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2012
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[2012] ZAKZDHC 16
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Visser v Visser (15088/2009) [2012] ZAKZDHC 16; 2012 (4) SA 74 (KZD) (29 March 2012)
1
Reportable
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO: 15088/2009
In the matter between:
NICO VISSER
…...................................................................................
Plaintiff
and
HERMAN VISSER
…........................................................................
Defendant
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
The events of 23 December 2006 were unexpected and
traumatic for the Visser family. The plaintiff, his wife (‘Mrs
Visser’)
and their three young children lived in Pretoria.
They were staying over Christmas at the Amanzimtoti home of the
plaintiff’s
father, who is the defendant, and his mother. That
morning they were preparing for a family outing to the Ushaka Marine
World.
It was hot and the plaintiff went outside to start the engine
of his vehicle and activate the air conditioner so as to cool the
interior in preparation for the journey. When he re-entered the
house, he was met by his son N, aged 2 years 2 months, who raised
his hands in a request to be picked up and said ‘Pappa’.
Because the plaintiff had a younger son who could not walk
and who
he had to carry to the car, he passed by N without picking him up. N
dropped his hands and reached toward the defendant’s
Labrador
dog, Stoffel, whose face was at the same height as that of N.
Stoffel then bit N in the face four times. The plaintiff
heard, but
did not see, the bites. Mrs Visser saw it happen. Both were
powerless to intervene with the result that N sustained
severe dog
bite wounds to the face.
In order to stem the bleeding, the plaintiff put a
cloth over N’s face. He and the defendant immediately took N
to the casualty
unit of the nearby Kingsway Hospital. He was met
there by hospital staff because Mrs Visser had phoned ahead to alert
them. When
the wounds were examined they were told that a plastic
and reconstructive surgeon would be required and that they should
take
N to St Augustine’s Hospital, some 35 kms away, for that
purpose. The plaintiff, the defendant and Mrs Visser did so straight
away. There Dr McGarr, a plastic and reconstructive surgeon who
examined N about 15 minutes after they arrived, told them that
surgery was indicated and that he would attend to it as soon as his
schedule allowed. N entered the operating theatre just before
13h00
and the operation lasted just over 4 hours. When N awoke in the
paediatric ward he asked what had happened and was very
emotional,
crying and complaining of pain. It was a feature of all of the
evidence that N had, and to this day has, no personal
recollection
of being bitten. He only knows that Stoffel bit him because he was
told so. He was discharged after two days in
hospital on 25 December
2006. His physical recovery was good, no doubt assisted by his
parents. As Dr McGarr commented in his
report, N’s parents
ensured that the recommended follow up consultations took place and
‘strict scar management regime…was
closely adhered to’.
The incident gave rise to the present action, brought
by the plaintiff in his capacity as N’s guardian under the
actio de pauperie
.
Demand for payment of quantified damages was made by letter dated 6
February 2007 addressed to both the defendant and his insurance
company, which has defended the action. For liability to attach to a
defendant, the only proof that is required under this
actio
is that the defendant was at the time the owner of a
domesticated animal, that the animal injured the plaintiff (in this
case
his minor child on whose behalf he sues) without provocation
and that in so inflicting injury the animal acted
contra
naturam sui generis
.
1
These elements are all admitted on the pleadings. In
other words, in the plea the defendant admits liability for any
damages which
the plaintiff can prove arose from the incident. The
only issue on which I was asked to adjudicate is on the quantum of
the damages
sustained by the plaintiff (in his said capacity) as a
consequence of the incident. At the time of trial, N was 7 years and
5
months old. A period of just over 5 years had elapsed since the
incident. The damages claimed are for past medical and hospital
expenses, future medical, psychological and hospital expenses and
general damages for shock, pain and discomfort, trauma, scarring
and
disfigurement.
The past medical expenses were agreed at the trial in
the sum of R36 490.59. As regards the future medical,
psychological
and hospital expenses, the psychological expenses were
agreed at the trial in the sum of R9 536.00. The medical and
hospital
costs, if the surgery recommended by Dr McGarr was to take
place today, were agreed in the sum of R41 000.00. What remains
in dispute for decision is the contingency to be allowed for the
possibility that the recommended surgery for scar revision will
not
take place and the quantum of general damages. As regards the
contingency in question, the plaintiff submitted that the
calculation should be done on the basis that there was a 10%
probability that N would not have the surgery. The defendant
submitted
that a 25% contingency should be allowed for. I was
provided with actuarially calculated figures based on the
application of
10%, 15%, 20% and 25% contingencies and it was agreed
that I could use those figures once I had determined the
contingency.
The wounds to N were described by Dr McGarr as follows.
A large flap laceration involving the middle section of his forehead
above
the right eyebrow. A second laceration through the right
eyebrow. A degloved wound of the right side of the cheek below the
right
lower eyelid with tissue loss. A full thickness laceration to
the right upper lip as well as lacerations in the neck which were
down to the platysma level. On the day of the incident, N suffered
severe pain. He had two sessions under anaesthetic; the initial
surgery and then on 28 February 2007 for the removal of the
stitches. As indicated, when he came round from the first
anaesthetic,
he was emotional and in pain. The next few days he
could not eat, cried a lot and was generally in pain. He had to stop
twice
during the journey home for painkillers to be administered,
having been given medication before setting off. The pain diminished
in the weeks after the trip home. The scars have healed well. Dr
McGarr, whose evidence in this regard is uncontested, testified
that
scar revision surgery is indicated in two respects. The first is a
scar in the right eyebrow in the medial third, the width
of which is
4mm and which has no hair. The scar splits the eyebrow which makes
it extremely visible. A scar of 2mm would be regarded
as acceptable
and this accordingly requires correction. The second is an area in
the right cheek where the colour and contour
has not settled well.
