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[2015] ZAGPJHC 193
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Masilela v Road Accident Fund (23556/2010) [2015] ZAGPJHC 193 (14 August 2015)
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REPUBLIC
OF SOUTH AFRICA
THE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
JUDGMENT
Case
no: 23556/2010
DATE:
14 AUGUST 2015
In
the matter between:
MASILELA
S
M
...........................................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
Neutral
citation:
Masilela S M v RAF
(23556/2010)
Coram:
DIPPENAAR AJ
Heard:
24-25 July 2013
Delivered:
14 August 2013
Summary:
Damages sustained by pedestrian in a
collision with motorist driving through crowd. Apportionment of
liability.
ORDER
Defendant
is declared to be liable for 70 per cent of plaintiff’s proven
damages and plaintiff’s costs.
JUDGMENT
Dippenaar
AJ:
[1]
This is an action for damages
sustained by the plaintiff in a motor vehicle collision which
occurred between her and the driver
of a white Volkswagen Fox bearing
registration letters and numbers D…….. GP on the
evening of 22 November 2009 at
Kololo Street, Tsakane, Brakpan. The
plaintiff had been a pedestrian at the time.
[2]
The parties agreed to separate the
issues surrounding merits and quantum. On 24 July 2013, an order was
accordingly granted separating
the issue of liability on the part of
the defendant under Uniform rule 33(4). The issues relating to
quantum are to be postponed
sine die.
[3]
It was common cause that the
plaintiff had been a pedestrian and had, inter alia
,
sustained a fracture to her left arm
and wrist.
[4]
The issues which must be determined
in the present trial are the liability of the defendant and the
degree of negligence on the
part of the plaintiff, if any and the
insured driver respectively.
[5]
Only two witnesses were called to
testify. The plaintiff testified and the defendant called the driver
of the vehicle involved in
the accident, Mr S Mkondwana
(“Mkondwana”).
[6]
It was common cause between the
parties that the collision occurred when the vehicle driven by
Mkondwana collided with the plaintiff
in Kololo Street on 22 November
2009 at approximately 22h45 during a street party.
[7]
It was further common cause that the
collision occurred on the road surface in the lane of travel of
Mkondwana, who was driving
through numerous people who were on the
road surface.
[8]
The parties’ evidence diverges as to
the exact circumstances under which the collision occurred between
the plaintiff and
the aforesaid vehicle.
[9]
In summary, the plaintiff’s evidence
was that she had gone to a so-called stokvel (“street party”)
in Kololo Street
after work on 22 November 2009 with her brother.
Kololo Street is a paved dual carriageway with a pavement and curb on
both sides
of the street.
[10]
On her arrival there were a lot of people
partying on both sides of the street in the vicinity of the house
where the party was
being held. There was music and people were also
dancing in the street. People were drinking and were enjoying
themselves. There
were some cars parked on the side of the road
opposite to where she was standing.
[11]
At the time, she was standing on the
pavement on the side of the road with some friends and noticed a
white Volkswagen vehicle facing
her direction on the opposite side of
the road where the cars were parked. This vehicle was stationary and
was revving its engine,
to the excitement of the crowd. She noticed a
male driver and a female passenger who was making a noise.
[12]
The plaintiff decided to cross the
road to search for some friends on the opposite side of the street.
She checked both sides of
the road that it was safe to cross and
started crossing the road. When she had proceeded about two steps
into the road, the white
Volkswagen collided with her, resulting in
the injuries she sustained to her left arm and wrist. She believed
that the driver of
the said vehicle had lost control of it whilst
revving its engine. At the time, she had not been concentrating on
the vehicle as
it was stationary. She testified that she knew the
face of the driver of the vehicle but only learnt his name after the
accident.
[13]
On being questioned under
cross-examination why she did not call any witness to the events as
there must have been a large number
of witnesses who must have
observed the accident, the plaintiff testified that she had
approached someone as a witness, but that
such person declined to
become involved as he knew Mkondwana.
[14]
The plaintiff under cross-examination
was confronted with a previous statement which she had made, in which
she contended that she
had been standing on the pavement when the
collision occurred. She could not give any explanation for the
contradictions in her
version.
