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2010
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[2010] ZAGPPHC 93
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Blom v Road Accident Fund (7274/08) [2010] ZAGPPHC 93 (3 August 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 7274/08
Date:03/08/2010
In
the matter between:
R
BLOM PLANTIFF
And
ROAD
ACCIDENT FUND DEFENDANT
JUDGMENT
MOLOPA
J
In
this action the Plaintiff has instituted an action against the
Defendant for damages arising from a motor vehicle collision which
occurred on 13 April 2005 along the Harts water/Jan Kempdorp Road
between a motor vehicle with registration letters and number
BPD 872
NC ("the insured vehicle"), driven by one Muvhango Richard
Mukhari ("the insured driver/Mukhari"),
and a motor vehicle
with registration letters and number BMF 580 NC driven by the
Plaintiff.
When
the trial commenced, the Plaintiff made an application for separation
of liability and damages, i.e. separation of merits and
quantum in
terms of Rule 33 (4) of the Uniform Rules of the Superior Court ("The
Rules"), the Defendant's counsel indicated
that he had no
instructions from the Defendant to agree to separation of the merits
and quantum and that he left this in the hands
of the court. In
principle, in my view, there are no grounds upon which the Defendant
could oppose the application for separation.
They themselves did not
seem to be ready to proceed on quantum. On the facts before me I
granted an order for separation of the
merits from quantum in terms
of Rule 33(4) of the Rules. The matter thus proceeded on the merits
and the quantum was postponed
sine die.
As
already stated above, the two vehicles aforesaid, which travelling in
opposite directions, were involved in the collision in
question
herein. The Plaintiff seeks full liability from the Defendant. If the
driver of the insured vehicle is found to be negligent,
full damages
against the Defendant are recoverable by the Plaintiff. If the
Plaintiff is found to be contributory negligent then,
an
apportionment to his damages will be applied.
It
is common cause that a collision occurred on 13 April 2005 along the
Hartswater/Jan Kempdorp Road between the insured vehicle,
driven by
Mukhari and a motor vehicle driven by the Plaintiff. The allegations
in this regard are set out in paragraph 3 of the
Plaintiffs
particulars of claim read with paragraph 3 of the Defendant's plea
(pages 4 and 9 of the paginated papers).
The
issue for determination in this matter is whether the driver of the
insured vehicle was negligent as alleged in paragraph 4
(4.1- 4.9 of
the particulars of claim as amended) page 4 of the paginated papers,
and what degree of fault, if any, can be attributed
to the Plaintiff
in relation to the collision that occurred on 13 April 2005.
The
Plaintiff testified that he stays at house no. 36 Disa Road,
Bonitapark, Hartswater. That he is a police officer, constable
in the
South African Police Service, stationed at Hartswater, Northern Cape.
He
further testified that on 13 April 2005, on the day of the collision,
he was a police officer, stationed at Warrenton, and that
he stayed
at the same address as mentioned above, i.e. 36 Disa Road,
Bonitapark.
He
testified that the collision occurred between 22H00 - 23H00. That on
the day in question he was on duty at Warrenton police station;
that
he reported for work at approximately 8H30 and knocked off work at
22H00.
He
testified that he was driving back home, to Hartswater, when the
collision occurred. That he drove along the Jan kempdorp/Hartswater
road, that there is a crossing, T-junction, near Hartswater where
Piet Strydom road which leads to Pampierstad, intersects.
He
testified that he drove from South to North. That near the
crossing/intersection he saw a motor vehicle coming from the opposite
direction. That the on coming vehicle drove with its lights on
bright, and that he tried to show the insured driver with his dim
lights but the driver aforesaid did not react, and he (the Plaintiff)
moved towards the intersection and started driving slower.
That the
intersection aforesaid was on his left side.
He
further testified that there were single lanes for each lane of
travel, that there was a single lane only on his side. That he
was
driving his vehicle on the right hand side of the sketchplan depicted
on page 23 of Exhibit A.
He
testified that there was a vehicle coming from his opposite
direction. That there are lines that separate the two opposite lanes.
