negligence and motor vehicle accident
16 March 2007

The decision in Madzunye and another v Road Accident Fund 2007 (1) SA 165 (SCA) is important for the practical example which it provides of the establishment of negligence on the part of the wrongdoer who has caused a motor-vehicle accident.

In dismissing the appellants' claim for damages for bodily injuries sustained in a motor vehicle accident the High Court had to determine whether or not the drivers of a bakkie and taxi had been causally negligent in the following circumstances: the bakkie executed a right-hand turn at a robot-controlled intersection in the face of oncoming traffic which had right of way. An oncoming vehicle (a car) swerved to avoid it and, in so doing, collided with a stationary taxi on the opposite side of the road. In arriving at its finding, the Court a quo relied on the fact, inter alia, that neither the car nor the taxi came into physical contact with the bakkie. The appellant appealed and sought the costs of the appeal on attorney and own client scale, alternatively attorney and client scale, on the ground that the judgment of the Court a quo was so clearly wrong that the respondent ought never to have opposed the appeal.

Held, that one of the respects in which the Court a quo had misdirected itself was in relying on the fact that neither the car (the oncoming vehicle) nor the taxi came into physical contact with the bakkie: physical contact was of no consequence whatsoever. 

Held, further, that since the bakkie had turned across oncoming traffic with a right of way, its driver had clearly been negligent.

Held, further, that it was the duty of the respondent to defend only litigation which was reasonably contestable; and that since the judgment of the Court a quo was so clearly wrong, the respondent ought never to have opposed the appeal. In these circumstances a punitive order as to costs was justified.  Appeal upheld with costs on the attorney and client scale.

For full story see De Rebus, March 2007 issue, pg 29.