Herschel v Mrupe

• Jurisdiction: South Africa

Herschel v Mrupe
1954 (3) SA 464 (A)

1954 (3) SA p464

Citation	1954 (3) SA 464 (A)
Court	Appellate Division
Judge	Centlivres CJ, Schreiner JA, Van Den Heever JA, Hoexter JA and Fagan JA
Heard	March 4, 1954
Judgment	May 25, 1954

Flynote : Sleutelwoorde G

Negligence — What amounts to — Erroneous information bona fide supplied as to name of insurer — Wasted costs incurred in suing wrong insurer — Insured not liable therefor in damages.

Headnote : Kopnota

To enable the plaintiff (appellant) to recover, in terms of the Motor H Vehicle Insurance Act, 29 of 1942, damages sustained through the death of her husband in a collision between two vehicles one of which was the property of the defendant (respondent), the plaintiff's attorney by letter requested the defendant to advise her of the name of the insurance company so that a communication could be addressed to it. The defendant's attorney informed the plaintiff that S. was the name of the insurance company. This

1954 (3) SA p465

information, though given in good faith, was incorrect. Plaintiff through her legal adviser sent a letter of demand to the S. company claiming damages. Throughout the negotiations for a settlement with the S. company it was accepted that the vehicle had been insured with the S. company. These negotiations broke down and the plaintiff, without making further enquiries, instituted action against the S. company. When the company's plea was received it was revealed for the first time that the A S. Company was not the insurer of the vehicle. Plaintiff withdrew her action against the S. Company. She paid £10 10s. in settlement of its costs and had in the meantime wasted £102 0s. 10d. in costs between attorney and client. Plaintiff instituted action against the defendant for the recovery of these wasted costs, averring in her particulars of claim 'that as the result of the information given by the defendant to plaintiff, which was given wrongfully and negligently, the plaintiff had suffered damages amounting to £112 10s. 10d.. being attorney and client B costs in the action instituted against the S. company'. In her plea the defendant denied negligence and pleaded two alternative defences, viz. contributory negligence and that any loss suffered by appellant had been caused by the S. company in failing to deny ab initio that it was the insurer. A magistrate's court entered judgment for the plaintiff with costs, which judgment was altered on an appeal to one of absolution from the instance with costs. In a further appeal by the plaintiff, leave having been granted by the Court a quo,

C Held (CENTLIVRES, C.J., dissenting), that the appeal should be dismissed.

Held, per CENTLIVRES, C.J., that the respondent was under a duty towards the appellant to exercise due care in seeing that she correctly gave the name of the company.

Held, further, that on the facts the respondent had acted negligently in telling her attorney to reply to the enquiry in the terms in which the reply had been couched.

D Held, further, that there was no substance in the plea of contributory negligence: the appellant was entitled to act, without further enquiry, upon the information given by the respondent.

Held, further, that the S. company had acted within its rights to wait until plea before disclosing its defence and consequently the appellant was not entitled to recover from that company any part of the damages suffered.

Held, per SCHREINER, J.A., that the test was whether a reasonable man E would, not could, have foreseen the harm: the situation must be such that the reasonable man not only would have foreseen the harm but would have 'governed his conduct accordingly' and 'guarded against' the danger.

Held, further, that a reasonable man might have foreseen trivial harm arising from the sending of a useless letter and the receipt of one correcting the mistake, but that he would not have guarded against its happening.

Held, therefore, that the case was not one of negligence followed by an unforeseeable increase of the loss without the intervention of any F outside agency; it was a case where there was no negligence at all: in morals and good conscience the plaintiff had no right to rely upon the defendant for information and the defendant owed no duty to give it with care.

Held, per VAN DEN HEEVER, J.A., that the notion of 'a duty of care', the existence or non-existence of which had first to be determined, was dispensible - save perhaps in the cases of damage suffered by invitees and licensees: the basis of our law relating to redress for G damage flowing from the negligence of others was the Aquilian action, and this action in respect of damnum iniuria datum could only be instituted by a plaintiff against a defendant if the latter had made an invasion of rights recognised by the law as pertaining to the plaintiff; apart from that, loss lay where it fell.

Held, further, that apart from contract, fraud or statutory provisions, there was no right by which one ordinary citizen could elicit from another ordinary citizen information to be used at leisure and which could be tested for accuracy, and demand that the person furnishing it should be a guarantor of its correctness.

H Held, further, that where there was no right to receive correct information, there was none to be infringed.

