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[2010] ZAGPPHC 627
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Ntumba v Road Accident Fund (58510/08) [2010] ZAGPPHC 627 (26 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO: 58510/2008
DATE:
26 May 2010
IN
THE MATTER BETWEEN
F
M
NTUMBA
..................................................................................................................................
PLAINTIFF
AND
ROAD
ACCIDENT
FUND
...........................................................................................................
DEFENDANT
JUDGMENT
OMAR.
AJ
[1]
This is an action for damages arising out of severe bodily injuries
sustained by the plaintiff during a motor vehicle collision
which
occurred on 8 February 2008 at the intersection of Gibson and
Buccleuch Roads. Johannesburg, when the motorcycle which he
was
riding collided with a white Ford light delivery vehicle (the insured
vehicle) driven by one L J Ramonyai (the insured driver).
The
plaintiff has been rendered a quadriplegic as a result of the
injuries sustained during the said collision.
[2]
At the commencement of the hearing the parties by agreement requested
the court to order that the issues of the merits and
quantum
be
separated in terms of the provisions of rule 33(4). The order was
granted and the matter accordingly proceeded on the merits.
The issue
of
quantum
of
the plaintiffs damages was postponed
sine
die.
[3]
The plaintiff alleges that the insured vehicle executed a right hand
turn in front of him at the last possible moment as a result
of which
he could not avoid the accident. He collided head on with the insured
vehicle. His last recollection was one of being
flung over the
insured vehicle.
[4]
The defendant's version, based on a statement by Ramonyai, was that
the insured vehicle had come to a standstill on his correct
side of
Buccleuch Road in an obligatory right turn lane, where he waited for
the plaintiff to pass. The plaintiffs motorcycle approached
at high
speed and skid on the water, as a result of which he lost control and
collided with the insured vehicle's right hand side
whilst it was on
its correct side of the road.
[5]
It is common cause that the plaintiff carries the
onus
to
prove negligence on the part of the insured driver on a balance of
probabilities. The defendant's defence is essentially one
of a denial
that the plaintiff was involved in the collision and the defendant
avers that the collision was caused exclusively
by the negligence of
the plaintiff. The defendant does not rely on a plea of contributory
negligence in terms of the provisions
of the Apportionment of Damages
Act 34 of 1956. Accordingly the sole dispute is whether the insured
driver was negligent to some
or other degree. A number of photographs
were handed in as exhibits at the trial.
[6]
The plaintiff testified himself and called his brother Mr Chi-Chi
Ntumba (Chi-Chi) and sister Ms Tete Ntumba (Tete) as witnesses.
The
defendant called the insured driver to testify on its behalf. No
other witnesses were called by the defendant.
[7]
The plaintiff testified that he left his home, which is about one
kilometre from the accident scene at about 07:30. It was a
clear day
and the road surface was dry. The headlight of the motorcycle w'as
switched on as it occurs automatically when the motorcycle
is
switched on. He was riding the motorcycle at a speed of between 40
and 60kph along Buccleuch Road on his correct side of the
road. As he
approached the intersection of Buccleuch and Gibson Roads, he noticed
the insured vehicle on the opposite side of Buccleuch
Road where it
was standing in a lane reserved for vehicles which were obliged to
turn right which is clearly depicted on the photographs
which w
r
ere
handed in as exhibits at the trial.
When
he was very close to the insured vehicle it suddenly turned to its
right as a result of which he collided with the front left
side of
the insured vehicle. Although he attempted to apply brakes there was
nothing he could do to avoid the collision as he was
already too
close. lie was flung over the insured vehicle and could not remember
anything after that. He was rendered unconscious.
He did not drive
fast and he could not swerve to the left as he was already too close
to the insured vehicle. There was no reason
to avoid water as there
was no water to avoid. He is sitting in a wheelchair due to the
injuries he sustained as a result of the
collision.
[8]
On cross-examination by counsel for the defendant the plaintiff was
adamant that there was no water which ran across the road
which
prompted him to take evasive action to avoid the water causing his
motorcycle to slip and collide with the insured vehicle.
He also
denied that he had travelled in excess of the speed limit.
