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[2019] ZAGPJHC 326
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Evans v Road Accident Fund (25590/18) [2019] ZAGPJHC 326 (22 August 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 25590/18
In the matter
between:
EVANS:
BRONWYN
JILL
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
J U D G M E N T
MAHALELO, J:
INTRODUCTION
[1] The plaintiff herein, an adult
female of 29 years, instituted action against the defendant for
damages suffered arising from
the injuries she sustained as a result
of a motor vehicle collision which occurred on 6 November 2017.
[2]
The
case served before this court with the parties having agreed to
separate issues as envisaged in the Uniform Rules of Court 33(4).
The
court accepted the parties’ agreement and ordered that merits
and quantum be treated separately. Accordingly, this matter
proceeds
on merits only
quantum
having been postponed
sine
die
.
[3] The merits
in this matter are to be decided on the basis of the testimony of the
plaintiff and one eye witness, being Mr Alexander
Reginald King.
COMMON
CAUSE FACTS
[4] The
following factors are common cause between the parties:
4.1 Plaintiff’s
locus standi
4.2 Jurisdiction
of this court
4.3 The date,
time and place of the collision
4.4 Vehicles of
the Plaintiff and the insured driver
ISSUES
IN DISPUTE
[5]
The negligence of the insured driver as set out in the plaintiff’s
particulars of claim, as to whether or not the driver
of the insured
motor vehicle was solely negligent in one or more of the following
ways
:
5.1 He failed to
keep any proper lookout;
5.2 He failed to
apply the brakes of his motor vehicle, alternatively, failed to apply
brakes of his motor vehicle timeously;
5.3 He drove at
an excessive speed under the prevailing circumstances;
5.4 He failed to
avoid a collision when by the exercise of reasonable care, he could
and should have done so;
5.5 He failed to
exercise the care a reasonable person would have exercised under the
prevailing circumstances
5.6 He
disregarded a red traffic light
[6] In essence,
the plaintiff alleges from the pleadings that the collision was
caused solely by the negligence of the driver of
the insured vehicle.
The defendant disputes the aforementioned allegations and poses a
question whether there might have been any
contributory negligence on
the part of the plaintiff.
MERITS/NEGLIGENCE/LIABILITY
[7]
PLAINTIFF’S VERSION
7.1 The plaintiff testified that she
was the driver of motor vehicle bearing registration letters and
numbers […] GP, on
06 November 2017 at approximately 11h30 at
or near R563 and Kromdraai Road, Tarlton.
7.2 The plaintiff’s evidence is
that she was travelling at a speed below 80km/h towards Krugersdorp
with her father, as a
passenger in the motor vehicle.
7.3 She observed that the road was a
single carriage lane on both sides and it becomes a slight double
lane to allow cars to turn
to the left towards Sterkfontein. There
was a T-Junction on the left side of the road which is controlled by
way of a stop sign.
7.4 As she approached the T-junction
she observed a stationary motor vehicle on her lane of travel, which
was later identified as
that being driven by Mr RB Ererson (“insured
driver”), bearing registration letters and numbers […]
GP. She
got the impression that the insured vehicle was coming from
the T-junction which has a stop sign to control cars coming and going
towards Krugersdorp and Maropeng.
7.5 She testified that when she
realised the insured vehicle on her lane it was already too close,
she then looked up to check the
oncoming vehicles, she swerved her
vehicle to the right to avoid a colliding with the insured motor
vehicle, however the insured
driver also swerved to the right and hit
her vehicle on the front passenger side causing the vehicles to
collide on the lane for
vehicles travelling in the opposite
direction. She testified further that when she noticed the insured
vehicle on her lane of travel
she does not remember if she applied
brakes and according to her swerving to the right was the only option
to take at that point
in time. She disputed that she was in any way
negligent and stated that there was nothing she could have done to
avoid the collision.
7.6
The
plaintiff was cross-examined. Her evidence gave the impression that
she did not act as a reasonable driver in the circumstances
and she
further did not recall all the instances surrounding the collision
for example, applying brakes to reduce the speed or
sounding a
hooter
. It is the
testimony of the plaintiff that the insured driver was the sole cause
of the collision.
[8]
MR ALEXANDER KING’S EVIDENCE
8.1 Mr King testified that he was
travelling behind the plaintiff’s motor vehicle when he
observed the insured vehicle approaching
from the T-Junction and
gradually entering the road. It appeared to him that the insured
driver was undecided as he kept on slowly
creeping into the road
across the stop sign into the left lane.
8.2 As the plaintiff was swerving to
the right to avoid collision, the insured driver also suddenly turned
right and the collision
occurred.