These constitute follow up reconstructive work arising from the dog
bites.
The surgical work of Dr McGarr was clearly outstanding.
Apart from the two scars mentioned above, the recent photographs of
N
show a good looking, obviously healthy young boy with no other
noticeable wounds. Indeed, nobody testified that any of the other
wounds had resulted in visible scarring at this stage. Dr McGarr
testified that, because tension on a scar can adversely affect
the
outcome of such surgery, the scar revision surgery should take place
when N stops growing which is likely to be around the
age of 16 to
18. Both parents indicated that they would strongly recommend that N
undergo the suggested procedure when the time
comes.
At the trial, the plaintiff and Mrs Visser testified as
to the incident and what has happened thereafter. Dr McGarr and Mr
Henk
Swanepoel, a clinical psychologist who had assessed N, also
testified on behalf of the plaintiff. Dr Caron Bustin, an
educational
psychologist who had assessed N, testified on behalf of
the defendant. It must be said that none of the evidence of Dr
McGarr
was contested and very little of the evidence of Mr Swanepoel
and Dr Bustin was contested. All three expert witnesses were a
credit to their professions and of great assistance and they are
commended on their fair and helpful reports and evidence.
The incident had far reaching repercussions for N and
the extended family. Two of them took place straight away. The
defendant’s
dog, Stoffel, was put down that day by the
defendant’s wife with his blessing. The return of the family
to Pretoria took
place by way of the plaintiff driving back with N
and their eldest son while Mrs Visser and the youngest child flew.
This was
done so that she could arrange for their two dogs to be put
down before N arrived home. The approach of the plaintiff and Mrs
Visser to dogs after the incident can be characterised as consistent
avoidance of, and protection of N from, exposure to dogs.
In
general, the plaintiff testified that he does not like dogs any
more. He said that if the family visited people, N would ask
if
there were dogs and, if there were, ask that they be locked away. If
N was to play with a friend, he would ask whether the
friend had
dogs and, if this was the case, did not want to go there to play.
Where a dog or dogs appeared at school, N removed
himself to a safe
distance. When walking around the housing estate where they live, N
became anxious if he saw big dogs or heard
dogs barking and clung to
his parents. Things have improved in that he now tolerates smaller
dogs, touching them but not playing
with them. He recently asked his
parents to acquire a dog. Before the incident he slept in his own
bed. Afterwards he wanted
to sleep with his parents and it took six
to eight months for him to again sleep in his own bed.
Mrs Visser gave detailed evidence of changes in N’s
behaviour, illustrated by events in each of the years since the
incident.
On discharge from hospital he was weepy, unsettled, slept
with his parents, would not eat and would not bath. During 2007 he
returned to school with dressings on his face. He would not leave
his parents in the mornings and go to his class unaccompanied.
At
one athletics day a child brought a dog and N refused to participate
in the meeting. If he heard a dog bark he would ask if
the dog was
coming to them. During evening walks around the estate he refused to
leave the pram and wanted to avoid houses with
dogs, even though
they were fenced. In 2008 a friend had a birthday at the zoo and N
refused to go. The family acquired cats
but he showed no interest.
They visited the defendant and his wife and N wanted to know if
Stoffel was still there. Only after
two days did he relax and accept
that the dog was not there. He slept badly if he had been exposed to
a dog during the day, wanting
to sleep with his parents. In 2009 his
attitude to dogs improved but when a friend was to have a dog party,
N said that he should
not buy a dog but a bird because birds do not
bite. The school play was based on the song: ‘How much is that
doggie in
the window’ and N refused to take part in it. In
2010 he entered Grade R and took time to adjust to this and a
new
teacher and friends. Mrs Visser took her children to a lion park
and, although one of his brothers stroked the lion cubs, N would
not
do so. When they went on holiday, they rented a house in the Cape
which had animals. He fed the cat and cared for the tortoise
but
avoided the Jack Russell dog. In 2011 he had a good year in Grade 1
but talked a lot which brought some problems. He
started hunting and
wanted to shoot anything with four legs. If a child had a party with
dogs, N would go to the party but keep
his distance. He slept in his
parents’ bed from time to time and twice wet his bed; once
during 2010 and once during 2011.
As regards his body image, Mrs
Visser testified that N likes to be neat and will often look twice
in the mirror to check on his
hair. She was therefore adamant that,
when the time comes, N will have the surgery for scar revision.
