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[2018] ZAECPEHC 30
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Du Plessis v Road Accident Fund (3645/2016) [2018] ZAECPEHC 30 (28 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 3645/2016
Date heard: 15
June 2018
Date
delivered: 28 June 2018
In
the matter between
PHILLIPUS
ARNOLDUS DU
PLESSIS Plaintiff
And
ROAD
ACCIDENT
FUND Defendant
JUDGMENT
GOOSEN,
J.
[1]
On
27 September 2014 a collision occurred between a motorcycle, driven
by the plaintiff, and a motor vehicle driven by Mr Sampson,
the
insured driver. The collision occurred at approximately 7.00pm near
the intersection between Buffelsfontein Road and Glendore
Road.
[1]
As a result of the collision the plaintiff suffered certain injuries.
He accordingly instituted a claim for damages against the
defendant.
The parties reached agreement in relation to the quantum of each of
the heads of damages. What remained in issue was
the determination of
the liability of the defendant.
[2]
The
plaintiff’s claim was formulated on the basis that the insured
driver was solely negligent. It is alleged that he failed
to keep a
proper lookout; drove at an excessive speed in the circumstances;
failed to apply the brakes of his vehicle timeously
or at all;
travelled without the vehicle headlights on and failed to avoid the
collision when he could and should have done so.
The defendant denied
that the insured driver was negligent in any manner. What is to be
determined therefore is whether the plaintiff
has, on the evidence,
discharged the
onus
,
on a balance of probabilities, that the insured driver was negligent
in one or more of the respects pleaded.
[3]
The
plaintiff testified that on the afternoon of 27 September he had gone
to a friend’s house for a meal. He was returning
home at
approximately 7pm that evening. He was travelling in Glendore Road
(in a northerly direction) towards the intersection
with
Buffelsfontein Road. The intersection is a T-junction. Buffelsfontein
Road is a main road which runs in an east-west direction.
The
intersection is controlled by a stop sign in Glendore Road.
[4]
It
was raining that evening and the road surface was wet. Visibility was
not good. It was already dark and the street lights were
on. The
headlamp of the plaintiff’s motorcycle was also on.
Buffelsfontein Road is lit with street lights which are situated
on
the northern curb of the road. Glendore Road is also lit with street
lights. There is a street lamp situated at the intersection
on the
north-east side in Glendore Road. There is also a street lamp in
Buffelsfontein Road, on the western side of the head of
the
T-junction. These street lights were lit on the night in question.
[5]
The
plaintiff stated that he lives in a townhouse complex, which is
situated on the northern side of Buffelsfontein Road, opposite
the
intersection. There is however, no vehicle access directly from
Buffelsfontein Road to the townhouse complex. The complex is
set back
from the road by some distance. Between the northern edge of the road
and the townhouse complex there is a gravel verge
and a wide grassed
area. Short wooden poles form a fence line, preventing any vehicle
access onto the grass verge.
[6]
The
plaintiff said that since he rides a motorcycle he would usually take
a “shortcut” from Buffelsfontein Road passing
between the
wooden poles in order to access the complex. He said he drove his
motorcycle up to the intersection where he stopped.
He looked around,
saw no other vehicles and then pulled off into Buffelsfontein Road
making a right turn. He proceeded along Buffelsfontein
(in an
easterly direction) for a short distance up to the vicinity of the
next lamppost. This, he said was about 45 m. He was looking
to follow
a different shortcut because there was water on the sidewalk. In the
vicinity of the lamppost he pulled his motorcycle
off the road onto
the gravel verge and stopped. His motorcycle was facing towards the
short wooden poles. He put his right foot
down on the gravel. As he
did so his motorcycle was struck at the back and he was flung off. He
“woke up”, having briefly
lost consciousness, lying on
the gravel. He was later taken from the scene by emergency personnel.
[7]
With
reference to photographs taken of his motorcycle after the collision
and of the area, he indicated that the damage to his motorcycle
was
on the right side, where it had scraped along the ground. He also
pointed to the area, depicted on the photographs, near the
lamppost
where the collision occurred. He testified to a sketch plan, prepared
by himself, depicting his path of travel up to the
point of impact.
[8]
The
point of impact, he explained, was off the tar surface of the road,
where he had stopped his motorcycle on the gravel verge
approximately
45 m from the intersection.
[9]
In
cross-examination he reaffirmed that when he had looked to his left
and right, whilst stopped at the intersection, he had seen
no other
vehicles. He stated that he had pulled off and proceeded slowly down
Buffelsfontein Road whilst looking for a place where
he could cross
over to his townhouse complex. He stated that he was not able to use
his usual path of travel because there was
water on the side of the
road and, having cleaned his motorcycle earlier that day, did not
want to get it muddy by driving into
the water. He stated that when
he “woke up” after the collision he was lying on the
gravel surface in the mud and water.
His motorcycle was also lying
nearby off the road surface in the vicinity of the wooden poles. He
conceded that whilst enjoying
the meal with his friend he had
consumed some alcohol.
[10]
The
insured driver testified that on the evening in question he had been
at his parent’s home where he was then staying. He
had returned
from work earlier that afternoon. He explained that he was on call as
an electrician and that he had received a call-out
to attend to a
fishing vessel in the Port Elizabeth harbour. He was
en
route
to the harbour when the collision had occurred. He was driving a
Volkswagen Caddy. He stated that he was proceeding down
Buffelsfontein
in an easterly direction and that he was travelling
approximately 60 km/h, which is the speed limit on that section of
road. It
had been raining and the road surface was wet. Street lights
were on and, he stated, his headlights were on.
[11]
As
he approached the intersection he noticed the plaintiff’s
motorcycle approaching the intersection in Glendore Road. It
had its
headlights on. He slowed down as he approached the intersection. He
stated that the motorcycle did not stop at the intersection.
Instead,
it proceeded into Buffelsfontein at what he described as “an
angle” directly across Buffelsfontein Road. He
immediately
applied the brakes of his vehicle. However, the vehicle skidded on
the wet road surface and it struck the back of the
motorcycle. He
said that, so far as he could recall, the left front of his vehicle
struck the rear of the motorcycle on the left-hand
side.
[12]
When
his vehicle came to a halt, it was still on the tar surface of
Buffelsfontein Road. The motorcycle had come to a rest, off
the road
surface to the left. The driver of the motorcycle was lying on the
gravel verge. The insured driver stated that after
the collision he
had driven his vehicle off the tar surface onto the gravel verge.
[13]
In
cross-examination he was asked whether he had not, apart from
breaking, attempted to avoid the collision by swerving his motor
vehicle. He stated that he did not. When asked why it was put to the
plaintiff that he would say that he had swerved his vehicle
to the
right he could offer no explanation. He conceded in
cross-examination that the dashboard lights of the vehicle he
was
driving automatically light up when the vehicle is on, irrespective
of whether the headlights are on. When asked whether it
was possible
that he had not turned on his headlights he denied this, saying that
his headlights were on because it was already
dark and he had turned
them on when he started driving. When asked whether he could have
avoided the collision by passing the motorcycle
to the right, he
stated that the motorcycle had crossed diagonally into Buffelsfontein
Road directly in front of him and that all
that he could do was to
apply brakes to avoid striking the motor vehicle. He conceded that
his vehicle skidded along the tar surface.
He was however adamant
that the collision had occurred on the tar surface and not on the
gravel verge as the plaintiff had testified.
Although he could not
remember specifically where the point of impact was, he stated that
it was at a point closer to the intersection
than that indicated by
the plaintiff and that it was on the tar surface.
[14]
The
plaintiff bears the
onus
to establish on a balance of probabilities that the collision was due
to the negligence of the insured driver.
[15]
It
was argued on behalf of the plaintiff that, having regard to the
conflicting versions between the plaintiff and the insured driver,
that the court would resolve the conflict by taking into account the
credibility of the respective witnesses, the reliability of
the
evidence and the inherent probabilities and improbabilities. The
essential dispute in their respective versions, relates to
the point
of impact of the collision; whether the plaintiff stopped at the
intersection before entering Buffelsfontein; and whether
the insured
driver was driving with his vehicle headlights on.
[16]
It
was argued that since the plaintiff testified that he had looked
around to determine whether there was any traffic on Buffelsfontein
Road and that he had said that there was no traffic, that it must be
inferred that the insured driver was driving his motor vehicle
without headlights. It was further argued that the point of impact as
described by the plaintiff accords with the objective evidence,
namely that the motorcycle was struck from the rear and that it had
fallen onto its right side, which was damaged, and that the
motorcycle had come to rest on the gravel verge. Furthermore, that
the plaintiff had also been flung onto the gravel verge where
he came
to rest. It was submitted that the damage to the rear of the
motorcycle and the fact that the insured driver conceded that
the
damage to his vehicle was on the left front of the vehicle indicated
that the collision had occurred in the manner described
by the
plaintiff.
[17]
I
disagree. The damage to the motor vehicle and the position that it
came to rest in after the collision and the damage to the insured
driver’s motor vehicle do not, with any force of probability,
point to the mechanism of the collision as described by the
plaintiff. Such damage is equally consistent with the mechanism of
the collision described by the insured driver. Equally so, the
position that the motorcycle came to rest in does not establish, by
necessary inference, that the collision occurred either on
the gravel
verge or on the tar surface of the road.
[18]
What
is telling is the probability of the sequence of events described by
the plaintiff. In this regard the plaintiff stated that
he had seen
no vehicle approaching from the left-hand side in Buffelsfontein Road
and that he had therefore entered Buffelsfontein
Road turning to his
right and proceeding slowly until a point approximately 45 m from the
intersection where he turned his motorcycle
off the road surface onto
the gravel and stopped. According to him the entire motorcycle was on
the gravel. He had brought it to
a halt and placed his right foot on
the gravel surface. It was at that point that the motorcycle was
struck from the rear on the
left-hand side.
