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[2017] ZAGPJHC 287
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Theron v Road Accident Fund (17711/2016) [2017] ZAGPJHC 287 (22 September 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 17711/2016
THERON,
MARTIN
THOMAS
Plaintiff
And
THE ROAD ACCIDENT
FUND
Respondent
Summary:
An
accident between a vehicle and a motorcycle
at
an intersection,
(T junction). The insured
driver was negligent by failing to keep a proper look out and
undertook an inherently dangerous move without
sufficient care. The
Court found that the action of the insured driver was the sole cause
of the collision as a result of which
the Plaintiff sustained his
injuries.
CAMBANIS
AJ
[1]
This is an action for damages suffered by the Plaintiff caused by a
collision between a motor cycle and a motor vehicle.
The
quantum of the Plaintiff’s claim has been settled. The quantum
has been agreed between the parties in the total amount
of R5,
436,548.94. The component of this total is set out in the order of
the Court. This trial was only concerned with the
merits of the
matter
[2]
The Plaintiffs Mr. M.T Theron, issued summons against the Road
Accident Fund (‘’RAF’’) in May 2016 in
respect of injuries he sustained on the 8 June 2015 at Main Street,
Rosettenville, Johannesburg, arising out of the driving of
a Mercedes
Benz (‘’Merc’’) motor vehicle bearing
registration letters and numbers WBK […] GP (the
insured
vehicle) owned by Ms S.N. Mandlate and a Honda motor cycle bearing
registration letters and numbers CH[…]GP driven
by the
plaintiff.
[3]
The Plaintiff pleaded that the sole cause of the injuries he
sustained was the negligence and or wrongful act of the driver
of the
insured driver and set out the generic pleadings about a collision.
[4]
A Road Accident Fund claim is a delictual claim in which there are
five elements which the Plaintiff has to allege and prove.
These are the commission or omission of an act, which is unlawful or
wrongful, committed negligently or intentionally which results
in or
causes harm and the suffering of an injury, loss or damage. The
first three elements relate to the merits of the case:
4.1
The
Plaintiff firstly handed in a DVD which is marked Exhibit 1
containing two video clips of the CCTV footage of the accident.
I
viewed both the video clips, the contents of which I will describe in
more detail later in this judgment.
4.2
Suffice to
say that it shows a motorcycle crashing into a sedan vehicle from
both the South and the North sides of the accident
site. Both parties
accepted the video footage as being video footage of the accident
which is the subject matter of this trial.
4.3
In
presenting his evidence on the merits, the Plaintiff first led the
evidence of his expert, Mr R.A Opperman, who is an expert
in accident
reconstruction. His expertise in the field was not challenged nor was
there an expert report filed by the defendant
challenging Mr.
Opperman’s conclusions.
4.4
His written
report together with his photographs of the scene of the accident was
handed in as exhibit A. In preparing his
report he was given a
copy of Accident Report (AR) form, a copy of the Johannesburg
Metropolitan Police Department’s sketch
plan and key, a copy of
an affidavit by the Plaintiff, a copy of a rough sketch of the
accident site by the Plaintiff and two video
clips containing CCTV
footage of the accident. He testified that he conducted a site
inspection on the 7 July 2017 during
which the Plaintiff and his
legal representatives were present. Certain details where
pointed out to him, he took some photographs
and measurements using a
measuring wheel.
[5]
The common cause facts are that the collision occurred in the
intersection (T junction) of Petunia and Main streets, Rosettenville,
both streets are two-way roads, with one lane going in either
direction, there are no white lines (centre lines) on these roads,
the traffic in Main street has the right of way while traffic on
Petunia street is controlled by a stop sign and the speed limit
on
both roads is 60km per hour.
[6]
He testified about the inferences he drew from the information
available to him and gave the reasons for drawing such inferences.
[7]
The first inference he drew related to the point of impact. The
point of impact was marked on photograph 4 at page 103
of the Bundle
A, which contains the Plaintiff’s merits and quantum
documentation. The photograph is of the intersection
between
Main and Petunia Streets. The stop sign depicts the stop sign
at which the Mercedes Benz was obliged to stop.
The distance
between the stop sign line and the point of impact is eight meters.
The photograph depicts the direction from which
the motorcycle was
traveling in Main Street. The point of impact is in Main
Street, in the direct path that the Mercedes
Benz would have
travelled and is located in the lane in which the motor cycle had
been travelling. His reasons for concluding
that that was the
probable area of impact are that the area correlates with the path of
travel of the two accident vehicles at
the time of impact and it
correlates with the area pointed out by the plaintiff during the site
inspection as well as correlating
with the position of both vehicles
at the time of impact as can be seen on one of the video clips
containing CCTV footage of the
accident.