N has been asked by friends what caused his scars and
tells them that a dog bit him. The evidence was not clear as to
when, or
how often, this took place. The plaintiff testified that,
whilst driving, he noticed N looking in the sun visor mirror and
asked
him what he was looking at, receiving the reply that he was
looking at the marks on his face. He then asked whether the marks
bothered him and N said that he wished they would go away. Both
psychological experts testified that N presently has a positive
body
image and probably has no image of his body before, and therefore
without, the scarring. Although she said that it was not
decisive in
this regard, Dr Bustin testified that in a projective drawing, where
N was asked to draw a person and drew himself,
no scars had been
drawn on the smiling face of the figure he drew. The figure was
drawn with attention to detail. In her experience,
if scars are
problematic and impact on a child’s self-image, the child in
question tends to depict the scars on such drawings.
N has adapted to school well and is performing well
academically and socially. He takes part in wrestling and mini
rugby. He wants
to be a scrumhalf like Francois Hougard, who is a
Springbok and member of the Blue Bulls rugby team. There were three
or so family
therapy sessions with a psychologist shortly after the
incident, of which the plaintiff attended one. These were
discontinued
because it was thought by the plaintiff and Mrs Visser
that N was too young and that it was traumatic for them to have to
keep
recalling the incident. Both parents admitted to feeling guilty
that N was bitten, blaming themselves for not having protected
him.
The plaintiff blames himself for not having picked N up when N asked
him to do so that morning. It is quite clear that neither
of the
parents has resolved the psychological impact on them of the
incident. The evidence to this effect by Dr Bustin was not
challenged. Her evidence that the approach of the parents has
probably prolonged N’s anxiety around dogs was also not
contested. Mr Swanepoel agreed that their attitude to dogs would
have had an impact on N but was, understandably, unable to say
to
what extent this was the case. While Dr Bustin attributed no blame
to them, she testified that it was regrettable that the
family
therapy sessions had been discontinued. The goal of these sessions
is for each family member to come to terms with the
incident and to
learn ways of being empowered, and of empowering N, to deal with
dogs he may come across. The closer to the incident
that these take
place, the sooner the incident is processed and the sooner N can be
assisted to learn safe and rewarding ways
of dealing with dogs. The
avoidance of dogs, whilst it was an understandable strategy, has not
assisted them or N in the subsequent
years. Both the parents and N
are oversensitive to dogs and a child takes on his parents’
perceptions of dogs.
The following points were agreed between the two
psychologists regarding N’s development. Before the incident
he was a well
functioning boy, with developmental milestones within
the norm. He seems to be functioning on at least an average to high
average
level of intelligence at present. His referred to
inattention can be due to an attention deficit disorder or
depression and anxiety
although he did not meet the clinical
criteria for either of these. As regards the incident, they agreed
that the scars on his
face from the dog attack are visible but not
disfiguring. They agreed that N had suffered from post traumatic
stress disorder
for between three and six months after the incident.
Even though certain of the symptoms might manifest from time to
time, this
does not mean that he continues to suffer from the
disorder. Dr Bustin was asked whether the recent bed wetting
incidents showed
that N still suffered from post traumatic stress
disorder. She stated that this was not the case because other
indicators of
the disorder were absent. She attributed these
incidents to direct stressors which arose because N’s fear of
dogs has not
been resolved. The only key area of disagreement going
into the trial between the two psychologists was whether N has a
generalised
fear of dogs. Mr Swanepoel was of the opinion that this
was the case but Dr Bustin disagreed. As the plaintiff testified, N
has
improved in his attitude to dogs, will touch small dogs and even
asked for a dog. When Mr Swanepoel was told of this evidence,
he
conceded that this would mean that the fear of dogs was no longer a
generalised one. This concession was appropriate. In response
to a
question Dr Bustin readily agreed that adolescent boys tend to be
self conscious about their bodies and that N will probably
accept
the recommendation of Dr McGarr to have scar revision surgery when
he stops growing.
Dr Bustin and Mr Swanepoel reached agreement that N
requires play therapy for his fear of dogs as well as
psychotherapeutic assistance
with body image due to the scarring. He
will also require psychotherapy during significant junctures of his
development, including
the shift from primary to high school and the
entry to adolescence. The family should also receive family therapy.
16 sessions
will be required altogether; ten for N in the areas
mentioned above and six for the family.
So much for the evidence. In the light of the evidence,
the probability that N will not have the scar revision surgery when
the
time comes and the general damages must be assessed. Apart from
his decision in that regard, normal contingencies apply. It is
appropriate to bear in mind that the surgery should take place 11 to
13 years from now. Taking into account the commitment of
the
parents, the opinion of the two psychologists and Dr McGarr and the
evidence of Dr McGarr that the scars can be significantly
improved
to achieve an acceptable level, my opinion is that the percentage
contingency for not having the surgery should be assessed
at 10%.
The present value of the expenses to have surgery at age 17 with a
10% contingency deducted is actuarially calculated
at R34 025.
This means that the damages for future medical, psychological and
hospital expenses total R43 561 made up of
psychotherapy in the sum
of R9 536 and R34 025 for the scar revision surgery.
When assessing general damages, a different approach is
required than that for assessing patrimonial loss. This is because,
apart
from no reduction in patrimony as with special damages, there
is no acceptable way of measuring pain and suffering, disfigurement
and the like. People respond to these in a whole variety of ways.
Even if there were a universally acceptable way to measure
these,
there is no way of attributing a money value to them. The assessment
is therefore not a precise one. As was stated by
Watermeyer JA:
‘
The amount to be awarded as compensation
can only be determined by the broadest general considerations and the
figure arrived at
must necessarily be uncertain, depending upon the
judge’s view of what is fair in all the circumstances of the
case.’
2
Previous awards are, as stated by Innes CJ, instructive
even if they are never decisive.
3
This is because:
‘
Nothing like a hard and fast rule or
definite standard is to be found in a matter so closely linked with
the peculiar circumstances
of each case, but some guidance is to be
derived from the notion that fairness to both parties is likely to be
served by a large
measure of continuity in the size of awards, where
the circumstances are broadly similar…If there has been a
marked change
in the value of money since earlier, otherwise
comparable, awards were made, this should be taken into account, but
not with such
an adherence to mathematics as may lead to an
unreasonable result….’
4
It is clear from
Sigournay
that no hard and fast rule exists that previous awards
must be used and the awards escalated to the extent that the value of
money
has declined.
5
No two sets of wounds are the same and no two people
upon whom identical wounds are inflicted respond in the same way or
share the
same circumstances. The comparison with previous awards is
instructive and assists in ensuring that the amount awarded is as
fair
as possible in the circumstances.
The parties agreed that the closest comparable case to
the present one was that of
Heynecke v
Visagie
.
6
In that matter a boy aged ten at the time of the
incident and 12 at the time of trial had been bitten by a dog in the
face. He
was screaming and somewhat hysterical and was hospitalised
for a few days. After 24 days, he was examined. He had severe
irregular
scarring in the left cheek area stretching from the base
of the left nostril to the hairline above the left ear. There was
also
a loss of function of the superior branches of the left facial
nerve resulting in an inability to raise the left eyebrow and to
close the eyelids on the left side tightly. He also had severe
persistent swelling in the injured area, especially of the left
lower eyelid, causing a slight introversion of the eyelid with
resultant irritation of the left eye and excessive weeping. By
the
time of trial, the scarring had improved and the excessive weeping
had disappeared. He had been left with a twitching of
the left eye
due to faulty regeneration of the severed nerve ends leading to
intermittent spasms of the muscle, probably permanent.
The loss of
function in the lifting of the left eyebrow was a serious cosmetic
blemish. Future plastic surgical operations were
indicated. As
general damages for pain and suffering, shock, disability and
disfigurement he was awarded a present day equivalent
of R44 000.
The next case relied on by the plaintiff was
Martin
v Union and South West African Insurance Co Ltd (2)
7
where a woman lost her nose which needed to be stitched
back, cracked her sternum and suffered contusions of her left hand,
back
and both legs. It was determined that plastic surgery would
remove all blemishes from her nose but she suffered back pains which
required pain medication and impacted on her enjoyment of playing
tennis, in particular. The present day value of the general
damages
awarded to her is R83 000.
In
Mather v President Insurance
Co Ltd
,
8
an 11 year old girl had sustained a severe fracture of
the nose and bruising and abrasion of her whole face when she
collided
with a lorry while riding her bicycle. She sustained two
rounded hypertrophic scars in the region of the left hip which were
unsightly when wearing her swimming costume. She had been left with
a broad flat deformity of the nose and difficulty in breathing
through the nose. Increased fluid secretion from her nose would
probably continue for the rest of her life. A nasal graft and
nasal
correction were recommended for when she reached 17 years of age but
it would not achieve a full cosmetic result although
normal
breathing might be restored. The scarring on her thigh would
eventually probably not trouble her but her sense of attraction
for
the opposite sex would be adversely affected by the nasal
appearance, at least until the deformity could be corrected. Damages
for psychological trauma were included in the award of general
damages of a present day value of R103 000. The judge hearing
the matter stated that he had not been referred to any comparable
awards. The facts in the last case relied on by the plaintiff,
that
of
Strauss v Santam Insurance Co Ltd
9
are so different as not to be of material assistance.
The defendant referred to the case of
Bandle
v Bonhomme
.
10
A 31 year old male had been assaulted with a broken
beer bottle in his face. He suffered a severely lacerated upper lip
and oral
commissure involving full thickness of both lips, and
severance of the tip of his nose accompanied by a degloving of the
nose.
He also sustained a trapdoor-type laceration of the anterior
right neck. Excellent reconstructive surgery had improved the
initial
‘horrific’ extent of the disfigurement to a
moderately severe result, but his face still displayed significant
hypertrophic
scars and variations in colour due to skin
pigmentation. His upper lip was not as mobile as before but the scar
on it was covered
by a moustache. The right hand side of his mouth
was insensitive and had a scar running from the corner of the mouth
to the jaw.
Two operations had already been performed and three were
to follow. Future surgical revision would improve but not eradicate
his disfigurement. He was awarded general damages, including for
contumelia
, in a
present day value of R53 000.
The closest comparable cases are those of
Heynecke,
Mather
and
Bandle
. None of them is even close to
identical as regards the injuries or their
sequelae
. In all
three of these cases the disfigurement at the time of trial was, and
the likely future disfigurement was likely to be,
more severe than
that of N. In the first, the nerve damage was serious and in the
third the plaintiff would be left with disfigurement.
None of them
took place on a 2 year old. Of them, only in
Mather
were
psychological consequences suffered and it is difficult to compare
them meaningfully with those which N has experienced.
