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[1992] ZASCA 96
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Guardian National Insurance Company Ltd. v Van Gool NO (330/91) [1992] ZASCA 96; 1992 (4) SA 61 (AD); [1992] 2 All SA 287 (A) (29 May 1992)
Case No 330/91
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
GUARDIAN NATIONAL INSURANCE COMPANY LIMITED
Appellant
and
VAN GOOL N O
Respondent
Coram
: JOUBERT, HEFER, VIVIER, F H GROSSKOPF et
GOLDSTONE J J A.
Heard
: 4 May 1992
Delivered
: 29 May 1992
2
JUDGMENT JOUBERT
, J A :
This is an appeal against a judgment of DE
KLERK J in the Witwatersrand Local Division, dismissing a special plea raised by
the appellant
as defendant in an action instituted by the respondent ("Van
Gool") as plaintiff. Leave to appeal to this Court was granted by the
Court
a
quo
. The judgment of the Court
a quo
has been reported : see
Van
Gool N 0 v Guardian National Insurance Co
Ltd., 1992(1) SA 191 (W),
The material facts in this appeal are common cause. On 7 February 1986
Catherine, a minor daughter (an
infans
approximately 2 years and 3 months
of age) of Van Gool sustained serious bodily injuries when a motor vehicle
driven by him collided
with and ran over her. The motor vehicle was insured by
the appellant in terms of the Compulsory Motor Vehicle Insurance Act No 56
of
1972
3
(the "Act"). Van Gool in his representative capacity as father and natural
guardian of Catherine during September 1989 instituted
an action against the
appellant claiming payment of R937 000-00 compensation in terms of sec 21 of the
Act. According to his particulars
of claim the sum of R937 000-00 comprised the
following amounts: (i) R298 000-00 for estimated future medical and hospital
expenses; (ii) R564 000-00 for estimated future loss of
earnings and loss of earning capacity; and (iii) R75 000-00 being damages for
pain and suffering, loss
of amenities of life, disability and disfigurement. It is to be noted that
there was no claim in respect of medical and hospital expenses
incurred until
the institution of the action.
It was also common cause that Van Gool as father and natural guardian of
Catherine was financially able
4
to support her and to pay all the estimated future medical and hospital
expenses necessitated by the accident.
The appellant as defendant raised a
special plea for the dismissal of the aforementioned claim for future medical
and hospital expenses.
The basis of the special plea is that Van Gool as father
and natural guardian of Catherine owes her a duty of support until her majority
or until she becomes self-supporting, which would include the duty to pay in his
personal capacity all medical and hospital expenses
reasonably incurred in
respect of her, whereas Van Gool in his capacity as her father and natural
guardian has not suffered any damage
in respect of such expenses.
The damages relating to bodily injuries are in practice classified as either
special damages or general damages. See Corbett &
Buchanan,
The Quantum
of Damages
, 2nd ed., 1964 at p 3: "Secondly, as regards bodily injury,
all patrimonial loss actually incurred
by the plaintiff.
5
such as, for example, medical and hospital expenses and past loss of earnings
is treated as
special damage
; while
all non-patrimonial loss
, such
as pain and suffering, loss of amenities, disfigurement and loss of expectation
of life,
and patrimonial loss
,
which up to the time of the hearing has
not yet crystallized in actual loss or disbursement but is still
prospective
,
such as future medical expenses and future loss of earnings
are classified as general damages
. "(My underlining). So too Boberg,
The
Law of Delict
, vol 1, 1984, p 530 and McKerron,
The Law of Delict
,
7th ed., p 117-118.
The issue in this appeal as raised by the special plea is whether or not
Catherine as a minor is in law entitled to claim compensation
for future medical
and hospital expenses as prospective patrimonial loss in respect of her bodily
injuries.
6
Roman Law
.
The
Lex Aquilia
, enacted by a plebiscite
circa
286 B C, awarded the
actio legis Aquiliae
as a delictual and
penal remedy for wrongful and negligent damage to property. Originally this
legal remedy was not available to
a freeman (
liber homo
) who was
wrongfully and negligently wounded because he was not considered to have owned
his own body (D 9.2.13 pr
quoniam dominus membrorum suorum nemo videtur
).
