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[2013] ZAGPJHC 285
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Prinsloo v Road Accident Fund (11/21384) [2013] ZAGPJHC 285 (15 November 2013)
REPORTABLE
REPUBLIC OF SOUTH
AFRICA
IN THE SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE NO: 11/21384
15 November 2013
In the matter between:
PRINSLOO,
LIZETTE
...................................................................................
Plaintiff
and
ROAD ACCIDENT
FUND
........................................................................
Defendant
J U D G M E N T
[1] The plaintiff
instituted an action claiming damages from the defendant arising from
the bodily injuries sustained during a motor
vehicle collision that
occurred on 12 January 2009.
[2] When the matter came
before court the parties had on an earlier date agreed to an
isolation of merits from quantum. The court
subsequently ruled in
favour of the separation in terms of Rule 33(4) of the Uniform rules.
Accordingly, the matter proceeded on
merits only.
[3]
It is an established principle in our law that, with one or two
exceptions, the plaintiff always bears the
onus
of
proving negligence on the part of the insured driver on a balance of
probabilities.
See:
Arthur
v Bezuidenhout and Mieny
1962
(2) SA 566
(AD)
at 576G;
Sardi
and Others v Standard and General Insurance Co Ltd
1977
(3) SA 776
(A)
at 780C-H; and
Madyosi
and Another v SA Eagle Insurance Co Ltd
[1990]
ZASCA 65
;
1990
(3) SA 442
(E)
at 444D-F.
[4] The issue for
determination is whether the insured driver was on a balance of
probabilities negligent or not. If she was, can
the resultant damages
suffered by the Plaintiff be causally linked to such negligent
driving.
[5] The court is
presented with two versions that are considerably poles apart and are
mutually exclusive at least on
whether
or not the Plaintiff gave a clear signal of her intention to change
lanes, whether or not it was safe for her to have moved
from the one
lane to the other when she did and the degree of negligence of the
Plaintiff and/or the insured driver.
[6]
Counsel for the Defendant referred to the case of
National
Employers General Insurance Co Ltd v Jagers
1984
(4) SA 437
(E)
at 440E-G, which sets out the approach that should be adopted when
faced with two mutually destructive versions. Eksteen AJP
stated:
“…
Where
the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can only
succeed if he
satisfies the court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable,
and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether
that evidence
is true or not the court will weigh up and test the plaintiff’s
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities
of the case and, if the balance
of probabilities favours the plaintiff, then the court will accept
his version as being probably
true. If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff’s
case any more
than they do the defendant, the plaintiff can only
succeed if the court nevertheless believes him and is satisfied that
his evidence
is true and that the defendant’s version is
false.
”
[7]
The approach on mutually destructive versions as delineated above
obtained a stamp of approval from the Supreme Court of Appeal
in 2003
in the case of
Stellenbosch
Farmers Winery Group Ltd and Another v Martell Et Cie and Others
2003
(1) SA 11
(SCA)
at 14I-15E, where the court restated the law as set out in the
National Employer General Insurance co. Ltd case
supra
.
[8]
The principles extracted from these two cases are that when there are
mutually destructive versions before court, the plaintiff’s
onus
of
proof can only be discharged if he proves his case on a preponderance
of probabilities and that the prerequisite that a court
must be
satisfied that the plaintiff’s version is true and that of the
defendant false in order for the plaintiff to succeed
in discharging
his
onus
of
proof, is only applicable in cases where there are no probabilities
one way or the other.
See:
African
Eagle Life Assurance Co Ltd v Cainer
1980
(2) SA 324
(W).
[9]
The insured driver denies that she drove negligently and that such
negligence was the cause of the ensuing damages now claimed
by the
Plaintiff. She states that she was confronted with a situation of
sudden emergency and had to make decisions that were apt
for the
prevailing moment.
[10]
For the Defendant to be liable for the damages of the Defendant on
the basis of negligence the Plaintiff will have to demonstrate
that:
10.1
a reasonable person in the position of the defendant –
I.
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
ii.
would take reasonable steps to guard against such occurrence; and
10.2
the defendant failed to take such steps.
See
in this regard the case of
Kruger
v Coetzee
1966
(2) SA 428
(A)
at 430 E-G.
