Road Accident Fund v Monani and Another

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Lewis JA, Maya JA and Hurt AJA
• Judgment Date: 20 March 2009
• Citation: 2009 (4) SA 327 (SCA)
• Hearing Date: 19 February 2009
• Docket Number: 241/2008
• Counsel: MJM Bridgman for the appellant. RDE Gordon for the respondents.

Road Accident Fund v Monani and Another
2009 (4) SA 327 (SCA)

2009 (4) SA p327

Citation	2009 (4) SA 327 (SCA)
Case No	241/2008
Court	Supreme Court of Appeal
Judge	Lewis JA, Maya JA and Hurt AJA
Heard	February 19, 2009
Judgment	March 20, 2009
Counsel	MJM Bridgman for the appellant.; RDE Gordon for the respondents.

Flynote : Sleutelwoorde B

Delict — Action for damages — Loss of support — Dependant's action — Quantum of award — Court having wide, equitable discretion to arrive at fair award — One dependant dying contemporaneously with breadwinner — Whole of breadwinner's income would have been devoted to upkeep of family — Deceased dependant's hypothetical share of maintenance to be distributed C among surviving dependants.

Headnote : Kopnota

The respondents (plaintiffs a quo) instituted action against the appellant (the Fund) in the High Court for damages for loss of support flowing from the death of the deceased in a motor-vehicle accident. At the time of his death, D the deceased supported his 'wife', the plaintiffs and another child dependant (Thando) who died along with him in the accident. The matter came before the High Court as a stated case and the court was required to determine whether the death of Thando in the accident constituted a collateral benefit resulting from the accident, for which the plaintiffs should not be compensated. The parties were agreed that, in the event of the E court's finding that the death of Thando was not a collateral benefit resulting from the accident, the plaintiffs would be entitled to receive damages in a further sum of R163 428, the parties having already agreed that the plaintiffs were entitled to payment of the sum of R1 389 531. The High Court held that the additional amount of R163 428 was payable and F gave judgment for the total amount of R1 552 959. The Fund appealed against that decision to the Supreme Court of Appeal. On appeal, counsel for the Fund contended that the award to the surviving dependants had to be restricted to what they would have received had Thando not died.

Held, that the court had a wide, equitable discretion in arriving at a fair award in a dependant's action for damages for loss of support. (Paragraph [2] at 329E.) G

Held, further, that the computation of the award in a claim by dependants had two parts to it. The first part of the exercise was to assess what the breadwinner would probably have earned had he not died when he did. The gross amount was appropriately adjusted and discounted to arrive at a'present-day value'. In those cases where it was assumed that the whole of H the breadwinner's income would have been devoted to the upkeep of his family (and the present case was one of them), the second exercise was to distribute the equivalent of the lost income between the beneficiaries. (Paragraph [3] at 329G - H.)

Held, further, that if Thando had died before the date of the delict, the plaintiffs I would have been entitled to the extra amount of R163 428. And that would also be the position if she had died at any time after the date of the delict. There could thus be no basis, in logic or otherwise, for a contention that, since her death occurred contemporaneously with that of the deceased, the amount of R163 428 fell to be excised from the award. (Paragraph [10] at 332D - F.) Appeal dismissed. J

2009 (4) SA p328

Cases Considered

Annotations A

Reported cases

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

Hulley v Cox 1923 AD 234: dictum at 243 - 244 applied B

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

Lambrakis v Santam Ltd 2002 (3) SA 710 (SCA): referred to

Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A): dictum at 614C - F applied

Wigham v British Traders Insurance Co Ltd 1963 (3) SA 151 (W): dictum at 156B - D applied. C

Case Information

Appeal from a decision in the Cape Provincial Division (Erasmus J). The facts appear from the judgment of Hurt AJA.

MJM Bridgman for the appellant.

RDE Gordon for the respondents. D

Cur adv vult.

Postea (March 20).

Judgment

Hurt AJA: E

[1] This is an appeal by the Road Accident Fund against an award of damages in a dependants' claim. It will be convenient to refer to the parties by their respective designations in the trial court, viz to the F appellant as 'the defendant' and to the respondents as 'the plaintiffs'. The issue is a very narrow one and was defined in a stated case in terms of rule 33(4). The stated case reads as follows:

'1.

Xolani Andrew Molani (''the deceased'') died in a road accident on 7 December, 2001 (''the accident'').

2.

G At the time that he died he had a duty to support and supported -

2.1

First Plaintiff;

2.2

Second Plaintiff, Xolasisipho Monani (''Xolasisipho'');

2.3

Anela Aubrey Kwezi (''Anela'');

2.4

H Thando Monani (''Thando'').

3.

Thando died in the accident and as a result thereof.

4.

The claim of Anela has not been prosecuted in these proceedings, [1] but the fact that Anela has a claim against the estate of the Deceased for loss of support has been taken into account in reducing the sum of damages due to the Plaintiffs as contemplated I below.

2009 (4) SA p329

Hurt AJA

5.

The parties have agreed on the amount of the Deceased's past and A future earnings, contingencies to be applied to the Plaintiffs' claims and the ratio in which the amount of money available to the...