Berry NO obo P v Road Accident Fund (1189/2014) [2018] ZAFSHC 117 (5 July 2018)

Berry NO obo P v Road Accident Fund (1189/2014) [2018] ZAFSHC 117 (5 July 2018)

The court found that, given the child’s family background, educational history, and the prevailing economic conditions in South Africa, a 25% contingency deduction for both pre-morbid and post-morbid income is just and fair. The court rejected the plaintiff’s argument for lower contingencies and the defendant’s argument for higher post-morbid contingencies, applying a uniform 25% deduction to both. The calculation resulted in a net award of R784 257.00 for loss of income. The court emphasized the subjective nature of contingency determination and the need to realistically assess future prospects, considering expert evidence but not being bound by it.

Citation
[2018] ZAFSHC 117
Parties
Plaintiff: Andre Berry N.O o.b.o S P; Defendant: Road Accident Fund
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 July 2018
Case Number
1189/2014
Procedural Posture
Civil Trial / Quantum Determination After Liability Settled
Outcome
Plaintiff’s claim for loss of income is upheld with a 25% contingency deduction applied to both pre-morbid and post-morbid income. Costs awarded to plaintiff.
Judges
J P Daffue
Legal Topics
Road Accident Fund Act, Loss of Income, Contingency Deductions, Quantum of Damages, Expert Evidence
Civil Procedure Delict Road Accident Fund Act Loss of Income Contingency Deductions Quantum of Damages Expert Evidence

Case Brief

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Parties

Andre Berry N.O o.b.o S P

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Quantum Determination After Liability Settled

Legal Issues

  1. 1 What is the appropriate percentage of contingencies to be applied to the calculation of pre-morbid and post-morbid income for the minor child?
  2. 2 Should different contingency percentages be applied to pre-morbid and post-morbid income?
  3. 3 Is the plaintiff entitled to the claimed amount for loss of income based on the expert actuarial report?

Ratio Decidendi

The court found that, given the child’s family background, educational history, and the prevailing economic conditions in South Africa, a 25% contingency deduction for both pre-morbid and post-morbid income is just and fair. The court rejected the plaintiff’s argument for lower contingencies and the defendant’s argument for higher post-morbid contingencies, applying a uniform 25% deduction to both. The calculation resulted in a net award of R784 257.00 for loss of income. The court emphasized the subjective nature of contingency determination and the need to realistically assess future prospects, considering expert evidence but not being bound by it.

Court Disposition

Plaintiff’s claim for loss of income is upheld with a 25% contingency deduction applied to both pre-morbid and post-morbid income. Costs awarded to plaintiff.

Orders

  • Defendant is ordered to pay to plaintiff the amount of R784 257.00 together with interest at the prevailing rate from 14 days after judgment to date of final payment.
  • Defendant shall pay plaintiff’s costs of the action, including qualifying and reservation fees and expenses of all further necessary expert witnesses not covered by previous orders.