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[2016] ZAGPPHC 543
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B v Road Accident Fund (41110/2013) [2016] ZAGPPHC 543 (8 July 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG, PRETORIA
Not
reportable
Not
of interest to other judges
Revised.
8/7/2016
CASE
NO: 41110/2013
In the
matter between:
G C BE
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MOLOPA-SETHOSA
J
[1] The
Plaintiff, G C B ("the plaintiff ') has instituted an action
against the Road Accident Fund ("the defendant")
for
damages arising out of a motor vehicle collision which occurred on or
about 30 October 2011 at Menlyn Motor City, Garsfontein
Road,
Pretoria, between a silver Jeep Cherokee motor vehicle ("the
insured vehicle") there and then driven by one Daniel
Johannes
Andries Br ("Br-the insured driver"), and the plaintiff,
who was a pedestrian at the time of the collision.
[2]
The plaintiff's claim is based on Section 17 (1) of the Road Accident
Fund Act, Act 56 of 1996 ("the Act")
[3]
The plaintiff has pleaded that the defendant was at all material
times, and more specifically on the 30the October 2011, in
terms of
section 17(1) of the Act, obliged to compensate plaintiff for any
loss or damage suffered by himself as a result of any
bodily injury
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 such injury or death is due to the
negligence or the wrongful act of the driver
or the owner of the
motor vehicle or of his or her employee in the performance of the
employee's duties as an employee.
[4]
The defendant admits that an 'incident' occurred on 31 October 2011
at Menlyn Motor City between a motor vehicle driven at the
time by
Br-the insured driver and the plaintiff, but denies liability and
specifically denies that the actions of Br-the insured
driver,
constituted an act of driving.
[5] At
the commencement of the trial, the parties by agreement made an
application for the separation of merits and quantum in terms
of Rule
33(4) of the Uniform Rules of the Superior Court, which order was
granted. The parties agreed that this matter will proceed
by way of a
stated case in respect of the merits portion of this matter only.
[6] The
stated case is set out as follows:
"1.
The
locus standi
of the Plaintiff is admitted.
2.
The
Plaintiff has complied with the procedural requirements, as required
in terms of the
Road Accident Fund Act, 56 of 1996
, and the
regulations thereto, to lodge and prosecute his claim.
3.
The
portion of the version of the insured driver as quoted herein below
is common cause between the parties, and is admitted to
be the facts
giving rise to the present action:
"I, Daniel Johannes Andries Br, hereby state as
follows:
On 31October 20I I -date given to me by
investigator-I took my Jeep to the Menlyn Jeep Garage. It was around
07:00 in the morning.
The Claimant [Plaintiff] was the only person in
the workshop at the time. I explained the problem I had with my
vehicle and the
Claimant [Plaintiff] said I should drive my vehicle
into the workshop, which I did. After stopping, I got out to open the
bonnet
of my vehicle. I got back into the vehicle. The Jeep has a
safety mechanism built into the vehicle, whereby the driver has to
step
on the clutch pedal.
At the time I started the vehicle, the Claimant
[Plaintiff] was right in front of the vehicle. Whenever I park my
vehicle, I have
the habit to engage the hand brake and put the
vehicle intofirst gear. This was also the case on that particular
morning. After
starting the vehicle I released the clutch. As the
vehicle was in first gear, it moved forward and bumped
into the Claimant [Plaintiff].
I realized what had happened, switched off the engine
and jumped out to assist the Claimant [Plaintiff], who fell in front
of the
vehicle. He was fully conscious the entire time and I helped
him up and move to a chair. He complained of
pain
in his leg ...
"
4
The actions of Daniel Johannes Andries Br are
negligent.
5
The parties agree that the issue to be decided by
this Honourable Court is whether the actions of Daniel Johannes
Andries Br constitute
"driving" as envisaged in
Road
Accident Fund Act 56 of 1996
, and concomitantly, whether the injuries
sustained by the Plaintiff are "caused or arising from the
driving of a motor vehicle"
[7] The
following are common cause facts between the parties:
[7.1] The
locus standi
of the plaintiff, and that
he/plaintiff has complied with all the procedural requirements for
the lodgement of the claim.
