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[2015] ZAGPJHC 205
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Pienaar v Road Accident Fund (2011/ 43693) [2015] ZAGPJHC 205 (11 September 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2011/ 43693
DATE: 11 SEPTEMBER 2015
In the matter between:
DANIEL STEPHANUS
PIENAAR
............................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
WANLESS, AJ:
Introduction
[1] This is an action instituted by
DANIEL STEPHANUS PIENAAR (hereafter referred to as “the
Plaintiff”) against the
ROAD ACCIDENT FUND (hereafter referred
to as “the Defendant”) in terms of the Road Accident Fund
Act, No. 56 of 1996
(hereafter referred to as “the Act”)
for damages arising from a collision which occurred on the 16th of
June 2010 on
Fifth Avenue, Benoni, Gauteng.
[2] On the 20th of August 2015 an Order
was made in this Court as follows:-
[a] The issue of liability is separated
from the determination of the Plaintiff’s quantum of damages in
terms of Rule 33(4)
of the Uniform Rules of Court;
[b] The determination of the
Plaintiff’s quantum of damages is postponed sine die.
[3] In the premises, I am asked only to
determine whether or not the Defendant is liable to compensate the
Plaintiff as a result
of the aforementioned collision.
[4] It is common cause in this matter
that on the afternoon of the 16th of June 2010 at approximately 14h54
and on Fifth Avenue,
Northmead, Benoni near the intersection of Fifth
Avenue and Tenth Street, a collision occurred between a BMW motor
cycle with registration
letters and numbers [F…… 3…..]
NW driven by the Plaintiff (hereafter referred to as “the
Plaintiff’s
motor cycle”) and a maroon Audi motor vehicle
bearing registration letters and numbers [T…… 3…
GP] (hereafter
referred to as “the insured vehicle”)
driven by one ANGELIQUE STRYDOM (hereafter referred to as “the
insured
driver”).
[5] This court must decide whether the
sole cause of the collision was the negligent driving of the insured
driver, alternatively,
whether the sole cause of the collision was
the negligent driving of the Plaintiff, alternatively, whether
negligence attributable
to the cause of the collision should be
apportioned between the Plaintiff and the insured driver in
accordance with the provisions
of the Apportionment of Damages Act
No. 34 of 1956 (as amended).
The evidence
[6] Four (4) witnesses testified on
behalf of the Plaintiff, namely the Plaintiff; Terry Pienaar (the
ex-wife of the Plaintiff);
Morake Zabulon Bookholane (an Inspector in
the employ of the Ekurhuleni Metropolitan Police, Accident Unit,
Eastern Region) and
Roedolf Opperman (an Accident Reconstruction
expert).
[7] One (1) witness testified on behalf
of the Defendant, namely the insured driver.
Evidence of the Plaintiff (Daniel
Stephanus Pienaar)
[8] The sole purpose of the Plaintiff’s
evidence was to clarify the discrepancies between the statement made
by him on the
18th of July 2010 when the crime of reckless and
negligent driving was being investigated as a result of the collision
(“the
first statement”) and the affidavit deposed to by
him on the 19th of August 2010 which forms part of the documents
lodged
on behalf of the Plaintiff in support of his claim against the
Defendant in terms of the Act (“the second statement”).
[9] The first statement is at pages 19
to 21 inclusive of exhibit “B” and the second statement
is at pages 13 and 14
of exhibit “C”.
[10] In the first statement the
Plaintiff states that apart from seeing a motor vehicle in front of
him he cannot remember anything
else in relation to the collision
whilst in paragraph 4 of the second statement the Plaintiff states,
inter alia, that a maroon
Audi was travelling in front of him in the
middle lane of Fifth Avenue; the driver had missed the turn-off and
suddenly stopped
right in front of him whereafter he collided with
the said motor vehicle.
[11] When he testified the Plaintiff
confirmed the contents of the first statement and that the averments
as set out in paragraph
4 of the second statement were based on
information supplied to him by Terry Pienaar (his ex-wife).
[12] In light of the material facts of
this matter which are either common cause or cannot be disputed, it
is not necessary for
me to come to a finding regarding the
credibility of the Plaintiff as a witness when deciding the
probabilities of this matter.
