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[1984] ZASCA 139
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Santam Insurance Ltd. v Taylor (434/1983) [1984] ZASCA 139; [1985] 1 All SA 378 (A) (23 November 1984)
LL
Case No. 434/1983
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
SANTAM INSURANCE LIMITED
Appellant
and
REGINALD ALAN
TAYLOR
Respondent
CORAM
: JANSEN, KOTZé, BOTHA JJA,
WESSELS et VIVIER AJJA
HEARD
: 1 NOVEMBER 1984
DELIVERED
: 23 NOVEMBER 1984
JUDGMENT
/
BOTHA JA
...
2.
BOTHA JA
:-
This is an appeal against a judgment upholding an exception taken by the
respondent (as plaintiff) against a special plea filed by
the appellant (as
defendant) in an action instituted by the former against the latter in the
Witwatersrand Local Division. The action
was brought by the respondent in his
personal capacity and in his capacity as father and natural guardian of his
minor daughter,
Nicola Taylor. He claimed damages from the appellant arising out
of bodily injuries sustained by his daughter on 17 April 1982, when
a motor
vehicle in which she was a passenger left the road on which it was being driven
and overturned. It was alleged that the accident
was caused by the negligence of
the driver of the vehicle and that the vehicle was at the time insured in terms
of the Compulsory
Motor Vehicle Insurance Act 56 of 1972 with the
/appellant ...
3.
appellant, which is an authorized insurer in
terms of the Act. In regard to the damages claimed the respondent's particulars
of claim
contained the following allegations:
"8. As a result of the said injuries, the Plaintiff has suffered the
following damages:-
(a) In his personal capacity:
(i) Hospital expenses (Provin
cial hospitals) R35,00
(ii) Hospital
expenses (other
hospitals) 1 247,78
(ill) Medical expenses 2
338,00
TOTAL R3 620,78
(b) In his capacity as father and natural
guardian of Nicola Taylor:
(i) Estimated future medical
expenses R15 000,00
(ii) Estimated loss of earning
capacity 20 000,00
(iii) General damages for pain and suffering, disfigurement, loss of
amenities of life and disability 35 000,00
TOTAL R70 000,00
/9. ...
4.
9. In terms of Section 22 of Act No. 56
of 1972, the Plaintiff hereby reduces its (sic) claim in respect of 8 (a) and
8
(b) (i) and (ii) to a total amount of
R12 000.00 being made up of the amount of R3 620.78 claimed in respect of 8
(a) and R8 379.22 in respect of 8 (b)
(i) and (ii)."
Consequently the respondent claimed, in his personal capacity, payment of the
sum of R3 620,78, and in his capacity as father and
natural guardian of Nicola
Taylor, payment of the sum of R43 379,22.
The appellant's special plea was directed at the respondent's claim in his
representative capacity for payment of general damages
in the sum of R35 000, as
set forth in para 8 (b) (ii) of the particulars of claim. The relevant
paragraphs of the special plea read
as follows:
"3. Die minderjarige was 'n passasier binne die versekerde voertuig.
/4. ...
4. (a) Die eiser maak geen bewerings
dat die minderjarige 'n passasier binne die versekerde voertuig was soos na
verwys in artikel 22 (1) (a), (b) of (c) van die Wet nie.
(b) Die minderjarige
was 'n passasier binne die versekerde voertuig soos na verwys in artikel 22 (1)
(d) van die Wet.
5. Volgens artikel 22 (1) (d) gelees met
artikel 22 (1) (bb) van die Wet
is 'n
eis om algemene skadevergoeding uitge-
sluit.
6. In die vooropstelling is die eiser in
sy verteenwoordigende
hoedanigheid nie
geregtig op algemene skadevergoeding
van R35 000,00 soos
geeis of geensins
nie."
The special plea concluded with a prayer that the respondent's claim in his
representative capacity for general damages in the sum
of R35 000 be dismissed
with costs.
The respondent's exception to the special plea
/was ...
6.A
was based on the ground that it lacked averments
necessary to sustain a defence, inasmuch as it was "assumed" in para 5 thereof
that
section 22 (1) (d) read with section 22 (1) (bb) of the Act prohibited a
claim in respect of general damages,
"whereas no such prohibition in respect of general damages is contained in
the said sections."
