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[2012] ZAECPEHC 40
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Jacobs v Road Accident Fund (3335/2009) [2012] ZAECPEHC 40 (19 June 2012)
IN
THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case
No.: 3335/2009
Date
Heard: 14 June 2012
Date
Delivered: 19 June 2012
In
the matter between:
ALBERT
REGENALD JACOBS
…..................................................
Plaintiff
and
THE ROAD ACCIDENT FUND
…...............................................
Defendant
JUDGMENT
EKSTEEN J:
[1] On the evening of 31 July 2007
at approximately 18h50 the plaintiff sustained severe bodily injuries
in a motor vehicle collision
which occurred on the road between
Rocklands and Uitenhage when his vehicle left the trafficable surface
of the road and overturned
on the gravel verge. The plaintiff alleges
that he was presented with a sudden emergency when one approaching
vehicle (“the
unidentified insured vehicle”) overtook
another thereby moving onto its incorrect side of the road in the
face of the approach
of the plaintiff. The plaintiff claims that he
was obliged to take evasive action which caused him to lose control
of his vehicle.
The plaintiff accordingly claims damages against the
defendant.
[2] By agreement between the parties
the issues relating to the causation of the accident and the
negligence giving rise thereto
have been separated from the other
issues in the matter and I am accordingly called upon to determine
solely whether the defendant
is liable for all or part of such
damages as the plaintiff may have suffered in as a result of the
collision.
[3] Mr Shaun Myburgh is a pig farmer
resident on the smallholding Withoogte which lies immediately
adjacent to the road leading
from Rocklands to Uitenhage. His house
and his shed are situated more or less alongside one another
approximately 100 metres away
from the tarred road. There are
numerous large trees between the shed and the road in the vicinity of
his boundary fence.
[4] Mr Myburgh was standing outside
his shed on the evening of 31 July 2007 and paid no particular
attention to the traffic on the
tar road until he suddenly heard a
noise, which he subsequently concluded was caused by tyres dragged
across gravel, which was
followed by two or three loud noises. He
looked up in the direction of the road slightly to his left towards
Rocklands and noted
there the lights of a stationary motor vehicle
shining directly into his property across the veld. He stood still,
petrified, for
approximately twenty seconds and then, realising that
an accident had occurred, ran to the scene. On his arrival at the
scene he
found the motor vehicle of the plaintiff lying on its side,
on top of his boundary fence and up against an electrical pole with
the plaintiff trapped beneath the body of the vehicle. A second
vehicle, which he assumed had been following the plaintiff’s
vehicle, had also come to a stop at the scene. He did not however
speak to the driver of this vehicle. Thereafter a number of people
gathered there and the police, the fire services and the traffic
department all arrived. The fire services lifted the vehicle so
as to
release the plaintiff and he was removed to hospital. Myburgh did not
speak to the police who attended at the scene.
[5] Mr Myburgh states that the speed
limit on the road in front of his property is 100km/h. The road had a
tarred surface which
he considered to have been in a relatively good
condition and it was dry. As previously recorded it was already dark.
At the entrance
to his smallholding, Mr Myburgh says, there is a
barrier line for traffic travelling from Uitenhage towards Rocklands.
Ordinarily
the road carries significant traffic which is, in the
evenings, predominantly in the direction from Uitenhage towards
Rocklands.
[6] Under cross-examination Mr
Myburgh states that from where he was standing at the shed he has a
clear view, but for the trees,
of the road. Beyond the trees the road
proceeding towards Rocklands is clearly visible and motor vehicles
travelling towards Rocklands
would have been visible from his
position provided they had their headlights on. Mr Myburgh expressed
the view that had motor vehicles
travelled along that stretch towards
Rocklands immediately after the collision had occurred he would have
seen such vehicles. He
did not see any vehicles there. Mr
Paterson
,
on behalf of the defendant, suggested to Mr Myburgh that if the
version of the plaintiff was true the unidentified insured vehicle
would logically have continued to travel down that stretch of road
towards Rocklands. Mr Myburgh reiterated that he did not see
such a
vehicle and reaffirmed his opinion that he would have seen such a
vehicle had it travelled there. Mr Myburgh was not aware
of any other
vehicle involved in the collision save that of the plaintiff.
