Bane and Others v D'Ambrosi (279/08) [2009] ZASCA 98; 2010 (2) SA 539 (SCA) ; [2010] 1 All SA 101 (SCA) (17 September 2009)

Bane and Others v D'Ambrosi (279/08) [2009] ZASCA 98; 2010 (2) SA 539 (SCA) ; [2010] 1 All SA 101 (SCA) (17 September 2009)

The Supreme Court of Appeal held that while the respondent's loss of earning capacity should be measured by the difference between his likely earnings in London and his actual earnings in South Africa, the cost of living differential cannot be ignored. The evidence did not provide a precise quantification of the adjustment, but the court found it necessary to apply a further contingency deduction of 20% to the London earnings to achieve a fair award. The court rejected the appellants' argument that future medical expenses should be limited to additional premiums, confirming that medical aid payments are contractual and not deductible. The respondent's claim for future increases in income...

Citation
[2009] ZASCA 98
Parties
Appellant: Dr Roy Bane; Appellant: Dr K Michalowski; Appellant: Dr Hayhurst; Appellant: Dr Bowden; Appellant: Drs Morton & Partners; Respondent: Marco D'Ambrosi
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
17 September 2009
Case Number
279/08
Procedural Posture
Civil Appeal / Appeal From High Court, Cape Town (van Zyl J and Traverso Djp)
Outcome
Appeal succeeds in part; cross-appeal dismissed.
Judges
Brand, Jafta, Maya, Hurt, Leach
Legal Topics
Quantification of Damages, Loss of Earning Capacity, Cost of Living Adjustment, Future Medical Expenses, Interest on Damages
Delict Civil Procedure Quantification of Damages Loss of Earning Capacity Cost of Living Adjustment Future Medical Expenses Interest on Damages

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 8 Party arguments 2 Amounts and remedies 8
Sign in to unlock

Parties

Dr Roy Bane

Appellant

Dr K Michalowski

Appellant

Dr Hayhurst

Appellant

Dr Bowden

Appellant

Drs Morton & Partners

Appellant

Marco D'Ambrosi

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Cape Town (van Zyl J and Traverso Djp)

Legal Issues

  1. 1 Should the award for loss of earnings incorporate a deduction for the lower cost of living in South Africa compared to London.
  2. 2 Is the respondent's compensation for future medical expenses limited to additional premiums paid to his medical aid due to chronic illness.
  3. 3 Should future increases in income be considered in the assessment of loss of future earnings.

Ratio Decidendi

The Supreme Court of Appeal held that while the respondent's loss of earning capacity should be measured by the difference between his likely earnings in London and his actual earnings in South Africa, the cost of living differential cannot be ignored. The evidence did not provide a precise quantification of the adjustment, but the court found it necessary to apply a further contingency deduction of 20% to the London earnings to achieve a fair award. The court rejected the appellants' argument that future medical expenses should be limited to additional premiums, confirming that medical aid payments are contractual and not deductible. The respondent's claim for future increases in income...

Court Disposition

Appeal succeeds in part; cross-appeal dismissed.

Orders

  • Paragraph (b) of the order below is amended: (i) The value of the plaintiff's net past loss of earnings is the difference between GBP128,714 and ZAR791,835; (ii) The value of the plaintiff's claim for future loss of earnings is the difference between GBP578,884 and ZAR3,911,705; (iii) The exchange rate is that...
  • Paragraph (c) of the order below is amended: Interest at the prescribed rate is payable by the defendants as follows: (i) on R1,189,253.09 (past hospital and medical expenses) from 17 March 2004 to 31 January 2008; (ii) on R400,000 (general damages) from 20 August 2007 to 31 January 2008; (iii) on expenditure...