The matter came before HEYNS J, who allowed the exception and dismissed the
special plea with costs. It is against that order that
the appellant appeals to
this Court, leave to do so having been granted by the learned Judge in the Court
a quo
.
It will be convenient to quote the whole of section 22 (1) of the Act, as
substituted by section 2 (a) of Act 23 of 1980, but I preface
the quotation with
a brief reference to the provisions of section
/21 (1) ...
6.B
21 (1) of the Act. In terms of the
last-mentioned section, in so far as it may be relevant in the present case, an
authorized insurer
which has insured a motor vehicle is obliged to compensate
any person whatsoever (the third party) for any loss or damage which the
third
party has suffered as a result of any bodily injury to himself or the death of
or any bodily injury to any person caused by
or arising out of the driving of
the insured motor vehicle by any person during the period over which the
insurance extends, if the
injury or death is due to the negligence of the driver
of the motor vehicle. Section 22 (1), as substituted by the amending Act of
1980, reads as follows (the reader is advised to take a deep breath):
"The liability of an authorized insurer in connection with any one occurrence
to compensate a third party for any loss or damage contemplated
in section 21
which is the re-suit of any bodily injury to or the death
/of ...
7.
of any person who, at the time of the occurrence which caused that injury or
death -
(a) was being conveyed in the motor vehicle
in question -
(i) for reward; or
(ii) in the course of the business
of the owner of that motor
vehicle; or (iii) in the case of an employee of the driver or owner of that
motor vehicle, in respect of
whom sub-section (2) does not apply, in the course
of his employment; or
(iv) for the purposes of a lift club
where that motor vehicle is a motor car insured in the prescribed manner in
terms of this Act for those purposes; or
(b)
was in the act of entering
or mounting the motor vehicle in question for the purpose of being conveyed as
referred to in paragraph
(a); or
(c)
was in
the act of alighting from the motor vehicle in question after having been
conveyed as referred to in paragraph (a); or
(d)
was being conveyed in the motor
vehicle
in question under circumstances other than
the circumstances referred to in paragraph (a) or was in the act of entering
or
/mounting ...
8.
mounting the motor vehicle in question for the purpose of being so conveyed
or was in the act of alighting from the motor vehicle
in question after having
been so conveyed,
shall be limited, except where the person concerned was being conveyed in the
motor vehicle in question whilst proceeding on authorized
leave or returning to
his base from such leave during the period in which he renders military service
or undergoes military training
in terms of the Defence Act, 1957 (Act No. 44 of
1957), or was in the act of entering or mounting the motor vehicle in question
for
the purpose of being so conveyed or was in the act of alighting from the
motor vehicle in question after having been so conveyed
-
(aa) in any case referred to in paragraph (a), (b) or (c), to the sum of
twelve thousand rand in respect of any bodily injury to or
the death of any one
such person;
(bb) in any case referred to in paragraph (d), to the sum of twelve thousand
rand in respect of loss of income or of support and the
costs of accommodation
in a hospital or nursing home, treatment, the rendering of a service and the
/supplying ...
9.
supplying of goods resulting from the death of or bodily injury to any one
such person, excluding the payment of compensation in respect
of any other loss
or damage,
but exclusive of the cost of recovering the said
compensation."
In an attempt to escape from the prolixity which disgraces this piece of
legislation I shall take a number of short cuts when referring
to its
provisions. I shall refer to persons who are conveyed in a motor vehicle as
"passengers". To a person who, in the words of
paragraph (d),
"was being conveyed in the motor vehicle in question under circumstances
other than the circumstances referred to in paragraph (a)"
I shall refer as "an ordinary passenger", in contradistinction to the other
kinds of passenger mentioned in subparagraphs (i), (ii),
(iii) and (iv) of
paragraph (a) and
/the ...
