A PORT Elizabeth motorcyclist who was seriously injured during an unlawful high- speed race at the Scribante race track has lost his first round against the Road Accident Fund (RAF) and is now likely to approach the Supreme Court of Appeal (SCA) for permission to take the matter further.
This came after the Port Elizabeth High Court ruled that the RAF could not be expected to pay damages to Adam Plumridge because he knew he was participating in a dangerous activity and could likely be severely injured.
But Plumridge’s legal team, headed by Cape Town-based advocate Theoniel Potgieter SC, said in heads of argument they believed the SCA would find that the RAF be held liable to compensate Plumridge for the other driver’s negligence, even though he had been participating in a high-risk activity.
Plumridge’s claim for damages relates to an incident at the Scribante race track on November 4 2007.
At the time he and a friend were trying to see how fast they could go around the track, at speeds that, according to the court record, often exceeded 240km/hour. They did not have permission to be there and no officials were manning the track.
When Plumridge finished one of his laps, he did a "wheelie”. At the same time, another motorcyclist, known only as "Dates”, ploughed into him.
In his judgment, Judge Phakamisa Tshiki said there was "overwhelming evidence” that the motorcyclists were using the track without permission and at their own risk.
They should have foreseen that there could be other racers on the track at the very same time they themselves were being timed – especially as no-one was controlling access to the track, he said.
"Therefore Plumridge cannot [use] the excuse that he was not aware of Dates’s presence on the track. He should reasonably have foreseen that another motorcyclist could have been on the track with him and take the necessary precautions.”
Tshiki found that Plumridge was aware of the high risks inherent in what they were doing, but decided to continue anyway. Under South African law this would mean that he could not sue for his injuries.
He said there were several risk factors present. The race track was neither manned nor controlled. None of the motorcyclists had permission to use the track.
"It is needless to say that a speed of about 240km/h in those circumstances could not save a person from death ... Consequently, they both consented to reckless driving.”
He said the RAF’s defence that Plumridge was barred from claiming for damages as he had consented to taking part in a high-risk activity and knew he could be injured, was justified.
Potgieter said in his heads of argument they were not arguing that the court should overlook the fact that Plumridge was going too fast, but that Plumridge should still be compensated as Dates was negligent.
"Everyone on the Scribante track rode at high speeds, since this is what they came there for,” Potgieter said.
The court has not yet heard evidence on the extent of Plumridge’s injuries as the judge first had to decide if his claim against the RAF would be successful before considering the amount of damages due to him.