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[2013] ZAECPEHC 15
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Freiss v Road Accident Fund (1066/2012) [2013] ZAECPEHC 15 (12 March 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case No.: 1066/2012
Date heard: 01 February 2013
Date
delivered: 12 March 2013
In the matter between:
YOLANDI
VANESSA FRIESS
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
J U D G M E N T
DAMBUZA, J
:
The plaintiff claims damages against
the defendant (the Road Accident Fund or the Fund) for injuries
sustained by her in a motor
vehicle accident on 7 March 2008.
The undisputed facts are that on that
day the plaintiff was driving her motor vehicle along the N2
national road, between Knysna
and Sedgefield, when her vehicle
collided with a road barrier on the side of the road on which she
was travelling. The plaintiff
was in the company of Charl Van
Rooyen, a friend of hers, when the collision occurred.
The plaintiff’s evidence was
that at about 9pm on the night in question she was on her way to
visit her mother in Rheenendal,
outside Knysna when the collision
occurred. It was dark and raining and visibility was poor. The
plaintiff had driven from
Port Elizabeth where she lived at the
time. Having driven past Knysna in the direction of
Sedgefield-Cape Town, the plaintiff
realized that she had missed the
exit to Rheenendal from the N2 Road. The portion of the national
road on which she was travelling
was a double carriage way in each
direction. On realizing that she had driven past the exit, the
plaintiff decided to travel
on the inner lane of the road, with the
intention of turning right or making a U- turn back to the
Rheenendal exit when it was
safe to do so. Whilst driving in that
lane, she reached an incline where the road also curved to her
right. She became aware
that another vehicle or other vehicles
were approaching from the front, on the other side of the curve when
she saw lights approaching
from a distance. It turned out that two
trucks were approaching from the opposite direction. As these
vehicles drew closer
to her, the plaintiff realized that one of them
was overtaking and was travelling on the same lane in which she was
travelling.
She applied brakes, swerving, at the same time, to her
left. Her car skidded across the outer lane to her left and collided
with
the road barrier on the verge of the road. It then
“spun
around”
before coming to stop.
Neither of the two trucks stopped at
the scene of collision. The plaintiff and Van Rooyen phoned the
plaintiff’s mother
who immediately drove to the scene.
Although the plaintiff’s vehicle was damaged, she was able to
drive it to her mother’s
home where both she and Van Rooyen
spent the night. The following morning they went to report the
collision at the Knysna Police
Station and thereafter drove back to
Port Elizabeth.
In the summons the plaintiff alleges
that the driver of the insured vehicle (the truck which was
overtaking) was negligent in
the manner in which he or she drove the
insured vehicle in that:
“
4.1 He
failed to keep a proper lookout.
4.2 He
overtook a truck at a time when it was dangerous and inopportune to
do so.
4.3 He
travelled on the incorrect side of the road at a time when it was
dangerous or inopportune to do so.
4.4 He
failed to have due regard for other road users, more particularly the
plaintiff.”
(sic)
In denying liability for the damages
claimed, the defendant admits that the collision occurred but denies
that the plaintiff swerved
out for an oncoming truck. The defendant
contends that the collision was caused solely by the negligence of
the plaintiff.
No evidence was led on behalf of the defendant.
No submission was made, during
argument, that the plaintiff should not be believed or that for some
reason she was not a credible
witness or that her evidence is not
reliable. I also could not find that her evidence regarding the
manner in which the accident
happened was not true. I am satisfied
that she was a credible witness. It was not in dispute that she had
phoned the police
on the night of the collision, that she personally
reported the accident on the morning following the collision and
that her
version thereof had been consistent at all times.
Mr
Niekerk
, who appeared on behalf of the plaintiff, submitted that
although the plaintiff was a single witness the fact that a
statement
made to the police by Van Rooyen (who has since died) was
consistent with the plaintiff’s version of the collision,
provides
support for the plaintiff’s evidence. No submission
to the contrary was made on behalf of the defendant. Van Rooyen’s
statement is part of the record.
Mr Marais
who appeared on
behalf of the defendant, merely submitted that the plaintiff’s
own evidence proves that she drove negligently
and failed to comply
with the duty on road users to drive in the left hand lane of the
road and only use the second (right hand
lane) to overtake.
