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[2015] ZAGPJHC 146
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Smith v Road Accident Fund (2010/37195) [2015] ZAGPJHC 146 (23 July 2015)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
HIGH COURT OF SOUTH
AFRICA, GAUTENG LOCAL DIVISION
CASE NO: 2010/37195
DATE: 23 JULY 2015
In the matter between:
MARCEL ASHLEY
SMITH
.......................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
J U D G M E N T
MASHILE J:
[1] Following a motor vehicle collision
between motor vehicle with registration letters and numbers [XDH
9………,]
being driven by the Plaintiff, and motor
vehicle with registration letters and numbers [NKW 7……]
(hereinafter referred
to as “the bus”), being driven by
the insured driver, that occurred on 7 July 2009 at or along Albert
Street near Hillfox
Shopping Center in Weltevreden Park, the
Plaintiff instituted a delictual claim in terms of the
Road Accident
Fund Act No. 56 of 1996
against the Defendant for personal injuries
that he sustained.
[2] The matter served before this court
with the parties having agreed to separate issues. The court
considered the parties’
agreement and in terms of Uniform Rule
of Court 33(4) ordered that the issues be treated distinctly such
that this court will only
concern itself with the question of the
determination of liability. Accordingly the main issue involved here
is who of the two
drove negligently ultimately causing the two
vehicles to collide.
[3] The Plaintiff was the only witness
who took to the stand to give evidence on his own behalf. Similarly,
the insured driver
was the only witness who testified on behalf of
the Defendant. The evidence of the Plaintiff was that:
3.1 He was driving in Albert Street and
had come to a complete stop at the turn that leads to his workplace,
Bosch. He had to stop
before executing aright-turn into his
workplace because driving into his opposite direction was a bus
travelling straight;
3.2 He had seen the bus while he was
approximately 50 Metres before coming to a halt at the point where he
was suppose to turn into
his workplace;
3.3 He commences work at 7H30. As he
drove towards the place where he was to turn into his workplace, he
noticed some of his colleagues
waiting outside the entrance to Bosch;
3.4 He conceded under cross examination
that he took off his eyes from the road not once but twice to look at
the entrance to his
workplace;
3.5 When he returned his eyes to the
road, the bus had already collided with his vehicle. He hit the
windscreen with his head when
the collision occurred. His seatbelt
was securely fastened;
3.6 His vehicle was generally in a good
working condition except for an airbag on his steering wheel that was
faulty;
3.7 The damage to his vehicle was to
the front of the right fender,both headlights and the front bumper
fell off. The damage to
the bus was also on the front right hand
side;
3.8 Although his vehicle was not
insured, the insurers of the bus paid his material claim for damage
to his vehicle in full;
3.9 The bus stopped on the far end of
its lane after the road leading to the entrance to the Plaintiff’s
workplace. The insured
driver’s vehicle was pushed back
approximately 3 metres from the point of impact being at the point
where the Plaintiff intended
to turn.
[4] The insured driver’s
testimony was that:
4.1 He has been in the employ of Metro
Bus as a driver for the past 16 years. In his career as a driver, he
has never been involved
in an accident;
4.2 He has on several occasions
travelled in Albert Street in particular, the area where the
collision happened. He confirmed that
the place where the collision
occurred is a bus route with clearly marked and labeled bus signs;
4.3 Prior to the collision, he drove at
about 5 to 10 Kilometres per hour mainly because he came from a
stationary position at a
bus stop where he had just dropped off a
commuter;
4.4 He had passed the entrance to the
Plaintiff’s workplace and had gone over a speed hump when he
saw the Plaintiff’s
vehicle approaching into the opposite
direction at a high speed zigzagging in the road and eventually
slamming into the front right
fender and the wheel.He applied brakes
but this did not assist as the Plaintiff’s vehicle still
collided with the bus;
4.5 The whole of the front portion of
the Plaintiff’s vehicle was damaged as it hit the side of the
bus with the right front
side part. He confirmed that the bus was
travelling straight while the Plaintiff’s vehicle was
travelling into the opposite
direction but swerving from side to side
as it had lost control due to the high speed at which it was being
driven;
4.6 The police came to the scene of the
collision and saw the positions of the vehicles. Under the
observation of the police officials
at the scene of the collision, he
drew a sketch depicting Albert Street and the positions of the
vehicle after the collision;
4.7 He described how the collision
occurred on some papers which he handed over to a police official.
The police official then
transcribed the information onto the present
police report;
4.8 Under cross examination he stated
that there were no other measures that he could have taken to avoid
the collision other than
applying brakes. He could not swerve onto
his left hand side because the pavement was too high;
4.9 He also estimated the distance at
which he first saw the Plaintiff’s vehicle swerving from side
to side to have been approximately
4 Metres.
[5] Insofar as negligence is concerned
it could be instructive to refer to the case of Kruger v Coetzee
1966
(2) SA 428
which is a locus classicus in matters involving
negligence:
“For the purposes of liability
culpa arises if -
“(a) a diligens 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.”
[6] A driver is under a legal duty to
keep a proper lookout, to keep left, to travel at a reasonable speed
under the prevailing
circumstances and to avoid a collision by the
exercise of reasonable care. A violation of these legal duties will
warrant the attribution
of negligence to the driver concerned.
[7] Both the Plaintiff and the insured
driver can be criticized for the manner in which they gave their
testimony. The Plaintiff
admitted that the insured driver had the
right of way as the bus was travelling straight and he was to execute
a right turn into
his workplace.
[8] The law regulating the execution of
right turns has been set out in a number of cases and one such case
is AA Mutual Insurance
Association Ltd v Nomeka
1976 (3) SA 45
(A)
52E – G where the court stated 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.”