A freeman was not a slave (
servus
or
mancipium
). Inst. 1.3 pr, D
1.5.3. He was either freeborn (
inqenuus
), Inst 1.4 pr, D 1.5.5.2, or
liberated from slavery (
libertinus
), Inst 1.5 pr, D 1.5.7. The Praetor,
however, extended the scope of the
Lex Aquilia
by making the
actio
legis Aquiliae utilis
available to freemen who had been bodily injured but
not killed. D 9.2.13 pr, 33.1, Modderman,
Handboek voor het Romeinsche
Recht
, 5th ed., 1913, vol 3 p 150-151, Buckland,
A Text
-
Book of
Roman Law
, 3rd ed., p 588-589,
7
Van Oven,
Leerboek van Romeinsch Privaatrecht
, 3rd ed., p 353.
In principle the extension brought about by the
actio legis Aquiliae
utilis
in this regard enabled a freeman to recover compensation for
patrimonial loss in respect of bodily injury actually incurred, e.g.
medical
expenses and treatment, loss of earnings, as well as compensation for
prospective patrimonial loss, such as future loss of
earnings. He would,
however, not be entitled to recover compensation for non-patrimonial loss, e.g.
pain and suffering, disfigurement
etc. This result is in conformity with the
nature of the similar compensation which a freeman could recover with the quasi
delictual
actio de rebus effusis vel deiectis
where he was bodily injured
by things thrown or poured from a building onto him in a road as appears from D
9.3.7 (Gaius) which provides
as follows :-
Cum liberi hominis corpus ex eo, quod
8
deiectum effusumve quid erit, laesum fuerit, iudex computat mercedes medicis
praestitas ceteraque impendia, quae in curatione facta
sunt, praeterea operarum,
quibus caruit aut cariturus est ob id, quod inutilis factus est. Cicatricium
autem aut deformitatis nulla
fit aestimatio, quia liberum corpus nullam recipit
aestimationem. (Translation by Watson
et alii:
"When a freeman sustains
bodily injury by something which is thrown down or poured out, the judge takes
account of the cost of medical
attendance and other expenses incurred in his
recovery as well as the value of any employment which he lost or will have to
lose
because of his disability. However, no account is taken of scars or
disfigurement because the body of a freeman is not susceptible
of valuation.").
This result is endorsed by the great German jurist Von Glück
(1755-1831) in his
Ausführliche Erlauterunq der Pandecten
,
1808, vol 10 p 342-343 as follows:
Ist ein freyer Mensch verwundet worden, so kann zwar kein Ersatz fur die ihm
an seinem
9
Körper zugefügte Beschädigung, also kein Schmerzengeld, auch
keine Vergütung wegen entstandener Verunstaltung,
nach dem Römischen
Rechte gefordert werden; sondern dem Beschädigten wird nur eine
actio
Legis Aguiliae utilis
gestattet, vermöge welcher er den Ersatz der Cur
und Heilungskosten, und dessen, was er während der Cur in seinen
Geschäften
versäumt hat, oder noch in der Folge hätte verdienen
können, wenn er nicht durch die erlittene körperliche Verletzung
zur
Arbeit untauglich geworden wäre, fordern kann. The same principles were
applied where
freemen such as
patresfamilias and filiifamilias were wounded
by four-footed animals D
9.1.3.
Who was to claim with the
actio legis
Aquiliae utilis
for patrimonial loss in respect of bodily
injury sustained by a filiusfamilias as a freeman ? The
clear answer is furnished by the Dutch jurist Noodt (1647 -
1725) in his
Opera Omnia
vol 1, (1724),
ad Legem Aquiliam
10
liber Sinqularis
caput 20 , viz. that the paterfamilias should
institute the action because he suffered the patrimonial loss occasioned by the
loss
of the services of the filiusfamilias and by paying for his treatment. The
action was not available to a filiusfamilias because whatever
he acquired was
acquired by his paterfamilias. Noodt states:
Idem jus est, si filiusfamilias vulneratus
sit : placet enim, actionem dari patri;
eaque consegui eum, quod minus ex operis filii sui habiturus sit &
impendia quae pro ejus curatione fecerit, D 9.2.5.6, 6 &
7. Atque id in
patre certum est : sed de filiofamilias videamus, an & ei actio danda sit.