[9]
The second witness Mr Chi-Chi Ntumba testified that an unknown man
informed him that his brother had been involved in an accident.
He
rushed to the scene accompanied by his sister. Ms Tete Ntumba. He saw
the insured vehicle where it was stationary in a partially
turned
position across the lane of travel which the plaintiff would have
followed up Buccleuch Road. He also saw the motorcycle
which the
plaintiff rode lying on the road surface a short distance in front of
the insured vehicle. The plaintiff was lying against
the pavement in
a stream of water running down the left hand side of the lane in
which the plaintiff was travelling. This water
was running into an
adjacent gutter. The plaintiff was unconscious. A short while later
after he spoke to him the plaintiff regained
consciousness. There was
no water running across the road. The only water was the small stream
of water running down the side of
the road into the gutter. The road
surface was not wet. He saw damage on the front of the insured
vehicle but could not remember
exactly where.
[10]
During cross-examination by counsel for the defendant, it was put to
the witness that the insured driver will say that the
collision took
place whilst he was still on his correct side of the road but that
the vehicle had run forward after the collision
because the insured
driver had not fully applied the handbrake. This was denied by the
witness. This version was not put to the
plaintiff.
[11]
The third witness Ms Tete Ntumba testified that she arrived at the
scene shortly after the collision with her brother, the
second
witness. Her evidence accorded essentially with that of the second
witness. She also took photographs of the motorcycle
after it had
been moved onto the pavement some time after the accident. She saw
the damage to the front of insured vehicle somewhere
between the
headlight and the grill.
On
cross-examination she could not say how much water was flowing into
the gutter as she did not pay attention.
[12]
The insured driver Mr L J Ramonyai, testified that he was travelling
from west to east on Buccleuch Road, approaching the Gibson
Street
intersection. He intended to turn right into Gibson Street and that
he indicated to turn as he was approaching the intersection.
When he
reached the place where he was about to turn, he saw the plaintiff
approaching the intersection. The road is not a straight
road, it has
curves. He was not turning at that stage and he saw the motorcycle
approaching on the island. As he was slowing down
to turn right at
the intersection in the right hand turn lane, the plaintiff travelled
into his lane and collided with his vehicle
on the front right of the
vehicle. His vehicle was stationary when the collision occurred.
After the collision, he went out to
check with the plaintiff and his
vehicle moved a little to the right side for approximately two
metres. He jumped back into the
car and re-applied the handbrake. The
motorcycle was travelling fast approximately 130-140kph. There was
water on the side of the
road.
[13]
On cross-examination by plaintiffs counsel the witness testified that
the water did not play any part in the collision and
the motorcycle
went straight on the island proceeding straight into his vehicle.
When confronted with his written statement which
formed the basis
upon which the defendant defended the action, he testified that his
statement was drawn up by his uncle who was
able to formulate things
more understandably in English. He confirmed that he read the
statement before he signed it and he was
aware that it was important
to convey correct information regarding the collision to the
attorneys for the defendant who had requested
him to provide the
statement. He indicated that he could read and write and in fact read
out the statement in English in court.
When confronted during
cross-examination with the conflicting version contained in his
statement, compared to his evidence, he
denied that he read the
statement. He also testified that the two passengers sitting next to
him in the insured vehicle said that
they did not see anything until
at the moment of impact. The witness could not give a reason why the
motorcycle came straight at
him on his correct side of the road and
collide with his vehicle. He indicated on photograph 1 of the
exhibits where the motorcycle
was when he saw it for the first time
and estimated the distance initially to be between 80 and 100 metres
and reduced it later
to approximately 70 metres.
[14]
The plaintiff and the witnesses who testified on his behalf created
the impression of truthfulness and there was nothing improbable
in
their versions. The plaintiff stood up well to cross-examination. He
did not contradict himself and was consistent and confident.
No
challenge of substance was also launched on any aspect of their
evidence in cross-examination. I have found the plaintiff and
the
witnesses who testified on his behalf to be credible and reliable
witnesses.
[15]
Mr L J Ramonyai, the only witness for the defendant and who was the
driver of the insured vehicle, was not a very impressive
witness.
