D'Ambrosi v Bane and Others

• Jurisdiction: South Africa
• Judge: Van Zyl J
• Judgment Date: 15 June 2006
• Docket Number: 10179/2002
• Hearing Date: 15 June 2006
• Counsel: D F Irish SC (with A D Brown) for the plaintiff. R S van der Riet SC for the defendants
• Court: Cape Provincial Division

D'Ambrosi v Bane and Others
2006 (5) SA 121 (C)

2006 (5) SA p121

Citation	2006 (5) SA 121 (C)
Case No	10179/2002
Court	Cape Provincial Division
Judge	Van Zyl J
Heard	June 15, 2006
Judgment	June 15, 2006
Counsel	D F Irish SC (with A D Brown) for the plaintiff.; R S van der Riet SC for the defendants

Flynote : Sleutelwoorde C

Damages — Measure of — For D personal injuries — Past and future hospital and medical expenses — Benefits deductible from damages awarded — Medical aid scheme benefits — Medical aid scheme being form of indemnity insurance — Insurance benefits generally excluded, as deductible asset, from award of damages — Plaintiff entitled to claim damages for past and future hospital and medical E expenses without adjustment in respect of benefits received from medical aid scheme consequent upon sustaining injuries.

Damages — Measure of — For personal injuries — Loss of earnings or earning capacity — Adjustment for loss or gain in buying power of money — Principle of currency nominalism restated and F applied.

Damages — Measure of — For personal injuries — Loss of earnings or earning capacity — Benefits deductible from damages awarded — Potential saving in cost of living expenses — Such not deductible benefit — Any speculative saving in cost of living expenses not constituting benefit entitling defendants to reduction in damages awarded for loss of earnings or loss of earning capacity — Plaintiff, as G result of injuries sustained, unable to relocate to London — Defendants claiming resultant saving in cost of living expenses as benefit deductible from damages to be awarded — Defendants' contention dismissed.

Headnote : Kopnota

In an action for damages for bodily injuries arising out H of the alleged medical negligence of the defendants, the plaintiff claimed, inter alia, damages for past and future hospital and medical expenses without adjustment in respect of any benefits he might have received or might yet receive from his medical aid scheme as a result of his injuries. He contended that such benefits arose from his membership of the scheme, which was a type of indemnity insurance, I and were matters between him and the scheme alone. He also claimed damages for loss of earnings or loss of earning capacity. It was common cause that, as a result of his injuries, he had been unable to relocate to London, as had been his intention, but had had to remain in Johannesburg. The defendants contended that the plaintiff's claim for loss of earnings or loss of earning capacity fell to be reduced by his saving in cost J

2006 (5) SA p122

of living expenses as a result of his remaining in Johannesburg, rather than relocating to London; the cost of living A being higher in the United Kingdom than in South Africa.

Held, that, in respect of the plaintiff's saving in cost of living expenses: The plaintiff's potential saving in cost of living expenses could not be regarded as a benefit which was to be taken into account in computing his loss of earnings or earning capacity. The reasons for that were the following: B

(1)

Any attempt to quantify such living expenses would inevitably be speculative;

(2)

because cost of living expenses were influenced by fluctuations in inflation levels and in the value of currency, and our courts had adopted a 'nominal' approach to the purchasing power of money, a 'nominal' approach to differences in cost of living appeared C to be justified; which meant that the plaintiff had to take the monetary value of his cost of living expenses as he found them and it was irrelevant whether he benefited from, or was prejudiced by, variations in the level of his cost of living expenses;

(3)

it accorded with the fundamental principle underlying the determination of delictual damages in South African law D that the Court did not weigh up the relative levels of cost of living expenses in determining its award of damages. (Paragraphs [34] and [35] - [37] at 131H and 132A - F.)

Held, further, that any speculative saving in cost of living expenses could therefore not be regarded as a benefit which entitled the defendant to a reduction in the damages to be awarded. (Paragraph [39] at 132I - J.) E

Held, further, that any benefit the plaintiff received from the reduced cost of living in Johannesburg, as opposed to London, would therefore not be taken into account in assessing his loss of earnings or earning capacity. (Paragraph [38] at 132G.)

Held, further, as to the plaintiff's medical aid scheme benefits, that, in substance, a medical aid scheme was indeed a form of insurance. It was no different from any other form of indemnity F insurance which offered cover against injury or damage, in return for premium payments. (Paragraph [45] at 134E - F.)

