Union Government (Minister of Railways and Harbours) v Warneke

• Jurisdiction: South Africa
• Judge: Coram Lord De Villiers CJ, Innes J, Laurence J (Acting Ordinary Judge of Appeal), CG Maasdorp JP and J De Villiers JP
• Judgment Date: 13 November 1911
• Hearing Date: 10 November 1911
• Court: Appellate Division

Lord De Villiers, C.J.:

This is an appeal against the judgment of the Eastern Districts Local Division dismissing an exception to the plaintiff's declaration by which the plaintiff claimed the sum of £3,000 from the Government as damages alleged to have been caused by the death of his wife through the negligence of the servants of the Government. She was killed in a railway accident, and the plaintiff alleged that by her death, he "has been deprived of the comfort and society of his wife and of her assistance in the care, clothing and upbringing of his seven children." The exception taken to the declaration was that it discloses no cause of action in law, and the questions raised in this appeal are whether (1st) the loss of the comfort and society of the plaintiff's wife, and (2nd) the loss of her assistance in the care, clothing and upbringing of his children by her are matters in respect of which he can legally claim pecuniary damages.

Lord De Villiers, C.J.

As to the loss of the "comfort and society" of the plaintiff's wife, I know of no rule or principle of our law under which such a loss constitutes a ground for awarding damages in an action based upon the defendant's negligence. Reference was made in the Court below to the Cape case of Biccard v Biccard and Fryer (9 C.S.C., p. 473) where it was said that the complete loss of the wife's society constitutes the main element in the estimation of damages, but that was a case in which damages were claimed from an adulterer for the injury done to, and the dishonour brought upon, the husband by the adultery with his wife. As was said by Professor Melius de Villiers in his notes to Voet 47, 10, 18, in the action for injury retribution is sought for by way of a pecuniary penalty for the benefit of the sufferer, in order to satisfy his injured feelings it is wholly different in an action founded upon negligence. Whatever may have been the practice under the Roman law, it is clear that under the Dutch law the practice was to confine the damages claimable by the Aquilian law action to cases in which a calculable pecuniary loss has been actually sustained (Voet 9.2.12). Such loss must be explicitly and specifically proved, and, as remarked by Professor Melius de Villiers in the passage already cited, "reparation for bodily discomfort and distress and the like must be sought in an action of injury." The loss of the comfort and society of a wife does not appear to me to be a pecuniary Ion at all. It is a deprivation which in many cases transcends, in the grief, distress and discomfort which it occasions, any other loss which a man can sustain, but it is not a loss which, for purposes of compensation, as distinct from retribution, is capable of being calculated in money.

The loss by the husband of his wife's "assistance in the care, clothing and upbringing of his children" by her seems to me to stand on a different footing. It is quite conceivable that there may be cases in which the loss of such assistance entails on the husband an expenditure which, if the wife had lived, it would not have been necessary for him to incur. Such a loss might fairly be held to fall under the expression damnum rei familiaris, which is used by Voet (47.10.18). In another passage Voet

Lord De Villiers, C.J.

(9.2.11), after stating that the utilis actio was given to a father whose minor son had been killed injuria, added that by modern practice the right of suing had been further extended, and that where a free man has been killed through negligence an action is given to the wife and children for what would appear to the conscientiousness of the judge to be just, having regard to the maintenance which the deceased had been able and accustomed by his labour to furnish to his wife and children or other relations. Although the husband is not here specially mentioned as being entitled to sue in the case of his wife's death through negligence, it was not I think, intended by the learned author to deny such right in the case of a needy husband, whose wife had been accustomed during her lifetime to support him. It would be no undue extension of this right to hold that, where a wife during her lifetime actively assisted her husband in the support and education of their children, he would be entitled, upon her being killed through negligence, to claim such pecuniary damages as he can be proved to have sustained by reason of the permanent loss of such assistance. It is one of the duties of a wife to render such assistance. According to Voet (25.3.6) the duty of supporting (alendi) children was in his time common to both parents unless one of them was destitute, and by supporting he meant (25.3.4) not only feeding and clothing, but also looking after their health and education according to their position in life. If in the present case the plaintiff's wife was accustomed, during her lifetime, to see to the "clothing and upbringing" of his children, she did no more than her duty towards him and them, and, if by reason of her premature death his expenses in the care and education of the children are increased, there would be a clear case of damnum rei familiaris. I am of opinion, therefore, that the declaration does disclose a cause of action in law. The plaintiff claimed the sum of £3,000 as damages, but, as that sum is probably largely made up of such damages as he hoped to obtain for the loss of his wife's society, it will be well worthy of his consideration whether he should not accept the sum of £350, which has been tendered by the Government. The appeal must be dismissed with costs.

Innes, J.

Judgment

Innes, J.:

This appeal raises the question whether an action will lie at the instance of a husband against one who has negligently caused the death of his wife; and if so, whether the scope of the action is such that the allegations in the declaration are sufficient, if established, to found it.

Clearly there is only one ground on which the plaintiff's case can be put, and that is that he is entitled to avail himself of the exceptional remedy given by the law of Holland to the family of a man whose death has been caused by negligence, as against the wrongdoer. The relief thus granted was of a very special nature. It came to the relatives, not through the estate, but in their own right: and yet it was founded on a breach of duty owed to the deceased. The remedy was unknown to the civil law; and there is much to be said for the view that it has its root in early Germanic custom. But whatever its origin, its existence was well recognised by Dutch writers, who treated it as a species of utilis actio under the Lex Aquilia. In that shape we have received it, and we must consider it from that standpoint.

The books agree in confining the remedy to certain relatives dependent on the deceased for support. A wife whose husband has been killed is universally recognised as being entitled to claim it, yet strange to say there is no express authority for the existence of a corresponding right in a husband. Among the many commentators who discuss the question, some in considerable detail, there is not one who...