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[2011] ZAECPEHC 19
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Uithaler v Road Accident Fund (1847/09) [2011] ZAECPEHC 19 (26 May 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE - PORT ELIZABETH)
CASE
NO:1847/09
DATE HEARD: 28/04/2011
DATE DELIVERED: 26/05/2011
In the matter between
WESLEY JOHAN JULIUS UITHALER
….............................................................
Plaintiff
and
ROAD ACCIDENT FUND
….............................................................................
Defendant
JUDGMENT
ROBERSON J:-
[1] The plaintiff instituted action
against the defendant for payment of damages, following a collision
in which he was struck by
a motor vehicle (“the insured
vehicle”) and suffered certain bodily injuries. He alleged that
the sole cause of the
collision was the negligence of the driver of
the insured vehicle.
[2] By agreement the issue of
negligence was separated from other issues and the trial proceeded on
the issue of negligence only.
Essentially what the court had to
determine was whether or not the plaintiff was negligent, and to what
extent.
[3] The collision occurred on 30 June
2007, between nine and ten o’clock at night, on the Graaff
Reinet Road, Uitenhage, which
is one of the main roads in Uitenhage.
It was not in dispute that the plaintiff had been a passenger in a
maroon CitiGolf (“the
Golf”) which ran out of petrol, and
that he, the driver, and the other two occupants had alighted from
the Golf and started
to push it towards a petrol station, which was
some distance further on in the direction in which they had been
traveling, and
had been pushing the Golf. Photographs of the scene
showed that the road had two lanes of travel in each direction and
that for
vehicles traveling in the direction in which the Golf had
been traveling, there was a straight stretch of road leading at an
incline
up to a robot controlled intersection with a road on the left
hand side which led into a shopping complex. Vehicles could enter
and
exit this side road at the point of the intersection. Before and
beyond this intersection there was a red line on the road
for
vehicles traveling in the direction of the Golf, indicating a no
stopping zone. The petrol station was further on from this
intersection. There were street lights at intervals on the opposite
side of the Graaff Reinet Road. The total width of the road
(all four
lanes) was approximately 18 metres.
[4] The plaintiff testified that he
and the other three occupants of the Golf had attended a festival at
Kirkwood where they had
all consumed alcohol, although the driver,
Graham Forbes, had only had one drink. The other two occupants were
James Byleveldt
and Malcom Adams. The Golf ran out of petrol a short
distance before the robot controlled intersection. The Golf was in
the left
hand lane, next to the pavement. As soon as it stopped, its
lights and hazard lights were switched on. The road was quiet and
there
were no other vehicles. The area was well lit by the street
lights and by lights from shops in the shopping complex, although
later
he conceded that those lights did not light the road. He was
positioned at the left rear of the Golf as it was pushed, and Adams
was at the right rear. He and Adams were in between the lights of the
Golf, in order to make sure that the hazard lights were visible,
but
they were not in physical contact. Forbes and Byleveldt were at the
front of the Golf, and Forbes was holding the steering
wheel in order
to control the Golf. The pace at which they pushed the Golf was not
slow, but not faster than a walking pace. The
four of them were big
men and the Golf moved as they pushed. When they were at a position
alongside a drain on the left hand side
of the road, a short distance
beyond the intersection, he heard a bang. He had now and then looked
behind him but he did not see
or hear the insured vehicle before
impact. Prior to the bang it was not raining, and the road was dry,
but while he was lying on
the ground, it began to rain. In his
statement to the police he said with regard to the weather conditions
that it had rained heavily
and the road was wet.
[5] Byleveldt testified and confirmed
that he was at the front left of the Golf when it was being pushed.
It was raining heavily
and the road was wet. The plaintiff was a
little distance from the light on the left rear of the Golf, with
part of his body over
the light. Adams was at the right hand rear
corner of the Golf, with one arm around the side of the Golf and the
other on the light.
He did not think it was difficult to see the Golf
because the road was clear and there were street lights, and drivers
of vehicles
behind them would have seen the lights of the Golf. They
would push the Golf for a certain distance, stop for a rest, and
resume
pushing. They stopped just past the shopping complex and then
started again, and that is when he heard the bang. He did not see
how
the collision occurred because he was looking in front of him. After
the collision he spoke to the driver of the insured vehicle
and was
of the view that he was under the influence of alcohol because there
was a smell of alcohol coming from the insured vehicle.
The driver
said nothing and after struggling to change gear, drove away from the
scene to the petrol station. They ran after him
but by the time they
got there he had already gone.
[6] No witnesses testified for the
defendant.
[7] The plaintiff was not an
impressive witness. He was reluctant at times to concede obvious
facts and fashioned his evidence to
achieve the maximum factors in
his favour, for example that it only began to rain after the impact,
that they kept the Golf moving,
that light from the shops in the
shopping complex lit the scene, and that he and Adams were positioned
behind the Golf so that
the lights were completely visible. Not only
did he tell the police that it was raining heavily and the road was
wet, but this
was also Byleveldt’s evidence. The plaintiff’s
evidence about how he and Adams were positioned behind the Golf was
in my view improbable and difficult to envisage. Byleveldt’s
evidence of their positions was far more probable and realistic,
as
was his evidence about resting every now and then while they were
pushing.
[8] Byleveldt impressed me as a fair
and to some extent impartial witness. He had obviously not colluded
with the plaintiff to paint
the most favourable scenario, nor did he
embellish his evidence to suit the plaintiff. In my view he was an
honest witness and
his evidence was acceptable.
[9] Mr. Paterson, who appeared for the
defendant, correctly accepted that the driver of the insured vehicle
was negligent. This
is clearly so, in that at the very least he
failed to keep a proper lookout and failed to avoid a collision when
by the exercise
of reasonable care and skill he should have done so.
Mr. Paterson submitted however that the plaintiff was negligent and
that there
should be an apportionment of 30% negligence on the part
of the plaintiff, and 70% on the part of the driver of the insured
vehicle.
[10] The argument rested on the
plaintiff’s duties as a pedestrian. It was submitted that the
plaintiff did not conduct himself
as a reasonable person in the
particular circumstances: it was dark and raining heavily, he had his
back to traffic, he was under
the influence of alcohol, the Golf was
in a no stopping zone, and it was an obstruction to traffic traveling
in that lane. In those
circumstances a reasonable person could not
assume that he would be visible, and the plaintiff had failed to keep
a proper lookout.
[11] In
Frodsham v Aetna Insurance
Co.
1959 (2) 271 (AD) at 278H-279A, Schreiner JA said the
following with regard to the duties of a pedestrian walking in a
roadway
at night:
“
Street
lighting will be an element, but generally a pedestrian who at night
walks in a roadway with his back towards the direction
from which
vehicles, if any, will come, is negligent unless he satisfied himself
as often as is reasonable in the circumstances
that no vehicle is
bearing down on him from behind.”
See also
Gaba v Minister of Police
1975 (2) 220 (ECD) and
Vermaak v Parity Insurance Co. Ltd (in
Liquidation)
1966 (2) SA 312
(W).
[12]
However each case turns on its own peculiar facts. In the present
case the plaintiff, although walking on the road surface
in the path
of travel of vehicles approaching from behind, was not merely a
pedestrian choosing to walk from one place to another.
He was pushing
the Golf, which had effectively broken down, and was moving with the
Golf, together with three others, when he was
struck. The Golf’s
lights and hazard lights were on and the area was lit by street
lamps. Even though it was raining, there
was no evidence that
visibility was poor. Byleveldt, whose evidence I accepted, was clear
about the visibility. The Golf, together
with the people pushing it,
was to some extent an obstruction in its lane of travel, in the sense
that it was stopping and starting,
but because of its lights, hazard
lights, and the street lights, would have been visible to a driver
approaching from behind. In
these circumstances I am of the view that
a reasonable person in the position of the plaintiff would not have
foreseen that the
driver of a vehicle approaching from behind would
fail to see the Golf and the persons pushing it, and not take
avoiding action.
In addition, there was not much traffic on the road,
and a reasonable person in the position of the plaintiff would have
expected
that a vehicle approaching from behind in the left hand lane
would not only see the Golf and the four persons pushing it, but
would
move into the right hand lane in order to move past it. I agree
with the submission on behalf of the plaintiff that the Golf was
similar to a slow moving vehicle and that it made no difference
whether the plaintiff was a passenger in it or pushing it. A driver
approaching from behind would normally overtake such a vehicle in the
right hand lane.
[13] Even if the plaintiff had looked
behind him, it is uncertain whether he would have seen the insured
vehicle, and thus avoided
the collision. The driver of the insured
vehicle did not testify and it is therefore not known where he came
from. The insured
vehicle was therefore not necessarily approaching
from a point where it would have been visible had the plaintiff kept
a proper
lookout.
[14] With regard to the submission
that the plaintiff was under the influence of alcohol, there was no
evidential basis for finding
that the alcohol he had consumed had
impaired his judgment or influenced his behaviour.
[15] I am therefore satisfied that no
negligence on the part of the plaintiff was proved and that the
negligence of the driver of
the insured vehicle was the sole cause of
the collision.
[16] The following order is made:
[16.1] It is declared that the
negligence of the driver of motor vehicle with registration number
BMP 301 EC, was the sole cause
of the collision which occurred on 30
June 2007, in which the plaintiff sustained bodily injuries.
[16.2] The defendant is ordered to pay
the costs of the trial in respect of the issue of negligence, such
costs to include the costs
of an inspection in loco and photographs.
______________
J.M.
ROBERSON
JUDGE
OF THE HIGH COURT
Appearances
Plaintiff:
Adv. L. Schubart SC, instructed by Johan Cronjé Attorneys, c/o
Heine Ungerer Attorney, Port Elizabeth.
Defendant:
Adv. N. Paterson, instructed by Karsans Incorporated, c/o Wilke Weiss
Van Rooyen Inc., Port Elizabeth.