Marine and Trade Insurance Co Ltd v Mariamah and Another

• Jurisdiction: South Africa
• Citation: 1978 (3) SA 480 (A)

Marine and Trade Insurance Co Ltd v Mariamah and Another
1978 (3) SA 480 (A)

1978 (3) SA p480

Citation	1978 (3) SA 480 (A)
Court	Appellate Division
Judge	Jansen JA, Corbett JA, Joubert JA, Van Winsen JA and Trengove AJA
Heard	February 20, 1978
Judgment	May 11, 1978

Flynote : Sleutelwoorde G

Negligence — What constitutes — Collision between motorist suddenly swerving to his right over the centre line and approaching motorist — Latter having in the agony of the moment swerved to his right to try to H avoid a collision — Collision between cars' left-hand sides in middle, of road — Latter not shown to have been negligent — Former's negligence the sole cause of the collision.

Negligence — Action for damages — Fatal injury case — Deceased father at the helm of a family business — Wife's assistance assessed at one third of family income — Court's method of assessment of damages to wife and minor children upheld on appeal.

Damages — Proof of — Father running a family business killed — Assessment of damages to wife and minor children.

1978 (3) SA p481

Headnote : Kopnota

As a Fiat motor car, insured by the appellant, approached a Capri motor car driven by second respondent coming from the opposite direction on a national road in broad daylight, the driver of the Fiat swerved to his left towards a hitch-hiker who thought he was going to give him a lift. When he realised he was not, the hitch-hiker had to jump out of his way. As the same time the driver of the Fiat veered right across the centre A line onto its incorrect side of the road and the driver of the Capri then swerved violently to his right to avoid a collision, which he thought was imminent, but he did not succeed in doing so. The cars collided in such a manner that their left-hand sides came into contact with each other approximately in the middle of the road. The driver of the Capri lost control of his car which went right off the road, flinging out first respondent's husband who was killed. First respondent sued the appellant B in a Local Division for damages on her own behalf and on "behalf of her two minor sons". The driver of the Fiat gave evidence for the appellant to the effect that it was the driver of the Capri who had first swerved to his right. The court found his evidence to be false, that the accident had occurred as aforesaid, that it might well be that the manoeuvre of the driver of the Capri might well not have been "the best manoeuvre for him to have performed in the agony of the moment (though that was not canvassed in cross-examination or in argument), but, even if it was not, C that does not mean that the third party was thereby guilty of any negligence". The Court a quo accordingly held that the negligence of the insured driver was the sole cause of the collision. In assessing damages the Court a quo had (1) assessed the average annual net amount income of the family business at the date of the deceased's death at R3 921; and (2) found that only one-third of the net income of the business was derived from the efforts of the first respondent herself. In an appeal the D appellant contended (a) on the facts, that the Court a quo should have found in favour of the version of the collision as stated in evidence by the driver of the insured car; and (b) that in assessing damages the Court a quo had wrongly arrived at the amount of R3 921 and that it should have assessed damages on the basis of the deceased's personal drawings from the family income.

Held, as to (a), that the Court was not satisfied that appellant had established that the Court a quo had either misdirected itself in any respect or that it had been plainly wrong in resolving the issue of E negligence in favour of first respondent.

Held, as to (b), that the Court a quo had not been shown to have erred in assuming that the annual net income of the family business at the date of the deceased's death at R3 921.

Held, further, as the evidence showed that the deceased was at the helm and actually ran the business, that the Court a quo had not erred in finding that first respondent's contribution to the net income of the F family business was probably not more than a third.

Held, further, that in the particular circumstances of the case the Court a quo had been justified in assessing the loss on the basis of the net profits of the business rather than on the deceased's drawings therefrom.

Held, further, as the two minor children, aged 17 and 18 at the time of the deceased's death, were then still at school, that the Court a quo had G been justified in acting on the assumption that the deceased would probably have continued to support them until they reached the age of 21 years.

The decision in the Durban and Coast Local Division in Mariamah and Another v Marine & Trade Insurance Co Ltd confirmed.

Case Information

Appeal from a decision in the Durban and Coast Local Division (FANNIN J). H Facts not material to this report have been omitted from the judgment of TRENGOVE AJA.

D H Bester for the appellant: The Court a quo was clearly correct in ruling that portion of the net income of the family business during the deceased's lifetime was derived from the plaintiff's efforts and that she would have continued to assist him in the running of the business until his death, and that the value of her services in the business was relevant to the determination of what support she would actually have received from her

1978 (3) SA p482

husband had he survived. See P Q R Boberg "Deductions from Gross Damages in Actions for Wrongful Death" (1965) 82 SALJ 324 at 339. The Court was, however, wrong in finding or assuming that the deceased was at the helm of A the family business and that during his lifetime only one-third of the net profit of the business was derived not from the deceased but from the efforts of the plaintiff herself. The evidence led at the trial does not support a finding that the plaintiff's services in the family business generated anything less than one-half of the net income of the business. B The Court erred in directing that the calculation of the parties' damages for loss of support must be based on the income of the family business and not on the drawings therefrom. See P Q R Boberg "Deductions from Gross Damages in Actions for Wrongful Death" (1965) 82 SALJ 324 at 339; P Q R Boberg "The Assessment of Damages for Death" (1972) 89 SALJ 147 at 148. The Court erred in finding that the net annual income of the family C business was R3 921 per annum at the date of death. The plaintiff's loss of support must be calculated by awarding her one-sixth of the estimated income of the business and not, as was done by the Court a quo, by deducting one-third from the net figure which is arrived at by assuming an equal division of the income of the family business between the plaintiff and her husband.

D A Gordon SC (with him P G Combrinck) for the first respondent: The Court a quo correctly found the driver of the Fiat to be solely at fault. The Court correctly found that during his lifetime the plaintiff herself contributed to one-third of the net profit of the business. The Court did E not calculate the dependants' loss by having regard to the income of the family business but accepted that the calculation ought to be based on the net profits of the business. D

No appearance for the second respondent.

Bester in reply.

Cur adv vult. F

Postea (May 11).

Judgment

Trengove AJA:

This is an appeal from a decision of FANNIN J, in the Durban G and Coast Local Division, in an action arising out of a collision between two motor cars, in which first respondent's husband, one Thangavaloo Moodley (the deceased), was fatally injured. The collision occurred on the national road on the North Coast, between Stanger and Groutville, at about H 2 pm on 7 May 1972. The deceased was a passenger in one of the cars, a white Capri, which was being driven by second respondent - he was joined as the third party in the proceedings at the instance of appellant. The other car, a brown Fiat, which was being driven by one Hiraman Lallmohan, was insured by appellant in terms of Act 29 of 1942, read with Act 50 of 1972. First respondent instituted action against appellant, as the registered insurer in terms of Act 29 of 1942 of the Fiat motor car, claiming compensation for herself and her two minor children born of her marriage with the deceased. She alleged in her particulars of claim that the sole cause of the collision was the negligence of Lallmohan, the driver of the insured vehicle. Appellant denied this

1978 (3) SA p483

Trengove AJA

allegation and pleaded that the collision, which was admitted, was caused by the negligence of second respondent, the driver of the Capri. Second respondent, having been joined as the third party, also pleaded that the sole cause of the accident was the negligence of the driver of the...