It is a basic rule of careful driving
that a
“prudent
motorist driving on a road commonly used by the public should
foresee the possibility of encountering stationary,
slow or fast
moving traffic; pedestrians, animals and obstructions generally; and
of being confronted with a diversity of situations
(both usual and
unusual) which may create actual or potential emergencies. He
should appreciate that other road-users enjoy
an equal right to use
the road and that the law imposes reciprocal duties on all persons
using the road. To ensure that he does
not harm other road-users a
motorist should drive at a speed at which he is able to stop within
his range of vision.”
1
On the other hand, the courts accept
that a driver who is suddenly confronted with an unexpected danger
cannot be held to be negligent
merely because in that emergency he
does not act in the best way to avoid that emergency.
2
I agree with the submission on behalf of the plaintiff that a
vehicle travelling on its incorrect side (such as the overtaking
truck did in this case) gives rise to a sudden emergency.
3
During cross-examination it was put
to the plaintiff that on encountering the unexpected danger she
could have swerved to her
left and continued driving on the outer
lane of the road thereby, avoiding the collision. It may be that
the suggested avoiding
action could have been taken successfully.
But, I do not think that the plaintiff’s conduct in applying
brakes and swerving
to her left was negligent. The argument that
the plaintiff drove negligently because the avoiding act she took
was not successful
is, in my view, flawed. I am satisfied that the
plaintiff made a reasonable attempt at avoiding a collision. That
is what the
law requires of road users. The plaintiff’s
undisputed evidence was that shortly before the collision she had
been travelling
at approximately 60 to 70 kilometres per hour. In
the absence of evidence showing that the speed at which the
plaintiff was
travelling was the cause of the collision, I cannot
find that excessive speed was the cause of collision as it was
submitted
on behalf of the defendant. I can also not find that the
plaintiff drove negligently by failing to stop the vehicle from
skidding
and colliding with the barrier.
Further, I do not agree that the
plaintiff by driving on the inner lane of the road the plaintiff
acted negligently. Whilst
it is true that a driver on a public
road has had the duty to drive on the left hand side of the roadway,
encroachment or overtaking
by driving on the right side of the road
is permitted where this can be done without obstructing or
endangering traffic. In
this case the evidence is that the
plaintiff’s side of the road was a double carriage way. There
is no evidence that there
was any other vehicle travelling in the
same direction in the immediate vicinity of the plaintiff. Her
evidence was that she
intended to turn to the right and/or make a
U-turn at the first opportune moment. In the circumstances, it was
only reasonable
that she drove as close as possible to the centre
line to facilitate a quick and efficient turn and to leave the outer
lane clear
for road users travelling behind her.
Mr Marais
submitted that at the very least I should find that the plaintiff’s
own negligence contributed to the collision. The submission
was
that although the defendant has not expressly pleaded contributory
negligence, there is an averment in the defendant’s
plea that
the plaintiff drove negligently. In
Van
Niekerk v Labuschagne
4
the Court had occasion to consider the very same submission made on
behalf of the defendant. In that case Wynne J held that:
“
The
essence of the law as now amended is that apportionment operates
where plaintiff has suffered damage caused partly by his own
fault
and partly by the fault of defendant. Any form of pleading which
seeks to rely upon such apportionment must consequently
allege this
state of affairs specifically; otherwise it is excipiable.”
Where a plaintiff establishes that
the defendant was negligent, the defendant bears the onus of
alleging and proving
negligence
on the part of
the plaintiff before apportionment of damages can take place. In
this case, just as in
Van
Niekerk
(supra)
the defendant, in the
plea, merely alleges that
“the
collision was due to the sole negligence of the plaintiff”,
thus speciously referring
to negligence
in
vacuo.
5
I can do no better than
to refer to the remarks made by Wynne J in
Van
Niekerk
6
that:
“
Even
before the Apportionment of Damages Act operated, it was necessary
for a defendant to plead specifically that he sought to
rely upon
plaintiff’s contributory negligence—not necessarily by
employing the label “contributory” but
by interrelating
the negligence relied upon and the causation of the damage so as to
make clear the nature of such negligence.”
