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[2019] ZAECPEHC 33
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Smith v Road Accident Fund (2881/2017) [2019] ZAECPEHC 33 (30 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No: 2881/2017
Date Heard: 30/04/2019
Date Delivered:
30/05/2019
Not
Reportable
In
the matter between:
RICHARD
ALLAN
SMITH
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MAKAULA
J:
[1]
The plaintiff issued summons against the defendant based on a “hit
and run”
accident which occurred on 3 May 2016 on the N2
Freeway in Port Elizabeth. The plaintiff at the time of the
accident was
a pedestrian. He was pushed onto oncoming traffic
by a person who was robbing him. I shall elaborate on this when
I
deal with the evidence.
[2]
The parties agreed to separate the merits from
quantum.
I made an order in terms thereof. The matter served before me
on liability. The plaintiff and his wife were the
only
witnesses called. The defendant, for obvious reasons, did not
have a witness because the insured driver did not stop
after the
accident.
[3]
The issues before me are whether (a) the insured driver was negligent
and if so whether
(b) there was a causative contributory negligence
on the part of the plaintiff.
[4]
Three photographs depicting the scene were handed in by consent.
The plaintiff
confirmed the scene as depicted on the photographs.
He testified that on the day he was walking along the N2 freeway from
Moffat on Main to Vistarus mission station in Sydenham. He was
walking with his wife and son who were sixteen years old at
the
time. They decided to rest on a metal barrier (the barrier).
He sat with his leg away from the road i.e. with his
back towards the
road. His wife and son sat on the barrier to his left.
They were carrying three bags. Three
men approached them as
they were resting. One of them was carrying a knife. He
wielded the knife and attempted to stab
the plaintiff. The
plaintiff reacted by jumping onto the yellow line or emergency lane
and fought back. The attacker,
on realising that the plaintiff
was too strong for him, swung him around and threw the plaintiff in
front of the insured motor
vehicle. The plaintiff was struck by
the insured motor vehicle on the outside lane closer to the yellow
line. He got
injured and was taken by ambulance to the
hospital.
[5]
The plaintiff testified that the whole thing happened in a spit
second. He did
not see the insured motor vehicle approaching
nor could he describe it. He contended that the insured driver
possibly had
little opportunity to do anything in order to avoid the
collision with him. He further conceded that it was unlawful
for
them to have walked on the freeway and the insured driver was not
expecting any pedestrians on the freeway. His cross-examination
by
Mr Paterson
, for the defendant, went on as follows:
“
Mr Paterson
:
You would agree with me being thrown in front of oncoming traffic the
driver of the vehicle had little opportunity
to do anything?
Mr Smith:
Possible yes.
Mr Paterson
:
He is driving on a freeway where he does not expect people on the
freeway, as you indicated it is unlawful
for people to be on the
freeway, is that correct?
Mr Smith:
That is correct.
Mr Paterson
:
He can be driving as much as 120km/h on the freeway.
(Sic)
Mr Smith:
That is correct.
Mr Paterson
:
Everything lawfully and legally he could have been doing, is that
correct?
Mr Smith:
That is correct.
Mr Paterson
:
So you cannot say whether he kept a proper lookout?
Mr Smith:
No.
Mr Paterson
:
You cannot say whether he was driving in a speed in excessive
circumstances prevailing?
(Sic)
Mr Smith:
No, I cannot say that.
Mr Paterson
:
You cannot say what he did, if he tried to apply his brakes or
otherwise?
Mr Smith:
No, I cannot say that.
Mr Paterson
:
You cannot say that he had any opportunity to avoid the collision
between himself and the person thrown
into the road?
Mr Smith:
No, I cannot say that.
Mr Paterson
:
And you would agree with me that you having not been flung in the
road there would be no opportunity for
him to take evasive action?
Mr Smith:
That is correct.
Mr Paterson
:
Thank you M’ Lord, I have no further questions”.
[6]
The next witness called was Carol Ann Smith, the wife of the
plaintiff. She
confirmed the evidence of the plaintiff in
respect of the events that took place prior to the collision.
She was standing
on the grass side next to the barrier when her
husband was hit by a red Volkswagen Golf driven by an elderly man.
She testified
that the insured driver did not slow down nor swerve
before the collision. She maintained that the driver could have
braked
if he wanted to. She stated that after the car ran over
the plaintiff the driver accelerated and drove off from the scene.
