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[2016] ZAWCHC 99
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Abrahams v Road Accident Fund (15863/2013) [2016] ZAWCHC 99; 2016 (6) SA 545 (WCC) (12 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
No: 15863/2013
REPORTABLE
In
the matter between
MOGAMAT
RIDAA
ABRAHAMS
............................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
CORAM:
SALIE-HLOPHE, J
HEARD:
12 May 2016
DELIVERED:
12
August 2016
COUNSEL
FOR PLAINTIFF:
Adv. W Coughlan
ATTORNEYS
FOR PLAINTIFF:
DSC Attorneys
COUNSEL
FOR DEFENDANT:
Adv. C Bisschoff
ATTORNEYS
FOR DEFENDANT:
Z Abdurahman Attorneys
JUDGMENT
DELIVERED ON FRIDAY, 12 AUGUST 2016
SALIE-HLOPHE,
J:
1]
The plaintiff in this matter instituted a claim for compensation
against the defendant, the Road Accident Fund (“the Fund”)
in terms of the Road Accident Fund Act 56 of 1996 (“the Act”).
2]
The fund raised a special plea in respect of the claim. It was
declared on 28 October 2015 by the pre-trial judge, my learned
brother Justice Dlodlo, that the matter is trial ready for hearing in
respect of the special plea only. This judgment is
concerned
only with the special plea, the details of which I will discuss
shortly.
3]
The following chronology of events provides context to the issues
that arose for determination:
3.1]
It is common cause that the plaintiff was involved in a motor vehicle
accident which occurred on or about 05 February 2011
and that he was
the driver of the motor vehicle at the time of the accident. The
vehicle was owned by Suceco Food Manufacturers
(“the insured
owner”). It is undisputed that it was a single motor
vehicle accident, being the vehicle driven
by the plaintiff, and the
only vehicle involved in the collision. No other vehicles
were involved.
3.2]
It his particulars of claim, the plaintiff averred that the accident
occurred as a result of a burst tyre which caused the
insured vehicle
to leave the roadway and overturned, causing him to sustain serious
injuries. He further alleged that
the accident was caused
as a result of the wrongful and negligent conduct of the insured
owner in that it failed to maintain the
insured vehicle and/or the
tyres of the insured vehicle in a safe and roadworthy condition.
Differently put, the averment
is that the insured owner negligently
breached its duty of care to road users and in particular to the
plaintiff, namely, to ensure
that the insured vehicle did not
constitute a source of danger on the roadway to such persons.
The plaintiff therefore instituted
its claim against the Fund in
terms of section 17(1) of the Act.
4]
The special plea raised by the defendant comprises of a main and an
alternative plea. It its main plea, it contends that
taking
into account the particular circumstances of this matter and the
relevant applicable legislation, the defendant is not liable
in that:
“
11.1
the plaintiff was not an employee of the insured owner;
11.2
the plaintiff’s use of the insured vehicle was fortuitous
and/or unauthorised;
11.3
no legal duty can be ascribed to the insured owner of the insured
vehicle in relation to the plaintiff and/or road users in
general,
and hence the insured owner was not negligent.”
5]
The alternative special plea is based on a plea that:
“
12.1
The collision was a single vehicle collision; and
12.2
Plaintiff was solely and entirely negligent in causing the
collision.”
6]
In plaintiff’s reply to the defendant’s special plea, the
averment is made that the facts of this case fall within
the ambit of
section 17 of the Act and that neither sections 19 nor 21 of the Act
is applicable to his claim.
7]
During the hearing of the special plea, Mr. Coughlan for the
plaintiff and Mr. Bischoff for the defendant, addressed court in
argument. It was agreed that at this stage of the proceedings this
court is only called upon to determine the special defences
which
have been raised by the Defendant in its special plea, in terms of
Rule 33, with all other issues, including the issues of
causal
negligence, standing over for later determination.
