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Mlenga v Road Accident Fund (12014/2008) [2011] ZAGPPHC 12 (31 January 2011)

75 Reportability
Personal Injury Law - Road Accident Fund
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Brief Summary

Tort — Negligence — Motor vehicle collision — Plaintiff involved in a collision with a vehicle driven by the first insured driver after attempting to overtake a kombi driven by an unidentified driver — Plaintiff alleges negligence on part of both insured drivers — Court required to determine liability and degree of fault — Plaintiff's testimony indicated that the kombi accelerated, closing the gap and preventing safe return to lane — Court finds that the actions of the kombi driver contributed to the circumstances leading to the collision, impacting the assessment of negligence.

Comprehensive Summary

Summary of Judgment


Introduction


The proceedings were a delictual damages action arising from a motor vehicle collision. The plaintiff, Mhlupheki Simon Mlenga, sued the defendant, the Road Accident Fund, for compensation on the basis that the collision was caused by the negligence of one or more insured drivers for whose conduct the Fund was liable.


At the commencement of trial, the plaintiff applied for a separation of issues in terms of Rule 33(4). The application was unopposed, and an order for separation was granted. The trial therefore proceeded on the merits (liability) only, while the determination of quantum was postponed sine die.


The dispute concerned who (if anyone) was negligent in causing the collision on the N12 Potchefstroom–Johannesburg road on 3 September 2005. The pleaded cases implicated (i) the driver of a Toyota Tazz (the first insured vehicle) driven by W A Martinson, and (ii) an unidentified kombi/minibus (the second insured vehicle) driven by an unidentified driver. The plaintiff sought full liability against the Fund, alternatively liability subject to apportionment if contributory negligence were established.


Material Facts


It was common cause that a collision occurred on 3 September 2005 on the N12 between the plaintiff’s vehicle (a BMW) and the first insured vehicle (the Toyota Tazz driven by Martinson). It was also not in dispute that the road was tarred, that there was one lane in each direction, and that on the afternoon in question the weather was clear with good visibility.


The plaintiff’s account, which the court treated as largely unrebutted in its material aspects relating to the unidentified vehicle, was that he had been driving behind an unidentified kombi travelling slowly in his direction of travel. He decided to overtake, believing there was sufficient space ahead of the kombi (between the kombi and a vehicle in front of it) and sufficient distance from oncoming traffic to execute the manoeuvre safely.


According to the plaintiff, once he was committed to the overtaking manoeuvre and was on the incorrect side of the road, the kombi accelerated and closed the gap into which the plaintiff intended to move to return to his correct lane. The plaintiff further stated that vehicles behind him also closed up, leaving him unable to fall back behind the kombi. He then moved onto the gravel shoulder on the far side (the outside of the oncoming lane), applied brakes, and generated dust. He claimed he came to a standstill on the gravel and did not re-enter the tarred roadway, after which the Toyota Tazz collided with him near the edge of the gravel.


The first insured driver (Martinson) confirmed that, as he drove towards Johannesburg, he observed dust on the left side of his lane of travel and then saw the plaintiff’s BMW on the gravel. He testified that the BMW was losing control and came towards his lane, colliding with his vehicle on the passenger side. He also stated that other vehicles in front of him (including vehicle “B” referred to in the evidence) had safely passed before the collision occurred.


The parties’ material factual disputes centred on whether the plaintiff’s vehicle had in fact come to a complete standstill on the gravel before impact, and whether the collision occurred because the BMW moved into Martinson’s lane versus Martinson veering towards the gravel in reaction to the dust and the unexpected situation. The court noted discrepancies in Martinson’s description of the point of impact and contrasted his oral evidence with aspects of his earlier statement and sketch.


Legal Issues


The central legal questions were whether the collision was caused by the negligence of the first insured driver, the second insured driver (unidentified kombi), or both, and whether any contributory negligence should be attributed to the plaintiff.


The dispute primarily required the court to determine the application of legal standards of negligence and causation to contested facts, assessed on a balance of probabilities, including an evaluative assessment of credibility and probability where the parties’ versions conflicted.


A further issue, implicit in the separated merits enquiry, was the extent to which the Fund would be liable if negligence were attributed solely to an unidentified driver, and whether the evidence established that such driver’s conduct was the factual and legal cause of the collision.


Court’s Reasoning


The court approached the matter on the basis that the plaintiff bore the onus to prove negligence on a balance of probabilities. It analysed the evidence against the pleaded allegations of negligence and considered whether the plaintiff had established that the collision was caused by one or both insured drivers, and whether the plaintiff himself contributed to the collision.


