Mali v Shield Insurance Co Ltd

• Jurisdiction: South Africa

Mali v Shield Insurance Co Ltd
1984 (2) SA 798 (SE)

1984 (2) SA p798

Citation	1984 (2) SA 798 (SE)
Court	South Eastern Cape Local Division
Judge	Kroon AJ
Heard	October 26, 1983; October 27, 1983
Judgment	February 21, 1984

Flynote : Sleutelwoorde D

Negligence — What constitutes — Bus, manned by driver only, stopping at bus stop — Failure by driver, after satisfying himself that there was no traffic which could be endangered by his pulling off, to direct his attention to E entrance to bus — Such failure amounting to negligence causally connected to injuries sustained by person then attempting to get on the bus but falling when bus jerked forward — Such would-be passenger entitled to assume driver would take cognizance of his presence and not set bus in motion after he had commenced mounting the bus — Not negligent of F him if he does not draw driver's attention to his presence or satisfy himself that driver is aware of his presence.

Insurance — Compulsory Motor Vehicle Insurance Act 56 of 1972 — Section 22 (1) (d) read with s 22 (1) (bb) — Construction of — Claimant allowed claim in respect of pecuniary loss up to maximum of R12 000 — Claim for general damages not maintainable in terms of Act.

Insurance — Compulsory Motor Vehicle Insurance Act 56 of 1972 — "Reward" — Meaning of in s 22 (1) (a) (i) — In general both driver and passenger should intend that conveyance should be for reward.

Headnote : Kopnota

Where the driver of a bus (which is manned by the driver only) has satisfied himself that there is no other traffic which can H be endangered by his pulling off from a bus stop, he is obliged to direct his attention to the entrance to the bus as he pulls off because real danger (of injury to a person getting on the bus) can be expected there. Failure to do so constitutes negligence and such negligence will be causally related to injuries sustained in that way.

A person wishing to board a stationary bus is entitled to assume that the driver will take cognizance of his presence and will not set the bus in motion after he has already commenced mounting the bus and it would be exacting too high a standard of care from a would-be passenger to require him to draw the driver's attention to, or otherwise satisfy himself that the driver is aware of, the fact that he is boarding the bus which was not yet in motion.

1984 (2) SA p799

Section 22 (1) (d) read with s 22 (1) (bb) of the Compulsory Motor Vehicle Insurance Act 56 of 1972 accord to a claimant the right to claim only in respect of certain specified items of damage, ie the items of pecuniary loss specifically mentioned in s 22 (1) (bb) and subject to a maximum of R12 000. The section denies a claimant the right to claim for any other damages, ie general damages in respect of pain, suffering and A shock, loss of the enjoyment of the amenities of life, disability and disfigurement.

In general it can be said that before a passenger will be held to have been in the act of entering a vehicle for the purpose of being conveyed "for reward" in terms of s 22 (1) (a) (i) of the Compulsory Motor Vehicle Insurance Act 56 of 1972 both he and the driver should intend that he be so conveyed. B

Case Information

Action for damages under the Compulsory Motor Vehicle Insurance Act 56 of 1972. The facts appear from the reasons for judgment.

L A Schubart for the plaintiff.

L S Melunsky SC for the defendant.

Cur adv vult.

Postea (February 21).

Judgment

Kroon AJ:

This is an action for damages under the Compulsory Motor Vehicle Insurance Act 56 of 1972 arising out of injuries sustained by the plaintiff in a motor vehicle accident which D occurred in Maduna Road, Uitenhage, on 15 February 1981 when he attempted to board a bus insured by the defendant under the Act. The accident occurred at a bus stop situated approximately opposite the mouth of 13th Avenue which forms a T-junction with Maduna Road.

The first issue which requires resolution is the question whether the accident was due to the negligence of the driver of E the insured vehicle and whether the plaintiff himself was guilty of contributory negligence causally related to the accident.

Only two witnesses were called, viz the plaintiff and the driver of the insured vehicle, one Budaza.

