Bloom v General Accident and Life Assurance Corporation Ltd and Another

• Jurisdiction: South Africa
• Judge: James J
• Judgment Date: 13 December 1966
• Citation: 1967 (2) SA 116 (D)
• Hearing Date: 23 November 1966
• Court: Durban and Coast Local Division

B James, J.:

Immediately after judgment had been delivered in this matter Mr. Cadman disclosed to me that the first defendant had paid into Court on 18th November, 1966, the sum of R850 as a 'without prejudice' offer of settlement in terms of Rule 34 (4) (b) of the Rules of Court. C In the notice to the plaintiff and the second defendant it also tendered to pay one-quarter of the plaintiff's taxed costs to date. Mr. Cadman disclosed further that the plaintiff had not accepted this payment as she was entitled to do in terms of Rule 34 (7) and, in the light of this circumstance, and of the fact that, in the result, first defendant had been ordered to pay plaintiff only R600.14, he requested D that the Court should in terms of Rule 34 (9) (b) consider afresh the order made in regard to costs. As a result of this application I withdrew the order I made in regard to costs and heard argument from all parties on the question whether the non-acceptance of the secret tender by the plaintiff should result in a modification of that order.

E It will be convenient to recapitulate the history of this action. On 17th January, 1966, the plaintiff was a passenger in a Renault car which was travelling to Durban on the Main North Coast Road when two cars, a Taunus and a Volkswagen, endeavoured to overtake her simultaneously. In the process of this operation they came into contact with each other and F as a result the Volkswagen which was the centre car swerved to its left and bumped into the Renault causing it to leave the road. The plaintiff sustained injuries and in due course sued the first defendant as the insurer of the Volkswagen, and the second defendant as the insurer of the Taunus, individually and jointly and severally for the sum of R3,862.72 which she claimed were the damages she suffered.

G In their pleas each defendant sought to place the blame for the accident upon the sole negligence of the driver of the car insured by the other. After hearing evidence I came to the conclusion that the driver of the Volkswagen was 20 per cent and the driver of the Taunus 80 per cent to blame for the accident. I also found that the total amount of the H damages sustained by plaintiff was R3.000.72. I accordingly acted in terms of sec. 8 (a) (ii) of the Apportionment of Damages Act, 34 of 1956, and granted judgment against first defendant in the sum of R600.14 and against second defendant for R2,400.58 and ordered first defendant to pay one-fifth and second defendant four-fifths of plaintiff's taxed costs (which included certain qualifying fees).

I now turn to consider whether the order in regard to costs should be amended as a result of the fact that the secret tender made in terms of Rule 34 (4) (b) was not accepted by the plaintiff.

James J

It will be convenient first to set out those Rules which appear to have a bearing on the subject, which are as follows:

'Rule 34. (4) Any party to an action who stands to be held liable to any other party to contribute towards or to be held liable with such party for the payment of any amount which may be recovered by any other party, A may either unconditionally or without prejudice by way of an offer of settlement -

(a)

make a written offer to that other party to contribute either a specific sum or in a specific proportion towards the amount to which the plaintiff may be held entitled in the action, or

(b)

pay into court a sum in respect of the share of the amount to which the plaintiff may be held to...