Brooks v Minister of Safety and Security

Aaron Brooks was the son of Neil Brooks. On 21 October 1995, Neil Brooks, who was licensed to possess firearms but had a history of alcohol abuse and domestic violence, engaged in a shooting incident after drinking. During a domestic squabble, he shot and injured his wife Dawn, killed his 11-year-old daughter Nicole, shot a neighbour (Mr Van Duivenboden), and ultimately killed Dawn. Brooks was arrested, convicted of various offences including murder, and sentenced to 20 years imprisonment. Aaron Brooks sued the Minister of Safety and Security, alleging that police negligence in failing to deprive his father of his firearms resulted in the shooting incident, which led to his father's incarceration and consequent inability to support him. He claimed R168,000 for loss of support and R2,400,000 for loss of educational opportunity. The Minister excepted to the claim on several grounds, including that no delict had been committed against the breadwinner, the police did not act wrongfully, and there was no causal nexus. The High Court upheld the exception on the ground of wrongfulness.

• Whether the common law action for loss of support can be extended to a dependant whose breadwinner has been incarcerated (rather than killed) as a result of the defendant's alleged negligence
• Whether wrongfulness is established in a claim for loss of support arising from incarceration of the breadwinner
• Whether the elements of a dependant's claim for loss of support are satisfied where the breadwinner is alive but incarcerated
• Whether legal policy considerations support extending the dependant's action to cases of incarceration

The appeal was dismissed with costs, including costs consequent upon the employment of two counsel.

The dependant's action for loss of support requires as an essential element the death of the breadwinner who was under a legal duty to provide support. The action cannot be extended to cases where the breadwinner is alive but incarcerated, even if the incarceration results from alleged negligence by a third party in circumstances that led to the breadwinner's criminal conduct. Where the breadwinner is alive and has a cause of action for his own injuries or losses, there can be no concurrent action by dependants for loss of support, as this would result in double recovery for the same damage. Any wrongful conduct by the defendant that injures a breadwinner is wrongful vis-à-vis the breadwinner, not the dependant, as long as the breadwinner is alive. The incarceration of a breadwinner as a result of his own criminal conduct, following lawful arrest, prosecution, conviction and sentence, cannot constitute wrongful conduct by the State giving rise to a claim for loss of support by dependants. Legal policy considerations, including coherence, consistency, and the principle that a person should not benefit from his own wrongful act, preclude extending the dependant's action to such circumstances.

The court observed that extending the remedy to allow dependants to claim where the breadwinner's incapacity to support results from his own intentional wrongful act would produce an absurd result and would be a "dangerous proposition" contrary to the fundamental principle that a person should not benefit from his own wrongdoing. The court noted that the dependant's action in its present form is already "sui generis and anomalous" and that extending it to the circumstances of this case would "accentuate the anomaly." The court commented that to grant the relief sought "would not be to extend legal principle but to go counter to it." The court also referenced the observation in De Vaal v Messing about the anomaly that would arise if contributory negligence (or here, intentional wrongdoing) by a breadwinner could create a cause of action for dependants, creating the absurd scenario where in litigation the breadwinner would argue he was at fault while the defendant would argue the breadwinner was blameless.

This case is significant in South African law because it definitively confirms the limits of the dependant's action for loss of support. It establishes that the common law remedy cannot be extended to cases where the breadwinner is incarcerated rather than deceased, even where the incarceration allegedly results from a third party's negligence. The judgment clarifies the distinction between claims for bodily injury (as in Van Duivenboden) and claims for loss of support, emphasizing that they have different requirements and arise at different times. The case reinforces conservative principles in the extension of Aquilian liability, particularly for pure economic loss, and confirms that policy considerations of coherence, consistency and avoidance of double recovery limit the expansion of delictual remedies. It also affirms that a person cannot create a cause of action through his own wrongful conduct.