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[2011] ZASCA 55
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Grove v The Road Accident Fund (74/10) [2011] ZASCA 55 (31 March 2011)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
74/10
In the matter between:
J M GROVE
.....................................................................................................
Appellant
and
ROAD ACCIDENT FUND
......................................................................
1
st
Respondent
L KOOPMAN
.........................................................................................
2
nd
Respondent
Neutral citation:
JM Grove v The Road Accident Fund
(74/10)
[2011] ZASC 55 (31 March 2011)
Coram:
NUGENT and TSHIQI JJA AND PLASKET AJA
Heard: 4 March 2011
Delivered: 31 March 2011
Summary
: Causation –
Section 17(1)
of the
Road Accident
Fund Act 56 of 1996
No causal nexus established.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court, Pretoria (Ledwaba J
sitting as court of first instance):
The appeal is dismissed with costs.
JUDGMENT
TSHIQI JA (NUGENT JA and PLASKET AJA concurring)
On 4 November 2005 an accident occurred at the corner of Duncan
Street and Duxbury Road, in the vicinity of Brooklyn and Hatfield,
Pretoria. The accident occurred after the second respondent
(Koopman) lost control of his motor vehicle, a red Audi. It left
the
road and collided with a wall on the eastern side of the road. The
appellant, who was a front seat passenger in the Audi,
suffered
serious bodily injuries as a result of the accident.
Koopman and the appellant were travelling from a night club in
Brooklyn. They left the club together with Koopman’s friend
and flatmate, Christiaan Potgieter (Potgieter) who was driving his
own vehicle, a 1990 Volkswagen Jetta.
Both Koopman and Potgieter drove at a high speed. Two tow-truck
drivers who were seated in their trucks in the vicinity took
the
view that the motor vehicles were racing with each other because of
their speed, the roar of the engines and the fact that
the motor
vehicles were driving very close to each other. According to their
observation Koopman lost control after the motor
vehicles had
crossed Duxbury Road, after which the vehicle left the road and
collided with the wall. After this, so they stated,
Potgieter
stopped, reversed and parked next to a bus stop close to the scene
of the accident. Potgieter alighted and approached
the Audi. The
appellant was found inside the Audi having sustained serious
injuries.
The appellant lodged a claim with the Road
Accident Fund (RAF) and subsequently instituted action in the North
Gauteng High Court
against the RAF for damages arising out of the
injuries sustained in the accident. She alleged that the accident
had been caused
by the negligence of Potgieter, who was alleged to
have enticed Koopman to engage in racing their vehicles. In the
alternative,
it was alleged that the accident had been caused by
their joint negligence, alternatively by the negligence of Koopman
alone.
The RAF admitted that the negligence of Koopman had caused
the accident but denied the remaining allegations. It thus pleaded
that its liability was limited under s 18(1)(b) of the Road Accident
Fund Act 56 of 1996 (the RAF Act) to R25 000 plus hospital
and
medical expenses. This was not accepted by the appellant and the
action proceeded on the question of the alleged causal negligence
of
Potgieter. It was alleged that the collision was caused by or arose
from the negligent and wrongful driving of Potgieter,
ie dicing,
particularly as contemplated in s 17(1) the RAF Act.
1
An agreement between the parties, in terms of rule 33(4) of the
Uniform Rules, to separate merits from quantum was made an order
of
the court. The court below (per Ledwaba J) dismissed the action on
the merits with costs. This appeal is brought with his
leave.
It was conceded, when the appeal was argued before us, and it seems
also in the court below, that the two motor vehicles were
driving at
a high speed at the time of the accident. Because driving at a high
speed in that area was in itself unlawful conduct
and amounted to
negligence, it seems to me that the pertinent issue of causation can
easily be determined without engaging in
an exercise to determine
whether Potgieter and Koopman were indeed involved in dicing, but I
will assume for present purposes
that they were.
The RAF is obliged to compensate for damages arising from bodily
injury ‘caused by or arising from’ the driving of
a
motor vehicle. The causal link that is required is essentially the
same as the causal link that is required for Aquilian liability.
There can be no question of liability if it is not proved that the
wrongdoer caused the damage of the person suffering the harm.
Whether an act can be identified as a cause, depends on a conclusion
drawn from available facts and relevant probabilities. The
important
question is how one should determine a causal nexus, namely whether
one fact follows from another.
In most cases there is no problem in determining in one way or
another whether or not the conduct of the wrongdoer has caused
harm
to the plaintiff. This the courts usually achieve by simply adopting
what is usually termed the ‘but-for’ test
or the sine
qua non approach which entails an enquiry whether the harm would
have occurred but for the wrongdoer’s conduct.
If it would not
have occurred, then the wrongdoer’s conduct is not a sine qua
non of the harm.
The problem with the ‘but-for’ test
is that it does not always provide the right answers to causal
problems. One of
its major flaws is that if it is used, almost
anything is a cause. It fails to take into account that some
consequences of a
person’s conduct will inevitably be too
remote to create liability.
2
It would be unjust to hold a wrongdoer liable without some
limitation for the endless chain of harmful consequences which his
act may have caused. It follows that some means must be found to
limit the wrongdoer’s liability.
Whether the wrongdoer should be liable for the
consequences of his wrongful conduct entails an enquiry into whether
the link between
the act or omission and the harm is sufficiently
close or direct for legal liability to ensue, or whether the harm
is, as it
is said ‘too remote’. This enquiry is
concerned with a juridical problem in which considerations of legal
policy
may play a part.
