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[2012] ZAECPEHC 10
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Kritzinger v Road Accident Fund (954/2011) [2012] ZAECPEHC 10 (16 February 2012)
7
Reportable/Not
Reportable
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE –
PORT ELIZABETH
Case No: 954/2011
Date Heard: 14/02/12
Date Delivered:
16/02/12
In the matter between
JAKOBUS STEWART
KRITZINGER
….........................................
Plaintiff
and
THE ROAD ACCIDENT
FUND
….............................................
Defendant
JUDGMENT
REVELAS J
[1] The plaintiff
instituted an action for damages against the defendant as a result of
severe injuries he had sustained during
a motor vehicle collision
which occurred on 8 December 2008, in Uitenhage. The plaintiff was
the driver of a green 600 CC Kawasaki
motorcycle at the time. The
other vehicle involved in the collision (of the insured vehicle) was
a light weight Chana truck, driven
by Mr Eden Alexander. The accident
occurred at the intersection of Caledon Road, which is the main
through road in Uitenhage, and
Market Street, an access road.
[2] The principal
injury sustained by the plaintiff during the accident was a fracture
of his lower spine at T 10, which left him
a paraplegic confined to a
wheel chair, and with the loss of control over his bladder functions.
[3] On 31 January 2012
an order was made in terms of Rule 33(4) of the Uniform Rules of
Court, to the effect that the merits and
quantum of the plaintiff’s
action be separated. The matter therefore proceeded for trial only in
respect of the merits.
[4] Many facts in this
matter were common cause, such as the date, time and place of the
accident, as well as the point of impact
and the fact that the
insured vehicle (driven by Mr Alexander) ended up in the left hand
lane of Caledon Road where the travel
direction is east, i.e. in the
opposite direction. It is common cause that Market Street enters
Caledon Road but does not continue
over to the other side of it.
Caledon Road is a dual through way, separated by an island which is
more than three metres wide and
the traffic on either side of it
moves in two opposite directions.
[5] The two witnesses
for the plaintiff were the plaintiff himself, and Mr LLewelyn
Dickson, who was also driving in Caledon Road
in the vicinity of
where the collision in question occurred. It was further common cause
that the plaintiff and Mr Dickson were
travelling from east to west
in Caledon Road, away from Port Elizabeth, and in that area Caledon
Road consisted of two lanes.
[6] It was the case for
the plaintiff that Mr Alexander turned into, and attempted to cross
Caledon Road at a time when it was not
safe or opportune to do so and
that this was the sole cause of the accident. The defendant’s
case was that the plaintiff
drove his motorcycle at an excessive
speed, and that caused the accident. Therefore it was not liable to
compensate him for any
damages he suffered as a result of the
collision.
[7] According to Mr
Alexander, he drove in Market Street and wanted to turn right into
Caledon Road, travelling in the opposite
direction, towards Port
Elizabeth. To achieve that, he had to traverse both lanes in Caledon
Road in which the traffic moved west,
and turn right into the other
lanes in Caledon Road where the traffic moved east.
[8] Mr Dickson
witnessed the collision. He said he was travelling on his bakkie in
the left lane of Caledon Road, between three
and four o’clock
that afternoon, and the road was very busy. The traffic on his side
of the island travelled from East to
West. About sixty metres before
the intersection with Market Street, he had stopped at a robot
controlled intersection. Thereafter
he continued with Caledon Road
towards the Market Street intersection. He was travelling at a speed
of about 30 to 40 kilometres
per hour. He recalled one motor vehicle
driving infront of him, a white Polo. He also noticed the plaintiff
in front of him on
a motorcycle, but in the right lane. Mr Dickson
said he observed the insured vehicle coming out of Market Street,
crossing the
left lane of Caledon Road in which he was travelling
then continuing onto the right lane in which the plaintiff was
driving. The
plaintiff was about 15 metres away from the insured
vehicle at that stage. He saw that the plaintiff’s motorcycle
fell over
onto its side, taking the plaintiff with, and they skidded
under the insured vehicle, and perhaps collided with it. The insured
vehicle then drove over the plaintiff with its right rear wheel. At
the time he thought the plaintiff had applied his brakes so
forcefully to avoid colliding with the insured vehicle, that the
front wheels collapsed, causing the motorcycle to fall over and
skid
into the truck. Based on his own observations, he said there was
nothing the plaintiff could do to avoid the accident. To
the
plaintiff’s left was the white Polo, and to his right was the
island and the road with oncoming traffic travelling in
the opposite
direction.
