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[2010] ZAGPPHC 307
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Cameron v Road Accident Fund (57984/2008) [2010] ZAGPPHC 307 (21 April 2010)
SAFLII
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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
(NORTH
AND SOUTH GAUTENG HIGH COURT. PRETORIA)
CASE NO:
57984/2008
DATE: 21 APRIL
2010
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
CHRISTOFER
PHILLIP
CAMERON
...............................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
...............................................................................................................
Defendant
JUDGMENT
PHATUDI J
[1] The Plaintiff
claims for damages he sustained as a result of the Motor vehicle
accident that occurred in the morning of the
21 December 2006. The
accident occurred on the N1 South in the vicinity of Springfontein,
Free State Province. The Plaintiff was
the driver of the Motor
vehicle bearing registration number P[...] that collided with the
insured motor vehicles with registration
numbers C[...] and B[...]
driven by PM Mashini and E Odendaal respectively.
[2]
At the commencement of the trial, I enquired from Mr Botha, counsel
for the Defendant, if the Defendant intent pursuing the
point that
this court does not have jurisdiction. He submitted that he holds no
instruction to that effect notwithstanding the
Defendant’s plea
that
“
the
cause of action arose within the jurisdiction of the High Court of
South Africa (Free State Provincial Division).” There
is
neither a special plea nor any point in limine raised to that effect.
[3] Mr Lombard,
counsel for the Plaintiff, submitted that the parties have agreed to
separation of merits and quantum. I, on that
strength, ordered
separation of the merits and quantum in terms of Rule 33(4) of the
Uniform Rules of the Court. The only issue
to be determined is
whether the insured driver of the motor vehicle with registration
number C[...] was the sole cause of the accident
or, to what extend
was he negligent.
[4] The following
are submitted as common cause;
4.1 The collision
occurred on the 21 December 2006.
4.2 The collision
occurred on the N1 South Springfontein, Free State Province;
4.3 The motor
vehicles involved are as recorded. The Plaintiff was the driver of
the motor vehicle with registration number P[...]
that collides with
the insured motor vehicle with registration number C[...] driven by
Mr Mashinini.
[5] Christopher
Phillip Cameron, (the Plaintiff), testified that on the day in
question he was driving on N1 South heading for Colesburg.
He reduced
speed to 100km/h or less as the rain started drizzling. He noticed a
truck some ±30 meters ahead of him and thought
that it was
moving. He laboured under the impression that the truck was moving
because one portion of the truck was in the middle
of the road and
the other in the “emergency lane”. He then hit the
brakes. Five (5) seconds thereafter, one Camry motor
vehicle hit his
car from behind causing a pileup.
[6]
He described, under cross examination, the road as being narrow with
yellow shoulder lane (emergency lane) of approximately
a meter and a
half. There is a further 1 ½
to 2
meters
of gravel from the edge of the tar road.
[7]
He conceded in further cross examination, after having been referred
to paragraph 4 of the affidavit, annexed to trial bundle
that he
“
observed
a stationary truck” some 30 metres ahead of him, which was
“
standing
halfway over the yellow line and half way on the N1”. He
aquaplaned (slide uncontrollably on a wet surface) as it
was
drizzling. The whole front of his motor vehicle hit the back of the
truck.
[8]Petrus
Mashinini, the driver of the insured motor vehicle truck with
registration C[...], testified in “Zulu”, and
Mr Royce
Buda interpreted to English. He testified that on the day in question
he was indeed the driver of the truck. The three
(3) component truck,
a
“
horse,
trailer and trailer” is 22 cm long. He was heading to Cape Town
when the accident occurred.
[9] He caused the
truck to stop due to an “airlock problem”. He pulled off
the road and switched the hazards on. He
sent his assistant, one
Vuyo, to check if the hazards were flickering at the last trailer.
Vuyo confirmed that the hazarrds were
flickering. He was busy taking
the “triad-angles” out of the truck. At that moment of
retrieving the “tri-angles,”
a motor vehicle came from
behind and collided with the truck from the back. The whole front of
that motor vehicle got damaged.
He said that it had just rained and
the road was wet.
[10] He, under
cross- examination, said that a portion of the last trailer of the
truck was ±50 cm from the edge of the tarred
surface to the
yellow line (within the emergency lane). He denied the Plaintiff’s
version that the truck was half way in
the middle of the drive lane.
He, in response to my question on a place of impact, said that the
accident occurred in the “emergency
lane”. None of the
counsel questioned him from that response.
[11]
I then enquired from Mr Lombard, counsel for the Plaintiff, to refer
me to the “sketch plan” or “Photos”
or any
aide
indicating
the place of impact. He concedes that no such documentation has been
filed or is in his possession.
