Erasmus v Davis

• Jurisdiction: South Africa
• Judge: van Blerk AR, Wessels AR, Potgieter AR, Jansen AR and Muller WN - AR
• Judgment Date: 16 September 1968
• Citation: 1969 (2) SA 1 (A)
• Hearing Date: 30 December 1968
• Court: Appellate Division

Erasmus v Davis
1969 (2) SA 1 (A)

1969 (2) SA p1

Citation	1969 (2) SA 1 (A)
Court	Appèlafdeling
Judge	van Blerk AR, Wessels AR, Potgieter AR, Jansen AR and Muller WN - AR
Heard	December 30, 1968
Judgment	September 16, 1968

Flynote : Sleutelwoorde D

Skadevergoeding — Vasstelling van — Skade aan 'n motorkar — Bedrag van skadevergoeding gegrond op die verskil tussen die voorbotsingswaarde en die nabotsingswaarde — Versuim om die nabotsings-waarde te bewys — Getuienis aangaande sekere herstelkoste voorgelê — Gevolg — Appèl — Koste — Party wat gedeeltelik geslaag het se koste nie toegeken nie.

Headnote : Kopnota

In 'n aksie wat respondent in 'n landdroshof teen appellant aanhangig gemaak het om skadevergoeding vir skade aan haar motorkar wat deur die nalatigheid van appellant veroorsaak was, het respondent R930 geëis synde die verskil tussen die voorbotsingswaarde van die motorkar, naamlik R1,200, en die nabotsingswaarde, naamlik R270. 'n Assuransie-assessor, ene N, het getuig dat die voorbotsingswaarde R1,200 was, en voortgegaan: 'I think the figure of R771.01 is a reasonable quotation for repairs according to my experience. That assessment refers only to damage to the body of the car and not to mechanical damage. It appeared to me and with an accident of that nature it was very possible that there would be mechanical damage. In this case I felt the cost of repairs might be too high taking into consideration the value of the car'. Hy het verder getuig dat volgens 'n ooreenkoms die maatskappy wat die motorkar verseker het, verplig was om al sy motors wat wrakke was teen 221/2 persent van die voorbotsingswaarde daarvan te verkoop, afgesien van die werklike waarde daarvan, en dat dit die rede was waarom die motorkar teen 221/2 persent van R1,200, maanlik R270, verkoop is. Die landdroshof het vonnis vir R930 met koste toegestaan. In hoër beroep het 'n Provinsiale Afdeling beslis dat die respondent versuim het om te bewys dat die nabotsingswaarde van die voertuig R270 beloop het en dat respondent gevolglik slegs op die geskatte herstelkoste aan die bakwerk, naamlik R771.01, geregtig is, maar dat appellant nietemin beveel moet word om die koste van appèl te betaal op grond daarvan dat 'appellant's attitude throughout was that no damage had been proved' en 'it cannot be said that the appellant came to Court in order to achieve a reduction in the amount awarded'. In 'n verdere appèl teen die toekenning as 'n geheel en ook teen die kostebevel deur die Hof a quo gemaak (daar was geen teenappèl nie),

Beslis, dat die Hof a quo tereg skadevergoeding ten bedrae van R771.01 toegestaan het (waarmee WESSELS, A.R., en MULLER, WN.-A.R., nie saamgestem het nie).

Beslis, verder, dat die appèl van die hand gewys moet word met koste (waarmee MULLER, WN.-A.R., nie saamgestem het nie).

Die beslissing in die Transvaalse Provinsiale Afdeling in Erasmus v Davis, bevestig.

Flynote : Sleutelwoorde

Damages — Assessment of — Damage to a motor car — Damages claimed in an amount being the difference between the pre-collision and post-collision value of the car — Failure to establish the post-collision value — Evidence led as to certain costs of repair — Effect — Appeal — Costs — Partially successful party deprived of costs.

Headnote : Kopnota

In an action which the respondent had instituted against the appellant in a magistrate's court for compensation for damage to her motor car caused by the appellant's negligence, the respondent had claimed R930, being the difference between the pre-collision value of the car, namely R1,200, and the post-collision value, namely R270. An insurance assessor, one N, had stated in evidence that the pre-collision value of the car was R1,200 and further: 'I think the figure of R771.01 is a reasonable quotation for repairs according to my experience. That assessment refers only to damage to the body of the car and not to mechanical damage. It appeared to me that with an accident of that nature it was very possible that there would be

1969 (2) SA p2

mechanical damage. In this case I felt the cost of repairs might be too high taking into consideration the value of the car'. He further stated in evidence that, in terms of an agreement, the company which had insured the car was obliged to sell all its salvage cars at 221/2 per cent of the pre-collision value thereof, irrespective of the actual value thereof, and that this was the reason why the car had been sold for 221/2 per cent of R1,200, namely R270. The magistrate's court had granted judgment for R930 with costs. On appeal a Provincial Division had held that the respondent had failed to prove that the post-collision value of the car amounted to R270 and that respondent was accordingly only entitled to the estimated cost of repairs to the bodywork namely R771.01, but that appellant nevertheless should be ordered to pay the costs of appeal, on the ground that 'appellant's attitude throughout was that no damage had been proved' and 'it cannot be said that the appellant came to Court in order to achieve a reduction in the amount awarded'. In a further appeal against the award as a whole and also against the order as to costs made by the Court a quo (there being no cross-appeal).

