Conceding Merits – The Scope of Liability
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CONCEDING MERITS – THE SCOPE OF LIABILITY – Gusha v The Road Accident Fund (158/2011)  SCA 242
On 14 February 2006 the appellant was a passenger in a motor vehicle when it swerved off the road to avoid an oncoming unidentified motor vehicle being driven on the incorrect side of the road. The vehicle capsized and the appellant sustained severe injuries which left him paralysed.
The appellant sued the respondent for R6,7 million in damages alleging that the accident had been due to the negligence of the driver of the unidentified motor vehicle.
Before the issue of summons the parties came to an agreement wherein the respondent accepted “liability for the damages still to be proven, which the (appellant) has suffered as a result of the bodily injuries he sustained in the accident”.
At the trial of the matter the court was asked to decide whether, on a proper construction of the agreement, it was still open to the respondent to apply to amend its pleadings to allege that there should be an apportionment due to the appellant’s contributory negligence by not wearing a seatbelt.
The parties agreed to separate this issue for adjudication.
After hearing the parties, the high court concluded that the terms of the agreement did not prohibit the respondent to amend its plea. The appellant appealed to the SCA.
Both parties accepted that the concession of ‘the merits’ meant no more than that the driver of the unidentified motor vehicle had been negligent.
However, the respondent also accepted ‘liability for the damages, still to be proven, which the Plaintiff has suffered’.
The respondent argued that it had thereby intended to do no more than to accept liability for the damage caused by the negligence of the driver and, if the appellant had not been wearing a seatbelt and his failure to do so contributed to his injuries, the respondent had not undertaken to be held liable for that harm. The acceptance of ‘liability’ had therefore been limited.
The SCA rejected the respondent’s argument. In interpreting the agreement, the correct approach is to have regard to the normal grammatical meaning of the relevant words, the context and the background circumstances.
At the time the respondent was facing a claim for damages it had accepted that the driver of the unidentified motor vehicle had been negligent. The respondent clearly gave no thought at the time to the possibility of any contributory negligence on the part of the appellant. In these circumstances the respondent accepted liability without qualification.
The appeal succeeded with costs.
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Now for some fun –
The car wreck.
A doctor and a lawyer got into a car accident, on a small country road. The lawyer had figured that nobody else would be on the road, and had raced through a stop sign. The doctor, on a cross street, had no time to react and couldn’t have missed the lawyer if he had tried. Fortunately, neither driver was hurt.
The lawyer, seeing that the doctor was a little shaken up, helped him from his battered car and offered him a drink from a hip flask.The doctor accepted, took a deep drink, and handed the flask back to the lawyer. The lawyer held the flask for a minute or two, and gave it to the doctor again. The doctor took another swig. He again returned the flask to the lawyer, who closed it and put it away.
“Aren’t you going to have a drink yourself?” asked the doctor.
“Not now,” answered the lawyer. “I’ll have something after the police leave.”