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[2019] ZAGPJHC 425
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Grobler v Road Accident Fund (38917-17) [2019] ZAGPJHC 425 (2 July 2019)
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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: 38917/17
In
the matter between:
GROBLER, WILLEM
JACOBUS
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
YACOOB
J:
1.
The plaintiff has sued the defendant for
damages arising from a collision that took place on 19 February 2016
at the corner of End
and Hendrik Potgieter Streets in Brakpan. The
plaintiff was a motorcyclist at the time, while the insured driver
was driving an
Audi with registration number […]GP.
2.
The issues of negligence and quantum were
separated by an order made at roll call by Mojapelo DJP. The matter
is before me only
to decide the issue of negligence. The defendant
denies any negligence on the part of the insured driver. The
defendant has suggested
that this action was instituted without
proper enquiries having been made, and seeks a punitive costs order.
3.
The plaintiff called three witnesses, the
plaintiff himself, his wife, Mrs Jennifer Grobler, and his wife’s
sister, Mrs Angelique
Bothma. The plaintiff did not adduce any real
evidence in the form of photographs or documents. The defendant
called the driver
of the Audi and an eyewitness who was driving a
vehicle not involved in the collision.
4.
The date and place of the collision are
common cause, as well as the fact that the plaintiff’s
motorcycle collided with the
Audi. The dispute is only about the
cause of the collision, and the manner in which it took place.
5.
The plaintiff contends that the Audi
executed a right hand turn while indicating to turn left, while it is
the defendant’s
case that the plaintiff caused the collision by
travelling too fast and not keeping a proper lookout.
THE
PLAINTIFF’S CASE
6.
The plaintiff testified that he was
following the Audi for approximately 2 kilometres. When it indicated
to the left, he moved to
the right to pass it, but the Audi turned
right. The plaintiff then moved to the left hand side and collided
with the left rear
of the Audi. Only the rear of the Audi was
damaged, on the left brake light. It was still daylight, dry and
there was good visibility.
7.
The plaintiff testified that while
following the Audi, he had passed through two controlled crossings at
which the traffic lights
had been green. There were no other vehicles
at the intersection and there were no vehicles coming towards him.
Nor were there
any vehicles at the intersection to his right or his
left. He had confused the names of the streets (which were
incorrectly reflected
in the particulars of claim), but he knew where
the collision took place. He admitted that he is confused about some
things.
8.
The plaintiff was adamant that there was no
vehicle in the oncoming lane on the opposite side of the
intersection, and that there
was no other vehicle between himself and
the Audi. There was no vehicle that turned right while the Audi
turned left. He was also
insistent that he had kept a safe following
distance and had not been travelling too fast.
9.
The plaintiff did however concede that, had
he been keeping a safe following distance at the time of the
collision, he could have
stopped in time to avoid it, but that he
could not at the time because he was overtaking. He denied that he
was weaving between
vehicles trying to pass them. He had intended to
go into the lane travelling in the opposite direction until the Audi
started turning
right, so he then had to go left. If he had continued
to go right he would have still collided with the Audi.
10.
Under cross examination the plaintiff
testified that the Audi “made an immediate stop” and then
indicated to turn left
but turned right.
11.
After the collision the plaintiff lost
consciousness. His wife testified that she received a call from a
neighbour saying that her
husband had been injured, and she then
called her sister who lived near the scene asking her to go there.
She saw her husband at
the hospital, where he was unconscious, and
picked bits of red glass out of the cuts on his face.
12.
The plaintiff’s sister-in-law (his
wife’s sister), Mrs Bothma, testified that she lived close by
and her sister had
called her after the collision and asked her to
attend at the scene. When she arrived paramedics were working on the
plaintiff
who she was relieved to find was alive. She was
distraught at the possibility that he may not make it and that was
her main
focus.
13.
Mrs Bothma produced a sketch she had drawn
of the scene as she found it, which placed the Audi on the right,
across End Street,
having turned into it from Hendrik Potgieter Road
(which according to her had by then become Northdene Avenue) on which
the vehicles
had been travelling. According to her the ambulance was
on the left hand corner between Northdene Avenue/ Hendrik Potgieter
Road
and End Street, where the Audi would have been had it been
turning left. The plaintiff’s motorcycle was in the middle of
the left lane of Northdene Avenue/ Hendrik Potgieter Road, and the
Ekurhuleni Metro Police on the opposite left corner.
14.
