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[2018] ZASCA 49
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Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49; 2018 (5) SA 169 (SCA) (29 March 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 276/2017
In
the matter between:
THE
ROAD ACCIDENT
FUND
APPELLANT
and
MOGAMAT
RIDAA
ABRAHAMS
RESPONDENT
Neutral
citation:
Road
Accident Fund v Abrahams
(276/2017)
[2018] ZASCA 49
(29 March 2018)
Coram:
Navsa,
Lewis and Willis JJA and Makgoka and Hughes AJJA
Heard:
21
February 2018
Delivered:
29
March 2018
Summary:
Road
Accident Fund Act 56 of 1996
:
section 17:
whether a driver in a
single motor vehicle accident is entitled to claim under the
provisions of
section 17
of the
Road Accident Fund Act.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Salie-Hlophe J)
judgment
reported
sub
nom
Abrahams
v Road Accident Fund
2016 (6) SA 545
(WCC).
The
appeal is dismissed with costs, including costs attendant upon the
employment of two counsel.
JUDGMENT
Makgoka
AJA (Navsa, Lewis and Willis JJA and Hughes AJA concurring)
[1]
The
issue in this appeal is whether a driver involved in a single motor
vehicle accident, and who was not an employee of the owner
of the
insured vehicle, is entitled to claim compensation from the
appellant, the Road Accident Fund, in terms of the Road Accident
Fund
Act 56 of 1996 (the Act).
[2]
On
5 February 2011 the respondent was involved in a single motor vehicle
accident. The vehicle he was driving (the insured vehicle)
was owned
by his father’s employer, Secuco Food Manufacturers (the
insured owner). The accident occurred as a result of a
tyre burst
which caused the insured vehicle to leave the roadway and roll-over.
The respondent sustained severe bodily injuries
as a result of the
accident. He subsequently instituted action in the Western Cape
Division of the High Court against the appellant
for damages. He
alleged that the accident occurred as a result of the insured owner
failing to maintain the tyres of the insured
vehicle in a safe and
roadworthy condition.
[3]
Initially
the appellant filed a plea to the respondent’s particulars of
claim, but it subsequently added a special plea. The
special plea
comprised a main and alternative plea. The main plea is premised on
three grounds. First, it asserted that because
there was no
employer-employee relationship between the respondent and the insured
owner, the respondent was not entitled to claim
any compensation in
terms of the Act. Second, it alleged that the respondent’s use
of the insured motor vehicle was fortuitous
and/or unauthorized.
Lastly, the appellant contended that no legal duty could be ascribed
to the insured owner in relation to the
respondent. In the
alternative special plea, the appellant denied liability on the basis
that the collision involved a single vehicle
accident; and the
respondent was solely and entirely negligent in causing the
collision.
[4]
The
special plea came before the court a quo on 12 June 2016.
[1]
The respondent led the evidence of his father, ostensibly to meet the
appellant’s assertion that his driving of the insured
vehicle
at the time of the accident was fortuitous and unauthorized. The
essence of the evidence by the respondent’s father
is as
follows. His duties included the delivery of baked goods on behalf of
the insured owner to various retailers. He had a standing
arrangement
with the insured owner in terms of which he occasionally requested
the respondent to make deliveries on his behalf,
when he was unable
to do so himself. It was the same on the day of the collision.
The upshot of his evidence is therefore
that at the time of the
accident, the respondent was driving the insured vehicle with the
consent of the insured owner. This was
uncontested by the appellant.
No other witnesses testified.
[5]
The
court a quo dismissed the appellant’s special plea with costs.
This conclusion rested mainly on the court a quo’s
finding that
the respondent’s driving of the insured vehicle was with the
consent of the insured owner, and in the capacity
of a
sub-contractor. This, according to the court a quo, established a
basis for liability. Aggrieved at the dismissal of its special
plea,
the appellant appeals with leave of this court.
[6]
It
is convenient to set out the relevant provisions of the Act, which
are contained in sections 17, 18 and 19. The gateway for compensation
under the Act is s 17(1), which establishes the liability of the
appellant. Section 18(2) limits liability in certain circumstances,
while s 19 excludes liability in certain cases. Section 21(1), on the
other hand, abolishes common law claims against the owner.
[7]
Section
17(1) reads:
‘
The
fund or an agent shall-
(a)
….
(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 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….’
(my
emphasis.)
[8]
Section
18(2) reads:
‘
Without
derogating from any liability of the Fund or an agent to pay costs
awarded against it or such agent in any legal proceedings,
where the
loss or damage contemplated in section 17 is suffered as a result of
bodily injury to or death of any person who, at
the time of the
occurrence which caused that injury or death, was being conveyed in
or on the motor vehicle concerned and who was
an employee of the
driver or owner of that motor vehicle and the third party is entitled
to compensation under the Compensation
for Occupational Injuries and
Diseases Act, 1993 (Act No. 130 of 1993), in respect of such injury
or death ….’
