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[2015] ZAGPJHC 77
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N Obo N v Road Accident Fund (17439/2013) [2015] ZAGPJHC 77 (27 April 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
17439/2013
DATE: 27 APRIL
2015
In
the matter between:
[N……..]
[J……..] [T…….] obo [N…….]
[S……]
....................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
J U D G M E N T
WEINER J:
[1] The plaintiff is
the father and natural guardian of the minor child [S…….]
[N……] (“S…….”).
The
Plaintiff, in his capacity as such, instituted action against the
defendant (the “RAF”) in respect of an accident
that
occurred on 6 February 2012 at or near Main Road, Orange Farm,
Johannesburg at approximately 17h55.
Background
[2] The plaintiff
alleges that S…… was knocked down by a motor vehicle, a
white Isuzu bakkie with registration number
[N….. 3……]
(the “insured motor vehicle”) that was being driven by
one Mxolisi Ngwenya (the “insured
driver”).
[3] The plaintiff
alleges that the accident was caused by the negligent driving of the
insured driver in that,
inter alia,
he failed to keep a proper
lookout, he drove at an excessive speed under circumstances, failed
to apply his brakes adequately in
time or at all, reduce his speed in
the vicinity of and to avoid pedestrians, or avoid the collision
when, by the exercise of reasonable
skill and care, he was in a
position to do so.
[4] As a result of
the collision S…… sustained severe bodily injuries
consisting of
inter alia
a brain injury, facial lacerations
and a head haematoma. Consequently, S……. now suffers
from neurocognitive deficits
involving impaired memory and
concentration, poor mental efficiency and persistent debilitating
headaches.
[5]
It is alleged that as a result, S…… had a change of
personality, behaves aggressively, is short-tempered and is
irritable.
[6]
The parties agreed that the merits and quantum would be separated
and at this stage only the merits are being dealt with.
Doli
Incapax
:
THE LEGAL POSITION
[7] It is common
cause that S….. was …… years and 9 months at the
time of the accident. The plaintiff’s
counsel submitted that
section 7(1)
of the
Child Justice Act No. 75 of 2008
provides that “a
child who commits an offence while under the age of 10 years does not
have criminal capacity and cannot
be prosecuted for that offence, but
must be dealt with in terms of
section 9
”. It is submitted that
a child of that age is
doli incapax.
Therefore once the
accident has been admitted, it must be accepted that the RAF was 100%
liable.
[8]
In order to deal with the Plaintiff’s counsel’s
submission, it is convenient to deal upfront with the legal position
of a child of such age. The question was dealt with in
Jones
NO v Santam Beperk
[1]
[9]
In that case, a child, claiming through her father was held by the
court to be negligent and therefore her claim was subject
to an
apportionment. Williamson JA held as follows
[2]
:
“…
once
it is established that a child over the age of 7 but under the age of
14 has conducted itself in such a manner that its conduct
would
ordinarily amount to
culpa
or negligence, then there arises the necessity of determining whether
that child is
culpae capax
.
This question involves an enquiry in relation to the capacity for
culpa
of
the particular child.”
[10]
Williamson JA found that, once the conduct was held to be negligent,
the child could be held accountable. He went on to consider
that,
having regard to the fact that the conduct of the child was found to
have consisted of a sudden and unexpected dash into
the road, it
became necessary to decide whether the child could be held
accountable for such negligence or
culpa
on her part. Williamson JA referred to the judgment by Lord
Justice Clerk Moncrieff in the Scottish case of
Campbell
v Ord & Maddison
[3]
quoted
by Greenberg J in
Feinberg
v Zwarenstein
[4]
.
Greenberg J found as follows:
"It
would be as unsound to say as a proposition in law that this child
was not capable of negligence as to say that he was.
Negligence
implies a capacity to apprehend intelligently the duty, obligation,
or caution neglected, and that depends to a large
degree on the
nature of that which is neglected as well as on the intelligence and
maturity of the person said to have neglected
it. The capacity to
neglect is a question of fact in the particular case, as much as
intelligence itself, which is always a question
of fact."
[11]
Williamson JA
[5]
held as
follows:
If
it be decided in any particular case that a child under puberty is
old enough to have and does have the intelligence to appreciate
a
particular danger to be avoided, that he has a knowledge of how to
avoid it or of the precautions to be taken against it, and
further
that he is sufficiently matured or developed so as to be able to
control irrational or impulsive acts, then it would be
proper to hold
that a failure to control himself or to take the ordinary precautions
against the danger in question is negligent
conduct on his part; in
other words that child, in relation to the particular acts or
omissions complained of in the particular
circumstances, was
culpae
capax”
[12]
In the
Jones
case
[6]
,
it was held that the child, who had attained the age of 9 years was
accustomed to busy motor traffic and was accustomed, in going
to and
from school, to walking in busy streets. She had been told by
her father of the dangers of crossing streets when traffic
was
approaching. Her father confirmed that the child had been trained to
be responsible in regard to road safety. Corbett J in
the court
a
quo
found her to be
culpae
capax
in relation to her conduct on the day of the collision and applied an
apportionment. The SCA upheld Corbett J’s judgment.
