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[2021] ZAECPEHC 22
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Goliath v Road Accident Fund (2224/2019) [2021] ZAECPEHC 22 (30 March 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case
No.: 2224/2019
Date
Heard: 9-11 March 2021
Date
Delivered: 30 March 2021
In
the matter between:
NIVEN
DAINE
GOLIATH
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
POTGIETER
AJ:
[1]
On 11 November 2015 at approximately 22h30 a mini
bus taxi with registration number HJ[…] apparently owned by Mr
Mark Such
and being driven by the plaintiff at the time collided with
a green Isuzu KB light delivery vehicle (commonly known as a bakkie)
with registration number FH[…] (“the insured vehicle”)
that was stationary in the fast lane of Stanford Road,
Helenvale in
Port Elizabeth. The plaintiff sustained bodily injuries in the
collision and is claiming damages from the defendant,
the Road
Accident Fund (“the RAF”), as a result.
[2]
The merits and quantum of the claim have been
separated in terms of Rule 33(4) and the trial proceeded in respect
of the merits
only. The particulars of claim were amended
during the trial to identify the owner of the insured vehicle as Mr
Nordien and
to reflect the correct registration number of the insured
vehicle as FH[….] instead of THZ[…] (the significance
thereof
will appear later in the judgment). The driver of the
insured vehicle was unknown. The plea was also amended during
the trial to incorporate averments that the plaintiff was the sole,
alternatively, a contributory cause of the collision and specifying
various grounds of negligence in this regard claiming apportionment
of damages should contributory negligence be established.
[3]
The plaintiff pleaded that the sole cause of the
collision was the negligence of the insured driver who failed to keep
a proper
look out; parked his vehicle in an unlit and unmarked
area in the fast lane of Stanford Road at a time when it was
dangerous
and inopportune to do so; he parked his vehicle without due
regard to other motor vehicles, to wit, the plaintiff’s motor
vehicle, without giving any or adequate warning of his stationary
vehicle and without switching on any lights on his stationary
vehicle; he failed to avoid a collision when by exercising
reasonable care and skill he could and should have done so;
he failed to give the plaintiff’s vehicle a sufficiently wide
berth; he failed to activate his emergency lights; he
failed to
put a warning triangle behind the insured vehicle to warn other
vehicles of his stationary vehicle; he failed to
take any
measures and/or steps to warn following vehicles of his broken down
vehicle and/or parked stationary vehicle in the fast
lane and in a
busy area which is unlit; and he left the insured vehicle
unmanned.
[4]
The defendant pleaded in the amended plea that
the plaintiff was the sole cause of the collision and was negligent
in one or more
of the following respects: he failed to keep a
proper look out; he drove his vehicle at an excessive speed in the
circumstances;
he drove his vehicle without due regard to other road
users; he failed to keep his motor vehicle under proper control; and
he failed
to prevent a collision when he was, with the exercise of
reasonable care, in a position to do so. The defendant
furthermore
pleaded that in the event of the court finding that the
insured vehicle was negligent there was contributory negligence on
the
part of the plaintiff and that his claim should be apportioned.
Pursuant to an earlier amendment of the plea, the defendant
pleaded
that the plaintiff failed to comply with Regulation 2(1)(a) of the
Regulations in terms of the
Road Accident Fund Act, 56 of 1996
as
published under Government Notice R770 in Government Gazette 31249 of
21 July 2019 in that his claim was lodged more than two
years after
the cause of action arose and that the claim accordingly prescribed
in terms of
Regulation 2(1)(b).
[5]
The issues for my determination are accordingly
whether the claim prescribed, whether the sole cause of the collision
was the insured
driver or plaintiff, or whether the plaintiff and/or
the insured driver were causally negligent and in the latter event
whether
the plaintiff was contributorily negligent and an
apportionment of damages should be applied.