8]
The father of the plaintiff, Mr. Abrahams Senior, (“Abrahams”),
was the only witness called to testify. No
witnesses testified
for the defendant. Abrahams testified that in and during
February 2011 he was employed by Suceco Food
Manufacturers (Pty) Ltd
commonly referred to as Suceco Bakery. His duties included the
deliveries of baked goods from supermarkets
Shoprite/Checkers and
Pick’nPay in the Oudtshoorn and Beaufort West areas. On
occasion, when he had more than the usual
deliveries within the same
time constraints, he would engage the assistance of his son, the
plaintiff, to assist in delivering
the goods. Such assistance
was with the permission of his employer c/o Ms. Wilna Niewhof (the
manager) on condition that
his son held a valid driver’s
licence. Abrahams furnished her with a copy of plaintiff’s
driver’s licence
and identity document. He would pay his
son a fee for his assistance and this fee would be reimbursed to him
by his employer
from time to time. On the date of the accident,
the plaintiff engaged his son to attend to the Beaufort West delivery
as
he himself had to attend to the George route. To have done
both routes in the time allocated would have been extremely
difficult.
Shortly after the collision his employer was
informed by Checkers Beaufort West that his son had been involved in
a collision and
that he was being transmitted to Beaufort West
Hospital for medical attention. On his way to the hospital, he
stopped at
the accident scene but his son had by that time already
been conveyed via the paramedic services. With the intervention
of
his employer, his son was later transferred to a private hospital,
George Medi-Clinic, for better medical attention and they financed
the medical costs so incurred. Abrahams testified that in
February 2014 two branches of his employer’s business had
closed down, resulting in his retrenchment. Under cross
examination, Abrahams confirmed that his son had in these
circumstances
performed as sub-contractor and not as an employee of
the insured owner. The further evidence was not challenged by
the defendant.
9]
Relevant provisions of the Act:
9.1]
Section 17(1) reads
:
“
17.
Liability of Fund and agents.-(1) the fund or an agent shall-
(a)…….’
(b)…….”,
be
obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of any
bodily
injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the driving
of a motor
vehicle by any person at any place within the Republic, if the injury
or death is due to the negligence or other wrongful
act of the driver
or of the owner of the motor vehicle or of his or her employee in the
performance of the employee’s duties
as employee:….”
9.2]
Section 18(2) reads
:
“
18.
Liability limited in certain cases.-
(1)
…..
(2)
Without derogating from any liability of the Fund or an agent to pay
costs awarded against it or such agent in any legal
proceedings,
where the loss or damage contemplated in section 17 is suffered as a
result of bodily injury to or death of any person
who, at the time of
the occurrence which caused that injury or death, was being conveyed
in or on the motor vehicle concerned and
who was an employee of the
driver or owner of that motor vehicle and the third party is entitled
to compensation under the Compensation
for Occupational Injuries and
Diseases Act, 1993 (Act No. 130 of 1993), in respect of such injury
or death -….”
9.3]
The relevant portion of section 19 of the Act provides as follows:
“
19.
Liability excluded in certain cases
“
The
Fund or an agent shall not be obliged to compensate any person in
terms of section 17 for any loss or damage-
(a)
For which neither the driver nor the
owner of the motor vehicle concerned would have been liable but for
section 21; or
(b)
…
..”
10]
Thus, in establishing whether an injured party has a claim in terms
of the Fund, regard must be had to the provisions of section
18.
If the injured party was injured in the course and scope of
employment, he is entitled to claim compensation in terms
of the
Compensation for Occupational Injuries and Diseases Act 130 of 1993
(“COIDA”). In the event of the injured
party being
injured in the course and scope of his or her employment, in a motor
vehicle accident, the claim is to be instituted
in terms of COIDA and
the fund’s liability is limited to the balance which an
employee is not able to claim in terms of COIDA.
In other words the
fund will only be liable for any balance.