[9]
Section
19 provides that the appellant shall not be obliged to compensate any
person in terms of s 17 for any loss where neither
the driver nor the
owner of the motor vehicle concerned would have been liable but for s
21. Section 21(1), in turn, abolishes
certain common law claims. It
provides that no compensation in respect of bodily injury to or the
death of any person caused by
or arising from the driving of a motor
vehicle shall lie against the owner of a motor vehicle or the
employer of the driver.
[10]
In
this court, counsel for the appellant submitted that the respondent’s
claim is not covered by the provisions of the Act.
Counsel submitted
further that the only instance where a driver involved in a single
motor vehicle accident would be entitled to
claim against the
appellant is in terms of s 18(2) of the Act. This is where persons
conveyed in or on the insured vehicle are
employees of the driver or
owner of the vehicle. Because the respondent was not being conveyed
in or on the insured vehicle as
an employee of the insured owner, so
went the argument, s 18(2) did not apply to the respondent.
[11]
In
this context, so the argument proceeded, a driver in a single motor
vehicle accident, such as the respondent, does not qualify
as a
‘third party’ for purposes of the Act. In the
circumstances, it was contended, the respondent’s claim did
not
fall within the ambit of the Act, but lies at common law. Moreover,
it was submitted that because such a claim is not excluded
by s 21 of
the Act, it would be against public policy to apply an extensive
interpretation of the Act to create a remedy for claimants
under such
circumstances. In the alternative, it was argued that the bodily
injuries and loss suffered by the respondent were neither
caused by
nor arose from the driving of the insured vehicle, but resulted from
a tyre burst.
[12]
I
do not agree with the construction placed on s 18(2) by the
appellant’s counsel. The sub-section does not create a right
of
action. Its purpose, as is clear also from the heading of the
section, is to limit certain claims under s 17 where the third
party
is conveyed in or on the insured vehicle, and who was an employee of
the driver or owner of the insured vehicle. In those
instances, the
third party’s claim lies in terms of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993
(COIDA) and the
Act. The third party’s compensation recovered in terms of COIDA
is to be deducted from the award made in
terms of the Act, to avoid
double compensation. It is common cause that the respondent was not
an employee of the insured owner
at the time of the accident, and
therefore s 18(2) and COIDA are not applicable to him. But does this
mean that he does not have
a claim in terms of the Act? I consider
that question below.
[13]
A
useful starting point is to consider the effect of s 17(1), read with
s 21(1). As stated already, the latter section abolishes
the right of
an injured claimant to sue the wrongdoer at common law. Section
17(1), in turn, substitutes the appellant for the
wrongdoer. It does
not establish the substantive basis for liability. The liability is
founded in common-law (delictual liability).
Differently put, the
claim against the appellant is simply a common-law claim for damages
arising from the driving of a motor vehicle,
resulting in injury.
Needless to say, the liability only arises if the injury is due to
the negligence or other wrongful act of
the driver or owner of the
motor vehicle. See Jansen JA’s explanation in
Da
Silva and Another v Coutinho
1971 (3) SA 123
(A) at 139A-H, with regard to the provisions of the
Motor Vehicle Insurance Act 29 of 1942 (one of the predecessors to
the Act).
[14]
Corbett
JA summed up the position in
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A). Explaining, with reference to ss 21, 23 and 27
of the Compulsory Motor Vehicle Insurance Act 56 of 1972 (one of the
predecessors
to the Act) he stated the following at 841E-G:
‘
To
a great extent the Act represents an embodiment of the common-law
actions to damages for bodily injury and loss of support where
the
bodily injury or death is caused by or arises out of the driving of a
motor vehicle insured under the Act and is due to the
negligence of
the driver of the vehicle or its owner or his servant. Then in place
of, and to the exclusion of, the common- law
liability of such
persons is substituted the statutory liability of the authorized
insurer. Sections 21, 23(a) and 27 indicate
that the statutory
liability of the authorized insurer is no wider than the common-law
liability of the driver or owner would have
been but for the
enactment of the Act (indeed in certain instances it is narrower –
see ss 22 and 23(b)) and that this statutory
liability is dependent
upon the existence of a state of affairs which would otherwise have
given rise to such a common-law liability.
[T]he negligence upon
which liability under s 21 hinges is the
culpa
of the common law and, save in certain specified instances, the
compensation claimable under s 21 is assessed in accordance with
the
common-law principles relating to the computation of damages.’
