Hendricks v President Insurance Co Ltd
Jurisdiction | South Africa |
Judge | Selikowitz J |
Judgment Date | 30 March 1992 |
Citation | 1993 (3) SA 158 (C) |
Hearing Date | 01 June 1988 |
Court | Cape Provincial Division |
Hendricks v President Insurance Co Ltd
1993 (3) SA 158 (C)
1993 (3) SA p158
Citation |
1993 (3) SA 158 (C) |
Court |
Cape Provincial Division |
Judge |
Selikowitz J |
Heard |
June 1, 1988 |
Judgment |
March 30, 1992 |
Flynote : Sleutelwoorde
Damages — Proof of — Principle that where clear that damages suffered but quantum thereof not conducive to precise calculation, wrongdoer not relieved of necessity to pay by reason of difficulties in assessing quantum — Principle not applicable where issue not quantum of damages but C whether or not damages actually resulted from action of wrongdoer.
Headnote : Kopnota
In the assessment of damages, it is a long established principle of our law that where it is clear that damages have been suffered but that the quantum of those damages is not conducive to precise calculation or even certain reliable estimation, the wrongdoer will not be relieved of the necessity to pay by reason of the difficulties in assessing the quantum, D the principle having as its ratio the policy that the wrongdoer should not escape liability merely because the damages he caused cannot be quantified readily or accurately. The question which then arises is whether or not this principle is to be applied where the issue is not the quantum of damages but rather whether or not damages have actually resulted from the action of the wrongdoer; that is, does the ratio for the principle support its extension to a situation where it is sought to show that damages have E actually been suffered rather than to establish the quantum of such damages? Insofar as the ratio for the principle is to prevent a wrongdoer who has caused damage from being relieved of his liability, it does not follow that the principle is to be applied where it is sought to establish whether or not the wrongdoer has caused damage which, when quantified, will be recoverable.
Case Information
Civil trial in an action for the recovery of damages. The facts appear from the reasons for judgment.
F L Weinkove for the plaintiff.
D J du Toit for the defendant.
Cur adv vult
Postea (30 March 1992).
Judgment
G Selikowitz, J.:
Plaintiff sues defendant for damages. The claim is founded upon the provisions of the Compulsory Motor Vehicle Insurance Act 56 of 1972. Defendant is the authorised insurer of a motor vehicle which, while being driven by one Robin Thomas, collided with the vehicle in which plaintiff's wife was travelling as a passenger on 24 August 1985. H Plaintiff's wife died on 6 September 1985 as a result of the injuries she sustained in the collision.
In his personal capacity and as administrator of the joint estate of himself and his late wife, to whom he was married in community of property, plaintiff claims damages in the sum of R23 451,88 made up as follows:
(a)
Hospital expenses |
R578,00 |
(b)
Funeral expenses I |
1 273,88 |
(c)
Expenses to be incurred by plaintiff in employing a housekeeper and supervisor to attend to the minor daughter born of the marriage between himself and the deceased J |
R 21 600,00 |
R 23 451,88 |
1993 (3) SA p159
Selikowitz J
A In its plea defendant admits that the collision, and consequently the death of plaintiff's wife, resulted from the negligent driving of Robin Thomas. Defendant, however, disavows liability, putting in issue plaintiff's allegations that he has suffered damages and, if so, the quantum of such damages.
B The minutes of the meeting held pursuant to Rule 37 record that defendant concedes liability to plaintiff in the sums of R578 in respect of hospital expenses and R1 273,88 for funeral expenses. Defendant repeats its denial of liability for the employment of a housekeeper and supervisor to attend to plaintiff's minor daughter. It is however agreed by the parties that C
'if no allowance is made for costs saved (if any) by plaintiff in supporting the deceased, then the quantum of plaintiff's claim in respect of the housekeeper is the sum of R17 635 without an allowance for contingencies'.
