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[2024] ZAFSHC 191
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L.L.B v Road Accident Fund (478/2022) [2024] ZAFSHC 191 (14 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates
:
YES/NO
Case
number: 478/2022
In
the matter between:
L[…]
L[…]
B[…]
Plaintiff
(ID.
No. 5[…], in her capacity as mother
and
guardian of her minor children
P[…]
B[…]
and
K[….]
O[…]
B[…])
And
ROAD
ACCIDENT FUND
Defendant
(Link:
5155036)
CORAM:
VANZYL, J
HEARD
ON:
23
JANUARY 2024
DELIVERED
ON:
19 JUNE 2024
Background:
[1]
The plaintiff
instituted action against the defendant in her capacity
as mother and natural
guardian of the minor
children
P[…] B[…] and K[…] O[…] B[…] ("the
children") for damages in the form of loss
of financial support
they suffered as a result of a motor vehicle accident which occurred
on 1 March 2020, within the jurisdiction
of this court. As a result
of the accident T[…] F[…] B[…] a pedestrian at
the time of the accident, passed
away ("the deceased").
[2]
It is the plaintiff's
case that the deceased is the father of the children and she pleaded
as follows at paragraph 7 of the particulars
of claim:
"7.1
The
minor
children
were
born
from
the
marriage
between
the plaintiff and the
deceased.
7.2
The marriage
subsequently came to an end by way of divorce on 20 February 2016.
7.3
At all relevant times
of the accident the deceased was the biological father of the minor
children
.
7.4
At all relevant times
of the motor vehicle collision and the
lifetime, the
deceased had a legal duty to support and contribute toward the
maintenance of the minor children.
7.5
The deceased did
support and contribute towards the maintenance of the minor children.
7.6
The deceased was at
all relevant times employed.
7.6
Had the deceased not died as a result of the accident, arising from
the reckless and/or negligent driving of the
insured driver, would
the deceased have been legally obligated to continue to support and
contribute toward the maintenance of
the minor children and would he
have been able to do so until the minor children became
self-supporting."
[3]
In
terms
of
the
particulars
of
claim
the
plaintiff
claimed R200 000.00
for
past
loss
of
support
for
each
child
and R800 000.00 for
future loss of support for each child.
Common
cause facts between the parties:
[4]
By the time the
matter served before me the parties had settled the issue of
liability and the defendant admitted to being 100 %
(hundred percent)
liable for the damages which may be proven by the plaintiff on behalf
of the children.
[5]
I was furthermore
advised that it was
no longer in dispute
that
the deceased is the father
of
the two children, that he had a duty to maintain them and that prior
to his demise he was indeed maintaining them at the rate
of R200.00
per month per child in terms of a maintenance order.
The
actuarial report:
[6]
The plaintiff
obtained an actuarial report of an actuary, Mr Mellet, in support of
the plaintiff's claim. Mr Grewar, on behalf of
the
plaintiff,
and
Ms
Mhkwanazi,
on
behalf
of
the
defendant,
indicated
to
me that they have agreed to address me on the quantum of the
plaintiffs claim on the basis of the calculations of Mr Mellet,
which
are, in principle, not in dispute.
[7]
Mr Mellet made his
calculations on two presumptions,
namely that the minor
children would have been dependent on the deceased until the end of
the year in which they turn 18 years
respectively
and in the
alternative, until the end of the year in which they turn 21 years
respectively.
[8]
Ms Mkhwanazi
indicated that she holds instructions to offer as settlement an
amount in-between the two calculated amounts. However,
Mr Grewar
indicated that he holds instructions to argue in favour of judgment
in an amount based on the age of 21 years for the
two children
respectively.
In
this regard he submitted that I can take judicial notice of the high
unemployment
figure
in South Africa and in Thaba Nchu, where the children reside,
specifically
.
In support of
his submission he referred to the fact that the older of the two
children had passed grade 12 already a year ago at
the age of 17
years, but she is still unemployed.
Loss
of support and the calculation thereof:
[9]
In
Jowell
v
Bramwell-Jones
2000
(3)
SA
274
(SCA)
at
para [22]
of the
judgment
the Supreme
Court
of
Appeal
held
as follows with
regard to a court's duty to quantify loss:
"[22]'
…
Whether a
plaintiff
has
suffered damage
or
not is a fact which, like any other element of his cause of action
and subject to what is said below, must be established on
a balance
of probabilities.
Once
the damage or loss is established a court will do its best to
quantify that loss even if this involves
a degree of
guesswork.
(See
Turkstra Ltd v Richards,
1926 TPD
276
at 282 -
283.)"
