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[2016] ZAGPPHC 431
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Lategan v Road Accident Fund (29505/2015) [2016] ZAGPPHC 431 (10 June 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO.: 29505/2015
10/6/2016
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
A J LATEGAN obo
F Plaintiff
and
THE ROAD ACCIDENT
FUND Defendant
JUDGMENT
VAN DER WESTHUIZEN, A J
1. This matter concerns a
claim for loss of support and loss of earnings againstthe Road
Accident Fund.
2. The plaintiff claims
in his personal capacity and in his representative capacity as father
and natural guardian of his minor
son.
3. The claim allegedly
arose due to the untimely death of his wife and mother of the minor
child as a result of the injuries she
sustained in a collision that
occurred on 17 September 2013.
4. The defendant has
conceded the issue of negligence. The issues that remain relate to
whether the defendant is liable in terms
of the provisions of section
17(1)(a) of the Road Accident Fund Act, 56 of 1996 (the Act), for
loss suffered by the plaintiff and
the minor child and if so, the
quantum of such loss.
5. The only issue argued
before me related to the alleged liability of the defendant for loss
suffered. In this regard the plaintiff
seeks a declarator that:
"As a
result of
the death of the deceased Louisa Sherman Lategan the defendant is
liable to compensate both the minor Francois Lategan
for loss of
support and the plaintiff Albertus Jacobus Lategan for loss of
income."
6.
The
context in which the word
"liable"
is
used in the passage quoted above is important. In that context the
word
"liable"
is
to be ascribed the meaning relating to the existence and the
assessment or determination of the extent of the damages as
applicable
under the common law.
[1]
It does not bear the meaning of
culpa
under
the common law.
7. Ms Vorster, assisted
by Mr. Geach SC, appeared on behalf of the plaintiff and Mr. Thompson
on behalf of the Fund. Ms Vorster
presented the argument on behalf of
the plaintiff.
8. No evidence was led by
either party and counsel were content to argue the matter on the
facts agreed between the parties that
were contained in their
respective heads of argument and in the report of the Industrial
Psychologist, Ms Kotze.
9. The relevant facts
applicable can be summarised as follows:
(a)
The plaintiff and the
deceased were married at the time of the collision. They had one
minor child, Francois, who was 12 years of
age at the time of the
collision;
(b)
The plaintiff had secured
employment with Cater Care at the end of 2012 in Australia for a 4
year contract and at the time of the
collision he was so employed;
(c)
The deceased together with
the minor child remained in South Africa and she took care of and
supported him. At the time of the collision,
she was unemployed and
did not contribute to the financial needs of the minor child or that
of the plaintiff;
(d)
It was intended that the
deceased and the minor child would, at the end of 2013 join the
plaintiff in Australia. The deceased would
there continue supporting
and caring for the minor child as she had done in the Republic. She
would not have taken up any employment
in Australia;
(e)
Plaintiff alleges that he
had no family or any support system in Australia and as a result of
the death of his wife, he resigned
his position with Cater Care and
returned to the Republic to take care of the minor child;
(f)
Due to the age of the
plaintiff (he was 55 years of age at the time of the collision) he is
unable to secure employment in the Republic
and remains unemployed.
10. In the Particulars of
Claim the following is alleged in respect of the respective claims:
"7.
On the
date of the aforesaid collision the deceased:
7.1 Was the mother of
the Minor child;
7.2 Was the wife of
the Plaintiff;
7.3
Had
a
duty to support the Plaintiff and the Minor child;
7.4
Complied with the aforesaid duty to support the Plaintiff and the
Minor child from her earnings;
8. As
a
result
of the aforegoing, the Plaintiff in his aforesaid capacity suffered
damages in the estimated amount of R4 154 055.00 made
up as follows:
8.1.1
Past and future loss of support (estimated) R 4000.00
8.1.2
Loss of income R3 754 005.00"
11. It is clear from the
above allegations that the minor child's claim is premised upon the
deceased's duty to support the minor
child from her earnings.
12. It is common cause
that the deceased did not support the minor child financially. In
that regard the minor child was 100% dependent
on his father, the
plaintiff. It being further common cause that the deceased was
unemployed at the time of the collision and that
the plaintiff
supported the deceased and the minor child financially, he being the
breadwinner.
13. It follows that the
minor child does not have a claim for loss of financial support
against the defendant as a result of his
mother's untimely death due
to the collision.
14. In her heads of
argument on behalf of the plaintiff, Ms Vorster submits that the
claim is one for loss of support on behalf
of the minor child as well
as loss of income on behalf of the plaintiff himself, being damages
arising out of the collision and
the resultant death of his wife. She
further submits that both claims represent patrimonial damages.
15. Ms Vorster, in her
argument before court and in her heads of argument, defines the issue
to be decided as:
"Can the Road
Accident Fund
(the defendant)
escape liability in the
circumstances
as
set out above, taking into account the
wording of
Section 17
of the
Road Accident Fund Act, No. 56 of 1996
(hereinafter referred to
as
"the Act')
16. Counsel for the
plaintiff premised her submissions primarily on the wording of
section 17(1)(a)
of the Act and with particular emphasis on the words
"for any loss or damage which the third party has suffered".
17. Ms Vorster submitted
that the words
"any loss or damage"
should be
interpreted broadly. In this regard she relied upon the judgment in
Pithey v Road Accident Fund
2014(4) SA 112 (SCA) and in
particular referred to paragraph [18] of that judgment where the
following is said:
"I pause to say
something about the primary purpose and objectives of the Act. It has
long been recognised in judgments of
this and other courts that the
Act and its predecessors represent 'social legislation aimed
at the widest possible
protection and compensation against
loss and damages for the negligent driving of
a
motor
vehicle'.
5
Accordingly, in interpreting the provisions of the
Act, courts are enjoined to bear this factor
uppermost in
their minds and to give effect to the laudable objectives of the Act.
But,
as
the full court correctly pointed out, the Fund, which
relies entirely on the fiscus for its funding, should be protected
against
illegitimate and fraudulent claims."
18. It will be noted that
the aforesaid passage referring to the granting of the widest
protection and compensation is subject to
a qualification, that the
fiscus
should be protected against illegitimate and fraudulent
claims.
19. In the context that
the word
"illegitimate"
is used in the above quoted
passage, it simply means that a claim that has no foundation in law
cannot be entertained.
20. The object of the Act
is to be found in
section 3
of the Act where it is stated that,
"The object of
the Fund shall be the payment of compensation in accordance with this
Act for loss or damage wrongfully caused
by the driving of motor
vehicles."
21.
The
wrongfulness of the conduct is determined in terms of the common law,
and in particular in terms of the
Lex
Aquilia
as
extended.
[2]
22.
It was
repeated in
Road
Accident Fund v Krawa
[3]
that
the right of a claimant to demand assistance was a right of property,
the depravation of which by the
culpa
of the
actor
would
quite naturally found a claim for patrimonial damages and the failure
to prove the existence of a legal duty of support, would
therefor
mean that there has not been an infringement of any of the property
rights of the plaintiff.
[4]
23. In the
Krawa-
matter, the liability of the Fund to compensate is explained as
follows:
"The object of
the Act, like that of its predecessors, is to effectively cause the
delictual remedies which exist at common
law to be available against
the Fund to the exclusion of the actual wrongdoer. The liability of
the Fund to compensate, and
the concomitant right of the
claimant (the third party) to claim compensation arises, not by
reason of any wrongful act or omission
on the part of the Fund, but
only by reason of its statutory obligation to indemnify the third
party, provided the
requirements of
s
17(1)
of the Act
have been complied with. On
a
reading of
s
17(1)
,
those requirements would, in the context of plaintiffs claim in the
present matter be the following: (a) that the plaintiff has
suffered
loss or damage
as a
result of the death of
the
deceased; (b) that the death of the deceased was caused by or arose
from the driving of
a
motor vehicle, and (c) that her death
was due to the negligence or other wrongful act of the
driver
of the motor vehicle or of his or her employee in the performance of
the employee's duties
as
employee."
24. The court went on to
say that,
"Although the
liability of the Fund arises from statute, its liability is not wider
than the common-law liability of the driver
or the owner of the
vehicle would have been."
[5]
25. A determination of
(a) in the quoted passage would entail an enquiry as to whether there
in fact was a loss or damage suffered.
26. It follows that the
words
"any loss or damage"
in
section 17(1)(a)
of
the Act cannot be interpreted beyond what is said above. The
aforesaid submission by Counsel for the plaintiff accordingly has
no
merit for what follows.
27. On behalf of the
plaintiff it is further submitted that the present claims are not
"illegitimate or fraudulent".
I have dealt with the
concept
"illegitimate"
above.
28. I have already dealt
with the claim on behalf of the minor child directed at pecuniary
compensation in respect of the duty upon
the deceased to support the
minor child financially. There has been no depravation of financial
assistance from the deceased.
