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IN THE HIGH COURT OF SOUTH AFRICA

(EAST LONDON CIRCUIT LOCAL DIVISION)

Case No. EL 293/2019

Date heard: 26 February 2020

Date delivered: 26 May 2020*

In the matter between:

SINETHEMBA VELLEM                                                              Plaintiff

and

ROAD ACCIDENT FUND                                                             Defendant

JUDGMENT

LAING AJ

[1]        This is a claim for damages brought against the defendant in terms of sub-section 17(1) of the Road Accident Fund Act 56 of 1996 (‘the RAF Act’).

Background

[2]        The trial proceeded on the question of liability only. The plaintiff pleaded that on 7 September 2017, in the vicinity of Bhongweni, close to the East London Airport, he was involved in a motor vehicle accident when a truck reversed over him, causing serious injuries. He had been a pedestrian at the time, walking along the road. It was the plaintiff’s case that the sole cause of the accident was the negligence of the driver.

[2]        It was common cause that the driver of the truck was a Mr Lungisa Myokwana. However, the defendant pleaded that the plaintiff had jumped onto the truck while it had been in motion and without the driver’s knowledge, after which the plaintiff had fallen off. Accordingly, pleaded the defendant, the driver had not been negligent and the plaintiff was the author of his own misfortune.

Summary of evidence

[3]        In evidence, the plaintiff testified that he had gone to a former employer in the Bhongweni area to look for work. At the property in question, he encountered Mr Myokwana, whose truck was parked for the off-loading of bricks by two workers. The plaintiff asked whether he could assist, to which Mr Myokwana agreed. When the work was done, the plaintiff requested Mr Myokwana to give him a lift to his aunt’s trading store. However, just as the plaintiff climbed the steps to open the door of the truck on the passenger side, Mr Myokwana drove off.

[4]        The plaintiff stated that he could not open the door because the truck was moving too fast, so he held onto the mirror. The road was uneven and marked by numerous potholes, over which the truck travelled at approximately 40 to 60 kilometres per hour. He went on to say that he shouted for the truck to stop but the driver and the two workers inside the cab simply laughed at him and treated his predicament as a joke.

[5]        The truck went past the trading store of the plaintiff’s aunt, without stopping. At the next intersection, it turned left and hit a large pothole, throwing the plaintiff off so that he landed in the path of the rear wheels of the truck, which ran over him. He lost consciousness shortly thereafter.

[6]        Under cross-examination, the plaintiff was confronted with a report by an orthopaedic surgeon, Mr Keith Watt. In terms thereof, the plaintiff was described as having been

‘getting out of the truck when the truck apparently drove over his right femur and then reversed again, the second time over his pelvis.’[1]

[7]        The plaintiff refuted the description of the accident, saying that he had told Mr Watt that he had been trying to get onto the truck when the accident happened, Mr Watt had been mistaken. He had not been getting out of the truck.

[8]        Still under cross-examination, the plaintiff was shown an affidavit to which he had previously deposed in terms of sub-section 19(f) of the RAF Act. The relevant portion reads as follows:

‘[o]n the aforesaid date and time, I was getting on / climbing on the insured vehicle when the insured driver drove off before I had finished as a result of which I fell down when the insured vehicle was taking a curve as a result of which it drove over me.’[2]

[9]        The plaintiff confirmed that this had been what happened. He had alighted upon the truck while it was stationary but had been unable to get inside the cab before it had driven off. After the truck had travelled a short distance, the plaintiff had lost his grip when the truck hit a pothole.

[10]      He denied that he had been a pedestrian at the time. The averment to that effect in his particulars of claim was incorrect. Moreover, the driver had indeed been aware of his presence, the truck had never reversed and rolled over him. The plaintiff could not explain the discrepancies between his evidence under oath and the details of his particulars.

[11]      Despite extensive cross-examination on this point, the plaintiff insisted that he had been on the truck, trying to get inside the cab, when the truck had hit a pothole and thrown him off.

