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[2015] ZAECELLC 13
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Tshongoyi v Road Accident Fund (EL1538/13; ECD3338/13) [2015] ZAECELLC 13 (13 October 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
EAST
LONDON CIRCUIT LOCAL DIVISION
Case
no. EL 1538/13
ECD
3338/13
In
the matter between:
MELISA
TSHONGOYI
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
STRETCH
J:
[1]
The plaintiff instituted action against the defendant for the payment
of R737 500 in damages arising from an incident which
took place on 2
March 2008. At the trial, it transpired that the plaintiff had leapt
from a moving Toyota Quantum mini bus driven
by Siqhamo Yanxa (“the
insured driver”), sustaining certain injuries. It is not
disputed that at the time, the
driver had been contracted to
transport school children, and that he had been a taxi driver for 22
years before the incident.
[2]
The plaintiff’s original claim, which was delivered in December
2013, was amended in June 2015. The essential averments
upon
which her claim is founded, read as follows:
‘
6.
On or about 2 March 2008 at approximately 14:00 and at or near
Khayelitsha Location, Reeston, East London,
a motor vehicle accident
occurred involving motor vehicle with registration letters and
numbers [….].
7. …
8.
The accident was caused solely by the negligent driving of the
insured driver,
who was negligent in one or more of
the following ways:-
8.1 he drove at a
speed that was excessive in the circumstances;
8.2 he failed to
keep a proper lookout;
8.3 he failed to
keep his vehicle under proper control;
8.4 he failed to
apply the brakes of his vehicle either timeously or at all;
8.5 he failed to
avoid the accident when by the exercise of reasonable care and skill
he could and should have done so;
8.6 he failed to
slow down after requested to do so by the Plaintiff and/or other
passengers;
8.7 he failed to
stop the vehicle when requested to do so by the Plaintiff and/or
other passengers;
8.8 he failed to
stop and/or decelerate the insured vehicle when it became apparent
that the Plaintiff would alight from the vehicle.
9.
In the alternative to paragraph 8 above, the accident was caused
solely by the wrongful driving
of the insured driver who was wrongful
in one or more of the following ways:
9.1 he failed to
stop and/or decelerate the insured vehicle when it became apparent
that the Plaintiff would alight from the vehicle;
9.2 he failed
to slow down after requested to do so by the Plaintiff and/or other
passengers;
9.3 he failed to
stop the vehicle when requested to do so by the Plaintiff and/or
passengers;
9.4 he threatened
the Plaintiff in such a manner that it was necessary, in the
circumstances, to alight from the vehicle.
9.5 he failed to
maintain the vehicle as was required, particularly the door;
9.6 he failed to
ensure that the door was properly closed and secured before driving.
9A. In
the alternative to paragraphs 8 and 9 above, the accident was caused
solely by a combination of the negligent
and/or wrongful driving of
the insured driver.
10.
As a result of the aforesaid collision, the Plaintiff sustained the
following injuries:-
10.1 Severe
brain injury;
10.2 Facial
scarring…’
At
the commencement of the trial it was agreed that the trial would
proceed on the issue of liability only, and the claims at
sub-paragraphs
9.5 and 9.6 of the amended particulars were
abandoned.
[3]
The plaintiff, who was 14 and in grade seven at the time of the
incident and 21 when she testified, explained at the trial that
she
and other pupils had been making use of transport provided by the
driver to get to school and back.
[4]
On the day in question she was being driven home from school.
When the driver stopped where he usually did for her and
others to
alight, they were unable to make their way to the exit door because
the taxi was very full. They told the driver
to do his rounds
and drop them on his way back when most of the passengers had
exited. He did so, but failed to stop at her
usual point of
exit, despite the passengers having told him to do so. By that
stage there were only three female passengers
remaining in the taxi,
the plaintiff having been the eldest of the three.
[5]
After he had passed the drop off point, they screamed. The
driver turned right in the direction of the plaintiff’s
home.
She assumed that he would stop there. He did not, and ignored
her, despite her having advised him that he was
passing her home.
She noticed that the driver was accelerating. They screamed
again because they did not know where
the driver was taking them and
what he was going to do to them.
