RAF v Abrahams judgement opens the way for single vehicle claimants

Most personal injury litigants know that when it comes to single motor vehicle collisions, we are inclined to conclude that the driver was solely responsible and therefore the Road Accident Fund (RAF) is not liable to compensate. However, we tend to lose sight of the important provisions of section 17(1) of the RAF Act.

The Supreme Court of Appeal (SCA) judgement of RAF v Abrahams (276/2017) [2018] ZASCA 49, delivered on 29 March 2018, held that the driver in a single vehicle collision is entitled to claim under the provisions of section 17 of the Act. This section clearly states that liability can arise out of the 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.

This article examines how this case sets a precedent for drivers who are involved in an accident and do not own the vehicle to submit RAF claims. Their claims would be based on the perceived negligence of the vehicle’s owner.

The facts of the RAF v Abrahams case

On 5 February 2011, Mr Abrahams (the respondent) was involved in a single motor vehicle accident. The vehicle he was driving (the insured vehicle) was owned by his father’s employer, Securo Food Manufacturers (the insured owner). The accident occurred when a tyre burst, causing the vehicle to leave the road and roll. The respondent sustained severe injuries. He subsequently instituted action in the Western Cape division of the High Court against the RAF (the appellant) for damages. The respondent alleged that the accident occurred because the insured owner had failed to maintain the vehicle’s tyres in a roadworthy condition.

Proceedings at the High Court

In the High Court, the appellant’s argument was based on three assertions. First, that because there was no employer-employee relationship between the respondent and the insured owner, the insured was not entitled to claim any compensation in terms of the Act. Second, that the respondent’s use of the insured motor vehicle was unauthorised and fortuitous. Third, 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 unauthorised, the respondent led the evidence of his father. His father testified that his duties include delivering baked goods using the insured vehicle. On days when he is unable to deliver, he asks 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 his 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 as a subcontractor at the time of the accident. The appellant took this decision to the SCA.

The SCA’s decision and its significance

The SCA ruled that as it was not necessary for the High Court to base the respondent’s claim on his 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 RAF Act.
The main question the SCA needed to determine was whether a driver in a single motor vehicle accident is entitled to claim under the provisions of section 17(1) of the RAF Act. The SCA considered the following six liability elements to this section:

  1. The liability is towards a “third party”;
  2. Who had suffered any loss or damage;
  3. The loss resulted from bodily injuries to herself or himself;
  4. The loss arose from the driving of a motor vehicle;
  5. The injury was due to negligence or other wrongful act;
  6. The negligence or wrongful act must be that of:
    • The driver; or
    • The owner of the motor vehicle; or
    • Of his or her employee.

The appellant did not dispute liability elements 2, 3, 5 and 6; its claim lay in elements 1 and 4. Regarding element 1, 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 if 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 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 action.

In respect of element 4, 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 bursting 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.

The RAF v Abrahams judgement opens the way for more drivers involved in single vehicle accidents to claim against the RAF. Before this case, the legal position was not always clear. Our duty as personal injury claimants is to continue to conscientiously apply the provisions of section 17 of the RAF Act. In future, this should be done at the outset of all personal injury claims to avoid unnecessary legal costs.

By Sylvia Maila

LindsayKeller Attorneys