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[2013] ZANCHC 47
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S.M.M v Road Accident Fund (799/2011) [2013] ZANCHC 47 (24 July 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
CASE
NR : 799/2011
DATE:
24 JULY 2013
S.
M.
M.
PLAINTIFF
AND
THE
ROAD ACCIDENT
FUND
DEFENDANT
DATE
HEARED: 25; 26; APRIL 2013 & 02 MAY 2013
DATE
DELIVERED: 24 JULY 2013
JUDGMENT
PHATSHOANE
J
1.
Mr D. J. P. M., the deceased, died in a motor vehicle collision on 28
September 2010 at the age of 36. This gave rise to a claim
for
damages for loss of support in the amount of R4 083 978.75 by Ms S.
M. M., the plaintiff, in her personal capacity as the widow
and in
her representative capacity as the mother and natural guardian of her
two minor children, S and R M, against the Road Accident
Fund (RAF),
the defendant. The merits and quantum were separated in terms of Rule
33(4). The only issue to be determined is the
quantum of damages as
the defendant has conceded liability for 100% of such damages that
the plaintiff is able to proof.
2.
The plaintiff, now aged 39, was married in community of property to
the deceased for 13 years when he died. S and R were born
of this
marriage on 19 May 2001 and 06 June 2006, respectively. S is
disabled.
3.
The deceased worked at Black Rock Mine, Northern Cape Province, and
earned R34 932.67 per month (in 2010) from which the family
subsisted
as the plaintiff was unemployed at the time of the deceased’s
death. She commenced working a year later.
4.
It is in dispute whether there are accelerated benefits to be
deducted from the amount to be awarded to the plaintiff; whether
a
contingency should be factored in for the plaintiff’s possible
remarriage; whether S has a normal life expectancy; whether
S should
receive two parts of the family income instead one part from the
deceased date of death; and lastly; whether the social
and disability
grants that the children will receive from date of the judgment
should not be deducted from the amount of damages.
5.
Mr Jethro, for the defendant, contended strenuously that the
apportionment of maintenance should be effected in accordance with
the common actuarial approach of two parts to each parent and one
part per child. To appreciate the dynamics it is important to
have
regard to the evidence adduced for the plaintiff. No evidence was led
on behalf of the defendant.
6.
Dr Wynand Johannes Herholdt is a paediatrician. He consulted S for
the first time when she was three years old during 2004. She
had just
started to experience convulsions. Her last visit to him was on 02
February 2012 when she was about 10 years old. S suffers
from spina
bifida, a congenital disorder with no cure. She has typical milestone
delays. She weighed 15kg as opposed to 22kg at
the age of 10 or 11.
She is in a state of paralysis. She cannot speak, walk, or sit
properly on a wheel chair. At times she must
lie down. She cannot
control her stools or urine and wears nappies. She also showed signs
of impaired intelligence. She is completely
dependent on others and
cannot be left alone in any given moment. Her condition is
irremediable. Her financial need is well above
that of a normal
child. She would not be able to work to earn an income. She will be
more sickly than normal. She will be prone
to lung and bladder
infections. She will need physiotherapy, anti-convulsion treatment
and occupational therapy permanently.
7.
The plaintiff testified that S cannot chew and lives on a liquidized
diet. A special machine was bought for this purpose. The
plaintiff
pays R250.00 for physiotherapy and the same amount for occupational
therapy per consultation which totals R2000.00 monthly.
She spends at
least R450.00 on her nappies monthly. She also spends money on her
wet wipes. She has to pay for S’s paediatric
visits and blood
tests every 6 months. A special new wheel chair has to be bought for
her which will cost at least R20 000.00.
S. expenses increases as she
grows.
8.
The plaintiff intimated that the deceased spent twice on S than on
the plaintiff and R. The same spending continues to this date.
She
employs a domestic worker to assist in preparing the children for
school. If S was not disabled it would not have been necessary
to
have a domestic worker who stays full time with the family. She is of
the view that her chances of remarriage are quite minimal
as she does
not have a social life. It is not everyman that would accept her with
a disabled child.
9.
