Schnellen v Rondalia Assurance Corporation of SA Ltd

• Jurisdiction: South Africa
• Judge: Trollip J
• Judgment Date: 29 August 1968
• Citation: 1969 (1) SA 517 (W)
• Hearing Date: 29 August 1968
• Court: Witwatersrand Local Division

Trollip, J.:

On 7th August, 1965, whilst the plaintiff was driving his motor car with is wife and four minor children as passengers, he collided with a vehicle insured with the defendant under the Motor

Trollip J

Vehicle Insurance Act, 29 of 1942, in consequence of which the plaintiff and all his passengers were injured. Recently I gave judgment in the claim of the wife against the defendant (Schnellen v Rondalia Assurance A Corporation of SA Ltd. [*] (W.L.D., 20th August, 1968)). The present case concerns the claims by the plaintiff in his personal capacity and in his capacity as father and guardian of his minor children, for compensation for the special and general damages they suffered. In the case of the children the special damages comprise only medical and B hospital expenses. As happened in the previous case, the defendant has also conceded the merits in the present case, and has admitted that it is liable for any loss and damage sustained and legally claimable by each claimant. It, however disputed, firstly, that any of the special damages can be claimed on behalf of the children, maintaining that they C were claimable only by the plaintiff in his personal capacity and that he did not so claim them. In consequence, on 31st July, 1968, the plaintiff gave notice that at the trial an application would be made, as indeed it was, to amend the pleadings, if necessary, by excising the claims for the special damages from the children's action and transferring them to that of the plaintiff in his personal capacity. The D defendant opposed the amendment on the grounds that such claims by the plaintiff in his personal capacity had become prescribed in terms of sec. 11 (2) (a) of the Act, more than two years having elapsed between the date of the collision and the giving of the notice to amend, and, secondly, that no demand on the prescribed form (MVA 13) for such compensation had been made by plaintiff in that capacity prior to the E issue of the summons in terms of sec. 11 bis. It was agreed between counsel that the fate of the amendment should follow the decision on those grounds of opposition. It is convenient to deal with this issue immediately.

The children are now of the following approximate ages: Gregory - 5 years; Beverley - 9 years; Cindy - 10 years; Deborah - 12 F years. It was accepted that the plaintiff as their father was and is liable to maintain them. Ex hypothesi the medical and hospital expenses claimed in respect of their personal injuries would be reasonable and necessary expenses incurred in their proper maintenance for which the plaintiff was and is liable. Indeed, in testifying, he admitted such G liability and stated that in due course he would pay it. It is true that, if the children had any means of their own, they might be liable to recoup him, but that is irrelevant here for there was no evidence that they have any means. Consequently, only the plaintiff is liable for such expenses, and it follows that under the lex Aquilia only he, and H not the children, could claim them as damages. In Abbott v Bergman, 1922 AD 53, DE VILLIERS, J.A., in delivering the judgment of the Court, said at p. 56:

'In Warneke's case, 1911 AD 657 at p. 671, I took occasion to point out that . . . the Romans allowed a father to recover the medical expenses and the loss of services of a son who was wounded, and this extension of the lex Aquilia was recognised by our law in respect of sons as long as they are minors (Voet, 9.2.11 and Grotius, Intro. 3.34.3).'

See also Bellstedt v S.A.R., 1936 CPD 399 at p. 410. Now Voet,

Trollip J

9.2.11, on which those views rest, confines the right of action to the father. He says (Gane's translation, vol. 2, p. 564):

'If a son of a household has been wounded it has been held that a beneficial action is granted not to the son but to his father for expenses incurred on medical men and for the value of his services. This A has also been adopted today in regard to sons less than twenty-five years old,' (i.e. minors).

That applies, of course, to medical expenses for which the father is liable, and extends equally today to minor daughters.

It follows that under sec. 11 (1) of the Act it is only the father who can claim and recover 'compensation' for the 'loss or damage' caused by B his incurring liability for such expenses. See the other case of Schnellen v Rondalia Assurance Corporation of SA Ltd., supra, in which I arrived at a similar conclusion in regard to medical and hospital expenses incurred by a husband in respect of personal injuries to his wive, to whom he is married in community of property: only he can claim and recover compensation under the Act for them.

C Hence the claims in their present form by the minor children for such expenses must fail.

Has the claim for them by the plaintiff in his personal capacity become prescribed? It is true that, when the notice to amend to incorporate that claim was given, more than the two years prescribed by sec. 11 (2) D of the Act had elapsed since the accident giving rise to the claim. However, the summons was served on 21st September, 1967. The inquiry, therefore, becomes whether that effectively interrupted the running of that prescription by virtue of sec. 6 (1) (b) of the Prescription Act, 18 of 1943, which has been held to be applicable to the Motor Vehicle Insurance Act (see President Insurance Co. Ltd v Yu Kwam, 1963 (3) SA 766 (AD)). Sec. 6 (1) (b) says:

E 'Extinctive prescription shall be interrupted by . . . service of the debtor of any process whereby action is instituted . . . and shall begin to run de novo from the date when the interruption occurred.'

Sec. 3 (1) says:

'Extinctive prescription is the rendering unenforceable of a right by the lapse of time.'

F Hence, as RAMSBOTTOM, J., said in Park Finance Corporation (Pty.) Ltd v Van Niekerk, 1956 (1) SA 669 (T) at p. 673:

'The process referred to in sec. 6 (1) (b) must, I think, be process by which action is instituted to enforce the right which would otherwise be rendered unenforceable by lapse of time. In other words, the action must be an action to enforce a particular right . . .'

G See also O.K. Motors v Van Niekerk, 1961 (3) SA 149 (T) at p. 151, and Thompson & Stapelberg (Pty.) Ltd v President Staal Korporasie (Edms.) Beperk, 1963 (3) SA 293 (O). Now the process in this case, the summons served on 21st September, 1967, embodied two sets of alleged rights of action: (a) the claims made on behalf of and thus by the H children for their compensation for loss or damage, including the medical and hospital expenses incurred for their injuries; and (b) the claims made by the plaintiff in his personal capacity for his compensation for loss or...