Marine & Trade Insurance Co Ltd v Katz NO

• Jurisdiction: South Africa
• Judge: Trollip JA, Muller JA, Joubert JA, Trengove JA and Galgut AJA
• Judgment Date: 24 August 1979
• Citation: 1979 (4) SA 961 (A)
• Hearing Date: 18 May 1979
• Court: Appellate Division

Trollip JA:

On 15 October 1974 Mrs Ingrid Simmons ("the patien") was seriously injured in a collision between two vehicles. She was a passenger in one vehicle. The other vehicle was insured by the appellant H ("defendant") under the Compulsory Motor Vehicle Insurance Act 56 of 1972 as amended ("the Act"). The respondent, the duly appointed curator bonis of the patient ("the curator"), sued defendant in the Court a quo for compensation under the Act for her bodily injuries.

The particulars about the patient, her injuries, and their sequelae will be canvassed in more detail later in this judgment. It suffices as an introduction to say briefly here that she was about 32 years old at the time of the accident; in consequence of her injuries she is permanently and almost completely quadruplegic; she is at present in the Serenity Nursing

Trollip JA

Home in Johannesburg, a private hospital for chronically ill persons, where, it is expected, she will spend the rest of her life as a bed-ridden A patient; the agreed expectation of her life is 19 years from the date of the trial (6 November 1978); and during that time she will require constant treatment, attention, medication, and careful nursing.

The defendant admitted liability to compensate her for her loss and damage. Only the quantum of some items of compensation and the method of B paying for other items were in issue. The Court a quo (COETZEE J) made the following awards and orders (my numbering):

(1)

R90 000 for general damages;

(2)

R87 964 for loss of future income, payable by specified instalments in terms of an undertaking that the Court a quo directed the defendant to furnish to the curator under s 21 (1C) (b) of the Act as amended;

(3)

C R12 238 for past loss of earnings;

(4)

R32 296,39 for past medical and hospital expenses incurred up to 31 October 1978. (This was an agreed figure. It was omitted - reason unknown - from the order drawn up by the Registrar of the Court a quo.);

(5)

D An order under s 21 (1C) (a) of the Act directing the defendant to furnish the curator with a detailed undertaking in terms of which the defendant undertook to compensate the patient for the costs incurred in respect of any future hospital accommodation, treatment, services, or goods received by the patient.

(6)

E An order (according to the one drawn up by the Registrar)" that the defendant give a suitable guarantee in the usual form for the payment of the costs referred to in (para (5)) above"

(7)

An order for the payment of R1152,85, being costs for the appointment of the curator, and of his fees as laid down by law. (This was agreed upon F between the parties, but is not mentioned in the Registrar's order.)

(8)

An order that the defendant shall pay the costs of suit of the curator, including those in respect of two counsel and the qualifying fees of certain experts.

G The defendant has appealed to this Court against that judgment. At the hearing of the appeal only the awards or orders in (1), (2), (3) and (5) were raised and debated before us. The issues in respect of the orders in (2) and (5) turn on the proper construction and application of the recent amendment to s 21 of the Act ("the amendment"), introduced by s H 8 of Act 69 of 1978. Although the amendment became operative on 1 September 1978, it was common cause that it applied in the present case. The defendant invoked its provisions at the trial. The amendment reads:

"21 (1C)

Where a claim for compensation under s 21 -

(a)

includes a claim for the costs of the future accommodation of any person in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him, the authorized insurer concerned shall be entitled, after furnishing the third party in question with an undertaking to that effect or a competent court has directed him to furnish such undertaking, to compensate the third party in respect of the said costs after the costs have been incurred and on proof thereof;

Trollip JA

(b)

includes a claim for future loss of income or support, the authorized insurer concerned shall be entitled after furnishing the third party in question with an undertaking to that effect or a competent court has directed him to furnish such undertaking, to pay the amount payable by him in respect of the A said loss, by instalments as agreed upon or directed by the court."

I agree with the observation of the learned trial Judge that the amendment is "unfortunately not a model of legal clarity or of the art of legal draftsmanship" - indeed, that is somewhat of an understatement.

