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[2016] ZAFSHC 109
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Labuschagne and Another v Labuschagne and Another (4904/2014, 4905/2014) [2016] ZAFSHC 109 (13 June 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case
number: 4904/2014
4905/2014
In
the matter between:
ESTELLE
LABUSCHAGNE
First
Plaintiff
RENIER
LABUSCHAGNE
Second
Plaintiff
And
ESTELLE
LABUSCHAGNE
Plaintiff
THE
ROAD ACCIDENT
FUND
Defendant
CORAM:
LEKALE, J
HEARD
ON:
10, 11 AND 13 MAY 2016
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
13
JUNE 2016
BACKGROUND
AND INTRODUCTION:
[1]
In a civil action the plaintiff, as
dominus
litis,
is
obliged to furnish proper and full instructions necessary for
successful litigation to her legal representative, as the captain
of
her boat, if she has any, for the latter to decide on
appropriate legal course to follow in order to secure the
relief
desired by the former. Failure on the part of the plaintiff to so
furnish full information may result in the captain deciding
on the
wrong course to follow and, consequently, steering the boat in the
wrong direction. This proposition is evident from the
facts
in
casu.
[2]
On the 26 December 2009 and at or near Koppies Road in Sasolburg the
motor vehicle in which the first plaintiff under case number
4904/2014(the first plaintiff), who is also the plaintiff under case
number 4905/2014, was travelling together with her husband
(the deceased), who was the driver, was involved in a collision with
another motor vehicle. In and as a result of the said
collision the first plaintiff sustained fairly severe
bodily injuries while the deceased, on his part, passed away.
[3]
Following the collision the first plaintiff and second plaintiff, who
is the former’s stepson and the deceased’s
biological
son, eventually issued summons against the defendant for loss of
support under case number 4904/2014 on the basis
that the
collision was caused by the sole negligence of the driver of the
other vehicle who was insured by the defendant.
The first
plaintiff, further, instituted action against the defendant under
case number 4905/2014 for general damages and loss
of income.
[4]
On the 23 February 2016 the two matters were consolidated per
agreement between the parties. The defendant, further, conceded
merits under case number 4905/2014 and agreed to settle the first
plaintiff’s claim relating to general damages leaving special
damages to the court for determination. The matter was postponed with
costs being directed to be in the cause.
[5]
The consolidated matter now serves before me for determination of
first plaintiff’s quantum of special damages relating
to loss
of income under case number 4905/2014 and the two plaintiffs’
respective quanta of special damages relating to loss
of support
under case number 4904/2014.
[6]
At the commencement of the proceedings the parties, through their
respective counsel, announced that the medico-legal reports
of Drs PA
Olivier, JR Becker, S Moagi and Moloto be admitted in evidence per
agreement. Such reports were accordingly admitted
as exhibits “A”
to and including “E”.
ISSUES
FOR DETERMINATION:
[7]
The parties are at variance on the quantum of first plaintiff’s
claim for loss of income with the defendant contending
that she is
entitled to no award at all regard being had to,
inter
alia
,
the fact that, on her own evidence before the court, she was the
co-owner of the income generating family business which continued
to
trade under the second plaintiff and to generate revenue after the
collision until it was, eventually, sold in 2014 and, further,
that
she made three attempts at securing employment since the collision.
[8]
The dispute between the parties is, further, related to the question
whether or not the first plaintiff suffered loss of support
in the
light of her evidence to the effect that she was, effectively, in
partnership with the deceased in the family business in
question.
[9]
The parties are, furthermore, in dispute over whether or not the
second plaintiff suffered loss of support regard being had
to the
fact that he took over the family business and traded for his own
account after the deceased’s death earning R7000.00
per month
until he sold the same long after attaining 21 years of age.
PLAINTIFFS’
VERSIONS:
[10]
In support of their respective cases the plaintiffs testified under
oath and adduced the evidence of one expert witness as
follows:
10.1
Jürgen
Reiner Becker:
He is an industrial psychologist by profession and consulted with the
first plaintiff to investigate the accident and its sequelae
on her.
