Groenewald v Irvin & Johnson Limited and Others (3595/08) [2017] ZAWCHC 62 (17 May 2017)

Groenewald v Irvin & Johnson Limited and Others (3595/08) [2017] ZAWCHC 62 (17 May 2017)

The court found that the proposed amendment to the particulars of claim does not merely amplify the existing allegation of vicarious liability but introduces a new ground of liability based on the first defendant's own negligence. The language of the amendment clearly seeks to hold the first defendant personally negligent for breach of its own duty of care towards the plaintiff, rather than relying solely on the delict of a third party. As this constitutes a new cause of action, and it is common cause that such a claim has prescribed, the court cannot exercise its discretion to allow the amendment. The application for amendment is therefore dismissed with costs.

Citation
[2017] ZAWCHC 62
Parties
Plaintiff: Hainro Groenewald; Defendant: Irvin & Johnson Limited; Defendant: Millenium Security; Defendant: Nicholas Johannes Ehlers
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 May 2017
Case Number
3595/08
Procedural Posture
Civil Application / Application for Amendment of Particulars of Claim
Outcome
Application for amendment dismissed with costs.
Judges
Gamble
Legal Topics
Amendment of Pleadings, Vicarious Liability, Personal Negligence, Prescription of Claims
Civil Procedure Delict Amendment of Pleadings Vicarious Liability Personal Negligence Prescription of Claims

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Parties

Hainro Groenewald

Plaintiff

Irvin & Johnson Limited

Defendant

Millenium Security

Defendant

Nicholas Johannes Ehlers

Defendant

Procedural Posture

Civil Application / Application for Amendment of Particulars of Claim

Legal Issues

  1. 1 Does the proposed amendment to the particulars of claim merely amplify the existing allegation of vicarious liability or does it introduce a new ground of liability based on the first defendant's own negligence?
  2. 2 Has the new cause of action, if introduced, prescribed under South African law?

Ratio Decidendi

The court found that the proposed amendment to the particulars of claim does not merely amplify the existing allegation of vicarious liability but introduces a new ground of liability based on the first defendant's own negligence. The language of the amendment clearly seeks to hold the first defendant personally negligent for breach of its own duty of care towards the plaintiff, rather than relying solely on the delict of a third party. As this constitutes a new cause of action, and it is common cause that such a claim has prescribed, the court cannot exercise its discretion to allow the amendment. The application for amendment is therefore dismissed with costs.

Court Disposition

Application for amendment dismissed with costs.

Orders

  • The plaintiff's application for amendment of particulars of claim is dismissed.
  • The plaintiff is ordered to pay the costs of the application.