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[2019] ZAGPPHC 317
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Grobler v Road Accident Fund (20711/2017) [2019] ZAGPPHC 317 (22 July 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
No
(2)
OF
INTEREST TO OTHER JUDGES: No
(3)
REVISED:
Yes
CASE
NUMBER: 20711/2017
In
the matter between:
JUANE
GROBLER
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
Coram:
A Vorster AJ
Heard:
18 July 2019
Delivered:
22 July 2019
ORDER
1.
Determination
of the period of dependency of the plaintiff, to be used in assessing
her claim for loss of support, is separated
from determination of the
other remaining issues in this matter.
2.
This
matter and the matters listed below are hereby consolidated under
case number 20710/2017:
CASE NO: 20710/2017
RUAN BERG GROBLER V RAF
CASE
NO: 20708/2017 CHRISTIAN BOSHOFF
GROBLER V RAF
CASE
NO: 20709/2017 NICOLA GROBLER V RAF
3.
Determination
of the remainder of the issues in this matter is postponed to 16
October 2019.
4.
The
quantum of the plaintiff's claim for loss of support against the
defendant must be assessed on the basis that the plaintiff
would have
been entitled to, and in fact been supported by her mother, until 31
December 2020.
5.
The
defendant shall pay the taxed or agreed costs of the action up to
date hereof, including but not limited to:
5.1.
the costs attendant upon employment of
Counsel, including the full day fee of Counsel for every day the
matter appeared on the trial
roll, including but not limited to 6
June 2019 and 17 July 2019;
5.2.
the
plaintiff's reasonable and taxable travelling costs for attending
expert consultations, the costs of consultations in preparation
for
trial as allowed by the Taxing Master, and the trial on 6 June 2019
and 17 July 2019;
5.3.
the costs of the report and the
preparation, qualifying and day fees, if any, of Ms. N. Kotze.
6.
Should
the issue of costs not be settled, the plaintiff's attorney shall
serve a notice of taxation on the defendant's attorney
and allow the
defendant 14 (fourteen) court days to make payment, where after
interest shall be payable at the prescribed rate
of 10.25% per annum,
calculated 14 days from the stamped of the allocatur, to date of
payment.
JUDGMENT
A
Vorster Al
(1)
I have been called upon to decide this
matter on a very narrow basis. The plaintiff lost her mother as a
result of motor vehicle
collision on 30 March 2014. On a previous
occasion the defendant conceded that it is liable to compensate the
plaintiff for the
loss of support she suffered as a result of the
death of her mother. The issue placed before me at this stage
pertains to the period
of dependency of the plaintiff, to be used in
the assessment of her claim for loss of support.
(2)
Only the plaintiff testified, and the
evidence of the plaintiff was not disputed, or rebutted, on any
credible grounds. The plaintiff
testified that, had it not been for
the death of her mother, she would have pursued and attained her
honors degree in Visual Communication
and Motion Design, in December
2019. Thereafter it would have taken her a year to find gainful
employment and become self
supporting. Because of the death of
her mother, and the resultant lack of financial support, she would
now only attain her honors
degree and become self-supporting in
December 2022.
(3)
It is not controversial that the
plaintiff's mother, who was employed at BHP Billiton, and earned in
excess of R50'000.00 per month,
both had the ability, and voluntarily
assumed the obligation to support the plaintiff financially until she
found gainful employment
and become self-supporting.
(4)
Counsel for the defendant graciously,
and in my view correctly, conceded that on the undisputed facts the
plaintiff's mother would
in all probability have continued to support
her financially until she found gainful employment, after she
finished her degree,
in 2019. Based on the uncontested evidence, and
the concession made, the date to be used as a premorbid scenario when
support would
have terminated is December 2020.
(5)
As to whether the plaintiff 's mother
had a duty to support her until this date I find that the voluntary
assumption of the obligation
by the plaintiff's mother to support her
financially would have sufficed, even in the absence of a legally
enforceable duty. I
base my finding on the reasoning adopted by
Sutherland J in the case of
JT v RAF
2015
(1) SA 609
(GJ) at page 613 and
Grogan AJ's obiter dictum the case of
Jacobs
v Road Accident Fund
2010 (3) SA 263
(SE). Both Sutherland J and Grogan AJ seem to imply that a voluntary
assumption of a duty to support grounds the existence of such
right.