B Dealing first with para (a) of the amendment, I quote the trial Judge's interpretation of it:

"An interpretation of ss (1C) (a) which retains as much as possible of common law principle, both adjectival and substantive, is to my mind the following:

1.

Where an undertaking as is envisaged is tendered, judgment may not be given in any particular amount; only a judgment directing that an undertaking be given is then possible.

2.

C The undertaking which the court directs to be given, must be defined by the court and must set forth the nature of the costs which must be paid.

3.

These costs refer to those which have been claimed in the summons. It may be in issue whether they are indeed costs which flow from the injuries suffered or might properly be incurred in connection therewith, in which event the court will have to adjudicate thereon D and in the light thereof define the nature of the costs as proved by the (claimant).

In this fashion fragmentation is to a large extent avoided, as a future compensation will depend simply upon whether the costs which must fall within the framework of the undertaking directed by the court, have been incurred."

Following thereon, the trial Judge, using a draft furnished by the E curator's counsel, directed the defendant to furnish the curator with this detailed indemnity:

"The defendant undertakes to compensate the (patient) in respect of the costs -

(1)

of the (patient's) future accommodation inclusive of the cost of food in a private ward in the Serenity Nursing Home for life, or the future accommodation including food for life in a private ward in an equivalent nursing home should she be moved to such nursing home from the Serenity Nursing Home at the instance of the (patient);

(2)

F of treatment given to the (patient) for the rest of her lifein respect of nursing, medical and therapeutic treatment in consequence of the injuries sustained by her or their sequelae or in consequence of her quadruplegia or its sequelae and inclusive of treatment for pain, bodily discomfort and rehabilitation;

(3)

of sedatives given to the (patient) for the rest of her life, in respect of nursing, medical and therapeutic treatment given in consequence of the injuries sustained by her or their sequelae or in G consequence of her quadruplegia or its sequelae inclusive of treatment for pain, bodily discomfort and rehabilitation;

(4)

of goods supplied to the patient in respect of nursing, medical and therapeutic treatment given in consequence of the injuries sustained by her and their sequelae or in consequence of her quadruplegia or its sequelae inclusive of treatment for pain, bodily discomfort and rehabilitation.

(5)

H For the purposes of the aforegoing the following arises from her injuries or their sequelae or her quadruplegia and its sequelae: (There is then listed in sub-paras (i) to (iii) full details of the nursing, treatment, etc to be given.)

(6)

If the payment of such expenses by periodic payment, after such expenses had been incurred, will attract taxation in the hands of the (patient) and the payment for such expenses is to be made on a scale which will include the tax arising as a result of the method of payment, this must be added to the payments and such shall be adjusted annually.

(7)

The payment by instalments will also result in remuneration chargeable by (the curator) and such costs must be borne by the defendant on the scale permitted in law and which is at present equivalent to 5 per cent, so that the

Trollip JA

costs aforesaid are to be paid at 105 percent of actual costs or at such rate as may from time to time be enforced.

(8)

A The aforegoing nursing services are subject to their being required medically at the time when the costs are incurred."

That direction and undertaking were incorporated into order (5) of the Court a quo referred to earlier in this judgment. At the trial defendant's counsel informed the Court a quo that the Motor Vehicle Insurance Fund had agreed to guarantee all the above-mentioned future obligations undertaken B by the defendant and consented to an order being made to that effect. This guarantee was reflected, I think inadequately, in order (6) of the above-mentioned awards and orders of the Court a quo. It will be rectified in the orders made at the end of this judgment.

Before us counsel for the parties joined issue on the correctness or C otherwise of the trial Judge's interpretation of s 21 (1C) (a), and the form and contents of the above undertaking. I therefore turn immediately to discuss this issue. The purpose of the provision was to innovate a departure from the common law. This was mainly for the benefit of authorized insurers. Under the common law a person injured by an act of D negligence is accorded only a single cause or right of action to recover damages for all his loss or damage, whether accrued or still prospective(Casely NO v Minister of Defence 1973 (1) SA 630 (A) at 642C - E; Oslo Land Co Ltd v Union Government 1938 AD 584). Conformably to that principle s 21 (1) of the Act also embodies in a single cause of right of action all such injured person's rights to recover compensation for his E ...