Callender-Easby and Another v Grahamstown Municipality and Others

• Jurisdiction: South Africa
• Judge: Smalberger J and Howie J
• Judgment Date: 05 February 1981
• Citation: 1981 (2) SA 810 (E)
• Hearing Date: 02 February 1981
• Court: Eastern Cape Division

Howie, J.:

In this action the third party has excepted to defendant's third party notice and the annexure thereto.

The relevant pleadings may be summarised thus.

First plaintiff, in his capacity as father of the third party, claims B damages from defendant in respect of damage to the third party's motor vehicle in an accident on 22 April 1979. Second plaintiff, both in his personal capacity and in his capacity as father of his son, Thomas, sues defendant for damages arising from personal injuries sustained by Thomas in the accident. The third party and Thomas, both minors at all relevant C times, were travelling in the vehicle along Prince Street, Grahamstown - the third party driving - when the vehicle, so plaintiffs allege

"left the said road, at a point where it ends on the one bank of a stormwater canal and fell into the canal."

D Plaintiffs maintain that the accident was due entirely to negligence on the part of defendant, inter alia, in having failed to warn of the danger inherent in the road's sudden termination on the brink of the canal.

In its plea defendant denies any negligence on its part but, in the alternative, alleges contributory negligence against the third party and E pleads that such negligence warrants the reduction of any damages suffered by him.

In its third party notice and annexure defendant again denies any negligence on its part and proceeds to allege that, if it was negligent, and if second plaintiff has suffered damages, then those damages, while F partly attributable to the negligence of the defendant, are partly due to the negligence of the third party relative to his driving of the vehicle.

Defendant then goes on to allege further, and to claim, as follows:

"9.

In the premises the third party and defendant were joint wrongdoers in regard to the damages suffered by the second G plaintiff and defendant is entitled to a contribution from the third party.

10.

The issues relating to negligence in the action is subscantially (sic) the same as the issues relating to negligence which will arise between defendant and the second plaintiff.

Wherefore defendant claims an order:

1.

H Declaring the third party to be a joint wrongdoer with defendant in respect of any damages suffered by the second plaintiff.

2.

Declaring the third party to make a contribution to the defendant in respect of such damages of such amount as the honourable Court may deem just and equitable.

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