O'brien v Road Accident Fund (12/35034) [2015] ZAGPJHC 88 (25 May 2015)

57 Reportability
Personal Injury Law - Road Accident Fund

Brief Summary

Negligence — Road traffic accident — Collision between motorcycle and insured vehicle — Plaintiff, widow of deceased motorcyclist, claims damages from Road Accident Fund for loss of support and funeral expenses — Plaintiff alleges insured driver was negligent for failing to keep a proper lookout and encroaching into oncoming traffic lane — Court finds that the insured driver had encroached into the lane of oncoming traffic at the time of the collision, establishing negligence on his part — Plaintiff entitled to damages as a result of the insured driver's negligence.

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[2015] ZAGPJHC 88
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O'brien v Road Accident Fund (12/35034) [2015] ZAGPJHC 88 (25 May 2015)

REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 12/35034
DATE: 25 MAY 2015
In the matter between:
O’BRIEN, MANDY
SYLVIA
......................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
Heard on 13-17 March 2015
Judgment delivered on 25 May 2015
JUDGMENT
VAN NIEKERK J:
[1] On the afternoon of 28 March 2009,
a Suzuki motorcycle driven by Mr. Malcom O’Brien collided with
a white Audi sedan driven
by Mr. Shane Jupp (the insured driver). The
plaintiff is Mr. O’Brien’s widow. She sues the defendant
(the Fund) for
the sum of R 520 000, being loss of support both in
her personal capacity and as the mother and guardian of her minor
child, and
funeral expenses. These proceedings are concerned only
with the determination of negligence, the issues of liability and
quantum
having been separated in terms of an order granted by this
court on 12 March 2015.
[2] The plaintiff contends that the
sole cause of the collision was the negligent driving of the insured
driver. In particular,
the plaintiff contends that the insured driver
failed to keep a proper lookout, that he failed to drive the vehicle
with sufficient
regard to other vehicles on the road and that he
failed to avoid a collision when he could have done so by the
exercise of reasonable
care.
[3] The collision occurred on
Heidelberg Road, a tarred road near Vereeniging, at a point where the
road runs flat on a north/south
axis, with a single lane in each
direction. On the afternoon of the collision, the road was dry and in
good condition. Visibility
was excellent, with views extending to
approximately three kilometers to the north and a kilometer to the
south. There is a slight
dip in the road to the north of the accident
scene, but this did not impede visibility. Mr. O’Brien was
travelling on his
motorcycle from the north in a southerly direction;
the insured driver was travelling from south to north. The north to
south lane
is four metres wide; the south to north lane 3.6 metres
wide. Two markers to the entrance to the insured driver’s
residence
on a smallholding, each marked with the number ‘7’,
are visible from the accident scene and located on the east side
of
the road, i.e. to the insured driver’s right, across the lane
of oncoming traffic.
[4] The insured driver was the only
eyewitness to the collision to give evidence. He testified that he
was returning home from
a nearby shop, with his father in the front
passenger seat and his uncle in the rear. He said that as he
approached the entrance
to his property, he slowed down and brought
the insured vehicle to a stop in his lane, indicating that he
intended to turn right,
across the lane of oncoming traffic, and to
the entrance to the smallholding. He had observed a silver motor
vehicle (he was unsure
of the make) some distance ahead of him, in
the oncoming lane. He had a clear view of the road ahead, and waited
for the oncoming
vehicle to pass. As the vehicle passed him, he saw
Mr. O’Brien in front of him, having emerged from behind the
oncoming vehicle,
as if he was intending to overtake that vehicle.
The motor cycle collided with his vehicle, the point of impact being
the front
of the vehicle, to his left, on the passenger side. Mr.
O’Brien was thrown from the motorcycle. Both the insured
vehicle
and the motor cycle came to rest on the western side of the
road, on the gravel adjacent to the edge of the road. Mr. O’Brien

