WELLS AND ANOTHER v SHIELD INSURANCE CO LTD AND OTHERS 1965 (2) SA 865 (C)

Transcription

1 WELLS AND ANOTHER v SHIELD INSURANCE CO LTD AND OTHERS 1965 (2) SA 865 (C) Citation Court Judge 1965 (2) SA 865 (C) Cape Provincial Division Corbett J Heard March 15, 1965 Judgment April 7, 1965 Annotations Link to Case Annotations 1965 (2) SA p865 Flynote : Sleutelwoorde Insurance - Motor Vehicle Insurance Act, 29 of Sec. 11 (1) - Meaning and effect of - 'Driving' - Meaning of, regard being had to sec. 1 (3) - Driver of car opening door after parking - Not an act caused by nor arising out of the driving of the car. Headnote : Kopnota In order to give a wider application than the phrase 'caused by' to the phrase 'arising out of' (and thereby prevent it from being redundant), in section 11 (1) of the Motor Vehicle Insurance Act, 29 of 1942, it must be regarded as covering cases where the driving is an indirect cause of the infliction of the injury. Where the direct cause is some antecedent or ancillary act, then it could not normally be said that the death or injury was 'caused by' the driving; but it might be found to arise out of the driving. Whether this would be found would depend upon the particular facts of the case and whether, applying ordinary, common-sense standards, it could be said that the causal connection between the death or injury and the driving was 1965 (2) SA p866 sufficiently real and close to enable the Court to say that the death or injury did arise out of the driving. The word 'driving', as used in relation to the insured motor vehicle, means, ordinarily, the urging on, directing the course and general control of the vehicle while in motion and all other acts reasonably or necessarily incidental thereto. After third defendant had manoeuvred his car into a parking bay, switched off his engine and applied the hand-brake, he had reached behind him to remove an article from the back seat and then opened the door preparatory to alighting. At this moment a trackless tram struck the door, which protruded into its path, and this caused it to crash into another motor-car, injuring the plaintiff and his wife. To a summons and declaration claiming damages from the insurer of the tram, the insurer of third defendant's car (second defendant) and third defendant, the second defendant had excepted on the ground that the plaintiffs' injuries had not been caused by nor arisen out of the third defendant's driving of the car within the meaning of section 11 (1) of the Motor Vehicle Insurance Act, 29 of Held, as against the second defendant, that the plaintiffs' injuries had not been caused

2 by nor had they arisen out of the driving of the insured vehicle. Held, accordingly that the exception should be upheld with costs. The meaning and effect of section 11 (1) of the Act, and of the word 'driving', regard being had to the extension of its meaning provided by section 1 (3), discussed. Case Information Exception to a declaration. The nature of the pleadings appears from the reasons for judgment. L. Kooy, S.C. (with him D. O. Delahunt), for the excipient (second defendant). S. Aaron, for the respondent. Cur. adv. vult. Postea (April 7th). Judgment CORBETT, J.: This is an exception taken by second defendant to a summons and declaration issued and filed by first and second plaintiffs, who are husband and wife respectively. The action arises out of a multiple collision which occurred in Long Street, Cape Town, on 26th August, According to the declaration and two sets of further particulars filed by plaintiffs at the request of second defendant, the third defendant, one Johan Jacobus Spies, parked his motor car, C.A , at approximately 8.45 a.m. on the above-mentioned date in a parking bay on the eastern side of Long Street and opened the right front door of his motor car. The precise sequence of events, as particularised in the particulars dated 15th March, 1965 (which were handed in from the Bar) was as follows: Spies manoeuvred his motor car into the parking bay; he switched off the engine; he applied the hand-brake; he reached behind him to remove an article from the back seat; and he then opened the door preparatory to alighting from the motor car. At this moment a trackless tram owned by the City Tramways Ltd. and being driven by one Robertson was proceeding in the eastern carriage-way of Long Street from north to south. The opened door of Spies' motor car protruded into the path of the oncoming trackless tram with the result that the trackless tram struck the door. This caused the trackless tram to career onto the western carriageway and to crash into motor car C.A which at the time was being driven by first plaintiff along Long Street in a northerly direction (2) SA p867 Second plaintiff was a passenger in motor car C.A. 3308, i.e. the motor car being driven by first plaintiff, her husband. As a result of the collision the plaintiffs suffered bodily injury and resultant damages and the action is for the recovery of such damages. In this action first defendant, the Shield Insurance Co. Ltd., is cited as the registered insurer under the Motor Vehicle Insurance Act, 29 of 1942, of the trackless tram, second defendant is cited as the registered insurer under the same Act of the motor car owned by Spies, and Spies himself is the third defendant. The damages sued for are claimed upon various alternative bases from one or more of the defendants but it is not necessary to detail these claims inasmuch as the present exception relates only to the liability of second defendant, either by itself or