[10]
In an earlier
judgment by the Supreme Court of Appeal in
Hushon
SA (Pty) Ltd v Pictech (Pty) Ltd
1997 (4) SA 399
(SCA)
the court similarly held at 412H -
I:
"Yet
there can be no doubt that Hushon did suffer a loss as a result of
the defendants' wrongful conduct. In those
circumstances
a court has no option
but to resort to the rough and ready method of the proverbial
educated guess (the fourth method) and
to
do the best it can on such material as is place before it
(cf
Caxton Ltd
and Others
v
Reeva
Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990
(3) SA 547
(A)
at
573G - J)." (Own emphasis)
[11]
In
RAF
Practitioners
Guide,
HB Klapper,
at
paragraph 1.1.2
(updated September 2021 -
SI
43), under the heading
"Prospective
patrimonial
loss"
the
following is stated with reference to the judgment in
Reay
v Netcare (Pty)
Ltd
t/a
Umhlanga
Hospital
[2016]
4
All
SA 195
(KZP):
"In
a claim for
loss of support,
objective
available and acceptable evidence of the loss must be presented.
As a first step,
the financial support which the plaintiff received and were
accustomed to receive
and
which was lost as a result of the death of the breadwinner.
The onus of proof in
that regard rested upon the plaintiff throughout and the plaintiff
is
required
to
produce
such
evidence
as
was
available
to
discharge the onus. Where
evidence should be available and should have been adduced, and the
plaintiff did not adduce such evidence,
the court will adopt a
generous approach, requiring an adjustment to be made by the court in
its assessment." (My emphasis)
[12]
In light of the
totality of the evidence which has been placed before me, I am
convinced on a balance of probabilities that the
children in fact
suffered damages as a result of the death of the deceased.
[13]
l am also convinced
that the amount of damages should be calculated on the basis that the
children would both have been dependent
on the deceased until the end
of the year
-in
which they turn 21 years of age respectively.
[14]
However,
in so far as Mr
Grewar
submitted
that the amount of damages should be adjusted to a higher figure
since the total yearly amount of loss is very low, there
is no basis
upon which I can do so on a mere random basis. There is no evidence
available upon which I can make such an adjustment
to the amount of
damages. The damages are to be based on the amount of maintenance.
[15]
The calculations in
the report of Mr Mellet make provision for the usual actuarial
principles and assumptions to be applied such
as inflation, increase
in income and maintenance etc. The calculations are also based on
certain postulations. The same assumptions
and postulations are to be
applied in the final calculation of damages since the report as such
have been agreed upon between the
parties.
[16]
The calculation in
the actuarial report was done as at 1 April 2022. Considering the
date of this judgment and order, the calculation
obviously has to be
updated and performed on
the
basis of my respective findings. I will consequently also make
provision in my order that I may be approached in chambers with
a
draft order for purposes of obtaining an order in which the amount of
damages which is to be paid by the defendant to the plaintiff
is
expressly reflected.
[17]
The proposed draft
order should also make provision for the payment of costs and all
related issues on the basis of the findings
in this judgment.
Contingencies
:
[18]
It is trite that it
is for the court to determine the percentage
of contingencies to
be applied in a matter such as this.
[19]
Contingencies
discount the vicissitudes of life and it is a method used to arrive
at fair and reasonable compensation. The question
of contingencies
was dealt with in
Southern
Insurance
Association
Ltd
v
Bailey
N.O.
1984
(1)
SA
98
(A) at 113G and
116G -
117A:
"Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to
the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate,
which is often a
very rough estimate, of the present value of the loss.
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.
It
is, however, erroneous to regard the fortunes of life as being always
adverse: they may be favourable. In dealing with the question
of
contingencies, WINDEYER J said in the Australian case of
Bresatz v
Pr7ibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at 213:
'It
is a mistake
to suppose that it necessarily involves a 'scaling down'
.
What it
involves depends,
not
on arithmetic, but on considering what the future may have held for
the particular individual concerned... (The) generalisation
that
there must be a
'scaling
down' for
contingencies seems mistaken. All 'contingencies' are not adverse:
All 'vicissitudes' are not harmful. A particular plaintiff
might have
had prospects or chances of advancement and increasingly remunerative
employment. Why count the possible buffets and
ignore the rewards
of fortune?
Each case depends
upon its own facts. In some it may seem that the chance of good
fortune might have balanced or even outweighed
the
risk
of bad."'
