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[2020] ZAGPJHC 194
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T M obo O M v Road Accident Fund (20662/2016) [2020] ZAGPJHC 194 (13 May 2020)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NUMBER:
20662/2016
In
the matter of
M
T OBO M
M PLAINTIFF
and
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
DOSIO AJ:
INTRODUCTION
[1]
This is an action instituted by T M (“the plaintiff”) in
her representative capacity of her minor child, M M (“M”),
against the defendant, namely, the Road Accident Fund (“RAF”),
as a result of bodily injuries sustained by M.
[2]
At the commencement of the trial and by request of leave of the court
by the plaintiff’s counsel , an order was granted
in terms of
Rule 33 (4) of the Uniform Rules of Court, separating the issues of
liability from those of quantum. In terms of the
separation order,
the only issue for determination in this trial is that of liability
arising out of an accident that occurred
on the 25
th
of April 2014.
[3]
The action was set down for hearing on the 12
th
of May 2020 via video conference. The notice of set down was served
on the defendant’s attorney on the 18
th
of November 2018. The defendant’s attorneys were aware
that the matter was on the roll as an e-mail was sent on the
11
th
of May 2020 to my secretary, informing her that the defendant was not
ready to proceed on the 12
th
of May 2020. The reason given by the defendant’s attorney was
that a communication was received on the 8
th
of May 2020 from the RAF informing the defendant’s attorneys
that RAF matters on the trial roll would be postponed and that
accordingly the defendant’s counsel’s brief was
withdrawn. The defendant’s attorney was been invited to partake
in the video conference on the 12
th
of May but failed to participate.
[4]
On the basis of a communication from the Judge President of this
division, to the Judges, dated the 11
th
of May 2020, stating that this division did not see its way clear “
to
acceding to the request of the RAF to remove all RAF matters from the
roll
” I proceeded to hear this
trial.
[5]
When the matter was called at 10h00, no one was present from the RAF
to request a postponement. The plaintiff’s counsel
requested
the matter to stand down to 11h00 to ascertain if they could get some
direction from their instructing attorneys whether
they would seek a
separation of the merits and quantum. When the matter was recalled,
the plaintiff’s counsel informed me
that the attorneys for the
defendant were liaising with the RAF to ascertain if the RAF would
concede the merits. I was asked to
let the matter stand down to after
12h00. The matter was recalled after lunch and I was informed that
the attorneys of the defendant
had not communicated with the
plaintiff’s counsel and that accordingly the plaintiff wanted
to proceed with the matter solely
on the merits.
[6]
Due to the non-appearance of the defendant, the matter was heard by
default.
BACKGROUND
[7]
It is common cause that M was involved in a pedestrian motor vehicle
accident on the 25
th
of April 2014 at approximately 17h15. This occurred at or near
Luvuvhu street in Dhlamini extension 2. M was nine (9) years old
at
the time of the accident. It is further common cause that the driver
of the vehicle with registration number […] GP was
Charlotte
Khumalo.
[8] In terms of paragraph
15.1 of minutes of the pre-trial conference held on the 4
th
of March 2020, the defendant admitted the following, namely;
“
The
defendant binds itself to the contents of the Officer’s
Accident Report in so far as the occurrence of the accident is
concerned and limits its admission about the occurrence of the
accident to the information contained in the accident report, without
admitting liability.”
[9] The plaintiff
contended that the insured driver had been the sole cause of the
accident in that;
1
.
The insured driver failed to avoid a
collision when by the exercise of reasonable care the insured driver
should have done so;
2.
The insured driver drove at an
excessive speed in the circumstances;
3.
The insured driver failed to keep a
proper lookout;
4.
The insured driver failed to keep the vehicle under proper control;
5.
The insured driver failed to apply the brakes of a motor vehicle
driven by him at all
and/or timeously
EVIDENCE
[10] The plaintiff called
two witnesses, namely M and his mother, T M.
M M
[11]
M testified that he was born on the 2
nd
of April 2005 and that he was currently fifteen (15) years old. He
stated he understood the import and nature of the oath and was
duly
sworn in. He stated that on the 25
th
of April 2014, around 17h00 he was crossing the road when he was hit
by a car. It was a Friday and there were a lot of cars on
the road.
