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[2010] ZAGPJHC 67
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Amla v Road Accident Fund (08353/09) [2010] ZAGPJHC 67 (3 September 2010)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 08353/09
Date: 03/09/2010
In the matter between:-
SARAH BIBI AMLA Plaintiff
And
THE ROAD ACCIDENT FUND Defendant
J U D G M E N T
MATHOPO, J
:
[1] The plaintiff sued the defendant for damages arising from a road
accident which occurred on the 18 June 2005. At the time
of the
collision the plaintiff was a front seat passenger in a motor vehicle
bearing registration numbers KJH 590 GP, a Toyota
Camry, driven by
her sister, Ms Hayman Amla (Amla). The said motor vehicle was
involved in a collision with motor vehicle with
registration number
PPD 715 GP driven by the Insured driver Mr Steven Masuku (Masuku).
[2] At the commencement of the trial and by agreement between the
parties the issue of liability was separated with quantum in
terms of
Rule 33(4) the quantum was postponed sine die and case proceeded on
the merits only.
[3] Both parties agreed that the accident occurred along the N3
Highway near Leondale off ramp. Both motor vehicles were travelling
in the same direction.
[4] The plaintiff testified and called two (2) witnesses in support
of her case, the driver of the motor vehicle Ms H Amla and
Mr Dangor
a police constable stationed at Heidelberg. The defendant only
called Masuku (the insured driver)
EVIDENCE
[5] Ms Hoomaya Amla testified that she was the driver of the Toyota
Camry along N3 Highway at or about 19H15 to 19H30. She was
travelling on the right had lane (which she described as the fast
lane) at a speed of 110 to 120 km per hour. The speed limit
is 120.
It was dark and there were no street lights. The lights of her motor
vehicle were on and also on dim. On her right
there is an island
which separates traffic from the opposite direction. She testified
that there were no other vehicles travelling
in their direction.
[6] While busy driving she suddenly noticed a black car, which later
turned to be grey, stationary motor vehicle parked at a 90º
angle on the road, as it was too close she tried to swerve to the
right to avoid the collision but it was too late and she collided
with the right side of the motor vehicle near the driver’s door
extending to the fender. According to her this vehicle had
no lights
neither did it have any reflectors no hazards or indicators to warn
other motorist like herself. In a nutshell she stated
that she
observed the motor vehicle moments/seconds before the impact. After
the collision her motor vehicle landed on the island.
The accident
happened on the right hand lane of the road.
[7] When asked how far was the insured vehicle when she first
observed it, she responded by saying that “it was sudden and
I
was almost upon it when I realised it and it was on my path”.
The damage to her motor vehicle was on the front side from
the left
side extending to the passenger side.
[8] During cross examination she was asked why she did not see the
Insured driver’s motor vehicle prior to the collision
if she
had her lights on. She responded by saying it was dark and only saw
it at the last minute and also because the insured
driver’s
vehicle had no lights. She denied that the insured driver’s
vehicle had its reflector lights on and also
denied that she did not
keep a proper look out and reiterated that she was not driving
negligently because she was (8) eight months
pregnant at that time.
[9] She denied that the insured driver was travelling on the left
lane and about to exit to the Leondale off ramp. She disputed
the
version of the insured driver that he was travelling at 60km per hour
with lights on, and on the left lane. She was adamant
that the point
of impact was on the right hand lane and not as alleged by the
Masuku.
[10] Ms Sarah Amla, the plaintiff testified that she was a front
seat passenger in the Toyota Camry and corroborated the evidence
of
Ms H Amla in many material respects. In particular stated that they
were travelling on the right hand lane and collided with
the insured
driver’s vehicle which was stationary on the road at a 90º
angle position. The insured driver’s vehicle
had no lights or
reflectors. According to her testimony because it was dark, they
noticed the insured driver seconds before the
collision at a distance
of about 4 to 5 metres. The insured driver was across the right lane
in a horizontal position.
[11] She disputed the version of the insured driver that they were
travelling on the left lane and that the accident happened
on his
left lane. She also disputed that the insured driver’s vehicle
had its lights on including the reflectors. She sustained
various
injuries as a result of the accident
inter alia
her leg.
[12] The last witness for the plaintiff was Mr Dangor, a police
constable stationed at SAPS Heidelberg. Mr Dangor testified that
he
received a call that the plaintiff and his niece were involved in an
accident. At that time he was in Heidelberg. He took
20 minutes to
get to the scene of the accident, when he arrived there were traffic
officers, paramedics and ambulance already at
the scene. He noticed
that there insured driver’s vehicle was on the right hand lane
facing Heidelberg on the N3 and the
plaintiff’s motor vehicle
was on the island facing Southwards. He did not speak to the insured
driver. He assisted his niece
and the plaintiff. Of significance is
his evidence that both motor vehicles were on the right side of the
road when he arrived.
[13] Mr Masuku the insured driver testified that he was driving his
Ford Sierra motor vehicle from Meyerton and proceeding to see
a
church member. He was travelling at a speed of 60km/h. Before he
could reach the Leondale off-ramp he noticed the plaintiff’s
motor vehicle coming from behind at a high speed. He said he slowed
down because he did not want to race with them. When the
motor
vehicle approached him, the driver tried to overtake, and in the
process collided with his motor vehicle on the left side
near the
driver’s door. He denied that he was stationary or was
travelling on the right hand lane with no lights on.
He described
the lights of his motor vehicle as being excellent. He said that he
was familiar with the area and because he had
frequented it several
times.
[14] During cross examination he denied that he was not familiar with
the area and that when the accident happened he was looking
for the
off-ramp and thus not keeping a proper lookout. He denied that he
executed a U-turn and that his motor vehicle was stationary
on the
right lane at the time of the collision. He sustained a head injury
and which he described as mild. He also sustained
an injury to his
right leg. During cross examination when he was asked how the
accident happened, he became irritated, argumentative,
sarcastic,
evasive and was hesitant in answering questions. He could not
furnish any plausible reason why if the accident happened
on the left
lane, his motor vehicle landed on the right lane, save stating that
he lost consciousness after the accident and regained
same at the
hospital.
SUBMISSIONS
[15] Counsel for the plaintiff submitted that on the objective facts,
the accident happened on the plaintiff’s lane because
shortly
after the accident, the witness Mr Dangor who arrived at the scene 20
minutes after the accident found the two motor vehicles
on the
plaintiff’s side. In particular the plaintiff’s motor
vehicle was on the island facing South and the said insured
driver’s
vehicle was on the right lane. He submitted that if the accident had
occurred as alleged by the insured driver,
the position of the motor
vehicle would have been different. He also submitted that another
fact which supports the version of
the plaintiff is the damages to
both motor vehicles.
[16] He further submitted that the probabilities are that the insured
driver thought he had missed the off-ramp and as he was attempting
to
make a U-turn and his motor vehicle stalled and his lights were
switched off and in that process the plaintiff’s motor
vehicle
collided with him. As it was dark, counsel submitted that there was
nothing that the plaintiff could do to avoid the accident.
[17] As regards contributory negligence he reluctantly conceded that
in the circumstances, Plaintiff’s driver may have been
20%
negligent because of her failure to observe the insured driver a
distance prior to the collision.
[18] Counsel for the defendant argued that the version of the insured
driver must be accepted because he was travelling very slow
along
familiar surroundings and she urged me to accept that the accident
happened as alleged by the insured driver on his left
lane of the
road. She could not explain how the motor vehicles ended up on the
right hand lane. She conceded that the weakness
in the defendant’s
case was the failure to submit the police report and plan despite
being available. She also argued that
the Plaintiff’s driver
was negligent because she did not keep any proper look out and that
any damages to be recovered by
her must be apportioned accordingly
and submitted that both drivers were equally to be blamed for the
accident.
ASSESSMENT OF THE EVIDENCE
[19] This court is faced with two irreconcilable version or mutually
contradictory versions, the resolutions of which will depend
on my
finding regarding a) credibility, b) reliability c) probabilities.
See:
Stellenbosch Farmers Winery Group Ltd & Another v Martell
Et Cie & Others
2003 (1) SA 11
SCA
at pages 141 – 156.
[20] The plaintiff and her witnesses made a good impression to the
court, their version was consistent, coherent, logical and did
not
contradict each other. I accept as correct and credible the
plaintiff’s case that the accident happened on the right
hand
lane when the Ms Amla collided with the insured motor vehicle which
was stationary on the road at a 90º angle with its
lights off.
The position of the motor vehicles after the accident supports the
view that the accident was on the right hand lane.
I also find as
sufficient corroboration, the evidence of Mr Dangor who arrived at
the scene 20 minutes after the collision and
found the plaintiff’s
motor vehicle on the island and the insured driver’s vehicle on
the right hand lane. His evidence
was not disputed and neither was
the plaintiff’s driver’s evidence about the position of
her motor vehicle after the
collision challenged by the defendant.
[21] Again if one looks at the damages to both motor vehicles, it is
consistent with the plaintiff’s case. The defendant’s
case that the accident happened on the left hand side of the insured
driver cannot be correct and I reject it. According to the
insured
driver he was travelling at a speed of 60km/h when he noticed the
plaintiff’s motor vehicle coming from behind at
a high speed
and he said he slowed down because he did not want to race with them,
then suddenly plaintiff’s motor vehicle
whilst overtaking
collided with him on the right side near the driver’s door
extending to the fender and he lost consciousness.
[22] I fail to understand why an overtaking car would suddenly cut
into his motor vehicle at an angle and collided with him. What
the
insured driver wants the court to believe is that the plaintiff’s
motor vehicle whilst overtaking suddenly cut into his
motor vehicle
and caused the damages to the front right door extending to the
fender of his motor vehicle. This version is not
only improbable but
one which is dangerous to rely on because it is not consistent with
the damages to both vehicles. Mr Masuku
did not make a good
impression to the court, he was evasive, hesitant, argumentative and
I was left with the distinct impression
that either he could not
remember how the accident occurred or he was attempting to adjust his
evidence as the case progresses.
[23] Another aspect which militates against the acceptance of the
defendant’s case is the inexplicable failure to call the
traffic officers who arrived at the scene shortly after the collision
and saw the position of the motor vehicle and prepared a
sketch
plan. Counsel for the defendant conceded that such a plan was
available as part of the accident report in the police docket.
Furthermore it is common cause that paramedics also arrived at the
scene shortly after the collision. It is obvious that if they
had
been called as witnesses they could have shed some light about the
position of the motor vehicles after the collision. The
failure by
the defendant to call those crucial witnesses and tender in evidence
the sketch plan fortifies my view that the evidence
of the plaintiff
and her witnesses is credible, reliable and probable. As a result I
accept the evidence of the plaintiff, that
the accident occurred on
the right lane and this was supported by the independent evidence of
Mr Dangor about the position or location
of motor vehicles after the
collision.
[24] In my view the probabilities are that the insured driver’s
motor vehicle was stationary on the road with no lights on
and the
plaintiff’s driver collided with his motor vehicle which was
dark (grey), visibility was poor because there were
no street lights
and he did not have any warning signs or reflectors on at that time.
[25] On the analysis of the evidence I am satisfied that the insured
driver motor vehicle was stationary on the road at a 90º
angle
with its lights switched off and with no warning to other road users.
I accept that the evidence of the plaintiff and her
witnesses as
clear, credible, reliable and probable and accordingly reject the
evidence of the insured driver.
[26] I now turn to deal with the defendant’s submission that
the plaintiff’s driver also contributed to the accident.
The
question as to whether either of the two drivers was indeed negligent
or not must account for all the proven facts. One does
not draw
inference of negligence on a piecemeal approach. One must consider
totality of all the facts and then decide whether
the driver has
exercised the standard of conduct which the law requires. The
standard of case so required is that which a reasonable
man would
exercise in the circumstances. That degree of care will vary
according to the circumstances, in all cases. The question
is
whether the driver should reasonably in all the circumstances have
foreseen the possibility of a collision, See
Santam
Versekeringsmaatskappy Bpk v Swart
1987 (4) SA 816
(A)
at
819B.
[27] The area where the collision occurred was dark, the insured
vehicle was dark in colour (grey), there were no street lights,
the
insured driver’s lights were off. Apart from the fact that the
collision area was dark, the place where the collision
took place was
a flat area where the road was straight. During cross examination
the plaintiff’s driver (Amla) testified
that the insured
vehicle appeared suddenly on her path of travel and she did not have
any opportunity to apply her brakes save
swerving to the right in an
attempt to avoid the collision. The plaintiff herself testified that
they first observed the insured
vehicle when it was about 4 to 5
meters from them. This is too close a distance. I have some
difficulty with this evidence because
Amla in evidence stated that
her lights were on or dim prior to the collision and further conceded
that the collision occurred
on a flat and straight dry road. I fail
to understand why if there was nothing obstructing her view she did
not see the insured
vehicle at a greater distance allowed by the
brightness of her lights. Failure to observe the insured driver
timeously indicate
that Amla did not keep a proper look out. In my
view this constitutes contributory negligence. It is my finding that
the driver
of the plaintiff’s motor vehicle was 20% to blame
for the accident.
I therefore make the following order:
It is declared that the insured driver (Masuku) is 80% to blame for
the accident
The defendant is liable for the plaintiff’s costs on a party
and party scale thus far.
____________________________
RS MATHOPO
JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiff : Adv. Waner
Instructed by : Rafiq Khan and Company
For the Defendant : Adv. Mabena
Instructed by : Sishi Incorporated
Date of hearing : 17 August 2010
Date of Judgment : 03 September 2010