About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2019
>>
[2019] ZAECPEHC 84
|
|
De Bruin v Road Accident Fund (2637/2018) [2019] ZAECPEHC 84 (12 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 2637/2018
Date
heard: 4 December 2019
Date
delivered: 12 December 2019
NOT
REPORTABLE
In
the matter
between:
JIMMY
PERCY DE
BRUIN Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
Goosen
J:
[1]
On 4 December 2015, at approximately 16h00, a collision occurred at
the
intersection of Juta and Schadie Roads, Ferguson, Port Elizabeth,
between a motorcycle driven by the plaintiff and an Isuzu pickup
driven by André Robert (the insured driver). As a result of
the collision the plaintiff suffered certain bodily injuries.
The
plaintiff instituted a claim against the defendant and, in July 2018,
instituted the present action.
[2]
The
defendant has conceded that the insured driver was negligent. It,
however, contends that the plaintiff was contributorily negligent.
The parties reached agreement in relation to the quantum of all heads
of damages claimed by the plaintiff, including that in respect
of
future medical expenses which are to be covered by an undertaking
furnished in terms of s 17(4) of the
Road
Accident Fund Act
[1]
.
Accordingly, the only issue to be decided is whether the plaintiff
was in any degree negligent and if so to effect an apportionment
in
accordance therewith.
[3]
The defendant commenced adducing evidence and called the insured
driver.
Mr Robert explained that on the afternoon in question
he had travelled to a supplier of equipment which he required on a
building
site. The supplier’s store is located in Schadie Road.
After collecting the equipment he intended to return to the building
site. It was approximately 16h00.
[4]
Juta Road runs in an east-west direction from Kempston Road which is
a
major thoroughfare. Juta Road is a through road. There are several
minor roads that lead onto or away from Juta Road. Schadie Road
is
one such road. The intersection of Schadie Road and Juta Road is
regulated by a stop sign. Schadie Road is oriented north-south.
[5]
During an inspection
in loco
conducted at the conclusion of Mr
Robert’s evidence-in-chief, the following observations were
recorded. Juta Road is approximately
8 metres wide. It has a broken
line barrier line at the centre of the trafficable surface
demarcating one lane of travel in both
directions. Juta Road curves
gently to the right in an easterly direction from the intersection
with Schadie Road (i.e. in the
direction of Kempston Road). It
proceeds straight in a westerly direction before following a gentle
curve in the opposite direction
from that on the Kempston Road side.
[6]
The painted stop line on the road surface of Schadie Road is situated
approximately 2 metres away from the lane in Juta Road. There are
buildings situated on the eastern corner at Schadie Road. From
a
position approximately 1 metre behind the stop line in Schadie Road
(in what would be the position of the driver of a vehicle
stopped at
the stop line) the roadway in Juta is visible for approximately 90
metres before it curves out of sight. In the other
direction there is
an unobstructed view for a considerable distance. It was recorded
that from the position at the edge of the
lane in Juta Road the view
towards Kempston Road is unobstructed for a distance well in excess
of 100 metres.
[7]
It is common cause that weather conditions on the day in question
were
clear and that visibility was good.
[8]
Mr Robert stated that he brought his vehicle to a stop at the
intersection.
He looked to his left and right along Juta Road. He did
so twice. Since he did not observe any traffic in Juta Road he
commenced
executing a turn to his right into Juta Road. He stopped
again approximately 2 metres beyond the stop line. He then drove his
vehicle
into Juta Road so as to execute the turn. All the while he
was looking to his right. When his vehicle was midway into the lane
in Juta Road he saw the plaintiff’s motorcycle approaching. It
was then about 30 to 35 metres away. It was travelling at a
high
speed. He immediately reacted and applied the brake of his vehicle
bringing it to an immediate stop. The plaintiff’s
motorcycle
collided with his vehicle on the front of the right fender. The
plaintiff was flung over the hood of his vehicle and
landed on the
road surface beyond the vehicle.