A significant aspect of the court’s reasoning was that the plaintiff’s evidence about the presence and conduct of the unidentified kombi—specifically that it accelerated during an overtaking attempt and blocked the plaintiff’s return to his lane—stood undisputed in material respects. The court recorded that the defendant did not lead evidence to rebut this version and that the defendant’s counsel ultimately conceded during argument that the evidence could not be disputed on this point. On this basis, the court accepted that the overtaking manoeuvre was thwarted by the second insured driver’s conduct and that this created the emergency situation in which the plaintiff found himself.


In relation to the conflict between the plaintiff and the first insured driver on the mechanism of impact, the court evaluated internal consistencies, corroboration, and probabilities. It observed that Martinson’s evidence was not convincing in key respects, including that on his own version he did not see the plaintiff prior to the dust, that his wife allegedly drew his attention to the BMW (but she did not testify), and that there were differences between his statement and his oral testimony. The court also considered that Martinson did not provide a clear and consistent indication of the point of impact, while the plaintiff identified it with reference to the sketch plan.


The court then used the physical probabilities (including the damage patterns visible from the photographs and the location near the edge of the roadway) to conclude that, on a balance of probabilities, the collision occurred near the verge of the gravel shoulder, close to where the plaintiff indicated. At the same time, the court was not persuaded that the plaintiff’s BMW had reached a complete standstill before impact, reasoning that the damage suggested ongoing movement at the moment of collision. The court also inferred that Martinson, confronted by dust and uncertainty and having not observed the plaintiff earlier due to vehicles ahead, likely veered left in confusion rather than executing the evasive action he described (moving right), thus contributing to the convergence near the gravel verge.


Despite these findings about how the impact likely occurred, the court made an evaluative judgment that, in the circumstances confronting both the plaintiff and Martinson, fault should not be attributed to either of them. The court treated the situation as one of sudden emergency produced by the conduct of the unidentified kombi driver, concluding that neither the plaintiff nor Martinson could reasonably be said to have caused the collision through negligent driving in the circumstances they faced.


The court identified the source of the mishap as the conduct of the second insured driver, describing it as grossly negligent and characterising it as deliberate obstruction of the plaintiff’s return to his lane during overtaking. The court found that this conduct forced the plaintiff onto the gravel and set in motion the conditions that culminated in the collision. On the accepted facts, the court held that the second insured driver was negligent in the respects pleaded by the plaintiff and was solely to blame for the collision.


Outcome and Relief


The court upheld the plaintiff’s claim on the merits and held the defendant liable for the plaintiff’s proven damages, with the quantification of damages standing over due to the prior separation of issues.


The defendant was ordered to pay the plaintiff’s costs of suit. The matter of quantum remained postponed sine die pursuant to the Rule 33(4) separation order.


Cases Cited


No case authorities were cited in the judgment.


Legislation Cited


No legislation was cited in the judgment.


Rules of Court Cited


Uniform Rules of Court, Rule 33(4).


Held


The court held that the plaintiff proved on a balance of probabilities that the collision was caused by the negligence of the unidentified kombi driver (second insured driver), who accelerated during the plaintiff’s overtaking manoeuvre and blocked the plaintiff’s return to his lane, thereby creating the emergency that led to the collision.


The court further held that, in the circumstances, no fault was attributed to either the plaintiff or the driver of the first insured vehicle (Martinson). The defendant, as Road Accident Fund, was held liable for the plaintiff’s proven damages, and the plaintiff succeeded with costs.


LEGAL PRINCIPLES


The judgment applied the principle that the plaintiff bears the onus of proving negligence and causation on a balance of probabilities in a delictual claim for damages arising from a motor vehicle collision.


It also applied the approach that factual disputes are resolved through an assessment of credibility, consistency, corroboration, and inherent probabilities, including where appropriate the court’s evaluation of physical probabilities derived from objective features such as the likely point of impact and the nature of vehicle damage.


A further principle applied was that where a party’s version on a material issue stands unrebutted—particularly where the opposing party leads no evidence to contradict it—the court may accept that version if it is coherent and probable in the context of the overall evidence.


Finally, the judgment reflected the evaluative principle that when drivers are confronted with a sudden emergency not of their own making, fault is not necessarily attributed to their reactive conduct if, in context, it cannot be characterised as negligent; the court treated the emergency as having been created by the grossly negligent conduct of the unidentified driver.