[12]      The plaintiff’s witness was a Mr Aphiwe Maqashu. He described himself as the plaintiff’s brother-in-law and had seen the plaintiff earlier on the morning of 7 September 2017 before going to work for an employer whose premises were close to where the plaintiff had sought work. The respective properties were some distance away from each other but Mr Maqashu testified that he had a clear view of what went on. He said that he had seen the plaintiff helping to off-load bricks from a truck before climbing onto the steps to gain access to the cab, at which point the truck had driven off. Mr Maqashu ran after the truck and saw the plaintiff’s falling off the truck when it turned a corner.

[13]      According to Mr Maqashu, he caught up with the truck when it came to a halt and remonstrated with the driver and two workers, asking how they could have allowed the accident to happen. They did not respond. The witness confirmed that the accident had happened at a corner, where there were potholes.

[14]      Under cross-examination, Mr Maqashu testified that he had seen the truck reversing out of the property where it had been off-loading bricks, with the plaintiff’s standing on the steps, holding onto the mirror with his left hand and the door handle with his right. He had not seen the plaintiff climb onto the truck. The witness then said that the truck had stopped reversing and had moved off. He was quite sure about this, despite the defence counsel’s having put it to him that the plaintiff had never mentioned that the truck had reversed while he had been holding onto the side.

[15]      The driver of the truck, Mr Myokwana, testified for the defence. He confirmed that he had driven a ten-ton truck to deliver bricks to a property in the Bhongweni area, which had been off-loaded by two workers, one of whom having since relocated to Cape Town and the other having passed away.

[16]      On the day in question, the plaintiff had approached him, asking for work, to which Mr Myokwana had said no. After the workers had completed off-loading, the plaintiff had come to him again, seeking work, to which Mr Myokwana had once more answered no and had driven off. As he did so, he saw the plaintiff climb onto the steps of the passenger-side door. He stopped the truck and told the plaintiff to get off, repeating to him that there was no work for him. The plaintiff climbed off the truck and Mr Myokwana drove off for the second time. However, he noticed that the plaintiff had again climbed onto the steps of the passenger-side door. Mr Myokwana stopped once more for the plaintiff to get off. He stated that he never saw the plaintiff again until he turned the corner and discovered that the truck had run over him. It was Mr Myokwana’s testimony that the truck had never reversed at any stage.

[17]      During cross-examination, Mr Myokwana indicated that the plaintiff had first climbed onto the truck while it had been moving. He had seen the plaintiff’s face and had seen him holding onto the passenger-side door. He denied that the plaintiff had been shouting at him and repeated that he had stopped the truck and ordered the plaintiff to get off, after which the plaintiff had climbed on for a second time when the truck had resumed its journey. Mr Myokwana stated that he had again stopped the truck and told the plaintiff to get off.

[18]      He testified that he had seen the plaintiff on both occasions. However, Mr Myokwana was very certain that he had not seen the plaintiff when he climbed on for the third time and had not seen him fall off. He stated that he always checked his mirrors while driving and had not seen the plaintiff at all. If he had then he would have stopped again to order him off the truck. Mr Myokwana was adamant that he had not seen the plaintiff on the third occasion.

[19]      Furthermore, said Mr Myokwana, there was no pothole at the corner where he had turned, there were two speed-bumps. The poor condition of the road had prevented him from travelling at any great speed. He denied that the plaintiff had been shouting at him and that he, Mr Myokwana, had laughed at him. He also denied that he had seen Mr Maqashu at the scene or that the witness in question had spoken to him. Only ambulance officials had been present.

Issues for determination

[20]      The parties agreed on the following measurements: from where the truck had been off-loading bricks to the trading store of the plaintiff’s aunt was approximately 300 metres; from the trading store to where the plaintiff had fallen off was approximately 50 metres; from where the truck had been off-loading to where the plaintiff had fallen off was approximately 350 metres; and from where the witness had been working to where the truck had been off-loading was approximately 200 metres.