[7.2] The date, time and place of the accident; [though
in the particulars of claim the plaintiff had alleged that the
accident
occurred on 30 October 2011, it seems to be accepted by both
parties that the actual date of the accident is 31 October 2011].
[7.3] The facts as narrated by the insured driver, as
outlined more fully in the stated case; i.e. the portion of the
version of
the insured driver as quoted in paragraph 3 of the stated
case set out in para [6] here above, is common cause between the
parties,
and is admitted to be the facts giving rise to the present
action.
[7.4] The collision between Br'-the insured driver's
vehicle and the plaintiff, i.e. that the insured driver's
Jeep/vehicle
"moved forward and bumped into the plaintiff '.
[7.5] That the plaintiff got injured on the day and time
at the place in question herein.
[7.6] That Br-the insured driver was 100% negligent.
[8] The
plaintiff and defendant agreed that the only issue to be determined
by this Court is whether the actions of Br-the insured
driver,
constitute 'driving' as envisaged in the Act, and concomitantly,
whether the injuries sustained by the plaintiff were
"caused
by or arising from the driving of a motor vehicle";
i.e. the
question for determination before the court is whether the insured
driver's actions constituted 'driving', which resulted
in the
injuries sustained by the plaintiff.
[9] In
order to determine whether the injuries sustained were caused or
arise from the driving of a motor vehicle, one has to look
at the
concept of driving.
[10]
For purposes of the Act, and from authorities referred to by the
parties, the concept of driving has two meanings, namely
[10.1] driving in the ordinary sense as contemplated in
section 17(1) of the Act;
[10.2] driving in an extended sense as
contemplated in section 20 (1), (2) and (3) of the Act.
[11]
Section 17 (1) of the Act provides as follows:
"17 Liability of Fund and agents
(1) 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 ... caused
by or arising from the driving of a motor vehicle ..., if the injury
or death is due to the
negligence or other wrongful act of the driver
or of the owner of the motor
vehicIe ...
"
[12]
From the reading of sl 7 (a)
supra
it is clear that the
driving of the motor vehicle is the kernel/core of success in
claiming compensation under section 17 (1) (a),
where the identity of
the driver thereof has been established. Refer
Wells and Another v
Shield Insurance Co Ltd
1965 (2) SA 865
(C);
Makhubele v RAF
(3718/2009) [2010] ZAGPPH C 630 (5 May 2010). Therefore, in order
for the defendant to incur liability for loss or damage suffered
as a
result of bodily injuries, such loss or damage arising from injuries
must have been
caused by or arising from the driving of a motor
vehicle
"
(my underlining).
[13]
The identity of the driver herein [Br], as well as his negligence is
not an issue here.
[14]
The courts have also interpreted the forerunners of section 20 of the
Act in the previous legislation, to give the term driving
an extended
meaning. Refer
Wells and Another
v
Shield Insurance Co Ltd
1965 (2) SA 865
(C);
Flynn
v
Unie Nasionaal Suid Bre
Versekiringsmaatskapy Bpk
1974 (4) SA 283
(NC) and
Petersen
v
Santam Insurance Co Ltd
1961 (1) SA 205
(C).
[15]
Section 20 of the Act provides as follows:
"20 Presumptions regarding driving of motor
vehicle
(1) For the purposes of this Act a motor vehicle
which is being propelled by any mechanical, animal or human power or
by gravity
or momentum shall be deemed to be driven by the person in
control of the vehicle.
(2)
For the purposes of
the Act a person who has placed or left a motor vehicle at any place
shall be deemed to be driving that motor
vehicle while it moves from
that place as a result of gravity, or while it is stationery at that
place to which it moved from the
first-mentioned place as a result of
gravity.
(3)
Whenever any motor
vehicle has been placed or left at any place, it shall, for the
purpose of this Act, be presumed, until the contrary
is proved, that
such vehicle
was placed or left at such
place by the owner of such vehicle."
