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[2010] ZAGPJHC 101
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Lambert v Road Accident Fund (2009/12892) [2010] ZAGPJHC 101 (5 November 2010)
REPUBLIC OF SOUTH
AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE NO:
2009/12892
NOT REPORTABLE
DATE:
05/11/2010
In
the matter between:
LAMBERT,
GLENN ARTHUR
and
THE
ROAD ACCIDENT FUND
J U D G M E N T
MBHA, J:
[1]
The plaintiff has instituted an action against the defendant
in terms of the
Road Accident Fund Act 56 of 1996
, for damages
arising from injuries sustained in a motor vehicle collision which
occurred on 27 June 2007 at approximately 17H30.
The collision
occurred at the intersection of River Street (“
River
”)
and Riviera Road (“
Riviera
”),
Killarney, between motor vehicles with registrations FVZ 660 GP then
being driven by Mr D Makwela (“
the
insured driver
”), and SHT 848 GP
(“
the Mercedes
”)
then being driven by the plaintiff.
[2] The plaintiff’s
action against the defendant is based on the negligence of the
insured driver. The defendant denies
that the insured driver
was negligent at all or that he contributed to the cause of the
collision, and avers that it was the plaintiff
who was the sole cause
of the collision. The defendant avers further that should the
court find that the insured driver was
negligent, then the plaintiff
also negligently contributed to the cause of the collision.
[3] By agreement between
the parties the matter proceeded only on the question of liability.
The issue of quantum was held over
for later determination.
[4] The plaintiff led
the evidence of two witnesses. The defendant led the evidence of the
insured driver and a passenger in the
insured vehicle.
[5] From the evidence it
became common cause that:
the collision
occurred at the intersection of Riviera Road and River Street,
Killarney.
5.2 Riviera Road
proceeds east towards the onramp to the M1 Highway, with the
Killarney Mall on the right and the former
US Consulate on the left.
The former US Consulate has an approximately 10 meter high security
wall around it.
5.3 River Road
proceeds in a north-southerly direction towards the River-Riviera
intersection.
ISSUE IN DISPUTE
[6] It is in dispute as
to who caused the collision, the dispute being either:
6.1
that the defendant’s insured
driver caused the collision by failing to stop, alternatively by
failing to take notice of the
robot which was red against him; or
6.2
that the plaintiff failed to take
notice of the robot-controlled intersection, the robot being red
against him at the time he proceeded
to execute a left turn into
Riviera.
[7] The plaintiff’s
case is that the robot was green in his favour, that he proceeded to
execute a left turn from River into
Riviera when the insured driver’s
failed to stop, alternatively failed to take notice of the red robot
against him and proceeded
through the intersection, thus colliding
with the plaintiff’s Mercedes.
THE
PLAINTIFF’S EVIDENCE
[8]
The plaintiff described the collision as follows:
8.1
he was heading south in River to the
robot controlled intersection at Riveira and River, where he intended
executing a left turn
and head east along Riveira;
8.2
when he was approximately fifty
meters from the above intersection, the robot turned green in his
favour, by the time he entered
the intersection, the pedestrian
signal had started flashing red signalling that the traffic light was
going to change to amber
at any time;
8.3
there were two cars stationary at
the robot heading east on the right-hand lane on Riviera;
8.4
having assessed the situation he
proceeded to turn left;
8.5
the insured driver jumped the red
robot and collided with the Mercedes on its right fender/bonnet,
finally stopping some 10 to 15
meters further east along Riviera.
[9] The plaintiff
testified that when he executed a left turn into Riviera, he was
travelling at a speed of not more than 15 km
per hour. He said
he only saw the insured truck a mere milli-seconds before impact. He
did not see the insured truck approaching
from his right hand side
before the collision. He conceded that the security wall at the
former US Embassy could have obstructed
his view of the traffic
approaching from his right along Riviera.
