
19 February 2009
Delivered:
20 March 2009
Summary: Dependantsâ claim for loss of support â
courtâs wide, equitable discretion to arrive at a fair award â
One dependant
dying contemporaneously with breadwinner â Such
dependantâs hypothetical share of maintenance to be distributed
amongst surviving
dependants.
_______________
______
____________________________________________
ORDER
On appeal from:
Cape
Provincial Division (Erasmus J sitting as court of first instance).
1 The appeal is dismissed with costs.
JUDGMENT
HURT AJA (LEWIS and MAYA JJA concurring):
[1] This is an appeal by the Road Accident Fund against
an award of damages in a dependants' claim. It will be convenient to
refer
to the parties by their respective designations in the trial
court, viz to the appellant as 'the defendant' and to the respondents
as 'the plaintiffs'. The issue is a very narrow one and was defined
in a stated case in terms of rule 33(4). The stated case reads
as
follows:
'1. Xolani Andrew Molani ("the Deceased") died
in a road accident on 7
th
December,
2001 ("the accident").
2. At the time that he died he had a duty to support and
supported:-
2.1 First Plaintiff;
2.2 Second Plaintiff, Xolasisipho Monani
("Xolasisipho");
2.3 Anela Aubrey Kwezi ("Anela");
2.4 Thando Monani ("Thando").
3. Thando died in the accident and as a result thereof.
4. The claim of Anela has not been prosecuted in these
proceedings,
1
but the fact that Anela has a claim against the estate of the
Deceased for loss of support has been taken into account in reducing
the sum of damages due to the Plaintiffs as contemplated below.
5. The parties have agreed on the amount of the
Deceased's past and future earnings, contingencies to be applied to
the Plaintiffs'
claims and the ratio in which the amount of money
available to the Deceased's dependants should be distributed between
such dependants.
6. The question for adjudication by this Honourable
Court is whether the death of Thando in the accident constitutes a
collateral
benefit resulting from the accident, for which the
Plaintiffs should not be compensated.
7. The parties are agreed that should this Honourable
Court find that the death of Thando is not a collateral benefit
resulting
from the accident, Plaintiffs will be entitled to receive
damages in a further sum of R163 428,00, the parties being in
agreement,
at present, that the Plaintiffs are entitled to payment of
the sum of R1 389 531,00.â
[2] The dependantâs claim for loss of support was
introduced into our jurisprudence during the Roman-Dutch era. Cases
such as
Jameson's Minors v CSAR
2
and
Hulley v Cox
3
trace its reception into and development
in our common law. In
Hulley
,
Innes CJ
referred to
the different approaches adopted by the early writers to the method
of computation of the quantum of such claims. Of
these, he expressed
a preference for the equitable approach recommended by Voet,
4
summarizing that writer's views in the following terms:
5
:
'Voet on the other hand favours a more general
estimate.
6
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 to be the
preferable view.'
The further development of this approach is concisely
summarized by Holmes JA in
Legal Insurance Co
Ltd v Botes
.
7
The principles involved are well-known and need not be restated here.
[3] The computation of the award in a claim by
dependants is, in a sense, dichotomous. The first part of the
exercise is to assess
what the breadwinner would probably have earned
had he not died when he did. The gross amount is appropriately
adjusted and discounted
to arrive at a 'present-day value'. In those
cases where it is assumed that the whole of the breadwinner's income
would have been
devoted to the upkeep of his family (and this is one
of them), the second exercise is to distribute the equivalent of the
lost
income between the beneficiaries. In this instance it is agreed
that the income would have been allocated in the proportions of
two
parts to each adult and one to each child. The amount thus
distributed must, according to the parties' agreement,
8
take account of the assumption that each child would become
self-supporting at the age of 18. It is apparent from the actuarial
calculations that the share previously attributable to an 18-year-old
child would become available for distribution amongst the
mother and
the other dependants not yet self-supporting.
