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[2011] ZASCA 242
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Gusha v Road Accident Fund (158/2011) [2011] ZASCA 242; 2012 (2) SA 371 (SCA) (1 December 2011)
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THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
Case No:
158/2011
In
the matter between:
MJONGI
GUSHA
…..........................................................................................
Appellant
and
THE ROAD ACCIDENT FUND
…................................................................
Respondent
Neutral
citation:
Gusha v The Road Accident Fund
(158/2011)
[2011]
ZASCA 242
(1 December 2011)
Coram:
Cloete, Cachalia and Leach JJA
Heard:
21 November 2011
Delivered:
1 December 2011
Summary:
Claim for damages based on negligence ─
RAF agreeing to concede the merits of the claim and accepting
liability for the plaintiff’s
damages still to be proven ─
RAF precluded from later seeking to prove that the plaintiff’s
damages should be reduced
by way of an apportionment of negligence.
___________________________________________________________________
O R D E R
___________________________________________________________________
On appeal from:
North Gauteng High Court,
Pretoria (Legodi J sitting as court of first instance):
1 The appeal succeeds with costs, such costs to include
the costs of two counsel.
2 Paras 1 and 2 of the order of the court a quo of 24
March 2010 are set aside, and replaced with the following:
‘
1.(a) It is declared that on a
proper construction of the agreement between the parties referred to
in paras 4.4 and 4.5 of the
particulars of claim, the defendant is
liable to the plaintiff for all of the damages suffered by the
plaintiff as a result of
the bodily injuries he sustained in the
motor vehicle accident giving rise to the claim and is precluded from
seeking to plead
or rely upon any apportionment of such damages.
(b) The issues relating to the quantum of the
plaintiff’s damages are postponed sine die.
2. The defendant shall pay the plaintiff’s costs
of suit to date, such costs to include the costs of two counsel where
employed.’
___________________________________________________________________
J U D G M E N T
__________________________________________________________________
LEACH JA (CLOETE AND CACHALIA JJA CONCURRING)
[1]
On 14 February 2006 the
appellant was a passenger in a motor vehicle travelling between
Hluleka and Ntlaza in the Eastern Cape when
it swerved off the road
to avoid an oncoming unidentified motor vehicle being driven on the
incorrect side of the road. The vehicle
capsized and the appellant
alleges that in the process he sustained severe injuries which have
left him paralysed.
In due course the appellant
sued the respondent for damages under the provisions of the
Road
Accident Fund Act 56 of 1996
,
alleging that the accident had
been due to the negligence of the driver of the unidentified motor
vehicle and claiming that the
respondent was accordingly liable to
him for damages in a sum in excess of R6,7 million.
[2] When the matter came to trial in the Gauteng North
High Court in March 2010, the court was asked to decide whether, on a
proper
construction of the terms of an agreement concluded between
the parties before the issue of summons, the respondent had accepted
liability for all the damages suffered by the appellant in
consequence of the injures he had sustained in the accident or
whether
it was still open to the respondent to apply to amend its
pleadings to allege that there should be an apportionment due to the
appellant’s contributory negligence in regard to his injuries
by not wearing a seatbelt at the relevant time.
[3] The parties agreed to separate this issue for
adjudication before any of the remaining issues, and an order under
Uniform
rule 33(4)
was made in that respect. No evidence was led, the
parties having contented themselves with argument relating to the
terms of the
agreement which by that stage had become common cause.
After hearing the parties, the high court concluded that the terms of
the
agreement did not prohibit the respondent from seeking to rely on
the appellant’s contributory negligence and constituted
no
obstacle to an application by the respondent to amend its plea to
seek an apportionment of the appellant’s damages. Although
the
high court went on to refuse an application for leave to appeal, the
appellant now appeals to this court with its leave.
[4]
It is necessary to deal
briefly with the pleadings. In paragraph 3 of the appellant’s
particulars of claim, averments as to
the time and place of the
accident are made. In paragraph 4 it is alleged that the respondent
is liable to the appellant for damages
suffered as a result of bodily
injuries sustained in the accident due to the facts alleged in
paragraphs 4.1 to 4.5 of the claim.
