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[2019] ZAGPPHC 480
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M v Road Accident Fund (48139/17) [2019] ZAGPPHC 480 (8 August 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE NO: 48139/17
8/8/2019
In
the matter between:
H
T MADONSELA obo
L
C
M
Plaintiff
And
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
TEFFO,
J:
[1]
The plaintiff, Ms Hlobisile Tilly
Madonsela, instituted an action against the defendant tile Road
Accident Fund, claiming damages
for bodily injuries sustained by her
minor child, L[….] C[….] M[….] "L[….]"
in
a
motor
vehicle accident.
[2]
The accident took place on 22 October
2016 along Matsulu road in Mpumalanga, when Undo fell out of a moving
motor vehicle with registration
letters
and numbers [….]
("the insured vehicle")
which
was driven by Mr Thomas Jim Khoza.
[3]
L[....] was 14 (fourteen) years old at
the time of the accident. The plaintiff sue the defendant herein in
her capacity as the mother
and natural guardian of L[....].
[4]
At the commencement of the trial. the
parties agreed to separate the merits from
quantum.
I accordingly granted an order
thereof separating the
issues
in terms of Rule 33(4) of the Uniform Rules of Court. The matter
therefore proceeded on merits only.
The
pleadings
[5]
The plaintiff alleged in her particulars
of claim that the collision was caused by the negligence of the
insured driver of the defendant.
[6]
The allegations have been denied by the
defendant. It was specifically pleaded that the collision did not
occur as alleged or at
all and that should the court find that the
collision occurred as alleged or at all, and that the insured driver
was negligent.
it denies that such negligence was the cause of the
collision and/or the plaintiff's damage:;. The defendant further
pleaded that
the plaintiff contributed to the injuries and that the
damages alleged, if any, should be apportioned in terms of the
provisions
of the Apportionment of Damages Act, 34 of 1956, as
amended.
Common cause facts
[7]
L[....] was walking with friends on 22 October 2016 along Matsulu
road.
[8]
The Insured driver who was driving a bakkie at the time, stopped the
motor vehicle
and offered them a lift.
[9]
They all climbed onto the back of an open bakkie
[10]
L[....]'s friends sat on the floor of the bakkie and she sat on the
edge.
[11]
The accident happened during the day. It was a sunny day.
[12]
The insured vehicle travelled for some distance and L[....] fell when
it was In motion. The insured
driver was alerted of the incident by
L[....]'s friends and he stopped the vehicle.
Facts
in dispute
[13]
Where exactly did the accident happen?
[14]
The speed at which the insured vehicle was driven at the time.
[15]
Circumstances that led to the collision
The
evidence
[16]
Ms L[….] C[….]
M[….]testified in support of the plaintiff's case and Mr
Thomas Jim Khoza testified in defence
of the defendant's case.
The plaintiff's version
[17]
Ms L[….] C[….] M[….],
L[....], testified that on 22 October 2016 she was walking with
friends on Matsulu road
when a bakkie stopped, and its driver offered
them a lift They climbed onto the back of the bakkie. They travelled
for a long distance
The bakkie was travelling very fast It went over
the speed bump fast and she fell She hit the ground with her head and
lost consciousness
which she regained at the hospital.
[18]
Under cross examination she testified
that they were travelling in a residential area. There is a church in
the area. They got a
lift before they reached the church and she fell
from the bakkie 10 metres away from the church. She sat on the edge
of the bakkie
while her two friends sat on the floor It was put to
her that sitting on the edge of the bakkie is dangerous because there
is no
support structure. She replied that she had a grip to hold on
at the time. She later conceded that had she sat on the floor of the
bakkie, she would not have been injured. She denied the insured
driver's version.
The
defendant's version
[19]
Mr Thomas Jim Khoza (the insured driver)
testified that on the day in question he was from the direction of
town He was driving
at a slow speed. He noticed the three girls, and
he stopped and offered them a lift with the intention to drop them
off next to
the police station They climbed onto the back of the
bakkie. L[....] sat on the edge of the bakkie while the others sat on
the
floor. He drove until he reached a speed bump next to a church.
In the vicinity of Chillas, L[....]'s cap fell. Al that time the
car
was in motion. One of the girls banged the bakkie's roof hard. He got
frightened and stopped. He alighted from the car and
noticed L[....]
on the ground.
[20]
He asked her friends as to what
happened. They made a report to him.
[21]
He was driving at a speed of± 20
km per hour. The incident happened before the speed bump There are
many houses and a church.
The speed bump is opposite the church
entrance He had travelled for about 300 metres after giving L[....]
and her friends a lift
to where L[....] fell. The accident occurred
about 100 to 200 metres before the speed bump.
[22]
Under cross-examination he testified
that he did not witness L[....] falling from the bakkie to fetch a
cap He did not know L[....]
and her friends when he gave them a lift.
He also did not know their ages. When asked why he did not allow them
to sit with him
in front, he replied that as he was talking to them,
they climbed onto the back of the bakkie on their own. He further
said that
he never thought of telling them to sit in front with him.
When asked why when he saw that L[....] was sitting on the edge of
the
bakkie, he did not stop and ask her to sit down, he replied that
because of the speed he was driving, and L[....] holding on, he
did
not anticipate the accident He was asked as to how possible it was
that L[....] could have jumped out of the motor vehicle
to fetch the
cap and then climbed back into the motor vehicle while he was driving
the motor vehicle at a speed of between 20 to
30 km/h. His reply was
that it had happened and that it was on a tarred road.
[23]
It was put to him that his counsel had put it to L[....] that his
version was that at the time
of the accident. the speed bump did not
exist. His reply was that there was a trench on the ground at the
time to show that in
future there will be a speed bump When
confronted with his evidence that they had reached the speed bump
next to the church when
L[....] fell, he replied that he meant the
trench. He was asked to explain his evidence that L[....] fell 300
metres thereafter
and that she fell 100 to 200 metres before the
speed bump. He testified that the 100 metres he had established. was
after they
had come on board. He drove past the trench ± 300
metres thereafter, he heard a hard bang on the roof of the bakkie.
[24]
He denied that he was driving fast at the time of the accident. He
testified that he had travelled
for about 15 metres from where
L[....] and her friends had come on board when he heard the bang on
the roof of the bakkie He stopped
the motor vehicle. He did not
notice how L[....]'s friends alighted from the bakkie.
The
legal position
[25]
In
Transvaal
Provincial Administration v Coley
[1]
,
a case that
dealt with negligence relating to children in a school yard, de
Villiers JA stated:
“
The
care which
is
exacted by our
law
is
that
which the diligens paterfamilias would have taken in the
circumstances. It is not the care which the man takes in his own
affairs. nor that which the ordinary or average man would take It 1s
higher than that. The law sets up as
a
standard ta which
everybody
has
to
conform that degree of care which would be observed by
a
careful and
prudent man, the father of a family and of substance, who would have
to pay in case he fails in his duty It will be
observed that the
standard of conduct is a high one The test is not the diligence of
the supine man, but of the man who is alive
to probable dangers and
takes the necessary steps to guard against them.”
[26]
In
Road Accident
Fund v Landman
[2]
a 14 year old
school girl was knocked down on the road in front of her school by a
motor vehicle driving between 40 and 50 kilometres
par hour The child
had been hidden from the view of the driver by a stationary bus and
had crossed the road from behind the bus
to meet a friend on the
opposite side. At the time there were numerous school children of
various ages milling about 1n the vicinity.
The road on which the
accident occurred was approximately 6,5 metres wide The motorist
proceeded along the street for some 80 metres
without reducing her
speed and did not sound her hooter. At page 616H Thring J stated·
" In the circumstances of
this
case,
;or
Feris to proceed at an unabated speed of as much as even 40 km/h, the
lower end of the range found by the court
a
quo and conceded
by the appellant, was in my view, negligent She knew, or ought to
have known, that at that speed, there
was
no hope of
braking to c1n emergency stop in four or five metres."
[27]
In the Jones
NO v
Santarn Beperk
[3]
matter, a child
was held by the court to be negligent and therefore her claim was
subject to an apportionment Williamson JA held
that once it is
established that a child over the age of 7 but under the age of 14,
has conducted itself in such a manner that
its conduct would ordinary
amount to
culpa
or negligence,
then there arises the necessity of determining whether that child is
culpae capax.
This question
involves an enquiry in relation to the capacity for
culpa
of the
particular child.
[28]
Williamson JA found that, once the conduct was held to be negligent,
the child could be held
accountable He referred to the judgement by
Lord Justice Clerk Moncrieff in the Scottish case of
Campbell
v Ord and Maddison
[4]
quoted by
Greenberg J in Feinberg v Zwarenstein
[5]
.