died on the scene, as did the insured driver’s father. The
insured driver was not injured, nor would it appear was his uncle.
[//] The insured driver made a
statement to the SAPS on 8 November 2009, more than seven months
after the collision. In his statement,
he mentions only that he was
the driver of the insured vehicle on the day in question travelling
from south to north and that the
motorcycle was travelling from north
to south on a dry tar road. He states further that ‘the driver
of the bike drives towards
us in front and collided with me from
behind head-on collision (sic). My father was sitting in the front
seat of the motor vehicle
and passed away on the scene. The driver of
the motorbike was also certified dead on the scene.’ The
contents of this statement
are singularly unhelpful, and provide no
assistance to the court. Indeed, the statement is so vague and
lacking in value for any
conceivable purpose, one wonders why the
police officer who prepared it bothered to do so. The insured driver,
when challenged
on the nature of the statement, could only recall
that the statement was made to the satisfaction of the officer
recording it.
[//] The court also heard the evidence
of Ms. Prinsloo, a tow truck operator, who arrived on the scene
shortly after the collision.
She stated that when she arrived in the
accident, she encountered a police officer, one Wentzel. She observed
that the motor cyclist
and the passenger in the front seat of the
insured vehicle were deceased. She was approached by a person who
said that he ‘didn’t
see the bike’ and that he
‘didn’t see that bike come from that side’. She
assumed that the person, whom
she recalled as Shane or Shaun, and who
later identified himself to her as the driver of the insured vehicle,
thought that she
was a paramedic (she was wearing a reflective jacket
commonly worn by paramedics). The driver of the insured vehicle later
requested
her to tow the insured vehicle to his residence, indicating
the beacons marked ‘7’ on the opposite side of the road.

She thereafter towed the insured vehicle, using a sling, proceeding
directly across the road from the point at which the insured
vehicle
came to rest onto the gravel on the eastern side of the carriageway,
and from there through the entrance into the insured
driver’s
property. Prinsloo was very particular about this - she said that she
could not have towed the vehicle diagonally
across the road since
there was traffic on the road and that in any event, the yellow
reflective cones that had been placed on
the white lines and the
middle of the road had not yet been removed and would have prevented
her from towing the vehicle diagonally
across the road toward the
opposite side. In her view, and from her personal observation of the
markings on the road, the markings
on the road that appear on
photographs marked exhibits PR 8, 9 and 10 are tyre marks, marks
which could not have been made by the
insured vehicle when was towed.
In her view, the insured vehicle had been pushed back by the force of
the impact from the point
of collision to its resting place. She was
of the opinion that the tyre marks that she observed indicated that
at the time of the
collision, the insured vehicle had encroached into
the right-hand lane to turn into the entrance to the smallholding. In
cross-examination,
when it was put to her that the insured driver’s
version would be that he was stationary in his lane, waiting to turn
right
across the oncoming lane, when he suddenly saw the bike moving
at high speed towards him, Prinsloo specifically disputed that
version
by reference to the markings on the road, which she stated
were in the north-south lane, which indicated to her that the insured

vehicle had encroached onto the north-south lane. She had addressed
an email to the plaintiff on 23 May 2009 where she said, amongst

other things, ‘I am not a specialist but where the Audi was
turning I could see that he was on the wrong side of the road’

and ‘On the accident scene we could see that the Audi 100 did
already turn to his right to turn into the gate where he was
headed.
So he was on the right side of the road where Malcolm was coming
(sic) from.’ When she was shown the exhibit marked
SAPS
photograph 5, Prinsloo identified the tyre mark and stated that in
her view, the collision had occurred between the yellow
and red cones
featured on the photograph, i.e. closer to the centre line than
indicated by the cone marked ‘C’ on the
photograph, which
the SAPS had used to indicate the point of collision. In response to
the proposition that the insured driver
would say that he was
stationary and that he did not cross the centre line, Prinsloo stated
that she did not believe him. Prinsloo
recalled the incident clearly
– it was the first motorcycle accident that she had attended
and her memory of it was clear.
[//] Warrant Officer Chomane, who took
photographs of the accident scene for the SAPS, testified that he
arrived on the accident
scene at approximately 16h00 on the afternoon
of the collision. His sketch plan places the insured vehicle some
distance from the
entrance to plot 7, the insured driver’s
residence. His assessment of the point of impact correlates with that
of both experts;
this was marked with a cone and reflected as pint
‘C’ on SAPS photograph 5 presented by him. Chomane
testified that
the point of impact was 1.3 metres measured from the
centre (white) line into the south to north lane. He agreed that this
distance
was less than the width of the insured vehicle. In other
words, at the time of the collision, the insured vehicle had
encroached
into the lane of oncoming traffic.
[//] Both parties called an expert
witness; Mr. Strydom for Ms. O’Brien, and Mr. Grobbelaar for
the defendant. Before the
hearing, the experts filed a joint minute,
which records the matters on which they agree and those on which they
differ. The latter
far outweigh the former. The experts are agreed
that the impact damage to the motorcycle is severe and to the front
of the motor
cycle, and that the motor cycle had the greater momentum
at the point of collision; some four to five times greater than that
of
the insured vehicle. They are also in agreement that the impact
damage to the insured vehicle is severe and to the left front of
the
vehicle. They agree too that there is impact damage to the right side
of the roof of the vehicle, which damage is more or less
in line with
the damage to the right front of the vehicle and more or less
parallel to the centre line of the vehicle. While the
experts agree
that the collision occurred in the insured vehicle’s lane of
travel, they disagree on the precise point of
impact and position of
the insured vehicle. Strydom’s opinion is that the insured
vehicle straddled the centre line when
the collision occurred;
Grobbelaar’s view is that the insured vehicle was within its
lane of travel.
[//] The basis of the disagreement
between the experts relates to marks visible in the north-south lane,
i.e. the line in which
the motorcycle was travelling. Strydom first
visited the accident scene more than two months after the collision,
and bases his
report to a large extent on photographs taken by the
SAPS shortly after the accident, photographs taken by Ms. O Brien
some seven
weeks later on 15 May 2009 and marked ‘PR’ and
statements made by various people to the SAPS. He stated that on his

