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[2017] ZAFSHC 162
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Bruwer and Others v Road Accident Fund (574/2015) [2017] ZAFSHC 162 (21 September 2017)
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
number: 574/2015
In
the matter between:
P.
C. B. N.O.
1
st
Plaintiff
T.
K.
2
nd
Plaintiff
B.
K.
3
rd
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
30
AUGUST 2017
JUDGMENT
BY:
PIKE, AJ
DELIVERED
ON:
21
SEPTEMBER 2017
[1]
This is an action for damages due to past and future loss of support.
[2]
The First, Second and Third Plaintiff, together with the first
Plaintiff’s spouse, B. K. (hereinafter referred to as “the
deceased”), who was also the biological mother of the Second
and Third Plaintiff, were involved in a motor vehicle accident
on 28
October 2010. The deceased passed away on 29 November 2010 as a
direct result of injuries sustained during the said
motor vehicle
accident.
[3]
The claim was lodged against the Defendant in terms of section 17(1)
of the Road Accident Fund Act 56/1996.
[4]
The Defendant filed a Notice of Appearance to Defend and subsequently
filed its Plea, denying both liability and quantum of
damages
suffered.
[5]
The First Plaintiff, P. S. K., passed away during the latter part of
2015 and a Notice of Substitution in terms of Rule 15(2)
of the
Uniform Rules of Court was filed whereby First Plaintiff was
substituted for P. C. B., in his capacity as executor in the
estate
of the late P. S. K., as if he had been a party from the commencement
of the action.
[6]
During July 2016 the Defendant filed a Notice of Offer of Settlement,
which settlement offer was accepted by the Plaintiffs
in terms of
Rule 34(6) of the Uniform Rules of Court in respect of the merits of
the Plaintiffs’ claim on the basis that
the Defendant is liable
for payment of the Plaintiffs’ full (100%) proven or agreed
damages.
[7]
What therefore remains for consideration now are the questions of
what amounts of damages have the Plaintiffs suffered respectively.
[8]
In determining what damages should be ordered when a breadwinner is
killed the basic merger employed is the difference between
the
position of the dependent as a result of the loss of support, and the
position the dependent reasonably expected to have been
in had the
deceased not died.
Legal
Insurance Company Limited v Botes
1963
(1) SA 608
(A).
[9]
In their amended Particulars of Claim the Plaintiffs claim as follows
as a result of loss of support brought about by the deceased
death:
1.
First
Plaintiff - R507 900-00
2.
Second
Plaintiff - R111 700-00
3.
Third
Plaintiff - R74 500-00
[10]
It is also necessary to first set out the dates of birth of the
Plaintiffs respectively:
1.
The date of
birth of the late First Plaintiff, P. S. K. - [...] 1950.
2.
The date of
birth of the Second Plaintiff, T. K. - [...] 1991.
3.
The date of
birth of Third Plaintiff, B. K. - [...] 1992.
[11]
In his opening address on behalf of the Plaintiffs, Mr Pohl submitted
that as the First Plaintiff, P. S. K., died after
litis
contestatio
,
and as a Notice of Substitution was duly filed, any amounts claimed
on behalf the estate of the late P. S. K. will devolve on his
estate.
I accept this as it is trite law.
[12]
Mr Pohl further submitted that the Defendant accepted the actuarial
report by Munro Actuaries, dated 28 August 2017, as well
as the
factual basis of the report, which was duly handed in as Exhibit “A”.
This was confirmed by Mr Thompson on behalf
of the Defendant.
[13]
Mr Pohl also handed in the First and Final Liquidation and
Distribution Account in the Estate Late B. K. as Exhibit “B”
as the acceptance of the said account was also confirmed by Mr
Thompson.
[14]
As the actuarial report contains the factual basis of the said claim
the Plaintiff did not call any witnesses and closed its
case.
[15]
The Plaintiff had discovered the actuarial report by Munro Actuaries
in accordance with Rule 36(9)(a) and (b). The actuarial
report
which was handed in, was an amended report to the report annexed to
the discovery notice. However the Defendant admitted
the full
contents of the said amended report.
