Jones, NO v Santam Bpk

JurisdictionSouth Africa
JudgeSteyn CJ, Rumpff JA, Holmes JA, Williamson JA and Van Winsen JA
Judgment Date25 February 1965
Citation1965 (2) SA 542 (A)
Hearing Date26 November 1964
CourtAppellate Division

D Williamson, J.A.:

The appellant, in his capacity as father and natural guardian of his minor daughter, Maria Petronella Jones, sued the respondent insurance company in the Cape Provincial Division for the sum of R7,500 as being damages sustained by the minor daughter in consequence of her being knocked down by a motor car near Hermanus on December 30, 1961. The accident was said to be due to the negligent E driving of a motor car by one Willem Jeremia Hopkins: the respondent was the insurer of the said car in terms of the Motor Vehicle Insurance Act, 29 of 1942.

The action was heard by CORBETT, J. He decided that the child had suffered general damages in the sum of R2,750; special damages had been F agreed in the sum of R630, and the total damages were therefore R3,380. The learned Judge also came to the conclusion that the child Maria had herself been negligent in regard to the accident in question; for the purpose of sec. 1 (a) of the Apportionment of Damages Act, 34 of 1956, he assessed 'the degree in which she was at fault in relation to the damage' at 50 per cent. In the result he awarded the appellant the sum of R1,690 damages.

G The action commenced on November 1, 1963; judgment was delivered on January 31, 1964, and the Court was then informed that the respondent had made a payment into Court on January 1, 1963, of R500 and again a further payment of R750 on September 26, 1963; both these offers were H rejected. On October 15, 1963, the respondent paid into Court a further amount of R1,750, thereby making its total such payments R3,000. This offer was rejected on October 18, 1963. An order as to costs was thereupon made by the learned Judge in the following terms:

'Plaintiff is entitled to costs up to October 18, 1963, subject to the proviso that plaintiff's rights to costs reasonably incurred between the service of the notice of the payment into Court dated October 15, 1963, and the rejection thereof on October 18, 1963, shall be determined by the taxing officer having regard to the question as to whether there was an agreement between the parties that no such costs should be incurred between those dates. Defendant shall be

Williamson JA

entitled to its costs incurred thereafter and such costs shall include the qualifying expenses of the witnesses Dr. Kooy and Dr. Grover.'

The matter is before this Court upon an amended notice of appeal which states that the appeal is against the whole of the order of CORBETT, J.,

'in so far as the amount awarded to plaintiff (appellant) was reduced in A terms of sec. 1 of the Apportionment of Damages Act, 1956, and in so far as plaintiff (appellant) was ordered to pay defendant's (respondent's) costs from October 19, 1963, and in so far as plaintiff (appellant) was not awarded costs after October 18, 1963'.

This Court is accordingly not concerned with the nature of the injuries suffered by the child Maria nor with the assessment by the Court a quo B of the total amount of the general damages therefor in the sum of R2,750. Medical evidence, save that given in regard to Maria's mental development, has in the circumstances properly, by agreement of the parties, been excluded from the appeal record. Nor, in the absence of a C cross-appeal, is this Court called upon to consider whether Hopkins, the driver of the vehicle which struck the child, was guilty of negligence causally connected with the accident; but in regard to the application of the provisions of the Apportionment of Damages Act of 1956 to the damages awarded to the appellant, it is nevertheless necessary to consider the nature or extent of Hopkins' negligence.

D From a detailed surveyor's plan of the immediate vicinity, from photographs put in as exhibits and from the evidence, the scene of the accident was very adequately recorded. At about 6.15 p.m. on the afternoon of December 30, 1961, Hopkins was returning from a fishing expedition at a place some distance to the east of Hermanus to a camping E place some miles to the west thereof; in other words, he had to pass through Hermanus from east to west. He had been proceeding towards Hermanus from Stanford in the east along a gravel road, but just as he left this gravel road he passed through a cattle gate on to what is marked on the plan as 'the old tarred road'. The plan shows a 'new tarred road' now connected with the old road, but at the time of the F accident in 1961 that new road was not yet completed or in use. About 20 to 30 yards beyond the junction of the roads there was a speed limitation sign of 35 m.p.h. on the left hand side of the road, indicating the approach into Hermanus itself. About another 20 yards on, a road came through some low bushes into the main road from the left; G this side road led to a municipal camping site situated on the southern side of the road between the main road and the sea. From where Hopkins came on to a main tarred road, the road ran westward in a straight line for about 180 yards to a slight bend northwards or to the right as Hopkins was approaching. Just before the bend there was a tea room or café, known as the Green House Tea Lounge; this tea room lay about 50 H ft. to the north of the road. The tarred road itself varied between about 17 ft. and 18 ft. in width, both its edges being unpaved. On the southern side, or left hand side as Hopkins was approaching, there was a narrow grass verge with the grass in places intruding on to the tar. Adjacent to the grass and at places through the grass, and at one or two places actually against the tar, ran a gravel path varying in width from about 2 ft. to 21/2 ft. To the south of this verge of path and grass there was bush.