Greenberg J held:
“
It
would be
as
unsound to say as
a
proposition
in law that this child was not capable of negligence as to say he
was. Negligence implies a capacity to apprehend intelligently
the
duty, obligation, or caution neglected, and that depends to
a
large degree on
the nature of that which
,s
neglected
as
well as on the
intelligence and maturity of the person said to have neglected it The
capacity to neglect is a question of fact in
the particular
case.
as
much as
intelligence itself, which is always a question of fact.”
[29]
Corbett J in the court
a
quo
found her to be
culpae
capax
in relation to her conduct on
the day of the collision and applied an apportionment. The SCA upheld
Corbett's judgment
[30]
In
Eskom
Holding Ltd v Hendriks,
[6]
a child of 11 years climbed a pylon
supporting high voltage power lines. Negligence on the part of Eskom,
for failing to take reasonable
steps to prevent harm to the public,
especially children, was found The question was whether or not the
court was correct in finding
that the child was
culpae
capax
in relation to his conduct.
The court referred to the case of
Weber
v Sanlam Versekeringsmaatskappy Bpk
[7]
where the Appellate Division
confirmed the distinction previously drawn in
Jones
[8]
between, on the one hand the issue
of capacity on the part of a child to commit a wrong and on the
other, the issue
of
fault.
The court held that, whilst capacity might be subjective, fault was
objective. In other words, once a child was found to
have the
necessary capacity. his negligence or otherwise was to be determined
in accordance with the standard of the ordinary adult
rec1sonable
person. The court affirmed in Weber, the rule that children under 7
are
culpae incapax,
whilst
children between ages of 7 and puberty (12 in the case of girls and
14 in the case of boys) were presumed to lack capacity,
until the
contrary was proved by the party alleging negligence. In the
Eskom
[9]
case, it was held that the
gender-based distinction in
Weber
was
unjustifiable and a cut off age would be 14 for all children
irrespective of their sexes.
[31]
The application of the standard applicable to adults to the
negligence of child, was strongly
criticised in certain academic
writings. The criticisms have been referred to in
Eskom
[10]
and the
following was said·
"Nonetheless, the force of
the criticism is to
some
extent overcome
by the emphasis placed by (he court in Weber
[11]
on the subjective nature of the inquiry into the element of capacity.
It
was
stressed
that the inquiry was one of fact. In each
case
what had to be
determined was whether the child in questions had developed the
emotional and intellectual maturity to appreciate
the particular
danger to be avoided and, if
so,
to
act
accordingly. Jansen JA (at 390H) referred with approval to the
observation by Corbett JA in Roxa v Mtshayi
[12]
that the enquiry has to be related to 'the particular acts or
omissions complained of in the particular circumstances'.”
[32]
In the
Eskom
case
[13]
,
Scott JA held that although it was established in evidence that the
child had been taught the dangers of electricity, there was
little,
if any, cross examination of the child and/or his parent to determine
his intellectual and emotional maturity at the time,
nor was there
any evidence led to rebut the inference of childish impulsive
behaviour that arose from his conduct. Consequently,
the court held
that
Eskom
had
not succeeded in rebutting the presumption that the child was
culpae
in capax
at the time of the
accident.
Application
of the law to the facts and evaluation
[33]
L[....] gave a good impression to the
court. Her evidence was straight to the point. She answered questions
satisfactorily. When
it was put to her that it was dangerous to sit
on the edge of the bakkie, she replied that she had a grip to hold on
at the time.
She thereafter conceded that, had she sat on the floor
of the bakkie like her friends, she would not have been injured. As
against
this evidence, the insured driver's evidence was wanting and
contradictory. He did not see what had happened that led L[....] to
fall from the bakkie to the ground. He testified about what he was
allegedly told by L[....]'s friends. They did not testify to
corroborate his version. Even though they were not called as
witnesses to corroborate his version, that version is improbable He
wants the court to believe that L[....]'s cap fell off while the
insured vehicle was in motion and Undo decided to jump out of
the
moving motor vehicle to 99 and get the cap and then jump back into
the motor vehicle. He contended that it had happened and
it was
possible because he was driving the insured motor vehicle at a speed
of between 20 to 30 km/h at the time
[34]
L[....]'s evidence was that the insured
motor vehicle was travelling very fast She fell after it drove over a
speed bump. The insured
driver gave contradictory versions about the
speed bump. His counsel put it to L[....] that according to the
insured driver. the
speed bump did not exist at the time of the
accident. The insured driver testified that the accident took place
before he reached
the speed bump. He further testified that after he
had given L[....] and her friends a lift, he drove off until he
reached the
speed bump next to a church. L[….]'s cap fell in
the vicinity of Chillas According to this evidence, L[....] fell
after
he had driven over the speed bump There are now two versions
before the court by the insured driver and the court does not know
which one to believe, whether L[....] fell before he drove over the
speed bump or thereafter. Coupled with this evidence. there
is also
evidence about the trench that was on the road at the time which was
an indication that a speed bump was going to be built
in the future.