[13]
In
Eskom
Holdings Limited v Jacob Johannes Hendriks obo Jacques Justin
Hendriks
[7]
a
child of 11 years climbed a pylon supporting high voltage power
lines. Negligence, on behalf of Eskom, in failing
to take
reasonable steps to prevent harm to the public, especially children,
was found. The question was whether or not the
court was
correct in finding that the child was
culpae
capax
in relation to his conduct. The court referred to
Weber
v Santam Versekeringsmaatskappy Bpk
[8]
where the SCA confirmed the distinction previously drawn in
Jones
supra,
between, on the one hand the issue of capacity on the part of a child
to commit a wrong and, on the other, the issue of fault.
In the
Weber
case, the court declined to follow a widely held view, particularly
in academic circles, that a subjective element needed to be
introduced into the concept of negligence in the case of children by
requiring no more than a degree of care expected of a child
of the
age and maturity of the child in question. The court in
Weber
held that, whilst capacity might be subjective, fault was objective.
In other words, once a child was found to have the necessary
capacity, his negligence or otherwise was to be determined in
accordance with the standard of the ordinary adult reasonable person.
The court affirmed in
Weber,
the rule that children under 7 are
culpae
incapax;
whilst children between the ages of 7 and puberty (12 in the case of
girls and 14 in the case of boys) were presumed to lack capacity,
until the contrary was proved by the party alleging negligence. (The
existence or otherwise of the presumption was not decided
in the
Jones
case
supra
).
The court held, in the
Eskom
case, that the gender-based distinction in
Weber
appeared
to be unjustifiable and a cut-off point would be 14 for children of
both sexes, as was the case in criminal law.
[14]
The application of the standard applicable to adults to the
negligence of a child, was strongly criticised in certain academic
writings. These criticisms are referred to in
Eskom
[9]
:
“
Nonetheless,
the force of the criticism is to some extent overcome by the emphasis
placed by the court in
Weber (Supra)
on
the subjective nature of the inquiry into the element of capacity. It
was stressed (at 389H-400A) that the inquiry was one of
fact. In each
case what had to be determined was whether the child in question had
developed the emotional and intellectual maturity
to appreciate the
particular danger to be avoided and, if so, to act accordingly.
Jansen JA (at 390H) referred with approval to
the observation by
Corbett JA in
Roxa v Mtshayi
1975
(3) SA 761
(A) at 766A-B that the enquiry had to be related to “the
particular acts or omissions complained of in the particular
circumstances”
[15]
In the
Eskom
case, the child had climbed a pylon (which might have been impulsive)
but thereafter was fascinated by the insulators and touched
one of
them. This was the conduct that resulted in his injuries. Scott JA
held that this conduct had to be considered in relation
to his
emotional and intellectual maturity. The court held that the most
likely inference was that he lacked an appreciation of
the full
import of the danger and became so engrossed in the fascination for
the insulators that he forgot about the danger. Although
it was
established in evidence that the child had been taught the dangers of
electricity, the court held that there was little,
if any,
cross-examination of the child and/or his parent to determine his
intellectual and emotional maturity at the time, nor
was there any
evidence led to rebut the inference of childish impulsive behaviour
that arose from his conduct. In the circumstances
it was held
that
Eskom
had not succeeded in rebutting the presumption that Jacques was
culpae incapax
at the time of the incident.
Analysis
Of The Evidence
[16]
S……… gave the following evidence: She was
walking with her sibling to buy sweets at the shop. She had
stopped
at the side of the road. To her left was a bus which was
stationary. It was parked along the side of the street partially
on
the gravel pavement. Prior to crossing the road, she looked
right and left and did not see any vehicles approaching, so
she
stepped into the road to cross the road. She was hit by the
insured vehicle which she did not see prior to it hitting
her. She
told the court that she was taught at school about road safety and
how she had to look left and right before she crossed
a road. She
knew that and she did it every day when she was walking to or from
school. She had walked home from school every day
in the past,
firstly in Grade 1 when her mother would accompany her and afterwards
with her sibling. They had changed schools in
Grade 4, since which
time, she had been walking to her school in Orange Farm. They only
had to cross one road and that was the
road in which the accident
took place. Her father knew that she crossed that street every day.
[17] S…….’s
father (“the Plaintiff”) gave evidence that he received a
telephone call telling him
she had been involved in an accident. When
he arrived at the scene, he found her lying in the street. The white
bakkie which had
collided with S…… was still at the
scene. According to him, the driver said he did not see the child and
that the
bus obscured his view.
[18] He confirmed
that his children walked to school and back every day since Grade 4.
He was aware that they had to cross that
road every day. His daughter
knew how to safely cross the street because he had taught his
children road safety. He was satisfied
that they understood what he
was saying.
[19]
According to both S……. and the Plaintiff, the area is
very busy and there are many cars and pedestrians around.
There are
also many children around the area as they always cross that road to
get to the school or back. The school was about
1 kilometre away from
the road.
[20] That was the
case for the plaintiff and the defendant did not call any witnesses.