[7] The plaintiff testified that he
is an electrical contractor and had been at a meeting in Coega on 31
July 2007 whilst his workforce
were engaged in contract work on Cape
Road in the area of Hunter’s Retreat. After concluding his
meeting at Coega, at approximately
17h00, he proceeded to the
worksite where his workforce had been engaged. He inspected the site
and thereafter proceeded to the
Hunter’s Hotel where he had two
beers, as he often did after a busy day’s work.
[8] The plaintiff then proceeded to
go home, along the road from Rocklands to Uitenhage, where he lives.
He says that he was travelling
at about 80-90km an hour with his
headlights on. He noted a vehicle approaching from the opposite
direction, also with its headlights
on. When the approaching vehicle
was approximately 50-60 metres ahead of him he suddenly noticed the
headlights of the unidentified
insured vehicle emerging from behind
the first vehicle and it then proceeded to overtake the first vehicle
directly in the face
of the plaintiff’s approach. The plaintiff
says that the unidentified insured vehicle was directly in front of
him in his
lane and he was obliged to swerve off the trafficable
surface in order to avoid a head-on collision. In this process he
lost control
of his vehicle and it rolled.
[9] Under cross-examination the
plaintiff was confronted with an affidavit which he had made to the
defendant in terms of the
Road Accident Fund Act, 56 of 1996
prior to
the summons. In the statement the plaintiff had recorded as follows:
“
Just
before the S-bends at the crest of the plateau, and just before the
road makes a detour towards the S-bends, I accounted vehicles
from
the front in the oncoming lane and all of sudden a vehicle overtook
these vehicles and approached me head-on in my lane.”
(
Sic
)
[10] The plaintiff contends that the
statement contains an error in that he had observed only two vehicles
approaching him and that
the following vehicle had overtaken the
leading vehicle. He is unable to account for the error although he
did read the statement
before signature. I pause to mention that the
plaintiff is Afrikaans speaking and he says that he is not fluent in
English although
he does understand a bit of it.
[11] The plaintiff was also taxed on
his failure to have reported the matter to the police and his failure
to have made a statement
to the police. In this regard the plaintiff
states that he was hospitalised and had been in hospital for a week
or two. Upon his
release from hospital he was telephoned by a police
officer who had indicated that he would contact him later. The police
officer
was not true to his word and the plaintiff says that he did
not of his own initiative approach the police.
[12] The plaintiff did institute a
comprehensive insurance claim in respect of the damage to his
vehicle. The claim was submitted
via his broker, one Adele Kolesky.
The documentation relating to the claim is admitted and has been
handed in. It emerges from
these documents, and from the evidence of
Ms Kolesky to which I shall refer below, that the claim was reported
to her on 1 August
2007. On the same day she lodged the claim with
Santam Insurance. In lodging the claim Ms Kolesky recorded as
follows:
“
Telephonic
claim: Description of event. Kliënt het on ‘n draai gegaan
en effens van die pad af en toe het die kliënt
oor ‘n
slaggat gery, beheer verloor en die voertuig het gerol.”
This recordal of the event makes no
mention of any oncoming traffic which gave rise to the plaintiff
swerving off the trafficable
surface.
[13] Confronted with this recordal
in cross-examination the plaintiff initially acknowledged that the
version of events must have
been obtained from him as he was the only
person who knew what had occurred and he postulated that the report
records what he would
have relayed in respect of the events which
occurred after he had been confronted with the sudden emergency and
after he had swerved.
He states that he is unsure whether he or his
wife would have reported the event but stated, although he had no
recall thereof,
that the version must have come from him. In
re-examination, however, when he was referred to medical records and
the fact that
he was at that stage in hospital the plaintiff states
that he was in no position whatsoever to make any telephone call and
if the
report was made on 1 August 2007 he does not think it could
have come from him. He continued to state that he is unaware of any
pothole as referred to but states that his son had advised him the
following day that he had been to the scene of the accident
and that
it would appear that he, the plaintiff, had driven through a pothole.
The version reported to Santam Insurance accords
with the alleged
observation by plaintiff’s son.
[14] Prior to litigation the
plaintiff was questioned by an employee of the defendant. He gave an
explanation as to the manner in
which the collision occurred which
accords with his evidence in court, save that it too refers to the
vehicle hitting a hole. Plaintiff
does not deny that he advised the
defendant accordingly but states that he does not have any knowledge
of a pothole.
