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[2011] ZAGPPHC 25
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Masemola v Road Accident Fund (17560/2007) [2011] ZAGPPHC 25 (11 February 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO:
17560/2007
DATE:
11/02/2011
IN
THE MATTER BETWEEN
A
M
MASEMOLA
..............................................................................................
PLAINTIFF
AND
THE
ROAD ACCIDENT FUND
......................................................................
DEFENDANT
JUDGMENT
KOLLAPEN,
AJ
[1]
This is an action for damages brought by the plaintiff following
injuries she sustained which injuries were caused as a result
of a
collision which took place on 5 July 2002 on the Broederstroom road.
[2]
At the commencement of the trial the parties applied for a separation
of the merits and the
quantum
in
the matter which order was granted and the matter proceeded to be
dealt with purely on the merits.
[3]
It is common cause that the plaintiff was a pedestrian on the day in
question and that the insured driver was driving a red
VW Golf
registration number NRR400 T. The collision occurred between 16:00
and 17:00 and visibility was good.
[4]
The plaintiffs version was that she was standing on the gravel of the
road close to the Broederstroom road/Lanseria T-junction.
At the time
she was talking to an acquaintance of hers one Romeo Masebe and her
back was facing the road while Masebe was looking
in the direction of
the road. They were apparently discussing an unpaid debt that Masebe
had with the plaintiff in respect of certain
items that the plaintiff
had sold to Masebe some time before.
[5]
Plaintiff did not recall any of the events before the collision and
did not see the insured vehicle prior to it colliding with
her. Her
evidence was that she was struck on the left hand side of her body
and it also appears that the injuries she sustained
as a result of
the collision were injuries to the left hand side of her body.
[6]
Romeo Masebe was also called as a witness and he in broad terms
confirmed the evidence of the plaintiff. There were some differences,
however, in their testimony in that the plaintiffs testimony was that
she and Masebe were standing approximately three metres away
from the
road whereas Masebe estimated this distance to be approximately a
metre away. In all other respects, however, Masebe confirmed
the
testimony of the plaintiff with regard to the insured vehicle
essentially coming off the road and the vehicle colliding with
the
plaintiff on the gravel section of the road. As indicated there is
some difference precisely where on the gravel section the
collision
occurred. Masebe places the collision much closer to the road than
does the plaintiff.
[7]
The insured driver also testified and her testimony was that she was
travelling towards the Broederstroom/Lanseria intersection
where she
had planned to turn right. She estimated that her speed was
approximately 25kph and her further testimony was that she
suddenly
noticed something appear from the left of the road and the next thing
she knew was that she had collided with the plaintiff.
Her further
testimony was that it appeared that the plaintiff was smelling of
alcohol. The insured driver Ms Pinter also testified
that at no stage
prior to the impact did she observe the plaintiff approaching from
the left hand side and she virtually saw her
at the point of impact.
[8]
It is clear that there are two irreconcilable versions in this matter
with regard to the manner in which the collision occurred.
In
Stellenbosch
Farmers Winery Group & Another v Martell & Others
2003(1)
SC A 11 the court indicated that in instances where there are two
irreconcilable versions before it the approach of a court
in
resolving factual disputes should be to come to a conclusion-
(a)
on the credibility of the various factual witnesses;
(b)
their reliability; and
(c)
the probabilities.
[9]
This case involves precisely such a conflict between two
irreconcilable versions and when one has regard to the guidance set
out in the
Stellenbosch
case
supra
it
is apparent that from a credibility and reliability point of view
there is not much that separates the testimony offered on behalf
of
the plaintiff as compared to the testimony offered on behalf of the
defendant. As indicated there was some difference between
the two
witnesses called on behalf of the plaintiff with regard to the point
of impact but I am of the view that such difference
as does exist is
hardly material. Having regard to the fallibility of human
recollection it does not mean that where the plaintiff
and her
witness differ in their estimation of precisely where the collision
occurred even though they are broadly in agreement
with regard to how
and where gently it occurred that in itself cannot be a basis to
reject their testimony.
[10]
I am satisfied that they testified in an open, honest and candid
manner and there was no suggestion that they were tailoring
their
evidence to support or suit each other as was suggested by the
defendant.
[11]
If indeed there was some conspiracy on their part to tailor and suit
their evidence to support each other then I would have
imagined that
they would have succeeded
also
in placing the point of impact at the same place in their respective
testimony. The fact that they did not do so militates
against any
suggestion of collusion.
[12]
In very much the same way the evidence of the insured driver appear
to be credible and she did not come across as a dishonest
witness but
appeared to be honestly recalling the events of the day in question.
[13]
Having regard to these factors one must then approach the matter on
the probabilities and on the probabilities there are various
concerns
with regard to the version of the insured driver in the manner in
which she describes the collision as having occurred.
They are as
follows:
fa)
If indeed she was travelling at approximately 20-25kph and visibility
was good there would be no reason why she did not see
the plaintiff
approaching from her left hand side just prior to the impact.
(b)
If indeed the plaintiff approached and entered the road from the
insured driver's left hand side then one must reasonably assume
that
if she then collided with the plaintiff the injuries to the plaintiff
would be to the right hand side of the plaintiff. The
plaintiff
sustained injuries to the left hand side of her body and this was not
disputed in testimony.
(c)
The only damage to the vehicle of the insured driver was damage to
the front of the vehicle. If the plaintiff approached the
vehicle
from the left hand side and entered the road as described by the
insured driver then in all probability the damage to the
insured
driver's vehicle would have been to the left as opposed to the front.
[14]
Having regard to the probabilities then it is abundantly clear that
the probabilities favour the version of the plaintiff.
It is highly
unlikely that the collision could have occurred as described by the
insured driver for the reasons that I have offered
above and under
the circumstances I am satisfied that the plaintiff has on a balance
of probabilities established negligence on
the part of the insured
driver.
[15]
With regard to the question of contributory negligence it is indeed
so that there are two irreconcilable versions before the
court and
the collision could have only occurred on either of the versions
offered. On the version that I have accepted which is
the version of
the plaintiff it is my finding that the collision occurred on the
gravel section of the road as described by the
plaintiff and under
those circumstances there can be no basis to apportion any of the
plaintiffs damages on account of any contributory
negligence on her
part.
[16]
I accordingly make the following order:
(a)
the sole cause of the collision was the negligent driving of the
insured vehicle;
(b)
the defendant is ordered to pay the costs of the action.
J
KOLLAPEN
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT