Mulder v South British Insurance Co Ltd
Jurisdiction | South Africa |
Judge | De Wet J |
Judgment Date | 27 March 1957 |
Citation | 1957 (2) SA 444 (W) |
Court | Witwatersrand Local Division |
De Wet, J.:
The facts set out in plaintiff's declaration as amplified by an amendment and by further particulars are the following: Plaintiff, who is a widow, heard the screaming of children, looked out of the window of her residence and saw a passenger bus in the act of colliding
De Wet J
with her small son aged 4 years. The bus came to a standstill with the back wheel on the head of the small boy whose head was crushed and who was killed. The death of the child is alleged to have been caused by the negligence of the bus driver, and the claim is made against the defendant under the provisions of the Motor Vehicle Insurance Act, 29 of A 1942. Plaintiff alleges that she suffered damages in as much as she sustained a nervous shock resulting in psychological and physical incapacity. The claims in the declaration are the following:
(a) |
Funeral expenses in connection with the burial of the child |
£33 |
13 |
6 |
(b) |
Medical treatment of the plaintiff |
£31 |
9 |
6 |
(c) |
Chemist expenses incurred by plaintiff |
£16 |
7 |
2 |
(d) |
Loss of income by the plaintiff |
£92 |
3 |
0 |
(e) |
Pain, suffering and loss of amenities by the plaintiff |
£200 |
0 |
0 |
Exception is taken to claims (b), (c), (d) and (e) in the declaration on the ground that these claims are bad in law.
C This exception raises the interesting question whether and under what circumstances a witness of an accident can recover damages by reason of nervous shock occasioned by the view of the accident, when the safety of the witness himself was not endangered by the negligence of the person responsible for the accident.
D The Court has been referred to only one reported case in South Africa dealing with this question, namely Sueltz v Bolttler, 1914 E.D.L. 176. Here plaintiff was injured in an accident and claimed damages arising out of his own injuries and also by reason of his wife's illness and miscarriage resulting from shock caused by her witnessing the accident. In giving the judgment of the full Court, GRAHAM, J.P., first questions E whether damages can be recovered by reason of shock when there has been no actual impact with the claimant, and he then comments on the decision in Dulieu v White & Sons, 1901 (2) K.B. 669, in the following words:
'After holding that physical impact should not actually be necessary before damages could be claimed, he (KENNEDY, L.J.) goes on to say that it is not to be taken, in his view, that every nervous shock occasioned F by negligence and producing physical injury to the sufferer gives a cause of action. He said that there was, in his opinion, at least one limitation. The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of personal injury to oneself, and he goes on to give the following example: 'A has, I conceive, no legal duty not to shock B's nerves by the exhibition of negligence towards C, or towards the property of B or C. The limitation was applied by WRIGHT and BRUCE. JJ., in the unreported case of Smith v Johnson & G Co. . . . In Smith v Johnson & Co. a man was killed by the defendant's negligence in the sight of the plaintiff, and the plaintiff became ill, not from the shock produced by fear of harm to himself, but from the shock of seeing another person killed. The Court held that this harm was too remote a consequence of the negligence. I should myself, as I have already indicated, have been inclined to go a step further, and to hold upon the facts in Smith v Johnson & Co. that, as the defendant neither intended to affect the plaintiff injuriously, nor did anything which H could reasonably or naturally be expected to affect him injuriously, there was no evidence of any breach of legal duty towards the plaintiff or in regard to him of that absence of care according to the circumstances, which WILLES, J., in Vaughan v Taff Vale Railway Company gave as a definition of negligence.' It appears to me'
(continued GRAHAM, J.P.)
'that the reasoning of the learned Judge in this case is very apposite to the case under discussion.'
De Wet J
The learned Judge came to the conclusion that the plaintiff was not entitled to claim damages by reason of the shock suffered by his wife.
Mr. Philips, for the excipient, concedes that a plaintiff is entitled to recover damages suffered through shock occasioned by a reasonable fear A of personal injury. The view of KENNEDY, L.J., has been approved in at least two cases in this Division, namely Waring & Gillow, Ltd v Sherborne, 1904 T.S. 340 at pp. 348 - 9, and Creydt-Ridgeway v Hoppert, 1930 T.P.D. 664. It is unnecessary for me to discuss whether damages are recoverable for nervous shock unaccompanied by illness.
The question at issue is complicated by later decisions in England. The B first of these is Hambrook v Stokes Brothers, 1925 (1) K.B. 141. The head-note reads as follows:
'The defendants' servant left a motor lorry at the top of a steep and narrow street unattended, with the engine running, and without having taken proper precautions to secure it. The lorry started off by itself and ran violently down the incline. The plaintiff's wife, who had been walking up the street with her children, had just parted with them a little below a point where the street makes a bend, when she saw the C lorry rushing round the bend towards her. She became very frightened for the safety of her children, who by that time were out of sight round the bend, and who she knew must have met the lorry in its course. She was almost immediately afterwards informed by bystanders that a child answering...
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Bester v Commercial Union Versekeringsmaatskappy van SA Bpk
...Waring & Gillow Ltd., v Sherborne, supra op bl. 349; Sueltz v Bolttler, 1914 E.D.L. 176; Mulder v South British Insurance Co. Ltd., 1957 (2) SA 444. (b) Daar word betoog dat die houding van ons Howe 'n gesonde beperking op aanspreeklikheid op grond van nalatigheid daarstel. Sien die aanhali......
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...oorweeg/considered Minister of Police v Skosana 1977 (1) SA 31 (A): verwys na/referred to B Mulder v South British Insurance Co Ltd 1957 (2) SA 444 (W): N v T 1994 (1) SA 862 (K): oorweeg/considered Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A): oorweeg/considered ......
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Hing and Others v Road Accident Fund
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