The Northern Cape Department of Education has failed in its court bid to force a bus company to pay a bigger portion of a R10-million lawsuit instituted by a pupil who lost her leg in an accident while on her way to school.
The department sought to have the court apportion 60% of the damages to the bus company, and have it account for only 40% of the settlement.
Acting judge Magafe Ramaepadi, who heard the matter on March 15, 2022 to decide on the apportionment of the damages, found that there was no factual or legal basis for the apportionment of the damages between the department and the bus company.
The accident happened 18 years ago in New Town, Postmasburg when the woman –who was then a grade 5 pupil – fell off the moving bus, which is owned by Frans Hael trading as Frans Hael Busdienste, who was contracted by the education department to transport pupils.
Her right leg, which was fractured, had to be amputated.
Lawyers for the woman submitted that it was foreseeable that a pupil carried on the bus would suffer harm and damages if it was overloaded or alternatively, if more pupils were transported than seats were available so that some would have to stand.
The court also heard that “specifically primary school learners, were allowed to stand near or at the door of the bus when it was not in a completely stationary position”.
While the liability of the bus company was found to be from a wrongful act, the court ruled the liability of the state was statutory in nature.
The consent order issued by Judge Mpho Mamosebo on May 15, 2019 declared the Northern Cape Department of Education and the bus company joint wrongdoers.
On March 14, 2022, the damages were settled, ordering the education department and the bus company to pay the pupil R10-million. This left the question of equitable apportionment of the damages, which was heard on March 15 2022 by Ramaepadi.
“I do not see how the court could have determined… that the first and fifth defendants on the one hand and the second defendant, on the other, are joint wrongdoers for purposes of the Apportionment of Damages Act, when it had not determined their respective degrees of negligence,” Ramaepadi said in his judgment delivered on September 6.
Ramaepadi ordered no apportionment of liability between the state and the bus company:
“Each of the defendants shall bear their own costs.”
