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[2019] ZAFSHC 131
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M V and Others v Road Accident Fund (1705/2017) [2019] ZAFSHC 131 (25 July 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH
AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
no: 1705/2017
In
the
matter between:
M
V
First
Plaintiff
M
Z
N.O.
Second
Plaintiff
(in
her capacity as a mother and
the
guardian of L H)
M
V
N.O.
Third
Plaintiff
(in
her capacity as a mother and
the
guardian of D H)
and
ROAD
ACCIDENT
FUND
Defendant
CORAM:
MOROBANE,
AJ
JUDGMENT
BY:
MOROBANE,
AJ
HEARD
ON:
14 MAY 2019, 3 JUNE
2019
DELIVERED
ON:
25 JULY
2019
[1]
The Plaintiff brought an action for damages for loss of support
arising out of the death of N H ("the deceased"),
as a
result of motor vehicle collision on 20 December 2014. The action is
brought against the Defendant in terms of the
Road Accident Fund Act
56 of 1996
.
[2]
On 20 November 2018, the parties settled the merits and the matter
was set down for the determination of the quantum. No evidence
was
led at the trial as the parties agreed to file heads of argument
dealing with contingencies. I was then requested to adjudicate
the
matter without hearing of further arguments. The agreement between
the parties was made an order of court.
[3]
In terms the court order, the Defendant's actuary report by GW
Jacobson Consulting Actuaries (Pty) Ltd was accepted into record
and
marked as exhibit "A". The Defendant had agreed to pay the
Plaintiff's past and future losses as reflected in Basis
II on the
scenario of age 21 of the report. The only issue to be determined is
the application of contingencies based on the calculations
by GW
Jacobson.
[4]
In the heads of argument, the Defendant argued that the Court must
first consider whether the First Defendant has indeed suffered
any
loss. This argument is contrary to the court order of 14 May 2019,
the terms of which were explained at the preceding paragraphs.
The
relevant provisions of the court order reads:
'2 The gross past loss
and gross future loss amounts of the Plaintiffs as
calculated,
computed and reflected in Basis II on the scenario of
age 21 of exhibit "A", as referred to
in paragraph 1
supra,
are
the amounts to be paid by the Defendant to the Plaintiff.
3 The said amounts as
referred to in paragraph 2
supra
is
exclusive of
the
contingencies calculations still to be determined by
the Court.'
[5]
The issue of
quantum was settled between the
parties as encapsulated in the court order. This settlement has
obviated the need to determine whether
the First Plaintiff suffered
any loss arising from the death of the deceased. In terms of the
court order, the only outstanding
issue to be determined by the Court
is the calculation of contingencies. The manner in which this issue
was raised, is an attempt
by
the
Defendant to vary a court order
without following the correct procedure. It is trite that an order of
a court of law stands until
set aside by a court of competent
jurisdiction.
[1]
In the light of the aforegoing, the court order must be
obeyed.
[6]
When considering the assessment
of a proper allowance for the contingencies, the Court held that
arbitrary considerations must inevitably
play a part, for the art or
science of foretelling the future, so confidentially practiced by
ancient prophets and soothsayers
and by modern authors of a certain
type of almanack, is not numbered among the qualifications
for judicial office.
[2]
[7]
The agreed Basis II of the report by GW Jacobson is on the assumption
that each child would have been dependent until the age
of 21 years.
A contingency deduction of 5% was applied across the board for the
Plaintiffs' past losses. It resulted in the net
past losses of R298
133.00 for the First Plaintiff and R149 066.00 for each child. On the
future losses, a contingency deduction
of 10% was applied which
amounted to the net loss of R268 784.00 and R332 895.00 for each
child respectively.
[8]
As far as the future loss for the First Respondent is concerned, a
deduction of 15% was applied. A further 20% remarriage deduction
was
made which resulted in the R1 236 034.00 future loss.
[9]
The parties had not taken issue with the contingency deductions of 5%
from the Plaintiffs' past losses. In the same breath,
the Plaintiff
submitted that the normal contingencies should apply as it was not
justified to deviate in the present case. The
normal contingencies
deductions are 5% in respect of past loss and 15% in respect of
future loss.
[10]
On the contrary, the First Plaintiff submitted that a contingency of
10%
should
be
deducted
from
her
future
loss.