& non placit, ei dandam esse :
quia enim filiusfamilias, quodcumque
adquirit, non sibi, sed patri cujus in potestate est, adquirit ; consequens est,
ut, si quae
de his actio competat, ea patris, non filii, actio intelligatur :
nee ea filius, sed pater, expiriri possit.
11
As regards the contractual capacity of a filiusfamilias and the existence of
his
peculium castrense
and
ceculium quasi
-
castrense
consult
Van Oven,
op.cit
., paras 310 and 319.
Roman-Dutch Law
.
The reception in Roman-Dutch law of the
actio leqis Aquiliae utilis
with its aforementioned extension in regard to patrimonial loss occasioned by
bodily injury is well known. See De Groot (1583-1645)
3.34.2, Matthaeus II
(1601-1654)
De Criminibus
ad D 47 tit 3 cap 1 nr 2, Van Leeuwen
(1626-1682) C.F. 1.5.21.17
, Voet (1647-1713) 9.2.11. The Dutch jurists took a
major step forward by allowing an injured person to claim non-patrimonial loss
for pain (
dolor
, smert), scars (
cicatrices
) and disfigurement
(
deformitas
). See De Groot
loc cit
. Van Leeuwen C.F.1.5.21.18,
Voet 9.1.8, 9.2.11, 9.3.4, Matthaeus II,
op.cit
, ad D 47 tit 3 cap. 3 nr
4, Groenewegen (1613-1652) ad D 9.3.7 nrs 3-4, Van der Keessel (1738-1816) ad
Gr
12
3.34.2,Van der Linden (1756-1835) 1.16.3. In
Hoffa N O v S A Mutual Fire
& General Insurance Co Ltd
, 1965(2) SA 944 (C) Van Winsen J at p 951 E-F
expressed the view that the claim for pain and suffering apparently arose out of
Germanic
and local Netherlandic custom and could be maintained independently of
either the
actio legis Aquiliae
or the
actio injuriarum
. His
attention as to the origin of the said claim had obviously not been directed to
the researches of Prof. Feenstra of the University
of Leiden as published in
1958 Acta Juridica p 27-42 in regard to the origin of the contents of Gr. 3.33.2
and 3.34.2. His conclusion
is that the origin of the contents of these two texts
"niet uitsluitend en rechtstreeks in het Hollandse inheemse recht moet worden
gezocht, voor een belangrijk deel zijn zij door Spaanse natuurrechtelijke
auteurs uit de 16e eeuw geinspireerd, daarnaast wellicht
ook voor een deel door
costumen van andere Noord- en Zuid-Nederlandse gebieden en
13
geleerde commentaren daarop". This Court in
Government of the Republic of
South Africa v Nqubane
, 1972(2) SA 601(A) at p 606 E-H confirmed the
correctness of
Hoffa
's case that it would be "inappropriate to try to
bring such a claim under the umbrella of either the
actio leqis Aquiliae
or the
actio inluriarum
." Finally, in
Administrator
,
Natal v
Edouard
, 1990(3) SA 581 (A) at p 595 G-H this Court affirmed that a claim
for non-patrimonial loss in respect of bodily injury to a person
was an
actio
sui generis
"differing from the Aquilian action only insofar as it is not
from its inception actively transmissible."
The Roman concept of a patriarchal
familia
organised under the aegis
of a paterfamilias with his lifelong
patria potestas
over his
filiifamilias and filiaefamilias was never adopted by the Dutch. De Groot 1.6.3,
Van Leeuwen R H R 1.13.1, Van Der Keessel
ad Gr. 1.6.3; Wessels,
History of
the Roman-Dutch Law
, 1908, p
14
417;
Calitz v Calitz
1939 A D 56
at p 61; Spiro,
Law of Parent and
Child
, 4th ed., p 3. According to Roman-Dutch law parents have parental
authority over their legitimate children during their minority.
De Groot
1.6.1,3, Van der Linden 1.4.1; Lee and Honoré,
Family
,
Things
and Succession
, 2nd ed., para 145. Moreover, by operation of natural law
(
ex jure naturae
) there is a mutual duty of support between parents and
their children in accordance with their respective means. Van Leeuwen R H
R
1.13.7, Voet 25.3.4, 6, 8; Spiro, op.
cit
., pp 385, 403;
Lee and
Honore
, op.
cit
., para. 159. Support includes medicine employed with a
view to the care of health (Voet 25.3.4; Surdus at the end of the 16th century
in his
Tractatus de Alimentis
, 1645, tit 1 quaestio 1 nr 1, tit 4
quaestio 5 nrs 1,3,18).