[21]      On the basis of the evidence presented during trial proceedings, it would appear that the following is common cause: the plaintiff had approached the driver for work while the truck had been parked at premises in the Bhongweni area, for the off-loading of bricks; once the off-loading had been completed, the driver had departed, accompanied by two workers who sat inside the cab; on at least one occasion, the plaintiff had climbed onto the passenger-side of the truck and had been standing on the step or steps designed to give access to the cab; he had not succeeded in entering the cab; the truck had been in motion at the time; on at least one occasion, the driver had seen the plaintiff holding onto the passenger-side of the truck; the condition of the road was poor; and the plaintiff had sustained injuries at an intersection where the truck had negotiated a corner, at some 350 metres away from where it had previously been parked for off-loading.

[22]      Furthermore, it would appear to be common cause that: the plaintiff was not a pedestrian at the time that the accident occurred; and the truck had never reversed over him.

[23]      The issues to be determined seem to distil themselves into a single main enquiry: were the plaintiff’s injuries due to the negligence or other wrongful act of the driver? Closely allied to the above enquiry is whether and how the court is required to apply the provisions of the Apportionment of Damages Act 34 of 1956, as will be discussed later.

Plaintiff’s pleadings and testimony

[24]      Before embarking upon the above enquiries, something must be said about the discrepancies that emerged during the trial proceedings between the plaintiff’s testimony and the averments made by the plaintiff in his pleadings. Much was made of this during the trial and in the argument presented by counsel for the defence. The subject requires further investigation.

[25]      The usual position is that a party is bound by its pleadings. Counsel for the defence referred to Minister of Agriculture and Land Affairs and another v De Klerk and others 2014 (1) SA 212 (SCA), at [39] and also to Imprefed (Pty) Ltd v National Transport Commission 1993 (3) 94 (A), at 107G. Similarly, a pleader cannot be allowed to direct the attention of the other party to one issue and to then seek to pursue another at trial, on the authority of Kali v Incorporated General Insurances Ltd 1976 (2) SA 179 (D), at 182E.

[26]      Notwithstanding, it is well established in case law that a court enjoys a discretion in relation to how to deal with such a situation. In Robinson v Randfontein Estates GM Co Ltd 1925 AD 173, Innes CJ held, at 198, that

‘The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But within those limits a court has a wide discretion. For pleadings are made for the court, not the court for pleadings.’

[27]      The above passage was cited with approval by De Villiers JA in Shill Appellant v Milner Respondent 1937 AD 101, where he focused, at 105, on the need to establish what the substantial issue was between the parties and remarked, too, that the importance of pleadings should not be unduly magnified.^[3]

[28]      The approach followed by the erstwhile Appellate Division has subsequently been affirmed in the Supreme Court of Appeal. In Firstrand Bank Limited v Venter [2012] JOL 29436 (SCA), Heher JA, at [30], quoted Innes CJ and went on to state that:

‘It is for that reason that courts have always held themselves entitled to determine an issue, even though not raised on the pleadings, where that issue has been fully canvassed at the trial and both parties have had every facility to place all the facts before the trial court.’

[29]      Under South Africa’s constitutional dispensation, the Constitutional Court in Salem Party Club and others v Salem Community and others (Association for Rural Advancement as amicus curiae) 2018 (3) BCLR 342 (CC) held, at [77], that

‘Our general approach to pleadings is that they be used to define the issues between the parties, and not that parties are strictly bound to them where it prevents courts from fully investigating the facts placed before them. This is old-established doctrine.’

[30]      In the present matter, the plaintiff alleged in his particulars of claim that he had been a pedestrian at the time of the accident and that the truck had reversed over him.[4] During testimony, the plaintiff stated that he had been holding onto the passenger-side of the truck while it was in motion, attempting to gain access to the cab, when he was thrown off as the truck negotiated a corner and hit a pothole.

