Brief Summary

Delict — Road Accident Fund — Claim for damages arising from injuries sustained while evading armed robbers — Plaintiff, a cash in transit security officer, injured while driving an armoured vehicle pursued by armed assailants — Court to determine liability under section 17(1) of the Road Accident Fund Act — Plaintiff's injuries linked to his high-speed driving while being shot at, but no evidence of negligence by the driver of the pursuing vehicle — Causal connection between the driving of the vehicles and the injuries sustained insufficient to establish liability of the Road Accident Fund — Claim dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

These proceedings were a delictual damages claim against the Road Accident Fund in terms of the statutory scheme governing third-party compensation for motor vehicle-related injuries. The matter came before the High Court of South Africa (North Gauteng High Court, Pretoria), with Pretorius J delivering judgment.

The plaintiff, Mr J.A. Laas, instituted action for damages arising from bodily injuries sustained during an incident connected to the driving of motor vehicles. The defendant was the Road Accident Fund (“RAF”), cited as the statutory compensator.

At the outset, the court was requested to separate the issues of merits and quantum in terms of Uniform Rule 33(4). The separation was granted. The judgment therefore determined only liability and causation (with quantum postponed). The facts were recorded as common cause, the plaintiff was the only witness, and the defendant closed its case without leading evidence. After argument, the defendant sought and obtained an unopposed amendment to its plea to introduce an allegation of contributory negligence.

The general subject-matter of the dispute was whether injuries sustained by the plaintiff—while escaping an armed attack and being pursued by another vehicle—were injuries “caused by or arising from the driving of a motor vehicle” and “due to the negligence or other wrongful act” of an identified driver, as required by section 17(1) of the Road Accident Fund legislation.

2. Material Facts

The plaintiff was employed as a cash-in-transit security officer by Fidelity Guards. On 7 June 2007 at approximately 07h20, he was driving an armoured security vehicle while delivering pension money to the Ekangala Post Office, accompanied by a colleague.

While the plaintiff waited inside the armoured vehicle for his colleague (who had taken the money into the post office), the armoured vehicle was boxed in by two vehicles, described as a Land Rover and a Honda. A number of armed men approached. One of the assailants attempted to break the outside glass on the passenger side; access was not obtained because the inside window was armoured. The assailants then fired multiple shots at the plaintiff and the armoured vehicle.

In response, the plaintiff used the armoured vehicle to push the blocking vehicles out of the way and drove off at high speed towards the police station. He was pursued by the Honda, which remained approximately 30 metres behind, and the occupants continued shooting at his vehicle.

While fleeing, the plaintiff travelled at approximately 100–110 km/h and traversed several speed bumps on the main road at that speed. The court accepted that this driving over speed bumps at high speed caused injuries to the plaintiff’s cervical spine. The Honda maintained the pursuit at a similar speed.

On the pleadings and argument, the identity of the relevant vehicles and their drivers (at least in the sense required for an “identified claim”) was treated as established on the common-cause facts placed before the court, and the case proceeded on the basis that the question was whether the plaintiff’s injuries fell within the statutory requirement that they be caused by or arise from driving, and be due to a wrongful act of a driver.

Where dispute was raised, it related to liability characterisation rather than primary factual occurrence. The defendant’s late amendment introduced alleged contributory negligence, but the defendant led no evidence to support that defence, and the court did not find contributory negligence proved.

3. Legal Issues

The central legal questions were whether, on the established facts, the plaintiff’s cervical spine injuries were:

Whether they were “caused by or arising from the driving of a motor vehicle” as contemplated in section 17(1), in circumstances where the immediate mechanism of injury was the plaintiff’s own driving over speed bumps while fleeing, rather than a collision caused by the pursuing vehicle.

Whether the injuries were “due to the negligence or other wrongful act” of the driver (or owner) of the insured motor vehicle, with the plaintiff relying on the pursuing driver’s conduct in enabling a sustained armed attack during the chase.

Whether the causal link between the driving of the pursuing Honda and the plaintiff’s injuries was sufficiently real and close to meet the statutory causation standard articulated in the case law.

Whether the plaintiff was contributorily negligent, given the manner in which he drove while escaping, and if so whether that should reduce liability; and, procedurally, whether this defence could succeed in the absence of evidence.

The dispute primarily concerned the application of legal causation principles to largely undisputed facts, coupled with an evaluative judgment about the closeness of the connection between the driving of the pursuing vehicle and the resulting injuries.

4. Court’s Reasoning

The court approached liability through section 17(1), emphasising that the RAF’s obligation arises only where bodily injury is caused by or arises from the driving of a motor vehicle, and where the injury is due to the negligence or other wrongful act of a driver (or owner or employee) connected to that driving.

Relying on the interpretive approach reflected in the authorities and in the cited textbook commentary, the judgment treated the statutory phrase “negligence or other wrongful act” as requiring a restrictive interpretation consistent with the object of the Act, namely compensation for harm sufficiently connected to motor vehicles and their driving, rather than extending the Fund’s liability to claims only remotely involving a vehicle.

The court further applied the distinction articulated in Kemp v Santam Insurance 1975 (2) SA 329 (W), which stressed that the statutory enquiry contains two prerequisites and therefore two separate enquiries. First, whether the injury was caused by or arose out of driving; and second, whether the injury was due to negligence or another unlawful act by the driver (or owner etc). The court accepted that these enquiries can be conflated in ordinary collision cases, but require careful separation where the injury mechanism is not a direct impact from negligent driving.

