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[2014] ZAGPJHC 310
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Botes v Road Accident Fund (09479/2013) [2014] ZAGPJHC 310 (3 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 09479/2013
DATE:
03 NOVEMBER 2014
In
the matter between:
JOHAAN
DANIEL BOTES
...........................................
PLAINTIFF
And
ROAD
ACCIDENT FUND
...........................................
DEFENDANT
JUDGMENT
COLLIS
AJ:
[1]
The plaintiff, an adult male, has instituted a damages action against
the defendant for certain bodily injuries he sustained
in a motor
vehicle collision on 3 November 2011. At the time of the accident the
plaintiff was the driver of a black scrambler
motorbike 180 CC which
collided with a maroon Toyota Corolla motor vehicle, bearing
registration number TSH 738GP, there and then
being driven by Ms
Mamaele Thekoane, referred to as the insured driver.
[2]
In the particulars of claim at paragraphs 5 and 10 thereof the
plaintiff alleged as follows:
“
5
The sole cause of the collision aforesaid was the negligent driving
of the said Ms Mamaele Era Thekoane; she having been negligent
in one
or more or all of the following respects:
5.1
She failed to keep a lookout,
alternatively
, any proper
lookout; and /or
5.2
She failed to keep the insured vehicle of which she was the driver
under any,
alternatively
, any proper control; and/or
5.3
She failed to avoid the collision when, by the exercise of reasonable
care, she could or should have done so; and/or
5.4
She failed to apply the brakes of the insured vehicle of which she
was the driver timeously or at all; and/or
5.5
She failed to allow the Plaintiff a safe berth at a stage where she
could and should have done so; and/or
5.6
She failed to give any audible or visual signs to warn the insured
vehicle, of any possible danger; and/or
5.7
She failed to pay due regard to the rights of other users of the road
and in particular the rights of the Plaintiff; and/or
5.8
She drove her insured vehicle onto the road at a moment when it was
inopportune and dangerous to do so; and/or
5.9
She proceeded to execute a right hand turn in front of the Plaintiff,
who had the right of way at the time when it was both
dangerous and
inopportune to do so; and /or
5.10
She failed to exercise the care a reasonable person would and could
have exercised under the circumstances.
10
The impact of the aforesaid collision caused the Plaintiff to sustain
the following bodily injuries as reflected in the serious
injury
assessment completed by Dr M de Graad, Orthopaedic Surgeon, dated 20
December 2012, a copy of which is annexed hereto, as
annexure “B”:
10.1
Open reduction and internal fixation of fracture (left) femur.”
[3]
In its plea the defendant denied the allegations and placed the
plaintiff to proof thereof.
THE
DISPUTE
[4]
The matter comes before me for the determination of the
liability
and the
quantum
of damages suffered by the plaintiff. In
the event of the plaintiff being successful on the merits, I was
called upon to
decide the quantum of damages for the plaintiff’s
past loss of earnings and future loss of earnings and /or earning
capacity
more particularly the retirement age of the plaintiff and
the contingencies to be applied.
COMMON
ISSUES
[5]
Insofar as the plaintiff’s claim for future hospital and
medical expenses is concerned, the defendant has undertaken to
furnish the plaintiff with an undertaking in terms of Section 17(4)
(a) of the Road Accident Fund Act, Act 56 of 1996 for the costs
of
the future accommodation of the plaintiff in a hospital or nursing
home or treatment of or rendering of a service or supplying
of goods
to him after the costs have been incurred and upon proof thereof
subject limitation of an apportionment of liability,
if any.
[6]
As the injuries sustained by the plaintiff was not placed in dispute
by the defendant, the parties further agreed to refer the
issue of
general damages herein to the Health Professional Council of South
Africa tribunal for a determination on the severity
and seriousness
of the plaintiff’s injuries sustained in the collision. The
plaintiff did not proceed with his claim for
past hospital and
medical expenses.
[7]
It should also be mentioned that at the commencement of the trial the
defendant abandoned its special plea.
THE
EVIDENCE
[8]
The plaintiff, Mr Johaan Botes testified that on 3 November 2011, he
was travelling from Eikenhof towards Alberton on Swartkoppies
Road.
