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[2019] ZAGPJHC 529
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T M v Road Accident Fund (2018/6687) [2019] ZAGPJHC 529 (13 December 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER : 2018/6687
In
the matter between:
T
M Plaintiff
and
THE
ROAD ACCIDENT
FUND Defendant
J
U D G M E N T
VAN
DER BERG AJ
[1]
The plaintiff instituted a claim against the Road Accident Fund for
compensation for damages as a result of injuries she had
sustained.
At a pre-trial hearing an order was made separating the merits and
the quantum in terms of rule 33(4), and
the trial only proceeded on
the merits.
[2]
The plaintiff was the only witness at the trial, and her evidence was
as follows:
[3]
The plaintiff and a friend boarded a taxi in Vosloorus to drive them
home after work. Two unknown males (I shall refer
to them as
“the hijackers”) also boarded the taxi. One
of the hijackers asked the driver to stop so that
they could alight,
but after the driver stopped one of the hijackers took out a firearm
and pointed it at the taxi driver.
The driver was dragged
out of the vehicle, and one of the hijackers then drove the vehicle
off. The other hijacker
sat at the back next to the
plaintiff and pointed a firearm at her. The plaintiff’s
friend sat in the front passenger
seat. The plaintiff started
crying and the hijacker, who sat next to her, told her to stop crying
and then shot her in the
left upper leg. He then opened the
right-hand back door and pushed the plaintiff out of the vehicle
whilst it was in motion.
She fell and rolled outside. The
vehicle proceeded with the plaintiff’s friend still in the
vehicle. The plaintiff
sustained injuries to her left leg,
right leg, left arm and head. The injuries were sustained as a
result of the gunshot
and from the fall when the plaintiff was pushed
out the vehicle.
[4]
The plaintiff’s evidence was undisputed, and she was a good
witness. The plaintiff’s evidence is accepted
in
toto
.
[5]
In paragraphs 5 and 6 of the plaintiff’s particulars of claim
the following is alleged:
“
5. On 2
nd
December 2015 at approximately 19h15 and at Vosloorus, the Plaintiff
was injured when she was ejected from a motor vehicle bearing
registration letters and numbers HRG […] GP.
6. The sole cause of
the collision aforesaid was the negligent driving of the unknown
driver of the insured vehicle, he having been
negligent in one or
more or all of the following respects:
6.1
He failed to keep a lookout,
alternatively
, any
proper lookout; and/or
6.2
He failed to keep the motor vehicle of which he was the driver under
any,
alternatively
, any proper control; and/or
6.3
He failed to avoid the collision when, by the exercise of reasonable
care, he could and should have do so; and/or
6.4
He failed to apply the brakes of the motor vehicle of which he was
the driver timeously or at all; and/or
6.5
He failed to pay due regard to the rights of any passengers and in
particular the rights of the Plaintiff; and/or
6.6
He failed to exercise the care a reasonable person would and could
have exercised under the circumstances.
7. As a result of the
negligent driving of the insured motor vehicle, as aforesaid, the
Plaintiff sustained the following injuries
(“the injuries”):….”
[6] The defendant’s
amended plea to these allegations reads as follows:
“
4
AD
PARAGRAPHS 5 AND 6
4.1
The Defendant denies each and every allegation contained in these
paragraphs as if specifically traversed and puts the Plaintiff
to the
proof thereof;
4.2
The Defendant specifically denies that the motor vehicle bearing
registration letters and numbers HRG […] GP was involved
in a
collision as alleged or at all and that the Plaintiff was ejected
from the aforesaid motor vehicle as alleged or at all;
4.3
In this regard, the Defendant specifically pleads that, on the date
and at the time as pleaded by the Plaintiff, she was injured
when she
was assaulted and subsequently shot in a hijacking of the aforesaid
motor vehicle;
4.4
the Defendant pleads further that at the time of the occurrence of
the incident and the injuries to the Plaintiff, the insured
motor
vehicle was stationary and the driver thereof (the Defendant’s
Insured Driver) was outside of the motor vehicle;
4.5
Wherefore the Defendant pleads that the injuries sustained by the
Plaintiff on the date and at the time as pleaded by the Plaintiff
did
not arise from the negligent driving of a motor vehicle.”
