Summary of Judgment

1. Introduction

This was a delictual action for damages arising from a motor vehicle collision, instituted in the Gauteng Local Division, Johannesburg. The plaintiff, Christiaan Putter, sued the defendant, the Road Accident Fund, for compensation in respect of bodily injuries allegedly sustained in the collision involving the plaintiff’s motorcycle and an insured motor vehicle.

At the commencement of the hearing, the parties agreed to a separation of issues so that merits (liability) would be determined first, with quantum postponed sine die. The court granted the separation application in terms of Rule 33(4) of the Uniform Rules of Court.

The matter proceeded in circumstances described by the court as akin to a default-judgment context, in that the defendant had failed to respond to certain interlocutory orders. Although the defendant’s legal representative appeared at the hearing and participated in cross-examination and argument, the defendant had filed no opposing papers, had not referred the plaintiff for medico-legal examination, and called no witnesses, including not calling the insured driver. The dispute concerned whether negligence on the part of the insured driver caused the collision and whether any contributory negligence could be attributed to the plaintiff.

2. Material Facts

The collision occurred on 3 February 2020 at approximately 07h20 on Pretoria Road, Benoni. The plaintiff was riding a motorcycle, travelling from north to south, on his way to work. He was travelling at approximately 60 km/h and was following two vehicles that were about five metres ahead of him.

The road layout, as accepted in the evidence, was that Pretoria Road had two lanes in each direction. The plaintiff was riding in the extreme left lane for southbound traffic. The insured vehicle was a courier bakkie that approached from the opposite direction and was observed by the plaintiff as it came from the vicinity of an Engen garage.

The plaintiff’s evidence was that, after the two vehicles ahead of him passed the insured vehicle, the insured vehicle turned right across the plaintiff’s path, intending to enter Raiburn Street, and did so without indicating and without affording the plaintiff an opportunity to avoid impact. The plaintiff testified that the manoeuvre occurred suddenly, leaving him no time to take evasive action. Following the collision, he was thrown from the motorcycle and landed on the pavement, sustaining injuries (including to ribs, femur, left arm, and head), and he only later regained awareness in hospital.

The court recorded that various exhibits were used during the plaintiff’s testimony, namely a sketch plan drawn by the plaintiff, video footage from the Engen garage security cameras, and photographs of the scene. These exhibits were discovered, and the defendant did not object to their admission.

As to disputed versus undisputed matters, the court treated the occurrence of the collision at the stated place and time, and the general configuration of the road and intended right turn into Raiburn Street, as matters established on the evidence before it. The essential dispute advanced in cross-examination and argument was whether the plaintiff had kept a proper lookout and could have avoided the collision, but the defendant led no competing factual version through witnesses.

3. Legal Issues

The central legal question was whether, on the evidence, the plaintiff had proven on a balance of probabilities that the collision was caused by the negligence of the insured driver, such that the defendant (as statutory insurer) was liable for the plaintiff’s damages.

A related issue was whether the plaintiff’s conduct contributed to the collision, specifically whether the plaintiff failed to keep a proper lookout and failed to take reasonable evasive steps, which would implicate contributory negligence or an apportionment-type outcome. This required the court to assess the application of legal standards of negligence to the proved facts, rather than resolving a conflict between competing factual versions (since the defendant adduced no witness evidence to contradict the plaintiff’s account).

The court also had to consider the relevance of the doctrine of sudden emergency to the plaintiff’s ability (or inability) to avoid the collision in the circumstances described.

4. Court’s Reasoning

The court began by affirming the general evidentiary principle that, even in the absence of an opposing version, the onus remained on the plaintiff to establish the claim on a balance of probabilities by presenting evidence that is reliable and credible. The absence of defence evidence did not remove the requirement that the plaintiff’s version be persuasive; however, the lack of rebuttal evidence meant that the plaintiff’s evidence, if credible, would stand uncontroverted.

On the facts, the court accepted the plaintiff’s description of events and concluded that the collision occurred as he described. The court placed weight on the circumstance that the defendant called no witnesses, including not calling the insured driver, to dispute the plaintiff’s account of the insured vehicle’s right turn. In the court’s assessment, the plaintiff’s evidence remained effectively unchallenged in substance, and cross-examination did not materially undermine it.

