The Road Accident Fund (RAF) has been ordered to pay up following an appeal in tortious claim which the claimants’ husband and father committed suicide after – and because of injuries sustained in – a motorcycle accident.
In a judgment delivered on 11 October in the High Court in Cape Town, Judge James Lekhuleni ruled that the appeal against “the whole judgment and order handed down by the trial court” be upheld with costs, including the costs of counsel.
The judge ordered that the widow’s claim succeeds on the merits, and the RAF should pay her “such amount as they may prove to arise from their claim for loss of support as a consequence of the death of the deceased”.
In law and insurance, a proximate cause is “an event sufficiently related to an injury that the courts deem the event to be the cause of that injury”. There are two types of causation in the law: cause-in-fact, and proximate cause.
In a blog published on Norton Rose Fullbright’s platform, Donald Dinnie, a senior litigation lawyer practising in insurance and reinsurance law, provided a breakdown of the court case.
Dinnie explained that in this judgment, the widow and her minor children claimed in delict for loss of support arising from the death by suicide of the husband and father.
As Wikipedia explains it, delictual claims form an important aspect of civil litigation in South Africa, providing individuals with a legal recourse to seek compensation for harm or damage caused by the wrongful actions of others.
According to the facts presented before the court, the husband was involved in a motorcycle accident on 21 June 2014. He collided with another vehicle driven by a driver insured in terms of the RAF Act. As a result of the collision, he sustained multiple orthopaedic injuries to his body. Liability was admitted.
Before his RAF claim was finalised, the husband committed suicide on 6 December 2016. His claim against the RAF was settled after his death on 16 November 2018.
On 17 January 2018, the widow instituted a tortious claim for loss of support arising from the same accident against the RAF in her personal capacity and in her representative capacity of her children, contending that her husband’s suicide and death were causally, factual, and legally related to the injuries the deceased suffered during the collision.
The RAF disputed that any causation existed or could be proved. The trial court found that a causal connection could not be established.
In the appeal case, the widow and her counsel had to prove that on the probabilities her husband’s suicide was a direct or proximate result of the accident.
Casual connection and intervening cause
In the ruling, the High Court set out the applicable legal principles on causation, acknowledging the requirement that both factual and legal causation needed to be established, also referred to as a “causal connection” in legal speak.
The court also had to consider whether suicide in this case could be judged to have been an “intervening cause”.
An intervening cause is described as an event that occurs between the original improper or dangerous action and the damage itself, where (in this case) the motorcycle accident is the “dangerous action”, and the financial loss suffered by the family because of the husband and father’s death is the “damage”.
If an event (such as suicide) is ruled to be an “intervening cause”, it has the legal power to break the “causal connection” between the wrong and damages. This is a “but for” situation, in which the intervention becomes the real reason harm resulted.
According to Dinnie, South African courts recognise that a rigid application of the “but for” test may sometimes yield unpalatable and unfair results and have cautioned against applying rigid deductive logic.
“The common law test is accordingly applied flexibly, recognising that common sense may have to prevail over strict logic,” he wrote.
The relationship between factual cause and consequent loss
Dinnie explained that the inquiry into legal causation follows factual causation.
“It asks whether a sufficiently close relationship exists between the factual cause and the consequent loss to give rise to legal liability. Is the loss too remote for the factual cause to also be the legal cause?”
According to the judge’s ruling, the facts showed common cause existed – the deceased did suffer severe bodily injuries because of the collision.
Evidence heard in court showed that although he was positive initially, he later lost his joy in life. The uncontested evidence was that the injuries sustained in the accident had a profound physical, emotional, and psychological effect on him.
“He was depressed, experienced unending excruciating pain, and could not think clearly about everything. His ability to make an informed judgment was diminished and impaired, and hence he committed suicide on 6 December 2016.
“There is a clear causal connection between the injuries and the sequelae (a condition which is the consequence of a previous disease or injury) suffered by the deceased and the resultant suicide,” Judge Lekhuleni stated.
When presenting its case in the trial court, the RAF referenced the Supreme Court of Appeal (SCA) case of Road Accident Fund v Russell (2001). In his ruling, Judge Lekhuleni conceded that the facts in the present matter were in many respects similar to the facts in the Russell case.
The court a quo distinguished this case from the Russell matter on the basis that in Russell, the deceased had brain damage. In contrast, the deceased did not suffer from brain injury in this case. The trial court also noted that in the Russell case, the deceased was suffering from depression, whereas in this case, the deceased was never formally diagnosed.
However, Judge Lekhuleni said this was neither here nor there.
“It must be stressed that it does not matter whether the impairment of judgment or whether the emotional effect thereof arises from a brain injury or from physical injuries. There is no logical reason to draw such a conclusion.”
The judge said the SCA in Russell did not limit the issue in similar matters to brain injury.
“The critical question is whether, on the totality of the evidence, a finding can be made that there was an impairment of judgment or an emotional issue that precipitated the suicide due to the injury sustained. I find the following reasoning from the Russell judgment apposite for present purposes,” he said.
The High Court found that there was a clear causal connection between the injuries and the sequelae suffered by the deceased and the suicide, and he would not have committed suicide but for the accident.
Suicide ruled ‘not an intervening cause’
So, although the deceased’s act may have been deliberate, Dinnie wrote, the court was of the view that the weight of the evidence presented proved on the probabilities that the deceased’s ability to make an informed judgment was compromised and impaired to a material degree by the unending excruciating pain, stress-related issues, and depression caused by the consequences of the motor vehicle accident.
“Accordingly, although the suicide was deliberate, it did not amount to a new intervening cause.”
However, Dinnie added that the judgment did not find application in relation to life insurance policy exclusions, absent a specific wording.
“Suicide is death. Most life policies now only exclude suicide for the first two years after inception of the policy, but non-disclosure of specific circumstances may be relevant,” he wrote.
