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[2018] ZAFSHC 189
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Amsterdam v Road Accident Fund (2805/14) [2018] ZAFSHC 189 (6 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2805/14
In
the matter between:
JOSELINE
HAMBERIETTA
AMSTERDAM
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
21
NOVEMBER 2018
JUDGMENT
BY:
DANISO,
AJ
DELIVERED
ON:
06
DECEMBER 2018
[1]
The plaintiff claims damages for loss of support pursuant to the
death of her husband (‘the deceased’) who died
on 16
April 2012 as result of the injuries he sustained in a motor vehicle
accident.
[2]
The following facts are common cause: The accident occurred on 09
March 2012 between the deceased’s vehicle and the insured
vehicle. The deceased was injured when the insured driver
travelling on the opposite direction overtook another vehicle and
collided into the deceased’s vehicle. The deceased was
hospitalized but succumbed to his injuries approximately a month
later.
[3]
The defendant conceded the merits and agreed to pay 100% of the
plaintiff’s proven damages. In the interim, the defendant
agreed to pay an amount of R520 274.00 which includes funeral
costs pending the determination of the quantum in respect of
loss of
support and past medical
expenses.
[4]
The plaintiff testified and also called Doctor Everd Jacobs, an
Industrial Psychologist as a witness. The summary of the evidence
tendered in that regard is the following:-
4.1.
At the time of the accident the family was mainly dependent on the
deceased’s income. The plaintiff previously worked
as an
administrative clerk for about 25 years and also ran a catering
business part time. She lost her job a month before the deceased
passed away. She then continued with the catering business. The
income she received from the business was sporadic she could not
even
afford to pay accountants to keep proper accounting records and tax
reports, it ultimately folded.
4.2.
The plaintiff and the deceased were married in community of property.
They were blessed with four children.
4.3.
All the children are adults and self-supporting except for Delarese
Demi Amsterdam. She is 21 years old, however, she is still
dependent
on the plaintiff as she is studying. She was only 14 years old when
the deceased passed away.
4.4.
The deceased was a qualified carpenter. At the time of the accident
he was employed as an artisan at
Sand
Vet Water Users Association.
He
earned about R455 432.00 per annum. He was a diligent and an
excellent worker who aspired to progress to senior positions.
Taking
into consideration his qualifications, experience and work ethic, the
deceased had great career prospects of progressing
to management
level. He would have worked till the retirement age of 65 years.
4.5.
Pursuant to the accident, the deceased was hospitalized on the day of
the accident until he passed on. The medical expenses
incurred in
that regard amounted to R648 280.10. He was 46 years old.
[5]
That was in short the plaintiff’s evidence, in addition to the
viva voce evidence, documentary evidence was handed in
by concurrence
of both parties and marked as Exhibits; the actuarial report (
Exhibit
“A8-13”
)
the industrial psychologist’s report (
Exhibit
“A21-38” &, “A74-85”
)
and the hospital statement of account (
Exhibit
“B”
).
[6]
The defendant closed its case without calling witnesses.
[7]
The plaintiff’s evidence that
personally
and as the natural and legal guardian of Delarese, the child born to
her and the deceased have suffered damages due to
the loss of support
occasioned to them by the death of the deceased and that they were
entitled to
damages
was
undisputed.
[8]
Counsel for the plaintiff argued that an amount of R2 692 800.00
must be paid to the plaintiff in
her
personal capacity, and R608 300.00 in respect of Delarese, being
damages sustained in consequence of the death of the plaintiff’s
husband.
[9]
On the other side, the defendant merely accepted that the actuarial
report can be relied upon for the determination of the quantum,
no
submissions were made to the contrary.
[10] In the assessment of
damages for loss of maintenance and support the court has a large
discretion to award what it considers
fair and equitable under the
circumstances. The court may be guided but certainly not tied down by
inexorable actuarial calculations.
See
Legal
Insurance Company Ltd v Botes
1963 (1)
SA 608
(A) page 608.
[11]
The duty is on the plaintiff to provide the court with sufficient
information to enable it to make a just and equitable assessment
of
the damages she has sustained.
[12]
On the facts germane to this matter,
except
for the plaintiff’s say so, there are no dependable financial
statements or tax returns in respect of the plaintiff’s
erstwhile source of income.
The
plaintiff’s earnings or capacity to earn is a factor to be
taken into account in cases dealing with the loss of a bread-winner.
[13]
Having said that, the plaintiff’s evidence that she is indigent
and that at the time of the accident she was dependent
on the
deceased who duly supported her and would have continued to support
her but for his demise is uncontroverted.
I
have found no reason to reject it.
[14]
The figures
for
loss of support in the actuarial report are based on the deceased’s
net annual income at the time of his death, the assumption
that he
would have continued working and earning relatively the said income
for the next 19 years until he retired at the age of
65. The
plaintiff and Delarese have been deprived of the support of about 19
years. The contingencies have been applied accordingly.
I’m
thus satisfied that actuarial evidence accords with what is fair and
just in these circumstances.
[15]
In the circumstances I consider that
a
fair and reasonable
award
to be paid as compensation to the plaintiff is an amount of
R3 457 206.10. This figure incorporates;-
15.1.
The past and future loss of support in respect of the plaintiff,
R2 692 800.00;
15.2.
The past and future loss of support in respect of Delarese,
R608 300.00;
15.3.
The past medical costs R648 280.10;
15.4. The funeral costs
R28 100.00;
Less
15.5.
The interim payment in the sum of R520 274.00.
ORDER
[16]
The following order is made:
1.
The
defendant is ordered to pay the plaintiff the amount of R3 457 206.10
together
with interest at the prevailing rate reckoned from a date 14
(fourteen) days after judgment to date of final payment.
2.
The
defendant
shall
pay plaintiff’s costs of the action, including the qualifying
and reservation fees and expenses incurred in obtaining
all
medico-legal-reports/joint minutes and actuarial reports.
_____________
NS
DANISO, AJ
APPEARANCES:
Counsel
on behalf of the plaintiff: Adv. Nortier
Instructed
by: P Joubert INC.
c/o
Rosendorff Reitz Barry
BLOEMFONTEIN
Counsel
on behalf of the defendant: Adv. Saunders
Instructed
by: Maduba Attorneys
BLOEMFONTEIN