Summary of Judgment

1. Introduction

The proceedings were a Road Accident Fund (RAF) action in which the plaintiff sought compensation for bodily injuries allegedly sustained in a motor-vehicle-related incident. The judgment records that the court was required to determine the matter on the merits, namely whether the RAF was liable.

The parties were Mr Henry Peter Lewis as plaintiff and the Road Accident Fund as defendant.

The judgment was delivered as an ex tempore ruling by Mpofu AJ in the High Court of South Africa, Gauteng Local Division, Johannesburg, under case number 0577/2019 (revised and signed on 22 September 2023). The court noted that the defendant’s defence had previously been struck out by another judge, and that certain allegations raised by the defendant (including suspicions of fraud and issues relating to vehicle ownership) were, on the plaintiff’s version as recorded by the court, being raised for the first time notwithstanding the struck-out defence.

The subject-matter of the dispute concerned whether injuries sustained during an incident involving the towing (jump-starting) of a motorcycle by a bakkie constituted compensable harm under the RAF scheme, and, if so, the appropriate apportionment of liability given allegations of contributory negligence by the plaintiff.

2. Material Facts

The plaintiff was a 65-year-old self-employed male. The incident occurred in 2017. The plaintiff’s son owned a motorcycle that he wished to sell, but it would not start due to a failing or flat battery. The plaintiff and his son decided to attempt to jump-start the motorcycle by towing it behind a bakkie belonging to the plaintiff, using a strap of approximately 4.5 to 5 metres.

The court accepted that the plaintiff and his son assisted each other in taking the two vehicles out of their yard (described as a “panhandle” type property). The strap was tied “very tight” to tow the motorcycle.

The precise mechanism of the mishap was not fully clarified in the judgment. The court recorded that it was suspected that the son hit the brakes, resulting in the motorcycle throwing or ejecting the plaintiff, who landed on rocks. The plaintiff’s account, as recorded, was that he swerved to the left to avoid hitting the bakkie, and that this led to him landing on the ground. On either account, the court treated it as common cause that the plaintiff was ejected from the motorcycle while it was being towed and suffered serious injuries.

The injuries recorded by the court included a broken shoulder, broken collar bone, several broken ribs, and a severe head injury causing subarachnoid haemorrhaging (bleeding in the brain). The plaintiff reported ongoing functional impairment, specifically that his left side did not function as it should.

The court recorded that the accident was not reported until after four months. The plaintiff attributed this to having been in an induced coma for four months.

The court also recorded the plaintiff’s evidence concerning his post-accident work capacity: he previously worked as a contractor in the mines but could not pass the tests required to return to that type of work after the accident.

As to disputed matters, the judgment indicates uncertainty about certain technical aspects (for example, whether the strap used was of an appropriate length for towing), and the court expressly stated that it had no basis for a contention regarding required strap “meterage,” notwithstanding that the issue was mentioned.

3. Legal Issues

The central legal questions the court was required to determine were whether the RAF was liable for the plaintiff’s injuries arising from the incident, and, if liability was established, the appropriate apportionment of responsibility between the RAF-insured liability and contributory negligence by the plaintiff.

A further legal issue addressed in the judgment, although treated as not ultimately determinative in the way initially framed, concerned whether the harm was caused by the negligent driving of a motor vehicle or by an unlawful act connected to a motor vehicle or the driving thereof, consistently with the requirement for a compensable claim under the RAF scheme as discussed by the court with reference to authority.

The dispute therefore involved an application of legal principles to facts (whether the incident was sufficiently connected to the driving or use of a motor vehicle for RAF liability, and whether negligence was established), together with an evaluative assessment regarding contributory negligence and apportionment.

4. Court’s Reasoning

The court approached the merits on the basis that RAF liability depends on injury caused by the negligent driving of a motor vehicle or other unlawful conduct connected to a motor vehicle or its driving. In this connection, the court referred to Jeffrey v Road Accident Fund 2012 (4) SA 475 (GSJ), as authority for the proposition that a claimant can only succeed if injured by negligent driving of a motor vehicle (or a connected unlawful act), and that injuries caused by something other than such driving or connection are not compensable under the RAF scheme. The judgment also noted, in the context of broader interpretive approaches, that courts have adopted a liberal approach in interpreting what constitutes a “motor vehicle,” although this observation did not culminate in a detailed definitional analysis in the reasons provided.

Although the court quoted the portion of Jeffrey emphasising the statutory definition of “motor vehicle,” it expressly stated that the definitional issue was not the issue in this matter, because (on the version before it) the incident involved a bakkie (referred to as a van in the ex tempore reasons) towing the motorbike. On that basis, the court treated the incident as sufficiently connected to the operation of a motor vehicle to ground RAF liability, and proceeded to determine negligence and apportionment.

On negligence and apportionment, the court made an evaluative finding that there was a portion of negligence on the part of the plaintiff. The first and clearly stated basis was that the plaintiff did not wear a helmet. The second consideration mentioned was uncertainty about towing practice, specifically whether straps should be a certain length to qualify to tow a particular vehicle; however, the court indicated it had no basis for this contention and did not develop it as an established factual finding.

Plaintiff’s counsel argued for an 80/20 apportionment in the plaintiff’s favour. The court, having considered the matter, concluded that the RAF was liable but that the appropriate apportionment was not 80/20. Instead, the court determined liability on a 60/40 basis, reflecting its assessment of the plaintiff’s contributory negligence, with particular emphasis on the failure to wear a helmet.

The judgment also recorded that the court engaged with questions raised by the defendant’s representative concerning suspected fraud and investigations, but given that the defence had been struck out and the judgment does not reflect a substantive determination on fraud-related allegations, these matters did not form the basis of the merits decision as delivered.

5. Outcome and Relief

The court held that the Road Accident Fund is liable for the plaintiff’s damages arising from the incident, but subject to apportionment.

The court determined that liability should be apportioned at 60/40, rejecting the plaintiff’s requested apportionment of 80/20. On the face of the judgment, this reflects that the RAF bears 60% of the liability and the plaintiff bears 40% due to contributory negligence (notably the failure to wear a helmet).

The judgment, as transcribed, does not record any express order as to costs, nor does it set out further quantified relief or directions beyond the apportionment of liability.

Cases Cited

Jeffrey v Road Accident Fund 2012 (4) SA 475 (GSJ)

Legislation Cited

Road Accident Fund Act 56 of 1996, section 1 (definition of “motor vehicle”) (as referred to in the judgment)

Rules of Court Cited

No specific rule of court is expressly cited in the judgment.

Held

The High Court held that the plaintiff’s injuries occurred in circumstances giving rise to RAF liability connected to the towing incident involving the plaintiff’s bakkie and the motorcycle. However, because the plaintiff was contributorily negligent, particularly by not wearing a helmet, the RAF’s liability was apportioned. The RAF was held liable for 60% of the plaintiff’s proven damages, with the plaintiff bearing 40% of the responsibility.

LEGAL PRINCIPLES

RAF liability depends on injury caused by the negligent driving of a motor vehicle, or an unlawful act sufficiently connected to a motor vehicle or the driving thereof, as discussed with reference to Jeffrey v Road Accident Fund 2012 (4) SA 475 (GSJ).

Where a claimant’s own conduct materially contributes to the harm, the court may make an evaluative finding of contributory negligence and determine an appropriate apportionment of liability. In this matter, the failure to wear a helmet was treated as a material contributor to the plaintiff’s harm and justified reducing the RAF’s portion of liability to 60%.