Smith v Road Accident Fund (164/05) [2006] ZASCA 15; 2006 (4) SA 590 (SCA) (17 March 2006)

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[2006] ZASCA 15
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Smith v Road Accident Fund (164/05) [2006] ZASCA 15; 2006 (4) SA 590 (SCA) (17 March 2006)

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REPORTABLE
Case
no: 164/2005
In
the matter between
SIAS
SMITH APPELLANT
and
THE
ROAD ACCIDENT FUND RESPONDENT
Coram:
MPATI
DP, NAVSA, CONRADIE, LEWIS and HEHER JJA
Heard:
27
FEBRUARY 2006
Delivered: 17 MARCH
2006
Summary: Motor Vehicle
Insurance –
Road Accident Fund Act 56 of 1996
– liability of Fund
to indemnify negligent defendant.
Damages –
Apportionment of Damages Act 34 of 1956, s 2(1) – whether Road
Accident Fund a joint wrongdoer with negligent defendant.
Neutral citation: This
judgment may be referred to as S Smith v RAF [2006] SCA 12 (RSA).
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER
JA
HEHER
JA:
[1] A
plaintiff who is unable to identify a defendant cannot pursue a cause
of action. Motor vehicle accidents lend themselves to
drivers who
disappear and leave their victims without recourse. In 1964 the
legislature, recognizing the social inequity of such
cases, provided
for payment of compensation from a fund where the identity of the
owner or driver could not be established. All succeeding
legislation
has made equivalent provision, that presently in force being
s
17(1)(b)
of the
Road Accident Fund Act 56 of 1996
. In this matter the
appellant seeks to extend the right of recourse against the Road
Accident Fund to a negligent driver who is sued
by a third party (as
defined in
s 17(1))
in the circumstances described below.
[2]
In
the High Court of the Eastern Cape Mary Pedro claimed payment of
R2 563 728,20 from the appellant as damages for injuries
sustained by her while being conveyed as a fare-paying passenger in a
vehicle negligently driven by the appellant. The amount of
her claim
took into account an amount of R25 000 paid by the Fund in
accordance with its liability under s 18(1)(b) of the Act.
The
appellant defended the action. In his plea he alleged that the
collision was caused wholly or in part by a Sentra vehicle and/or
a
Mazda vehicle and that the details of the registration, owners and
drivers of the two vehicles were unknown to him.
[3]
The
appellant caused a third party notice in terms of rule 13(1) to be
served on the Fund in which he alleged that the Fund was obliged
by s
17(1) of the Act to compensate Pedro for the loss or damage she had
suffered as a result of her bodily
injuries
1
.
However, if the court were to find that he had negligently
contributed to the incident and to the injuries thus sustained, then,
so the appellant alleged, he and the Fund would be joint wrongdoers
as against the plaintiff, save that he would be excused by the
provisions of 21 of the Act, read together with 18, thereof from
liability for the first R25 000,00 of any damages suffered
by
the plaintiff.
Accordingly
the appellant sought a conditional order
‘
1. Declaring
that the Defendant and the [Fund] are joint wrongdoers as against the
Plaintiff;
2. Determining
the respective degrees of blame of the Defendant and the [Fund];
3. Declaring
that in the event of the Defendant effecting payment to the Plaintiff
of such amount as might be awarded in favour of
the Plaintiff against
the Defendant, then and in that event the Defendant will be entitled
to recover so much thereof as equates
to the percentage degree of
blame of the Defendant;
4. An
appropriate award as to costs, including the costs of the Plaintiff’s
action against the Defendant.’
The
Fund disputed the entitlement of the appellant to join it as a joint
wrongdoer and to claim relief based on such a joinder. The
dispute
was tried between the Fund and the appellant as a preliminary issue
at the trial.
[4]
The
court
a quo
upheld the objections of the Fund and dismissed
the claims in the third party notice with costs. The judgment of
Liebenberg J is reported
sub nom Smith v Road Accident Fund
at
[2004] 4 All SA 579(E).
The appellant now appeals with leave of that
court against its order.
[5]
Certain
propositions enunciated by the court
a quo
have been accepted
by appellant’s counsel as correct. They are supported by authority
and the legislation and need merely to be
stated.
1. The object of the
Act is the payment of compensation in accordance with its terms for
loss or damage wrongfully caused by the driving
of motor vehicles.
2. The
effect of the Act is to substitute the Fund as a defendant in place
of the wrongdoer.
3. The
liability of the Fund is to compensate a person (the third party) who
has suffered loss or damage as a result of bodily injury
to himself
or herself or the death of or any bodily injury to any other person.
4. When the driver
or owner of an offending vehicle cannot be identified s 17(1)(b)
provides for a claim to be made against the Fund
‘subject to any
regulation made under s 26’.
5. The regulations
which have been made under s 26 may only be invoked by the third
party.
6. Certain
of the regulations require strict compliance before the liability of
the Fund can arise.