That the speed limit before the T-junction is 80 km per hour, and
that when he approached the intersection he drove at the speed
of 80
km per hour, and that when saw the other/insured vehicle coming from
the opposite direction with its lights on bright, he
reduced speed.
He
further testified that he tried to show the driver from the opposite
direction that his lights were on bight by switching his
lights on
and off, i.e. that he flickered for him/the insured driver that he
could not see.
He
testified that at the intersection he just saw lights from his right
side, and things happened quickly, he heard a thud, the
windscreen of
his vehicle broke and glasses got into his eyes and he could see
nothing. Further that he could not even see if the
oncoming/insured
vehicle's right indicator was on or not because it was at night, and
the lights (of the oncoming/insured vehicle,
which were on bright
shown into his eyes.
He
testified that the vehicle he collided with was a lton green Nissan
bakkie. That it was the same vehicle that came from the opposite
direction.
He
testified that the insured vehicle was supposed to have stopped
before it turned to its right to give him (Plaintiff) the right
of
way to pass, but that it did not stop. Further that he could not see
that the insured driver was going to turn because it was
dark, and
because his lights were on bright.
He
testified that the collision occurred in the lane in which he (the
Plaintiff) was driving. That he (the Plaintiff) had right
of way in
that lane. That after accident/collision the damage on his vehicle
was on the whole right side; and that the damage on
the insured
vehicle was on its front right side.
He
testified that after the collision his vehicle came to
stop/standstill just a little past the intersection, marked a with a
red pen on the sketchplan. That after collision the other/insured
vehicle stopped right across the intersection, on his, (the
Plaintiffs)
lane of travel, marked b with a red pen on the
sketchplan.
He
testified that there is nothing he could have done to avoid the
collision.
Under
cross examination he stated that he cannot remember what speed he
reduced to when he slowed down as he approached intersection
when he
saw the oncoming vehicle with bright lights on.
He
disagreed (with the version of the insured driver, as put to him)
that road in question had two (2) lanes. He further disagreed
(with
the version of the insured driver, as put to him) that the insured
driver had his lights on dim when he approached the intersection.
He
also disagreed (with the version of the insured driver, as put to
him) that he did not that flicker his (Plaintiff) lights to
show
insured driver that his lights were on bright, stating that he did
flick to him to show that he must switch to dim.
When
it was put to him that the insured driver says that he was indicating
to show his intention to turn right he stated that he
(Plaintiff)
could not see anything because it was dark and his (insured driver's)
lights were on bright, shining into his (plaintiff)
eyes.
When
it was put to him that can't deny that insured driver indicated his
intention to turn to the right, he (Plaintiff) stated that
his
(insured driver's) lights were on bright therefore he could not see.
He
disagreed (with the version of the insured driver, as put to him)
that the insured driver had stopped for him to pass, i.e. gave
him
the right of way.
He
(Plaintiff) reiterated that he could not see whether the indicator of
the insured vehicle was on because the headlights were
on bright.
He
indicated the point of impact with a
c
on the sketchplan, to
the extreme right of his lane of travel.
He
denied that the insured driver ever stopped to give him the right of
way, nor that the insured vehicle was stationary when the
collision
occurred. He further disputed that his vehicle had only one light on,
that his right side headlamp was not on. He stated
that his right
side headlight was damaged during the impact during this
accident/collision.
He
further stated that there is nothing else he could have done to avoid
the collision because he was already in the intersection,
that he
applied his brakes but when he was inside the intersection he could
see headlights from the right hand side coming towards
him and
thereafter he heard the impact; that he had already applied his
brakes because he could not see because of the bright lights
shining
directly into his eyes.
He
(Plaintiff) stated that he could not have swerved his vehicle to the
left.
Still
under cross-examination he stated that lights were coming towards him
during the time when insured vehicle was turning to
the right, after
he had warned him with his (Plaintiffs) lights that his (insured
driver) lights were on bright.