He found from,
inter
alia
,
the report prepared by Dr Olivier that the first plaintiff sustained
fairly
severe injuries that rendered her suitable only for sedentary work
requiring a very accommodative employer. Prior to
the collision
the first plaintiff worked at the family business. Expectations
were that she would earn in the region of R4500
per month in future
because, prior thereto, she was gainfully employed at R4200 per
month. She and her husband did not draw
any salaries from the
family business as at the date of the collision. The business
was, however, doing well and generated
around R30 000 per month
as net income. They lived well because the business provided
for them. She has 20% prospects
of securing such accommodative
sedentary employment in the current economic atmosphere. The hip
problems she is experiencing
requires
further medical intervention which,
as
pointed out in Doctor
Moagi’s
report, would further render it difficult for her to compete
favourably in the open labour market.
10.2
Estelle
Labuschagne
:
Prior to joining the family business she was employed by a security
company as an administrator earning R4200 per month.
She and
the deceased agreed to start a business and she secured a personal
loan in the amount of R50 000 as capital for starting
the
business in question. Although nothing was put on paper she was
a partner in the business with the deceased doing further
private
work to augment the income generated by the business. The
expectation was for her to eventually earn in the region
of R4500
per
month.
The income from the business and the deceased’s private
projects ensured that they lived well at home.
The business
generated net income of about R30 000 per month and carried a
lot, if not all, of their expenses. After
the collision Absa
bank informed her that the deceased had left a will bequeathing the
whole of his estate to his first wife, as
the survivor, and the
business, thus, went to her. The deceased’s first wife, in
turn, passed the business over to the second
plaintiff as her son.
Since the collision she applied, without any success, for suitable
work on three occasions.
She tried to resume work at the
family business after the collision but could not manage as she could
not carry the stuff she used
to handle in the past. She and the
deceased never discussed the shares in the business but she believed
that she was entitled
to half of the business.
10.3
Renier
Labuschagne:
He is currently 24 years of age and is
employed as a teacher in Mokopane. He was in matric in
2009 when the deceased
met his untimely death. He was supposed
to go to university in 2010 to study Electrical Engineering and had
successfully
applied for admission at the University of Pretoria and
the University of North West, Potchefstroom
campus.
The deceased, as his father, was to pay for his
university education and was in the process of actually doing so
insofar as he
had already paid the irrefundable application fee. He
was familiar with the family business because he used to assist the
deceased
thereat. After the collision he took over the family
business and used to take first plaintiff to the business to work but
it did
not work out. He actually got frustrated with the first
plaintiff because she could not pull her weight at the business
following
the accident.
The
business was doing well particularly in 2010 as a result of the FIFA
World Cup tournament. Business was good to the extent that
he even
decided to pay himself R7000 per month. The net income was more
than R30 000 per month. Business was,
however, not doing
so well when he sold it in 2014. He could not handle business
and his studies at the same time.
He is currently
studying towards B Ed degree.
CONTENTIONS
FOR AND ON BEHALF OF THE PARTIES:
Defendant
closed its case without leading any oral evidence and only submitted
argument on the evidence before the court.
THE
PLAINTIFF PARTIES’ SUBMISSIONS:
[11]
Mr
de
la Rey
for
the plaintiff parties submits to,
inter
alia
,
the effect that it is clear from available evidence that the first
plaintiff would have been able to command R4200 per month were
it not
for the collision. In his view it is further patent from
evidence that the deceased was able to support the plaintiffs
and
would have continued to do so but for the accident. The
plaintiffs needed the relevant financial support from the deceased
who was both legally bound and able to provide the same.
[12]
The first plaintiff is entitled to compensation for loss of income as
well as loss of support as set out in the actuarial reports
handed in
as evidence
per
agreement
between the parties. The fact that she was a partner in the
family business does not serve to defeat her claims
and can, in an
appropriate case, only affect applicable contingencies. Second
plaintiff’s claim for loss of support
should also be allowed in
accordance with the said actuarial reports. He, further, reminds the
court that it enjoys a wide discretion
on the issues involved and is
not bound by actuarial calculations although they are more than
informed estimates.
THE
DEFENDANT’S CONTENTIONS:
[13]
On behalf of the defendant Mr Sander submits that the plaintiff
parties failed to prove their respective claims insofar as
the
essence of a claim for loss of income is to remunerate the plaintiff
for the loss of income capacity while for a claim for
loss of support
to succeed, the plaintiff must establish the need for support, among
others. A claim for future loss of income
lies when a plaintiff
is unable to generate income in future due to bodily injuries.
In this regard he laments the fact that
Dr Becker testified before
the first plaintiff
per
agreement between the parties and, as such, could not be afforded an
opportunity to comment and express an opinion on her evidence.
