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[2009] ZAGPPHC 203
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Grove v Road Accident fund and Another (36786/2006) [2009] ZAGPPHC 203 (6 September 2009)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
CASE NO.:36786/2006
DATE:06/09/2009
In
the matter between:
JACQUELINE
MADELINE
GROVE
..........................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
.............................................................
First
Defendant
LENNARD
KOOPMAN
..............................................................
Second
Defedant
JUDGMENT
LEDWABA. J
[1]
Plaintiff instituted an action to claim damages against the first
defendant for an amount of R 2 260 000 and in the alternative
an
amount of R 25 000, Should the court find that plaintiff’s
claim is limited, the plaintiff claims an amount of R 2 235
000
against the second defendant.
[2]
The second defendant was not legally represented at the trial.
Notwithstanding that the court explained to him that he has a
constitutional right to be legally represented, that if he does not
have money he may approach the Legal Aid Board and that it
was
desirable that he should be legally represented, he elected to
represent himself.
[3]
When the trial commenced and as it was agreed between the parties,
the court made the following order:
"1.
It is ordered in terms of rule 33(4) that the issue of liability be
decided first and separate from the remainder of the
issue;
2.
The issue of liability which stands to be adjudicated between the
parties relates to the dispute
2.1.
between the plaintiff, on the one hand, and the first and second
defendants on the other as delineated in paragraphs 5 and
6 of the
particulars of claim read with paragraph 5 and 6 of the respective
pieas of the first and second defendants; and
2.2.
between the first defendant, on the one hand, and the second
defendant (who has been joined by the defendant as a third party)
as
delineated in paragraphs 1 and 2 of the third party notice and
paragraphs 2, 4, 5 and 6 of the second defendant's plea to the
said
notice;
3.
The remainder of the issues as set out in paragraphs 7 to 12 of the
particulars of claim are to stand over for adjudication at
a later
stage.
[4]
For ease reference the first defendant would hereinafter be also
referred to as the RAF, depending on the context, and the second
defendant’s would be referred to as Mr. Koopman,
[5]
The collision which gave rise to this action occurred on 4,h November
2005 at or near the corner of Duncan and Duxbury streets,
Hatfield,
Pretoria in the district of Gauteng at about 2H00.
[6]
The plaintiff was a passenger in an Audi A4 with registration number
NPJ 703 GP (hereinafter referred to as the Audi) which
was driven by
Mr. Koopman. The other vehicle which was at the scene when the
accident occurred was the insured vehicle, a Jetta
with registration
number NGW 269 GP (hereinafter referred to as the Jetta) which was
driven by Mr. Chris Potgieter, (Mr Potgieter),
the insured driver.
The Audi and the Jetta were both driving from south to north in
Duncan street According to the evidence there
were no other mobile
vehicles at the scene when the accident occurred.
[7]
During the trial proceedings, the plaintiff was always in court and
she did not testify. Two witnesses testified to support
her case, viz
Mr. Hendrik Smit, (Mr Smit) and Mr Francois Van der Merwe (Mr. Van
der Merwe) and thereafter her case was dosed.
The court was informed
that the reason why the plaintiff would not testify is because she
sustained serious head injuries and could
not remember and/or
contribute in any way as to how the accident occurred.
[8]
The RAF in its plea denied that the plaintiff's injuries were caused
by or arose out of the driving of the Jetta. Mr. Potgieter
gave
evidence on behalf of the RAF and the RAF's case was closed. Mr.
Koopman, the second defendant, also gave evidence and thereafter
closed his case. The RAF, in its plea, further admitted that Mr.
Koopman was negligent and made an undertaking in terms of section
17
(4) (a) in respect of plaintiff’s special damages subject to a
limit of R 25 000.
[9]
Mr. Smit and Mr. Van der Merwe both tow-truck operators who were on
duty testified that before the accident occurred they had
parked
their tow vehicles at the corner of Lynwood and Duncan Streets. Mr.