3 jointly and severally in conjunction with first defendant. As against second defendant, plaintiffs' case is that in opening the door of his car in the path of the oncoming trackless tram third defendant acted negligently and either that the collision was due solely to this negligence or, alternatively, that it was due partly to this negligence and partly to negligence on the part of Robertson, the driver of the trackless tram. It is further alleged by plaintiffs that the opening of the door by third defendant constituted driving or formed part of the driving of motor car C.A , that plaintiffs' injuries accordingly arose out of the driving of this motor car within the meaning of sec. 11 of the Motor Vehicle Insurance Act; and that second defendant, having been the registered insurer of this motor car at the time of the collision, was obliged in terms of sec. 11 to compensate plaintiffs for the damages suffered by them. Second defendant's exception to the summons and declaration is that they disclose no cause of action against second defendant in that, ex facie the allegations contained in the declaration, any loss or damage suffered by plaintiffs as a result of bodily injuries sustained by them was not caused by nor did it arise out of the driving of the motor car by third defendant, as contemplated by sec. 11 (1) of the Motor Vehicle Insurance Act, and that accordingly no liability attaches to second defendant under the Act in respect of third defendant's action in opening the door of his motor car. Second defendant also filed a motion to strike out but did not proceed with this at the hearing of the matter. The plaintiffs' cause of action against second defendant is based upon sec. 11 (1) of the Motor Vehicle Insurance Act, as amended. The relevant portion of this section provides that a registered insurance company which has insured a vehicle is obliged to compensate a third party who has suffered loss or damage as a result of bodily injury to himself - 'caused by or arising out of the driving of the insured motor vehicle by any person... if the injury... is due to the negligence or other unlawful act of the person who drove the motor vehicle... or of the owner of the motor vehicle or his servant in the execution of his duty;...'. Two pre-requisites of liability upon the part of the registered insurance company for loss or damage suffered by a third party as a result of bodily injury are thus laid down. They are (i) that the bodily injury was caused by or arose out of the driving of the insured motor vehicle; and (ii) that the bodily injury was due to the negligence or other unlawful 1965 (2) SA p868 act of the driver of the insured vehicle or the owner thereof or his servant. The decision as to whether, in a particular case, these prerequisites have been satisfied involves two separate enquiries. Broadly speaking, the first pre-requisite is concerned basically with the physical or mechanical cause of the bodily injury, whereas the second is concerned with legally blameworthy conduct on the part of certain persons as being the cause of the bodily injury ('due to' having the same meaning as 'caused by' - Workmen's Compensation Commissioner v S.A.N.T.A.M. Beperk, 1949 (4) SA 732 (C) at pp ). Accordingly, these enquiries may follow wholly distinct lines. Thus, to take an illustrative example, a pedestrian might be injured by a wheel becoming detached from a moving vehicle in the street and hitting him. The enquiry relating to the first requisite would confine itself to the physical facts that the wheel became detached from the vehicle while it was being driven in the street and hit the plaintiff. The question would be whether, having regard to these facts, the injury could be said to have been caused by or to have arisen out of the driving of the vehicle. The enquiry relating to the second