Natural persons acquire at birth legal capacity (regsbevoegdheid) to have or
posess legal rights and duties. See Boberg,
The Law of Persons and the
Family
,
15
1977, pp 37-41, 529. A minor may at birth or at any time during minority
inherit property and become the owner thereof. He may have
an estate of his own
with an income, as appears from numerous references in the authorities e.g. Van
der Keessel ad Gr 1.6.1,3, Lee
& Honoré, op.cit., para 148 (i) -
(iv), (vi).
In the present matter Catherine has no assets or income of her own. Since she
is not self-supporting to maintain herself, there is
accordingly available to
her a right to claim support from her parents to pay, according to their means,
her prospective medical
and hospital expenses. But as the victim of a delict
perpetrated against her she also has an additional legal right to claim
compensation
from the wrongdoer for general damages relating to non-patrimonial
loss (such as pain and suffering, loss of amenities, disfigurement
and loss of
expectation of life) as well as prospective patrimonial loss such as future
medical and
16
hospital expenses and future loss of earnings. The delictual liability of the
wrongdoer (Van Gool in his personal capacity) arising
from the collision falls
ex lege
on the appellant as an authorized insurer of the motor vehicle in
terms of the provisions of the Act.
A minor has no
locus standi in judicio
to appear on his own in civil
proceedings. Voet 5.1.10, 11, Herbstein & Van Winsen,
The Civil Practice
of the Superior Courts in South Africa
, 1966, p 142. He requires the
assistance of a guardian or a
curator ad litem
in Court.
Wolman and
Others v Wolman
, 1963(2) S A 452 (A) at p 459 A -B. In the case of an
infans
below the age of 7 years the practice is that the guardian or
curator ad litem
should sue or be sued in his representative capacity.
Lee and Honoré, op.
cit
., para 149. That procedure was in fact
adopted in the present matter since Van Gool instituted the action in his
capacity as father
and natural guardian of
17
Catherine. He did not personally claim any relief. The special plea is
directed at the fact that he sued in his representative and
not in his personal
capacity. It is Catherine and not Van Gool who is party to the action as
plaintiff.
Mokhesi N O v Demas
, 1951(2) S A 502 (T) at p 503 E,
Greylinq v Administrator
,
Natal
, 1966(2) S A 684 (D) at p 689
A-B.
Mr Du Toit on behalf of the appellant made several submissions in support of
the special plea.
Firstly he contended, with reliance on a passage in Voet 9.2.11, that Van
Gool was personally liable for future medical and hospital
expenses during the
minority of Catherine and that she had no right to claim compensation in respect
thereof. The particular passage
in Voet in discussing the
actio leqis
Aquiliae utilis
in Roman law reads as follows:
Si filiusfamilias vulneratus sit, non filio
18
sed patri utilem actionem dari placuit, ad impendia in medicos
facta
,
& operarum aestimationem, D 19.2.13.4,' D 9.2.5.3, 6 & 7, D 47.2.56.16,
quod et in filiis annis viginti guinque minoribus
hodie receptum est, Gr 3.34.3.
(My underlining). Gane's translation
:
"If a son of a household has been
wounded it has been held that a beneficial action is granted not to the son but
to his father for
expenses
incurred
on medical men and for the value of
his services. This has also been adopted today in regard to sons less than
twenty-five years
old." (My underlining). In this passage Voet is dealing with a
wounded
filiusfamilias.
The actio leqis Aquiliae utilis
for
damages
actually
incurred
(
facta
) in respect of medical
expenses and
for the value of the services of the
filiusfamilias, i.e. for patrimonial loss actually
incurred
,
was
available to the paterfamilias and not to the
19
filiusfamilias. This passage should be read in conjuction with what Noodt
stated
supra
, viz that the paterfamilias should institute the action
because he suffered the patrimonial loss and that whatever a filiusfamilias
acquired was acquired by his paterfamilias. In the last sentence of this passage
Voet claims that the position is the same in Roman-Dutch
law in respect of
minors, that is to say, in regard to patrimonial loss actually
incurred
by a father in respect of bodily injuries sustained by his minor son. The last
sentence accordingly deals with
past
medical expenses and
past
loss of services. This passage accordingly does not support the contention of Mr
Du Toit that Van Gool was personally liable for
future
medical and
hospital expenses necessitated by the bodily injuries of Catherine during her
minority and that Catherine had no right
to claim compensation in respect of
prospective
patrimonial loss for
future
medical and hospital
expenses. In my judgment
20
there is no merit in this contention of Mr Du Toit.
Secondly, Mr Du Toit
contended that because Van Gool owed Catherine a duty of support during her
minority he was
personally
liable for her
future
medical and
hospital expenses. According to this contention Catherine did not suffer any
loss in respect of future medical and hospital
expenses. The fundamental fallacy
underlying this contention is that it ignores what I have indicated
supra
viz that Catherine has two legal rights i.e. a right to claim support from
her parents according to their means as well a delictual
right against her
wrongdoer to claim compensation for prospective patrimonial loss such as
future
medical and hospital expenses. These two legal rights are
coexistent. The existence of the one does not exclude the other in respect
of a
right to payment of
future
medical and hospital expenses. Her right to
parental support does not deprive her of her delictual right against her
wrongdoer. In
the
21
present matter Van Gool sues in his representative capacity as father and
natural guardian of Catherine who is the plaintiff, as indicated
supra
.
It follows that this contention cannot be accepted.
Finally, Mr Du Toit sought to rely on the judgment of Trollip J in
Schnellen v Rondalia Assurance Corporation of S A Ltd
., 1969(1) S A 517
(W) as authority for his contention that Van Gool was in his
personal
capacity,
and not in his representative capacity as father and natural
guardian, liable for the
future
medical and hospital expenses of
Catherine. This calls for a careful analysis of Trollip J's judgment. Schnellen,
his wife and their
four minor children were injured in a motor collision. He
instituted an action against the registered insurer claiming in his personal
capacity both special and general damages. The special damages were for
patrimonial loss actually incurred by him viz past medical
and hospital
22
expenses and past loss of earnings. The general damages were for
non-patrimonial loss in respect of pain and suffering, loss of amenities,
disfigurement and disablement, as well as general damages for prospective
patrimonial loss in respect of future medical and hospital
expenses. In his
capacity as father and natural guardian he claimed general and special damages
on behalf of his children.
The special damages in respect of his children for
patrimonial loss actually incurred comprised only medical and hospital
expenses
(p 518 A-B). The nature of the general damages in respect of his
children is not revealed in the judgment. The defendant, however,
disputed that
Schnellen could in his representative capacity claim any special damages on
behalf of his children, maintaining that
they were claimable by him only in his
personal capacity (p 518 B-C). At the trial Schnellen sought an amendment of his
pleadings,
excising the claims
23
for
special damages
from the children's action and transferring them
to the claims made in his personal capacity (p 518 C-D). The defendant opposed
the
amendment on certain grounds, including the prescription of the claim in
Schnellen's personal capacity for the children's special
damages. Trollip J
granted the amendment sought. On the issue whether Schnellen in his
personal
capacity
was entitled to claim
special damages
for the medical and
hospital expenses
actually incurred
in respect of his minor children,
Trollip J, in our judgment, correctly held in favour of Schnellen that he was so
entitled (p 518
F-G). It was never in issue in
Schnellen
's case whether
he was entitled in his capacity
as father and natural guardian
to claim
on behalf of his minor children
general damages
comprising
prospective
patrimonial loss in respect of their
future
medical
and hospital expenses. Nor was the question considered in
Schnellen
's
case whether a minor has a
24
delictual action against the wrongdoer for damages in respect of
future
medical and hospital expenses. It follows that Mr Du Toit's
reliance on
Schnellen
's case as authority for his contention was
misplaced.
In the light of the aforegoing the Court a
quo
correctly dismissed the
special plea.
In the result the appeal is dismissed with costs.
C P JOUBERT J A.
HEFER JA
VIVIER JA Concur.
F H GROSSKOPF JA
GOLDSTONE JA