DOG BITES: LIABILITY CLAIMS

There have lately been a lot of news articles regarding children, elderly people and the public in general that has been mauled by vicious dogs.

Homeowners should therefore be aware that they can attract liability and if you own a dog that protect your premises, always make sure that your dog is inside your premises and that you have the necessary liability insurance in place.

If someone is bitten by your dog, that person can institute a liability claim against you as the owner of the dog under the actio de pauperie for harm caused by domesticated animals.

Under this actio, a victim of a dog bite can claim damages from a dog owner without having to prove fault.

In a recent Eastern Cape High Court matter of Cloete v Van Meyeren, the Plaintiff instituted a claim for damages against a dog owner under the actio de pauperie.

The Plaintiff was attacked when three dogs escaped from the owner’s property, after a third party intruder had opened the locked gate.

The dog owner denied liability as he has not opened the locked gate, but the Plaintiff did not do anything to provoke the dogs and was lawfully present in the public road when the attack took place. The Plaintiff lost his left arm and instituted a claim of R2.4 million. The Court found in favour of the Plaintiff on the separated issue of liability in the judgment.

The above defence of actio de pauperie was confirmed in the judgment of Lever v Purdy 1993 (3) SA 17 (AD) where a dog owner was absolved of liability on the basis that the control of the animal had been delegated to a third party and that the third party failed to adopt reasonable precautionary measurements to prevent the animal from injuring the victim when he could and should have done so.

In order to succeed with the recognised defence, a dog owner would have to prove that he delegated control of the animal and that the controller was negligent in exercising control over the dog.

Should this defence succeed, the victim may have a claim in delict against the controller under the actio legis aquilae.

In the case on hand, namely the Cloete case, it was argued on behalf of the dog owner that the recognised defence should be extended to include negligence of an intruder, who did not exercise control over the dogs, but merely left the gate open. The argument finds support in the dictum of Le Roux v Fick (1879) 9 Buch 29 where it was said that, “… an actio de pauperie lay in all cases of damage caused by animals when the damage was brought about through the fault of the party issuing the animal or some third party.”

The Judge acknowledged that in the Cloete case, the extensive finds some support in Le Roux v Fick, the Court ultimately held that the extension of the pauperian defence to include a defence founded on a third party’s negligence who was not in control of the dogs is not justified by logic nor by the existing rules in respect of pauperian liability.

The above is an extract of an article that appeared on Bizcommunity.com and was written by Willie van Wyk, a Director and Marissa van der Westhuizen, a candidate attorney at Cliffe Dekker Hofmeyr.

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DISCLAIMERS

 

These days disclaimers are everywhere, we find them in shopping centres, garages, schools, restaurants, etc. All of them have one thing in common and that is to deny responsibility intending to prevent civil liability arising for particular acts or omissions.

Disclaimers are frequently made to escape the effects of the torts of negligence and of occupiers’ liability towards visitors.

A typical disclaimer will read as follows: “We do not accept responsibility for any injuries, loss or damage to any person whatsoever when entering this area”.

There are also disclaimers for websites, emails, products, etc and all of them are to deny responsibility to prevent civil liability.

The importance of disclaimers at shopping centres came under the spotlight in a recent personal injury case of Hanson v Liberty Group Limited and two others 20212 JOL 28202 (GSJ) as well as an unreported matter of Niemand vs Old Mutual Investment Group Property Investments (Pty) Ltd.

In both matters, the Courts had to decide whether the positioning and wording of the disclaimer notices were adequate to relieve the Defendants of liability for damages sustained by the Plaintiffs.

In both cases, it was held that the positioning of the disclaimer notices was found to be inadequate. The Courts held however and confirmed that the legal principals to disclaimers notices remain unchanged.

The enforceability of a disclaimer notice came into question in the matter of Hanson v Liberty Group after the Plaintiff, who was a passenger in a vehicle that entered the Sandton City shopping complex parking area, fell in the parking area of the mall by tripping over an elevated expansion joined cover. The Defendant (being the owners of the shopping complex) pleaded that the disclaimer notice had been displayed at the entrances to the mall and that the Defendant should therefore be exempted from liability for the injuries sustained by the Plaintiff.

In this matter the notice containing the disclaimer, was positioned in such a way that only the driver of the vehicle entering the parking lot was able to read it, but not the passenger. The Court held therefore that any person other than the driver would not have realised that the notice refers to him or her and would have been entitled to ignore it. As such, the Court held that the Defendant did not do what was reasonably sufficient to give the Plaintiff notice of the terms of the disclaimer.

The Consumer Protection Act of 2008 (“the CPA”) has brought in stringent requirements which control the use of exemption provisions in consumer agreements. The introduction of the CPA has led to any such signs or provisions being interpreted strictly and most likely in favour of the consumer.

The CPA has therefore placed a significant burden on the supplier to ensure that the nature and effect of the provision/notice is drawn to the attention of the consumer in conspicuous manner and form that is likely to draw the attention of an ordinarily alert consumer, considering the specific circumstances.

It is therefore very important that when a company erects a disclaimer that the type of the premises and the layout will play a role in determining whether the disclaimer was displayed in a conspicuous manner.

A company should therefore take into account that any disclaimer notice must be visible and large enough to be seen and read.