Held, per HOEXTER, J.A., although the appellant had a right to obtain the relevant declaration of insurance from the insured, that she had failed to avail herself of the protection afforded by the Act and therefore had only herself to blame for the result.

1954 (3) SA p466

Held, further, as the danger of suing the wrong insurance company was not created by the respondent, that she was not liable for the appellant's loss.

Held, per FAGAN, J.A., that the appellant had failed to discharge the onus of proving culpa on the part of the respondent.

The decision in the Transvaal Provincial Division in Herschel v Mrupe A confirmed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (MALAN, J., and BRESLER, A.J.). The facts appear from the judgment of VAN DEN HEEVER, J.A. B

R. S. Welsh, for the appellant: The distinction, suggested by the Court a quo, between claims based upon physical injury to the person of the plaintiff and claims based upon pecuniary loss suffered by him, finds some support in the English decisions; see Old Gate Estates, Ltd v Toplis & Harding & Russell, 1939 (3) A.E.R. at pp. 216 - 7; Candler v. C Crane, Christmas & Co., 1951 (2) K.B. at pp. 189, 195 and cf. Alliance Building Society v Deretitch, 1941 T.P.D. at pp. 209, 212. It is, however, recognised in England that the distinction is illogical and it is regarded by many high authorities as unsatisfactory or indefensible; see Candler's case, supra, at pp. 178 - 9, 195, 202. Winfield Law of D Tort (5th ed., pp. 391 - 2); 67 L.Q. Review (1951, art. by Warren A. Seavey at pp. 473 - 4); 25 Canadian Bar Review (1947, art. by G. W. Paton at pp. 123, 129). There is no warrant for this distinction in our law. Even in the Roman law there was an actio in factum in respect of damage done nec corpore nec corpori; see Inst. 4.3.6; Lawson, Negligence in the Civil Law (pp. 24 - 7); Buckland and McNair, Roman Law and E Common Law (2nd ed., p. 367). The process of extension which was begun by the Roman Praetors has continued, and in our law the Aquilian action is a general remedy for patrimonial loss wrongfully inflicted; see The Cape of Good Hope Bank v Fischer, 4 S.C. 368; Union Government (Minister of Railways & Harbours) v Warneke, 1911 AD at pp. 662, 664 F - 5; Matthews & Others v Young, 1922 AD at pp. 504 - 5, 507; Bredell v Pienaar, 1924 CPD at p. 213; Union Government v Lee, 1927 AD at p. 222; Oslo Land Co. Ltd v The Union Government, 1938 AD at pp. 590 - 1; Perlman v Zoutendyk, 1934 CPD at pp. 155, 158 - 9; G van den Heever, Aquilian Damages in SA Law (vol. 1, pp. 32, 33 - 5); Aquilian Liability for Negligent Statements (art. by Price, in 67 S.A.L.J. at pp. 138, 257, 411 and 68 S.A.L.J. at p. 78). The reasoning of the Court a quo that unless some limitation is placed upon liability for negligent mis-statements, ordinary intercourse between individuals would be fraught with great danger and a person in communicating with H another would speak at his peril is supported by some English and American authorities; sec Dickson v Reuter's Telegram Co., 3 CPD at p. 6; Ultramares Corporation v Touche, 255 N.Y. 170; Candler's case, supra, at pp. 194 - 5, 202 - 7, and cf. Alliance Building Society case, supra, at pp. 213 - 5. But these fears are exaggerated. Ordinary intercourse between individuals would not be intolerable if the same rules governed liability for careless deeds and careless

1954 (3) SA p467

words alike. The same arguments were raised against the extension of the Common Law liability of manufacturers but the English Courts had no difficulty in rejecting them; see Grant v Australian Knitting Mills, Ltd., 1936 A.C. at pp. 107 - 8. Not every word, written or spoken, will expose its author to legal liability. The act must be viewed in its A setting; see Glanzer v Shepard, 223 N.Y. 236 and cf. International Products Co v Erie R.R. Co., 244 N.Y. 331 cited in 67 S.A.L.J. (1950) at pp. 147 - 8. The fact that a statement will, to the knowledge of its maker, be acted upon over a long period of time by large number of persons who may suffer heavy pecuniary loss if it is false renders it B necessary that he should be particularly careful or at any rate warn the persons who are likely to act on the statement, that they do so at their own risk; see 68 S.A.L.J. at pp. 87 - 8; 67 L.Q.R. at p. 177; 15 Modern Law Review at p. 161. Another reason given for the English rule is that the law 'does not consider that what a man writes on paper is like a gun or other dangerous...