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[2016] ZAGPPHC 1211
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Chirombi v Road Accident Fund (29056/2013) [2016] ZAGPPHC 1211 (11 November 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 29056/2013
DATE:
10/11/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
SHACKSON
CHIROMBI Plaintiff
And
ROAD
ACCIDENT
FUND Defendant
Heard:
28 July 2016
Delivered:
10 November 2016
Judgment
Molahlehi
J
Introduction
1.
On 23 April 2012, whilst cycling next to the R55 road in
Sunderland, the plaintiff, Mr. Chirumbi was hit on his hand by a
brick
that fell from the truck that was driven by the insured driver.
The matter served before this court for the determination of
liability.
The matter was not ripe for the determination of quantum.
2.
The plaintiff lodged a claim with the respondent, Road
Accident Fund (RAF). The RAF rejected the claim and subsequent
thereto the
plaintiff instituted the present proceedings in this
court, claiming damages for the harm he alleges to have suffered as a
result;
namely a fractured arm.
3.
The case of the RAF is that the insured truck driver was
not responsible for the falling of the brick from his truck. It was
suggested
in this regard that the person responsible for that was the
one who loaded the rubble on the truck. It was further contended that
the claim should have been instituted against the owner of the truck
and not the RAF.
4.
In support of the
above contention, counsel for the RAF relied on the decision in Grove
v RAF
[1]
which, as will
appear later in this judgment, does not support his case.
Evaluation/
analysis
5.
The essence of the
defense of the RAF, as I understand it, relates to the question of
whether or not the accident that resulted
in the injury of the
plaintiff arose from the driving of a motor vehicle as envisaged in
section 17 of the Road Accident Fund Act
(the Act).
[2]
Section 17 of the
Act reads as follow:
"(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."
6.
The onus is in the plaintiff to show that the collision
occurred as a result of the driving of the truck by the insured
driver.
In other words the plaintiff has to show that there is a
causal connection between the driving of the truck by the insured
driver,
the falling of the brick, and the harm that he suffered. Put
in another way the plaintiff has to show that his right to claim
compensation
arises for the harm he suffered a result either the
negligent or wrongful conduct of the driver of the truck. The
collision, on
the facts of this case is according to the plaintiff,
the falling of the brick from the ruble cargo which was on the truck
driven
by the insured driver.
7.
In dealing with the concept, "arising from the
driving of a motor vehicle," the Supreme Court of Appeal (SCA)
in Grove
v Road Accident Fund, (supra) held that in order to succeed
in a claim for damages, the plaintiff must establish both the factual
causation and legal causation and that in deciding such issues a
court must be guided by the consideration of the object and scope
of
the Act, including common sense. The SCA, further held that:
"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 this 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
wrongdoers 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."
8.
In illustrating
the relationship between negligence and the concept, "arising
from the driving of a motor vehicle11 the SCA
in Grove referred to
Grobler v Santam Verscecking Bpk,
[3]
where the first
driver failed to remove the horse which he had collided with. He
after the accident left the dead horse lying in
the road. He was
found to have been negligent and to be the cause of the subsequent
accident where the second driver collided with
the dead horse.
9.
In my view the
insured driver drove the truck in a negligent manner in that he
failed to ensure that the rubble on his truck was
properly secured.
The duty of the truck drive in addition to the common sense approach
to the issue, arises from the provisions
of Regulation 246(b)(11) of
the National Road Traffic Act which provides:
[4]
“
No person shall
operate on a public road a motor vehicle carrying any goods which are
not (i) safely contained within the body of
such vehicle,(ii)
securely fastened to such vehicle, and which are not properly
protected from being dislodged or spilled from
such vehicle.”
10.
It is, thus evidently, clear from the above that the
argument that the truck driver was not responsible for the loading of
the rubble
bears no merit. A reasonable person in the position of the
insured driver would have foreseen that if the ruble was not properly
secured in the body of the truck any of the objects in the rubble
could fall and cause injury to innocent people, such as the
plaintiff. This means that, but-for the negligence and wrongful
driving of the truck by the insured truck driver, the plaintiff
would
not have suffered the harm. It follows that the
sine
quanon
of the harm suffered by the plaintiff
is the wrongful and negligent conduct of the insured truck driver.
11.
I am thus satisfied, based on the above facts, that the
plaintiff has discharge his onus of showing that there is causal
connection
between the harm he suffered and the negligent driving of
the insured truck driver.
Order
In
the result I find in favour of the plaintiff and accordingly make the
following order:
1.
The
Road Accident Fund is liable for the injuries and damages suffered by
plaintiff.
2.
The
Road accident fund is to pay the costs of plaintiff on attorney and
client scale.
3.
The
matter is postponed
sine die
for
the determination of quantum.
__________________
Molahlehi
AJ
Acting
Judge of the South Gauteng
High
Court
APPEARANCES
PLAINTIFF: TRYON I.
PATHER INC
DEFENDANT: MATABANE INC
[1]
(74/10)
2011
ZASCA
55
(31 March 2011).
[2]
Act 19 of 2005.
[3]
(74/10) [2011] ZASC 55 (31 March 2011).
[4]
Act number 93 of 1996.