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[2014] ZAGPPHC 47
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Gatlet v Road Accident Fund (3481/12) [2014] ZAGPPHC 47 (27 February 2014)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
DATE:
27/2/2014
CASE
NO: 3481/12
In the matter
between:
ALAN JACK
GATLEY
..............................................
Plaintiff
And
ROAD ACCIDENT
FUND
....................................
Defendant
JUDGMENT
KGANYAGO AJ
[1] The plaintiff in
this matter is claiming damages for bodily injuries arising out of a
motor vehicle accident. It is common cause
that the accident occurred
on the 24th October 2008. At the time of the accident, the plaintiff
was the driver of the motor bike
with registration number R……..
GP. The insured driver was driving motor vehicle with registration
number N….
1…. GP.
[2] The plaintiff
alleges that the insured driver was the sole cause of the accident as
he allowed his passenger to alight from
the stationery vehicle when
it was unsafe to do. The insured driver denies the allegations
levelled against him.
[3] At the
commencement of the trial, the parties agreed to separate the issues
of merits and quantum of damages of the plaintiff’s
claim. I
ruled that the matter proceed on the issue of merits of the claim
only.
[4] The plaintiff
was the only witness to testify in his case. He testified that on the
24th October 2008, he was the driver of
the motorbike with
registration number RS……. GP. He was involved in a
collision at the off-ramp at R21 - Nelmapius
Road.
[5] The accident
happened during the busy morning traffic. At the off-ramp there are
three lanes leading to the robots. Traffic
were slow and vehicles
were making a que at the robots. He was riding his bike between the
first and second lane.
[6] The insured
vehicle was in front of him and stationery. There were also other
vehicles in front of insured vehicle. As he was
about to pass the
insured vehicle, the passenger from that vehicle opened the door and
was alighting from it. He hit that door
of the insured vehicle and
fell on the tarred road. In the process of falling, he was injured
and his bike was also damaged.
[7] Under
cross-examination, he stated that he could not avoid the collision as
the door of the insured vehicle was opened in a
split second as the
passenger in a hurry to go and seat with the insured driver in the
front. He denied that he had contributed
to the accident. He further
stated that in South Africa, it was acceptable for motor bikes to
ride between cars.
[8] The insured
driver and the passenger testified. The insured driver testified that
on the 24th October 2008, he was the driver
of a motor vehicle with
registration number N……. He was with a passenger Percy
Thubane who was sitted at the back
seat.
[9] He was driving
towards Kempton Park on the R21 road. He took the Nelmapius off-ramp.
Immediately after the off-ramp there are
robots. Towards the robots,
other cars were standstill. He was driving in the middle lane. At the
robots he stopped waiting for
the robots to turn green.
[10] As he was
waiting for the robot to turn green, he called his passenger who was
sitted at the back seat to come and seat with
him in the front
passenger seat. As the passenger was opening the back passenger door,
he saw the plaintiff falling in front of
the car. He did not see him
colliding with the door. There was nothing he could have done to
avoid the accident as his vehicle
was stationery.
[11] The insured
driver was cross-examined and he conceded that he is the one who
called the passenger to come and sit with him
in front. He conceded
that passengers were not allowed to alight from vehicle where his
vehicle had stopped. He denied that he
had created a dangerous
situation by allowing the passenger to alight from the vehicle. He
conceded that had he kept a proper lookout
on the mirror, he would
have seen the plaintiff.
[12] The passenger
Percy Thubane testified. He testified that on the 24th October 2008
he was a passenger in the insured vehicle.
He was seated at the back
seat. At the robots, the insured driver called him to come and seat
with him in front. As he was alighting
from the vehicle, the
plaintiff knocked the door of the insured vehicle with his bike.
[13] The passenger
was cross-examined and he admitted that he did not see the bike as it
knocked the door of the insured vehicle.
[14] It is common
cause that the plaintiff and the insured driver were travelling in
the same direction. It is common cause that
the plaintiff was
travelling in a motor bike between cars when he collided with door of
the insured vehicle as the passenger was
alighting from it. It is
common cause that at the time of the collision, the insured vehicle
was stationery.
[15]
Section 17
(1)
of the
Road Accident Fund Act, 1996
as amended (“the Act”)
reads as follows:
“(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;
(b) subject to any
regulation made under
section 26
, in the case of a claim for
compensation under this section arising from the driving of a motor
vehicle where the identity of neither
the owner nor the driver
thereof has been established, 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 of the owner of the
motor vehicle or of his
or her employee in the performance of the
employee's duties as employee: Provided that the obligation of the
Fund to compensate
a third party for non-pecuniary loss shall be
limited to compensation for a serious injury as contemplated in
subsection (1A) and
shall be paid by way of a lump sum.”
[16] The issues
which must be determined by the court are the following:
16.1 Whether the
injuries sustained by the plaintiff had been caused by or arising out
of the driving of the insured vehicle by
the insured driver;
16.2 Should I find
that the injuries were sustained as a result of driving of the motor
vehicle by the insured driver, I must determine
whether the insured
driver was negligent or not;
16.3 The
apportionment of negligence, if applicable.
