Brief Summary

Negligence — Motor vehicle collision — Determination of liability — Plaintiff involved in collision while riding motorcycle without a license — Plaintiff alleges insured driver executed an inopportune right turn across his line of travel — Insured driver contends she was stationary and that the motorcycle lost control — Court assesses credibility of witnesses and probabilities — Plaintiff’s version corroborated by independent witness — Insured driver’s evidence found to be contradictory and unconvincing — Court holds insured driver solely liable for the collision.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a delictual Road Accident Fund matter in the Eastern Cape Division, Gqeberha, in which the court was asked to determine negligence on the merits only. The plaintiff, Roche Koekemoer, instituted action against the defendant, the Road Accident Fund, arising from a motor vehicle collision involving a motorcycle driven by the plaintiff and a VW Golf driven by Ms Yolande Ann Walton, the insured driver.

By agreement between the parties, the issues of liability and quantum were separated, and the proceedings before Collett AJ were confined to the determination of negligence (and, in consequence, the apportionment of liability, if any). The matter was heard on 5 June 2023 and judgment was delivered on 8 June 2023.

The general subject-matter of the dispute was a collision at or near an intersection in Sherwood, Gqeberha, and the central contest was factual: whether the insured driver turned right across the plaintiff’s line of travel at an inopportune moment, as the plaintiff alleged, or whether the insured driver was stationary in her lane while indicating and waiting, and the plaintiff lost control and collided with her vehicle, as the defendant’s version asserted.

2. Material Facts

A collision occurred on 15 April 2018 at approximately 11h15 at or near the intersection of Caledon Street and Headingley Road, Sherwood, Gqeberha, between a motorcycle ridden by the plaintiff and a VW Golf driven by the insured driver. The road configuration at the locus was described as a single lane of traffic in each direction. The collision occurred on a Sunday in sunny, clear conditions with good visibility.

It was common cause (or treated by the court as effectively common cause within the narrowed issues) that the parties were travelling in opposite directions in Caledon Street; that the insured driver intended to execute a right-hand turn into Headingley Road; that after the collision the plaintiff and his motorcycle came to rest in the positions described (including the plaintiff being thrown onto the sidewalk near the street name pole and the motorcycle landing near the curb); that the insured driver stopped after the collision by pulling around the corner; that photographs depicting damage and the scene formed part of the record; and that the police did not attend at the scene.

The plaintiff was born on 1 June 2000 and was just short of 18 years old at the time of the collision. He was not in possession of a motorcycle licence at the time. On the day in question he had fetched a motorcycle (a Suzuki 185CC belonging to a friend) from Baywest Mall and, after pushing it along Caledon Street, he managed to run-start it approximately 60–70 metres from the collision scene. He then proceeded in second gear toward the intersection.

On the plaintiff’s version, he observed the insured driver’s green Golf approaching from the opposite direction. He alleged that the insured driver, without indicating, suddenly executed a right turn into Headingley Road across his line of travel, cutting the corner, and that despite his attempt to swerve left the motorcycle collided with the right front of the insured vehicle near the stop markings at the intersection. The plaintiff’s version included that he could not have avoided the collision.

An independent witness, Ms Shereen du Plessis, testified that she was outside the church situated at the corner of the intersection at approximately 11h00. She heard a loud motorcycle noise, looked up the road, observed the green Golf coming from the opposite direction, and saw it turning right into Headingley Road. She stated that the motorcycle collided with the right front side of the Golf. She could not remember whether the Golf indicated. She described the motorcycle landing near the curb and the rider being thrown through the air to the street name pole, and maintained that there was nothing the motorcycle rider could have done to avoid the collision.

The insured driver’s version differed materially. She testified that she had indicated to turn right and had become stationary in her lane, waiting for the motorcycle (which had right of way) to pass. She alleged that while she was stationary, the motorcycle appeared to lose control, veer onto her side of the road, and collide with the right fender of her vehicle, and that she could not avoid the collision. In cross-examination, aspects of her account were challenged with reference to the accident report and the nature of the collision, and her evidence included changes in the description of how the collision occurred.

The court identified the “crisp issue” as whether the insured driver executed an inopportune right-hand turn across the plaintiff’s line of travel, thereby causing the collision, or whether the plaintiff collided with the insured driver while she was stationary and waiting to turn. The court treated the versions as irreconcilable.

3. Legal Issues

The central legal question was whether the plaintiff had discharged the onus of proof of negligence on the part of the insured driver, and, if so, whether any contributory negligence by the plaintiff had been established (although the court recorded that contributory negligence was seemingly abandoned in argument).

The dispute was predominantly one of fact, resolved through credibility findings, evaluation of contradictions, and the drawing of inferences from probabilities. It also involved the application of legal principles concerning proof in civil trials, including the method of resolving mutually destructive versions, and the approach to credibility findings in relation to proven facts and probabilities.

Within that factual determination, the court was required to decide whether the plaintiff had the right of way at the time and whether the insured driver failed to yield by turning across his path when it was unsafe to do so, thereby constituting negligence as the sole cause of the collision.

