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In this case Ponnan JA said at paragraphs 9 and 10 of his Judgment
"The first ingredient of a plaintiff's cause of action for loss of support is a wrongful act by the defendant causing the death of the breadwinner. To satisfy that requirement a plaintiff is required to prove: (a) a wrongful act by the defendant; (b) the death of the deceased; and (c) a causal nexus between (a) and (b). It has been argued that the considerations relied upon in Van Duivenboden in finding in favour of the existence of a legal duty on the part of the police, apply with equal force to this case and there is no good reason why that duty should not be extended to the appellant. This hypothesis, as I shall endeavour to demonstrate, is plainly untenable.
Notwithstanding a measure of overlapping, there is a basic difference between a claim for loss of support and that available to a plaintiff who has suffered bodily injury or sustained damage to his/her property as a result of the wrongful and negligent (or intentional) conduct of the defendant. In the latter case the action lies for a wrongful act committed in respect of the plaintiff's person or property and with culpa (or dolus) vis-à-vis the plaintiff.
The distinction, as Corbett JA pointed out in Evins (at 839C – G), is significant. The facta probanda in a bodily injury claim differ substantially from the facta probanda in a claim for loss of support. Proof of bodily injury to the plaintiff is basic to one; proof of the death of the breadwinner is basic to the other. Moreover, even where both claims flow from the same incident, each cause of action may arise at a different time. The cause of action in respect of bodily injury will normally arise at the time of the event giving rise to the claim, whilst the cause of action for loss of support will arise only upon the death of the deceased which may occur some considerable time later.
That distinction is not purely theoretical in this case. It explains why Van Duivenboden succeeded and the appellant must fail."
I am in respectful disagreement with Ponnan JA. He postulates that a person only accrues a claim for loss of support when a breadwinner on who he relies for such support dies as a result of the negligent and or wrongful act of a third person.
Imagine if you will the following hypothetical scenario:-
A family is travelling by car to the coast on their annual holiday. On route a drunk driver overtakes another vehicle on a blind rise and collides head on with the vehicle in which the family is travelling. The sole breadwinner of the family, the Father is most seriously injured in the collision although not killed. His injuries render him brain damaged and paralysed from the neck down. As a result he is now deprived of earning his living as he will never work again. Had he died in the collision, his wife and surviving children would have enjoyed a claim for loss of support on the basis postulated by Ponnan JA. However because he survives the collision but is still rendered incapable of earning a living as a direct result of the same reckless and negligent act of the drunk driver, on the reasoning of Ponnan JA, his wife and children do not enjoy the same claim.
It would seem to me that a compelling argument which could be advanced is that if the same negligent act deprived Brooks's son of his entitlement to enjoy the financial support his father was legally obliged to provide him, he should be able to claim such loss from the State as Van Duivenboden was so entitled for the injuries he sustained in the incident.
DATED AT JOHANNESBURG ON THIS 23RD JANUARY 2009
LESLIE KOBRIN
BOVE ATTORNEYS
Attorneys, Notaries and Conveyancers
Principal: Vittoria Bove BA LLB (Wits); Associate: Leslie Martin Kobrin Dip Juris (Wits) Bus Man (Dam) Notary Public & Conveyancer
South Wing Suite 1110
11th Floor Schreiner Chambers | 94 Pritchard Street | Johannesburg
Phone: (011)-336-9581/2/3 | Facsimile: (011) 336-9571
E Mail: lesk@boveattorneys.co.za
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