Paragraph 4.1 contains an
allegation that the accident was due to negligence on the part of the
driver of the unidentified motor
vehicle, whose negligence is
particularised. Paragraph 4.2 contains details of the manner in which
the appellant complied with
the provisions of
s 24
of Act 56 of 1996,
while in paragraph 4.3 it is alleged the respondent’s Cape Town
office had acknowledged receipt of the
prescribed claim form and had
thereafter handled the matter. Then in paragraphs 4.4 and 4.5 the
appellant alleged:
‘
4.4 On
20 March 2008, and in a telephone conversation between Mr Martin
Skovgaard-Petersen (an attorney duly authorized by the Plaintiff
to
lodge and prosecute his claim, who was then acting in such capacity)
and Mr Craig Mngaze (a claims handler employed by the Defendant
at
its Cape Town regional office, who was then handling the Plaintiff’s
claim on Defendant’s behalf and was acting
within the course
and scope of his employment), the Defendant conceded the merits of
the Plaintiff’s claim and accepted liability
for the damages,
still to be proven, which the Plaintiff has suffered as a result of
the bodily injuries he sustained in the accident.
4.5 On 20 March 2008 the
Plaintiff’s said attorney caused a letter, a copy of which is
Annexure “A” hereto, to
be delivered by hand to the
Defendant’s aforesaid Cape Town Regional office in which he
confirmed the Defendant’s said
concession of the merits of the
Plaintiff’s claim and acceptance of liability for the
Plaintiff’s still to be proven
damages.’
[5] In its plea the respondent denied that the accident
had happened as alleged in paragraph 3 of the claim. It therefore
denied
the contents of paragraph 4.1 of the claim although, in a belt
and braces approach, it went on to allege that if the court found
that the accident had occurred, that the driver of the unidentified
vehicle had not been negligent or his negligence had not caused
the
accident. The respondent went on further to deny ‘each and
every allegation’ contained in paragraphs 4.2, 4.3,
4.4 and 4.5
of the claim – including that the letter of 20 March 2008 had
been sent to it, this despite the copy of the letter,
annexure A to
the summons, having borne the date stamp of the respondent’s
Cape Town office which had been affixed as proof
of service. The
respondent also denied the appellant’s allegations in regard to
the nature and severity of his injuries and
the quantum of his
damages.
[6] Uniform rule 18(4) requires a pleader to set out ‘a
clear and concise statement of the material facts upon which the
pleader
relies for his claim, defence or answer to any pleading . . .
with sufficient particularity to enable the opposite party to reply
thereto’. Uniform rule 18(5) provides that a pleader who denies
an allegation of fact in the opposing party’s previous
pleading
‘shall not do so evasively but shall answer the point of
substance’. In addition, Uniform rule 22(2) provides:
‘
The
defendant shall in his plea either admit or deny or confess and avoid
all the material facts alleged in the combined summons
or declaration
or state which of the said facts not admitted and to what extent, and
shall clearly and concisely state all material
facts upon which he
relies
.’
Finally, it must be mentioned that Uniform rule 22(3)
provides that ‘(i)f any explanation or qualification of any
denial is
necessary, it shall be stated in the plea’.
[7] The purpose of pleadings is to define the issues
between the parties, not to obfuscate them. However the respondent in
its plea
sought to evade rather than define the matters in issue.
Although it was ultimately common cause that the parties had reached
the
agreement referred to in para 4.4 of the claim, and that the
respondent had received the letter confirming such agreement as
alleged
in para 4.5 of the claim, the respondent specifically denied
these allegations. Its plea in that regard must be deprecated. This
is not a case where the respondent lacked knowledge of the facts. The
agreement had been concluded with its claim handler responsible
for
the appellant’s claim, and the pleader was duty bound to
ascertain what the respondent’s defence was to the allegations
made against it. One is left with the distinct impression that the
respondent’s plea was unethical as it deliberately failed
to
admit what it knew was true (I must immediately record that counsel
who represented the respondent was not the author of the
plea which
was drawn by an attorney).
