Union Government v Ocean Accident and Guarantee Corporation Ltd
Jurisdiction | South Africa |
Judge | Schreiner JA, Fagan JA, De Beer JA, Reynolds JA and Hall JA |
Judgment Date | 01 December 1955 |
Citation | 1956 (1) SA 577 (A) |
Hearing Date | 07 November 1955 |
Court | Appellate Division |
Schreiner, J.A.:
In July, 1952, an accident occurred on a country road between an uninsured vehicle driven by a farmer and a taxi-cab insured by the respondent company, which I shall call 'the company', under the D Motor Vehicle Insurance Act, 29 of 1942. In the taxi-cab was a magistrate who had hired it for the purposes of his official duties. He was injured in the accident and was absent from duty for some two and a half months; in terms of Act 27 of 1923 and the regulations made thereunder, which governed his service, the Government paid him his salary, amounting to £326 9s. 6d. during the period of his absence from E duty. The Government and the magistrate sued the company, the farmer and the driver of the taxi-cab. The Government claimed £326 9s. 6d. from each of the three defendants in the alternative. The magistrate claimed £2,000 from the company and £100 from the driver of the taxi-cab; there were other alternative claims against the latter and the farmer. A F settlement of the magistrate's claims was reached and the action was confined to one for £326 9s. 6d. by the Government as plaintiff against the company and the farmer as defendants. The company excepted to the Government's declaration as disclosing no cause of action against it. This exception was upheld with costs by ROPER, J., and the Government now appeals to this Court.
G The Government's declaration alleged that by reason of the injury to the magistrate it had been deprived of his services for about two and a half months while it was obliged to pay him his salary, namely £326 9s. 6d., during the period. 'In the premises,' the Government went on to allege, it had 'suffered damages in the sum of £326 9s. 6d. as and for loss of 'the magistrate's services,' which amount the company was liable to pay to the Government.
H The Roman-Dutch authorities relied upon by the Government are the following:
Grotius, 3. 34. 3 (Lee's translation p. 475) 'Parents may take proceedings in respect of injuries to their minor children. Manservants (diensknechts) and maid-servants (dienstmaegden) may
Schreiner JA
demand redress on their own account; and their masters or mistresses (meesters ofte vrouwen) may do the like, so far as they have suffered damage by loss of their service.'
Voet, 9. 2. 10 ad fin (Gane's translation II p. 561) 'so also is it' (the action on the Lex Aquilia) 'granted to those who A have hired the labour of male or female slaves to the extent that they are damaged by ever having lost their services.'
Kramp (c.1780), in the Aanhangzel to Kersteman, at p. 320, uses 'huurdienstbooden' instead of Voet's servi aut ancillae.
van der Keessel (c. 1800) Dictata at Grotius, 3.34.3. This work B is available only in manuscript form and I accordingly give the text, as furnished by Mr. Roberts, who appeared for the Government, and a translation composed by Mr. Roberts with the assistance of Professor van Warmelo and Dr. Gonin of the University of Pretoria:
C 'Docet Grotius ob famulum domesticum vulneratum non tantum illi utpote libero homini concedi actionem ed ea, quae modo diximus, exigenda, sed etiam hero, cui ministerium praestat si propter operas amissas eius intersit. Quod licet jure Romano constitutum non inveniatur, producta nunc amplius damni, quod D aequitas resarciri jubet, contemplatione non mala hic a Grotio recipitur probante et Voetio ad Leg. Aq. n. 10 in f.
(Grotius is of the opinion that an action is given on account of the injuring of a domestic servant, not only to the servant himself as being a freeman, for the claiming of those things which we have just mentioned, but also to the master to whom he E renders services, if he (the master) has a pecuniary interest on account of the loss of services.
And though this rule is not found formulated in Roman Law, it is rightly accepted here by Grotius (with the approval of Voet in 9.2.10 in fin) on the ground that the concept of damage, which F equity demands should be made good, has now been further extended.)'
These authorities and their applicability in modern law are discussed in an interesting article by A. M. Conradie in the Tydskrif vir Hedendaagse Romeins-Hollandse Reg (1943) p. 133.
Before ROPER, J., it was argued on behalf of the company that the rule G to be extracted from the above authorities only applied in the case of injuries to domestic servants and was not applicable to employees generally and that in any event it had fallen into desuetude. It appears that in the Court a quo both parties sought assistance from the language of sec. 11 of Act 29 of 1942, the Government contending that the company's liability thereunder is more extensive than that of the H negligent party at common law, while the company contended that its liability under the section is more restricted. Before this Court, however, the argument proceeded on the basis that the company's liability is co-extensive with that of the negligent party at common law.
In the course of the argument on appeal the question was raised whether the Government's claim for damages could properly be based upon the amount of salary paid by it to the magistrate, seeing that there
Schreiner JA
was no allegation that it had been necessary to employ someone else to do the magistrate's work, and non constat that the work had not been done, without expense to the Government, as a result of extra exertions on the part of other members of the staff, combined with the magistrate's own efforts, on his return to duty, to overtake the A arrears. In the view I take of the matter, however, it is unnecessary to examine this aspect further, or to consider whether, for any other reason, the Government might, when temporarily deprived of an official's services, be in a less favourable position than ordinary employers to recover from the wrongdoer who caused the deprivation, or from his insurer under the Act. It was not suggested that the Government's B position might be more favourable than that of other employers.
ROPER, J., upheld the exception because, according to his reading of Grotius, Voet and van der Keessel, the rule entitling the master to recover from the wrongdoer only applied where the injured person was a C domestic servant. The learned Judge referred to certain decisions upon the action accorded under English Law to the master for personal injuries to his servant per quod servitium amisit, and observed that under that system some extension of the scope of the action had taken place. ROPER, J., went on to indicate that in his view the rule, as developed by the English decisions, was not unjust or inequitable or out D of harmony with modern social ideas, but, as he could find no indication of a parallel development in Roman-Dutch Law, no extension beyond the case of domestic servants seemed to him permissible.
The attention of ROPER, J., was not apparently drawn to the case of Attorney-General for New South Wales v Perpetual Trustee Co. Ltd. and Others, 1955 (1) A.E.R. 846, in which judgment had been given some three E months earlier by the Privy Council. In that case a constable in the New South Wales Police Force had been injured in an accident and the Attorney-General on behalf of the New South Wales Government sued the persons directly or indirectly responsible for causing the injury for an amount based on the salary and allowances payable to the constable while F he remained in the Force and on the pension payable to him after his discharge. After a full examination of the position of a constable at various dates in the history of England and of New South Wales, and after a discussion of the origin and development of the master's action per quod servitium amisit, the Privy Council held that the action did not lie in the circumstances under consideration. The basis of the G decision, as appears from the judgment, which was delivered by VISCOUNT SIMONDS, was a somewhat narrow one, namely, that
'there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the state which he is said to serve. The constable falls...
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