[7]
The differences between the plaintiff’s evidence and the
pleaded case are dealt with later in this judgment.
THE
LAW
[8]
Section 17(1) of the Road Accidents Fund, Act 56 of 1966 (“
the
RAF Act
”) provides as follows:
“
The Fund or an
agent shall-
(a)
subject to this Act, in the case of a claim for compensation
under this section arising from the driving of a motor vehicle where
the identity of the owner or the driver thereof has been established;
(b)
subject to any regulation made under section 26, in the case of a
claim for compensation under this section arising from the
driving of
a motor vehicle where the identity of neither the owner nor the
driver thereof has been established,
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: Provided that the
obligation of the Fund to compensate a third party for non-pecuniary
loss shall be limited to compensation
for a serious injury as
contemplated in subsection (1A) and shall be paid by way of a lump
sum.”
[9]
In
Wells
and Another v Shield Insurance Co Ltd and Others
1965 (2) SA 865
(C) Corbett J (as he then was) said the following
about one of the precursors of section 17(1) of the RAF Act:
[1]
“
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 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. 736 - 7). Accordingly, these enquiries may
follow wholly distinct lines.”
FIRST
REQUIREMENT: WHETHER INJURIES AROSE OUT OF DRIVING OF MOTOR VEHICLE
[10]
In
Philander
[2]
the plaintiff alleged in her declaration that she was pushed from a
moving bus by the conductor, and that as a consequence she
fell and
the rear wheels of the vehicle ran over her legs. The court held (on
exception against the declaration) that the conductor’s
conduct
was unconnected with the driving of the bus and the injuries were
neither caused by nor arose out of the driving of the
bus.
[11]
However, in
Pillay
[3]
the court disagreed with the finding in
Philander.
[4]
In
Pillay
the
plaintiff alleged in his summons that the conductor of a bus “
forced
the plaintiff’s hand free from the handrail to which he was
holding in consequence whereof the plaintiff fell from
the bus
.”
The defendant delivered an exception contending that the summons did
not disclose a cause of action. Broome
J (as he then was) held:
“
It seems to me
that to fall from or be pushed off a bus is manifestly more dangerous
when the bus is in motion than when it is stationary.
In the
first place the initial contact with the ground would be more violent
in the case of a fall from a moving bus, and the forward
momentum in
the direction of travel of the bus would make it more difficult, or,
depending on the speed of the bus, impossible
for the person
concerned to remain on his feet. It could, again depending on
the speed, even causing to roll ‘head
over heels’ for
some distance.”
[5]
[12]
Counsel referred me to the unreported judgment handed down by Snyders
J (as she then was) in the matter of
Erika Steyn v Road Accident
Fund
, Witwatersrand Local Division, case number 00/16330 (10 June
2004) (“
Steyn
”), which was also a claim against
the Road Accident Fund where the plaintiff was a victim of a
hijacking. The facts were
briefly: after armed men motioned the
plaintiff out of her vehicle, she opened the rear door to remove a
carrycot with her baby
from the back seat. The motor vehicle started
moving whilst the plaintiff held onto the carrycot. One of the
assailants (not the
driver) shot the plaintiff in the arm but she
still held on and tried to pull the carrycot from the vehicle. She
was dragged by
the motor vehicle until she fell onto the tarmac.
[13]
The learned
judge held:
[6]
“
A common sense
approach to these facts in my view gives rise to the conclusion that
the injuries that the plaintiff sustained as
a result of her moving
along with the vehicle whilst hanging on to the carrycot inside the
car, i.e. falling down and being dragged,
are injuries that arose
from the driving of the relevant motor vehicle.”
[14]
The learned
judge agreed with the conclusion in
Pillay
,
and disagreed with the conclusion in
Philander
.
[7]
[15]
Both in
Steyn
and in
Pillay
the courts relied on
Matinise
[8]
where
the Appellate Division held:
[9]
“…
that
the lorry was in motion when the plaintiff fell from it, even though
it was not travelling fast and was proceeding in a straight
line,
must have contributed to his fall. In my opinion there were two
contributory factors. The first was that plaintiff
attempted to
walk to the rear of the lorry while he was under the influence of
liquor and the second was that the vehicle was in
motion when the
attempt was made. In addition thereto I am of the view that the
momentum of the lorry must have contributed
to the severity of the
injuries suffered by the plaintiff.