[11]
After leading the evidence of the Plaintiff and her son, with whom
she was travelling at the time of the accident, the Plaintiff’s
legal team closed its case. The insured driver was the only witness
which testified in support of the Defendant’s case. The
Plaintiff took the stand and testified that:
11.1
On the morning of 12 January 2009 she and her son were riding a
motorbike. She was taking her son to work and the son was running
late;
11.2
She was travelling on the left hand side lane behind a bus that was
moving fairly slowly, stopping and starting as there was
traffic;
11.3
In preparation to swap lanes she moved to the periphery of the two
lanes.
11.4
She signalled her intention to switch over to the right hand side
lane;
11.5
She looked into her rear view mirror to check if there was any
traffic approaching from behind;
11.6
She also turned her head to the right and then to the left and again
to the right to ascertain that she did not miss anything
in her blind
spot;
11.7
Having established that it was secure to change she moved to the
right lane and increased her speed;
11.8
She was then bumped by the insured driver from behind;
11.9
Her son (sitting behind her) flipped backwards and fell back onto the
right of centre of bonnet of the motor vehicle and then
bounced back
onto the bike;
11.10
In cross-examination, she was uncertain of this version but
subsequently stated that it was the correct one;
11.11
Immediately after the hump she tried to control the motorbike but
failed;
11.12
She lost consciousness between the moment the insured driver hit her
motorbike from behind and when her head came into contact
with the
ground surface;
11.13
Upon hitting the ground she gained her consciousness and told her son
to clear the road;
11.14
At no stage did she talk to the insured driver;
11.15
The insured driver did not hit the bike at high impact; and
11.16
She could not have avoided the collision occurring.
[12]
Sarel Prinsloo also took the stand and testified as follows:
12.1
On the morning of the 12
th
of January 2009 he was conveyed
on the back of a motorbike to work by the Plaintiff;
12.2
He noticed that his mother was planning to change lanes and that she
looked to her right and then to her left before she could
do so;
12.3
He could not tell whether or not she signalled her intention to move
over to the right hand lane;
12.4
He did not see the insured driver’s vehicle;
12.5
She accelerated as she was changing lanes;
12.6
He fell back onto the bonnet of the insured driver’s motor
vehicle as the motorbike was bumped by the insured driver;
12.7
After hitting the bonnet of the motor vehicle he bounced back onto
the bike;
12.8
Shortly after the accident he, as a manner of comforting the insured
driver, hugged and spoke to the Plaintiff and;
12.9
He took her details; and
12.10
The insured driver and the Plaintiff did not speak to each other;
[13]
Sarel Prinsloo was the last witness to testify on behalf of the
Plaintiff and that concluded the Plaintiff’s case. The
Defendant then called the insured driver who gave evidence as
follows:
13.1
On 12 January 2009 she was the driver of the insured vehicle;
13.2
She was driving in the right hand lane on Malibongwe Drive in
Randburg;
13.3
It is a very busy road, worse it was in the morning when most
motorists were on their way to work;
13.4
She travelled at approximately 60 km per hour;
13.5
The traffic lights had been red as she was approaching the
intersection;
13.6
The traffic lights then changed to green as she got closer;
13.7
There were no vehicles in front of her but traffic was stationary or
moving very slowly on the left lane;
13.8
The motorbike ridden by the Plaintiff and her son suddenly emerged
from the left lane as she was approaching the intersection
to join
her path of travel when she was approximately 15 to 10 Metres away;
13.9
The Plaintiff did not indicate that she was changing lanes;
13.10
She suddenly applied brakes but still collided with the Plaintiff’s
motorbike;
13.11
She could not have done any other thing to avoid the accident;
13.12
A swerve to her right side could have proved more perilous in that
her motor vehicle would have mounted the island and possibly
have
rolled the motor vehicle;
13.13
She could not have veered off to the left as there was a queue of
motor vehicles;
13.14
Damage to her vehicle was to the left front light, the left front
bumper and the left fender;
13.15
She became emotional after the accident had happened but she still
spoke with both the Plaintiff and her son; and
13.16
She recalls asking the Plaintiff why she did not signal that she
intended to move over to the right lane whereupon the Plaintiff
apologised.