[6]
The plaintiff was the only witness that testified
about the circumstances of the collision. The remaining two
witnesses for
the plaintiff were Mr Siraj Nordien the owner of the
insured vehicle and plaintiff’s attorney Mr Armoed who dealt
with ancillary
issues.
[7]
The plaintiff indicated that he resides at 40 4
th
Avenue, Algoa Park, Port Elizabeth and that he was born on 23
November 1984. He confirmed his identity number as set out
in
the Particulars of Claim. He also confirmed that he was
involved in a collision on 11 November 2015 at approximately 22h30
in
Stanford Road, Helenvale which is one of the suburbs of Port
Elizabeth. Stanford Road is a major thoroughfare with a raised
island which separates the traffic moving towards and from the city.
He confirmed the layout of the road as reflected on
the photographs
which form part of the bundle of documents. This reflects that
there are two lanes conveying traffic in each
direction. There
is a third lane immediately next to the island on both sides of the
road reserved for the rapid transport
bus service. The fast
lane is immediately next to the bus lane. The fast lane is
separated from the bus lane by objects
akin to small blocks which are
embedded in the road surface and have been painted in a bright yellow
colour. On the far side
of the road from where the plaintiff
was travelling there is a steep embankment immediately next to the
road. In the vicinity of
the collision, Stanford Road runs straight
with a slight incline in the direction in which the plaintiff was
travelling.
[8]
Plaintiff was driving a mini bus taxi Sakukan BAW
model owned by Mr Mark Such. He was alone in the vehicle and
was travelling
on Stanford Road in the direction of the city in the
fast lane. He travelled at a speed of approximately 70km per
hour which
was also the speed limit for the particular section of the
road. There were streetlights along Stanford Road but the lights were
off in the particular section of the road where the collision
occurred. There was a kombi travelling ahead of him in the
same
lane at the time and there were a few cars in the lane to his left
which was the slow lane. The roof of the kombi was
slightly
higher than the roof of his vehicle which obstructed his view.
As he was approaching the kombi it gave way for him
and moved into
the left hand lane. After the kombi had moved into the left
hand lane his vehicle collided with the stationary
Isuzu bakkie in
the fast lane. The bakkie’s lights were not on. Its
emergency lights were not operating nor were
there any triangles
placed in the road near the bakkie. The bakkie was green or
blue in colour. He could not swerve
to the left because the
kombi had moved into the left hand lane and he had no opportunity to
swerve to the right into the bus lane.
He thinks that the
purpose of the yellow blocks which separate the fast lane from the
bus lane is to keep ordinary vehicles out
of the bus lane. At
the speed at which he was travelling it was impossible to drive over
the blocks. There was nothing
he could do to avoid the
collision. The front of his vehicle collided with the back of the
bakkie. He had no recollection
of what had happened after the
collision. He only regained consciousness in hospital. He
sustained serious injuries
in the collision. He did not report
the accident to the police and was in hospital when the accident was
reported to the
police. He denied that he was negligent in any
of the respects pleaded by the defendant.
[9]
Under cross-examination he indicated that he did
not know what the registration number of the bakkie was. He was
discharged
from hospital on 17 or 20
th
December 2015. He made no effort to identify the driver or the
owner of the bakkie. He had been using Stanford Road
for a long
time. In his view it depended on the speed one is travelling at
whether it is possible to move across the blocks
separating the bus
lane. At the speed at which he was travelling it was physically
impossible to drive over the blocks.
It was possible to do so
at a lesser speed. He got his driver’s licence in 2010
and knows that a driver must be vigilant
and keep a proper look out
and maintain a safe following distance. He confirmed that the
kombi which was traveling in front
of his vehicle moved into the left
lane and never collided with the stationary vehicle. At the
time of the collision there
were no vehicles travelling in the bus
lane nor were there any vehicles approaching from the front. He
did not see any vehicles
travelling in front of the kombi.
He confirmed that there was no curve in Stanford Road in the vicinity
of the collision
but that there was a slight slope in the road.