For the reasons stated
I have come to the conclusion that there was a causal connection
between the driving of the lorry and the
injuries sustained by the
plaintiff…”
[16]
In my view, based on
Steyn
(a judgment in this division),
Pillay
and
Matinise
, the injuries sustained by the
plaintiff when she was pushed out of the moving car arose from the
driving of a motor vehicle as
required in terms of section 17(1) of
the RAF Act.
[17]
The injuries sustained by the gunshot is however a different matter.
Due to the similarities to the
Steyn
case I quote extensively
from this judgment:
“
[21] More
complicated, however, is the question of the gunshot wound that she
sustained.
[22] On behalf of the
plaintiff reliance was placed n the matter of Khumalo v Multilateral
Motor Vehicle Accidents Funds
1997 (4) SA 384
(N). Counsel
conceded that the facts in that matter was substantially different to
the present one however want to place
reliance on the principle that
was adopted in that case. In the Khumalo matter a Cressida
vehicle was driven alongside a
taxi in such a manner that a gunman
who was a passage in the Cressida was able to fire a gun into the
taxi and at the occupants,
particularly the driver of the taxi, who
was struck by a bullet on the back of his head, causing him to lose
control of the vehicle
and to hit a tree. The plaintiff,
a passenger in the taxi was injured in the accident. BROOME DJP
in that matter
came to the following conclusion at 388H:
‘
On
any reckoning there was a causal connection between the driving of
the Cressida and the injury to the taxi driver. Furthermore,
the driver was acting in concert with and deliberately facilitating
the gunman’s objectives. I am satisfied that the
injury
to the taxi driver and the subsequent injuries to the plaintiff arose
out of the driving of the Cressida ands were due to
the negligence or
unlawful act of its driver.’
[23] In the present
case the driver of the hijacked did nothing to assist the
gunman to fire a shot at the plaintiff.
[24] Both the driver
of the plaintiff’s vehicle as well as the gunman were acting in
the furtherance of their common, overall
unlawful goal, to dispossess
the plaintiff of her vehicle and to successfully drive it away from
her. On behalf of the plaintiff
it was argued, that once that
is accepted, the conclusion is inevitable that the driver was
furthering his own and the gunman’s
objective and that the
gunman was furthering his own and the driver’s objective,.
Those facts are, in my view, not relevant
to the enquiry whether the
injury was caused by or arose out of the driving of the vehicle but
to the enquiry whether they were
negligent or both busy with an
unlawful act. The argument would have been apposite if the
enquiry was to ascertain whether
the injuries arose out of the
robbing of the vehicle and not out of the driving of the vehicle.”
[18]
In my view,
those findings are equally applicable to the facts in this matter
whereas
Khumalo
[10]
is distinguishable on the facts.
[19]
Accordingly, the injuries sustained by the plaintiff from the gunshot
fall outside the ambit of section 17(1) of the RAF Act.
SECOND
REQUIREMENT: WHETHER INJURIES DUE TO NEGLIGENCE OR OTHER UNLAWFUL ACT
OF DRIVER
[20]
This
requirement is concerned with the “
legally
blameworthy conduct on the part of certain persons as being the cause
of the bodily injury.”
[11]
[21]
Adopting a
common-sense approach
[12]
there was a causal connection between the unlawful driving of the
motor vehicle (being part of a hijacking or robbery) and the
injuries
sustained by the plaintiff when pushed out of the vehicle.
[13]
It is not necessary to decide whether the injuries were also due to
the negligence of the driver.
PLEADINGS
[22]
The plaintiff’s evidence differs materially from the
allegations contained in the particulars of claim. In the particulars
it is alleged that there was a “collision” which was
caused by the “negligent driving” of an unknown
driver. A number of standard grounds of negligence are then set out.
There is no allegation that the driving was “unlawful”.
[23]
The defendant denied in its plea that there was a collision, and
specifically pleaded that the plaintiff was “
assaulted and
subsequently shot in a hijacking
”.