Mrs Bothma testified that she noticed a
bump and some blood on the Audi’s rear windscreen. She conceded
that the independent
witness Mr Muller would be more objective but
was certain that the vehicles were where she had depicted them. She
had remonstrated
with the Metro Police for giving the driver of the
Audi his keys back and letting him go.
THE
DEFENDANT’S CASE
15.
The defendant’s first witness was Mr
Muller, who is an independent eyewitness. On the fateful afternoon,
he was at a stop
street in End Street waiting to turn right into
Hendrik Potgieter. He saw an Audi, another vehicle and a motorcycle
approaching
from his right. The Audi turned left, the other car moved
to the right and as the Audi turned into End Street the motorcycle
hit
it from behind.
16.
The Audi stopped in End Street. It did not
move from where the collision occurred, on the corner. The
motorcyclist’s helmet
flew over Mr Muller’s vehicle to
Hendrik Potgieter Street. The other car turned right and stopped and
Mr Muller turned right
and stopped in Hendrik Potgieter.
17.
The Audi never indicated right and did not
turn right. It was not where Mrs Bothma said it was. If the Audi had
turned right the
plaintiff could have passed it on the left and
passed in front of Mr Muller.
18.
Thereafter the Paramedics arrived and the
Metro police arrived. He gave them his details and the defendant’s
attorney contacted
him on the number he provided at the time, which
has not changed. He was only contacted immediately before the trial,
and never
by the plaintiff or his attorney. He was asked to sign an
affidavit, which had not been commissioned, but he confirmed it
during
his testimony.
19.
The affidavit signed by Mr Muller and
confirmed in court contained an inconsistency with the witness’s
oral evidence. At first
he tried to explain it away but it became
clear that he had made an error in the affidavit. The plaintiff’s
attorney argued
that Mr Muller’s evidence was tainted because
of this inconsistency.
20.
Mr Muller confirmed that had he seen any
vehicle travelling at an excessive speed he would have noticed it,
and that he had not
noticed any vehicle travelling at an excessive
speed.
21.
Mr Muller also conceded under cross
examination that he had made inferences about the movements of the
motorcycle and the other
car, rather than actually seeing the
movements. For example, he said if the motorcycle had not moved over,
it would have collided
with the other car. Additionally, that the
other car ended up on the right in End Street, so it must have turned
right. The other
car and the motorcycle were behind the Audi by the
time they reached his intersection, so his view of them was no longer
unimpeded.
22.
Mr Muller was certain that the Audi had
indicated to the left and had turned left.
23.
Mr Muller was not acquainted with either
the plaintiff or the Audi driver, and had not seen either of them
since the collision.
24.
The defendant’s second witness was Mr
Eckersley, the driver of the Audi. He had met Mr Muller at the scene
but not since and
did not know his name. The collision occurred on a
Friday afternoon around 15h30-16h00, he had left work and was on his
way to
the butchery to get meat. He had to turn left into End Street
because that is where the butchery was. He was travelling at about
50
km/h because he knew he had to turn soon. End Street was quite narrow
at that point although there were two lanes, one in each
direction,
and it also had a high kerb, so required careful navigation.
25.
Mr Eckersley was not concentrating on the
traffic behind him but on executing the left turn. He heard a loud
bang when the motorcycle
collided with him. The collision was on the
rear left wheel arch. He had already committed to the turn and could
not have avoided
the collision. He denied having turned right. He did
indicate left and turned left. He had always been intending to go to
the butchery.
26.
The plaintiff flew over the Audi, bouncing
on the roof, and landing at the right front of the car, in End
Street. The helmet landed
up somewhere else. Mr Eckersley braked when
the collision occurred. The vehicle switched off when he braked and
he did not move
it until later. It was never on the right in the
middle of End Street as suggested by Mrs Bothma.
27.
The left of the rear bumper had been
damaged, as well as the left rear wheel arch fender, the roof, the
muffler and the front windscreen.
The damage cost almost R300 000 to
repair. There was blood on the boot and the left hand window. There
was a dent on the corner,
and the lights were also damaged. The
plaintiff went diagonally across the car before landing at the front
right.
28.
Mr Eckersley stated that he had been going
quite slowly because of turning and because of the school in the
area. According to him
the motorcycle came like a “bat out of
hell”. He heard the motorcycle but did not see it. Nor could he
remember whether
there was another vehicle between the Audi and the
motorcycle.
29.
Mr Eckersley spoke to two women police
officers and provided them with his driver’s licence. He also
spoke to the motorcyclist
to see how he was. The police never took
his keys, they only wanted his licence and identity document, and
only took a copy of
the driver’s licence.
