Booysen v Shield Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Addleson J
• Judgment Date: 17 October 1978
• Court: South Eastern Cape Local Division

Addleson, J.:

This is an action for damages under Act 56 of 1972, in which there are some unusual features.

A The plaintiff claims damages for loss of support for herself, in the sum of R30 000, and for her three minor daughters, Margaret, Ermika Nicolette and Augusta Marsha, in the sums of R7 000, R10 000 and R11 500, respectively. The claims arise out of the death of the plaintiff's husband, Pieter Booysen (hereinafter referred to as "the deceased").

The plaintiff alleges that the deceased died by reason of injuries which B he sustained when a motor car, insured by the defendant under the Act, collided with the deceased in Crinium Crescent, Salsoneville, in Port Elizabeth on 23 December 1973. She contends that the collision was caused by the fact that the driver of the insured vehicle, Thomas Patrick Campodonico, deliberately drove into and knocked down the deceased, or C alternatively, that Campodonico negligently knocked the deceased down in the manner set out in para 5 of the particulars of claim (which, in the event, it is unnecessary to analyse).

The defendant admits that Campodonico, driving the insured vehicle, collided with the deceased at the time and place alleged, but denies that he did so deliberately or negligently. The defendant also denies that the D injuries sustained by the deceased in that collision caused, or resulted in, his death. The defendant has joined issue on the quantum of damages claimed and has raised a further defence as to the validity of the claim, but I shall deal with that matter after considering the factual issues.

It is not disputed that the deceased died on 23 December 1973 and that the E principal District Surgeon of Port Elizabeth, Dr Tucker, performed a post mortem examination on the deceased and found that the cause of death was "anoxic anoxia following multiple fractures of the upper and lower jaws". The post mortem report forms part of the record. The age of the deceased and of the plaintiff and the children was admitted and it was not disputed that the deceased was obliged to, and did, support the plaintiff and the F children and that they depended on him for such support. Other relevant admissions are contained in the pre-trial minute.

Evidence as to the collision was given by the plaintiff and, as to the cause of death, by Dr Tucker. No evidence was led by the defendant. Certain documents were handed in by consent, their contents being admitted without formal proof.

G Reduced to its essentials, the plaintiff's evidence as to the events on the day of the deceased's death, is as follows:

[The learned Judge then set out and analysed the evidence and continued.]

In the result the plaintiff has proved that the death of the deceased was H caused by and arose out of the driving of the insured vehicle. I do not intend therefore to deal with an interesting alternative approach, namely whether, even on the defendant's version, the death of the deceased arose out of the driving of the insured vehicle, if that vehicle was used to disable him to the extent that thereafter his assailants could deliver the coup de grace as he lay in the road. The plaintiff is therefore entitled to damages suffered by herself and her children consequent on the death of the deceased; subject to a technical defence raised by the defendant, which I shall examine later. I shall deal first with the quantum of damages.

Addleson J

The actual calculation of damages, once the necessary data have been established, does not present difficulty since the parties made certain admissions relating to the ages of the deceased, the plaintiff and the A children; their life expectancy and a capitalisation rate of 4 per cent which, it was agreed, would take into account the allowance which would have to be made for inflation. In addition, Mr Melunsky accepted the correctness of the arithmetical calculations contained in the schedule handed in by Mr Nepgen during argument, which I have marked "X". It was B also accepted that each child would have become self-supporting at the age of 18; and the allocation of the deceased's income between himself, the plaintiff and the children was also agreed to be as set out in that schedule. The features which have to be established before these calculations can be applied, are:

(a)

The earning capacity and probable future earnings of the deceased.

(b)

The allowance to be made for contengencies in regard C to his earning capacity.

(c)

The allowance to be made for the plaintiff's prospects of remarriage.

(d)

The plantiff's right to include in the deceased's future earning capacity, certain "illegal" activities of the deceased.

(e)

Whether any other deductions must be made for D inheritance received by the plaintiff.

The only element of the deceased's earning capacity on which there was no dispute, is the fact that at the time of his death he was earning not less than R30 per week as an assistant in his father-in-law's shop. It is true that, since the death of the deceased, his father-in-law has, due to illhealth, donated the business to his niece but he said - and this was E unchallenged - that, had the deceased not died, he would have been given the business. This is a factor to be taken into account in regard to the deceased's prospective future income as well, but counsel were agreed that F the deceased was capable of earning at least R30 per week at the time of his death.

The deceased's other "business activities" cause more difficulty. He was, inter alia, illegally selling liquor with considerable success, but the plaintiff did not attempt to...