Heese NO v Road Accident Fund (A 586/2012) [2013] ZAWCHC 157; 2014 (1) SA 357 (WCC) (23 October 2013)

Heese NO v Road Accident Fund (A 586/2012) [2013] ZAWCHC 157; 2014 (1) SA 357 (WCC) (23 October 2013)

The court held that the appellant failed to prove on a balance of probabilities that Peters suffered patrimonial loss due to impairment of earning capacity. The evidence established that Peters' future earning capacity would likely have been sterilised by criminal prosecution and imprisonment in Germany for tax evasion, and that public policy precludes an award for loss of earning capacity where future earnings depend on continued illegality. The court found that Peters would probably have remained in South Africa to avoid prosecution, resulting in the collapse of his business in Germany. The actuarial models and expert evidence presented by the appellant were based on unreliable...

Citation
[2013] ZAWCHC 157
Parties
Appellant: Adv AE Heese N.O.; Respondent: Road Accident Fund
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 October 2013
Case Number
A586/2012
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment on Quantum of Damages
Outcome
Appeal dismissed with costs, subject to provisional order allowing submissions on costs relating to general damages and medical expenses.
Judges
Veldhuizen, Rogers, Schippers
Legal Topics
Loss of Earning Capacity, Quantification of Damages, Public Policy in Award of Damages, Contingencies in Actuarial Calculation, Tax Evasion and Illegality, Road Accident Fund Act
Civil Procedure Delict Loss of Earning Capacity Quantification of Damages Public Policy in Award of Damages Contingencies in Actuarial Calculation Tax Evasion and Illegality Road Accident Fund Act

Case Brief

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Parties

Adv AE Heese N.O.

Appellant

Road Accident Fund

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment on Quantum of Damages

Legal Issues

  1. 1 Whether the appellant proved on a balance of probabilities that Peters suffered patrimonial loss due to impairment of earning capacity as a result of the accident.
  2. 2 Whether public policy precludes an award for loss of earning capacity where future earnings would depend on continued illegality or evasion of tax.
  3. 3 Whether the risk of criminal prosecution and imprisonment in Germany would have sterilised Peters' earning capacity.

Ratio Decidendi

The court held that the appellant failed to prove on a balance of probabilities that Peters suffered patrimonial loss due to impairment of earning capacity. The evidence established that Peters' future earning capacity would likely have been sterilised by criminal prosecution and imprisonment in Germany for tax evasion, and that public policy precludes an award for loss of earning capacity where future earnings depend on continued illegality. The court found that Peters would probably have remained in South Africa to avoid prosecution, resulting in the collapse of his business in Germany. The actuarial models and expert evidence presented by the appellant were based on unreliable...

Court Disposition

Appeal dismissed with costs, subject to provisional order allowing submissions on costs relating to general damages and medical expenses.

Orders

  • Subject to further submissions on costs, the appeal is dismissed with costs.
  • The confirmation of the trial court's order dismissing the action with costs is provisional to the extent that the appellant may file written submissions within two weeks regarding variation of the order to account for payments of general damages and medical expenses.