About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2012
>>
[2012] ZAECPEHC 48
|
|
Plumridge v Road Accident Fund (2656/2009) [2012] ZAECPEHC 48 (7 August 2012)
7
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, PORT
ELIZABETH
Case no: 2656/2009
Date heard: 24.07.2012
Date delivered:
07.08.2012
In the matter between:
ADUM TREVOR PLUMRIDGE
….....................................................
Applicant
/ Plaintiff
vs
ROAD ACCIDENT FUND
…....................................................
Respondent
/ Defendant
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
TSHIKI J:
A) INTRODUCTION
[1] In the trial which
lasted for two (2) days, applicant (plaintiff
a quo
) sued
respondent (defendant
a quo
) for damages arising out of the
collision at Scribante race track at Markman in Port Elizabeth. The
collision occurred on 4 November
2007. At the end of the trial I
granted judgment with costs in favour of the respondent on the merits
as well as on the special
defence of
volenti non fit injuria
(volenti
) which was pleaded by defendant.
[2] Applicant has now
applied for leave to appeal to the Supreme Court of Appeal on the
amended grounds,
inter alia
, that:
[2.1] the accident was at
least partly caused by the negligence of the insured driver referred
to as Dates; and
[2.2] the maxim
volenti
non fit iniuria
is not applicable in the present situation.
[3] During the argument
of this application, Mr TD Potgieter SC appeared for the applicant
(plaintiff) and Mr H Van der Linde SC
represented the respondent
(defendant).
[4] In view of the
concessions made by Mr Potgieter, and correctly so in my view, that
the initial grounds of application for leave
to appeal regarding the
Court’s evaluation of the evidence were incorrect and were not
to be pursued in this application,
I need not herein deal
exhaustively with the merits of the evidence
vis-a-vis
its
evaluation. I will, therefore, only have regard to the evidence which
is relevant to the two grounds specified by Mr Potgieter
in paragraph
5 of his heads of argument which are:
[4.1] that there is a
more than reasonable prospect that another Court will find that:
[4.1.1] the accident was
at least partly caused by the negligence of the insured driver;
[4.1.2] that the maxim
volenti
non fit iniuria
is
not applicable in the instant situation.
[5] Firstly, the
submission that applicant was not aware of Dates’ presence on
the track and that this was not contested does
not assist the
applicant herein. Overwhelming evidence which I have accepted is that
drivers who used the track under the conditions
specified in the main
judgment which are,
inter
alia
,
without permission and at their own risk, should have reasonably
foreseen that there could be other racers in the track at the
very
same time they themselves were being timed. This conclusion is borne
by the fact that there was no one controlling and or
manning the
track. Therefore, applicant cannot have any excuse that he was not
aware of Date’s presence on the track. He
should reasonably
have foreseen that another driver could have been in the track with
him and, therefore, should have been alive
to that fact and then take
the necessary precautions.
[6] Secondly, I have not
found that the accident was in the slightest degree, partly caused by
the negligence of the insured driver.
My evaluation of the evidence
does not suggest anything to that effect, nor do I consider to be any
acceptable evidence suggesting
so.
[7] On the question of
volenti
non fit iniuria
it
has been suggested that no one can consent to negligent driving. In
English law Pollock
1
on Torts, 15
th
edition Chapter 4 para 10
p 112 under the heading “Leave and licence:
Volenti
non fit injuria –
“
Harm
suffered by consent is, within limits to be mentioned, not a cause of
civil action. The same is true where it is met with under
conditions
manifesting acceptance, on the part of the person suffering it, of
the risk of that kind of harm. The maxim by which
the rule is
commonly brought to mind is
volenti
non fit injuria
.
‘Leave and licence’ is the current English phrase for the
defence raised in this class of cases. On the one hand,
however,
volenti
non fit injuria
is
not universally true. On the other hand, neither the Latin nor the
English formula provides in terms for the state of things
in which
there is not specific will or assent to suffer something which, if
inflicted against the party’s will, would be
wrong, but only
conduct showing that for one reason or another, he is content to
abide the chance of it. Some learned persons would
make this a
distinct ground of excuse under the name of ‘assumption of
risk’.”
[8] In America they use
the term Assumption of risk to refer to a situation which in our law
is referred to as
volenti
non fit injuria
.
Voluntary exposure to danger is listed under contributory negligence
and the case where “a plaintiff rides in an automobile
knowing
that the driver is drunk” is one of the examples given of this
“type of contributory negligence”.
2
[9]
McKerrons’
Law of Delict
(4
th
ed) says at pp 95-96 on
v
olenti
non fit injuria:
“
No man can
complain of an act which he has expressly or
impliedly
assented
to. This principle, which was well known to the Roman and Roman-Dutch
law, is commonly expressed by the maxim
volenti
non fit injuria
.
Literally interpreted, the maxim is applicable only to cases where a
person has consented to suffer something which would otherwise
be an
intentional wrong; eg consent to undergo a surgical operation or
consent to the publication of a defamatory statement.
But
the maxim is used in a wide sense, and is applied to cases where a
person has consented to run the risk of unintentional harm,
which
would otherwise be actionable as attributable to the negligence of
the person who caused it
.”
[10] Mc
Kerron
quotes
Salmond
(9
th
ed sec. 8, p 37) as follows:
“
This maxim
(
volenti
non fit injuria)
has a double application? It applies, in the first place, to
intentional acts which would otherwise be tortious ... in the second
place, to consent to run the risk of accidental harm which would
otherwise be actionable, as due to the negligence of him who caused
it.”