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[2011] ZAGPPHC 12
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Mlenga v Road Accident Fund (12014/2008) [2011] ZAGPPHC 12 (31 January 2011)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO:12014/2008
DATE:31/01/2011
In
the matter between:
M.
S.
MLENGA
.................................................................................................
PLAINTIFF
And
ROAD
ACCIDENT
FUND
.............................................................................
DEFENDANT
JUDGMENT
MOLOPA-SETHOSA
J
The
Plaintiff, Mhlupheki Simon Mlenga ("the Plaintiff") has
instituted an action against the Defendant for damages arising
out of
a motor vehicle collision which occurred on 03 September 2005 along
the Potchefstroom-Johannesburg road, between a motor
vehicle with
registration letters and number DMB 565 NW ("the lst insured
vehicle") there and then being driven by one
N A MARTINSON ("the
1
st
insured
driver") and a motor vehicle with registration letters and
number CHK 383 NW, there and then being driven by the Plaintiff;
also
involving an
unidentified motor vehicle ("the 2
n
insured vehicle" or "kombi") driven by an unidentified
driver ('the 2
nd
insured driver").
When
the trial commenced, the Plaintiff made 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, which
application was not opposed by the Defendant
and the order for
separation was granted. The matter thus proceeded on the merits only
and the quantum is postponed
sine
die.
The
Plaintiff seeks full liability from the Defendant. If the driver of
the 1
st
insured vehicle, alternatively, if the driver of the 2nd insured
vehicle is found to be negligent, further alternatively, if both

insured drivers are found to be jointly 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 03 September 2005 along
the Potchefstroom-Johannesburg road, between a motor vehicle
with
registration letters and number DMB 565 NW ("the 1st insured
vehicle") there and then being driven by N A MARTINSON
("the
1
st
insured
driver") and a motor vehicle with registration letters and
number CHK 383 NW, there and then being driven by the Plaintiff.
The
issue for determination in this matter is whether the driver of the
1
st
insured vehicle was negligent as alleged in paragraph 4 (4.1.1-4.1.8
of the particulars of claim) page 5 of the paginated papers,
or
whether the driver of the 2nd insured vehicle was negligent as
alleged in paragraph 4 (4.2.1-4.2.9 of the particulars of claim)

pages 5 and 6 of the paginated papers; and whether the Plaintiff was
negligent as alleged in paragraph 4 (4.1.1-4.1.7 of the Defendant's

plea) page 12 of the paginated papers, and/or what degree of fault,
if any, can be attributed to the Plaintiff in relation to the

collision that occurred on 03 September 2005.
The
Plaintiff, Mr Mhlupheki Simon Mlenga ("Plaintiff ') testified
that on 3 September 2005 he was involved in an accident/collision

