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[2010] ZAGPJHC 174
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Myhill NO v Road Accident Fund (09/30430) [2010] ZAGPJHC 174 (4 August 2010)
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SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO: 09/30430
DATE:04/08/2010
In the matter between:
ELE
MYHILL N.O (obo S MINORS)
PLAINTIFF
AND
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
MEYER, J
[1] This action was
enrolled for trial on Tuesday, 3 August 2010 when it was allocated
for hearing before me. The time estimate
given was two to four
days. After the lunch adjournment today, which is Wednesday, 4
August 2010, I made an order in the
following terms:
1. The plaintiff’s
amendment of his particulars of claim dated 3 August 2010 is allowed.
2. The defendant’s
application for a separation of issues is postponed sine die.
3. This action is
postponed sine die.
4. The costs of
the application for the amendment of the plaintiff’s
particulars of claim, of the application for a
separation of issues,
and those occasioned by this postponement, are reserved.
[2] I wished for more
time to consider the amendment that had been applied for by the
plaintiff and counsel’s argument relating
thereto, but I
considered it appropriate to grant an order without having had such
benefit. Reserving judgment would have
resulted in the trial
hanging in the air and the incurrence of further costs. I have
prepared these reasons immediately after
the matter was postponed.
[3] The plaintiff is the
appointed curator
ad litem
to two minor children, L and P S.
They were injured in a motor vehicle collision which occurred on 29
March 1997, more than
13 years ago. Their claims for
compensation by the defendant, as well as that of their mother, were
compromised and paid
out. The defendant’s offers of
settlement were accepted by their mother on their behalf, and she, in
turn, was represented
by an attorney. The plaintiff in the
present proceedings seeks to set aside the compromise of the claims
of the minors.
[4] The unamended
particulars of claim averred that the ‘... purported acceptance
of the offer ... is invalid and unenforceable
and did not have the
affect of absolving the Defendant of the obligation to reasonably
compensate (the minors).’ The
grounds upon which reliance
was placed why the acceptance of the offer ‘did not have the
effect of absolving the Defendant’
appeared to have been an
alleged duty of care on the part of the defendant and the breach
thereof, which averments were made in
paragraphs 20 – 22 of the
unamended particulars of claim.
[5] At the commencement
of the proceedings application was made on behalf of the defendant
for the separation of the issues raised
in paragraphs 20 - 22 of the
particulars of claim and for the remaining issues to be determined at
a later stage. In opposing
the application, Mr. B. Ancer SC,
who appeared for the plaintiff, disavowed any reliance by the
plaintiff upon the averments of
an alleged duty of care on the part
of the defendant and the breach thereof. The plaintiff’s
cause of action, as submitted
by the plaintiff’s counsel, was
one founded on the avoidance of a contract. The existence of
such contract, however,
was a matter that was not pleaded.
Nevertheless, what became clear during the plaintiff’s
counsel’s argument
was that the separation of the issues as
contended for by the plaintiff would amount to a
brutum fulmen
.
The plaintiff was afforded an opportunity to prepare an amendment of
the particulars of claim.
[6] The plaintiff’s
proposed amendment was opposed on behalf of the defendant. Mr. WHG
van der Linde SC, who appeared with
Ms. G. Schwartz for the
defendant, submitted that the proposed amendment lacked averments
necessary to sustain a cause of action.
[7] The plaintiff, in
terms of the proposed amendment, seeks the avoidance of the
compromise that was entered into on their behalf
by their mother on
the basis that such agreement was not in their interest. See:
Edelstein v Edelstein N.O. and Others
1952 (3) SA 1
(A), at p
11 A. Mr. van der Linde informed me that he was unable to find
any decided case on the issue whether a compromise
entered into by a
guardian on behalf of a minor could legally be avoided if it was so
prejudicial that the minor will suffer serious
loss if it is not set
aside. The power of a court to grant
restitutio in integrum
in such circumstances is recognised by
Voet 4.4.20
. Mr.
van der Linde referred me to
Gane’s
translation, which
reads:
‘
It is true that
manifest damage in a compromise is shown with difficulty, since even
in the case where nothing is in issue and no
debt exists the very
fact that a law suit is avoided appears to be a sufficient cause for
compromise. None the less should
it later appear that a clear
right of a minor has been forgone in the compromise, one which a
major would not have been likely
to forgo with such readiness,
nothing stands in the way of restitution being vouchsafed and the own
right of either party to compromise
being made whole again.’
[8] I accordingly
accepted that an action for and on behalf of a minor to avoid a
compromise is legally competent. That it
will not be easy to
prove is altogether a different matter.
[9] Mr. van der Linde
submitted that in order for the minors in this instance to establish
that prejudice arose at the time when
the conclusion of the
compromise occurred, a comparison is required between the terms of
the compromise and what they should have
been at that time in order
not to have been prejudicial. A minor must show that the
transaction to which he objects was inimical
from its inception.
Prejudice arising from a change of circumstances does not constitute
a ground for relief. See:
Boberg’s Law of
Persons and the Family
(2nd Ed.), at page 724
et seq
.
In
Metedad v National Employers’ General Insurance Co Ltd
1992 (3) SA 538
(W), a minor, with the assistance of her mother or
natural guardian, had abandoned a large portion of a claim instituted
by her
for damages arising from the death of her father in a motor
vehicle accident in order to bring her claim within the jurisdiction
of the magistrate’s court. Van Schalkwyk J, at page 541 H
– I, said that ‘... it would be for the plaintiff
to
demonstrate what the prejudice was and, moreover, that such prejudice
arose at the time when the abandonment occurred (and not
subsequently).’
[10] The objection
against the plaintiff’s particulars of claim was essentially
that the plaintiff failed to plead what the
terms of the compromise
should have been at the time when the compromise was concluded in
order for it not to have been prejudicial
to the minors. The
plaintiff has pleaded that the defendant had been in possession of
the hospital records from which it
appeared that the injuries
suffered by each minor were serious and that there would be
significant
sequelae
to such injuries; that the
defendant was aware that L had suffered a severe head injury with
consequent brain injury and the
onset of epilepsy; that P had
suffered a severe head injury with the onset of epilepsy; that
both L and P were
culpa incapax
at the time of the collision
and accordingly that the 30% apportionment made by the defendant had
no basis in law or fact and was
unlawful; and that, having
regard to the serious nature, extent and consequences of the injuries
and damages, the settlements
were neither fair nor reasonable and
completely inadequate.
[11] The amounts that
ought to have been paid for the compromise not to have been
prejudicial to the minors are not averred.
I am nevertheless of
the view that the averments made inform sufficiently what the
prejudice was and that such prejudice arose
at the time when the
compromise occurred. It is implicit in these averments that the
minors allege that the compromise should
have taken into account the
serious nature, extent and consequences of their injuries and the
fact that they were
culpa incapax
, and that their claims for
compensation should have been compromised at substantially higher
amounts in order for the compromise
not to have been prejudicial to
them at the time when it occurred.
[12] This is a
borderline matter and the opposition to the application for the
amendment of the plaintiff’s particulars of
claim was in my
view reasonable. I was also satisfied that the amendment would
cause the defendant prejudice if a postponement
of the action had not
been granted.
[13] Finally, the only
reason why I reserved the issue of costs instead of making adverse
costs orders against the plaintiff in
respect of the wasted costs
occasioned by the postponement of this action and the defendant’s
costs of opposing the application
for the amendment, including the
costs attendant upon the engagement of senior and junior counsel, was
not to prejudice the minors
in the continuance of these
proceedings.
.
P.A. MEYER
JUDGE OF THE HIGH
COURT
4 August 2010