[8] Be that as it may, the parties proceeded to trial
with the appellant facing the respondent’s denials of his
allegations
set out in para 4 of the claim. However, the parties
entered into negotiations during which the respondent found itself
having
to admit not only that the accident had occurred but also the
contents of paragraphs 4.4 and 4.5 of the appellant’s claim.
This is reflected in a statement of agreed facts which the parties
filed of record in this court in order to avoid filing a 108
page
transcript of the proceedings which occurred in the high court on 19
and 23 March 2010.
1
This statement goes on to record that the parties were
in agreement:
‘
That
the only issues for the court a quo to determine were those in
respect of paras 4.4 and 4.5 of the particulars of claim, in
which
regard the court a quo was requested to determine whether or not, on
a proper construction of the agreement between the parties,
respondent is liable for all the damages suffered by appellant as a
result of the bodily injuries he sustained in the accident
and is,
accordingly, precluded from seeking to plead or rely upon any alleged
apportionment of such damages.’
[9] It is also recorded in the statement of agreed facts
that counsel for the respondent informed the court of the
respondent’s
intention to apply to amend its plea ‘in
time for the quantum hearing, to plead contributory negligence on the
part of (the
appellant) for allegedly failing to wear a seatbelt’.
Up until then, there is no indication on the record of the respondent
having given any indication of its intention to allege that the
appellant had been guilty of contributory negligence.
[10] In the light of the admissions already mentioned in
regard to para 4 of the claim, the only issue which the court a quo
was
called upon to decide was whether the agreement that the
respondent ‘concedes the merits of this claim and accepts
liability
for the damages (the amount of which is yet to be proven)
suffered by the claimant as a result of the injuries he sustained in
the accident’ is an unqualified acceptance of liability for the
damages the appellant suffered due to his injuries. If it
is, it
precludes the respondent from contending that his damages should be
reduced due to his own negligence.
[11] It was argued on behalf of the respondent that the
concession of ‘the merits of this claim’ meant no more
than
an acceptance by the respondent that the accident had been due
to negligence on the part of the driver of the unidentified motor
vehicle. The phrase ‘the merits’ is somewhat
controversial – see the judgment of this court in
Harford
2
in which it was pointed out that a statement that the
claim succeeded on the merits made no sense as there was a claim for
payment
of damages, not a claim in respect of the merits.
3
Nevertheless both parties accepted that the concession
of ‘the merits’ meant no more than that the driver of the
unidentified
motor vehicle had been negligent and that this alone did
not absolve the appellant from having to prove that he had been
injured
in the accident as well as the nature and extent of his
injuries and the compensation which he should be awarded.
[12] However, the respondent also
accepted
‘
liability for the damages, still to be proven,
which the Plaintiff has suffered’. Counsel for the respondent
argued that the
respondent had thereby clearly intended to do no more
than to accept liability for the damage caused by the negligence of
the driver
of the unidentified motor vehicle and, consequently, if
the appellant had not been wearing a seatbelt and his failure to do
so
contributed to his injuries, the respondent had not undertaken to
be held liable for that harm. In these circumstances it was argued
the respondent’s acceptance of ‘liability’ had been
limited.
[13] In my view, this argument cannot be accepted. In
interpreting the agreement, counsel for the respondent submitted,
correctly
in my view, that the correct approach in accordance with
the so-called ‘golden rule of interpretation’ is to have
regard
to the normal grammatical meaning of the relevant words, the
context in which they were used, including the nature and purpose of
the agreement, and the background circumstances which might explain
the purpose of the agreement and the matters properly present
to the
minds of the parties when they concluded it. In this regard, the
remark of Lord Steyn in
R v Secretary of State
for the Home Department, ex parte Daly
[2001] UKHL 26
;
[2001]
3 ALL ER 433
(HL) at 447
a
that
‘in law context is everything’ is apposite. This approach
has regularly been affirmed by this court when called
upon to
construe the language used in a document such as a statute to a
contract although, as Harms DP pointed out in
KPMG
Chartered Accountants (SA) v Securefin Ltd & another
,
4
‘
to the extent that evidence may be admissible to
contextualise the document . . . to establish its factual matrix or
purpose or
for purposes of identification, “one must use it as
conservatively as possible” (
Delmas
Milling Company Ltd v Du Plessis
1955 (3) SA
447
(A) at 455B-C).’