4 requisite would cover a far wider field and would investigate the reasons why the wheel became detached and whether under the circumstances the fact that the vehicle had been driven in a condition which permitted it to become detached pointed to negligence on the part of the driver or the owner or his servant. In the present case the issue raised by the exception is whether upon the facts alleged by the plaintiffs the first pre-requisite can be said to have been satisfied, i.e., whether upon those facts the bodily injuries suffered by them can be regarded as having been caused by or as having arisen out of the driving of third defendant's motor car, C.A This depends, in the first place, upon the meaning to be attributed to the words - 'caused by or arising out of the driving of the insured motor vehicle'. The meaning of these words has already engaged the attention of the Courts upon a number of occasions. (See Barkett v SA Mutual Trust & Assurance Co. Ltd., 1951 (2) SA 353 (AD) at p. 365; Oosthuizen v London and Lancashire Insurance Co. Ltd., 1956 (2) SA 319 (C); Petersen v S.A.N.T.A.M. Insurance Co. Ltd., 1961 (1) SA 205 (C); Pillai and Another v New India Assurance Co. Ltd., 1961 (2) SA 70 (N); Philander v Alliance Assurance Co. Ltd., 1963 (1) SA 561 (C); Pretoria City Council v Auto Protection Insurance Co. Ltd., 1963 (3) SA 136 (T); Jacobs v Auto Protection Insurance Co. Ltd., 1964 (1) SA 690 (W)). Although some of the views expressed in these cases are not altogether harmonious, the following general propositions may be deduced therefrom: (1) The words 'caused by' and the words 'arising out of' are not synonymous, the latter phrase having a wider connotation than the former. This proposition is in accordance with the general rule applicable in the interpretation of statutes that they should, if possible, be so construed that no clause, sentence or word becomes superfluous, void or insignificant or, as it is sometimes put, that the Court should be slow to come to the conclusion that words in a statute are tautologous or superfluous. (R v Standard Tea and Coffee Co. (Pty.) Ltd (2) SA p869 and Another, 1951 (4) SA 412 (AD); Wellworths Bazaars Ltd v Chandler's Ltd. and Another, 1947 (2) SA 37 (AD). Moreover, it is significant that in other sections of the same Act the Legislature has taken care to use the same words, or phrases, in conjunction with another (see e.g. secs. 13, 19 (3), 29 (1)). This points to a deliberate choice of language and makes it difficult for the Court to come to any other conclusion than that these phrases were intended to bear different meanings. Counsel who argued the present exception did not seriously contest this proposition and, with respect, it seems to me to be correct. (2) The words 'caused by' refer to the direct cause of the injury, whereas the words 'arising out of' refer to the case where the injury, though not directly caused by the driving, is nevertheless causally connected with the driving and the driving is a sine quo non thereof. This proposition involves an entry into the difficult and controversial field of causation. The term 'direct cause' is one commonly employed in determining liability for damages in delict. I am not convinced that the phrase 'caused by', when it appears in a statute or a contract, should normally be equated with the concepts of causation that the law has evolved in connection with liability for delict or breach of contract (cf. remarks of DENNING, J., as he then was, in Minister of Pensions v Chennell, (1946) 2 All E.R. 719 at p. 721). In the present case, however, it is necessary to assign to the phrase 'caused by' a meaning which will distinguish it from 'arising out of' and this is effectively and satisfactorily achieved by limiting its application to instances where the enquiry can be

5 said to have been directly caused by the driving of the insured motor vehicle. The phrase 'arising out of' is less easy to define. It clearly suggests a cause and effect (cf. Leemhuis and Sons v Havenga, 1938 T.P.D. 524 at p. 526) and, in the particular context of sec. 11, a causal connection between the infliction of the bodily injury and the driving. To give it a wider application than the phrase 'caused by' (and thereby prevent it from being redundant), it must be regarded as covering cases where the driving is an indirect cause of the infliction of the injury. In this connection I do not find the use of the phrase causa sine qua non particularly helpful. While it does postulate that the injury would not have occurred but for the driving, it nevertheless places no other limitations upon the scope of the words. An uncontrolled application of the concept of the causa sine qua non could introduce a vast number of links in the chain of causation and thus bring about liability on the part of a registered insurer under circumstances never contemplated or intended by the Legislature. For example, X might travel for some distance as a passenger in a motor bus and, upon alighting therefrom, step into a hole in the pavement negligently left there by an employee of the bus company and break his leg. I cannot imagine that it was ever intended by Parliament that in such circumstances the registered insurer would be liable to compensate X in terms of sec. 11 of the Act. In such a case it might nevertheless be said that had the motor vehicle not been driven with X as a passenger therein, he would never have broken his leg; but then, as an American Judge once observed, apropos this type of reasoning: 'a reductio ad absurdam may be promptly established by calling to mind that if the injured person had never been born, the injury would not have happened' (2) SA p870 (Atlantic Coast Line Railway Company v Daniels, (1911) 8 Ga. App referred to in Hart and Honore, Causation in the Law, p. 109). In searching for some limit lying between direct causation and the vast and unrestricted field of the causa sine qua non, the Court must, I think, be guided by a consideration of the object and scope of the Act and by notions of common sense. Broadly the object of the Act is to provide protection by way of compulsory insurance to all members of the public who suffer loss by reason of bodily injury or death resulting from negligence or other unlawful conduct in connection with the driving of motor vehicles. The negligence or unlawful conduct may consist of some act or omission on the part of the driver in the actual course of driving, such as driving at an excessive speed or failing to keep a proper look-out, or it may consist of some antecedent or ancillary act or omission on the part of the driver or the owner of the vehicle or the servant of the owner, such as failing to maintain the vehicle in a roadworthy condition or overloading the vehicle. The death or bodily injury for which compensation is claimed must be causally related to this negligent or otherwise unlawful act and also to the driving of the vehicle. Where the direct cause from the point of culpability is the same act or omission on the part of the driver in the actual driving of the vehicle then it would generally be found that the death or injury was 'caused by' the driving. Where the direct cause is some antecedent or ancillary act, then it could not normally be said that the death or injury was 'caused by' the driving; but it might be found to arise out of the driving. Whether this would be found would depend upon the particular facts of the case and whether, applying ordinary, common-sense standards, it could be said that the causal connection between the death or injury and the driving was sufficiently real and close to enable the Court to say that the death or injury did arise out of the driving. I do not think that it is either possible or advisable to state the position more precisely than this, save to emphasise that, generally speaking, the mere fact that the motor vehicle in question was being driven at the time death was caused or