[15]
The plaintiff conceded that she had
had a few drinks at the party. She disputed that she had been dancing
in the middle of the street
when the collision occurred and disputed
the defendant’s version.
[16]
She initially testified that the
vehicle had collided with the front of her upper legs, but during
cross-examination amended this
evidence to indicate that the vehicle
had hit her on the right side of her legs.
[17]
In summary, Mkondwana testified that
he was a professional driver who transported school children by day
and by night from time
to time provided taxi services to various
people. On the night in question, his services had been obtained by a
lady known to him
as Mpho and two of her friends to take them to the
street party in Kololo Street. Mpho was not called as a
witness, despite
her contact details being available. On certain
occasions when such street parties were held, the road would be
closed off. On
the night in question, it was not and he drove slowly
to the house at which the party was being held.
[18]
On approaching the party he observed
that there were a lot of people and that some of them were dancing in
the street. He made his
way slowly through the crowd of people and
stopped his vehicle to allow his passengers to alight. There were no
streetlights and
the only light emanated from the surrounding houses
and his headlights. He could see a lot of people on both sides of the
road
and in the street surrounding his vehicle.
[19]
He denied revving his vehicle as
suggested by the plaintiff although he left its engine running whilst
his passengers alighted.
He testified that he observed the plaintiff
coming from the side of the street and commencing dancing backward in
the street, facing
his vehicle. The plaintiff’s eyes were
focussed on his vehicle. He continued moving and crept up slowly
towards the plaintiff,
at which point she put her hands on the
vehicle and placed all her weight on the bonnet of his vehicle. He
applied brakes and stopped,
resulting in the plaintiff losing her
balance and falling backward onto the road, causing her injuries.
[20]
Mkondwana testified that before
colliding with the plaintiff, he continued moving slowly through the
crowd with his headlights on
and that he took no further steps to
draw the revellers’ attention to his presence. He did not flash
his lights or use the
hooter of his vehicle as in his view, the
hooter would not be heard above the load music which emanated from
speakers on the side
of the road. He assumed that the plaintiff would
move out of his way as the other people in the crowd had done and did
not stop
his vehicle until there was contact between it and the
plaintiff.
[21]
It was suggested to him in
cross-examination that he should have dropped off his passengers
before entering the crowd of people
and should have done a u-turn and
taken an alternative route to get home, rather than to continue
travelling through the crowd
of revellers, once he saw that the road
was busy and that there were a lot of revellers in the street. He
responded that the road
had not been closed and that as his home was
on route from Kololo Street, it was convenient for him to proceed
slowly through the
crowd in the circumstances. He did not consider
taking an alternative route.
[22]
He testified that he embarked from
the vehicle to check on the plaintiff. Thereafter an altercation
ensued between them. The plaintiff’s
version differs materially
on this issue. She testified that Mkondwana remained in his vehicle
and she had approached him to ask
why he had knocked her over. He had
locked the doors of the vehicle and refused to speak to her.
[23]
On both witnesses’ versions, an
altercation ensued between the plaintiff and Mkondwana after the
collision, the details of
which were fundamentally different. This
dispute is not however relevant to how the collision occurred and it
is not necessary
to deal with this issue in any detail.
[24]
The defendant confirmed that in his
view, the plaintiff had been aware of his approaching vehicle and he
had assumed that the plaintiff
would stop dancing and move out of the
way of his vehicle as he approached closer, as other of the dancing
people in the street
had done.
[25]
The versions of the plaintiff and
defendant are irreconcilable in material respects regarding how the
collision occurred and are
mutually destructive. The plaintiff
contends that the collision occurred whilst she was crossing the
road, whereas the defendant
contends that it occurred whilst the
plaintiff was dancing in the street and that she was accordingly the
author of her own misfortune.
[26]
It is common cause between the
parties that the plaintiff bears the onus.
[27]
The
technique generally adopted by courts in resolving factual disputes
when dealing with two irreconcilable versions is set out
in
SWF
Group Limited and Another v Martell ET CIE and Others
[1]
,
wherein the following relevant applicable principles are stated:
[27.1]
Findings must be made on:
[27.1.1]
the credibility of the various
factual witnesses which depends on a court’s impression
about the veracity of the
witnesses;
[27.1.2]
their reliability; and
[27.1.3]
the probabilities.