The notice must also appear at various locations in sufficient numbers and more specific where the risk might occur.

Since 1950 various cases have been heard in our Courts re disclaimers and a list of most relevant cases appear hereunder:

   

YEAR

 

CASE NAME

 

SUMMARY

 

1

 

1950

 

Frocks Ltd v Dent and Goodwin (Pty) Ltd 1950 (2) SA 717 (C)

 

Disclaimer notice – included at the bottom of a warehouse invoice exempting the shippers from liability in respect of goods received and stored.

 

2

 

1958

 

George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A)

 

Contractual disclaimer – signing of hotel register exempts hotelier from liabilities

 

3

 

1958

 

SAR & H v Lyle Shipping Company Limited 1958 (3) SA 416 (A)

 

Contractual disclaimer – exemption of liability for negligence

 

4

 

1963

 

Van Wyk v Otten 1963 (1) SA 415 (O)

 

Contractual disclaimer – seller of vehicle exempt from liability for latent defects

 

5

 

1973

 

Boshoff v Prinsloo 1973 (1) PH J 16

 

Oral disclaimer relying on words said to the plaintiff – “as daar ‘n balls-up is, is dit jou worries” – defence not upheld

 

6

 

1973

 

Galloon v Modern Burglar Alarms (Pty) Ltd 1973 (3) SA 647 (C)

 

Contractual disclaimer – burglar alarm company exempt from liability for damage resulting from non-operation of the alarm

 

7

 

1973

 

Santam Insurance Co Ltd v Vorster [1973] 4 All SA 558 (A)

Verbal disclaimer – passenger’s knowledge and appreciation of the danger will ordinarily suffice to establish the “consent” exempting driver from liability for damages resulting from an accident
 

8

 

1978

 

Government of the RSA v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794

 

Contractual disclaimer – storage company absolved from all responsibility for loss of or damage incurred while the goods are in their care or on their premises.

 

9

 

1985

 

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A)

 

Contractual disclaimer – engineers exempt from liability for damage resulting from their professional work

 

10

 

1986

 

Berman Brothers   (Pty) Ltd v   Sodastream Ltd and Another [1986] 2 All SA 252 (A)

 

Disclaimer by conduct – where someone has used in relation to his goods the trade mark

of another, they can avoid liability for infringement on the ground that the public ,at the time of purchase, became aware of the fact that the goods were those of the alleged infringer

and not those of the proprietor or registered user of the trade mark

 

11

 

1986

 

South Eastern Auto Rental Services (Pty) Ltd t/a Swans Rent a Car v Sank Bros Holdings (Pty) Ltd t/a Market Toyota [1986] 4 All SA 88 (C)

 

Disclaimer notice – notice on invoice exempting repair garage from liability for damage to client’s car

 

12

 

1989

 

Lawrence v Kondotel Inns (Pty) Ltd 1989 (1) SA 44 (D)

 

Disclaimer notice – sign board at hotel stating that management exempt from liability for accidents resulting from horse riding

 

13

 

1989

 

Zietsman v Van Tonder en ‘n Ander [1989] 3 All SA 124 (T)

 

Contractual disclaimer – entry permit exempting game reserve from liability for injury

 

14

 

1993

 

Elgin Brown and Hamer v Industrial Machinery Suppliers (Pty) Ltd 1993 (3) SA 424 (A)

 

Contractual disclaimer – exemption of liability for workmanship and materials

 

15

 

1994

 

Dlovo v Brian Porter Motors Ltd t/a Port Motors Newlands 1994 (2) SA 518 (C)

 

Contractual disclaimer – Mechanic exempt from liability for damages

 

16

 

1995

 

Minister of Education and Culture (House of Delegates) v Azel and Another 1995 (1) SA 30 (A)

 

Indemnity – guardian of minor signing indemnity for minor on school tour

 

17

 

1995

 

Payne v Minister of Transport 1995 (4) SA 153 (C)

 

Contractual disclaimer – visitor upon entering premises signs document exempting owner of premises from liability for injuries sustained on premises

 

18

 

1996

 

Booysen v   Sun International Bophuthatswana Ltd Case number 96/3261, unreported (W)

 

Disclaimer notice – sign board at hotel stating that you enter, ride or use the facilities at your own risk

 

19

 

1996

 

Visagie v Transsun (Pty) Ltd [1996] 4 All SA 702 (Tk)

 

Contractual disclaimer – exemption clause stating that management exempt from liability for accidents resulting from horse riding

 

20

 

1997

 

Goodman Brothers (Pty) Ltd v Rennies Group Limited 1997 (4) SA 91

 

Contractual disclaimer – clause exempting the employer from liability employee’s theft from which the employer would not benefit

 

21

 

1999

 

Durban’s Water Wonderland v Botha 1999 (1) SA 982 (AD)

 

Disclaimer notice – sign board at ride at fun fair stating that management not liable for injuries

 

22

 

2000

 

Fourie v Hansen and another [2000] 1 All SA 510 (W)

 

Contractual disclaimer –   clause in rental agreement   excluding liability for damages   for breach of agreement

 

23

 

2000

 

Stewart and another v Appleton Fund Managers [2000] 3 All SA 545 (N)

 

Contractual disclaimer – Fund- and portfolio manager exempt from liability for any damage suffered by client arising from mandate to manage investment portfolio