[16]
The plaintiff contends that Br-the insured driver started the insured
vehicle and released the clutch of the insured vehicle,
while the
insured vehicle was in gear and the hand brake was on, as a result of
which the insured vehicle moved forward and collided
with
['bumped
into']
the plaintiff, causing him injuries.
[17]
The plaintiff s counsel thus submitted that, with Br-the insured
driver sitting inside the insured vehicle, having the key
in the
ignition, and the act of turning the ignition/starting the insured
vehicle, then releasing the clutch of the insured vehicle
whilst the
insured vehicle was in first gear and the hand brake was on, which
resulted in the insured vehicle moving from point
A to B, that that
in itself constitutes driving as envisaged in the Act.
[18]
Counsel for the plaintiff further submitted that the deeming
provisions of s20 (1) and (2) of the Act can also be applicable
in
this matter, taking into account that any mechanical power of
propulsion includes the mechanical propulsion provided by the
vehicle's own engine. That if the vehicle was being propelled by any
mechanical power, which mechanical propulsion is provided
by the
vehicle's own engine, it is deemed to be driven. That therefore there
can be no doubt that the insured vehicle was so propelled.
Refer
Flynn v Unie Nasionaal Suid Bre Versekiringsmaatskapy Bpk supra.
[19]
That the insured driver was driving the vehicle, as contemplated in
the Act (both in the ordinary sense of the word, or in
the extended
sense of the term 'driving', and that accordingly, the plaintiff s
injuries were caused by or arose from negligent
driving. That the
defendant is therefore, liable for one hundred per cent of the
plaintiff s agreed or proven damages, and costs.
[20]
On the other hand the defendant denies that the actions of the
insured driver constituted an act of driving and contends that
the
actions of Br-the insured driver do not constitute an act of driving
as envisaged in the Act, and that therefore the defendant
is not
liable to compensate plaintiff, for the following reasons:
[20.1] That the ordinary meaning of driving should be
attributed to the word "driving" in section 17 ( 1) of the
Act.
[20.2] That if one considers the ordinary meaning of the
word "driving" Br-the insured driver, did not drive the
motor
vehicle merely by starting same.
[20.3] That one of the prerequisites for driving is that
the driver must have the necessary intention to drive the motor
vehicle,
i.e. that coupled with starting of the motor vehicle Br-the
insured driver, should have had the intent to drive the vehicle. That
from the stated case it cannot be said that Br-the insured driver,
had the intent to drive the vehicle.
[21]
Counsel for the defendant submitted that in starting the vehicle,
with the insured vehicle being in first gear, the hand brake
on, and
releasing the clutch, that Br-the insured driver, could not have
intended to 'drive' the vehicle from point A to B for
purposes of
Section 17(1) of the Act; that Br-the insured driver did not urge or
direct the vehicle forward; that therefore Br
was not driving the
motor vehicle and that his actions do not constitute conduct in terms
of which defendant can be held liable.
[22]
Counsel for the defendant further submitted that when considering the
deeming provisions in section 20(1) of the Act it cannot
be said that
the insured vehicle started and moved by some other mechanical power,
but that the insured vehicle started as a result
of its own
mechanical power. That, in the circumstances, the deeming provisions
are also not applicable and it cannot be said that
Br was driving in
terms of section 20 (1) of the Act.
[23]
There is no definition in the Act of what 'driving' is; i.e. the term
"driving" as used within the ambit of the Act,
is not
defined in section 1 thereof, and accordingly one must have regard to
the interpretation thereof, as enunciated by the courts.
[24]
The Courts have in some instances found that the word "driving"
has, in respect of the Act, both an ordinary meaning
and an extended
meaning. See
Wells and Another v Shield Insurance Co Ltd supra.
[25]
In
Wells and Another v Shield Insurance Co Ltd
supra, the
court found the ordinary meaning of driving to be the following:
"The word 'driving', as used in relation to the
insured motor vehicle, means, ordinarily, in my view, the urging on,
directing
the course and general control of the vehicle while in
motion and all other acts reasonably or necessarily incidental
thereto.
