Guardian National Insurance Co Ltd v Van Gool NO

• Jurisdiction: South Africa
• Judge: Joubert JA, Hefer JA, Vivier JA, F H Grosskopf JA, Goldstone JA
• Judgment Date: 29 May 1992
• Citation: 1992 (4) SA 61 (A)
• Hearing Date: 04 May 1992
• Court: Appellate Division

G Joubert JA:

This is an appeal against a judgment of De Klerk J in the Witwatersrand Local Division, dismissing a special plea raised by the appellant as defendant in an action instituted by the respondent ('Van Gool') as plaintiff. Leave to appeal to this Court was granted by the Court a quo. The judgment of the Court a quo has been reported: see Van Gool NO v Guardian National Insurance Co Ltd 1992 (1) SA 191 (W).

H The material facts in this appeal are common cause. On 7 February 1986 Catherine, a minor daughter (an infans approximately two years and three months of age) of Van Gool sustained serious bodily injuries when a motor vehicle driven by him collided with and ran over her. The motor vehicle was insured by the appellant in terms of the Compulsory Motor Vehicle I Insurance Act 56 of 1972 ('the Act'). Van Gool, in his representative capacity as father and natural guardian of Catherine, during September 1989 instituted an action against the appellant claiming payment of R937000 compensation in terms of s 21 of the Act. According to his J particulars of claim the sum of R937 000 comprised the following amounts:

Joubert JA

(i)

A R298 000 for estimated future medical and hospital expenses;

(ii)

R564 000 for estimated future loss of earnings and loss of earning capacity; and

(iii)

R75 000 being damages for pain and suffering, loss of amenities of life, disability and disfigurement.

It is to be noted that there was no claim in respect of medical and B hospital expenses incurred until the institution of the action.

It was also common cause that Van Gool as father and natural guardian of Catherine was financially able to support her and to pay all the estimated future medical and hospital expenses necessitated by the accident.

The appellant as defendant raised a special plea for the dismissal of the aforementioned claim for future medical and hospital expenses. The C basis of the special plea is that Van Gool as father and natural guardian of Catherine owes her a duty of support until her majority or until she becomes self-supporting, which would include the duty to pay in his personal capacity all medical and hospital expenses reasonably incurred in respect of her, whereas Van Gool in his capacity as her father and natural D guardian has not suffered any damage in respect of such expenses.

The damages relating to bodily injuries are in practice classified as either special damages or general damages. See Corbett and Buchanan The Quantum of Damages 2nd ed (1964) at 3:

'Secondly, as regards bodily injury, all patrimonial loss actually incurred by the plaintiff, such as, for example, medical and hospital E expenses and past loss of earnings, is treated as special damage; while all non-patrimonial loss, such as pain and suffering, loss of amenities, disfigurement and loss of expectation of life, and patrimonial loss, which up to the time of the hearing has not yet crystallised in actual loss or disbursement but is still prospective, such as future medical expenses and future loss of earnings, are classified as general damage.'

F (My emphasis.) So too Boberg The Law of Delict vol 1 (1984) at 530 and McKerron The Law of Delict 7th ed at 117-18.

The issue in this appeal as raised by the special plea is whether or not Catherine as a minor is in law entitled to claim compensation for future medical and hospital expenses as prospective patrimonial loss in respect G of her bodily injuries.

Roman law

The lex Aquilia, enacted by a plebiscite circa 286 BC, awarded the actio legis Aquiliae as a delictual and penal remedy for wrongful and negligent damage to property. Originally this legal remedy was not available to a H freeman (liber homo) who was wrongfully and negligently wounded because he was not considered to have owned his own body (D 9.2.13 pr quoniam dominus membrorum suorum nemo videtur). A freeman was not a slave (servus or mancipium). Inst 1.3 pr; D 1.5.3. He was either freeborn (ingenuus); Inst 1.4 pr; D 1.5.5.2, or liberated from slavery (libertinus), Inst 1.5 pr; D I 1.5.7. The Praetor, however, extended the scope of the lex Aquilia by making the actio legis Aquiliae utilis available to freemen who had been bodily injured but not killed. D 9.2.13 pr, 33.1; Modderman Handboek voor het Romeinsche Recht 5th ed (1913) vol 3 at 150-1; Buckland A Textbook of Roman Law 3rd ed at 588-9; Van Oven Leerboek van Romeinsch Privaatrecht J 3rd ed at 353.

Joubert JA

A In principle, the extension brought about by the actio legis Aquiliae utilis in this regard enabled a freeman to recover compensation for patrimonial loss in respect of bodily injury actually incurred, for example medical expenses and treatment, loss of earnings, as well as compensation for prospective patrimonial loss, such as future loss of B earnings. He would, however, not be entitled to recover compensation for non-patrimonial loss, for example pain and suffering, disfigurement etc. This result is in conformity with the nature of the similar compensation which a freeman could recover with the quasi-delictual actio de rebus effusis vel deiectis where he was bodily injured by things thrown or poured from a building on to him in a road as appears from D 9.3.7 (Gaius) which provides as follows:

C 'Cum liberi hominis corpus ex eo, quod deiectum effusumve quid erit, laesum fuerit, iudex computat mercedes medicis praestitas ceteraque impendia, quae in curatione facta sunt, praeterea operarum, quibus caruit aut cariturus est ob id, quod inutilis factus est. Cicatricium autem aut deformitatis nulla fit aestimatio, quia liberum corpus nullam recipit aestimationem.

D Translation by Watson et alii:

'When a freeman sustains bodily injury by something which is thrown down or poured out, the judge takes account of the cost of medical attendance and other expenses incurred in his recovery as well as the value of any employment which he lost or will have to lose because of his disability. E However, no account is taken of scars or disfigurement, because the body of a freeman is not susceptible of valuation.'

This result is endorsed by the great German jurist Von Glück (1755-1831) in his Ausführliche Erläuterung der Pandecten (1808) vol 10 at 342-3 as follows:

F 'Ist ein freyer Mensch verwundet worden, so kann zwar kein Ersatz für die ihm an seinem Körper zugefügte Beschädigung, also kein Schmerzengeld, auch keine Vergütung wegen entstandener...