[9]
He said he immediately got out of the vehicle to go to the assistance
of the plaintiff. He noted that there was still space between the
front of his vehicle and the centre line in Juta Road. He spoke
to
the plaintiff who was seated on the roadside kerb. According to
Robert the plaintiff asked him not to call the police because
he was
not in possession of a licence permitting him to drive the
motorcycle. Robert did not call the police. The plaintiff was
transported from the scene by ambulance to the Livingstone Hospital.
[10]
The accident scene, according to the evidence, was cleared by
Precision Towing, a vehicle
recovery firm owned and operated by
Robert’s son.
[11]
When asked to explain what had caused the collision Robert stated
that, in his view, the
excessive speed with which the plaintiff drove
his motorcycle was the principal cause. He stated that since he had
immediately
brought his vehicle to a halt when he observed the
motorcycle there was sufficient lateral space available to the
motorcycle to
avoid the collision. He also said that the lane
in the opposite direction was clear and therefore that the plaintiff
could
have swerved to avoid the collision.
[12]
In cross-examination Robert was presented with an Official Accident
Report (OAR) which
had been completed at Kabega Park Police Station
on 6 December 2015.
[13]
He stated that he does not recall having gone to the police station
to report the collision.
He conceded, however, with reference to the
details recorded in the form as relate to him, that it is probable
that he had reported
the collision. The OAR form contains important
details which are likely only to have been available to him. This
includes his driving
licence number and type. It also contains
reference to “
pot plants
” in relation to possible
contributory factors. Significantly, Robert had referred to “
pot
plants
” as possibly playing a role in his not having seen
the plaintiff’s vehicle. The reference to this in the OAR
strongly
suggests that he was the person who had reported the
collision to the police. Equally significant is a description of the
accident
set out by him in the OAR. It states:
“
Vehicle A turned
right and didn’t see Vehicle B when he hit Vehicle B.”
[14]
It was suggested by Mr Nepgen, for the plaintiff, that this
description of the collision
accords with the facts. The plaintiff
testified that on the afternoon of 4 December 2015 he had left work
at approximately 4 p.m.
He had driven along Kempston Road and, after
stopping at the traffic light controlled intersection with Juta Road,
he proceeded
along Juta Road. The distance from Kempston Road to
Schadie Road is approximately 300 metres. He was travelling between
40 and
50 km/h by the time he got to a point in Juta Road when he
could see the insured driver’s vehicle. At that stage, he was
approximately 90 metres away.
[15]
He said he saw the Isuzu pickup stopped at the stop sign. He noted
that the vehicle pulled
off and that it got to the edge of the lane
in Juta Road. He slowed down slightly and moved towards the centre
line. By the time
the pickup stopped moving again, he was about 30
metres away. He kept a lookout but expected the pickup to remain
where it was
until he passed.
[16]
As he neared the vehicle it moved towards the centre line. He
described this as “
closing the gap
” that was
available to him. He had only a split second to react and could not
avoid the collision. His motorcycle struck
the right front fender of
the pickup and he was flung across the bonnet. He said his helmet
struck the windshield and he landed
on his feet facing back towards
the vehicle before landing heavily on his back. He was able to pick
himself up and went to sit
on the kerb. Some members of the public
came to his assistance. His mother was then called to the scene and
he was later taken
to the hospital by ambulance.
[17]
He denied that he had told the insured driver, who spoke to him, not
to call the police.
He admitted, however, that at the time he had
been driving without a licence. He conceded that the police did not
attend the scene.
His motorcycle was removed from the scene by
Precision Towing. He subsequently had contact with the owner of the
business who offered
to repair his motorcycle without charge. He
denied that he was travelling at high speed at the time of the
collision.
[18]
As has already been indicated the defendant accepted that the
insured driver was
negligent. What is to be determined is whether the
plaintiff was negligent in some or other respect.
[19]
The ground of alleged negligence relied on by the defendant was that
the plaintiff drove
the motorcycle at an excessive speed. Mr Robert
stated that he did not know how fast it was, it could be 100, 120 or
even 140 km/h.
As far as he was concerned it was this excessive speed
which accounted for the fact that he only saw the plaintiff when he
was
30 to 35 metres away. The further ground of negligence was that
the plaintiff had not avoided the collision when he could have done
so apparently by veering across the centre line or even passing
between the pickup and the centre line.
