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)  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.