[21] It will be
apparent from this analysis that the situation in certain of the
authorities quoted above can be differentiated
from the present case
in that in those cases, there were two versions presented which the
court had to deal with. The court had
the version of the insured
driver and the version of the child in the
Jones
case
supra
.
In this case we are left only with the version of the child. There is
no evidence to counter her version. No material concessions
or
contradictions were elicited by defendant in cross examination of S……
and the plaintiff. The version of the plaintiff
that the insured
driver said he did not see the child because his vision was obscured
by the bus was also not challenged.
[22] Plaintiff’s
counsel submitted that the case was covered by the
Child Justice Act
alternatively
the common law would apply in relation to a child
between the age of 7 to 14. In such a case, there was a rebuttable
presumption
of
doli incapax
which the defendant had to rebut.
It was submitted that in terms of
Section 7
of the
Child Justice Act,
a
child under the age of 10 is
doli incapax
and there was no
room for testing the capacity of such child. Whether or not
this applies to the situation of negligence
in civil law as opposed
to criminal law need not be decided in the present matter for the
reasons which are set out below.
[23]
The plaintiff argued that one of the duties of a driver approaching a
stationary vehicle (particularly a bus) is to do so with
consideration and reduced speed, as one can expect passengers to
alight therefrom. It appears to be common cause that the area
was a
busy area where children and other pedestrians cross the street and
cars appear to be frequent. It was submitted that there
is a duty
upon a driver when approaching such an area to take precautionary
measures, more particularly when there are pedestrians
and children
who might be on the side of the road and might cross unexpectedly.
Plaintiff’s counsel quoted from Klopper
[10]
and referred to several authorities in this regard, including
Weber
supra
where the court held:
“
The
use of the reasonable person test in gauging the negligence of a
legally accountable child seems to be inconsequent if viewed
against
the duty of a reasonable driver when approaching a child either as a
pedestrian or as a cyclist to exercise more care because
children are
inclined to act impulsively and therefore unlike a reasonable
person.
”
[24] Further cases
that were referred to held that a reasonable driver in a road which
is commonly used by the public, drivers,
cyclists and pedestrians
should foresee a number of situations that might cause problems and,
in particular, stationary traffic
which may obscure his view.
[25] The defendant’s
counsel submitted that the plaintiff had to prove negligence on the
part of the insured driver and it
is then for the defendant to show
if there was any contributory negligence. He submitted that it
was not possible to ascertain
precisely where the bus was, where the
point of impact was and that the only inference to be drawn was that
the minor child did
not have regard to the traffic and simply ran
into the road.
[26] This submission
of the defendant is speculative and no evidence was led to
corroborate such a submission, nor was any such
concession elicited
in cross examination. The defendant’s counsel also relied
heavily on the fact that the point of
impact was different according
to the plaintiff and S……... However, in my view,
nothing turns on this. It was not
possible for S……. to
know precisely where the point of impact was, where she was found or
whether she was moved.
The plaintiff also could not say whether or
not she had been moved further to the side of the road after the
collision. Reference
was made by counsel for the defendant to the
case of
Jones supra
and the reference to the Scottish case of
Campbell
supra
. In particular, he referred to the
paragraph in it which it was held that, if a child is sufficiently
mature or educated and is
aware of the dangers that need to be
avoided and how to avoid them, a failure to control himself or take
ordinary precautions would
be negligent conduct on his part.
[27] Even if one
accepts that S….. was a child of sufficient maturity and
education, and that she could be held liable, if
negligent, the
defendant has no evidence to rebut the plaintiff’s version that
S……. was not negligent. The
possibility that the
insured driver came from behind the bus and into the road as a result
of which he did not see the child crossing,
is as feasible as any
other inference that might be drawn.
[28] In my view,
firstly, on the authorities quoted above, there is a rebuttable
presumption that the child was
doli incapax
. Defendant failed
to rebut same. Secondly, even if one accepts that S…….
was
doli capax
and thus aware of her responsibilities and
could therefore have been liable for her negligence, the defendant
has not discharged
the burden of proving that S……. was
negligent.
[29] Accordingly, I
make the following order:
1)
The
defendant is held to be 100% liable in respect of any damages which
the plaintiff is found to have suffered in consequence of
the
collision which took place on 6 February 2011.
2)
The
defendant is to pay the plaintiff’s costs.
WEINER
J
For
Plaintiff:
M. Lufele
Zwelakhe
Mgudlandlu Attorneys
For
Plaintiff:
Van Der Berg
Mayat,
Nurick Langa Inc
Date
of hearing:
16 September 2014
Date
of Judgment:
27 April 2015
[1]
1965
(2) SA 542
(AD).
[2]
Supra
at 552
[3]
(1873)
1 R 149
[4]
1932
WLD 73
at 76
[5]
Jones
Supra
at 554 A
[6]
Supra
[7]
[2005]
3 ALL SA 415
(SCA)
[8]
1983
(1) SA 381
(A)
[9]
Supra
at
[17]
[10]
Law
of Collisions in South Africa
8
th
edition. Page 70