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[2011] ZAECPEHC 9
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Marais v Road Accident Fund (2886/2009) [2011] ZAECPEHC 9 (29 March 2011)
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION:
PORT ELIZABETH)
CASE NUMBER 2886/2009
In the matter between:
ERNEST BERNARDUS MARAIS
…..................................................
Plaintiff
And
ROAD ACCIDENT FUND
….........................................................
Defendant
JUDGMENT
TOKOTA AJ
[1] On 24 January 2005 in
the afternoon at about 13h30 a collision occurred, at the
intersection of Durban Road and Drostdy Street,
Uitenhage, between
the vehicle registration number BGT, 261 EC driven by Mr Mpambani,
(the insured driver) and vehicle registration
number CVR 230 EC
driven by the plaintiff.
[2] As a result of the
collision the plaintiff is alleged to have suffered damages in the
amount of R715 850.00 it being alleged
that the sole cause of the
collision was as a result of the negligent driving of the insured
driver.
[3] In terms of
section
17
of the
Road Accident Fund Act 56 of 1996
the defendant is, subject
to the provisions of the Act, in the case of a claim for compensation
under this section arising from
the driving of a motor vehicle where
the identity of the owner or the driver thereof has been established,
obliged to compensate
any person (the third party) for any loss or
damage which the third party may have suffered as a result of any
bodily injury to
himself or herself, caused by or arising from the
driving of a motor vehicle by any person at any place within the
Republic, if
the injury is due to the negligence or other wrongful
act of the driver or of the owner of the motor vehicle.
[4] Pursuant to the
aforesaid collision the plaintiff is now suing the defendant for
compensation of the above damages. The defendant
is resisting
liability. On 25 January 2011 this Court made an order separating the
issues relating to the merits (liability) of
the plaintiff’s
claim from the issues relating to quantum in terms of Rule 33(4) of
the Uniform Rules of Court. It must now
determine the merits of the
claim only.
[5] The plaintiff called
one Anton Ebersohn, a detective Warrant Officer who claimed that he
witnessed the accident. Ebersohn testified
that on the day in
question he was on duty driving a police vehicle from Kamesh
detective Branch on his way to Magistrate’s
Court. At the robot
controlled intersection of Durban Road and Higher Drostdy Street he
stopped because the robots were red for
him. He was going to take a
right turn into Durban Road. Whilst his vehicle was stationery he
observed a BMW car driven by the
plaintiff also stationery at the
opposite direction from the Lower Drostdy Road waiting for the robots
to turn green.
[6] When the robots
turned green for him he proceeded slowly and waited for the BMW car
to proceed straight as he was turning. Whilst
still waiting to
negotiate his right turn he heard a bang of the collision. Although
his evidence was that he moved about a metre
from the white lane I
find that he must have gone past the BMW when he heard a bang. The
bang was coming from the collision of
the insured driver colliding
with the plaintiff’s BMW. The insured driver was driving a Fox
from the direction of Durban
Road heading for VW Paint Mix where he
was going to work. After the collision had occurred he assisted in
controlling the traffic
until the Uitenhage police arrived and took
over. Since the traffic lights were green for him he assumed that
they were also green
for the plaintiff to proceed.
[7] The plaintiff gave
evidence. He testified that on the day in question he was on his way
home for lunch. He stopped at the robot
controlled intersection of
Lower Drostdy Street and Durban Road. It was between 13h00 and 14h00.
The robots were red for him. When
the robots turned green he
proceeded straight towards Higher Drostdy Street. Whilst he was about
three quarters of the Durban Road
on the second lane thereof he heard
a bang on the left side of his BMW. It was the insured driver who
drove into his car damaging
the left side of the fender, passenger
door and the wheel which was pushed inwardly by the impact to the
extent that the car could
not be driven thereafter. He maintained
that the robots were green for him and that they were red for the
insured driver.
