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[2016] ZAGPJHC 242
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Fabrinso v Road Accident Fund (3676/11) [2016] ZAGPJHC 242 (9 September 2016)
SAFLII
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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: 3676/11
DATE:
9 SEPTEMBER 2016
In
the matter between:
RIDLY
STEVEN
FABRINSO
..............................................................................................
PLAINTIFF
And
ROAD
ACCIDENT
FUND
...............................................................................................
DEFENDANT
J
U D G M E N T
COLLIS
AJ:
INTRODUCTION
[1]
The plaintiff, an adult male has instituted a damages action against
the defendant for certain bodily injuries he sustained
in a motor
vehicle collision that occured on 26 October 2008. At the time of the
collision, he was a pedestrian, walking in Silver
Street, Eldorado
Park when he was hit from behind by an unidentified insured motor
vehicle.
[2] In the
particulars of claim at paragraphs 5 and 6 thereof, the plaintiff
alleged as follows:
“
5.
The aforesaid collision was caused solely as a result of the driver
of the insured motor vehicle, who was negligent in one or
more of the
following respects:
5.1
He failed to keep a proper lookout;
5.2
He travelled at an excessive speed in the circumstances;
5.3
He failed to keep the insured vehicle under proper control;
5.4
He failed to apply brakes timeously,
alternatively
adequately,
further alternatively
at
all;
5.5
He failed to give the Plaintiff proper warning of his approach;
5.6
He failed to avoid the collision when by the exercise of reasonable
care, he could and should have done so.
6.
As a result of the collision the plaintiff sustained bodily injuries
the nature and extent of which are set out in a narrative
report
drawn by Dr. Enslin. The report is annexed marked ‘A’.”
[3] In its plea the
defendant denied negligence on the part of the unidentified insured
driver and in paragraph 5 thereof, specifically
pleaded the
following:
“
5.1
The Defendant denies that the insured driver was the sole,
alternatively, a cause of and that he/she was negligent in any of
the
respects alleged at all in the pedestrian /motor vehicle accident.
The Plaintiff is put to proof thereof.
5.2
The Defendant, further to paragraph 5.1 above, pleads that the sole,
alternatively, a cause pf the pedestrian/ motor vehicle
was the
negligence of the Plaintiff. The Plaintiff having been negligent in
one or more of the following respects:
5.2.1 He/She
failed to keep a proper lookout;
5.2.2 He/She
failed to avoid a pedestrian/ motor vehicle accident when, by eth
exercise of reasonable care and/ or due diligence
would have been
enabled him/her to do so;
5.2.3 He/She
conducted him/herself and acted in a manner dangerous to other road
users and, in particular, the Defendant’s
insured driver.
5.2.4 He/ She
entered/crossed the road at a time and /or place when it was unsafe
and/or inappropriate to do so, alternatively,
not permitted;
5.2.5 He/ She
entered /crossed the road across the immediate path of travel of the
Defendant’s insured driver when it was
unsafe and/or
inappropriate to do so;
5.2.6
He/She failed to stop, slow down, move out of the way or take any
other action so as to avoid a pedestrian/ motor vehicle
accident
when, by the exercise of reasonable care and/ or skill and/ or due
diligence, he/she could or should have done so.”
The
special plea raised by the defendant, was no longer persisted with
during the trial.
[4]
During the pre-trial, which minutes were filed before court, the
parties agreed that the issue of merits and quantum will not
be
decided separately in terms of Rule 33(4). The defendant had further
admitted, the date, time and place of the collision and
that an
unidentified motor vehicle had collided with the plaintiff, who was a
pedestrian at the time. The defendant however disputed
that the
plaintiff was a pedestrian walking on the pavement when the collision
occurred and the issue of negligence on the part
of the insured
driver remained in dispute.
THE DISPUTE
[5]
The matter comes before me for the determination of the
liability
and the
quantum
of damages suffered by the plaintiff. In the event of the plaintiff
being successful on the merits, I was called upon to decide
the
quantum of general damages. The parties having agreed to an
undertaking in terms of
section 17(4)
(a) of the
Road Accident Fund
Act, 56 of 1996
for the costs of future accommodation of the
plaintiff in a hospital or nursing home or treatment of or rendering
of a service
or supplying of goods to him arising out of the injuries
sustained by him in the motor vehicle collision which occurred on 26
October
2008. The loss of earning capacity of the plaintiff is to be
postponed
sine die.
THE EVIDENCE
[6]
The plaintiff, Mr Steven Ridly testified that on 26 October 2008 he
was a pedestrian walking alone in Silver Street, Eldorado
Park at
around 22h00 at night. He was walking on the pavement at the time. He
was from his mother’s house where he had his
dinner earlier on,
going to his father’s house where he resided. He described
Silver Street as a tarred road, in a residential
area and although it
was not a main road, it was one used by taxis on a frequent basis and
a road familiar to him. Silver Street
was further described by him as
dark on the evening and it had no streetlights illuminating the area.
As he was walking along,
his next recollection was when he woke up in
hospital having lost some of his teeth.
[7]
During cross-examination he further testified that the street where
the collision occurred was situated in a built up area with
houses on
either side. Furthermore that the pavement that he was walking on was
at least a metre in width and that he could not
recall as to whether
he was walking closer to the edge of the road or closer to the houses
on the pavement. He also conceded that
Silver Street had streetlights
as is depicted on Exhibit A page 7. It was his testimony that on the
evening in question there were
not many people in Silver Street and
that prior to being struck by the unidentified motor vehicle he was
unable to see or hear
it approaching him from behind. Mr. Ridly
further conceded that he was walking with his back facing on-coming
traffic and that
he could just as easily have walked on the other
side of Silver Street where he would have been able to face on-coming
traffic.