In my view, contributory negligence
is not an issue in this case. In any event, even if I were to
accept that the plaintiff
was negligent in driving on the inner lane
of the road, the defendant still had to prove that such negligence
contributed to
the collision.
“In
determining whether a party’s fault contributed to the damage
complained of, the test of causation already evolved
by the South
African courts, ... should be applied. Thereafter the court should
proceed to determine the degree to which each
party was at fault.”
7
Regarding the amount of damages
claimed, the plaintiff’s evidence was that on the night of the
collision she was only aware
of having bumped her head against an
object. It was only on the morning following the collision that she
felt stiffness of her
whole body and pain on the right shoulder. On
returning to Port Elizabeth, she consulted Dr Van Zijl, a general
practitioner.
She was referred to a physiotherapist with whom she
had three treatment sessions and also to a chiropractor with whom
she had
“four or five”
sessions.
Five days after visiting Dr Van Zijl,
the plaintiff discovered that she was pregnant; she therefore could
not continue taking
pain medication and thus had to endure the pain.
During her pregnancy she experienced considerable back pain and
lower back
muscle spasm. As a result of this pain child birth had
to be induced at about a week prior to her due delivery date.
The plaintiff’s further
evidence was that as a result of the injuries sustained by her in
the accident she had to cease
her participation in sport activities;
particularly the Ironman triathlon and the Ocean Swim Series, in
which she regularly
participated prior to the collision. She could
no longer maintain her previous training regime of 6 days of
cycling, swimming,
running and indoor training. Further, she
experiences considerable pain when driving long distances, which is
relatively often
in the course of her employment.
In the summons the plaintiff claims
an amount of R214,735.00 for:
Past
medical expenses
R2,235.00
Future
medical expenses
R92,500.00
General
Damages
120,000.00
R214,735.00
At the start of the trial counsel
brought to my attention that the defendant had admitted liability
for the R2,235.00 claimed
as past medical expenses. Further the
parties had agreed that the defendant would furnish an undertaking
in terms of section
17(4) of the Road Accident Fund Act, 56 of 1996
(the Act) in respect of all future medical and related expenses that
may be
incurred by the plaintiff as a result of the accident. These
admissions are also recorded in the Rule 37 minute prepared on
behalf of the parties.
Turning to general damages suffered
by the plaintiff, apart from consulting Dr Van Zijl, the
physiotherapist and the chiropractor,
the plaintiff consulted Dr
Basil Mackenzie on 30 September 2009 (a year and a half after the
collision). In his medico-legal
report Dr Mackenzie states that Dr
Van Zijl diagnosed the injury sustained by the plaintiff to be a
“whiplash injury at neck”
, that she
“presented
clinically with pain, spasm and headache. She also complained
specifically of pain over her right scapula area
and right rib
cage”.
The treatment prescribed by Dr Van Zijl included
an oral anti-inflammatory, a cortisone injection and
“[V]oltaren
intramuscularly”.
The plaintiff’s evidence was
that she had sustained rib fractures in a previous motor vehicle
accident, seven years prior
to the accident in question. She had
also been in another accident a year prior to the accident in
question. In the last accident
she sustained a whiplash.
According to Dr Mackenzie, the
plaintiff’s
“only”
complaint at the time of
consulting him, was
“pain, stiffness and what she described
as tension along the vertebral border of her right scapula”
which became worse when she drove long distances or when she sat
in front of a computer for any length of time. To Dr Mackenzie
the
plaintiff denied any residual neck pain and stated that she suffered
occasional headaches which she attributed to work stress
“particularly in the present economic climate”
.
Dr Mackenzie found that the plaintiff experienced pain on being
palpitated along the vertebral border of her right scapula,
especially on the muscles adjacent the superior angle. Further,
protraction and retraction of her right scapula resulted in
pain;
but the ranges of shoulder movements were normal and there was no
evidence of any
“rotator cuff”
impingement. She
experienced no pain on being palpated on the muscles at the back of
her neck and the ranges of cervical and
spinal movements were
normal. Dr Mackenzie concludes that as a consequence of her
injuries the plaintiff suffered moderately
severe pain which is
posture activity related and not disabling. Although he discounts
the need for scapula-thoracic arthroscopic
surgery he remarks that
he would not dissuade the plaintiff from undergoing same in the
future where recommended by another doctor.
