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[2015] ZAGPJHC 251
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Bruyn v Road Accident Fund (42547/2013) [2015] ZAGPJHC 251 (18 September 2015)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case no: 42547/2013
DATE: 18 SEPTEMBER 2015
In the matter between:
Sally De
Bruyn
..............................................................................................................................
Plaintiff
And
Road Accident
Fund
.................................................................................................................
Defendant
JUDGMENT
KATHREE-SETILOANE J:
[1] This is a dependents claim in which
the plaintiff claims damages on behalf of her minor child Xavier
Poalses for the loss of
support which he suffered as a result the
death of the plaintiff’s husband and minor child’s
father, Anthony Werner
Poalses (“the deceased) as a result of a
motor collision between a scooter with registration number [B……..]
GP driven by the deceased and a motor vehicle with registration
number [F……] MP driven by X S Dashe (“the insured
driver”) on the R59 Vereeniging R 42 off-ramp on 30 August
2012.
[2] This matter proceeded on the issue
of both liability and quantum. In respect of quantum, however, there
is an agreement that
if the plaintiff succeeds in proving that the
collision occurred due to the negligence of the insured driver, then
the plaintiff
would be entitled to damages in the amount of R352
050.00
[3] Turning then to the question of
liability, the central issue is whether the collision was caused due
to the negligence of the
insured driver as set out in paragraph 5 of
the plaintiff’s particulars of claim. The defendant denies that
the collision
occurred due the negligence of the insured. Since this
is a dependant’s claim, the plaintiff is only required to prove
that
the insured driver was 1% negligent.
[4] Mrs Christina Pietersen and
Sergeant Mothobi Mokwoena testified on behalf of the plaintiff and
the insured driver testified
on behalf of the defendant.
[5] Ms Pietersen testified that on 30
August 2012 at approximately 8h45 she and her mother-in-law were
driving behind the scooter
driven by the deceased on the road to Van
der Bijl Park. She saw a white Nissan bakkie , in which the insured
driver was seated,
standing in the emergency lane with its hazards
on, and within seconds she saw the scooter driven by the deceased
collide into
the Nissan bakkie. .
[6] Ms Pietersen described the R59 as
having two lanes plus the emergency lane. Immediately before the
collision she was travelling
in the left lane. The first time she
saw the scooter it was travelling in the right lane in parallel with
her vehicle. There was
a small truck travelling in front of the
motor-cycle, but the scooter seemed to be in a hurry and moved into
the left lane, and
in front of Ms Pietersen’s vehicle. Within
seconds he collided into the rear of the stationary Nissan bakkie in
the emergency
lane. Ms Pietersen said that there was a grassy area
adjacent to the emergency lane where the Nissan bakkie was
stationary, that
was wide enough for the Nissan bakkie to pull over
onto. When asked in evidence in chief if there was anything that
prevented the
Nissan bakkie from pulling over onto the grassy area
and stopping there, she said that there was nothing that prevented it
from
doing so. Ms Pietersen concluded her testimony by saying that
there was nothing that the driver of the scooter could have done to
avoid the collision.
[7] Sergeant Mothobi Mokwoena took the
photographs at the scene of the collision. These photographs were
admitted into evidence.
He described the area adjacent to the
emergency lane, where the Nissan bakkie stopped, as an area covered
with grass, sand and
bits of gravel. He said that the grass area was
wide enough for a vehicle to pull-over onto it, and that there was
nothing in that
area that would have prevented the Nissan bakkie from
pulling off the road and stopping there.
The defendant elected not to cross
examine Ms Pietersen and Sergeant Mokwoena. Their testimony,
therefore, stands uncontroverted.
[8] The insured driver testified that
while driving on the R59 to a meeting at the Lethabo Power Station in
Vereeniging he realised
he was lost, so he took the R43 off-ramp, and
after travelling for a few metres stopped in the emergency lane to
make a call, on
his cell phone, to get directions to the meeting
venue. Before stopping in the emergency lane he put on his hazards
and his headlights.
There was no vehicle behind him when he stopped
in the emergency lane. As he dialled a number on his cell phone he
heard a crashing
sound coming from the rear of the vehicle, and the
vehicle shook. When he got out of the vehicle to investigate, he saw
the deceased
body on the road and the scooter lying close by. The
insured driver conceded under cross examination that he could have
pulled
over and stopped on the grassy patch adjacent to where he had
stopped his vehicle, but when asked why he had not done so, he said
that it was “unsafe because he didn’t know what was out
there”.
[9] It is apparent from Ms Pietersen’s
testimony that the deceased driver was in a hurry and moved rapidly
from the right
lane into the left lane immediately in front of her
car. It is conceded on behalf of the plaintiff that in his haste he
may have
negligently contributed to the collision by driving too fast
and not keeping a proper lookout when he attempted to overtake the
vehicle in front of him by moving from the left lane into the
emergency lane. However, it is clear that if the Nissan bakkie was
not parked in the emergency lane, the collision would not have
occurred. and the deceased would not have sustained the injuries
which resulted in his death. The emergency lane on a motor way is
designated for use by motorists faced with an emergency. Thus
our
courts have repeatedly stated that:
‘ A motorist that is stationary
in the emergency lane ought reasonably to foresee that the vehicle
may constitute a danger
or obstruction to other possible users of the
emergency lane. Guarding against the harm would require reasonable
steps to be taken
to ensure that other motorists were alerted to the
hazard represented by the stationary vehicle, for example by the use
of reflective
triangles and hazard lights.’