11]
The argument for the defendant is that inasmuch as the entitlement to
claim (as illustrated in paragraph 10 above) is based
on the
employer/employee relationship, it matters not if it is a single
vehicle collision as the driver was employed and had used
the vehicle
in the course and scope of his employment. The result would be
that on the basis of his employment relationship
he is entitled to
claim. The point of departure for the defendant is that absent
an employment relationship and thus no COIDA
claim in terms of
section 18, the Act turns its attention to Section 17. The
argument followed that only in the event of
there being a COIDA claim
would a
single driver of a vehicle
involved in a collision in
the course and scope of his employment be entitled to claim from the
Fund, as stated, for the balance
of the claim not covered by COIDA.
This reasoning it was argued results from a reading of section 17 in
conjunction with
sections 18 and 19. If this court were to
accept this argument, it would mean that the only instance in terms
whereof the
plaintiff would have been able to claim against the Fund
as a single driver involved in a single motor vehicle collision, is
if
he had been employed by the insured owner.
12]
Mr. Bischoff attempted to illustrate this submission by pointing out
that a careful reading of s17(1) of the act discloses six
requirements for liability which a “third party” has to
prove in order to succeed with his or her third party claim.
The term “third party” is defined in the act to mean:
“
the third party referred to in section 17(1).”
The term “third party” denotes any RAF victim who has
suffered damage or loss as a result of bodily injury to
himself or
herself or of the death of or injury to his/her breadwinner as a
result of the negligent and unlawful driving of a motor
vehicle.
The scope of section 17, he argued, does not include someone in the
position of the plaintiff in this case.
What the plaintiff is
attempting to do, he argued, is to place himself in the position of
the third party, in view of the fact
that he was injured. However, he
argued, that plaintiff was effectively the first party as he was the
driver of the vehicle in
a single vehicle collision. He
therefore is attempting to transfer liability to the insured owner as
a result.
13]
Mr. Coughlan, argued that the plaintiff’s claim falls squarely
within section 17 of the Act in that the plaintiff had
sustained
injuries from a motor vehicle accident that was caused as a result of
the wrongful and negligent conduct of the insured
owner. The evidence
of Abrahams, he argued, sufficed to establish that the plaintiff
drove the vehicle with the express permission
and prior consent of
the insured owner. The second special defence, namely, that the
driver of a single vehicle collision
does not have a claim for
damages against the defendant was argued to be supported by the
unreported decision of
Maatla v Road Accident Fund
(11690/11)[2015] ZAGPPHC 129
(6 March 2015).
14]
In
Maatla
supra
, the parties agreed to a stated
case and listed the various issues, agreed between them as common
cause. The court in that
case was required to decide whether
the plaintiff was entitled to a claim against the defendant in a case
where he was the driver
of the motor vehicle which was involved in a
collision, relying on his employer’s negligence. The
court referred to
the case of
Wells and Another v Shield
Insurance Co. Ltd and Others
1965 (2) SA 865
(C)
at
867 where Corbett J stated in relation to section 17 that:
“
The
section lays down two prerequisites of liability upon the part of a
registered insurance company for damages suffered by a third
party as
a result of bodily injury. These are (i) that the injury was
caused by or arose out of the driving of the insured
motor vehicle
and (ii) that the injury was due to the negligence or other unlawful
act of the driver of the insured vehicle, or
the owner or his
servant. There are thus two separate enquiries, a fact which is
sometimes lost sight of because in most
cases the injury is caused by
the negligent driving of the insured driving vehicle.”
15]
The court in
Maatla
supra
at para 15
,
found
that the twofold enquiry referred to in
Wells
supra
,
had to be answered in the affirmative, namely, that the injuries
arose out of a motor vehicle collision and secondly that the
owner of
the vehicle in terms of the common cause facts was negligent.
Accordingly, the court concluded that the defendant
should be held
accountable for the injuries sustained by the plaintiff. Mr.
