Smit v Abrahams

• Jurisdiction: South Africa
• Judge: Nel J, Foxcroft J and Farlam AJ
• Judgment Date: 13 December 1991
• Citation: 1992 (3) SA 158 (C)
• Hearing Date: 06 September 1991
• Court: Cape Provincial Division

Farlam AJ:

This is an appeal from a judgment of the magistrate of Piketberg.

The case arises from a motor collision which occurred on the N7 near C Philadelphia on 22 December 1988, when a motor vehicle driven by appellant collided with a utility vehicle belonging to respondent which was in a stationary position on the side of the road. Respondent sued appellant for the market value of his vehicle (claim 1) and the cost of hiring another utility vehicle from 24 December 1988 to 24 March 1989, at R60 per day for six days per week, so as to enable him to carry on his occupation as a D hawker (claim 2).

At the trial respondent's damages in respect of claim 1 were agreed in an amount of R3 630 and it was agreed further that there should be an apportionment of 70-30 in respondent's favour so that appellant was responsible for 70% of the damages respondent had suffered.

E Respondent was the only witness at the trial. He testified that he was a hawker, with no other occupation, and that it was not possible for him to carry on his occupation as a hawker without a utility vehicle. After the collision his vehicle was a total wreck. Two days after the collision he obtained from one Patrick Esau the use of another utility vehicle for F which he had to pay R60 per day for six days a week. He made enquiries about utility vehicles but was unable to get a utility vehicle for less than R60 per day. He was unable to buy another vehicle because he did not have enough money, even to pay the deposit. He used Esau's vehicle until 24 March 1989, when Esau asked for it back because he needed it himself. After that, respondent said he disposed of the potatoes he had on hand by G using a hand barrow, after which he was unemployed until the date of the trial. He said that he was unemployed because he had no vehicle. His claim for the hiring costs of a substitute vehicle was only for the period from 24 December 1988 to 24 March 1989, when he stopped using Esau's vehicle.

The magistrate found that respondent acted reasonably in continuing as a H hawker and in hiring a substitute vehicle for the period covered by the claim. He also found that the amount of the claim was reasonable.

He accordingly ordered appellant to pay respondent 70% of R3 630, being his agreed damages on claim 1 and 70% of R4 680, being R60 per day for six days a week for three months on claim 2, but he also ordered him to pay the costs, including the costs occasioned by the employment of counsel in I respect of both claims.

Appellant has appealed to this Court only in respect of that part of the magistrate's order which related to claim 2. Although the appeal was noted on a number of grounds, at the hearing of the appeal Mr Van der Hoven, who appeared on behalf of appellant, only argued one ground of appeal and J specifically abandoned all the others. The ground of appeal which was

Farlam AJ

A argued was that respondent's damages on claim 2 were not recoverable because they were brought about by his own impecuniosity. In support of this submission Mr Van der Hoven relied on the decision of Nicholas J (as he then was) in Muller NO and Others v Government of the Republic of South Africa 1980 (3) SA 970 (T), in which reference was made with approval to the well-known decision of the House of Lords in Owners of Dredger B Liesbosch v Owners of Steamship Edison 1933 AC 449 (HL) ([1933] All ER Rep 144), a decision which is sometimes cited as The Liesbosch and sometimes as The Edison and which has been frequently quoted in South Africa. (In what follows I shall follow the editors of the All England Law Reports Reprint and Professor J G Fleming and refer to it as 'The Edison'.) Mr Van C der Hoven sought to distinguish the case of Modimogale v Zweni and Another 1990 (4) SA 122 (B) where, on facts similar in many respects to those of the present case, Lawrence AJ held that the decision in The Edison did not apply and that a plaintiff who was financially able to replace her damaged motor car but who thought it commercially imprudent to do so until she D knew she was going to be compensated was awarded damages in respect of the expense of hiring a taxi from the date of the collision until the date of judgment.

The Edison is traditionally cited as authority for the proposition that a plaintiff who suffers a greater amount of loss because of his weak financial position can recover only that loss which would have been E suffered had his financial circumstances been sound.

The decision of the House of Lords in The Edison has been much discussed, both in judgments and in legal writings. The discussion has concerned the following questions:

(a)

What did the decision decide?

