Mgcina v Attorneys Insurance Indemnity Fund and Others (03/27289) [2005] ZAGPHC 382 (24 August 2005)

Mgcina v Attorneys Insurance Indemnity Fund and Others (03/27289) [2005] ZAGPHC 382 (24 August 2005)

The court found that the insured driver was negligent by failing to keep a proper lookout for children who might emerge from behind the stationary truck, proceeding at an excessive speed, and failing to signal her approach. The driver should have slowed down and exercised heightened vigilance given the busy street...

Source-derived case information.

Citation
[2005] ZAGPHC 382
Parties
Plaintiff: Mgcina, Fankie Samuel; Defendant: Attorneys Insurance Indemnity Fund; Defendant: Arnold Mkhabela; Defendant: Mr T C Maluleke
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
24 August 2005
Case Number
03/27289
Procedural Posture
Civil Trial / Separation of Issues; Determination of Liability and Capacity
Outcome
The insured driver was found negligent and causally responsible for the collision. T was found to be culpae incapax. The first defendant’s conditional counterclaim and third party joinder application were dismissed. Costs were reserved.
Judges
P.A. Meyer
Legal Topics
Negligence, Culpae Incapax, Road Accident Fund, Apportionment of Liability, Third Party Joinder
Delict Civil Procedure Negligence Culpae Incapax Road Accident Fund Apportionment of Liability Third Party Joinder

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Summary, issues, holding and outcome

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Parties

Mgcina, Fankie Samuel

Plaintiff

Attorneys Insurance Indemnity Fund

Defendant

Arnold Mkhabela

Defendant

Mr T C Maluleke

Defendant

Procedural Posture

Civil Trial / Separation of Issues; Determination of Liability and Capacity

Legal Issues

  1. 1 Was the insured driver negligent at the time of the collision and immediately prior thereto.
  2. 2 Did the negligence of the insured driver causally contribute to the collision with T.
  3. 3 Was T, the minor child, culpae capax at the time of the collision.

Ratio Decidendi

The court found that the insured driver was negligent by failing to keep a proper lookout for children who might emerge from behind the stationary truck, proceeding at an excessive speed, and failing to signal her approach. The driver should have slowed down and exercised heightened vigilance given the busy street and the presence of children. The negligence of the insured driver causally contributed to the collision with T. The evidence established that T, being eight years old and emotionally and intellectually underdeveloped, was not culpae capax at the time of the collision. The first defendant’s conditional counterclaim and third party joinder against the plaintiff in his personal...

Court Disposition

The insured driver was found negligent and causally responsible for the collision. T was found to be culpae incapax. The first defendant’s conditional counterclaim and third party joinder application were dismissed. Costs were reserved.

Orders

  • The insured driver was negligent at the time of the collision and immediately prior thereto.
  • The negligence of the insured driver contributed causally to the collision between the car driven by the insured driver and T.