N suffered
confusion at the time of the incident, uncomprehending pain in the
days and weeks that followed and the impact on
his social life
through avoidance of dogs has been reasonably severe. Granted, the
latter appears to have been prolonged and
even to an extent
exacerbated by the response of his parents but this is not something
for which he can be blamed. With the proposed
therapy, it should be
resolved. The psychologists agreed that, whilst the scars are
visible, they are not disfiguring. Dr McGarr
is confident that the
proposed scar revision surgery will result in what plastic and
reconstructive surgeons refer to as acceptable
scars. In N’s
case this will mean that the scar through his right eyebrow will be
less than 2mm in width and the one on
his right cheekbone will have
consistency of contour and colour. It is so, however, that, as both
psychologists agreed, adolescent
boys are generally self-conscious,
especially about their physical appearance where it deviates from a
perceived norm. Mrs Visser
testified that N is already fastidious
about his appearance. Although the defendant is correct in his
submission that N has no
experience of a body image without
scarring, this does not mean that he is not, or will not become,
aware of how his scarring
distinguishes him from his peers. It is
likely that this will be exacerbated in the years of adolescence
which he will need to
traverse before the recommended time arrives
for the surgical revision of the two scars in question. Whilst this
should not be
unduly exaggerated given the already successful
initial surgery, it is a factor which affects the question of
general damages
and without which a lesser award would have been
made. In all the circumstances, I am of the view that an award of
R70 000
for general damages, taken as a globular sum, is
appropriate in the circumstances.
This means that the plaintiff has proved total damages
in the sum of R150 051.59. This is made up of past medical
expenses
of R36 490.59, future medical, psychological and
hospital expenses of R43 561 and general damages of R70 000.
This would be my award, based on the damages proved at
the trial. However, the plaintiff submitted that I am obliged to
award
general damages in at least the sum of R110 000. The
reasoning was as follows. On 15 January 2010, the defendant served
on the plaintiff a notice in terms of Rule 34(1) of the Uniform
Rules of Court in the following terms:
‘
Kindly take notice that the Defendant
unconditionally offers to pay the sum of one hundred and twenty six
thousand six hundred and
eleven rand and twelve cents (R126 611.12)
in settlement of the Plaintiff’s claim, which offer comprises
R110 000.00
in respect of general damages and R16 611.12 in
respect of special damages, and also tenders to pay the Plaintiff’s
party and party costs up to the date of delivery hereof.’
The plaintiff submitted that, because this was an
unconditional offer, it constituted an acknowledgment of liability
for general
damages in the sum of R110 000 and that,
accordingly, I am not at liberty to award any less under that head.
In support of this submission, the plaintiff could not
refer me to any direct authority nor was I able to find any. The
plaintiff
relied on the commentary to Rule 34(1) in Erasmus:
Superior Court Practice
and the cases cited in support
thereof. There the learned author says the following:
‘
An unconditional offer is designed for the
case where the defendant admits liability on the plaintiff’s
claim, in whole or
in part, entitling the plaintiff to accept the
offer and to sue for the balance of his or her claim at his peril.’
11
These words are a slight adaptation of, and presumably
rely on, what was said in a case cited as authority for the
proposition and
also referred to by the plaintiff,
Van
Rensburg v AA Mutual Insurance Co Ltd
,
12
to the following effect:
‘
Rule 34(1) is thus designed for the case
where the defendant admits liability on the plaintiff’s claim,
in whole or in part,
entitling the plaintiff to uplift the money paid
in…and to sue for the balance of his claim, if any, at his
peril.’
At the outset, it should be noted that neither of these
dicta
bears directly on the proposition advanced by the
plaintiff. This is because, unlike what is dealt with there, the
offer was
not accepted. Whether, if it had been accepted, the
plaintiff would have been entitled to sue for the balance of his
claim need
not concern me. What is in issue in the present matter is
the effect of an unaccepted unconditional offer to settle, made
under
the Rule, of a sum less than that claimed by the plaintiff.
The plaintiff contends that it fixes liability in at least the
amount
offered. A further issue is whether, if this is the case, it
fixes liability for general damages in the sum of R110 000 when
an overall sum was offered and was said to comprise ‘R110 000
in respect of general damages and R16 611.12 in
respect of
special damages’. Neither of these questions was addressed in
argument by the parties.
The offer made by the defendant in the present matter
must be interpreted in order to determine these issues. The law as
to how
to go about interpreting documents was recently analysed and
helpfully summarised by Wallis JA in the following terms:
13
‘
The present state of the law can be
expressed as follows. Interpretation is the process of attributing
meaning to the words used
in a document, be it legislation, some
other statutory instrument, or contract, having regard to the context
provided by reading
the particular provision or provisions in the
light of the document as a whole and the circumstances attendant upon
its coming
into existence. Whatever the nature of the document,
consideration must be given to the language used in the light of the
ordinary
rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and
the material
known to those responsible for its production. Where
more than one meaning is possible each possibility must be weighed in
the
light of all these factors. The process is objective not
subjective. A sensible meaning is to be preferred to one that leads
to
insensible or unbusinesslike results or undermines the apparent
purpose of the document.’ (reference omitted)
The first circumstance which gave rise to the offer was
that the parties were litigating the present claim. The offer was
made
pursuant to Rule 34. The effect of the offer, which was
also its probable purpose, was to place the plaintiff on his mettle
in that, if he rejected the offer, this placed him at risk of paying
the costs incurred after the time the offer could reasonably
be
considered unless he was able to prove damages in excess of the sum
tendered. The offer was stated to be open for acceptance
for the
time period specified in the Rule. If it was not accepted within the
given time, it fell away and required either the
consent of the
defendant or the imprimatur of the court before it could be accepted
later. The offer was in a sum less than that
sued for by the
plaintiff.