3
Courts have in the past grappled with choosing a
criterion to be applied to determine legal causation. In
S
v Mokgethi & others,
4
Van Heerden JA held that there is no single and
general criterion for legal causation which is applicable in all
instances. He
suggested a flexible approach where the court has the
freedom in each case to apply a theory which serves reasonableness
and
justice, in light of the circumstances, taking into account
considerations of policy.
5
The basic question is whether there is a close
enough relationship between the wrongdoer’s conduct and its
consequence for
such consequence to be imputed to the wrongdoer in
view of policy considerations based on reasonableness, fairness and
justice.
A useful guide is found in
Wells
& another v Shield Insurance Co Ltd & others
6
where Corbett CJ stated:
‘
In
searching for some limit lying between direct causation and the vast
and unrestricted field of the
causa
sine qua non
,
the Court must, I think, be guided by a consideration of the object
and scope of the Act and by notions of common sense. . . .
The death or bodily injury for
which compensation is claimed must be causally related to this
negligent or otherwise unlawful act
and also to the driving of the
vehicle. Where the direct cause from the point of culpability is the
same act or omission on the
part of the driver in the actual driving
of the vehicle then it would generally be found that the death or
injury was “caused
by” the driving. Where the direct
cause is some antecedent or ancillary act, then it could not normally
be said that the
death or injury was '”caused by” the
driving; but it might be found to arise out of the driving. Whether
this would
be found would depend upon the particular facts of the
case and whether, applying ordinary, common-sense standards, it could
be
said that the causal connection between the death or injury and
the driving was sufficiently real and close to enable the Court
to
say that the death or injury did arise out of the driving. I do not
think that it is either possible or advisable to state the
position
more precisely than this, save to emphasise that, generally speaking,
the mere fact that the motor vehicle in question
was being driven at
the time death was caused or the injury inflicted or that it had been
driven shortly prior to this would not,
of itself, provide sufficient
causal connection. Thus the injury suffered by a passenger aboard a
bus as a result of being assaulted
by a bus conductor could not be
said to arise from the driving of the bus, even though the bus was
being driven at the precise
moment when the assault was committed.
Similarly, in the illustration already given of X who stepped off the
bus into a hole in
the pavement, it could not be said that the injury
arose out of the driving merely because driving (in the ordinary
sense) had
taken place immediately prior to this
.’
It is also helpful to refer to the case of
Grobler v Santam Versekering Bpk.
7
In that case the driver of a motor vehicle had
been involved in an accident with a horse. He failed to ensure that
the dead horse
was removed from the road. Another vehicle, in which
the plaintiff was a passenger, collided with the dead horse half an
hour
later. The court found that there was a causal nexus between
the negligence of a driver who had failed to remove the dead horse
from the road and the accident which occurred half an hour later.
The court reasoned that without the driving of the vehicle
in the
earlier accident, the horse would not have been lying on the road.
It concluded that the driving of the insured vehicle
was accordingly
a sine qua non for the presence of the horse on the road.
The essence of the distinction between
Grobler
v Santam
8
and the present matter is that in
Grobler
v Santam
it was the negligence of the
driver of the vehicle involved in the earlier accident, in failing
to remove the dead horse that
caused the accident. There was
therefore, in that matter, a causal nexus between the negligent
driving and the accident. In this
matter on the other hand, it was
uncontroverted that other than the negligent manner in which the two
vehicles were being driven,
there was no other basis on which
Potgieter was said to be connected with the accident. Although the
Jetta was being driven at
a high speed, it did not cause anything
that could be held to have caused Koopman to loose control and
collide with the wall.
The pertinent question whether the negligent driving by Potgieter,
can in itself without any other factor be held to have caused
the
accident, must therefore be answered in the negative. The cause of
the accident was the fact that Koopman himself, with no
further
conduct from Potgieter, lost control of the Audi before it left the
road and hit the wall. There was therefore no causal
nexus between
the driving by Potgieter and the accident.
The appeal must accordingly fail.
I make the following order:
The appeal is dismissed with costs.
_____________________
Z L L Tshiqi
Judge of Appeal
APPEARANCES
APPELLANT: WP de Waal SC
Instructed by Adams & Adams,
Pretoria
Naudes Attorneys, Bloemfontein.
RESPONDENTS: I Lingenfelder
Instructed by Dyanson Inc,
Pretoria
McIntyre & Van der Post, Bloemfontein.
1
Section
17(1) of the RAF Act provides:
’
17
Liability of Fund and agents
(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’.
2
Re
Polemis & Furness, Withy & Co Ltd
[1921]
3 KB 560
;
Minister van Polisie en Binnelandse Sake v Van
Aswegen
1974 (2) SA 101
(A); Jonathan Burchell
Principles of
Delict
(1993) p32.
3
International
Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A) at 700H-I.
4
S
v Mokgethi & others
1990 (1) SA 32
(A) 40
– 41.
5
J
Neethling, J M Potgieter and P J Visser
Law
of Delict
5 ed (2005) page 174.
6
Wells
& another v Shield Insurance Co Ltd & others
1965 (2) SA
865
(C) at 870A-H.
7
Grobler
v Santam Versekering Bpk
1996 (2) SA 643
(T) at
650H-I.
8
Para
14 above.