[24]
At a case management conference held before a judge the following was
recorded:
“
The principle
factual dispute is whether the injuries were sustained as a result of
a collision or was sustained as a result of
an assault by a
hijacker.
”
[25]
This is indeed the factual dispute on the pleadings. The plaintiff
did not indicate at the case management conference that
it was not in
issue that there was no collision.
[26]
Our courts
have often emphasised the importance of pleadings.
[14]
In cases such as these, the Fund’s option to take an exception
against the particulars of claim on the basis that they do
not
disclose a cause of action is effectively nullified. Both
Pillay
and
Philander
were dealt with on exception. It is also not possible for the Fund to
consider an appropriate settlement where the plaintiff’s
particulars of claim do not accord with the true facts.
[27]
In
Du
Toit obo Dikeni v Road Accident Fund
[15]
the
court quoted with approval the following extract from
Erasmus
Superior Court Practice
:
“
The object of
pleading is to define the issues so as to enable the other party to
know what case he has to meet. The parties are,
therefore, limited to
their pleadings: a pleader cannot be allowed to direct the attention
of the other party to one issue, and
then at the trial attempt to
canvas another. However, since pleadings are made for the court . . .
it is the duty of the court
to determine what are the real issues
between the parties and, provided no possible prejudice can be caused
to either party, to
decide the case on these real issues. . . .The
general principle is that the parties will be held to the issues
pleaded unless
there has been a full investigation of the matter
falling outside the pleadings. . . .”
[28]
The plaintiff had made a written statement before summons was issued.
Reference was made to the statement during cross-examination.
This
statement accords with her evidence in court. The reference to
a “collision” in the particulars of claim
is therefore
not due to the plaintiff changing her version, and it was not
suggested that it was.
[29]
I am satisfied that the defendant was not prejudiced by the incorrect
pleading. It was clear from the cross-examination
and arguments
presented on behalf of the defendant that the defendant was aware
that the real issue in this matter was the interpretation
of section
17 of the RAF Act. The matter is therefore adjudicated on the basis
of the plaintiff’s evidence, even though it
differs from her
particulars of claim.
COSTS
[30]
It was submitted on behalf of the defendant that should the injuries
arising from the gunshot be excluded, the plaintiff’s
claim may
not exceed the maximum jurisdiction of the Magistrate’s Court,
which would have a bearing on the scale of costs
to be awarded. It
was submitted that costs should therefore be reserved.
This seems to be a sensible suggestion.
ORDER
[31]
The following order is made:
1. It is declared that
the defendant is liable to compensate the plaintiff for her proven or
agreed damages resulting from the incident
which occurred on 2
December 2015 at Vosloorus, save for injuries sustained by the
plaintiff as a result of the gunshot wound.
2. Costs are reserved.
____________________
VAN DER BERG AJ
APPEARANCES:
For
the plaintiff
: Adv J N W Botha
Instructed
by: A Wolmarans Inc
For
the respondent
: Adv J Magodi
Instructed
by: Lindsay Keller
Date
of hearing
: 24 October 2019
Date
of judgment
: 13 December 2019
[1]
At 867 H – 868 A
[2]
Philander
v Alliance Assurance Co Ltd
1963 (1) SA 561 (C)
[3]
Pillay
v Santam Insurance Co Ltd
1978 (3) SA 43 (D)
[4]
At 46F
[5]
At 45 H – 46A
[6]
At paragraph [20]
[7]
Paragraph [26]
[8]
Protea
Assurance Co Ltd v Matinise
1978
(1) SA 963 (AD)
[9]
At 972C-D
[10]
Khumalo
v Multilateral Motor Vehicle Accidents Funds
1997
(4) SA 384
(N), discussed in
Steyn
[11]
See
Wells
(supra)
[12]
See
Wells
(supra
)
at 87- C – D/D – H,
[13]
See
Steyn,
paragraphs
[19] and [20];
Laas
v Road Accident Fund
2012 (1) SA 610 (GNP)
[14]
See for example:
Atlantis
property holdings CC v Atlantis Exel Service Station
CC
2019 (5) SA 443
(GP) at paragraph [35]
[15]
2016 (1) SA 367
(FB) at paragraph [43]