He
stated that he did not flicker his lights to warn insured driver, the
warning he gave was before he got to the intersection but
that the
insured driver did not react, that was before he could execute the
right turn. He further stated that he saw the insured
vehicle
approaching with bright lights before getting to the intersection,
and when he entered the intersection that's when he
could see the
lights flashing from the right side, that's when heard impact. He
said when approaching the intersection he saw the
insured vehicle
with lights on bright and warned him that his lights were on bright,
that he also said that he saw lights coming
to the right.
He
stated that saying, under cross-examination, that he (Plaintiff)
applied brakes is not new evidence because in evidence in chief
he
said that he slowed down, that to reduce speed he had to apply
brakes. That he did apply brakes to avoid the collision, but
did not
see in front because of the bright lights of the oncoming vehicle,
that is why he applied brakes.
He
stated that there were no other vehicles in the vicinity. That if he
had known that the insured vehicle was going to turn right
he would
have turned left before to avoid the collision, but did not foretell
the insured driver's conduct.
On
clarification by the court as to when did he see the oncoming/insured
vehicle for the first time he stated that he could not
estimate the
distance, that it was difficult for him to give an estimation.
Further,
on questioning by his counsel he stated that he could not say whether
the insured vehicle near or far away when he first
saw it because the
lights shown into his eyes.
On
questioning by the Defendant's counsel he stated that he saw the
point of impact that he marked c on the sketchplan, as well
as the
points he marked a and b [points where the says the respective motor
vehicles came to stop after the collision] respectively
after the
collision (not on the same day of the collision), when the police had
made some markings on the road in question.
That
concluded the evidence for the Plaintiff.
For
the Defendant one Muvhango Richard Mukhari (insured driver)
testified. He testified that on 13 April 2005 between 22H00 -23H00
he
was involved in a collision along Jan kempsdorp and Hartswater, that
he was coming from Hartswater to Pampierstad. That to go
to
Pampierstad he would have to turn right at Piet Strydom Road, and
head for Pampierstad. That he was driving at the speed of
60 km per
hour.
He
testified that when he approached the intersection where he had to
turn, on arrival there he turned a bit and indicated and stopped.
That a car came from the direction of Jan kempsdorp travelling down
the road, and the car aforesaid collided with him, hitting
him on his
right side front wheel. That his vehicle was stationery at the time
of the collision.
He
testified that the oncoming vehicle only had its right headlamp/light
on and it was on dim. That his vehicle's lights were all
on and they
were on dim.
He
testified that travelling from the direction of Hartswater towards
Jan Kempsdorp, but before reaching Jan Kempsdorp at the intersection
he was supposed to turn right to Pampierstad, and that is when the
collision occurred.
He
testified that there are road markings, e.g broken lines on the road
in question. That the road has two lanes on the either side,
i.e. it
is a dual carriage road on either side, that there were two lanes on
his lane of travel and two lanes on the Plaintiff's
lane of travel.
He
indicated the point of impact on sketch plan with an
E
, i.e as
the place where collision occurred.
He
disputed that his vehicle lights were on bright shortly before the
collision, maintaining that his lights were on dim. He also
disputed
that the Plaintiff flickered for him to show him that his lights were
on bright.
He
testified that there was nothing he could have done to avoid the
collision; that he had completely stopped and the Plaintiff
approached and hit him on his right side and the Plaintiff then
proceeded to the concrete island and ended there, that there was
nothing he could have done as he already had the intention to turn,
and there was nowhere he could not reverse because there were
other
vehicles from his rear end and if he could have reversed he could
have caused another accident.
Under
cross-examination he stated that before the accident came from
Hartswater, that he was working at Hartswater, and he had been
taking
people that were working to their respective homes. That he was a
driver and the people he had in his vehicle worked at
a furniture
manufacturer at Calicom Trading. That he worked for Calicom Trading,
he was a driver there.
He
further stated that it was his job to take people to work and back
home; that he also used to go and fetch/collect material used
to make
furniture from other places to Calicom Trading.
He
stated that on 13 April 2005 he started work at 7H00. That on that
day in question he spent the whole day in the factory because
it was
not busy; he had to wash some cars. That he knocked off at 17H00 and
there were people he had to deliver to their respective
homes and he
had to wait for them delivers them to knock off, and after delivering
them he would go back to factory and that is
where he slept.