[31]      At the conclusion of the trial, the court did not understand either party to rely on the allegation that the plaintiff had been on foot or that the truck had not been travelling in a forward direction at the time for purposes of proving or refuting negligence. Each party has had the opportunity of placing all relevant facts before the court, the result of which being that the issues to be determined are to a large extent based on a set of common cause facts where the discrepancies between the plaintiff’s pleadings and his testimony have no major bearing on the matter. If it had emerged, at the end of the parties’ respective testimonies, that a finding on the negligence of the driver depended on whether the plaintiff had been a pedestrian at the time or whether the truck had reversed over him, then the discrepancies would need to be properly considered and the case law mentioned by the counsel for the defence would have to be applied. But that does not appear to be the position here. It has emerged, after both parties have placed the relevant facts before the court, that the factual position is that the plaintiff had indeed climbed onto the truck and subsequently fallen off after the truck had proceeded for a distance of at least 340 metres. The issue is whether the driver was negligent in those circumstances.

[32]      Accordingly, the court exercises its discretion not to make anything further of the plaintiff’s discrepancies. They do not prevent the court from making a finding on the basis of a set of common cause facts.

Driver’s negligence or other wrongful act

[33]      Within the context of the law of delict, the RAF Act has created a statutory duty on the part of the defendant to compensate a third party for any loss or damage suffered as a result of the negligent driving of a motor vehicle. There are several conditions attached to the above duty, described in terms of sub-section 17(1) of the RAF Act, but a key requirement is that the plaintiff must demonstrate that

‘…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…’

[34]      This stands to reason inasmuch as negligence is a form of fault, which is in turn one of the generally recognised elements of delictual conduct.^[5] South African jurisprudence has developed in such a way as to identify two forms of fault, viz. intention (dolus) and negligence (culpa). With regard to the latter, academic writers have stated that:

‘In the case of negligence, a person is blamed for an attitude or conduct of carelessness, thoughtlessness or imprudence because, by giving insufficient attention to his actions, he failed to adhere to the standard of care legally required of him. The criterion adopted by our law to establish whether a person has acted carelessly and thus negligently is the objective standard of the reasonable person, the bonus paterfamilias.’^[6]

[35]      The classic test for negligence is that contained in Kruger v Coetzee 1966 2 SA 428 (A), where Holmes JA’s observations remain the yardstick with which conduct must be measured against the requirements for negligence (culpa) as a form of fault. The learned judge remarked, at 430, that:

‘For the purposes of liability culpa arises if –

(a)     a diligens paterfamilias in the position of the defendant –

(i)      would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii)     would take reasonable steps to guard against such occurrence; and

(b)     the defendant failed to take such steps.’

This has been constantly stated by this Court for some 50 years. Requirement (a)(ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend on the particular circumstances of each case. No hard and fast basis can be laid down.’

[36]      Another, possibly simpler, way of stating the test is whether the conduct in question falls short of the standard of the reasonable person, without reference to foreseeability or the preventability of damage.^[7]

[37]      It is trite, as counsel for the defence remarked in the defendant’s heads of argument, that the plaintiff bears the onus of proving negligence on the part of the insured driver, on a balance of probabilities. Reference was made to Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 and other cases in that regard.[8] Furthermore, counsel for the defence mentioned National Employers General Insurance v Jagers 1984 (4) 432 (A), where the erstwhile Appellate Division held, at 440D-H, that

‘It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as in a criminal case, but nevertheless where the onus rests on the Plaintiff as in the present case and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the Defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the Plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with the consideration of the probabilities of the case and, if the balance of probabilities favours the Plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the Plaintiff’s case any more than they do the Defendant’s, the Plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the Defendant’s version is false.’

[38]      It was argued by counsel for the defence that the plaintiff provided several versions of the accident: (a) that he had been a pedestrian and that the truck had reversed over him;[9] (b) that he was getting out of the truck when the driver drove off and then reversed over him;[10] (c) that he was getting onto the truck and the driver drove off, causing him to fall;[11] and (d) that he was offered a lift, attempted to get inside the cab when the driver drove off and hit a pothole, causing the plaintiff to fall. So many versions of what actually happened would appear to undermine the plaintiff’s case considerably. Nevertheless, this must be examined more closely.