[4] As is apparent from the stated case both computation
exercises have been performed, to the mutual satisfaction of the
parties,
on two separate bases. The first assumes that Thando's share
would not fall for distribution amongst the surviving members of her
family and the second, that it would. The matter was thus argued
before Erasmus J in the Cape High Court. He held that the additional
amount of R163 428 was payable and gave judgment for the total amount
of R1 552 959. He refused leave to appeal but leave was subsequently
granted by this court .
[5] Erasmus J
approached
the matter on the basis that what was available for distribution to
the dependants was the 'present-day value' of the
amount which the
deceased would have contributed to the upkeep of his family members
(with the customary allowances for contingencies,
discounting to
current value etc). Referring to this metaphorically as a 'cake' or
'pot', he said:
'But the fact that the late Thando was there at the
time, and may have been alive even at a later stage, would not have
diminished
the total amount. In engaging counsel I referred to the
total cake or the pot. And the fact is that that amount is agreed
(sic)
would have been
there for distribution as a manner of support for the family.
. . .
In my view, I do not even have to look at the legal
argument presented here, because it's a matter of logic. It's a
matter of, on
these particular facts one cannot diminish the total
pot or cake, as I referred to it, simply because Thando is late.'
[6] Before us, Mr Bridgman, for the appellant, based his
contentions on the fundamental principle that an award in this type
of
claim is aimed at putting the claimants, as nearly as is possible,
into the position they would have occupied if the delict had
not
caused the deceased to die when he did. If the accident had not
occurred, he submitted, the deceased's dependants would have
included
Thando. Thus the support which each minor dependant would have
received but for the accident would have amounted to one
seventh of
the deceased's income and the first plaintiff's share would have been
two sevenths. And this amount, so the argument
ran, is what should be
awarded to achieve the object of what I have referred to as 'the
fundamental principle'. But, if the one
seventh share for Thando is
awarded proportionally to her mother and the surviving siblings, they
would receive one third and one
sixth each, respectively, and thus
receive more than they could have expected had the deceased not died.
Counsel was at first inclined
to contend (as was indeed the
contention in the stated case) that to award Thando's share to her
mother and siblings in this manner
would constitute a 'collateral
benefit,'
9
but he wisely forsook this basis in argument before us. Instead he
pinned his colours to the mast of the 'fundamental principle'
and
contended that the award to the surviving dependants should be
restricted to what they would have received had Thando not died.
[7] Mr Bridgman readily conceded that if,
hypothetically, Thando had died at any time before the deceased, then
her 'share' of the
family maintenance would have fallen away and
become available for distribution among her mother and siblings. He
was by no means
ready to concede, however, that if Thando had died
after the deceased, the same situation would have applied, save for
such maintenance
as would have been appropriated for her between the
date of the deceased's death and the date on which she died. Mr
Bridgman's
reluctance to make such a concession was undoubtedly
attributable to a fear that, if he made it, his carefully crafted
contentions
would founder on the rocks of logic. He submitted that,
quite apart from what might be the position if Thando died
after
the deceased, there appeared to be no decided case in our law which
dealt with the computation of compensation in a dependantâs
claim
where one or more of the dependants died simultaneously with the
breadwinner. He therefore asked that the matter be considered
as
res
nova
.
[8] The absence of reported authority for a particular
proposition relating to the computation of damages in delict can, in
this
day and age, invariably be attributed to only one of two
circumstances. The first is that it indeed is
res
nova
and has thus never been considered by a
court before. The second is that its answer is so obvious that no
court has seen fit to
classify it as reportable. I rather think that
the proposition here put forward by the defendant falls into the
latter category.
[9] It is, after all, perfectly clear that the court
takes into account events which occur after the death of the
breadwinner in
assessing the award to each dependant. The simple
occurrence of one of the dependants becoming self-supporting is one
such event.
It has the effect of making available to the others the
share which was previously allocated to the now self-supporting
sibling.