[11]
It
seems to me that to equate
volenti
non fit injuria
with
contributory negligence is misplaced in our law
3
.
It is a concept that was originally not part of our law but which
appears to have been borrowed from other jurisdictions presumably
from American law. If one has regard to the interpretation
particularly the translation to English of the maxim in the South
African
context anyone who voluntarily assumes the risk cannot later
be held to complain if the assumed risk results in harm occurring,
therefore, the defence of voluntary assumption of risk should be
upheld. This can, however, be the case if the injury or harm resulted
from a cause falling within the scope of the risk so assumed
4
.
[12] When a person is
well aware of the danger but nevertheless wilfully exposes himself to
it, he acts intentionally in respect
of the prejudice he or she
suffers.
Neethling
et al
5
put it succinctly as
follows:
“
Where a
plaintiff does act with contributory intent, the fault of the
defendant (in the form of negligence) is eliminated by the
contributory intent of the plaintiff. Although the defendant is also
at fault, he is not held liable towards the plaintiff because
of the
fact that the plaintiff himself acts intentionally. The contributory
intent (at least
dolus
eventualis)
or assumption of risk by the plaintiff therefore cancels the
defendant’s fault. (In what follows, the term ‘contributory
intent’ is used in this sense.)
[13] In
Santam
Insurance Co Ltd v Vorster
6
(hereinafter referred to
as
Vorster
)
the then Appellate Division (now Supreme Court of Appeal) refused to
uphold the defendant’s defence of
volenti
non fit injuria
on
the grounds that whilst the plaintiff had been volens in relation to
the risks ordinarily inherent in “dicing for instance,
a burst
tyre, he could not be held to have assumed the risk of injury
resulting from grossly negligent behaviour on the part of
the
driver”. Whilst I am of the view that the correctness of the
above finding is open to doubt I do not propose to deal
with the
matter further in view of the difference in the facts of the two
cases. However, had the facts been identical I would
have been bound
to follow superior precedent.
[14] For the purposes of
the application for leave to appeal and in view of the submissions
made, I have to explain further the
marked difference in the facts of
the present case and those of
Vorster
supra
.
Firstly, in the present case, the assumed risk starts from the fact
that the race track in issue was neither manned nor controlled
before
and on the date in question. Secondly, the plaintiff and others,
including the insured driver, were never given permission
to use the
race track and neither did they seek permission from the owner(s).
They were in fact unlawfully using the race track
at their own risk.
Thirdly, the applicant and other drivers were not professional race
track drivers and applicant was in fact
aware of the risk inherent in
the unlawful use of the race track. Fourthly, it also does not appear
to me that this race track
was a public road, as was the case in
Vorster’s
case. The applicant’s
witnesses’ evidence was rejected and the Court accepted the
version of the respondent’s
witnesses as correct. The accepted
version, when one considers the probabilities of the case, proved the
success if not the correctness
of the defence proffered by the
respondent, including that of
volenti
non fit in iniuria
.
[15] As I indicated in
the main judgment, in view of the circumstances which presented in
Scribante race track, that is, the speeds
in which the motorcycles in
question were driven, applicant must, in law, be seen as having
consented to the high speeds which
were achieved on that track. The
high speeds, in my view, were a potential danger to the applicant as
well as the insured driver
and this was known by them even before
they entered the track and they were live to such eventuality. It is,
therefore, needless
to say that a speed of -/+240 km/h in those
circumstances could not save a person from death when confronted with
sudden emergency
as was the position in the applicant and the insured
driver herein. Consequently, they both consented to reckless driving
and therefore
the respondent’s defence of
volenti non fit
injuria
ought to have succeeded.
[16] It is common cause,
therefore, that such a defence (
volenti
) cancels fault on the
part of the respondent even if it were to be found that the
respondent was more negligent than the applicant.
It is in fact one
of the reasons that I decided to deal with this defence at length
notwithstanding that on the merits I have already
found in favour of
the respondent.
[17] Having said the
above, I am of the view that it is not reasonably possible that
another Court may find in favour of the applicant
in this case. This
is so in respect of all the grounds of appeal.
[18] Consequently, the
application for leave to appeal is hereby dismissed with costs.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Counsel for the applicant
: Adv. TD Potgieter SC
Instructed by : Le Roux
Inc
PORT ELIZABETH
Counsel for the
respondent : Adv H Van Der Linde
Instructed by : Wilke
Weiss van Rooyen
PORT ELIZABETH
1
Quoted
in Lampert v Hefer NO
1955 (2) SA 507
AD at 512 A-B
2
See
Bohem, Voluntary Assumption of Risk; Havard Essays on Torts, p 496
(quoted on p 512 of Lampert v Hefer N.O. fn 1
supra
3
However,
to the extent that our law on contributory negligence has been
statutorily amended, the same view has now become part
of our law.
4
Quoted
from Lampert v Hefer NO p 514 para D-E as follows:
“
Nulla injuria est quae in
volentem fiat”
says
Dig. 47.10.1.5 and Schoer (in note 11 to Grot 3.34.4):
“
Damnum ex lege Aquilia
cessat, si culpa agentis interveniat, et concurrant cum culpa
patientis; in jure enim ex culpa sua damnum
sentiens, non
intellegitur sentire damnum.”
5
Law
of Delict 6
th
edition, page 171 para 5.4.1
6
1973
(4) SA 764
(A)