[15] Finally, the plaintiff was
taxed on his consumption of alcohol which did not form part of the
initial report made to Santam
Insurance nor did it form part of the
discussion held with the defendant. Plaintiff readily acknowledged
that he had consumed two
beers and when it was put to him that he was
under the influence of alcohol he admitted same, stating that he had
consumed two
beers. Notwithstanding the aforegoing admission he
states that he did not feel that the two beers had had any effect on
his conduct
or his ability to drive.
[16] Both Myburgh and the plaintiff
made a favourable impression upon me in the witness box. Myburgh is
an independent witness who
testified in a very straightforward manner
as to what he had seen. The plaintiff, although taxed with a number
of inconsistencies
contained in documentation, remained unshaken in
his version. I shall revert to these issues below.
[17] The defendant called Ms Adele
Kolesky. She confirms the notification of the claim as set out
earlier and her lodgement thereof
with Santam Insurance in the terms
which I have recorded earlier. She states that she was never advised
of the presence or involvement
of any other vehicle save that of the
plaintiff. She is however unsure who made the report to her and
states that it may have been
reported to her by the plaintiff’s
son.
[18] At a later stage, on 30 August
2007, when the claim was paid out the plaintiff signed a general
release form. Ms Kolesky’s
signature appears on this document
as a witness. She testified that in general the release form would be
sent to her by the insurance
company in order to acquire the
claimant’s signature. In the present instance she is unsure
whether the plaintiff signed
this document in her presence or whether
she had sent it on to him for signature. She does however acknowledge
that she signed
as a witness.
[19] On the evidence plaintiff
contends that I should hold that the collision was due solely to the
negligence of the unidentified
insured driver. On behalf of the
defendant, on the other hand, it is argued that I should reject the
plaintiff’s evidence
and dismiss the claim.
[20] It is common cause that the
ordinary civil onus, on a balance of probabilities, rests upon the
plaintiff to establish the negligence
on the part of the unidentified
insured driver. There is only one version of the events which gave
rise to the accident, that being
the version testified to by the
plaintiff. No other eyewitness to the collision testified. On an
acceptance of the plaintiff’s
evidence it seems to me that the
unidentified insured driver was clearly negligent in overtaking
another vehicle at a time when
it was both dangerous and inopportune
to do so and in the face of the plaintiff’s oncoming vehicle.
Although the defendant
has pleaded contributory negligence nothing
has emerged from the evidence upon which I can make a finding that
the plaintiff, on
his own version, was also negligent. I shall revert
to this issue below.
[21] Mr
Paterson
, on
behalf of the defendant, argues that the plaintiff has not discharged
the onus and that I should reject the evidence of the
plaintiff. Much
reliance is placed on the evidence of Mr Myburgh. It is true that Mr
Myburgh did express the view that had there
been traffic in the
direction from Uitenhage to Rocklands which proceeded beyond the
point of the collision immediately after the
collision he would have
seen such traffic. This, at best for the defendant, is only an
opinion. This, in my view, cannot displace
the evidence of the
plaintiff. Mr Myburgh was going about his own business when his
attention was drawn to the motor accident.
Understandably, on his own
evidence, he gazed in amazement for a short period and then rushed to
the scene of the accident. I have
no doubt that his attention would
have been firmly focused on the plaintiff’s vehicle which had
overturned on the gravel
verge. When he arrived at the scene he
states that a second vehicle which he assumed had been following the
vehicle of the plaintiff
had also arrived and stopped at the scene.
That his attention was not focused on other traffic on the road is
borne out by the
fact that he never observed the motion of this
vehicle and he was constrained to concede that he did not know
whether the vehicle
in fact followed the plaintiff’s vehicle.
Although he concluded that no other vehicle had been involved in the
collision
I do not think that his evidence is destructive of the
plaintiff’s version.
[22] Mr
Paterson
has
placed considerable weight on the plaintiff’s initial
acknowledgement in cross-examination that the version of the accident
which was reported to Santam Insurance, which makes no mention of any
other vehicle, must have been obtained from him. I think
however that
there is some force in the counter-argument raised in re-examination
that it is improbable that such a version could
have emanated from
him on 1 August 2007. It is common cause between the parties that he
was at that stage in the intensive care
unit of the hospital. He
testifies that he has no recall of any events during that period and
his first continuous recall of events
after the accident was from the
afternoon of 2 August 2007. This, coupled with his evidence that his
son had attended at the scene
of the accident and advised him that he
must have hit a pothole seems to me to indicate a real likelihood
that the version reported
to Ms Kolesky emanated from his son. Ms
Kolesky concedes that she was unable to recall who had notified her
of the claim and then
adds, spontaneously and of her own volition,
that it may have been the plaintiff’s son who phoned. I am
accordingly of the
view that the plaintiff’s initial conclusion
that the version presented to Santam Insurance “must have been”
obtained from him, may well be incorrect. I certainly did not gain
the impression that the plaintiff may be dishonest.
