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[2015] ZAGPJHC 145
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Farah v Road Accident Fund (2014/07486) [2015] ZAGPJHC 145 (23 July 2015)
REPUBLIC OF SOUTH
AFRICA
HIGH COURT OF SOUTH
AFRICA, GAUTENG LOCAL DIVISION
CASE NO: 2014/07486
DATE: 23 JULY 2015
In the matter between:
RAYMOND EDWARD GEORGE
FARAH
..............................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
J U D G M E N T
MASHILE J:
[1] The Plaintiff instituted this
delictual damages action against the Defendant for personal injuries
that he sustained during
a motor vehicle accident on 20 December 2012
at a traffic light controlled intersection of Potgieter and Jim
Fouche Roads in Roodeport.
The Plaintiff believes that the manner in
which the accident occurred renders the Defendant vulnerable to
liability for the damages
claimed by him.
[2] The case served before this court
with the parties having agreed to separate issues as envisaged in
Uniform Rule of Court 33(4).
The court accepted the parties’
agreement and ordered that merits and quantum be treated discretely.
Accordingly, this matter
proceeds on merits only. In the
circumstances, should the Plaintiff be successful on merits, the
Defendant shall be liable for
all the subsequent proven damages of
the Plaintiff. Conversely, if the Defendant is absolved from
liability, the case will be dismissed
without the need to determine
quantum.
[3] In his endeavor to prove his case
against the Defendant, the Plaintiff testified on his own behalf and
thereafter closed his
case. The Defendant did not call any witnesses
whatsoever.
[4] The Plaintiff‘s brief
testimony is that he was riding his bicycle travelling into a
westerly direction in Hendrik Potgieter
Road on that fateful day.
Hendrik Potgieter Road consists of four lanes into each direction and
he occupied the lane that was meant
for motor vehicles proceeding
straight. Two of the lanes are meant for motor vehicles that would
ultimately turn left at the intersection
while the other two are for
those vehicles that would be travelling straight.
[5] He had passed a slip road to his
left when he noticed a combi driving parallel occupying the right
lane, which is meant for
vehicles proceeding straight. The traffic
lights at the intersection ahead were green for motor vehicles
travelling into a westerly
direction. Shortly after entering the
intersection, the driver of the combi suddenly swerved to his left
hand side. Confronted
with such an unexpected move from the driver
of the combi, he collided with it. The damage to the vehicle was
slightly after the
front passenger door.
[6] He fell from his bicycle and the
driver of the combi and a lady in his company stopped to find out
whether he needed their assistance
or not. They subsequently conveyed
him to hospital and left him there without leaving any particulars
whatsoever.
[7] The Plaintiff was cross-examined
but his evidence as described above did not change significantly. He
nonetheless made the following
concessions during his
cross-examination:
7.1 He did not look back while
travelling;
7.2 He increased speed as he was
approaching the intersection;
7.3 He did not see whether or not the
driver of the combi indicated that he would be turning to his left
hand side at the intersection.
[8] The accident happened during day
light, it had not rained, the road was not slippery and he is
familiar with the surrounding
as he and his mates often cycle in the
area.After his discharge from hospital, he utilized the first
possible moment to report
the case to the police to investigate the
circumstances under which the collision occurred.
[9] From the evidence of the Plaintiff
outlined above, this court is called upon to decide who of the two,
the insured driver or
the plaintiff, was negligent. The locus
classicus on negligence is set out in the case of Kruger v Coetzee
1966 (2) SA 428
where it was stated:
“For the purposes of liability
culpa arises if -
(a) adiligens paterfamilias 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
(b) the defendant failed to take such
steps.”
[10] I have also been referred to the
case of Martindale v Wolfaardt
1940 AD 235
at 240where it was stated
that: “a driver is entitled to regulate the manner of his
driving on the assumption that another
driver will not suddenly,
without warning and recklessly, expose himself and others to danger.”
[11] In AA Mutual Insurance Association
Ltd v Nomeka
1976 3 SA 45
(A) 52 E – G the court outlined the
duty of care that motorists intending to travel across the path of
oncoming or following
traffic bear:
“Since it is inherently dangerous
to turn across the line of following or approaching traffic, there is
a stringent duty upon
a driver who intends executing such a
manoeuvre, to properly satisfy himself that it is safe and the
opportune moment to do so.”
[12] In the matter of Reemers v AA
Mutual Insurance Association Ltd
1962 (3) SA 823
(W) at 825 H this
court held that:
“The act of turning off a road to
the left, though not as dangerous a manoeuvre as a turn to the right,
is nevertheless an
act which must be undertaken with due regard to
the presence of other users of the road. It should be done at a safe
and opportune
moment, and regard should be had to the fact that a
following car may be travelling immediately behind.”
