Hing and Others v Road Accident Fund

• Jurisdiction: South Africa
• Citation: 2014 (3) SA 350 (WCC)

Hing and Others v Road Accident Fund
2014 (3) SA 350 (WCC)

2014 (3) SA p350

Citation	2014 (3) SA 350 (WCC)
Case No	A 440/2011; and A 139/2012
Court	Western Cape Division, Cape Town
Judge	Griesel J, Ndita J and Binns-Ward J
Heard	January 29, 2014
Judgment	February 13, 2014
Counsel	MA Crowe SC (with A Blommaert and P Eia) for the appellants.; TD Potgieter SC (with A Bhoopchand) for the respondent.

Flynote : Sleutelwoorde

Delict — Specific forms — Psychiatric injury — Law surveyed — Distinction F between such injury and severe grief.

Delict — Specific forms — Psychiatric injury — Determination — To be based on psychiatric evidence.

Evidence — Expert evidence — Evaluation — Psychiatric evidence — Must be G clear, cogently reasoned and preceded by summary — Uniform Rules of Court, rule 36(9)(b).

Delict — Elements — Causation — Legal causation — Loss of support — Wife injured in collision and dying — Two years later husband retrenched and claiming loss of support — Whether negligent driver's act close enough to loss for liability. H

Costs — Taxation — Taxing master — Role — Determining allowable expenses and attendances — Court may not usurp function — But court may express its views on costs to assist him — Uniform Rules of Court, rule 70(3).

Headnote : Kopnota

In this case first appellant was involved in a motor-vehicle accident in which she I alleged that she had sustained a psychiatric injury which caused her to be 'so demotivated that she could not arrange for the rental of certain apartments that she held as investments'. She proceeded to claim as damages her lost rental income. The trial court found she had not proved a psychiatric injury and dismissed the claim. First appellant then appealed to the full bench. It surveyed the law, which was to the effect that a person J could claim the damages which resulted from an identifiable psychiatric

2014 (3) SA p351

injury, provided the requirements for delictual liability were present. In A issue was whether first appellant had proven that she had sustained a psychiatric injury or whether she was suffering from uncompensable grief. The court held that this question had to be decided on the basis of psychiatric evidence which had to be clear and cogently reasoned and preceded by a rule 36(9)(b) summary. Ultimately it upheld the trial court's finding that there had been no such injury. (Paragraphs [2], [10] – [11], B [13] – [21], [24] – [27] and [29] – [30] at 353A – B, 355E – 356A, 356C – 360E, 361C – 362C and 362F – 364B.)

Second appellant's wife sustained injuries in the accident and died a few days later as a result thereof. Almost two years after her death second appellant was retrenched and he claimed loss of support. The trial court rejected the C claim and second appellant appealed. In issue was legal causation: whether the insured driver's act was linked closely enough to the loss for liability. The court held not. This owing to the distance in time between the act and when the loss arose; the loss being a result of an intervening event, the retrenchment; and the loss not being foreseeable at the time of the driver's wrongdoing. Accordingly the appeal was dismissed. (Paragraphs [36], [41] – [43] and [45] at 365D – E, 367C – 369G and 369J.) D

The full bench partly upheld third appellant's appeal, and dismissed fourth, fifth and sixth appellants' appeals. It also upheld an appeal against a costs order which disallowed the costs of foreign travel and attendances. It held that rule 70(3) provided for the taxing master to determine allowable expenses and attendances and it was not for a court to usurp his function. It was though permissible for a court to express its views on costs in order to assist E him. (Paragraphs [56], [62], [64], [79] – [80], [82] and [89] at 373A, 375E – F, 375I – 376A, 379G – I, 380C – G and 383B – F.)

Cases Considered

Annotations

Case law F

Southern Africa

Barnard v Santam Bpk 1999 (1) SA 202 (SCA): considered

Bertram v Central South African Railways 1905 TH 234: followed

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A): considered

Burger v Union National South British Insurance Company 1975 (4) SA 72 (W): G referred to

Clinton-Parker v Administrator, Transvaal; Dawkins v Administrator, Transvaal 1996 (2) SA 37 (W): referred to

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A): distinguished

Eye Site Gauteng Inc v Stanley & De Kock Optometrist Inc [2012] ZAWCHC 103: referred to H

General Accident Insurance Co SA Ltd v Summers; Southern Versekeringsassosiasie Bpk v Carstens NO; General Accident Insurance Co SA Ltd v Nhlumayo 1987 (3) SA 577 (A): distinguished

Himunchol v Moharom 1947 (4) SA 778 (N): referred to

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A): dicta at 700E – 701G applied I