[14] In interpreting the agreement, it is significant
that at the time the respondent was facing a claim for damages
brought by
the appellant as a passenger who had been injured when the
motor vehicle in which he had been travelling had been forced off a
road by the unidentified motor vehicle. This the respondent had
accepted. It had also accepted that the driver of the unidentified
motor vehicle had been negligent. Importantly, as was correctly
conceded by its counsel, the respondent clearly gave no thought
at
the time to the possibility of any contributory negligence on the
part of the appellant (as is borne out by its failure at any
stage to
raise the issue thereafter, even after the admission of liability was
specifically pleaded as part of the appellant’s
cause of
action).The issue of any such negligence was thus never a live issue.
In these circumstances the respondent, by conceding
the ‘merits’
and accepting ‘liability
for the damages
still to be proven, which the (appellant) has suffered as a result of
the bodily injuries he sustained in the accident’
accepted
liability without qualification for whatever damages the appellant
had suffered as a result of his injuries, subject of
course to proof
of those injuries and the damages that ought to be awarded. There is
in my view no room for the respondent’s
argument that its
acceptance of liability was limited and did not relate to the full
extent of the appellant’s loss. There
can also be no question
of the appellant having sought to limit its liability by reserving
the right to raise an apportionment
which it had not considered and
on which it did not intend to rely.
[15] The respondent’s unqualified concession of
liability renders it both impermissible and opportunistic for it now
to attempt
to introduce the appellant’s alleged contributory
negligence in order to seek a reduction in the extent of its
liability.
The court a quo therefore erred in reaching the contrary
conclusion and in granting the relief set out in paras 1 and 2 of its
order of 24 March 2010 ( in which it postponed the issue of the
appellant’s alleged contributory negligence – which
was
in fact never an issue on the pleadings – to be heard ‘together
with the hearing of this matter on quantum’
and directed the
appellant to pay the costs of the hearing). There is no reason to
interfere with para 3 of the court a quo’s
order relating to
the wasted costs of 19 March 2010.
[16] In the light of the importance of the matter to the
appellant, I am of the view that costs of two counsel should be
allowed
and, indeed, it was not suggested otherwise by the
respondent.
[17] It is ordered:
1 The appeal succeeds with costs, such costs to include
the costs of two counsel.
2 Paras 1 and 2 of the order of the court a quo of 24
March 2010 are set aside, and replaced with the following:
‘
1.(a) It is declared that on a
proper construction of the agreement between the parties referred to
in paras 4.4 and 4.5 of the
particulars of claim, the defendant is
liable to the plaintiff for all of the damages suffered by the
plaintiff as a result of
the bodily injuries he sustained in the
motor vehicle accident giving rise to the claim and is precluded from
seeking to plead
or rely upon any apportionment of such damages.
(b) The issues relating to the quantum of the
plaintiff’s damages are postponed sine die.
2. The defendant shall pay the plaintiff’s costs
of suit to date, such costs to include the costs of two counsel where
employed.’
______________________
L E Leach
Judge of Appeal
‘
APPEARANCES:
For Appellant: M A Crowe SC (with him (I S Ferreira)
Instructed by:
Lowe & Petersen, c/o E W Serfontein Inc, Pretoria
Honey Attorneys, Bloemfontein
For Respondent: M M Lingenfelder
Instructed by:
Dyason Attorneys, Pretoria
McIntyre & Van der Post, Bloemfontein
1
This
was a commendable course of action and one which this court has
previously remarked should be followed more often ─
see
Costa
Da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy
2003
(4) SA 34
(SCA) para 3.
2
SA
Eagle Versekeringsmaatskappy Bpk v Harford
[1992] ZASCA 42
;
1992 (2) SA 786
(A).
3
At
792B-D.
4
KPMG
Chartered Accountants (SA) v Securefin Ltd & another
2009
(4) SA 399
(SCA) para 39.