 

24

 

2001

 

Zeda Car Rental (Pty) Ltd t/a Avis Rent-A-Car v Fourie (Curatrix ad Litem to De Waal) and Another 2001 JDR 0684 (SCA)

 

Contractual disclaimer – clause exempting car rental company from liability to the injured occupants of the vehicle for damages

 

25

 

2001

 

Sun Couriers   (Pty) Ltd v   Kimberley Diamond Wholesalers [2001] 2 All SA 646 (NC)

 

Contractual disclaimer – Dispatch note of courier company containing disclaimer limiting courier’s liability in case of loss of parcel

 

26

 

2001

 

First National Bank of SA Ltd v Rosenblum 2001 (4) SA 189 (SCA)

 

Contractual disclaimer – bank exempt from liability for theft by employees

 

27

 

2002

 

Van der Westhuizen v Arnold [2002] 4 All SA 331 (SCA)

 

Contractual disclaimer – seller of vehicle excluding implied warranties

 

28

 

2002

 

Afrox Healthcare (Pty) Ltd v Strydom 2002 (6) SA 21 (SCA)

 

Contractual disclaimer –   indemnity clause stating   that private hospital   not liable for negligence of nursing staff

 

29

 

2003

 

ABSA Bank   Ltd v Fouche 2003   (1) SA 176 (SCA)

 

Contractual disclaimer – exempting bank from liability for loss or damage to contents of a safety deposit box

 

30

 

2003

 

Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing v Government of the United Kingdom [2003] 3 All SA 496 (SCA)

 

Contractual disclaimer – exemption clause on faxed quotation exempts contractor form any loss or damage suffered by employer

 

31

 

2004

 

Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA)

 

Contractual disclaimer – rules of golf club exempts club from liability for member’s personal injury or harm – not exempt of liability for widow’s loss of support

 

32

 

2005

 

Consol Ltd t/a Consol Gass v Twee Jonge Gezellen (Pty) Ltd and Another 2005 (6) SA 1 (SCA)

 

Contractual disclaimer – clause in supply agreement limiting manufacturer’s liability for defective goods

 

33

 

2005

 

Katzeff v Canal Walk Limited t/a Canal Walk and Others (10293/03) [2005] ZAWCHC 58

 

Indemnity – third party signing indemnity on behalf of a minor

 

34

 

2006

 

Tsogo Sun Holdings (Pty) Ltd v Qing-He Shan and Another 2006 (6) SA 537 (SCA)

 

Disclaimer notice –   exempting Casino from damages (duty   of care to   protect patrons against each other)

 

35

 

2007

 

Drifters Adventure Tours CC v Hircock 2007 (2) SA 83 (SCA)

 

Contractual disclaimer – passenger on tour bus signed indemnity form exempting operator’s liability for driving

 

36

 

2007

 

Walker v Redhouse 2007 (3) SA 514 (SCA)

 

Contractual disclaimer – indemnity signed by horse rider exempting owner of horse from liability for injuries sustained by horse rider while riding

 

37

 

2007

 

ER24   Holdings     v   Smith   NO     and   another [2007] 4 All SA 679 (SCA)

 

Contractual disclaimer – exemption clause exempting emergency service operator from liability for loss, damage or injury of volunteer worker

 

38

 

2008

 

Mercurius Motors   v Lopez 2008 (3)   SA 572 (SCA)

 

Contractual disclaimer – Clause in contract of deposit exempting depositary from liability for loss by theft

 

 

39

 

2008

 

Masstores   (Pty)     Ltd   v   Murray     &   Roberts Construction (Pty) Ltd and Another 2008 (6) SA 654 (SCA)

 

Contractual disclaimer – exemption clause indemnifying contractor against claims by third parties

 

40

 

2010

 

Jacobs v Imperial Group (Pty) Ltd [2010] 2 All SA 540 (SCA)

 

Disclaimer notice – sign board at vehicle repair centre stating that vehicle left at owner’s risk

 

41

 

2010

 

Viv’s Tippers (Edms) Bpk v PHA Phama Staff Services (Edms) Bpk h/a PHA Phama Security 2010 (4) SA 455 (SCA)

 

Contractual disclaimer – security company exempt from liability for loss of owner of property

 

42

 

2010

 

Swinburne v   Newbee Investments (Pty)   Ltd

2010 (5) SA 296 (KZD)

 

Contractual disclaimer – clause in lease agreement exempting landlord from liability for any damage suffered by tenant

 

43

 

2011

 

Freddy Hirsch   Group (Pty) Ltd   v Chickenland (Pty) Ltd 2011 (4) SA 276 (SCA)

 

Contractual disclaimer – exemption clause exempting supplier of product from liability for defect in goods supplied

 

44

 

2011

 

Hanson v Liberty Group Ltd (4633/2009) [2011] ZAGPJHC 195

 

Disclaimer notice – sign board at entrance of shopping mall stating that owner and operator of mall exempt from liability for injuries of visitors

 

45

 

2012

 

Niemand v Old Mutual Investment Group Property Investment (Pty) Ltd (35421/2009) [2012] ZAGPPHC 87

 

Disclaimer notice – sign board at entrance of shopping mall stating that owner of mall exempt from liability for injuries of visitors

 

46

 

2012

 