[14]
The first plaintiff, as a co-owner of the family business, could
still generate income from the business which exceeds her
claim by
far. She, however, elected to surrender her share in the business.
Her claim for loss of support suffers the same
fate as a co-owner of
the business. The second defendant suffered no loss of support
because he acquired the family business
and generated good income
therefrom. He is presently employed and studying towards a
degree with financial assistance from
his employer.
[15] According to the
defendant the claims should be dismissed alternatively, the first
plaintiff’s claim should be subjected
to at least 30% to 35%
contingency deductions.
RELEVANT
LEGAL PRINCIPLES:
[16]
The court retains wide discretion in the assessment of damages
based on loss of income and support which cannot,
in
general, be assessed with any degree of mathematical accuracy.
(See
AA
Mutual Insurance Association Ltd v Maqula
1978 (1) SA 805
(A)).
[17]
It is true that the court is obliged, as of duty, to assess damages
and award compensation if it is certain that pecuniary
damages have
been suffered. (See
Hersman
v Shapiro and Company
1926 TPD 367
at 379).
[18]
In a claim for loss of support the remedy relates to material loss
and seeks to place dependants of the deceased bread-winner
“
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.”
(
See
Legal
Insurance Company Ltd v Botes
1963(1)
SA 608 (A) 614E-F)
As
a general principle a dependant plaintiff must prove material loss
caused by the death of the benefactor in order to be awarded
damages
for loss of support. Such material loss can only be ascertained
“
by
balancing, on the one hand, the loss to him of the future pecuniary
benefit, and, on the other, any pecuniary advantage which
from
whatever source, comes to him by reason of the death”
.
(See
Indrani
& Ano. v African Guarantee & Indemnity Co.
1968(4)
SA 606 (D&C) 607G-H and
Hulley
v Cox
1923 AD 234
at 243)
[19]
Contingencies, negative or positive, are an important control
mechanism to adjust the loss suffered to the circumstances of
the
individual case in order to achieve equity and fairness to the
parties. There exists no hard and fast rule regarding
contingency allowances. A dependant’s post-death earnings are
not deductible in the determination of his claim for loss of
support
unless they are consequent upon the death of the benefactor in the
sense that there exists a direct or causal connection
between such
earnings and such death. (See
Peri
– Urban Areas Health Board v Munarin
1965(3) SA 367 (A) at 376A- D and
Gwaxula
v RAF
[2013] ZAGPJHC 240 para [25]).
[20]
It is imperative, in a claim for loss of support, for the claimant to
establish the need for support as well as the fact that
the person
from whom support is sought both bears a legal duty to provide the
same and is, in fact, able to so. (See
Senior
NO v National Employers General Insurance Co Ltd
1989 (2) SA 136
(W) at 139D-F).
[21]
In
Lambrakis
v Santam
2002(3)
SA 710 (A)
para
[12]
the court found that
“
The
measure of damages for loss of support is, usually, the difference
between the position of the dependant as a result of the
loss of
support and the position he or she could reasonably have expected to
be had the deceased not died. …The particular
equities
of the case must also be taken into account and an adjustment be made
if appropriate. … Thus an addition to a dependant’s
income, arising from the death of the deceased must be deducted from
the total amount of the loss.”
[22]
The
defendant gets absolved from the instance if upon an evaluation of
the evidence as a whole, the plaintiff’s onus of proof
has not
been discharged because the plaintiff has not proved his claim
against the defendant. It is not a bar to the plaintiff
reinstituting the action in so far as it has not prescribed. As
opposed to a positive finding that no claim exists against
the
defendant “
it
is the appropriate order when after all the evidence the plaintiff
has failed to discharge the normal burden of proof
”.
(See
PRINCIPLES
OF EVIDENCE
Revised 3
rd
Edition, P J Schwikkard and S E Van der Merwe, at Chapter 32, page
578.)
APPLICATION
OF LEGAL PRINCIPLES AND FINDINGS
AD
CASE NO 4904/2014
[23]
Plaintiffs submitted actuarial reports in evidence as well as reports
by the industrial psychologist Dr Becker in support of
their claims.
It is however patent from such reports that the experts involved
relied on the information at their disposal
in compiling the relevant
reports and expressing the relevant opinions. The reports are,
as such, as correct as the information
on which they based. The
reports attribute the R30 000 monthly net income of the family
business to the deceased and calculate
loss of support for each
plaintiff on that basis.
[24]
The first plaintiff’s evidence in court differs substantially
from the information given to Dr Becker insofar as it is
clear
therefrom that she, as the claimant, was the co-owner of the family
business from which the income which supported the whole
family
inclusive of herself was derived. It is, further, apparent from both
her evidence and that of the second plaintiff that
the business in
question was doing well insofar as it was generating at least
R30 000 per month as net income
at the time of the
accident and thereafter.
[25]
It is, further, not in dispute that following the death of the
deceased the second plaintiff took over the family business
and
continued trading until 2014 when he sold the same. He derived
good revenue therefrom and tried to accommodate the first
plaintiff
thereat without success.
[26]
The question in the instant matter as far as the second plaintiff’s
claim is concerned is whether or not he needed the
relevant support
or suffered material loss as a result of the death of his deceased
father. It is not in dispute that he
was dependent on the
deceased in the amount set out in the actuarial reports at the time
of the deceased’s death. It is,
further, true that the deceased
supported him, as his father. It is furthermore patent from
undisputed evidence that he did not
acquire the business directly
from the deceased’s estate as an inheritance and, as such, it
cannot
prima
facie
be
regarded as an accelerated benefit to him flowing directly from the
death of the deceased. He, therefore, suffered material
loss as
a result of the deceased’s death. In my view his income from
the business cannot be taken into account when determining
his claim
because, but for the death of his father, he would not have worked.
There exists no direct or causal connection between
such earnings and
the death of the deceased insofar as same are
“
the
product of [his] own exertion in keeping the business going
.”
The
preceding notwithstanding the fact that such death made it possible
for him to assume control of the business and to virtually
step into
the deceased’s shoes immediately after the latter’s
demise (See
Nochomowitz
v Santam Insurance Co. Ltd
1972(1)
SA 718 (T) at 727G-H).
[27]
The first plaintiff’s position, as at the time of the collision
and thereafter, is clear from her oral evidence.
The income
attributed to the deceased in the actuarial reports was actually
their joint income as co-owners of the family business.
They
made joined decisions in the business and the business bank account
was in their names jointly. She kept the bank card
and the
deceased had to come to her whenever he needed money. She
advanced the R50 000 capital amount which started
the business
and, although they never discussed the shares in the business, she
believes and the facts suggest that she owned half
of the business.
The deceased was under administration and the accounts were in her
name. She would have been liable
for business debts. They
pooled their resources together to start the business as partners.
The business never stopped
trading as a result of the accident and
continued to generate net income of at least R30 000 per month
until it was sold in
2014.
[28]
At the time of the collision the first plaintiff was, in effect,
earning income from the business as a partner insofar as the
business, not the deceased, provided for her and her earning capacity
in that regard was, as such,
stricto
senso
not
injured.
It is not apparent from available evidence that the deceased
supported her, in addition to her share of the proceeds from
business, and, if he did, to what extent. The onus is on her to prove
the same and, in my judgment, she has not.
AD
CASE NUMBER 4905/2014
[29]
First plaintiff, as the sole plaintiff in this matter, claims past
and future loss of income in the total amount of R2 212
848.00
as per Mr de la Rey’s submissions supported by actuarial
reports. Mr Sander, for the defendant, contends that
the claims
should either be dismissed or reduced substantially in the light of
the plaintiff’s
viva
voce
evidence
as corroborated by second plaintiff.
[30]
As pointed out with regard to the claim under case no. 4904/2014, the
actuarial calculations in the instant claim are not based
on the
first plaintiff’s earning capacity, as the co-owner of the
income-generating family business, at the date of the accident.
In my
judgment she did not, on her own evidence, sustain any loss of income
as a result of the collision insofar as her earning
capacity in that
regard was not affected thereby. If she suffered any such loss, same
was the result of either the transfer of
the business to the second
plaintiff or the sale thereof by him. It was for her to enforce her
rights in that regard. The defendant,
however, conceded 100%
liability for her damages for loss of income on the basis of,
inter
alia,
the reports of Drs Olivier and Becker. The onus on her in this regard
is, thus, limited to proof of the amount of her damages.