The plaintiff remained lying on the left side of the road. She
was assisted by three gentlemen who stopped after the
collision in
moving the plaintiff out of the road. An ambulance was called
and he plaintiff was taken to hospital for treatment.
Their
assailants ran away with their two bags. The incident occurred
at about 14h00 on a clear sunny day.
[7]
She confirmed that the freeway was meant for motor vehicles only and
not pedestrians.
The speed limit is 120km/h. She
testified that the insured driver had an opportunity to slow down
before the accident.
She based that on the fact that, after the
accident, she was able to jump onto the road and redirect traffic so
as to avoid cars
running over the plaintiff. When pressed under
cross-examination that the insured driver would have had little
opportunity,
little time, and little distance to have been able to
brake, she responded by saying “I would not know how to answer
that”.
[8]
The defence case was closed without the leading of evidence for
obvious reasons.
[9]
Mr Niekerk
, for the plaintiff argued that the insured driver
did not keep a proper look-out. He should have seen that there
were people
on the freeway who were not supposed to have been on the
freeway. He ought to have seen that there was a scuffle between
them and should have exercised caution and took measures to avoid
colliding with the plaintiff. Furthermore, his failure to
stop
after the accident overwhelmingly supports the view that he was wrong
hence he did not even report the accident to the police,
Mr
Niekerk
submitted. The plaintiff argued that there was no
contributory negligence established by the defendant. The
reason
being that the plaintiff was involuntarily pushed on the path
of travel of the oncoming traffic.
[10]
Mr Paterson
argued that the insured driver could not have done
anything in the circumstances because the throwing of the plaintiff
on his path
of travel occurred in a split second. He submitted
that there was no obligation on the part of the insured driver to
slow
down and interrupt traffic for people who were outside the
roadway. He submitted further that under the circumstances it
could not be inferred that the insured driver did not keep a proper
look out. He argued further that there could be a multitude
of
reasons why the insured driver did not stop after the accident.
[11]
The evidence tendered is that of the plaintiff, his wife and
photographs of the scene.
The photographs depict the road as an
open and slightly declining road. The insured driver could see
the plaintiff and his
family leaning on the barrier at a distance.
Furthermore, nothing obscured the insured driver from seeing the
three gentlemen walking
towards the plaintiff as testified by the
latter. Upon meeting, one of the gentlemen suddenly attacked
the plaintiff with
a knife. The plaintiff’s evidence is
that the attack was quick. In a spilt second the plaintiff was
swung around
and pushed on the path of the oncoming traffic hence the
collision. There is absolutely no evidence that the insured
driver
was in a position to have observed the scuffle before the
collision. There was nothing untoward, prior to the collision,
which could have caused the insured driver to be overly cautious.
They were not in his path of travel. They were not
attempting
to cross the road. In the words of the witnesses, all that
ensued occurred very fast and in a fraction of a second
or split
second as they put it. Even the witnesses are of the view, as
reflected above, that the insured driver could have
done little, if
anything, to avoid colliding with the plaintiff.
[12]
I do not agree with
Mr Niekerk
in his argument that the
insured driver did not stop because he knew he was negligent.
There are various inferences that
can be drawn from his non-failure
to stop. One could be that he was afraid to stop because of the
manner in which the plaintiff
ended up on the road. He may have
been afraid of the person who was attempting to stab the plaintiff.
But that he did
not stop does not indicate that he was negligent
especially when there is no evidence to suggest that. In the
same breath,
I am unable to say whether the insured driver did not
reduce the speed he was traveling on seeing them walking on the side
of the
road. Nothing suggests that the plaintiff was also
negligent. The plaintiff involuntarily found himself on the
road.
I am unable to find on the probabilities that the insured
driver was negligent in colliding with the plaintiff.
[13]
In the result, I will issue the following order.
The action is dismissed
with costs.
_______________________
JUDGE
MAKAULA
Judge
of the High Court
Counsel
for the Plaintiff: Adv
D Niekerk
Port
Elizabeth
Instructed
by: McWilliams
& Elliot Inc.
Port
Elizabeth
Counsel
for the Defendant:
Adv N Paterson
Instructed
by: Ketse
Nonkwelo
Port
Elizabeth
Date
Heard: 30
April 2019
Date
Delivered: 30
May 2019