Windrum v Neunborn

• Jurisdiction: South Africa
• Judge: Trollip J and Nicholas J
• Judgment Date: 26 February 1968
• Court: Transvaal Provincial Division
• Hearing Date: 21 November 1967
• Citation: 1968 (4) SA 286 (T)

B Trollip, J.:

The appellant is the son of one Leslie Albert Windrum, to whom I shall refer as 'the (or his) father'. The former is called 'the defendant' and sometimes 'his son', while the respondent is termed 'the plaintiff' in this judgment

At about 8.30 p.m. on 22nd October, 1964, the defendant, driving his father's Standard motor car from south to north in Harvey Road, C Rembrandt Park, Kempton Park, crashed into the back of the plaintiff's Volvo motor car, which was parked on the west side of Harvey Road, facing north, outside the house of Mrs. Scafo. Both vehicles were extensively damaged. It was agreed that the damage to the Volvo was R650 and to the Standard R450. The plaintiff sued defendant for the R650. D After the action was instituted, the father ceded his claim against the plaintiff for the R450 to his son, who counterclaimed for it. The usual pleas were raised, including those of the apportionment of blame under the Apportionment of Damages Act, 34 of 1956.

The magistrate apportioned 60 per cent of the blame for the collision to the plaintiff and 40 per cent to the defendant. He therefore reduced the E plaintiff's claim to R260, and the defendant's counterclaim to R270, gave judgment for each respectively, and made no order as to costs. The defendant appealed, maintaining that the counterclaim was not liable to be reduced under the Apportionment of Damages Act, and, in any event, that the magistrate should have awarded him the costs. The plaintiff F cross-appealed, contending that the magistrate had erred about the plaintiff's and defendant's respective negligence, and, in any event, should have awarded him the costs.

It is more convenient to deal with the cross-appeal first.

The relevant facts are as follows. [The learned Judge then dealt with the facts and proceeded.]

G It is clear from what I have said above that the negligence of both parties contributed towards causing the collision. The magistrate, surprisingly, attributed 60 per cent of the blame to the plaintiff, and 40 per cent to the defendant. In my view the defendant's negligence was far greater than the plaintiff's. My own assessment is that 20 per cent of the blame is attributable to the plaintiff and 80 per cent to the H defendant. On the claim in convention, therefore, the plaintiff must be awarded R520, and the cross-appeal succeeds to that extent.

I turn now to the question whether the counterclaim is subject to any reduction by reason of the Apportionment Act.

As the combined negligence of both parties caused the damage to the father's Standard motor car, each was at common law severally liable in solidum for the loss suffered by him (Union Government v Lee, 1927 AD 202 at pp. 206/7, 227; Botes v Hartogh, 1946 W.L.D. 157

Trollip J

at p. 160; Hughes v Transvaal Associated Hide & Skin Merchants (Pty.) Ltd. and Another, 1955 (2) SA 176 (T) at p. 180). As, however, they were acting independently of each other when they caused the loss, they A were concurrent and not joint wrongdoers. Nevertheless, sec. 2 (1) of the Act made them joint wrongdoers vis-à-vis the father, subject to the obligations and rights set out in Chap. II of the Act. Thus, the father could have sued them jointly in the same action for his loss (sec. 2 (1)), and, whether they were so sued or not, they had the rights of B contribution and apportionment inter se set out in that Chapter and presently to be noticed. Of course, as the father was an innocent third party, his claim against both or either of them was not subject to any reduction in terms of Chap. I; and the same would apply if he had ceded his claim to any other innocent third party.

C The relevant rights of contribution and apportionment under the Act as between the parties as joint wrongdoers can be summarized as follows.

A.

If the father (or such cessionary) had sued and got judgment against the plaintiff for the R450 and the plaintiff had paid it, the latter could have recovered 80 per cent of it, i.e. R360, from the D defendant as a contribution in terms of sec. 2 (6) (a), subject to due compliance with the provisions of sec. 2 (2) and (4) regarding notice or the Court's leave in the absence of notice.

B.

If the father (or such cessionary) had sued both plaintiff and defendant jointly, he would have succeeded in getting judgment for the R450. The Court could then have done one of two things. Either it could E have entered judgment against them jointly and severally (sec. 2 (8) (a) (i)) and, at the request of the plaintiff or defendant, apportioned inter se the amount payable by each as being R90 and R360 respectively (sec. 2 (8) (a) (iii)), or it could have entered judgment in favour of the father or cessionary directly against each of them for R90 and R360 respectively (sec. 2 (8) (a) (ii)).

F In the present case the father ceded his claim, not to an innocent third party, but to his son, who was one of the joint wrongdoers. The magistrate held that, in consequence, the ceded claim in the son's hands G became subject to reduction under Chap. I of the Act by reason of his own negligence. There the magistrate clearly erred, for the son's negligence could not in law be identified with the ceded claim and was, therefore, irrelevant to its enforcement (cf. Botes v Hartogh, 1946 W.L.D. 157). The magistrate also relied upon a passage in the judgment of MASON, J., in Guinsberg and Pencharz v Associated Press, 1916 T.P.D. 156 at p. 159 -

H 'Speaking generally, the cessionary must be subject to the disadvantages which are incidental to his position'

- and held that

'defendant . . . could not escape the incidental disadvantage that he was also a joint wrongdoer in respect of the damages recoverable, even though he was a cessionary'.

But it is clear from the context of the quoted passage of MASON, J., that 'incidental to his position' meant incidental to the cedent's and not the cessionary's position. The passage is therefore of no assistance, for reducibility of the claim under Chap. I was not one of the disadvantages

Trollip J

incidental to the father's position. In my view, therefore, the son's counterclaim was not subject to any reduction under Chap. I.

The case for the plaintiff on appeal, however, can be put as follows: the amount of the ceded claim could nevertheless be reduced to its correct proportion by reason of (i) the plaintiff's right to a A contribution under sec. 2 (6) (a) of Chap. II of the Act - see A above - or (ii) under the common law; or (iii) the plaintiff's right to have the joint and several liability apportioned under sec. 2 (8) (a) - see B above; or (iv) the plaintiff's right to a reduction under sec. 2 (10), he having been deprived of the rights in (i), (ii) and (iii) by B the father's cession of his claim to his son.

In (i) the essence of the point is that set-off operated; by the time the counterclaim fell to be dealt with, its amount had been agreed upon and, therefore, liquidated, and the respective proportions of the parties' blame in causing the damage (20 per cent and 80 per cent) had been determined; therefore, according to the contention, the plaintiff's C ...