This evidence muddled the insured driver's evidence further. His
evidence in the main was illogical and not credible.
[35]
It is common cause between the parties that the insured driver
allowed L[....] and h r friends
to sit at the back of an open bakkie
unattended L[....] was 14 years old at the time. Although we ,do not
know the ages of L[....]'s
friends at the time, It has never been
disputed that they were children. The insured driver did not know
Undo and her friends and
their respective ages when he gave them a
lift He conceded that he saw that L[....] sat on the edge of the
bakkie. A reasonable
drive; in his position. should, at that point In
time have stopped the motor vehicle and instructed L[....] and her
friends to
sit down in a safe manner or could have invited them to
sit in the front with him. He would have realised at that point that
his
passengers were not making safe choices
[36]
Counsel for the plaintiff
correctly submitted that the insured driver drove at an excessive
speed in the circumstances in that if
one accepts his version that he
was driving the insured vehicle at a speed of 20 to 30 km/h on a road
that had speed bumps and/or
trenches with L[....] sitting in that
precarious position, a speed of 30 km/h was unreasonably fast.
Counsel for the defendant
argued that the fact that the insured
driver stopped immediately aft r he was stopped at a distance of
between 15 to 20 metres,
is an indication that he was not speeding.
This submission is not supported by any evidence. A reasonable driver
in the insured
driver's position, would have foreseen the reasonable
possibility of his conduct injuring another person and would have
taken steps
to guard against such occurrence. It is clear from the
evidence that the insured driver failed to take such steps.
[37]
Counsel for the defendant further
argued that L[....] was 14 years old, she was capable and appreciated
the risk of sitting on the
edge of the bakkie. He conceded that an
apportionment should be applied to the damage suffered by L[....] to
the extent of her
contributory negligence. Counsel for the plaintiff
conceded that an apportionment should be applied but that the
apportionment
should be highly in favour of the plaintiff. I do not
agree that there was evidence that L[....] had developed the
emotional and
intellectual maturity to appreciate the danger that was
to be avoided and, if she did, to act accordingly. It therefore
follows
that the defendant had not succeeded in rebutting the
presumption that Undo was
culpa
incapax
at the time of the accident.
She could not have been liable for her negligence. The defendant has
not discharged the burden of proving
that L[....] was negligent.
[38]
I am satisfied under the circumstances that the negligent driving of
the insured vehicle was
a direct cause of L[....]'s bodily injuries
and the insured driver of the defendant was solely to blame for the
accident that resulted
in L[....]'s injuries.
[39]
In the result I make the following order:
1.
The defendant is 100% liable to
compensate the plaintiff for any damages which the plaintiff is found
to have suffered as a result
of the collision which took place on 22
October 2016.
2.
The defendant is to pay the plaintiffs
costs.
MJ TEFFO
JUDGE OF THE H GH COURT
APPEARANCES
For the plaintiff
J Mouton
Instructed
by
Maluleka
Tlhasi Inc
For
the defendant
J C van den Berg
Instructed
by
Lekhu Pilson Inc
Heard
on
1 March 2019
Handed
down on
8 August 2019
[1]
1925 AD 24
at page 27
[2]
2003 (1) SA 610 (C).
[3]
1966 (2) SA 542
(A) cit 548 H
[4]
(1873) IR 149
[5]
1932 WLO 73 at 76
[6]
2005 (5) SA 503 (SCA)
[7]
1983 (1) SA 381 (A)
[8]
Supra
[9]
Supra
[10]
Supra
[11]
Supra at 389H,400A
[12]
1975 (3) SA 761
(A) at 766A·B
[13]
Supra