[13] The further evidence given by the
Plaintiff that he suffered a head injury and was rendered unconscious
as a result of the
collision was not disputed by the Defendant. I
accordingly accept that the Plaintiff has no recollection of the
cause of the collision.
[14] In the premises, the evidence of
the Plaintiff takes this matter no further.
Terry Pienaar (the Plaintiff’s
ex-wife)
[15] The evidence of this witness was
tendered on behalf of the Plaintiff to confirm his testimony that the
information as set out
in paragraph 4 of the second statement had
been obtained by the Plaintiff from this witness and also, to support
the version of
the Plaintiff that the insured driver had been
negligent in the driving of the insured vehicle.
[16] In broad summary, this witness
testified that she arrived at the scene of the collision shortly
after the collision had occurred.
She spoke to the insured driver and
the insured driver’s mother who was a passenger in the insured
vehicle. She then relayed
the contents of this conversation (either
the conversation she had directly with the insured driver and/or the
insured driver’s
mother and/or which she overheard between the
insured driver and her mother) to the Plaintiff after he left
hospital approximately
five days following the collision.
[17] The aforegoing conversation and /
or conversations consisted of, inter alia, whether or not the insured
driver had indicated
to turn right from Fifth Avenue into Tenth
Street and whether or not the insured driver had nearly missed the
turn-off from Fifth
Avenue into Tenth Street.
[18] Once again, in light of the
material facts of this matter which are largely common cause or
cannot be disputed, it is not necessary
for me to make any findings
pertaining to the credibility of this witness. I accordingly refrain
from doing so.
[19] Ultimately, the evidence of this
witness, like the evidence of the Plaintiff, takes this matter no
further.
Morake Zabulon Bookholane
[20] This witness, in his capacity as
an Inspector of the Ekurhuleni Metropolitan Police, Accident Unit,
Eastern Region, attended
the scene of the collision and drew a Sketch
Plan with a key thereto which appears at pages 12 to 14 of exhibit
“B”.
[21] He also took the photographs which
are at pages 42 to 54 of the same exhibit.
[22] The witness testified on various
aspects pertaining to the scene of the collision; the compilation of
his Sketch Plan and the
key thereto. Most importantly, he testified
in respect of the area of impact as depicted on the Sketch Plan. In
this regard he
ascertained the area of impact by way of liquid
deposits; gouge marks and debris on the road surface.
[23] Miss Maisela, who appears on
behalf of the Defendant, has submitted to this court that no reliance
should be placed upon the
evidence of this witness.
[24] It is true that criticism may be
levelled at certain aspects of the Sketch Plan and key thereto
compiled by this witness.
In this regard, certain important aspects
were either not dealt with in a satisfactory manner or not dealt with
at all. However,
the evidence given by this witness as to the area
of impact which is depicted as point C on the Sketch Plan at page 13
of exhibit
“B” was not disputed by the Defendant. In
fact, this aspect of his evidence was confirmed by the insured driver
under
cross-examination.
[25] In addition to the aforegoing the
witness, by way of reference to, inter alia, the photographs at page
53 of exhibit “B”,
testified that the damage to the
insured vehicle was to the right rear.
[26] This evidence was also confirmed
by the insured driver and was not disputed on behalf of the
Defendant.
[27] In the premises, whether or not
any other aspects of his evidence should be accepted by this court
plays no role whatsoever
in the assessment of the evidence upon which
I must decide this matter.
Roedolf Opperman (Accident
Reconstruction Expert)
[28] The expertise of this witness was
not put into dispute by the Defendant and it is accordingly accepted
that he is a suitably
qualified expert to provide evidence on the
reconstruction of the collision.
[29] This witness testified that the
insured vehicle must have been in the process of turning to the right
when the impact occurred.
[30] The reasons for this opinion were
the following, namely:-
[a] the fact that the insured vehicle
was facing back the way from which it had come;
[b] where the insured vehicle came to
rest following the collision; and
[c] the fact that the insured vehicle
had completed a clockwise rotation after impact was compatible with
the rest position of the
insured vehicle.