As
mentioned earlier, he was confronted in cross-examination with his
written statement which formed the basis upon which the defendant
defended the action. He testified that his statement was drawn up by
his uncle who was able to formulate things more understandably
in
English. He confirmed that he had read the statement before he signed
it. He was aware that it was important to convey correct
information
regarding the collision to the attorney for the defendant who had
requested him to provide the statement. He indicated
that he could
read and write and in fact correctly read out the statement in
English in court. His evidence was that he had noticed
that certain
aspects which he did not understand when he read it the first time
after his uncle had written it. During cross-examination
when
confronted with the conflicting version contained in his statement,
compared to his evidence, he denied that he read the statement.
This
conflicts with his evidence that he had read it and even noticed
aspects which he had not understood. It is also highly improbable.
The version in the statement is not reconcilable with his evidence in
court.
[16]
Ramonyai testified that he assessed the speed of the motorcycle as
between 130 and 140kph. a version which was never put to
the
plaintiff. He is unlikely to have conveyed this version to the
defendant's legal representatives. Had he done so, it is
inconceivable
that that version would not have been put to the
plaintiff. His version seems to have been adjusted as he testified.
The defendant's
case was premised on.
inter
alia,
the
excessive speed at which the plaintiff is alleged to have travelled.
The issue of speed must have been canvassed with Ramonyai
by the
defendant's counsel - hence the suggestion to the plaintiff during
cross-examination that he travelled at a speed in excess
of 60kph. It
would have been expected of Ramonyai to have told defendant's counsel
of his estimation of the speed because it would
specifically have
been canvassed with him. It is inconceivable that an issue so central
to the dispute would not have been put
explicitly to the plaintiff.
The only reasonable inference is that Ramonyai developed his version
of the speed as and when he testified.
[17]
Ramonyai's version of the collision is that the motorcycle, from a
distance, simply carried on straight across the painted
island on the
incorrect side of the road without slowing down and then colliding
head on into a slow moving or semi-stationary
vehicle. This version,
in the face of ample space to the left and the correct side of the
road, and with no other cars on the road
to pass safely, is in my
view totally improbable. This is why I believe Ramonyai could not
offer an explanation or reason why the
motorcycle would come straight
at him and collide with his vehicle. I find it further highly
improbable that Ramonyai would leave
his vehicle permitting it to
roll forward towards the right for a few metres before bringing it to
a standstill. Further, there
were two passengers in the front of the
vehicle who would not allow the vehicle to roll.
[18]
When there are two mutually distinctive versions a decision of
absolution from the instance will follow unless the plaintiffs
version can demonstrate a higher probability value than the version
of the defendant. This is particularly so since the plaintiff
bears
the overall
onus
of
establishing his case on a preponderance of probabilities. The
correct approach for deciding whether a plaintiff has discharged
his
onus
was
stated in the
dictum
of
WESSELS. JA in
National
Employers' Mutual General Insurance Association
v
Gany
1931
AD 187
at 199:
"Where
there are two stories mutually destructive / before the
onus
is
discharged the court must be satisfied upon adequate grounds that the
story of the litigant upon whom the
onus
rests
is true and the other false."
[19]
It is essential in this case to determine which of the two versions
is the more probable. As indicated earlier, the version
of the
defendant is beset with inherent improbabilities. Further, the
probabilities are certainly not evenly balanced.
I
am of the view that it is far more probable that the insured vehicle
ended up straddling the lane of oncoming traffic because
the
collision occurred as testified by the plaintiff.
[20]
I am satisfied that the version of the plaintiff as supported by the
evidence of the witnesses on his behalf, is on a balance
of
probabilities true and reliable and the version of L J Ramonyai is
inherently improbable and therefore false.
[21]
There is no doubt in my mind that Ramonyai was negligent in executing
a right hand turn across the path of oncoming traffic
at a dangerous
or inopportune moment. To turn right is an inherently dangerous
manoeuvre and should only be executed when it is
clear to do so.