Smit’s tow-truck was parked on the southern westerly
corner of
the intersection on the pavement in Lynwood Street facing the
easterly direction. Mr. Van der Merwe1 s tow-truck was
parked on the
pavement on the left northern side of the intersection in Duncan
Street facing the southern direction. Both testified
that their
attentions to the Audi and the Jetta was triggered by the high
revolutions of engines when the Jetta and the Audi passed
at the
intersection of Duncan and Lynwood Streets. Further details of their
evidence will be dealt with hereunder when the evidence
of other
witnesses is evaluated
[10]
The issues to be decided in this matter, revolves on whether:
10.1.
the Audi and the Jetta were engaged in on unlawful and wrongful
racing commonly known as dicing' prior to the accident
10.2.
Mr, Koopman drove the Audi negligently.
10.3.
was the accident caused by or arose from the driving or other
wrongful or unlawful act of Mr. Koopman.
10.4.
The respective degrees of negligence of Mr. Potgieter and Mr. Koopman
for purposes of the order sought by the first defendant
in terms of
the third party notice, i.e. the contribution which the RAF may be
entitled to in the event of it being found to be
liable to the
plaintiff on an unlimited basis.
[11]
Mr. Potgieter on behalf of the RAF testified that before the accident
happened he, together with his friends, was at a function
at Odds
Club in Brooklyn. When they left the club they agreed that they were
going to Drop Zone, a nightclub at Hatfield. When
he left the dub he
drove alone in the Jetta, joined Duncan street and faced the northern
direction. He stopped at the robot controlled
intersection of Duncan
and Charles street. The robot facing him was red. The Jetta was on
the right lane and there was a vehicle
on the left lane parallel to
the Jetta which was also stationery. The Audi was behind the said
vehicle on the left lane.
[12]
When the robot turned green he pulled the Jetta fast and continued
driving at a speed higher than the legally prescribed speed
of 60km/h
in that area. When he passed other intersections as he was driving in
Duncan street, the robots were green in his favour
[13]
Whilst driving in Duncan Street, on the left lane, immediately after
passing the intersection of Duncan and Duxbury he heard
the
screeching of the tyres of a vehicle behind him. He immediately
looked at his right rear view mirror and saw the Audi losing
control,
spinning and colliding with a wall on the eastern side out of the
road. He stopped, reversed and parked the Jetta on the
side parking
next to the bus stop depicted on photo 41 in exhibit ‘B\
[14]
He alighted from the Jetta and went to the Audi. He was the first
person to arrive at the Audi and unexpectedly saw the plaintiff
in
the passenger s seat and Mr. Koopman had slided to the back seat.
Both were unconscious.
[15]
He thereafter saw the tow-trucks and spoke to Mr. Smit who also
arrived at the scene and wanted to give some medical aid to
the
plaintiff and Mr. Koopman in the Audi.
[16]
He then left the scene to fetch his cellphone from his flat which was
not very far from the scene of the accident and to report
the
accident to his girlfriend and to Mr. Kaopman's girlfriend.
[17]
In testifying how he knows Mr, Koopman, he said they were together at
the Odds club and they also stayed together at a flat.
He denied that
he was involved in an organised race or dicing with Mr Koopman and
further that his vehicle came into contact with
the Audi immediately
prior to the accident He further denied that he previously diced with
Mr. Koopman.
[18]
Mr. Koopman testified that he has no recollection of the events
preceding the collision and thereafter. He could not recall
if he was
engaged in a race with Mr. Potgieter. He further stated that he
previously raced (diced) with Mr. Potgieter.
[19]
Liability of the RAF viz-a-viz the plaintiff arises from the
provisions of section 17(1) which reads as follows:
“
The
Fund. ..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)
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 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
of the employee’s of the motor vehicle...in the performance of
the employee's duties as employee
. ”
[20]
The plaintiffs claim for damages from the RAF is also based on the
negligence or unlawful act of the insured driver (Mr. Potgieter).