[8]
The second inference he drew was that the Honda motorcycle’s
speed at the moment of collision was relatively slow, probably
in the
order of 50- 60km per hour. The reasons for this conclusion are
based on the Plaintiff’s account of the accident.
Plaintiff told the expert that he had pulled away at the traffic
light (to the north of the accident site) accelerated normally
and
was traveling south on Main street at a moderate speed.
Plaintiff estimated his speed at the time in the order of 60km/hour.
[9]
The expert, Mr. Opperman, calculated the distance between the
motorcycle traveling between a road marking “Slow”
painted in the northbound lane as it approaches the area of impact
and calculated the time it took to travel this distance as is
shown
on the CCTV footage. He applied the relevant equation and
calculated that the motorcycle was probably traveling at
49km/h.
[10]
The third inference he was able to draw was that the Plaintiff was
not in a position to take evasive action to avoid the collision.
His reasons were based on plaintiff’s version that the Mercedes
Benz had skipped that stop street in Petunia Street and drove
into
his lane unexpectedly. He once again, using the distances travelled
by the Mercedes Benz from behind the stop line to the
probable point
of impact and estimating the Mercedes Benz at 20-30km per hour,
calculated that the Mercedes Benz would
reach the point of
impact within approximately 0,96 -1,44 seconds when the applicable
equation is applied. He concluded
that the motorcycle
probably did not have enough time to take evasive action in order to
avoid the collision because research has
shown that the average
perception – reaction time, for an unexpected event is
approximately 1, 6 seconds.
[11]
He also did the calculation of the Plaintiff’s perception
reaction time available based on the insured drivers version.
On her version the time would have been a bit longer at 2, 33
seconds. He testified that even if the insured driver’s
version is correct, according to his calculations the Plaintiff could
not have stopped in time.
[12]
Under cross examination the insured driver’s version was put to
him which was that he had not stopped at a red robot
more than 100
metres away from the point of impact and that he had been travelling
at a very high speed. It was disputed
that he had been
traveling at a speed of 50-60km/h.
[13]
The Defendant did not present evidence of its own accident
reconstruction expert. Mr.Opperman’s evidence was not dented
under cross examination, in the main because his version was largely
corroborated by the CCTV video clips of the collision and
I therefor
accept his expert opinion as to the manner in which the accident
occurred.
[14]
The Plaintiff gave evidence of his version. He was 56 years old
at the time of the accident. He had driven a motorcycle
for 35 years.
He was born in the area of the accident. At the time of the
accident he was on his way back to the factory
at which he worked.
The motorcycle had its headlights on. He stopped at the red
robot 100,m before that point of impact.
He tried to swerve to avoid
the accident but there was not enough time. He knew that route
well and knows that there are
school children and other pedestrians
crossing Main Road, he is always careful. He disputed the
insurance driver’s
version that he had
inter
alia
,
been traveling at a high speed and relied on the CCTV footage which
corroborates his version.
[15]
It was also put to him by his counsel that the insured driver’s
written version given to the police did not mention that
the robot
was red or the direction from which he had come.
[16]
Under cross examination, he relied on the CCTV footage and
photographs for corroboration of his version. He added that
he
had been driving that route for the past 24 years.
[17]
The Plaintiff created a good impression when giving his evidence. It
is difficult to fault his version as critical elements
have been
captured on video footage and contrary to the insured driver’s
version the headlights of the motorcycle were on.
Observing the
footage it does not appear that the plaintiff was driving at high
speed. I accept his evidence that the plaintiff
was not driving fast
and that he did not have any time to take evasive action.
[18]
Nonetheless, it is necessary to examine the version of the insured
driver in order to establish whether there is any evidence
that the
Plaintiff’s actions amount to contributorily negligence as the
cause of the accident and resulting injuries he sustained.
[19]
The insured driver in her evidence in chief was that she was in
Petunia road at the T-junction with Main Street when a motorcycle
collided with her vehicle as she entered Main road causing damage to
the front right side of the vehicle. At the stop street she
first
looked left, did not see anything, looked right and then moved to
turn right onto Main street when she saw the motorcycle
approaching
at a very high speed. She stopped her car and waited for the bang.