He confirms that this was not a blind rise. His reason for not
swerving
to the left was that the kombi had moved into the left hand
lane and he continued straight. He estimated that he was
approximately
10-15 metres away from the kombi ahead of him when he
saw it for the first time. He pointed the distance out inside
the court
room that he was away from the kombi when it moved into the
left hand lane. It was paced out by defendant’s counsel
as 7½ metres which was accepted by the parties as being equal
to 7½ metres. He estimated that the stationary
vehicle
was approximately 3 ½ metres from his vehicle when he saw it
for the first time after the kombi had moved into the
left hand
lane. He only saw the stationary vehicle when he was about to
collide with it. He only saw a slight reflection
of the number
plate of the stationary vehicle but was too close to be able to
swerve out. He was driving with his vehicle’s
headlights
on dim. The dim lights illuminated the road for approximately
10 metres ahead of him. He confirmed that
he would have seen
the stationary bakkie at a distance of approximately 10 metres ahead
in the dimmed headlights of the vehicle
if he looked ahead. He
did not apply his brakes and struck the bakkie at the same speed he
was travelling at. He drove
straight into the back of the
bakkie. The headlights of his vehicle were on but he just could
not see the bakkie because
it had no lights or hazard lights that
were flashing or a triangle that was placed on the road. He
confirmed that there was
nothing wrong with his eyesight and that he
only started wearing spectacles after the collision. He was
unable to say how
far the kombi was from the bakkie when the kombi
moved into the left hand lane. He could not see in front of the
kombi and
cannot say that the kombi gave way to avoid the stationary
bakkie but it could have been the reason why it moved into the left
hand lane. He confirmed that he made no manoeuvre to avoid the
collision.
[10]
He confirmed that he was certain that there were
streetlights in the vicinity of the section of Stanford Road where
the collision
occurred, but that the lights were not on. He was
referred to the affidavit that he submitted to the Road Accident Fund
in
terms of
section 19(f)
of the
Road Accident Fund Act. In
this affidavit he stated that there were no street lamps in Stanford
Road, which lamps were only installed recently. The
affidavit
was deposed to on 27 August 2018. He, furthermore, stated in
the affidavit that he applied his brakes and attempted
to swerve to
the right but did not have enough time to do so. He was not
really able to explain these inconsistencies between
his testimony
and his affidavit when it was raised with him in cross-examination.
[11]
He confirmed that his claim was lodged with the
Road Accident Fund on 27 August 2018 approximately two years and nine
months after
the accident. In response to questions about the
accident report that was part of the documents that were lodged with
his
RAF1 claim form, he indicated that he was not aware if the owner
of the taxi, Mr Mark Such, reported the accident or provided the
information in the accident report. He conceded that the
indication on the accident report that the streetlights were on
in
the vicinity of the scene of the collision, was inconsistent with is
testimony that the lights were off.
[12]
The plaintiff accepted that if the road is dark,
the driver of a vehicle has an extra responsibility to control the
vehicle in order
to deal with any emergency situation and the driver
must be more careful and on the look out as there may, for example,
be pedestrians
on the road. He accepted that if he drove at a
speed less than 70km/h, he would have been able to drive over the
blocks into
the bus lane. He accepted that he was not compelled
to drive at the designated speed limit of 70km/h.
[13]
He denied that he did not keep a proper look out
to see what was ahead in the road or that after the kombi had moved
into the left
hand lane there was sufficient opportunity for him to
take avoiding action and not collide with the stationary bakkie.
In
response to a proposition that a reasonable driver in the
circumstances would have been able to avoid the accident he responded
that there was not enough time to avoid the accident or to swerve to
the right. He furthermore denied that if he had applied
his
brakes he could have avoided the collision. He had no comment
when it was put to him that he would have been able to
avoid the
collision if he had not driven at an excessive speed and that he had
contributed to the collision.