[6]
The plaintiff threatened to open the door and jump out of the
vehicle. The driver did not respond.
[7]
The plaintiff testified that she became out of her mind with fear
because she had seen children being kidnapped on television.
She could not recall what happened next (whether she opened the door
or whether it opened automatically). All she recalls
is that
she managed to get out of the taxi, and that she was injured from the
fall, to the extent that she is now forgetful and
had to drop out of
school as she could no longer cope.
[8]
She disputed certain aspects of the driver’s version of the
events which were put to her during cross-examination.
In
essence, they are the following:
a.
The
passengers (including the plaintiff) were uncontrollable, unruly and
disruptive, playing, throwing items around and refusing
to sit down.
b.
She
refused to alight with her friends when the taxi stopped for the
first time at the designated point for her to get off, despite
her
friends having encouraged her to do so.
c.
Because
she wanted to stay on the bus with her other friends, the driver said
he would drop her off at the next stop, and instructed
her to close
the door, which she did.
d.
He was
driving at a speed of about 30 to 40 kilometres per hour when he
heard screaming.
[9]
The plaintiff had also deposed to an affidavit on 16 March 2009
wherein she stated that:
a.
When
the driver initially reached the point where he usually dropped them
off he simply drove on at high speed, ignoring their protestations.
b.
The
sliding door suddenly opened by itself while the vehicle was
speeding.
c.
She
“fell out” and was injured.
[10]
When this version was put to her during cross-examination the
plaintiff said that it could have happened like that. All
she
could remember was what had happened before the incident (in
particular her fear when the driver sped past her home), and
thereafter waking up in hospital.
[11]
On 23 July 2013 the plaintiff was examined by neurosurgeon Dr L.
Lankester. According to the doctor’s report, the
plaintiff had told him that on the day in question, she and her two
friends had formed an opinion that the driver was driving too
fast,
so she asked him to stop so that she could alight, but he was
reluctant to do so. He did however reduce speed to about
20
kilometres per hour, at which stage she clearly remembers having
opened the door and having jumped out, whereafter she lost
consciousness.
[12]
When the relevant portions of the report were put to the plaintiff
during cross-examination she said that perhaps the doctor
had not
heard her properly as she had told the doctor that the speed was
reduced to 120 kilometres per hour, and not 20 as reflected
in the
report. She also said that she could not recall having opened
the door, even if she may have said this to the doctor.
[13]
After the long adjournment the plaintiff became even more vague and
appeared to be experiencing serious difficulty recalling
the events.
[14]
Sinovuyo Maqubelo testified that she was a passenger (12 years old)
when the plaintiff jumped from the vehicle, which was moving
very
fast. She corroborated the plaintiff’s evidence in chief
in most respects, adding that they had to tell the driver
that the
plaintiff had jumped from the vehicle, whereafter he stopped and
rendered assistance.
[15]
The insured driver testified. He repeated most of what had
already been put to the plaintiff and her witness. He
also
mentioned that:
a.
He had
heard the plaintiff’s friends screaming and warning her not to
jump.
b.
He
could in any event, not have driven fast as the road surface was
gravel and had potholes.
c.
The
plaintiff had been given two opportunities (at her usual bus stop) to
alight from the vehicle but did not do so. After
she and her
friends failed to alight on the second occasion, he told them that
they were wasting time and that he would drop them
at a turn which he
was approaching, and which was a short distance past the plaintiff’s
house, as it was not convenient to
stop directly in front of the
plaintiff’s house. It was when he was on his way to this
point that the plaintiff jumped
from the vehicle.
d.
There
was nothing he could do to prevent this. He applied brakes as
soon as he heard the children screaming “Melisa,
do not jump!”
but it was too late as she was already in the process of jumping.
Object of the
Road Accident Fund
[16]
The object of the defendant is set forth at section 3 of the Road
Accident Fund Act 56 of 1996 (“the Act”) which
reads as
follows:
‘
The object of
the Fund shall be the payment of compensation in accordance with this
Act for loss or damage wrongfully caused by
the driving of motor
vehicles.’
Liability of the
Fund
[17]
Section 17(1) of the Act provides that:
‘
The Fund or
an 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 …
caused by or arising from the driving of a motor
vehicle … if
the injury … is due to the negligence or other wrongful act of
the driver …”
[18]
The application of the test for negligence was considered by Maya J
(as she then was) in
Totobayo
v Road Accident Fund
2002
JDR 0795 (Tkh).
[19]
In this matter an accident had occurred at Tabankulu on 2 August
1998. The plaintiff testified that he and a group of about
17 people
were riding on the back of a truck. As they were about to cross
a stream the driver ordered them to alight and
to wait on the other
side of the stream as there was a problem with the truck.
Eventually they set off again and were ascending
a steep incline
bordered on the one side by an embankment and on the other by a deep
gorge, when the engine stalled. Anticipating
that the truck
would roll back and career down the incline and into the deep gorge
below, the plaintiff made a quick judgment call
and jumped off the
vehicle. As he was scrambling away from the truck, it in fact
did capsize as he had anticipated, but unfortunately
onto one of his
legs, crushing it. Others, who did not jump from the vehicle,
were also injured. The plaintiff’s
two witnesses
testified that although they did not jump they were aware of the fact
that they were in imminent and serious danger
and they also
anticipated that the truck was going to plunge into the gorge.
One of the witnesses didn’t jump however,
because she had a
child on her lap. The other did not, because he was too
confused by the chaotic events of the stalling,
the reversing and the
capsizing.
[20]
In order to determine whether the insured driver was negligent (as I
am constrained to do) the learned judge applied the test
set out in
Kruger v Coetzee
1966 (2) SA 428
(AD) where Holmes JA said the
following (at 430E-G):
‘
For the
purposes of liability
culpa
arises
if-
(a)a
diligens
paterfamilias
in
the position of the defendant-
(i)
would
foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss;
and
(ii)would take
reasonable steps to guard against such occurrence.
(b) The
defendant failed to take such steps.
This has been
constantly stated by this Court for some 50 years. Requirement (a)
(ii) is sometimes overlooked. Whether a
diligens
paterfamilias
in the position of the person concerned would take any guarding steps
at all and, if so, what steps would be reasonable, must always
depend
on the particular circumstances of each case.’
[21]
In applying this test Miya J found it reasonable to infer that
because the truck had, even before the incident, stalled and
had to
be inspected, the driver was well aware of the defect, and had
nevertheless persisted with the journey. In the premises
the
judge was of the view that the further defect which had caused the
truck to stall on the steep incline was not a defect that
was sudden
and/or unforeseeable. The learned judge inferred negligence on
the driver’s part for at least failing to
take reasonable care
and for failing to ensure that the truck was in a roadworthy
condition before venturing further on the trip
on the hilly and
difficult terrain described by the witnesses and with a large number
of passengers weighing the vehicle down.
[22]
The learned judge rejected the defendant’s contention that the
plaintiff had jumped off the truck as a result of an error
of
judgment and would probably not have been injured had he remained on
the truck. It would seem that this argument was rejected
primarily because others, who did not fling themselves from the
stationary truck, were in any event injured when the truck capsized.
The judge accordingly entered judgment in the plaintiff’s
favour.
[23]
During argument before me it was contended, with apparent reliance on
this judgment, that I should likewise find in the plaintiff’s
favour.
[24]
I am not inclined to do so for a number of reasons, the most obvious
of which is that
Totobayo’s
facts
are clearly distinguishable from those before me. For one, in the
matter before me, the 14 year old plaintiff threw herself
out of a
perfectly functioning vehicle, without the slightest suggestion that
the motoring safety of the passengers was at risk.
Indeed, and unlike
the position in
Totobayo,
it is abundantly clear that the plaintiff was the sole cause of her
misfortune, and that she was at no risk of sustaining any injuries
by
remaining in the vehicle. At best for the plaintiff, there was
some suggested that the vehicle was speeding. However
the
plaintiff’s own versions in this regard are diametrically
opposed and totally unreliable. It is in any event highly
improbable that the driver was driving faster than 120 kilometres per
hour on a gravel road pitted with potholes when he reduced
speed,
which is one of the plaintiff’s versions. Indeed, to
throw oneself out of a vehicle travelling at that speed
and in those
circumstances simply because the driver of this public transport did
not stop forthwith on demand, would be an extremely
foolish and risky
thing to do.
[25]
On a conspectus of the evidence as a whole, considered in the light
of the probabilities, it seems to me that the driver was
travelling
at a normal speed in the circumstances, and that there was no cause
for frantic panic. Not only is this his evidence,
but it is
corroborated by the plaintiff’s report to the doctor.
That is undoubtedly the reason why the other passengers
(who were
younger than her), not only warned her not to jump but did not jump
themselves. Even if the plaintiff and her friends
were afraid
of being kidnapped or thought that they were being kidnapped (a
version which was raised for the first time in her
evidence and
which, in my view, ought to have been pleaded), the plaintiff may
well have had recourse elsewhere, but not at the
expense of the
defendant, which was established as a juristic person for the purpose
of dealing with loss or damage caused by the
driving of motor
vehicles, which, by the very description of the present legislation
and the Act preceding it, deals with motor
vehicle accidents and not
apprehensions of abduction or some other form of harm unrelated to
the manner and the consequences of
driving.
[26]
Having said this, it is in any event so that the plaintiff has not
even begun to touch on establishing negligence
or any other wrongful
act for that matter, on the part of the driver. In order to do
so, and applying the principles in
Kruger v Coetzee,
it is
incumbent on the plaintiff to show that a reasonable person in the
position of the driver –
a.
would foresee the reasonable possibility that driving past the
plaintiff’s house and
not stopping immediately and in response
to a demand from a school girl at a point where it was not convenient
to do so,
would result in her opening the sliding door of the
mini bus, flinging herself from the moving vehicle, and sustaining
injuries;
and
b.
would
take reasonable steps to guard against her opening the door and
jumping from the moving vehicle; and
c.
that
the insured driver failed to take reasonable steps to guard against
this eventuality.
[27]
There is nothing before me to suggest that a reasonable person in the
position of the driver would have foreseen
the possibility of this
type of impulsive, inexplicable, irrational and possibly even
reckless conduct ensuing. Even if a reasonable
bus driver would have
foreseen this rather unusual conduct (which to my mind is highly
improbable), it is difficult to imagine
what reasonable steps he
would have taken to prevent it.
[28]
This is not the only problem I have with the plaintiff’s
claim. It is trite law that a party stands
or falls by its
pleadings. As I mentioned at the hearing of this matter, the
plaintiff’s pleadings and her evidence
are like chalk and
cheese. The fact that she voluntarily threw herself from the
vehicle, and her reasons for having done
so, are to my mind,
essential aspects of her case which ought to have been pleaded at
least in an attempt to establish a cause
of action. In fact her
pleadings, her affidavit, her report to the neurosurgeon and the
various versions presented in evidence
simply do not dovetail.
Having said that, and even if they did, and even if
culpa
had
been established on the part of the driver, for this court to
allow the plaintiff to claim from the defendant on these
facts would
make a mockery of the entire purpose for which the Fund was
established.
[29]
The cases which have attracted liability on the part of the Fund,
where passengers have alighted from vehicles
and have injured
themselves, are all cases where the plaintiffs anticipated the
vehicles being involved in accidents or collisions
of some
description or another. In those matters which the plaintiff’s
counsel referred me to, the vehicles all ended
up in some form of
accident or collision.
[30]
In the circumstances it seems to me that the reason why the word
“collision” was incorporated in the
particulars of claim
(when there was no collision or even a prospect of one), was in an
attempt to bring the claim within the purview
of standard claims in
matters against the Fund.
[31]
In short, had the defendant applied for absolution from the instance
at the close of the plaintiff’s case,
I would have been
constrained to have given such application serious consideration.
[32]
The plaintiff’s claim is dismissed with costs.
___________________
I.T.
STRETCH
13 October 2015
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel for the
plaintiff:
Ms Watt
Instructed by:
Matyeshana Moodley
Inc
East London
(Ms Townley)
Counsel for the
defendant:
Mr P.H. Mouton
Instructed by:
Ketse Nonkwelo Inc
c/o Bate Chubb &
Dickson
East London
(Mr Kretzmann)