He was travelling on the right lane at point A as is depicted on
Exhibit A (the sketch plan). On the morning in question,
he was
riding his scrambler motorbike and his daughter Vicky Botes was his
passenger. They were both wearing their helmets. He
described the
weather conditions as clear and sunny with no rain and the road
surface as tarred and smooth. He testified that the
flow of traffic
was fairly heavy.
[9]
He described Swartkoppies Road to be a dual carriageway, with two
lanes to the left of the road and a further two lanes to the
right of
the road carrying traffic in the opposite direction. Both sides of
the dual carriageway allowed for traffic to execute
a turn into Peggy
Vera Road. He testified that he was familiar with the area and with
the specific intersection in question.
[10]
He testified that the traffic light facing his direction turned green
from red upon him approaching the said intersection.
He was at a
distance of 7-8 metres away from the vehicles travelling ahead of him
when that occurred. The vehicles which had been
stationary at the
intersection, proceeded to drive off.
[11]
He testified further that he was in a continuous motion and that he
made his way through the intersection. At a distance of
approximately
5 metres away, he then noticed the insured driver travelling in his
opposite direction intending to turn right across
his path of travel.
[12]
The distance between him and the insured driver by then had been too
close. In an attempt to avoid the collision he slammed
his brakes and
swerved to the right. The collision however could not be avoided and
he struck the insured driver on her left rear
door and wheel. He
described the point of impact as X on Exhibit A, almost towards the
centre of the intersection in the same lane
as the lane that he was
travelling in.
[13]
On impact his daughter was flung from his motorbike to the opposite
side of the intersection at the island dividing the dual
carriageway
and he was dragged to the left lane by the vehicle of the insured
driver.
[14]
The collision left him in shock, he could not move and as a result of
the collision, he sustained injuries.
[15]
In cross examination he elaborated that upon approaching the
intersection and having a clear view of the intersection, the
insured
driver allowed the vehicles travelling ahead of him an opportunity to
pass before she proceeded to execute her right turn.
[16]
The plaintiff’s witness, Ms Vicky Botes testified that on the
day of the collision she was a passenger on the plaintiff’s
motorbike on her way to school. Travelling along Swartkoppies Road,
she had a clear view of the approaching intersection as it
was her
habit to lean over the shoulder of her father. As they got closer to
the intersection with Peggy Vera, the traffic light
facing them had
turned from red to green and vehicles stationary ahead of them
proceeded to cross into the intersection. Upon their
motor bike
approaching the white line at the intersection, the insured driver
then suddenly turned in front of them and at this
point the collision
occurred. On impact she was flung from her father’s motor bike
and upon landing on the road surface had
lost the helmet she was
wearing. She also sustained injuries during the collision.
[17]
After the plaintiff had presented his
viva voce
evidence his
legal representative applied for an amendment of his Particulars of
Claim, which amendment was not opposed by the
Defendant. The
amendment was effected as per the Notice given in terms of Uniform
Rule 28 dated 3 September 2014.
[18]
In addition thereto, the parties by agreement requested the Court to
record as exhibits the following reports:
18.1
Exhibit D, the Joint Minutes of the Industrial Psychologists dated 26
August
2014.
18.2
Exhibit E, the Joint Minutes of the Occupational Therapists dated 25
August
2014.
18.3
Exhibit F, the Revised Actuarial Calculations by Gerard Jacobson
Consulting
Actuaries, dated 2 September 2014.
[19]
The insured driver, Ms Thokoane testified that on the day of the
collision she was travelling on Swartkoppies Road in the opposite
direction to the direction of the plaintiff. Upon approaching the
intersection with Peggy Vera, she selected the right turning
lane,
switched on her indicator, slowed down and proceeded to traverse into
the intersection. As there were oncoming vehicles travelling
in the
opposite direction on Swartkoppies, which vehicles at the time, were
in the process of crossing the said intersection, she
waited for them
to pass. When the traffic light turned amber vehicles approaching
from this direction all had come to a stop and
it was at this point
that she proceeded to execute her turn.