On causation, the court adopted the “common-sense” standard drawn from Wells and Another v Shield Insurance Co Ltd and Others 1965 (2) SA 865 (C). In that formulation, where the direct culpable cause is the same act or omission in the actual driving of the vehicle, injury will generally be described as “caused by” driving; but where the cause is antecedent or ancillary, the question is whether, on ordinary common-sense standards, the causal connection is sufficiently real and close to justify the conclusion that the injury arose out of driving.

On the facts, the court’s reasoning treated the pursuit by the Honda as conduct integrally connected to the armed attack. The plaintiff’s evidence was that he drove faster and more recklessly to evade the pursuing Honda and to reach the police station because the occupants of the Honda were continuously shooting at him. Although there was no evidence that the driver of the Honda personally fired shots, the court considered that the driver’s manner of driving and chasing nevertheless enabled the occupants to continue shooting at the plaintiff’s vehicle.

The court reasoned that, had the driver of the Honda not pursued in the manner described—maintaining proximity and speed so as to facilitate continued gunfire—the plaintiff would not have been compelled to flee in the same way that resulted in injury. The causal relationship between the driving of the Honda (as facilitating the continued attack) and the injuries sustained by the plaintiff was therefore found to be sufficiently real and close to satisfy the statutory requirement. In reaching this conclusion, the court aligned the factual pattern with authority recognising liability where driving facilitates an attack over a distance, as illustrated by Khumalo v Multilateral Motor Vehicle Accidents Fund 1997 (4) SA 384 (NPD), where the pursuing vehicle’s driving enabled shooters to fire at occupants of another vehicle during a chase.

The judgment also referred to General Accident Insurance v Xhego [1991] ZASCA 189; 1992 (1) SA 580 (A) as an example of the recognised distinction between negligent driving and another unlawful act connected to driving, and to Road Accident Fund v Russell 2001 (2) SA 34 (SCA) in the context of legal causation and the flexible approach endorsed in determining whether legal causation exists on considerations of reasonableness, fairness, and justice. Within the confines of the present case, the court’s conclusion on causation remained grounded in the “real and close connection” approach in Wells and its application in subsequent cases dealing with pursuit-and-shooting scenarios.

As to contributory negligence, the court noted that the defendant led no evidence. In those circumstances, and on the record before it, the court was not prepared to find that the plaintiff was negligent in a manner that contributed to his injuries. The defendant’s amended plea thus did not alter the outcome on liability.

5. Outcome and Relief

The court declared that the defendant is liable to compensate the plaintiff for 100% of his proven or agreed damages flowing from the incident of 7 June 2007, described in the order as the event in which the plaintiff traversed speed bumps while escaping an attack on him and/or the vehicle he was driving.

The defendant was ordered to pay the plaintiff’s party-and-party costs on the High Court scale, including costs consequent upon the employment of senior counsel. The defendant was further ordered to pay interest on costs a tempore morae at the prescribed statutory rate of 15.5% per annum, calculated from the date of the taxing master’s allocatur (alternatively date of agreement on costs) to date of payment.

The issue of quantum was postponed sine die.

Cases Cited

Wells and Another v Shield Insurance Co Ltd and Others 1965 (2) SA 865 (C).

Kemp v Santam Insurance 1975 (2) SA 329 (W).

General Accident Insurance v Xhego [1991] ZASCA 189; 1992 (1) SA 580 (A).

Road Accident Fund v Russell 2001 (2) SA 34 (SCA).

Khumalo v Multilateral Motor Vehicle Accidents Fund 1997 (4) SA 384 (NPD).

Legislation Cited

Road Accident Fund Act 56 of 1996, section 17(1).

Rules of Court Cited

Uniform Rules of Court, Rule 33(4).

Held

The court held that the plaintiff’s cervical spine injuries, sustained when he drove at high speed over speed bumps while fleeing an armed attack, were sufficiently connected to the driving of the pursuing Honda and the wrongful conduct associated with that pursuit to fall within section 17(1). The driver of the Honda, by pursuing in a manner that enabled continued shooting from the vehicle, was found to have engaged in an unlawful act closely related to driving, and the causal connection between that driving and the plaintiff’s injuries was held to be real and close.

The court further held that, in the absence of any evidence led by the defendant, contributory negligence on the plaintiff’s part was not established, and the RAF was liable for 100% of the plaintiff’s proven or agreed damages, with costs and interest on costs ordered as set out in the order, and quantum postponed sine die.

LEGAL PRINCIPLES

Liability under section 17(1) requires satisfaction of two distinct statutory prerequisites: the bodily injury must be caused by or arise from the driving of a motor vehicle, and it must be due to the negligence or other wrongful act of the driver (or owner or employee in the course of employment). These are separate enquiries, even though they often overlap in ordinary collision cases.

For the “caused by or arising from” requirement, the applicable test is whether, applying ordinary common-sense standards, the causal connection between the injury and the driving is sufficiently real and close to justify the conclusion that the injury arose out of driving. The mere coincidence that a vehicle was being driven at the relevant time is not, without more, sufficient.

Where a vehicle is driven in a manner that facilitates an unlawful attack during a pursuit (for example, enabling occupants to shoot at another vehicle over a distance), injuries sustained in the course of the pursued vehicle’s attempt to escape may, depending on the facts, be found to arise out of the driving of the pursuing vehicle and to be due to an other wrongful act connected to such driving.

A defence of contributory negligence requires evidential support. Where a defendant leads no evidence, a court may be unable to find contributory negligence proved on the facts accepted by the court.

Laas v Road Accident Fund (6238/2010) [2011] ZAGPPHC 179; 2012 (1) SA 610 (GNP) (29 September 2011)