Kepko v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Nicholson J
• Judgment Date: 21 November 2008
• Docket Number: 1701/04
• Court: Durban and Coast Local Division
• Hearing Date: 10 September 2008
• Citation: 2008 JDR 1475 (D)

Nicholson J:

1.

The plaintiff sues the Road Accident Fund for damages arising out of an accident that occurred on 13 June 1999 at Howard Court Estate in the Camperdown district. The issue of liability was separated from the quantum and the Court heard the evidence of the plaintiff and one Geoff Bird who testified for the defendant.

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Nicholson J

2.

It was common cause that the collision occurred during a motorcycle "fun run" on a dirt road in a rural setting. This "fun run" is of a competitive nature, in that participants vie with each other to win but there were no prizes on that day for the winner, although a lucky draw took place for various gifts.

3.

The track was circular in nature and the motor cyclists covered a series of laps in an anti-clockwise direction, over approximately three hour duration. Various coloured markers indicate where the track is and use is also made of coloured candy tape to indicate where the cyclists had to turn.

4.

It was common cause and reference was made to various photographs handed in by consent, that the insured driver, one Nick Edwards, overshot a left turn by some half a kilometre and then turned back to resume the race. The plaintiff infers, and there is no competing inference, that Edwards overshot the turn a second time, on his return, and collided head on with plaintiff. In other words, while the plaintiff and the other cyclists were proceeding in an anti-clockwise direction, the effect of the manoeuvre performed by Edwards was that he drove in a clockwise direction straight into the plaintiff.

5.

Given that it was in the middle of winter, there was a lot of dust and when plaintiff first saw Edwards he was only 25 metres away. It is also

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not disputed that as both were travelling at approximately 80 kilometres per hour, their combined speed of approach meant that the plaintiff had an incredibly short time to respond, in all probability, less than a second. It was also common cause that the scene of the accident was a blind rise. The participants who numbered over a hundred wear protective gear and helmets as the sport is clearly dangerous.

6.

The plaintiff was clearly not expecting anyone coming from the opposite direction and he believes Edwards drove very recklessly.

7.

The plaintiff explained that he would accept the normal risks of what was a dangerous sport i.e. from collisions or mishaps arising from persons proceeding in the same direction as the rest of the motor cyclists on the fun run. There was clearly absolutely nothing that the plaintiff could do to avoid the collision and Edwards was 100% negligent, if not reckless.

8.

Asked what Edwards could have done to re-enter the race, the plaintiff suggested he should have proceeded down the road on the left (he was on the right when he collided) and then carefully fed into the competitive procession of riders going in the anti-clockwise direction.

9.

Geoff Bird, a committee member of Motorsport South Africa, a section 21 association, testified that he was present that day but did not witness the accident as he arrived on the scene later. He testified also

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that a cyclist re-entering the race had to exercise the utmost caution and that only an "idiot" would have behaved the way Edwards did.

10.

Some attempt was made to secure the admittance of a document Exh "D" which contains clauses, limiting liability on claims against Motor Sport South Africa, a voluntary association that controls the sport. The document contains many provisions and inter alia it prohibits drugs and contracts out of liability in the event of damage to vehicles or injury or death to any person. I have a number of difficulties with its admissibility. Firstly the litigation does not involve Motorsport South Africa and secondly Bird said he could not say if any of its clauses were applicable on the day in question. The plaintiff, in any event signed no documents whatsoever. It is therefore not admissible in this case.

11.

It was also not clear to what extent road users who were not part of the race were prohibited from using the roads that constituted the track. This circumstance would have urged even greater caution on a motor cyclist such as Edwards.

12.

On the facts I am obliged to determine the matter on the plaintiff's version because the insured driver did not testify. Because the plaintiff's evidence was uncontested and, I might add, given in convincing fashion, the Court proceeds on the basis that the insured driver Edwards was 100% negligent.

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Nicholson J

13.

The defendant pleads volenti non fit injuria. The onus rests on the defendant to establish the defence. See Santam Insurance Co v Vorster 1973 (4) SA 764 (A) at 779. The defendant must allege and...