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[2014] ZAGPJHC 149
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Fedorik v De Klerk, Vermaak & Partners Incorporated (19359/11) [2014] ZAGPJHC 149 (8 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 19359/11
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
FEDORIK,
RADOVAN
................................................................................................................
Plaintiff
and
DE
KLERK, VERMAAK & PARTNERS
INCORPORATED
.............................................
Defendant
Coram:
WEPENER J
Heard:
5 August 2014
Delivered:
8 August 2014
Summary:
Road Accident Fund – Claim by uninjured third party for damages
– such claim based on common law – absence
of duty of
support disentitles a party to claim expenses gratuitously incurred.
JUDGMENT
WEPENER
J:
[1]
This matter came before me as a special case in terms of Rule 33
which provides for the parties to agree on a written statement
of
facts for adjudication.
[2]
The plaintiff sues the defendant, a firm of attorneys, for damages
due to the defendant’s negligence in that it failed
to recover
damages which the plaintiff suffered as a result of medical costs
incurred by him after his ex-wife was involved in
a motor vehicle
collision.
[3]
It is common cause that the claim against the defendant is only
sustainable in the event of the plaintiff proving that he would
have
been successful with this claim against the Road Accident Fund (RAF),
which claim was handled by the defendants. The case
is set out as
follows:
‘
2.
That on or about 2005, and at Vanderbijlpark, the plaintiff and the
defendant entered into an oral agreement in terms of which
the
defendant would do all things necessary to lodge and recover from the
Road Accident Fund (hereinafter the “RAF”)
all expenses
incurred and /or loss of earnings allegedly sustained by the
plaintiff and / or plaintiff’s ex-wife, Alena Fedorik
(hereinafter “Alena”) as a result of a motor vehicle
collision in which Alena was injured.
3. On 13 November
2002 and in Vanderbijlpark, a collision occurred between a motor
vehicle and Alena who was a pedestrian at the
time. The
abovementioned collision was caused entirely by the negligence of the
driver of the motor vehicle. The question of liability
was resolved
on the basis that the RAF would be liable for 70% of the damages.
4. During 2007 and
in the North Gauteng High Court Pretoria under case number
25558/2007, the defendant representing Alena caused
a summons to be
served on the RAF claiming the damages allegedly suffered by Alena.
5. The amended
particulars of claim filed by the defendant on behalf of Alena
included,
inter alia
, a claim for past hospital, medical and
related expenditure in the amount of R1 543 357.00.
6. The
abovementioned expenses, which were annexed to Alena’s
particulars of claim as annexures “A1” to “A7”
were expenses actually incurred by the plaintiff.
7. On 31 August
2009, Advocate JJ Botha was appointed as
curator ad litem
for
Alena to assist in the conduct of the trial of her claim against the
RAF.
8. Prior to the
commencement of the trial the legal advisors representing Alena,
including the defendant and the
curator ad litem
, Advocate JJ
Botha, agreed to abandon the claim set out in annexures “A1”
to “A7” as they were of the view
that the abovementioned
claim was unlikely to succeed.
9. On 3 June 2010,
the action instituted by Alena against the RAF was settled and the
abovementioned settlement did not include
provision for or payment of
the amount of R1 543 347.00, contemplated in paragraph 10.1
of the particulars of claim.
10. On 4 July 2002,
the plaintiff and Alena were divorced, in terms of which divorce
order included,
inter alia,
that Alena would forfeit her right
to claim any benefits from the marriage which was in community of
property.
11. Neither at the
time of the accident, nor ar any stage subsequent thereto, did the
plaintiff owe a legal duty of support to his
ex-wife, Alena.
Furthermore the plaintiff did not incur the
expenses referred to in paragraphs 5 and 6 above
pursuant to
any legal duty to Alena.
12. Subsequent to
the accident, and notwithstanding the fact that the plaintiff and
Alena were divorced, the plaintiff accommodated
Alena in his house
and paid the expenditure referred to in paragraph 5 and 6 above.’
[4]
The plaintiff’s argument was short and crisp. It was submitted
that by virtue of the provisions of s 17(1) of the Road
Accident Fund
Act (RAF Act)
[1]
, the RAF was
liable to compensate the plaintiff for medical costs incurred by him
for and on behalf of his ex-wife. Section 17
provides:
‘
17
Liability of Fund
1.
The Fund or an agent shall –
a.
…
b.
be obliged to compensate any person (the
third party) for any loss or damage which the third party has
suffered as a result of bodily
injury to himself or herself or the
death of or any bodily injury to any other person, caused by or
arising from the driving of
a motor vehicle by any person at any
place in the Republic ….’
[5]
Counsel for the defendant submitted that the RAF Act only envisages a
claim by a non-injured party such as a parent or a spouse
where there
is a legal duty by such a claimant to maintain the injured person.
[6]
In this regard it is also significant to have regard to ss 19 and 21
of the RAF Act. Section 21 abolishes certain common law
claims. I
need not digress on this as the exceptions referred to in that
section are not applicable to this matter.
