Smit v Abrahams

• Jurisdiction: South Africa
• Citation: 1992 (3) SA 158 (C)

Smit v Abrahams
1992 (3) SA 158 (C)

1992 (3) SA p158

Citation	1992 (3) SA 158 (C)
Court	Cape Provincial Division
Judge	Nel J, Foxcroft J and Farlam AJ
Heard	September 6, 1991
Judgment	December 13, 1991

Flynote : Sleutelwoorde

Damages — Remoteness of — Impecuniosity of plaintiff — Not our law that reasonably foreseeable loss caused by combined operation of impecuniosity of plaintiff and culpable conduct of defendant cannot be recovered in delict — Plaintiff a hawker whose vehicle damaged, partially through negligence of defendant — Plaintiff impecunious and unable to buy another C vehicle — Vehicle necessary for his trade — Claim for hire of another vehicle upheld.

Headnote : Kopnota

The respondent had instituted action against the appellant in a magistrate's court for the recovery of damages he had suffered in a motor vehicle collision. The respondent's vehicle damaged in the collision had D been used by him in the carrying out of his business as a hawker. The vehicle was essential to the plying of his trade and as it had been written off in the collision he sued for its market value (claim 1) and in addition sued for the amount he had to pay to hire a replacement vehicle (claim 2). As he was impecunious the respondent had not been able to afford to buy another vehicle. At the trial the respondent's claim 1 was admitted and it was further agreed that there should be a 70-30 apportionment in the respondent's favour. The magistrate gave judgment in favour of the respondent in respect of claim 2, holding that appellant was E liable for 70% of the respondent's costs of hiring a replacement vehicle. On appeal it was contended for the appellant that respondent's damages on the second claim were not recoverable as they had been brought about by his own impecuniosity.

Held, that it was clear that, but for appellant's negligence, the loss sustained by respondent which formed the subject-matter of claim 2 would not have occurred, but it was also clear that but for respondent's straightened circumstances he would not have suffered that loss which led F to the question whether the fact that respondent would not have suffered the loss but for his impecuniosity was of sufficient legal consequence to justify its exclusion from those consequences of appellant's conduct for which he was obliged to compensate the respondent.

Held, further, that the Appellate Division had left the question open as to the proper test to be applied at this stage of the enquiry.

G Held, further, that the 'direct consequence test' was not a rival 'universal solvent' which ousted the test of reasonable foresight.

Held, further, that what was meant by 'reasonable foresight' was that there had to be a 'real risk, one which would occur to the mind of a reasonable man in the defendant's position and which he would not brush aside as far-fetched', ie there had to be a reasonable possibility.

Held, further, that in the circumstances of the present case there was a H reasonable possibility that the financial circumstances of the respondent would be such that he could not afford to buy a replacement vehicle: it was notorious that there were extremes of wealth and poverty in South Africa and many people were impecunious.

Held, further, that the talem qualem rule was not restricted to cases of mitigation and applied also to cases involving measure of damages.

Held, further, that, although South African Courts were not bound by the I decision in Owners of Dredger Liesbosch v Owners of Steamship Edison 1933 AC 449 (HL), it was appropriate to have regard to the degree to which it was being attenuated in its country of origin: properly explained it should not serve to unsuit meritorious claimants but whether it was discarded or explained away it was not our law that reasonably foreseeable loss caused by the combined operation of the impecuniosity of the plaintiff and the culpable conduct of the defendant could not be recovered J in delict. Appeal dismissed.

1992 (3) SA p159

Case Information A

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

J L U van der Hoven for the appellant.

Anton Fick for the respondent.

Cur adv vult.

Postea (December 13). B

Judgment

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

1992 (3) SA p160

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.

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