Colonial Mutual Life Assurance Society Ltd v MacDonald

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Wessels JA and Roos JA
• Judgment Date: 20 May 1931
• Citation: 1931 AD 412
• Court: Appellate Division

Roos, J.A.:

This is an appeal from a judgment of the Eastern Districts Local Division. The respondent instituted action against the appellant society for damages sustained by him in a motor accident. The accident was alleged to have been caused by the negligence of one W. E. Brittain, who was an agent of the society to canvass for proposals of life insurance for the Society in the districts of Uitenhage and Port Elizabeth. The relationship between the said Brittain and the appellant society was set out in paragraph 3 of the plaintiff's declaration in the following terms:

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"At all times relevant to this action, one W. E. Brittain of Port Elizabeth was an agent or employee of defendant at Port Elizabeth to obtain proposals of assurance for defendant, to collect the premiums thereon and to arrange for proponents to be medically examined by members of the medical profession.

And to facilitate the said duties of the said Brittain, defendant supplied to him on the hire-purchase system a certain motor car C.C.L.462 of which the ownership at the date of the 18th August,. 1930, remained vested in the defendant in whose name the said car was registered and insured. The said car belonging to defendant was to the knowledge of defendant to be driven by the said Brittain and was so driven in the course of his duties as agent and employee of defendant and for and on behalf of defendant both in canvassing for proposals for assurance and for conveying medical practitioners to report on proponents."

Brittain and respondent both had their offices and lived in the town of Port Elizabeth. On the 18th August Brittain took respondent, who was a medical man, by means of a motor car numbered C.C.L.462 into the country to make the necessary medical examination of certain proponents for life insurance and on the return journey the motor car ran off the road, crashed into a tree, and the accident caused the respondent to sustain very severe injuries. It was alleged in the declaration that the accident occurred owing to the negligence of the driver of the motor car driving at an excessive and unlawful speed, failing to keep a proper look out and failing to observe proper precautions. The society stated in paragraph 2 of its plea that:

"At all times relevant to this action one W. E. Brittain of Port Elizabeth was an agent of defendant society at Port Elizabeth to obtain proposals for insurance for defendant, to collect the required premiums thereon and to arrange for proponents to be medically examined in consideration of a commission on premiums and for no other purpose."

In paragraph 3 the supply of the motor car C.C.L.462 on the hirepurchase system was admitted, but it was alleged "that the said Brittain had the sole possession and control of the car in terms of the hire-purchase agreement." The plea admitted that while Brittain was driving the car the accident happened but denied that

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the accident was caused by his negligence. The court below found in favour of respondent assessing the damage at £10,000.

Appellant society bases its appeal from that judgment on various grounds with which it will be necessary to deal.

The first main ground on which the appeal was based was that the relationship between the appellant society and Brittain was not a relationship of master and servant, or of principal and agent of Buch a nature as to make the society liable for the damage caused by the accident.

The second ground was that respondent voluntarily undertook the journey and risk to earn the fees offered for medical inspection and he and Brittain were on a common enterprise and had a common purpose.

The third ground was that there was no negligence and the fourth ground was that the damages awarded were excessive.

It may be well to deal with the 2nd, 3rd and 4th ground at once. In the circumstances of this case we cannot see in what way the second ground can be used to evade liability in this matter. Where respondent voluntarily allowed himself to be driven by Brittain in order to earn a fee, it does not make the driver the less liable for the negligence by which respondent sustained damage. Any other view would lead us to ludicrous results. On the third ground the court below has set out fully the reasons upon which its finding of negligence is based and we see no reason to differ from its view. The car was found to have been travelling at the rate of 46 miles an hour on a dark road at 7 o'clock at night with visibility further obscured by a misty, drizzling rain when the accident occurred. There was danger from other traffic on the road especially owing to the proximity to a busy town. According to the evidence of Brittain the accident was occasioned by the presence of a wagon with oxen straying across the road which caused him to swerve suddenly, the swerve developing into a skid and carrying the car off the road to come into violent and direct contact with a tree which brought it to an abrupt stop. Brittain further admits that such wagons are frequently to be found on the road. Under these circumstances Brittain was courting disaster by driving at that pace and there is ample reason for the finding of negligence.

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The fourth ground can also be briefly disposed of. The attack on the amount of damages was based on the method in which the amount was calculated. But on any calculation it is obvious that respondent sustained very great damage indeed. He sustained very painful injuries which are described by the learned Judge in the following language:

"He sustained severe bodily injuries. which have brought in their train an amount of physical suffering, inconvenience and disfigurement and an impairment of his faculty of hearing which threaten to a greater or less extent to be permanent. His lower jawbone sustained six distinct fractures and the upper one complete detachment from its ordinary position and now. the alignment of the jaws is very imperfect, the mouth cannot be opened for more than half an inch and the upper lip is disfigured."

The evidence shows that his hearing has been injured to the extent of eighty per cent. and it is clear also that the shock sustained by his system will, even apart from his deafness, prevent him from again starting his practice with success for a very considerable time. He was a young man, 29 years of age, who had had considerable success in his profession, and even if we assume that his earnings will diminish by only £500 a year, a low figure in view of the circumstances, his loss over a period of twenty years would amount to £10,000. If we also take into account pain and suffering, loss of certain amenities of life, and loss of the chance of greatly increasing his practice, it will readily be appreciated that the damages awarded are not excessive and that it is, therefore impossible to interfere with the figure arrived at by the court a quo.

This clears the way for us to deal with the first ground raising an important and difficult question, which was argued with ability by both appellant's and respondent's counsel on appeal. Appellant's counsel contends that the whole doctrine of liability for the acts of another is derived from the principle that the master is liable for the delicts of his domestic servants when acting in officio, aut ministerio. That principle, he says, has been extended to cover the cases of all employees, but should not be invoked to make principals liable for the acts of their independent agents, to employ the term which he used. He adds that the evidence shows that Brittain was not a servant or employee. Respondent's counsel's

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contention is that principals are also liable for the delicts of their agents in the course of their carrying out the business of their principals. He does not, however, abandon the point that Brittain was a servant and also attaches importance to certain express instructions which were alleged to have been given to Brittain by the officers of the company in connection with the particular journey which he made on the day of the accident.

It is, therefore, necessary first to extract the facts of the relationship between the appellant society and Brittain from the evidence before attempting to discover whether by reason of that relationship any responsibility is imposed by law on the society for the delict of Brittain. The agreement between the society and Brittain is dated the 13th February, 1928. Clause 1 reads as follows: -

"That the duties of the agent shall be to obtain proposals for assurance for the society, to collect the required premiums there-on, and to arrange for proponents to be medically examined. That the agent is not authorised to bind the society in any way whatsoever and the powers of the agent shall extend no further than as herein stated."

Clause 2 prohibits the agent from reflecting upon the character and conduct of others and from advertising without the society's consent. Clause 3 prohibits him from pledging the society's credit without authority. Clause 4 reads as follows: -

"That the agent shall not act directly or indirectly for any other life assurance society or company during the term of this agreement.

"A number of the other clauses refer to the method in which monies received must be paid over, and it is only necessary to refer more fully to clauses 10, 11, 13 and 14, which read as follows: -

10. That all deferred commission bonuses or other remuneration hereinafter agreed to be paid by the society to the agent shall cease to be payable in the event of this agreement being terminated owing to misconduct on the part of the agent or for contravention by him of any of the society's rules and regulations, or should the agent directly or indirectly represent any other office transacting life assurance business.

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11. That any advances made to the agent at any time against commission to be earned or amounts advanced...