[20]
The insured driver was not, in my view, an impressive witness.
Contrary to the assertion,
by Mr Paterson for the defendant, that he
was a disinterested and objective or independent witness, it was
apparent that Mr Robert
was firmly of the view that he was in no way
negligent. On his version, he had kept a careful lookout and
immediately he became
aware of the speeding motorcycle had
instantaneously brought his vehicle to a stop. His assertion that he
had looked to his right
at all times when executing the turn simply
cannot explain why he only saw the motorcycle when it was 30 metres
away. He had, on
the objective facts, 90 metres of unobstructed view.
From a position beyond the stop line, from which he commenced his
turn (when
he claimed it was safe to do so), his unobstructed view
would have been well in excess of 100 metres.
[21]
In my view, the probabilities point to the fact that the failure to
see the motorcycle
arose because he did not keep observation to his
right while executing the turn. The suggestion that this was “
caused
”
by the speed at which the motorcycle was travelling also does not
accord with the probabilities. Even if the motorcycle
was travelling
at a speed in excess of the 60 km/h speed limit (say 100 km/h) then
from when he first was able to see the motorcycle
(at 90 metres) he
would have had 3 seconds to react. It was his evidence though that he
only started to execute the turn into the
intersection once he had
seen (from the position beyond the stop line) that it was safe to do
so. If this is so then on his own
version he would have seen the
motorcycle when it was further away.
[22]
The suggestion that the plaintiff was driving the motorcycle at high
speed is, in my view,
an
ex post facto
attempt to justify his
own lack of proper observation. During cross-examination, Mr Robert
said that he knew the motorcycle was
speeding because the rider had
“
leaned into the corner
”. This was not his
evidence in chief. This evidence, in my view, constituted an
exaggeration which, rather than assist the
defendant’s case,
undermines it further. If indeed Robert saw the motorcycle at the
corner (it is, in fact, a gentle curve)
then on the objective
evidence the motorcycle was almost 90 metres away and not 30 to 35
metres as suggested by Robert.
[23]
In contrast, the plaintiff was a good witness. His description
accords in large measure
with the movement ascribed to the pickup by
the insured driver. He responded to the presence of the pickup. He
slowed. He kept
a vigilant lookout. When the pickup edged forward he
changed his line of travel to be able to give it a wide enough birth.
[24]
Mr Paterson sought to make much of the fact that it was pleaded that
the insured driver
had failed to stop whereas the evidence was that
he had. The difference is more apparent than real. The plaintiff
stated that the
insured driver had stopped, then moved into the
intersection and again stopped, and only then proceeded. In essence,
the insured
driver had failed to remain under the regulation of the
stop sign and proceeded into the intersection into the path of travel
of
the plaintiff.
[25]
It was suggested by Mr Paterson that the plaintiff ought to have done
more to avoid the
collision by either passing across the centre line
or by bringing his motorcycle to a halt. The plaintiff’s answer
was that
it was too late to do anything when the insured driver moved
into his path of travel.
[26]
It should be borne in mind that the intersection of Juta Road and
Schadie Road is regulated
by a stop sign in Schadie Road. Vehicles
travelling along Juta enjoy right of way. Vehicles entering Juta are
only entitled to
do so when it is safe to do so having regard to the
presence of vehicles in Juta Road. A driver in a vehicle travelling
along Juta
Road is under no obligation to adjust his conduct in
anticipation that the driver of the other vehicle may act
unreasonably and
cross his path of travel.