[12]
Prior to crossing the road he had been playing with his friends at
Eco Park. When he crossed the road he moved from Eco Park
to the
opposite side of the road where his home is situated. He testified
that he was alone when he crossed the road and that prior
to being
hit by the car, there wasn’t time to move out of the way as the
car came towards him at a very high speed.
[13]
The car hit him on his left hip and he ended up on the floor. The car
made a u-turn and some people picked him up and he was
taken to
Baragwanath hospital by the person who was driving the car that
collided with him. His back and head was bruised and his
hip hurt.
[14]
He testified that he no longer has any injuries from the accident and
he does not have any scars on his back, head or hip.
He did state
that he experiences headaches three (3) to four (4) times a week
which occur in the day. He stated he is currently
in grade ten (10)
and the headaches occur while he is at school. The headaches cause
his eyes to turn red and become sore. This
started at the age of nine
(9) years old after the accident occurred.
[15]
He testified that his memory worsened after the accident. His
recollection of the accident makes him feel very uncomfortable
and
sad. He stated that he requires assistance to overcome these feelings
of sadness.
[16] M placed various
marks on the sketch plan, namely X1, X 2 and X3. X1 is the position
where the car was coming from. X2 is the
position in Eco Park where
he was, prior to crossing the road and X3 is where the car collided
with him.
T M
[17]
This witness testified that she is the mother of M and that she lives
with him at the same address. She stated that Luvuvhu
Street is a
busy street and that there is a park directly across from her home
called Eco Park. She testified that people often
cross the road from
Eco Park to the side of the road where her house is situated.
[18]
On the 25
th
of April 2014 she became aware of the accident as she heard a car
bumping someone. She ran outside where she met her daughter who
informed her that M had been bumped by a car. She found M lying on
the ground and he was quiet. When he was touched he cried. The
person
who knocked M made a u-turn and came back. The driver of the car was
a female. They then put M on a plank and it was agreed
that the lady
who knocked him down would take this witness and M to Baragwanath
hospital.
[19]
This witness testified that M was at Baragwanath hospital for five
days. He was unconscious at the hospital and his head kept
swelling.
After the five days in hospital, M was discharged and he returned
home. The driver came to visit M sometime after the
accident to
apologise for having bumped him and to ask for forgiveness.
[20] This witness stated
that after being discharged, M couldn’t walk properly as he had
been bumped on the side and he complained
of headaches. His eyes
would also often be red. She has also noticed that his school marks
have gone down.
THE LAW
[21]
The onus rests on the plaintiff to prove negligence on the part of
the defendant’s driver. (see in this regard the decision
of the
learned Els J in the matter of
Ntsala
and Others v
Mutual and Federal
Insurance
Co Ltd 1996(2) SA 184 (T) ).
[22]
In the matter of
Davies v Grossling
1935 WLD 107
, although the driver hooted to the pedestrian, the
driver was still found to be negligent as he did not take extra
caution.
[23] The learned author
W.E Cooper in
Delictual Liability in Motor Law
, states at page
134 that the duty to keep a proper look-out entails;
“
a
continuous scanning of the road ahead, from side to side, for
obstructions or potential obstructions.”
[24] In the matter of
Manual v SA Eagle Insurance Co Ltd
1982(4) SA 352(c) at page
357, paragraph A, the honourable court stated that:
“
A
motorist who sees a pedestrian on the roadway or about to venture
thereon should regulate his driving so as to avoid an accident
The
pedestrian may by his conduct convey to the motorist the impression
that he recognises, and intends to respect, the motorist’s
right of way. When such an impression is conveyed by the pedestrian,
the motorist may proceed on his way accordingly. Whether the
motorist
is reasonably entitled to assume or infer, from the conduct of the
pedestrian, that his right of way is being recognised
and respected,
is a question of fact to be decided in each case…When the
assumption is not justified, the motorist must
regulate his driving
to allow for the possibility or probability, that his vehicle may not
enjoy an unobstructed passage. Where
a pedestrian reacts
appropriately to the presence of an approaching vehicle, the critical
enquiry is whether a reasonable motorist
would foresee the reasonable
possibility that the pedestrian might nonetheless act irrationally by
moving, perhaps suddenly, into
the vehicle or its path. That
possibility exists for young children, for adults who are plainly
drunk, and may arise in other cases.”
