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[2007] ZASCA 83
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Bell v Road Accident Fund (121/06) [2007] ZASCA 83; [2007] SCA 83 (RSA) 2007 (6) SA 48 (SCA) (1 June 2007)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 121/06
In the matter between:
BRUCE BENNET BELL
...............................
APPELLANT
and
THE ROAD ACCIDENT FUND
...............................
RESPONDENT
CORAM: STREICHER, CAMERON, JAFTA JJA, et SNYDERS, THERON AJJA
DATE OF
HEARING: 17 MAY 2007
DATE OF
DELIVERY: 1 JUNE 2007
Summary
:
Motor vehicle accidents – Compensation – Damages claim in
terms of Multilateral Motor Vehicle Accidents Fund Act 93
0f 1989 –
Whether a flatbed transporter is a ‘motor vehicle’ as
defined in the Act – Whether ‘road’
in the
definition of a ‘motor vehicle’ means a ‘public
road’.
Neutral citation:
This case may be cited as
Bell v The Road Accident Fund
[2007] SCA 83 (RSA).
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
THERON AJA/
[1] The appellant was employed as a baggage controller
by a company based at Cape Town International Airport, transferring
luggage
containers to and from aircraft. On 18 November 1994 he was
involved in a collision with a flatbed transporter inside the
operational
area of the airport. In consequence he sustained certain
bodily injuries. He instituted an action for damages against the Road
Accident
Fund (‘the Fund’) in the Cape High Court on the
basis that the collision was caused by the negligence of the driver
of
the flatbed transporter. The Fund, in a special plea, alleged that
the appellant’s claim should be dismissed as the flatbed
transporter was not a motor vehicle as defined in
s 1
of the
Road
Accident Fund Act 56 of 1996
.
1
[2] In the court
a quo
,
the parties agreed that the issue raised in the special plea be
adjudicated as a stated case in terms of
Rule 33
of the Rules of the
High Court. The court (HJ Erasmus J) upheld the special plea, finding
that the flatbed transporter did not fall
within the statutory
definition of a motor vehicle. It is against that finding that the
appellant appeals, with the leave of the
court
a
quo
.
[3] This appeal raises the question whether the flatbed
transporter is a motor vehicle as defined in Articles 1 and 40 of the
Agreement
Establishing the Multilateral Motor Vehicle Accidents Fund
(‘the Agreement’) which Agreement was entered into
pursuant
to the provisions of the Multilateral Motor Vehicle
Accidents Fund Act 93 of 1989.
In Article 1 of the Agreement it is stated that a:
‘ “
motor
vehicle” means any vehicle designed or adapted for propulsion
or haulage on a road by means of fuel or electricity and
includes a
trailer, a caravan, an agricultural or any other implement designed
or adapted to be drawn by such motor vehicle.’
This definition is substantially similar to that in the
Road Accident Fund Act 56 of 1996
.
Article 40 of the Agreement provides that:
‘
The MMF or its
appointed agent, as the case may be, shall subject to the provisions
of this Agreement be obliged to compensate any
person whomsoever (in
this Agreement called the third party) for any loss or damage which
the third party has suffered as a result
of-
(a) any bodily injury to himself;
(b) the death of or any bodily injury to
any person,
in either case caused by or arising out
of the driving of a motor vehicle by any person whomsoever at any
place within the area of
jurisdiction of the members of the MMF…’
[4] The vehicle in question is a Transporter 7750A made
in Switzerland. It is powered by a diesel engine and has a hydraulic
transmission
similar to that of a standard vehicle with an automatic
transmission; a drive lever is fitted to the left of the driver’s
seat
with the positions R-N-L-D. The vehicle can reverse and go
forward. The accelerator pedal and foot brake are on the floor and
according
to the manufacturer’s specifications it has a speed
range of up to 30km/h in drive and 15km/h in reverse. It was however
agreed
by the parties that the vehicle can attain a speed of
approximately 50km/h. The vehicle does not have a rearview mirror,
side mirrors
or seat belts.
[5] The vehicle is fitted with a raised seat for the
driver which is not enclosed. It is equipped with a power steering, a
footbrake
on all four wheels and a separate handbrake. It has four
large heavy duty pneumatic tyres. The drive controls are on a panel
to the
left of the steering wheel and include a starter and light
switch, fuel gauge, thermometer, oil pressure gauge and blinker
switch
with hooter. The vehicle is fitted with headlights which may
be dimmed or brightened, a beacon light, indicator lights and parking
lights on all four corners, brake lights and reflectors at the rear.
Its lighting system allows it to be operated twenty four hours
a day.
The basic weight of the vehicle is 4000kg and it has a carrying
capacity of up to 6800kg.