[14]
He confirmed that he did not know the owner or
the driver of the bakkie that he collided with and that he made no
effort to determine
the identity of either of them. He was
unable to comment on the proposition that because the owner or driver
of the bakkie
was unknown, his claim should have been lodged within
two years of the date of the accident while his claim was only lodged
approximately
two years and nine months after the accident.
[15]
In re-examination, the plaintiff confirmed again
that he lost consciousness after the collision and he did not know
who reported
the accident to the police. Prior to the collision
he was looking in front of him at the road ahead.
[16]
In response to questions from the court the
plaintiff confirmed that he maintained his speed of 70km/h until he
collided with the
stationary bakkie. After the collision his
vehicle veered across the bus lane, the raised island in the middle
of the road
and the oncoming lanes and ended up against the
embankment on the far side of the road.
[17]
The next witness for the plaintiff was his
attorney, Mr Irvine Fergus Armoed. Mr Armoed’s evidence
was led on a number
of peripheral issues which do not warrant any
specific comment. More pertinently, he testified that the
plaintiff’s
claim was lodged as an identified claim on 27
August 2018 within three years from the date of the collision.
The registration
number of the insured vehicle was incorrectly
reflected in the RAF1 claim form as THZ[…] instead of FHZ[…].
When they commenced with preparations for the trial he conducted a
search on 1 February 2021 in respect of registration number
THZ[…]
and found that the registration number was non-existent. The
registration number of the insured vehicle was
reflected as FHZ[…]
in the
section 19(f)
statutory affidavit that accompanied the claim
that was lodged on 27 August 2018. He also undertook a search
in respect of
registration number FHZ[…] and ascertained that
the owner of the vehicle was Mr Nordien. He only discovered in
the
course of the trial that the registration number of the insured
vehicle was incorrectly reflected as THZ[…] in paragraph
3 of
the Particulars of Claim. The Particulars of Claim were then
amended, without any objection from the defendant, to reflect
the
correct registration number of the insured vehicle as FHZ[…]
and to add that the insured vehicle was owned by Mr Nordien.
He
also served and filed an amended RAF1 claim form during the trial
reflecting the correct registration number of the insured
vehicle,
for the sake of completeness. He accepted in cross-examination
that the amended RAF1 claim form served no real purpose
given the
fact that the claim form must be lodged prior to institution of legal
proceedings.
[18]
He indicated that on the previous trial date in
February 2021 the defendant requested a copy of the relevant entry in
the police
occurrence book. His office immediately obtained a
copy of the relevant extract from the occurrence book and provided it
to the defendant’s legal representatives. The matter was
then postponed,
inter alia,
to allow the defendant an opportunity to consider the new
documentation that was provided including the occurrence book.
The latter reflected the registration number of the insured vehicle
correctly as FHZ[…].
[19]
He furthermore indicated that the RAF is allowed
a period of 120 days after lodgement of the claim, to enable it to
conduct the
necessary investigations. Summons cannot be issued
until this period had elapsed, unless the claim is repudiated within
the
period. In this instance no correspondence or queries were
received from the RAF resulting in the summons having been issued
after the 120-day period had elapsed.
[20]
The final witness for the plaintiff was Mr
Nordien who confirmed that he was the owner of the KB Isuzu light
delivery vehicle that
was involved in a collision in Stanford Road,
Helenvale on 11 November 2015. He confirmed that the vehicle
was green in colour
and that its registration number was FHZ[…].
Apart from having been aware that the collision occurred at
night, he
had no knowledge of the circumstances surrounding the
collision as he was not the driver of the vehicle at the time.
[21]
The defendant closed its case without calling any
witnesses.