[27]
As was
stated in
Sierborger
v South African Railways and Harbours
[2]
:
“
To return
therefore to the enquiry as to whether, if du Preez had seen the
signal, any action was at that stage required of him,
the answer
seems to be 'none other than to continue to keep a look-out'. There
was no obligation upon him to stop or even slow
down because of
having seen the signal. In parenthesis, it need scarcely be remarked,
that du Preez's statement in evidence that
had he seen appellant's
signal he would have stopped, even supposing it to be true, cannot
burden him with an obligation not imposed
by law. The heavy flow of
urban traffic would be seriously interfered with if, on each occasion
when a signal is exhibited by a
motorist intending to turn across the
line of traffic, such traffic were required to come to a stop or slow
down. Such signal is
of course a notification to following and
oncoming traffic that the driver intends to turn across the line of
traffic, but equally
implicit in it is that he intends to do so at an
opportune moment and in a reasonable manner. It is also, more
particularly, a
signal to following traffic that the driver in
question intends to move over towards the middle of the road
preparatory to choosing
the opportune moment to cross over on to that
half of the road being used by traffic coming in the opposite
direction. A driver
of a vehicle proceeding in this latter direction
does not, with reference to a vehicle whose driver has signalled an
intention
to turn across his path and who is directing his vehicle
towards the middle of the road preparatory to doing so, incur an
obligation
to stop or slow down. Certainly he must keep such vehicle
under observation and as soon as it is clear that, despite the
inopportuneness
of the moment, it intends to cross in front of him,
he must take all reasonable steps that may be necessary to avoid
colliding
with it.”
[28]
Although in this case the activation of a signal light is not
relevant, the presence of
the insured driver’s vehicle at the
intersection indicated an intention to enter the intersection. The
plaintiff, having
taken note of this, properly kept the insured
driver’s vehicle under observation. He also adjusted his speed
and moved towards
the centre line. In my view, he acted prudently and
reasonably. He was entitled to assume that the insured driver would
remain
stationary until he had driven past. As it turned out the
insured driver did not and he drove his vehicle into the path of the
plaintiff’s motorcycle at a stage when the plaintiff could not
avoid the collision.
[29]
In the result, I find that the insured driver was solely negligent in
causing the collision
which occurred on 4 December 2015. As I
indicated at the outset the parties had reached agreement on the
quantum of the plaintiff’s
claim and related ancillary orders.
[30]
I, therefore, make the following order:
1. The
defendant is ordered to pay the plaintiff the sum of R2 031 163.00
(Two Million and Thirty One
Thousand One Hundred and Sixty Three
Rand).
2. The
defendant is ordered to pay the aforesaid sum within 90 days from the
date of this order.
3.
Interest is to accrue on the capital sum outstanding at 10.00% per
annum from 14 days after date of this order,
to date of final
payment.
4. The
defendant is ordered to provide the plaintiff with an Undertaking in
terms of
Section 17(4)(a)
of the
Road Accident Fund Act, No. 56 of
1996
, to pay 100% of the costs of future accommodation of the
plaintiff in a hospital or nursing home, or treatment of, or
rendering
of a service, or the supply of goods to the Plaintiff
arising from the injuries sustained in the collision on 4 December
2015 at
Juta Road, North End, Port Elizabeth, forming the plaintiff’s
cause of action.
5. The
defendant is ordered to pay the plaintiff’s costs of suit on
the party and party scale as taxed or
agreed, such costs to include:
5.1 the
reasonable costs of an inspection
in loco
attended by the
plaintiff’s counsel, attorney and the plaintiff;
5.2 the
reasonable costs of photographs;
5.3 the
reasonable qualifying expenses, if any, of all experts in
respect of whom the plaintiff has given
notice in terms of Rule of
Court 36(9)(a) and (b).
6. 6.1
The defendant is ordered to pay the taxed or agreed costs within 90
days from date of
allocatur;
6.2 Interest
on the aforesaid costs is to accrue at the prevailing legal
rate at the time from 14 days after
date of allocatur, to date of
final payment.
________________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
Obo
the Plaintiff:
Adv J. Nepgen
Instructed
by PBK
Attorneys, 22 Hurd Street, Newton Park,
Port
Elizabeth
Ref:
K Smith
Tel
(041) 365 5955
Obo
the Defendant:
Adv N. Paterson
Instructed
by Smith
Tabata Attorneys, 260 Cape Road, Port
Elizabeth
Ref:
C Eddy
Tel:
(041) 363 3125
[1]
Act No 56 of 1996
[2]
1961 (1) SA 498
(A) at 504H-505C