[8] It is perhaps
opportune at this stage to mention that at the commencement of the
proceedings an application for the amendment
of the plaintiff’s
particulars of claim was sought and granted. The amendment was to the
effect that the insured driver proceeded
against the red robots. The
application was not opposed on behalf of the defendant.
[9] The defendant called
Mr Christian Mpambani, the insured driver, as its witness. His
evidence was that on the day in question
he was on his way to work at
VW Paint mix. He was travelling on the Durban Road. On his way he had
given a lift to one Sizwe Jordan.
He dropped him before the robots
near the Magistrate’s Court. It is now common cause that the
distance between those robots
and the Lower Drostdy Street
intersection is 75 metres.
[10] He proceeded to the
intersection of Drostdy and Durban Road. He did not notice any
vehicles on the intersection. The robots
were green for him. Whilst
at the intersection the plaintiff came straight to his vehicle and
collided with it. His vehicle was
damaged in front, the engine side.
It spun and faced the direction where it came from.
[11] The defendant then
called Mr Jordan. Mr Jordan testified that on the day in question he
had an appointment with his lawyer.
The insured driver gave him a
lift from KwaNobuhle Township. He was dropped at the robots next to
the Magistrate’s office.
He observed the insured driver when he
drove through the green robots. He testified that the robots at the
Durban Road and Lower
Drostdy intersection were green in favour of
the insured driver and were red for the plaintiff. He witnessed the
collision. He
did not go to the scene of accident after the collision
because he was rushing for his appointment. The insured driver later,
and
after he was discharged from hospital, came to him and asked him
as to whether he witnessed the accident and he (Jordan) informed
that
he did and would testify about what he observed on the day in
question.
[12] It is trite law that
in a claim of this nature the plaintiff bears the onus of proof of
negligence on the part of the insured
driver on a balance of
probabilities. “
At
the end of the case the court has to decide whether, on all of the
evidence and the probabilities and the inferences, the plaintiff
has
discharged the onus of proof on the pleadings on a preponderance of
probabilities, just as the court would do in any other
case
concerning negligence. In this final analysis, the court does not
adopt the piecemeal approach of (a) first drawing the inference
of
negligence from the occurrence itself, and regarding this as a prima
facie case; and then (b) deciding whether this has been
rebutted by
the defendant's explanation.”
1
[13] Having referred to
the above
dictum
I must now evaluate the
evidence of all the witnesses bearing in mind that the plaintiff
bears the onus as stated above. It has
been submitted, both orally
and in written heads of argument, on behalf of the plaintiff that he
and his witness were satisfactory
and reliable. Conversely, it was
contended, the evidence of the insured driver was poor and fraught
with improbabilities. It was
further submitted that the evidence of
Mr Jordan was poor and unreliable. Furthermore, so the argument ran,
he was not an independent
witness.
[14] Counsel for
defendant submitted that the plaintiff and his witness were not good
witnesses. The plaintiff was further criticised
for the late
amendment of the particulars of claim. I must say that I was also not
happy with late amendment but in any event I
find that the witnesses
merely assumed that since the robots were green on their sides they
must have been red for the insured
driver. It was further submitted
on behalf of the defendant that the insured driver and his witness
were satisfactory witnesses
and that their evidence should be
preferred to that of the plaintiff and his witness.
[15] In my view, and
bearing in mind that human intellect is fallible, especially regard
being had to the passage of time since
the occurrence of the
accident, I find that the plaintiff and his witness gave satisfactory
evidence. In the eloquent words of
Cory J in
R v Askov
(1991) 49
CRR 1
(Supreme Court of Canada) at 20:
“
(t)here
can be no doubt that memories fade with time. Witnesses are likely to
be more reliable testifying to events in the immediate
past as
opposed to events that transpired many months or even years before
the trial. Not only is there an erosion of the witnesses'
memory with
the passage of time but there is bound to be an erosion of the
witnesses themselves. Witnesses are people; they are
moved out of the
country by their employers; or for reasons related to family or work
they move from the east coast to the west
coast; they become sick and
unable to testify in court; they are involved in debilitating
accidents; they die and their testimony
is forever lost. Witnesses,
too, are concerned that their evidence be taken as quickly as
possible. Testifying is often thought
to be an ordeal. It is
something that weighs in the minds of witnesses and is a source of
worry and frustration for them until
they have given their
testimony.”