30.
In cross examination it was suggested to Mr
Eckersley that because of the high kerb, the presence of another
vehicle (Mr Muller)
in End Street, and the narrowness of the road, he
had to move slightly to the right in order to execute the left turn,
and that
this was the cause of the collision. Mr Eckersley denied
this. He said that had he been driving a truck or larger vehicle he
may
have had to, but he did not have to do so in this case. He stated
that he did look in his rear-view mirror before executing a left
turn, for purposes of keeping a proper lookout. Despite this he did
not see the motorcycle before the collision.
31.
Mr Eckersley, while under
cross-examination, stated that while he was talking about the
collision he started remembering more, and
that he now remembered
that there had been another car and the driver had come across to
talk to “us”. It was a small
car, possibly silver in
colour, something like a Hyundai i10 or a Toyota Yaris, and it had
gone to the opposite side than he did.
He had been standing with
someone he referred to as the chaplain, and it appeared that the
other driver also knew the chaplain.
Thereafter Mr Eckersley went and
spoke to the police.
32.
Mr Eckersley testified that he had joined
Hendrik Potgieter at the Life Clinic, and had only been on it for
about one kilometre.
He had been coming from work and had come off
the N3. It was therefore impossible that the motorcycle had been
following him for
two kilometres.
AMENDMENT
OF THE PLEADINGS
33.
Mr Myburg, who appeared for the plaintiff,
moved for an amendment of the particulars of claim to reflect his
argument that, rather
than turning right, the insured driver moved to
the right while executing a left turn in order to make more room for
himself. He
submitted this was to take account of the evidence that
the Audi moved to the right while turning left.
34.
There was no such evidence. At the highest
point, it was simply something put to Mr Eckersley in
cross-examination. It was fundamentally
contradictory of the
plaintiff’s own evidence, and that of Mrs Bothma. Nor was it
put to Mr Muller in cross-examination.
35.
Had the amendment been granted, it would
not have been supported by the evidence. I refused the application
for amendment.
ARGUMENT
36.
Mr Myburg submitted that, despite the
refusal of the amendment, the pleaded version was wide enough to
support a conclusion that
the Audi simply “moved” to the
right rather than “turned” right. I disagree. Not only
are the pleadings
specific, so was the plaintiff’s version,
that the Audi indicated to the left but then turned right. The
plaintiff was adamant
about this.
37.
Mr Myburg nevertheless submitted that,
considering the emphasis Mr Eckersley placed on how careful he had to
be when negotiating
the turn, it would make sense that he needed to
make a wider approach to the left turn, and that this would have been
the cause
of the collision. There was no reason otherwise for Mr
Eckersley to emphasise the height of the kerb.
38.
Mr Myburg also submitted that the
plaintiff’s version was inherently more probable. According to
him the defendant had manufactured
an “imaginary”
vehicle, although it is not clear what basis Mr Muller would have had
for doing so, considering that
he was an independent eyewitness who
did not stand to gain or lose anything from these proceedings. Mr
Myburg submitted that the
inconsistencies in Mr Muller’s
evidence were so fundamental that his evidence could not be relied
upon. He submitted that
Mr Muller’s evidence had been tailored
to favour the defendant, although again it is not clear why.
39.
He submitted also that, even if the
plaintiff had only followed the Audi for less than a kilometre, there
is no basis on which the
plaintiff would have simply driven into the
Audi. There was no other car, and the plaintiff could not have gone
any other way because
he would have collided with the Audi whatever
he did.
40.
Mr Myburg also submitted that Mr
Eckersley’s testimony was unreliable in particular because he
contradicted himself about
whether the plaintiff had been wearing a
helmet when he saw him lying on the ground, and also because he
stated in the midst of
cross-examination that he now remembered
another vehicle being there.
41.
Ms Docrat for the defendant argued that the
whole trial had had no merit from the outset and was simply a waste
of taxpayers’
money. It was a rear-end collision and if the
plaintiff had been keeping a proper lookout and travelling at an
appropriate speed
he could have avoided even bad driving by the Mr
Eckersley. She pointed out that the plaintiff did not place any
photographs of
the scene before court, despite having been invited to
do so by the defendant at the start of the trial, and had not
attempted
to consult with the independent eye-witness, despite the
fact that the plaintiff’s own memory of the incident is not
complete,
and despite having access to Mr Muller’s details.
42.
She pointed out that Mr Muller had no way
of knowing about the alleged right turn made by the Audi, and had no
motivation to make
up another vehicle at the scene. It was her
submission that Mr Muller’s evidence was essentially reliable.
