Wigham v British Traders Insurance Company Ltd

• Jurisdiction: South Africa
• Judge: Bekker J
• Judgment Date: 22 April 1963
• Citation: 1963 (3) SA 151 (W)
• Court: Witwatersrand Local Division

F Bekker, J.:

This is an action in which plaintiff claims damages in the sum of R2,970. The declaration alleges that by reason of the death of her daughter who was killed in a collision between two motor vehicles, G caused by the negligence of one Barnard, who was driving a truck insured by the defendant, plaintiff was deprived of maintenance and support which her daughter was obliged to give her and which she would have given to plaintiff had she not died.

It is common cause that at or about 9.30 p.m. on the 29th January, 1960, H and about six miles north of Newcastle on the Johannesburg-Durban Road, a collision occurred between the truck driven by Barnard and a motor-car driven by Mr. Paatz, in which plaintiff's daughter was a passenger. Although the plea denied that the deceased died as a result of the collision and that Barnard was negligent, it is now common cause that Barnard's negligent driving caused the collision as a result of which the deceased met her death. I shall accordingly not dwell on the evidence relating to these issues.

Plaintiff alleged in her declaration that she was partially dependent

Bekker J

upon her daughter for maintenance and support and that the deceased was under a legal duty to support and maintain her, and that she in fact did do so during her lifetime. The plea denies these allegations. It is also A denied that defendant is liable to pay plaintiff the amount claimed or any other sum of money. These then are the issues before me.

The summons was issued and served on defendant on the 26th January, 1962, three days before the action would have become prescribed under the provisions of sec. 11 (2) of the Motor Vehicle Insurance Act, 29 of B 1942. The amount then claimed was R2,000. Thereafter on the 10th April, 1963, a notice of amendment was served on defendant in terms of which it was intimated that plaintiff would at the trial apply to increase the amount claimed to R2,970. At the commencement of the trial the application was made but Mr. Morris, for the defendant, objected C thereto on the ground that any claim over and above the original amount claimed, namely R2,000, was prescribed and he asked that the amendment should accordingly be refused.

I do not agree with the contention advanced. The summons, in setting out the nature and particulars of the claim, advised defendant that the sum of R2,000 was being claimed as damages -

'being the damages sustained D by plaintiff as a result of the death of her daughter Aira Hope Stuart-Patterson who during her lifetime was under a legal duty to support and in fact did support the plaintiff'.

In response to a request for further particulars for details showing how the sum of R2,000 was arrived at, plaintiff alleged that the sum represented the capitalised value of the loss of maintenance which the E plaintiff would have received from her daughter. Plaintiff has since discovered an error in the computation of that 'capitalised value', hence the amendment sought. Sub-sec. (2) of sec. 11 of the Act provides:

'The right to claim compensation under sub-sec. (1) from a registered company shall become prescribed upon the expiration of a period of two years as from the date upon which the claim arose.'

F In Sheriff v Royal Insurance Co., 1952 (4) SA 263 (C) at p. 264, it was pointed out that

'the concluding words of this sub-section refer to the occurrence which gives rise to the cause of action. It is from that date that the period of two years runs and when that period of two years has lapsed what is prescribed is 'the right to claim compensation'. In the present instance by instituting action plaintiff has avoided the incidence of prescription contemplated by the sub-section'.

G In the matter now before me there is no doubt that plaintiff's right to claim compensation remains unaffected by the provisions of sub-sec. (2), supra, and it is equally clear, I think, that the amendment does not seek to introduce a new cause of action or right to claim any additional compensation. Plaintiff still relies on the original and only cause of H action contained in the summons and the amendment merely seeks to correct an incorrect computation of the amount of damages which flowed from that cause of action, as to the nature of which defendant could never have been doubt. In these circumstances I do not regard the objection as a valid one. Although I am informed by counsel that they have been unable to discover any authority in point, Mr. Morris very properly referred to an authority which he said appeared to be 'somewhat against' his contention, namely Trans-African Insurance Company Limited v Maluleka, 1956 (2) SA 273 (AD), where, after referring to the case of Hilton v Sutton Steam Laundry, 1954 (2)

Bekker J

A.E.R. 525, the following dicta of SCHREINER, J.A., appears at p. 279:

'The case illustrates the English practice of refusing amendments which have the...