first visit to the accident scene, oil patches indicating the final
resting positions of the insured vehicle and the motor cycle
were
still visible, as were what he described as tyre and scuff marks on
the road surface.
[//] Strydom observed what he referred
to as a tyre scuff mark measuring 7.4 m in the north to south lane.
The starting point of
this tyre mark is some 3.1 m from the eastern
side of the roadway and 900 mm from the white centre line. The end of
the tyre mark
is some 3.5 m from the eastern side of the roadway and
500 mm from the white centre line. At the end of the tyre mark,
Strydom
observed what he referred to as a yaw mark, which leads to
the final resting position of the insured vehicle. In Strydom’s

opinion, the tyre scuff mark was deposited by the right front tyre of
the insured vehicle. From this he concludes that the insured
vehicle
was partially in the oncoming lane at the time of collision, and that
the insured vehicle was impacted rearwards along
the mark after which
it curved rearwards across its correct lane and came to a rest on the
side of the road as can be observed
in the SAPS photographs.
[//] Strydom’s sketch of the
accident, based on his observations and measurements, shows the
insured vehicle encroached by
some 900 mm into the oncoming lane,
with the point of collision on its left hand (passenger) side. It
also places the insured vehicle,
at the point of impact, some 6.5
metres from the first marker to the entrance to the insured driver’s
smallholding.
[//] Strydom’s concluded that it
was probable that the driver of the insured vehicle was travelling
from south to north and
wished to turn right into the entrance marked
‘7’, that he must have noticed the approaching
motorcycle, misjudged
the speed and distance of the motorcycle and
moved over into the north to south lane. The motorcyclist swerved at
the last moment
into the south to north lane but failed to avoid a
collision with the insured vehicle. Strydom expressed the opinion
that the insured
vehicle was moving very slowly at the time of the
accident, and estimated the motorcyclist speed to be in the order of
128 km/h
at impact.
[//] Grobbelaar agreed that the impact
damage to the insured vehicle demonstrated a bias to the left front
and also to the left
of the roof, more or less parallel with the
vehicle’s longitudinal axis. In his view, it was likely that
the motorcycle collided
with the left front of the insured vehicle
and that the direction of travel of the motorcycle was more or less
parallel to the
longitudinal axis of the insured vehicle at impact.
Grobbelaar refers in his report to a telephonic consultation with the
insured
driver who told him that he was stationary in his correct
lane at the time of the collision with his indicator on, waiting to
turn
to his right into the smallholding’s entrance. A motor
vehicle was approaching from the north in the opposite lane and as
it
passed him, he saw the motorcycle coming at him as if it were going
to overtake this vehicle. It seemed to him as if the motorcycle
rider
got a fright and tried to swerve to his right when the collision
occurred. The motorcyclist was close to him when he saw
it coming
across the road towards him; it was travelling at high speed. (It
warrants mention that when the insured driver gave
evidence, he could
not recollect this telephone conversation with Grobbelaar, but what
is recorded in Grobbelaar’s report
broadly accords with the
insured driver’s evidence.)
[//] Both experts referred to a series
of photographs that were produced in evidence. Certain of these were
taken on the day of
the collision. These include photographs MFD 1
and 2, taken by the Midvaal fire department. They also include
photographs taken
by the South African Police Services, the most
significant being what was referred to as photograph 5. Regrettably,
none of these
photographs provide a clear and detailed picture of the
point of collision and the marks on the road at that point. In
particular,
none of them provide clear and detailed pictures of any
tyre marks in the north-south lane, i.e. the lane in which the
motorcycle
was travelling. A series of photographs marked ‘PR’
were taken by Ms. O’Brien, as I have indicated, some seven

