Huckle v Road Accident Fund (2639/2019) [2021] ZAECPEHC 33 (27 May 2021)

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[2021] ZAECPEHC 33
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Huckle v Road Accident Fund (2639/2019) [2021] ZAECPEHC 33 (27 May 2021)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No: 2639/2019
In
the matter between:
STUART
RYAN HUCKLE

Plaintiff
and
ROAD
ACCIDENT FUND

Defendant
JUDGMENT
Govindjee
AJ:
Background
[1]
The
plaintiff was involved in a motor vehicle collision on 9 September
2016 near the intersection of Cape Road and Boshoff Street,
Port
Elizabeth (‘the collision’). As a result, he suffered injuries
which he alleges were caused by the sole negligence of the
driver
(‘the insured driver’) of a vehicle (‘the insured vehicle’)
that is, in effect, insured by the defendant.
[1]
[2]
It is alleged that the insured driver was
negligent in one or more of the following respects:
a.
Failure to keep a proper lookout;
b.
Failure to have any or adequate due and
proper regard to the presence of other vehicular traffic travelling
on the said road where
the collision occurred;
c.
Failure to have and keep the insured
vehicle under any, adequate or proper control; and/or
d.
Failure to have any or adequate due and
proper regard to the safety of other road users.
[3]
In particular, it is suggested that the insured
driver suddenly, and without warning or indication, brought the
vehicle he was driving
to a standstill in the path of travel of the
plaintiff’s vehicle at a time when it was dangerous to do so. The
pleadings also claim,
inter alia
,
that the insured driver failed to take reasonable precautionary
measures to ensure that there were no mechanical and/or other defects
to the insured vehicle and to maintain the vehicle in a roadworthy
condition.
[4]
The alleged negligence of the insured driver is
the only issue in dispute on the merits. In the event of a finding
that both drivers
were negligent, their respective degrees of
culpability requires consideration. In terms of its amended plea, the
defendant pleads,
in particular, that:
a.
The insured driver’s motor vehicle was
off the road and not in motion;
b.
The insured driver had a triangle sign
in place seven metres behind his motor vehicle and the hazard lights
of his vehicle were switched
on;
c.
The plaintiff was driving at an
excessive speed, was not wearing a safety belt and failed to apply
his brakes timeously.
[5]
The issues of merits (liability) and quantum of
the plaintiff’s action were separated by agreement in terms of Rule
33(4) of the
Uniform Rules of Court at the commencement of the trial.
The defendant admitted, during the course of a further pre-trial
conference,
the correctness of the contents of the accident report,
which was admitted in evidence without formal proof thereof.
The
evidence
[6]
The
plaintiff testified that he was driving his vehicle alone and
proceeding to his girlfriend’s house on the day of the accident.
Cape Road, at the point in question, has three lanes facing the
direction of Makro and the plaintiff was driving in the middle lane,
and wearing his safety belt.
[2]
It was approximately 16h00, and close to peak hour in terms of
traffic. It was also cloudy and overcast.
[7]
The plaintiff had been travelling on the N2
highway driving at approximately 120km/h. He egressed the N2 and
reduced his speed to
approximately 80km/h as the speed limit on Cape
Road further down the road was 70km/h. He noticed the insured vehicle
(a green Opel
Kadet), which was approximately ten to fifteen metres
in front of him, and travelling in the same lane and direction, prior
to the
collision.
[8]
The plaintiff testified that the insured driver
had appeared to slam his brakes in order to come to a dead stop. No
warning or hazards
were displayed by the insured driver at the time.
The plaintiff tried to swerve around him to the left, and applied
brakes himself.
He nevertheless collided with the rear back left side
of that vehicle with the right front side part of his own vehicle.
The plaintiff
admitted that he might have been able to avoid the
collision had he swerved further to the left. He was, however, unable
to swerve
much further because of the presence of vehicles in the
left-hand lane, and there were also other vehicles in the right-hand
turning
lane at that point in time.
[9]
The plaintiff was knocked unconscious and could
not talk to the police that afternoon. He woke up in hospital and was
released a few
hours later that day. On his version, the insured
driver later visited him to explain that the collision had been
caused by the insured
vehicle’s clutch cable snapping, causing the
sudden stop. The plaintiff denied that the insured vehicle was
off-road and stationary
at the time of the collision, or that the
insured driver had displayed a triangle sign or turned on his hazard
lights. Under cross-examination,
the plaintiff denied offering to pay
for the damages caused to the insured vehicle.
[10]
The insured driver, Mr Baatjie, had a notably
different recollection of events. He had been driving in the middle
lane. His clutch
had failed while he was driving, causing him to veer
to the right and stop his vehicle outside the right-hand turning
lane, with
two wheels outside the road surface and on the pavement.
He could not have stopped on the left-hand side of the road because
of the
vehicles already driving in that lane. He had placed his
triangle behind the vehicle and turned his hazard lights on. The
collision
occurred five to ten minutes later and could have been
avoided as the insured vehicle was at least partly outside the road
surface
area at the time.
[11]
Mr Baatjie had called the police after the
accident. He also testified that the plaintiff had in fact admitted
his wrongdoing and
paid him in part for the damages caused to his
vehicle, without completing the full payment. No details were