[22]
Mr Frost, who appeared on behalf of the
plaintiff, submitted that although the incorrect registration number
of the insured vehicle
was given on the claim form, the RAF never
objected to the claim form within the 60 days that the
Road Accident
Fund Act allows
for this purpose. The issue was raised for the
first time by the defendant during the trial. The registration
number
reflected in the claim form was a clear error and the correct
registration number was reflected in the
section 19(f)
affidavit that
accompanied the lodgement of the claim form. The registration
number is also reflected in the police occurrence
book which was
provided to the defendant at the previous trial date. He
submitted that it was of note that the submission
of the
section
19(f)
affidavit was a peremptory requirement and it was deposed to
under oath. Furthermore, the RAF1 claim form does not require
the details of the owner or driver of the insured vehicle to be
provided. It only requires details of the insured vehicle
itself. In the circumstances the claim was lodged as an
identified claim and not as a hit-and-run case. The plaintiff
cannot therefore be non-suited on the basis that the claim had become
prescribed pursuant to the provisions of Regulation of 2(1)(b)
because the claim was not lodged within two years of the date of the
collision.
[23]
He submitted that there is no basis for finding
that the plaintiff’s negligence contributed to the collision.
He emphasised
that the collision happened at night while the insured
vehicle was stationary in the fast lane of Stanford Road. It
can be
accepted as a proven fact that the vehicle had no lights on or
emergency lights flashing and that there were no triangles or other
warning signals indicating the presence of the insured vehicle on the
roadway. The insured vehicle was dark in colour and
the
particular section of the road where the collision occurred was dark
due to the fact that the streetlights were not on. He
submitted that
the onus rested on the defendant to establish contributory negligence
on the part of the plaintiff on a balance
of probabilities.
This has not been done. Insofar as prescription is concerned,
this had to be raised by means of a
special plea which has not
happened and the court cannot in the circumstances have regard to the
plea of prescription. He
also submitted that the costs should
follow the event but that the costs in respect of 17 February 2021
that were reserved, should
remain reserved for later determination.
He also submitted that the costs order should make specific provision
for the photographs
of the area in question in Stanford Road that
were produced by the plaintiff as well as an inspection
in
loco
attended by counsel.
[24]
Mr Mgidlana, who appeared on behalf of the
defendant submitted that the purpose of the claim form was to enable
the RAF to consider
whether the plaintiff’s claim was valid.
It was therefore incumbent on the plaintiff to ensure that the
documents were
consistent in all material respects. The
registration number THZ[…] does not exist and no owner could
have been identified
in respect of such non-existent registration
number. Neither the owner nor the driver of the insured vehicle
was identified
when the claim was lodged which would have rendered
the claim as an unidentified claim regulated by
Regulations 2(1)(a)
and (b). The claim was not lodged within two years of the date
of the collision and had accordingly become prescribed.
[25]
Mr Mgidlana furthermore submitted that the
plaintiff was not open and frank in his testimony and was not a
credible witness.
His testimony that there were streetlamps in
the particular section of Stanford Road but that the lights were off
is directly contradicted
in his
section 19(f)
affidavit that
indicated that there no street lamps in the particular area. On
his own version, he struck the bakkie directly
at its rear and did
nothing to prevent the collision. He never reduced his speed
and never applied his brakes. He never
made an attempt to
swerve into the bus lane to avoid the collision. It would not
have been physically impossible for him
to have moved into the bus
lane as his vehicle had veered across the bus lane as well as the
opposite lanes after the collision
and had ended up on the embankment
on the far side of the road. The only reasonable conclusion in
the circumstances is that
he failed to keep a proper look out.
He could not comment when this proposition was put to him in
cross-examination.
He, furthermore, drove at an excessive speed
and did not maintain a safe following distance behind the kombi that
was travelling
in the same lane. It is significant that the
kombi could move into the left hand lane and never collided with the
stationary
bakkie. There were no curves or a blind rise in the road
and the plaintiff was accordingly not confronted with a sudden
emergency.
The plaintiff accepted that he had to be more
vigilant as he was entering a dark section of road at night time.