[22]
As indicated earlier, the issue of contributory negligence, given the
fact that the defendant does not rely on contributory
negligence,
does not arise. The defendant did not, in any event, discharge the
onus
which
it would have carried, had the issue of contributory negligence been
properly raised.
The
plaintiff, on his version, had no opportunity to take any other
avoiding action which a reasonable driver or rider in his position
could and would have taken and which he failed to do. Although the
plaintiff does not have an absolute right of precedence and
retains
the duty to keep a general look-out, [see
National
Employers' General Insurance Co Ltd
v
Sullivan
1988
1 SA 27
(A)], he is not obliged to anticipate unlawful or reckless
conduct from other motorists.
[23]
In the result, I find that the plaintiff has discharged the
onus
of
proving that Mr L J Ramonyai was solely responsible for the
collision. The defendant is therefore liable to compensate him for
100% of his proved or agreed damages arising from the injuries
sustained in and as a result of the collision which occurred on
8
February 2008.
[24]
With regard to the issue of costs, it was conceded by counsel for the
defendant that, in the light of the
quantum
involved,
the employment of senior counsel is
justified. However,
it w'as submitted by counsel for the defendant that the costs of the
plaintiffs expert witness. Prof G Lemmer,
should not be allowed in
the light of the fact that he did not testify and the speed at which
the plaintiff was travelling was
challenged and in dispute.
Counsel
for the plaintiff submitted that the plaintiff was entitled and that
it was reasonable to have employed the services of
Prof G Lemmer.
Prof Lemmer is an accident reconstruction specialist and his report
and notice of his intention to adduce this evidence
is contained in
the plaintiffs notice in terms of rule 36(9)(b). His evidence would
have been relevant on the issue of speed, an
issue pertinently raised
by the defendant in its plea. Although the defendant does not raise
the issue of contributory negligence
pertinently, it was anticipated
that an amendment may follow to raise the issue of contributory
negligence. No amendment followed.
Prof Lemmer was present throughout
the trial.
It
was submitted further that it is trite law that the question of the
costs of an expert witness is twofold. Firstly, if the retention
of
the services of an expert was reasonable, a party should not be
deprived of the costs incurred in respect thereof. Secondly,
it is
usually reasonable to request the attendance of such an expert to
hear the evidence regarding the issue in respect of which
such expert
would be required to testify. The plaintiff acted reasonably in
retaining the services of Prof Lemmer and that it was
equally
reasonable to have required of him to listen to attend to the
evidence. Given the fact that there was no serious challenge
on the
issue of speed and that the defendant did not elect, even at the last
moment, to introduce the issue of contributory negligence,
it was not
necessary to lead the evidence of Prof Lemmer. However, there is no
reason why the plaintiff should not be entitled
to his costs for.
firstly, obtaining the report of Prof Lemmer and, secondly, the costs
or fees of Prof Lemmer for his attendance
at court.
I
totally agree with the submissions made by the plaintiffs counsel
regarding the costs of Prof Lemmer.
Accordingly,
1 make the following order:
1.
It is declared that the defendant is liable for 100% of the
plaintiffs proved or agreed damages arising from the injuries
sustained
in and as a result of the collision which occurred on 8
February 2008.
2.
The defendant is ordered to pay the reasonable taxed or agreed party
and party costs of the plaintiff on the High Court scale,
such costs
to include-
2.1
the fees of senior counsel;
2.2
the preparation and reservation fees of Prof G Lemmer (including his
attendance at court on 12 April 2010) and the costs of
obtaining his
report dated 23 March 2010;
2.3
value added tax.
3.
As guidance to the taxing master, it is regarded that the following
persons were necessary witnesses:
3.1
the plaintiff;
3.2
Mr Chi-Chi Ntumba;
3.3
Ms Tete Ntumba.
4.
The costs payable by the defendant shall bear interest at 15,5% per
annum calculated from date of affixing the taxing master's
allocatur
or date of agreement in respect of costs, to date of payment.
S
S OMAR
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
58510-2008
HEARD
ON:
FOR
THE PLAINTIFF:
INSTRUCTED
BY:
FOR
THE DEFENDANT:
INSTRUCTED
BY: