Erasmus v Road Accident Fund (698/2007) [2009] ZAECPEHC 51 (16 October 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2009
>>
[2009] ZAECPEHC 51
|

|

Erasmus v Road Accident Fund (698/2007) [2009] ZAECPEHC 51 (16 October 2009)

FORM A
FILING SHEET FOR SOUTH EASTERN
CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case
Number:
698/2007
High
Court:
Port
Elizabeth
DATE
HEARD:
13
& 14 October 2009
DATE
DELIVERED:
16
October 2009
JUDGE(S):
D.
Chetty
LEGAL
REPRESENTATIVES –
Appearances:
for
the Plaintiff(s):
Adv
Schubart
for
the 1
st
Defendant(s):
Adv
Van der Linde / Adv Dala
for
the 2
nd
Defendant:
Adv
Van Onselen
Instructing
attorneys:
Plaintiff(s):
Mr
Gray (Gray Moodliar)
1
st
Defendant:
Mr
Armoed (Boqwana Loon & Connellan)
2
nd
Defendant:
Routledge
Modise C/o Mr H Bekker (Goldberg & De Villiers)
CASE
INFORMATION -
Nature
of proceedings
:
Action
for Damages
Topic:
Key Words:
Delict
-
Damages
for personal injury – Motor vehicle collision –Motorist on
through road observing approaching vehicle intending right
turn at
robot controlled intersection considerable distance ahead – Road
deserted - Evidence establishing that motorist not decreasing
speed –
Concession that had he done so, collision would have been avoided –
Duty of motorist to reasonably foresee unlawful
conduct on part of
approaching motorist – In
casu
such foreseeable – Approaching motorist contributorily negligent in
failing to regulate speed – Apportionment – Insured driver
30%
negligent
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: 698/2007
In the matter between:
MADELEIN ERASMUS Plaintiff
And
ROAD ACCIDENT FUND 1
st
Defendant
CLAIRE LOUISE VAN LELYVELD 2
nd
Defendant
Coram:
Chetty,
J
Date Heard:
13
and 14 October 2009
Date Delivered:
16
October 2009
Summary: Delict -
Damages
for personal injury – Motor vehicle collision – Motorist on
through road observing approaching vehicle intending right
turn at
robot controlled intersection considerable distance ahead – Road
deserted - Evidence establishing that motorist not decreasing
speed –
Concession that had he done so, collision would have been avoided –
Duty of motorist to reasonably foresee unlawful
conduct on part of
approaching motorist – In
casu
such foreseeable – Approaching motorist contributorily negligent in
failing to regulate speed – Apportionment – Insured driver
30%
negligent
________________________________________________________________
JUDGMENT
________________________________________________________________
CHETTY, J
[1] This is an action for damages for
personal injury suffered by the plaintiff in a collision between two
motor vehicles, a Jetta
and Cuore respectively, which occurred at
approximately 2:30 a.m. on Sunday, 19 June 2005 at a robot controlled
intersection at
the junction of Canna Avenue and Kragga Kamma Road in
the residential suburb of Sunridge Park in Port Elizabeth. The
plaintiff
was a passenger in the Cuore driven by the second
defendant. By order of this court dated 3 February 2009 the merits of
the action
was ordered to be separated from its quantum component. At
the commencement of the trial before me, the parties, no doubt in an