[16]
Furthermore in terms of the minutes of the Pre-Trial Conference held
by the parties before the trial in terms of Rule 37, paragraph
11 of
the minutes states that all documents which have been duly discovered
and which are to be utilised at the trial will, without
further
proof, serve as evidence of what they purport to be without admitting
the correctness of the contents thereof. As
previously
mentioned the Defendant admitted the factual basis of the said
report.
[17]
After closing of the Plaintiff’s case the Defendant also closed
its case without calling any witnesses or leading any
evidence.
[18]
In addressing the court Mr Pohl submitted that as the Defendant did
not file any actuarial report and as the Defendant admitted
the
Plaintiffs actuarial report, the Defendant had admitted the factual
basis of the claim of the first Plaintiff who is now deceased.
This matter concerns the past loss of support of the Plaintiffs as
there are no basis for a future loss of support. P. S.
K. was a
pensioner and the deceased was the breadwinner of all three
Plaintiffs’ past loss of support, which was conceded
by
Defendant’s counsel. The First Plaintiff, the late P. S.
K., remarried before he died, but his second wife was unemployed
and
therefore dependent upon him. The Second Plaintiff, Trudie, was
a student and dependent until the end of 2012.
The Third
Plaintiff, Belinda, was dependent until the end of May 2012
whereafter she started working. Majority is of no concern
regarding dependency.
[19]
I agree with Mr Pohl as the duty to support endures until a child
becomes self-supporting. In
Bursey v Bursey
1999
(3) SA 33
(SCA) Vivier JA said at 36D:
“
The
incidence or this duty [to maintain a child] in respect of each
parent depends upon their relative means and the circumstances
and
the need of the child from time to time. The duty does not
terminate when the child reaches a particular age but continues
after
majority.”
[20]
To determine the period within which a breadwinner would have
maintained a dependant, three basic facts must be stablished:
1.
What
the combined life expectancy of the dependant and the deceased
breadwinner would have been if it were not for the premature
death of
the latter;
2.
How
many of these years the breadwinner would have had an income; and
3.
For
what period of that time the breadwinner would have given a portion
of such income to the dependant.
(See:
Lambrakis
v Santam Limited
2000
(3) SA 1098
(W) at 1114J – 1115B).
[21]
Factors such as interest rate and inflation play a role in the
determination of income. The calculated loss may be adjusted,
depending on the facts of each particular case, to take into account
various contingencies such as disability, illness, unemployment
and/or variations in the levels of earnings from those assumed, the
possibility of other dependants, remarriage of the surviving
spouse
and possibility of support from the new spouse et cetera.
[22]
It is common cause that the deceased was born on 27 May 1957. The
actuarial report contained the following: the calculation
has
been based on information provided by the attorney, which included a
payslip of the deceased dated 14 May 2010 as well as the
First and
Final Liquidation and Distribution Account of the deceased. The
late Plaintiff was in receipt of a pension at the
date of the
accident. Her pension is based on savings accumulated through
one’s career and not defined as remuneration.
The actuaries
have not included either the deceased or the late Plaintiff’s
pension benefits in the calculation. The
actuaries also took
into account the housing allowance, the ER medical aid contribution,
annual bonuses and EE and ER pension contributions
until retirement
age of 65. The application of the RAF amendment act CAP will
not have an impact on the claim. The
actuaries have used the
South African Life Tables to determine the issue of mortality and
then assumed that the deceased would
have worked up to the age of 65
years. The same retirement age was projected for the deceased
and they assumed that a portion
of family income would have been two
shares to each adult and one share to each child whilst dependent.
[23]
Mr Pohl further submitted that as per the Munro report the proceeds
of the deceased insurance policy is excluded from consideration
of
the damages by virtue of the provisions of the Assessment of Damages
Act 9/1969 (“the Act”).
[24]
Section 1 of the Act provides thus:
“
(1)
When in any 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.
(2)
For the purpose of subsection 1
(i)
“Benefit” means any payment by friendly society or trade
union for
the relief or maintenance of members dependants;
(ii)
“Insurance money” includes a refund of premiums and any
payment of interest
on such premiums;
(iii)
“Pension” includes a refund of contribution and any
payment of interest on
such contributions, and also payment of a
gratuity or other lump sum by pension or provident fund or by an
employer in respect
of a person’s employment.”