[39]      Admittedly the difference between the plaintiff’s pleadings and his testimony constitutes the most serious of the discrepancies but the court has already dealt with this aspect and has exercised its discretion in not allowing it to render the plaintiff’s case nugatory. Furthermore, it does not assist the defendant to rely on the discrepancies emerging from a comparison with the report prepared by the orthopaedic surgeon, Mr Watt. The defence did not call him to testify about his report and there seems to be no reason why not to believe the plaintiff’s explanation that the contents thereof are not what was communicated at the time. Mr Watt’s role was to comment on the nature of the injuries sustained, not the precise details of how the accident happened. Turning to the section 19(f) affidavit, there may well have been some hesitation on the part of the plaintiff to accept the contents while under cross-examination, but the record indicates that he indeed confirmed the veracity thereof. Ultimately, the extract quoted to the plaintiff by counsel for the defence accords substantially with the version presented during testimony. The court does not see how any comparison gives rise to a discrepancy.

[40]      The plaintiff was not a model witness. He was, at times, vague and evasive and reluctant to admit obvious inconsistencies. Overall, however, the court is satisfied that his version of the accident was credible. Besides relatively small contradictions in his evidence, he was generally consistent in his narration of the events of 7 September 2017 and maintained his version despite skilful cross-examination. It is indeed probable that the plaintiff was unable to jump to safety while holding onto the passenger-side of the truck and that he had shouted at the driver and two workers inside the cab to stop. Moreover, he was directly caught up in the sequence of events that led to the accident and was able to witness, first-hand, what happened. It cannot be said that his testimony was unreliable. On the face of it, it is certainly probable that the plaintiff climbed onto the truck in an endeavour to gain access to the cab, ostensibly with a view to his securing a lift to his aunt’s trading store, but also, without much doubt, to his obtaining employment, at which the driver simply drove off. It is also probable that the driver ignored the plaintiff’s cries and carried on, regardless.

[41]      The testimony of the witness, Mr Maqashu, is not particularly helpful to the plaintiff. His evidence to the effect that the truck had reversed was not supported by either the plaintiff himself or the driver. Moreover, at an agreed distance of 200 metres away from where the truck had been off-loading, it is improbable that Mr Maqashu could have seen or heard much of value at the time that the plaintiff climbed onto the truck. It is also highly improbable that he could have covered the above distance, separated as he was from the truck by a valley, as it was described during cross-examination, and caught up sufficiently with the truck (travelling at approximately 40 to 60 kilometres per hour, according to the plaintiff) to have been able to have witnessed what occurred. The court is simply unable to accept that Mr Maqashu’s testimony serves to corroborate the plaintiff’s evidence in any way.

[42]      At this point, it becomes necessary to consider the driver’s testimony. He came across as a more credible witness than the plaintiff, demonstrating a more favourable candour and demeanour while on the witness stand, but this aspect forms but a small part of the court’s findings in relation to the value of his evidence as a whole. The question of probabilities is the foremost of the court’s concerns. In that regard, it may be better to start the enquiry at the point when the plaintiff fell off the truck rather than when he climbed on. This is because the circumstances pertaining to when, how and why he climbed on and attempted unsuccessfully to gain access to the cab while the truck was in motion are not entirely clear. However, it is common cause that the plaintiff fell off the truck while it negotiated a corner at an intersection. It is also common cause that the plaintiff had held onto the passenger-side of the truck, while attempting to gain access to the cab, and that the driver had been aware of his presence on at least one occasion during the time that the truck was in motion.

[43]      To ride on the step or steps on the passenger-side door of a ten-ton truck travelling over a badly potholed gravel road is a particularly dangerous thing to do. This hardly needs to be stated. Common sense tells us that the chances of falling off and sustaining injury are relatively high. With this in mind, the question that immediately arises is why the driver did not stop the truck. In many ways, this question lies at the heart of the case.

[44]      The driver’s testimony was to the effect that he never saw the plaintiff when the latter climbed onto the truck on the third occasion, after the driver had stopped and ordered him off on the previous two occasions. That forms the crux of the defence. The defendant argues that it cannot be held liable inasmuch as the driver was not negligent in the circumstances. He had not foreseen the reasonable possibility of his conduct causing injury to the plaintiff and had not stopped the truck simply because he had not been aware of the plaintiff’s presence while continuing on his journey. With reference to the defendant’s plea, the plaintiff was the author of his own misfortune.