(6)
In the case of
Metiso
v Padongeluksfonds
2001 (3) SA 1142
(T) at 1150G-H, Bertelsmann J found that a binding offer to support
children is sufficient to ground a duty of support, because
to do so
was consistent with the morality of society.
(7)
I am therefore satisfied that the
plaintiff's mother's binding offer to support her grounded a duty of
support, and a concomitant
entitlement thereto. I need to reiterate
that I was not called upon to determine the extent to which the
plaintiff's mother would
have supported her financially. The fact
that the plaintiff was intermittently employed, or from time to time
supported by her
sister and partner, are irrelevant for purposes of
this judgement. These facts may or may not be taken into account when
the quantum
of loss is determined, but has no bearing on the question
as to the period of dependency of the plaintiff.
(8)
The question that remains is whether the
plaintiff may claim the demonstrable loss she will continue to suffer
until the end of
2022 under her claim for loss of support. I have
dealt with the fact that the plaintiff would have become self
supporting
at the end of 2020, but as a result of the death of her
mother, and the resultant loss of support, she will now only become
self-supporting
towards the end of 2022.
(9)
Mr. Grobler for the plaintiff implored
me to find that the plaintiff's loss of support claim should be
extended to December 2022,
when she would now become gainfully
employed and self-supporting, because the loss she will continue to
suffer is an incidence
of the her claim for loss of support. I cannot
agree with Mr. Grobler's contention because it conflates the nature
and jurisdictional
requirements of a claim for loss of support, with
the nature and jurisdictional requirements of a claim for loss of
income.
(10)
A loss of support claim was dealt with
by Corbett JA in
Evins v Shield
Insurance Co Ltd
1980 (2) SA 81
4
(A) at 838H-839C & 837H-838B in these terms:
..,,
in the case of an action for damages
for loss of support,, the basic ingredients of the plaintiffs cause
of action would be (a)
a wrongful act by the defendant causing the
death of the deceased (b) concomitant culpa or (dolus) on the part of
the defendant,,
(c) a legal right to be supported by the deceased
vested in the plaintiff prior to the death of the deceased and (d)
damnum,, in
the sense of a real deprivation of anticipated support.
The facta probanda would relate to these matters and no cause of
action
would arise until they had all occurred.
'
' ...
while the defendant incurs liability
because he has acted wrongfully and negligently (or with dolus)
towards the deceased and thereby
caused the death of the deceased the
claimant (the dependant) derives his right of action not through the
deceased or from his
estate but from the facts that he has been
injured by the death of the deceased and that the defendant is in law
responsible therefor.
Only a dependant to whom the deceased was under
a legal duty to provide maintenance and support may sue and in such
action the
dependant must establish actual patrimonial loss,, accrued
and prospective,, as a consequence of the death of the breadwinner.
These principles are trite and require no citation of authority.
'
(11)
In
Legal
Insurance Company Ltd v Botes
1963
(1) SA 608
;
[1963] 1 All SA 593
(A) the Appellate Division as it then
was described the nature of the dependent's claim for loss of support
in the following manner:
‘
At the
outset it is necessary to deal with the nature and scope of the
action according to existing South African La by dependants
against a
person who has unlawfully killed the bread-winner who was legally
liable to support them. The remedy was unknown to Roman
La in which
no action arose out of the death of a freeman and consequently the
Aquilian action was not available. It had its origin
in Germanic
custom/ in which the reparation of “maaggeld” was
regarded as a conciliation to obviate revenge by the
kinsmen of the
deceased and it was divided among the latters children or parents or
other blood relatives. The Roman-Dutch Law
modified the custom by
regarding the payment as compensation to the dependants for loss of
maintenance. The Roman-Dutch Jurists
felt that this could be
accommodated within the extended framework of the Roman Aquilian
action by means of a utilis actio. The
remedy has continued its
evolution in South Africa
-
particularly during the course of
this century
-
through
Judicial pronouncement including Judgments of this Court and it has
kept abreast of the times in regard to such matters
as benefits from
insurance policies. The remedy relates to material Joss ''caused to
the dependants of the deceased man by his
death' It aims at placing
them in as good a position/ as regards maintenance/ as they would
have been in if the deceased had not
been killed. To this end
material losses as well as benefits and prospects must be considered.
The remedy has been described as
anomalou peculia and sui generis
-
but it is effective.''
(12)
On the plaintiff's own version her
mother's support would have terminated towards the end of 2020.
Therefore, based on the nature
of a claim for loss of support, as
described by Corbett JA in Evins, the deprivation of anticipated
support would have terminated
on this date. After this date the
plaintiff would no longer have received financial support from her
mother and a loss of support
claim can therefore not be calculated
beyond this date.
(13)
The real nature of the plaintiff's
anticipated loss for the period 2020 to 2022 is in fact a loss of
earnings, and not loss of support.
Had it not been for the
plaintiff's mother's death, she would have commenced gainful
employment in 2020, whereas after her mother's
death she will only
commence with gainful employment in 2023.
(14)
The plaintiff's loss would therefore be
the prospective earnings she stands to lose because she will commence
with gainful employment
three years later than she would have, had
her mother not been killed in the motor vehicle collision. This is
not a claim for loss
of support. To allow the plaintiff to recover
her prospective loss of income under a claim for loss of support will
be to go beyond
what the authorities have recognised in the past. It
is my respectful view that the distinction drawn in
Evins
v Shield Insurance Co Ltd
between a
dependent's claim, and a damages action for bodily injuries, should
also be drawn between a dependent’s claim and
a damages action
for loss of income.
(15)
The plaintiff is not left without a
remedy. She may still, if so advised, through an appropriate
amendment include a claim for loss
of income. I do not make any
finding, or express any opinion, as to whether or not the plaintiff
will in fact succeed with such
a claim, or whether an amendment to
include such a claim will in fact be allowed.
(16)
I have been advised that the plaintiff
's siblings also instituted claims for loss of support in separate
actions, and that these
claims have been enrolled for hearing on 16
October 2019. I was therefore requested to postpone the remainder of
the disputes to
that date, to be heard simultaneously with the
siblings' claims. The matters are all being dealt with by the same
sets of attorneys.
(17)
I indicated to the respective parties
that I deem the separate prosecution of these matters unnecessary,
especially from a cost
perspective. I proposed that the matters be
consolidated. The parties agreed to a consolidation and I propose to
make such an order.
After consolidation I will postpone the remainder
of the disputes in this matter to 16 October 2019.
(18)
Mr. Grabler argued that the plaintiff
should be granted costs of suit to date on the normal High Court
scale, and Mr. Maluleka merely
argued that costs should follow suit.
I see no reason why the plaintiff should not be awarded costs.
(19)
For these reasons the following order is
made:
(20.1) Determination of
the period of dependency of the plaintiff, to be used in assessing
her claim for
loss of support, is separated from determination of the
other remaining issues in this matter.
(20.2) This matter and
the matters listed below are hereby consolidated under case number
20710/2017:
CASE NO: 20710/2017 RUAN BERG GROBLER V RAF
CASE NO: 20708/2017 CHRISTIAN BOSHOFF
GROBLER V RAF
CASE NO: 20709/2017 NICOLA GROBLER V RAF
(20.3) Determination of the
remainder of the issues in this matter is postponed to 16 October
2019.
(20.4) The quantum of the
plaintiff's claim for loss of support against the defendant must be
assessed on the
basis that the plaintiff would have been entitled to,
and in fact been supported by her mother, until 31 December 2020.
(20.5) The defendant shall
pay the taxed or agreed costs of the action up to date hereof,
including but not limited
to:
(20.5.1) the costs attendant upon
employment of Counsel, including the full day fee of Counsel for
every day the matter
appeared on the trial roll, including but not
limited to 6 June 2019 and 17 July 2019;
(20.5.2) the plaintiff's reasonable
and taxable travelling costs for attending expert consultations, the
costs of consultations
in preparation for trial as allowed by the
Taxing Master, and the trial on 6 June 2019 and 17 July 2019;
(20.5.3) the costs of the report
and the preparation, qualifying and day fees, if any, of Ms. N.
Kotze.
(20.6) Should the issue of
costs not be settled, the plaintiff's attorney shall serve a notice
of taxation on
the defendant's attorney and allow the defendant 14
(fourteen) court days to make payment, where after interest shall be
payable
at the prescribed rate of 10.25% per annum, calculated 14
days from the stamped of the allocatur, to date of payment.
A. VORSTER AJ
Acting Judge of the High Court
Date
of hearing: 18 July 2019
Date
of judgment: 22 July 2019
Counsel
for the plaintiff: Ad. J. F. Grobler
Instructed
by: Wehmeyers Attorneys
Counsel
for the defendant: Adv. A. Maluleka
Instructed
by: Iqbal Mahomed Attorneys