Thonar v Union and South West Africa Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Gordon J
• Judgment Date: 12 March 1980
• Citation: 1981 (3) SA 545 (W)
• Hearing Date: 13 March 1980
• Court: Witwatersrand Local Division

Gordon, J.:

The applicant seeks an order, in terms of Rule 30 of the Rules of Court, setting aside certain paragraphs in the further particulars supplied by the respondent as an irregular or improper proceeding, alternatively an order compelling the respondent to furnish further and D better particulars to certain paragraphs of the further particulars, in answer to a request for such further particulars.

The applicant is the defendant in a third party action instituted by the plaintiff, the respondent in these proceedings, in respect of a collision E that took place on 19 August 1978 at the intersection of Central Avenue and Pretoria Road, Kempton Park, between the insured vehicle and a stationary vehicle driven by the plaintiff. It will be convenient to refer to the parties as plaintiff and defendant respectively.

Paras 7 and 8 of the summons read as follows:

"7.

As a result of the collision aforesaid, the plaintiff sustained certain bodily injuries consisting of:

(a)

F A whiplash injury to his spine.

(b)

A blow over the front of the chest.

(c)

A blow over the front of the left knee.

8.

In consequence of the said injuries the plaintiff has suffered damages as follows:"

G Items amounting in all to about R24 000 are set out. These are:

(a)

Medical expenses - R156,31;

(b)

estimated future medical expenses - R3 500;

(c)

loss of earnings - R700;

(d)

estimated future loss of earnings - R10 000

(e)

and general damages for pain and suffering etc - R10 000.

H This application concerns the nature of the injuries as pleaded, and the claims for damages. The defendant filed a request for further particulars to paras 7 and 8 above, to which the plaintiff replied. The defendant now submits that that reply is not in accordance with the Rules of Court and should be struck out; alternatively, that the replies are inadequate to enable it to plead thereto or to make a tender.

Para 2 of the request reads:

"(a)

What is the precise clinical nature of the injuries caused to the chest and left knee respectively?

Gordon J

(b)

To what extent, if at all, did the plaintiff suffer disability from each of these two injuries?

(c)

When precisely did the plaintiff recover from each of these injuries?

(d)

A In regard to the whiplash injury, the plaintiff is requested to state:

(i)

To what extent he has recovered therefrom;

(ii)

what sequelae of this injury are still present;

(iii)

B if permanent disability is anticipated, the ful nature and extent thereof."

In the reply thereto the defendant is referred to medico-legal reports of Dr Reitz, Dr Prestwich, Dr Colin Fromna, Dr Otto and Dr Spiro, annexed. Para 3 of the request reads:

"(a)

How is the sum of R156,31 arrived at?

(b) (i)

C Which injury will require further treatment in the future?

(ii)

What is the precise nature of such future treatment?

(iii)

How is the sum of R3 500 arrived at?

(I omit (c).)

(d) (i)

D Which injury will give rise to the alleged loss of earnings in the future?

(ii)

How precisely is the amount of R10 000 arrived at?"

The reply thereto reads:

"(a)

This amount represents the costs of radiological examinations by Dr Morris & Partners on 20 and 22 August 1978.

(b)

The defendant is referred to annexures 'A', 'B', 'C', 'D', 'E' E and 'F' hereto. The sum of R3 500 is an estimate of the cost of future medical treatment."

As regards (d) the annexures are the medical reports referred to and the defendant was referred to the said annexures. The answer to "how F precisely is the sum of R10 000 is arrived at", is:

"The sum of R10 000 is an estimate."

For particulars of his estimates of costs for future medical treatment, the plaintiff relied on the annexed medical reports and the defendant was referred thereto. Dealing with sub-para (c), the request and the replies thereto read:

(i)

"Where was the plaintiff employed at the time of the collision?",

reply:

"At the St Moritz Roadhouse, Senderwood."

(ii)

In what capacity was he so employed?",

reply:

"As restaurant manager."

(iii)

H "What were his weekly or monthly earnings at the time?",

reply:

"R700 per month."

(iv)

"When did the plaintiff resume employment?",

reply:

"One month later."

(v)

How is the sum of R700 arrived at?",

reply:

"The sum of R700 is in respect of one month's salary".

Gordon J

The defendant has on these proceedings set out its complaints in an A affidavit by its attorneys, annexed to the notice of motion. I refer to the following paragraphs:

"5 (a)

As appears from the applicant's request for further particulars particularity was sought, inter alia, as to the nature of each injury, disability occasioned thereby, the duration thereof, and the nature and extent of any permanent disability anticipated.

Particularity was also sought as to which injury would require future treatment, and the nature thereof, and also which injury B would give rise to the claim for future loss of earnings, and how such sum was arrived at.

(b)

In answer to para 2 of such request, the respondent has resorted to the expedience of annexing six medical and radiological reports (numbering some 20 pages in all), to which applicant is 'referred'; in answer to paras 3 (b) and (d) thereof, the same reports are again referred to, but, in C addition, the respondent states that the sums claimed (for future medical treatment and future loss of earnings respectively) are 'estimates' thereof.

7.

I respectfully submit that the applicant is prejudiced in its task of assessing material portions of the claim for damages for the purposes of any possible tender by the respondent's refusal to set out the material allegations relied upon, clearly and concisely and in D paragraph from, as required by the Rules of Court; further, one of the annexed medical reports is dated more than a year prior to the request for further particulars."

To sum up, the complaints are:

(a)

The reply to the request is not in compliance with the Rules of Court inasmuch as it does not set out material allegations clearly and concisely, as required by the Rules of Court.

(b)...