The kombi
managed to avoid the collision and there was no reason why
the plaintiff could not have done likewise even at 70km/h given the
distances that he had indicated between himself and the kombi when
the latter had moved into the left hand lane. If he had
kept a
proper look out he had sufficient opportunity to take evasive action
and to avoid the collision. There was also no
reason why the
plaintiff could not see the road ahead of the kombi if he kept a
proper look out. Mr Mgidlana submitted that
on his own version
the plaintiff was entirely to blame for the collision, alternatively,
his negligence was the main cause of the
collision and the court
should as a result attribute 90 percent of the liability for the
collision to the plaintiff and 10 percent
to the insured driver.
[26]
He further submitted that the issue of
prescription arises from
Regulations 2(1)(a)
and (b). There was
no need for the defendant to raise a special plea before the issue of
prescription could be adjudicated.
It was sufficient to raise
the issue as part of the plea as was done by the defendant.
[27]
Insofar as the issue of costs is concerned, Mr
Mgidlana submitted that it was readily apparent from subsequent
events that the matter
was not trial ready on the previous trial date
in February 2021. The plaintiff himself did not have his house
in order.
For example, he previously indicated that he would
only call one witness just to land up calling three witnesses.
The reason
for the matter not proceeding on the previous trial date,
cannot be attributed to the defendant. The matter
was
rolled over and the file eventually retrieved from the trial
judge and the matter was then raised with the Deputy Judge President
who had allocated a new trial date for the matter. He further
submitted that the general approach with regard to taxation
is that
the courts are reluctant to prescribe to the taxing master. The
issue as to what reasonable fees and disbursements
can be justifiably
recovered by a party should be left to the discretion of the taxing
master. The court should not accede
to the plaintiff’s
request that specific items should be identified in the costs order
which should be allowed by the taxing
master. It should also be
borne in mind that there have been considerable delays during the
trial occasioned by the plaintiff.
He submitted in conclusion
that the plaintiff’s claim should be dismissed with costs
alternatively a 90% / 10% apportionment
should be ordered against the
plaintiff.
[28]
Mr Frost indicated at the conclusion of the
address of Mr Mgidlana, that he was not in a position to reply
immediately. He
was afforded an opportunity to submit a written
reply which was received after a slight delay due to health problems
experienced
by Mr Frost.
[29]
In reply to paragraph 17 of the plea which
concerned prescription of the claim, Mr Frost submitted that
the plaintiff substantially
complied with
section 24
of the
Road
Accident Fund Act, 56 of 1996
. Section 24(5) of the RAF Act
provides that unless the RAF objects within 60 days of transmission
or delivery of a claim
to the validity thereof, it shall be deemed to
be valid in law in all respects. He further submitted
that while an
incorrect registration number of the insured vehicle
was given in the claim form, the correct registration number was
disclosed
in the plaintiff’s section 19(f) affidavit lodged
with the claim. He referred to the decision of
Mlatsheni
v Road Accident Fund
2009 (2) SA 401
(ECD)
paras [13]-[17] and submitted that the RAF was obliged to investigate
the plaintiff’s claim and that the information
furnished
reasonably afforded the RAF a proper opportunity to consider its
position and investigate the claim which was lodged
as an “
identified
claim”
within 3 years of the date of
the collision and accordingly did not prescribe.
[30]
In respect of the merits Mr Frost submitted that
the defendant’s plea of having no knowledge of the collision
was contradictory
to its plea of contributory negligence on the part
of the plaintiff. The short answer is that the plea of
contributory negligence
was clearly
in the alternative which was not irregular.
[31]
He submitted that the onus was on the defendant
to prove contributory negligence on a balance of probabilities.
The defendant
elected to present no evidence but instead attempted to
rely on hearsay evidence such as the affidavit of Mr Mark Such and
the
accident report. It is not sufficient to rely on inferences
drawn from inadmissible evidence and submissions from the Bar.