He opines that such
surgery would be followed by severe pain for approximately four to
five days and necessary physiotherapy
would aggravate the pain.
The evidence by the plaintiff
regarding lower back pain is unsatisfactory in my view. During
cross-examination she could not
explain why Dr Mackenzie would make
no mention of the pain if she had complained thereof. The language
used by Dr Mackenzie
in his report is specific. He states
specifically that the plaintiff told him that she was no longer
experiencing any neck pain,
that she attributed her headaches to
stress and that
“[n]o other complaints were volunteered,
nor could they be elicited”.
I am of the view that the
lower back injury complained of in the plaintiff’s evidence
has not been proved and that the neck
pain resolved at some stage
subsequent to the collision.
According to Dr Mackenzie, the
plaintiff is not precluded from swimming although her aspirations as
an athlete may never be satisfied.
The plaintiff’s impairment
as a whole person is assessed at 2%.
I was referred to a number of cases
for awards made to plaintiffs who sustained injuries comparable to
those sustained by the
plaintiff in this case. These include
De
Bruyn v Road Accident Fund;
8
Meyer v Shield Insurance
Co Ltd;
9
Brown v Multilateral Motor Vehicle Fund
10
,
and
Smith
v Mutual and Federal Versekeringsmaatskappy.
11
I have considered the relevant
aspects in these cases. My view is that the injuries sustained by
the plaintiff in
Meyer
and the
sequelae
thereof are
more similar in nature to those suffered by the plaintiff in this
case; whereas the
sequelae
in
Brown
and
Smith
are more debilitating and disabling than those suffered by the
plaintiff in this case. I also take into account that although
in
De
Bruin
the diagnosis of the plaintiffs injuries included a
moderately severe lower back injury; that the plaintiff in that
case experienced
pain for more than two years and he suffered an
overall impairment of 5%. My view is that in this case an award of
R70,000.00
would be fair and reasonable as damages for the injuries
sustained by the plaintiff.
Although the award I shall make falls
within the jurisdiction of the magistrate’s court, I am not of
the view that it was
unreasonable to institute proceedings in this
court. The plaintiff is therefore entitled to costs on the High
Court scale.
The damages awarded in favour of the
plaintiff are computed as follows:
Past
medical expenses
R2,235.00
Future
medical expenses
R70,000.00
R72,235.00
The order I grant is as follows:
The defendant is liable for the
damages suffered by the plaintiff as a result of the collision that
occurred on 7 March 2008.
It is ordered that the defendant
shall:
pay to the plaintiff R72,235.00 as
and for damages;
pay interest on the said amount at
the legal rate as from 14 days from date of this judgment until the
date of payment;
furnish the plaintiff with an
undertaking in terms of Section 17(4) of the Road Accident Fund 56
of 1996;
pay the plaintiff’s costs of
suit with interest at the legal rate, payable as from 14 days from
the date of taxation; such
costs shall include the qualifying costs
of Dr Basil Mackenzie.
____________________________
N
DAMBUZA
JUDGE
OF THE HIGH COURT
Appearances
:
For
the plaintiff:
Adv
D Niekerk
Instructed
by:
Jock
Walter Attorneys, Port Elizabeth
For
the defendant:
Adv
P Marais
Instructed
by:
Friedman
Scheckter Attorneys, Port Elizabeth
1
Cooper: Motor Law; Vol 2, Principles of Liability for Patrimonial
Loss at 57 to 58; including the authorities cited therein.
2
Morley v Wicks
1925 WLD 13
at 28.
3
See also
Marine and Trade Insurance Co Ltd v Mariamah
1978
(3) SA 480 (A).
4
1959 (3) SA (E) 562
at 566 D-E.
5
Van Niekerk (supra)
at 566 G.
6
Van Niekerk (supra)
at 566 G-H.
7
Cooper,
supra
at 203.
8
Corbett and Honey; The Quantum of Damages; Vol V at J2-69.
9
Corbett and Honey; The Quantum of Damages; Vol III at 606.
10
Corbett and Honey; The Quantum of Damages; Vol IV at C3-57.
11
Corbett and Honey; The Quantum of Damages; Vol IV at C3-45.