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[2015] ZAGPPHC 160
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H.C.V obo E.V and Another v Road Accident Fund (8762/13) [2015] ZAGPPHC 160 (27 March 2015)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
CASE NUMBER: 8762/13
DATE: 27 MARCH 2015
In the matter
between:
H[...]
C[...] V[...] obo E[...]
V[...] AND C[...]
V[...]
…...............................................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
....................................................................................................
DEFENDANTS
JUDGMENT
WINDELL J:
Introduction
[1]
This is a claim for loss of services. The plaintiff lost his wife
(hereinafter
referred to as the deceased)
in
a motor vehicle accident on 25 September 2011. The
plaintiff
sues
in his capacity as husband and natural guardian of two minor
children, E[...] (6 years) and C[...] (15 years).
[2] The merits were
conceded in favour of the plaintiff and the matter only proceeded on
the issue of quantum.
[3] It is common
cause that the deceased, during her lifetime, was a housewife that
took care of the housekeeping duties and looked
after the minor
children while the plaintiff worked. It is not disputed that the
minor children need to be taken care of during
the day and that the
plaintiff had to appoint a nanny/housekeeper to render the services
previously rendered by his wife. The defendant,
however, disputes
that the plaintiff incurred the costs and submitted that the
plaintiffs evidence alone, without supporting documents,
are not
sufficient to prove the claim.
[4] The plaintiff
was the sole witness in the case. He testified that he appointed a
lady by the name of Sophie as housekeeper and
nanny shortly after his
wife passed away. He paid for her services in cash and did not keep
any receipts or record of the payments.
She left his employment in
February 2012 whereafter he employed a lady by the name of Martha in
the same position. He did not keep
any records and is unable to
produce documentary proof of the expenses. She left his employment in
May 2014. The plaintiff then
appointed Josephine. She is still in his
employment and he currently pays her R 4600 per month. He has
compiled a spreadsheet of
the expenses he incurred until December
2014. The total of his past expenses are R 153 227.
[5] Plaintiff was a
reliable witness. There were no discrepancies in his testimony and no
improbabilities. In the circumstances
of this case it did not matter
that he did not have any documentary proof. He gave direct evidence
to what his expenses were. He
also acquired a quotation from an
institution called Apples Au pairs, who indicated that that an au
pair would cost the plaintiff
R 5600 per month. The amount he is
claiming is far less. I accept that the plaintiff will need a
housekeeper until the youngest
child E[...] reaches the age of
majority, which will be another 12 years. I am satisfied that the
plaintiff suffered a loss as
a result of the accident.
[6] The services
lost must be converted into a lump sum. In the assessment, the period
during which the services were likely to
be rendered as well as the
monetary value of the services has to be determined. The amount thus
obtained must then either be increased
or reduced to account for
contingencies. The assessment is thus similar to that of loss of
maintenance.
[7] In the absence
of any actuarial calculation, the future loss was calculated at the
current amount paid monthly (R 4600) multiplied
by 12 months, which
amount was multiplied by 11 years 9 months (the amount of years until
the youngest child reaches the age of
18 years). This amounts to a
future loss of R 648 600.
[8] In calculating
the plaintifFs future loss no consideration was given to the annual
increase of the housekeeper’s salaiy,
neither was the influence
of inflation taken into account. On the other hand, plaintiff will
receive the amount upfront before
he incurred the costs and no
capitalization of the figure was accounted for either.
General
Contingencies
[9]
Contingencies must be applied to the future loss. In
Seme
v RAF
2008 JOL 22068
D in par [51]
Tshabala
JP (as he then was) in dealing with contingencies said the following:
“
Determining
what contingencies to take into account is by its very nature a
process of subjective impression rather than objective
calculation.
It is a matter that falls within the discretion of the court, which
will determine an amount that it considers to
be right rather than
being tied down by inexorable actuarial calculations. However, the
courts are mindful of the fact that the
process involves pondering
the improbable and primarily encompasses educated guesswork in which
the court makes assumptions which
cannot be proved. ”
[10]
In
Cooke v Cooke
NO v Maxwell 1942 SR 133
the
plaintiff sued for damages for the loss of his wife’s services
in the care, clothing and upbringing of their child. The
Court
decided that the loss to the plaintiff was the amount which he would
have to pay to replace his wife’s services. The
court took into
account the factors that, as he grew older, the child might require
less attention and that the plaintiff might
possibly remarry.
Prospects of
remarriage
[11]
The plaintiff was bom on 4 September 1971 and is currently 44 years
old. In terms of the Remarriage Deductions Table of
Koch,
The Quantum Yearbook, 2012, page 100,
remarriage
deduction applicable to a white male aged 44 is a percentage of 22%.
I agree with counsel for plaintiffs contention that
although the
plaintiff might remarry, this does not necessarily mean that his new
wife will also look after the children as his
previous wife did, and
the probability that a housekeeper will remain necessary, is still
very high. There would also be no legal
duty on a prospective new
wife to take care of the minor children. Re-marriage contingencies
are also applied to loss of support
over a spouse’s lifetime
rather than the loss of services for the duration of the child’s
dependence as is the case
here.
Life
expectancy of the youngest child
[12] The plaintiff
testified that the youngest child is currently 6 years old. No
evidence was given relating the youngest child’s
health
condition, or to any medical conditions he may have at present, and
as such it can be assumed that he has a normal life
expectancy which
will be way in excess of 18 years old.
[13]
According to the tables contained in
Koch
as
referred to
supra,
and
specifically Table 2 (white census data (1985)), the number of males
alive at age 6 is reflected as 98491, and the number of
males alive
at age 18 is reflected at 97841. As such, the percentage difference
from age 6 to age 18 is 0.99%, which is the percentage
chance of the
youngest child dying before he reaches the age of 18 years old.
[14] Taking into
consideration all the factors applicable to this case a contingency
of 5% is applied to the future loss.
[15] In the result,
the following order is made:
(a) The defendant is
ordered to pay the plaintiff the sum of R 761 735.65 for loss of
services.
(b) The defendant
shall pay the plaintiff interest on the aforesaid sums at the rate of
15,5 per cent per annum calculated from
a date 14 days from the date
of this order;
(c)
Costs of suit
L
WINDELL
JUDGE OF THE HIGH
COURT
Attorney for
plaintiff: Munro, Flowers & Vermaak
Counsel for
appellants: Adv L. Keijser
Attorney for
respondent: Kekana Hlatswayo Radebe Inc.
Counsel for
respondent: Adv. D.E Westebaar
Date matter heard :
20 February 2015
Judgment date: 27
March 2015