[7]
Section 19 of the RAF Act provides:
‘
Liability
excluded in certain cases
The Fund or an agent
shall not be obliged to compensate any person in terms of section 17
for any loss or damage-
(a)
for which neither the driver nor the owner
of the motor vehicle concerned would have been liable but for section
21;’
[8]
From these provisions it becomes clear that s 19 limits a claim
against the RAF to a claim that would have been competent under
the
common law
[2]
. In that sense,
the RAF steps into the shoes of the wrongdoer. A claim against it
should be proved as if it was the wrongdoer and
all the necessary
allegations and proof in order to assert a claim against a wrongdoer
would be required. If the wrongdoer is not
liable at common law, the
RAF will also not be liable.
[3]
[9]
Having regard to the aforesaid, the elements of the plaintiff’s
claim as stated above need consideration. What is immediately
apparent is that the plaintiff had no duty to maintain his ex-wife
and that the expenses incurred by him can best be described
as having
been incurred on a charitable basis. Such a charitable payment, in
the absence of any obligation to maintain his ex-wife
can, in my
view, not be classified as damage. Damages is described by Boberg
[4]
as follows:
‘
The
terms “damage” and “damages” are sometimes
used incorrectly. “Damage” is the loss suffered
by the
plaintiff (skade,
damnum
);
“Damages” is the monetary compensation that the court
gives him for it (skadevergoeding).’
The
concept incudes a loss.
[10]
The charitable assistance by or generosity of the plaintiff was no
more than a gift by him to his ex-wife. As such, it cannot
be
converted into a loss or
damnum
and he consequently has no
claim against the RAF.
[11]
A claim by a non-injured party has been recognised in our law.
Such claim is based on the claimant’s common
law duty to
maintain the injured person.
[12]
Du Bois in
Wille’s Principles of South African Law (9
th
Edition)
says at p 1154:
‘
In
addition to the claim of the injured person, a spouse or parent (or
any other person who is obliged by law
to support the injured person
) who has
paid the medical expenses of the injured person, or incurred
additional household expenses due to his or her injury, may
claim the
amount expended; for, in such an instance, the wrongdoer commits a
delict against both the injured person and those obliged
to support
him or her.’ (own emphasis)
[13]
It has been said that the ‘liability of a father to pay for
such expenses is one which arises by operation of law (cf.
Vermaak vs
Vermaak 1945 CPD 89)’
[5]
.
It is this relationship and obligation which allows a father to
recover any medical expenses incurred by him on behalf of a minor
[6]
.
The Supreme Court of Appeal held in
Santam
vs Henery
[7]
that
there is no duty of support by a husband of his ex-wife with the
result that a claim by him cannot, without more, succeed –
the
duty of support by the ex-husband having terminated. The basis of
such a claim, ie the duty of support, was extensively discussed
in
Du
Plessis v Road Accident Fund
[8]
. Had there been a contractual duty to support
[9]
my conclusion may have been different.
[14]
By disavowing reliance on the very basis upon which a claim can be
instituted by an uninjured third party at common law, the
plaintiff
has non-suited himself. The relationship, ie the legally enforceable
duty to support or maintain, is explicitly absent
in the present
matter and in the absence thereof, I am of the view, that the
plaintiff is unable to recover his gratuitous payments
from the RAF
both as a result of the absence of a loss and as a result of an
absence of a right due to an absence of a duty to
support his
ex-wife. Having come to this conclusion, this plaintiff’s
inability to have succeeded against the RAF was not
as result of any
wrongful or negligent act by the defendants but due to the operation
of law.
[15]
Counsel for the plaintiff submitted that the defendant, having had a
mandate to recover any damages also suffered by
the plaintiff,
should have advised him to cede the claim to his ex-wife. The
difficulty with this argument is that the plaintiff
could only have
ceded a valid and enforceable claim. Without a duty to support, there
can be no valid claim capable of cession
to his ex-wife.
[16]
As a final argument it was submitted that the defendant should have
submitted a ‘suppliers claim’ pursuant to s
17(3) of the
RAF Act. Again, s 17(5) is premised on the basis that the plaintiff
would be entitled to compensation in terms of
s 17. I have already
shown that there is no such entitlement without a duty of support.
[17]
In the circumstances the plaintiff’s claim falls to be
dismissed with costs.
__________
Wepener
J
Counsel
for plaintiff: Adv. B. Joseph
Attorneys
for plaintiff: De Meyer & De Vries Attorneys
Counsel
for defendant: Adv. J.E. Joyner
Attorneys
for defendant: Webber Wentzel
[1]
56
of 1996
[2]
See
Santam
v Henery
[1999] ZASCA 5
;
1999
(3) SA 421
(SCA) at 429E
[3]
Klopper:
The
Law of Third-Party Compensation
(3
rd
Ed) p 123
[4]
The
Law of Delict Vol 1 page 475
[5]
Saitowitz
v Provincial Insurance Co Ltd
1962 (3) SA 443
at 445H
[6]
See
Schnellen
v Rondalia Assurance Corporation of SA Ltd
1969
(1) SA 517 (W)
[7]
At
427I
[8]
2004
(1) SA 359
(SCA) at paras 10 – 16. See also Gauntlett: Corbett
The Quantum of damages, Vol 1 (4
th
Ed) p 27
[9]
Du
Plessis
ibid para 16