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2024
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[2024] ZAFSHC 31
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Stenger v Road Accident Fund (3989/2022) [2024] ZAFSHC 31 (9 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no: 3989/2022
In
the matter between:
PAUL
STEVEN STENGER
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
CORAM:
MTHIMUNYE, AJ
HEARD
ON:
24 OCTOBER 2023
DELIVERED
ON:
09 JANUARY
2024
[1]
The plaintiff claims damages from the defendant
for injuries sustained pursuant to a motor vehicle accident that
allegedly occurred
on 18 February 2020 at Pasteur Street, Hospital
Park in Bloemfontein. On that day the plaintiff was driving a Toyota
Bus when an
unknown vehicle drove onto his lane. The defendant
repudiated the claim on the basis that there was no contact between
the vehicles
and as such it believes that the plaintiff was the sole
cause of the accident. This court is called upon to determine
negligence
on the part of the defendant and as such the merits of the
plaintiff’s claim.
[2]
Two witnesses testified for the plaintiff viz, the plaintiff
himself
and his father. The plaintiff testified about how the accident
happened and his father gave evidence on where the car was
found
after the accident. The defendant called no witnesses and argued its
case only on paper.
[3]
The plaintiff testified that he is employed as a driver
of a 25
seater school bus at Bloemfontein High School. His job is to pick up
pupils in the morning from different pick up points
and take them to
school. On 18 February 2020 he left his house at about 05:50am as
usual and on his way to pick up the first child
in Pasteur drive.
There was no traffic and although a bit cloudy, his vision was clear.
He was used to the route and was driving
at 60 -80 kilometres per
hour. As he was approaching a curve where he was going to turn, he
noticed a white Toyota driving in the
opposite direction coming
towards him but it was on its lane. As he was about to turn the white
Toyota suddenly came half into
his lane causing him to swerve to the
left to avoid a collision. His front wheel hit the pavement and the
vehicle swerved and hit
a tree. It was about 6:20am. After he hit the
tree, the Toyota stopped for a short while and immediately drove off.
There was no
physical contact between his bus and the Toyota. After
he hit the tree, he could not stand or move, he was stuck in the bus.
[4]
The next car that came by stopped and other people started
coming and
called the paramedics. A lady from the paramedics told him he would
not be able to come out they must wait for the fire
brigade to come
and cut him out of the car. After she told him this, he passed out
and woke up at the hospital. He had a fracture
on his thigh and foot
and was in hospital for about a month. Only after he was discharged
was he able to make a statement to the
Police.
[5]
A statement he made to the police was also admitted into
evidence as
Exhibit C and read into the record. The statement was dated 12 March
2020. At the time of making a statement,
no police plan was
shown to him. There was a discrepancy in the statement in respect of
the weather as in his testimony he said
it was cloudy but clear and
on the statement he told the police that it was raining. In my view,
nothing much turns on this. He
could see and his vision was not
impaired by anything.
[6]
Three exhibits were handed up and admitted into evidence
without any
objection. These were the Google Street Map print out as Exhibit ‘A’,
the Street Map as Exhibit ‘B’
and the statement made by
the plaintiff to the police after he was discharged as Exhibit ‘C’.
[7]
Mr Ralentshwe Charles Stenger, the Plaintiff’s
father testified
that on 18 February 2020 the plaintiff’s wife called him to
inform him of the accident and he went to the
scene. When he
approached the scene he saw a bus and a number of people, he drove
past and walked back to the scene. On arrival
he was told his son had
been taken by an ambulance. He identified the tree next to which he
found the car on Exhibit “A”
and explained that from his
observation of the damages on the car, it appeared that it had hit
the tree with its front part. Thereafter
he went to pick up the
family and went to hospital. He could not testify about how the
accident happened since he was not there.
[8]
The defendant denied the claim but put no version or
explanation to
the court. Its only contention is that other steps could have been
taken to avoid the collision and further that
the plaintiff was the
sole witness and not collaborative evidence was led. It then prayed
for the claim to be dismissed alternatively
be apportioned in terms
of the Apportionment of Damages Act 34 of 1956.