[13] The Plaintiff has pleaded the
instances in which the insured driver was negligent as follows:
13.1 He failed to keep a proper
lookout;
13.2 He failed to keep his vehicle
under proper control;
13.3 He drove his car at an excessive
speed in the circumstances;
13.4 He failed to turn at the slipway
as opposed to at the lights;
13.5 He failed have regard to the
lawful rules of the road; and
13.6 He failed to have regard to the
rights of other road users.
[14] The Defendant has pointed out that
the Plaintiff was negligent in more than one respect and these are:
14.1 The Plaintiff was under a duty to
look behind him whilst riding his bicycle;
14.2 The Plaintiff was under a duty to
maintain his speed and keep a proper look out relative to the Insured
Driver’s vehicle
in front of him;
14.3 The Plaintiff could have and
should have, swerved to the right into the other lanes of traffic to
the right of his lane to
avoid the collision;
[15] The Defendant also asserted that
the court should not draw any adverse inference from the Insured
Driver’s failure to
give his details to either the Plaintiff or
the nursing staff at the Hospital. He argued that there could have
been many other
reasons why the insured driver failed to leave his
particulars at the hospital. The Defendant, however, did not give
one such
possible reason. This will be discussed later in this
judgment.
[16] With regard to subparagraph 13.1
above, I agree entirely with Counsel for the Plaintiff that had he
turned his head to look
back at the traffic, he would not have
endangered his life only but would have placed many other lives of
innocent motorists under
precarious conditions. In any event I see
no relevance of this because the uncontested evidence is that the
insured driver was
driving parallel to the Plaintiff and suddenly
turned towards him thereby causing the collision.
[17] It is noteworthy that other
motorists overtook the Plaintiff without any incidence. That mere
fact posits that the Plaintiff
did nothing wrong. It was instead the
insured driver who suddenly and inopportunely turned onto the path of
travel of the Plaintiff.
The insured driver should have ensured that
it was safe to turn in front of the Plaintiff as the Plaintiff could
not have anticipated
that he would execute such a sudden turn. See
the Reemers case supra.
[18] With regard to the second manner
in which the Defendant alleges the Plaintiff was negligent, it must
be noted that the evidence
is that the insured driver and the
Plaintiff came travelling alongside each other and after entering the
intersection, the insured
driver suddenly cut in front of the
Plaintiff’s path of travel thereby causing the Plaintiff to
collide with him. There
is no evidence that the insured driver was
in front of the Plaintiff. The Plaintiff could therefore not read
the intention of
the insured driver as he was driving parallel to
him. There cannot be talk of failure to keep a proper look-out in
this instance.
The Plaintiff did not expect that the insured driver
would “suddenly, without warning and recklessly expose himself
and
others to danger.” See the Martindale case supra.
[19] Thirdly, the Defendant’s
suggestion that the Plaintiff should have turned towards his right
hand side in an attempt to
avoid the collision would have been as
dangerous as turning around to look back while cycling. It must be
borne in mind that the
evidence of the Plaintiff is that the insured
vehicle was about a metre from him. A sudden turn towards him would
have prevented
him to turn to his right hand side besides, assuming
that he successfully did so, he would have run the risk of being run
over
by other vehicles coming from behind intending to travel
straight. This was no option at all.
[20] Lastly, I believe that there is
something to be said about the insured driver’s behavior
subsequent to the collision.
Generally, under these circumstances
one would have expected him to leave his contact particulars with the
Plaintiff. The evidence
led does not suggest that doing so would have
put his life in danger as is often the case in some other instances.
He was not
confused as he stopped and assisted. The collision
happened during the day so he could not have feared attack from the
unknown.
The answer to his failure to leave his particulars with the
Plaintiff must be that he knew that he was to blame for the
collision.
I am mindful that this is not the only inference that can
be drawn but it is nonetheless the most probable of the many.
[21] In the circumstances, this court
finds:
19.1 The insured driver did not keep a
proper look-out;
19.2 He failed have regard to the
lawful rules of the road; and
19.3 He failed to have regard to the
rights of other road users.
[22] Accordingly, I make the following
order:
1. The Defendant shall be liable for
100% of all the Plaintiff’s proven damages;
2. The Defendant shall be liable for
the costs of the Plaintiff.
B. A. MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for the Plaintiff: Adv E.
Dos Santos Soares
Instructed by: Munro, Flowers
&Vermaak Attorneys
Counsel for the Defendant: Adv G.
Ally
Instructed by: Molefe-Dlepu
Attorneys
Trial proceedings took place on 04
June 2015
Date of delivery of Judgment: 23
July 2015