Williamson JA

On the northern side of the road there was also a fairly narrow grass verge, of varying width, running between the tar and low bush and veld to the north. A person standing between the main road and the tea room A had an unobstructed view looking eastwards over the intervening low bush and veld; in other words, such a person could observe people approaching the tea room along either verge of the road and vehicles travelling towards Hermanus along the road.

Hopkins said he was driving a vehicle he called a Jeep - it was in fact an open Land Rover - and that as he approached the speed B limitation sign he reduced his speed to between 20 and 25 m.p.h. At about this time when he went through the cattle gate, he noticed 60 to 70 yards in front of him two little European girls and a young coloured servant walking on the southern verge of the road. Just as he was about to pass them he saw a white Mercedes motor car come round the bend 80 to C 90 yards ahead and the next moment the little girl nearest the tarred road seemed to be right in front of his Jeep. He put on his brakes but almost simultaneously the Jeep struck her and she disappeared below the bonnet. He came to a standstill a few paces beyond where he had struck her; she was lying on the tarred road 3 to 4 ft. from the southern edge D and a few paces behind the Jeep. At the time the child was struck he was travelling 3 or 4 ft. away from the left hand edge of the tar. He thought the child was struck by the centre of the front of the Jeep. The left hand lamp, which was set to the inside of the left mudguard, was cracked and the middle of the wire grill in front of the radiator was dented. When he first noticed two small girls walking together about 70 E yards ahead of him, the child nearest the road was then about 3 ft. from the edge of the tar. He also noticed people walking on the grass verge on the right or northern side of the road but did not notice any children there. At no stage was there anything to prevent him going further to his right from the position in which he was travelling on the F left centre of the road with his left wheels 3 or 4 ft. from the southern edge of the tar. He did not particularly keep his eyes on the two small girls and never saw any movement into the road by either of them; nor did he at any time warn them of his approach by sounding his hooter. The Jeep at no time went near the grass or gravel verge and G actually stopped well on the tar on a line but very slightly to the left of that along which he had been travelling before he applied his brakes. He saw marks on the road where he had first applied his brakes.

On the above facts it is quite apparent that Hopkins was guilty of negligence in some degree. It has been emphasised in a number of H decisions that a motorist approaching children who are near the side of a highway is under a special duty to take care in relation to such children. This duty was restated recently in this Court in the case of South British Insurance Co. Ltd v Smit, 1962 (3) SA 826 (AD), in this form at p. 837:

'The propensity of children - even though well versed in road safety - to rush heedlessly across a street is, of course, well known. It is because of that very propensity that the law requires the driver of a vehicle who sees children upon or near his roadway to be specially upon the alert.'

The learned trial Judge accepted Hopkins' evidence that he reduced

Williamson JA

his speed to the very moderate range of 20 to 25 m.p.h. but he found that...