R is a grade 1 learner. His school fee is about R600 monthly while S'
s remedial school fee is about R1 640 per month. R. is
doing well at
school and his prospects of furthering his studies after 18 years of
age are good.
10.
Mr Ian Walsh Morris, an actuary in the employ of Human & Morris
Actuaries, has 28 years of experience in this field. He
assessed the
value of the loss of support suffered by the plaintiff and her two
minor children. As at date of calculation, 28 April
2013, the
deceased would have earned R487 288 per annum. The increment was
assumed at 6% per annum from date of the accident to
date of the
calculation. He has also assumed that the deceased would have paid
tax according to the relevant tax tables which apply
to the relevant
tax year. From the date of calculation onwards the 2013/2014 tax
tables were applied to constant real income. He
had assumed that the
deceased would retire at the age of R65. He also assumed that R would
require parental support up to the age
of 18 years alternatively 21
years while S would require support for life. He used two scenarios
for the computation of the family
income. Scenario 1 assumes that the
pre-accident net family income would have been apportioned two parts
to each parent and one
part to each child deemed to be in receipt of
parental support. Scenario 2 assumes that the pre-accident net family
income would
have been apportioned two parts to each parent, two
parts to S and one part to R whilst deemed to be in receipt of
parental support.
The two calculations were premised on two
postulates, firstly on the understanding that R will be
self-sufficient at the age of
18 whereas the other calculation is
based on R being self- dependent at the age of 21.
11.
Mr Morris applied general contingency deductions of 7.5% to past and
10 % to future losses of support for the plaintiff and
R and a
deduction of 7.5% to past and 15% to future losses of support for S.
Remarriage contingencies in respect of the plaintiff
were ignored and
no contingencies had been applied to the state grants.
12.
Mr Morris was supplied with information in respect of the proceeds of
the insurance policies and pension. This cannot be brought
into the
reckoning in the acceleration of benefits.
13.
In arriving at his final figures of the loss of support he deducted
an amount of R40 322.25 from all figures in respect of the
care
dependency grant for S and child support grant for R, being the
payment received by the plaintiff from the South African Social
Security Agency (SASSA) as at 25 April 2013. This was the sum total
of the evidence presented to support the plaintiff’s
claims.
14.
The defendant filed a report of Munro Actuaries who applied the same
contingency percentages as Mr Morris for the past and future
loss of
support for the plaintiff and her two minor children. Mr Jethro, for
the defendant, contended that there is hardly any
disparity between
the reports of Munro Actuaries and that of Human& Morris. If this
is the case, it defies understanding how
the defendant would pursue
this matter to trial stage at such considerable costs.
15.
It is well settled that the compensation to which the plaintiff is
entitled is only for the material loss caused to him/her
by the
accident, and not for mental suffering or distress, or to improve
his/her material prospects. There can be no hard and fast
rules, and
a liberal discretion must necessarily lie with the Court to award
what, in the circumstances, it considers equitable.
But there are in
the authorities certain guiding considerations. See Hulley v Cox
1923
AD 234
;
Smart and Others v South African Railways and Harbours
1928
49 NPD 361.
In
Southern Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A)
at 116G-117A Nicholas JA held:
“
Where
the method of actuarial computation is adopted, it does not mean that
the trial Judge is "tied down by inexorable actuarial
calculations". He has "a large discretion to award what he
considers right" (per HOLMES JA in Legal Assurance Co
Ltd v
Botes
1963
(1) SA 608
(A)
at 614F). One of the elements in exercising that discretion is the
making of a discount for "contingencies"
or the
"vicissitudes of life". These include such matters as the
possibility that the plaintiff may in the result have
less than a
"normal" expectation of life; and that he may experience
periods of unemployment by reason of incapacity
due to illness or
accident, or to labour unrest or general economic conditions. The
amount of any discount may vary, depending
upon the circumstances of
the case. See Van der Plaats v South African Mutual Fire and General
Insurance Co Ltd
1980
(3) SA 105
(A)
at 114 - 5. The rate of the discount cannot of course be assessed on
any logical basis: the assessment must be largely
arbitrary and must
depend upon the trial Judge's impression of the case.”
16.