The plaintiff's version was in essence as follows: On the F afternoon in question he walked along 13th Avenue towards Maduna Road, his intention being to take a bus from the bus stop mentioned earlier to his home which was in an area known as McNaughton. He had had some wine to drink and frankly conceded that he was under the influence of alcohol, but he stated that he knew what he was doing. The insured vehicle was G travelling in Maduna Road approaching the junction from the plaintiff's left and he and the bus reached the junction at approximately the same time. The bus stopped at the bus stop and the plaintiff, being under the impression that the bus was en route to McNaughton, decided to board it. He formed the impression because the bus was travelling along a recognised bus route which served inter alia the McNaughton area, it had H stopped at a recognised bus stop along that route and was one of the buses which normally carried passengers along that route. As the bus had stopped slightly to his right, he crossed Maduna Road behind the bus and then proceeded round the back of the bus to the entrance of the bus which was situated on the left side directly behind the front wheel. There was no door as such, but merely an opening through which passengers boarded and alighted from the bus by means of steps. While he was approaching the entrance

1984 (2) SA p800

Kroon AJ

he noticed another person standing nearby, but he was unable to say whether this person had alighted from the bus. He took hold of the railing at the entrance and placed his right foot on the first step and as he was lifting his left foot from the ground A the bus suddenly and unexpectedly moved forward in what he described as a quick and abnormal manner. In consequence of what he termed the shock and the force of the moving bus striking his shoulder he lost his footing and fell to the ground whereafter the rear wheel of the bus knocked against him. After the accident, the bus came to a stop within a short distance.

The plaintiff was subjected to a lengthy cross-examination B directed at showing that his version of how the accident happened was not to be accepted, but Mr Melunsky for the defendant was hampered in this task by reason of his not being armed with any contrary evidence to gainsay the plaintiff's testimony. It is true that there was a dispute between the plaintiff and Budaza as to where the former was in relation to a certain bus shelter on the opposite side of the road when the C bus stopped at the bus stop, but this dispute is of no moment and does not require resolution. Mr Melunsky's main attack on the plaintiff in regard to the circumstances under which the collision occurred related to the question whether the bus was moving or stationary when the plaintiff attempted to board it. D The defendant's plea in fact contained an allegation that the plaintiff had been negligent in attempting to board the bus when it was moving. However, although initially Budaza sought to deny the plaintiff's allegation that he was at the entrance of the bus before the bus had pulled off, he was eventually constrained to concede that he could not in fact dispute the plaintiff's evidence that he commenced boarding the bus while E it was still stationary, and, indeed, it was not suggested to the plaintiff under cross-examination that the bus was moving when he attempted to board it. Nor was Budaza in a position to dispute any portion of the remainder of the plaintiff's testimony.

That notwithstanding, Mr Melunsky nevertheless argued that I should not accept the plaintiff's ipse dixit as to how the F accident occurred because, so he contended, the plaintiff was an unsatisfactory witness. He pointed, firstly, to the fact that the plaintiff was admittedly under the influence of alcohol at the time. However, as I have already mentioned, the plaintiff stated that notwithstanding the effect of the liquor G which he had consumed he knew what he was doing and there is no evidence to contradict this statement. On the contrary, when Budaza was questioned about the plaintiff's condition, he stated that when he went up to the plaintiff after the accident he noticed nothing untoward in his condition. Secondly, Mr Melunsky referred to the plaintiff's work record and specifically to the fact that he had been discharged some two H months prior to the accident because of periodic absences from work and the fact that his employers had caused a prescription to be issued for certain pills designed to discourage the plaintiff from drinking alcohol. In my view, however, the plaintiff's work record can have little, if any, effect on the acceptability of the evidence given by him in the witness-box as to the circumstances under which the accident happened. Thirdly, Mr Melunsky submitted that the plaintiff had been an evasive witness. This was not, however, my impression of the plaintiff; on the contrary, I found him to be a satisfactory

1984 (2) SA p801

Kroon AJ

witness who, despite presenting as a somewhat unsophisticated individual, attempted to give his evidence in a straightforward manner. Mr Melunsky next submitted that although the plaintiff had initially said that he had arrived at the bus stop itself at the same time that the bus stopped there, he subsequently A changed his evidence to say that the bus had arrived first. This feature, so it was submitted, required one to place a question mark on how much the plaintiff really remembered. The submission is without substance. Even had the plaintiff's evidence been as suggested by Mr Melunsky, the effect...