Fox v RAF (A548/16) [2018] ZAGPPHC 285 (26 April 2018)

Fox v RAF (A548/16) [2018] ZAGPPHC 285 (26 April 2018)

The appeal succeeded because the trial court misdirected itself in finding contributory negligence on the part of the plaintiff without any evidence led by the defendant to establish such negligence. The only evidence available was that of the plaintiff, who was not found to be unreliable. The trial court erred in relying on Beswick v Crews to determine the reasonable berth between the motorcycle and the bakkie, as the facts were distinguishable and no evidence was presented regarding the measurement of the road or vehicles. The defendant failed to discharge the onus of proving contributory negligence, and there was no causal link established between the plaintiff's conduct and the...

Citation
[2018] ZAGPPHC 285
Parties
Appellant: Llewellyn Fox; Respondent: Road Accident Fund
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 April 2018
Case Number
A548/16
Procedural Posture
Civil Appeal / Appeal Against Apportionment of Liability
Outcome
Appeal upheld; trial court's order set aside and replaced.
Judges
Tlhapi VV, Mavundla M, Mngqibisa-Thusi NP
Legal Topics
Apportionment of Damages Act, Negligence, Contributory Negligence, Motor Vehicle Collision
Delict Civil Procedure Apportionment of Damages Act Negligence Contributory Negligence Motor Vehicle Collision

Case Brief

Summary, issues, holding and outcome

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Parties

Llewellyn Fox

Appellant

Road Accident Fund

Respondent

Procedural Posture

Civil Appeal / Appeal Against Apportionment of Liability

Legal Issues

  1. 1 Whether the trial court correctly apportioned liability between the plaintiff and the insured driver.
  2. 2 Whether the plaintiff was contributorily negligent in the circumstances of the collision.
  3. 3 Whether the defendant discharged the onus to prove contributory negligence on the part of the plaintiff.

Ratio Decidendi

The appeal succeeded because the trial court misdirected itself in finding contributory negligence on the part of the plaintiff without any evidence led by the defendant to establish such negligence. The only evidence available was that of the plaintiff, who was not found to be unreliable. The trial court erred in relying on Beswick v Crews to determine the reasonable berth between the motorcycle and the bakkie, as the facts were distinguishable and no evidence was presented regarding the measurement of the road or vehicles. The defendant failed to discharge the onus of proving contributory negligence, and there was no causal link established between the plaintiff's conduct and the...

Court Disposition

Appeal upheld; trial court's order set aside and replaced.

Orders

  • The defendant is declared 100% liable for the damages incurred by the plaintiff.
  • The defendant is ordered to pay the costs of the appeal.