As regards the context afforded by the Rule, this is of
critical importance. In
Klein v City Council
of Johannesburg
14
Centlivres JA said the following:
‘
In this connection I may at once say that
there was no procedure in Roman-Dutch law whereby a defendant could,
without admitting liability
,
pay a sum of money into Court.’ (my emphasis)
Immediately after this dictum, Centlivres JA went on to
deal with a passage in
van der Linden
15
which, he held, dealt with a case where it was clear
that the defendant owed the plaintiff part of what was claimed. This
passage
he translated from the Dutch as follows:
‘
The defence of non-liability is further
taken either simply or with the addition of a “declaratoir”
or “praesentatie”.
When, for example, the claim of the
plaintiff cannot indeed be admitted as it stands, but still is
well-founded in one or more
points, it is not appropriate to
contradict the claim entirely by plea of non-liability, but the
defendant acts carefully in offering
his opponent in the suit
whatever he truly owes him
…
The form of praesentatie which
van der Linden
gives shows that
the defendant contends that the plaintiff should be denied any award
over and above the amount admitted by the
defendant.’
16
It will be recognised that the present offer was made in
precisely the context where liability for damages was acknowledged in
the
plea but the quantum of the claim denied. However, although
Roman-Dutch law recognised such a procedure, it is settled that, as
Centlivres JA went on to hold, ‘the legal results flowing from
a payment into Court depend not on the law relating to tender
but on
the construction of the rule of Court’.
17
The history of this Rule derives from English law via
the Cape. Order 30 of the English Judicature Act of 1875 formed the
basis
of Cape Rule of Court 332 promulgated in 1879 which was
‘apparently the first Cape Rule of Court dealing with payment
into
Court’.
18
This gave rise to Cape Rule of Court 576 and,
thereafter, Cape Rule of Court 24 which was dealt with in
Ngwalangwala
. This in
turn, along with other provincial division rules to similar effect,
gave rise to Rule 34 which was brought into effect
when the Uniform
Rules of Court were promulgated (the old Rule). In English law,
Order 30 was replaced with Order 22 and, thereafter,
by the current
rule, Part 36 of the Civil Procedure Rules (CPR). The current
English rule
19
differs totally from the new Rule and deals only with
without prejudice offers. It can therefore afford no guidance as to
how
to interpret the present offer which is an unconditional one.
Van Rensburg
20
dealt with the old Rule prior to its amendment in
1987
21
when it was substituted in its totality by the present
Rule 34 (the new Rule). Under the old Rule, a payment of money
was
made into court whereas under the new Rule a written offer to
settle must be made. The old Rule was headed ‘Payment into
Court’ and the material parts of Rules 34(1) and (2) read
as follows:
‘
(1) In any action for payment of a sum of
money the defendant may at any time pay unconditionally into court
the sum so claimed
or any part thereof, and the registrar shall, upon
the application of the plaintiff, pay such sum to the plaintiff’s
attorney…
(2) In any action in which a sum of money is claimed either alone or
with any other relief, the defendant may, at any time without
prejudice, pay an amount into court by way of an offer of settlement
of the plaintiff’s claim.’
The new Rule is headed ‘Offer to Settle’ and
the material parts are Rules 34(1) and (6) which read as follows:
‘
(1) In any action in which a sum of money
is claimed, either alone or with any other relief, the defendant may
at any time unconditionally
or without prejudice make a written offer
to settle the plaintiff’s claim…
A plaintiff or party referred to in subrule (3) may, within 15 days
after the receipt of the notice referred to in subrule (5)…
accept any offer or tender….’
Rule 34(5) sets out the requirements with which an
offer under the new Rule must comply.
In
Ngwalangwala,
22
the plaintiff claimed damages for injuries suffered by
his minor daughter in a vehicle collision. The plea admitted an
obligation
to pay only ‘such damages as have been suffered by
his said minor daughter’, denied that these amounted to what
had
been claimed and further pleaded that ‘the damages
suffered by the plaintiff’s said minor daughter do not exceed
the sum which it has this day paid into Court in full satisfaction
of the plaintiff’s claims, in terms of Rule of Court 24.’
The amount paid pursuant to the Rule was R6 000. This was not
accepted and the defendant company then went into liquidation
whereupon the liquidator withdrew the offer of settlement. The
plaintiff applied for relief entitling him to accept the R6 000
and to uplift that sum from the Registrar of the Court. The
liquidator resisted the application and applied for an order
allowing
him to uplift the amount paid in. He also sought to amend
the plea to remove reference to the offer and to submit to judgment
in whatever amount the plaintiff proved had been suffered as
damages. In dealing with that issue, the court said the following:
‘
There can really be little doubt that,
apart from the supervening liquidation, the Court in the exercise of
its discretion in this
case would have ensured that the R6,000 would
have stayed in the hands of the Registrar until the amount actually
due by the company
was ascertained and would then have ordered that
any amount of damages or costs due by the defendant to the plaintiff
be paid therefrom.
