GILLBANKS V. SIGOURNAY.

11
[FANNIN, A.J.] [1959 (2)] [N.P.D.]
"Although he has a home in the Scheduled Native Areas of this district, he
apparently prefers to remain within the urban area. It can be gathered from
his evidence that he considers it unnecessary to work as long as he is able to
continue selling his cattle. Also his attitude towards work is a wrong one and
he appears to have got out of the 'habit' of working. He has now become an
inveterate loafer and I considered that in his own interest, even more than in
the interest of the community, he should be taught the dignity of labour." A
From the foregoing, it seems clear that the commissioner accepted the
accused's evidence that he had a home and that he had cattle which he
could sell to keep him. While, therefore, the accused may be said to
have been habitually unemployed, it is impossible to say that the
evidence established that he had no sufficient honest means of livelihood.
I can find nothing in the evidence which brings the accused within any B
of the other provisions of sec. 29 ( 1), as amended, except the assertion
by him in evidence, which was apparently disputed by the Crown, that
he had been convicted of possessing dagga. This might have brought
him within para. 29 (l) (a) (vi), as inserted by sec. 41 of Act 36 of 1957,
but it was not relied upon by the Crown, nor by the commissioner, and
can be ignored. C
As the evidence, therefore, did not show the accused to be an "' idle
or undesirable native" within the meaning of sec. 29 (1), the native
commisioner had no jurisdiction to make any order upon him under Act
25 of 1945. The provisions of sec. 29 of that Act are intended to be
used only against natives who are proved to be idle or undesirable, D
as defined in that section. They are not intended to be used to teach
persons who have a sufficient honest means of livelihood " the dignity of
labour", however desirable that may be.
In the result, the order of the native commissioner is set aside.

JAMES, J., concurred. E

GILLBANKS v. SIGOURNA Y.

(NATAL PROVINCIAL DIVISION.) F

1958. December 1-5; 18, 19. 1959. Januar.v 21. HENOCHSBERG, {

Negligence.-Damages.-Future earnings.-Assessment of.-Successful

plaintiff liable to pay income tax on amount mvarded.-Amount of
liabilitv for income tax taken into consideration.-lnterest deducted
at rate~ of 4 per cent. G
When a Court, in a claim for damages arising out of an accident, is asked to assess
a claim based upon an estimated loss of future earnings it is really required
to arrive at such a sum presently payable as will give to a plaintiff a periodic
payment, and the figure arrived at should be such that at the end of the
period there should be no capital left.
In an action for damages in respect of injuries sustained in a moto~ accident H
the Court, in awarding the plamtiff an amount for loss of future earnings, took
into consideration the amount the plaintiff would be liable for in income tax.
And in arriving at the present value of the plaintiff's future earnings the
Court adopted a 4 per cent as the rate of interest.
Action to determine the quantum of damages to which the plaintiff
was entitled. Facts not material to this report have been omitted.

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 12 GILLBANKS V. SIGOURNAY.
[HENOCHSBERG, J.] [1959 (2)] [N.P.D.]
J. J. Friedman, Q.C. (with him S. T. Pretorius), for the plaintiff.
A. C. Warner, Q.C. (with him A. J. Milne), for the defendant.

Cur. adv. vult.