Held, further, that the principle was that insurance benefits were generally excluded as deductible assets as they were collateral in nature arising, as they did, from an extraneous source. (Paragraph [41] at 133E - F.) G

Held, accordingly, that the finding had to go against the defendants on both issues because (1) the cost of living differential between Johannesburg and London could not be taken into account in assessing the plaintiff's claim for past and future loss of earnings or earning capacity; and (2) the medical aid scheme benefits which the plaintiff had received, or would in the future receive, were not deductible in determining his claim for past and future hospital H and medical expenses. (Paragraph [46] at 134F - H.)

Cases Considered

Annotations

Reported cases

Southern African cases I

Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A): applied

Dyssel NO v Shield Insurance Co Ltd 1982 (3) SA 1084 (C): referred to

Everson v Allianz Insurance Ltd 1989 (2) SA 173 (C): applied

General Accident Insurance Co SA Ltd v Summers; Southern Versekeringsassosiasie Bpk v Carstens NO; General Accident Insurance Co SA Ltd v Nhlumayo 1987 (3) SA 577 (A): referred to J

2006 (5) SA p123

Mutual & Federal Insurance Co Ltd v Swanepoel 1988 (2) SA 1 (A): applied A

Radell v Multilateral Motor Vehicle Accidents Fund 1995 (4) SA 24 (A): referred to

Reid v South African Railways and Harbours 1965 (2) SA 181 (D): referred to

Roberts NO v Northern Assurance Co Ltd 1964 (4) SA 531 (D): referred to

SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A): applied B

Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A): dictum at 776D - F applied

Standard General Insurance Co Ltd v Dugmore NO 1997 (1) SA 33 (A): applied

Thomson v Thomson 2002 (5) SA 541 (W): applied

Zysset and Others v Santam Ltd 1996 (1) SA 273 (C): dictum at 278B - E applied. C

Foreign cases

British Transport Commission v Gourley [1955] 3 All ER 796 (HL): referred to

Daish v Wauton [1972] 1 All ER 25 (CA): D applied

Hussain v New Taplow Paper Mills Ltd [1988] 1 All ER 541 (HL): applied

McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 All ER 854 (CA): applied

Mitchell v Mulholland and Another (No 2) [1971] 2 All ER 1205 (CA): applied

O'Brien v McKean (1968) 42 ALJR 223: E applied

Owners of the MV Eleftherotria v Owners of the MV Despina R: The Despina R; Services Europe Atlantique Sud (SEAS) v Stockholms Rederiaktiebolag SVEA: The Folias [1979] 1 All ER 421 (HL): referred to

Parry v Cleaver [1969] 1 All ER 555 (HL): referred to

Shearman v Folland [1950] 1 All ER 976 F (CA): applied.

Case Information

Action for damages for bodily injuries arising out of the alleged medical negligence of the defendants. The facts appear from the judgment of Van Zyl J.

D F Irish SC (with A D Brown) for the plaintiff.

R S van der Riet SC for the defendants. G

Cur adv vult.

Postea (June 15).

Judgment

Van Zyl J:

Introduction H

[1] The plaintiff claims damages in the amount of R16 081 425,95 arising from the medical negligence of the defendants. His action is based on their failure, during December 2000, to display the necessary degree of skill, expertise and judgment in assessing, diagnosing, advising and treating his medical condition known as I oesophagitis caused by oesaphageal reflux.

[2] The merits of the action have been settled, the defendants having conceded liability for the plaintiff's claim. The quantum of the claim has also, for the most part, been settled. Only two legal issues remain. The J

2006 (5) SA p124

Van Zyk J

first is whether the cost of living differential between Johannesburg, where the plaintiff now A resides, and London, where he intended to reside from the beginning of 2001, should be taken into account in assessing his claim for past and future loss of earnings or earning capacity. The second is whether medical aid scheme benefits should play a role in determining his claim for past and future hospital and medical expenses. B

[3] Mr D F Irish SC, assisted by Mr A D Brown, appeared for the plaintiff and Mr R S van Riet SC for the defendants. The Court expresses its appreciation to them for their presentations on behalf of the respective parties. C

Stated case

[4] The parties have requested this Court to determine the said legal issues on the basis of a stated case, in which such issues are dealt with under the headings 'Living expenses' and 'Medical costs' respectively. They have agreed that these issues should be determined separately in terms of the provisions of Rule 33(4) and that all other D issues should stand over for later determination.

[5] In regard to the issue of living expenses, the parties accept the facts set out in paras 7.1 and 7.2 of the actuarial report of Mr M Lowther. Paragraph 7.1 deals with past earnings, future earnings and future pension on the assumption that the incident causing E the plaintiff's injuries and resultant damages had not occurred. In para 7.2, the same matters are dealt with...