Coughlan submitted that
Maatla
supra,
is direct
authority for the proposition that the defendant can in fact be held
liable in a single motor vehicle collision where
the accident was
caused by the negligent conduct of the owner of the motor vehicle.
16]
I am not persuaded that the decision in
Maatla
is
directly on point with the matter before this court. The
judgment does not specify whether more than one vehicle was involved
in the accident or not, but it is clear that the plaintiff in the
matter was the driver of the motor vehicle and relied on the
negligence of the owner of the vehicle, his employer, pertaining to
his failure to maintain the vehicle. In my view, even
if the
plaintiff in that matter was involved in a single motor vehicle
collision, the fact remains that an employer/employee relationship
existed between the plaintiff and his employer and that he was
injured in the course and scope of his employment, driving a vehicle
which belonged to his employer.
17]
What is the remedial relief for the injured driver in the position
of the plaintiff?
The plaintiff did not enjoy an employment
relationship with the insured owner. It is his claim that he
had sustained
injuries from a single vehicle collision which resulted
from the insured owner’s failure to maintain the vehicle in a
road
worthy condition. Can it be said that he is not entitled
to claim against the Fund for compensation in respect of his
sustained
injuries?
18]
What is the purpose of the
Road Accident Fund Act?
Section
3 of the Act, titled: “
Object of the Fund”
reads:
“
The
object of the Fund shall be the payment of compensation in accordance
with this Act for loss or damage wrongfully caused by
the driving of
motor vehicles.”
The
Act is the culmination of a long line of national legislation
beginning with the Motor Vehicle Insurance Act 29 of 1942.
The
primary concern of our legislature in enacting these relevant
statutes has always been to give the greatest possible protection
to
persons who have suffered loss through a negligent or unlawful act on
the part of the driver or owner of a motor vehicle.
(See:
Aetna
Insurance Co v Minister of Justice
1960 (3) SA 273
(A)
at 285 E-F;
Mntambo v Road Accident Fund
[2007] ZAGPHC 151
;
2008 (1) SA
313
(W)
at 317 F-G).
19]
Relevant in the determination of the issue before this court is to
bear in mind the primary purpose and objective of the Act.
It
has been recognised in our courts that when provisions of the act
have to be interpreted, such interpretation must be done as
extensively as possible in favour of the third party in order to
afford the latter the widest possible protection. (See
Mntambo
supra
at 317 para 11).
20]
Although Mr. Coughlan did not directly challenge the submission by
Mr. Bischoff that the plaintiff was not a third party, but
rather a
first party, clearly this reasoning is flawed. The first party
is the insured, in this case the owner of the vehicle.
In the
realm of insurance, which in effect a RAF claim is, a third party
insurance claim is made by someone who is not the policyholder.
The insurance company (in this case the Fund) can be referred to as
the second party. A third party claim is commonly referred
to
as a liability claim because someone else is liable for the injuries
suffered by the third party. That the plaintiff herein
was the
driver of the insured vehicle cannot and does not mean that he is
therefore the first party.
21]
Section 21 abolished certain common law claims. The relevant
section reads:
“
(1)
No claim for compensation is respect of loss or damage resulting from
bodily injury to or the death of any person caused by
or arising from
the driving of a motor vehicle shall lie-
(a)
against the owner or driver of a
motor vehicle; or
(b)
…”
22]
This section abolishes a motor accident victim’s common law
right to claim compensation from a wrongdoer for losses which
are not
compensable under the Act. The amendment to the Act, whilst
retaining several features of the old scheme also introduced
new
features. See
Law Society of South Africa and Others v
Minister for Transport and Another 2011(1) SA 400 (CC)
.
It has retained the common law fault-based liability. This
means that any accident victim or a third party who seeks
to recover
compensation must establish the normal delictual elements
applicable. Before the amendment, section 21 provided
clearly
that a victim or third party may not claim compensation from the
owner or driver of the vehicle or from the employer of
the driver
when he or she is entitled to claim from the Fund or an agent.
