About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 375
|
|
Kruger v Road Accident Fund (32651/07) [2009] ZAGPPHC 375 (26 November 2009)
IN
THE HIGH COURT OF NORTH GAUTENG, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 32651/07
DATE:
26 NOVEMBER 2009
In
the matter between
NICOLAAS
JACOBUS
KRUGER Plaintiff
and
ROAD
ACCIDENT
FUND Defendant
JUDGMENT
ISMAIL
AJ
[1]
The plaintiff instituted proceedings
against the defendant in terms of the provisions of the Road Accident
Fund Act 56 of 1996 for
injuries he sustained out of a motor vehicle
collision.
[2]
At the outset of the trial I was
informed by both parties that the sole issue which needed to be
determined was the question of
negligence. Whether the plaintiff was
solely or partially negligent or alternatively whether he was not
negligent at all.
[3]
At the commencement of the trial the
parties sought a separation of the question of the merits and the
question of quantum in terms
of rule 33(4) of the Uniform Rules of
Court. The matter proceeded before me In respect of the merits ana
the question of quantum
was postponed sine die.
[4]
The only witness who testified during
the trial was the plaintiff. A summary of his evidence would be
significant in order for the
court to set out reasons for its
findings.
[5]
Mr Kruger stated that on the day in
question he was driving his vehicle when he parked his vehicle on the
gravel verge in order
to see the school children playing rugby. He
got out of the vehicle with his door open and he had his hand on the
roof of the car
as he watched the school kids or learners as they are
more correctly referred to playing. Standing in the position
described he
felt someone grabbing him from behind. At first he
thought it was someone he knew who was playing with him. however he
was grabbed
quite aggressively away from the car by three men.
[6]
He was pulled onto the street away from
the vehicle by them. He fought them off and when he went towards his
car he noticed a person
seated behind the steering wheel. He tried to
open the door however the occupant of the vehicle locked the doors.
The illicit driver
started the vehicle and the plaintiff
instinctively got onto the bonnet of the vehicle in order to obscure
the drivers vision in
the hope that the latter would get out of the
vehicle and run away. Instead the driver drove off with him on the
bonnet clutching
and holding onto the wipers for dear life.
[7]
The driver swerved from side to side in
the hope that the plaintiff would fall off the vehicle. Eventually
the plaintiff jumped
off the vehicle, and the driver collided with
another vehicle.
[8]
The plaintiff sustained bodily injuries as a consequence of the
incident.
[9]
During cross-examination the plaintiff
conceded that he realized that the possibility of a person falling
off from the vehicle and
sustaining injuries were very high. He also
stated that at hindsight what he did was dangerous, however at the
time when he acted
as he did he did so in order to stop the thief
from taking his vehicle.
[10]
This in a nutshell was the evidence
tendered during the trial and from which I need to make a
determination.
[11]
Mr Du Plessis acting for the plaintiff
referred me to the matter of
Netherlands
Insurance Co. Ltd v Van der Vyver
1968
(1) SA 412
(A) where the court was called upon to make a finding of
negligence in circumstances similar to the present matter. Mr Makondo
acting for the defendant also relied upon the van der Vyver matter.
He contended that the conduct of the plaintiff in casu differed
from
that of the private investigator in the van der Vyver decision In
that matter the detective could not have foreseen that Ozen
would
drive away with the vehicle with him on the bonnet, whereas in casu
the plaintiff should have foreseen such conduct on the
part of the
thief. According to him the injuries sustained by the plaintiff were
attributed directly to his conduct in other words
but for his conduct
there would not have been any injuries.
[12]
The argument posed by Mr Makondo has
some merit, however the question which needs to be answered is what
would a reasonable man
have done in the circumstances which the
plaintiff found himself. Would he have attempted to prevent the thief
from driving off
with his vehicle or would he have stood aside and
allowed the thief to merrily drive off with his vehicle. This
question should
not be answered in the abstract or as an arm chair
critic but rather in the circumstances of the moment as things were
unfurling
at the time.
[13]
The natural inclination of a person in
such circumstances in my view would be to try and prevent the
happening of the incident or
to stop the thief from getting away with
his conduct. At such a time a person reacts without thinking
logically and one is acting
instinctively. Viewed in isolation the
plaintiffs conduct can be regarded as an act of bravado or
recklessness where he could possibly
have been shot by his assailants
who dragged him onto the road or even by the driver as he got onto
the bonnet. The plaintiff conceded
that when he looks back at his
conduct he would never do what he had done. At the time the only
thought was to stop the thief from
getting away, hence him getting
onto the bonnet in order to obscure the drivers vision, in the hope
that he would thereby stop
and run away as his cohorts did.
[14]
In the Netherlands Insurance matter
supra at 422 D Milne AJA stated
“
Die
feite openbaar geen oorsaak verband hoegenaamd tussen respondent se
handelinge en die gevolge van Ozen se onregmatige daad me.
Die
respondent was inderdaad vandat hy op die enjinkap beland het
magteloos en feitlik n gevangene in die hande van Ozen aan wie
se
genade sy lot oorgelaat is Die gevolge waarvan respondent die
slagoffer geword het. is uitsluitlik veroorsaak deur Ozen se
optrede.”
[15]
The driver of the vehicle, the thief,
could have stopped the vehicle in a cautious manner instead he choose
to drive the vehicle
recklessly swerving from side to side in order
to dislodge the plaintiff from the vehicle. It was his grossly
negligent driving
which caused the plaintiff to sustain the injuries
he did. Similarly the plaintiff was a prisoner in driver's hand and
the plaintiff
was literally a sitting duck at his mercy.
[16]
I agree with Mr du Plessis that in the
circumstances of this matter there cannot be any negligence
attributable to the actions of
the plaintiff. A reasonable man in
similar circumstances would have reacted in a similar fashion to stop
the thief from getting
away with his property.
[17]
Accordingly I am of the view that the
sole cause of negligence was that of the driver of the vehicle who
was intent on breaking
every
rule
of road in order to get away from being apprehended, even if it meant
that he would fatally injure the plaintiff in the process
[18]
In the circumstances I make an order in
the following terms:
(a)
that the sole cause of the accident was
the negligent driving of the insured driver;
(b)
that the defendant is orderred to pay
the costs of the trial which costs shall include the qualifying costs
of Dr Wassemann.
________________________
Ismail
AJ
For
the Plaintiff:
Adv J A du Plessis
Instructed by Riette Oosthuizen Attorney
For
the Defendant:
Adv Z P Makondo
instructed by the State Attorneys
Date
of Judgment:
26 November 2009