Melck v Road Accident Fund (32449/2007) [2013] ZAGPJHC 34 (13 February 2013)

Melck v Road Accident Fund (32449/2007) [2013] ZAGPJHC 34 (13 February 2013)

The court found that, given the severity of the minor child's brain injuries and her resulting inability to obtain anything other than sheltered employment, a contingency deduction of 7% was fair and reasonable. However, the court acknowledged that no authorities were cited where such a low percentage was applied, and that there is a reasonable possibility another court may reach a different conclusion. The court therefore granted leave to appeal on the question of the appropriate contingency deduction, recognizing that an appellate court may interfere with the exercise of discretion in this context.

Citation
[2013] ZAGPJHC 34
Parties
Plaintiff: H Melck; Defendant: Road Accident Fund
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 February 2013
Case Number
32449/2007
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Contingency Deduction
Outcome
Leave to appeal granted to the Supreme Court of Appeal on the question of the contingency deduction percentage.
Judges
Roelof du Plessis
Legal Topics
Contingency Deduction, Loss of Earning Capacity, Personal Injury, Quantification of Damages
Civil Procedure Delict Contingency Deduction Loss of Earning Capacity Personal Injury Quantification of Damages

Case Brief

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Parties

H Melck

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment on Contingency Deduction

Legal Issues

  1. 1 What is the appropriate contingency percentage to be applied to the minor child's loss of earning capacity?
  2. 2 Is there a reasonable prospect that another court would reach a different conclusion regarding the contingency deduction?
  3. 3 Did the court exercise its discretion correctly in determining the contingency percentage?

Ratio Decidendi

The court found that, given the severity of the minor child's brain injuries and her resulting inability to obtain anything other than sheltered employment, a contingency deduction of 7% was fair and reasonable. However, the court acknowledged that no authorities were cited where such a low percentage was applied, and that there is a reasonable possibility another court may reach a different conclusion. The court therefore granted leave to appeal on the question of the appropriate contingency deduction, recognizing that an appellate court may interfere with the exercise of discretion in this context.

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal on the question of the contingency deduction percentage.

Orders

  • The applicant (defendant in the court a quo) is granted leave to appeal to the Supreme Court of Appeal of the Republic of South Africa on the question whether the contingency deduction of 7% should have been applied, and if not, to determine the contingency percentage which should be applied.
  • The costs of the application for leave to appeal shall be costs in the appeal.