Da Silva and Another v Coutinho

• Jurisdiction: South Africa
• Judge: Van Blerk ACJ, Ogilvie Thompson JA, Jansen JA, Smit AJA and Muller AJA
• Judgment Date: 05 April 1971
• Hearing Date: 23 November 1970
• Court: Appellate Division

Jansen, J.A.:

On 30th April, 1965, the two appellants, husband D and wife, travelling on the Harmony-Welkom road in a motor car driven by the first appellant, were involved in a collision with another car, driven by one Santina Coutinho. The owner of this car was the respondent, Santina's father. The appellants, who were seriously injured in the collision, in due course E consulted an attorney at Virginia, Mr. Maree, and instructed him to take the necessary steps to claim damages. After certain initial enquiries, Mr. Maree instructed his Bloemfontein correspondent, Mr. Honey, to proceed with the matter.

The appellant's attorneys had reason to believe that the respondent's car had been insured, at the time of the collision, by the A.A. Mutual Insurance Association Ltd., in F terms of the Motor Vehicle Insurance Act, 29 of 1942 (hereinafter referred to as "the Act"), and intended proceeding against this company on the basis of the alleged negligence of the said Santina Coutinho. Enquiry, however, revealed that this company was not in fact the insurer, thus placing the attorneys in a dilemma. The available information pointed to the fact that the car had been insured with some company in terms of the G Act, but the identity of the company was not apparent. They did not find the respondent to be helpful and he was unable to produce the relevant declaration of insurance. Further enquiries by the appellant's attorneys were to prove, in their view, unsuccessful and by the time the period of prescription provided for in sec. 11 (2) of the Act had elapsed at the end H of April, 1967, they had not yet resolved the dilemma.

Eventually, two claims for damages were instituted in the alternative, on behalf of each of the appellants, in the Orange Free State Provincial Division. The main claim, on the basis that the car driven by Santina Coutinho had not been insured in terms of the Act at the time of the collision, cited Santina Coutinho as first defendant, alleging his negligence as the cause of the damage suffered by the appellants, and the

Jansen JA

respondent as second defendant, the allegation being that Santina Coutinho had driven the car at the time of the collision "in the course of his employment as servant" of the respondent or, alternatively, as his "agent... within the A scope of his authority". The alternative claim was brought against the respondent only, and proceeded on the assumption that the car in question was at the time

"insured with a registered insurance company in terms of sec. 3 of Act 29 of 1942, the identity of which is and was at all material times unknown to either of the plaintiffs".

This claim rested on the basic allegation that the respondent, B as owner of the car driven by Santina, had

"in breach of the statutory duty imposed by sec. 22 (2) of the said Act... wrongfully and negligently failed to produce the declaration of insurance whereby the said motor vehicle was insured at the time of the collision in terms of the said Act, upon the request of the plaintiffs' (viz. appellants') legal representative and agent or at any time thereafter"

and on the further allegation that

C "as a direct and foreseeable result of the breach of duty... plaintiffs were unable to institute action in terms of the said Act against the insurance company concerned and to recover the compensation referred to in sec. 11 (2) of the said Act, which compensation the insurance company concerned would have been obliged and able to pay".

The damages claimed from the respondent were assessed at the same figures mentioned in the main claim.

D It is unnecessary at this stage to refer in any detail to the plea to the main claim, save to mention that the material allegations were denied and it was specifically pleaded that the respondent's car

"was insured in terms of the provisions of Act 29 of 1942 by Rondalia Assurance Corporation Ltd. at the time of the collision".

Of the plea to the alternative claim, certain features should E be mentioned. The respondent repeated denials already made in respect of the main claim. He admitted:

(a)

the alleged insurance in terms of the Act;

(b)

that he had failed to produce a copy of the declaration of insurance on the request of the F appellants' legal representative, or at any time thereafter as alleged, and that he was obliged in terms of sec. 22 (2) to produce the declaration of insurance.

He denied:

(c)

that the said failure by itself constituted a wrongful act which entitled the appellants to recover the G alleged damages from him;

(d)

that he was negligent in any respect;

(e)

the appellants' alleged inability to ascertain the identity of the insurance company concerned within the relevant period, alternatively that such inability "was the result, alternatively, a foreseeable result", of the alleged breach of statutory duty.

