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[2017] ZAECPEHC 38
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Claasen v Road Accident Fund (4242/2014) [2017] ZAECPEHC 38 (10 August 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
CASE
NO.: 4242/2014
In the matter
between:
PETRONELLA
JOHANNA CLAASEN
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BESHE J:
[1] This is
an action for damages suffered by the plaintiff on the 7 January
2010. The basis of the claim according to the plaintiff
is that she
was not knocked over by the door of a vehicle insured by the
defendant as a result of which she sustained severe bodily
injuries.
[2] At the commencement of the proceedings and by
agreement between the parties, a separation of issues was ordered in
terms of
Rule 33 (4) of the Uniform Rules
of this court. In
particular the issue that was to be separated and disposed of first
was the following:
“
Did
the incident arise out of the driving of the insured vehicle?”
The
answer to this question will be determinant of whether the defendant
is liable for the damages suffered by the plaintiff or
not.
[3] Plaintiff
was the only witness who testified during the trial. The following
emerged from the particulars of her claim as well
as her evidence:
Plaintiff,
who was seventy two (72) years old at the time she testified in June
2017, had gone to Green Acres to collect her granddaughter,
Wendy
who was travelling from Pretoria to Port
Elizabeth aboard the Intercape Sleepliner Coach / Bus. The arrival of
the bus was scheduled
for 7h45. It however only arrived at 9h45.
Having stopped, the door of the bus remained closed. About five
minutes after the bus
had arrived and with the door still closed,
plaintiff moved towards the bus with a view of putting
Wendy
at ease. This was in view of the fact that
Wendy
is cerebral palsied. Her intention was to knock on the window next to
Wendy’s
seat.
Wendy
did not see her
though. As she was walking back to the bench where she had been
waiting to continue waiting for the bus to open
and for passengers to
alight, she heard a noise, looked back, saw the door of the bus open
and strike her on her chest. She fell
and lost consciousness. She
later regained consciousness and was helped to the bench where she
had waited for the bus to arrive.
A person who introduced himself as
the driver of the bus confirmed that the door was faulty and that
they had been having a problem
with the door and hence the late
arrival of the bus.
[4] In
paragraph 3.3 of plaintiff’s particulars of claim the following
is averred:
“The sliding side
door of the insured vehicle was stuck and did not initially open.”
In response
thereto, defendant pleads as follows:
“Save to admit that
there was a mechanical fault with the sliding door mechanism.
Defendant does not admit the content and
puts plaintiff to the proof
thereof.”
[5] At
paragraph 3.5 of the particulars of claim it is alleged that
“the
driver and / or assistant of the insured vehicle, acting within the
course and scope of his employment with the owner
thereof, caused the
door to suddenly and unexpectedly open rapidly, with the result that
it knocked the plaintiff over”
. In response to
this allegation defendant pleaded as follows:
“Defendant pleads
that the sliding door opened as a result of a mechanical fault and
not due to the negligence and/or actions
of the alleged driver and/or
alleged assistant of the Intercape Sleepliner.”
During cross
examination, plaintiff stated that she does not know what caused the
door to open. It also transpired that she had
been walking away from
the bus when she heard a sound, turned around to see where the noise
came from. It was at that stage that
she was struck by the door. She
could not say whether the door operated mechanically or not. She was
not able to say whether the
driver was behind the steering wheel of
the bus at the time of the accident.
[6] In her
particulars of claim, plaintiff alleges
“that the sole
cause of the incident was due to the negligence of the driver and or
owner of the insured vehicle, or his assistant,
being an employee of
the owner of the insured vehicle, both the driver and the assistant
acting within the course and scope of
their employment with the owner
of the insured vehicle, at all material times, he being negligent in
one or more of the following
respects:”
(various
grounds of negligence are then enumerated)
[7] Plaintiff
also alleges that the incident arose from the driving of the insured
vehicle.
[8]
Section
17
of the
Road Accident Fund Act 56 of 1996
provides that:
“(1)
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] As
indicated earlier on in this judgment, I am required to determine
whether the incident occurred out of the driving of the
insured motor
vehicle.
[10] It is
trite that for a person to be delictually liable the following
elements must be present:
(a) Conduct.
(b) Wrongfulness.
(c) Fault in the form of
intention or negligence.
(d) Causation and
(e) Harm.
It is also
trite that these elements must be established by the plaintiff on a
balance of probabilities.
[11] What
conduct, if any, can be attributed to the driver and or assistant
driver of the insured vehicle in the present matter?
Can such conduct
qualify or amount to the driving of the insured vehicle as required
in terms of
Section 17
of the
Road Accident
Fund Act
>?
[12] It is
not in dispute that the door mechanism of the insured vehicle was
faulty.
[13]
Plaintiff’s counsel referred me to a number of decided cases in
which courts previously grappled with the question whether
the
incident concerned in those cases arose from the driving of the
insured vehicle. One such matter is the matter of
Wells
and Another v Shield Insurance Company Limited
[1]
.
In this matter the court held that the opening of the door of the
insured vehicle immediately after it was parked and its engine
switched off, was not part and parcel of driving. The court concluded
that plaintiff’s injuries could not be said to have
been caused
by or even arisen out of the driving of the insured motor vehicle.
[14] In
General Accident Insurance C. SA Ltd v
Xhego and Others
[2]
a different conclusion was reached. The
court found that there was a sufficiently close link between the
injuries sustained by the
plaintiff and the driving of the bus and
concluded that the injuries had arisen out of the driving of the bus.
Further that the
bus was not merely being driven when the injuries
were sustained, but it was the very driving of the bus along the
particular route
which elicited the petrol bombing thereof.
[15] In
another matter decided in this regard,
Van
Zyl v Metro Bus and Ano
[3]
the facts thereof bore similarity with the facts of the present case.
The facts in the
Van Zyl
matter were as follows:
(as per the
stated case)
The appellant
was boarding a bus owned by the first respondent (being Metro Bus).
The bus was stationary and idling when the appellant
started boarding
the bus. She put up her left hand in order to hold onto the door of
the bus to pull herself into the bus. Without
warning the door of the
bus malfunctioned and slammed open and caught plaintiff’s wrist
between the door and the side of
the bus, thereby injuring
plaintiff’s wrist.
[16] In
answering the question whether it can be said that the malfunction of
the door of the bus was a risk of the type which differed
in
accordance with whether the bus was being driven or not, the court in
the
Van Zyl
case had this to say:
“In my view the
answer to this question is dependent upon whether or not the
malfunction of the nature in question could only
occur if the engine
of the bus was running at the time. From the agreed facts forming the
subject matter of the stated case, it
is clear that the bus was being
“driven” at the time of the incident
albeit
that
it happened to be stationery at the bus stop. Accordingly, if the
malfunction was dependent upon the engine running, that
in my view,
and in the light of the manner in which the test for causality has
been applied, would be sufficient in these circumstances
to support
the conclusion that the injury is one arising from the driving of the
motor vehicle. If the malfunction is in fact one
which would have
occurred even, for example, if the engine of the bus was not running,
then the driving of the vehicle would, in
my view, not be causally
connected with the injury that resulted from the malfunction. The
agreed facts forming the subject matter
of the case unfortunately
shed no light on this aspect of the matter.”
[17]
Plaintiff’s case is in the same position. Whilst she testified
that the engine of the bus was running at the time of
the incident,
she could not say, understandably so, how the door of the bus
operated; whether by means of air pressure, mechanical
means or
manually. She could not even say where the driver was at the time of
the incident - whether he was positioned behind the
steering wheel.
Whether he did anything in a bid to open the bus door. It is
therefore difficult to determine whether any conduct
can be
attributed to the bus driver. What the plaintiff was purportedly told
by the bus driver regarding problems experienced with
the
malfunctioning of the door of the bus,
albeit
that evidence being of a hearsay nature, does not take plaintiff’s
case any further. There is still a
lacuna
as to what caused the door to open. Did it open on its own, was an
attempt made by the driver or his assistant to open the door,
we do
not know. Did it need the engine of the bus to run in order for the
door to open? We do not know. What was the nature of
the malfunction?
Granted that it is common cause that the bus door had a mechanical
fault, and it was as a result of that malfunction
that the plaintiff
was struck by the door, I am unable to find that the incident
occurred out of the driving of the bus. There
is no evidence to
support this proposition. I therefore cannot find in favour of the
plaintiff.
[18] I am of
the view that there is no reason why the costs should not follow the
cause.
[19]
Accordingly, plaintiff’s action is dismissed with costs, such
costs to include the costs that were reserved on the 9
March 2017.
_______________
NG BESHE
JUDGE OF
THE HIGH COURT
APPEARANCES
For
the Plaintiff
:
Adv: LA
Schubart SC
Instructed
by
:
JOHAN
CRONJ
é
ATTORNEYS
C/o HEINE UNGERER ATTORNEYS
25 Cape Road
Central
PORT ELIZABETH
Tel.: 041 – 374 3773
Ref.: Mr Ungerer/vdp/Claassen
PJJ
For
the Respondents :
Adv: A Frost
Instructed
by
:
BLC
ATTORNEYS
4 Cape Road
Docex 16
PORT ELIZABETH
Tel.: 041 – 506 3700
Ref.: S Tilfoen/wr/TN1048
Date
Heard
:
12 June
2017
Date
Reserved
:
12 June
2017
Date
Delivered
:
10
August 2017
[1]
1965 (2) SA 865.
[2]
1992 (1) SA 85.
[3]
[2016] JOL 35681
(GJ).