He
further stated that on that day in question herein he knocked off at
17H00 and he waited for those who knocked off at 21H00 to
deliver
them. That after 17H00 he bathed in his room, made food, had supper
then waited for the 21H00 shift to knock off, he then
took them home.
He
stated that the employees aforesaid did not work full time, other
days they did not work, and sometimes they would all knock
off at
17H00 and each would use their own transport. That in that specific
week of 13 April 2005 it was only that day that he was
transporting
these people, he did not transport them everyday.
He
stated that on that day he had 9 people at the back of his vehicle
and they in front they were two (including him). He stated
that he
did not have contact with those people/employees because their
factory moved to Babelegi Industrial area in Hamanskraal.
He
reiterated that he was travelling towards Jan kempsdorp before the
turn off, and that he would have to turn right to get to Pampierstad.
That the other vehicle coming from Jan Kempsdorp towards Hartswater
had only one working lamp/light; that the right hand side lamp
was on
as he was facing the oncoming traffic and that that is what he had
told his counsel.
He
stated that when he approached the intersection he indicated before
he turned, i.e. that before he turned he indicated, that
before he
could even turn he had his indicator on, that on arrival there he
indicated and then turned and at that stage the indicator
was on,
that there was misunderstanding on what he had said earlier that he
turned a little bit and then indicated.
He
stated that after collision his vehicle remained stationery as
depicted on the sketch plan, that it shifted just a bit and the
Plaintiffs vehicle went on and stopped on the other side at F, that
after hitting the concrete pavement in the middle of the road
it went
and stopped at F outside the road.
He
further stated that the concrete pavement is the area marked G the
sketch plan. That the road in question herein is divided by
concrete
pavement and not by a line.
He
disputed that the Plaintiffs vehicle stopped at a as testified by the
Plaintiff, stating that his (Plaintiffs) vehicle after
impact with
him went straight to the concrete island in the middle of the road
and after hitting that concrete it swerved to the
point marked F
where it ended up.
He
further stated that after the impact the driver of the other vehicle
(Plaintiff) came out wanting to fight him; that he walked
from his
vehicle with his balled fists up. That Plaintiff however did not hit
him, they talked and police sorted that out and the
police arrived.
He stated that he did not tell his legal representative about the
fight, that the Plaintiff knows that he wanted
to fight; that it did
not come to who is wrong or not wrong, that the Plaintiff just came
ready to fight, that while they sorted
out the impeding fight his
colleagues phoned and the police arrived. He stated that he was not
cross with the Plaintiff.
He
disputed that his vehicle stopped at point b as testified by the
Plaintiff, reiterating that his vehicle did not move; he stated
that
he did not know why his counsel did not dispute not dispute the
Plaintiff's version.
He
further disputed that the point of impact was at c testified by the
Plaintiff, reiterating that the point of impact was at ;
stated that
he had told his counsel that the point of impact at , he does not
know why his counsel did not dispute , that the cars
are depicted
correctly but that the point of impact is not at at .
He
stated that his vehicle stopped at the point marked H on the sketch
plan, just between the lines/concrete dividing the two lanes
of
travel with the front of his vehicle at point H.
Still
under cross-examination he stated the road he was travelling on
before where he was to turn is a long straight road and he
can see up
to 5 km in front. That when he saw the Plaintiffs vehicle for the
first time he was about 300m away. That he was still
indicating,
before he could stop, when he saw it. That he was turning and had not
stopped when saw him.
He
stated that it took about 50 seconds, less than a minute from when he
stopped to when the collision occurred. That before he
stopped he saw
the Plaintiff's vehicle, he is sure of it. That before turning he
indicated, and that he had made a mistake yesterday.
He
stated that he did not see vehicle first when he stopped; that he saw
it earlier with one head lamp on, that he saw the Plaintiff's
vehicle
as approaching not only as he stopped. That the vehicle collided with
him on right front wheel, only on the right wheel.