[10] The plaintiff’s
witness Mrs Nel testified:
10.1
she was a passenger in a Landrover
Discovery driven by her husband, which was stationary at the
intersection on Riviera heading
east;
10.2
the robot was red against the
Landrover Discovery and remained so for a couple of seconds;
10.3
initially she testified that she saw
the insured truck pass the Landrover on the left at high speed. Later
she changed and stated
that she only saw the insured truck as it
entered the intersection. She could not recall when she first
saw the plaintiff’s
vehicle but was aware that she saw it just
before the impact. She was adamant that the insured driver
entered the intersection
when the robot was red but conceded that as
she was not driving, she was not watching the robot that closely.
[11] Mr Nel who was the
driver of the Landrover Discovery testified:
11.1
he was stationary for a few seconds
at the robot-controlled intersection, facing east along Riviera;
11.2
he saw the insured truck approaching
through his rear-view mirror travelling at a speed which he
considered high in the circumstances;
11.3
he feared for his own safety and
that of his passengers in the probable event that the insured would
have to immediately swerve
right, his vehicle being first and
stationary at the robot in the right-hand lane heading east;
11.4
he saw the plaintiff’s
Mercedes approaching from his left along River and stop just before
entering the intersection.
After stopping briefly, the Mercedes
proceeded slowly into the intersection and executed a left turn into
Riviera;
11.5
he saw as the insured truck collided
with the plaintiff’s Mercedes inside the intersection.
THE DEFENDANT’S
EVIDENCE
[12] The insured driver
Mr Makwela, testified as follows:
12.1
on the day of the accident he was in
the company of six co- workers who were passengers in the truck, they
were driving back from
work;
12.2
they
were driving in a 1989 truck which was also carrying some working
tools and cables;
12.3
they were not in a hurry, traffic
was not that heavy. He stopped at the preceding intersection,
being the Killarney/Riviera
intersection where the robot was red.
From that intersection the truck picked up speed until it was
travelling at approximately
60 km per hour, by the time he reached
the next intersection at Riviera/River which is approximately 200
meters away, the robot
was green in his favour;
12.4
before he entered the intersection
he satisfied himself that it was safe to traverse it whereafter he
proceeded through it;
12.5
he was adamant that he did not
observe any stationary motor vehicle on the right-hand lane;
12.6
whilst he was in the middle of the
intersection he suddenly saw the plaintiff’s vehicle veering
into the intersection and
collide with the middle left-hand side of
the truck next to the petrol tank;
12.7
the front part of the truck had
already crossed the intersection when the impact occurred. He
did not see the plaintiff’s
vehicle until it was right on top
of him.
12.8
He later testified during
cross-examination that he saw the plaintiff’s vehicle but his
intention was to proceed straight,
he believed that the plaintiff
would not proceed into the intersection.
[13] The defendant’s
other witness Mr Sithole, testified:
13.1
he was a passenger in the insured
truck and was sitting in the driver’s cab next to the insured
driver. The robot at the Riviera/River
intersection was green in
favour of the insured truck;
13.2
he did not see the plaintiff’s
vehicle approaching from the left, he only heard it bumping against
the truck on its left-hand
side next to the petrol tank;
13.3
he conceded that he was not
concentrating nor paying any particular attention to anything at the
time when the collision occurred.
THE TEST TO BE APPLIED
WHERE THERE ARE MUTUALLY DESTRUCTIVE VERSIONS
[14]
14.1
It is trite that the plaintiff always bears the
onus
of proving negligence on a balance of probabilities. See
Arthur
v Bezuidenhout and Mieny
1962 (2) SA
560
(A) at 576G;
Sardi and Others v
Standard and General Insurance Co Ltd
1977 (3) SA 776
(A) at 780C-H and
Madyosi
and Another v S A Eagle Insurance Co Ltd
[1990] ZASCA 65
;
1990 (3) SA 442
(E) at 444D-F.
14.2
It is also trite that in
arriving at a decision, the court has to view the evidence which was
led during the trial
in toto
.