(b)

F Is it correct?

(c)

Can it be supported on some ground other than that relied on by the House of Lords?

This case must of course be decided in accordance with the principles of our law and The Edison is not binding on us. As a decision of the House of G Lords in which the main speech was delivered by Lord Wright and agreed with by Lords Buckmaster, Warrington of Clyffe, Tomlin and Russell of Killowen, all of whom were Judges of eminence, it has persuasive value, which is enhanced by the fact that it has, as I have said, been frequently cited in this country. As the principle on which Mr Van der Hoven relies H for his argument in this case may be said to derive from The Edison, it will be necessary for me to consider it in some detail. Before doing so, however, I propose making some general comments and endeavouring to relate them to the facts of this case.

Respondent seeks to recover patrimonial damages in delict from appellant because he was negligent. We are accordingly not concerned with a case of absolute liability or one of liability based on intentional misconduct. I Respondent's claim is based on the extended principles of Aquilian liability as they have been developed in our law over the centuries. What respondent must show is that he suffered damage (damnum), wrongfully and culpably (injuria) caused (datum) by appellant.

What respondent complains of is clearly damage, namely the expenditure J of R4 680 which he would not have had to expend if he had

Farlam AJ

A had his own utility vehicle and had not had to hire Esau's vehicle. This damage is of a patrimonial kind and it arose from injury to property. Questions of the kind which arise where 'pure economic loss' is suffered, not arising from injury to personal property, accordingly need not be considered.

B Appellant does not contend that he was not culpable; indeed he concedes that he was responsible for 70% of the damage suffered by respondent on claim 1 and I think it clear that his conduct can also be regarded as wrongful. Indeed Mr Van der Hoven did not contend to the contrary. For reasons which I shall endeavour to give later I do not think that it can be contended on appellant's behalf that he is not liable for 70% of claim C 2 because he was not negligent as regards the damage covered thereby (applying the doctrine of 'relative negligence').

Was respondent's damage 'caused' by appellant? The present Chief Justice had this to say about causation in the law of delict in Minister of Police v Skosana 1977 (1) SA 31 (A) at 34E-35D:

D 'Causation in the law of delict gives rise to two rather distinct problems. The first is a factual one and relates to the question as to whether the negligent act or omission in question caused or materially contributed to (see Silva's Fishing Corporation (Pty) Ltd v Maweza 1957 (2) SA 256 (A) at 264; Kakamas Bestuursraad v Louw 1960 (2) SA 202 (A) at 222) the harm giving rise to the claim. If it did not, then no legal liability can arise and cadit quaestio. If it did, then the second problem E becomes relevant, viz whether the negligent act or omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether, as it is said, the harm is too remote. This is basically a juridical problem in which considerations of legal policy may play a part. The distinction between these two enquiries is well explained by Prof Fleming The Law of Torts 4th ed at 169, as follows:

"The first involves what may broadly be called the 'factual' question F whether the relation between the defendant's breach of duty and the plaintiff's injury is one of cause and effect in accordance with 'scientific' or 'objective' notions of physical sequence. If such a causal relation does not exist, that puts an end to the plaintiff's case, because no policy can be strong enough to warrant the imposition of liability for loss to which the defendant's conduct has not in fact contributed.

G The second problem involves the question whether, or to what extent, the defendant should have to answer for the consequences which his conduct has actually helped to produce. There must be a reasonable connection between the harm threatened and the harm done. As a matter of practical politics, some limitation must be placed upon legal responsibility, because the consequences of an act theoretically stretch H into infinity. The task is to select those factors which are of sufficient significance to justify the imposition of liability and to draw a boundary along the line of consequences beyond which the injured party must either shoulder the loss himself or seek reparation from another source."

(See also Hart and Honoré Causation in the Law at 104; American Restatement (Torts) 2nd ed ss 430-3.)

The present case turns on the first of these problems, viz causation in I fact, for it could hardly be contended that, if the negligence of Davel and Mahela in fact caused or contributed to the death of the deceased, this was too remote a consequence to give rise to legal liability. Of a 'cause' in this sense Prosser Law of Torts 4th ed at 237, states:

"A cause is a necessary antecedent: in a very real and practical sense...