[25] The learned author
W.E. Cooper in
Delictual Liability in Motor Law
, 1996 edition,
at page 195 sets out the duties of a driver when faced with a
pedestrian. These duties are;
“
A
driver is required to exercise reasonable care and vigilance not only
towards a pedestrian he sees, or ought reasonable to see,
on or near
the road; he is obliged to exercise the same reasonable care and
vigilance towards an unseen pedestrian whose presence
he should
reasonably foresee or anticipate because, for example, of the
proximity of a school or of a passenger bus.”
EVALUATION
[26]
In my view the matter of
Manual v SA
Eagle Insurance
(
supra
)
and the passage from W.E Cooper in
Delictual
Liability in Motor Law
, succinctly sets
out the duties of a motorist when a pedestrian is crossing the road.
[27]
From the oral evidence that has been presented it is clear to me that
M was able to express himself in a clear, succinct and
credible
manner, despite the fact that this incident occurred when he was nine
(9) years old. M made a good impression on me.
[28]
The evidence of T M equally impressed me.
[29]
There is no allegation(s) against M of any untoward conduct on the
day of the
accident, causing or
contributing to the accident. In fact the officer’s accident
report
states that the insured driver tried
to swerve but it was too late. This is suggestive of the
fact
that the insured driver of the vehicle with registration MHZ 447 GP
was driving at a
high speed. The markings
on the sketch plan, with specific reference to X2 (which
depicts the position in Eco Park where M was,
prior to crossing the street) and X3
(which
is where the accident occurred), it is clear that M first crossed the
carriage
way in which the insured driver
was not driving in. This suggests that the insured driver
must
have had a clear view of M crossing the road from her right side and
that
although she tried to swerve she
was unable to prevent colliding with M.
[30]
I find that in the circumstances the insured driver, ought to have
seen M
crossing the road and that she
should have exercised reasonable care and vigilance in
approaching the area where M was crossing. Even if
I am wrong in this regard, the
insured
driver should reasonably have foreseen or anticipated that she was
driving in a
residential area, which was
next to a park where children play. In addition, she should
have exercised greater caution in that 17h15
on a Friday, would be regarded as peak
hour
traffic with many pedestrians returning home after work and children
returning
home after playing with friends.
[31]
A reasonable person in similar circumstances, driving during peak
hour traffic in a built
up residential
area, next to a park where children play and where a high volume of
pedestrian traffic is observed, should have kept a
proper look out.
[32]
There is no evidence to dispute the evidence of M, or to suggest that
he did not
exercise the necessary caution
that a pedestrian should take when crossing a busy
road.
Accordingly I am unable to find in these circumstances that there has
been
any contributory negligence on his
part. I find that M when faced with the imminent
threat
of collision could not act in any way to avoid the collision which
resulted in
injuries.
[33]
Taking into consideration all these factors placed before me, I find
on a balance of
probabilities that the
plaintiff has discharged the onus of showing that the insured driver
was solely negligent.
[34]
I accordingly find that the defendant is liable in full for the
plaintiff’s proven or agreed
damages
consequent upon the injuries sustained by him during the accident on
the
25
th
of April 2014, with costs up until the last day of trial on the
merits.
ORDER
[35]
In the premises the following order is made;
1.
The defendant is liable for 100% (one
hundred percent) of the plaintiff’s proven or
agreed
damages pertaining to the collision which occurred on the 25
th
of April 2014.
2. The
defendant will provide the plaintiff with an undertaking in terms of
Section 17
(4)
(a) of the
Road Accident
Fund Act, 56 of 1996
, to pay for the costs of future medical
expenses of the plaintiff arising out of the
injuries sustained by the minor in a motor
vehicle
collision on 25
th
of April 2014 and the
sequelae
therefore, after such costs
have been
incurred and upon proof thereof.
3.
The defendant shall pay the plaintiff’s
taxed or agreed party and party costs which
costs
shall include Counsel’s fees, on the applicable High Court
Scale as well as the
qualifying fees of
Experts.
4. The
issue of quantum is postponed
sine die
.
________________________________
D DOSIO
ACTING JUDGE OF THE
HIGH COURT
Appearances
:
On behalf of the
Plaintiff: Adv. K.T Mathopo
Instructed
by: N.T Mdlalose Inc.
On
behalf of the Defendant: Absent
Heard on the 12
th
and 13
th
of May 2020
Judgment
handed down on the 13
th
2020