To the extent to which any portion of such sum was
in excess of the amount of damages eventually found to be due to the
plaintiff,
together with any balance of costs which may have been
payable by the plaintiff, the Court would have authorised the
Registrar
to repay any balance to the defendant.’
23
Although the last sentence of this is
obiter
,
it is apposite to the present matter.
More direct support for this approach is to be found in
two cases cited with approval in
Klein
.
24
The first of these,
Michau v
Ashe
25
was decided under Cape Rule 332 where, in response to
an action for defamation claiming damages of £1 000, the
defendant
paid into court £100 by way of satisfaction and
amends. Judgment was entered for £5, despite the payment into
court
having exceeded that sum. The second is
Versfeld
v The South African Citrus Farms Ltd.
26
In this matter, damages for breach of contract were
claimed, the defendant admitted liability for the breach and paid
into court
the sum of £600. The court held that damages of
only £500 had been proved and Gardiner JP said the following:
‘
Defendant paid £600 into Court, but
plaintiff did not choose to take that sum in satisfaction of his
claim, and he is entitled
only to the damages he has proved.’
These cases bear directly on the present matter where
the amounted offered in settlement of the claim was not accepted. In
such
a circumstance, the plaintiff cannot then fall back on the offer
even though it was said to be unconditional. He is entitled only
to
the damages he has proved.
This is all the more so since the present matter
concerns an offer to settle rather than a payment into court which
could be accepted
and the balance sued for.
27
Taking into account the context afforded by the new
Rule and according to the wording of the offer, it was made in
settlement
of the plaintiff’s claim. Whereas, under the old
Rule, only payments made without prejudice were said to be made ‘in
settlement of the plaintiff’s claim’, under the new Rule
both unconditional and without prejudice offers are said
to be made
‘to settle the plaintiff’s claim’. Boiled down to
its essence, what the plaintiff contends for is
a situation where,
having rejected the offer and despite not having proved damages
exceeding the offer, he seeks to hold the
defendant liable for at
least the amount contained in it relating to general damages.
Although said to be unconditional, it is
not an unconditional
payment, it is an unconditional offer. It does not amount to an
acknowledgment of debt, which seems to be
the meaning contended for
by the plaintiff. In other words, it does not, without acceptance,
create a cause of action as would
an acknowledgment of debt.
28
The offer therefore does not amount to an
acknowledgment of liability if it is not accepted. Nor does it fix
the minimum liability
for general damages in the amount offered. The
whole purpose of the new Rule would be defeated if, despite not
accepting such
an offer, a plaintiff could, in effect, enforce it if
unable to prove damages in excess of the sum offered.
In addition, the offer was of a sum of R126 611.12
in settlement of the claim as a whole. This was the amount which the
defendant
acknowledged he was liable to pay if the offer was
accepted. It was a single, indivisible, offer to settle the entire
action.
The breakdown between special and general damages gave no
more than an indication as to how the amount offered had been
calculated.
Even if it were held that the offer amounted to an
acknowledgement of liability, therefore, there is no basis to
construe the
offer as three offers; one to pay the total damages
mentioned, one to pay special damages in the mentioned amount, and
one to
pay general damages in the sum of R110 000.
In the result, the submission of the plaintiff must
therefore be rejected. The plaintiff is only entitled to the damages
proved
at the trial and arrived at as set out above.
As regards costs, the plaintiff has succeeded in his
claim. The amount to be awarded exceeds that offered in settlement
and no
factors were brought to my attention which might influence me
to exercise my general discretion against awarding costs to the
plaintiff or otherwise ameliorating a costs order against the
defendant. On the contrary, the defendant conceded that, if I found
that damages were proved in excess of the sum offered in the
Rule 34(1) offer, the plaintiff would be entitled to the costs.
I agree that the costs must follow the result. The plaintiff
requested various specific orders for costs and these were not
opposed by the defendant and are in any event appropriate in the
circumstances.
In the result, the defendant is directed to pay to the
plaintiff:
The sum of R150 051.59;
Interest on that sum at the rate of 15.5% per annum
from 6 February 2007 to date of payment;
Costs of suit, such costs to include:
(a) The qualifying and attendance costs relating to Dr
McGarr and Mr Swanepoel;
(b) The qualifying costs relating to the actuary
utilised by the plaintiff;
(c) The costs arising from the attendance of Mr
Swanepoel at the examination of the minor child N Visser by Dr
Bustin;
(d) The costs of the attendance at the trial of the
plaintiff’s Pretoria attorney.
DATE OF HEARING: 12 and 13 March 2012
DATE OF JUDGMENT: 29 March 2012
FOR THE PLAINTIFF: GF Heyns, instructed by BEYERS &
DAY INC. locally represented by AUDIE, BOTHA & CO.
FOR THE DEFENDANT: MA Oliff, together with Z Oliver,
instructed by JOHNSTON & PARTNERS.
1
South
African Railways and Harbours v Edwards
1930 AD 3
at 9-10 where
de Villiers CJ said the following: ‘[I]t may serve a useful
purpose if I attempt to summarize the relevant
principles of our law
laid down in the more authoritative cases. They are the following.