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56 practice notes
  • General Accident Versekeringsmaatskappy SA Bpk v Uijs NO
    • South Africa
    • Invalid date
    ...na die volgende gesag verwys: South British Insurance Company Ltd v Smit 1962 (3) SA 826 (A) op 835C-836D, 837-8;Jones NO v Santam Bpk 1965 (2) SA 542 (A) op 554G-555H; Union National South British H Insurance Co Ltd v Vitoria 1982 (1) SA 444 (A) op 455H-456D, 456H, 462A, 462C, 462H-463A; N......
  • Protea Assurance Co Ltd v Lta Building (SWA) Ltd and Another
    • South Africa
    • Invalid date
    ...regard, this Court is referred to South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A) at 836C - E and H Jones NO v Santam Bpk 1965 (2) SA 542 (A) at 554G - D G Scott SC (with him C W Rosenthal) for the first and second respondents: The principal issues raised in this appeal are: (a) w......
  • Section 14 of the Children's Act 38 of 2005 and the child's capacity to litigate
    • South Africa
    • Sabinet De Jure No. 44-2, January 2011
    • 1 January 2011
    ...1962 1 SA566 (T); Wolman v Wolman 1963 2 SA 459A-B; President Insurance Co Ltd vYu Kw am 1963 3 SA 766 (A) 772C; Jones v Santam Bpk 1965 2 SA 542 (A)546D; O’Linsky v Prinsloo 1976 4 SA 843 (O) 846-847; Weber v SantamVersekeringsmaatskappy Bpk 1983 1 SA 381 (A) 386E-F. 19 De Groot 1 4 1 ment......
  • Cape Empowerment Trust Limited v Sithole
    • South Africa
    • Cape Provincial Division
    • 28 January 2005
    ...of the events before the court. [68] See South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A), at 836, and Jones NO v Santam Beperk 1965 (2) SA 542 (A), at ...
  • Request a trial to view additional results
54 cases
  • General Accident Versekeringsmaatskappy SA Bpk v Uijs NO
    • South Africa
    • Invalid date
    ...na die volgende gesag verwys: South British Insurance Company Ltd v Smit 1962 (3) SA 826 (A) op 835C-836D, 837-8;Jones NO v Santam Bpk 1965 (2) SA 542 (A) op 554G-555H; Union National South British H Insurance Co Ltd v Vitoria 1982 (1) SA 444 (A) op 455H-456D, 456H, 462A, 462C, 462H-463A; N......
  • Protea Assurance Co Ltd v Lta Building (SWA) Ltd and Another
    • South Africa
    • Invalid date
    ...regard, this Court is referred to South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A) at 836C - E and H Jones NO v Santam Bpk 1965 (2) SA 542 (A) at 554G - D G Scott SC (with him C W Rosenthal) for the first and second respondents: The principal issues raised in this appeal are: (a) w......
  • Cape Empowerment Trust Limited v Sithole
    • South Africa
    • Cape Provincial Division
    • 28 January 2005
    ...of the events before the court. [68] See South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A), at 836, and Jones NO v Santam Beperk 1965 (2) SA 542 (A), at ...
  • Guardian National Insurance Co Ltd v Van Gool NO
    • South Africa
    • Invalid date
    ...SA 191 (W); In re Estate Visser 1948 (3) SA 1129 (C) at 1137; Boberg The Law of Persons and the Family at 261; Jones NO v SANTAM Bpk 1965 (2) SA 542 (A); Dreyer v Santam Insurance Co Ltd (unreported, ECD case No I2595/E); Mashinini v Senator Insurance Co Ltd E (unreported, WLD case No 334/7......
  • Request a trial to view additional results
2 books & journal articles
  • Section 14 of the Children's Act 38 of 2005 and the child's capacity to litigate
    • South Africa
    • Sabinet De Jure No. 44-2, January 2011
    • 1 January 2011
    ...1962 1 SA566 (T); Wolman v Wolman 1963 2 SA 459A-B; President Insurance Co Ltd vYu Kw am 1963 3 SA 766 (A) 772C; Jones v Santam Bpk 1965 2 SA 542 (A)546D; O’Linsky v Prinsloo 1976 4 SA 843 (O) 846-847; Weber v SantamVersekeringsmaatskappy Bpk 1983 1 SA 381 (A) 386E-F. 19 De Groot 1 4 1 ment......
  • Transforming age-related capacity for fault in delict
    • South Africa
    • Juta South African Law Journal No. , May 2021
    • 19 May 2021
    ...Association v No meka 1976 (3) SA 45 (A) at 56D–E. Comparable but dist inct methods for apportion ment featured in Jon es NO v Santam 1965 (2) SA 542 (A) at 555D–55 6D; General Ac cident Versekerin gsmaatskappy v Uijs 1993 (4) SA 228 (A) at 235B–I; and Transnet t/a Matro [sic] Rail v Tshaba......

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