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[2018] ZAGPJHC 133
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Ntsube v Road Accident Fund (A3020/2015) [2018] ZAGPJHC 133 (15 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A3020/2015
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
Date:
15
May 2018
Signature:_________________
In
the matter between:
NTSUBE:
RANDY
Appellant
And
THE
ROAD ACCIDENT
FUND
Respondent
JUDGMENT
NYATHI
AJ
INTRODUCTION
[1]
This is an appeal
against a judgment handed down on the 1
st
of April
2014 by the Johannesburg Magistrates Court (Magistrate PJ Stanford),
in respect of the merits only in a personal injury
claim against the
respondent ie in respect of the question whether and to what extent
the respondent could be held liable for the
loss suffered by the
appellant.
[2]
The matter previously served before
court on the 8
th
December
2015 and was argued before Mailula J and Siwendu AJ (as she then
was). Unfortunately Mailula J, who was evidently the scribe,
fell ill
subsequent to the hearing. As the argument could not be transcribed
(or had not been transcribed), Siwendu AJ could not
write the
judgment and the Judge President accordingly directed that the matter
be re-enrolled for a re-hearing
de novo.
COMMON
CAUSE FACTS
[3]
It is common cause that an accident had occurred on 1
December 2007 between a vehicle driven by the Appellant (‘
Appellant’s
vehicle’
) and a vehicle driven by the Insured Driver (‘
the
Insured Driver’s vehicle
’) on a narrow, tarred road
where the speed limit was 60 km/h. The weather was sunny and the day
was clear. There is paving
on one side of the road and gravel on the
other side of the road.
APPELLANT’S
VERSION
[4]
The Appellant testified that he was
travelling in a northerly direction along Concord road when he and
his wife noticed a funeral
procession in the distance. In order to
avoid the delay that the procession would cause, they decided to
travel an alternative
route to their destination and he accordingly
executed a right hand turn into a gravel road so that they could turn
around and
head in the opposite direction.
[5]
He was 50 metres away from the gravel
road when he first noticed the gravel road. He reduced his speed by
applying brakes and put
on his indicator about 40 metres before the
gravel road. He noticed that there was no traffic coming from the
opposite side but
saw the vehicle of the Insured Driver coming from
behind. He was half way across the opposite side of the road when he
saw the
Insured Driver's car coming at a very high speed towards him.
The Insured Driver's vehicle collided with the rear right-hand side
of the Appellant's vehicle. The Appellant's vehicle sustained
damages. The Insured Driver's vehicle was positioned on the incorrect
side of the road after the collision.
INSURED
DRIVER’S
VERSION
[6]
The Insured Driver's version was to the effect that
he
only noticed the Appellant's vehicle a couple of metres before the
collision occurred. He observed the Appellant's vehicle standing
still towards the left of the lane in which he was travelling (in the
same direction) as if the Appellant had stopped to ask for
directions. The Appellant turned in front of him. He attempted to
avoid the collision by applying brakes. He did not observe the
Appellant indicating with his vehicle's indicators that he intended
to turn right. He also did not observe the funeral procession.
He
testified that there had not been a gravel road when the accident
occurred.
THE
EXPERT’S EVIDENCE
[7]
The expert witness: Mr Rudolph Adriaan Opperman, a collision
reconstruction expert, was called to testify on behalf of the
Appellant.
He is a professional engineer with a very impressive
Curriculum Vitae.
He has garnered 16 years experience in
traffic safety research at the CSIR, and completed a number of
accident reconstruction courses
at the North-Eastern University in
Illinois in the USA and headed the CSIR's accident reconstruction
unit for seven years, amongst
a host of other qualifications. Mr
Opperman testified in accordance with his report which he had
compiled placing reliance
on, amongst other things, photographs and
affidavits. He had also attended the scene with the Appellant and his
attorney where
he took measurements such as the width of the lanes of
the road.
[8]
The nub of Mr Opperman's evidence was that because the impact of
the collision was on the right rear side of the Appellant's vehicle,
such vehicle must have been at a 90 degree angle to the Insured
Driver’s vehicle. The Appellant’s vehicle had crossed
the
centre of the road at the time of impact. He opined that it is
probable that the Insured Driver could have avoided the collision
if
he had obeyed the speed limit and had kept a proper look out. This
was so because the collision had occurred in the south bound
lane and
just prior to the collision, the Appellant's vehicle had executed a
more or less 90 degree right-hand turn. Such manoeuvre,
he opined,
would not have been possible at high speed. In his view, the
appellant must have been travelling at a speed of no more
than 10
kilometres per hour. He asserted that it is probable that if the
Insured Driver had driven at an appropriate speed, had
kept a proper
look out, had braked and kept to the lane in which he was travelling,
he would have passed behind the Appellant’s
vehicle and a
collision would not have occurred.
REASONS
OF THE TRIAL COURT
[9]
The Magistrate's reasoning in support of his judgment in the
court
a quo
begs closer scrutiny. A court is obviously not
bound by an expert's opinion. However, where the facts upon which he
bases his opinion
are common cause and the reasoning is sound, it is
difficult to conceive of circumstances under which such opinion/s
would not
be accepted. No argument was advanced as to why the court
should not accept his opinion. The learned Magistrate rejected his
findings
based on flawed reasoning. The learned Magistrate
rejected the expert's findings and substituted his own findings and
calculations
for his, without affording Mr Opperman an opportunity to
deal with such findings and calculations. The difficulty with this
approach
is self evident. Firstly, he did not canvass it with the
expert. Secondly, the respondent did not lead any expert evidence in
this
regard but thirdly, and most importantly, his calculations were
flawed in logic. The conclusion reached by the learned magistrate
ie
that if the speed of the Appellant’s vehicle is increased (as
per his testimony) then, even if the insured driver had
maintained
the speed limit, the collission would still have occurred, does not
bear scrutiny. According to his analysis it made
no difference at
what speed the Appellant executed the U-turn, whether at 10, 20 or 30
kilometres per hour, the collision would
still not have been
avoidable. The evidence shows the contrary ie if the appellant’s
vehicle’s speed at the time of
the execution of the turn had
increased and the insured driver had maintained the speed limit, the
insured driver could have avoided
the collision. The faster the
appellant was going, the more the distance between him and the
insured driver would have been.
[10]
The expert's conclusions are reliable and finds
further support in the Insured Driver’s contradictory evidence.
By way of
illustration: On the Insured Driver's version, the
Appellant had pulled off the road and was parked on the left shoulder
of the
road out of the way. Why was it necessary for the Insured
Driver to indicate that he was overtaking? Furthermore, when replying
to a question by the court
a quo
, the Insured Driver stated
that he knocked the Appellant's motor vehicle from behind. He had
applied brakes and the car went "...its
own way" and
started swerving and he knocked him from behind. This suggests
loss of control. It also confirms the Appellant's
version that he
heard the screeching of tyres on the road just prior to the
collision. This fact is suggestive of a high speed
prior to impact.
LEGAL
PRINCIPLES APPLICABLE
[11]
In
Welf
v Christner
1976 (2) SA 170NPD
it was stated that:
“
It
is the duty of a driver who is about to execute a right-hand turn
across a busy public road...to take considerable care to ensure
that
he chooses a safe and opportune moment to cross. No systems of
signals, however helpful that system might be, can be a substitute
for or replace the fundamental duty of every driver to keep a proper
lookout”
[12]
In
Hartley v. Road Accident Fund
(Reported under SAFLII -
ZAGPPHC/2016/282.pdf), Legodi J (as he then was) restated the duty of
a driver before overtaking another
vehicle. Such driver is
under a duty to satisfy himself that it is safe to do so in order to
prevent a motor vehicle accident
due to negligence.
CONCLUSION
[13]
Having considered all the evidence in this matter as well as the
common cause facts, the most probable version of how this collision
at issue occurred, is: The point of impact as well as the final
resting place of both vehicles and the damages to both vehicles
when
viewed against the backdrop of Mr Opperman's evidence, supports the
conclusion that the Appellant's version is the most probable.
The
Insured Driver's version, particularly that he indicated his
intention to overtake Appellant's vehicle which had stopped on
the
left shoulder of the road out of the way, seems in view of all the
reasons advanced hereinbefore, improbable. The Appellant's
account of
hearing the sound of screeching tyres on the road shortly before
impact as well as the Insured Driver's narrative of
having applied
brakes and his vehicle swerving by itself can only suggest failure to
keep a proper lookout and driving at a speed
incommensurate with the
situation as it prevailed prior to the collision.
[14]
The appellant can not have been expected to guard against the
insured driver’s unreasonable conduct that occurred after he
had executed his turning manoevre ie after he had crossed the middle
of the road to the right hand side of the road. In the circumstances
of this case, the appellant was entiltled to assume that the drivers
of other vehicles potentially approaching from behind would
act with
the care and attention that the situation demanded. In my view,
the appellant’s conduct matched up to what
could be expected of
a reasonable driver in the circumstances that pertained when the
collision at issue occurred.
[15]
It is unfortunate that Judge Mailula fell ill. All the costs
consequent upon the opposition of this appeal, which ought in our
view,
not to have been opposed, should be carried by the respondent.
[16]
Accordingly, the appeal is upheld with costs including the costs
of the previous hearing (of this appeal) on 8 December 2015. The
judgment of the court
a quo
is set aside and replaced by the
following order:
i.
The
Respondent is liable to pay 100% of the Appellant's damages, as
agreed or determined by a competent court.
ii.
The
Respondent is to pay the costs of suit.
_________________________
J.S. NYATHI
Acting Judge of the High Court
Gauteng Local Division, Johannesburg
I agree,
__________________________
I. OPPERMAN
Judge
of the High Court
Gauteng Local Division, Johannesburg
Heard:
12 March 2018
Judgment
delivered: 15 May 2018
For
Appellant: Adv HP Van Nieuwenhuizen
Instructed
by: Ivan Maitin Attorneys
For
Respondent : Adv Molojoa
Instructed
by: Sheereen Meersingh and Associates