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[2017] ZAGPPHC 216
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Tau v RAF (42687/2012) [2017] ZAGPPHC 216 (14 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
14/3/2017
Case
number 42687/2012
Not
reportable
Not
of interest to other judges
Revised.
In the
matter between:
TRYPHINA
MMABOSHADI
TAU PLAINTIFF
And
RAF DEFENDANT
JUDGMENT
SWARTZ
AJ
This is
a delictual claim for damages arising out of injuries sustained by
the plaintiff on 20 December 2010 while disembarking
from a bus after
a fire extinguisher on the bus discharged. At the commencement of
proceedings the issues of merits and quantum
were separated in terms
of the provisions of rule 33 (4) of the Uniform Rules of Court. The
issues for determination on liability
were, whether the injuries
arose out of the driving of the bus, and whether negligence can be
attributed to the defendants.
The
Road Accident Fund ('RAF) asserts that the injuries sustained by the
plaintiff did not arise out of the driving of the motor
vehicle as
required by the Road Accident Fund Act no 56 ("the Act")
and consequently that the RAF attracts no liability
in respect of the
incident. The owners of the bus on the other hand dispute liability
with the assertion that the claim is rightfully
one against the RAF
in terms of the provisions of section 17 of the Act, and that they
are excused from liability in terms of section
21 of the Act.
The
facts are briefly as follows: On 20 December 2010, Mrs Dorcas Kgomo
was the driver of the bus owned by the defendants ("the
owners"). She was at all relevant times acting within the course
and scope of her employment. The plaintiff boarded the bus
at Madidi,
intending to travel to Erasmus. As the bus entered the Erasmus depot,
the fire extinguisher on the bus, located behind
the driver's seat,
discharged with a loud noise, emitting white smoke that filled the
driver's cab and the front half of the bus.
The plaintiff was seated
directly behind the driver. In the ensuing rush to disembark from the
bus the plaintiff sustained injuries.
The plaintiff docs not know
exactly how she sustained the injuries.
The
first issue for determination is whether or not the RAF can be held
liable e\·en if the injury sustained by the plaintiff
did not
arise out of the driving of the insured motor vehicle, in the strict
sense, but on the basis of the wrongful act of the
driver / owner of
the insured vehicle. Stated differently, the question for
determination is whether the injuries sustained by
the plaintiff
could be said to have arisen out of the driving of the insured
vehicle in the extended meaning, i.e. caused by although
not arising
from. This question arises as a result of the evidence of the
plaintiff who testified that, as the bus entered Erasmus
depot and
while the driver was still looking for a space to park the bus, the
fire extinguisher exploded with a loud noise. Everyone
inside the bus
screamed and tried to disembark. The plaintiff tried to exit the bus
but did not know what happened thereafter.
She found herself outside
the bus, being injured. The fire extinguisher burst while the driver
was still searching for a parking
bay. Only then did the driver bring
the bus to a halt. She could not remember whether the doors of the
bus were open at the time
of the explosion.
She did
not agree with the version that the bus had already stopped when the
explosion occurred. The evidence of Mrs Kgomo, on the
other hand, was
that, as she entered the Erasmus bus depot she stopped the bus;
engaged the handbrake; opened the doors to allow
the passengers to
disembark and switched off the engine. Thereafter the explosion
occurred. She covered her face. The passengers
on the bus did not
know that it was the fire extinguisher that discharged. In the chaos
that followed, a certain lady tried to
get out of the bus and fell at
the stairs. She was assisted by fellow passengers and placed on the
ground. She did not speak to
this lady or see the nature of the
injuries sustained.
Section
17 (1) of the Act provides as follows:
'The Fund or agent shall -
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 the owner of the motor vehicle or of
his or her employee in the performance of the employees duties as an
employee.'
During
argument, I was referred to instances where the RAF \vas found to be
liable on the basis of the extended meaning of the word
"driving",
such as, the failure to properly maintain the insured vehicle; a
failure to check the tyre pressure and /
or brake fluid level; a
failure to install adequate fire-fighting equipment on the insured
vehicle. It was submitted that the wrongful
act itself has no
relation to negligent driving, but the unlawful act must be linked to
the vehicle and the driving thereof.
Having
weighed up the evidence of the plaintiff and the insured driver, in
my new, the probabilities on whether the engine was running
or not,
favours the insured driver. Shock and panic reigned when the fire
extinguisher erupted with a loud noise, filling the air
with white
smoke. All the passengers, including the plaintiff, hurriedly made
their exit from the bus. It is not hard to imagine
that the plaintiff
would not, under those circumstances, be in a position to describe
the events in detail. She cannot possibly
be certain that the engine
of the bus was either running or not. The bus driver on the other
hand, was adamant that the engine
was switched off when the fire
extinguisher erupted. Be that as it may, whether the engine was
running or not, there is not a shred
of evidence to suggest that the
insured driver drove the bus in a negligent manner. There is no
evidence to suggest that the plaintiff
sustained the injuries arising
from the driving of the insured vehicle, either in the strict sense,
or in the extended meaning
of the word "driving". Over and
above that, if the malfunction to the fire extinguisher would
nevertheless have occurred,
even if the engine of the insured vehicle
was running, then the driving of the vehicle would not be causally
connected. The injury
would nevertheless have occurred. Thus, there
is no causal connection between any alleged negligent driving of the
insured driver,
which has in any event not been proven, and damages
suffered.
Mokoele v National Employers' General Insurance Co Ltd
and Another
1984 (1) SA 27
(T):
' ...the test to be applied was
that, if the injury would have resulted irrespective of whether the
driving had occurred, such injury
could not be said to have arisen
out of the driving."
I am
satisfied that the RAJ, attracts no liability in respect of the
incident.
The
question that now arises is whether the plaintiff has a claim for
damages against the owners of the bus as a result of the wrongful
act
or omission by the owners of the bus, i.e. the injuries suffered as a
result of the explosion. Counsel on behalf of the owners
submitted
that, in order to succeed with a claim for delictual damages against
the owners, the plaintiff must prove a wrongful
act or omission; that
the defendants were negligent; that the plaintiff suffered the loss
or damages, and that a causal connection
exists between the negligent
act or omission relied on and the damages suffered.
The
plaintiff relies on the maxim
res ipsa loquitur,
i.e. the
facts proclaim negligence. The fire extinguisher exploded. A fire
extinguisher does not explode without negligence. The
fire
extinguisher was at all times in the custody of the defendant who
were in control of it. A
diigence paterfamilias
in the
position of the defendant would have foreseen the reasonable
possibility of his conduct injuring another and causing patrimonial
loss; would have taken reasonable steps to guard against such
occurrence and, the defendant failed to take such steps. Furthermore,
there are rights and duties between a bus driver and a passenger.
Ndhlov and Others v Durban City
Counsel
1970 (1) SA 39
,
wherein it was held that:
'1. A bus driver (as indeed any driver of a vehicle)
must take reasonable precautions against damages to his passengers
known or
reasonably to be apprehended.
2. A bus driver is entitled to regulate the manner in
which he drives his bus upon the assumption that his passengers will
take
such steps to protect themselves against the ordinary risks and
difficulties attendant upon travelling in a bus as may reasonably
be
expected of such passengers.
3. What may reasonably be expected of a passenger of a
bus will depend on a number of circumstances, including the age,
physical
condition and the apparent ability of the passenger to cope
with such ordinary risks and difficulties.'
Mr
Patel argued on behalf of the plaintiff that the bus driver, Mrs
Kgomo, did nothing to assist the screaming and obviously panic
stricken passengers. She covered her head and did not do anything
until the situation had calmed down. In my view, under the prevailing
circumstances at the time, the bus driver cannot be criticized for
her failure to come to the assistance of the plaintiff. She
was
herself overcome with fear and surprise. Nothing more needs to be
said in this regard.
The
argument of the defendant is that, although foreseeability of the
harm was not in issue, they had indeed taken reasonable steps
to
guard against the occurrence. The evidence of Mr Grobbelaar, the
defendants' first witness, was that, at the time of the incident,
he
was in the employ of the second defendant for a period of
twenty-eight years. All their busses are equipped with fire
extinguishers,
normally installed in the driver's cage. All the fire
extinguishers are serviced on a six-monthly basis. An independent
duly accredited
company services these fire extinguishers. To his
knowledge, the fire extinguisher on this particular bus would also
have been
serviced. He did not know if an investigation had been
conducted to determine the cause of the explosion, or the result of
any
investigation. In the twenty-eight years of his employment with
the defendant, never before had such an incident occurred. It is
policy and procedure at the company that the fire extinguishers are
serviced every six months. He could not say whether the particular
fire extinguisher in issue had been serviced in 2010.
The
defendants' second witness, Mr Johan Pretorius, the National
Technical Manager at Safequip, testified that he is involved in
the
manufacturing of fire extinguishers since 1994. In preparing a report
to testify in this matter, he had regard to photographs
of the bus.
The photographs depicted dry chemical powder that settled on the
dashboard of the bus. He also had regard to an invoice
from the
independent company that services the fire extinguishers on a six
monthly basis. According to him, it was impossible
that the fire
extinguisher would have exploded. Had it exploded, substantial
structural damage to the bus and serious personal
injury would have
occurred. The powder was released, probably because the copper tube
coil inside the pressure indicator that screws
into the operating
head, had failed. Alternatively, the "a-ring" sealing the
screw joint between the operating head and
the cylinder could have
popped out due to pressure and gas escaping. The defendants'
servicing and maintenance of its fire extinguishers
exceeded the
requirements of the national standard for servicing of portable fire
extinguishers.
The
evidence of Mr Pretorius described the workings and mechanisms of
fire extinguishers in general. He did not inspect the particular
fire
extinguisher, in issue in this matter, to determine the cause of the
admitted malfunction. Although him and Grobbelaar
testified about the meticulous maintenance and servicing of fire
extinguishers by the defendant, in general, there was no evidence
to
prove that the fire extinguisher that was placed on the bus on 20
December 2010, was serviced. I find it startling that Pretorius
is
able to conclude, from a photograph, that "it appears that (the
discharge) was of short duration because there is no evidence
of
large residue powder inside the bus or against the windows. There is
only a little powder on the dashboard where it has settled,
as shown
in the picture". The accepted evidence of Mrs Kgomo was that the
fire extinguisher exploded, with a loud noise, and
white powder
filled the air. The smoke-filled area covered the front-half of the
bus. The discharge of smoke lasted for about three
minutes. I accept
that the duration suggested by Mrs Kgomo is only an estimate made
under frightening and confusing circumstances.
I nevertheless accept
her direct evidence over that of the expert witness who draws his
unsatisfactory conclusions from unreliable
resources. The facts
speaks for itself: The explosion would have startled passengers not
knowing what the cause of it was. As a
result of the panic that
followed, the passengers, including the plaintiff, disembarked from
the bus. In the process the plaintiff
was injured. Mrs Kgomo confirms
that, when the dust settled, she noticed fellow passengers assisting
the injured lady, obviously
referring to the plaintiff. This is not
speculation, as referred to by defendant's counsel, who counsel
argues that there is no
evidence, at all, of how and if the plaintiff
was injured when disembarking from the bus. In my \'iew, that is
ignoring the obvious.
It is only a matter of common sense.
Goliath
v
MEC for Health, Eastern Cape,
2015
(2)
SA 97
(SCA) at
103 G-J:
'Broadly stated,
res ipsa loquitur
(the thing
speaks for itself) is a convenient Latin phrase used to describe the
proof of facts which are sufficient to support an
inference that a
defendant was negligent and thereby to establish a prima facie case
against him. The maxim is no magic formula.
It is not a presumption
of law, but merely a permissible inference which the court may employ
if upon all the facts it appears
to be justified. It is usually
invoked in circumstances when the only known facts, relating to
negligence, consist of the occurrence
itself - where the occurrence
may be of such a nature as to warrant an inference of negligence. The
maxim alters neither the incidence
of the onus nor the rules of
pleading - it being trite that the onus resting on the plaintiff
never shifts. Nothing about its application
or application, I dare
say, is intended to displace common sense'.
The
enquiry at the end of the case is whether the plaintiff has
discharged the onus resting upon her in connection with the issue
if
negligence. The matter must be approached on the basis that the
reason for the chaotic exit from the bus and the subsequent
injury of
the plaintiff, was set in motion by the discharge of the fire
extinguisher. The fire extinguisher was under the control
of the
defendant. I am satisfied that the maxim
res ipsa loquitur
finds
application in this case, as it is the sensible common sense approach
to causation that quells the defence that causation
has not been
established. The compelling inference is that the incident could only
have been caused by some act of negligence of
the defendant.
I am
satisfied that after hearing all the evidence, the plaintiff has
discharged the onus of proving on a balance of probabilities
that the
defendant (owner) was negligent. The evidence in rebuttal presented
by the defendant was nothing more than evidence of
practice and
procedure employed at the company, in general. It was of no
assistance to the defendant's arguments that it took all
reasonable
steps to safeguard against the occurrence, in this particular bus,
relating to this particular fire extinguisher.
ORDER:
1. The
plaintiff's claim against the Road Accident f und is dismissed with
costs.
2. The
plaintiff's case against the first and second defendants (owners)
succeeds, with costs.
________________________
E
SWARTZ
Acting Judge of the High Court