Mercedes-Benz South   Africa (Pty) Limited   v Buffalo City Municipality 2012 JDR 1770 (ECG)

 

Contractual disclaimer – indemnity clause   sating that supplier of electricity not liable to manufacturer for fluctuations in voltage

 

47

 

2012

 

Naidoo v   Birchwood Hotel 2012 (6)   SA 170 (GSJ)

 

Contractual disclaimer – Hotel registration card disclaiming liability for injury caused by negligence of staff

 

48

 

2013

 

M J   Reinecke v Intercape   Ferreira Mainliner (Pty) Limited 2013 JDR 1045 (ECG)

 

Contractual disclaimer – passenger on bus signed disclaimer that bus company not liable for injuries of passenger

 

49

 

2015

 

Tallman v MV “Shark Team” 2015 JDR 0006 (WCC)

 

Contractual disclaimer – Indemnity form signed by tourist on shark-diving boat – Exclude liability to dependant for death of breadwinner

 

50

 

2015

 

Klassen v Blue Lagoon Hotel and Conference Centre [2015] 2 All SA 482 (ECG)

 

 

 

Disclaimer notice – sign board at hotel stating that hotel would not be responsible for

any personal injury to guests

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ROUTE MARKERS: IMPORTANT TO IDENTIFY AN ACCIDENT SCENE AND HOW TO READ THEM

It is very important to identify the exact spot where the accident occurred, and one can make use of the route markers along the road.

One however needs to understand how these route markers can be read.

What motorists need to know:

  • The markers are placed at 200m intervals and the markers with the TRAC assist number are placed at two kilometre intervals;
  • The kilometre-marker is not a legislated obligation, but is a SANRAL (South African National Roads Agency) standard on all national roads.

The meaning of each of the points on the board means:

  • N3 – road or route on which you are travelling
  • 5 – indicates the sections of the N4 route on which you are travelling
  • 14.0 – indicates the kilometre position on the route section
  • N – indicates the direction in which you are travelling, in this case it means north
  • TRC assist number – the emergency number to all in case of emergency or roadside assistance on the N3 Toll Route

These signs are of significant importance to road users. The road user should know that in case of emergency he would be able to pinpoint his location to emergency services by providing the detail on the marking closest to him. He should be able to find this information by merely moving 100 metres to his left or right.

 

 

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WHEN IS THE OWNER OF A VEHICLE PROPERLY IDENTIFIED

 

The above issue was heard in the matter of Jones, AA and Road Accident Fund, Case Number 33711/2016, High Court of South Africa, Gauteng Division.

JONES V RAF 2019 (1) SA 514

Agreed facts:

The Plaintiff and Defendant agreed that the dispute be adjudicated on the following agreed facts, which are only agreed for purposes of deciding on the issues set out below, but still either must be proved by the Plaintiff in the ordinary course or admitted by the Defendant if the stated case is decided in favour of the Plaintiff.

  1. The action instituted in terms of the Road Accident Fund, 56 of 1996 (hereafter “the Act”) arises from bodily injuries sustained by the Plaintiff (whilst being the driver of his vehicle) in a motor vehicle accident, which occurred on 17 February 2012 on the road between Orkney and Stilfontein;
  2. The accident occurred when a rock, forming part of gold ore transported fell from or became dislodged from a heavy motor vehicle/truck trailer combination (“the insured vehicle”), and penetrated the windscreen of the Plaintiff’s vehicle and struck the Plaintiff on his head;
  3. The accident was allegedly caused by the negligence of the driver of the insured vehicle, which conveyed the ore;
  4. The driver of the insured vehicle could not be identified, a series of vehicles and their owners were subsequently identified, one of which probably conveyed the ore at the time and of which the details are set out in the Particulars of Claim; and
  5. The Plaintiff’s claim was lodged more than two years after the date on which the cause of action arose, i.e. too late for a claim in terms of Section 17(1)(b) of the Act (read with Regulation 2(1)), but in time for a claim in terms of Section 17(1)(a) thereof.

The parties agreed that the following issues served to be adjudicated:

  1. Is the Plaintiff’s claim a claim as contemplated in Section 17(1)(a) of the Act or is it a claim to be adjudicated in terms of and subject to Section 17(1)(b) read with Regulation 2(1)(b) of the Regulations promulgated in terms of the Act.
  2. Has the Plaintiff’s claim accordingly became prescribed for want of lodging it within the prescribed two years contemplated in Regulation 2(1)(b) or has it been timeously lodged?

Plaintiff’s case

  1. The fact that a group of vehicles and their owners were identified of which one was the vehicle from which the ore fell and injured the Plaintiff, is sufficient identification to place the claim outside the envisaged scope of Section 17(1)(b) of the Act and Regulation 2(1)(b) of the Regulations promulgated in terms of the Act;
  2. This means that the insured vehicle was not a vehicle where the identity of the owner has not been established albeit that the identity of the driver has not been established;
  3. The claim is therefore a claim which falls within the scope of Section 17(1)(a) of the Act, being a claim where the identity of the owner of the vehicle has been established and that it was accordingly timeously lodged.