[9] Mr Dickson said he
immediately stopped his car on the side of the road, close to the
collision, and switched off the engine
of the plaintiff’s
motorcycle. He emphasized that the plaintiff was not driving at an
excessive speed, which he estimated
to be about 50 or 55 kilometres
per hour, and added that being a motorcycle owner and driver himself,
he would have recognized
the sound of the motorcycle’s engine
accelerating if the plaintiff had been driving more than 55
kilometres per hour, or
at an excessive speed.
[10] The plaintiff also
denied that he drove at an excessive speed along Caledon Road. He had
also stopped at the robot controlled
intersection situated lower
down, before Market Street. When the robot turned green he continued
with Caledon Road, and he observed
two vehicles closely nexto him. He
said he was travelling at a speed of approximately 55 kilometres per
hour and noticed the insured
vehicle only when it was in his path of
travel, which was the right lane. To avoid connecting with the
insured vehicle “face
on” he pulled his motorcycle down
and caused it to fall over on its side. He was uncertain as to
whether he applied his brakes.
He was also not able to recall the
actual impact.
[11] The plaintiff
disputed Mr Alexander’s version (as put to him by the
defendant’s counsel), which was that the insured
vehicle
entered Caledon Road when it was safe to do so, as the plaintiff was
still far away when he entered the road, and because
of the
plaintiff’s excessive speed, covering a substantial distance in
a short period of time, the collision occurred.
[12] The plaintiff was
an experienced motorcyclist who had been driving motorcycles for
about twenty years when the accident occurred.
He was in possession
of a learner’s licence for the bigger 600 CC motorcycle he was
driving at the time. At all relevant
times before he was the holder
of a valid motorcycle licences for his three previous motorcycles.
[13] Mr Alexander,
testified that before he entered into Caledon Road he looked to his
right, then to his left, and then to his
right again. When he first
looked to his right for the first time he saw vehicles waiting for
the robot to turn green at the intersection
below. He said he noticed
a police van and a Polo (on his right). They were at a safe distance
from him at about thirty metres.
He said that he also saw the
plaintiff at a safe distance away, when he (Mr Alexander) had already
covered 75% of Caledon Road.
He disputed Mr Dickon’s evidence
that the plaintiff was fifteen metres away from him when he entered
Caledon Road. When he
looked left it was at the oncoming traffic in
the lane going from east to west into which he was about to turn.
When he looked
to his right for the second time, he observed the
motorcycle driven by the plaintiff suddenly very close to him. He
heard screeching
sounds and about four seconds later he felt the
impact on the rear wheel of his truck as the motorcycle collided with
his truck
and caused it to move into the left lane on the other side
of the island (where the traffic moved west). According to him, when
the impact occurred, the police van had not even passed him yet.
[14] Mr Alexander
repeatedly said that he moved into Caledon Road when it was safe to
do so. The correctness of this assertion was
the principal enquiry in
this trial. As a starting point I must stress that it stands to
reason that a higher degree of vigilance
is required from a driver
who wishes to turn right into a double lane road with traffic
travelling in opposite directions than
from the drivers in a through
road, than from the driver in the through road. In
Protea
Assurance Co Ltd v LTA Building (SWA) Ltd and Another
1988(1) SA
303 (AD) the following was held:
“
While
it is true that a driver in a through road does not have an absolute
right of precedence and is not relieved from the duty
of keeping a
general look-out, he is not under a duty to keep the cross-road under
the same careful observation which would be
required if it was not a
stop street”.