weeks after the accident. Of these, particularly relevant are
photographs PR7 to PR10.
[//] Grobbelaar disagrees with Strydom
that the marks visible in the motorcyclist’s lane in
photographs PR 7 to PR 9 are tyre
scuff marks with a yaw mark.
Grobbelaar proffered a number of reasons for his inability to agree
with the conclusions reached by
Strydom. First, he noted that the
mark observed by Strydom is not visible in the police photographs,
especially SAPS photograph
5. It is also not visible when comparing
photograph PR 9, which shows the mark referred to by Strydom crossing
the end of the broken
centre line, whereas photograph MFD 1 shows no
mark on the motorcycle’s lane in the vicinity of the end of
this broken line.
On this basis, Grobbelaar concluded that the mark
is indicated by Strydom was not deposited at the time that the
vehicles were
still on the scene when the police photographs were
taken; they were deposited at some later stage. Further, in his view,
it is
unlikely that the mark visible in the motorcycle’s lane
in photographs PR 7 to 9 is a tyre mark since it consists of three

distinct parallel striations. Were the mark to have been deposited by
tyre tread, one would expect to observe more distinct tyre
tread
patterns. Further, at the point where the mark crosses the centre
line, it changes character to one single solid mark of
approximately
half the width of the three parallel marks. In Grobbelaar’s
opinion, this is not consistent with the appearance
of a tyre mark.
Grobbelaar referred to photographs BG1 to BG4, being enhanced digital
photographs of photographs PR7 to PR10 respectively.
In his view, the
photographs exhibit two distinct marks indicated by him as marks A
and B. Mark B is a circular mark deposited
in the line of travel of
the insured vehicle and has its origin well into the insured
vehicle’s lane, curves towards the
centre line and continues
curving backwards and authorised on the insured vehicle is correct
side of the road we came to rest.
This mark, in Grobbelaar’s
view, is consistent with the circular deposit of debris that can be
seen in the insured vehicle’s
lane in SAPS photograph 5 and was
probably deposited along the trail of debris during and after the
collision of the motorcycle
than the insured vehicle. It also
probably indicates the path of the front of the insured vehicle as it
was impacted rearwards
to the position where it came to rest,
originating as it does well into the lane of travel of the insured
vehicle. Further, Grobbelaar
expressed the opinion that the tyre mark
referred to by Strydom did not have its origin approximately 3.1m
from the edge of the
road in the north-south lane as indicated by
Strydom but is visible much further into the motorcycle’s lane
and closer to
the edge of the road. The insured vehicle would
therefore have had to have had its right wheel closer to the edge of
the road in
the incorrect lane at collision for this mark to have
been deposited by that wheel. This is unlikely for a number of
reasons, the
main one being that there is no debris deposited on the
north-south Lane. The curved mark in the insured vehicle’s lane
(mark
B on photograph BG 3) can in Grobbelaar’s opinion clearly
not have been deposited at the same time as the mark indicated by

Strydom as having been deposited by the right front wheel of the
insured vehicle since they converge on one another in the vicinity
of
the centre line. In Grobbelaar’s view, these two marks were
deposited at different times with the curved mark B probably

deposited during the accident in question and the alleged tyre mark
indicated by Strydom (which Grobbelaar considers to be a fluid
mark)
probably having been deposited at a later stage.
[//] Grobbelaar further observed that
the left front wheel of the insured vehicle deposited a mark to its
position of rest as demonstrated
by photograph MFD 1, and that there
was a fluid trail deposited parallel to this mark. In photographs PR
7 to PR 10, this left
front tyre mark is no longer visible, whereas
the other marks are. In Grobbelaar’s opinion, this indicates
the likelihood
that the mark still visible on the road surface in the
PR series of photographs are fluid marks and not tyre marks.
[//] Further, the curved mark B in the
PR series of photographs and indicated as such in the photographs BG1
to BG4, as well as
the curved path of the debris as can be observed
in police photograph 5, could not have been deposited in a curved
manner as suggested
by Strydom - in the sketch prepared by Strydom,
there is no such circular motion of the insured vehicle possible in
the reconstruction
reflected by the sketch. It is unlikely that the
straight mark A in photograph BG3 would have been deposited as the
insured vehicle
was impacted rearwards, since it is in a straight
line and thereafter 70 curves across the centreline into the position
of rest
of the insured vehicle.
[//] Finally, the location of the
debris and in the line of travel of the insured vehicle, the curved
path of insured vehicle to
its position of rest as well as the
implication of the collision having occurred well into lane of travel
of the insured vehicle,
would be consistent with the vision of the
insured driver that he was stationary in his correct lane of travel
when the collision
occurred. Grobbelaar notes that Strydom’s
reconstruction, i.e. that the insured vehicle was straddling the
centre line at
the point of collision, is not consistent with the
insured driver’s version.
[//] The cross-examination of Strydom
primarily constituted a challenge to his assertion that the mark
visible in photographs PR
7 to PR 10 were tyre marks as opposed to
oil marks deposited after the collision. When it was suggested to
Strydom that the marks
were not tyre scuff marks but oil marks
deposited after the event when the insured vehicle was towed away to
the insured driver’s
residence on the opposite side of the
road, Strydom was adamant that this was ‘totally impossible’
since the damaged
undercarriage of insured vehicle would have left
scrape marks on the road surface when it was towed from its resting
position to
the entrance of the insured driver’s residence.
[//] When a court is faced with
conflicting expert opinions on, as in this case, the manner in which
the collision occurred, it
is for the court to decide which, if any,
to accept. The Supreme Court of Appeal has recently affirmed that
before any weight can
be given to an expert opinion, the facts upon
which the opinion is based must be proved, if only to recognise that
a reconstruction
may rest on an imperfect factual foundation and to
ensure that any assessment is conducted with due regard to the degree
on which
the reconstruction is based on ascertainable and measurable
facts and the application of scientific principles to those facts.
(See Romans Transport v Zihlwele
[2015] ZASCA 13
(16 March 2015) and
Biddlecombe v Road Accident Fund
[2011] ZASCA 225
(November 2011)).
[//] Grobbelaar’s opinion and in
particular, his opinion regarding the markings evident from the
photographs (especially photographs
marked PR 7 to PR9), is
predicated on facts conveyed during a conversation with the insured
driver (a conversation, as I have noted,
that the insured driver
could not recollect). That opinion must tested against the factual
foundation disclosed by all of the
evidence before the court. If the
evidence is assessed to the exclusion of the opinions expressed by
either expert, it is more
probable than not, given the testimony of
warrant officer Chomane that the insured vehicle, being 1800 mm wide,
had encroached
by at least 500mm into the oncoming lane at the point
of impact. Warrant Officer Chomane’s undisputed evidence also
places
the point of impact some 26 to 30 m from the entrance to the
insured driver’s property. It is unlikely in the circumstances

that the insured vehicle was, as the insured driver testified,
opposite the entrance and stationary, indicating an intention to

turn.
[//] The evidence of the insured driver
is not particularly helpful. He was hesitant, and clearly did not
have a clear recollection
of events; indeed, he admitted as much. For
example, he could not recall speaking to Grobbelaar, whose report is
based largely
on factual assumptions derived from a conversation that
he had with the insured driver. Further, the version proffered by the
insured
driver bears little if any relation to the statement he made
to the police some months later. In that statement, made at a time