He
stated that his vehicle was damaged on the right head lamp and right
front wheel, that if one hits the wheel it will automatically
hit the
lamp and that he is not guessing he knows it that if a person has to
come into contact with a wheel he will obviously first
come into
contact with lamp.
He
reiterated that there is nothing could do to avoid collision because
could not reverse because there were other vehicles at his
back.
That
he told his legal representatives about how accident occurred, that
the Plaintiffs vehicle was driving very fast prior to the
collision,
seen by the manner in which it approached, that it hit him and went
over the concrete pavement then to the left hand
side.
He
reiterated that the 300m is the time he saw Plaintiffs vehicle for
the first time, that when he stopped his vehicle Plaintiffs
vehicle
was nearby and it then hit him. That there were no other vehicles
except Plaintiffs vehicle when he stopped.
He
stated that the Plaintiffs vehicle was travelling fast and that it
could have been travelling at about 80km per hour.
On
questioning by the court he stated that the speed limit at the time
was 60km per hour because there are two garages on both sides
as well
as a taxi rank. That his indicator was yellow in colour. He also
stated that the damage he saw to the Plaintiffs vehicle
was that the
windscreen broken/shattered, further that the right side of Plaintiff
s vehicle had scratch marks.
That
concluded the evidence for the Defendant, and the evidence for the
whole case.
The
respective counsel argued that the versions of their respective
clients be accepted.
It
is so that there are two versions before this court.
On
the one hand the Plaintiffs evidence is to the effect that the
collision in question herein occurred as a result of the insured
driver, first, blinding him with his bright lights, as a result of
which he could not see his way properly; secondly, that the
insured
driver executed a right turn and proceeded to enter the intersection
without affording him (the Plaintiff) his right of
way; further that
since he was blinded by the insured driver's bright lights, he did
not see whether the insured driver indicated
or not.
On
the other hand there is the version of the insured driver that at all
material times, the lights of his vehicle were on dim.
That he
indicated his intention to turn right, and when he reached the place
where he was supposed to turn he stopped, that his
vehicle was
completely stationary and the Plaintiff hit the right wheel of his
vehicle while he was so stationery.
Also
there are two versions on the speed limit on the road in question, as
well as on the respective lanes of travel on each side
of the road,
as well as on how the two (opposite) sides are divided.
In
this regard, the Plaintiff, on the one hand testified that the speed
limit on the road in question was 80 km per hour; that there
were
single lanes each on either side. His version also, as emphasised by
his counsel, is that the two sides are separated with
lines.
On
the other hand the insured driver on the other hand testified that
the speed limit on the road in question is 60km per hour;
that there
are two/dual lanes on either side; also that the two sides are
separated with a concrete pavement.
There
is also two versions on the point of impact. However, if one looks at
the points indicated by the Plaintiff and the insured
driver on page
23 of Exhibit A, on the sketch plan, c and E respectively, it is
clear in my view that the areas/spots indicated
are almost adjacent,
they are much nearer the centre line, it is just that the one (E) is
nearer the demarcating line whereas the
other (c) is more to the
middle of the road.
It
is trite that where a court is sitting with two versions it must look
at the credibility of the witnesses. In this case there
was one
witness each on both sides, the Plaintiff and the insured driver
respectively. Neither party called any independent witnesses
like the
police officers who attended to the scene of the collision. Even the
sketch plan on page 23 of Exhibit A was merely used
for clarity
and/or as a guideline since the person who prepared it never gave
evidence.
It
is so that counsel for the Plaintiff submitted that the insured
driver was not a credible witness, and that the Plaintiff's version
was more credible.
Looking
at the evidence of the Plaintiff there is a contradiction as to when
and how he was blinded by the insured driver as he
alleges. On the
one hand he says that as he was facing the oncoming vehicle the
bright lights shone into his eyes such that he
could not even
estimate from what distance he first saw the insured vehicle and/or
the bright lights in question. It was very clear
to me that on this
aspect of when did he (the Plaintiff) see the insured vehicle the
first time he was very evasive and dodgy,
he simply and deliberately
avoided this question, did not want to tie himself to any specific
distance. This aspect is very crucial
to assess what evasive step one
could have taken.