attempt to expedite the matter, reached consensus that the only
issues I be called to adjudicate upon related to the alleged
negligence of the drivers of the two vehicles and, in the event of a
finding that both were negligent, their respective degrees
of
culpability.
[2] Before I proceed to analyze and
evaluate the evidence adduced, a general description of the area
where the collision occurred,
the prevailing weather, road and
traffic conditions will provide an invaluable aid to determine the
issues raised and it is to
that which I now turn. It is not in issue
that Kragga Kamma road runs roughly east to west, its eastern
extremity commencing at
the confluence of Cape Road and an off ramp
from the N2 west. Initially two laned, it plateaus into a single
lane, the road surface
dissected by a broken white line for vehicular
traffic proceeding in the opposite direction. On the day in question
the road was
clear, visibility good and the traffic lights at the
junction with Canna Avenue clearly visible for several hundred metres
either
way. Kragga Kamma Road is flanked by wide ­­­­­­­­­­­verges
with large trees interspersed
along its length. Prior to the
junction, Kragga Kamma Road eastwards widens to two lanes, the left
lane a through road and the
right, a turning lane into Canna Avenue.
The photographs handed in by counsel as exhibit “B” and in
particular the sign posts
visible on B1 identify the road as the M15
and it will be convenient to refer to it as either the M15 west or
M15 east.
[3] Mr.
Mandiso
Zinto
(
Zinto
)
was proceeding along the M15 west en route to his home in Kamma Park
in his Golf motor vehicle (the Golf). The flashing of lights
at his
rear caused him to veer his vehicle to the left for he was under no
illusion that the driver required sufficient berth to
overtake him.
He identified photograph B2 as the area where the overtaking
manoeuvre was executed. It is evident from these photographs
and in
particular the wide berth between the yellow line adjacent to the
kerb and the kerb itself that there was sufficient room
for
Zinto
to move to his left to facilitate the overtaking manoeuvre.
Zinto
described his speed as being in the region of 60 km/h and estimated
the overtaking vehicle’s speed at approximately 100 km/h.
Although
it is an acknowledged fact that a witness’ recollection and
estimate of speed is often inaccurate the very act of overtaking

confirms that the Jetta was travelling at a speed considerably in
excess to that of the Golf. In fact the driver of the Jetta,
Mr.
Rodney Lamont
(
Lamont
)
conceded as much. Prior to the overtaking manoeuvre
Zinto
had seen the lights of an approaching vehicle, the Cuore, but, once
the act of overtaking had been completed focused his attention
on the
Jetta ahead of him. He however observed the Cuore proceeding into and
entering the right turning lane into Canna Avenue
and that it was in
the process of turning right when the collision occurred.
[4] Under cross-examination by counsel
for the first defendant it was put to
Zinto
that
Lamont
had not in fact overtaken him at the point where the M15 west
plateaus but earlier, where it comprised two lanes.
Zinto
denied this and remained steadfast that the overtaking had occurred
where he had earlier pointed to on photograph B2 viz. after
the
merging of the two lanes.
Zinto
is a completely independent witness who, notwithstanding the
effluxion of time since the collision, gave a clear and coherent
account of the events which unfolded on the night in question. His
recollection of the circumstances surrounding the collision remained

consistent and his evidence is to be preferred to that of
Lamont
.
By contrast
Lamont’s
evidence appears clearly to be a post-accident reconstruction. Under
cross-examination he was confronted with a statement which
he made to
the police more than a year after the collision which differed in
several respects from his evidence in chief. To his
credit he
readily conceded that the more accurate account would be the police
statement for his recollection of the collision was
extremely hazy.
Although he initially stated that he had applied his brakes when he
observed the Cuore’s indicators signalling
to turn right he
confessed to having no independent recollection of having done so,
deducing, from brake marks visible on the road
post accident, that he
had in fact applied his brakes.
Zinto
,
who was travelling behind him, did not observe any brake lights and I
accept that
Lamont
failed to apply his brakes. That he was travelling at an excessive
speed in the circumstance admits of no doubt.
Zinto’s
uncontroverted evidence was that after execution of the overtaking
manoeuvre, the distance between the Jetta and his vehicle increased

considerably to the extent that when the collision occurred he was
approximately one hundred metres from the scene of the collision.
[5] The M15 was, as adumbrated
earlier, devoid of all traffic. It was the early hours of the morning
and strict adherence not only
to the speed limit but the rules of the
road can readily be discounted.
Lamont’s
intoxicated condition, albeit not to any appreciable degree, must
inevitably, notwithstanding his protestations to the contrary,
have
dulled his senses, and, coupled to the excessive speed at which he
was travelling, have compounded the problem caused by the
second
defendant turning into Canna Avenue ahead of him. In fact he readily
conceded that had he braked sufficiently and travelled
at a lesser
speed the collision could, and, in all probability would, have been
avoided. What compounds the problem is that he
had observed that the
second defendant intended to execute a turn to the right before she
reached the junction. He however assumed
that by reason of the
dipping of the vehicle’s lights that the second defendant would
afford him clear passage by virtue of him
having the right of way.
[6] The question which falls for
decision thus is whether he was negligent in failing to reduce his
speed and to take corrective
action to avoid the danger caused by the
second defendant turning across his line of travel. In my view he was
clearly negligent
albeit not to the same extent as that of the second
defendant. The flickering of the Cuore’s indicator lights would
have alerted
Lamont
of the driver’s intention to execute a turn to the right. Had he
kept a proper lookout he would have been able to observe whether
it
had stopped or continued moving. His inability to give a definite
answer compels the conclusion that he failed to keep a proper