[14]
The Plaintiff’s cross-examination did not yield any evidence
materially different from that which she gave in chief.
In essence
she stuck to what she stated in her examination in chief but somewhat
evasive and often stating that she was carrying
a “
precious
cargo
” and that “I do not have eyes at the back of my
haunches”. She also added that she never drove negligently and
therefore could not have begun to drive in a manner unbecoming of a
mother carrying his only child on that day.
[15]
The question that requires closer examination is the Plaintiff’s
decision to move from the left to the right lane. She
is adamant that
she looked into her rear view mirror to see if there were motor
vehicles approaching and in addition she also physically
turned her
head side ways to ensure that she did not miss anything in her blind
spot
[16]
It is undoubtedly very strange that she did not see the insured
vehicle approaching from behind prior to changing lanes. The
only
reasonable inference, which must be correct, is that she did not look
into the rear mirror and she also did not check her
blind spot as she
alleges. If she did see it then she must have misjudged the speed at
which the insured driver was approaching.
[17]
It is indisputable that had she seen it or had she not miscalculated
the speed of the insured vehicle, she would have refrained
to change
lanes and accordingly she would not have moved to the right lane when
she did. She therefore failed to keep a proper
lookout which led her
to execute a change of lanes when it was inopportune and dangerous to
do so. “
The duty of a motorist
to maintain a proper lookout involves not only the physical act of
looking, but also a reasonably prudent
reaction to whatever might be
seen. (See Corpus JurisSecundumvol 60A § 284 (3) – note
47.)
”
Per
Nel J in
Bridgman NO v Road Accident
Fund
[2002] 1 All SA 1
(C).
[18]
The Plaintiff’s assertion that she lost consciousness when the
insured vehicle collided with the motorbike and only regained
it upon
hitting the ground is specious and improbable. Common sense dictates
that she would have lost consciousness upon her head
hitting the
ground. In view of her evidence on how she came to change lanes this
court is suspicious that she did not signal to
other motorists that
she was intending to move to the right lane.
[19]
The averment that upon impact her son moved backwards and hit the
bonnet of the insured vehicle with his head and thereafter
bounced
back onto the motorbike is highly improbable. It is common cause that
the motorbike was humped from behind, the motorbike
was in motion and
accelerating and that the insured driver applied brakes hence the
impact was not as massive as it could have
been.
[20]
If one accepts the contents of the preceding paragraph then the
impact would have propelled the motorbike forward and the Plaintiff’s
son, Sarel Prinsloo, would have fallen backwards and hit the ground
and not the bonnet of the insured driver’s motor vehicle.
[21]
Sarel Prinsloo corroborated the version of the Plaintiff in so far as
the result of the impact of the insured vehicle and the
motorbike was
on him. For reasons that I have already stated in paragraphs [19] and
[20] above this is highly improbable and must
be rejected.
[22]
The insured driver travelled on the right lane which was completely
clear of any traffic. All the other motor vehicles were
on the left
lane. They were stationary beginning to move as a result of the
traffic lights that had just opened ahead. The duty
to ensure that it
was safe to change lanes was on the Plaintiff and not on the insured
driver. The insured driver could not have
foreseen that a motorist on
the left lane would swap lanes without giving a signal of her
intention to do so. Accordingly, it was
not incumbent on her to guard
against a remote possibility of a motorist taking on an act that was
completely unexpected.
[23]
The Plaintiff argues that the insured driver drove at an excessive
speed under the circumstances of this case and could have
avoided the
accident had she swerved further to the right. The insured driver
stated that she was driving at about 60 Kilometres
per hour nearing a
traffic lights controlled intersection when the Plaintiff suddenly
moved from the left hand lane to join her
path of travel in the right
lane.
[24]
She suddenly applied brakes but it was too late as she still bumped
the Plaintiff’s motorbike albeit that she was already
moving at
a slow speed hence the hump. This is entirely understandable
especially because she testified that the Plaintiff switched
lanes
when she (the insured driver) was about 15 to 10 Metres away.
[25]
Given that distance, no matter how any reasonable driver would have
applied brakes, he would still have bumped the Plaintiff’s
motorbike. She said that she could not have swerved to her right for
fear of hitting the embankment on her right. Had she done
so she
believes that the result would have been more catastrophic in that
her motor vehicle could have overturned and rolled upon
impact
thereby causing more damage and danger to other users of the road.
