Govender v SA Stevedores Service Co Ltd and Another

• Jurisdiction: South Africa
• Court: Durban and Coast Local Division
• Judge: Hearer J
• Judgment Date: 04 September 1980
• Citation: 1981 (1) SA 353 (D)
• Hearing Date: 27 May 1980

Shearer J:

The plaintiff sued the defendant for R76 293,96 as damages suffered by her in consequence of her loss of support by her husband who was killed in an incident on 10 October 1977. She alleged that the incident was due to the negligence of servants of the defendant. The H defendant placed the negligence alleged and the damages claimed in issue and further pleaded, in the alternative, that the incident was an "accident" and the deceased a "workman" within the meaning of the Workmen's Compensation Act 30 of 1941 and that this Court should therefore have regard to the amount which was likely to become payable by the defendant by virtue of the provisions of s 8 (1) of that Act, which provides for the recovery of compensation payable under that Act from the person legally liable to pay damages in respect of the death of the deceased.

The defendant also served upon the South African Railways and Harbours

Shearer J

(which I shall call "the Railways") a third party notice, the annexure to which alleged that, in the event of the Court holding that the defendant A is a wrongdoer within the meaning of the Apportionment of Damages Act 34 of 1956 (as amended) and that the defendant is obliged to pay damages to the plaintiff, the defendant pleads against the third party that the incident was caused partly by the negligence of the servants of the defendant and partly by the negligence of servants of the third party. It accordingly would, in the event set out above, seek an apportionment and contribution.

B To this the Railways filed a special plea and pleaded over denying the appropriate allegations in the annexure to the third party notice. The Railways also intervened to claim in terms of s 8 (1) (b) of the Workmen's Compensation Act that it had paid and now sought the recovery of R13 287,72 as compensation paid to the plaintiff in terms of the Act.

C A special case has now been stated in terms of Rule 33 of the Uniform Rules of Court for my adjudication. The now material portion of that special case reads:

"5.

The parties are agreed that:

(a)

the total amount of damages sustained by the plaintiff was the sum of R20 300;

(b)

D the intervening party has paid compensation to the plaintiff in the sum of R13 287,72;

(c)

the death of the plaintiff's late husband was caused by the joint and simultaneous negligence of an cmployee or employees E of the defendant and an employee or employees of the third party;

(d)

the degree of fault attributable to the defendant is 60 per cent and the degree of fault attributable to the third party is 40 per cent.

6.

It is accordingly agreed that judgment must be entered in favour of F the plaintiff against the defendant for payment of the sum of R7 012,28 and costs.

7.

The defendant contends that by virtue of the provisions of the Apportionment of Damages Act:

(a)

it is entitled to recover from the third party 40 per cent of the amount so awarded to the plaintiff;

(b)

G the intervening party's claim against the defendant falls to be reduced by 40 per cent.

8.

The third party disputes the defendant's contention which is set forth in para 7 (a) hereof by reason of the provisions of:

(a)

section 7 of the Act; and

(b)

H section 2 (1) of the Apportionment of Damages Act 34 of 1956.

9.

The intervening party disputes the defendant's contention which is set forth in para 7 (b) hereof:

(a)

by reason of the provisions of s 7 of the Act; and

(b)

because it contends that:

(i)

in paying compensation to the plaintiff it stands in the shoes of the Workmen's Compensation Commissioner; and

Shearer J

(ii)

the provisions of s 8 (1) (b) of the Act leave no room for a reduction of the amount claimed.

10.

A If the defendant's contention as set forth in para 7 (a) hereof is upheld, judgment should be entered in favour of the defendant against the third party for an order declaring that, upon payment by the defendant to the plaintiff of the amount awarded to her, the third party will be liable to pay to the defendant 40 per cent of the amount so paid.

11.

B In the event of the defendant's contention as set forth in para 7 (b) hereof being upheld, judgment should be entered in favour of the intervening party against the defendant for payment of the sum of R7 927,63.

12.

If the defendant's contention which is set forth in para 7 (a) C hereof is rejected, judgment should be entered in favour of the third party in respect of the third party proceedings with costs.

13.

If the defendant's contention as set forth in para 7 (b) hereof is rejected, judgment should be entered in favour of the intervening party against the defendant for payment of the sum of R13 287,72 and costs.

14.

D The question of costs, in the event of either...