6 the injury inflicted or that it had been driven shortly prior to this would not, of itself, provide sufficient causal connection. Thus the injury suffered by a passenger aboard a bus as a result of being assaulted by a bus conductor could not be said to arise from the driving of the bus, even though the bus was being driven at the precise moment when the assault was committed. Similarly, in the illustration already given of X who stepped off the bus into a hole in the pavement, it could not be said that the injury arose out of the driving merely because driving (in the ordinary sense) had taken place immediately prior to this. (3) The word 'driving', as used in relation to the insured motor vehicle, means, ordinarily, in my view, the urging on, directing the course and general control of the vehicle while in motion and all other acts reasonably or necessarily incidental thereto. It would thus include, inter alia, the starting of the engine and the manipulation of the controls of the vehicle which regulate its speed and direction and also those which assist the driver and other users of the road, such as lights, traffic indicators, etc. It is provided by sec. 1 (3) of the Act that: 1965 (2) SA p871 'For the purposes of this Act a person who has placed or left a motor vehicle at any spot shall be deemed to be driving that motor vehicle while it moves from that spot as a result of gravity, or while it is stationary at that spot or at a spot to which it moved from the first-mentioned spot as a result of gravity.' This has been read, rightly in my respectful view, as giving an extended meaning to the word 'driving' so that where a vehicle has been placed or left at a particular spot it is regarded as being driven (i) while it remains stationary at that spot, or (ii) while it moves from that spot as a result of gravity, or (iii) while it remains stationary at the spot to which it has so moved by reason of gravity. In regard to the ordinary meaning of 'driving' (i.e. disregarding the extension thereof provided for by sec. 1 (3)), Mr. Aaron, for the plaintiffs (respondents), submitted that a wider one than that given above should be adopted. He suggested that 'driving', as used in sec. 11, should be interpreted to mean the entire management and control of the vehicle by the driver while it is on the road. It seems to me that this interpretation goes far beyond what is ordinarily comprehended by the word 'driving' and a moment's reflection shows that, applied to sec. 11, it could produce some startling results. Thus, to take two illustrations put by me to Mr. Aaron in the course of argument, it would result in liability arising under the Act where, while on the road, the driver injured a third party by his negligent handling of a cigarette lighter fitted to the dash-board of his motor car or by negligently crushing a third party's finger when closing the boot of the motor vehicle. Such injuries could never have been intended to fall within the ambit of sec. 11 and, accordingly, I think that Mr. Aaron's definition is far too widely couched. Reverting to the facts of the present case, the direct cause of the plaintiffs' injuries, on the case made out against second defendant, was the opening of the door of Spies' motor car in the path of the oncoming trolley bus. Although it might not have been the proximate cause in point of time, it was certainly the efficient cause in that it set in motion a rapid train of events resulting in the plaintiffs being injured. If the opening of the door was part and parcel of the driving of Spies' motor car, then clearly the plaintiffs' injuries can be said to have been 'caused by' the driving of the insured motor vehicle. If, on the other hand, the opening of the door cannot be said to be an act performed in the driving of the motor vehicle, the further question arises as to whether there is sufficient causal connection between the driving itself and the infliction of the injuries for it to be

7 said that the injuries arose out of the driving. Upon consideration I do not think that the opening of the door can be said to be part and parcel of the 'driving' of Spies' motor car, using the word 'driving' in both its ordinary and its extended sense. In the ordinary sense of the word the 'driving' of the vehicle in this case had terminated before the door was opened and this latter act had nothing to do with the urging on, direction or control of the vehicle while in motion. The door was opened in order to enable the driver to gain exit from the vehicle but that, in my view, does not make it part and parcel of driving in its ordinary sense. Nor do I 1965 (2) SA p872 think that the opening of the door was part and parcel of driving in the extended sense provided for by sec. 1 (3) of the Act. Sec. 1 (3) creates the legal fiction that a vehicle is being driven when in fact it is not being driven and consequently in applying this section the Court is bound to ascertain for what purposes and between what persons the statutory fiction is resorted to (see Hulett v Commissioner for Inland Revenue, 1944 NPD 263). In so far as the extended meaning provided for by sec. 1 (3) is relevant to the facts of this case, it relates to the period while the vehicle remains stationary at a spot at which it has been placed or left by a person. This particular fiction is clearly aimed at extending statutory liability under sec. 11 to the case where injury is caused by, or arises out of, the fact that a motor vehicle has been left or parked in a dangerous position or condition. I do not think that the fiction was resorted to in order to extend statutory liability to the case where the cause of the injury is not an act of driving in the normal sense and is not the manner or condition in which the vehicle has been left or parked. Consequently, I do not think that the opening of the door of the vehicle in this case fell into the category of 'driving', in its extended meaning, any more than would any other act relating to the vehicle while parked, such as, for instance, opening and closing the boot or jacking up the car to change a wheel. Accordingly, in my view, the injury of the plaintiffs cannot be said to have been 'caused by' the driving of the insured motor vehicle. The question remains as to whether it can be said to have arisen out of the driving, either in its ordinary or extended meaning. Now, I would emphasise that the opening of the door caused the injury only because it occurred precisely at the moment when it did. Had it occurred some appreciable time earlier then it is probable that it would not have caused any such collision or injury and had it occurred some appreciable time later it would almost certainly not have had those consequences. It is important to bear this in mind when asking oneself the question whether there was a causal connection between the driving and the injury sufficiently real and close for it to be said that the injuries suffered by the plaintiffs arose out of such driving. Dealing first with 'driving' in its ordinary meaning, I consider that the causal connection between the driving - which ceased when Spies completed parking his motor vehicle - and the injuries was too remote for it to be said that the injuries arose out of the driving. It is true that the driving, in this sense, was a causa sine qua non in that had it not been for this driving Spies would not have parked in this particular spot and would not have opened the door to have alighted from the motor car. It seems to me, however, that this case falls within, or is at any rate closely analogous to, that category in which the only causal connection is that at the time of the infliction of the injury, or shortly prior thereto, the insured vehicle was being driven. That, in my view, is insufficient causal connection, particularly where, as in this case, the direct and efficient cause was the opening of this particular door at this particular moment of time. As regards 'driving' in its extended sense, the causal connection is, in my judgment, equally remote. The driving of the

8 vehicle in that sense was merely the occasion for the opening 1965 (2) SA p873 of the door: there was no other causal connection between the opening of the door and the manner and condition in which the vehicle was parked. It is true that, had the door been left standing open by Spies and an injury been caused thereby, the position would have been substantially different. Mr. Aaron argued that this and other suggested anomalies indicated that a different interpretation should be followed. I do not find this line of reasoning particularly profitable. The interpretation advanced by Mr. Aaron also produces so-called anomalies in border-line cases. Accordingly, I have come to the conclusion that on the case made out against second defendant the plaintiffs' injuries cannot be said to have been caused by or to have arisen out of the driving of the insured motor vehicle. It follows that the declaration and summons disclose no cause of action against second defendant and that second defendant's exception thereto must be allowed with costs. Plaintiffs are granted leave to amend their summons and to file an amended declaration within one month of the date of this order. Excipient's Attorneys: Reilly, Reilly & Tucker. Respondent's Attorneys: Sonnenberg, Hoffman & Galombik.