[26]
Equally, a veer off to the left could have turned out to be as
devastating because there was a queue of motor vehicles in that
lane.
[27[
Under cross-examination she admitted that had she swerved to the
right more than she already did she could have avoided the
collision
with the Plaintiff but as stated above that would have meant another
accident with more severe consequences. The only
evasive measure
available to her under those circumstances was to apply breaks, which
she did. She thought that she had taken all
the measures that any
reasonable driver in her shoes would have engaged.
[28]
The above constitutes the invocation of the doctrine of sudden
emergency being that
A
driver confronted with a
sudden
emergency
is
one who has neither the time nor the opportunity to weigh the pros
and cons of the situation in which he finds himself. See
Goode
v SA Mutual Fire & General Insurance Co. Ltd
1979
(4) SA 301
(W)
at 306G.
[29]
Similarly, in
Thornton
v Fisher
1929
AD 398
at
412
the
court stated:
“
In
judging the action of the motorist or a pedestrian faced with
sudden
emergency
due
allowance must be made for a possible error of judgment.
”
See
also:
Marine
& Trade Insurance Co. Ltd v Mariamah & Another
1978
(3) SA 480
(A).
[30]
The unexpected change of lanes from the left to the right by the
Plaintiff certainly gave rise to sudden emergency on the side
of the
insured driver and she had to act in the best manner possible to
avoid the danger. It must be remembered that the insured
driver’s
evidence is that she became aware of the sudden move into the right
lane by the Plaintiff when she was approximately
15 to 10 Metres
before impact. She cannot therefore be said to have been negligent
under the situation. See
Beswick
v Crews
1965
(2) SA 690
(A)
where it was held that an unpredicted swerve of a motor vehicle was
noted to give rise to a sudden emergency.
[31]
I am completely convinced that the insured driver found herself faced
with a sudden emergency which required her to employ
measures that
would be appropriate given the circumstances. Those measures may have
included measures which when one observes rationally
and under normal
situations to have been impetuous. Such actions taken under those
circumstances are excused by the doctrine of
sudden emergency.
[32]
I need to add that the sudden emergency in which she found herself
entangled was not of her own creation. Such emergency was
created by
the Plaintiff who suddenly moved in front of the insured vehicle
without any indication that she wanted to do so. In
this regard the
following is relevant:
“
However,
a party can rely on the doctrine of sudden emergency if and when the
sudden emergency is not of his own doing. If his actions
were the
reason or cause of the sudden emergency he can, for that reason, be
found to be negligent. Ntsala and others v Mutual
and Federal
Insurance Co Ltd
1996 (2) SA 184
(T).
”
The aforegoing passage
was quoted with approval by Pakade AJ in the case of
Ngxamani v
Road Accident Fund
[2002] 2 All SA 405
(Tk).
[33] In the result I hold
that:
[33.1]
I am
satisfied that on a preponderance
of probabilities the Defendant’s version is true and accurate
and therefore acceptable.
[33.2]
The version of the Plaintiff is false and accordingly stands to be
rejected;
[33.3]
The unexpected change of lanes from left to right without signalling
her intention to do so when the insured driver was about
15 to 10
Metres away created sudden emergency for the insured driver;
[33.4]
Given the prevailing situation, the insured driver’s reaction
to apply brakes was the most reasonable response as she
could have
neither turned to her left nor her right for fear of causing an
accident that could have turned out to be more fatal;
and
[31.5]
The Plaintiff has, on a balance of probabilities, failed to show that
the insured driver was negligent and that such negligent
was the
direct cause of her ensuing loss.
[34] Accordingly, I make
the following order:
1. The Plaintiff’s
claim is dismissed with costs.
B MASHILE
JUDGE OF THE SOUTH
GAUTENG
HIGH COURT,
JOHANNESBURG
Date Heard: 20/05/2013
Date of Judgment:
15/11/2013
Counsel for the
Plaintiff: Adv. Z Khan
Instructed by: Ronald
Bobroff Attorneys
Counsel for the
Defendant: Adv. C Snoyman
Instructed by:
Eversheds