In addressing the contention that the plaintiff failed to keep a proper lookout, the court rejected the argument that the plaintiff was negligent merely because he did not avoid the collision. The court reasoned that the plaintiff observed the insured vehicle but that the insured vehicle’s right turn occurred suddenly, immediately after the two cars in front of the plaintiff passed the insured vehicle. On the court’s analysis, the insured driver attempted to execute the right turn between the plaintiff and the vehicles he was following, which was treated as creating an abrupt hazard in close proximity.

The court emphasised that the duty rested on the driver executing a right turn across oncoming traffic to ensure that it was safe to do so, taking into account other road users, including the plaintiff. The court further observed that Raiburn Street was described as a side road and not a controlled intersection, and it accepted that the plaintiff could not be expected continuously to monitor the insured vehicle’s conduct beyond maintaining a reasonable lookout while proceeding lawfully along the roadway.

In evaluating whether the plaintiff ought reasonably to have braked or swerved to avoid the collision, the court regarded such an expectation as unreasonable in the circumstances it accepted, given the plaintiff’s proximity to the vehicles ahead, the speed testified to, and the suddenness of the insured’s turn. The court treated the plaintiff as having been confronted with a sudden and unexpected peril created by another road user’s lack of care.

The court then applied the doctrine of sudden emergency, citing authority for the proposition that a person placed in imminent danger by another’s want of care is not to be held negligent merely because, in that emergency, the person does not act in the best possible way to avoid the danger. On that approach, the court concluded that the plaintiff was confronted with an emergency not of his own making, and that his failure to avoid impact did not, on the accepted facts, establish negligence on his part.

The court considered reliance by the defendant on Smith v Road Accident Fund (2010/37195) 2015 ZAGPJHC 146, but treated it as distinguishable. It noted that the factual circumstances in Smith involved a claimant who had waited for a bus but then took her eyes off the road and collided with the bus, and that a significant portion of negligence (70%) had been attributed to the plaintiff in that matter. The court did not accept that those circumstances assisted the defendant on the facts of the present case, where the plaintiff’s version was accepted and no countervailing evidence was presented.

Having accepted the plaintiff’s account and applied the above principles, the court concluded that the insured driver was the sole cause of the collision. In the result, the defendant was held liable for the plaintiff’s damages, subject to proof of quantum at a later stage.

5. Outcome and Relief

The court held that the defendant was liable for 100% of the plaintiff’s proven damages, with quantum postponed for later determination as a consequence of the earlier separation of issues.

The court ordered the defendant to pay the plaintiff’s costs.

Cases Cited

R v Cawood 1944 GWL 50 at 54.

Smith v Road Accident Fund (2010/37195) 2015 ZAGPJHC 146.

Legislation Cited

No specific statute was cited in the text of the judgment provided.

Rules of Court Cited

Rule 33(4) of the Uniform Rules of Court.

Held

The court found, on the plaintiff’s uncontroverted evidence, that the insured driver executed a sudden right turn across the plaintiff’s path without proper indication or regard for oncoming traffic, thereby causing the collision. The court rejected the contention that the plaintiff failed to keep a proper lookout or should have taken evasive action, treating the incident as one in which the plaintiff was confronted by a sudden emergency created by the insured driver’s conduct.

Accordingly, the insured driver was held to be the sole cause of the collision, and the Road Accident Fund was declared liable for 100% of the plaintiff’s proven damages, together with the plaintiff’s costs.

LEGAL PRINCIPLES

Negligence and liability had to be established by the plaintiff on a balance of probabilities, and the onus remained on the plaintiff even where the defendant led no evidence; however, where credible plaintiff evidence stands unrebutted, the court may accept it and determine liability accordingly.

A driver executing a right turn across oncoming traffic bears a duty to ensure that it is safe to cross the path of approaching road users, including those travelling in the lane being crossed.

Under the doctrine of sudden emergency, a person who, through another’s want of care, is placed in a position of imminent danger is not necessarily negligent merely because that person does not adopt the best possible evasive course in the moment of emergency. The doctrine operates as part of the evaluative assessment of whether the conduct of the person confronted with the emergency fell below the standard of the reasonable road user in the circumstances.