[9] The damage to the vehicles could be
of assistance to determine the manner in which the collision
happened. The damage to the
bus was on the front right hand side,
between the headlamp and the front right wheel. The damage to the
Plaintiff’s vehicle
was on the right hand side and the whole
front of his vehicle was damaged. This does not suggest a head-on
collision by any chance
as the Plaintiff would want this court to
believe. The bus did not have any damage in the front nor was there
evidence that the
right hand side corner of the bus was damaged.
[10] Reference to ’mold’ by
the Plaintiff only surfaced during re-examination after a leading
question was asked to
which Counsel for the Defendant objected, which
objection the court upheld. I am therefore disregarding that part of
the Plaintiff’s
testimony.
[11] If the bus was not damaged in the
front because it was high, as Counsel for the Plaintiff suggested,
then one would have expected
the Plaintiff’s vehicle to have
gone under the bus. Furthermore, if it were so high, how was the
damage on the front right
hand side possible on the bus? It must
therefore be correct that the impact has always been on the side and
not in the front of
the bus.
[12] The damage to the whole front of
the Plaintiff’s vehicle demonstrates that it was a bigger
portion of the right hand
side of his vehicle that collided with the
front right hand side of the bus. This explains why the whole front
of the Plaintiff’s
vehicle fell off. Such damage could only
have happened when the Plaintiff’s vehicle turned into the side
of the bus. The
injuries to the Plaintiff are also telling. If it
were the bus that slammed into his vehicle, one would not have
expected the
Plaintiff to hit the front windscreen especially if his
seatbelt was on. His explanation that he hit it because of the
design
of his vehicle is rejected as falls on a balance of
probabilities.
[13] On the Plaintiff’s version
that he was stationary waiting for the bus to drive pass, the law is
clear and I refer once
again to the matter of AA Mutual Insurance
Association supra. The Plaintiff had a stringent duty to satisfy
himself that it was
safe and opportune to execute a right turn.
Having regard to the damage to the two vehicles and his injuries, it
appears that
the Plaintiff failed to observe this strict duty imposed
on him by law.
[14] A more probable explanation is
that the Plaintiff was late for work and was therefore driving fast
as suggested by the insured
driver and lost control when he was
surprised by the oncoming bus at the curve. In consequence of this
loss of control of his
vehicle he slammed onto the side of the bus
and sustained injuries.
[15] If the Plaintiff was not late and
concerned about his colleagues at the entrance to his workplace as he
claims, why did he
risk taking off his eyes from the road not only
once but twice to look at them instead of keeping a proper look-out?
[16] I said the version of the insured
driver is more probable to what the Plaintiff has put forward to this
court. Ordinarily,
one does not expect a driver intending to execute
a right turn to just drive onto the face of oncoming traffic or into
a vehicle
that is passing unless he is committing suicide. I do not
think that the Plaintiff wished to do that hence there must be some
other explanation.
[17] It also does not make sense to
argue that the bus left its path of travel for no apparent reason and
collided with the Plaintiff’s
vehicle and then swerved back to
its path of travel and stopped there.
[18] The questions about the width of
the road and the size of the bus have not been canvassed in the
Plaintiff’s papers and
I see no need to entertain them here.
Similarly, the court refuses to draw any adverse inferences from the
settlement of the plaintiff’s
insurance claim for material
damage to his vehicle. I cannot assume that this is an indication or
acknowledgment that the insured
driver was negligent besides, this
court would not be bound by their assessment of the collision.
[19] If the Plaintiff is urging this
court to draw that inference, what should this court make of the
continued employment of the
insured driver? Should this court then
surmise that he has been kept because he was not to blame for the
collision? There could
have been many reasons why the insurers of
the bus chose to settle the plaintiff’s claim, if they did. In
the whole though
that testimony was also not traversed in the papers
and that is the basis for my rejection of it.
[20] Having said that about the
evidence of the Plaintiff, I need to state that the insured driver
too was not impressive as a witness.
Like the Plaintiff, he failed
to keep a proper look-out because it was not until the Plaintiff’s
vehicle was 4 meters in
front of the bus that he noticed it. The
insured driver could not under those circumstances have been alert
and aware of what was
about to unfold before him. Had he looked
beyond the four metres perhaps he could have taken evasive measures
and avoided the
collision.
[21] The insured driver also performed
poorly when asked about the completion of the police report. For
some reason he thought
that he filled it in and then turned around
and said that he gave it to the police official to transcribe it onto
the present police
report. He also confused himself when he was
questioned why he only saw the vehicle when it was 4 meters away. He
said that it
was because of other vehicles yet it turned out from his
evidence that there were no other vehicles other than the Plaintiff’s
vehicle and the bus.
[22] That said, this court finds that
the primary cause of the collision was the Plaintiff. He drove at a
high speed under the
prevailing circumstances, failed to keep a
proper look-out, turned onto the bus that was travelling straight
when it was not safe
and opportune to do so and failed to apply his
brakes timeously or at all. While the insured driver was driving in
his correct
lane and straight, he still had a duty to be alert and to
keep a proper look-out. This he failed to do completely. Had he
done
so, he probably could have been the last person to avoid the
occurrence of the collision.
[23] It is evident that the above calls
for an apportionment of negligence. In my view the Plaintiff was 70%
more negligent than
the insured driver. Accordingly, the
apportionment is 70% / 30% in favour of the Defendant.
[24] Against that background I make the
following order:
1. The Defendant shall be liable for
30% of the proven damages of the Plaintiff;
2. The Defendant shall pay 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 R.
Saint
Instructed by: Wim Krynauw Attorneys
Counsel for the Defendant: Adv N.
Alli
Instructed by: Mothle Jooma Sabdia
Incorporated
Trial proceedings took place on 2
and 3 June 2015
Date of delivery of Judgment: 23
July 2015