[15] As can be seen from
the evidence, the versions testified to by the plaintiff’s
witnesses on the one hand, and the defendant’s
witnesses on the
other, are entirely different and are indeed mutually destructive
with regard specifically to how the accident
occurred. All the
plaintiff’s witnesses were adamant that the insured driver
entered the Riviera/River intersection when
the robot was red against
him. On the other hand the insured driver and his witness
testified that the robot directing the
path of the insured driver as
he approached the said intersection was green.
[16] A further point of
difference is that whilst the plaintiff asserted that the insured
truck collided with the Mercedes with
its front part, the defendant’s
witnesses said that it was the Mercedes which in fact collided with
the left-hand side of
the truck towards its rear.
[17] It cannot be
disputed that the Nels were at the scene and that they both witnessed
the collision. Neither can it be
disputed that the Nels’
motor vehicle was stationary. The probabilities are, accordingly,
that the robot controlling traffic
along Riviera was at some point
red. Sight however must not be lost of the fact that Mrs Nel
said that the robot was red
for a mere seconds.
[18] Mr Nel’s
testimony that he saw the plaintiff’s vehicle approaching from
the left along River, that he saw it stop
before entering the
intersection contradicts that of the plaintiff. The plaintiff
testified that he did not stop at the said
intersection but that he
merely executed a turn to the left at a speed of approximately 15 km
per hour. It will be recalled
that the plaintiff testified that
the robot directing his path of travel turned green when he was
approximately fifty meters away.
He stated that by the time he
entered the intersection, the pedestrian red light was flickering and
that the traffic light had
become static meaning that it was going to
change to amber at any time.
[19] If Mr Nel’s
version that the plaintiff’s vehicle stopped before proceeding
into the intersection is correct, this
raises the obvious question
whether the plaintiff first ensured whether it was safe to proceed
into the intersection before he
actually did so. However, based
on the testimony of the Nels, I have no hesitation in accepting that
the robot directing
traffic along Riviera in an easterly direction
was red when the insured truck approached the River/Riviera
intersection. I accordingly
find that the insured driver negligently
caused the collision.
[20] Although the insured
driver was substantially to be blame for the collision, on the
evidence the plaintiff cannot be absolved
of any blame. I say
so for the following reasons:
20.1
He testified that he entered the
intersection and executed a turn to the left without seeing the truck
which was approaching from
his right on the left lane along Riviera.
According to his evidence, he saw the truck a mere milli-seconds
before the impact.
Accepting that the robot must have been
green in his favour, he nonetheless appeared to have entered the
intersection without ensuring
there was no vehicle approaching from
his right side along the left-hand lane in Riviera. It is somewhat
surprising that although
he saw the two stationary vehicles on the
right lane in Riviera, he could not see a heavy truck loaded with
tools and cables and
with passengers approaching from his right.
20.2 It is trite law that
every road-user owes a duty of care and consideration for any other
road-user. This duty includes
a duty to keep a proper lookout.
The duty of care requires of every driver to drive like a reasonable
man who would be able
to reasonably foresee the possibility of
unforeseen consequences and act in accordance with such appreciation.
20.3
Failure to act in accordance
to the above is tantamount, in law to negligence. See
Minister
of Safety and Security v Van Duivenboden
[2002] 3 All SA 741
(SCA).
20.4
It is trite law that a driver of
a vehicle entering an intersection with a robot green in his favour
has a duty to look out for
any traffic which might not yet be clear
of the intersection and which might be about to cross his or her path
of travel.
Such driver has a duty to look out for any traffic
approaching from his right and to take necessary precautions to avoid
a collision.
[21] On the facts, I find
that the plaintiff is liable for contributory negligence resulting in
the collision.
[22] The insured driver
proportionally contributed substantially more to the negligence which
caused the collision by entering
the intersection when the robot was
red.
[23] In the
circumstances I am of the view that an apportionment of 70/30 in
favour of the plaintiff is appropriate.
[24] I accordingly
make an order as follows:
1.
The defendant is liable for 70%
of the plaintiff’s proven or agreed damages.
2.
The
defendant is ordered to pay the plaintiff’s costs of suit.
B
H MBHA
JUDGE
OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG