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[2014] ZAGPJHC 335
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Potgieter v Road Accident Fund (21931/2013) [2014] ZAGPJHC 335 (19 November 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE
NO: 21931/2013
DATE:
19 NOVEMBER 2014
In the matter
between
DARRYN BRADSHAW
POTGIETER
.........................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
......................................................
DEFENDANT
Motor vehicle –
negligence - contributory negligence - stated case - improper to
decide quantum of damages or factual issue
requiring evidence on
stated case -evidence analysed - plaintiff the only witness to have
testified - his version contradicted
by two earlier statements -
plaintiff negligent in failing to take sufficient avoiding action -
defendant liable for 90 % of the
amount agreed on as damages.
J U
D G M E N T
VAN OOSTEN J:
[1] In this action
the plaintiff claims damages from the defendant as statutory insurer
in respect of bodily injuries sustained
in a motor vehicle collision
on 14 March 2011. At the commencement of the trial the parties
requested me to decide the merits and
quantum of damages on a stated
case. I indicated to the parties that a proper adjudication of the
quantum of damages was not possible
on the meagre facts set out in
the stated case. Further negotiations ensued and the plaintiff’s
quantum of damages was eventually
settled in an amount of R2,3m.
[2] The trial
proceeded on the merits only. I was gain asked to determine
negligence on the stated case more in particular whether
the
plaintiff was contributory negligent. I once again indicated to
counsel for the plaintiff the difficulty in deciding a disputed
factual issue on the facts stated in the stated case. The plaintiff
was then called to testify. The insured driver could not be
traced
and the defendant closed its case without having called any
witnesses.
[3] The plaintiff
testified that he was the driver of a Jetta motor vehicle on the N12
highway east, consisting of three lanes,
on his way home after work,
at midnight on 14 March 2011 when the collision occurred. The fact of
the collision is not in dispute.
The plaintiff proceeded in the
middle lane up a steep hill past the Edenvale off-ramp at a speed of
approximately 100 kilometres
per hour when at the crest thereof and
around a curve in the road he encountered an unlighted truck and
trailer stationery across
the road right in front of him. At that
stage the truck was approximately 30 meters ahead of him. It was a
blind rise and he therefore
was unable to observe the truck any
sooner. It was raining and the road was wet. There was no time to
swerve and he slammed on
his brakes resulting in his vehicle
aquaplaning and colliding with the cabin of the truck, toward his
left.
[4] The plaintiff
bears the onus of proving negligence. The defendant was driven to
concede, in the absence of evidence gainsaying
that of the plaintiff
and explaining the manoeuvres of the truck prior to the collision,
that the insured driver was negligent.
The issue I am asked to
determine is whether the plaintiff was contributory negligent in
respect of which the defendant bears the
onus.
[5] The plaintiff’s
evidence was unsatisfactory witness in several material respects. His
version in court differed from the
version he proffered in a written
statement made shortly after the collision. In the statement no
mention is made of his vehicle
aquaplaning although there is a
reference to the rain that night. The statement further reflects that
after he had observed the
truck ‘it was too late to brake or
swerve to miss the truck’. As could be expected he was unable
in his evidence to
explain the contradiction. In addition the
plaintiff’s statutory statement makes no mention at all of
either braking or aquaplaning:
it is merely stated that there was
nothing the plaintiff could have done to avoid the collision. A
further difficulty arose: the
notion of a steep hill with a blind
rise after a curve in the road with a mere 30 meter lookout distance
towards the truck, prima
facie, seemed doubtful. I accordingly
requested the parties to conduct an inspection in loco with a view of
establishing the distance
at which the truck would have been visible
to the plaintiff on his approach. On resumption of the hearing I was
informed that an
inspection in loco at the scene of the collision had
been conducted, albeit in daylight, and that the parties are in
agreement
that the distance the truck would have been visible to the
plaintiff is 100 meters.
[6] I am not
satisfied that the plaintiff’s version in court can be accepted
unreservedly. The concern remains that the vital
aspect of
aquaplaning which afforded the plaintiff a sufficient explanation for
the collision occurring was mentioned for the very
first time in his
evidence. As I have pointed out. it is not mentioned at all in the
two statements and, I should add, it was also
not mentioned in the
facts set out in the stated case. That brings to the fore the
possibility of the plaintiff having reconstructed
or adapted the
events to suit his case in which he has a monetary interest. In the
absence of a proper explanation by the plaintiff
for the occurrence
of the collision it must be accepted that he failed to take the
necessary avoiding action once having observed
the truck in front of
him. I have had regard to the instructive reasoning in Santam
Versekeringsmaatskappy Bpk v Byleveld
1973 (2) SA 146
(A) and AA
Onderlinge Assuransie Assosiasie van SA v Van Rensburg en ‘n
ander
1978 (4) SA 771
(A), both dealing with collisions with an
obstruction in the road, in coming to the conclusion that the
plaintiff was negligent,
that his negligence contributed to the
collision taking place and that percentage of the plaintiff’s
contributory negligence
must be assessed at 10%. A draft order
prepared by counsel for the plaintiff in which I am merely required
to insert the percentage
of the defendant’s liability and the
resultant amount to be paid to the plaintiff, has been handed up. The
remainder of the
orders reflect the agreement between the parties.
[7] In the result
the draft order, marked ‘X’, is made an order of court.
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
COUNSEL FOR
PLAINTIFF ADV CH VAN BERGEN
PLAINTIFF’S
ATTORNEYS MUNRO FLOWERS & VERMAAK
COUNSEL FOR
DEFENDANT ADV EI MOOSA
DEFENDANT’S
ATTORNEYS SHAI MNGOMEZULU INC
DATES OF
HEARING 18 & 19 NOVEMBER 2014
DATE OF
JUDGMENT 19 NOVEMBER 2014