This is one of the very precepts by which the actuary in
this case was called upon, by agreement between the parties, to make
his
assessments. Bekker J
dealt
with the question as a matter of general principle in the case of
Wigham v British Traders Insurance Co Ltd
10
In that case the plaintiff's husband had died in a motor vehicle
collision in January, 1960. At that time the plaintiff was 81
years
old, and her expectation of life was fixed at six years. The matter
came to trial in 1963, when the plaintiff was 84. Her
life expectancy
at the date of trial was assessed at five years. The argument for the
insurer was that her award should nevertheless
be computed on the
basis that she would live to the age of 87 (the assessment at the
date of the breadwinner's death) and not to
the age of 89 (the
assessment at the date of trial). Bekker J rejected this contention,
saying:
11
'It is of course quite true that
the general principle requires the amount of damages to be assessed
at the date of the wrong but
the court is entitled in the case of
prospective damages to inform itself of subsequent facts which are
known at the date of the
trial and which if taken into account would
enable the court to determine with a greater degree of certainty or
accuracy the total
loss of a plaintiff. By so doing the amount of
speculation involved in such an assessment is reduced.'
12
Wigham
plainly
disposes of any logical ground for Mr Bridgman's reluctance to
concede that if Thando had died between the date of the deceased's
death and the date of trial, the support which would otherwise have
been allocated to her would have gone to the surviving dependants.
[10] The defendant has thus correctly conceded that if
Thando had died before the date of the delict, the plaintiffs would
have
been entitled to the extra amount of R163 428. And that would
also be the position if she had died at any time after the date of
the delict (save, of course, for any amount of maintenance that would
have accrued to her between that date and the date of her
death). Can
there then be any basis, in logic or otherwise, for a contention that
since her death occurred simultaneously or contemporaneously
with
that of the deceased, the amount of R163 428 falls to be excised from
the award? I think the question only has to be stated
to be answered
in the negative. It seems to me that the defendant's contention stems
from confusion between the exercise of determining
the total loss
(the 'pot' or 'cake' in the graphic language of the learned judge a
quo) and that of distributing that amount amongst
the dependants. The
view of the court a quo that Thando's death could not have the effect
of reducing the total loss cannot be
faulted.
[11] The appeal is dismissed with costs.
________________________
NV HURT
ACTING JUDGE OF APPEAL
Appearances:
For Appellant: M J M Bridgman
Instructed by:
Hofmeyr, Herbstein & Gihwala Inc Cape Town
E G Cooper Majiedt Inc Bloemfontein
For Respondent: R D E Gordon
Instructed by:
A Batchelor & Associates Cape Town
Van Wyk & Preller Bloemfontein
1
Anela was a child of the deceased by a relationship previous to that
with the first plaintiff, the mother of Xolasisipho and
Thando. It
had been agreed by the parties that Anela would be paid one of two
possible fixed amounts, pursuant to the ruling
in this case.
2
1908 TS 575.
3
1923 AD 234.
4
Ad Pandectas
9.2.11.
5
At 243- 244.
6
Sc
Preferable to the 'annuity approach' opted for by a number
of other writers.
7
1963 (1) SA 608
(A) at 614C-F.
8
And as is explicitly stated in the actuary's explanation of his
method of assessment, attached to the stated case.
9
As dealt with in
Lambrakis v Santam Ltd
2002
(3) SA 710
(SCA) particularly paras 19 and 20
and the
authorities there cited.
10
1963 (3) 151 (W).
11
at 156B-D.
12
Wigham
has not been expressly approved by this
Court, but in
General Accident Insurance Co SA Ltd v Summers
1987
(3) SA 577
, Rabie ACJ dealt exhaustively with the question of
whether there was a fixed rule as to the date at which a plaintiff's
loss
of support should be assessed, and came to the conclusion (at
610J) that there was no authority to the effect that the loss of
income (or, in dependants' claims, the loss of support) had to be
assessed as at the date of delict. In that case, the judge
in the
court a quo had expressly based his computation on the quoted dictum
by Bekker J,
and Rabie ACJ
did not question the
correctness of this approach.
Wigham
has been
referred to and applied in a number of subsequent decisions and
should now be taken as a correct statement of the law,
subject
always to the consideration that the trial judge has a wide
discretion in these matters.