On
the other hand, when confronted with whether he saw the indicator of
the insured vehicle he states that he could not see the
indicator
because the bright lights coming from his right side (no longer from
the front), pierced into his eyes thus he could
not see.
The
plaintiff also contradicts himself on whether he applied his brakes
or not. In his evidence in chief he testified that the only
evasive
step that he took was by reducing his speed, even here he avoids to
answer to what speed did he reduce his speed, he was
very evasive in
this regard. In cross examination he testified that he applied his
brakes because to reduce speed means that he
reduced his speed. That
cannot be so in my view; to reduce speed does not necessarily mean
that one has applied one's brakes. On
a balance of probabilities he
did not even reduce his speed. If he had applied his brakes he would
have said so from the beginning.
On
his own version he (the Plaintiff) at 80km per hour he was driving at
an excessive speed. If one has regard to the undisputed
evidence of
the insured driver that the area was a built up area, then it is a
well known fact that the speed limit was 60km per
hour.
In
my view the insured driver was more credible than the Plaintiff. As
already stated above the Plaintiff avoided answering crucial
questions, e.g. about the indicator, and how far was insured vehicle
when he first saw him, he is a police officer, surely it is
not
impossible to estimate how far one would have seen the bright lights
(as he alleges) before the collision. Plaintiff does not
seem to be
taking this court into his confidence.
The
Plaintiff bears the onus to prove his case on a balance of
probabilities.
On
the versions of how many lanes each side of travel had, it is
difficult for this court to believe that there were single lanes
each
as alleged by the Plaintiff He merely says there was a single lane,
there are no photos indicating how the lanes were at the
time of the
collision. No municipality official and/or any other independent
witness was called to confirm this; surely this is
a simple issue
which Plaintiff could have easily proved; obviously this goes to the
aspect of why did he not move or swerve to
the left lane to avoid the
collision.
In
my view the evidence of the insured driver that the were two lanes on
each side is more probable. Though the sketch plan on page
23 of
Exhibit A was not necessarily proved, it clearly shows that there
were two lanes on each side, hence I say that I have no
reason not to
believe the insured driver who says that the were two lanes on each
side.
In
fact to me the insured driver was a more impressive/credible witness
than the Plaintiff. He answered all his questions openly,
honestly
and with conviction, save that there was some confusion as to when he
started indicating his intention to turn.. One could
sense from how
he answered that he answered honestly, despite rigorous
cross-examination. The Plaintiff on the other hand was evasive.
On
the totality of the evidence before this court I find that the
Plaintiff drove at an excessive speed, that he did not keep a
proper
look out, and that he did not take any evasive action to avoid the
collision.
On
the other hand I find that the insured driver did not drive with his
headlamps on bright as alleged by the Plaintiff. I also
find that he
did indicate his intention to turn to the right, though, in my view
he did not indicate timeously, i.e. he indicated
when he was already
much nearer the place where he was going to turn. I also find that
the insured driver had stopped his vehicle
prior to turning towards
Pampierstad, however, on his own version I find that at the point,H,
which he himself indicated to have
stopped and how he had stopped,
his vehicle slightly protruded onto Plaintiffs lane of travel. The
Plaintiff on his own version
drove on the extreme right of his lane,
much closer to the centre line, hence the collision; and because on a
balance of probabilities
he did not keep a proper look out he (the
Plaintiff) did not swerve to his left to avoid the collision.
On
all the facts before me, set out above, and on a balance of
probabilities. I find that the Plaintiff was more to blame for the
collision, and that the insured driver was less to blame for the
collision.
As
already mentioned above, this is a case where in my view negligence
can be attributed to both the Plaintiff and the insured driver.
In my
considered view the Plaintiff is 60% negligent and the insured driver
is 40% negligent. The Plaintiff thus succeeds on 40%
of his claim.
In
the result the Defendant is thus ordered to pay 40% of the Plaintiffs
proven damages, as well as the Plaintiffs costs. Such costs
to
include the costs of 21, 24 and 25 August 2009.
Molopa-Sethosa
J
JUDGE
OF THE HIGH COURT