It would thus include, inter alia. the starting of the
engine and the manipulation of the controls of the vehicle which
regulate
its speed and direction and also those which assist the
driver and other users of the road, such as lights, traffic
indicators
etc.
" Refer also
Sehire
v Central Board for Cooperative Insurance Ltd
1976
(1) SA 524
(W) and
Peterson v Santam
Versekiringsmaatskappy
1961 (1) SA 205
(C).
(My underlining)
[26]
As already mentioned, the courts have also interpreted the
forerunners of section 20 of the Act in the previous legislation
[Motor vehicle Insurance Act, Act 29 of 1942; Compulsory Motor
Vehicle Act 56 of 1972], to give the term driving an extended
meaning.
See Wells
supra and Flynn v Unie Nasionaal Suid Bre
Versekiringsmaatskapy Bpk
1974 (4) SA 283
(NC)
and Petersen v
Santam Insurance Co Ltd
1961 (1) SA 205
(C).
[27]
HB Klopper, in HB Klopper, The law of Third Party Compensation, 3rd
edition, LexisNexis at 52, (with reference to the Shorter
Oxford
Dictionary, the Verklarende Handwoordeboek van die Afrikaanse Taal
and case law) explains the meaning of driving as follows:
"...any voluntary action which directly sets a
stationery vehicle into motion and
is
directed to control the motor vehicle after it
has come into motion as well as all related actions which are
reasonably and necessarily
connected therewith.
"
[28]
Further, in an article, HB Klopper in the Tyddskrif VJr Hedendaagse
Reg, 'Accidental starting of a motor vehicle', August
2009 THRHR 514
,
Klopper
wrote that:
"Normally, claims against the road accident fund
are caused by or arise from the driving of a motor vehicle. Driving
has a
circumscribed technical meaning and is constituted by the
intentional starting of a vehicle in order to drive it, setting a
vehicle
into motion, exercising control over the vehicle while it is
in motion by using its controls including direction indicators and
hooter and then bringing such vehicle to a standstill and all related
and required conduct to achieve this ...
34 Intention required
In Flynn (a matter decided on exception) the court
held that the motor vehicle had been driven. This finding was based
on the fact
that the mechanic working on the motor vehicle in
question and who caused the starter to turn over which in
turn made the vehicle lurch forward pinning the
claimant between the vehicle and the work bench, was in control of
the motor vehicle
and impliedly had the ability of intentionally
setting the motor vehicle in motion by operating the starter. This
impliedly indicates
that the mere operation of a starter motor either
by chance or otherwise, cannot render the RAF liable-intention to
operate the
starter in order to drive seems to be an added implied
pre-requisite.
Apart from the implied intention to drive required in
conjunction with the use of a starter motor of a motor vehicle in
order for
operation of section 20(1) to be possibly applicable (see
Flynn), normally the operation of the starter motor of a motor
vehicle
in itself can only constitute driving if it
is
accompanied by an intention to perform the act
of driving ...
4 Conclusion
In view of the doubt that exist whether section 20(1)
applies to a situation where a motor vehicle
is
accidentally set into motion by the
inadvertent or accidental operation of its starter motor and the
absence of the required intention
to set a motor vehicle in motion
subsequent to the operating of the starter, the facile and
matter-of-fact assumption that the
requirement of driving was
complied with, has to be questioned ...
"
[29]
Based on the work and interpretation of Klopper
supra,
counsel
for the defendant submitted that Br-the insured driver's action to
start
the motor vehicle did not constitute an act of driving,
where Br-the insured driver did not have any intention to indeed
drive
the motor vehicle, alternatively where he did not mean to drive
the motor vehicle at all. That it can therefore not be said that
the
action of starting of the motor vehicle was incidental to driving
same as there was no intention of driving the motor vehicle.
That Br
merely started the vehicle with the intention of having the plaintiff
listen to what was wrong with the motor vehicle.
