Van der Westhuizen and Another v SA Liberal Insurance Co, Ltd

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson AJ
• Judgment Date: 20 October 1948
• Citation: 1949 (3) SA 160 (C)
• Court: Cape Provincial Division

Ogilvie Thompson, A.J.:

In this action the plaintiff claims damages for personal injury sustained by him as the result of a collision occasioned, as he avers, by the negligence of one Wolmarans in driving a vehicle of which the latter was at all material times the owner. The defendant is the Insurance Company pursuant to sec. 11 of Act 29 of 1942. Mr. Hickman, a witness called for the plaintiff, has given evidence, and in the course of his evidence he has deposed that after he arrived at the site of the collision he got into the vehicle which had been driven by Wolmarans and found that the brake pedal could be easily depressed. He said that he then spoke to Wolmarans on the subject, who made a remark to him. Objection is raised to the admissibility of that remark. The ground of the objection is that inasmuch as the defendant is the insurer, and as such is liable, if at all, to the plaintiff only by virtue of the provisions of Act 29 of 1942, the defendant is not bound by any admission or statement which might have been made by Wolmarans. Mr. Hanson, who appears for defendant and takes the objection, has in the course of his argument, very rightly, drawn the Court's attention to the fact that there is a decision (van Zyl v S.A.N.T.A.M. (1948 (2), S.A.L.R. 815)), wherein VAN DEN HEEVER, J., expressed a view adverse to the contention advanced to-day by Mr. Hansen. In that case (which was also an action against the insurer under Act 29 of 1942) the learned Judge expressed the view that a statement of this kind in an action of this sort will be admissible on two grounds: first as forming part of the res gestae; and, secondly, on the ground that since the legal relationship between the insured and the insurer is more closely analogous to that of surety and principal than to that of master and servant, the evidence should, because of the rule discussed in Wigmore, sec. 1077, of allowing in evidence the admissions of privies, be admitted against the defendant Company.

Mr. van Wyk, for plaintiff, maintains that the knowledge of Wolmarans in relation to the brakes is in issue in this case, as having a bearing upon Wolmarans' negligence, particularly when correlated with the averment made in the declaration that Wolmarans travelled at an excessive speed. Mr. van Wyk points out that in terms of sec. 11 of Act 29 of 1942, the insurer is only liable if the injury or death is due to the negligence or other unlawful act of the person who drove the motor vehicle or of

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its owner; and he says that any evidence which would go to prove that negligence, is admissible. That is Mr. van Wyk's first ground on which he contended the evidence to be admissible. Mr. van Wyk's second ground is that it was admissible as part of the res gestae; and his third ground is that the insurer is substituted as defendant in terms of the Act, and therefore must be placed in the same position as the insured would have been if he had been proceeded against by the plaintiff.

As to the res gestae contention, according to the witness Hickman this statement of Wolmarans was made approximately half-an-hour after the collision, and in my view, for that reason, it should not be received in evidence as part of the res gestae. I consider that in terms of the decision in Kelly v SA Railways and Harbours (1928 TPD 671), followed in Wishart v Mason (1931 NPD 530), the evidence should not be received on that ground. See too Pincus v Solomon (2) (1942, W.L.D. 243). In van Zyl v S.A.N.T.A.M. (supra) the statement in issue was made, according to the report, 'immediately after the accident'.

As to Mr. van Wyk's first point: any evidence which establishes the negligence of Wolmarans, is, of course, relevant. That still, however, leaves open the question as how that negligence can be established having regard to the rules of evidence. Direct proof of Wolmarans' knowledge of the defective condition, or otherwise, of his brakes would be one thing; but to attempt to prove that knowledge by his admission, is - evidentially speaking - another matter. Mr. van Wyk's submission here begs the issue as to whether such an admission is properly receivable in evidence in an action against the insurer.