Mr Jethro contended that the plaintiff failed to declare all the
assets of the joint estate to the Master of the High Court.
The only
two assets declared were furniture to the value of R5000.00 and a
Mazda Drifter to the value of R100 000.00 and therefore
half of the
joint estate assets to the amount of R52 500.00 should be deducted.
Mr Morris contended that the vehicle and the furniture
cannot be
regarded as accelerated benefits which fall to be deducted. This is
because the plaintiff owned at least half of these
assets by virtue
of her marriage in community of property. In any event it is
impossible to divide a couch and a vehicle which
the plaintiff had
used before the deceased’s death.
I
am disinclined to allow this deduction. Quite apart from the fact
that the amount is negligible, the evidence revealed that the
plaintiff lost R23 000.00 for the vehicle in issue because she
settled the balance outstanding in respect thereof in the amount
of
R153 880.40 and sold it for R130 000.00.
17.
Mr Jethro further argued that there was a pension benefit due from
the employer in the amount of R767 677.34 and about R329
004,58
invested for the children of which the plaintiff received R480.00 per
month; that Old mutual paid money from a policy in
the amount of R9
516.72; a death benefit of R194 873 and the equal accident benefit of
R194 873. In addition the plaintiff received
R37 101.00 from the
Unemployment Insurance Fund.
18.
Insurance money, pensions or benefits which have been or will or may
be paid as a result of death may not be taken into account
for the
purposes of quantifying loss of support (See LAWSA, second edition
Vol 7 at 77 para
89;
Sec 1(1)
of
the
Assessment of Damages Act, 9 of 1969
. Mr Jethro persisted that
the accident benefit of R194 873 is a deductible accelerated benefit.
There is no evidence that this
amount was an accident benefit. None
of the parties called Old Mutual to give an explanation on the
contents of its letter to plaintiff
in respect of this benefit. Even
if the policy was an accident benefit it forms part of the policy
that paid out on death of the
deceased and therefore not deductible.
19.
Counsel for the RAF argued further that a contingency should be
factored in for the plaintiff’s probable remarriage as
she is
not yet 40 years of age. He contended that 15% for future
contingencies should be applied in respect of the plaintiff
(including
her prospect of remarriage) and referred me to the
following remarks by Botha AJ in Nochomowitz v Santam Insurance Co
Ltd
1972
(1) SA 718
(T)
at 726G-H:
“
The
next matter in issue is the deduction, if any, to be made from the
plaintiff's gross loss for her prospects of remarrying. It
is common
cause that the South African statistical figure of 7 per cent in
respect of a widow of the age of the plaintiff is no
reliable
yardstick to adopt. As far as the evidence is concerned my impression
of the plaintiff as I observed her in the witness-box
is that she is
of presentable appearance for her age, and that she has an
intelligent and pleasant personality. It is obvious from
her
evidence, however, that she had a very high regard and affection for
the deceased and that she is in consequence over critical
of all
other men. On this basis I consider that the chances of her
remarrying are slender. Nevertheless, although neither of the
actuaries allowed for any deduction in this respect, and although Mr.
Wulfsohn argued that this was a case of de minimis, I think
that some
effect should be given to the contingency of remarriage, and I fix
the deduction to be made at 2 per cent of the plaintiff's
gross
loss.”
20.
The facts in the above case are quite distinguishable from the
present. In that case no mention is made of a disabled child.
In
casu, the plaintiff has devoted her life to her children. My
observation is that she is cultured, smart and neat. From her
evidence she does not have much of a social life as she goes to work,
church and home where she spends time with her children. She
is not
in a relationship with any man and foresees none. In her words it is
not everyman that would accept her with the disabled
child. The
remote chances of her re-marriage are minimal. I cannot see why
further deductions should be allowed for this remote
prospect. If she
does get beneficially married it will remain an issue of de minimis
non curat lex.
21.