He also conceded that if it was to be accepted that
the collision occurred on the pavement as testified too by him, then
the unidentified motor vehicle would have mounted the pavement in
order to have collided with him. He also gave evidence that
he
passed Grade 12 at school and was gainfully employed at the time of
the collision.
[8]
The plaintiff then closed his case.
[9]
The defendant closed its case without tendering of any
viva
voce
evidence.
ON MERITS
[10]
The plaintiff’s evidence was that the collision occurred on a
pavement (sidewalk). This portion of his evidence is uncontradicted
as the defendant presented no evidence in rebuttal. A sidewalk is
part of the street specifically allotted to pedestrians.
A
pedestrian is not obliged to anticipate that a motor vehicle will
either directly or indirectly intrude on his or her way. That
would
conflict with the whole purpose of a sidewalk.
[1]
In normal circumstances a reasonable pedestrian on a sidewalk would
not foresee that a vehicle would without warning come from
behind
mount the pavement and struck him.
[11]
During closing argument, counsel acting on behalf of the defendant
argued that the plaintiff was under a duty to keep a proper
lookout
for vehicles travelling along Silver Street and that the plaintiff
was further under a duty to walk on the side of the
road facing
on-coming traffic. I cannot find favour with the first leg of
counsel’s argument. This I say so, because it would
have been
expected of the plaintiff to keep a proper lookout, if the collision
occurred on the road, or before an entrance, in
the process of the
insured driver executing a turn into the entrance. The evidence
presented before me, does not point to this.
Whilst it might be so
that a pedestrian walking on a road should as far as possible walk on
the edge of the road facing on-coming
traffic, this requirement is
only set in
Regulation 316
(2)
[2]
of the National Road Traffic Act, Act 63 of 1996, where the public
road in question has no sidewalk or footpath. In the present
matter
the road in question did have a sidewalk. Furthermore, in a built up
area such as where this collision occurred a host of
other driving
manoeuvres could potentially have been performed by a driver that
even if the plaintiff was walking facing on-coming
traffic a
collision having occurred that night could not have been excluded.
What spring to mind are the driving manoeuvres where
drivers perform
U-turns in order to change their course of direction, or where
drivers decide to stop on a sidewalk without the
road signs
permitting them to stop. As a result I cannot find the actions of the
plaintiff as to where he was walking that evening
to be indicative of
any negligence on his part.
[12]
On the liability thus the defendant is held liable to compensate the
plaintiff 100% of such damages as the plaintiff is able
to prove as a
result of the collision which occurred on 26 October 2008.
ON QUANTUM
[13]
The parties before this court were in agreement that this court
should award R 60 000 as general damages, barring any
apportionment that the court might award in the event of this court
making a finding of any apportionment. Furthermore in addition
to the
above, as was previously stated in this judgment, the parties were
further in agreement that the plaintiff is to be issued
with an
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act in
respect of future medical expenses.
ORDER
[14]
In the result the following order is made:
14.1
The defendant shall pay the plaintiff 100% of the plaintiff’s
agreed or proven damages;
14.2.
The defendant shall pay the plaintiff the amount of R 60 000 in
full and final settlement of the plaintiff’s claim
for general
damages arising out of a motor vehicle accident which occurred on 26
October 2008;
14.3
The defendant shall furnish to the plaintiff an undertaking in terms
of section 17(4)(a) of the Road Accident Fund Act, 56
of 1956, for
the costs of the future accommodation of the plaintiff in a hospital
or nursing home or treatment or rendering of
service to him arising
out of the injuries sustained by him or supplying of goods to him
arising out of the injuries sustained
by him in the motor vehicle
collision which occurred on 26 October 2008;
14.4
The payment of the amount set out in paragraph 14.2 shall be made on
or before 10 October 2016 into the Plaintiff’s attorney’s
bank account, the details of which are set out as follows:
Name of account
holder: Raphael and Dawid Smith Incorporated Trust
Account
Bank
name
: First National
Bank
Branch
name
: Rosebank
Account
number :
50.............
Type of
account :
Trust account
Brach
code
: 2..............
14.5
The defendant shall pay the plaintiff’s taxed or agreed
party-and-party costs. The plaintiff shall, in the event that
the
costs are not agreed, serve the notice of taxation on the defendant’s
attorneys and the plaintiff shall allow the defendant
seven (7) court
days to make payment of the taxed costs;
14.6
The costs shall include the costs of the plaintiff’s experts
including Dr Condie, Dr T Enslin, Dr Schnaid, Drs Matisonn
&
Scott, Wilma van der Walt, Marc Peverett and Munro Consulting;
14.7
The issue of loss of earning capacity is postponed
sine die;
14.8
It is recorded that there exist no contingency fee agreement between
the plaintiff and the plaintiff’s attorneys of record.
C.J COLLIS
ACTING
JUDGE GAUTENG LOCAL DIVISION, JOHANNESBURG
APPEARANCES:
Counsel for the
Plaintiff :ADV. I. SMITH
Instructed by :
RAPHAEL & DAVID SMITH INCORPORATED
Counsel for the
Defendant : ADV. N. MAYET-BEUKES
Instructed by
:DIALE ATTORNEYS
Date of Hearing
:28 JULY 2016
Date
of Judgment: 9 SEPTEMBER 2016
[1]
See
Mashigo v Santam Assuransie Maatskappy Bpk1973 (1) SA 156(A)
[2]
Regulation
316 ( 2) “A pedestrian on a public road which has no
sidewalk or footpath abutting on the roadway, shall
walk as near as
practicable to the edge of the roadway on his or her right-hand side
so as to face oncoming traffic on such roadway,
except where the
presence of pedestrians on the roadway is prohibited by a prescribed
road traffic sign.’’