It seems to me that this evidence can only be admissible if the insurer is substituted by the Act as defendant in the sense that I have already indicated. Now much force is lent to this argument by the terms of sec. 13 of the Act, whereunder, in the circumstances there stated, the remedy against the owner is barred. From this, together with sec. 11 (1) (i) of the Act, it may fairly be contended that the Legislature intended to place the insurer in the same position as the driver of the vehicle would have been, had he been the defendant. But the Legislature has not actually said that. The liability of the insurer to the plaintiff derives solely from the Statute, and in terms of the proviso to sec. 14 the insurer has only a very restricted right of recourse against the owner

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or against the person who was driving the vehicle with the consent of the owner. In these circumstances, it seems to me, with great respect, that there is not a privity between the insurer and the owner or driver of the vehicle in the sense indicated in sec. 1077 of Wigmore. The insurer and the insured, or his driver, do not appear to me to have an identity of interest. On the view I take, the insurer - though rendered liable by the Statute if the injury or death is due to the negligence or other unlawful act of the person who drove the motor vehicle - is not identified with that driver to the extent as to admit in evidence against the insurer the statements of that driver. In other words, on the view that I take, the Statute, while creating the independent liability of the insurer fails to make provision for the evidence problem which is presented by Mr. Hanson's objection namely, the allowing in a trial wherein the insurer is the defendant of evidence of an admission by the driver of the relevant vehicle. I feel that the Statute should make express provision for such a contingency; but unless, and until, that is done, the admissibility of the evidence tendered must be governed by common law. The latter, in my view, does not permit the admission of the evidence tendered. In my opinion, for these reasons, this objection is valid in law and I uphold it. The objection to the evidence tendered is therefore sustained.

Further evidence having been led,

J. T. van Wyk, for the plaintiff: Pierce v Hau Mon (1944 AD 175) is distinguishable. See Thornton v Fismer (1928 AD 398), Prinsloo v Pauley (1946 AD 518). Victoria Falls Power Co v Thornton's Cartage Co. (1931 TPD 516) and Wulf v City Tramways Co. (1945 CPD 3), are distinguishable. See also Macrose v Robinson (1945 AD 1).

M. E. Theron, for the intervening plaintiff: There was no negligence on the part of plaintiff, and if there was then it is established that defendant had the last opportunity of avoiding the accident. See McKerron on Delict. This was not the case in Pierce v Hau Mon (supra at p. 210). If the Court finds that there was simultaneous negligence then the true test of liability is the preponderance of culpability. See Pierce v Hau Mon (supra at pp. 193 et seq.) and an article on 'Causation and Legal Responsibility' (62 S.A.L.J. 126). Even if the Court decides not to apply this test it should make a finding as to the relative degrees of negligence

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of plaintiff and the person whose lorry was insured by defendant. If defendant is ordered to pay any damages to plaintiff, the intervening plaintiff is entitled to the full amount of compensation he was or is obliged to pay under Act 30 of 1941, sec. 8 (1) (b). Cp. sec. 46 (b) of Act 59 of 1934.

H. J. Hanson, K.C. (with him B. F. J. Banks), for the defendant: See Thornton v Fismer (supra) and Pierce v Hau Mon (supra), Union Government v van der Merwe (1936 TPD 185), Victoria Falls Power Co. case (supra), Bain v Edwards (1944 CPD 191).

Cur adv vult.

Postea (October 20th).

OGILVIE THOMPSON, A.J.: On the 18th December, 1946, a collision occurred between two motor vehicles at the intersection of Milton and Wallace Streets in Goodwood, Cape. The plaintiff, who was at that time an employee of Sunshine Bakeries, was driving one of these vehicles and sustained various injuries in the collision for which he claims £7,000 damages. The other vehicle involved in the collision was a motor lorry the property of, and driven by, one Simon Wolmarans who was insured with the defendant under the provisions of Act 29 of 1942; and the defendant is now sued in terms of sec. 11 of that Act. The intervening plaintiff is the Workmen's Compensation Commissioner who has intervened in the suit under and by virtue of sec. 8 (1) (a) of Act 30 of 1941. It is not disputed that the aforementioned collision arose out of and in the course of plaintiff's employment under a contract of service as a motor lorry driver with the Sunshine Bakeries and that, in consequence of the injuries sustained by him in the collision, he became entitled to claim compensation in terms of Act 30 of 1941. The intervening plaintiff makes common cause with the plaintiff in this suit regarding the causation of the collision and, averring that defendant became liable in law to pay plaintiff damages, now seeks to recover, under and by virtue of sec. 8 of Act 30 of 1941...