[45]      Having carefully considered the pleadings and the record, the court is ultimately not persuaded that the defence has merit. According to the driver, he stopped the truck on the first occasion to tell the plaintiff to climb off after having proceeded for only two to three metres. He stopped the truck on the second occasion after having travelled a similar distance. This would mean, on the driver’s version, that he had then driven the truck for at least a further 340 metres, using the measurements agreed upon by the parties, before the accident occurred. It is implausible that the driver was not aware of the plaintiff’s presence. He had seen the plaintiff on the first occasion and stopped. He had seen the plaintiff on the second occasion and stopped. Why did this not happen on the third occasion? Given the pattern of the plaintiff’s conduct on the driver’s version, a diligens paterfamilias in the position of the driver would surely have checked, again, before driving off, to ensure that the plaintiff had not repeated his previous attempts to gain access to the cab, as reckless as they may have been.

[46]      A further difficulty that the court has with the driver’s version is that it is implausible that neither of the two workers who accompanied him saw the plaintiff on the third occasion and said anything about his presence to the driver. They would have witnessed the previous interactions between the driver and the plaintiff. It is not unreasonable to expect that either or both would have glanced back at the plaintiff as the truck moved off, to see what he would do next. For neither to have done so and for neither to have seen the plaintiff as he clung to the passenger-side of the truck, immediately outside the cab, simply doesn’t ring true. Over a distance of at least 340 metres, it is difficult to believe that one or more of the occupants of the cab would not have heard or seen the plaintiff shouting at them or making some attempt to draw their attention to his plight. It may have been of assistance to the defendant to have called the surviving witness to corroborate the driver’s account, but this was never done.

[47]      In the circumstances, the court is unable to accept that the driver had not been aware of the plaintiff’s presence at the time that the accident occurred. A diligens paterfamilias in the position of the driver would have foreseen the reasonable possibility that his continuing to drive the truck would cause injury to the plaintiff and would have stopped, even were it for the third time. The driver failed to do so.

[48]      Using the classic test set out in Kruger, this court is satisfied that the driver was negligent. Similarly, on the basis of the simpler test applied in Minister of Safety and Security v Carmichele 2004 3 SA 305 (SCA) and other cases,[12] the court is persuaded that the conduct of the driver fell short of the standard of the reasonable person.

[49]      Notwithstanding the above, the matter does not end there. The next enquiry is whether the court is required to apply the provisions of the Apportionment of Damages Act 34 of 1956 and if so, then how this must be undertaken.

Plaintiff’s contributory negligence

[50]      At the outset, it must be said that neither party has claimed apportionment. The plaintiff has alleged that the sole cause of the collision was negligence on the part of the driver.[13] The defendant has denied the allegation and pleaded that the plaintiff was negligent and the author of his own misfortune.[14]

[51]      The authorities indicate that a failure to claim apportionment is not necessarily fatal. In AA Mutual Insurance Association Ltd v Nomeka [1976] 3 All SA 310 (A), the erstwhile Appellate division held, at 318, that:

‘The weight of the decisions is, therefore, that provided the plaintiff’s fault is put in issue, an apportionment need not be specifically pleaded or claimed. This is the correct view, in my opinion.’^[15]

[52]      In relation to Act 34 of 1956, the court went on to state, also at 318, that:

‘The Act has become part of our law of delict. It has supplanted the former all-or-nothing effect in this respect. I agree… that upon a determination of issues properly raised in the pleadings the Court must give judgment in accordance with the imperative direction of section 1 of the Act.’

[53]      Accordingly, the failure on the part of the parties in the present matter to claim or plead apportionment is not fatal. Counsel for the parties never raised the subject in argument and appeared to have accepted that this was a matter to be decided on an all-or-nothing basis. Nevertheless, AA Mutual Insurance is authority for the proposition that a court is enjoined to give effect to the provisions of Act 34 of 1956 in circumstances where the fault of the plaintiff has been placed in issue. Academic writers support such proposition.[16]

[54]      The provisions in question provide as follows:

‘1.           Apportionment of liability in case of contributory negligence.–(1) (a) Where any person suffers damage which is caused partly by his own fault and party by the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the claimant but the damages recoverable in respect thereof shall be reduced by the court to such extent as the court may deem just and equitable having regard to the degree in which the claimant was at fault in relation to the damage.