In my
judgment the reports in question, inclusive of the actuarial reports,
are relevant to the period after the sale of the business,
which was
no longer performing well, in 2014. She has, however, not discharged
the burden resting on her as far as part of her
claim for past loss
of earnings is concerned. After the business was sold she
would, most probably, have reverted to her
pre-entrepreneurial
position for a living but for the collision which left her suitable
only for sedentary work at the mercy of
a very accommodating
employer.
[31]
She, therefore, suffered loss of income from and including 2014
with the result that available actuarial
calculations need to be
adjusted accordingly in respect of past loss of income. I am,
further, persuaded by the facts in the instant
matter that fairness
places applicable contingency deductions for past and future loss of
income at 5% and 20% respectively. The
exact date on which the
business was sold is not before the court. For the sake of finality
and fairness to the plaintiff I accept
that the sale took place at
the very beginning of 2014. In the result R311 927.00 relative
to the years from 2010 to and including
2013 must be deducted from
her past loss of earnings as per actuarial reports.
COSTS
[32]
The general principle with regard to costs is that the successful
party is entitled to its costs in that same follow the event
unless
cause exists for holding otherwise. I am persuaded by the
circumstances in the instant matter that fairness dictates
that:
32.1
recognition be taken of the fact that defendant conceded
merits and effectively accepted liability for 100% of
first
plaintiff’s proved or agreed damages for loss of support, among
others. The first plaintiff was, as such, in law and
equity entitled
to approach the court to prove quantum of her damages in the absence
of agreement on the same;
32.2
no order as to costs be made against the first
plaintiff.
ORDER
[33]
In consequence defendant shall pay the plaintiff under case number
4905/2014 the capital amount of R1 900 921.00
(one million
nine hundred thousand and nine hundred and twenty one rand) for loss
of income.
[34]
Defendant shall, further, provide plaintiff under case number
4905/2014 with an undertaking in terms of section 17(4) (a) of
the
Road Accident Fund Act No 56/1996 to compensate her 100% for the
costs of future accommodation in hospital or nursing home
or
treatment of or rendering of a service or supplying goods to her,
arising out of the injuries sustained in a motor vehicle collision
on
26 December 2009.
[35]
An order of absolution from the instance is granted in favour of the
defendant in respect of first plaintiff’s claim
for loss of
support under case number 4904/2014 with no order as to costs.
[36]
Defendant shall pay the capital amount of R238 927.00 (two hundred
and thirty eight thousand and nine hundred and twenty seven
rand) to
the second plaintiff under case no. 4904/2014 for loss of support.
[37]
The total of the capital sums in paragraphs [33] and [36] above shall
be paid within 14 days of date hereof, after which interest
shall
accrue thereon at the rate of 10,25% per annum.
[38]
Defendant shall, further, pay plaintiffs’ costs in both matters
on the High Court scale as between party and party, as
taxed or
agreed, including but not limited to the following:
(i)
all
costs attendant upon the obtaining of payment of the total capital
amounts;
(ii)
counsel’s
fees;
(iii)
the
reasonable travelling and accommodation fees of second plaintiff’s
legal representatives;
(iv)
the
qualifying fees and all reasonable and necessary fees and
disbursements of expert witnesses referred to herein below. It is
recorded that it shall be in the discretion of the Taxing Master to
determine whether the experts are entitled to be compensated
for
reasonable and necessary traveling expenses:
(a)
Dr
P A Olivier [Orthopaedic surgeon];
(b)
Dr
J Becker [Industrial Psychologist];
(c)
Quantum
Actuarial Services CC [Actuaries].
[39]
Payment of the taxed or agreed costs shall be effected within 14 days
of date of agreement or taxation, after which the agreed
or taxed
costs shall accrue interest at the rate of 10.25% per annum.
[40]
In the event of costs not being agreed, second plaintiff shall serve
the notice of taxation on defendant’s attorneys
of record.
[41]
Payment of capital amounts as well as party and party costs shall be
made to plaintiffs’ attorneys of record by means
of electronic
transfer of funds to the account specified hereunder:
Name
of account : Madeleyn Inc.
Name
of bank : ABSA
Branch
: Santyger
Branch
code : 632005
Account
No :
[........]
____________
LJ
LEKALE, J
On behalf of plaintiffs:
Adv. H E de la Rey
Instructed
by:
Symington
& De Kok
Bloemfontein
On behalf of defendant:
Adv. A Sander
Instructed
by:
Maduba
Attorneys
Bloemfontein
/PK