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[2011] ZAGPPHC 150
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Ratshibuvmo v Road Accident Fund (45008/08) [2011] ZAGPPHC 150 (27 May 2011)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE
NO:45008/08
DATE:27/05/2011
In
the matter between:
N.R.
RATSHIBUVMO
................................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
.....................................................................................
DEFENDANT
JUDGMENT
MAVUNDLA
J;
[1]
The plaintiff's claims against the defendant is for damages he
suffered as the result of injures he sustained in a motor vehicle
collision. At the commencement of the trial, by agreement in terms of
rule 33(4) the issues of liability were separated from
quantum
and the ma tter proceeded on the former and the latter issues were
postponed sine die.
[2]
It is common cause that on 29 October 2006 and at Umkhangele Street
Mabopane, the plaintiff was the driver of motor vehicle
with
registration number FMJ 584 NW which collided there and then with
motor vehicle with registration number RVG 642 GP, then
and there
driven by Mr. A T Maboya (the insured driver).
[3]
The defendant is the Statutory body created in terms of Act 56 of
1996 and its liability arises by virtue of the said Act, for
any
bodily damages suffered as the result of injuries sustained in a
motor vehicle collision caused by the negligence of an insured
driver
of a motor vehicle involved in an accident.
[4]
According to the plaintiff the sole cause of the collision was the
negligence of the insured driver Mr. Maboya, alternatively
the driver
of an unidentified motor vehicle. It is common cause that the
plaintiff collided with the insured motor vehicle from
behind. There
is an inference of negligence on his part. The onus rest on him to
prove that he was not negligent and that the insured
driver or the
unknown motor vehicle was negligent and such negligence was the case
of the collision
1
.
[5]
It is trite that the plaintiff must prove on a balance of
probabilities that the collision was as the result of the negligence
of the insured, or the unidentified driver or their joint negligence.
[6]
The parties furnished me with various photographs that are supposed
to show the scene of the accident. In my view, the photographs
were
not taken shortly after the accident, but much later. It is common
cause that at the time of the accident, the were trenches
dug just
outside the road for purposes of laying underground cables. That
being the position, the road at the time was not as wide
as reflected
by the photographs, but must have been narrow as the result of the
mound of the soil from the dug trench. The insured
driver conceded
that his motor vehicle was parked outside the street but with some of
its wheels encroaching into the path of travel
of the road. It can
therefore be accepted that at the time of the accident, the path of
travel on which the plaintiff was travelling
had been to a certain
extent impeded by the wheels of the insured motor vehicle that were
partially on the path of travel of the
plaintiff.
[7]
Where an insured driver, such as the insured driver in casu, parks
his motor vehicle along the road, in a manner such that part
of his
motor vehicle impedes the path of travel of other road users, should
have foreseen that he has created a potential dangerous
situation to
other motorist and should have taken reasonable steps to warn other
motorist of the danger presented by his motor
vehicle.
2
[8]
The insured driver said that he had placed cones along the road to
warn other road users of the presence of his motor vehicle.
Placing
cones, in my view was not enough. There was a duty on the part of the
insured driver to ensure that there is a reflective
chevron on his
motor vehicle sufficiently visible. He must not only stop at ensuring
that there are visible reflective chevrons,
but must also post a
person to warn other road users to be aware of the presence of his
motor vehicle. In casu, the insured driver
did not post any person.
He was aware of the constricted road because of the dug trenches. He
also conceded that the road was not
well illuminated by any street
light, save an Apollo light. In my view, the negligence of the first
insured driver stems from his
failure to have posted a person to warn
other motorist.
3
[9]
The version of the plaintiff is that as he was approaching where the
insured motor vehicle was parked, his path of travel was
suddenly
encroached into by the insured unidentified motor vehicle that was
travelling with its bright lights.
[10]
The insured driver's version that the accident occurred at Winterveld
must be rejected because he conceded that he does not
recognise the
place reflected in the photographs. I do accept the version of the
plaintiff that the accident happened in Mabopane.
In this regard he
is being corroborated by the Police Accident Report and Inspector
Mogomotsi. I accept that the accident occurred
along Umkhangele
Street which is running straight. However, from the photos, there is
a side street which joins into Umkhangele
street. The plaintiff was
travelling along Umkhangele street with the side street on his left.
The unidentified motor vehicle suddenly
entered into Umkhangele
street, turned towards his direction with its head lights on bright
very fast. He said that he was blinded
by these lights and he swerved
to his left to avert a collision with the unidentified motor vehicle
and in the process collided
with the insured motor vehicle.
[11]
The plaintiff said that he did not see the unidentified motor vehicle
before it entered into Umkhangele because his vision
was obstructed
by the first insured motor vehicle. I am unable to find that the
version of the plaintiff is improbable. I find
that the unidentified
motor vehicle executed his left turn at an inopportune moment without
stopping at the intersection. This
was a dangerous manoeuvre in the
face of motor vehicle that had a right of way, such as that of the
plaintiff. However, I am also
of the view that the plaintiff was also
negligent in that he was travelling rather very fast under the
circumstances. The fact
that the first insured driver said he did not
see the unidentified motor vehicle, is understandable, because he was
just before
the accident engaged in his work. He only became aware of
the collision at the sound of the impact. If the unidentified motor
vehicle
did not stop after the collision, certainly he would not have
seen it.
[12]
My finding is that the cause of the collision was the combination of
the negligence of the first insured driver, who created
a dangerous
situation in the way he had parked his motor vehicle and failing to
post a person to warn motorist to slow down as
they approached the
location where his motor vehicle was. Secondly the unidentified motor
vehicle was negligent in the sudden manner
it entered into Umkhangele
Street turning towards the plaintiff's vehicle with its head lights
on bright at an inopportune moment.
The plaintiff was also
contributory
negligent
in that he drove too fast under the prevailing circumstances.
[13]
I would therefore apportion the combined negligence of the first
insured driver and the unidentified motor vehicle to 60% and
the
plaintiff 40%. I therefore find that the defendant is 60 % liable for
proven damages of the plaintiff.
[14]
In the result I make the following order:
1.
That the defendant is liable to pay 60 percent of the plaintiff's
proven damages arising from the collision;
2.
That the defendant to pay the plaintiff's costs on party and party
scale.
N.M. MAVUNDLA J
JUDGE OF THE HIGH COURT
DATE OF JUDGMENT :
27/05/2011
APPLICANTS
ATT : SALOME LE ROUX ATTORNEYS
APPLICANT'S
ADV : MR. B.P. GEACH, SC
RESPONDENTS'ATT
: MAPONYAINCORPORATED
RESPONDENTS'
ADV : MR. F. PAUER
1
Coleman
V Mabuza
1963 (2) SA 498
(TPD) at 500B-D.
2
Vide Rondaha Versckeringskorporasie Van SA v Vermaak
1970 (2) SA 735
(AD).
3
"
Crawhall v Minister ofTranspon and Another
1963 (3) SA 614.