The plaintiff, quite
honestly, conceded that he did not look at the side where the insured
driver came from. He only heard a bang
when he collided with his
vehicle. If he was not honest and wanted to be taken as a careful
driver he could have simply said that
he looked both from left and
right but could not see any vehicle.
[16] The insured driver’s
evidence was mainly directed at emphasising that the robots were
green for him and red for the plaintiff.
His evidence was that he was
driving at a speed of 80km per hour. His conduct is typical of a
driver rushing to catch the robots
whilst still on amber. I however
make no finding in this regard. His evidence that it was the
plaintiff who came to him and collided
with his vehicle is not borne
out by the impact. It is not in dispute that the plaintiff’s
vehicle was damaged from left
front side having collided with the
front part of the insured driver’s vehicle. It can hardly be
said that in those circumstances
plaintiff’s vehicle went to
the insured driver’s vehicle.
[17] When it comes to the
evidence of Jordan, I observed him when he was giving evidence. I
gained the impression that he had undertaken
to come to court and
confirm that the robots were green in favour of the insured driver
and were against the plaintiff. His story
that he watched the insured
driver until the impact at the intersection because he was concerned
with his safety is not consistent
with his conduct after the
accident. I am even doubtful if he indeed witnessed the accident. If
he witnessed the accident and was
concerned about the safety of the
insured driver, as he claimed, one wonders why he would not be
curious to investigate the condition
of the insured driver
immediately after the collision. When he was asked as to on what
basis did he say that the robots on the
side of the plaintiff were
red he produced his driver’s licence and said he was also a
driver.
[18] In all the
circumstances I am satisfied that evidence of the plaintiff and his
witness should be preferred to that of the insured
driver and his
witness. Mr Ebersohn’s evidence was short and straightforward.
He did not contradict himself or the plaintiff.
I am satisfied with
his explanation as to why he did not make a statement immediately
after the collision. He was calm and collected
in the witness box. I
find that he gave his evidence to the best of his recollection of the
events. On the contrary I find that
the insured driver entered the
intersection against the red robots and that Jordan was an unreliable
witness and therefore their
evidence, to the extent that it conflicts
with that of the plaintiff and his witness, must rejected.
[19] The plaintiff
testified that he moved slowly into the intersection. He did not see
the insured driver until he heard a bang
of the collision. The
question that must be resolved is whether his conduct amounted to
neglect of duty by a reasonable driver
in his position. It was
submitted on his behalf and relying on the decisions
Nogude v
Union and South-West Africa Ins Co Ltd
1975 (3) SA 685
(A) and Van
Vollenhoven v McAlpine
1976 (3) SA 579
(N)
that the plaintiff had
no duty to be on the look out for vehicles that could possibly enter
the intersection from left or right
unlawfully against the red
robots. Plaintiff conceded that if he had exercised a proper look out
he would probable have avoided
the collision.
[20] In the case of
Nogude v Union and South-West Africa Ins Co Ltd t
he Learned
Judge of Appeal said the following at p.688A-C
“
A
proper look-out entails a continuous scanning of the road ahead, from
side to side, for obstructions or potential obstructions
(sometimes
called "a general look-out": cf. Rondalia Assurance
Corporation of SA Ltd. v Page and Others,
1975 (1) SA 708
(AD) at pp.
718H - 719B). It means -
"more than
looking straight ahead - it includes an awareness of what is
happening in one's immediate vicinity. He (the driver)
should have a
view of the whole road from side to side and in the case of a road
passing through a built-up area, of the pavements
on the side of the
road as well".(Neuhaus, N.O. v Bastion Insurance Co. Ltd.,
1968
(1) SA 398
(AD) at pp. 405H - 406A).