Held, that the Court a quo had rightly granted damages in an amount of R771.01 (WESSELS, J.A., and MULLER, A.J.A., dissenting).

Held, further, that the appeal should be dismissed with costs (MULLER, A.J.A., dissenting).

The decision in the Transvaal Provincial Division in Erasmus v Davis, confirmed. C

Case Information

Appèl teen 'n beslissing in die Transvaalse Provinsiale Afdeling (GALGUT, R., en DAVIDSON, WN.-R.). Die feite blyk uit die uitspraak van MULLER, WN.-A.R.

J. P. Roux, namens die appellant: A claimant, in claims of this nature, normally has two methods at his disposal for proving damages, namely: (i) the value of the vehicle before the collision as opposed to the value of the vehicle after the accident; and (ii) the reasonable costs of repairing the vehicle to reinstate it to its pre-collision condition. A plaintiff, while not claiming this to be an election, must indicate in his pleadings which of the available methods he intends to use at trial. E In the instant case the respondent obviously decided to employ the first method and clearly indicated this to the appellant. The damage to the vehicle's engine, if any, was never investigated. The Court a quo correctly held that respondent failed to prove damages by the method employed. While the Court a quo correctly held that the post-collision F value of the vehicle had not been proved it also should have been held that the pre-collision value had not been proved either. The learned Judge a quo meru motu raised the alternative method of proving damages, i.e. the D

1969 (2) SA p3

cost of repairs and based his judgment thereon. The possible and probable prejudice to the appellant, in adopting this course, was not properly investigated or debated. The test and investigation before such A a course can be followed have been clearly stated in Middleton v Carr, 1949 (2) SA at pp. 385 - 386. If it is held that the alternative method of proving damages can be relied on by the respondent on appeal then there was insufficient evidence to prove damages. Scrooby v Engelbrecht, 1940 T.P.D. 100. The respondent failed to prove that the repairs were rendered necessary in consequence of the collision. There is not evidence relating to the condition of respondent's vehicle before B the collision. See also de Wit v Heneck, 1947 (2) SA at p. 427; Ward v Steenberg, 1951 (1) SA at pp. 402 - 403; Coetzee v Jansen, 1954 (3) SA at p. 175. This is not a case where the Court should do its best to fix the sum of damages on the available evidence. The respondent was in a position to lead evidence to prove damages. Such C failure should be fatal. See Hersman v Shapiro & Co., 1926 T.P.D. at p. 379; Lazarus v Rand Steam Laundries, 1952 (3) SA at p. 50; Brand, N.O v Volkskas, 1958 (1) SA at p. 385; Enslin v Meyer, 1960 (4) SA at p. 523. If the onus rests on a plaintiff to prove damages he should also prove that the cost of repairs does not exceed the value of the vehicle before the collision. Janeke v Ras, 1965 (4) SA at pp. D 586 - 587, is either (i) incorrectly decided; or (ii) distinguishable because it dealt with absolution at the end of the plaintiff's case. Even if this Court finds that the respondent proved damages the appellant should be awarded the costs of this appeal and the costs of the appeal in the Court a quo. The respondent should have abandoned E portion of his judgment. Scrooby v Engelbrecht, supra at pp. 105 - 106; Erasmus v Arcade Electric, 1962 (3) SA at p. 420.

D. O. Vermooten, namens die respondent: (a) A litigant who sues in delict sues to recover the loss which he has sustained because of the F wrongful conduct of another, in other words, that the amount by which his patrimony has been diminished by such conduct should be restored to him. Trotman and Another v Edwick, 1951 (1) SA at p. 499B - C; G. & M. Builders Supplies (Pty.) Ltd v S.A.R. & H., 1942 T.P.D. at p. 121; Enslin v Meyer, 1960 (4) SA at p. 523; Boshoff v Erasmus, 1953 (1) SA at p. 106E. In regard to the value of the car after the collision, the plaintiff has produced the best evidence available. Scrooby v. G Engelbrecht, 1940 T.P.D. at p. 103. It could not be expected of a plaintiff to go around offering the wreck of a car to other dealers in order to obtain other opinion. Once she has handed it to the insurance assessor that should be sufficient. Monetary damage having been suffered, it is necessary for the Court to assess the amount and make H the best use it can of the evidence before it. Where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of...