Roxa v Mtshayi

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Jansen JA, Corbett JA, Hofmeyr JA and Van Zijl AJA
• Judgment Date: 30 May 1975
• Hearing Date: 03 March 1975
• Court: Appellate Division

Corbett, J.A.:

At approximately 6 p.m. on 28 February 1970 Boy-Boy Mtshayi, then aged seven years and seven months, G emerged from the gate of his home in Ferguson Road, New Brighton, Port Elizabeth. Ferguson Road, which is one of the main thoroughfares in New Brighton, runs roughly east-west. The Mtshayi home stands on the northern side of Ferguson Road. Boy-Boy walded from the gate, across the gravel verge, to the edge of the road. There he stopped and looked up and down the road. At the time the only visible traffic were a bus and a H Volkswagen motor car. The bus was stationary at a bus stop some 200 yards to the west. The motor car was approaching from the east. Boy-Boy, who was apparently on his way to visit friends, who lived on the opposite side of the road, ran across the roadway. The motor car collided with him near the southern edge of the road. Boy-Boy was seriously injured in the collision. He sustained a compound fracture of the skull, with concomitant brain injury. This not only caused him considerable pain and suffering but has left him with a major disability of a permanent nature.

Corbett JA

As a consequence of this the respondent, Boy-Boy's father and natural guardian, brought on his behalf an action for compensation against appellant, the owner and driver of the Volkswagen motor car at the time of the collision, the vehicle A not having been insured under the provisions of the Motor Vehicle Insurance Act, 29 of 1942. The action, which was instituted in the South Eastern Cape Local Division, was based upon the averment that the collision and consequential injury to Boy-Boy were caused by the negligent driving of the appellant. In his plea appellant denied negligence on his part and, in the alternative, pleaded contributory negligence on the part of Boy-Boy which required his claim to be reduced in terms B of the Apportionment of Damages Act, 34 of 1956. In view of Boy-Boy's tender years this alternative plea also raised the issue as to whether, in relation to the contributory negligence relied upon, Boy-Boy was culpae capax.

The trial Judge (CLOETE, J.) found negligence on the part of appellant; held that Boy-Boy had been culpae capax; but C concluded that Boy-Boy had not been shown to have been negligent. He assessed the compensation payable in the amount of R17 000 and granted judgment to respondent in this sum, together with interest thereon as from a date 14 days after judgment and costs of suit. Appeal was noted against the whole of the judgment, save for the finding that Boy-Boy was culpae capax.

D On appeal counsel for appellant conceded the correctness of the Court's finding that appellant had driven negligently but contended (i) that the trial Judge ought to have found contributory negligence on Boy-Boy's part and, therefore, in terms of Act 34 of 1956, ought to have reduced the compensation payable to him; and (ii) that the award of R17 000 was too high.

As regards the question of appellant's negligence, it is clear E that counsel's concession was correctly made. Appellant did not give evidence at the trial. Nor did Boy-Boy. From the testimony of two eye-witnesses, Winnie Maguga and Rosy Matota, it appears, however, that when Boy-Boy commenced to run across the road the Volkswagen motor car was about 50 yards away. (Inasmuch as all distances were given in the Court a quo in F imperial measures I shall continue to use these in preference to the metric). At that point the tarmac portion of Ferguson Road is 24 feet wide. Boy-Boy ran across the road, at a slight diagonal, in a south-easterly direction. He was struck by the left-hand front mudguard of the motor car. There was some dispute about the point of impact. According to the police plan and the police constable, who investigated the accident and G drew the plan, the point was eight feet from the southern edge of the tarmac and four feet to the south of the centre line of the road. According to the eye-witnesses impact occurred when Boy-Boy was on the southern edge of the tarmac. The trial Judge was not able completely to resolve this conflict but concluded, correctly in my view, that the

H "probabilities are that he (Boy-Boy) was near the edge of the tar when he was struck and certainly nearer the edge than the police plan records".

Accordingly, Boy-Boy traversed most of the width of Ferguson Road before impact and during this time he must have been visible to appellant behind the wheel of the Volkswagen. That section of the road is straight; though it was already beginning to get dusk, there was light enough to see; there was no other traffic, or anything else, to cut off, or obscure, his view of Boy-Boy. Despite this, appellant's motor car did not slow down, nor did it deviate, prior to impact. Had it done so substantially and timeously, the

Corbett JA

collision might have been avoided. In the absence of an explanation by the appellant the probable inference seems to be that he failed to see Boy-Boy until possibly, the very last moment before impact. These considerations amply justify the trial Judge's conclusion that appellant failed to keep a proper look-out and consequently drove negligently.

A I turn now to the question of contributory negligence and the reduction or apportionment, in terms of Act 34 of 1956, of the compensation claimable. Here of overriding importance is the fact that the claimant, Boy-Boy, was only seven years and seven months at the time of the accident. The principles applicable B in such a case have been fully considered by the Court in three cases: South British Insurance Co. Ltd. v Smit, 1962 (3) SA 826 (AD); Jones, N.O. v Santam Bpk., 1965 (2) SA 542 (AD); Neuhaus, N.O. v Bastion Insurance Co. Ltd., 1968 (1) SA 398 (AD). The position may be summarised as follows:

(1)

Sec. 1 (a) of Act 34 of 1956 provides that where a person suffers damage which is caused partly by his C own fault and partly by the fault of another, the damages recoverable shall be reduced

"to such extent as the Court may deem just and equitable having regard to the degree in which the claimant was at fault in relation to the damage".

In this context "fault" means a negligent act or omission causally linked with the damage in issue (Smit's case, supra at D pp. 835 - 6). The assessment of the degree in which the claimant was "at fault in relation to the damage" necessarily involves a determination of the degree in which the defendant (postulating a single defendant) was also at fault in relation to the damage, i.e. the degree of his causal negligence. The E Court is, accordingly, required to determine, having regard to the circumstances of the particular case, the respective degrees of negligence of the parties. In assessing the degree to which the claimant was at fault in relation to the damage, it must determine in how far the claimant's acts or omissions, causally linked with the damage in issue, deviated from the norm of the bonus paterfamilias; and, in thus assessing the F position, the Court will determine the respective degrees of negligence of the parties, as reflected in their acts or omissions, which have together combined to bring about the damage in issue (Smit's case, supra at p. 836). This must be done on the basis of comparison between the respective degrees of negligence of the two parties (Jones' case, supra at p. 555).

(2)

Where the claimant is a child the apportionment of G fault, or causal contributory negligence, involves a consideration of the question as to whether at the time the damage was suffered the claimant was culpae capax or not. If not, then cadit...