Casely, NO v Minister of Defence

• Jurisdiction: South Africa
• Judge: Van Blerk JA, Rumpff JA, Holmes JA, Trollip JA and Muller JA
• Judgment Date: 22 November 1972
• Citation: 1973 (1) SA 630 (A)
• Hearing Date: 23 September 1972
• Court: Appellate Division

G Trollip, J.A.:

This appeal raised two questions: (a) whether sec. 145 (1) (a) of the Defence Act, 44 of 1957, applies to the plaintiff's minor son, who, while a military trainee travelling in a military vehicle in connection with his training as such, was severely injured through the H alleged negligence of the driver of the vehicle; and (b) if so - and this is the important and novel issue - whether sec. 37 of the War Pensions Act, 82 of 1967, which would then be applicable, precludes a claim against the State under the common law for the particular damages claimed for such injuries.

Those questions have arisen in this way. The plaintiff, on behalf of his minor son, then aged 19 years, sued the Minister of Defence for R92 000. In the particulars and further particulars of his claim he

Trollip JA

alleged that, on 16th March, 1971, his son was travelling as a passenger in a military vehicle driven by one van Deventer,

'acting in the course of his duties and within the scope of his employment as a servant of the defendant'.

A At the time his son was a member of the Citizen Force of the South African Defence Force and was being so conveyed

'during the course, scope and in connection with his military training as a member of the Citizen Force',

and

'in the course of business of the driver and the owner of the said motor vehicle',

B i.e., in the course of the business of the South African Defence Force. The particulars further alleged that on that date and at a particular place the vehicle overturned, due to van Deventer's negligent driving, in consequence of which the plaintiff's son was severely injured. Those injuries, it was alleged, were suffered by his son

'within the scope, performance and/or execution of his military C functions and training as a member of the Citizen Force'.

More particularly, the injuries he sustained were, firstly, a severed artery in the left arm, a cracked left shoulder blade, two compacted vertebrae in the spine, and a cracked bone in the left cheek - they caused temporary but not permanent loss of amenities and disability; and D secondly, severe damage to the nervous system resulting in paralysis of the left arm, a drooping left eyelid, and an enlarged pupil of the left eye. The latter have caused not only temporary but also permanent, partial disability in certain respects, disfigurement, and loss of amenities. The amount claimed comprises (i) R20 000 for pain and suffering, (ii) R5 000 for shock, (iii) R35 000 for disfigurement, and E (iv) R40 000 for loss of amenities. That totals R100 000. Of that amount, R8 000 represented the defendant's maximum liability under the provisions of the Motor Vehicle Insurance Act, 29 of 1942, and the balance, R92 000, his alleged liability under the common law. Only the latter amount was F now claimed, since the provisions of that Act have not yet been complied with.

The defendant excepted to the plaintiff's claim on the ground that sec. 145 of the Defence Act and sec. 37 of the War Pensions Act, both mentioned above, were applicable and barred such a claim. DE WET, A.J., in the Transvaal Provincial Division, upheld the exception and dismissed G the plaintiff's claim with costs. The plaintiff has appealed against that decision.

In regard to the first question, sec. 145 (1) of the Defence Act, as amended, reads as follows:

'(1) The provisions of this section shall apply -

(a)

to a member of -

(i)

H the South African Defence Force, other than a member of the Permanent Force; or

(ii)

the Reserve,

who is suffering from disablement caused or aggravated by his military service or training, irrespective of the date on which such disablement arose or was so aggravated, provided such disablement is not due to the member's own serious misconduct; and

(b)

to a widow, child, parent or other dependant of such a member who dies as a result of a wound, injury, or disease which was caused or aggravated by his military service or training, irrespective of the date on which such wound or injury was received or such disease was contracted or was so aggravated.'

Trollip JA

The enquiry is, do the provisions of para. (a) of sub-sec. (1) apply to the plaintiff's son in his present alleged predicament? I think that they do, for the following reasons. At the relevant time he was a member of the Citizen Force and therefore of the South African Defence Force A (see sec. 5 (b) of the Act). 'Disablement' is not defined in the Act. Whatever its precise connotation may be, it obviously means, as in the case of death dealt with in para. (b) of the sub-section, a disablement 'resulting from a wound, injury, or disease'. And, according to the plaintiff's allegations, his son is suffering from such a disablement resulting from his injuries and which was not due to any misconduct on his part.

B The only remaining enquiry, therefore, is whether, according to the allegations in plaintiff's claim, those injuries were 'caused by his military training'. For the plaintiff it was contended that he did not allege that they were so caused. Against that, defendant's counsel argued that, although there was no express allegation to that effect, C plaintiff's averments amounted in substance to such an allegation. Counsel for the plaintiff emphasised the use of the words 'cause by' in sec. 145 (1) and contrasted them with the corresponding wording used in previous Defence and War Pensions Acts, such as 'received on and by reason of', 'attributable to', and 'arising out of and in the course of'. But there is no significant or relevant difference in meaning D between those expressions and 'caused by'. They are all used to express the Legislature's insistence upon the member's military service or training being connected with his wound, injury, or disease as cause and effect respectively. No matter what expression is used to postulate such a causal connection, it sometimes creates difficult problems of both law E and fact (cf., for example, Mey v SA Railways and Harbours, 1937 CPD 359 at p. 363 - 4, and Minister of Pensions v Chennell, (1946) 2 All E.R. 719). But because the relevant alleged facts in the present case are simple, undisputed at this stage, and fall within a small compass, and the law involved is clear, no such problems arise here.

F Sec. 147 of the Act says:

'Any member of the South African Defence Force may in connection with or for the purposes of his service, training or duty, be conveyed by any means whatever as may be ordered by his superior officer.'

Such an order would therefore be a lawful command which would have to be obeyed by the member, since disobeying it...