Lambrakis v Santam Ltd

• Jurisdiction: South Africa
• Citation: 2000 (3) SA 1098 (W)

Lambrakis v Santam Ltd
2000 (3) SA 1098 (W)

2000 (3) SA p1098

Citation	2000 (3) SA 1098 (W)
Case No	92/9240
Court	Witwatersrand Local Division
Judge	Shakenovsky AJ
Heard	March 17, 1999 ; March 28, 1999; September 20, 2000; September 22, 2000; September 23, 2000
Judgment	April 13, 2000
Counsel	J J Wessels SC for the plaintiff.; C W Jordaan SC for the defendant.

Flynote : Sleutelwoorde

Damages — Measure of — For fatal injuries — Loss of support — Dependant B has direct claim, enforceable in own name, against wrongdoer — Right not derived from deceased or estate, but independently conferred upon members of family — Action is sui generis — Nature of claim for loss of support materially different from right to assessment of C damages based on lex Aquilia — Compensation based on actual pecuniary loss — Only dependant to whom deceased under duty to provide maintenance and support may sue and in such action dependant must establish actual pecuniary loss, accrued and prospective, as consequence of death of breadwinner — Object is to compensate dependants for material loss, not to improve their material prospects. D

Damages — Measure of — For fatal injuries — Loss of support — Method of calculation — Period for which dependants entitled to support and maintenance from deceased endures until they become self-supporting, even if this is after majority — To determine period within which breadwinner would maintain dependant three basic facts to be proved: E (i) what combined life expectancy of dependant and deceased breadwinner would have been if not for premature death of latter; (ii) for how many of these years breadwinner would have had income; and (iii) for what period of that time breadwinner would have given portion thereof to dependant — Period of support adopted usually question of fact. F

Damages — Measure of — For fatal injuries — Loss of support — Duty of parent to maintain dependent child not ceasing upon death and is debt resting upon estate — Estate of deceased parent is liable for continued maintenance, support and education of such parent's children if such children not having adequate means of supporting themselves from other sources — If child takes under will, claim for maintenance reduced by G amount of bequest and any benefits coming to child from its parent's estate ab intestato must likewise first be exhausted before any further claim for maintenance can be considered — Dependant plaintiff should be awarded damages only for material loss caused by breadwinner's death, which can only be ascertained by balancing loss H to her or him of future pecuniary benefit and any pecuniary advantage which comes to her or him by reason of death — In assessing compensation Court has large discretion to award what under the circumstances it considers right — It may be guided but is certainly not tied down by inexorable actuarial calculations.

Headnote : Kopnota

South African law, while recognising no right of action on behalf I of the deceased's estate, gives to those dependent on him or her a direct claim, enforceable in their own names, against the wrongdoer. This is a right not derived from the deceased or the deceased's estate, but independently conferred upon members of her or his family. The action is sui generis. The nature of the claim for loss J of support is materially different from the right

2000 (3) SA p1099

to assessment of damages based on lex Aquilia. Compensation is based on A actual pecuniary loss. An essential and unusual feature of the remedy is that, while the defendant incurs liability because he or she has acted wrongfully and negligently (or with dolus) towards the deceased and thereby caused the death of the deceased, the claimant (the dependant) derives her or his right of action not through the deceased or the deceased's estate but from the fact that she or he has been injured by the death of the deceased and that the defendant is in B law responsible therefor. Only a dependant to whom the deceased was under a duty to provide maintenance and support may sue and in such action the dependant must establish actual pecuniary loss, accrued and prospective, as a consequence of the death of the breadwinner. The object is to compensate the dependants for material loss, not improve their material prospects. (At 1113B - B/C, 1113D - D/E, 1113E - F, C 1113G - H and 1114D/E.)

