An acting judge frowned upon a defence raised by the Road Accident Fund that a man who fell off the back of a bakkie when the driver struck a pothole at high speed, was to blame for his injuries as he did not wear a seat belt.
The court also questioned how the fund could blame a passenger for being the cause of an accident.
Oliver Mukansi turned to the Limpopo High Court, sitting in Polokwane, where he claimed millions in compensation from the RAF following the accident.
Mukansi, 41, a farm supervisor at the time of the accident, was a passenger when the speeding vehicle hit a pothole on the Nkowankowa Road in Limpopo. Mukansi fell off the back of the bakkie onto the road.
He suffered a right forearm injury as well as left hip soft injury.
Acting Judge Malose Monene said the RAF offered absolutely no defence to Mukansi’s claim, other than to mention the no-seat belt issue. The fund did not file any expert reports and its counsel failed to show up for trial.
The judge said this is despite being properly served with a set down of trial notice. “All this despite initially filing a curious plea which spoke of failure to put on a seat belt by a passenger at the back of an open back bakkie,” Judge Monene said.
The matter subsequently served before court in default, with Mukansi asking the court to order that the RAF, in its absence to defend the matter in court, was liable for his injuries.
In questioning the fact that the fund initially raised the seat belt issue, the judge said: “I struggle to fathom why negligence on the part of an insured driver is, in passenger claims, sometimes treated as some brain teaser.”
The judge said save for where the passenger somehow took over or hijacked or interfered with the act of a driver by perhaps trying to get control of the steering wheel of a vehicle or perhaps frustrating the driving function in any manner, there is simply no way a passenger can be held liable for a vehicle accident.
The judge said he had reflected on the “elitist” and “third world reality-divorced notion” that perhaps the plaintiff (Mukansi) ought to have shared some blame for being at the back of an open bakkie which is said to not be meant for passengers but for parcels, as a way of placing some blame on him for the injuries he had suffered.
“But I have found it offensive to my sense of what is just. Given the third world status of our country and the painful reality that is black life in this country, I cannot bring myself to uphold a standard that seeks to suggest that poor people have a liberal choice to make regarding what mode of transport to use.”
The judge said to some of our people the back of a bakkie is the only choice to make if they are not to travel for tens of kilometres per foot.
In finding that the RAF was indeed fully liable for Mukansi’s injuries, the judge said the driver was negligent not only from over speeding but also from failing to keep a proper lookout as to have avoided the pothole.
“The plaintiff’s version on this score is unassailable more so because it was not opposed by any evidence by the defendant (RAF) who was virtually a no-show. The proverbial one percent negligence on the part of the insured driver is, in my view, proven without breaking any sweat at all.”
The court noted that Mukansi was after the accident no longer employed as a farm supervisor but as a general farmworker at a reduced income.
Judge Monene ordered the RAF at this stage pay him a total of R3.1 million in compensation – computed from R960 102 for past loss and R2.1 for future loss of earnings.
The issue of how much he should be awarded in general damages, was at this stage, postponed indefinitely.
Pretoria News