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South Africa: North Gauteng High Court, Pretoria
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[2009] ZAGPPHC 376
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Pithey v Road Accident Fund (50010/2007) [2009] ZAGPPHC 376 (3 November 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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HIGH
COURT OF SOUTH AFRICA
NORTH
GAUETNG PRETORIA
CASE
NUMBER: 50010/2007
DATE:
03 NOVEMBER 2009
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
PITHEY.
JOIIANNA CHRISTINA
Plaintiff
V
ROAD
ACCIDENT FUND
Respondent
Civil
trial
Coram
Sapire AJ
JUDGMENT
Sapire,
AJ:
The
plaintiff has sued the defendant to recover compensation for personal
injuries suffered by her in an accident. The defendant’s
liability, if any, arises from the provisions of section 17 of Act 56
of 1996. The accident took place on the 29
th
of November
2004.
As
is required of one seeking compensation from the defendant the
plaintiff filed a claim form contemplated in regulation 23 of
the
Regulations promulgated in terms of the Act.
The
accident involved three vehicles. The first was that in which the
plaintiff was travelling, the second was a vehicle with which
the
plaintiff collided which bore the registration number […...]
and which was driven by one M N Tshangase. The third car
was a
vehicle particulars of which were unknown.
The
plaintiff was, in completing the prescribed claim form, specific in
basing her claim on the negligence of the driver Tshangase.
Together
with the claim the plaintiff lodged a number of documents relating to
the occurrence which described the events and the
circumstances in
which the collision took place. The contents of these documents
suggest that the driver of the unknown vehicle
may have by his
negligence caused the accident.
The
plaintiff in her Particulars of Claim attributes the cause of the
accident solely to the negligence of the driver of an unidentified
and unknown taxi. This is in direct and irreconcilable conflict with
the relevant portion of the claim form. The defendant has
in a
Special Plea contended that as no claim form in respect of such
negligence has been filed there is no cause of action.
The
relevant portion of the Special Plea reads as follows:
“
5.
AD PARAGRAPH 10
5.1
The Defendant admits that the Plaintiff has complied with the
requirements of the Act anti have lodged a claim in respect of
the
motor vehicle with registration number […....] driven by N
Ntshangase. The Defendant denies that the Plaintiff has complied
with
the requirements of the Act, as read with the Regulations in respect
of the alleged unidentified vehicle as no claim has ever
been lodged
in respect of such alleged vehicle. The Defendant further prays that
its Special Plea be read as if incorporated herein.
The Defendant
further pleads that the Plaintiffs claim was formally repudiated on
or about the 19
th
May 2006.
6.
AD PARAGRAPH 11
The
Defendant admits demand and its failure to pay but states that, in
the premises, it is not liable to pay the Plaintiff the amount
claimed or any portion thereof. WHEREFORE the Defendant prays that
Plaintiff's claim be dismissed with costs."
The
parties have agreed to have the issues arising from the Special Plea
heard separately from the other matters arising in the
action and
have filed a statement of facts, in terms of Rule 33(1) upon which a
decision is to be made. The agreed facts are:
1.
The plaintiff instituted action against
the defendant in terms of section 17 of Act 56 of 1966 for damages
she suffered as a result
of Injuries sustained in a motor vehicle
collision that took place on the 29
th
of November 2004.
2.
In her Particulars of Claim, the
plaintiff alleges that she was the driver of a motor vehicle with
registration number […..]
which was in collision with a motor
vehicle with registration number […..] but that the collision
was caused by the negligence
of the driver of a blur mini bus of
which both the driver and the owner are unknown to her.
3.
Plaintiffs action against the defendant
falls under section 17(1) (b) of the Act and in the circumstances
regulation 2 of the Regulations
promulgated in terms of the Act
applies.
4.
Defendant raised a Special Plea in terms
of which it alleged that no debt exist against the defendant under
the Act due to plaintiffs
failure to comply with Regulation 2 (3).
5.
In order to have a claim against the
defendant plaintiff would in terms of Regulation 2(3) have had to
lodge a claim with the defendant
within 2 (two) years after the date
of the accident which should have been 26 November 2006.
6.
The plaintiff lodged a claim against the
defendant by lodging a bundle of documents under cover of a letter
from her attorneys dated
the 17
th
October 2005 (the claim bundle). A copy of the letter is attached to
the Statement of Facts marked “SOF 1”.
7.
The defendant acknowledged receipt of
the claim bundle on the 24
th
of October 2005 and affixed its date stamp to the first page of the
covering letter.
8.
Defendant did not object to the validity
of the claim in terms of section 26.