[6] According to the manufacturer’s brochure
admitted in evidence, it is a self–propelled vehicle designed
for the transportation
of baggage and cargo. It is used at airports
to transport baggage and cargo from its place of origin within the
confines of the terminal,
to next to an aircraft on the airside of an
airport (the tarmac and runway area where planes arrive and take
off). The flatbed transporter
operates only within the confines of
the airport.
[7] The airside of the airport has a road system which
functions similarly to that of public roads, except that the general
public
does not have access to these roads. The roads are two way
with a demarcated middle line. There are standard traffic control
signs
such as stop, yield and speed signs. No vehicle may drive
anywhere else on the airside, except on the demarcated roads. The
roads
on the airside are utilized by standard licensed vehicles,
including bakkies, trucks, tractors, various types of transporters,
and
passenger busses, as well as by pedestrians (personnel and
passengers) who cross at designated pedestrian crossings.
[8] This court has on a number of occasions considered
and pronounced upon the correct interpretation to be given to the
phrase ‘designed
for propulsion on a road’ as envisaged
in the definition of a motor vehicle. While the third party insurance
legislation has
been amended over time, the definition of a ‘motor
vehicle’ has remained fairly constant. The test to determine
whether
a vehicle was designed for propulsion on a road is
objective.
2
In
Chauke v Santam
,
3
Olivier JA stated that ‘designed for’
connotes ‘the general idea of its purpose’ and added that
the phrase
must be given an objective common sense meaning. The
learned judge explained that the word ‘design’:
‘
conveys the
notion of the ordinary, everyday and general purpose for which the
vehicle was conceived and constructed and how the reasonable
person
would see its ordinary, and not some fanciful, use on a road.’
4
Streicher JA in
Road Accident
Fund v Van Den Berg
5
endorsed this reasoning and described the test as being
‘the general purpose for which the vehicle,
objectively
determined
, was conceived and constructed’.
[9] It was common cause that the flatbed transporter was
designed for propulsion on an airport road. The question then is
whether
the definition of a ‘motor vehicle’ requires that
it be designed for propulsion on a
public
road. On appeal, counsel for the Fund contended that the
definition does so require. This question was authoratively answered
in
Road Accident Fund v Mbendera
6
where Lewis JA held that ‘road’ in the
definition should not be narrowly interpreted to mean ‘public
road’.
Lewis JA reasoned that the Road Accident Act 56 of 1996
(like the Agreement) ‘applies throughout the Republic and not
just
to vehicles used on public roads’.
7
I respectfully agree with and adopt the reasoning of
Lewis JA. In my view, the words ‘at any place within the area
of jurisdiction
of the members of the MMF’ as contained in
Article 40 of the Agreement, supports the broader interpretation of
‘road’.
[10] It was clearly not the intention of the legislature
to limit ‘road’ to a ‘public road’. There is
no reason
why ‘road’ should not be given its ordinary
meaning, namely, ‘a line of communication, especially a
specially prepared
track between places for use by pedestrians,
riders and vehicles’.
8
If it was the legislature’s intention to limit
‘road’ to a ‘public road’, it would, in my
view, have
said so. If a passenger bus or any other standard vehicle
were to collide with a pedestrian (third party) within the
operational
area of the airport, and injure such third party, the
latter would be able to claim compensation from the Fund for any
injury sustained
as a result of the collision. It would be anomalous,
as found in
Mbendera
,
to hold that where the injuries were caused as a result of the
negligence of the driver of a vehicle such as the flatbed
transporter,
which is designed for propulsion on a road, the third
party would have no claim against the Fund.
[11] For these reasons I find that the flatbed
transporter is a motor vehicle as contemplated in the Agreement. The
appeal is upheld
with costs. The order of the court
a
quo
upholding the special plea is set aside
and substituted with an order dismissing the special plea with costs.
L V THERON
Acting Judge of Appeal
CONCUR:
STREICHER
JA
CAMERON
JA
JAFTA
JA
SNYDERS
AJA
1
The
parties were agreed that since the collision occurred in 1994, the
applicable legislation was the Multilateral Motor Vehicle
Accidents
Fund Act 93 of 1989.
2
Chauke
v Santam
[1996] ZASCA 120
;
1997 (1) SA 178
(A) at
183A-C;
Road Accident Fund v Van Den Berg
2006 (2) SA
250
(SCA) paras 6-7.
3
[1996] ZASCA 120
;
1997
(1) SA 178
(A).
4
At
183A-B.
5
2006
(2) SA 250
(SCA) para 7.
6
[2004]
4 All SA 25
(SCA).
7
At
para 13.
8
Per
Olivier JA in
Chauke
v Santam Ltd
[1996] ZASCA 120
;
1997 (1) SA 178
at
181F-G.