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1 ,... 1 IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) DELETE WHICHEVER 18 NOT APPLICABLE (1) REPORT ABLE:, NO. (2) OF INTEREST TO OTHER JUDGES: WJS / NO. I (,3) REVISED. V I PA[.!; ij l '?,' :Z.,, \,;> S1$i~ Case Number: /15 In the matter between: THANDEKA ZODWA NKOSI Plaintiff and ROAO ACCIDENT FUND Defendant JUDGMENT

2 2 NOWOSENETZ AJ [ 1] In this action the plaintiff, an adult female claim$ damages arising from a motor vehicle accident which took place on 1 December She was a passenger in e taxi being the Insured vehicle NV driven by one T Ngeme. The parties have agreed to separate the hearing of the issue of quantum In terms of Rule 33(4}. The only issue for determination Is the negligence of the driver. [ 2) Most of the facts and clrc::um$tonces ore common <:euse: The insured vehicle was travelling between Vryheid and Mondlo Township, Kwa Zulu Natal. The accident report which Is not In dljpute, $t8tes thet the vehicle was travelling ()fl a tar road which was flat. The vehlcl~ Wtt5 e Toyota mlnl~us taxi. The manner In which the vehicle was driving was described as "diverging". The cause of the accident Is that the right rear wheel came off completely from the vehicle. The time of the eccldent was The plaintiff landed outside the vehlcie on the roadway before the vehicle came to a stop. It did not overturn. She was treated for her injuries In hospital after the accident. She weis unconsclpus when admitteq. [ 3] The only witness was the plaintiff. The defend~nt did not call any wltnesoes, She testified that she set In the taxi on the left olde next to tm sliding de>ar but behind the front seat,. There were about 15 pas$engers aboard. The taxi was driving feat.

3 3 She estimated about 100 to 120 km/h. She said to the driver that he was driving too fast but he Just turned up the radio. She felt the vehicle zig zagging. The door opened and she fell out. That wes all ehe could remember. She closed the door when she entered the vehicle. The tceldent happened about en hour efter she entered the taxi and began the journey. [ 4] In cross examination she was que,tioned why In h,r written tement she had stated that the vehicle had overturned. She $Old she did not know what happened to the vehic:le. She admitted there wa, screaming in the vehicle. She WO$ referred to the accident report which siated thqt people shouted at a lady not to Jump out. Sh, was vague about (his but,aid they were not referring to her. It wes put to her that she opened the door l!lnd jumped oui. [5] The main dispute of feet was whether the plaintiff fell out of the moving vehicle or jumped out. There was no evid-nce of any other people being Injured nor of anyqne else falling out the vehicle. Not much turns on thi$ as dl$cussed below but In my view the probabilities are that she opened the $lldlng door end jumped out the moving vehicle. There was o panic In the vehicle. The vehide in fact did not overturn. Although hearsay, tht> possenge~ lri the ve,hlcfe eccqrdlng tq the report shouted ot,ome unidentified per,on not to Jump outside the vehlch,. Tho pleintiff did not deny this. This evidence has a high likelihood of truth. She said ttiey were

4 4 not referring to her but did not deny this version. She was the only passenger sitting next to the sliding door. There wes no evidence of any other door behind the driver. There is a high likelihood that they were referring to her. It is improbable that the sliding door opened on its own and slid sufficiently wide to ellow the plaintiff to fall out. Ordinary car doors open towards the outside but sliding doors do not. They have to open to considerable extent before et person can flt through by virtue of the <;iesign. I do not accept that there was a door metfunction. She successfully closed the door when she entered the vehicle. The plaintiff was not a reliable witness but her evidence that the vehicle wos travelling at high speed and was zig zagging ls ~ccepted and she hes linked the conduct of the driver to the injuries she sustained. [ 6] The test for negligence was set out In Krugt1r v CoetzefJ thus: "Once it ls esrabllshed that p ~OnilbleJ man would have foreseen a possibility of hsrm, ths qv8$tlon arises whether he would have taken measures to prevent the occurrence of the foreseeable harm. Tht1 answer depends on the circumstances cf thtl t;ase. There srs, h()wever, four basic considerations in esch case whk;h influence the reaction of a reasonable man in a situation PQsing a foreseeable risk of harm to others: (a) The degree or extent of the risk created by the actor's conduct;