A Postea (January 21st).
HENOCHSBERG, J.: On the 27th June, 1954, plaintiff was a passenger
in a motor car which was being driven by defendant along the main road
from Bergville to Estcourt. The motor car left the road and over-turned
near Winterton with the result that plaintiff was thrown out of the car
B and received serious bodily injuries. The motor car was owned by
defendant, but plaintiff was not employed by him and was at the time
being conveyed otherwise than for reward and otherwise than in the
course of defendant's business.
On the 5th June 1957, plaintiff issued summons claiming against
defendant £56,720 8s. 2d. which he alleged to be damages suffered by
Chim as the result of defendant's negligence. In his declaration and
further particulars plaintiff detailed the grounds upon which he alleged
that defendant was negligent. In due course the case was set down for
trial before me on the 19th August, 1958. By agreement between the
parties the only issue that I was then called upon to decide was the
O question of the liability of defendant to plaintiff.
On the 22nd August, 1958, I held that defendant was responsible by
his negligence for the accident and that he was liable in damages to
plaintiff. The question of the quantum of damages was then left over
for settlement between the parties, if possible, or, in the event of that
not being possible, for decision by the Court at a later date. The parties
E not having agreed upon the amount to be paid by defendant,' the action
was again set down for hearing during the December term.
In para. 7 of his declaration plaintiff particularised the injuries suffered
by him thus : -
" As the result of the said motor ·car leaving the road and overturning as afore-
said, plaintiff suffered serious bodily injuries which have resulted in permanent
F disfigurement and deformity and permanent disability and which have caused, still
cause and will continue to cause him severe pain and suffering and loss of
amenities of life.
Particulars of injuries sustained:
(a) Severe contusion of the right eye;
(b) Sub. conjunctiva! haemorrhage;
(c) Multiple fractured ribs on the left chest, with a left-sided pneumo-thorax;
(d) Fracture of the left clavicle;
G (e) Lacerations of the right leg;
(f) Bruises and abrasions of the right lumbar region;
(g) Linear horizontal bruise below the ocuput in the nape of the neck;
(h) Contusion and laceration of the brain;
(i) Severe head injury, causing permanent damage to the brain and resulting in:
(i) blindness of the right eye, with primary optic atrophy;
(ii) impairment of speech;
(iii) impairment of intellect;
H (iv) spasticity or stiffness of the right side of the body affecting the right
arm and right leg;
(v) rigidity and contractures of the joints of the right arm and hand;
(vi) rigidity and contractures of the joints of the right leg and especially of
the right ankle;
(vii) paresis of the muscles of the right side of the face.
The damages claimed by plaintiff totalling £56,720 8s. 2d. are particu·
larised in para. 8 of the declaration under seven heads. The first two

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 GILLBANKS V. SIGOURNAY. 13
[HENOCHSBERG, J.] [1959 (2)] [N.P.D.]
relate to actual and prospective out of pocket expenses for medical.
hospital and nursing attendances; the third represents the alleged loss of
earnings prior to issue of summons; the fourth, plaintiff's alleged loss of
future earnings; the fifth and sixth relate to the costs of a personal
attendant and a wheel chair respectively, both of which are alleged to
be necessary; and the seventh relates to general damages for pain.A
suffering and loss of amenities of life.
When the matter came before me on the 1st December, 1958, it was
agreed between the parties that although the amount claimed in the
summons and declaration under the first heading for medical, hospital
and nursing expenses to date of issue of summons was only £1,585 B
I ls. 7d., an amount of £1,625 3s. 5d. should be awarded under that
heading. I therefore make an award accordingly.
Mr. Friedman, who appeared for plaintiff, at the same time intimated
to the Court that the claim under the. second heading, i.e., for prospec-
tive out of pocket expenses or medical and other attendances would not
be pressed, also that the Court would not be asked to award the amount C
claimed under the sixth heading, i.e., the costs of a wheel chair. Mr.
Friedman then asked for an adjustment of the claims made under the
third and fourth headings, without altering the total of the two claims
taken together, by decreasing the claim for loss of earnings to date of
issue of summons from £3,627 to £3,557 and by increasing the esti- D
mated loss of future earnings from £21,879 to £21.949. Mr. Warner
who appeared for defendant, although not consenting to this adjust-
ment, did not raise any objection to it. Leave was accordingly granted
to plaintiff to make these adjustments.
Broadly, therefore, the issues left for me to decide are the quantum
of damages to be awarded in respect of the claims under the third, E
fourth and seventh headings and the question as to whether an attend-
ant is necessary and, if so, the amount that should be awarded in respect
of the cost of such an attendant. The determination of the sum to be
awarded by way of damages and the other issues mentioned depends
upon the nature and extent of plaintiff's injuries, his earnings prior F
to tpe accident, and an assessment on a balance of probabilities as to
what his future is likely to be and as to what his possible future earnings
might have been had he not met with the accident.
[The learned Judge then dealt with the evidence relating to the plain-
tiff's employment and his earnings prior to the accident. He then
continued.] G
As I am satisfied on a balance of probabilities that plaintiff's loss
for this period exceeds the amount claimed under the third head, I
award the amount claimed, namely, £3,557.
I pass now to consider the claim under the fourth heading for loss
of earning capacity since the issue of summons. This really covers two H
periods. The first being from the date of issue of summons to date
and the other purely prospective, i.e. from now onwards. In order
to assist in calculating the amount to be awarded and in order to make
full use of the calculations made by Mr. Fulford when giving evidence,
I propose to regard the first period as ending on the 31st December,
1958, and the second as commencing on the 1st January, 1959. In

