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[2014] ZAWCHC 219
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Labuschagne and Others v Lourens (34135/2012) [2014] ZAWCHC 219 (29 August 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 34135/2012
DATE:
29 AUGUST 2014
In
the matter between
LABUSCHAGNE,
JL
......................................................
1
st
Plaintiff
LABUSCHAGNE,
GJ
....................................................
2
nd
Plaintiff
LABUSCHAGNE,
M
.....................................................
3
rd
Plaintiff
And
LOURENS,
....................................................................
Defendant
JUDGMENT
Summary:
Road Accident Fund – common law claims abolished –
exceptions to abolition limited to claims for emotional
shock and
trauma of persons not directly involved in accident – third
party as defined in RAF Act precluded from claiming
from common law
wrongdoer.
WEPENER
J
[1]
The plaintiffs seek damages from the defendant as result of
emotional shock and trauma sustained during a motor vehicle
collision.
The defendant accepted liability for the damage suffered
by the first and second plaintiffs on a basis which was not disclosed
to me and which I need not consider.
[2]
As far as the third plaintiff is concerned, the parties agreed that I
should decide the issue of the defendant’s liability
in limine.
The question posed is whether the third plaintiff’s claim, as
pleaded, as against the defendant, is excluded by
virtue of the
provisions of s 21(2)(b) of the Road Accident Fund Act
[1]
(RAF Act).
[3]
It is common cause that the third plaintiff was the driver of a
vehicle which was involved in a collision in which he alleges
the
death of passengers in the vehicle resulted in his emotional shock
and trauma for which he instituted the present claim.
[4]
It is common cause that if the claim by the third plaintiff would
have been competent against the Road Accident Fund (the Fund),
it
would not be competent against the defendant by virtue of the
provisions of s 21 of the RAF Act, which provides for the abolition
of common law actions.
[2]
The
claim then lies against the Fund. However s 21(2) provides for
certain exceptions to the abolition.
[5] In order support
the various contentions both parties relied on Fourie and another vs
Road Accident Fund
[3]
where
Pillay AJ said at para 41: “ The exclusion differs from other
exclusions and limitations in the Amendment Act because
the
individual suffering emotional shock retained his or her common-law
claim against the wrongdoer. The amendment came into effect
on 1
August 2008. What the Act intended to exclude was emotional shock
suffered or sustained by someone who was not directly involved
in the
accident or did not sustain the injuries which gave rise to the claim
for emotional shock” and at para 48: “It
is clear that
the intention of the legislator was not to exclude the circumstances
of the present plaintiffs, but to exclude strictly
those who were not
directly involved in the accident.”
[6] Counsel for the
defendant submitted that the third plaintiff is indeed a third party
as defined in s17 of the Act.
[4]
As the result the third plaintiff does not fall into the exclusion of
the abolition created in s 21 (2) (b) which specifically
excludes a
third party from the general exclusion created in s 21(2) (b). The
legal representative for the plaintiff submitted
that the
interpretation in Fourie only excludes claims by persons “who
were not directly involved in the accident”
[5]
“or did not sustain injuries which gave rise to the claim for
emotional shock”.
[6]
In
the first sense referred to, the third plaintiff was indeed involved
in the accident and his claim is not excluded against the
Fund.
[7] After an
analysis of the case law and the RAF Act, Pillay AJ concluded that
the claim, as defined by her was not barred against
the Fund by the
provisions of s 21(1) of the Act but remained available against the
Fund for that plaintiff.
[8] The question in
this matter is whether the third plaintiff is a third party because
if he is, s 21(2) (b) does not allow for
a claim by him against
anyone but the Fund.
[9] Section 1
defines the third party as the party referred to in s 17 (1) of the
RAF Act. The section requires (in order to be
a third party), that a
person must:-
(a)
be the claimant (being any person “whosoever” or “
third party”) who suffered damage or loss in the
form of bodily
injury to him- or herself or by virtue of a death of another person;
(b)
there must have been negligent driving of a motor vehicle or another
unlawful act resulting in;
(c)
damage or loss to the third party; and
(d)
the damage or loss must have been caused by or arisen from the
negligence driving of a motor vehicle.
The
proviso contained in s17 finds no application in this matter.
[10] The third
plaintiff, in my view, satisfies the all the requirements of a third
party as defined in the RAF Act.
[11] The result is
that the exclusion contained in s 21 (2) (b) is not available to the
third plaintiff. His claim falls within
the provisions of s 21(1) of
the Act. The claim should consequently have been made against the
Fund. In my view the fact that the
Fund may not be liable pursuant to
s 19 of the Act, does not take the matter any further. Section 19
excludes liability in a number
of instances, such as a failure to
prosecute a claim properly; a refusal to undergo examinations and as
a result of damages suffered
pursuant to emotional shock sustained
when another was injured or died. Section 19 does not revive a claim
at common-law and is
not worded as an exclusion to s 21(1). In my
view only those matters that can be brought under s 21(1) (a) or (b)
would allow for
a claim against an owner or driver or employer of the
driver as having been excluded in terms of s 21.
[12] The third
plaintiff is indeed a person (third party) who should be compensated
by the Fund for any loss or damage which the
third plaintiff has
suffered as a result of any bodily injury
[7]
to himself or herself or the death of or any bodily injury to another
person caused by or arising from the driving of a motor vehicle
by
any person.
[13] The third
plaintiff consequently has no claim against the driver of the vehicle
as the claim lies against the Fund. The case
of Fourie did not deal
with this aspect but with the breadth of the exclusion of the
liability of the Fund for damages suffered
as a result of emotional
shock. The remarks made in the Fourie judgment should be seen in that
context.The learned Judge said
[8]
that the “exclusion (of liability of the Fund) was for
emotional shock suffered and sustained by persons not directly
involved
in the accident”. Accepting this view as
being
correct, the third plaintiff was directly involved in the accident
and the Fund remained liable to compensate him for his
damage. By
virtue of the provisions of s 21, the third plaintiff has no claim
against the common-law wrongdoer and should have
claimed for his
damage from the Fund.
[14] I am fortified
in my view by virtue of the fact that I was advised from bar, and it
was common cause, that the third plaintiff
did successfully institute
a claim for damages for medical costs incurred, against the Fund. In
that claim no other heads of damages
were sought. The fact that the
third plaintiff was indeed a third party as defined in s 17 of the
Act is underscored by that successful
claim for damages against the
Fund.
[15] In the
circumstance the question which I am required to answer is answered
as follows:
15.1
The third plaintiff’s claim, as pleaded against the defendant,
is excluded by virtue of the provisions of s 21(2) (b)
of the Road
Accident Fund Act.
15.2
This being so, the third plaintiff’s claim falls to be
dismissed with costs.
APPEARANCES:
For the
Plaintiff: Legal representative for plaintiff – Mr HJ Strauss
For the
Defendant: Advocate C Korf
Date of Hearing:
25 August 2014
Judgment
delivered on: 29 August 2014
[1]
Act 56 of 1996
[2]
Section 21(1): Abolition of certain common law claims-
(1)
No claim for compensation in respect of loss or damage resulting
from bodily injury to or the death of any person caused by
or
arising from the driving of a motor vehicle shall lie-
(a)
against the owner or driver of a motor vehicle; or
(b)
against the employer of the driver.
(2)
Subsection (1) does not apply-
(a)
if the Fund or an agent is unable to pay any compensation; or
(b)
to an action for compensation in respect of loss or damage resulting
from emotional shock sustained by a person, other than
a third
party, when that person witness or observed or was informed of the
bodily injury or death of another person as result
of the driving of
a motor vehicle.”
[3]
2014(2)SA 88(GNP)
[4]
Section 17. Liability of Fund and Agents
(1)
The Fund or Agent shall-
(a)
subject to this Act in the case, 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 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 the motor
vehicle by any person at any place within the Republic, if the
injury or death is due to the negligence or wrongful
act of the
driver or of the owner of the vehicle or of his or her employee in
the performance of the employee’s duties
as employee:
Provided…
[5]
Fourie para 48
[6]
Fourie para 41
[7]
It was common cause that the injury suffered as a result of
emotional shock is such damage – See Bester vs Commercial
Union Versekeringsmaatskappy 1973(1)SA 769(A).
[8]
At 97 D