Duly proven evidence is required. He furthermore referred to
the matter of
Paterson NO v RAF
case no. 3852/2017 (Eastern Cape Local Division, Port
Elizabeth) paras 9 & 16-17 that dealt with a collision involving
a stationary vehicle on the road surface without hazard lights or
some other form of warning in a dark area where the streetlights
were
not working. The court found in that case that the claimant
cannot be held to be negligent when he was unable timeously
to
observe and react to an obstacle on a dark road. In the present
case the defendant presented no evidence why the insured
vehicle
could not have been moved into the bus lane. There was only the
version of the plaintiff that he was unable timeously
to observe or
react to the insured vehicle. Mr Frost submitted in conclusion
that no contributory negligence has been established
on the part of
the plaintiff and that the defendant should be declared 100% liable
for the plaintiff’s damages.
[32]
Having considered the matter and the arguments
advanced on behalf of the parties, I am not persuaded that there is
any basis for
the plea of prescription. The claim was clearly
lodged as an identified claim within the period of three years of the
date
of the collision. Considered holistically the information
which was provided to the RAF upon lodgement of the claim would
have
been sufficient for it to investigate the claim. Although the
incorrect registration number of the insured vehicle was
provided in
the RAF1 claim form, the correct registration number was reflected in
the section 19(f) affidavit. It would have
been a relatively
easy matter to ascertain that the registration number in the claim
form was non-existent and that Mr Nordien
was the owner of the
vehicle identified in the section 19(f) affidavit. It would have been
equally easy to established from Mr
Nordien that his vehicle was
indeed involved in the collision and he would also have been in a
position to provide the details
of the insured driver. All of
this was eventually done by both parties albeit on the eve or during
the trial. It is
trite that while the submission of the RAF1
claim form is peremptory, the information that is to be provided in
the form is directory
and that only substantial compliance is
required in this regard. It is clear in the circumstances that
the incorrect first
letter of the registration number of the insured
vehicle in the claim form is an error or oversight. The rest of
the digits
in the registration number are correct and coincide with
the actual registration number of the insured vehicle as reflected in
the section 19(f) affidavit. I am satisfied in the
circumstances that the claim as lodged, complied with the statutory
requirements
and sufficiently served the purpose of enabling the RAF
to investigate the claim (cf
SA Eagle
Assurance Co Ltd v Pretorius
[1997] ZASCA 107
;
[1998] 1 All SA
131
(A);
Pithey v Road Accident Fund
2014 (4) SA 112
(SCA)). I accordingly find that Regulations
2(1)(a) and/or (b) find no application in this matter. The
claim of the
plaintiff has accordingly not become prescribed.
[33]
Insofar as the issue of liability is concerned, I
agree with the submission of Mr Mgidlana that the plaintiff’s
negligence
was the main cause of the collision. On his own
version, he had sufficient opportunity to avoid the collision but did
not
do so mainly because he failed to keep a proper look out.
It is significant in this regard that the kombi travelling in front
of him in the same lane was able to pass the stationary bakkie safely
by moving into the left hand lane. At that stage the
plaintiff
was approximately 7½ metres from the kombi. He should
have been able to see the bakkie in the road at the
stage that the
kombi moved into the left hand lane which would have allowed him
sufficient opportunity to take evasive action.
On his own version the
range of his dim headlights was approximately 10 metres. The
headlights would have illuminated the
bakkie immediately when the
kombi moved into the left hand lane approximately 7½ metres
ahead of him. This would be
so even if the bakkie’s
lights were off or in the absence of a warning triangle on the road.