[20]
In the process of turning and having traversed across two lanes
already, she then heard a bang at the back of her vehicle on
the left
hand side at point C as depicted on Exhibit A. The impact caused her
vehicle to spin around and to face the opposite direction
to which
she had been travelling. She further testified that given where
she had been struck she concluded that the motor
bike was emerging
from point F as illustrated on Exhibit A.
[21]
During cross examination, she denied that the collision occurred at
the point of impact as testified to by the plaintiff, but
conceded
that on the day of the collision that the plaintiff had right of way.
The witness further conceded that prior to the point
of impact she
did not see the motor bike of the plaintiff and had only noticed the
motor bike after the collision.
THE
LAW
[22]
At the conclusion of the
viva voce
evidence, this court was
faced with two mutually destructive and irreconcilable versions as to
how the collision occurred. In this
regard Nienaber JA stated in the
decision of Stellenbosch Farmers Winery Group Ltd & Another v
Martell et cie & Others
2003 (1) SA 11
SCA, as to what technique
to be employed by the courts in resolving factual disputes in order
to come to a conclusion. The court
is required to make findings on
(a) the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities.
In the present instance, two
issues arise for consideration:
22.1
which of the two irreconcilable versions is more probable;
22.1
and secondly the duties upon a driver who enters a traffic light
controlled intersection.
[23]
On the question of
onus
, it has been held in previously
decided cases that a party who asserts has a duty to discharge the
onus of proof. In African Eagle
Life Assurance Co Ltd v Cainer
1969(1) SA 553 (A) Coetzee J applied the principle set out in
National Employers General Insurance
Association v Gany
1931 AD 187
as follows:
‘
Where
there are two stories mutually destructive before the onus is
discharged the Court must be satisfied that the story of the
litigant
upon whom the onus rests is true and the other false. It is not
enough to say the story told by Clarke is not satisfactory
in every
respect, it must be clear to the Court of first instance that the
version of the litigant upon whom the onus rests is
the true
version……”
[24]
Having regard to the totality of the evidence, it is common cause
that the collision occurred as the insured driver was in
the process
of executing a right turn across a path of travel, of which the
plaintiff had a right of way. According to the insured
driver, she
was already on the intersection, when she heard a bang at the back of
her motor vehicle.
[25]
The conduct of the insured driver (executing a right turn), should be
judge against the following principles confirmed by Msimeki
J in the
matter of Jacobs v Road Accident Fund
[1]
25.1
To turn across the path of oncoming or following traffic is an
inherent dangerous manoeuvre and that a driver who intends executing
such a manoeuvre bears a stringent duty to do so after satisfying
himself that it is indeed safe to do so after satisfying himself
that
it is indeed safe and then choosing the right moment
(See AA
Mutual Insurance Association Ltd v Noneka,
1976 (3) SA 45
(AD);
25.2
A driver turning to the right must signal his intention clearly and
avoid turning until an opportune moment presents itself
(See Welf
v Christner
1977 (2) SA 170
(N);
25.3
He should only turn to the right once he has satisfied himself that
there is room enough between his motor vehicle and the
approaching
vehicles to allow him to complete the manoeuvre safely (
See R v
Court TPD 133 at 134);
25.4
A driver is entitled to assume that those who are travelling in the
opposite direction will continue in their course and that
they will
not suddenly and inopportunely turn across the line of traffic. This
assumption may continue until it is shown that there
is a clear
intention to the contrary
(See Van Staden v Stocks
1936 AD 18).
[26]
The author W E Cooper in his textbook Delictual Liability in Motor
Law Volume 4 at page 134 defines a driver’s duty to
keep a
proper look-out as follows:
It
entails ‘
a continuous scanning of the road ahead, from side
to side, for obstructions or potential obstructions.”
[27]
On assessing the witnesses, the plaintiff made a good impression on
the court. His evidence tendered, I found to be reliable
and
credible. Upon observing him, he was clearly not a very highly
educated individual but nevertheless, he was able to tender
his
evidence in a coherent and logic manner. Where necessary, he was able
to make concessions in favour of the insured driver,
such as
admitting having observed that the insured driver waited for vehicles
travelling in his direction to successfully pass
across the
intersection and thereby acting cautiously. He also conceded that his
statement made to the police contained an incorrect
assertion that
the insured driver admitted her fault to him on the day of the
collision, whereas this in fact did not occur.