(1) The
actio de pauperie
is in full force in South Africa.
But the right to surrender the offending animal in lieu of paying
damages -
noxae deditio
- is obsolete with us. (2) The action
is based upon ownership. The English doctrine of
scienter
is
not a portion of our law. (3) The action lies against the owner in
respect of harm (
pauperies
) done by domesticated animals,
such for instance as horses, mules, cattle, dogs, acting from inward
excitement (
sponte feritate commota
). If the animal does
damage from inward excitement or, as it is also called, from vice,
it is said to act
contra naturam sui generis
; its behaviour
is not considered such as is usual with a well-behaved animal of the
kind. (4) On the other hand, if the act was
not due to vice on the
part of the animal but was provoked-in other words if there has been
concitatio
, the action does not lie. (5) Dating back as this
form of remedy does to the most primitive times, the idea underlying
the
actio de pauperie
, an idea which is still at the root of
the action, was to render the owner liable only in cases where so to
speak the fault lay
with the animal. In other words for the owner to
be liable, there must be something equivalent to
culpa
in the
conduct of the animal.’
2
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD 194
at 199.
3
Hulley
v Cox
1923 AD 234
at 246.
4
Sigournay
v Gillbanks
1960 (2) SA 552
(A) at 556A-C.
5
Loc
cit. See also
Capital Assurance Co Ltd v Richter
1963 (4) SA
901
(A) at 906A-G.
6
1980
3 QOD 102 (W). (All references to QOD are to various volumes of
Corbett & Buchanan:
The Quantum of Damages in Bodily and
Fatal Injury Cases
, in its later volumes referred to as Corbett
and Honey. The volume number appears after the date.)
7
1971
2 QOD 227 (E).
8
1969
2 QOD 9 (W).
9
1976
2 QOD 562 (N).
10
1992
4 QOD G3-6 (D)
11
At
B1-240B.
12
1969
(4) SA 360
(E) at 364E-F.
13
In
Natal Joint Municipal Pension Fund v Endumeni
Municipality
(920/2010)
[
2012]
ZASCA 13
(15
March 2012) para 18.
14
1948
(3) SA 296
(A) at 301.
15
Judicieele
Praktyk
Vol 1. Book 2, 4, 9.
16
Klein
at 301-302 (his emphasis). It appears, with respect, therefore, that
Cameron J overstated the position when he said that the
‘procedure
for paying a sum of money into Court was unknown to the Roman-Dutch
law’ in
Turbo Prop Service Centre CC v Croock t/a Honest
Air
1997 (4) SA 758
(W) at 762C-D where he dealt with
Klein
.
17
At
305.
18
Per
Williamson JA in
Ngwanlangwala v Auto Protection Insurance Co Ltd
(In liquidation)
1965 (3) SA 601
(A) at 607B-C.
19
Part
36.13 of the CPR provides, in subparagraph (1), ‘A Part 36
offer will be treated as ‘without prejudice (GL) except
as to
costs’.’
20
Footnote
12 above.
21
By
way of GN2164 of 2 October 1987 and by GN2642 of 27 November 1987.
22
Footnote
18.
23
At
609G-H.
24
Footnote
14.
25
19
SC 517.
26
Cited
in
Klein
as CPD, January 7,1930. The matter was taken on
appeal in
Versfeld v South African Citrus Farms Ltd
1930 AD
452.
On appeal the defendant consented to judgment being increased
to the sum of £600 but asked for costs of the action from the
date of the original payment into court and costs of the appeal from
the date of the tender of the consent to judgment. The judgment
was
increased accordingly and the costs order sought by the defendant
was granted. The reasoning on appeal does not in any way
deal with
or detract from the dictum of the trial court cited with approval in
Klein
.
27
As
was said in
Van Rensburg
. In
Harris v Pieters
1920 AD
644
, the court held that where a payment was made into court with an
attempt to attach a condition, the condition could be rejected
and
the money retained and the balance claimed. If, however, a tender
which had been accompanied by money was refused, the money
had to be
returned. This followed
Odendaal v du Plessis
1918 AD 470
where a tender was made in full settlement, the court holding that
this amounted to its acceptance being conditional on the creditor
abandoning the balance of his claim.
28
I
leave aside the issue that the plaintiff does not rely on the offer
as giving rise to liability in its cause of action. The
nature of
liability where an offer to settle has been accepted need not detain
me but is not uncomplicated. In
Orton v Collins & another
[2007] EWHC 803
;
[2007] 3 All ER 863
(Ch) the issue arose whether an offer accepted
under Part 36 of the CPR brought into being a contract which could
be enforced.
It was held that p
arties before
the court who chose to employ machinery prescribed by the court’s
rules in order to settle their dispute were
to be taken to submit to
the consequences, namely that if the offer were accepted the court
could enforce it. A party who made
a valid CPR Pt 36
offer, or one who accepted it, had to be taken to be binding himself
to submit to those consequences.
The obligation that arose was not
primarily contractual but was
sui
generis
. It was part of the court’s
inherent jurisdiction regulated and clarified in Pt 36 to
fulfil the judicial function
of administering justice according to
law in a regular, orderly and effective manner and the
administration of justice included
addressing the settlement of
disputes.