Legal Insurance Company Ltd v Botes

• Jurisdiction: South Africa
• Judge: Hoexter JA, Beyers JA, Rumpff JA, Holmes JA and Williamson JA
• Judgment Date: 20 November 1962
• Citation: 1963 (1) SA 608 (A)
• Hearing Date: 12 November 1962
• Court: Appellate Division

Holmes, J.A.:

The appellant appeals and the respondent cross appeals against a decision of BANKS, J., in the Cape of Good Hope Provincial Division. In that Court the appellant, as the insurer of a motor car in A terms of Act 29 of 1942, was ordered to pay the respondent R4,540 in her personal capacity, and R1,080 in her capacity as guardian of her minor child, being damages sustained in consequence of the death of her husband in a collision on 21 December, 1959. The only issue was and is the quantum of damages.

B At the outset it is necessary to deal with the nature and scope of the action, according to existing South African Law, by dependants against a person who has unlawfully killed the bread-winner who was legally liable to support them. The remedy was unknown to Roman Law, in which no action arose out of the death of a freeman, and consequently the Aquilian action was not available. It had its origin in Germanic C custom, in which the reparation of 'maaggeld' was regarded as a conciliation to obviate revenge by the kinsmen of the deceased, and it was divided among the latter's children or parents or other blood relatives. The Roman-Dutch Law modified the custom by regarding the payment as compensation to the dependants for loss of maintenance. The D Roman-Dutch jurists felt that this could be accommodated within the extended framework of the Roman Aquilian action by means of a utilis actio. The remedy has continued its evolution in South Africa - particularly during the course of this century - through judicial pronouncements, including judgments of this Court, and it has kept abreast of the times in regard to such matters as benefits from E insurance policies. The remedy relates to material loss 'caused to the dependants of the deceased man by his death'. It aims at placing them in as good a position, as regards maintenance, as they would have been in if the deceased had not been killed. To this end, material losses as well as benefits and prospects must be considered. The remedy has been F described as anomalous, peculiar, and sui generis - but it is effective. In assessing the compensation the trial Judge has a large discretion to award what under the circumstances he considers right. He may be guided but is certainly not tied down by inexorable actuarial calculations. In its present form, robust and practical, the remedy illustrates the growth and flexibility of the system of law, basically G Roman-Dutch, which we have as a heritage in this country. I think the foregoing survey emerges from leading cases such as Jameson's Minors v Central S.A.R., 1908 T.S. 575, Hulley v Cox, 1923 AD 234, Millward v Glaser, 1949 (4) SA 931 (AD), and Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo, 1960 (2) SA 467 (AD), and the authorities referred to in them.

H The respondent and the deceased were married in community of property in June, 1944. At the time of his death in December, 1959, the deceased was 46 years and the respondent 41 years of age. Their adopted child was born in March, 1947.

The deceased was the proprietor of a restaurant business. Its average annual profit for a few years before his death was about R1,000. This was used for the support of the family as a whole. They lived in a flat attached to the restaurant. The Court found that the composite

Holmes JA

rent for both premises was debited to the business, and that, on a reasonable apportionment of the rent, the value of the residential accommodation was R30 per month. The family had their meals in the restaurant and these, together with certain other benefits from the A business such as the use of the servant, the Court valued at R70 per month. The deceased was in good health prior to his death and the Court found that he would probably have continued to run the business for a further 24 years, that is to say until he was 70 years of age, with a slightly decreasing profit as he grew older. In the result the Court B averaged the value of the support, which the deceased would have provided for himself and his family, at R2000 a year for 24 years. After making certain deductions and allowances the Court arrived at the figures referred to at the beginning of this judgment.

The appellant company attacks the trial Court's finding that the value of the support, which would have been provided by the deceased but for his death, included the aforesaid items of:

(i)

C R360 per annum by way of accommodation; and

(ii)

R840 per annum by way of meals, the assistance of a domestic servant, electricity, etc.

As to (i), Mr. Knight for the appellant submitted that there was no D evidence which justified the finding that the whole of the composite rental for the shop and the flat was debited to the business. As to that, the respondent said that the deceased paid one rent for the shop and the flat. And the book-keeper said that as far as he knew the rent in the books of the business covered the flat as well. And he would be likely to know, for he says that the deceased kept a banking account and E he (the book-keeper) used to examine all the cheques. Accordingly I see no reason for disturbing the trial Court's finding in this regard. Mr. Knight further submitted that the evidence did not establish the value of the accommodation actually enjoyed by the family, in this three-roomed flat at Parow. In that regard an estate agent testified F that the average rental of a three-roomed flat in Parow was about R34 per month. And the respondent said that the rental of the flat to which she moved in Parow after her husband's death was R29.40 plus R3.50 for electricity. It was a three-roomed flat of the same size as the one in question in this case. In the result there are in my view no grounds for interfering with the trial Court's allowance of R30 a month in respect of accommodation.

G As to (ii), the respondent said in evidence that the value of the food provided for the family was R120 per month. It is true that under cross-examination she said that this was 'her guess'. But I think it was an informed guess, for in addition to being a housewife she worked in the restaurant and must have known the value of foodstuffs. Furthermore H the book-keeper assessed in the books the value of this food at R120 a month, after, as he says, discussing the matter with accountants in relation to a family of three. Accordingly the trial Court's allowance of R70 per month is well within the evidence. Mr. Knight further submitted that the trial Court omitted to take into account the fact that the book-keeper had allowed, in preparing the accounts of the business, a sum of R10 per month taken by the deceased out of the business for his personal consumption. Assuming this to be so, the trial Court's

Holmes JA

allowance of R70 is still well within the evidence, and I see no reason for altering it.

To sum up so far, the basic position is that the value of the support A provided by the deceased for the support of himself and his family would have been R2,000 a year until he reached the age of 70 years. The value of this support was apportioned by the Court in the proportion of two-fifths to the deceased, two-fifths to the widow, and one-fifth to the child until the age of 18 years. This was based on the evidence of B an actuary named Laurie. This apportionment is attacked in the cross-appeal, in so far as the value of the accommodation and the food is concerned. In this regard Mr. Hoberman, for the respondent, relied on the evidence of an actuary named Jochelson. This witness apportioned the R30 a month for accommodation as to one half to the widow, and one half to the child while she was a dependant. Thereafter he allocated the C whole to the widow. Mr. Hoberman argued thus: The widow and child were entitled to be put in the position in which they would have been if the deceased had lived out his...