She
further
submitted that a 5%
contingency deduction should be
applied for future loss of each child. However,
the Plaintiff has already submitted that compelling evidence
does
not
exist
in
this
case.
In
casu,
a
deviation
from the normal contingency deduction would be unjustified. The
contingency deduction as proposed by the Plaintiffs is
not accepted.
I am of
the view that the
contingency deductions of 10% on
the
future
loss
of
each
child
was
correctly applied by
the
actuary.
[11]
The actuary has applied remarriage deduction of 20% over and above
the normal contingency applied. While the Defendant supported
the
deduction, the Plaintiff submitted that additional contingency for
remarriage should not be considered separately. The correct
approach
is to judge each case on its own merits.
[12]
As to the remarriage
contingency, the principle to be applied in respect of the deduction
of contingencies generally, is set out
in
Southern
Insurance Association Ltd v Bailey NO
[3]
that where method of
actuarial computation is adopted a Judge has "a large discretion
to award what he
considers
right"
[13]
In
Peri-Urban
Areas Health Board v Munarin
[4]
the
court said
that a widow is entitled to
compensation for loss of maintenance consequent upon the death of her
husband, but any pecuniary benefits,
similarly consequent, must
be
taken into
account.
[14]
In considering the aspect of remarriage, I am of the view that there
are no special circumstances to warrant a further deduction.
Remarriage is part of the vicissitudes of life and should not be
considered separately in this case. In this regard, a 25% contingency
deduction is realistic in respect of future loss of the First
Plaintiff.
[15]
Consequently, the Plaintiffs are entitled to the relief claimed
subject to the contingency adjustments indicated above. There
is also
no reason why a costs order should not be awarded to the Plaintiffs.
[16]
In the premise, I make the following order:
1. The Defendant is ordered to pay to
the Plaintiff in her personal capacity the sum of R1 661 405.00 (One
million six hundred and
sixty-one thousand four hundred and five
rand).
2. The Defendant is ordered to pay to
the Plaintiff in her representative capacity as guardian of L H the
sum of R417 850.00 (Four
hundred and seventeen thousand eight hundred
and fifty rand).
3. The Defendant is ordered to pay to
the Plaintiff in her representative capacity as guardian of D H the
sum of R481 961.00 (Four
hundred and eighty one thousand nine
hundred and sixty-one rand).
4. The Defendant is ordered to pay the
Plaintiff's taxed or agreed party and party costs, including but not
limited to the costs
set out hereunder:
4.1
The reasonable qualifying, reservation, attendance fees, costs of
reports and expenses of the Rhinus du Plessis from Quantum
actuaries,
including the costs of witnesses duly subpoenaed and costs of
counsel.
4.2
Payment of the capital amount shall be made without set off or
deduction, within 30 calendar days from date of the granting
of this
order, directly into the trust account of the plaintiff's attorneys
of record by means of electronic transfer.
4.3
Payment of the taxed or agreed costs shall be made within 14 days of
taxation, and shall likewise be effected into the trust
account of
the plaintiff's attorney;
4.4
No interest will accrue in respect of any of the aforesaid amounts if
payment is made on or before the stipulated dates;
4.5
Should payment not be made in respect of any of the aforesaid amounts
on or before the stipulated date(s), interest will accrue
at the
statutory rate per annum, compounded.
5. In the event that costs are not
agreed:
5.1
The Plaintiff shall serve a notice of taxation on the Defendant's
attorney of record; and
5.2
The plaintiff shall allow the defendant 14 days to make payment of
the taxed costs.
___________________
V.M. MOROBANE, AJ
On
behalf of the plaintiffs: Adv. PC Ploos van Amstel
Instructed
by:
Hill
McHardy & Herbst Inc.
BLOEMFONTEIN
On
behalf of the defendant: Adv. NM Bahlekazi
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN
[1]
Bezuidenhout v Patensie Sitrus Beherend Bpk
2001 (2) SA 224
(ECO) at
229 B-C
[2]
Goodall v Pres ident Insurance Co Ltd
1978 (1) SA 389
(W) at
392H-393A
[3]
Southern Insurance Association v Bailey NO
1984 (1) SA 98
(A) at
116G
[4]
Peri-Urban Areas Health Board v Munarin
1965 (3) SA 367
(A) at
376B-D