[30]
Plaintiff s counsel loses sight of the fact that Br-the insured
driver did not merely start the insured vehicle only and stop
there;
he in addition released the clutch thereof, while the hand brake was
on and the vehicle was in first gear, all of which
is, in my
considered view, form part of the manoeuvring/manipulation of the
controls of a vehicle, which resulted in the insured
vehicle moving
from point A to point B and thus amounts to driving; and in the
process the plaintiff was hit by the insured vehicle,
as a result of
which he sustained serious bodily injuries. It is important to note
that the article by Klopper
supra
suggests that he was dealing
with a situation where a vehicle was accidentally started. this is
not the case in the matter at hand
here.
[31]
Looking at the facts of this matter, and most importantly, having
regard to what Br-the insured driver states in his statement
set out
above, it is clear that he/Br-insured driver considered himself to be
the driver of the vehicle in question. He says specifically
in the
agreed facts that "the Jeep has a safety mechanism built into
the vehicle, whereby the
d
river has to step on the clutch
pedal." (My underlining).
[32]
Br-the insured driver was most certainly, at the time of the
incident, in question, in control of the vehicle.
[33]
The .ordinary definition of the term "driving" includes the
starting of the engine, and this, coupled with the fact
that Br-the
insured driver had released the clutch, while he had engaged the
insured vehicle in first gear, with the hand brake
on, is what gave
rise to the vehicle, under the control of the Br-insured driver,
lurching forward and colliding with the plaintiff,
causing him
serious injuries.
[34]
As much as we are not dealing with the quantum of damages presently,
it is significant to mention that it appears that the
plaintiff
sustained very serious bodily injuries. In all probabilities the
lurch/motion of the insured vehicle was very significant/momentous.
It cannot be said to have resulted from the mere starting of the
vehicle only; and from the facts set out in the stated case Br-the
insured driver's actions are not limited to mere starting of the
insured vehicle. Counsel for the defendant correctly stated that
"driving includes other actions incidental thereto such as
starting of the engine and the manipulation of the controls.",
However, she wants the court not to consider and/or accept that,
amongst others, the release of the clutch [which is bound to cause
the vehicle to move since the hand brake was on, and he had engaged
the vehicle into first gear], is to be regarded as manipulation
of
the controls of the vehicle.
[35]
The court in
Sehire
v
Central Board for Cooperative
Insurance Ltd
1976 (1) SA 524
(W) held that the starting of a
tractor was driving. In this regard Melamet J stated the following:
"It appears to me that the starting of the
engine is included in the ordinary meaning of the word 'driving'
The switching on of the engine is an act designed to
urge the vehicle into motion and the driver in the seat of the
tractor will
direct its course having switched it on. Thus, if
these two elements, conjunctively, constitute the act
of driving, I am of the view that any one of these elements will, in
certain
circumstances, constitute an act in the driving of a vehicle.
"(My underlining)
[36]
Driving thus includes other actions incidental thereto such as
starting of the engine and the manipulation of the controls
[like
releasing a clutch while the vehicle was engaged in first gear],
which regulate the speed and direction of the vehicle and
those which
assist the driver and other users of the road, such as lights and
traffic indicators. (My underlining)
[37]
Section 20(1) of the Act extends the meaning of driving to include
the specific cases where a motor vehicle is not driven in
the
ordinary sense.
[38]
To properly interpret section 20(1) one should have a look at the
words "propelled by any mechanical, animal or human
power or by
gravity or momentum" .
[39]
Counsel for the defendant submitted that if one considers the words
"any mechanical" followed by the words "animal
or
human power or by gravity or momentum" and when applying the
eiusdem generis
rule of rule of interpretation
"any
mechanical ...power"
is intended to mean mechanical or other
power other than that of the motor vehicle concerned. (My
underlining)
[40]
That this essentially means that the operation of a motor vehicle's
starter motor cannot result in section 20(1) of the Act
being
applicable as the operation thereof does not constitute
"any
mechanical ...power"
as intended by the by the legislature.
Further that the operation of the starter motor of a motor vehicle
falls within the ambit
of the ordinary meaning of driving, and not
the extended meaning.