H He alleged:

(f)

that such inability (if it existed) "was the direct result" of the appellants'

"negligence in failing to make proper inquiries and/or failing to have proper inquiries made to ascertain the identity of the insurance company concerned timeously, and/or failing to enforce the right against him in terms of sec. 22 (2)... by obtaining an order against him to compel him to comply with the duty imposed upon him by virtue of the said sub-section";

Jansen JA

(g)

that by virtue of the provision of sec. 13 of the Act, the appellants were not entitled to claim compensation from him;

(h)

that by virtue of the provisions of clause 6 (1) of the Agreement published in the Government Gazette of 6th November, 1964, between the Minister of Transport A and the Motor Insurance Association of Southern Africa (hereinafter referred to as the M.I.A.) the appellants had been entitled to recover compensation from the latter, had failed to enforce their right, and that consequently, the damages they seek to recover

"have directly been caused by their own failure to B institute timeous action against the M.I.A.".

In proceedings under Rule 37 the appellants were constrained to concede that at the material time the respondent's car had been insured by Rondalia and, therefore, withdrew their claims against Santina Coutinho (in view of sec. 13 of the Act) and they, thereafter, only prosecuted the alternative claim, viz. C against the respondent. In terms of the Rule it was also agreed that had Rondalia been sued successfully, it would at all times have been able to pay any damages awarded, and the quantum of damages in respect of the claims of both appellants (amounting to several thousand rand) was also settled. In the course of the subsequent trial and respondent was forced to admit that the sole cause of the collision was the negligence D of Santina Coutinho in his driving of the respondent's car.

At the conclusion of the trial the presiding Judge held that

"no civil liability for damages is to be read into the Act for a breach of sec. 22 (2)"

and continued

"on a construction of the scope and language of the Motor E Vehicle Insurance Act I am constrained to come to the conclusion that plaintiffs cannot recover damages from second defendant personally in the present case".

In the result he dismissed the appellants' claims but awarded the respondent costs only "on an exception basis". It may be added the learned Judge found that in any event, even if on a true interpretation of the Act an action for damages was F competent, the appellants could not have succeeded as they had failed to establish

"on a balance of probabilities that second defendant's breach of a statutory duty was due to his culpa or fault and that he would have foreseen the harm to plaintiffs".

The validity of the appellants' claims against Rondalia the learned Judge accepted, as also the absence of contributory negligence on the part of the appellants - to such a degree G that he expressed himself as follows:

"As I have said before, this is a very unfortunate case. I cannot help but sympathise with plaintiffs. They clearly sustained serious bodily injuries, and for the damage arising out of such injuries Rondalia Assurance Corporation would have been compelled to compensate them had their claim not become prescribed. It clearly had no other defence to plaintiffs' H claim. The company's liability towards plaintiffs is still in existence but has merely become unenforceable due to prescription. It also cannot be said that plaintiff's attorneys are to blame for the fact that the said company was not sued timeously. Mr. Honey impressed me as a witness, and it is quite clear that he is not to blame for the delay. He made extensive and exhaustive enquiries as to the identity of the registered insurance company in question. Had it not been for the incorrect information given by the police and for the unfortunate error made by Mrs. Murray of the M.I.A., I have no doubt that Mr. Honey's efforts would not have been in vain. To my mind he could not have done more to establish the identity of the company in question. I feel that in this case I would be failing

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in my duty if I do not recommend that either Rondalia or the M.I.A. should seriously consider compensating the plaintiffs for the damages suffered by them. Through no fault of their own or of their legal representatives, the damage which they have suffered cannot now be recovered. I therefore strongly recommend, although, of course, my recommendation in this matter merely has persuasive force, that either Rondalia or the A M.I.A., in consultation with the Minister of Transport, should seriously consider compensating plaintiffs. Failure to compensate them would to my mind cause grave injustice."

In the present appeal against the order of the Court a quo, counsel are agreed that, allowing for some overlapping, six main questions now fall to be decided:

(i)

Whether upon breach of...