The Plaintiff’s counsel argued, amongst other, that:

  1. The owner of a vehicle can easily be identified if the vehicle’s registration number is available due to the Motor Vehicle License Registration System used in South Africa;
  2. The claim was factually lodged and formulated in terms of Section 17(1)(a) because 23 vehicles were identified, one of which probably caused the accident;
  3. The owners of these vehicles were identified;
  4. The only unidentified aspect of the claim is that the driver of the vehicle at the time has not been identified.
  5. According to the Plaintiff, the only requirement that the Plaintiff will have to prove, is that one of the vehicles of those owners for whom the RAF assumes statutory liability, was probably the vehicle which ran him over (or, on the facts of this case, which dislodged or dropped the ore).

The Defendant’s case is stated as follows:

  1. The insured vehicle was a vehicle contemplated in Section 17(1)(b) of the Act and Regulation 2 viz. One of which neither the identity of the driver nor the owner has been established; and
  2. The claim has become prescribed because it was lodged more than two years after the cause of action arose.

The Defendant argued that the Plaintiff does not know what vehicle caused the damage and therefore the claim falls within the ambit of Section 17(1)(b).

The question before the Court is whether, where an accident is caused in circumstances where it is not possible to identify a specific vehicle as “the insured vehicle”, but it is possible to identify a series of vehicles (and their owners), one of which probably caused or contributed to the accident at the time and place where the incident occurred, the claim falls in the category of what is often referred to as an “identified” claim as oppose to an “unidentified” or hit-and-run claim.

The Court came to the following conclusion:

In the current case, a series of vehicles and their owners were identified, 23 vehicles to be precise, respectively linked to one of nine different vehicle owners, one of which probably conveyed the ore at the time (one being in the alternative to the other). This scenario is to be distinguished from a multi-vehicle accident where more than one vehicle was undeniably involved in the collision, but the degree of fault of each driver needs to be determined. In the current case, the driver and/or owner of only one out of 23 probably caused the Plaintiff’s damages. The vehicle is not identified, and as a consequence neither can the identity of the driver or owner from whose vehicle the gold carrying ore fell, be established prima facie on a balance of probabilities. On the facts as accepted for purposes of deciding the stated case, the Plaintiff is not able to show the causal link between any specific vehicle being driven at a specific time, and the damages that he suffered. It subsequently follows that, on these facts, the claim had to be instituted in accordance with Section 17(1)(b).

On the facts accepted for purposes of the stated claim, the Plaintiff’s claim accordingly became prescribed for want of lodging it within the prescribed two years contemplated in Regulation 2(1)(b) and falls to be dismissed with costs.

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Can a driver in a single vehicle accident claim from the Road Accident Fund ?

 

When it comes to single motor vehicle collisions, we normally conclude that the driver was solely responsible and that the Road Accident Fund is not liable to compensate.

One should actually have a closer look at the provisions of Section 17(1) of the Road Accident Fund Act.

On 29 March 2018 the Supreme Court of Appeal delivered a judgment in a matter of the Road Accident Fund vs Abrahams (276/2017) [2018] ZASCA 49.

In this judgment, it was held that the driver in a single vehicle accident is entitled to claim under the provisions of Section 17 of the Act.

The section clearly states that liability can arise out of blameworthy conduct of the owner of the insured vehicle. Furthermore, in certain circumstances, this may have nothing to do with the actual driving of the vehicle.

On 5 February 2011 Mr Abrahams (the Respondent) was involved in a single motor vehicle accident. The vehicle he was driving (insured vehicle) was owned by his father’s employer, Secuco Food Manufacturers (the insured owner). While driving, the tyre burst causing the vehicle to leave the road and overturned. The Respondent, Mr Abrahams, sustained severe injuries and subsequently instituted action in the Western Cape Division of the High Court against the Road Accident Fund (the Appellant) for damages. The Respondent alleged that the accident occurred because the insured owner had failed to maintain vehicle’s tyres in a roadworthy condition.

In the High Court the Appellant’s (Road Accident Fund) arguments was based on three assertions.

First, that because there was no employer/employee relation between the Respondent and the insured owner and the insured was not entitled to claim any compensation in terms of the Act.

Secondly, that the Respondent’s use of the insured vehicle was unauthorized and fortuitous.

Thirdly, that no legal duty could be attributed to the insured owner in relation to the Respondent.

In response to the Appellant’s contention that the driving of the vehicle was unauthorized, the Respondent led the evidence of his father. His father testified on his behalf that his duty include delivery baked goods using the insured vehicle. On days when he was unable to deliver, he asked the Respondent to fulfil those duties on his behalf.

It was on one of these delivery days that the accident took place.

The crux of the evidence was that at the time of the accident, the Respondent was driving the insured vehicle with the insured owner’s consent. Based on this evidence, the Court found that the Appellant was liable to compensate the Respondent as he was acting in his capacity of a subcontractor at the time of the accident. The Appellant took his decision to the SCA.

The SCA ruled that it was not necessary for the High Court to base the Respondent’s claim on him being a subcontractor of the insured owner, the Court’s reasoning was wrong. However, the SCA still had to determine whether the Appellant was liable in terms of the Road Accident Fund.

The SCA had to determine whether a driver in a single motor vehicle accident is entitled to claim under the provisions of Section 17(1) of the Road Accident Fund.

The SCA considered the following six liability elements to the Section:

(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.

The Appellant did not dispute liability of elements to (b), (c), (e) and (f). Its claim lay in elements (a) and (d).

Regarding element (a), the Appellant argued that the Respondent was the only driver in the accident and as such cannot be considered a third party. In other words, one can only be a third party is one is involved in a collision involving more than one vehicle.

The SCA disagreed with this contention, noting that Section 17 defines a third party as “any person”. It further ruled that this definition is wide enough to cover a driver in a single vehicle collision as long as the driver’s injuries arose out of the owner’s negligence or other wrongful actions.

In respect of element (d), the Appellant argued that the accident was not caused by driving, but by the vehicle’s unroadworthy condition. The SCA disagreed with this point. It ruled that the Respondent’s claim is based on the insured owner’s negligence in failing to properly maintain the vehicle’s tyres, which resulted in a tyre burst and causing an accident.

The fact that the tyre burst clearly indicates that the vehicle was being driven at the time of the accident. Therefore, the SCA ruled that the Respondent’s claim does fall within the ambit of Section 17 of the Act and as such, the Appellant is liable to compensate.

From the above it is therefore clear that the judgment of the RAF vs Abrahams open a way for more drivers involved in single vehicle accident to claim against the Road Accident Fund.

A taxi driver, who has now a tyre burst and is severely injured, may now claim against the Road Accident Fund if he can prove that the taxi was not roadworthy and that the owner was negligent by not keeping it in a roadworthy condition.

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Case Law: Stationary vehicle in opening of a Median Strip.

The Median Strip is also known as a Central Reservation Area or Road Island…. the strip that separates two opposing lanes of traffic. The strip itself varies from road to road. It can be a walkable wide pavement, painted lines, a wider planted area, or a concrete or metal barrier. (see more photo examples at the end of the article)

Legal Principle:

Drivers should expect to find stationary vehicles in their lane of travelling where a Median Strip is found.

Case Law:

GRIFFITHS vs NETHERLANDS INSURANCE 1967 (4) SA 691 (A)

Facts:

X stopped at stop street. X wanted to cross dual carriageway and crossed between opening on an island to turn right. The dual carriageway is a main road in a built-up area and carries heavy traffic. The accident occurred at night, but the road is well lit. X looked towards his left and right and noticed that the road is clear of traffic and pulls away. He realised that vehicles are approaching him from his left hand side at high speed. He realised that he was not going to complete his turn and stopped his vehicle in the island opening. The back of his vehicle blocked the whole lane nearest to the island. He noticed motor vehicles approaching him and noticed that Y is fast approaching him in the lane that is blocked by the back of his vehicle. He however kept concentrating on the traffic that approached him in the direction that he wanted to turn in. He therefore paid attention to the vehicles approaching him from his left. Y then collided with the right back door of his vehicle. Y never saw X. He did not brake or swerve out. Y cannot remember how the accident occurred.

Decision on appeal: 

Upheld the Court’s decision that X was not negligent. The minority ruling believed that Y’s appeal must succeed with an apportionment of 75/25 in favor of X.

Minority decision:

There is no rule that forbids X from crossing the first two lanes of a road at a given time and to wait in the opening for an opportunity to join other traffic in the next lane. Because of heavy traffic, it necessitated him to wait for an opportunity. Daylight would not have made a difference. X will still not be negligent. X was visible for Y for at least 60 steps.

The Court decided that drivers at night should expect that sometimes there can be stationary vehicles in their lane of travel. Y would have been able to avoid the collision if he saw X by swerving to the left and passing behind the vehicle. Y was in all probabilities grossly negligent. It was not expected from X to expect the possibility that Y could collide with him.

Other photos of what Median Strips / Central Reservation Area / Road Island:

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Case Law: Traffic Circles:

Legal principles of a Traffic Circle:  MVO Consultants, Case Law, Traffic Circles

  1. Always travel clockwise around a traffic circle,
  2. X must give right of way to traffic who approach from his right hand side in the traffic circle, except if a police officer give other instructions or if there are traffic signs that show otherwise,
  3. A yield sign at a traffic circle give instructions to X who approach the yield sign to yield for any traffic that would cross the yield line before him and who would cross his way.

Case Study:

X is driving on the inside of the traffic circle next to the island and decided to leave the traffic circle on his left hand side. Y who is driving on the outside collided with the left side of X when X suddenly changed lanes.

Case Law:

RONDALIA VERS KORP vs Pretorius 1967 (2) SA 649 (A)

Facts:

Four lanes are joining at the traffic circle. There is a traffic island in the middle. Y on a scooter entered the traffic circle and moves around the island to leave the traffic circle in a southerly direction. X drove with his motor vehicle behind Y and caught up on Y.     X wanted to leave the traffic circle in an easterly direction.   X tried to overtake Y on the right hand side.  An accident occurred between the left front of bumper of X and the right side of Y from behind.  Y could not remember how the accident occurred.

Held – Court decision:

When vehicles travel in the same direction around a traffic circle, it depends on the circumstances of the driver of the front vehicle to give signal or not. There is no general rule to govern the behaviour of the traffic inside the traffic circle.

There are also no reported cases with regards to the different duties of drivers who are driving in the same direction around the traffic circle.

Whether the driver of the front vehicle is under an obligation to give a sign or not depends on the circumstances.

For example, if A wants to drive to his right around the circle, but entering the circle on the left lane, while there are traffic in the right lane, then his duty is the same as a person who wants to enter an intersection in a traffic stream.

In the matter at hand, there is no evidence as to what caused the accident or how it occurred.

Negligence on the side of Y was not proved.

S vs KRUGER 1967 (3) SA 496 (KPA)

In the above case, the principle was imposed that X who was driving in a single lane traffic circle does not have to give a signal if he wants to move right around the circle. This is the normal course of flow in a single traffic circle.

If he wants to turn out of the traffic circle towards his left, which is an unusual procedure, then he should give a signal that he wants to move out of the traffic circle.

There must be a material change of flow from the normal course that X followed before there is any need for X to give a sign.

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Case Law: Stop Signs

Case study:

X has the right of way and entered and entered an intersection and Y collided with his left hand side. Y drove over a stop street. On the same facts, X collided with the right hand side of Y. 

Legal principles:

  1. Y may only pull away if it is safe and he has sufficient visibility of oncoming vehicles. If there is an obstruction (example a parked vehicle), he must move slowly forward to enable him to see pass the obstruction.

  2. Y who approach a three- or four way stop may only pull away if other vehicles that arrived before him at the stop are already through the intersection.

  3. Y who wants to pull away from a stop sign, must look towards the left, right and when seeing X approaching 200m at his right on a high speed and without further considering enters the intersection is negligent. (Caldwell vs Commercial Union 1977 (1) SA 748 (A) and Schroder vs President 1978 (2) SA 600 (A))

  4. X who has the right of way:

    1. has the right to assume that Y who approach the stop sign will stop; and

    2. X does not have the absolute right of yield and still has a duty to keep a general lookout. If X notice Y approaching the stop street, if he kept a proper lookout and he notice that Y is approaching the crossing at a very high speed, he must assume that Y will not stop and try to take the necessary avoiding actions. (Guardian vs Saal 1993 (2) SA 161 (CPD))

  5. If X who has the right of way approach a hidden stop street, he must the moment when the side street is visible look in the side street if there is perhaps not someone who will drove over the stop street. If he notices Y approaching in such a manner that it seems that he will not stop, he must do everything possible to avoid a collision. (Guardian vs Saal)

  6. X who has the right of way and who must keep a general lookout, has the right to assume in the absence of any indications to the contrary that that Y will stop at a stop sign. Only if it is clear to a reasonable person in X’s position that Y will not stop or will not be able to stop in time, is there a duty on X to try to avoid the accident. Under normal circumstances it is not the duty of X to regulate his driving in such a manner that a driver will not stop at a stop sign. (NEG vs Sullivan 1988 (1) SA 27 (AD))

  7. X who has the right of way and who notice Y stopping at a stop street, it cannot be expected from him to anticipate that a second vehicle will overtake the stillstanding vehicle Y and enter the intersection on the wrong side.

Case Law:

NEG VS SULLIVAN 1988 (1) SA 27 (AD)

Facts:

Y has the right of way and is well known with the area. Y is driving on a tar road. Y knows that the intersection in which X is driving and which is a gravel road, is regulated by a stop sign at the intersection. The stop sign however has been removed a while ago. Y is not aware of this. The accident occurred at night. Visibility was limited for both vehicles by a hedge and therefore a blind corner exists. The accident occurred in the intersection.

Held – Court decision:

Y was not in the wrong in the special circumstances in this particular case to act on the basis that traffic in the cross street will give yield to him.

Y did keep a proper lookout and only noticed X when he came from behind the hedge and up to that there is no reason why he should have taken any precautions.

In the absence of any testimony:

How far X and Y were from the intersection when X was visible for Y, or the speed of X’s vehicle and the positions of X and Y when Y became aware that X is not going to stop, it is therefore not possible to assume that Y was negligent and not taking the necessary care and experience as one would expect from a reasonable person.

The driver who has the right of way has the right to assume that in the absence of any reasons to the contrary, that driver in the cross street will adhere to the stop sign. Only when it becomes clear for the reasonable man in the position of the driver who has the right of way that X is not going to stop or will not be able to stop in time, then Y has a duty to try to avoid the collision.

When it became clear to Y that X was not going to stop (there were no clear evidence that he could have realised it earlier) and by making provision for reaction time, the distance between X and Y and their speed, there was nothing that Y could have done to avoid an accident or prevent it.

No negligence could be indicated on the side of Y.

SA EAGLE VS HARFORD 1992 (2) SA 786 (AD)

Facts:

Collision occurred inside a four way stop. A motor vehicle collided with its front against the left hand side of a truck in the middle of an intersection. The truck was already far into the intersection. The motor vehicle has just moved across the stop line when the accident occurred. The motor vehicle did not stop at the stop sign, but moved into the intersection at a high speed.

The truck did stop and noticed the vehicle approaching fast. He however thought that the motor vehicle did see him and will top. The truck then pulled away.

Held – Court decision:

The assumption of the truck driver that the motor vehicle is not going to stop was not unreasonable in the circumstances. A reasonable driver has to make absolutely sure that it is safe to enter an intersection before he does it. The truck driver won the appeal with costs. Absolution of the Instance against the truck driver with costs was ordered.