[27.2]
In regard to the credibility of a witness,
a number of factors must be taken into consideration: (i) the
witness’ candour
and demeanour in the witness-box, (ii) his
latent and blatant bias, (iii) internal contradictions in his
evidence, (iv) external
contradictions with what was pleaded or put
on his behalf, or with the established facts or with his own extra
curial statements
or actions, (v) the probability or improbability of
particular aspects of his version, and (vi) the calibre and cogency
of his
performance compared to that of other witnesses testifying
about the same incident or events.
[27.3]
A witness’ reliability will depend,
in addition to the aforesaid factors mentioned in paragraph [27.2]
(ii), (iv) and (v)
above, on: (i) the opportunity he or she had to
experience the event in question, (ii) the quality, integrity and
independence
of his or her recall of the event.
[27.4]
Having regard to the probabilities, this
necessitates an analysis and evaluation on the probability or
improbability of each party’s
version on each of the disputed
issues.
[27.5]
In light of its assessment of the factors
in [27.2] to [27.4] above, a court should then, as a final step,
determine whether the
party burdened with the onus of proof, has
succeeded in discharging it.
[27.6]
When a court’s credibility findings
compel it in one direction and its evaluation of the general
probabilities compels it
in another direction, the more convincing
the former, the less convincing will be the latter. But when all
factors are equipoised,
probabilities will prevail.
[28]
I have carefully weighed up all the
evidence in light of the above factors.
[29]
The plaintiff contends that the
evidence of both witnesses were unsatisfactory in certain respects
but that the evidence of neither
can be rejected in its totality.
[30]
The defendant contends that the
plaintiff’s evidence was contradictory, that she presented no
less than three versions of
how the collision occurred and that her
evidence should be rejected. It further contends that the version
proffered by Mkondwana
was credible and accorded with the
probabilities.
[31]
In my view, the plaintiff’s
evidence was not reliable and satisfactory in various material
respects and her evidence was contradictory
on various issues, such
as where the collision occurred and what portion of the vehicle made
contact with her body. However, the
evidence of Mkondwana was
similarly not satisfactory in all respects and does not in all
material respects accord with the probabilities,
specifically in
relation to the plaintiff’s conduct shortly before the
collision in effectively climbing onto his vehicle
and exactly how
the collision occurred.
[32]
Having regard to the evidence as a
whole and based on the undisputed evidence, it appears probable that
the accident occurred in
the street, rather than on the pavement, as
confirmed by the plaintiff during her evidence in chief. At the
time of the accident,
the vehicle driven by Mkondwana had been
proceeding slowly through the crowd until it made contact with the
plaintiff. By virtue
of the inherent improbabilities in both
witnesses’ versions, it is not possible to make any definite
finding on exactly how
the collision occurred and neither of the
witnesses’ evidence on this issue is reliable.
[33]
The plaintiff urged me to apportion
the negligence of the respective parties in favour of the plaintiff,
whereas the defendant contended
that an apportionment of equal fault
would be appropriate. In my view, having regard to the available
evidence and specifically
the evidence of Mkondwana, his conduct
substantially deviated from the norm of a reasonable man in his
circumstances to a larger
extent than that of the plaintiff.
[34]
Mkondwana readily conceded that he
was aware of the crowd of revellers in the street as he approached.
On his own version, he was
aware that they were having a party and
must therefore reasonably have anticipated that not all the revellers
were sober and may
have taken alcohol as part of their festivities.
He was also aware that a lot of people were dancing in the street and
were accordingly
acting carelessly. He further knew that roads were
sometimes closed to traffic when there were street parties such as
the present.
He is a professional driver and as such aware of having
a responsibility for the safety of others.
[35]
Notwithstanding such knowledge he
proceeded to enter into the crowd and did so with only his headlights
on. He took no additional
steps to make the revellers aware of his
presence. He simply assumed that the people in the crowd would become
aware of his presence
as he slowly moved forward and would get out of
his way. This conduct smacks of a disregard for the safety of the
people present
on the road and a measure of arrogance. He did not
consider it necessary to stop or take any proactive steps to clear
the revellers
from his path or to draw their attention specifically
to his approach. Mkondwana further did not deem it necessary to take
an alternative
route, although he could clearly have done so, thus
avoiding any danger.