(b)                 Damage shall for the purpose of paragraph (a) be regarded as having been caused by a person’s fault notwithstanding the fact that another person had an opportunity of avoiding the consequences thereof and negligently failed to do so.’

[55]      The legislation in question is regarded as having abolished the all-or-nothing rule of the common law, allowing the apportionment of damages between parties when there is contributory negligence.[17]

[56]      Returning to the facts at hand, the court is persuaded that, on a balance of probabilities, the plaintiff’s driving was negligent. However, the question of the plaintiff’s possible contributory negligence must also be resolved.

[57]      It is common cause that the plaintiff had climbed onto the passenger-side of the truck and attempted to gain access to the cab while the truck was in motion. Nevertheless, the circumstances surrounding the driver’s climbing onto the truck are murky. On the plaintiff’s version, the truck had been stationary when he placed his feet on the step or steps on the passenger-side door, held onto the mirror with his left hand and attempted to open the door with his right hand. The truck had departed while the plaintiff was still trying to gain access to the cab. He testified that he had continued to hold on because the truck was moving too fast for him to jump off. For his part, the driver testified that the plaintiff had asked him for work, to which he had said no and then driven off, only to discover that the plaintiff had climbed onto the passenger-side of the truck.

[58]      Not one of the witnesses stated that the door to the cab had been open at the time to permit the plaintiff’s entrance thereto. Moreover, the driver and two workers were already inside the cab. Overall, this suggests that the plaintiff’s assertion to the effect that the driver had agreed to give him a lift to his aunt’s trading store is not entirely plausible.

[59]      A further source of concern is that the plaintiff’s statement to the effect that the truck had departed quickly and in such a manner as was too fast for him to jump off is not wholly believable. It is not probable that a ten-ton truck would have overcome its inertia and accelerated so suddenly from a stationary position as to have prevented the plaintiff from jumping to safety. A ten-ton truck is not a sports car. It is more likely that the driver would have engaged the gears, removed the brake, and proceeded slowly at first, steadily gathering momentum as he went. Yet the plaintiff chose to hold on, most likely in the vain hope of persuading the driver to admit him to the cab, either for purposes of visiting his aunt’s trading store or for purposes of eventually securing temporary employment.

[60]      Given the situation described above, the plaintiff’s conduct, on his own version, falls short of the standard of a reasonable person. He ought to have anticipated that by refusing to jump off at the moment that the truck began to depart, he was placing himself in danger. Accordingly, the court is persuaded that there was contributory negligence on the plaintiff’s part and that the provisions of Act 34 of 1956 must be applied.

[61]      Although possibly still open to a measure of debate, it seems to be mostly settled law that a court is required to assess the comparative culpability of the parties in relation to the damages.[18] In Jones NO v Santam Bpk 1965 2 All SA 354 (A), Williamson JA commented on the approach adopted by the erstwhile Appellate Division in South British Insurance Co Ltd v Smit 1962 3 All SA 548 (A) and held, at 363, that

‘It is important to note the statement that it is “the respective degrees of negligence” of the parties which has to be determined, not only the degree of any negligence on the part of the claimant… A determination of the degree of fault on the part of the claimant does not by itself “automatically determine the degree in which the defendant was at fault in relation to the damage”; the Court must first also determine in how far the defendant’s “acts or omissions, causally linked with the damage in issue, deviated from the norm of the bonus paterfamilias”. It is on the basis of comparison between the respective degrees of negligence of the two parties (or several parties if there be more than one claimant or defendant) that the Court can determine in how far the fault or negligence of each combined with the other to bring about the damage in issue.’