when he must have been aware that the determination of any liability
on his part for the accident was at stake, the insured driver
failed
to mention that he was stationary at the time of the collision, that
there was an oncoming vehicle for which he had stopped,
that he was
in his lane at all times, and that the motorcyclist appeared to be
overtaking the oncoming vehicle. The insured driver’s
attempts
to exculpate himself from any liability also characterised his
account of his conversation with Prinsloo at the scene
of the
accident. When it was put to him that Prinsloo had testified that he
had said to her that he did not see the motorcyclist,
he replied that
he would not have said that. The insured driver’s evidence that
he was stationary, opposite the entrance
to Plot 7 is not supported
by any of the other witnesses. Prinsloo testified that the point of
impact was not directly opposite
the entrance; Warrant officer
Chomane put the distance at some 27 – 30 meters. Finally, the
insured driver’s evidence
that he had not encroached into the
oncoming lane stands in stark contrast to the direct evidence to the
contrary given by both
Prinsloo and Chomane, both of whom were on the
accident scene soon after the collision. This is not to suggest that
the insured
driver was deliberately placing a version before the
court that he knew to be false – the fact remains that the
accident
occurred some six years ago, and its consequences for the
insured driver were traumatic.
[//] In contrast, Prinsloo was an
impressive witness. She gave evidence clearly and confidently and
with a clear recollection of
the accident. Although she is not an
expert, she clearly has significant experience of accident scenes.
She was certain that the
marks on the road surface that are the
subject of dispute between the experts were tyre marks, and that she
observed these on the
road surface after the collision but before she
towed the insured vehicle. She also observed that the tyre marks
clearly indicated
that the insured vehicle had encroached onto the
oncoming lane. Her evidence that the insured driver, having mistaken
her for a
paramedic, told her that he did not see the motorcycle and
that he was on his way to the entrance to his property which he
pointed
out a distance ahead of the point of collision, renders it
more probable that the accident occurred some distance from the
entrance
to the insured driver’s property, at a point where the
insured vehicle was moving slowly but had already encroached onto the

oncoming lane.
[//] Prinsloo’s evidence as to
the manner in which the insured vehicle was towed from the point at
which it came to rest to
the insured driver’s residence was not
seriously disputed under cross-examination. As I have mentioned, she
clearly recalled
the accident, and that both traffic and the position
of the yellow cones placed on the scene by the fire department
prevented her
from towing the vehicle in any direction other than
directly across the road, onto the gravel on the opposite side and by
travelling
north (off the road, on the gravel and against the flow of
oncoming traffic) toward the insured driver’s residence. I have

no hesitation in accepting this evidence.
[//] The necessary implication, of
course, is that the facts disclosed by the evidence cannot support
the conclusion reached by
Grobbelaar and thus the basis on which the
defendant’s case primarily rests, i.e. that the marks were
deposited by one of
the rear tyres of the insured vehicle while the
vehicle was being towed from its resting place to the insured
driver’s residence.
[//] The relevant legal principles are
well-established. It is incumbent on the plaintiff to establish that
the collision occurred
as the result of the causal negligence of the
insured driver. It is the duty of road users to keep a proper
lookout; this involves
the physical act of looking but also a
reasonably prudent action to what might be seen. The notional
reasonable person in the position
of the insured driver, wishing to
execute a term across the path of travel of oncoming vehicles would
observe the approach of any
oncoming vehicles, respect the right of
way and allow them to pass before executing the turn. There is a long
line of cases to
suggest that to do it across the line of oncoming
traffic is an inherently dangerous manoeuvre and that there is a
stringent duty
on a driver who intends executing such a manoeuvre to
do so only after properly satisfying him or herself that it is safe
and choosing
the opportune moment to do so (see AA Mutual Insurance
Association Ltd v Nomeka
1976 (3) SA 45
(AD) at 52E).
[//] For the reasons reflected above,
in my view, the probabilities are that the insured driver proceeded
to cross the centre line,
in anticipation of turning across the
oncoming lane to reach his residence, and that he failed to keep a
proper lookout and failed
to notice the motorcyclist in the oncoming
lane, who took emergency evasive action by swerving to the right,
resulting in a collision
that was unavoidable. The insured driver was
negligent, and the plaintiff is therefore entitled to the damages
that she is able
to prove.
I make the following order:
1. The defendant is ordered to pay 100%
of such damages that the plaintiff may prove.
2. The defendant is ordered to pay the
costs of these proceedings.
ANDRÉ VAN NIKERK
ACTING JUDGE OF THE HIGH COURT
For the plaintiff: Adv van der Sandt
Instructed by: Leon JJ Van Rensburg
Inc c/o Charmain Gibbens Attorneys
(011) 333 6647
For the defendant: Adv Mokale
Instructed by: MF Jassat Dlamini
Inc
(011) 447 0464
(ref R001/10236/AMU