Dupreez v AA Mutual Insurance Association Ltd

• Jurisdiction: South Africa
• Judge: Howie J
• Judgment Date: 09 December 1980
• Citation: 1981 (3) SA 795 (E)
• Court: Eastern Cape Division

Howie, J.:

Plaintiff claims damages from defendant as the insurer under Act 56 of 1972 of a car which collided with and injured him while he was crossing Oxford Street, the main thoroughfare of East London, in the early evening of Saturday 3 March 1973. He was then eight and a half years of age and at the time of the trial was 15. He sues assisted by his adoptive F father and legal guardian.

In his pleadings plaintiff alleges that the collision was due solely to negligence on the part of the driver of the car, Mrs Whittle.

[The learned Judge then proceeded to deal with the merits, held that Mrs Whittle's fault was 80 per cent and therefore that plaintiff was entitled to 80 per cent of his damages, and continued.]

Turning now to an assessment of damages the first two items that must be G considered are R203,50 for past hospital expenses and R467,20 for past medical expenses. It is not in dispute that these sums were necessarily incurred and represent fair and reasonable charges. What is in issue is plaintiff's right to claim them. Clearly whatever right Du Preez had to H sue in this connection prescribed long before summons was issued in 1978.

In his particulars of claim it is simply alleged that plaintiff has suffered damages, inter alia, in these amounts. In answer, defendant has pleaded that such amounts

"are not claimable by plaintiff, by reason of his minority, and should have been claimed by (Du Preez)".

No evidence was directed by either party to the present issue but it was never suggested in argument that plaintiff had means of his own at any stage and it was certainly never in dispute that Du Preez bore the legal duty to support plaintiff. Consequently, on the basis upon which

Howie J

plaintiff's case on this aspect was presented and argued, I am driven to assume that at all relevant times hitherto plaintiff has had no estate and A Du Preez has therefore been burdened with the duty to maintain him. I may say that that assumption is wholly supported by the probabilities inherent in such evidence as was led. I shall also have to assume, in the absence of evidence, that the amounts in issue have not yet been paid.

The question is accordingly whether, on these assumptions, plaintiff has B a claim in law for the type of damages in issue.

Mr Kroon contended that this question must be resolved in plaintiff's favour despite the decision in Schnellen v Rondalia Assurance Corporation of SA Ltd 1969 (1) SA 517 (W). In that matter it was held that only the C father can claim damages of this sort where the minor has no means and the father is liable to maintain him. To counter that decision Mr Kroon sought authority for his contention in the unreported matter in this Division of J L Dreyer v Santam Insurance Co Ltd (East London Circuit Local Division, case No I 259/75, wherein judgment was given on 22 July 1976). I have had a transcript made of the relevant portion of the D machine-recorded judgment. That was a matter governed by Act 29 of 1942 (as was Schnellen's case) but the relevant position would be the same now under Act 56 of 1972.

In Dreyer's case the plaintiff was the father but he sued on behalf of his minor son so, in effect, it was, as here, a claim by the minor. Included E in the claim were items in respect of past medical and hospital expenses. In evidence the father said that these had not yet been paid as at the time of the trial and would...