29. In essence the
plaintiffs claim in his personal capacity and in his capacity of
father and natural guardian of the minor child
is one for loss of
income suffered by the plaintiff personally. As a result of his
wife's death due to the collision, he resigned
his position with
Cater Care in Australia and returned to the Republic to take care of
the minor child. Due to his resignation,
he suffered loss of
earnings. He is unable to financially support the minor child in the
manner the child enjoyed pre-morbid.
30. In this regard,
pre-morbid, the minor child was 100% dependant upon his father, the
plaintiff. The minor child post-morbid remains
100% dependant upon
the plaintiff. The minor child's dependency upon the plaintiff arises
from the legal duty upon the plaintiff
to support his minor child.
Such claim for support from his father is
ex /ege.
It does not
found a claim in terms of
section 17(1)(a)
of the Act against the
defendant for loss of support.
31. It is common cause
that the deceased did not contribute financially to the needs of the
plaintiff. She was unemployed at the
time of the collision. The
plaintiff was the breadwinner. Any support that she may have rendered
towards the plaintiff would be
care giving and other non-financial
support in respect of the minor child. The deceased did not support
the plaintiff financially
and he was not financially dependent upon
the deceased.
32. In this regard,
counsel for the plaintiff relied upon the
Wameke
judgment.
That reliance is misplaced.
33.
The
Wameke-
judgment
dealt with the circumstances where a father is obliged to increase
his expenditure due to the death of his wife as a result
of the
accident, to enable him to provide the non-financial support the
mother accorded the minor child. If there were such increase
of
expenditure, such would constitute patrimonial loss for which
compensation could be claimed.
[6]
At most, the court in the
Wameke-
matter
extended the common law to include a claim where a father is
compelled to increase his expenditures to provide the non
financial support the deceased provided to the minor child.
34. It is clear from the
particulars of claim that the plaintiff does not claim for an
increase in his expenditure to provide the
support in respect of the
minor child as described in the
Warneke-
matter. Plaintiffs
claim is simply for his personal loss of income.
35.
It follows
from the judgments in
Warneke
and
Krawa
supra,
that
absent a legal duty to support, which is dependent upon the facts
supporting such legal duty, there is no infringement of any
of the
property rights of the plaintiff forming part of his or her patrimony
and consequently the plaintiff s patrimony could not
have been
reduced.
[7]
36.
In casu,
the
plaintiff s claim for his person loss of income is premised upon his
resignation from Cater Care to enable him to return to
the Republic
to take care of his minor child.
37. The reason offered
for his decision to resign, relates to the absence of support from
family or friends in Australia to assist
in taking care of the minor
child, should the minor child join the plaintiff there. There is no
evidence that the plaintiff could
not arrange for other assistance in
Australia in that regard, neither in respect of assistance from
family or friends in the Republic,
which would allow him to continue
his employment with Cater Care.
38. The position he finds
himself in, is solely due to his voluntary decision to resign and
return to South Africa. He remains able
to obtain employment. This
much appears from the report by Ms Kotze. The plaintiff s earning
capacity has not diminished. He was
not financially dependent upon
the deceased.
39.
The
plaintiff s claim as formulated in the particulars of claim does not
fall within any of the acknowledged legal rights that would
entitle
him to claim patrimonial compensation from the defendant. To endorse
such claim in the present matter would require an
extension of the
principles of the
Lex
Aquilia
as
had occurred in the Warneke-matter and in
Du
Plessis v Road Accident Fund.
[8]
In both
those matters the principle was extended in respect of claims of loss
of support where such legal duty existed.
40. The aforesaid
judgments do not set a principle for extending the scope of the
liability where no legal duty to support exists.
41. It follows that the
scope of the words
"any loss or damage"
cannot be
interpreted to include a claim as formulated in the present matter.
42. Consequently it
follows that the declarator prayed for cannot be granted.
I grant the following
order.
1. The declarator is
refused.
2. The plaintiff is
ordered to pay the defendant's costs in respect of the declarator
sought.
_______________________________
C J VAN DER WESTHUIZEN
ACTING JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
On behalf of
Plaintiff: B
P Geach SC
A Vorster
Instructed
by: Van
Niekerk Attorneys
On behalf of
Defendant:
A Thompson
Instructed
by: Pule
Inc.
[1]
Road
Accident Fund v Krawa
2012(2) SA 346 (ECG) at par (21)
[2]
Union
Government (Minister of Railways and Harbours) v Warneke
1911 AD 657
at 664 - 665
[3]
2012(2) SA 346 (ECD)
[4]
At par [45] - [46]
[5]
At par [20]; cf. par [21], [36] - [40]
[6]
At pp. 662 – 663.
[7]
Krawa
,
supra, at par [44]- [46]
[8]
2004(1) SA 359 (SCA)