10.
the persons rendering military service or
undergoing military training referred to in the portion of the section following
upon the
word "except", between paragraphs (d) and (aa). 1 shall omit any
reference to persons entering or mounting or alighting from a motor
vehicle. 1
shall refer to the words in paragraph (bb),
"loss of income or of support and the costs
of accommodation in a hospital or nursing home, treatment, the rendering of a
service and the supplying of goods"
as "the items of special damage mentioned", and to compensation in respect
thereof as "special damages". To the expression at the
end of paragraph
(bb),
"compensation in respect of any other loss or damage"
I shall refer as "general damages". 1 should make it
/clear ...
11.
clear that I use these terms solely for the sake
of ease of reference and without suggesting that they are legally or notlonally
accurate
descriptions of the concepts involved. Finally, I shall refer to the
concluding words of paragraph (bb),
"excluding the payment of compensation in respect of any other loss or
damage"
as "the exclusionary phrase".
The fate of the exception to the special plea falls to be decided upon the
footing that the respondent's minor daughter was an ordinary
passenger in the
insured vehicle and that the claim in issue for payment of the sum of R35 000 is
a claim for general damages. The
vital question is whether that claim is allowed
or disallowed by virtue of the exclusionary phrase in section 22 (1) (bb). HEYNS
J answered the
/question ...
12.
question in favour of the respondent because he
found that "the plain meaning" of the words in the exclusion-ary phrase was that
a
claim for general damages was "specially excluded" from the limitation placed
on a claim for special damages. The gist of his judg-ment
is summarised in the
DIGEST OF CASES ON APPEAL appearing in 1984 (2) SA at 929, and portions of his
judgment are quoted in
Mali v Shield Insurance Co Ltd
1984 (2) SA 798
(SECLD) at 807 E - 808 B. In the latter case KROON AJ disagreed with HEYNS J's
interpre-tation of section 22 (1) (bb) and decided
that "the plain meaning" of
the words used in the section was exactly the opposite of that postulated by
HEYNS J. The conflicting
judicial views appear from the following passage in the
judgment of KROON AJ in
Mali
's case at 808 B-D:
"As appears from the above extract HEYNS J
/interpreted ...
13.
interpreted s 22 (1) (bb) as according to
a claimant falling within the ambit of s 22 (1) (d) the right to claim in
respect of all damage suffered by him whatever the nature
thereof subject to the
qualification that insofar as the claim relates to the items of patrimonial loss
specifically mentioned in
the section referred to by HEYNS J as 'special
damages', that portion of the claim is limited to a maximum of R12 000. With
respect,
I am unable to agree with this reasoning. In my view the plain meaning
of the words used in s 22 (1) (bb) is that they accord to
a claimant falling
within the purview of s 22 (1) (d) the right to claim only in respect of certain
specified items of damage, i
e the items of pecuniary loss specifically
mentioned in s 22 (1) (bb), and subject to a maximum of R12 000, but that they
deny the
claimant the right to claim in respect of any other damage."
Searching for the intention of the Legislature on the question at issue
merely by studying the words used in the section is to my
mind an unrewarding,
un-edifying and finally abortive exercise. This is so because the section as a
whole is so convoluted and the
syntax so clumsy that the setting in which
the
/exclusionary ...
14.
exclusionary phrase of paragraph (bb) appears
renders it impossible to ascertain with any degree of certainty to what part of
the
preceding provisions the exclusion-ary phrase was intended to be related.
One is left with the impression that when the draftsman
came to write the
exclusionary phrase he had lost his way in the maze of verbiage, with the result
that a scrutiny of the language
he used fails to reveal his intention.
It would serve no useful purpose to enter upon a detailed discussion of the
linguistic and grammatical analyses to which the section
was subjected in the
arguments of counsel for the appellant and counsel for the respondent, for the
solution to the problem is not
to be found in that direction; in my opinion when
all is said and done upon that score the conclusion is unavoidable that the
exclusionary
phrase is linguistically and grammatically susceptible of bearing
both
/the ...
15.
the meaning contended for on behalf of the
appellant (in support of the decision of KROON AJ in
Mali
's case
supra
) and the meaning contended for on behalf of the respondent (in
support of the decision of HEYNS J in the present case). A brief reference
to
the main points of the arguments will suffice to explain that conclusion.
Both counsel referred us to dictionary definitions of the meaning of the verb
"exclude". In my view this line of enquiry is not helpful.
The difficulty of
interpretation in this case does not arise out of any doubt as to the meaning of
the word "exclude" as' such. The
source of uncertainty is the failure of the
Legislature to specify the link between the concept of that which is to be
excluded,
i e the payment of general damages, and the concept of that from which
such payment is to be excluded,
/which ...
16.
which could be either the liability of the
insurer to compensate referred to in the opening part of the section, or the
limitation
on such liability in respect of the items of special damage mentioned
in paragraph (bb). It is the choice between the latter two
pos-sibilities that
causes the difficulty of interpretation.
Counsel for the appellant argued that the interpretation contended for on
behalf of the respondent could not readily be made to fit
the syntax of the
section. With reference to the submission in the written heads of argument of
the respondent's counsel that the
word "excluding" was a participial adjective
qualifying the noun "twelve thousand rand", the appel-lant's counsel argued that
the
alleged adjective did not follow directly on the noun and that this
construc-tion was accordingly too cumbersome to be acceptable.
I agree that such
a counstruction is clumsy, but it
/seems ...
17.
seems to me that it is no more clumsy than the
construction which is required in respect of the interpretation contended for on
the
appellant's behalf: on that interpretation "excluding" must be understood in
an adverbial sense, qualifying the verb "shall be limited",
which is positioned
even further away from "excluding" than "twelve thousand rand". The respondent's
submission in regard to the
adjectival quality of "excluding" seems to derive
some support from the use of the corresponding expression "exclusive of" in the
final part of the section, following upon paragraph (bb), which I consider to be
adjectivally connected with "twelve thousand rand"
in both paragraphs (aa) and
(bb). In this regard counsel for the appellant pointed to the word "but", which
conjoins paragraph (bb)
and the final part of the section, and contended that
that showed that "exclusive of" was intended to be used in a sense
/different ...
18.
different from "excluding", with the consequence
that while the costs of recovering the compensation were recoverable, general
damages
were not. That argument, however, seems to me to be largely neutralised
by the fact that the word "but" appears to be merely an historical
relic
retained from the section in its original, relatively simple, form, before the
introduction of various amendments, and by the
fact that it refers back to both
paragraph (aa) and paragraph (bb), so that I do not think that one can
confidently draw inferences
as to the Legislature's intention from the presence
of the word "but". I should add that in the course of his argument before this
Court counsel for the respondent jettisoned his submission regarding the
adjectival use of "excluding" in relation to "twelve thousand
rand" in favour of
a contention that "excluding" referred to the whole of the preceding
limitation
/in ...
19.
in respect of special damages. This merely
underscores the difficulties of interpretation which the Legislature has caused
by this
inept piece of draftsmanship.
Counsel for the appellant relied on the Afrikaans text of the section,
contending that the meaning of the Afrikaans wording was so
clear and
unambiguous that the English text, which is the signed text of the Act, had to
be given a corresponding meaning (which
it was capable of bearing) in accordance
with the principle discussed in cases such as
S v Moroney
1978 (4) SA 389
(A) at 407 F - 408 G. The Afrikaans wording is:
"Die aanspreekllkheid van 'n bevoegde ver-
sekeraar
is, beperk
tot die som van twaalfduisend
rand ten opsigte van verlies aan in-
komste "(and the other items
of special damage mentioned)" ,
/sonder ...
20.
sonder betaling van vergoeding ten op-sigte van
enige ander verlies of skade,
Although I am of the view that on the Afrikaans wording the meaning contended
for by the appellant is the more natural interpretation
of the language used, I
do not consider that the position is so clear and unambiguous as counsel for the
appellant would have it.
It seems to me that the Afrikaans version is also
fairly capable of bearing the meaning contended for by the respondent, as the
English
version would be if the word "without" were to be substituted for the
word "excluding". Accordingly I do not think that the problem
of interpretation
can be resolved by invoking the principle relied on by counsel for the
appellant.
Counsel for the respondent on the other hand argued that the English wording
of the section was
/incapable ...
21 .
incapable of bearing the meaning contended for
by the appellant. He submitted that the exclusionary phrase could not be
interpreted
in the sense of disallowing a claim for general damages without
changing the words used. I do not agree. The word "excluding" can
be read as
being connected with "shall be limited", in the sense contended for by the
appellant. Such a construction no doubt involves
a degree of clumsiness, but to
postulate the reverse of what I have said above: such a construction seems to be
no more clumsy than
that which is required on the interpretation contended for
on behalf of the respondent. Moreover, the words "the payment of", following
upon "excluding", tend, I think, in some small measure to favour the appellant's
construction rather than the respondent's.
Counsel for the respondent gave us a number
/of ...
22.
of examples in which "excluding" in everyday
speech was used in a sense corresponding to that in which he urged the word was
used
in the section. I do not consider such examples to be helpful. They show no
more than that in ordinary parlance the word can be used
in the sense contended
for by him. It does not follow that the Legislature used it in that sense in
this section. Counsel referred
also to the criterion of "ordinary colloquial
speech" mentioned in
Association of Amusement and Novelty Machine Operators
and Another v Minister of Justice and Another
1980 (2) SA 636
(A) at 660 F,
and, as I understood him, argued that "the man in the street" would have no
hesitation in giving to the language of
the Legislature the meaning contended
for by the respondent. In my opinion the man in the street would be at least as
perplexed by
the language used by the Legislature as is the man on
/the ...
23.
the Bench who is writing this judgment.
Finally, on this aspect of the matter, the question was debated during
argument whether or not the exclusionary phrase would be superfluous
if the
intention of the Legislature was to disallow a claim for general damages. I
agree with the argument of counsel for the appellant
that on the meaning
contended for by him there is no superfluity: had paragraph (bb) merely imposed
the limitation on the amount
recoverable in respect of the items of special
damage mentioned, without more, it might well have been thought that a claim for
general
damages was maintainable by virtue of section 21 (1) of the Act, to
which I referred earlier, and which provides in wide terms for
the liability of
an authorized insurer to pay compensation for "any loss or damage" suffered by a
third party. Accordingly, if it
wished to disallow such
/a ...
24.
a claim, it was necessary for the Legislature to
add some kind of exclusionary provision to that effect.
Having now concluded my survey of counsel's arguments regarding the wording
of the section, and coming out by the same door as in
I went, I proceed to the
next stage of the enquiry, which arises out of a second string that counsel for
the appellant had to his
bow. He argued that at best for the respondent the
language of the section was ambiguous, at least to the extent of leaving the
intention
of the Legislature uncertain, and that it was permissible to have
regard to the historical background of this legislation "as part
of the
contextual scene in which the provisions in question fall to be interpreted" (I
quote from the written heads of argument),
and in this regard he referred to
Jaga v Donges N O and Another
1950 (4) SA 653
(A) at 662 G - 664 H and
R v Shole
1960
/(4) ...
25.
(4) SA 781 (A) at 785 C - D. I agree with this
argument. Indeed, in a case such as the present, where the uncertainty of the
Legislature's
intention relates to a recent amendment of an enactment which has
been on the statute book for many years and which has been amended
on a number
of previous occasions, the historical perspective can be of great assistance in
resolving problems of interpretation.
And that is certainly the position in the
present instance: while the wording of section 22 (1) (bb) leaves the intention
of the
Legislature shrouded in obscurity, an examination of the historical
background of the section leaves no doubt as to what was intended.
Compulsory third party insurance was first introduced in this country by
means of Act 29 of 1942. The first part of section 11 (1)
of the 1942 Act
contained provisions substantially similar to those now
/appearing ...
26.
appearing in section 21 (1) of Act 56 of 1972.
Section 11 (1) of the 1942 Act contained a proviso, paragraphs (iii) and (iv) of
which
were the predecessors of sections 22 (1) and 23 (b) of the 1972 Act in
their original form. Paragraph (iii) of section 11 (1) of
the 1942 Act provided
that an insurance company (then called a registered company, now called an
authorized insurer) was not liable
to compensate any person for loss or damage
suffered as a result of bodily injury to or the death of any person who at the
time of
the relevant occurrence was being conveyed in an insured motor vehicle
otherwise than for reward and otherwise than in the course
of the business of
the driver or owner of the motor vehicle in question and otherwise than in the
course of his employment as servant
of the driver or owner of the vehicle.
(Again I omit any reference to persons entering, mounting or
/alighting ...
27.
alighting from an insured vehicle). Paragraph
(iv) limited the liability of a company in connection with any one occurrence to
pay
compensation to a third party for any loss or damage resulting from bodily
injury to or the death of any person who at the time of
the relevant occurrence
was being conveyed for reward or in the course of the business of the driver or
owner of the motor vehicle
in question, to the sum of two thousand pounds in
respect of injury to or the death of any one such person or to a sum of ten
thousand
pounds in all in respect of injury to or the death of any number of
such persons (but in either case exclusive of the costs of recovering
the
compensation). For the sake of completeness I should mention that in terms of
paragraph (ii) a company was not liable to compensate
an employee of the driver
or owner of the motor vehicle in question or a dependant of such
/employee ...
28.
employee for any loss or damage for which the
employee or dependant was entitled to compensation under the workmen's
compensation
legislation.
These provisions reveal that from the beginning the Legislature had a clear
policy in regard to the liability of third party insurance
companies to pay
compensation in respect of loss or damage resulting from bodily injury to or the
death of passengers being conveyed
in insured motor vehicles: while (generally
speaking)compensation in terms of the Act could be claimed in respect of all
persons
outside an insured vehicle, the insurance companies were not liable to
pay compensation in respect of passengers being conveyed in
an insured vehicle,
except in the case of a limited number of specifically defined categories of
passengers. At the outset these
were passengers who were being conveyed (a) for
reward, or (b) in the
/course ...
29.
course of the business of the driver or owner of
the insured vehicle, or (c) in the course of their employment as servants of the
driver or owner of the insured vehicle. In regard to (a) and (b) the liability
of insurance companies was limited to specific maximum
amounts of compensation
in the manner I have indicated. These maximum amounts were fixed without
reference to any particular kinds
of damage or damages.
Section 11 (1) of the 1942 Act was amended on a number of occasions.
Inter
alia
the liability of an insurance company in respect of an employee of the
driver or owner of an insured motor vehicle who was entitled
to compensation
under the Workmen's Compensation Act 30 of 1941 was more comprehensively
circumscribed in paragraph (ii) of the proviso
and paragraph (iv) was amended to
include within the ambit of the limitation on the extent of a company's
/liability ...
30.
liability a reference to an employee of the
driver or owner in respect of whom paragraph (ii) did not apply. Paragraph (iv)
was also
amended to increase the maximum amounts of compensation payable, with
the result that before the repeal of the 1942 Act these amounts
were R8 000 in
respect of any one of the persons mentioned and R40 000 in respect of any number
of such persons. Paragraph (iii)
remained unchanged. It is not necessary to
enter upon the details of the amendments that I have mentioned. They reveal that
in all
its fundamental aspects the policy of the Legislature regarding the
payment of compensation in relation to passengers being conveyed
in an insured
motor vehicle, as stated above, remained unchanged.
The policy of the Legislature was reaffirmed when the 1942 Act was repealed
and replaced by Act 56 of 1972. Paragraphs (iii) and (iv)
(the latter as
/amended ...
31.
amended) of section 11 (1) of the 1942 Act were
in substance re-enacted in sections 23 (b) and 22 (1) respectively of the 1972
Act,
while provisions substantially similar to those in paragraph (ii) of
section 11 (1) of the earlier Act found their way into section
22 (2) of the new
Act. The three previously existing categories of passengers in respect of whom
alone compensation could be claimed
were now specifically mentioned in
sub-paragraphs (i), (ii) and (iii) of section 22 (1) (a), read with
sub-paragraphs (i), (ii) and
(iii) of section 23 (b). The maximum amounts of
compensation payable in respect of such passengers were increased to R12 000 in
respect
of one person and R60 000 in all in respect of any number of such
persons.
Act 69 of 1978 amended Act 56 of 1972 in many respects, but for present
purposes only those amendments
/are ...
32.
are relevant which related to an authorized
insurer's liability to pay compensation in respect of passengers in an insured
vehicle.
In that regard liability was narrowed in one respect and widened in
another. It was narrowed by removing from the second category
of passengers in
respect of whom compensation (to the limited extent laid down) could be claimed
persons who were being conveyed
in the course of the business of the driver of
an insured vehicle; accordingly those who remained in that category were persons
conveyed
in the course of the business of the owner of the vehicle. Liability
was widened by the addition to the three favoured categories
of passengers
specified in section 22 (1) (a) of a fourth category: persons who were conveyed
in an insured vehicle in prescribed
circumstances while liable to render service
or undergo military training in terms of the Defence Act 44 of 1957
/during ...
33.
during their first period of service of not less
than 12 months. These changes were brought about by the amendments of sections
22
(1) (a) and 23 (b) of the 1972 Act which were contained in sections 9 (a),
(b) and (c) and 10 (1) (a), (b) and (c) of the 1978 amend-ing
Act. Apart from
those changes, the policy of the Legislature in connection with the liability of
an authorized insurer to pay compensation
in respect of passengers in an insured
vehicle remained the same.
In 1980, by section 2 (a) of Act 23 of 1980, section 22 (1) of Act 56 of 1972
was replaced by the section with which this judgment
is concerned and which I
quoted earlier. The changes brought about by the amendments incorporated in the
new section now sub-stituted
for the former section 22 (1) as amended re-flect
wide-ranging changes in the policy of the Legis-lature concerning an authorized
insurer's liability
/to ...
34.
to pay compensation in respect of passengers in
an insured vehicle. The four categories of favoured passengers previously
specified
in paragraph (a) were altered by taking out one and adding another..
The one taken out was elevated to a specially favoured category
of its own:
persons rendering military service or undergoing military training. By virtue of
that part of the section which appears
after the word "except" between
paragraphs (d) and (aa) (read with sections 21 (1) and 23 (b), to the latter of
which I shall refer
presently) unlimited compensation is recoverable in respect
of such passengers in the circumstances mentioned in the section. (It
may be
noted in passing that the wording of this part of the section was amended by
section 1 of Act 4 of 1983, but nothing turns
on that for present purposes). The
category which was added is that which is contained in
/sub-paragraph ...
35.
sub-paragraph (iv) of paragraph (a): passengers
being conveyed for the purposes of a lift club where the motor vehicle concerned
is
insured in the manner prescribed in terms of the Act for those purposes.
Liability in respect of the four categories of passengers
specified in paragraph
(a) is still limited, in terms of paragraph (aa), to R12 000 in respect of
injury, to or the death of any
one such person, but the previously existing
further limitation on the maximum amount recoverable in all in respect of any
number
of such persons (R60 000) was done away with. Paragraph (aa), in
conformity with the previously existing legislation, does not differentiate
between various kinds of damage or damages. The most fundamental change in
policy, however, is reflected in paragraphs (d) and (bb).
By virtue of paragraph
(d) liability was extended to allow a claim in respect of an ordinary
/passenger ...
36.
passenger. At the same time such liability was
limited by virtue of paragraph (bb), which links the maximum amount recoverable
in
respect of one such person (R12 000) to the items of special damage
mentioned, "excluding" the payment of general damages. Finally,
the only
categories of passengers in respect of whom no compensation at all is now
payable are those mentioned in section 23 (b),
as introduced by section 3 of Act
23 of 1980: passengers conveyed for reward on a motor cycle and passengers who
are members of the
household, or responsible in law for the maintenance, of the
driver of an insured vehicle.
The above survey of the history of section 22 (1) provide a number of clear
clues to the intention of the Legislature on the question
at issue in this case.
In the 1980 amendments the liability of an authorized insurer was extended for
the first time
/in ...
37.
in 38 years to cover a claim for compensation in
respect of bodily injury to or the death of an ordinary passenger. This change
in
the policy of the Legislature was obviously one with far-reaching
consequences. Before 1980 claims in respect of passengers were
always restricted
to a limited number of specified categories of passengers. In respect of one
particular category which was added
to the number in 1980, viz passengers
conveyed for the purposes of a lift club, it was required that the motor vehicle
concerned
should be insured in a particular manner, as prescribed in terms of
the Act. In respect of all the special categories, other than
ordinary
passengers, liability was always limited to a specific amount, irrespective of
the nature of the loss or damage suffered
or the damages claimed, and this
principle remained unchanged in 1980 (except for the falling away of the R60 000
limitation in respect
of any number of such persons, which does not
/affect ...
38.
affect the fundamental principle). It must
obviously have been in the contemplation of the Legislature that the extension
of liability
to cover claims in respect of ordinary passengers would impose a
substantially increased financial burden on authorized insurers.
In all these
circumstances it is in the highest degree unlikely that the Legislature would
have intended to allow claims for general
damages in respect of ordinary
passengers without placing any limitation at all on the amount of compensation
recoverable in respect
thereof. In this regard I agree with the remarks of KROON
AJ in
Mali
's case
supra
at 809 G - H, but I go even further. The
1980 amendments introduced into this area of legislation a novel distinction
between various
kinds of loss or damage: in paragraph (bb) the limitation on an
authorized insurer's liability to the sum of R12 000 was specifically
linked to
the items
/of ...
39.
of special damage mentioned, in
contradistinction to the payment of general damages. Clearly the Legislature
intended to differentiate
between the limitation on liability laid down in
respect of the specified categories of passengers referred to in paragraph (aa)
and that laid down in respect of ordinary passengers referred to in paragraph
(bb). But I find it inconceivable that the Legislature
could have intended to do
so by retaining the limitation on the claims in respect of the former to R12 000
in respect of all loss
or damage and by limiting claims in respect of the latter
to R12 000 in respect of the items of special damage mentioned only, leaving
room for unlimited claims in respect of general damages. Such a situation would
be patently illogical and incongruous. It is far
more likely that the
Legislature intended to place a greater, rather than a lesser, limitation
/on ...
40.
on the liability of an authorised insurer to pay
compensation in respect of ordinary passengers, and that it intended to do so by
limiting liability to R12 000 in respect of the items of special damage
mentioned, while excluding any liability at all in respect
of general
damages.
For the above reasons my conclusion can be stated as follows, discarding now
the short cut terminology used in this judgment and reverting
to the language
used by the Legislature: the liability of an, authorized insurer to compensate a
third party for loss or damage resulting
from bodily injury to or the death of a
person who was being conveyed in an insured motor vehicle and who falls within
the ambit
of section 22 (1) (d) of Act 56 of 1972 as amended is limited to the
sum of R12 000 in respect of the items of loss or damage specifically
mentioned
in section 22 (l) (bb)
/of ...
41.
of the Act as amended (viz loss of income or of
support and the costs of accommodation in a hospital or nursing home, treatment,
the
rendering of a service and the supplying of goods resulting from the death
of or bodily injury to any one such person), in such a
manner that liability for
the payment of compensation in respect of any other loss or damage is
excluded.
It follows that the decision of HEYNS J was wrong and that the appeal must
succeed.
In regard to the costs of the appeal counsel for the respondent argued that
even if successful the appellant should be ordered to
pay the respondent's
costs, on the grounds that this was a test case of great significance to the
appellant and the Motor Vehicle
Insurance Fund, which would have a great bearing
on numerous cases in which they would be involved in the future, that the issue
to be determined was a
/matter ...
42.
matter of public importance, and that the
respondent's interest in the appeal related only to the single claim which he
had brought
in respect of general damages on behalf of his minor daughter. In my
opinion, however, these considerations relied upon by the respondent's
counsel
do not afford a valid ground for depart-
ing from the ordinary rule as to costs and for depriving
the successful appellant of its right to be awarded the costs of the
appeal.
The appeal is allowed with costs, including the costs of two counsel. The
order of the Court
a quo
is set aside and there is substituted
therefor
the following order:
"The exception is dismissed with costs, including the costs of two
counsel."
A.S. BOTHA JA
JANSEN JA
KOTZé JA
WESSELS AJA
CONCUR
VIVIER AJA