5 5 (b) The gravity of po!fs/b/e con58quences If the ri$k of harm materialises, (c) The utility of the actor's conduct: and ( d) The burden of eliminating the risk of harm." [7] The Issue of negligence particularly of a public taxi driver ha$ been considered by the courts and some principles heve emerged. All drivers or owners have, legal duty to maintain a vehicle and en1ure 1hat the vehicle is in roadworthy condition. Furthermore It hes been suggested that that a somewhat heavier duty lies on th$ owner of a public vehicle. Mactlonald's Transport Uplngton (Pty) Ltd v J Koegelenberg t/a Koekelenberg Vervoer (6771/03) (2005) ZAWCHC 17 (17 March 2005). (8) 1671$/2006) Dete of Judgment 8 March 2006 In tt,e We..-n Cape High Cot,ll't where it was stated: ~.. ths plaintiff was thrown from a tsxl that wa$ ~velling with its sl/dln1 door open. The drivbr of that taxi la/led to lllkfl Into account ths 8f8te of Intoxication of tile plaint/ff and ls/led to ensure that thb door was cl0$ed

6 6 and/ or that the plaintiff was wearing a seatbeh. The sliding door of the taxi had to remain open as it was jtjmmed stuck In that p()sitlon. The plaintiff was fully aware of both these facts. Bozslek J held th(lt an Insured driver should foresee 'that intoxicated passengers In their condition might well behave in a Durban City Counc,11970 (1) SA 39 (D). [9] In Ngozo v RoBd Accident Fund (21866/2012) [2013] ZAGPJHC 390 (19. November 2013) it was said: "It Is clear that the authorities place a duty on both the driver of th" public vehicle and the psssengsr to takt, steps to protect themselves from suherlng harm." [ 1 o] The complete detachment of the wheel leaves no room for doubt that the vehicle was in an unroadworthy state. Both the owner and driver failed to ensure the vehicle was in good running order. The wheel must have already been loose,

7 7 causing the driver to zig zag. The driver continued to drive at high speed in a zig zag fashion after being asked not to speed. It ls occepted that he passengers were screaming and there was a general panic. The feet that he only stopped when the wheel fell off indicates a complete and utter disregard for the safety of his passengers. He must have been aware the vehicle was unsteady and should have immediately stopped to check the problem with the vehicle. The driver was wholly responsible for creating the rfsk by driving an unstable vehicle and not stopping timeously. He endangered the safety of his passengers. It matters little whether he should have foreseen that the ptalotlff would jump 01.1t. She did not,ct In a foolhardy manner as she panicked. This was a reasonable response to the danger she perceived. In a dengerous sltuotlon a driver Is still lieble for negligence if a passenger acts on a foolhardy manner. Thus irrespective whether the plaintiff fell out or jumped out of the taxi, whether she wa5 foolhardy or not, the driver was negligent and the defendant Is accordingly liable. [ 11] It is therefore ordered: 11.1 The defendant is 100 X llabl~ to the plaintiff for whatever damages she may prove in this action (case no i5637 /2015) arising from the accident on 1 December 2011,

8 The defendant 1$ or<tered to pay the plaintiff's costs to date. L. NOWOSENETZ ACTING JUDGE OF THE HIGH COURT...

9 9 CASE NO: / 15 HEARD ON: 5 March 2018 FOR THE PLAINTIFF: MR. S.S. SHONGWE INSTRUCTED BY: Rontgen & Rontgen Inc. FOR THE DEFENDANT: MR. T. KGOMOMMU INSTRUCTED BY: Rambevhe Morobln& Attomeys DATE OF JUDGMENT: 7 March 2018