[41]
As already mentioned in para [18] above, and contrary to the view of
the defendant's counsel in this regard, counsel for the
plaintiff
submitted that the deeming provisions of s20 (1) and (2) of the Act
can also be applicable in this matter, taking into
account that any
mechanical power of propulsion includes the mechanical propulsion
provided by the vehicle's own engine. If the
vehicle was being
propelled by any mechanical power, which mechanical propulsion is
provided by the vehicle's own engine, the vehicle
is deemed to be
driven. That therefore there can be no doubt that the insured vehicle
was so propelled. Refer
Flynn v Unie Nasionaal Suid Bre
Versekiringsmaatskapy Bpk supra.
[42]
Having regard to the totality of the facts and on a proper analysis
of all the facts, including the pleading, it is noted that
in
paragraph 4 of the defendant's plea, in response to paragraph 4 of
the plaintiff s particulars of claim, wherein the plaintiff
has
pleaded that
"4
...a collision has occurred between an unidentified
motor vehicle ("the insured vehicle") driven by Johan Br
("the
insured driver") and the plaintiff ...
the
defendant pleaded as follows
"4
The Defendant
admits
that an incident occurred on 31 October 2011 at Mc
Carthy Limited, Menlyn Motor City Garsfontein, Pretoria between a
motor vehicle
driven
at
the time by Johan Br and the Plaintiff."
[My
underlining]
[43]
The defendant has thus in its plea dated 04 September 2013
[p13 of
the pleadings bundle]
clearly admitted the
driving
of the
motor vehicle by Br-the insured driver. Having so admitted the
driving, then in paragraph 5.1of its plea, it pleads that
the actions
of the insured driver did not constitute driving!
[44]
In his statement, set out in the stated case, Br-the insured driver
stated that
"...After starting the vehicle I released the
clutch .... "
He further states in his statement aforesaid
that he had engaged the insured vehicle in first gear and that the
hand brake was on.
In my considered view by so doing the insured
driver, impliedly or otherwise, had the intention to drive, there
can't be any other
intention other than that.
[45]
As mentioned above, the defendant contends that the insured motor
vehicle did not start and move by some other mechanical power
as
envisaged in s20 of the Act, but that it started as a result of its
own mechanical power. Counsel for the defendant acknowledges
that the
insured vehicle has some mechanical power. This confirms the
plaintiff s submissions that mechanical power of propulsion
includes
the mechanical propulsion provided by the vehicle's own engine. If
the vehicle was being propelled by any mechanical power,
which
mechanical propulsion is provided by the vehicle's own engine then
the extended meaning envisaged in section 20(1) also applies
to the
facts herein. The actions of Br-the insured driver can be deemed to
be 'driving', as envisaged by the Act.
[46]
The insured driver specifically states in his statement that he
started
the vehicle-"At
the time
I started
the vehicle
, the Claimant [Plaintiff] was right in front
of the vehicle ....
", he thereafter released the
clutch-this is the terminology he uses in his statement [
not
stepped on the clutch
, for purposes of the safety
mechanism he alleges his Jeep has].
[47]
Surely there is a difference between
'stepping on the clutch'
and
'releasing the clutch'
, one releases the clutch after the
vehicle has been started and the first gear is engaged to drive the
vehicle. This is a basic
principle of driving. The conduct and
intention of Br the insured driver was that of a person
intending driving a vehicle.
If one has regard to the actions of the
insured driver, there is no room to give his actions a different
meaning other than that
he started the vehicle, knowing very well
that he had engaged the hand brake and that 'the vehicle was in first
gear'. This does
not only go to negligence; this is the conduct of a
person who intends to drive.
[48]
Further, on the facts before this court there is no question and/or a
'situation where a motor vehicle is accidentally set into motion
by the inadvertent or accidental operation of its starter'.
Nowhere
in his statement does the insured driver allude to 'a
situation
where a motor vehicle is accidentally set into motion by the
inadvertent or accidental operation of its starter ... '
He
mentions in his statement that
"....After starting the
vehicle I released the clutch
...
