Cete v Standard and General Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Snyman J
• Judgment Date: 04 May 1973
• Citation: 1973 (4) SA 349 (W)
• Hearing Date: 01 May 1973
• Court: Witwatersrand Local Division

B Snyman, J.:

In this matter application has been made by the applicant (the defendant in the main action) for an order compelling the respondent (the plaintiff in the main action) to furnish further and better particulars to the plaintiff's particulars of claim and for the costs of the application. The respondent has resisted the application C and has asked for its dismissal with costs.

The dispute between the parties turns upon the interpretation of the Uniform Rules of Court in regard to the particulars of claim to be furnished in terms of Rule 18 in a combined summons and declaration when claiming damages, including damages for personal injuries, and the D further particulars which a defendant to such a claim may thereafter reasonably require in terms of Rule 21 (1).

Before dealing with the details of the request made here, I propose to deal with the Rules involved and to indicate the view I take in regard to such a request.

E Rule 18 lays down the procedures and contents for a combined summons and declaration. Sub-rule (4) provides - 'Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence, or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto.'

F The Rule sets out the mechanics of pleading, and in sub-rule (10) provides -

'A plaintiff suing for damages shall set them out in such a manner as will enable the defendant reasonably to assess the quantum thereof, provided that the plaintiff suing for damages for personal injury shall specify the nature and effects of the disability alleged to give rise to such damages, and shall as far as practicable, state separately what amount, if any, is claimed for -

(a)

medical, hospital and other similar expenses;

(b)

pain and suffering;

(c)

G disability in respect of -

(i)

the earning of income (stating the earnings lost to date and the estimated future loss);

(ii)

the enjoyment of amenities of life (giving particulars).'

It is a fair inference from this wording that the Rule contemplates that H a claim for damages should be so complete that the opposing pleader will be able to plead over and, if he considers it necessary, make a tender in respect of damages suffered by the plaintiff.

However, as we know from experience, the opposing pleader is seldom satisfied with the particulars supplied. In this regard Rule 21 (1) comes to his assistance by providing that -

'A party may, before delivering any pleading in answer to a pleading delivered to him and for the purpose of enabling him to plead thereto, or to tender an amount in settlement, deliver a notice within 14 days of receipt of such pleading or of delivery of the notice of intention to defend, as the case may be, calling

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for only such further particulars as may be strictly necessary for either purpose aforesaid.'

Rule 36 further assists in regard to bodily injuries. Sub-rule (1) provides -

'Subject to the provisions of this Rule, any party to proceedings in which damages or compensation in respect of alleged A bodily injury is claimed, shall have the right to require any party claiming such damages or compensation, whose state of health is relevant for the determination thereof, to submit to medical examination.'

Sub-rule (2) provides -

'Any party requiring another party to submit to such examination shall...' -

It sets out certain details and continues -

B '... such notice shall state that such other party may have his own medical adviser present at such examination, and shall be accompanied by remittance in respect of reasonable expenses'.

The purpose of Rule 18 (10) is to bring about a position whereby a party claiming damages will, in his particulars of claim, clearly and concisely state so much particulars as will enable the opposing pleader C to reply thereto and, should he desire to make a tender, reasonably to assess the quantum of the damage. I want here to emphasise two aspects of this sub-rule: Firstly, the plaintiff must enable the defendant reasonably to assess his damage, and, secondly, he must state as far as is practicable the various amounts which he claims as the result of bodily injuries.

D The purpose of this Rule, which is an innovation introduced by the Uniform Rules of Court, in my view, was to streamline the procedure of pleading by requiring a plaintiff, in his particulars of claim, to set out all the particulars necessary for his opponent forthwith to answer his claim; including, where necessary, to make a tender, and so to avoid the need for further particulars.

E Under the former practice such detail was not compulsory, with the result that pleaders usually were obliged to ask for further particulars. The procedure of asking for further particulars under the former practice was not controlled by Rules of Court. It was developed by the Courts under its inherent jurisdiction.

F I think it is acknowledged by all who have practised for any time in these Courts, that considerable abuse was experienced from some pleaders in regard to the use of the procedure of asking for further particulars. One was often confronted with lengthy requests for further particulars which more resembled the English system of interrogatories rather than a G request for further particulars strictly necessary to answer a claim. Our Courts have from time to time in the past taken steps to curb this abuse and expressed their disapproval thereof. I shall quote from two cases decided in this Division under the former procedure which sought to remedy the position: they are Coop and Another v Motor Union H Insurance Co. Ltd., 1959 (4) SA 273 (W); Reid, N.O. v Royal Insurance Co. Ltd., 1951 (1) SA 713 (T).

I quote those parts which VAN HEERDEN, J., referred to in the case of Rondalia Versekeringskorporasie van Suid-Afrika Beperk v Mavundla, 1969 (2) SA 23 (N). In Coop's case WILLIAMSON, J., adopted a passage from the judgment of ROPER, J., in Reid's case which reads:

'Now there are decisions, some of which were referred to by counsel, in which the Courts have ruled that the plaintiff must, either in his declaration or

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in particulars subsequently furnished, give the defendant sufficient information to enable him to decide whether he ought to make a tender.... Counsel's contention seems however to be based on a misconception as to the effect of such rulings. They do not mean that when the plaintiff comes to his damages he must set them out precisely under different headings so that defendant may be able to...