[10] The insured driver stopped his
vehicle in the emergency lane in order to make a call on his cell
phone for the purposes of
getting directions to his meeting. This, in
my view, did not constitute an emergency, and the insured driver
should not have stopped
in the emergency lane for this purpose.
Although it is not disputed that he took some precautionary measures
to guard against any
harm to other motorists by putting on his hazard
lights and checking to see that there were no vehicles travelling
behind him before
he stopped in the emergency lane, these measures
were not reasonable in the circumstances. He was required, in
addition, to place
warning triangles at an appropriate distance from
the stationary vehicle, and stand outside the vehicle with a flag to
warn oncoming
motorists of the danger/obstruction ahead.
[11] Moreover, the evidence reveals
that there was more than enough space in the grassy patch immediately
adjacent to the emergency
lane for him to stop his vehicle, and make
a cell phone call. When asked why he did not stop the vehicle in the
grassy patch,
he said that “it was unsafe because he didn’t
know what was out there”. It is clear from the objective
photographic
evidence and eye-witness testimony that this patch of
ground was not at all unsafe or hazardous as it was covered by grass,
sand
and gravel. The insured driver’s fears were accordingly
completely unjustified. The inconvenience of having a punctured tyre
in my view does not outweigh the harm that stopping in the emergency
lane, without taking sufficient precautionary measures to
warn
oncoming motorists, could cause to other motorists confronted with a
real emergency.
[12] The insured driver, in my view,
did not act as the reasonable person should have in similar
circumstances. A reasonable person
in the insured drivers position
would have foreseen the possibility of harming other road users when
stopping/or obstructing the
emergency lane on a busy motor way with
passing cars, and should have pulled onto the grassy patch or
continued travelling until
he found someplace else safe to stop. I am
accordingly of the view that the insured driver should reasonably, in
all the circumstances,
have foreseen the possibility of a collision
with the scooter and his failure to have done so constitutes
negligent conduct.
[13] In the result, I find that the
plaintiff has discharged the onus of proving on a balance of
probabilities that the insured
driver was negligent and is liable for
all the proven damages suffered by plaintiff arising from the
collision on 30 August 2012
between the insured vehicle and the
scooter, which the deceased rode.
[14] In the circumstances I make the
following order:
1. The Defendant shall be liable for
all agreed or proven damages suffered by the Plaintiff arising from
the collision on 30 August
2012;
2. Defendant shall pay the capital
amount of R352 050,00 in respect of the Plaintiff’s claim.
3. The amount of R352 050,00 shall be
payable on or before 30 October 2015 by means of direct fund transfer
into the trust bank
account of the Plaintiff’s attorneys; Mills
& Groeneweld Trust Cheque Account, Absa Bank, Vereeniging,
Account nr. 4……..,
Branch code: 6………,
reference: A van Zyl.
4. No interest will be payable except
in the event of default of payment before/on the above mentioned date
in which case interest
will payable at the rate of 9% calculated on
the capital amount from 1 August 2015.
5. The Defendant shall pay the
Plaintiff’s taxed or agreed party and party costs including 19
June 2015 as well as 3 August
2015 on the High Court scale which
party and party costs include, but are not limited to:
5.1. The reasonable cost in respect of
the consultation, assessment and preparation of the medico legal
expert reports, the radiological
reports, the addendum medico legal
reports and the actuarial reports of:
5.1.1. Dr J Rossi;
5.1.2. Mrs L van Rooyen;
5.1.3. Munro Forensic Actuaries.
5.2. The Plaintiff’s traveling
costs to and from all medico legal appointments;
5.3. Consultations when detailed
instructions were given due to the complexities of the matter;
5.4. Costs of counsel, inclusive of
counsel’s consultations with experts and appearance fees on 19
June 2015 as well as 3
August 2015;
5.5. Any costs attendant upon the
obtaining of payment of the amount referred to in paragraph 1 supra,
as well as any interest thereon;
6. Payment of costs is subject to the
following conditions:
6.1. The Plaintiff shall, in the event
that costs are not agreed, serve the notice of taxation on the
Defendant’s attorney
of record; and
6.2. The Plaintiff shall allow the
Defendant 14 court days to make payment of the taxed costs.
F KATHREE-SETILOANE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for the Plaintiff: Advocate
Smit
Instructed by: Mills and Groenewald
Counsel for the Defendant: Advocate
Magashule
Instructed by: Mazuko Nxusani Inc
Date of Hearing: 3 August 2015
Date of Judgement: 18 September 2015