Accordingly, the issues to be decided by this Court are whether or not plaintiff has suffered recoverable damages (other than the two amounts admitted), and if so, in what amount. D
A husband can recover damages from a wrongdoer who has deprived him of his wife's services. In order to succeed the husband must establish that as a result of being deprived of his wife's services he has suffered actual patrimonial loss and that his wife owed him a duty to perform the lost services. A husband has no claim in our law for loss of his wife's E comfort or society. The action which is available to the husband is an extension of the Aquilian action. Damages are awarded to compensate the husband for his patrimonial loss and not to assuage his injured feelings. (See Union Government (Minister of Railways and Harbours v Warneke 1911 AD 657 Abbott v Bergman 1922 AD 53).
F The aspect of the wife's duty presents no difficulty here. The present claim relates only to the services which plaintiff's wife rendered in the home and in the upbringing of the three minor children. Although there are three minor children, the claim as made related to the youngest minor child because she will require the supervision of an adult for the longest G time. The family did not employ any domestic help during the lifetime of plaintiff's wife. The housekeeping and mothering tasks she performed were clearly rendered pursuant to her duties as a wife and defendant did not contend otherwise. (See Warneke's case supra at 663, 666, 668 Plotkin v Western Assurance Co Ltd and Another 1955 (2) SA 385 (W) at 389.)
In Warneke's case the three Judges who delivered reasoned judgments - H the remaining two Judges concurred - all placed emphasis upon the rule that only actual pecuniary loss which is proved to have been lost is recoverable. The learned Chief Justice, Lord De Villiers, stated:
'It is quite conceivable that there may be cases in which the loss of such assistance entails on the husband an expenditure which, if the wife I had lived, it would not have been necessary for him to incur. Such a loss might fairly be held to fall under the expression damnum rei familiaris, which is used by Voet (47.10.18).'
(At 662) and thereafter,
'. . . where a wife during her lifetime actively assisted her husband in the support and education of their children, he would be entitled, upon J her being killed
1993 (3) SA p160
Selikowitz J
A through negligence, to claim such pecuniary damages as he can be proved to have sustained by reason of the permanent loss of such assistance'.
(At 663.) Innes JA said that
'. . . there is nothing inconsistent with the principles of our law in allowing a husband who can show that his pecuniary expenditure in B connection with the maintenance of his children has been directly and necessarily increased owing to the death of his wife, to claim damages against the person who has negligently caused her death.'
(At 669.) Later in his judgment the learned Judge remarked:
'It is possible that the plaintiff may prove that after making allowance C for the fact that he no longer has to support his wife, the arrangements necessitated to replace her supervision and assistance in the upbringing of the children entail a pecuniary loss.'
(At 669.) De Villiers JP found that the extension of the Aquilian remedy to widowers is fair and equitable. He added:
D 'This damage must, however, be confined to the damnum which he proves he has actually suffered.'
(At 673.) Warneke's case came before the Appellate Division on appeal against the dismissal by the Court a quo of an exception. Defendant had excepted to the plaintiff's declaration on the grounds that it failed to E disclose a cause of action. In his declaration plaintiff had alleged that as a result of his wife's death, he had
'been deprived of the comfort and society of his wife, of her assistance in the care, clothing and upbringing of his said children, and has suffered damages in the sum of £3 000 sterling . . .'.
F The Court of Appeal found that while no claim existed in our law for the loss of 'comfort and society', plaintiff's claim in respect of the loss of assistance could be adjudicated. The appeal was accordingly dismissed.
It is of passing interest to note that both the Chief Justice and Innes JA were constrained to remark that plaintiff might do well to consider accepting the sum of £350 tendered by defendant. As I understand their G remarks, the learned Judges were somewhat sceptical of plaintiff's ability to establish more substantial damages.
In a note published in the South African Law Journal, it is recorded that the trial was heard in the Eastern Districts Local Division before Graham J and a special jury on 21 February 1912. After referring to the decision on appeal the report continues: H
'In pursuance of this judgment Graham J duly directed the jury that the plaintiff could only recover the amount of the actual pecuniary loss he had sustained; but he held that they were entitled to take into...
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