These remarks are also
applicable to the present enquiry where there was a yield sign at the
corner of Market Street and the main
through street. Mr Alexander
still had an
onus
to ensure that it was safe to enter the
through road. (See also:
Aboubaker v Holiday
1955(2) CPD 633
and
National Employers General Assurance Company Ltd vs Sullivan
1988(1) SA 27A at 36 D-F).
[15] It was significant
that Mr Alexander said that he saw the vehicles which were in the
lanes he intended to traverse waiting
for the robot to turn green at
the intersection lower down in the road. In an affidavit Mr Alexander
had made to the police more
than three years ago, and only five days
after the accident, he did not mention this. He said he was
approaching the yield sign
at the end of Market Street, when he saw
the police van and Polo approaching on his right. More significantly,
he said that it
was when he was turning, that he saw the plaintiff
approaching him in the right lane. In other words, that is when he
first noticed
the plaintiff.
[16] Mr Alexander’s
explanation for his statement to the police being either incomplete
or contrary to his court testimony,
was that he did not know for what
purpose he was required to make the statement, ought to be rejected.
The preamble to the statement
clearly states that he was being
investigated in respect of possible negligent and/or reckless driving
charges. The statement is
also made in Mr Alexander’s own
handwriting.
[17] The plaintiff and
Mr Dickson corroborated each other in all material respects. Both
were prepared to make concessions which
could have been adverse to
the plaintiff’s case. Their combined version is also to a large
degree corroborated by Mr Alexander’s
statement to the police,
which seems more probable than this testimony in court. On the
uncontradicted evidence of Mr Dickson and
the plaintiff, the
plaintiff’s motorcycle was fifteen metres away when the insured
vehicle entered the plaintiff’s
lane.
[18] During
cross-examination, Mr Alexander’s evidence was that he saw the
plaintiff seven metres away from him when the insured
vehicle had
already covered eighty percent of the right lane in which the
plaintiff was travelling. It already had its nose past
the island,
and as he was about to turn right, he suddenly saw the “bike on
top of me”. The aforesaid evidence also
suggests strongly that
if it is correct, an accident was in any event bound to happen.
Therefore, on his own version it was not
safe for him to negotiate
Caledon Road in the way and at the time he did.
[19] Mr Alexander did
not impress me as a truthful witness, whereas the plaintiff and Mr
Dickson did. I accept the plaintiff’s
version of the accident
as supported by Mr Dickson who was also an independent witness.
[20] In my view, the
plaintiff had limited opportunity and very little time to react to
the danger of the impending collision. With
moving traffic on either
side of him, he could not swerve to any side. Whatever pressure he
applied to the brakes would not have
mattered in the prevailing
circumstances. Therefore there was also no contributory negligence on
the part of the plaintiff. Accordingly,
the driver of the insured
vehicle was solely to blame for the accident.
[21] Therefore, the
defendant is liable to pay to the plaintiff such damages as he may
prove he had suffered as a result of the
injuries he sustained during
the collision which occurred on 8 December 2008.
[22] The defendant is
to pay the plaintiff’s costs of suit which shall include the
costs of the pre-trial conference (attended
by plaintiff’s
counsel), the inspection
in loco
and photographs of the scene
of the accident.
__________________
E REVELAS
Judge of the High Court
Counsel for the
Plaintiff: Adv L Schubart
Instructed by: Johan
Cronjè
c/o Heine Ungerer Att.
25 Cape Road
Central
Port Elizabeth
Counsel for the
Defendant: Adv Silandela
Instructed by: Wilke
Weiss van Rooyen Inc
2 Cuyler Street
Central
Port Elizabeth
Date Heard: 14 February
2012
Date Delivered: 16
February 2012