[28]
Similarly, the witness who testified on behalf of the plaintiff made
a favourable impression on the court. Albeit that the
witness was
very young and not independent I still found her evidence to be
truthful and reliable. She too made certain concessions
during
her testimony, such as conceding that prior to giving evidence she
had discussed her recollection of how the collision occurred
with her
father.
[29]
The insured driver, I also found made a favourable impression on the
court. She too tendered her evidence in a coherent and
logical
manner. That having been said, I cannot however place reliance on her
evidence, nor is her version found to be probable
and this I say for
the following reasons:
29.1
It can be accepted that to turn to the right across the lane of
following or approaching traffic is a potentially dangerous
manoeuvre.
[2]
Furthermore, a
driver who intends to turn right should refrain from turning until an
opportune moment.
[3]
The insured
driver testified that she did not see the plaintiff prior to the
collision even though she observed other vehicles
approaching from
the same direction as the plaintiff and waited for these vehicles to
come to a standstill prior to executing her
turn. If it was to be
accepted that indeed she kept a proper look-out, she fails to explain
why she did not observe the plaintiff
prior to executing her turn.
29.2
Furthermore, the insured driver conceded that the plaintiff and all
other traffic approaching in the same direction had right
of way. On
her testimony she gave other vehicles an opportunity to pass before
she proceeded to execute her turn at a point where
the traffic light
facing her had turned amber and other approaching vehicles had come
to a stop. The plaintiff on the other hand
gave evidence that he
proceeded to traverse through the intersection, at a stage when the
traffic light facing him, was green in
his favour. Even if it is to
be accepted that the traffic light facing the insured driver had
turned amber, all vehicular traffic,
including the plaintiff should
have cleared the intersection, before she proceeded to execute her
turn. On her own version, she
thus executed her turn at an
inopportune moment.
29.3
In considering the damage on the insured vehicle, i.e. such damage
having been recorded to the left rear side above the wheel,
such
damage sustained, is in line with the version of the plaintiff that
the collision occurred as he was in the process of traversing
through
the intersection and the insured vehicle then turned in front of him.
In this regard, the insured driver, not having observed
the
plaintiff, gave evidence that she was struck at point C (Exhibit A)
and thus had almost traversed entirely through the intersection.
Even
on this version, at best she should have waited for the plaintiff to
turn in front of her before executing her turn. Firstly
the plaintiff
had a right of way and secondly the plaintiff allegedly proceeded (on
her version) from an exclusively left turning
lane, point F (Exhibit
A). The damage to her vehicle supports the version of the plaintiff
and fails to explain, how on her version
the damage occurred to her
left rear side, above her wheel.
[30]
On the issue of probabilities it has been submitted correctly in my
view that there is nothing improbable about the plaintiff’s
version as to how the collision had occurred. On the contrary, I find
it to be improbable that the collision occurred as alleged
by the
insured driver.
[31]
On a proper conspectus of all the evidence I find that the collision
occurred solely by reason of the negligence of Ms Mamaele,
the
insured driver in one or more of respects referred to in the
particulars of claim. The insured driver was clearly negligent
in
failing to keep a proper look-out and thereby executing her right
turn across the plaintiff’s path when it was inopportune
to do
so.
[32]
On the liability thus the defendant is held liable to compensate the
plaintiff 100% of such damages as the plaintiff is able
to prove as a
result of the collision which occurred on 3 November 2011.
ON
QUANTUM
[33]
As to the injuries sustained by the plaintiff, the facts before court
are undisputed. Thus it is not disputed that the plaintiff
sustained
a left femur fracture, which rendered him unemployable.
[34]
At the outset it should be mentioned that no expert witnesses
testified before the court, and as such reliance had to be placed
on
the orthopaedic report, together with the actuarial report, in
addition to the joint minutes produced and handed in as exhibits
before the court. That having been said, I have no reason to reject
the findings of the orthopaedic surgeon and the actuary, together
with the joint minutes produced by the industrial psychologists and
the occupational therapists.
[35]
With reference to the joint minute of the industrial psychologist
[4]
,
both agree, albeit that no proof had been submitted that the
plaintiff’s highest level of education was an N3 certificate
to
qualify as a panel beater, and as at the date of the collision, that
the plaintiff had been self-employed. The industrial psychologist
further agreed that having regard to the age of the plaintiff (65
years), he will not be able to qualify for suitable positions
again
and is likely to remain unemployed for the remainder of his working
life.
[36]
If one has regard to the joint minute produced by the occupational
therapists
[5]
they agreed that
at the time of the accident the plaintiff was self-employed
performing contract work as a panel beater. Post-collision,
the
therapists further agree that the plaintiff is now limited in his
choice of work and in his ability to compete in the labour
market and
thus has been rendered unemployable in his chosen field of work.
[37]
The only actuarial report presented
[6]
before the court is that on behalf of the plaintiff, and it sets out
two calculations in respect of the plaintiff’s loss
of earnings
and /or earning capacity. Basis I calculation is based on a
retirement age of 65 years whereas Basis II is based on
a retirement
age of 67 and a half years.
[38]
Counsel appearing on behalf of the plaintiff had argued that given
that the plaintiff was self-employed at the time of the
collision, in
all likelihood he would have continued working up until age 67 and a
half years and as a result submitted that the
court should consider
Basis II as an equitable award. In rebuttal to the above, the only
counter argument presented on behalf of
the defendant, was that the
court should apply a higher contingency as the courts are not bound
by expert opinions and that such
expert opinions ought not to usurp
the function of the courts. As to the likely retirement age of the
plaintiff no evidence in
rebuttal was presented on behalf of the
defendant. As already mentioned no actuarial report was presented by
the defendant to disprove
the plaintiff’s quantum as suggested
by the report of M.S. Jacobson.
[39]
The said report, I am of the opinion, reflects an objective and fair
capitalised value of loss of income of the plaintiff.
I also find the
contingency deductions applied to be in line with prior cases albeit
that it must be borne in mind that contingency
calculations differ
according to the facts of each case. As to the likely retirement age
of the plaintiff, I am inclined to agree
with the sentiments
expressed by counsel for the plaintiff, that the plaintiff with his
fair good health permitting and the minimal
government pension
available, that in all likelihood the plaintiff would not have
retired at age 65 years.
ORDER
[40]
For the reasons as set out above following order is made:
40.1
The merits are awarded 100% in favour of the plaintiff;
40.2
The defendant shall furnish the plaintiff with an undertaking in
terms of section 17(4) (a) of Act 56 of 1996, in respect of
the
payment of cost of the plaintiff’s future accommodation in a
hospital or nursing home, or treatment of, or rendering
of a service
or supplying of goods to him arising out of the injuries sustained by
him in the motor collision which occurred on
3 November 2011 and the
sequelae
thereof, after such costs have been incurred and upon
proof thereof;
40.3
The defendant shall pay the plaintiff past loss of earnings in the
amount of R 315739;
40.4
The defendant shall pay the plaintiff future loss of earnings in the
amount of R 1120570;
40.5
Interest on the above amounts at a rate of 15,5% per annum calculated
from a date fourteen (14) days after date of judgment
to date of
final payment;
40.6
General Damages to be referred to the Health Professional Council of
South Africa;
40.7
The defendant shall pay the plaintiff’s costs of suit on the
High Court party and party scale.
C
COLLIS
ACTING
JUDGE OF THE HIGH COURT
Counsel
for plaintiff: S Naidoo
Attorney
for plaintiff: A Wolmarans Inc
Counsel
for defendant: S Mahomed
Attorney
for defendant: Duduzile Hlebela Inc.
Date
matter heard: 12 September 2014
Judgment
date: 3
November 2014
[1]
(A402/2008)
[2011] ZAGPPHC121 (13 June 2011)
[2]
S
v Olivier 1969 (4) SA 78 (N).
[3]
Allen
v Standard General
1983 (1) SA 628
(W)
[4]
See
Exhibit D
[5]
See
in this regard Exhibit E
[6]
See
in this regard Exhibit F