[25]
In accordance with
Mohan
v RAF
2008 (5) SA 305
KZN where Nicholson J found that there should be no
deduction for the accelerated inheritance of the family home, I
accepted that
the immovable property to the value of R600 000-00,
indicated in the First and Final Liquidation and Distribution
Account, should
not be deducted in assessing the quantum of damages.
[26]
It should be mentioned that the First and Final Liquidation and
Distribution Account did not bear the endorsement stamp of
the Master
of the High Court. In an effort to clear this up Mr Pohl
informed me, after receiving instructions from his attorneys,
that
this Liquidation and Distribution Account was filed with the claim
documents and that no Second or Amended Liquidation and
Distribution
Account was filed at the Master’s office. I accepted
this.
[27]
It was also submitted that the Total Liabilities in the amount of
R30 881.71, indicated in the First and Final Liquidation
and
Distribution Account, exceeded the amount of R25 909-29, being the
Balance for Distribution. As the liabilities exceed
the cash in
the account, there is no deduction of the cash.
[28]
I find that neither the balance for distribution in the First and
Final Liquidation and Distribution Account, being the amount
of R25
909-29, nor the immovable property in the amount of R600 000-00,
as well as the policy as referred to in the Claims
On Behalf of the
Estate in the amount of R56 791-00 can be taken into account in
assessing the quantum of damages.
[29]
Regarding the contingencies as mentioned in the actuarial report,
which is left for the court to determine, Mr Pohl contended
that it
is standard practice by the courts to never apply a contingency of
higher then 5%. He also contended that the 5%
should be applied
from the capital value derived from the actuarial report in terms of
the Plaintiffs as follows:
The late First Plaintiff,
P. S. K.: 95% of the amount of R548 000-00 which amounts
to R520 600-00.
The Second Plaintiff, T.
K.: 95% of R83 900-00 which amounts to R79 705-00.
The Third Plaintiff, B.
K.: 95% of R55 900-00 which amounts to R53 105-00.
[30]
With reference to the calculation of a 5% contingency of the late
First Plaintiff’s claim amount, Mr Pohl referred me
to the
amended page of the Plaintiffs’ Particulars of Claim and more
specifically the claim on behalf of the late first Plaintiff
in the
amount of R507 900-00 admitting that the court cannot award an
amount more than what has been claimed.
[31]
I have no reason on the facts before me to disagree with the method
adopted by the expert report in calculating the Plaintiffs
loss of
support. After considering the submissions of Mr Pohl, which
was conceded by Mr Thompson, it therefore seems to me
only
reasonable, just and equitable to accept a contingency of 5%.
[32]
In the result I make the following order:
1.
Judgment is
granted in favour of the First Plaintiff in the amount of
R507 900-00.
2.
Payment of
interest
a
tempore morae
on the aforesaid amount calculated at a rate of 9% per annum from
date of judgment to date of payment, if payment is not effected
within 14 days of date of judgment.
3.
Judgment is
granted in favour of Second Plaintiff against the Defendant in the
amount of R79 705-00.
4.
Payment
of interest
a
tempore morae
on the aforesaid amount calculated at a rate of 9% per annum from
date of judgment to date of payment, if payment is not effected
within 14 days of date of judgment.
5.
Judgment is
granted in favour of the Third Plaintiff against the Defendant in the
amount of R53 105-00.
6.
Payment of
interest
a
tempore morae
on the aforesaid amount calculated at a rate of 9% per annum from
date of judgment to date of payment, if payment is not effected
within 14 days of date of judgment.
7.
The
Defendant is ordered to pay First, Second and Third Plaintiffs’
costs, on a party and party scale, which shall include
the attendance
of the actuary, Ms Swann.
______________
EA
PIKE, AJ
On
behalf of Plaintiff:
Adv L Pohl
Instructed
by:
Honey Attorneys
Bloemfontein
On
behalf of Defendant: Adv
Thompson
Instructed
by:
Maduba Attorneys
Bloemfontein