43.
She also submitted that Mr Eckersley’s
evidence was reliable and that the confusion about the helmet was a
red herring because
it was not material.
44.
Ms Docrat also submitted that, despite the
discrepancies in the defendant’s witnesses’ versions, the
obligation was
for the plaintiff to show that the insured driver was
negligent and the plaintiff had failed to do so. In fact, the
plaintiff’s
own version was that he wanted to overtake the Audi
and in order to do that he would have had to accelerate.
45.
Ms Docrat also submitted that the
plaintiff’s case not only did not succeed, but that it had
never had any prospects of success
and ought not to have come to
court. The late attempt to amend showed that. She submitted that, had
the plaintiff’s attorney
done basic investigations before
submitting the claim, he would have known there was no merit in it.
46.
Mr Myburg did not respond to the
submissions dealing with the integrity of the claim.
EVALUATION
47.
It is trite that the plaintiff has to
prove the insured driver’s negligence.
48.
Taking into account only the plaintiff’s
version, that he had been travelling behind the Audi, that the Audi
made “an
immediate stop”, indicated to the left and then
turned to the right, and that the plaintiff had been trying to
overtake the
Audi at the time, leads me to the conclusion that the
plaintiff had not been keeping a proper lookout, nor had he kept an
appropriate
distance between himself and the Audi.
49.
The plaintiff’s version that he had
then suddenly swerved to the left while the Audi was turning right is
in my view inconsistent
with the damage caused to the Audi on its
left rear. The insured driver’s version that the plaintiff
landed near the front
right of the Audi was not challenged, nor was
there any other version before the Court. This would have been
impossible had the
Audi been turning right at the time of the
collision.
50.
The plaintiff also did not give any
specific testimony about his speed, save to deny that he had been
going too fast. He did however,
as stated above, concede that he
could not have avoided the collision because he was trying to
overtake at the time.
51.
In addition, although there are some
inconsistencies in the defendant’s witnesses’
testimonies, there is no reason to
believe that they have
manufactured evidence. In particular Mr Muller had nothing to gain
from doing so. It is not surprising that
there were some immaterial
inconsistencies, considering that the incident took place almost
three years ago, and he had only been
approached shortly before the
trial.
52.
The fact that there were issues on which Mr
Muller and Mr Eckersley differed slightly shows that they had not
conspired together
in their evidence.
53.
In my view the plaintiff’s own
version is inherently improbable on its own. When weighed against the
version of the defendant,
the probabilities are in the defendant’s
favour.
54.
Even if the Audi had moved out to the right
in order to make room for the left turn as submitted by Mr Myburg may
have happened,
had the plaintiff been keeping a proper lookout and
paying attention to what the traffic in front of him was doing, he
would have
been able to avoid it. Particularly since, according to
him, the Audi came to a stop before executing any turn, it would have
moved
slowly whatever it did. The plaintiff would have had more than
enough time to adjust his course appropriately had he been travelling
at a reasonable speed and following distance.
55.
It must be noted that a vehicle behaving
erratically in front of one is not an invitation to accelerate in
order to pass it, but
rather a signal to slow down and take
particular care because one may not be able to anticipate the
vehicle’s movements.
56.
However, it seems to me that the plaintiff
was
bona fide
in his belief that the Audi had caused the collision. It is possible
that he was truly confused. Mr Myburg is not to be overly
criticised
for believing him. Despite that, it does appear that the efforts made
by Mr Myburg to investigate the incident are somewhat
inadequate.
57.
Nevertheless, I do not take the view that
Mr Myburg’s conduct was, in this case, such that it attracts
the censure of an order
of costs
de
bonis propriis
.
CONCLUSION
58.
For the reasons above, and having
considered the evidence, arguments and authorities submitted by the
parties, I find that the plaintiff
had been trying to pass the
insured driver’s Audi at the time of the collision, when and in
a manner that was not safe to
do so. The collision was therefore due
to the plaintiff’s own negligence.
59.
I make the following order:
“
The
plaintiff’s case is dismissed with costs.”
____________________________
S.
YACOOB
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for Plaintiff:
Mr A Myburgh (Attorney)
Attorneys
of record:
Leon JJ van Rensburg Attorneys
Counsel
for Defendant:
Ms F F Docrat
Instructing
Attorneys:
Molefe Dlepu Attorneys
Date
of hearing:
7 & 8 February 2019
Date
of judgment:
02 July 2019