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 14 GILLBANKS V. SIGOURNAY.
[HENOCHSBERG, J.] [1959 (2)] [N.P.D.]
regard to this claim and those made under the fifth and seventh head-
ings it is to be noted that defendant did not challenge three facts,
namely, (i) that plaintiff has to date been unable to work or earn any-
thing, (ii) plaintiff's expectation of life has not been shortened by the
accident and (iii) the period during which he could have worked at
A his occupation, if he had not been injured, was at least until he attained
the age of sixty-five years. Furthermore, two questions were challenged
by defendant, but no evidence was led to controvert the evidence led
on plaintiff's behalf. The first of these two questions is the rate of
interest to be utilised in ascertaining the present actuarial value of the
sum estimated to be plaintiff's future earnings, and the other the possi-
B bility of plaintiff being able to obtain any sort of employment in the
future. In regard to the first of these two questions Mr. Fulford, the
actuary called to give evidence for the plaintiff, in assessing the com-
pensation which he thought should be awarded to plaintiff, utilised 4 per
cent in his calculations. He said he did so because he was concerned
C with long-term interest and the current rates of interest were not neces-
sarily a correct guide. If one were to effect an annuity with an insurance
company for plaintiff Mr. Fulford's view was that the rate of interest
would probably be 4 per cent. He then went on to say that as one
had to draw on the capital from time to time it was a liquid rate of
interest with which one was primarily concerned, nevertheless, by invest-
D ment, one might build the amount up in an endeavour to get the maxi-
mum rate, and if one did he thought one might average out, at the
moment, at 4-!- per cent, but it was not certain whether over the next
twenty years one could do so. Hence he thought 4 per cent was a fair
rate upon which to base one's calculations. He also said under cross-
E examination that because past interest years showed that rates of
interest fluctuated roughly between 2-! per cent to 3 per cent to 7 per
cent within the United Kingdom, when the bank rate went up for a
fleeting moment, he did not think one could expect to get anything
more than 4 per cent. In the case of The New India Assurance Com-
pany Limited v. Naidoo, reported only in 1950 (2) P.H. 14, the Court
F a quo had utilised 4 per cent for its calculations and when this rate was
questioned in the Appellate Division, the full text of the judgment af
CENTLIVRES, J.A. (as he then was) shows that he said:
" As regards the rate of 4 per cent, it seems to me that, in the absence of any
evidence to the contrary, that rate is a reasonable rate: if the learned Judge had
adopted the same rate as was adopted in Goldie v. City Council of Johannesburg,
1948 (2) S.A. 913 at p. 922, viz. 3t per cent, the estimate of damages would have
G been larger."
Mr. Warner's objection to the use of 4 per cent as a basis of calcula-
tion was that it would give plaintiff greater security than he had with his
job with Tucker & Egeland. He pointed out that Mr. Fulford had
said it was not beyond the bounds of possibility to do it properly at
H 4! per cent. Mr. Warner suggested that I should use 5 per cent and
not worry about contingencies. As I appreciate the law on this aspect
of the case, the Court is not required to give an absolutely perfect
compensation. Exact mathematical calculation is impossible. A com-
putation upon an annuity basis affords some guide, but ought not to be
considered as a perfect guide and other circumstances must be given
due weight. In this connection I do not think that I can do better than

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 GILLBANKS V. SIGOURNAY. 15
[HENOCHSBERG, J.] [1959 (2)] [N.P.D.]
apply the same principle as was applied in the Court a quo in The
New India Assurance Co. Ltd. v. Naidoo, supra. That principle as
appears from the abovementioned judgment is that when one is asked
to assess a claim based upon an estimated loss of future earnings one is
really required to arrive at such a sum presently payable as will give
to a plaintiff a periodic payment, and the figure arrived at should be A
such that at the end of the period there would be no capital sum left.
Actuarial expert evidence is in such cases always of considerable assist-
ance, but the Court is not bound by that evidence; it retains its discre-
tion and its assessment of contingencies is still necessary, but in a
fundamental question such as assessing how much capital must be paid B
to a person at this stage in order to enable that person to have a fixed
sum per week or per month for a stated period the evidence of an
expert is invaluable. I can find no valid reason why I should not
follow Mr. Fulford's advice and utilise 4 per cent, provided I make by
way of deduction due allowance for all contingencies including the
accidents of life. There is no evidence before me which indicates any C
warrant for a change of rate from the rate used in 1949 in the case just
quoted, namely, 4 per cent, and approved of by the Appellate Division
in 1950. To my mind Mr. Warner's submission that the use of 4 per
cent as a basis of calculation would give plaintiff greater security than
he had in his job is fallacious, because one only uses a percentage of
interest in order to ascertain the actuarial present day value of a lump D
sum that one assesses as the plaintiff's probable future income; con-
tingencies, such as likelihood of loss of employment, must necessarily
be taken into account before one attempts to ascertain the present day
value of one's estimate. Hence it can hardly be said that jn utilising a
rate of 4 per cent to calculate the present value of probable earnings E
one is giving plaintiff a greater security than he had in his billet.
[The learned Judge then dealt with the injuries sustained by the
plaintiff, their treatment and the amount to be awarded in respect of
lost earnings. He then proceeded.]
Taking all in all, I am satisfied that plaintiff do~s not appreciate his
condition and his future prospects to the full, and that when he does F
discover the hopelessness of any further improvement he is likely to
suffer a severe set-back which will still further handicap him. Further-
more, in my view, plaintiff is unlikely to marry. Plaintiff has, in the
light of what I have said, established that he has no shortened expecta-
tion of life, that he had an expected working life until he reached the G
age of a least sixty-five and that he will be unable to earn anything
for himself for the remainder of his life.
Having arrived at these conclusions I now proceed to consider plain-
tiff's loss of earning capacity for the period from the date of issue of
summons to date, or rather, as I have said, to the 31st December, 1958.
It seems to me that the amount that ought to be awarded for this period H
is the actual estimated loss and that there is no quesion of capitalising
the figure that is arrived at as has been done by the actuary, Mr.
Fulford. As I have already estimated that plaintiff's earnings for the
period ending 30th June, 1957, would have been at least £1,400 and
estimated that for the period from 1st July, 1956, to date of issue of

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 16 GILLBANKS V. SIGOURNAY.
[HENOCHSBERG, J.] [1959 (2)] [N.P.D.]
summons, 5th June, 1957, his earnings would have been £1,300, it follows
that his earnings for the period immediately following t11e issue of
summons until 30th June, 1957, would have been £100. If I make no
allowance for any increase in earnings for the period from date of issue
of summons to 31st December, 1958, and assume that for the year
A ending 30th June, 1958, and for the period 1st July, 1958, to 31st
December, ·1958, his earnings would have remained static, then £1,400
plus £700 should be added to the £100 which will give a figure of £2,200
as plaintiff's estimated earnings for the period from date of issue of
summons to 31st December, 1958.
B When one comes to consider plaintiff's loss of earning capacity for
the period from 1st January, 1959, onwards Mr. Fulford's calculations
that the capitalised value of £1,500 per annum from 1st January, 1959,
over the future working life of plaintiff assessed at sixty-five years and
computed at 4 per cent would be £22,245, and that at £1,200 per annum
it would be £17,796, are of assistance. He had originally estimated that
C by 1958 plaintiff would have beert earning £1,500 per annum. For the
moment assuming that plaintiff's nett earnings from now on were only
£1,400 per annum, then using Mr. Fulford's basis for scaling his figures
up or down, the present day value of £1,400 per annum would be
£20,762. If one adds to £20,762 my figure of £2,200 for the period from
D date of issue of summons to date, one arrives at a figure of £22,962
which is over £1,000 more than the amount claimed under this, the
fourth, head, namely, £21,949. As will be obvious my figure of £22,962
makes no allowance for an increase in earnings since the date of the
accident, except for a sum of approximately £52 added for the year
ending 30th June, 1955. On the evidence, however, the balance of
E probabilities is that plaintiff's earnings would not have remained static,
but would have increased from time to time. Mr. Fulford thought that,
on the information supplied to him it was reasonable to assume that,
at the end of three years after the accident plaintiff's earnings would
have reached a figurt> of £ 1,500, that at the end of five years after the
last mentioned period they would have reached £1,600, at the end of
F five years after that again £1,700 and at the end of five years thereafter
and for the next fourteen years they would have been £1,800. This
figure of £1,800 after eighteen years is the figure supplied by plaintiff's
attorney and given in the further particulars. As I have already said
Mr. Forder estimated that by now, four and a half years after the
G accident, plaintiff's income would have been £2,000 per annum and
that in time it would have increased to £2,500.
In testing the reliability of Mr. Forder's estimate two factors must
not be overlooked; the one js what I would call the time and prospects
factor and the other the reasons that induced Mr. Forder to give up
this apparently very payable branch of Tucker & Egeland's business.
H As to the first of these factors, plaintiff, as I have already said, stated
that he could have coped with further work if it had been offered to
the firm, that he was not fully occupied with his own work and was
always helping in other departments besides finding time to do other
things. Both Mr. Forder and plaintiff in their evidence mentioned
the prospects that there were of additional work. On the probabilities

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 GILLBANKS V. SIGOURNAY. 17
[HENOCHSBERG, J.] [1959 (2)] [N.P.D.]
I am satisfied that plaintiff had time to take on other work and that
other work was available. As regards the second factor, so much
depended upon the man in charge of the department. Plaintiff was, in
Mr. Forder's view. a success. but his predecessor was not. It was the
man that Tucker & Egeland wanted and, at the time, it was not expected
that plaintiff would live after his accident. The accident took place A
just about the end of the financial and income tax year. In this con-
nection Mr. Winterton said that it was unlikely that a bookkeeper would
have been obtainable until October; an urgent decision had to be made.
A firm of accountants might have taken over temporarily, but what
was required to enable the branch to continue was a suitable substitute B
for plaintiff to fill a position peculiar to him by reason of his own
personality, goodwill and reputation at the time. No person was imme-
diately available. In my view a consideration of both these factors does
not lead me to & conclusion that Mr. Forder's estimates are hopelessly
wrong, or, as Mr. Warner described them, ridiculous.
In any estimate of a person's loss of earning capacity allowance must C
be made for all contingencies including the accidents of life and certain
deductions must be made from the estimated gross income to allow for
unemployment benefits, insurance and so on. These contingencies
would include-
(i) a possibility that plaintiff's working life may hav~ been less
O
than sixty-five years;
(ii) a possibility of his death before he reaches the age of sixty-
five years;
(iii) the likelihood of his suffering an illness of long duration;
(iv) unemployment;
~v) inflation and deflation; E
(vi) alterations in the cost-of-living allowances;
( vii) an accident whilst participating in sport such as hockey or
cricket, or at any other time which would affect his earning
capacity; and
(viii) any other contingency that might affect his earning capacity.
As regards these contingencies I would remark that on the evidence the F
probabilities are in favour of a working life until plaintiff did in fact
reach the age of sixty-five years. There was no evidence to indicate
that there was any possibility of an earlier death. The probabilities
are against a person like plaintiff suffering from an illness of long
duration and there was no likelihood of Tucker & Egeland dispensing G
with plaintiff's services. His robustness was evidenced by his recovery
from what was described as the most severe brain injury compatible
with survival. Nevertheless, all these contingencies must be taken into
account. One way to do so would be to estimate plaintiff's' probable
earnings for the full period of his expected working life and make
deductions therefrom before ascertaining the present actuarial value of the H
figure so estimated. Another way to do so in this case would be to
regard plaintiff's estimated earnings since the date of issue of summons
as remaining at the same figure, despite the probability on the evidence
that they would have increased from time to time and would as at
the 31st December, 1958, have been more than £1,400 per annum, and

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 18 GILLBANKS V. SIGOURNAY.
[HENOCHSBERG, J.] [1959 (2)] [N.P.D.]
in this way by making no provision for an increase cancelling out the
allowances for contingencies. This, I think, in this case, is a reasonable
way of making adequate allowance for all contingencies and accidents of
life.
In regard to deductions to be made from gross income one must
A not loose sight of the fact that the unemployment benefit insurance
during the years ended 30th June, 1953, and 30th June, 1954, was
£5 4s. Od. per annum. Assuming for the moment that the unemploy-
ment benefit insurance deduction would have been £10 per annum for
the rest of plaintiff's expected period of working life, that is to say, for
B twenty-eight years, then a deduction of the present actuarial value of
£10 per annum would have to be made from the present actuarial value
of the estimated earnings. Again using Mr. Fulford's basis of cal-
culation, that deduction would be one one-hundred-and-fiftieth of
£22,245, i.e., £148 6s. Od. If I regard plaintiff's earnings for the period
in question as being static and as not exceeding £1,400 per annum, then
C it seems to me that any such deduction for unemployment benefit
insurance is really unnecessary, because the acceptance of plaintiff's
income as static more than off-sets any such deduction. However, even
if a deduction were made and one deducted £148 6s. Od. from the
present actuarial value of £1,400 per annum, rtamely, £20,762, the
D resultant figure of £20,613 14s. Od. plus the £2,200 less say £15 for the
period from date of issue of summons to date, would give a total figure
of £22,798 14s. Od. which would exceed the £21,949 claimed.
The next question is whether I should make any deduction from my
estimate of plaintiff's gross earnings in respect of his income tax
liability, so that my award is only such as would compensate plaintiff
E for loss of earnings after deduction of his liability for income tax which
would, it was said, be the measure of his real loss. In British Transport
Commission v. Gourley, 1955 (3) A.E.R. 797, it was held that in award-
ing damages for incapacity due to injury caused by the tortious act of
another, such damages not being subject to tax, the Court should have
F regard not to the gross sum which the injured person has been prevented
from earning during the period of his incapacity, but to the amount
which would have remained in his hands after he had paid tax at the
appropriate rate during such period. In Whitfield v. Phillips and
Another, 1957 (3) S.A. 318 (A.D.), STEYN, J.A., said at p. 345, that he
had some doubt as to the soundness iii our law of the conclusion reached
Gin Gourley' s case, supra, and the feasibility of adopting similar proce-
dure in the assessment of damages in South Africa. He then, after
stating that it was not necessary to decide that issue in the case then
before him, said :
" In dealing with the question whether the award is for income tax purposes to
be regarded as a capital accrual or as income, the very first difficulty which would
H be encountered would be that by Act of Parliament the determination of the
merits of that question, as distinct from a question of law, has been entrusted
entirely to the Commissioner for Inland Revenue and, on appeal from his
decision, to the Special Court for hearing income tax appeals. An.other court
cannot usurp that function."
According to Silke So11th African Income Tax at p. 33, damages received
for personal injury are an accrual of a capital nature and are not taxable.
Like the learned author of the article in 1957 S.A.L.J. vol. 74 at p. 367,

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 GILLBANKS V. SIGOURNAY. 19
[HENOCHSBERG, J.] [1959 (2)] [N.P.D.]
I find myself, with very great respect, in a difficulty in trying to
appreciate the reasoning of the learrted Judge of Appeal. It seer11s to
me that the question as to whether, in a case such as this, an award of
damages for personal injuries in respect of loss of earning capacity is
to be regarded as a capital accrual or as income, is purely one of law A
and therefore a matter which it is competent for any Court to determine.
With all due deference to the view expressed by STEYN, J.A., and con-
curred in by BRINK, J.A., I think that in principle the basis of assess-
ment laid down in Gourley' s case, supra, is right and I agree with the
decision in Pitt v. Economic Insurance Company Limited, 1957 (3) S.A.
284 (N), where HOLMES, J., at p. 287, said: B
"It will be convenient at this stage to deal with a contention by Mr. Harcourt.
for the defendant, that in awarding damages for loss of income, the Court should
bear in mind the fact that plaintiff would have had to pay income tax on the
income in question, if he had not lost it. In principle I agree with this, as a
general proposition, provided that there is also borne in mind the incidence of
taxation in relation to interest obtainable on the Court's award. It seems to me
that in a case of this kind the object of awarding compensation for loss of income C
is to put the plaintiff financially in the position in which he would have been
but for his injuries. If the Court, in making the award, takes no account of
evidence relating to income tax, the plaintiff might, in the result, be better off
than he would have been if he had not been injured-and at the defendant's
expense."
The difficulty that I have, is that if an award is to be made upon the
basis that it is only the amount of his earnings that would have remained D
in the injured person's hands after payment of tax at the appropriate
rate that is awarded, one will normally be involved in a dispute as to
the plaintiff's tax position and there will be uncertainty in deciding
whether or not to accept a tender or payment into Court. A Court's
task in estimating damages is difficult enough and the uncertainties
of the future make any precise calculation in respect of income tax well E
nigh impossible. In this particular case all I know definitely is plain-
tiff's income both from his employment with Tucker & Egeland and
from investments during the tax years ending 30th June, 1952, 1953 and
1954. I have no idea what his rate of tax was, nor have I any idea
as to what his income from investments, etc., has been since 1954 or F
will be in the future. Furthermore, I have no idea what the incidence
of taxation in relation to interest obtainable on the Court's award of
damages in this case will bt!. I have therefore very little material before
me upon which to base any estimate of his tax liability. Mr. Fulford
in his calculations used a rate of 2s. in the £; using that rate on £1,400
per annum the figure would be £140 per annum and the present-day G
actuarial value of £140 per annum for the rest of plaintiff's working
life would be £2,076 4s. Od. to which must be added tax liability on
the £2,200 estimated as earnings from date of issue of summons to date,
namely, £220, making a total estimated tax liability of £2,296 4s. Od.
without taking into account the incidence of taxation in relation to interest
obtainable on the Court's award for which allowance must be made. H
Calculations in this way seem to me to be hazarding a guess:-no-one
can foresee whether tax will go up or down. Nor do I know whether
plaintiff still has the income from investments that he had in 1954. I
am not even sure whether in plaintiff's case a rate of 2s. in the £ is a
fair rate. If plaintiff's investments were such that they might be sold

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 20 GILLBANKS V. SIGOURNAY.
[HENOCHSBERG, J.] [1959 (2)] [N.P.D.]
at any time I think that little regard should be had to the income there-
from in arriving at the amount by which gross earnings should be
reduced by tax liability. Bearing in mind what I have just said and
mindful as I am of the fact that I really have not the material on which
to arrive at an arithmetically calculable sum to which, as has been said
A by others, I should pay less or little regard, I must do my best to arrive
at what I consider a reasonable sum to award plaintiff as damages.
taking care to see that my award is fair to both sides giving just
compensation to plaintiff, and yet as HOLMES, J., said in Pitt's case,
supra, not pouring out largesse from the horn of plenty at the defen-
B dant's expense. In all the circumstances, if I base my award upon an
assumption that throughout the period from the date of issue of
summons until he reaches the age of sixty-five, plaintiff's earnings after
making allowance for contingencies and deductions including income
tax liability, would have provided him with a net income of £1,400
per annum, and I reduce the present actuarial value of that sum by
C the amount that it exceeds the amount claimed, I think I would be
making a reasonable award. As I have already said the present-day
actuarial value of £1,400 per annum for the period from date until
plaintiff reaches the age of sixty-five is £20,762. To that sum must be
added an award at the rate of £1,400 per annum in respect of the
D period from date of issue of summons to date which I earlier fixed at
£2,200. These two amounts added together give a figure of £22,962
which exceeds the amount claimed under the fourth head. I therefore
reduce the £22,962 to the amount claimed and award a sum of £21,949
in respect of the claim under the fourth head.
[The learned Judge then dealt with the other heads of damages and
E concluded.]
To sum up, therefore, there will be judgment for plaintiff for
£41,351 3s. 5d. made up as follows:
(a) medical, hospital and nursing expenses £1,625 3s. 5d.
(b) loss of earnings to date of issue of
summons .................... . £3,557 Os. Od.
F (c) estimated loss of future earnings ... £21,949 Os. Od.
(d) costs of an attendant .. . . . . .. . . . . .. . £4,220 Os. Od.
(e) damages for pain and suffering and loss
of amenities of life . .. .. . .. . .. . .. . .. . . .. £10,000 Os. Od.
At the request of counsel the question of costs will be dealt with on
G Friday next, 23rd January, 1959.
[After hearing argument the Court awarded plaintiff the costs of the
action.]

Plaintiff's Attorneys: Hcllett & de Waal. Defendant's Attorneys:

H Stacken & McLean.

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