Damages for loss of support

Death takes away more than just the life of one person. It ends dreams, aspirations and hopes for not only that person but in most cases, even those of his or her loved ones. Others lose the breadwinners in their family and life changes forever. Fortunately, the law has provided a remedy to enable those who lose their loved ones to receive the necessary support through what are known as ‘damages for loss of support’.

I must make it clear from the onset that the life of a loved one can never be compensated by money. The loss of a loved one is incapable of being quantified. However, the law sets in to provide compensation for the loss of support that one had been receiving from their loved one.

The main requirements that one must establish in such a claim are as follows:
1. A wrongful act by the defendant which caused the death of the deceased
2. A legal right to be supported by the deceased vested in the Plaintiff prior to the death of the deceased
3. Loss in the sense of a real deprivation or anticipated support

Each of these requirements will be examined in detail below.

1. Wrongful act by the defendant

The Plaintiff must be able to show that there was a wrongful act by the defendant which caused the death of the deceased person. In the Zimbabwean case of Joyce Mwachinduka v Minister of Home Affairs and Three Others (2006), the Plaintiff’s husband had been shot during a confrontation between law enforcement officers and workers at an industrial action. The Plaintiff argued that the Defendants had acted negligently in using excessive force to control a peaceful industrial action. Whilst the Defendants had sought to counter this argument by stating that what they did had been necessary to contain the volatile situation that had arisen at the workplace, the court found that the law enforcement officers had been unduly and unjustifiably aggressive in dealing with the workers and thus had acted unlawfully. Accordingly, the court found in favour of the Plaintiff.
It is important that the acts of the defendant must have caused the death of the deceased. Without the death of the person supporting the Plaintiff, the court will not award damages for loss of support. In a South African case of Aaron Jonathan Brooks v The Minister of Safety and Security (2008), the Plaintiff’s father had been convicted and sentenced to a lengthy imprisonment after he had shot and killed his wife and daughter. The Plaintiff then sued the Minister for damages of loss of support on the basis that the incarceration of his father had led to his loss of support. The Plaintiff in that case was unsuccessful as the court found that he had failed to establish the basic requirement for such a claim, that is, the death of the person supporting him. The court further stated that the Plaintiff’s father could not benefit from his own wrong as would have happened if the court would have awarded damages flowing from his incarceration.

2. Legal right of support                                                                                                                                                 
The deceased must have had a legal duty to support the Plaintiff at the time of his death. The Plaintiff must prove that he or she could not support themselves and that they were therefore dependent upon the support from the deceased. The duty to support the Plaintiff must have arisen during the deceased’s lifetime. Therefore, a parent cannot sue in the case of a minor child from whom they received no support (except in cases where the minor child was supporting the parent).
The duty to support must also be legal, that is, there must have been a legal obligation incumbent upon the deceased person. In a certain Zimbabwean case, the deceased had been maintaining his employee’s child out of his generosity and benevolence. Upon his death, the employee sought to claim maintenance on behalf of her child on the basis that the deceased had been maintaining him during his lifetime. In that case, the court declined to grant an order in favour of the employee as it found that whilst the deceased had indeed been maintaining the child, there had been no legal obligation on him to do so such as to salgen.it burden the estate. Although in that case, the issue revolved on a deceased estate, the same principle of maintenance applies as there must be a legal duty to support or maintain.

3. Loss-real deprivation or anticipated
The Plaintiff must be able to show that they indeed suffered loss of support and such support must have been financial.
The South African case of Lategan v Road Accident Fund is pertinent to illustrate the application of this principle. The facts of that case were that the Plaintiff was the sole breadwinner in their family and during the deceased’s lifetime, he had received no support from her (the deceased was his wife). However, she had been the one looking after their child. After her death, he resigned from his job to look after the child. The court declined to award him damages as he had failed to prove that he had lost any financial support arising from the death of his wife.

One who seeks to make such claim must also ensure that they have sufficient evidence to establish the income that the deceased was earning during his lifetime. It must be noted that the courts will not rely on the expenses incurred by the Plaintiff for it is a basic fact of life that expenses may often be much higher than a breadwinner’s earning capacity. See Caroline Mabaire v Shepherd Jailosi and Another).

In that case, the Plaintiff succeeded in presenting sufficient evidence to the court of her late husband’s earnings and the court awarded her damages in the sum of One Hundred and Eight Thousand United States Dollars (US$108 000.00)!!!

This remedy must never be overlooked as it provides relief to those who would have lost their loved ones through the unlawful actions of another. A case in point is that of the recent King Lion bus disaster where the negligent and reckless actions of the bus driver took the precious lives of 43 people.

There is an old adage which says vigilantus non dormientibus jura subveniunt, which simply means, the law will help the vigilant but not the sluggard. As I stated at the onset, the compensation is not for the loss of a life but for the loss of support derived from that life. Whilst the loved one’s life is irreplaceable, the lives of those remaining must not be put into perpetual turmoil.