Brief Summary

Motor Vehicle Accidents — Liability — Negligence of bus driver and owner — Respondents injured due to petrol bomb attack on bus — First respondent claimed damages for injuries to himself and his minor daughter, while second and third respondents claimed for their respective injuries — Court found injuries arose from the driving of the bus and negligence of the driver and owner — Appeal against judgment in favor of respondents dismissed, confirming liability under the Motor Vehicle Accidents Act 84 of 1986.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter was an appeal to the Supreme Court of South Africa (Appellate Division) concerning delictual compensation payable under statutory motor vehicle accident compensation legislation. The appellant, General Accident Insurance Company South Africa Ltd (acting as the appointed agent of the Motor Vehicle Accident Fund), appealed against the decision of the Cape Provincial Division which had upheld the claims of the respondents.

The respondents were passengers injured during an attack on a passenger bus owned by City Tramways. Macdonald Xhego (first respondent) sued both in his personal capacity and as father and natural guardian of his minor daughter, Tantaswa. Nombulelo Xhego (second respondent) and Effie Nobethu Manana (third respondent) sued in their personal capacities for injuries sustained in the same incident.

In the court a quo the quantum of damages was settled before trial, and the litigation proceeded only on the issues of liability, namely whether the injuries fell within the scope of section 8(1) of the Motor Vehicle Accidents Act 84 of 1986 and whether the injuries were due to the negligence or other unlawful act of the driver or the owner (or the owner’s servant acting within the course and scope of employment). The trial court found that the injuries arose out of the driving of the bus, and that negligence was established (in relation to the owner for the petrol-bomb burns, and in relation to the driver for the minor’s fractured leg). The appellant appealed with leave of the trial court.

The general subject-matter of the dispute concerned the meaning and application of the statutory phrase “caused by or arising out of the driving of a motor vehicle” in the context of injuries inflicted by third-party criminal conduct (petrol-bombing) while a bus was in transit, and the related question of negligence attributable to the owner and/or driver in exposing passengers to foreseeable harm.

2. Material Facts

On 11 October 1986 in Nyanga, Cape Town, two petrol bombs were thrown at a passenger bus belonging to City Tramways while it was travelling toward the Nyanga terminus. It was common cause that passengers on the bus sustained injuries and instituted actions against the appellant under the Motor Vehicle Accidents Act 84 of 1986.

Several facts were undisputed at trial and on appeal. It was accepted that the bus driver at the time was Melvyn Douglas Samuels, a City Tramways employee, and that the attack occurred while the bus was travelling along Terminus Road (after turning from NY3 into Terminus Road). It was also common cause that stones were thrown at the bus in addition to petrol bombs. It was not disputed that the second and third respondents, and the minor Tantaswa, sustained burn injuries caused by one of the petrol bombs, and that the minor also sustained a fractured left tibia when she and her mother (second respondent) jumped from the bus while it was still in motion. The damages for the minor’s general damages were agreed at R5 000, of which R4 000 was attributed to the leg injury.

The route taken by the bus on the day was treated as significant. The bus departed from Claremont shortly after midday bound for the Nyanga terminus. It travelled along Lansdowne Road, turned into NY1 (which goes into Nyanga and to the Guguletu terminus), then returned along NY1 briefly before turning into NY3, which becomes Terminus Road. Terminus Road is about 3 km long, and the Nyanga terminus is located on it. According to the driver, when the attack occurred the bus was approximately 600 metres from the Nyanga terminus and travelling at 50–60 km/h.

The existence of alternative routes to the Nyanga terminus was also common cause. Apart from the Terminus Road route, City Tramways also had two other routes: the Claremont–Nyanga route via Emms Drive, and the Claremont–Nyanga route via Guguletu and NY108. During 1985 and 1986, when unrest was prevalent, none of these routes was used, and Terminus Road itself had not been used for a period which could have been as long as twelve months. Buses began using Terminus Road again only from 22 September 1986.

The court relied on evidence (recorded by City Tramways and accepted as common cause) of a pattern of recent attacks on buses on and near the Terminus Road route in the week immediately preceding the incident. The sequence included stonings of buses on 7, 8, and 9 October 1986 in Terminus Road, a bus petrol-bombed on 7 October 1986 in Miller Road (one stop from the Nyanga terminus), a bus petrol-bombed on 10 October 1986 near the Guguletu terminus, and, on 11 October 1986 at 13h42, a bus petrol-bombed on the NY3–Terminus Road route shortly before the respondents’ bus was petrol-bombed at approximately 14h10.

The second respondent’s account of events on 11 October 1986 was described as virtually uncontradicted. She testified that when the bus turned into NY3 the passengers shouted at the driver not to take that route, and that the bus could have reached the Nyanga terminus by other routes. The driver did not heed the protests and continued along NY3 into Terminus Road. She then experienced the bus being stoned, saw flames, and realised she was on fire. Passengers screamed, rushed to the door, and shouted for the driver to stop and open the door. The bus did not stop; the door was eventually forced open and she jumped from the bus with the child in her arms when the bus had only slowed slightly.

