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[2010] ZAGPPHC 265
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Brown v Road Accident Fund (53992/08) [2010] ZAGPPHC 265 (4 June 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COTRT.
PRETORIA
(REPUBLIC OK SOUTH AFRICA)
Case
No: 53992/08
DATE:04/06/2010
GREGORY
RYAN BROWN
….........................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
..............................................................................................
Defendant
JUDGMENT
SAPIRE,
A J:
The
Plaintiff was injured in a road accident. He is claiming damages from
the Defendant which is the Road Accident Fund. The trial
was set down
for the 22 April 2010. The parties agreed that only the issue of
negligence would be decided at this stage.
The
question of damages and the amount thereof was left in abeyance
pending the decision on the question of negligence.
The
Plaintiff alleged that on the I5lh of February 2007 at approximately
18h00 a collision occurred at or near the intersection
of Serena Road
and Driefontein Road.
Croydon,
between a Mercedes Benz Sedan, registration number CAT 137 GP driven
by one A M Catarino and a motor cycle 125 with registration
number
TGZ 464 GP then being driven by the Plaintiff.
The
Plaintiff further alleged that the sole cause of the collision was
the negligence of Catarino, he being negligent in one or
more or all
of the following respects:
1.
He failed to keep any or any proper lookout.
2.
He failed to avoid a collision when by the exercise of reasonable
care he could and should have done so.
3.
He failed to exercise any or any proper control over the vehicle he
was driving.
4.
He failed to have adequate or any regard to the vehicle driven by the
Plaintiff.
5.
Without giving adequate warning of his intention to do so and/or on
an inopportune moment he moved his vehicle out of his line
of traffic
and/or turned into the line of travel of the said motor cycle and a
collision occurred.
The
Plaintiff went on to allege the injuries sustained by him as a result
of the collision in view of the agreement to deal only
with the
question of negligence at this stage. There is no need to deal more
fully with Plaintiffs allegations in this connection.
The
Defendant pleaded and denied that the collision was due to the
negligent driving of Catarino and in amplification averred that
the
collision was due to the negligence of the driver of the motor cycle
who of course is the Plaintiff.
The
Plaintiffs alleged negligence is described in terms very similar to
those alleged by the Plaintiff except for 4 above
The
Plaintiff testified in support of his claim and called his father as
a supporting witness.
The
scene of the accident was described and photographs were produced
which assisted in obtaining a picture of the intersection
at which
the collision occurred. The photographs also showed the damage to the
insured vehicle and the motor cycle on which the
Plaintiff was
travelling.
The
intersection between Driefontein Road and Serena Road forms a T. The
entrance to Serena Road from Driefontein Road and the exit
there from
into Driefontein Road are separated by a traffic island in the middle
of the road so that the entrance and exit form
a Y.
Plaintiff
described how he was driving along Driefontein Road from a traffic
light some short distance from the T junction towards
the T junction.
He says that there was heavy traffic on the opposite side of the road
to that in which he was travelling. He used
the word "traffic
jam" in describing the prevailing conditions.
He
related how the insured driver had been travelling the stream of
traffic coming towards him on the other side of the road. The
vehicle
he said left the stream of traffic and made a U-turn coming across
the side of the road on which he, the Plaintiff, was
travelling.
According to him the vehicle somehow made a turn of 290° so that
the car was facing Serena Road.
The
Plaintiff stated that the vehicle then stopped and appeared to be
waiting for an opportunity to enter Serena Road. The Plaintiff
observing the vehicle stationary-decided to drive past it, but was
surprised by the vehicle proceeding across the road and apparently
trying to enter Serena Road through the arm of the Y intended for
traffic exciting Serena Road into Driefontein Road.
The
Plaintiff says that he tried to beat the vehicle into Serena Road but
the respective vehicles collided and he was thrown from
the cycle and
dragged for some 70 metres. This account is not foreshadowed by the
allegations in the particulars of claim describing
the negligence of
the driver of the insured vehicle.
Catarino's
version is completely different. He denies outright that he was
travelling in the opposite direction to that of the Plaintiff
and
says that he was travelling in the same direction as the Plaintiff
and on the same side of the road as the Plaintiff. He says
that he
wished to turn right into Serena Road and for this purpose had come
to a stop opposite that arm of the Y intended for traffic
entering
Serena Road from the Driefontein Road He said that as he made his
turn the Plaintiff approached from behind and he was
not aware of the
Plaintiff until a collision took place. He says that he drove into
Serena Road and drew up as soon as he could
do so safely. He denies
having travelled through the other arm of the Y or having dragged the
Plaintiff under his vehicle.
These
two mutually exclusive, versions of the accident cannot both be true.
The
evidence of Plaintiff s father, although supportive of what the
Plaintiff says, does not assist in coming to a conclusion as
to which
of the two conflicting accounts of the collision can be accepted.
The
insured driver gave his evidence haltingly but he was obviously
troubled as English is not his first language. There was nothing
in
his demeanour which I find incompatible with the truth. The Plaintiff
was far more confident in delivering his account. On the
other hand
the Plaintiffs account is replete with improbabilities.
There
can be no good reason why the insured driver should have stopped
opposite the wrong arm of the Y in preparation to enter Serena
Road
It is hard to picture why the Plaintiff was not able to keep the
vehicle in front of him under sufficiently close observation
not to
be surprised by a sudden attempt to enter Serena Road at an
inopportune place and time.
Plaintiff
s description of the movements of the insured vehicle as being a
sudden emergence from its stream of traffic, to the opposite
side of
the road in the face of oncoming traffic, coming to a stop facing the
entrance to Serena road, a turn of some 270 degrees
from its original
direction of travel, is so bizarre as to be less likely than the
account on which the defendant relies.
The
Plaintiffs account seems to be an attempt to reconstruct the events
in such a way as to place the blame on the driver of the
insured
vehicle.
I
find that I cannot accept the Plaintiff s account as being more
likely than that of the insured driver. Accordingly I cannot find
that on the balance of probabilities it was the negligence of the
insured driver which caused the accident.
I
rule therefore that the Plaintiff has not proved that the accident
was due wholly or in part to any wrongful act of the insured
driver.
S
W SAPIRE
ACTING
JUDGE
Plaintiffs
Attorneys: JENS HEISE
…
............................
c/o
JULIAN KNIGHT & ASSOCIATES INC
…
............................
129
Murray Street
…
............................
Brooklyn
…
............................
PRETORIA
…
............................
Ref:
Mr. Knight/H98
…
............................
Tel:
011-740 8378
…
............................
Fax:
01 1-740 8379
Plaintiffs
Counsel: Adv P Stipp
Defendant's
Attorneys: IQBAL MAHOMED ATTORNEYS
…
.................................
Suite
786, 7
th
Floor Karl Kling Building
…
.................................
2621
Vermeulen Street
…
.................................
PRETORIA
…
.................................Ref:
B12782/CKTSOKU/RAF(PM)
…
................................
Tel:
012-324 2203
…
................................
Fax: 012-325 3061
Defendant's
Counsel: Adv R L Kayingo