[31] The witness further testified that
he was of the opinion that it was probable that the insured vehicle
was travelling in the
left hand lane of Fifth Avenue (Fifth Avenue
being a one - way street with two (2) lanes) prior to turning right
for the following
reasons:-
[a] the primary point of impact in
relation to the damage to the insured vehicle and as testified to by
BOOKHOLANE (as depicted
in the photographs at page 53 of exhibit “B”)
was at the right rear end of the insured vehicle, between the number
plate and the right rear light; and
[b] as the area of impact was close to
the centre line of Fifth Avenue the insured vehicle must have been
partially on the left-hand
side of the centre line and partially on
the right. If this was not the case the damage to the insured
vehicle would have been
more to the left of that vehicle.
[32] This witness further testified
that the area of impact on the road surface and the resting position
of the insured vehicle
following the collision are compatible with
one another and that the latter supports the area of impact. In this
regard he testified
that the area of impact had to be close to the
centre line to cause the insured vehicle to rotate and come to a
standstill as depicted
in the photographs (exhibit “B”).
[33] The witness was asked to express
an opinion as to whether the insured vehicle would have come to the
same rest position as
depicted in the photographs (exhibit “B”)
if both the insured vehicle and the Plaintiff’s motor cycle had
been
travelling in the right hand lane of Fifth Avenue prior to the
collision and the insured vehicle had intended to turn to the right
when the impact occurred.
[34] In response thereto the witness
testified that it would not, as the insured vehicle would have come
to rest further South,
that is, further into Tenth Street and
effectively out of the intersection.
[35] He also stated that if the
collision had occurred in the right hand lane the insured vehicle
would not have been able to turn
on its axis and come to rest where
it did as depicted in the photographs.
[36] In light of the aforegoing the
expert witness was of the opinion that the collision could not have
occurred with both vehicles
travelling in the right hand lane.
Angelique Strydom (the insured
driver)
[37] The insured driver testified that
on the day of the collision she was the driver of the insured vehicle
travelling from a flea
market in Boksburg towards home in Heidelberg.
Her mother and young cousin were passengers in the insured vehicle.
[38] She travelled along Main Road with
the intention of turning right into Tom Jones Street where Main Road
intersects with Great
North Road (to the left) and Tom Jones Street
(to the right).
[39] She missed that turn-off and
proceeded across the intersection where Main Road “becomes”
Fifth Avenue. Fifth Avenue
is a one-way street which has two lanes.
[40] As soon as she had crossed the
said intersection she indicated to turn right as it was her intention
to take the next road
to her right, being Tenth Street.
[41] She remained in the right hand
lane of Fifth Avenue and never travelled in the left hand lane.
[42] As she commenced her right turn
from Fifth Avenue into Tenth Street she looked into her rear view
mirror. She did not see
the Plaintiff’s motor cycle when she
did so. She did not testify as to whether or not any other motor
vehicle was behind
her when she commenced her turn.
[43] She suddenly felt a bump to the
rear of the insured vehicle which caused her vehicle to spin and come
to a resting position
in the opposite direction from which she was
travelling.
[44] She agreed with the evidence given
by Opperman that the distance between the first intersection which
she crossed and the second
intersection where she intended turning
was approximately 200 metres.
[45] The insured driver further agreed
that the area of impact was as depicted by Bookholane on his Sketch
Plan and key thereto
(pages 13 and 14 of exhibit “B”).
[46] This witness also agreed with the
evidence given by both Bookholane and Opperman that the damage to the
insured vehicle was
to the rear right hand side of that vehicle.
[47] Under cross-examination the
insured driver was unable to provide any explanation as to why, if
both the insured vehicle and
the Plaintiff’s motor cycle had
been travelling in the right hand lane of Fifth Avenue and the motor
cycle had collided with
the rear of the insured vehicle, she had not
seen the Plaintiff’s motor cycle when she looked into her rear
view mirror whilst
executing a right turn from Fifth Avenue into
Tenth Street. It was not her evidence that she also looked into her
right side mirror.
The salient facts
[48] The salient facts upon which I am
able to decide this matter and which are common cause or not in
dispute are as set out hereunder.
[49] From the evidence and the relevant
exhibits in this matter it is clear that Fifth Avenue is a straight
and level one-way road
consisting of two (2) lanes divided by a
broken white line separating those lanes.
[50] Fifth Avenue intersects with Tenth
Street and to enter Tenth Street in the direction in which both the
insured vehicle and
the Plaintiff’s motor cycle were travelling
it is necessary to execute a right turn.
[51] At the time when the collision
took place the road surface was dry and visibility was good. The
collision took place at approximately
14h54 and hence during the
afternoon of the 16th of June 2010. The speed limit in the area where
the collision took place is 60
kilometres per hour.
[51] Both the insured vehicle and the
Plaintiff’s motor cycle were travelling in the same (easterly)
direction along Fifth
Avenue and the Plaintiff’s motor cycle
was travelling behind the insured vehicle before colliding with the
right hand rear
of the insured vehicle.
[52] The insured driver attempted to
execute a right hand turn from Fifth Avenue into Tenth Street when
the Plaintiff’s motor
cycle collided with the rear of the
insured vehicle as aforesaid. This caused the insured vehicle to
rotate on its axis and come
to rest as depicted in the various
photographs in exhibit “B”.
[53] The area of impact was near the
centre line of Fifth Avenue and as marked on the Sketch Plan (page 13
of exhibit “B”).
The area of impact was clearly visible
as a result of liquid deposits; gouge marks and debris on the road
surface (page 42 of
exhibit “B” refers).
[54] The distance between the
intersection of Fifth Avenue and Tom Jones Street and the
intersection of Fifth Avenue and Tenth Street
is approximately 200
metres.
[55] The insured driver did not see the
Plaintiff’s motor cycle when she looked in her rear view mirror
as she commenced the
right hand turn from Fifth Avenue intending to
enter Tenth Street. She did not look into her right side mirror.
The Law
[56] In the matter of A A Onderlinge
Assuransie – Assosiasie Bpk v De Beer
1982 (2) SA 603
(AD) it
was held, inter alia, that in collision cases the bare opinion of an
experienced policeman as to the point of collision
is usually allowed
in our courts as prima facie proof which naturally becomes conclusive
proof if it is not challenged.
[57] It is trite that it is the duty of
all users of the road at all times to keep a proper lookout so as to
avoid colliding with
other road users.
Butt and Another v Van Den Camp
1982
(3) SA 819
(AD)
[58] To keep a proper lookout includes
the obligation of a driver to look in his rear-view mirror from time
to time. The frequency
with which he should do so naturally depends
on the circumstances of each case. One look may not be good enough or
again the circumstances
may call for no more than an occasional
glance in the mirror.
Butt and Another v Van Den Camp (supra)
Brown v Santam Insurance Co Limited
1979 (4) SA 370
(WLD)
[59] To turn across the line of
oncoming or following traffic is an inherently dangerous manoeuvre
and there is a stringent duty
upon a driver who intends executing
such a manoeuvre to do so by properly satisfying himself that it is
safe and choosing the opportune
moment to do so.
AA Mutual Insurance Associated Limited
v Nomeka
1976 (3) SA 45
(AD)
[60] In the matter of Bata Shoe Co.
Limited (South Africa) v Moss
1977 (4) SA 16
(WLD) it was held, inter
alia, that when the driver of a motor vehicle wishes to turn across
an adjoining carriageway at right
angles to his previous line of
travel, his proposed action is pregnant with danger. He is about to
do something which is inherently
hazardous and is therefore fixed
with certain important obligations. The first of those is that he
must signal clearly his intention
to make the turn and do so in such
a manner as to warn approaching drivers, drivers following him and
the driver of any vehicle
who may be seeking to overtake him, of the
intended change of direction. It is not sufficient, however, that
the driver of the
vehicle which is about to turn signals his
intention to do so, even if the signal is given in good time. His
further obligation
is to refrain from making the turn until an
opportune time. An opportune time in that context is a time when the
motorist who
wishes to turn can carry out his intention without
endangering or even materially impeding the progress of any other
person or
vehicle lawfully on the road. It is the duty of the driver
who wishes to make the turn to satisfy himself by full and careful
personal
observation that the time is opportune in the sense
indicated above.
Judgment
[61] Following a proper consideration
of all the evidence in this matter and most importantly the salient
facts which are either
common cause or cannot be disputed, it must be
found that the most probable version of how this collision occurred,
is as set out
hereunder.
[62] The insured driver must have been
travelling in the left hand lane of Fifth Avenue prior to executing a
right hand turn in
an attempt to exit Fifth Avenue and enter Tenth
Street.
[63] This must be so because of the
area of impact which is near the centre line of Fifth Avenue; the
damage to the rear of the
insured vehicle and the position where the
insured vehicle came to rest.
[64] In this regard the evidence of the
expert witness Opperman is accepted by this court. Not only was such
evidence logical but
was based on facts which were common cause,
namely the area of impact; the damage to the insured vehicle and the
position where
the insured vehicle came to rest.
[65] It follows thereon that, on a
balance of probabilities, the Plaintiff was travelling in the right
hand lane of Fifth Avenue
before colliding with the rear of the
insured vehicle. This must be so in light of the area of impact and
the damage to the right
rear of the insured vehicle.
[66] Hence, on a balance of
probabilities, the collision occurred when the insured vehicle left
its path of travel in the left hand
lane and entered the right hand
lane of Fifth Avenue when the insured driver was attempting to
execute a right hand turn into Tenth
Street.
[67] On the insured driver’s own
version she only looked in her rear view mirror and not in her side
mirror. This creates
two problems for the insured driver. Firstly,
this confirms that she was travelling in the left hand lane of Fifth
Avenue because
if she looked in her rear view mirror she would not
(as she testified) have seen the Plaintiff’s motor cycle since
(as set
out above) the Plaintiff had to be travelling in the right
hand lane. Secondly, if she indeed did look in her rear view mirror
and was travelling in the right hand lane of Fifth Avenue there is no
reasonable explanation as to why she would not have seen
the
Plaintiff’s motor cycle which had to be travelling behind the
insured vehicle.
[68] I find it improbable that the
insured driver indicated her intention to turn to the right. I say
this because it is improbable
that a driver would commence indicating
to execute a right turn some 200 metres prior to the intersection
where that driver intended
to turn.
[69] Even if I am wrong in this regard
and the insured driver did indicate her intention to turn from the
left hand lane of Fifth
Avenue across the right hand lane of Fifth
Avenue in order to enter Tenth Street, this does not alter the fact
that the insured
driver did not keep a proper lookout and did not
take all reasonable precautions whilst executing this inherently
dangerous manoeuvre.
[70] I thus find that the insured
driver was negligent and that her negligence was a cause of the
collision.
[71] The question then arises as to
whether the negligence of the insured driver was the sole cause of
the collision or whether
any negligence can be apportioned to the
Plaintiff.
[72] As dealt with above the Plaintiff
did not, as a result of the head injury sustained by him in the
collision, testify before
me as to what caused the collision. He has
no direct recollection thereof. Arising therefrom, any assessment of
whether the Plaintiff
was negligent and that his negligence
contributed to the cause of the collision must be based upon the
salient facts of this matter
as available to me and dealt with
herein.
[73] Arising therefrom, there is no
evidence before this court of any negligence whatsoever on behalf of
the Plaintiff. Further,
simply because the Plaintiff collided with
the rear of the insured vehicle does not, to my mind, draw the sole
inference that the
Plaintiff must have been, to one degree or
another, negligent.
[74] On the same facts the exact
opposite inference may be drawn, namely that the insured driver
turned suddenly from the left hand
lane into the right hand lane of
Fifth Avenue directly into the Plaintiff’s path of travel
causing the collision. On the
facts of this matter and the
probabilities arising therefrom I am satisfied that this is the
probable cause of the collision and
that no negligence can be
attributed for the cause of that collision to the Plaintiff.
[75] Under the circumstances, I come to
the finding that the negligence of the insured driver was the sole
cause of the collision.
Order
[76] In the premises, I make the
following Order, namely:-
[a] the Defendant is liable to
compensate the Plaintiff in respect of all of his agreed or proven
damages arising from the collision
which took place on the 16th of
June 2010;
[b] the Defendant is to pay the costs
of the Plaintiff in respect of the issue of liability, to date.
B.C WANLESS ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING: 25 AUGUST 2015
DATE OF JUDGMENT: 11 September 2015
COUNSEL FOR THE PLAINTIFF: Adv. H.
Schouten
INSTRUCTED BY: Wim Krynauw
A ttorneys
REFERENCE 6th Floor Marble Towers
208 – 2012 Jeppe Street
Johannesburg
COUNSEL FOR THE DEFENDANT: Adv. J.
Maisela
INSTRUCTED BY: Z & Z Ngogodo
Attorneys
REFERENCE Suite 7, First Floor
Waterfall View, Waterfall Park
Bekker Road
Midrand