The third respondent did not testify, but it was admitted that she suffered the injuries pleaded as a result of the events described by the second respondent.

The appellant led evidence from Mr Schneider (assistant general manager of City Tramways at the time) about precautionary measures during the unrest, including the alleged placement of inspectors with two-way radios at two entrances into Nyanga, and the use of radio control vehicles to report incidents and escort buses. However, Schneider lacked documentation and did not demonstrate personal knowledge that the inspectors were present at the entrances on 11 October 1986. Samuels (the driver) conceded under cross-examination that he did not see an inspector at the Lansdowne Road–NY1 turn-off and that there was in fact no inspector present there on the day, and he also did not see a patrol vehicle.

3. Legal Issues

The central legal questions concerned the scope of statutory liability under section 8(1) of the Motor Vehicle Accidents Act 84 of 1986 and the establishment of fault-based liability within that framework. The issues, as addressed on appeal, were primarily questions of application of law to fact (and, in relation to negligence, the evaluative determination of reasonableness and foreseeability).

The first issue was whether the respondents’ injuries, particularly the burn injuries inflicted by petrol bombs thrown by unknown attackers, were injuries “arising out of the driving” of the bus as contemplated in section 8(1), even though they were not directly caused by the driving in a mechanical sense. It was not argued on appeal that the injuries were “caused by” driving; the dispute focused on “arising out of”.

The second issue was whether the injuries were due to the negligence or other unlawful act of the driver or the owner (or the owner’s servant acting in the execution of duty). This included whether the bus owner was negligent in permitting use of a route known to be dangerous, and whether (as found by the trial court) the driver was negligent for not stopping the bus after the attack, leading to the minor’s leg fracture when she jumped.

4. Court’s Reasoning

Statutory causation: “arising out of the driving”

The Appellate Division approached the interpretation of “caused by or arising out of the driving of a motor vehicle” consistently with prior authority dealing with similarly worded predecessor legislation. The court referred to Wells and Another v Shield Insurance Company Ltd and Others 1965 (2) SA 865 (C), where Corbett J distinguished between injuries directly caused by driving and injuries that are not directly caused by driving but are nonetheless causally connected to driving, with driving as a sine qua non. The court also adopted the caution expressed in Wells that a purely mechanical application of the sine qua non concept may extend liability beyond what the Legislature contemplated, and that a limitation must be applied by reference to the object and scope of the Act and common-sense standards, requiring a causal connection that is “sufficiently real and close”.

On the facts, the appellant conceded that the minor’s leg injury arose out of the driving of the bus. The argument on appeal was directed to the burn injuries, with the appellant contending that although some causal connection existed, it was not sufficiently real and close, and that the mere fact that the bus was being driven when the injuries were sustained was insufficient.

The court rejected this submission by emphasising that the bus was not merely coincidentally in motion at the time of injury. The court’s reasoning was that it was the very driving of the bus along a particular route that elicited the petrol-bomb attack. The connection between driving and injury was therefore treated as materially closer than a scenario in which driving merely forms part of the background circumstances.

In illustrating the nature of the required connection, the court compared the case to an example where passengers are injured by a landslide or rockfall while a bus is driven along a dangerous mountain road. On that analogy, the injuries are understood in common sense to arise out of the driving because the driving along that hazardous route is intimately linked to the occurrence of the harm. The court considered the present facts to be indistinguishable in principle from that example, and therefore upheld the trial court’s conclusion that the burn injuries did arise out of the driving.

Negligence: owner’s liability for burns and for foreseeable secondary injuries

Having found the statutory causal requirement satisfied, the court addressed whether the injuries were due to the negligence of the owner and/or driver. In relation to the burn injuries, the court regarded the danger of the Terminus Road route as established beyond question. The evidence showed that the route had been avoided for months during unrest, was reinstated on 22 September 1986, and thereafter buses using that route were frequently attacked. The documented incidents between 7 and 11 October 1986 were treated as critical in demonstrating a pattern of escalating danger, including both stoning and petrol-bombing in the immediate area and on the route itself, including an earlier petrol-bombing on the same route shortly before the respondents’ bus was attacked.

On that basis, the court held that a reasonable owner would have appreciated the real possibility of a serious attack on buses using the route. The court considered that, for purposes of foreseeability and precautions, it did not matter whether stones, petrol bombs, or both were used; the relevant point was the demonstrated risk of violent attack on that route at that time.

The appellant relied on purported precautions (inspectors at entrances, mobile patrol units, and radio communication) to contend that reasonable steps had been taken. The court reasoned that whether these measures were even in operation on 11 October 1986 was doubtful on the evidence, and that in any event they were not sufficient. A key factor in the insufficiency finding was that drivers were not equipped with two-way radios, meaning they could not warn each other, and the system depended on reporting delays that could allow a bus to enter a danger area without being stopped in time. The explanation offered by Schneider for why Samuels was not stopped (that he may have passed the entrance before the instruction reached the inspector) was treated as illustrating the inadequacy of the safety system.