[15]
I
now consider whether the respondent’s claim falls within the
ambit of s 17(1). There are six elements to the section, which
can
conveniently be broken down as follows:
(a)
the liability is towards a ‘third party’;
(b)
who had suffered any loss or damage;
(c)
the loss resulted from bodily injury to himself or herself;
(d)
the loss arose from the driving of a motor vehicle;
(e)
the injury was due to negligence or other wrongful act;
(f)
the negligence or wrongful act must be that of:
(i)
the driver; or
(ii)
the owner of the motor vehicle; or
(iii)
of his or her employee.
[16]
That
the respondent meets the elements in (b); (c); (e); and (f) is not
disputed. The appellant disputes those in (a) and (d). I
consider
them in turn.
[17]
It
was submitted on behalf of the appellant that the respondent was the
driver, and as such, cannot be a ‘third party’
for the
purposes of s 17. He could only be a ‘third party’ had he
been involved in a multiple vehicle collision arising
from the
negligence of the insured driver of another vehicle. I disagree.
Section 17 defines a third party as being ‘any
person’.
This undoubtedly is wide enough to include a driver involved in a
single motor vehicle accident, such as the respondent,
provided the
injury arises from the negligence or wrongfulness of the owner, among
others.
[18]
The
appellant focuses on the fact that the respondent was the driver,
who, in its view, was solely negligent in causing the accident.
This
explains why the respondent is described in the appellant’s
heads of argument as a ‘delinquent driver’.
But the
negligence or otherwise of the respondent does not arise in the
present enquiry. As a consequence of its focus on the respondent,
the
appellant loses sight of the pertinent provisions of s 17, that
liability arises from, among others, blameworthy conduct of
the owner
of the insured vehicle. In some instances, this may have nothing to
do with the actual driving.
[19]
As
was pointed out by Corbett J in
Wells
and Another
v
Shield
Insurance Co Ltd and Others
1965 (2) SA 865
(C) at 867H, the section (the predecessor to s 17)
lays down two prerequisites for liability on the part of a registered
insurance
company for damages suffered by a third party as a result
of bodily injury. These are (i) that the injury was caused by or
arose
out of the driving of the insured motor vehicle and (ii) that
the injury was due to the negligence or other unlawful act of the
driver of the insured vehicle, or the owner or his servant. In
Santam
Versekeringsmaatskappy Bpk v
Kemp
1971 (3) SA 305
(A) at 332C (albeit in a dissenting judgment) Jansen
JA observed that there are two separate enquiries, a fact which is
sometimes
lost sight of because in most cases the injury is caused by
the negligent driving of the insured vehicle.
[20]
It
is clear that the appellant has fallen into the pitfall which Jansen
JA cautioned against. As correctly submitted by counsel
for the
respondent, it is the negligent or wrongful conduct of the owner of
the insured vehicle that the respondent relies upon.
As such, the
focus of liability is not on the driver, but on the insured owner.
The facts of this case differ from what is usually
encountered, where
two vehicles collide. In such instances, the appellant steps into the
shoes of the negligent driver. Here, the
appellant steps into the
shoes of the insured owner, whose conduct is alleged to have been
negligent. For all the above reasons,
I have no difficulty in
concluding that the respondent falls within the definition of a
‘third party.’
[21]
I
now consider whether the respondent’s injuries were caused by
or arose from the ‘driving’ of a motor vehicle,
as
required in s 17. The term ‘driving’ is not defined in
the Act and it must therefore be given its ordinary meaning.
It was
submitted on behalf of the appellant that the respondent’s
injuries were not caused by the driving, but from the unroadworthy
condition of the insured vehicle, namely a worn tyre that burst. To
my mind, there is no merit in this submission. The respondent’s
claim is based on the alleged wrongful and negligent conduct of the
insured owner who failed to maintain the tyres of the insured
vehicle
in a safe and roadworthy condition, which resulted in the tyre burst,
causing the accident.
[22]
In
Wells
,
at
870A-H,
Corbett
J recognised that the negligence or unlawful conduct may consist of
some antecedent or ancillary act or ommission on the
part of the
driver or owner of the vehicle such as failing to maintain the
vehicle in a roadworhty condition. He further stated
that ‘[w]hether
the causal connection between the injury and the driving 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
causal connection between the
death or injury and the driving was
sufficiently real and close to enable the Court to say that the death
or injury did arise out
of the driving’.
[23]
Jansen
JA explained in
Santam
at
332D:
‘
It
can however happen that even in the instance of blameless driving of
a motor vehicle, injury or death may result, for example
as a result
of a wheel which becomes dislodged. If the dislodgment, and the
resultant death or injury is due to the negligence
of the owner (for
example because he did not tighten it properly) then the insurer of
the particular vehicle is liable because
death or injury occurred,
despite the blameless driving…. (My translation from
Afrikaans.)
See
also
Barkett v SA Mutual Trust and Assurance Co Ltd
1951 (2)
SA 353
(A).
[24]
For
present purposes it must be assumed that the respondent would prove
his allegations against the insured owner at the trial.
It is clear
that the insured motor vehicle was being driven at the time of the
accident. The tyre burst was dependent on this fact.
As a result, the
causal connection between the injuries suffered by the respondent and
the driving is sufficiently real. In the
circumstances there is no
merit in the appellant’s contentions.
[25]
In
sum, I conclude that respondent’s claim falls within the ambit
of s 17 of the Act. Section 18 of the Act is not applicable
in the
circumstances of this case. The court a quo was apparently of the
erroneous view that for the respondent’s claim to
be within the
ambit of the Act, he had to base his claim on s 18, hence its
reasoning that the respondent was a contractor on behalf
of the
insured owner at the time of the accident. That was not necessary.
The liability of the appellant for the injuries sustained
by the
respondent must be found in the plain wording of s 17, read together
with s 21 of the Act.
[26]
Before
I conclude, it is regrettable that this court has, once again, to
give guidance on how the procedure set out in rule 33(4)
of the
Uniform Rules of Court should be applied.
[2]
The process of dealing
with a matter under rule 33(4) was clarified in
Denel
(Edms) Bpk v Vorster
2004
(4) SA 481
(SCA) para 3:
‘
Rule
33(4) of the Uniform Rules ─ which entitles a Court to try
issues separately in appropriate circumstances ─
is aimed at
facilitating the convenient and expeditious disposal of litigation.
It should not be assumed that that result
is always achieved by
separating the issues. In many cases, once properly considered, the
issues will be found to be inextricably
linked, even though, at first
sight, they might appear to be discrete. And even where the issues
are discrete, the expeditious
disposal of the litigation is often
best served by ventilating all the issues at one hearing,
particularly where there is
more than one issue that might be
readily dispositive of the matter. It is only after careful thought
has been given to the anticipated
course of the litigation as a whole
that it will be possible properly to determine whether it is
convenient to try an issue separately.
But, where the trial Court is
satisfied that it is proper to make such an order ─ and,
in all cases, it must be so satisfied
before it does so ─
it is the duty of that Court to ensure that the issues to be tried
are clearly circumscribed in
its order so as to avoid confusion.’
See also
ABSA Bank Ltd v Bernert
2011 (3) SA 74
(SCA) para 21 where the
following was stated:
‘
I[f]
for no reason but to clarify matters for itself a court that is asked
to separate issues must necessarily apply its mind to
whether it is
indeed convenient that they be separated, and if so, the questions to
be determined must be expressed in its order
with clarity and
precision.’
[27]
It is by no means
clear that these principles informed the decision to separate issues
in this matter. In my view, the issue raised
in the special plea is
inextricably linked with the separated issues of
locus
standi
, negligence, and
causation.
They could have been ventilated in one hearing. This should have been
clear to the court a quo at the commencement of
the trial.
I appreciate that the
decision was made in a pre-trial hearing by a different judge. In my
view, there was nothing that precluded
the court a quo from
re-visiting the earlier determination by another judge, if it was of
the view that the special plea should
be heard in one hearing with
the other issues.
[28]
For
the reasons set out above, the appeal is dismissed with costs,
including costs attendant upon the employment of two counsel.
____________________
T
M Makgoka
Acting
Judge of Appeal
APPEARANCES
For
Appellant:
D
Potgieter SC (with him C Bisschoff)
Instructed by:
Z Abdurahman Attorneys,
Cape Town
Maduba Attorneys,
Bloemfontein
For
Respondent:
JW Olivier
SC (with him WS Coughlan)
Instructed
by:
DSC Attorneys, Cape Town
Rosendorff, Reitz, Barry
Attorneys, Bloemfontein
[1]
In
terms of a determination made earlier by a different judge in a
case-management allocation, liability
and
the merits were separated in terms of rule 33(4) of the Uniform
Rules of Court, and only the special plea
was
to be adjudicated. All other issues, including causal negligence and
locus standi, stood over for later determination.
[2]
See
for example,
Firstrand
Bank v Clear Creek Trading
[2015]
ZASCA 6
paras 9-10;
Feedpro
Animal Nutrition v Nienaber
[2016]
ZASCA 32
para 15;
Cilliers
& others v Ellis & another
[2017]
ZASCA 13
paras 12-14; and
Transalloys
v Mineral-Loy
[2017]
ZASCA 95
para 6.