which occurred at around 15H30 along the N12, viz. the
Potchefstroom-Johannesburg road. Further, that on the day the
collision
took place the sun was shining, and that visibility was
very clear. That the road where the accident took place is a tarred
road.
He
confirmed that the road in question has one lane on each direction;
i.e. the lane going Southern direction towards Potchefstroom
and the
lane going Northern direction towards Johannesburg, as depicted in
the sketch plan marked Exhibit A.
He
testified that on the day in question he was driving behind a kombi
(mini bus)/the 2
nd
insured vehicle, and while still behind it he noticed that the kombi/
the 2
n
insured vehicle was travelling slowly and that there was enough/ample
space in front of the 2nd insured vehicle, for him to overtake
the
kombi/2
nd
insured vehicle. Further that there were other vehicles travelling
behind him, and other vehicles in front of the kombi, in the
same
direction as him and the kombi/ the 2
nd
insured vehicle prior to the collision.
He
testified that the space between the kombi/2
n
insured vehicle and a vehicle marked A on Exhibit A. which vehicle
was in front of the kombi/2 insured vehicle, was enough/ample
space
for him to safely overtake the kombi and move in between the kombi
and motor vehicle A. Further, that in the position he
was behind the
kombi and in overtaking it there was enough space in between him and
a motor vehicle marked B on Exhibit A, approaching
from the opposite
direction, to execute the overtaking without hindrance.
He
testified that when he took action to overtake, the kombi/2
nd
insured
vehicle, which was in front of him, suddenly accelerated and closed
the gap between him and motor vehicle A. That when the
kombi started
accelerating he/the Plaintiff was on the other side of the centre
line in the opposite lane of travel, at the point
marked XI on
Exhibit A. That when he was at point XI and the kombi/2 insured
vehicle started accelerating, it was not possible
for him to go back
to his side/lane of travel because the two vehicles which had been
travelling behind him had already closed
the space/gap towards the
kombi, he therefore could not fall back into his lane again. Further
that there was no longer a gap between
the kombi/2
nd
insured vehicle and motor vehicle A, and thus there was no space for
him to move in, the space was closed by the 2
nd
insured
driver.
He
further testified that while he was at position XI there was
sufficient distance between him and motor vehicle B; that there
was a
gap-He testified that since he could not get between the kombi/2
nd
insured
vehicle and motor vehicle A, nor behind the kombi/2
nd
insured vehicle since other vehicles had closed the gap, he went
outside the road. That he moved to his right hand side, out of
the
road that comes from the Potchefstroom to Johannesburg side, to the
point marked X2, (On the outside gravel portion of his
opposite lane
of travel). That when he moved out of the road to his right side, to
point X2 aforesaid, travelling to the direction
of Potchefstroom, he
applied his brakes and there was dust; that motor vehicle B passed
him, and that as he applied his brakes
his motor vehicle came to a
standstill on the gravel part on the side of the road and there was
dust.
He
testified that he did not loose control of his vehicle, that it came
to a standstill, and that when it came to a standstill he
was on the
gravel side of the road. Further that he did not, at any stage, move
back into the tarred road into the lane of travel
of Potchefstroom to
Johannesburg.
He
further testified that when the dust started to go down a Toyota Tazz
motor vehicle, the l
sl
insured vehicle collided with him outside the road at the point
marked X3 on Exhibit A.
He
testified that the front portion of his vehicle was hit/struck by the
Tazz/the 1
st
insured vehicle. That at the time of the accident he did not know/see
which part of the Tazz/the 1
st
insured vehicle hit the front of his vehicle. That there was still
some dust when the collision occurred.
Further
that looking at Photo no.2 in Exhibit B his BMW motor vehicle was
totally damaged in front and that it was written off.
Further that
subsequent to the collision he realised that it was a typical head on
collision.
Further
that looking at Photos 3, 4 and 5 of Exhibit B the damage to the
Tazz/the 1
st
insured vehicle is on the left front side and left corner. That
looking at Photo 2B damages were more on his side, and there were
no
damages on the passenger side to the back of his vehicle on the left.
He
testified that when he tried to overtake, it was safe to do so; that
there was enough/ample space and time to do so and to move
around and
in front of the kombi/2
nd
insured vehicle. He further testified that when he realised that he
could not overtake nor could not go/fall back to his side/lane
of
travel, the only action he could take was to move to the right,
outside the road. And that in moving out towards his right he
did not
collide with motor vehicle B; that motor vehicle B had ample time to
pass him safely.
He
testified that the collision happened after he had applied his
brakes, and having stopped. That there was nothing he could have
done
to avoid the collision other than to move outside the road, that
otherwise there would have been a huge accident and all the
cars were
going to be involved in the accident; so he took the best action he
could under the circumstances to try to avoid the
collision.
He
further testified that if the kombi/2
nd
insured vehicle did not accelerate and close the gap between itself
and motor vehicle A, he would have had ample time and opportunity
to
move in between the kombi/2
nd
insured
vehicle and motor vehicle A. Further, that according to him the
problem was caused by the kombi/2
nd
insured vehicle when the 2
nd
insured
driver accelerated and closed the gap.
He
testified that while busy executing the overtaking movement he did
not at all in any way foresee that the kombi/2
nd
insured vehicle is going to accelerate and close the gap. That the
reason why he wanted to overtake the kombi/2
nd
insured vehicle is because at the time the kombi/2
nd
insured vehicle was travelling very slow. Further that when he moved
outside the road coming to a standstill at point X3 aforesaid
he did
not at all think that Tazz/ 1
st
insured vehicle would collide with him.
Under
cross-examination he stated that the collision occurred on the right
hand side, on the outside of the road.
He
further stated that he has had his driving license for about 10
years, and that with his level of experience as a driver, before

overtaking one must first check the vehicles behind one and check in
front if there is any car that is coming.
He
stated that when he was trying to overtake he was already in the
opposite direction lane, i.e. the Potchefstroom to Johannesburg
lane.
He reiterated that the driver of the unidentified vehicle, the 2
nd
insured driver, accelerated when he/Plaintiff tried to overtake.
He
further stated that when he when he tried to overtake the kombi/2
nd
insured vehicle there were no cars approaching from the opposite
direction at that stage, stating that he cannot overtake if there
is
a vehicle in front of him on/from the opposite direction.
He
stated that the road in question was a straight road. That when he
was in the opposite lane while overtaking and the road being

