Abbott v Bergman

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA and Juta JA
• Judgment Date: 19 November 1921
• Citation: 1922 AD 53
• Hearing Date: 07 November 1921
• Court: Appellate Division

De Villiers, J.A.:

The plaintiff brought an action in the High Court of Southern Rhodesia against the defendant for damage sustained by him, the damage, as it is alleged, being due to injuries sustained both by plaintiff and his wife, to whom he is married in community of property, through the negligent driving of defendant's employee, acting in the course of his employment.

De Villiers, J.A.

Several exceptions were taken to the declaration: (1) That the capacity in which plaintiff sues is not disclosed (2B); (2) that it is a misjoinder to join in one action two causes of action alleged to have accrued to different persons (1B); (3) that in so far as the alleged injuries to the plaintiff's wife were concerned, it discloses no cause of action in the plaintiff (1A). All three exceptions were upheld, and the question on appeal is whether this decision is right Now the learned Judge was quite right in saying that "nowhere so far has the wife of the plaintiff joined in this action, and nowhere does the plaintiff state that he is suing on her behalf and in his capacity as guardian. She is not yet in any way a party to any action, and the defendant has nothing to answer in regard to her." And he went wrong, therefore, in assuming that the plaintiff brought the action both in his private capacity and on behalf of his wife in his capacity as her husband and natural guardian.

As the learned Judge himself clearly saw, this is nowhere stated and is not the case. Upon the frame of the declaration there is only one plaintiff, William George Abbott; and, in the absence of any statement in the declaration to the contrary, he must be taken to bring the action in his private capacity and on his own behalf. It is quite true that he goes on to say that he has suffered damage through the injuries sustained by himself and his wife, but he only sues for damage which he himself is able to claim on that score. The two first exceptions should, therefore, have been dismissed.

There remains the interesting question whether a husband has himself a right of action in respect of nonfatal injuries to his wife. Now in the case of the Union Government v Warneke (1911 AD 657), this Court, upon a careful review of the authorities, came to the conclusion that a husband was entitled to claim damages sustained by reason of the death of his wife. It was pointed out that the action was based upon an extension of the Lex Aquilia by which only patrimonial loss can...