Driving with
"virtually blinkers on" (Rondalia Assurance Corporation of
SA Ltd. v Gonya,
1973 (2) SA 550
(AD) at p. 554B) would be
inconsistent with the standard of the reasonable driver in the
circumstances of this case.”
[21] Notwithstanding the
above remarks it seems to me that the weight of authorities favour
the view that a driver who enters a
robot controlled intersection
where the robots are green in his favour is not expected to be on the
look out for drivers who may
enter the intersection unlawfully when
the robots are against them from either left or right.
2
A reasonable driver will
expect that other drivers will obey the traffic rules and will not
enter an intersection against red robots.
[22] In this case I have
found that the insured driver entered the intersection whilst the
robots were red for him. On the authority
of
Brummer
supra
,
if the driver is aware of the presence of a vehicle which is clearly
being driven in a negligent manner he should not ignore it.
Plaintiff
was not aware of the presence of the insured driver until he heard
the bang. At the time of the collision he was on the
verge of
completing crossing the intersection. It would be an exercise of an
armchair critic to expect him to have done anything
at that stage.
[23] In the all the
circumstances I am of the opinion that the plaintiff has discharged
the onus resting on him and that the defendant
is liable to
compensate him.
[24] Counsel for
plaintiff has made suggestion of the order to be made in the event of
the plaintiff being successful. Counsel for
defendant did not have a
problem with the suggested order in the event I find in favour of the
plaintiff. In the result I make
the following order.
It is declared that the
defendant is liable to pay such damages to the plaintiff as may be
proved arising out of the collision
on 24 January 2005.
The defendant is ordered
to pay the plaintiff’s taxed costs or such costs as may be
agreed between the parties pertaining
to the merits, such costs to
include costs of one inspection in loco.
The defendants is to pay
interest on the plaintiff’s costs calculated at the rate of
15,5% p.a. from thirty days after taxation
or agreement to date of
payment.
The issue pertaining to
the quantum of the plaintiff’s claim is postponed
sine die.
_______________________
B R TOKOTA
ACTING JUDGE OF THE HIGH
COURT
Date Heard: 22 and 23
March 2011
Date Delivered: 29 March
2011
For the Plaintiff: Adv
P.H Mouton
Instructed by G.P Van
Rhyn Minnaar & Co
c/o Ungerer Struwig
Hattingh & Peo
28-7
th
Avenue,
Newton Park, Port Elizabeth
Tel: 041 364 2624
Ref: Mr. Struwig
For the Defendant: Adv H.
Van der Linde SC
Instructed by Wilke Weiss
Van Rooyen Inc
Cavendish House, 2 Cuyler
Street, Central, Port Elizabeth
Tel: 041-586 4220
Ref: L. Jansen
1
See
Sardi and Others v Standard and General Insurance Co Ltd
1977 (3) SA
776
(A) at 780D - E and G - H. See also Arthur v Bezuidenhout and
Mieny
1962 (2) SA 566
(A) at 574B
2
See:
Van Vollenhoven v McAlpine
1976 (3) SA 579
(N) at
581A-B; Izaaks v Schneider
1991 (3) SA 675
(NM) at pp.678D-J-679A
Netherlands Ins Co of SA Ltd v Brummer
1978 (4) SA 824
(A) at 833A-F
where the Learned Judge of Appeal said “Soos in bogenoemde
gewysdes verduidelik moet 'n bestuurder wat 'n
kruising binnegaan
terwyl die verkeerslig vir hom groen is, uitkyk vir verkeer wat
reeds in die kruising is, bv verkeer wat die
kruising binnegegaan
het voor die verkeersligte verander het. Hy mag natuurlik ook nie 'n
voertuig ignoreer waarvan hy bewus
is en wat duidelik op 'n nalatige
wyse bestuur word. Maar dit word nie van hom verwag om uit te kyk
vir verkeer wat moontlik
onwettiglik die kruising teen 'n rooi
verkeerslig van links of regs kan binnegaan nie.”