straight, he saw- the approaching motor vehicle B for the first time
when it was still far, approximately 38m away. That he did
not know
at what speed the motor vehicle B and the 1
st
insured driver were driving as it is impossible to can know or say.
He confirmed (from what was put to him by Defendant's counsel),
that
there is a possibility that they (vehicle B and the 1
st
insured driver) were driving at high speed to close up the gap
quickly.
He
stated that he does use the road in question frequently; that he is
used to the road, and further that it is a very busy road.
He
further stated that when he started to manoeuvre to overtake the
kombi/2
nd
insured vehicle, it was safe to do so, that if the driver of the
kombi/2
nd
insured vehicle had not decided to accelerate, he/Plaintiff had ample
time to overtake: confirming (as put to him by Defendant's
counsel),
that the 2
nd
insured driver accelerated thus refusing him access to go back into
his (correct) lane, and that the vehicles approaching from
the
other/opposite direction were 38m away.
He
stated that when he overtook he was travelling at 120km p/h; that
before he overtook he was driving at 110km p/h, and he increased
his
speed with 10km p/h when he overtook.
He
stated that what caused the accident, according to him, was the
kombi/2
n
insured vehicle. That when he realised that the kombi/2
nd
insured
vehicle did not give him space to pass by he immediately went out to
the gravel surface of the road.
He
further stated that between him and the insured drivers it was the
1
bt
insured driver who created a situation of emergency because motor
vehicle B, which was in front of the 1
st
insured vehicle, had managed to pass him. He stated that according to
him the 1
st
insured driver could not see what was happening beyond motor vehicle
B.
He
reiterated that seeing that he could not go back to his lane since
the kombi/2
nd
insured driver had closed the space, he had swerved to his right on
the opposite direction, and that he applied his brakes when
he
entered the gravel road and he stopped, and that there was dust.
He
stated that it is the 1
st
insured driver who bumped into his vehicle; that he did see the 1
st
insured driver when he/the 1
st
insured driver bumped him, moving towards him. That when he applied
the brakes of his vehicle the dust rose; the other car, vehicle
B
passed and the 1
st
insured driver bumped into him. Further, that the collision occurred
where he stopped at point X3 and that the distance between
X3 (where
he stopped) and X2 (where he went off the road on the opposite
direction) is approximately 4m. He stated that when he
came to a
standstill it did not take time before the accident occurred.
He
denied that he was the one who created an emergency by driving on his
wrong side of the road, stating that when he drove on his
wrong side
of the road he was trying to avoid the accident.
He
further denied that he overtook when it was an inopportune time for
him to do so, stating that it was safe for him to overtake
because
there was ample space.
He
also denied (as the version of the 1
st
insured driver was put to him by the Defendant's counsel), that
he/Plaintiff is the one who bumped him/l
sl
insured driver inside on his correct lane of travel.
Under
re-examination he stated that prior to overtaking he was aware of
vehicles coming from the opposite direction, but that the
car was
very far. Further, that at that stage his focus was on the kombi/2
nd
insured vehicle and the manoeuvre that he was doing to overtake.
He
further stated that after he moved to the right hand side of the road
and came to a standstill at point X3, motor vehicle B passed
him
safely on its lane to his left; that if the 1
st
insured driver had continued on his lane the accident would not have
occurred; that he/the
1
insured
driver would not have collided with him because he/Plaintiff was on
the side of him.
On
a question from the court he stated that the speed limit on the road
in question is 120km p/h.
That
concluded the Plaintiffs evidence, and that was the case for the
Plaintiff.
The
Defendant led the evidence of the 1
st
insured driver, Willem Adolph Martinson ("the 1
st
insured driver
1
'
or "Martinson"). He confirmed that he is aware of accident
that occurred on 03 September 2005, and that he was involved
in the
collision aforesaid.
He
testified that on the day in question he was driving on the N12 road
coming from Potchefstroom towards Johannesburg, and his
wife was with
him; that they were not married at the time and they were on their
way to pick up his parents in law (his wife's
parents) from the
airport.
He
testified that before the collision occurred there was another
vehicle in front of him travelling in the same direction as him,
viz.
a Honda Jazz (motor vehicle B aforesaid). That he can't remember if
there were any vehicles behind him; and that there were
vehicles
approaching on the opposite direction travelling on the other lane.
He
testified that they were driving to Johannesburg in their lane when
they saw the dust of the gravel road going up; they saw a
BMW
(Plaintiffs vehicle) on his left hand side on the gravel road,
driving there and loosing control, coming towards them; his
wife
pointed out to him to look at that car/BMW. It came towards them and
hit them on the passenger side where his wife was sitting.
He
testified that when he first saw the vehicle (BMW) coming towards him
he did not move towards his right because there was oncoming
traffic
in the lane on the other side. That to try to avoid the collision he
tried to avoid the car/BMW by going to the right hand
lane but
couldn't because there was oncoming traffic, and when there were no
more cars, just when he wanted to go to his right,
the BMW hit them
on the left side on the passenger side.
He
further testified that when the collision occurred he was basically
in his lane and the BMW came from the gravel road into the
tarred
road and connected with them/l
sl
insured vehicle in that lane.
He
testified that before the collision he did not see the BMW because
there were vehicles in front of him. That what he thinks caused
the
accident is that the Plaintiff tried to pass vehicles on his side and
he could not, so when he couldn't make it he went to
the gravel road
and lost control on the gravel road and hit them. That therefore he
thinks that the Plaintiff is the one who caused
the accident. I may
state here that this is pure speculation, not what he/ 1
st
insured driver observed or know for a fact; neither was this
speculation y the 1
st
insured driver confirmed by anyone as a fact.
He
further testified that while he was driving he never left his
lane/path of travel, but that when the car/BMW hit him it hit him
to
the other side of the road. I may mention here that there is no
evidence before this court of where the respective vehicles
landed
after the collision.
He
testified that the damage to his vehicle was on the front left wheel
on the passenger side. That looking at the photos, Exhibit
B, the
damages on the Plaintiffs vehicle was on the front side.
He
testified that he does not think that there was any means/way he/l
st
insured driver could have avoided the collision.
Under
cross-examination he stated that the first time when he observed the
BMW it was already on the gravel portion of the road,
to the left of
his lane of travel. That he did not see the BMW before it came to
gravel road because there were other vehicles
in front of him
obscuring the BMW. Further, that he cannot say what made the BMW to
go to the gravel road. That if there were any
emergency or
difficulties with which the BMW was faced with, which caused it to
move onto the gravel road, he would not deny it
because he would not
know about it.
He
confirmed his statement on page 1 of Exhibit B. He further confirmed
that on his sketch on page 1 of Exhibit B he placed the
BMW on his
left hand side right on the edge of the road totally away from the
other vehicles.
He
further confirmed that when the BMW went to the gravel there was a
lot of dust, stating that he could still (despite the dust)
see what
was happening; that he could see the BMW and in which direction it
was going to travel. Further that the accident happened
at a split of
a second and that he could not have taken any evasive action because
he knew the BMW was coming in that direction
so he needed to get out
of the way.
He
confirmed and agreed (on what was put to him by Plaintiffs counsel)
that the Plaintiff went off to the gravel road and braked
hard to try
to bring the BMW to a standstill therefore the extensive dust coming
from the gravel.
He
denied that he got a fright when he saw the dust and swerved to his
left to avoid whatever was coming on and collided with the
BMW on the
gravel road.
He
agreed that he cannot say what made the BMW to move onto the gravel
portion of the road. Further, he conceded that when he first
saw the
BMW it was in a peculiar and an unfamiliar situation that he did not
expect. That even if the BMW lost control it cannot
necessarily be
said that the Plaintiff was negligent.
He
agreed that other vehicles that were in front of him safely passed
the BMW on his left without being hit (by the BMW).
He
stated that he has been driving for approximately 8yrs; further, that
he accepts that once one looses control of a vehicle there
is nothing
one can do about it.
He
agreed that none of them (him and/or the Plaintiff) could have
avoided the collision.
That
concluded the evidence for the Plaintiff and the evidence pertaining
to the whole case.
At
the end of all evidence both counsel argued their respective cases.
As appears from the evidence set out above, each side i.e.
the
Plaintiff and the Defendant presented the evidence of one witness
each, viz. the Plaintiff himself and the 1
st
insured driver/Martinson.
It
is trite that the Plaintiff bears the onus to prove his case on a
balance of probabilities; in this case that the collision was
caused
by the negligence of either the 1
st
insured driver or the 2
nd
insured driver or both insured drivers as alleged in paragraph 4 of
his Particulars of claim.
On
the evidence of the Plaintiff, the gist of his case is that the
collision occurred because the 2
nd
insured driver accelerated and closed the space/gap in which the
Plaintiff was supposed to go in when the Plaintiff attempted to