To that extent only, a wrongdoer enjoyed immunity
by operation of the
Act. Thus, where the Fund could not be held liable, a third
party retained the common-law residual claim
to recover losses not
capable of compensation under the Act from the wrongdoer.
Stated differently, no claim for compensation
arising from the
driving of a motor vehicle shall lie against the owner or the driver
or against an employer of the driver, subject
to two exceptions.
23]
The one is if the Fund is unable to pay any compensation and the
other in respect of an action for compensation resulting from
emotional shock sustained by a person other than a third party.
In other words, emotional shock sustained when such person
witnessed,
observed or was informed of the bodily injury or death of another
person resulting from a motor collision.
24]
The plaintiff drove the vehicle in the capacity as a contractor
locatio conductio operis
. At the time of the collision
he was exercising his duties as a sub-contractor for the ultimate
benefit and advancement of
the business of the insured owner.
He owed the insured owner an
opus faciendum,
meaning, a
particular job to be done as a whole. (See:
Zimmermann R
,
The Law of Obligations
:
Roman Foundations of the
Civilian Tradition
(1996) Oxford University Press at 390). He
had, however, the consent and permission of the insured owner and was
allowed
to drive the insured vehicle.
25]
The provisions of the Act and the liability of the Fund created
therein is that a driver of a motor vehicle who is a wrongdoer
(negligent driver) has no claim against the Fund when it is a single
motor vehicle collision and if there is no other driver or
owner who
can be blamed for the collision. The question is, whether it
would be different if the wrongdoer is the owner of
the vehicle,
consenting use thereof by the driver and who sustained injuries in a
single vehicle collision as a result of the vehicle
not being in a
roadworthy condition.
26]
At common law a justiciable claim accrued to the plaintiff the moment
he was injured and suffered loss or damage as a result
of the owner
allowing or consenting him to use the said vehicle which had not been
in proper working order. The question
of negligence and
moreover the cause of the collision and to what extent, if any, the
insured owner had failed to maintain the
vehicle in proper working
order is to be determined at the trial hereof. Whether the
collision was caused by the fact that
the vehicle was not in a
roadworthy condition is not a question before this court.
27]
The defendant did not adduce any evidence to gainsay the testimony of
Abrahams who testified that his employer consented to
the plaintiff
driving the vehicle. This consent, had in my view, established
a legitimate legal nexus or link between the
plaintiff and the
insured owner. Even though section 21 of the Act confirms the
abolition of common law claims, what section
19 simply states is that
if a claimant had a claim against an owner in terms of common law,
the Fund would be liable. I see
no reason why in these
circumstances, and for the reasons set out above, the plaintiff can
be denied a claim against the Fund in
respect of his loss or damage
suffered as a result of the bodily injuries which he had sustained as
a result of this collision.
The basic delictual requirements of
liability found in common law caused by unlawfulness and fault have
not been altered by the
Act.
28]
Mr. Bischoff argued that were the Fund to be held liable to the
plaintiff in these circumstances, a hypothetical example of
a thief
driving a stolen motor vehicle could lead to the owner of the
vehicle being liable to the thief where the latter
sustains injuries
in a single vehicle accident. In
Pithey v
Road Accident Fund
2014 (4) SA 112
(SCA)
at para 18, the
court held that in interpreting the provisions of the Act, courts are
enjoined to bear in mind that the primary
purpose and objectives of
this legislation is to give the widest possible protection and
compensation to claimants. Caution though
is emphasised that as the
Fund relies entirely on the
fiscus
for its funding, it should
be protected against illegitimate and fraudulent claims. It is clear
that the act exists for the exclusive
benefit and protection of the
victim and not for the benefit or protection of the negligent or
unlawfully acting driver or owner
of a vehicle.
29]
In these circumstances and for the reasons set out, I make the
following order:
“
The
defendant’s special plea (main and alternative) is dismissed
with costs.”
SALIE-HLOPHE,
J