8.3 It is the testimony of Mr King
that he did not see brake lights from the plaintiff’s vehicle,
nor did he hear the sound
of a hooter from the plaintiff’s
vehicle. Lastly, according to him the point of impact was in the
middle of both lanes.
[9] The defendant’s counsel
submitted that there was contributory negligence on the part of the
plaintiff in that, while driving
her vehicle she should have
exercised reasonable care that is expected of a reasonable driver
driving under the same circumstances
by applying brakes, thereby
reducing her speed and sounding her hooter.
[10]
From
the evidence of the plaintiff outlined above, this court is called
upon to decide who of the two, the insured driver or the
plaintiff
was negligent. In
S
v Mokgethi & Others
1990 (1) SA 32
(A) 40-41, Van Heerden JA held that there is no single
and general criterion for legal causation which is applicable in all
instances.
He suggested a flexible approach where the court has the
freedom in each case to apply a theory which serves reasonableness
and
justice, in light of the circumstances, taking into account
considerations of policy. The basic question is whether there is a
close enough relationship between the wrongdoer’s conduct and
its consequence for such consequence to be imputed to the wrongdoer
in view of policy considerations based on reasonableness, fairness
and justice.
[11]
It
is trite that the onus rests squarely upon the plaintiff to prove
that the insured driver’s negligent conduct caused the
harm
giving rise to the claim.
[12] In matters against the Road
Accident Fund, liability generally depends on the negligence or any
other wrongful act of a third
party in causing a collision.
ANALYSIS
OF THE EVIDENCE
[13] The plaintiff was a very
emotional witness who was unable to give her best account of the
events leading to the collision as
she referred to them as
“traumatic” and something she would rather forget. She
could not answer certain questions posed
by the court and replied in
some instances that she had forgotten. Her evidence is to be
considered by court with caution.
[14] On the other hand, Mr King was a
consistent witness who gave his best account of the events leading to
the collision and did
not seem to be untruthful. His evidence is
accepted as being a true reflection of the events.
[15] As already indicated, the
defendant did not call any witnesses.
CONTRIBUTORY
NEGLIGENCE
[16] Section 1 (a) of the
Apportionment of Damages Act 34 of 1956 provides:
“
Where any person suffers
damage which is caused partly by his own fault and partly by the
fault of any other person, a claim in
respect of that damage shall
not be defeated by reason of the fault of the claimant but the
damages recoverable in respect thereof
shall be reduced by the court
to such extent as the court may deem just and equitable having regard
to the degree in which the
claimant was at fault in relation to the
damage”.
[17] In
Sedumemanyatela v Road
Accident Fund
(65678/2012) [2014] ZAGPPHC 445, at page 14
paragraph 21 Molefe J appositely remarked:
“
Even when
an approaching vehicle is on its incorrect side of the road, a driver
on his correct side may assume that the former will
return timeously
to its correct side of the road. But this assumption does not entitle
a driver on the correct side of the road
to remain passive in the
face of threatening danger. As soon as the danger of the collision
becomes evident he is under a duty
to take reasonable steps to avert
one”
[18] In
casu,
the plaintiff was
travelling on a single carriage road on both sides when the insured
driver entered into her lane of travel from
the T-junction. She
noticed the insured vehicle in front of her and without slowing down
or applying brakes or sounding a hooter,
swerved to the right side. I
accept that everything happened quickly, however, I am of the view
that if the plaintiff could have
reduced her speed by applying brakes
she could have avoided the collision.
[19] When the totality of the evidence
is considered, the conclusion that the plaintiff contributed to the
accident is unavoidable
in that:
19.1 She failed to keep a proper
lookout, as she would have seen the insured driver entering the road;
19.2 She failed to apply her brakes
timeously in order to avoid collision;
19.3 She failed to act as a reasonable
driver in the circumstances.
[20] Consequently, I find it
appropriate to apportion the degree of fault between the plaintiff
and defendant at 10%- 90% respectively.
Such apportionment is made on
the considerations of justice and equity. See:
General Accident
Versekeringsmaatskappy Bpk v Uijs NO
[1993] ZASCA 58
;
1993 (4) SA
228
(A) at 234J-235E.
[21]
As a result I make the following
order:
The
defendant is liable to pay 90% of the plaintiff’s proven
damages.
Defendant
is to pay costs of the action.
________________________________________
M B MAHALELO
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARANCES
FOR THE PLAINTIFF: ADV SCHOUTEN
INSTRUCTED BY: WIM KRYNAUW
ATTORNEYS
FOR THE DEFENDANT: ADV MAFAFO
INSTRUCTED BY: MALULEKE MSIMANG &
ASSOCIATES
DATE OF HEARING: 10 JUNE 2019
DATE
OF JUDGMENT: 22 AUGUST 2019