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Posthumus Vindication In The Supreme Court Of Appeal

Posthumus Vindication In The Supreme Court Of Appeal
August 5, 2015 gnuworld

On 25 March 2015 the Supreme Court of Appeal unanimously held that an insured driver who parked his vehicle alongside a roadway at night with his vehicle’s lights shining brightly into the roadway was causally negligent and, further, that the act of turning on or failing to dim the lights must be regarded as ‘arising from the driving’ of the vehicle for purposes of establishing the Road Accident Fund’s liability in terms of Section 17(1) of the Road Accident Fund Act 56 of 1996 (as amended) (“the RAF Act”).

See Posthumus N.O & 1 other v. Road Accident Fund (Case No. 20024/2014) below (marked reportable).

As the Court noted, sadly the resolution of the question of liability only came some 12 years after the accident date and too late for the ironically named Mr & Mrs Posthumus, both of whom had passed away by the time of the SCA judgement.

On the date of the accident which gave rise to the fiercely resisted action, Mr & Mrs Posthumus were innocent passengers in a motor vehicle being driven at the time by one Mr Andries Maritz. The vehicle in question left the road on which they were travelling and capsized. It being common cause throughout the matter that Mr Maritz had been negligent in causing the collision, the only question for determination was whether the accident wasn’t at least also partly caused by the negligence of the driver of another motor vehicle (“the second insured driver”), the driver of which had parked the vehicle on the side of the roadway at night with its headlights shining into the roadway, thereby blinding Mr Maritz and contributing to him losing control of his vehicle and leaving the roadway.

The significance of establishing contributory negligence on the part of the second insured driver lay in the fact that in terms of the legislation then in place, in the event that Mr Maritz was solely negligent in causing the collision the passengers’ claims were limited in terms of section 18(1)(b) of the RAF Act, whereas their claims would have been unlimited in the event that it was established that the second insured driver was contributorily negligent (fortunately this limitation was abolished by virtue of the promulgation of the Road Accident Fund Amendment Act 19 of 2005 [s7(a) thereof] which came into effect on 1 August 2008).

Referring to s20(2) of the RAF Act which provides that a person “who has placed or left a motor vehicle at any place shall be deemed to be driving that motor vehicle”, albeit that the vehicle is in fact stationary at the time of the collision, the Court went on to hold that “(t)he turning on of headlights of a motor vehicle, and the failure to dim or turn them off, is causally connected to a motorist’s use of a motor vehicle, and must be regarded as ‘arising from the driving’ of that vehicle”. The Court therefore held that the second insured driver was indeed contributorily negligent and that the estates of the late Posthumus couple were entitled to full recovery of the recoverable damages.

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