Carter v Haworth

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Maya JA, Snyders JA, Leach AJA and Bosielo AJA
• Judgment Date: 20 March 2009
• Citation: 2009 (5) SA 446 (SCA)
• Docket Number: 177/2008
• Hearing Date: 16 February 2009
• Counsel: D Stephens for the appellant. PA Corbett for the respondent.
• Court: Supreme Court of Appeal

Mthiyane JA: I

[1] This appeal is concerned with the question whether the 'judgment' of the trial court in which damages and other relief were 'allowed' and certain findings of fact were referred to an actuary to facilitate the calculation of an item of damage, which was to be thereafter referred back to the judge if the matter was not settled, is appealable. J

Mthiyane JA

A [2] The appeal, with leave of this court, is from the decision of the Cape High Court (NC Erasmus J) in which the court 'allowed' damages and other relief and made certain factual findings in favour of the respondent, as plaintiff. The respondent claimed damages against the appellant arising out of bodily injuries she sustained in a motor collision on B 30 April 2001, while she was on a visit to South Africa. The claim was advanced under different heads which included general damages, future medical expenses and future loss of earnings. The appellant conceded liability in respect of the merits of the claim, leaving only the quantum of the respondent's damages to be determined by the trial court. By C agreement between the parties the learned judge was asked to determine only questions relating to the quantum of the respondent's damages. In addition the court was asked to make certain 'factual assumptions' which would then be furnished to an actuary for the purpose of the calculation of the claims for past and future loss of earnings.

D [3] In respect of the claim for future medical expenses the court found that the amount of R100 500 was 'reasonable and should be allowed'. As to general damages it found that the amount of R100 000 'would constitute a fair and reasonable' compensation. No order was, however, made directing the appellant to compensate the respondent in either of E these amounts.

[4] As regards the claim for past loss of earnings the court indicated that the parties had accepted a contingency deduction of 5 % as reasonable. The judge then went on to deal with the 'factual assumptions' he made for submission to an actuary to facilitate the calculation of the respondent's F claim for future loss of earnings.

[5] Ultimately the respondent was 'awarded costs on a party and party scale, either as taxed or agreed '. But the costs of the postponement of the matter on 13 April 2005, were allowed 'to stand over for later G determination'.

[6] Because the question of appealability was raised from the bench at the commencement of the appeal and counsel were caught somewhat unawares, we afforded them the opportunity to file supplementary heads of argument on this question in due course.

H [7] It is convenient to deal first with the question of appealability, because if it should prevail a decision...