overtake him, thus necessitating that the Plaintiff move over/swerve
to the gravel portion of the road on the opposite side/lane
of
travel. In fact the Defendant did nit lead any evidence whatsoever to
rebut the Plaintiffs evidence that there was a kombi,
the 2 insured
vehicle, which accelerated and blocked his way to get back into his
lane of travel when he tried to overtake it,
causing him to
eventually swerve to the gravel side of the opposite lane of travel,
thus leading to the collision in question herein.
I may mention here
that counsel for the Defendant, in fact during his argument conceded
that he cannot dispute that the 2
nd
insured driver accelerated and closed the space/gap in which the
Plaintiff was supposed to go in when the Plaintiff attempted to

overtake him, thus necessitating that the Plaintiff move over to the
gravel portion of the road on the opposite side/lane of travel.
Counsel
for the Defendant however, contends that the Plaintiff took long to
take any evasive action and/or that he overtook at an
inopportune
time and when it was not safe to do so. On the evidence before this
court that cannot be so. The Plaintiff gave a full
account of the
action/steps he took when he realised that the 2
nd
insured driver was blocking his way of getting back into his lane of
travel by closing the space/gap between his/kombi's and vehicle
A.
this is further dealt with below.
The
Plaintiff further contends that while on the other side of the road
aforesaid, the 1
st
insured driver/Martinson lost control of his vehicle and came over to
the gravel road and collided with him, which is disputed
by the 1
st
insured driver, who in turn contends that it is the Plaintiff who
lost control of his vehicle and came over into his lane of travel
and
collided with him.
From
the evidence before this court, the Plaintiff maintains that when he
did not see his way in getting back into his lane of travel
after the
kombi/2
nd
insured vehicle (and the vehicles following it) had blocked his way
from getting back into his lane of travel, he moved/swerved
over to
his right to point X2 of Exhibit A, onto the gravel portion of the
road on the opposite side, where he applied his brakes,
thus causing
a lot of dust, and that his vehicle then came to a standstill at
point X3 of Exhibit A, which is about 4m from point
X2 aforesaid.
The
1
st
insured driver corroborates the Plaintiff that at some stage the
Plaintiff was driving on the gravel portion of the road on his
left
side and that there was a lot of dust coming from the gravel road.
The Plaintiff further maintains that after his vehicle
had come to a
standstill at point X3 aforesaid, the 1
st
insured driver lost control of his vehicle and came over to the
gravel portion of the road and collided with him at point X3, and

this is disputed by the 1
st
insured driver.
On
the other hand the 1
st
insured driver testified that while driving to Johannesburg in their
lane of travel they saw the dust of the gravel road on his
left side
going up; that they saw a BMW (plaintiffs vehicle) on his left hand
side on the gravel road driving there and loosing
control, coming
towards them, and his wife pointed out to him to look at that
car/BMW. That it came towards them and hit them on
the passenger side
where his wife was sitting. The Plaintiff disputes that he at any
stage lost control of his vehicle.
The
1
st
insured driver further confirmed, as already stated above, that when
the BMW went to the gravel side there was a lot of dust; stating
that
he could still, despite the dust, see what was happening, i.e. that
he could see the BMW and in which direction it was going
to travel.
That all this happened at a split of a second.
Looking
at all the evidence before this court, in my view the Plaintiff gave
a full account of what transpired, most of which stands
undisputed,
especially in so far as the presence of the 2
nd
insured vehicle and the conduct of the 2
nd
insured driver, and also how he swerved to the gravel side of his
opposite lane of travel and applied his brakes to stop his vehicle
to
try to avert the collision, hence a lot of dust testified to above.
On
the facts before this court I am of a considered view that the
Plaintiff honestly gave an account of what really transpired on
the
day of the collision, and that he tried his best to try to avoid
and/or avert the collision in question herein. However, looking
at
the damages to the respective motor vehicles herein, and on a balance
of probabilities I do not believe that the Plaintiffs
vehicle managed
to come to a complete standstill just before the collision when he
applied his brakes. I shall deal with this aspect
further below.
On
the other hand, looking at the 1
st
insured driver's evidence above, I do not think that the 1
st
insured driver saw the Plaintiff at all prior to the collision coming
towards them amidst the dust on his left side as he testified,

otherwise why would his wife have pointed out to him to look at the
Plaintiffs car; the 1
st
insured driver's wife did not in any event testify to confirm this.
In all probabilities the 1
st
insured driver was confused by the dust coming from the gravel road
and was trying to concentrate on his vehicle not knowing, as
he
testified, what was happening where the dust came from.
He
confirms what was stated by the Plaintiff that the vehicle which was
in front of him, motor vehicle B aforesaid, safely passed
the
Plaintiff without any hitches; adding that in front of motor vehicle
B there was a truck which also managed to pass the Plaintiff
safely.
I may mention here that the issue of the truck was never put to the
Plaintiff by the Defendant's counsel; though counsel
for the
Plaintiff in cross-examining the 1
st
insured driver at some stage disputed that there was any truck in
front of vehicle B. From the 1
st
insured driver's evidence himself it is clear that the Plaintiff was
driving on the gravel portion of the road, hence, at least,
motor
vehicle B managed to safely pass on its lane of travel.
On
his own version he (1
st
insured driver) never saw the BMW prior to the collision. If one has
regard to what is stated in his statement at page 1 of Exhibit
B, in
relation to his evidence in court, which is totally different, he
clearly, in my view, does not know how the collision occurred
nor
where exactly (point of impact) the collision occurred.
In
so far as the point of impact is concerned, there is a
discrepancy/dispute between the Plaintiff and the 1
st
insured driver's versions. However, on several occasions in his
evidence the I
s
insured driver, corroborates the Plaintiff, as already stated above,
that the Plaintiff was on the gravel portion of the road on
his/1
st
insured driver's left side prior to the collision. He confirmed his
statement, which includes a sketch plan, on page 1 of Exhibit
B.
On
his/1
sl
insured driver's sketch plan (page lof Exhibit B) he/ the 1
st
insured driver placed the BMW (Plaintiffs vehicle) on the verge of
the gravel road. He confirmed and/or conceded under cross examination

that on his sketch on page 1 of Exhibit B aforesaid he placed the BMW
(Plaintiffs vehicle) on his left hand side, right on the
edge of the
road totally away from the other vehicles.
I
may mention that he/l
sl
insured driver did not make any attempt to indicate where the point
of impact, according to him, was; he merely stated that it
was in his
path of travel. The question is more or less where exactly! The only
person who indicated the point of impact is the
Plaintiff
If
one looks at the point of impact as indicated by the Plaintiff, X3 on
exhibit A, it is almost on the verge of the gravel road,
not far from
the point where the 1
st
insured driver placed the BMW on his sketch (page lof Exhibit B).
This to me indicates that on the one hand, the Plaintiff himself
may,
on a balance of probabilities, not have managed to bring his vehicle
to a complete standstill when he applied his brakes,
and his vehicle
probably veered more to the verge of the gravel. On the other hand
the 1
st
insured drive also, probably in the confusion, veered to his left,
hence the collision more or less on the verge of the gravel
portion
of the road.
I
am not persuaded that the 1
sl
insured driver tried at all to move to his right towards the centre
line. On the contrary, and on a balance of probabilities, as
already
stated here above, he veered more to his left, more towards the verge
of the gravel portion of the road where his and the
Plaintiffs
vehicles collided.
Looking
at the damages to the respective vehicles (the Plaintiffs and the 1
st
insured driver's vehicles), it is more probable that the Plaintiff,
whilst his vehicle was still moving [and not yet at a complete

standstill], hit the
1
st
insured
vehicle on the left front passenger side; in my view it does not need
an expert to see that this was not a head on collision;
but as the
l
sl
insured driver himself concedes, under the circumstances that
prevailed at the time, no reasonable driver in the position of the

Plaintiff could have done anything to bring his vehicle under his
control.
I
am satisfied, on the Plaintiffs evidence, that he tried his best to
avoid the collision, unfortunately, as already stated probably
his
vehicle had not as yet come to a complete standstill when the
collision occurred.
In
so far as the 1
st
insured driver is concerned, as much as his evidence is not
convincing, I am prepared to find that in the confusion that ensued,

not having seen the Plaintiff at any stage prior to the collision
since on his own version there were other vehicles in front of
him,
at least it is common cause that motor vehicle B was in front of him;
seeing a lot of dust coming from his left and not knowing
what was
really happening, he must have found himself in a quandary, not
knowing which way to go, and eventually veered to his
left where he
met/collided with the Plaintiff s vehicle.
On
the facts before this court
I
find
that on a balance of probabilities the point of impact is more or
less on the verge of the gravel portion of the road, somewhere
nearer
point X3, and that the l
yl
insured driver has probably veered to his left in the confusion and
the Plaintiff himself may also, on a balance of probabilities,
not
have managed to bring his vehicle to a complete standstill when he
applied his brakes, and his vehicle probably veered more
to the verge
of the gravel and in the process it met collided with the 1
st
insured driver's vehicle as already stated above.
In
my view, in the circumstances the two parties above (the Plaintiff
and the 1
st
insured driver) found them, no fault can be attributed to either of
them.
The
source of all the mishap herein is in my view none other than the 2
nd
insured driver. I have no doubt in my mind that this collision
happened as a result of the 2
nd
insured driver's conduct, who, in my view was grossly negligent.
On
the undisputed evidence of the Plaintiff the 2
nd
insured driver drove slowly in front of him/Plaintiff and when the
Plaintiff attempted to overtake him he accelerated and blocked
him
out so that he could not get back into his lane of travel in front of
the 2
nd
insured vehicle; further, the other vehicles behind the 2
nd
insured vehicle had also closed up the space/gap behind the 2
nd
insured vehicle and the Plaintiff thus could not go back behind the
2
nd
insured vehicle. Since he was in his wrong lane he thus had to swerve
over to the gravel side of his opposite lane of travel where
in the
panic and the circumstance prevailing, he and the 1
st
insured driver collided.
In
my considered view, the 2
lld
insured driver was grossly negligent, and he maliciously and
deliberately blocked the Plaintiffs way when the Plaintiff attempted

to overtake him thus necessitating that the Plaintiff move
over/swerve to the gravel portion on the other side of the road, his

lane of travel having been blocked also by vehicles which had
initially followed him.
On
the evidence before this court and on a balance of probabilities 1
find that the 2
n
insured driver was negligent in one or more or all of the respect set
out by the Plaintiff in paragraph 4.2 of the Plaintiffs Particulars

of claim and was solely to blame for the collision herein.
In
the premises I find that the 2
nd
insured driver was solely negligent in the causing of the collision
herein and in the circumstances the Plaintiffs claim is upheld
with
costs.
The
Defendant is liable for the payment of the Plaintiffs proven damages.
In
the result I make the following order:-
1.
The Plaintiffs claim is upheld;
2.
The Defendant is ordered to pay the Plaintiffs costs of suite.
MOLOPA
- SETHOSA
J
JUDGE OF THE HIGH COURT

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