The
plaintiff needs to prove that what we normally refer to as one
percent (1%) negligence on the part of Mr. Potgieter to succeed
with
the unlimited claim against the RAF
[21]
Mr Koopman is sued as an alternative defendant. His potential
liability onJy arises if it is found that the plaintiff has no
unlimited claim against the first defendant, the RAF. The issue of an
apportionment or determination of the respective degrees
of
negligence between Mr. Potgieter and Mr. Koopman therefore does not
arise in so far as it concerns the plaintiff's ctaim. It
is only
relevant for purposes of the dispute between the RAF and Mr. Koopman
[22]
The RAF issued a third party notice against Mr. Koopman on a
conditional basis, i.e. that a contribution is sought from Mr,
Koopman in the event of the court finding that the RAF is liable to
pay damages to the plaintiff on an unlimited basis (the RAF
having
conceded its liability vis-a-vis the plaintiff on a limited claim
based on the negligence of Mr. Koopman).
The
RAF has also tendered payment of such limited claim in the amount of
R25 000, 00 by means of an undertaking to be furnished
in terms of
section 17(4)(a) of the Act in such instance.
[23]
In General Accident Insurance Co South Africa Ltd v Xhego &
Others
[1991] ZASCA 189
;
1992 (1) SA 580
(A) at 586B-E, with regard to the word
‘arising out of, Coller AJA said the following:
"In
the earlier legislation„ the Motor Vehicle insurance act 29 of
1942 and the compulsory Motor Vehicle insurance Act
56 of 1972, the
corresponding sections were almost identically worded, and the
meaning of the words caused by or arising out of
the driving of a
motor vehicle' has been considered by the courts on a number of
occasions. In his discussion of the meaning of
these words in Welts &
Another v Shield Insurance Co Ltd & Others
1965 (2) SA 865
(C)
Corbett. J at 869B-C stated that the words 1caused by1 referred to
the direct cause of injury whereas the words arising out
of referred
to the case where the injury, though not directly caused by the
driving, is nevertheless casually connected with the
driving and the
driving is a sine quo non thereof. Corbett J, however, pointed out at
869F-H that an uncontrolled application of
the sine quo non concept
could bring about consequences never contemplated or intended by the
legislature Some limitation must
therefore be placed on the
application of this concept. The court should be guided by a
consideration of the object and scope of
the Act, and by notions of
common sense (Q70A-B). The following concluding remarks of Corbett J
on this problem at 870D-F
should
in my view also be applied in the present case: 'Where the direct
cause is some antecedent or ancillary act, then it could
not normally
be said that the death or injury was caused by' the driving; but it
might be found to arise out of the driving. Whether
this would be
found would depend upon the particular facts of the case and whether,
applying ordinary, common-sense standards,
it could be said that the
casual connection between the death or Injury and the driving was
sufficiently real and dose to enable
the Court to say that the death
or injury did arise out of the driving.
[24]
Advocate W. P. de Waal SCr for the plaintiff submitted that Mr.
Potgieter1 s conduct is tantamount to dicing and that second
defendant engaged in dicing with the second defendnat wherein the
plaintiff was a passenger. Mr de Waal referred the court to Santam
Insurance Co. Ltd v Voster
1973 (4) SA 764
AD at 773E (Voster)
wherein the court said dicing was a hazardous, and indeed unlawful
activity.
[25]
On the facts in the Voster’s case, there is no doubt that the
conduct of Conradie and Van der Schyff was hazardous and
should be
regarded as unlawful.
[26]
Mr. Smit in his evidence further said when he saw the two vehicles,
the Jetta was slightly in front of the Audi. Mr. Van der
Merwe said
that after the two vehicles crossed Lynwood road the Jetta was
travelling in the left lane of Duncan street ahead of
the Audi and
the Audi was in the right iane. In
considering
and evaluating the evidence of Mr. Smit, Mr. Van der Merwe, and Mr.