[20]
She also lives in the area and travels that road regularly; she had
picked up her children at about 3 o’clock, dropped
them at home
and was on her way back. She testified it was not very busy at
the time of the accident but that there were
cars moving. She said
that the motorcycle was traveling at a high speed because she did not
have time to swerve. Under cross examination
she described the
motorcycle flying at a very high speed.
[21]
She did not know that there was CCTV footage before giving her
evidence. After viewing in it Court she said it had been an
accident,
that she was partly to blame but the Plaintiff was also partly to
blame because of the speed at which he was traveling.
There were some
contradictions between her affidavit to the police after the
accident, the version put on her behalf and her own
evidence in chief
and when she was confronted with them she answered that it had been
some time since the accident and that that
is what she remembers. It
is not necessary to elaborate on the details of such contradictions
as they have already referred to
in this judgment.
The
main concern is that her evidence that the motor cycle had been
travelling at an excessive speed which was the reason she gave
for
not seeing him approaching Petunia Street cannot be accepted. Based
on the objective evidence, the CCTV footage together with
Mr
Opperman’s evidence, her version is rejected.
[22]
For these reasons, I find that there is no credible evidence that
Plaintiff was speeding and that the insured driver failed
to keep a
proper look out and undertook an inherently dangerous move without
sufficient care. The evidence is that the Plaintiff
did not have
sufficient time to take evasive action and that he is blameless and
was in no way negligent. I find that the action
of the insured driver
was the sole cause of the collision as a result of which the
Plaintiff sustained his injuries.
[23]
As previously stated the quantum has been agreed in the total amount
of
R5, 436,548.94. This amount is made up of past medical
expenses R2,253,789.94, future medical expenses an undertaking in
terms
of section 17 (4) (a) of the Act, loss of earnings (past and
future) R2,182,752.00 and general damages in the amount of
R1,000,000.00.
Such amounts were agreed to in terms of a draft
order that was handed up to me in court.
[24]
In the result I make the following order:
1.
The
Defendant is liable for 100% of Plaintiff’s proven damages.
2.
The
Defendant shall pay Plaintiff a capital amount of R5, 436,
548.94 in delictual damages, on or before 19 October 2017, together
with interest a tempore morae calculated in accordance with the
Prescribed Rate of Interest Act, 55 of 1975
, read with
section
17(3)(a)
of the
Road Accident Fund Act, 56 of 1996
.
3.
The
aforesaid amount shall be paid into the Plaintiff’s Attorneys
trust account, the particulars of which are:
De
Broglio Attorneys
Nedbank
– Northern Gauteng
Account
Number: […]
Branch
Code:
198 765
Reference:
T499,
through means of a direct
transfer on or before 19 October 2017.
4.
The
Defendant shall furnish the Plaintiff with and undertaking in terms
of
section 17(4)
(a) of the
Road Accident Fund Act, 56 of 1996
, to
reimburse the Plaintiff for the costs of the future accommodation of
the Plaintiff in a hospital or nursing home, or treatment
of or
rendering of a service or the supplying of goods to him, arising out
of the injuries he sustained in the motor vehicle accident
that
occurred on 8 June 2015, after such costs have been incurred and upon
proof thereof.
5.
The
Defendant shall pay the Plaintiff’s taxed or agreed party and
party costs on the High Court scale, such costs to include,
but are
not limited to:
5.1
The costs attendant upon the obtaining of payment of the full amount
referred to in paragraph 2 above; and
5.2
the costs of all the Plaintiff’s expert medico-legal reports,
as well as the reasonable taxable, qualifying and reservation
fees,
if any, of such experts; and
5.3
The costs of the experts’ joint minutes; and
5.4
The costs of the actuarial reports of Mr. Ivan Kramer; and
5.5
The Plaintiff is declared a necessary witness; and
5.6
the costs of the accident reconstruction report of Mr. Rudolph
Opperman and his qualifying fee and the costs of his attendance
at
Court to give evidence on 15 August 2017; and
5.7
The costs of 15 August 2017 and 16 August 2017; and
5.8
The taxed or agreed costs of senior counsel.
6. The Plaintiff shall,
in the event that costs are not agreed upon, serve the notice of
taxation of the Defendant’s Attorneys
of record.
7. The Plaintiff shall
allow the Defendant 14 (fourteen) days after taxation to make payment
of such taxed costs.
________________________
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Counsel
for the Applicant: Adv, J N De Vos SC
Instructed
by: de Broglio Attorneys Inc
Counsel
for the Respondent: Adv. J T Zitha
Instructed
by: Moloto Stofile Inc.
Date
of Hearing: 15 - 16 August 2017
Date
of Judgment: 22 September 2017