lookout. The Cuore’s indicator lights gave ample warning that the
second defendant would turn right and given the fact that it
was in
the early hours of the morning with no other traffic in the area save
Zinto’s vehicle behind him,
Lamont
was clearly negligent in not reducing his speed accordingly. Had he
been travelling at a more sedate pace he would no doubt have
been
able to pass the Cuore on its left.
[7] Turning across the line of
oncoming traffic is unfortunately not an uncommon occurrence and our
courts have recognized that
in given circumstances a reasonable
driver will bear that in mind and allow for it. This much was
recognized by Rumpff CJ in
Marine
and Trade Insurance Co Ltd v Singh
1
where the learned judge stated –
“
. . . when unlawful
conduct is actually seen, the reasonable man will,
a
fortiori
,
allow for that conduct. What has been said above, describes in broad
terms the legal duty on any driver of a vehicle. It will
always,
however, depend on the particular circumstances of each case, and on
prevailing views on transport and traffic requirements,
whether in
any particular case the unlawful conduct is to be regarded as
reasonably foreseeable so as to require the reasonable
man to allow
for such conduct. It will also depend on the particular circumstances
of each case whether or not the manner in which
the required
allowance has been made is sufficient for the purpose of discharging
the duty imposed on the reasonable man. It really
boils down to
reasonable foreseeability of the unlawful act and reasonable
allowance on the part of the driver for such act. I
find it
unnecessary to refer to any other decided cases, save perhaps to the
majority and minority judgments in
Griffiths
v Netherlands Insurance Co of SA Ltd
1976
(4) SA 691 (A)
in which a number of cases, some relevant to the present case and
others not, are referred to.”
[8] In my judgment, given the
prevailing circumstances and in particular the signalled intention on
the part of the second defendant
to turn right, it was reasonably
foreseeable that she would in fact do so. Although the probabilities
are that the second defendant
had clearly misjudged the Jetta’s
speed when executing the turn to the right,
Lamont
was contributorily negligent in failing to make allowance for her
negligent conduct.
[9] It was readily conceded by counsel
for the plaintiff and the second defendant that the second
defendant’s culpability was
the greater and the question now is to
determine the respective drivers’ degrees of fault. In the light of
the various considerations
adverted to hereinbefore a finding that
the second defendant was 70% to blame for the collision would seem
meet. As regards costs,
the parties were in agreement that an order
for joint and several liability on the part of the defendants would
be a proper one.
[10] In conclusion therefore –
The insured driver’s (
Lamont
)
degree of fault is assessed at 30% and that of the second defendant
at 70%.
The defendants are ordered to pay
the plaintiff’s costs jointly and severally, the one paying the
other to be absolved, such
costs to include the costs of the
photographs (exhibit “B”); the costs of the pre-trial inspection
in loco attended by counsel
and the application in terms of Rule 33
(4).
_______________________
D. CHETTY
JUDGE OF THE HIGH COURT
Obo
of the Plaintiff: Adv Schubart
Instructed
by Gray Moodliar
19
Raleigh Street
Central
Port
Elizabeth
Ref:
W Gray/1s/E1009
Tel:
041-586 3920
Obo
the 1
st
Defendant: Adv Van der Linde SC / Adv Dala
Instructed
by Boqwana Loon & Connellan
4
Cape Road
Port
Elizabeth
Ref:
Mr. Armoed/jr/K42972
Ref:
041-506 3700
Obo
the 2
nd
Defendant: Adv Van Onselen
Instructed
by Routledge Modise
C/o
Goldberg & De Villiers
13
Bird Street
Central
Port
Elizabeth
Ref:
Mr. H Bekker
Tel:
041-501 9800
1
1980 (1) SA 5
(AD) at 9E-H