GUARDIAN NATIONAL INSURANCE CO VS SAAL 1993 (2) SA 161 (CPD)

Facts:

X drove over a stop street and collided with Y who has the right of way. X can as a result of his injuries not remember how the accident occurred. On behalf of X it was testified that Y had for 75m from the intersection clear visibility on the intersection.

Held – Court Decision:

X had to prove on a balance of probabilities that Y was negligent and that his negligence has caused the accident or contributed to it. The fact that Y did not keep a proper lookout is not enough to keep him accountable.

X must prove that the neglect has a causal connection to the accident. The question is:

If Y kept a proper lookout and he should have noticed that Y is not going to stop, that he could have at that moment take effective avoiding actions.

X must prove that if Y reacted when the reasonable man would have reacted, the accident would not have occurred.

X did not prove that Y negligence to keep a proper lookout had a causal connection to the cause of the accident.

The appeal of Y succeeded in this matter.

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Case Law: Actio De Ferris

The ‘actio de ferris’ rule originated during the time of the Roman Republic when wild or dangerous animals were brought into a public place where it was prohibited to do so.

The motive of this action was based on ownership and liability and was imposed on the owner of the animal for the consequences of the animal’s behaviour.

The victim therefore does not have to allege or prove negligence on the part of the owner.

In a recent matter before our Courts in the matter of Van der Westhuizen vs Burger 2018 (2) SA 87 (SCA) the matter was raised before the Supreme Court of Appeal where the provocation of a wild animal could be raised as a defence to this very old action that dates back to the Roman Law.

In this matter Mr Van der Westhuizen was the owner of an ostrich. The Respondent, Mr Burger, first sued out of the Gauteng Division of the High Court after the ostrich apparently attacked and chased him. Burger alleged that when trying to attempt to escape from the ostrich, he tripped over a piece of wood and tore his Achilles tendon. He then claimed damages from Van der Westhuizen to the amount of R6 750 000.00.

It was not in dispute that the incident indeed occurred on Mr Van der Westhuizen’s farm. Mr Burger alleged that Mr Van der Westhuizen introduced certain wild ostriches, which do not naturally occur onto his farm or alternatively that the Appellant had tamed and domesticated an ostrich who roamed close to the dwelling on the farm and which in attacking the Plaintiff acted contrary to animals of its class.Actio de ferris - MVO Consultants

Mr Van der Westhuizen in turn raised the defence that Mr Burger provoked and harassed the ostrich on numerous occasions prior to this alleged incident. He further denied that Mr Burger, in attempting to escape, ran towards the dwelling on the farm and tripped over a piece of wood.

The court a quo (where the matter was first heard) dismissed the defence of provocation on the basis that the provocation was not the immediate catalyst of the resulting injury. The court a quo were of the opinion that there was no immediate provocation of the ostrich and the injury would not have occurred had it not been for Burger’s attempt to escape the ostrich from attacking him in the first place.

The court a quo therefore found that Mr Van der Westhuizen was liable to pay for such damages as Burger was able to prove in due cause, together with the cost of the action.

The matter was taken onto appeal by Mr Van der Westhuizen.

On appeal, the Court paid attention to the testimony of the witnesses of the Appellant who described how Mr Burger had teased a certain male ostrich on the farm of Mr Van der Westhuizen.

On numerous occasions Mr Burger would entice the ostrich to approach him with mielie pips in his hand. While the ostrich was busy eating out of his hand, Burger would grab the animal by the neck and push its head down. The ostrich would become aggravated and would flap its wings and stagger backwards after being released. The Supreme Court of Appeal was satisfied on a balance of probabilities that in this case the particular ostrich was the same one that had chased Mr Burger.

The Court did state that the evidence could not be used to infer that the ostrich held a grievance against Mr Burger, as that would constitute the impermissible attribution of human emotions to the ostrich.

The reality was however, that Mr Burger was not fearful of the ostrich. In his own evidence when he had approached the animal the night before the incident, he confidently dealt with it.

A certain Mr Kotze testified that he had seen how Mr Burger was walking towards the farmhouse while the ostrich was feeding at a trough. When Burger saw the ostrich, he threw something at it and the ostrich then chased him. Kotze maintained that Burger had run towards the front door of the farm house and fell. When Burger stood up, he saw the ostrich was still looking at him and quickly ran into the house. At no time did the ostrich kick Mr Burger or peck at him.

Based on this evidence the Court held that Mr Van der Westhuizen has discharged the onus of proving that Mr Burger’s conduct, by throwing a stone at the ostrich, had provoked its behaviour in chasing after him.

However the Court noted that in Case Law, provocation was not listed as a specific defence to strict liability arising from the attack of a wild animal.

It was rather recognised as a defense to the actio de pauperie, which is an action for damages caused by domestic animals and not a wild one.

Various court cases was considered in this matter including Bristow v Lycett 1971 (4) SA 223 (RA) as well as Klem v Boshoff 1931 CPD 188 and also Hanger v Regal & another 2015 (3) SA 115 (FB).

Based on its conclusions the Court therefore held that it is unnecessary to examine the issue of causation giving that Mr Van der Westhuizen could not be liable for the injuries sustained by Mr Burger in circumstances where the latter had provoked the chase.

In the above matter Van der Westhuizen’s appeal was upheld with costs.

This article can also be read on De Rebus.

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