[17] According to
the Act, the fund will be liable to pay a claim arising from the
driving of a motor vehicle. The defendant contends
that the accident
did not arise out of the driving of a motor vehicle. The plaintiff
contend that the insured driver should have
foreseen that by
requesting the passenger to alight from the vehicle, he was
endangering other road users and therefore the accident
occurred out
of the driving of the motor vehicle.
[18] The plaintiff’s
counsel relied in this regard on the decision of Messina Associated
Carriers v Kleinhans (122/99)
[2001] ZASCA 46.
The defendant’s
counsel relied on this regard on the decision of Wells & another
v Shield insurance Co. Ltd & another
[1956] (2) SA 865
(C).
[19] It is not in
dispute that the door of the insured vehicle was opened by the
passenger. The accident was caused by the passenger
who had opened
the door and was alighting from the vehicle. The passenger was
alighting from the vehicle at the request of the
insured driver.
[20] According to
the Act, the fund liable to pay a claim for compensation arising from
the driving of a motor vehicle. In the
Wells case at page 867, the
court laid down pre-requisites of liability upon the part of the
registered insurance company for loss
or damage suffered by a third
party as a result of the bodily injury. These are:
(i) that the injury
was caused or arose out of the driving of the insured motor vehicle
and;
(ii) that the injury
was due to the negligence or other unlawful act of the driver of the
insured vehicle, or owner of his servant.
[21] The Messina
case relates to vicarious liability. It is common cause that in the
present case the passenger who opened the door
was not an employee of
the insured driver, and therefore the Messina case is distinguishable
from this case.
[22] According to
Section 17
(1) (c) of the Act, the loss or damage must emanate from
the negligence or other wrongful act of the driver or of the owner of
the motor vehicle or of his or her employee in the performance of the
employee’s duties as employee.
[23] The question is
whether the opening of the door by the passenger has any particular
association with driving of the insured
vehicle. The insured driver
has conceded that he is the one who has called the passenger to
alight from the back seat and come
and seat with him in front. The
insured driver has conceded that he was driving on the middle and
that the traffic volume was high.
The insured driver has conceded
that the passenger has alighted from the insured vehicle where it was
not safe to do so.
[24] In general
Accident Insurance co SA LTD v Xhego and others
[1991] ZASCA 189
;
1992 (1) SA 580
AD
at page 588 B-D the court said the following:
“Negligence on
the part of the owner with regard to the leg injury suffered by
Tantaswa has in any event been proved. In my
view it was reasonably
forseeable that passengers could sustain injuries other than fire
burns in a petrol bomb attack on a bus.
Should the interior of a bus
be set alight by means of a petrol bomb, it is to be expected that
the passengers would rush to the
door to get out. It is not difficult
to visualise the confusion and havoc that would in all probability
reign in a burning bus
filled with smoke and petrol fumes. It is
reasonable to foresee that passengers might sustain other injuries
besides fire burns.
It is also reasonably foreseeable that passengers
might jump from a burning bus and sustain fractured limbs. Negligence
on the
part of the owner has been proved and appellant is therefore
also liable to first respondent in respect of the leg injuries
sustained
by Tantaswa.”
[25] At the time of
the collision, the insured vehicle was not parked, but waiting for
the robots to turn green. By requesting the
passenger to alight from
the vehicle, at a place where it was forbidden, the insured driver
was creating a dangerous situation
to other road users. In my view,
he should have foreseen that his actions were dangerous and might
have resulted in an accident.
[26] At the time
when the passenger alighted from the insured vehicle, the insured
driver was in direct control of the insured vehicle
and the engine of
the insured vehicle was running. The opening of the door by the
passenger is an act which was initiated by the
insured driver, and in
my view, was wrongful. Therefore, in my view, the opening of the door
by the passenger has causal connection
between the driving itself
which resulted in the plaintiff sustaining injuries.
[27] It is
therefore, my considered view, that negligence of the insured driver
has been established and the injuries sustained
by the plaintiff
arose out of the driving of a motor vehicle.
[28] Section 309 (6)
(a) of the National Road Traffic Regulations, 2000 (The Regulations)
reads as follows:
“Persons,
other than traffic officers in the performance of their duties,
driving motor cycles on a public road, shall drive
in single file
except in the course of overtaking another motor cycle, and two or
more persons driving motor cycles shall not overtake
another vehicle
at the same time: provided that where a public road is divided into
traffic lanes, each such lane shall, for the
purpose of this
paragraph, be regarded as a public road.”
[29] It is common
cause that the plaintiff was travelling between the cars with his
bike in direct contravention of the regulations.
However, the
contravention of the regulation itself does not amount to negligence.
The plaintiff has also created a dangerous situation
to the road
users by travelling where it was forbidden to do so. Therefore, in my
view, the plaintiff’s action has also contributed
to the
accident.
[30] In the
circumstances, I find that the apportionment of fault between the
parties is 50% in respect of the plaintiff and 50
% in respect of the
insured driver.
[31] I make the
following order:
31.1 The plaintiff’s
claim on merits succeeds, provided that the amount of damages to be
awarded to plaintiff shall be reduced
in terms of Section 1 of the
Act 34 of 1956 by 50%;
31.2 The defendant
is ordered to pay the plaintiff’s costs.
M F KGANYAGO
ACTING JUDGE OF
THE HIGH COURT