[23] The affidavit made by the
plaintiff and which was referred to in cross-examination is a typed
document. That its preparation
lacked meticulous attention is
apparent from the obvious language error contained in the portion
relied upon – “…
I accounted vehicles from the
front …”. If the plaintiff did read the statement prior
to signature without identifying
such glaring deficiencies it seems
to me to corroborate his alleged limitations relating to the English
language. In any event,
accepting the discrepancy between his
evidence and this statement, it does not undermine his version of
events giving rise to the
accident. His version remains consistent
that the unidentified insured vehicle moved onto its incorrect side
of the road as it
proceeded to execute an overtaking manoeuvre in the
face of the approach of the plaintiff.
[24] Mr
Paterson
has
alluded too to the observations contained in the police accident
report, which similarly reflects a conclusion that it had
been a
single vehicle collision. This version could clearly not have been
obtained from the plaintiff at the scene of the collision
and it is
perfectly acceptable that any observations made at the scene of the
collision would have been suggestive of a single
vehicle collision as
there was no impact between the unidentified insured vehicle and the
plaintiff’s vehicle. In these circumstances
I do not think that
the observations of the police officer who attended at the scene of
the collision advances the debate at all.
In any event, he did not
testify, and I have no evidence of the reasons for his conclusions or
the source of his information.
[25] On a consideration of all the
evidence I do not find any basis upon which the plaintiff’s
evidence could be rejected.
His version of the events accords with
probability and is the only eyewitness account before me. In the
circumstances I find that
the driver of the unidentified insured
vehicle was negligent and that his negligence contributed to the
causation of the accident.
[26] Although the defendant has
pleaded, in the alternative, in the event that I find that the driver
of the unidentified insured
vehicle was negligent, that the plaintiff
was also negligent and that his negligence was a contributory cause
of the accident,
the defendant is bound to rely on the evidence of
the plaintiff in respect of the manner in which the collision
occurred for purposes
of this argument. Mr Paterson, on behalf of the
defendant, correctly in my view, acknowledged that he had difficulty
in promoting
an argument in support of this pleading. He did however,
somewhat tentatively, argue that I should find that the plaintiff too
was negligent in that he drove his vehicle at a time when his
facilities were impaired by the consumption of alcohol and that he
drove too fast in the circumstances. In respect of the latter there
is no basis for such a finding. The plaintiff travelled at
a speed of
approximately 80-90km/h in an area where the speed limit is 100km/h.
The road is relatively straight and the evidence
is that it was a
tarred road with relatively good surface which was dry. The plaintiff
was readily forthcoming in evidence with
the fact that he had
consumed two beers but stated that he did not think that the intake
of alcohol had affected his driving ability.
No cross-examination was
directed at the effect of such alcohol on his driving and no evidence
was led which could be indicative
of any impairment.
[27] In all the circumstances I am
of the view that the defendant has not established negligence on the
part of the plaintiff. I
conclude accordingly that it was exclusively
the negligence of the driver of the unidentified insured vehicle
which gave rise to
the collision.
[28] In the result I make the
following order:
1. The defendant is liable to the
plaintiff for such damages as the plaintiff is able to establish that
he has suffered in and as
a result of the collision which occurred on
31 July 2007.
2. The defendant is ordered to pay
the plaintiff’s costs occasioned by the trial in respect of the
merits, such costs to include
the costs of one inspection
in loco
attended by counsel and the plaintiff’s attorney.
3. The defendant is ordered to pay
interest on the plaintiff’s taxed costs calculated at the legal
rate from a date fourteen
(14) days after taxation to the date of
payment.
______________________
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff: Adv A Frost
instructed by Tewies Labuschagne Attorneys, Port Elizabeth
For Defendant: Adv N Paterson
instructed by Joubert Galpin & Searle Inc, Port Elizabeth