What you see is not (always) what you get

Where a claim is submitted for loss of support by the spouse of the deceased breadwinner, the claim will be influenced by the remarriage prospects of the surviving spouse.
In the recent decision of the Gauteng High Court (Pretoria) in the matter of Esterhuizen v the Road Accident Fund 2017 (4) SA 461, the Court examined the role played by physical appearance in respect of the remarriage contingency deduction in a loss of support claim.

We have over the years seen an evolving trend of language usage in connection with the physical features of a person which is designed to avoid offence.  For example, we sometimes hear that a person who is short may be referred to as “vertically challenged”, or a bald man may be “follicly challenged.”  We now find an interesting development in our case law relating to loss of support where previously, in respect of contingency deductions for a widow’s chance of remarriage, the physical appearance of the widow was considered a relevant factor.  For example, in the decision of Legal Insurance Company Ltd v Botes 1963 (1) SA 608 (A), the Court made reference to the widow as being “not unattractive” and assessed her remarriage prospects to take this into account. 

This approach, it seems, is now to be regarded as of historical interest only, and yields to the precepts of the Constitution which contains provisions relating to dignity and equality. This is illustrated in the matter of Esterhuizen v the Road Accident Fund where the Court held that taking into account a woman’s appearance and nature in determining her chances for remarriage is “outdated and offensive” and “not in accordance with the constitutional values of dignity and equality enshrined in our Constitution.” The Court further held that an award for damages should be fair, and accordingly should allow for the possibility of remarriage, but that no reliance should be placed on factors such as appearance, for the reasons mentioned above. The Esterhuizen decision, although decided in the context of a female plaintiff, should apply to both males and females, both enjoying the same Constitutional rights.

The decision leaves prospective defendants in the rather unique situation of not being in a position to distinguish between, for example, a prominent male or female supermodel and another person who has not received the same accreditation for his or her physical appearance, when taking into account the possibility of a remarriage. Defendants are left to focus on other issues which can be taken into account when determining the prospects of remarriage, such as the age of the Plaintiff, the social circumstances and his or her general welfare and health. In future, it appears that Defendants will be focusing more on statistics rather than the individual characteristics of the surviving spouse when defending such claims.

It will be seen from the Esterhuizen decision that the Court did not venture into the pastures of George Orwell’s Animal Farm, and held that, in the context of outward beauty and remarriage, we are all equal.

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