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South Africa: North Gauteng High Court, Pretoria
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[2014] ZAGPPHC 53
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Gatley v Road Accident Fund (3481/12) [2014] ZAGPPHC 53 (27 February 2014)
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Certain
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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 24
th
October 2008. At the time of the accident, the plaintiff was the
driver of the motor bike with registration number R[…].
The
insured driver was driving motor vehicle with registration number
N[…].
[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 24
th
October 2008, he was the driver of the motorbike with registration
number R[…]. 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 24
th
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 24
th
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;
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;
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;
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 apublic 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