Guardian National Insurance Co Ltd Vsearle NO

• Jurisdiction: South Africa
• Judge: Vivier JA, Howie JA, Marais JA, Olivier JA and Schutz JA
• Judgment Date: 01 March 1999
• Citation: 1999 (3) SA 296 (SCA)
• Docket Number: 195/97
• Hearing Date: 23 February 1999
• Counsel: BP Geach for the appellant BW Burman (with him CG Lamont) for the respondent
• Court: Supreme Court of Appeal

Howie JA:

This case concerns a loss of support claim brought on behalf of Samantha Searle whose parents were killed in a motor accident on 22 December 1989 when she was 13. The action was instituted C under the applicable motor vehicle insurance legislation, the appellant insurance company being the defendant.

The joint will of her parents appointed Samantha and her brother equal heirs and directed that her share of their estates be held in trust for her care and maintenance until majority. Apart from insurance moneys (which, in terms of the Assessment of Damages Act 9 of 1969, have to be left out of the reckoning in a D matter such as this), Samantha inherited shares and cash as well as an undivided half-share of immovable property and certain furniture and personal effects. The moneys thus due to her were later paid into trust and from time to time the trustee made payments in respect of her maintenance and education.

When the case came before Ngoepe J in the High Court at Pretoria the only E unresolved element of the claim was the quantum of damages. By that stage the parties had each employed an actuary. On certain aspects of quantum the actuaries were in agreement, inter alia, that a deduction from the assessed loss of support had to be made in respect of the value of the accelerated receipt of the inheritance. They differed, however, F amongst other things, on the method of calculation of that deduction. Accordingly, for the purposes of the hearing, the parties drew up a memorandum. In it they stated their agreement that 'the value of the inheritance' (sic) should be determined as at the date of trial but declared their inability to resolve the divergent actuarial approaches to calculation, which they recorded as follows: G

'2.1

The plaintiff (relying upon the views of actuary G W Jacobson) assumes a nil increase in the value of the estate assets between the date of death and the date of trial.

2.2

The defendant (relying upon the views of actuary R J Koch) assumes escalation in line with inflation as from 1 March 1995 to the date of the H trial as a means for estimating the actual current value of the assets as at date of trial. In addition the defendant asserts that the payments actually received by the claimant from the trust to date of trial should be taken into account.'

In his opening address at the start of the trial counsel for the plaintiff I informed the Court that the parties, through their actuaries, were able to perform all the necessary calculations involved in the assessment of quantum and that what they sought from the Court was 'a determination of principle', which, once made, would enable them to undertake the 'mechanical process' of calculating the amount of Samantha's loss. The principle, said counsel, was really a legal question and involved three J

Howie JA

parts: (a) whether, by way of the payment from the estates to the A trust, Samantha had received accelerated benefits as a result of her parents' death; (b) whether the income received by her from the trust fell to be deducted from the amount of support lost; and (c) the method of calculating the value of any accelerated benefit received. The response of counsel for the defendant was to challenge the relevance of B (a) (given that accelerated receipt of benefits was in effect admitted in the particulars of claim) and to confirm that (b) and (c) were indeed the issues on which the parties sought 'a ruling'.

Question (c) was, of course, the question formulated in the memorandum and (b) was thus informally added. It would appear from C the record that the learned Judge was neither asked to make any determination under Rule 33(4) defining the ambit of the hearing or the questions sought to be resolved, nor did he.

The hearing then proceeded and evidence was given by Mr Jacobson and Dr Koch on behalf of the respective parties. It is unnecessary for present purposes to D summarise their testimony. Through little fault of their own much of their evidence was unclear and perhaps gave rise more to uncertainty than finality. At all events, in the course of the hearing it emerged that the actuaries also differed as to whether any allowance should be made for Samantha's inheritance of a share of the furniture and other movables (as distinct from her share of E the immovable property) and, if so, how such allowance should be...