The court concluded that the owner should have closed the Terminus Road route, particularly because an alternative route (via Emms Drive) was available and did not pass the squatter camps where the relevant incidents occurred, and there was no evidence of unrest incidents along Emms Drive in the same period. The trial court’s finding that the burn injuries to the second and third respondents (and the minor’s burns) were due to the owner’s negligence was therefore endorsed.

The court then dealt with the minor’s leg injury. Although the trial court had attributed that injury to the driver’s negligence for not stopping before passengers jumped, the Appellate Division noted evidential difficulties bearing on that conclusion, including the absence of evidence about the distance between the petrol-bombing point and where the minor and second respondent jumped, and the fact that the bus was travelling at 50–60 km/h and would necessarily take some distance to stop. The court therefore indicated that the negligence enquiry in relation to the driver was complicated on the record.

However, the court considered it unnecessary to resolve the driver-negligence question because negligence by the owner was in any event established in relation to the leg injury. The court reasoned in terms of reasonable foreseeability that passengers might sustain injuries other than burns in a petrol-bomb attack on a bus. If the interior of a bus is set alight, it is to be expected that passengers will rush to the door to escape, and the court considered it easy to foresee confusion and panic in a burning, smoke-filled bus with petrol fumes. On that approach, it was reasonably foreseeable that passengers might jump from a moving bus and sustain fractures. Because the owner’s negligence lay in exposing passengers to a foreseeable petrol-bomb attack by keeping the route open, the owner’s negligence extended to the harm that foreseeably flowed from such an attack, including secondary escape-related injuries.

Accordingly, the court held the appellant liable under section 8(1) in respect of both the burn injuries and the minor’s leg fracture, on the basis of negligence attributable to the owner.

5. Outcome and Relief

The appeal was dismissed. The Appellate Division upheld the trial court’s conclusion that the injuries arose out of the driving of the bus and that negligence was established (at least on the part of the owner in relation to both the burn injuries and the minor’s leg fracture). The appellant remained liable to compensate the respondents in the amounts agreed prior to trial.

The appellant was ordered to pay the costs of appeal.

Cases Cited

Wells and Another v Shield Insurance Company Ltd and Others 1965 (2) SA 865 (C)

Legislation Cited

Motor Vehicle Accidents Act 84 of 1986, section 8(1)

Motor Vehicle Accidents Act 29 of 1942

Motor Vehicle Accidents Act 56 of 1972

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that injuries sustained by passengers when a bus was petrol-bombed while being driven along a particular route arose out of the driving of the bus for purposes of section 8(1) of the Motor Vehicle Accidents Act 84 of 1986, because the causal connection between the driving on that route and the injuries was sufficiently real and close when assessed by ordinary common-sense standards.

The court further held that the bus owner was negligent in failing to take adequate precautions against a foreseeable serious attack on buses using the Terminus Road route, particularly in light of the pattern of stoning and petrol-bombing incidents in the days immediately preceding the attack. The owner ought to have closed the route and used an available alternative route not shown to be affected by similar unrest incidents.

The court also held that, given the foreseeability of panic and escape attempts in a burning bus, the owner’s negligence extended to foreseeable secondary injuries such as the minor passenger’s fractured leg sustained when passengers jumped from the moving bus.

LEGAL PRINCIPLES

The statutory phrase “caused by or arising out of the driving of a motor vehicle” encompasses not only injuries directly caused by the mechanical act of driving, but also injuries that are not directly caused by driving yet are causally connected to the driving in a manner that is sufficiently real and close, evaluated according to the object and scope of the legislation and ordinary common-sense standards rather than an unlimited “but-for” approach.

In determining whether an injury arises out of driving, the mere fact that a vehicle was being driven at the time of injury is generally insufficient; the inquiry focuses on whether the driving forms an integral and proximate component of the circumstances producing the injury. Where the driving along a particular route is the feature that elicits or triggers the harmful event, the required causal nexus may be satisfied.

For negligence under the statutory scheme, a vehicle owner must take reasonable precautions against foreseeable harm to passengers where circumstances demonstrate a real risk of violent attack on a route being used. The adequacy of precautions is assessed in light of their practical effectiveness, including whether the safety system can realistically prevent buses from entering danger areas in time.

Foreseeability in negligence extends beyond the immediate form of harm (such as burns from a petrol bomb) to include reasonably foreseeable secondary injuries that may occur as passengers react to the danger, including injuries sustained while attempting to escape from a burning vehicle in conditions of panic and confusion.

General Accident Insurance Company South Africa Ltd. v Xhego and Others (315/90) [1991] ZASCA 189; 1992 (1) SA 580 (AD); [1992] 1 All SA 414 (A) (29 November 1991)