The period for which the dependants are entitled to support and maintenance from the deceased endures until they become self-supporting, even if this is after majority. To determine the period within which the breadwinner would maintain the dependant three basic facts must be followed: (i) it must be established what the combined life expectancy of the dependant and the deceased breadwinner D would have been if it were not for the premature death of the latter; (ii) for how many of these years the breadwinner would have had an income; and (iii) for what period of that time the breadwinner would have had an income would he or she have given a portion thereof to the dependant. The period of support adopted is usually a question of fact. (At 1114G - 1115C.) E

The dependent child has a continuing claim for maintenance against the estate of the deceased parent and the duty of the parent does not cease upon her or his death and is a debt resting upon her or his estate. The estate of a deceased parent is liable for the continued maintenance, support and education of such parent's children if such children do not have adequate means of supporting themselves from other sources. If the child takes under the parent's will, the claim for maintenance F will be reduced by the amount of the bequest and any benefits coming to the child from its parent's estate ab intestato must likewise first be exhausted before any further claim for its maintenance can be considered. The dependant plaintiff should be awarded damages only for material loss caused by the breadwinner's death, which can only be ascertained by balancing, on the one hand, the loss to her or him of the future pecuniary benefit and, on the other G hand, any pecuniary advantage which from whatever sources comes to her or him by reason of the death. A dependent child is entitled to compensation for lost expectations of inheritance only insofar as such expectations relate to the period of dependency. The remedy for the dependant can be described as anomalous, peculiar and sui generis, but it is effective. In assessing the compensation the H Court has a large discretion to award what under the circumstances it considers right. It may be guided but it is certainly not tied down by inexorable actuarial calculations. (At 1115C - I, 1116C - D, H - I and 1117H/I - J.)

Cases Considered

Annotations

Reported cases I

Bursey v Bursey and Another 1999 (3) SA 33 (SCA) ([1999] 2 B All SA 289): dictum at 36D (SA) and 291h (B All SA) applied

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A): dictum at 837H - 838A applied J

2000 (3) SA p1100

Ex parte Insel and Another 1952 (1) SA 71 (T): dictum at 74C applied A

Ex parte Zietsman and Another: In re Estate Bastard 1952 (2) SA 16 (C): applied

Groenewald v Snyders 1966 (3) SA 237 (A): considered

Indrani and Another v African Guarantee and Indemnity Co Ltd 1968 (4) SA 606 (N): applied

Jameson's Minors v Central South African Railways 1908 TS 575: applied

Legal Insurance Company Ltd v Botes 1963 B (1) SA 608 (A): dictum at 614F applied

Lockat's Estate v North British and Mercantile Insurance Co Ltd 1959 (3) SA 295 (A): dictum at 304D - E applied

Minister of Police, Transkei v Xatula 1994 (2) SA 680 (TkA): applied

Ongevallekommissaris v Santam Bpk 1999 (1) SA 251 (A): dictum at 258E applied C

Santam Insurance Co Ltd v Fourie 1997 (1) SA 611 (A): dictum at 614E applied.

Case Information

Action for damages. Facts not material to this report have been omitted from the reasons for judgment.

J J Wessels SC for the plaintiff. D

C W Jordaan SC for the defendant.

Cur adv vult.

Postea (April 13).

Judgment

Shakenovsky AJ:

The plaintiff is E Kalistheni Lambrakis who sues herein in her capacity as mother and natural guardian of her minor daughter, Nicolle Lambrakis (Nicolle), born on 29 September 1977, and her minor son, George Lambrakis (George), born on 17 October 1980.

The defendant was the duly appointed agent of the Motor Vehicle Accident, Fund under the provisions of the Motor Vehicle Accidents Act F 84 of 1986 (the Act) and is presently a duly appointed agent of the Multilateral Motor Vehicle Accidents Fund (MMF) as provided for in the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989.

Plaintiff's claim against the defendant is for damages as a result of the death of certain Frixos Georghiou Lambrakis (the deceased), who died as a result of a motor collision on 27 February 1987, with G motor vehicle LHJ044T (the insured vehicle), it being alleged that such collision was caused by the negligence of one Craig Robert Murray, the driver of the insured vehicle.

By agreement between the parties the merits have been conceded by the defendant and the only issue to be determined in this action is the quantum of damages. H

Plaintiff's cause of action

The plaintiff's cause of action is set out in her particulars of claim as follows:

'6.1

The plaintiff and the deceased were married to each other and I Nicolle and George were born of such marriage.

6.2

The plaintiff and the deceased were divorced from each other during January 1984.

6.3

A third child Anastasia was born to the deceased out of wedlock on 1 July 1986. J

2000 (3) SA p1101

Shakenovsky AJ

7.

During his lifetime the deceased maintained and supported A Nicolle and George who were dependent upon such maintenance and support.

8.

At the time of the death of the...