[36]
On
Mkondwana’s own version he was accordingly negligent in not
taking proper precautions to guard against any carelessness
on the
part of any of the people in the crowd
[2]
.
He was further negligent in simply driving into the crowd, albeit
slowly, rather than to take any action to avoid driving through
the
crowd although he could easily have done so
[3]
.
In my view the degree to which Mkondwana was at fault in relation to
the collision should be apportioned at 70 per cent.
[37]
The conduct of the plaintiff must
also be considered to determine to what degree, if any, her
negligence contributed to the collision.
The collision occurred in
the road at a time when the plaintiff, on her own version, was aware
of the vehicle driven by Mkondwana,
albeit that she was under the
impression that the vehicle was stationary. On the probabilities the
vehicle was moving at a slow
pace towards her. If she failed to
notice this, she was not keeping a proper look out. The plaintiff, on
her own version, took
no action to evade a collision with the
vehicle. On the defendant’s version, the plaintiff remained
dancing in the road,
well aware of the approaching vehicle.
[38]
In
determining the culpability of a pedestrian, a court may have regard
to any breach of the National Road Traffic Act or regulations
thereunder
[4]
.
Any transgression of the regulations constitutes an offence under s
89(1) of the National Road Traffic Act
[5]
.
Regulation 316 lists the duties of pedestrians. Specifically
regulations 316(3) to (6) are of importance, which in general terms:
(1) obliges a pedestrian to satisfy herself that the roadway is
sufficiently fee from oncoming traffic to permit the road to be
crossed in safety; (2) obliges a pedestrian not to linger on a road
but to cross it with prompt dispatch; and (3) provides that
no
pedestrian on a public road shall conduct herself in such a manner as
to or which is likely to constitute a source of danger
to herself or
to any traffic which may be on the road.
[39]
In the present instance, the
plaintiff clearly did not comply with any of these duties. At the
time, the road was being used by
various of the revellers as a
surface for dancing to such an extent that the road surface was
blocked by people. Mkondwana
confirmed that as he was
progressing through the crowd, there were people all around him. This
may well have lulled the plaintiff
into thinking that it was safe to
do so.
[40]
This does not however excuse the
plaintiff’s conduct entirely from being present on the road
surface and in my view she was
negligent in doing so, irrespective of
whether there were other people who were similarly present on the
road surface. The conduct
of the plaintiff was not however in wilful
disregard to what could happen if she continued to stay on the road
surface.
[41]
In
the circumstances, I am of the view that the plaintiff’s
negligence contributed to the collision
[6]
and that an apportionment of 30 per cent would be appropriate in the
circumstances.
[42]
I accordingly make the following
order:
[42.1]
The issues surrounding the quantum of the
plaintiff’s claim are postponed sine die.
[42.2]
The defendant is liable to pay 70 per cent
of the plaintiff’s proven damages.
[42.3]
The defendant is directed to pay the
plaintiff’s costs.
E
F DIPPENAAR
ACTING
JUDGE
APPEARANCESPLAINTIFF:
Adv R Saint
Wim
Krynauw Attorneys, Johannesburg
DEFENDANT:
Adv NP Yina
MSM
Incorporated, Johannesburg
[1]
2003
(1) SA 11
(SCA) para [5]; See also:
Dreyer
& Another NNO v AXZS Industries (Pty) Ltd
2006 (5) SA 548
(SCA) at 558 para 30. These principles are somewhat
more detailed than the principles enunciated in
National
Employers General Insurance Co Ltd v Jagers
1984 (4) SA 437 (E).
[2]
R
v Ngwenya
1959
(4) SA 75 (T).
[3]
The
State v Ngcobo
1962
(2) SA 333 (N).
[4]
Watt
v Western Assurace Co
1952
(3) SA 778 (W).
[5]
93
of 1996.
[6]
Stern
v Podbrey
1947
(1) SA 350
(C)