4. Court’s Reasoning

The court approached the matter as one involving mutually destructive factual versions and emphasised that credibility findings are not made in isolation but must be assessed against the proven facts and the probabilities. In this context the court referred to the approach in Santam Bpk v Biddulph 2004 (5) SA 586 (SCA), and the technique for resolving factual disputes described in Stellenbosch Farmers’ Winery Group v Martell Ex Cie and Others 2003 (1) SA 11 (SCA). It also noted that credibility is linked to probabilities when assessing whether the party bearing the onus has discharged it, with reference to National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E).

On the evidence, the court made clear credibility evaluations. It regarded the plaintiff as a clear, consistent, and unshaken witness who did not embellish his account and remained steadfast under cross-examination. The plaintiff’s version was found to be corroborated in material respects by Ms du Plessis, whom the court also found to be a credible witness. Although the witness conceded that her vantage point was below street level, the court accepted her clarification that she could see vehicles on the road, supported by a photograph in the exhibit bundle showing visibility from her position.

In contrast, the court found the insured driver to be an unimpressive witness whose evidence was confusing and contradictory, with aspects appearing tailored to questioning, and with selective memory when challenged. The court also noted variances between her evidence and what had been put to other witnesses on the defendant’s behalf. The court treated her account as containing internal and external contradictions, inconsistencies, and embellishment.

Having accepted the plaintiff’s and independent witness’s versions, the court assessed the probabilities against the “common cause” background features and the post-collision positions of the parties and vehicles. It considered the insured driver’s attempt to describe the collision as effectively head-on followed by manoeuvring into a perpendicular position to align with vehicle damage to be improbable and inconsistent with the physical aftermath as accepted by the court. On that basis, the court concluded that the insured driver’s version was neither plausible nor probable.

On the ultimate factual finding, the court held that the plaintiff had the right of way and that the insured driver made an inopportune right-hand turn into Headingley Road across the plaintiff’s line of travel, at a time when he could not reasonably have been expected to take effective evasive action. The court considered that this negligence was the sole cause of the collision. In doing so, it treated contributory negligence as not requiring further consideration given the manner in which it was addressed (or not pursued) in argument.

5. Outcome and Relief

The court found that the insured driver was solely negligent in causing the collision of 15 April 2018. It ordered that the defendant, the Road Accident Fund, is liable to the plaintiff for 100% of such damages as may be proven or agreed arising from injuries sustained in the collision.

As to costs, the court ordered the defendant to pay the costs of trial on the merits, including the costs of two counsel, and the reasonable costs of the photographs and the inspection in loco, noting that costs were agreed to follow the result and that a prior tender had included costs of two counsel.

Cases Cited

Santam Bpk v Biddulph 2004 (5) SA 586 (SCA). National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E). Stellenbosch Farmers’ Winery Group v Martell Ex Cie and Others 2003 (1) SA 11 (SCA). Sierborger v South African Railways and Harbours 1961 (1) SA 498 (A).

Legislation Cited

No legislation was expressly cited in the judgment text provided.

Rules of Court Cited

No rules of court were expressly cited in the judgment text provided.

Held

The court held that, on the accepted evidence and probabilities, the plaintiff had the right of way and the insured driver negligently executed an inopportune right-hand turn across the plaintiff’s line of travel into Headingley Road, causing the collision. The insured driver’s negligence was found to be the sole cause of the accident.

The court further held that the plaintiff had discharged the onus of proving negligence on the merits, and that the matter did not warrant apportionment in circumstances where contributory negligence was, in effect, not pursued. The defendant was accordingly held liable for 100% of the plaintiff’s proven or agreed damages.

LEGAL PRINCIPLES

The judgment applied the principle that findings on credibility are not determined in isolation but must be evaluated alongside proven facts and the probabilities of the case, as articulated in Santam Bpk v Biddulph 2004 (5) SA 586 (SCA). The court treated credibility as intertwined with probability analysis when deciding whether the onus-bearing party has established its case on a balance of probabilities.

In resolving mutually destructive versions, the judgment applied the accepted civil method for determining factual disputes by considering the credibility and reliability of witnesses and the probabilities, consistent with Stellenbosch Farmers’ Winery Group v Martell Ex Cie and Others 2003 (1) SA 11 (SCA) and National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E). The approach required the court to choose between irreconcilable versions by assessing internal consistency, external consistency with common cause facts, and overall plausibility.

On the merits of negligence in the intersection turning context, the judgment proceeded on the premise that a driver turning right across oncoming traffic must do so only when it is safe and opportune, particularly where the other road user has the right of way. The court’s conclusion that the insured driver’s turn was “inopportune” and across the plaintiff’s line of travel encapsulated the negligent act found to have caused the collision, with reference to the plaintiff’s right of way supported in the cited authority of Sierborger v South African Railways and Harbours 1961 (1) SA 498 (A).

Koekemoer v Road Accident Fund (2123/2021) [2023] ZAECQBHC 34 (8 June 2023)