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[2009] ZAGPPHC 128
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Lourens v Padongelukkefonds (7660/2005) [2009] ZAGPPHC 128 (2 November 2009)
IN
DIE HOOGGEREGSHOF VAN SUID-AFRIKA
(NOORD
GAUTENG HOË HOF, PRETORIA)
DATE: 2 NOVEMBER 2009
CASE
NO: 7660/2005
UNREPORTABLE
In
the matter between:
CHRISTINA
ELIZABETH LOURENS
PLAINTIFF
VS
DIE
PADONGELUKKEFONDS
DEFENDANT
______________________________________________________________
JUDGMENT
BOTHA J:
This case arises from an incident
that occurred on 12 April 2001 at Botha Avenue, Centurion. The
plaintiff’s husband (the
deceased) was run down by a taxi
whilst he was doing point duty as a temporary traffic officer. The
plaintiff who was doing point
duty at the next intersection,
witnessed the incident. The deceased eventually succumbed to his
injuries on 1 December 2002.
The plaintiff claims damages for loss
of support for herself.
The issue of liability was
adjudicated first and separately. On 29 November 2006 the court
found that the defendant, the Road
Accident Fund, was liable for all
the plaintiff’s proven damages.
In another action the plaintiff
obtained damages for loss of support on behalf of her three minor
children.
This case was disposed of without
oral evidence. The parties were in agreement that I could refer to
the expert reports of:
Dr Walters, an industrial
psychologist;
Mr J Shoeman
Mr Jacobson, an actuary and
Mr Schwab an actuary and
A joint report by Dr Watters and Mr A
Lampbrecht.
They were also in agreement about the
amount of R50 000.00 claimed as general damages and the fact that an
undertaking in terms
of Section 17(4) of Act 56 of 1996 should be
furnished in respect of future treatment for the emotional trauma
suffered by the
plaintiff as a result of her having witnessed the
collision and having to live with its seq____ for another 17 months.
The difference between die parties
lies in the actuarial reports.
In Mr Jacobson’s report two
scenarios are used for the basis of calculations. The one was that
the deceased would have continued
with his calling as a pastor. The
other was that he would have reverted to his previous occupation as
an instrument technician.
I accept the first scenario as the
more likely. The deceased’s career change was decisive and
made and made at great sacrifice.
It was based on a deeply held
faith. In the short time that he had the privilege to fulfil his
calling he was by all accounts
successful. The chances are that if
he had been spared he would have continued his career as a pastor.
In this scenario the plaintiff
accepted that the children would have remained dependant until the
age of 21. That somewhat diminishes
her claim.
The two most important differences
between the reports of Mr Jacobson and Mr Schwab is that Mr Jaconson
worked with a net discount
rate differential of 3% and a re-marriage
contingency of 20% whereas Mr Schwall worked with 2.5% and 31%
respectively.
Mr Schwab said that 31% was half the
average rate for a 40 year old white female. That cannot be correct
because the re-marriage
prospect for a 40 year old white female is
31%. See Koch: The ______ Yearbook 2009 p 98. In my view Mr
Jacobson’s assessment
of the prospects of re-marriage is more
accurate. The plaintiff was in court. She was married for 15 years.
The incident and
its protracted sc_____ have left her emotionally
shattered. Seven years have passed since the death of the deceased.
It is not possible for me, merely on
the reports, meaningfully to declare a preference for any particular
net discount rate.
In the end I am of the view that the
fairest option would be to make an award in respect of loss of
earning in between the values
given by Mr Jacobson and Mr Schwab.
On Mr Jacobson’s report the
plaintiff’s total net loss of income, part and future, would be
R1 731 543.00. On Mr Schwalb’s
report it would have been R1
275 475.00. If the difference is split it leads to a figure of R1
503 509.00 which I will round off
to R1.5 million. To that must be
added the amount of R50 000.00 for general damages, about which there
was no dispute.
Mr Ströh, SC, who appeared for
the plaintiff, provided me with a draft order which I shall mark “X”
and which
I shall make an order of court after having inserted the
amount of R1 550 000.00.
In
the result an order is made in terms of the draft marked “X”.
________________________________
C. BOTHA
JUDGE OF THE HIGH COURT