Insofar as S. life expectancy is concerned Mr Jethro argued that 20%
for future contingencies (inclusive of her life expectancy)
should be
applied. The paediatrician testified that he is not an expert in the
field of life expectancy and could not speculate
on this aspect, but
submitted nevertheless that there is no reason why S. could not live
up to the age of 80 years if she is well
cared for. As he puts it,
even people with “dreaded diseases” live on to the age of
80. This testimony remains uncontroverted.
As already highlighted in
the contingencies applied by Mr Morris 15% contingency on future loss
of support for S had been factored
in as opposed to 10 % applied to
the plaintiff and R. This should cater for any possible diminished
life expectancy.
22.
Mr Jethro contended that in accordance with the traditional norm the
apportionment of family income should be two parts per
parent and one
part per child. In Joubert LAWSA, Vol 7 para 89, the following
passage appears:
“
(T)he
portion of the deceased’s income devoted to support of the
plaintiff – involves an estimate of how much the deceased
would
have continued to set aside for the deceased’s own use and for
expenses, and how much for his or her dependants. It
is always
necessary to accommodate special factors – for instance, that
one child would require a larger share than his or
her siblings, and
that as children become independent so the surviving spouse would
receive a greater proportion of the income.
In the absence of such
special factors, the common actuarial approach is to allocate two
parts of the deceased’s income to
each parent and one part to
each child.”
23.
See also Groenewald v Snyders
1966
(3) SA 237
(A)
at 247F-H.
“
In
bread-winner cases it might sometimes be possible to prove the value
of the lost support by reference to the cost to the dependant
of
continuing in the same standard of living. This, however, is
impractical, if not impossible, where the deceased and his dependants
(each of whom has an individual claim) have been living as a family
entity in a joint household. In that event, especially in the
average
case where the deceased has been spending his available income on the
maintenance of himself and his family, a recognised
approach is to
apportion his nett income among the members of the family on a basis
appropriate to the facts. No invariable formula
for apportionment can
be laid down, since the support of the family may involve more
expenditure on one member than on another,
for example if one of the
children is an invalid with high medical expenses personal to
himself.”
24.
As already alluded Mr Morris presented two scenarios in his
calculation. The contingencies and statutory cap had been applied
to
his calculations. The first is based on S receiving 1/6 of the family
income and the second based on S receiving 2/7 of the
family income.
He testified that if the Court finds that S should receive one part
(1/6) and R will be self-supporting at the age
of 18 an award of R3
841 147.75 should be made (scenario 1 age 18). If the Court finds
that S should receive one part of the family
income and R becomes
self-supporting at the age of 21 and award of R3 888 202.75 should be
made (scenario 1 age 21). If the Court
finds that S should receive
two parts of the family income (2/7) and that R will be
self-sufficient at the age of 18, the Court
should award the
plaintiff R4 049 398.75 (scenario 2 age 18). If the Court finds that
S should receive two parts of the family
income and R will be
self-dependant at the age of 21 an amount of R4 083 978.75 should be
awarded (scenario 2 age 21).
25.
The evidence is very telling that much more was spent on S than on R
and the plaintiff. It can hardly be expected of the plaintiff
to keep
an accurate record of what was and is expended on each member of her
family. There is equally nothing suggesting that the
plaintiff’s
knowledge of her family’s financial affairs is questionable as
Mr Jethro sought to argue. The expenditure
for their maintenance and
upkeep is largely undisputed and is sufficient for a conclusion to be
drawn that S would require a high
level of support and that scenario
2 should apply.
26.
To say that R’s loss of support claim should be determined on
the basis that he would be self-sufficient at the age of
18 as
opposed to 21 has no logical basis. There is no reason to speculate
that R may not wish to further his studies beyond 18
years of age. It
is the plaintiff’s wish that R should further his studies after
his matriculation. In any event, from the
actuarial calculation of Mr
Morris the difference in the loss of support at 18 and 21 years of
age is not very substantial.
27.
Not much should be said about the care dependency grant and social
grant which the children received from SASSA as this has
already been
deducted. When the plaintiff receives her award of damages from the
defendant any future social grants should cease
ipso facto. The
calculation and determination of the loss of support by Mr Morris
were not questioned by the defendant. On the
whole I am satisfied
that the actuarial computation based on (scenario 2 age 21) should
apply due to the extraordinary circumstances
of this case.
28.
