Union Government (Minister of Railways) v Lee

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Innes CJ, De Villiers JA, Kotzé JA, Wessels JA and Gardiner AJA
• Judgment Date: 14 January 1927
• Citation: 1927 AD 202

Union Government (Minister of Railways) Appellant v Lee Respondent
1927 AD 202

1927 AD p202

Citation	1927 AD 202
Court	Appellate Division, Bloemfontein - Cape Town
Judge	Innes CJ, De Villiers JA, Kotzé JA, Wessels JA and Gardiner AJA
Heard	October 18, 1926; October 20, 1926
Judgment	January 14, 1927

Flynote : Sleutelwoorde

Negligence — Injury causing death — Claim by widow of deceased — Contributory negligence of deceased — Whether claim barred — Successive negligence — Whether verdict that parties equally negligent competent.

Headnote : Kopnota

A claim for damages by a widow or the minor children of a person whose death is alleged to have been caused by the negligence of the defendant is not barred by the fact that the death is found to have been caused by the combined negligence of the latter and the deceased. One L having died as a result of injuries received whilst driving a motor car which came into collision with a train at a level crossing, his widow sued the Railway Administration on behalf of herself and her minor children for damages. A jury found that the defendant's servant and L were equally to blame, neither having kept a proper lookout and that the latter's death was caused by their combined negligence. Judgment having been entered for plaintiff for damages defendant applied for a new trial under section 66 of Cape Act 23 of 1891, and to set aside the judgment under section 35 of the Act .

Held, that though it was generally possible where the parties were successively negligent to determine which negligence was in the result the cause of the accident, there was no ground of principle to prevent the existence of joint negligence at the final stage of an extended occurrence any more than at the single stage of an instantaneous one and that in the present case though the negligence if established was successive a verdict that the damage was due to the negligence of both parties was competent.

Held, further, that on the facts the verdict was one which reasonable men could properly return and that the application for a new trial failed. Held, further, that as the plaintiff had been injured by the joint negligence of the Administration and her husband, and it could not be said that she was in any sense or to any degree the author of her own wrong there was no principle on which her husband's culpa could be set up against her and that the application to set aside the judgment should therefore be dismissed. The decision of the Cape Provincial Division in Lee v Union Government (Minister of Railways), confirmed.

Case Information

Appeal from a decision of the Cape Provincial Division (WATER-MEYER, J., sitting with a jury.)

The plaintiff suing on behalf and her children sued to recover damages from the Railway Administration for the loss of her husband who had been killed by an accident at a level crossing.

1927 AD p203

WATERMEYER, J: The verdict of the jury in this case was : -

"We unanimously find both Dr. Lee and the defendant guilty of negligence. By a majority of 8 - 1 we cannot decide whose negligence was the decisive factor in causing the death of Dr. Lee. We unanimously agree that in the event of plaintiff succeeding the amount be awarded £1,000 to the widow, £2,000 to the children, with costs of action."

No judgment was entered for either party at the time the verdict was given, but the matter was left over for argument and for either party to move for judgment in terms of sec. 33 of Act 23 of 1891.

Thereafter both plaintiff and defendant moved for judgment, each claiming to be entitled to judgment on the verdict. It is necessary in the first place to decide what the verdict of the jury meant. As to this it seems to me that its meaning is quite clear.

The jury found that the death of Dr. Lee was caused both by the negligence of the defendant and by the negligence of Dr. Lee and they were unable to say which of the negligent acts was the decisive cause of the accident. In other words the defendant and Dr. Lee were equally to blame. This verdict can quite easily be understood in the light of evidence which probably led the jury to the conclusion that both Dr. Lee and the driver could have done something which would have avoided the accident if either had kept a proper look-out. Mr. Alexander at the outset advanced the argument that the Court could disregard the verdict of the jury and enter judgment for the defendant on the ground that it was clear from the evidence that the real and only cause of the accident was Dr. Lee's negligence in not looking up and down the railway line before crossing. I cannot agree with that contention. It is not clear to me that Dr. Lee's negligence was the decisive cause of the accident, but apart from that it seems to me that the decision of that question is the province of the jury and the judge must accept what they find and give effect to it. In terms of sec. 34 of Act 23 of 1891 the judge has to adopt as final and conclusive the facts as found by the jury and give the judgment which the law requires on that finding.