2
7. No
regulations have been published which may be invoked by or confer
benefits on persons in the position of the appellant, ie defendants
in proceedings under the Act.
[6]
The
appellant’s counsel did not dispute that to grant the relief sought
by his client would be to concede a right to claim against
the Fund
without the strict compliance with the regulations which is required
of the third party before the Fund attracts liability.
The court
a
quo
described such a conclusion as ‘unsustainable’. Given the
reasons for the existence of strict requirements in unidentified
vehicle
cases
3
that was an appropriate criticism. Before us counsel was unable to
urge any good reason to favour a negligent driver/defendant above
the
third party. Nor did he explain why his client should be entitled to
claim an indemnification in respect of a claim by the third
party
which the latter could not herself have recovered from the Fund
(because of the limitations placed on the claim of a passenger).
[7]
Faced
with the legislative intention as it emerges from the propositions to
which I have referred, counsel sought refuge in what he
called a
‘necessary implication’. As I understood it, the argument ran
like this: the Apportionment of Damages Act 34 of
1956
confers a right upon a wrongdoer sued delictually to claim an
apportionment
from
a joint wrongdoer; the unknown driver is a joint wrongdoer as against
the third party; if the third party had instituted action
relying on
the negligence of the unknown driver the Fund would have stepped into
the shoes of that driver; by joining the Fund the
defendant is merely
doing what the third party could have done, thereby enabling the
court to determine who should pay compensation
to the third party, a
determination which is consistent with the purpose of the Act and the
objects of the Fund; indemnification
is merely ‘the flip side’
(counsel’s phrase) of compensation. Thus, so the argument ran, the
relief which the appellant claimed
was inherent in the Act and
necessary to ensure that its objects were not frustrated.
[8] Alternatively,
so counsel submitted, his client’s entitlement to an
indemnification flowed from the clear wording of s 2(1)
of the
Apportionment of Damages Act.
4
[9]
In
my view the submissions are contrived and untenable. I have drawn
attention to the substance of s 17 of the Act,
viz
the
compensation of victims of road accidents arising out of death or
bodily injury. The appellant is not a victim and the loss against
which he seeks
indemnification is purely pecuniary in nature. The designated
beneficiary of the Fund is not the uninjured negligent
driver but the
victim of his driving. The Act and regulations manifest a clear and
consistent intention in this regard. To imply
the existence of a
right in such a person to sue the Fund for a contribution or
indemnity would fly in the face of reason and be
contrary to the
express terms of the Act. The limitation cannot have been accidental
nor does the exclusion of persons in the position
of the defendant
give rise to an anomaly since it is fair to say that such a negligent
driver does not even have a moral claim on
the Fund.
[10]
Counsel’s
reliance on the Apportionment of Damages Act is also misplaced. That
statute does not, as counsel submitted, create a
cause of action in s
2(1). What it does is to provide a means of sharing the burden of
damages between joint wrongdoers in delict.
Prima facie the Fund is
not such a wrongdoer when an unidentified driver or owner is involved
because its liability is essentially
statutory, proof of a delict
alone being, by reason of the regulations to the Act, wholly
insufficient to establish a cause of action
against it.
5
But the legislature has, in the circumstances of this appeal, put the
matter beyond doubt by providing (in s 3 of the Apportionment
of
Damages Act
6
)
that s 2 applies where a liability is imposed in terms of the
Road
Accident Fund Act. While
the Fund is a person on whom liability is
imposed in circumstances contemplated in that Act to the third party,
it is not, as I have
found, under any liability to a negligent driver
who inflicts loss or damage upon a third party. The consequence is
that the Fund
cannot be a joint wrongdoer with the appellant in the
circumstances of this appeal.
[11] The appeal has
no merit. It is dismissed with costs.
__________________
J A HEHER
JUDGE OF APPEAL
MPATI
DP )Concur
NAVSA
JA )
CONRADIE
JA )
LEWIS
JA )
1
‘
17(1)
The Fund or an agent shall-
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.’
2
Eg
reg 2(1)c; see
Road Accident Fund v Thugwana
2004 (3) SA 169
(SCA).
3
Mbatha
v Multilateral Motor Vehicle Accidents Fund
[1997] ZASCA 25
;
1997
(3) SA 713
(SCA) at 718G-I.
4
‘
(1) Where
it is alleged that two or more persons are jointly or severally
liable in delict to a third person (hereinafter referred
to as the
plaintiff) for the same damage, such persons (hereinafter referred
to as joint wrongdoers) may be sued in the same action.’
5
I
express no opinion as to the correctness of the opposite conclusion
reached by Du Plessis AJ in
Maphosa v Wilke en andere
1990
(3) SA 789(T)
at 798A-G in relation to the liability of the Fund
when the driver is identifiable.
6
‘
The
provisions of section two shall apply also in relation to any
liability imposed in terms of the Motor Vehicle Accident Act,
1986
(Act 84 of 1986), on the State or any person in respect of loss or
damage caused by or arising out of the driving of a motor
vehicle.’