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
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.
- 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;
- 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;
- The accident was allegedly caused by the negligence of the driver of the insured vehicle, which conveyed the ore;
- 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
- 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:
- 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.
- 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?
- 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;
- 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;
- 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:
- 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;
- 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;
- The owners of these vehicles were identified;
- The only unidentified aspect of the claim is that the driver of the vehicle at the time has not been identified.
- 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:
- 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
- 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.