Strougar v Charlier

• Jurisdiction: South Africa
• Judge: Coetzee J
• Judgment Date: 14 March 1973
• Citation: 1974 (1) SA 225 (W)
• Court: Witwatersrand Local Division

Coetzee, J.:

The plaintiff is a plant manager in the employ of a civil engineering company in Johannesburg. He sues the defendant who was, in 1970, a bank clerk, for the sum of R25 000, said to be damages which the plaintiff sustained as a C result of an assault upon him by the defendant which took place on 1st November, 1970, at 72, Hendrik Verwoerd Drive, Johannesburg.

The broad circumstances of this matter are the following. The plaintiff and defendant are both members of the French-speaking community of Johannesburg, and together with some others of their friends were apparently in the habit of getting together D socially, on Sunday afternoons. On the day in question the plaintiff was a guest at the home of the defendant's parents-in-law, the Bussons, when the assault took place.

I am not going to deal in any detail with what happened on this occasion because of the turn that this matter took during E argument. It is sufficient to say that during a card game some unpleasantness developed and it finished up with the plaintiff being struck by the defendant. As a result of the blow he fell off his chair. He was struck on his eye and the lens of his glasses which was broken in the process, cut this eye, which he eventually lost.

In his plea the defendant raised, inter alia, a defence which F relates to the application of the Apportionment of Damages Act, 34 of 1956. It was put in this form: In the event of the Court holding that the plaintiff suffered damage, then the damage was caused partly by his own fault and partly by the fault of the plaintiff in that the plaintiff deliberately G insulted the defendant's wife in the presence of the defendant, and he was well aware of the fact that by insulting the defendant's wife he would provoke the defendant into an act of violence and that, in the premises, the damages recoverable by the plaintiff should be reduced to such extent as to the Court may seem just and equitable having regard to the degree of the H plaintiff's fault in relation to the said damage.

The actual insult was said to have been the use of a French expression of a vulgar nature. It was allegedly used by the plaintiff of and concerning the defendant's wife. During argument, however, Mr. Weinstock abandoned this defence, contained in para. 5 of the plea. He said that the Apportionment of Damages Act was, in fact, not applicable in the instant matter because this was a case of intentional wrongdoing. Presumably his concession is based on his belief that the Apportionment of Damages Act applies only to contributory negligence, to

Coetzee J

"fault" of that nature and not to "fault" which is dolus. I do not have to decide this question. Seeing that the plaintiff's counsel, during argument, made it clear that he was not claiming anything in respect of contumelia, the whole question of provocation was said by Mr. Weinstock to be irrelevant.

It became common cause this morning that the only matter which has to be decided by me is the question of the quantum of damages to which the plaintiff is entitled. This is the reason why I said earlier that it was not necessary to analyse the evidence of what occurred on 1st November, 1970 at all, and why B I ignore it.

The damages claimed by the plaintiff are set out in his summons, as follows:

Medical, hospital and cosmetic expenses:	R2 500
Estimated future medical and hospital expenses:	4 000
A third item worded as...