9.
The following documents were placed
before the court:
(a)
A Statutory claim form which is marked “SOF 2”
(b)
Plaintiffs Affidavit in compliance with
section 19 (f)(i) of the Act marked “SOF 3"
(c)
An Affidavit by Arie Willem Jacobs who
was a passenger in the plaintiffs vehicle marked “SOF 4".
10.
Plaintiff completed paragraph 2 of the
claim form where provision is made for the particulars of the motor
vehicle from driving
of which the claim arises by specifying a truck
with registration number […...] driven by one M N Tshangase.
This is apparent
on a perusal of “SOF 2".
11.
The claim form does not disclose or
refer to any vehicle, owner or driver of which is unknown.
12.
In paragraph 6 - 8 of the plaintiff's
Affidavit she mentions the Involvement of “an unknown blue mini
bus” and in paragraph
18 states that “the accident was
caused by the sole negligence of the driver of a blue taxi”.
13.
In the Affidavit of A W Jacobs he states
that:
(a)
he was a passenger in plaintiffs vehicle;
(b)
“a truck was approaching from the opposite direction turned
right into the R558.
(c)
An unknown taxi also turned right directly behind the truck we had to
swerve to avoid driving into the taxi”;
(d)
“
Both the truck and the taxi were
negligent and caused the accident".
14.
On 19
th
May 2006 defendant repudiated liability on the grounds that the
plaintiff was the sole cause of the collision”.
15.
On the 21
th
of August 2006 plaintiff's attorney received a letter from the
defendant dated 17
th
of August 2006 which referred to plaintiff's Statutory Affidavit and
the fact that plaintiff attempted to avoid a collision with
a taxi
when her vehicle slipped and collided with the rear of the insured
vehicle.
A
number of other facts were agreed and contained in the Statement of
Agreed Facts which is unhelpful in coming to a conclusion
on the
issue in dispute.
The
question of law in dispute framed in the Statement of Agreed Facts
reads:
•
Does
the plaintiffs claim bundle as lodged with the defendant under cover
of her attorney’s letter dated the 17
th
of October
2005 constitute a valid claim in terms of the Act and the regulations
promulgated in terms thereof?”
This
formulation of the question is somewhat confused. What is in issue
is, “as the plaintiff in her Particulars of Claim
is relying
on, the sole negligence of the driver of the unknown vehicle, does
the claim form as completed by her sufficiently comply
with the
requirements of the Act to support a claim in arising from the
negligence of the driver or owner of the unidentified vehicle?"
The
plaintiff’s contention is that the claim form taken together
with the documents accompanying it was sufficient to alert
the
defendant to the fact that a claim was being made arising from the
negligence of a driver of an unknown vehicle.
The
plaintiff contends that the information furnished should have made
the defendant aware that she was relying on the negligence
of the
driver of the unknown taxi, notwithstanding the clear wording of
paragraph 2 of the claim form. From this it is to be inferred
that
the claim form also indicated a claim which would be based on the
sole negligence of the driver of the unknown vehicle.
The
defendant has contended that strict compliance with the regulations
peremptory. The claim form in this instance is specific
indicating
the basis upon which the claim is lodged and docs not require the
defendant to investigate other causes of the accident
giving rise to
plaintiffs injuries and consequent claim.
The
defendant stresses that the claim form prescribed by the regulation
was intended to state and limit the grounds of liability.
In
specifying the insured vehicle as the vehicle the driving of which
gave rise to the claim the plaintiff excluded any other cause.
The
defendant further argued that it was not required to investigate the
claim beyond the limit set in the claim form and could
not consider
every possible ground of liability emerging from the annexures to the
claim form.
As
no claim was lodged on the basis of the negligence of the driver of
an unidentified vehicle any claim arising in respect thereof
is now
prescribed.
The
defendant's arguments are of greater cogency. The indisputable fact
is and remains that the basis of the plaintiffs claim as
specifically
stated in the claim fora was the negligence of the vehicle there
specified. Negligence on the part of the driver of
an unidentified
vehicle may have given rise to a claim on a different basis
altogether.
It
is surprising and distressing that with all the evidence available,
the person who completed the form on plaintiff’s behalf
limited
the claim to one based on the negligence of the insured vehicle. This
carelessness has resulted in the Plaintiff having
lost her claim for
compensation for the injuries suffered by her.
I
conclude that as the claim form does not relate to a claim based on
negligence of the driver of an unidentified vehicle the defendant's
plea to this effect must lie upheld.
The
action is accordingly dismissed with costs.
03/11/09