[20]
In the
judgment
of
Gillbanks
v
Sigournay
1959
(2)
SA
11 (N) the following
was stated at 17 E -
F
in respect of contingencies
in
an estimation
of a plaintiffs claim for loss of earnings:
"In
any estimate of a person's loss of earning capacity allowance must be
made for all contingencies including the accidents
of life and
certain deductions must be made from the estimated gross income to
allow for unemployment benefits, insurance and so
on. These
contingencies would include –
(i)
a
possibility
that
plaintiff's
working
life may
have
been
less than sixty-five
years;
(ii)
a possibility of his
death before he reaches the age of sixty-five years;
(iii)
the likelihood of his
suffering an illness of long duration;
(iv)
unemployment;
(v)
inflation and
deflation;
(vi)
alterations in the
cost-of-living allowances;
(vii)
an
accident
whilst
participating
in
sport
such
as
hockey
or cricket, or
at any other time
which would affect his earning
capacity; and
(viii)
any other contingency
that might affect his earning capacity."
[21]
In
the judgment
of
Dlamini
v Road
Accident
Fund
(59188/13)
[2015]
ZAGPPHC
646
(3
September
2015)
at paras [30] -
[32] the court dealt
with and applied some guidelines referred to by Koch in The Quantum
Year Book:
"[30]
Koch refers to the following as some
of
the guidelines
as regards contingencies:
'Normal
contingencies'
as
deductions
of
5% for
past
loss
and
15%
for
future loss.
'Sliding
scale
':
1/2
% per year to retirement age, i.e. 25% for a child, 20% for a youth
and 10% in the middle age and relies on Goodall v President
Insurance
1978 (1) SA 389
.
'Differential
contingencies' are commonly applied, that is to say one percentage
applied to earnings but for the accident, and a
different percentage
to earnings having regard to the accident.
[31]
When a court is called upon to exercise an arbitrary discretion that
is largely based on speculated facts it must do so with
necessary
circumspection
.
In the absence
of contrary evidence, the court can assume that a reasonable person
in the position of the plaintiff would have succeeded
to minimize the
adverse hazards of life rather than to accept them. Both favourable
and adverse contingencies have to be taken
into account in
determining an appropriate contingency
deduction. Bearing in
mind that contingencies are not always adverse
,
the court
should in exercising its discretion lean in favour of the plaintiff
as he would not have been placed in the position where
his income
would have to be the subject of speculation if the accident had not
occurred."
[22]
From the aforesaid it
is evident that I can also not make a random upwards adjustment in
the amount of damages on the basis of contingencies,
as submitted by
Mr Grewar. That is not the purpose of contingencies.
[23]
When considering
contingencies, there are in
my
view no exceptional circumstances or factors applicable to the
present matter. I
deem it fair and just to both parties that a 5% contingency should be
applied to both the past loss of income
and future loss of income.
Such a percentage will make provision for a balanced consideration of
both possible favourable and adverse
contingencies.
Costs:
[24]
There is no reason
why the defendant should not pay the costs of the action, which costs
are to include the costs of the updated
calculation by Mr Mellet as
ordered hereunder.
Order:
[25]
The following order
is consequently made:
1.
The defendant is
liable to pay to the plaintiff 100% of the proven damages suffered by
the children.
2.
It is declared that
an updated actuarial calculation is to be performed pertaining to the
children's loss of support as a result
of the motor vehicle accident
on 1 March 2020, for purposes of which the plaintiff's attorney is
directed to forthwith request
the plaintiff's actuary to perform such
a calculation in accordance with my relevant findings in this
judgment, namely:
2.1
The actuarial
principles and assumptions, as well as the other postulations as
applied in the report of Mr Mellet, dated 2 March
2022, are to be
applied again.
2.2
The children's
loss of support is to
be calculated
on
the assumption that the minor children would have
been
dependent
on
the
deceased
until
the end
of
the
year
in
which
they
turn
21
years respectively.
2.3
The calculation is to
be done as at 1 July 2024.
2.4
A
contingency
deduction
of 5% is to be
applied in respect of both past and future loss of support.
3.
Leave is granted to
the parties to approach Van Zyl, J in chambers, once the aforesaid
calculation is received, with a draft order
as agreed upon between
the parties in order to obtain an order for the payment by the
defendant to the plaintiff of the amount
calculated as aforesaid,
together with interest, costs and related issues.
C.
VAN ZYL, J
On
behalf of the plaintiff:
Adv.
OM Grewar
Instructed
by:
HJ
Booysen Attorneys
BLOEMFONTEIN
hendrik@hjbooysenattorneys.co.za
On
behalf of the defendant:
Ms.
K. Mkhwanazi
Instructed
by
:
Office
of the State Attorney
BLOEMFONTEIN