provided as to the amount
that had been paid or was allegedly
outstanding.
Analysis
[12]
As
Mr Paterson suggested, the court is tasked with resolving two largely
irreconcilable versions of events. The accepted technique
used to
resolve this has been explained in
SFW
Group Ltd & another v Martell et Cie & others
as
follows:
[3]
‘
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness’ candour and demeanour in
the witness-box, (ii) his bias, latent and blatant, (iii)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established
facts or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects of his version,
(vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events…As
to (c),
this necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the party burdened
with the
onus of proof has succeeded in discharging it.’
[13]
Considered in this light, the evidence
demonstrates that the plaintiff’s version of events must be
accepted in most material respects
and that the balance of
probabilities favour the discharge of the plaintiff’s onus to
demonstrate the insured driver’s negligence.
Given the contents of
the accident report, in particular, the insured driver’s
recollection appears to be mistaken in significant
aspects. That
report accords more closely with the plaintiff’s version. The
accident sketch, for example, shows the plaintiff’s
vehicle in the
middle lane and the insured vehicle in between the middle and
right-turning lanes, travelling in the same direction.
The brief
description of the accident also accords with the plaintiff’s
version and there is no reference whatsoever to the insured
vehicle
having been partially off-road, or that hazard lights were on or the
triangle sign visibly displayed. The colour photographs
of the scene
also demonstrate a raised kerb, and no explanation was offered as to
how the insured vehicle had been able to mount
that kerb, with a
snapped clutch cable, so that the vehicle remained parallel to the
road surface, despite having veered to the right
quite sharply from
the middle lane. Mr Baatjie could also not explain why his version of
the plaintiff having made part-payment to
him was not put to the
plaintiff during his cross-examination.
[14]
Mr Baatjie’s version is improbable in the
extreme. On a survey of all the evidence, there is no explanation why
the plaintiff would
have left the middle lane, when he was travelling
in the direction of Makro, so that he would have collided with the
insured vehicle
on the extreme right-hand side of the road surface,
and with that vehicle standing partly in the right-hand turning lane.
How the
insured driver would have been able to veer from the middle
lane to the extreme right-hand side of the road when cars were in all
probability waiting to turn right at that time of the day also
remained unexplained. Most importantly, and despite Mr Baatjies
having
been the only person to speak to the police who compiled the
accident report, no plausible explanation was offered for the clear
difference between that recording and the version offered by Mr
Baatjies. That report makes no reference to the insured vehicle
having
been on the road shoulder or in an off-road parking space. The
report suggests that the insured driver’s vehicle was travelling
straight, and at least close to the middle lane, which accords more
closely with the plaintiff’s version.
[15]
It must be accepted, on the totality of
available evidence, that the insured driver’s explanation that his
vehicle malfunctioned
as a result of a clutch problem in fact
occurred, but that the subsequent collision occurred close to the
middle lane of Cape Road,
and not on the extreme right of the part of
the road turning into Boshoff Street. That was certainly a key factor
resulting in the
collision, whether or not the insured vehicle’s
brake lights were visible when that vehicle sharply reduced speed as
a result of
a mechanical fault.
[16]
Given
the accepted circumstances, the plaintiff is also at least equally to
blame. The collision could possibly have been avoided
had the
plaintiff travelled at a slower speed and / or have maintained a more
appropriate following distance for vehicles travelling
at
approximately 80 km/h.
[4]
Considering the plaintiff’s contributory negligence, the defendant
is declared liable for fifty (50) percent of such damages suffered
by
the plaintiff, as may be proved or agreed. The plaintiff is also
entitled to the party and party costs of the merits of this action.
Order
[17]
In the result, I make the following order:
1.
The defendant is declared liable for
fifty (50) percent of such damages suffered by the plaintiff in
consequence of the motor vehicle
collision on 9 September 2016, as
may be proved or agreed.
2.
The defendant is ordered to pay the
plaintiff’s taxed or agreed party and party costs of the merits of
the action, such costs to
include the costs of the photographs of the
scene of the collision (Exhibit A1-5).
3.
The defendant is to pay interest on the
plaintiff’s costs at the prescribed legal rate per annum from 14
(fourteen) days after taxation
or agreement to date of payment.
4.
The issue of the quantum of the
plaintiff’s claim is postponed
sine
die
.
A.
GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo
the plaintiff:
Adv
N. Paterson
Instructed
by:
John B. Scott Attorneys
Obo
the defendant:
Adv P.P Boloyi
Instructed
by:
Thipa Attorneys Inc
Heard:
10 May 2021
Date:

27 May 2021
[1]
Section 21(1) of the Road Accident Fund Act, 1996 (Act 56 of 1996).
[2]
Photographs taken at the scene by Mr S Tembani were admitted into
evidence and were referred to by both the plaintiff and insured
driver during their testimonies.
[3]
2003 (1) SA 11 (SCA).
[4]
I pause to note that it is an acknowledged fact that a witness’
recollection and estimate of speed is often inaccurate:
Erasmus
v Road Accident Fund and another
(unreported ECLD case no. 698/2007) at paras 3, 6.