[34]
The plaintiff could also have moved into the left
hand lane because he never indicated that there was other traffic in
the left
hand lane which was moving alongside his vehicle which
prevented him from moving into the left hand lane. The kombi
was ahead
of him and did not prevent him from doing so despite his
unconvincing claims to the contrary in his evidence. He could
also
have moved into the bus lane which was empty and would have been
able to avoid the collision in that fashion. I do not accept the
plaintiff’s evidence that the yellow blocks separating the fast
lane from the bus lane made it physically impossible for
him to move
into the bus lane. It is readily apparent from the photographs
of the scene that the yellow blocks in question
serve as a warning
signal and a demarcation between the fast lane and bus lane rather
than a physical barrier between the fast
lane and bus lane. He
maintained that at the speed of 70km/h at which he was travelling it
was physically impossible to move
over the yellow blocks. This
was not at all convincing. He did proceed right across the road after
the collision and ended
up against the embankment on the far side of
the road. His vehicle was not stopped by the blocks. In any
event he conceded
that he could have driven over the blocks at a
lesser speed. He furthermore conceded that he never reduced
speed or applied
his brakes. He had ample opportunity in the
circumstances to have done so. He never gave a convincing
reason why he
did not do so. His conduct in simply proceeding
at the same speed and driving straight into the rear of the
stationary bakkie
without even attempting to take evasive action
significantly deviated in the circumstances from the standard of the
bonus paterfamilias
.
While he confirmed having been aware that it was necessary to be
extra vigilant as he was entering the dark section of the
road, he
never adjusted his conduct accordingly. The negligence of the
insured driver was clearly also a significant contributing
cause of
the collision but it was less so than the negligence of the
plaintiff. This should be reflected in the apportionment
of
liability.
[35]
For the reasons set out above, I do not agree
with the submission of Mr Frost in reply that the plaintiff was
unable timeously to
observe or react to the insured vehicle. On the
probabilities, the kombi ahead of him moved into the left hand lane
to avoid a
collision with the insured vehicle, which it successfully
managed to do. The plaintiff who was some distance behind the
kombi
when it did so, was in a similar if not better position to also
have done so. It is trite that each case must be decided on
its
own facts and circumstances. No useful purpose is served to
transpose the conclusion in other cases to the matter at
hand.
I accordingly do no find that the matter of
Paterson
NO
referred to by Mr Frost precludes me from
coming to the conclusion that I have reached in this matter
concerning the plaintiff’s
contributory negligence. It is
furthermore incorrect that the defendant relied upon inferences drawn
from inadmissible evidence
or submissions from the Bar for its
argument in respect of the plaintiff’s contributory
negligence. It is clear that
the defendant relied in this
regard on the version of the plaintiff himself which it was fully
entitled to do even in the absence
of any witnesses of its own.
[36]
In the circumstances, I conclude that the
negligence of the plaintiff was the principal cause of the collision
and that 60 percent
of the blame for the collision should be
apportioned to the plaintiff and 40 percent to the insured driver.
[37]
There is no adequate reason in the circumstances
of this case why costs should not follow the result or why the
plaintiff should
be deprived of any portion of his costs. He
was compelled to approach the court to recover his loss, albeit with
only partial
success. I am constrained to remark
en
passant
that there might very well be cases
where, in the exercise of the court’s discretion in respect of
costs, a plaintiff could
justifiably be deprived of a portion of its
costs proportionate to an apportionment even in cases where there is
not a partially
successful claim and counterclaim but only a claim in
convention as in the present matter. A possible example that
springs
to mind is where the contributory negligence on the part of
the defendant is but slight. However, this is not such a case.
[38]
In the result, I make the following order:
(a)
The defendant is liable for 40 percent of the
plaintiff’s proven or agreed damages resulting from the
injuries he sustained
in the motor vehicle accident that occurred on
11 November 2015.
(b)
The defendant is ordered to pay the plaintiff’s
costs occasioned by the trial on the merits;
(c)
The costs in respect of 17 February 2021 shall
remain reserved for later determination.
D
O POTGIETER
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv Frost instructed by Boqwana
Burns Inc, Port Elizabeth
For
Defendant: Adv
Mgidlana instructed Mohulatsi Attorneys Inc c/o BLC Attorneys,
Port
Elizabeth