Mutual and Federal Insurance Company Limited v Faith Day

On 4 February 1993, a Komatsu model FD60 forklift collided with a parked motor vehicle in Byron Road, Kensington, Port Elizabeth, which in turn collided with the respondent who was a pedestrian at the time. The respondent suffered bodily injuries and sued the appellant, an appointed agent under the Multilateral Motor Vehicle Accidents Fund Agreement, for compensation. The forklift had features including headlights, hooter, indicators, brake lights, reflectors, rear view mirrors, pneumatic tyres, and a top speed of 32 kmph. It was larger than standard forklifts, could lift 6 tons, had a sizeable counterweight, and used rear wheel steering. The forklift was primarily used to lift and shift loads in a yard of 2-3 hectares but also travelled on public roads, including an 8 kilometer distance to maintenance operations. The forklift had rear wheel steering which caused over-steering and created a risk of capsizing, particularly with sudden steering movements.

• Whether a Komatsu FD60 forklift with certain features constitutes a 'motor vehicle' as defined in Article 1 of the Agreement Establishing a Multilateral Motor Vehicle Accidents Fund given force of law under section 2 of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989
• The proper interpretation of 'designed for propulsion on a road' in the context of the statutory definition of 'motor vehicle'
• The relevance of a vehicle's actual use on public roads versus its design purpose
• The significance of Road Traffic Regulation 436 which provides for the use of forklifts on public roads

1. The appeal was upheld with costs including the costs of the application for special leave to appeal. 2. The order of the Full Bench was set aside. 3. The forklift vehicle (registration number CB 234 050) was declared not to be a 'motor vehicle' as defined in Article 1 of the Agreement Establishing a Multilateral Motor Vehicle Accidents Fund. 4. The plaintiff (respondent) was ordered to pay the defendant's (appellant's) costs including the qualifying expenses of Mr Grobbelaar and the pre-trial inspection in loco.

A vehicle is not a 'motor vehicle' within the meaning of Article 1 of the Agreement Establishing a Multilateral Motor Vehicle Accidents Fund if its use on a public road would be regarded as extraordinarily difficult and hazardous despite having certain road-worthy features. The test is whether the ordinary, reasonable person would perceive that driving the vehicle on a road used by pedestrians and other vehicles would be extraordinarily difficult and hazardous unless special precautions or adaptations were effected. The word 'designed' conveys the notion of the ordinary, everyday and general purpose for which the vehicle was conceived and constructed. Just because a vehicle can be used on a road does not mean it was designed for propulsion on a road. Where a vehicle has inherent design limitations such as rear wheel steering causing dangerous over-steering and risk of capsizing that make it hazardous for general use on public roads, it falls outside the statutory definition even if it has features like headlights, indicators, and brake lights. Compliance with Road Traffic Regulations permitting certain specialized vehicles on roads does not determine whether such vehicles are 'motor vehicles' within the statutory definition.

The Court observed that while the decision may appear harsh on the respondent, she was not without other remedies and could have chosen to sue the local authority which owned the Komatsu or could have joined it in the action against the appellant. The Court noted that it is conceivable that in a particular case a forklift owner, designer or manufacturer may be able to persuade a court that the kind of steering problem identified does not pose a hazard so as to exclude the particular forklift from the definition. The Court commented that features such as headlights and windscreens may enhance a forklift for its primary purpose (for example, headlights for use at night or in dark storage sheds, windscreen for inclement weather) rather than indicating design for road use. The Court noted that the fact that a vehicle has a primary purpose does not mean it could not have been designed for a secondary purpose such as for use on public roads, though this was not a limitation imposed by Chauke.

This case is significant in South African motor vehicle accident law as it provides important clarification on what constitutes a 'motor vehicle' under the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989. It confirms and applies the principle from Chauke v Santam Limited that the test is objective - whether the ordinary reasonable person would perceive the vehicle's use on a road as extraordinarily difficult and hazardous. The case establishes that compliance with Road Traffic Regulations permitting certain vehicles on roads does not automatically mean those vehicles fall within the statutory definition of 'motor vehicle' for accident fund purposes. It demonstrates that design features enhancing safety do not necessarily transform a vehicle designed primarily for specialized purposes into one designed for road use. The judgment has practical implications for victims of accidents involving specialized equipment, as it limits recovery under the motor vehicle accidents fund and directs claimants to pursue alternative remedies against vehicle owners or local authorities.