[62]      The extent to which a party’s conduct deviated from the norm of the bonus paterfamilas is often expressed as a percentage, although this is not prescriptive. Rather, it would appear to be simply one particular method that has been adopted. Overall, the court maintains a discretion to determine what method would best gauge how the respective degrees of fault of the parties combined to bring about the damage that forms the basis of the claim.[19]

[63]      In ZS-SVN Syndicate v 43 Air School (Pty) Ltd (Onions intervening) [2007] JOL 20859 (E), Froneman J, as he was then, commented on the uncertainty in the literature with regard to the tests for determining the respective degrees of fault under the relevant legislation. However, he observed, at [45], that

‘Whatever the correct explanation for any possible difference in approach may be, it seems to me that the requirement of a “just and equitable” apportionment in section 1(1)(a) of Act 34 of 1956 allows for a broader assessment than a mere mechanical or mathematical calculation…’

[64]      This court respectively agrees with the above approach. In the circumstances of the present matter, it is with great difficulty that any attempt can be made to allocate a percentage to the respective parties in relation to the degree to which their acts or omissions deviated from the norm of the bonus paterfamilias. To that effect, what precisely is the measurement of a reasonable person? At what exact point does a reasonable person become unreasonable? In short, the method of allocating a percentage to the conduct of a litigant in relation to the conduct of a reasonable person seems to impose too scientific or too mathematical an approach to the concepts of justice and equitability contemplated under sub-section 1(1)(a) of Act 34 of 1956.

[65]      For purposes of the present matter, it is clear to the court that, at the least, the driver’s deviation from the norm of a reasonable driver was more than the plaintiff’s deviation from the norm of a reasonable person in the circumstances of the case. The driver’s failure to stop the truck falls far short of what would have been expected from a reasonable driver. In contrast, the plaintiff’s decision to hold onto the truck as it departed was also short of how a reasonable person would have conducted him- or herself but there would always have been the possibility, in the plaintiff’s mind, that the driver would stop the truck, thereby avoiding the injuries with which the plaintiff is now burdened.

Relief to be granted

[66]      Consequently, the court is satisfied that the plaintiff has proved his claim on a balance of probabilities. This finding is limited, of course, to the question of liability.

[67]      The question of quantum must still be determined. However, it would appear to be just and equitable for the court to reduce by 25% such damages as are recoverable by the plaintiff from the defendant.

Order

[68]      In the circumstances, the following order is made:

(a)    the defendant is liable for the damages suffered by the plaintiff and is ordered to pay such quantum as will be determined, subject to the paragraph below;

(b)   the quantum, as determined, shall be reduced by 25% in accordance with the provisions of sub-section 1(1)(a) of Act 34 of 1956;

(c)    the defendant is liable for the plaintiff’s costs with regard to the proceedings on the question of liability.

____________________

JGA LAING

ACTING JUDGE OF THE HIGH COURT

*Judgment delivered by email to the parties on 26 May 2020, by reason of the COVID-19 restrictions imposed under the regulations made in terms of the Disaster Management Act 57 of 2002.

Appearances:

For the plaintiff:                                  Adv N Sandi

Instructed by:                                      Msitshana Attorneys

                                                            20 Belgravia Crescent

                                                            Belgravia

                                                            EAST LONDON

                                                            Tel: 043 722 0603

                                                            Fax: 043 722 1291

Email: msitshanaincorporated@telkomsa.net; amoluse14@gmail.com

                                                            Ref: Mr Msitshana

For the defendant:                              Adv K Watt

Instructed by:                                      Smith Tabata Attorneys

                                                            12 St Helena Road

                                                            Beacon Bay

                                                            EAST LONDON

                                                            Tel: 043 703 1843

                                                            Fax: 086 456 0655

Email: amyb@smithtabata.co.za

Ref: Ms Beaumont

As instructed by:                                                        

Friedman Scheckter

                                                            75 Second Avenue

                                                            Newton Park

                                                            PORT ELIZABETH

                                                            Tel: 041 395 8416

                                                            Fax: 041 363 1727

                                                            Email: odette@lawprop.co.za

                                                            Ref: Ms Phillips

 

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