"this
while the vehicle was in first gear! The only intention is that of
someone who intended driving.
[49] To
sum up, on the version of Br-the insured driver: The hand brake was
on at the time of starting vehicle; clutch was released
and at the
time of starting the insured vehicle the gear was engaged in first
gear. This is the act of driving even in the ordinary
sense; the
intention to drive can be inferred.
[50]
The facts of this case actually qualify both ways [in the ordinary as
well as in the extended meaning of the word.
[51]
The insured vehicle can also be said to have been propelled by the
mechanical power of its own engine, emanating from the actions
of the
Br-the insured driver; it can thus be deemed to have been driven.
There can be no doubt that the vehicle was so propelled.
See
Flynn
v Unie Nasionaal Suid Bre Versekiringsmaatskappy
supra.
[52]
The insured vehicle was driven, either, in the ordinary sense of the
word "driving", or in the extended sense of
the term
"driving" in the present circumstances.
[53]
The question now is whether there was a causal link/connection
between the injuries sustained by the plaintiff and the driving
of
the insured vehicle. In
Petersen v Santam Insurance Co. Ltd
1961
(1) SA 205
(C) at 209 Van heerden AJ stated at 209 that there must be
a causal connection between the infliction of the injury and the
driving
of the vehicle.
[54]
The only answer to the question whether there is a causal connection
between the infliction of the injury and the driving of
the vehicle
in this matter is a positive yes. No doubt there was a causal link
between the injuries sustained by the plaintiff
and the driving of
the insured vehicle.
[55]
The
Road Accident Fund Act basically
constitutes social security
legislation with its primary object described as 'to give the
greatest possible protection to persons
who suffered loss through a
negligent or unlawful act on the part of the driver or owner of a
motor vehicle. Refer Aetna Insurance
Co. v Minister of Justice
1960
(3) SA 273
(A).
[56]
In
Flynn v Unie Nasionaal Suid Bre Versekiringsmaatskapy Bpk
1974
(4) SA 283
(NC) a mechanic, who was working on an engine of a
vehicle, manipulated the starter in the engine while outside the
vehicle, which
action prompted the car which was in gear to start,
and it lurched forward and crushed into another person. The mechanic
was deemed
to have been driving the vehicle, as envisaged by sl (2)
and (3) of the then applicable Motor Vehicle Insurance Act 29 of
1942;
which provisions are similar to provisions of s20 of the RAF
Act.
[57]
In the case at hand Br-the insured driver, was inside the body of the
vehicle, he was in control of the vehicle; he actually
started the
vehicle while the hand brake was on and the car was in first gear, he
then released the clutch; the insured vehicle
then moved forward and
hit the plaintiff. If this is not driving then what will!
[58]
I agree with counsel for the plaintiff's submissions that, with the
key in the ignition, the act of turning the ignition/starting
the
insured vehicle by Br-the insured driver, who was at the time sitting
inside the body of the vehicle behind the steering wheel,
then
releasing the clutch of the insured vehicle, whilst the insured,
vehicle was in first gear and the hand brake was on, resulting
in the
insured vehicle moving from point A to B; that in itself constitutes
driving as envisaged in s17 (a) of the Act.
[59] On
the totality of the facts set out in the stated case, and on a
balance of probabilities, I find that the conduct and actions
of
Br-the insured driver amounts to, and/or constitutes driving as
envisaged by the Act.
In the
result, the following order is made:
1.
It is declared that the defendant
is 100% liable to compensate the plaintiff for the injuries he
sustained on 31 October 2011.
2.
The Defendant is ordered to pay
the Plaintiff s taxed or agreed party and party costs on a High Court
scale.
__________________
MOLOPA-SETHOSA
Judge
of the High Court
Appearances
as follows:
Counsel
for plaintiff: Adv. C M DREDGE
Instructed
by: GERT NEL INC
Counsel
for defendants: Adv. H J BASSON
Instructed
by: MOTHLE JOOMA SABDIA INCORPORATED