The court concluded that the passenger in the moving vehicle lifted the emergency brake, leaving the driver no longer in control of the vehicle.
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The Western Cape High Court was recently confronted with the legal question of whether a passenger, who suddenly pulls up a handbrake while the driver is driving, thus causing an accident, becomes “the driver” of the vehicle in terms of the Road Accident Fund Act.
The court concluded that the passenger in the moving vehicle lifted the emergency brake, leaving the driver no longer in control of the vehicle. Thus, the passenger took control of the vehicle and became the “driver” for purposes of liability.
The matter came under scrutiny after the driver, Rondene Jantjies, was seriously injured during the incident. She claimed damages from the Road Accident Fund, but the latter disputed liability as it argued that the passenger was not the driver, as required in the Road Accident Fund Act.
Jantjies testified that on the morning in question she collected her boyfriend from his home. She recalled that he was very agitated as he had a computer exam for which he was going to be late.
The weather was clear, the roads were quiet, and she was driving at around 60 km/h. The passenger suddenly and without warning pulled up the handbrake. The last thing she remembered was waking up in the hospital. Jantjies sustained injuries to her legs, arm, spinal cord, and face, while her boyfriend died on the scene.
An eyewitness who was driving behind the vehicle testified that it just left the road and overturned.
Acting Judge AG Christians remarked that the RAF Act states that “a motor vehicle which is being propelled by any mechanical, animal, or human power or by gravity or momentum shall be deemed to be driven by the person in control of the vehicle".
The judge commented that he could not find any authority directly on the point of whether a passenger could be “a driver,” nor could the parties direct him to any such authority.
It is, therefore, necessary to consider analogous cases and how courts have, over time, interpreted and applied the meaning of “drive” and “driver” for purposes of determining third-party insurance (or criminal) liability.
The judge pointed out that had the plaintiff herself lifted the handbrake and caused the vehicle to overturn, there would be no dispute that her doing so was part and parcel of her driving the vehicle.
In responding to arguments by the RAF that it cannot be held liable for collisions caused by passengers, the judge commented that suppose the plaintiff’s vehicle had hit a pedestrian. “If the argument advanced on behalf of the RAF is correct, such a pedestrian would have no claim against it".
Judge Christians said the very purpose of the RAF Act is to ensure that third parties who are injured as a result of negligently or unlawfully caused motor collisions can adequately be compensated.
“The purpose of the RAF Act would be subverted if a pedestrian in this scenario could not claim compensation from the RAF simply because the passenger had taken control of the vehicle away from the driver.”
The judge added that if a pedestrian in this scenario would be entitled to compensation in terms of the RAF Act, then there is no reason why a driver in the position of the plaintiff should not also be entitled to compensation.
“My reasoning in no way suggests that any negligent act by a passenger that results in a collision will justify a claim for compensation against the RAF. If, for example, a passenger acts foolishly and obstructs a driver’s vision whilst the vehicle is in motion and thereby causes a collision in some way or another, such a passenger cannot be said to have taken control of the vehicle,” the judge explained.
The RAF was consequently held liable for 100% of the plaintiff’s proven damages.
Cape Times