Hoffa, NO v SA Mutual Fire & General Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: van Winsen J
• Judgment Date: 01 April 1965
• Citation: 1965 (2) SA 944 (C)
• Hearing Date: 12 February 1965
• Court: Cape Provincial Division

Van Winsen, J.:

Plaintiff sues in her capacity as executrix testamentary E in the estate of her deceased husband (hereinafter referred to as 'the deceased') who died on 15th April, 1963. Summons was issued on 12th June, 1964. Plaintiff's claim is for damages arising out of a collision which took place on 16th October, 1962, between two motor cars on the Malta Road Bridge, Observatory, Cape, in one of which the deceased was a F passenger. It is averred in the declaration that the collision resulted from the negligence in certain specified respects of the driver, George Edward Grey, of one of the cars involved in the collision. The car in which the deceased was a passenger was driven by Michael Cairns. The deceased is alleged to have been seriously injured in the collision, in G consequence of which the plaintiff in her capacity aforesaid claims to have suffered damages in the sum of R10,383.10. Of this sum R10,000 is claimed by way of general damages in respect of shock, pain, suffering, loss of amenities of life and disability, being a restriction of wrist and forearm movement. These damages are claimed against the defendant insurance company as the company with which the motor car driven by Grey H was insured in terms of Act 29 of 1942. No claim is made for loss of future earnings or for shortened life expectancy.

A plea was filed and subsequently amended, and in its amended form raised only two issues, namely the quantum of damages alleged to have been suffered by plaintiff and defendant's liability therefor. In regard to the latter of these issues the plea states as follows:

'6.

Defendant denies that plaintiff in her capacity as executrix in the estate of her said late husband is in law entitled to recover from defendant company, which in law is not liable to plaintiff in her said capacity for,

Van Winsen J

the amount of R10,000 claimed by her as and for general damages for shock, pain and suffering, loss of amenities of life and disability, inasmuch as

(a)

plaintiff's said late husband died on 15th April, 1963, before the institution of this action by the issue of plaintiff's summons dated 12th January (sic), 1964, and before litis A contestatio in the said action; and

(b)

the said claim for general damages as aforesaid was not in law transmissible upon the death of plaintiff's said husband to his estate or to plaintiff in her capacity as executrix of the said estate.

7.

Defendant further pleads that in the premises plaintiff in her capacity aforesaid is not in law and in respect of the said claim for general damages a third party who has suffered loss or damage B within the meaning of sec. 11 of the Motor Vehicle Insurance Act, 1942.'

The matter proceeded to trial, and at the outset thereof an application, in which counsel for both parties joined, was made in terms of Rule of Court 33 (4), requesting the Court to decide the issue of liability as a separate question of law before proceeding with the trial. This the Court agreed to do, and the issue was thereupon canvassed.

C It would be as well to be clear at the outset that the plaintiff's claim is not based on damages alleged to have been suffered by the estate of the deceased, but is brought by plaintiff as a representative of the deceased in respect of a claim which accrued to him while he was alive, and which on his death is claimed to have constituted an asset in his D estate. The frame of the declaration makes it clear that such is the intention of the plaintiff and her counsel disavowed any intention to pursue the claim on any other basis. Indeed, it is clear that the estate, not being in existence at the time that the claim arose, cannot claim itself to have suffered the damages set out under the head of E general damages in the declaration. Cf. Lockhat's Estate v North British and Mercantile Insurance Co. Ltd., 1959 (3) SA 295 (AD).

The claim is one which, had the deceased lived, he would, but for the provisions of sec. 13 of Act 29 of 1942, have had against Grey and consequently by virtue of the provisions of sec. 11 of that Act would F have had against the defendant. The real issue is whether that claim constituted an asset in his estate or whether it died with him.

I am not persuaded that the provisions of Act 29 of 1942 cast any light on the problem. There is nothing in that Act to suggest that the Legislature intended to place on the insurance company a greater liability than would have rested upon the owner or driver insured with it. See first proviso of sec. 11 (1) of the Act, and Workment's G Compensation Commissioner v S.A.N.T.A.M. Bpk., 1949 (4) SA 732 (C). A third party, in order to succeed against the insurance company, is required to bring himself within the ambit of sec. 11 of that Act, but there is nothing in that section or in any other section of the Act which puts the insurance company with respect to a claim for pain and H suffering in a more favourable position that that in which the owner or driver would have been had the Act not been passed. Nor does the Act exclude a claim against the insurance company by someone who is in the position of a representative of a deceased in those cases where the deceased's estate has a right to claim compensation against the owner or driver.

I turn therefore to consider the question as to whether the

Van Winsen J

deceased's right to claim damages for pain and suffering and loss of the amenities of life ceased on his death.

In the Civil Law, and by virtue of the actio legis Aquilia, as later A extended by the praetor by means of actiones in factum and actiones utiles, an action lay to recover damages wrongfully done to corporeal property, as also damages flowing from physical injury wrongfully occasioned to the body of a freeman, either where the wrongful conduct was intentional or negligent. This action was both rei persequendae B causa and poenae persequendae causa and, as such, regarded as 'mixta'. While the injured party's heir could enforce the action against the wrongdoer, the action was, because of its penal character, not passively transmissible, that is, not transmissible to the wrongdoer's heir, until litis contestatio had occurred or unless the wrongdoer's heir had been enriched by the wrongdoing.

C The actio injuriarum, on the other hand, was an action given to the person suffering a wilful contumelious injury. It was an actio vindictam spirans, that is, one intended to afford the injured party personal satisfaction, and was by reason of its penal nature neither actively nor passively transmissible unless litis contestatio had taken place before D the death of either party to the suit. See Sohm, Institutes of Roman Law, 3rd ed...