[19]
For
the collision to have occurred in that manner with the point of
impact being on the gravel verge it would necessarily mean that
the
insured driver had either driven off the tar surface or that the
vehicle had skidded off the tar surface before impacting with
the
motorcycle. No other explanation is possible. The plaintiff presented
no evidence in regard to how the collision occurred,
other than that
the motorcycle was struck from the back on the left-hand side when it
was already stationary on the gravel verge.
[20]
The
insured driver stated that when the motorcycle entered Buffelsfontein
Road and crossed into his path of travel immediately before
the
intersection he applied brakes hard and his vehicle skidded.
According to him the motorcycle was not stationary at the point
of
impact and the motorcycle was on the tar surface.
[21]
In
my view, the plaintiff’s description of the point of impact
and, in particular, that the motorcycle was stationary and
that his
right foot was on the gravel at the point of impact is highly
improbable. It would suggest that he had already driven
along
Buffelsfontein Road for the distance of approximately 45 m and that
he had driven his motorcycle off the tar surface onto
the gravel and
brought it to a halt, prior to the insured driver braking heavily to
avoid a collision. It would suggest that the
braking had caused the
vehicle to veer off the tar surface so that it could impact the
motorcycle. Far more probable, in my view,
is the version presented
by the insured driver. His evidence was that the motorcycle had
approached the intersection at Glendore
Road slowly but that it did
not stop. Instead it entered the intersection directly in front of
him into his path of travel at an
angle across Buffelsfontein. He
applied brakes heavily but, due to the wet conditions, the vehicle
skidded striking the motorcycle.
[22]
The
suggestion, in argument, was that it should be found that the insured
driver was driving his vehicle in the dark without his
headlights
based on the fact that the plaintiff did not see the vehicle
approaching. The fact that the plaintiff did not see the
insured
driver’s vehicle approaching the intersection does not allow,
as the only reasonable inference to be drawn, the conclusion
that the
insured driver was driving without headlights on. It is equally
probable, perhaps more probable, that the plaintiff did
not keep a
proper lookout prior to entering the intersection at Buffelsfontein
Road.
[23]
Neither
the plaintiff nor the insured driver impressed as an outstanding
witnesses. Their evidence is each subject to some criticism,
inasmuch
as it was vague in certain respects. The fact that neither witness
stood out as a particularly impressive witness does
not mean that
either witness’s version is to be rejected as not credible.
Where a court is faced with a conflict in evidence
by witnesses whose
credibility cannot be impeached, it will have regard to the inherent
probabilities and improbabilities in the
version in determining which
version to accept. I have already pointed to the fact that the
plaintiff’s version is improbable
in certain important
respects, whereas the insured driver’s testimony is not
affected by such inherent improbabilities. There
was no evidence to
gainsay the insured driver’s version that he was driving his
motor vehicle with his headlights on. In
my view that evidence must
be accepted. It is certainly not possible to reject the evidence
solely on the basis that the plaintiff
did not see the insured
driver’s vehicle as it approached the intersection. The
acceptance of the fact that the insured driver
was driving his
vehicle with his headlights on, has the effect that it must be found
that the plaintiff, in driving his motorcycle
into the intersection
into the path of the oncoming vehicle, on the basis that he had not
seen it, was undoubtedly negligent. It
was suggested in argument that
if the insured driver’s vehicle did indeed have the headlights
on, then the act of driving
into the intersection was “almost
suicidal”. That would be so if the plaintiff had seen the
vehicle. His evidence however
was that he did not see the vehicle.
His failure to see the vehicle is, on the acceptable and reliable
evidence, attributable to
the fact that he did not keep a proper
lookout.
[24]
It
must be borne in mind that the plaintiff bears the
onus
of proof that the insured driver was negligent in one or more
respects. I have already pointed to the fact that there is no
evidence
to gainsay the evidence of the insured driver that he was
driving his vehicle with a headlights on. I have also indicated that
the point of impact, to which the plaintiff testified is, upon an
appraisal of the evidence as a whole, improbable. The insured
driver’s evidence as to the point of impact, being on the car
surface, is more probable and, in my view that evidence is
to be
accepted. This points ineluctably to a conclusion that the plaintiff
rather than the insured driver was negligent and that
the collision
was caused by the plaintiff’s negligence inasmuch as he drove
his motorcycle into the intersection into the
path of an oncoming
vehicle when it was unsafe and inopportune to do so. There is, in my
view, no evidence upon which the court
can apportion some of the
blame for the collision to the insured driver. It follows that the
plaintiff has not discharged the
onus
and accordingly that the plaintiff’s claim falls to be
dismissed.
[25]
In
the result I make the following order:
The
plaintiff’s claim is dismissed with costs.
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Plaintiff
Adv.
D. Niekerk
Instructed
by Mc Williams & Elliot Inc.
For
the Defendant
Adv.
N. Paterson
Instructed
by Ketse Nonkwelo Inc.
[1]
The
street was incorrectly referred to as Glendore Road whereas it is in
fact Genadendal Road. Nothing turns on this.