Quite astonishingly, in its closing arguments, the defendant still
required the Court to provide a formula for the assessment
of the
loss of support claim with the necessary deductions for the purposes
of further actuarial calculations. The defendant had
its chance. It
filed the actuarial report of Munro actuaries on 13 February 2013. At
the end of the plaintiff’s case it closed
its case without
tendering evidence. There is no point in delaying this matter with
recalculations any further. As I pointed out
earlier this case may
well have been settled.
29.
On the question of costs. Mr Jethro argued that the RAF was entitled
to costs in respect of the aborted proceedings of 06 and
07 February
2013. He contended that a
Rule 35(3)
notice was served on the
plaintiff on 08 January 2013 but despite this most of the documents
requested to quantify the plaintiff’s
claim were furnished on
06 and 07 February 2013. Mr Botha, for the plaintiff, argued that the
defendants are not entitled to the
wasted costs of 06 and 07 February
2013 as most of the documents they requested were in their possession
in any event, for example,
the deceased post-mortem report, details
of the benefits received and birth certificates.
30.
It is to be noted that the plaintiff filed a notice in terms of
Rule
35
(6) on 23 January 2013 calling on the defendant to inspect the
documents at the offices of her attorneys. I am, in the
circumstances,
unable to find that the plaintiff has frustrated the
conclusion of the trial by employing dilatory tactics and therefore
deserving
to be mulcted in the wasted costs for the proceedings of 06
and 07 February 2013.
31.
Mr Jethro further contended that the plaintiff is not entitled to Dr
Robert J Koch’s qualifying fees as his actuarial
calculations
were not relied upon and he was not called as a witness. Counsel
argued that it was not necessary for the plaintiff’s
legal
representative to travel to Cape Town to consult with Dr Koch when
there were other methods of communicating with him. He
argued that
there was similarly no need for Mr Morris to have testified as his
report is hardly different to that of Munro Actuaries.
32.
Pertaining to Dr Koch’s fees, Mr Jethro may have a point. Dr
Koch’s valuation date is at 04 December 2012. Four
months later
the plaintiff obtained a fresh report from Mr Morris abandoning that
of Dr Koch. I cannot see why the plaintiff should
not carry her own
costs.
33.
In view of the fact that Mr Morris’s actuarial report was not
formally accepted by the defendant in evidence I am satisfied
that he
was a necessary witness and should receive his qualifying fees.
34.
On the whole I could find no good cause why costs should not follow
the success of plaintiff's action.
Order:
35.
In the result:
(1)
The Road accident fund, the defendant, is ordered to pay Ms S. M. M.,
the plaintiff, the amount of R4 083 978,75 (four million
and eighty
three thousand nine hundred and seventy eight rand and seventy five
cents) calculated as follows:
1.1
In her personal capacity: R 1 768 873.00
1.2
On behalf of S. M.: R 1 721 081.75
1.3
On behalf of R. M.: R 594 084.00
(2)
The defendant is to pay the plaintiff’s taxed or agreed party
and party costs on a High Court scale which shall include:
2.1
The qualifying fees of the following experts: Mr Ian Morris and Dr WJ
Herholdt;
2.2
The reasonable fees of Mr Ian Morris and Dr Herholdt for travelling,
accommodation and attending the trial;
2.3
The reasonable travelling costs and accommodation of the plaintiff’s
legal representative to attend the trial.
(3)
The Defendant is to pay interest on the capital amount at the rate of
15.5% per annum, calculated from 14 (fourteen) days of
the date of
this order.
(4)
The defendant is to pay the aforesaid amounts into the following
nominated trust account of the plaintiff’s attorneys:
Elliott
Maris Wilmans & Hay
Standard
Bank Trust account Number: 0.................
Branch
Code: 0.......................
____________________________
MV
PHATSHOANE
JUDGE
NORTHERN
CAPE HIGH COURT
On
behalf of the Plaintiff
Adv
C.H. Botha
Instructed
by
Elliott Maris Wilmans & Hay
On
behalf of the Defendant
Adv P.J.D Jethro
Instructed
by
Nongogo, Nuku Inc c/o Towell & Groenewaldt