Potgieter the picture created is that at Charles
street at the red
robot the Jetta was in the right Jane and, at a certain stage, it
swerved to the left fane. There is no evidence
that the Audi at any
stage overtook the Jetta. It should also be kept in mind that when
the Audi lost control the Jetta was in
the left lane. Mr. Van der
Merwe said that it was in the vicinity of Duncan and Duxbury he saw
the brake lights of the Jetta. There
is no evidence that the driver
of the Jetta disturbed the driver of the Audi
[27]
Much as Potgieter admitted that from the intersection of Charles and
Duxbury he drove at a speed higher than the normal allowed.
He denied
that he drove at the speed estimated by Mr. Smit.
[28]
Mr. Smit and Mr, Van der Merwe said they noticed two vehicles
following each other at a fast pace, the Jetta being in front
and the
Audi behind. Mr. Koopman said he once diced with Mr Potgieter meaning
that they were engaged in racing. However, Mr. Potgieter
denies same.
In my view, there is insufficient enough evidence to support that Mr.
Potgieter was engaged in an unlawful and hazardous
illegal racing
with Mr. Koopman.
[29]
Other than the fact that Mr. Potgieter drove fast in front of Mr.
Koopman there is no other evidence untoward about his driving.
The
driving fast of Mr. Potgieter, is in my view, not causally connected
to the collision of the Audi. Concerning Mr Koopman, ft
should be
accepted that on the evidence he drove at an excessive speed and lost
control of his vehicle resulting that his vehicle
should collide with
a wall. Such conduct, in my view, constitutes negligence. The RAF
correctly in my view, conceded that Mr Koopman
was negligent.
[30]
Mr. Potgieter was cross-examined in detail regarding what happened
after the collision and the speed he was driving, In evaluating
his
evidence carefully, I cannot find, especially regarding how he was
driving, that he is not a credible witness. Even though
Mr. Smit and
Mr. Van der Merwe can be regarded as independently honest and
credible witnesses their evidence cannot be sufficient
to draw a
reasonable inference from it that the parties were involved in an
unlawful racing from which the plaintiffs injuries
arose.
[31]
Koopman did not have a recollection of the events immediately
preceding the collision until then. In particular, he cannot
state
that he was engaged in a race with Potgieter on the day of the
accident.
[32]
There is no evidence, in my view, to suggest that Koopman and
Potgieter agreed to race or that Potgieter enticed or influenced
Koopman to race with him.
[33]
To suggest that the collision arose out of the driving of Potgieter
of his vehicle at a higher than prescribed speed would
be
preposterous. Contravention of statutory law on speed does not on the
facts of this case give rise to liability in terms of
the Act. On the
evidence presented I cannot find that the driving of Mr. Potgieter
caused or contributed to Mr. Koopman losing
control of his vehicle.
The accident was caused by the exclusive negligence of Mr. Koopman
(the second defendant).
[34]
I therefore make the following order:
(i)
The plaintiffs claim against the first defendant (RAF) based on the
negligence and/or arising out of the wrongful driving by
the insured
driver (Mr. Potgieter) is dismissed.
(ii)
The first defendant (RAF) is ordered to pay plaintiff’s special
damages (section 17(4) (a) undertaking) subject to a
limit of R25
000.
(iii)
The second defendant (Mr. Koopman) is liable to pay 100% of the
plaintiffs proven or agreed damages, less special damages
to be paid
by the first defendant (RAF).
(iv)
The first defendant (RAF) is jointly and severally with the second
defendant liable to pay the plaintiff’s costs up to
the time
when a tender for special damages was made and the second defendant
(Mr. Koopman) is solely liable for the remaining costs.
A.
P. LEDWABA
JUDGE
OF THE HIGH COURT
Date
of hearing. 03 March 2009
Counsel
for Plaintiff: Advocate W. P. De Waal (SC)
Instructed
by: Adams & Adams
Counsel
for First Defendant'. Advocate M. M. Lingenfelder Instructed by:
DYASON Incorporated
Counsel
for Second Defendant: In Person