Jacobs v Cape Town Municipality 1935 CPD 474: followed

Kloof Investment 2004 CC v Gary Isaacs t/a Build-O-Rama Builders Merchants (WCC case No A900/10) (5 August 2011): referred to

Kruger Bros & Wasserman v Ruskin 1918 AD 63: dictum at 69 explained

Mokone v Sahara Computers (Pty) Ltd [2010] ZAGPPHC 279: referred to

Mpondo v Road Accident Fund [2011] ZAECGHC 24: referred to J

2014 (3) SA p352

Mulder v South British Insurance Co Ltd 1957 (2) SA 444 (W): referred to A

Road Accident Fund v Delport NO 2006 (3) SA 172 (SCA) ([2006] 1 All SA 468): referred to

Road Accident Fund v Sauls 2002 (2) SA 55 (SCA): referred to

Shill v Milner 1937 AD 101: referred to

Songono v Minister of Law and Order 1996 (4) SA 384 (E): referred to B

Sueltz v Bolttler 1914 EDL 176: referred to

Transnet Ltd t/a Metrorail and Another v Witter 2008 (6) SA 549 (SCA) ([2009] 1 All SA 164): referred to

Waring & Gillow Ltd v Sherborne 1904 TS 340: referred to.

Australia

Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383: referred to C

Tame v New South Wales [2002] HCA 35: dictum in para [194] followed.

England

Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 311 (HL) ([1991] 4 All ER 907): referred to

Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601: referred to D

Page v Smith [1995] 2 WLR 644 ([1995] 2 All ER 736 (HL)): referred to

White and Others v Chief Constable of South Yorkshire and Others [1999] 1 All ER 1 (HL): referred to.

Rules Considered

Rules of court

E The Uniform Rules of Court, rules 36(9)(b) and 70(3): see The Superior Courts Act 10 of 2013 and the Magistrates' Courts Act 32 of 1944 and Rules (2014) at 59 and 91.

Case Information

MA Crowe SC (with A Blommaert and P Eia) for the appellants.

TD Potgieter SC (with A Bhoopchand) for the respondent. F

An appeal to the full bench against a decision of Klopper AJ. The order is in para [89].

Judgment

Binns-Ward J (Griesel J and Ndita J concurring):

G [1] In February 2007 six sisters came to Cape Town from the disparate parts of the world in which they lived for the celebration of their brother's 60th birthday. While here they were involved in a serious motor vehicle collision, in which all of them sustained injuries. One of them, Jackie Sehinson from Toronto, Canada, died of her injuries six days later in H hospital. The surviving sisters subsequently claimed compensation in terms of the Road Accident Fund Act 56 of 1996. The late Jackie Sehinson's spouse also sought compensation, as did the couple's only daughter. The claim of one of the sisters was settled. The other claims gave rise to litigation. The ensuing six actions were tried together before I Klopper AJ in two stages during June 2010 and February 2011. It was agreed that the first appellant, who had been driving the vehicle in which the siblings had been travelling, had been equally at fault with the driver of the other vehicle in causing the collision. The matter therefore went to trial only on the issue of quantum, with the Fund accepting liability for 50% of such damages as the first appellant was able to prove, and to the J full extent of those which the other appellants could establish.

2014 (3) SA p353

Binns-Ward J (Griesel J and Ndita J concurring)

[2] The actions of Jackie Sehinson's surviving spouse and daughter were A dismissed, while those of the four sisters were successful only to a limited degree. All six plaintiffs have come on appeal against the judgment of the trial court. The appeals are with the leave of the court a quo, granted on 26 August 2011.

Condonation B

[3] In terms of rule 49(2) the appellants were required to deliver a notice of appeal within 20 days after the date upon which leave to appeal was granted, or within such longer period as might upon good cause shown be permitted. They failed to comply with this requirement. They have C sought condonation of their non-compliance. The application for condonation was filed only in December 2013, at the same time as the appellants' heads of argument were delivered. The explanation offered for the non-compliance was that a notice of appeal would have been a supererogation, as the judge a quo had stated in his judgment granting leave to appeal that he was doing so 'on the grounds set out in their D notice of appeal dated 1 August 2011'. (The so-called 'Notice of Appeal' thus referred to was in fact the appellants' notice of application for leave to appeal.)

[4] The explanation is unacceptable. The application for leave to appeal E had listed 65 grounds on which the judge a quo was alleged to have 'erred and misdirected himself'. As the respondent's counsel justifiably observed, a number of those grounds were so vaguely formulated as to be of little or no assistance in meaningfully defining the bases of the intended appeals. [1] In any event it should have been apparent to the F appellants that the learned acting judge could not possibly have intended his words to be taken...