[12]
Mr Lombard referred me to
AA
ONDERLINGE ASSURANSIE
ASSOSIASIE
VAN SA V VAN RESNBURG EN ‘N ANDER
1978(4)
SA 771(A).
He
submitted that the court of appeal confirmed the negligence
apportionment of 20% in favour of the motorist and 80 % against the
stationary vehicle. He submitted that the insured driver of the
insured motor vehicle should be found to have been 100% negligence
or, in the alternative, 80% negligent. He lastly submitted that the
Defendant be ordered to pay the Plaintiffs costs.
[13]
In rebuttal thereto, Mr Botha submitted that the Plaintiff failed to
proof the Defendant’s negligence on the balance
of
probabilities. He, contrary to the decision referred to by Mr
Lombard, referred me to
WINDRUM
V NEAUBORN 1968(4) SA
286(T)
,
where
the court apportioned 80% of the negligence on the part of the
Plaintiff and 20 % against the insured motor vehicle. He submitted
that I should follow the said formula of apportionment. He lastly
submitted that the costs be apportioned accordingly.
[14] In my
evaluation of the evidence tendered and submissions made by both
counsel, I find it necessary to first determine the
place of impact.
It will assist in determining the negligence on the either party.
[15]
On the Plaintiff’s version, he
“
observed
a stationary truck” some 30 metres or more a head of him, which
was
“
standing
half way over the yellow line and halfway on the N!” He then
hit the brakes but his motor vehicle slided uncontrollably
due to wet
surface caused by rain and collided with the back of the truck. This
is uncontested. He is only questioned on why he
failed to say that
his motor vehicle aquaplaned in his examination in chief. He
apologised for that oversight. On Mr Mashinini’s
version, he
pulled the truck off the road with the right portion of the last
trailer being 50 cm on the “emergency lane”.
[16] I, based on the
said evidence, even though not corroborated by sketch plan, infer
that the place of impact is in the “emergency
lane” as
both parties placed the truck within the said lane or portion
thereof.
[17]
The principle quoted by Mr Lombard as set out in
AA
Onderlinqe
case,
state that it must
“
appear
from the evidence that the reasonable, careful driver in the
circumstances would be aware of the possibility that danger
could
suddenly loom before him within the range of his version which could
require him to stop his vehicle within the range of
his vision...”.
The Plaintiff, who drove his motor vehicle at a speed which, in my
view, given the circumstances, did not
make it impossible for him to
stop his motor vehicle within the range of his vision
[18]
As the Plaintiff
“
observed
a stationary truck” some 30 metres ahead of him, he, in my
view, should have, as a reasonable careful driver driving
on the wet
surface due to rainy weather, been aware of the possibility that
danger could loom with the truck being stationary within
“emergency
lane.” I, in my view, find the Plaintiff to have failed to
exercise care expected of him as a 12 year old
experienced reasonable
careful driver. I fail to comprehend as to how his motor vehicle
aquaplaned if his tyres were “fairly
new”. There is no
evidence advanced to proof the cause of his motor vehicle to
“aquaplane”. On Mr Mshinini’s
version, who had just
“
pulled
off’ the road due to the
“
airlock”
problem. He sent his assistant to check if the hazards are flickering
at the back of the “last trailer”
of the truck. In
applying the principle on negligence on the part of the driver, it
must appear from the evidence that a reasonable,
careful truck driver
in the circumstances should have foreseen the possibility that danger
could ensue due to the encroachment
of the truck into the tar road by
the said 50 cm on the wet road caused by the drizzling rain.
[19] Accepting this
unchallenged portion of his testimony, I am of the view that Mr
Mashinini did what a reasonable truck driver
would do in the
circumstances save to mention that he should have “instructed”
Vuyo to remain at the back of the trailer
and to waive or alert the
other road users following them or the oncoming traffic. He, in my
view , contributed to a lesser extend
as opposed to the Plaintiff.
[20] It is trite
that cost follow the event. The Plaintiff, even though succeeding by
a lesser percentage, has substantially succeeded
with his claim and
thus entitled to his costs.
[21] I, as a result
thereof, make the following order:
1. The Defendant is
ordered to pay 20% of the plaintiff’s proven or agreed damages
with costs.
2. The determination
of quantum is postponed sine die.
A.M.L. PHATUDI
JUDGE OF THE
NORTH GAUTENG HIGH COURT
Heard
on
:
15 June 2010
For
the Plaintiff
:
Adv Lombard
Instructed
by Plaintiff
:
MACROBERT INC
For
the Defendant
:
Adv Botha
Instructed
by Defendant
:
BRUGMANS INC
Date
of Judgment
:
20 April 2010