Henning v South British Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Smit JP
• Judgment Date: 18 October 1962
• Citation: 1963 (1) SA 272 (O)
• Court: Orange Free State Provincial Division

Smit, J.P.:

In the early hours of the morning on 17th May, 1960. plaintiff, riding a motor cycle, collided with one Groenewald, driving a motor car, at the intersection of two roads in the grounds of the Oranje B Hospital, Bloemfontein. Groenewald's car was insured with the defendant company in terms of Act 29 of 1942, as amended, at the time of the accident. Plaintiff's right leg was fractured in the collision and it is in respect of this injury that he claims damages from the defendant on the ground that the collision was due to the negligence of Groenewald. C Defendant denies that Groenewald was in any way negligent, or, if he were that such negligence was the cause of or contributed to the accident. It is further alleged that the sole cause of the collision was plaintiff's negligence.

(The learned Judge then analysed the evidence and proceeded.)

D I accordingly find that both plaintiff and Groenewald were guilty of negligence and that they were at fault to the same degree in relation to the damage (South British Insurance Co. Ltd v Smit, 1962 (3) SA 826 at p. 835 (A.D.)). It follows that plaintiff can only recover from defendant half of any damages he has suffered.

Plaintiff claims R7,503.92 as damages for shock, pain, suffering, E disfigurement and loss of amenities of life. For permanent disability he claims R1,000,for loss of salary R1,085.48 and R410.60 for medical and hospital expenses.

(The learned Judge then dealt with the injuries sustained by the plaintiff and proceeded.)

F The amount to be awarded as compensation can only be determined by the broadest general considerations (Sandler v Wholesale Coal Suppliers Ltd., 1941 A.D. 194 at p. 199). In my view, in all the circumstances of this case, a fair amount of compensation for shock, pain, suffering, disfigurement and loss of amenities of life would be R2,000. Counsel agreed that the amount of R410.60 paid by the Commissioner under the G Workman's Compensation Act in respect of hospital and medical services was fair and reasonable. It was also not disputed that an amount of R651.48 was paid by the Commissioner in terms of sec. 38 of Act 30 of 1941 as being periodical payments during plaintiff's temporary disablement. This is part of the amount of R1,085.48 claimed by H plaintiff under the head of loss of salary. The balance of this amount, namely R434 represents the difference between plaintiff's full pay and the compensation paid to him by the Commissioner, and which was paid to him by his employer by way of periodical payments of his monthly earnings. It was not disputed that the amount of R651.48 paid by the Commissioner had to be brought into account in determining the amount of damages payable by defendant in view of the provisions of sec. 8 (1) of the Act (Bonheim v South British Insurance Co.

Smit JP

Ltd., 1962 (3) SA 259 (AD)). The amount of R434 was, however, paid by the employer and not by the Commissioner. It was also not A compensation the employer 'was obliged to pay under the Act' (sec. 8 (1)). The employer made...