The question then arises what judgment must be entered in an action brought by the widow of a deceased man when the evidence shows that his death was caused by the combined negligence of the defendant and the deceased. The point so far as I have been able to ascertain is raised for the first time in our Courts in this action and it presents considerable difficulties.

I hoped after counsel had had time to consider the question that argument would clear up some of the difficulties, but unfortunately, though the field for investigation is wide and fruitful, very little authority was quoted and consequently I have had to delay my decision for some time.

It seems to me that a solution of the problem before the Court can best be arrived at by considering two separate questions

(a)

On the jury's verdict would Dr. Lee, if he had lived, been able to claim damages from the defendants or was his negligence a defence to such a claim?

(b)

If his negligence was a defence to a claim made by himself is it a defence to a claim made by his widow?

The answer to the first question depends upon whether or not Dr. Lee's negligence was what is known in law by the name of "contributory negligence."

1927 AD p204

In English law the phrase "contributory negligence" is used in two slightly differing senses. It is used in the first place to denote a plaintiff's negligence when it is found on the facts that such negligence was the proximate or decisive cause of the accident and that the defendant's negligence was not; it is used in the second place to denote a plaintiff's negligence when it is found on the facts that both the negligence of the plaintiff and the negligence of the defendant together caused the accident and it is impossible to say that one was any more the decisive cause than the other.

The former case arises as a rule when the acts of negligence are successive and the latter when the acts of negligence are simultaneous. There is ample authority for the above propositions, but perhaps the, cases in which the distinction is most clearly brought out are in cases of

The Bernina (12 P.D. 58),

B.O. Electric Railway Co. v Loach (1916, I.A.C. 719),

Admiralty Commissioners v S.S. Volute (1922, I.A.C. 129).

In the first case at p. 89, LINDLEY, L.J., summed up the position as follows:

"A is injured by B by the fault more or less of both combined, then the following distinctions have to be made: -

"(a)

If notwithstanding B's negligence A with reasonable care could have avoided the injury he cannot sue B.

"(b)

If notwithstanding A's negligence B with reasonable care could have avoided injuring A, A can sue B.

"(c)

If there has been as much want of reasonable care on A's part as on B's or in other words if the proximate cause of the injury is the want of reasonable care on both sides A cannot sue B. In Such a case A cannot with truth say that he is injured by B's negligence, he can only with truth say that he has been injured by his own carelessness and B's negligence and the two combined give no cause of action at Common Law. . . . But why in such a case the damages should not be apportioned I do not profess to understand."

These principles of the English law have been adopted and applied in South African Courts, e.g. Johannesburg Municipality v Darbyshire (1909, T.S at p. 393). Whether the third of these principles is good Roman Dutch Law is not quite clear to me. The matter was not argued as it was assumed that it was covered by decided cases and that it is too late now in a Court of first instance to consider the matter anew.

I may say that like Lord LINDLEY I do not understand why the damages should not be apportioned in such cases.

The foundation of the defence of contributory negligence is to be found in certain passages in the Digest of which the clearest is D. 50.17.203.

Quod quis ex culpa sua damnum sentit non intelligitur damnum sentire. This seems to be good law and good sense the harm which I bring upon myself I must bear myself. Illustrations of the application of the rule are given in D. 9.2.9.4., 9.2.9.11 and 9.2.28. "a plaintiff is refused relief if it is in his power to avoid the danger." The last two passages may justify the third principle referred to above, but it is not clear to me that they do.

It does not seem logical or equitable that a man should be barred from all redress merely because he was the part author of his own damage. If the defendant was equally to blame why should he not pay part of the damage at all events. A rule having that effect exists in Admiralty Courts in England

1927 AD p205

and in France a similar logical result has been arrived at as a development from the Roman Law. Laurent (Droit Civil Vol. 20, secs. 485-492) deals with the passage quoted from D 50.17.203 and in sec. 487 he says...