[9]
Counsel for the plaintiff argued that this is a miss
and run kind of
accident and that since there is no police report or any evidence by
the defendant to the contrary, the court should
accept the
plaintiff’s version that another car was involved and as such
find that there was negligence on the part of the
defendant. He
referred the court to the full bench decision of this Division
viz
.
Chauke v RAF (A59 /2022)
[2023] ZAFSHC 214
(31 May 2023)
,
which case he argued was on all fours with this one and after the
claim was disallowed and the court
a quo
rejecting the
plaintiff’s evidence despite the absence of contradictory
evidence, the full bench upheld the appeal and found
the defendant to
be liable for 100% of the plaintiff’s damages.
[10]
It is trite that the plaintiff bears the onus to prove, on a balance
of probabilities,
that the insured driver was negligent and was the
cause or contributed to the accident –
Ntsala & Others v
Mutual & Federal Insurance Co.Ltd
1996 (2) SA 184
(T) at 190E-F
.
What this court is called upon to determine is whether or not the
plaintiff has discharged that burden.
[11]
In
Sardi v Standard and General Insurance Co Ltd 1977 (3) 776 (AD)
at 780 C-D,
the Appellate Division, as it then was, held the
following:
“
At the end of
the case, the Court has to decide whether, on all the evidence and
the probabilities and the inferences, the plaintiff
has discharged
the onus of proof on the pleadings on a preponderance of probability,
just as the Court would do in any other case
concerning negligence.
In the final analysis, the Court does not adopt a piecemeal approach
of (a), first drawing the inference
of negligence from the occurrence
itself, and regarding this as prima facie case; and then (b) deciding
whether this has been rebutted
by the defendant’s explanation”.
[12]
The ‘preponderance of probabilities’, requires the court
to satisfy
itself that, based on the evidence before it, it more
likely than not that the incident did happen in the manner that the
plaintiff
alleges.
[13]
Both exhibits ‘A’ and ‘B’ showed and it was
accepted
that the accident occurred on the plaintiff’s correct
side of the road. Having considered the evidence before this court
and the submissions I am persuaded that under this circumstances, the
maxim
res ipsa loquitur
applies and in this regard, one must
consider the decision of
Arthur v Bezuidenhout and Mieny
1962 (2)
SA 566
(A) at 573 C-H
where the Appellate Division held:
“
I am of the
opinion that on the facts of the present case the maxim may rightly
be applied. For when plaintiffs proved that defendant’s
truck
for no apparent reason suddenly swerved onto its correct side there
to collide with their truck, plaintiff proved facts from
which an
inference of negligence against the defendant may, in the absence of
any explanation be drawn – res ipsa loquitur”.
[14]
The
res ipso loquitur
maxim gives rise to an inference of
negligence unless the defendant’s evidence counters that
inference by producing evidence
that shows that the accident may have
occurred without negligence on its part, the explanation must be
reasonable and persuasive
– see
Rankisson & Son v
Springfield Omnibus Services (Pty) Ltd
1964 (1) SA 609
(D)
at
616.
[15]
Counsel for the plaintiff also submitted that the doctrine of sudden
emergency
finds application in this case. The doctrine was formulated
as follows: ‘
a man who, by another’s want of care,
finds himself in a position of imminent danger, cannot be held guilty
of negligence
merely because in that emergency he does not act in the
best way to avoid the danger’
–
R v Cawood
1944
GWL 50
at 54.
[16]
A driver confronted with a sudden emergency is one who has neither
the time
nor opportunity to weigh the pros and cons of the situation
in which he finds himself. The effect of this doctrine is that a
driver
acting in the best way to avoid danger in a sudden emergency
is not negligent –
Ntsimane v Maluleka and Another
(2278/2010)
[2013] ZANWHC 49
(
30 May 2013).
[17]
The defendant made an issue with the fact that during his evidence,
the plaintiff
said it was a bit cloudy but nothing blocked his vision
and he could see clearly whilst on the police statement he said it
had
been raining. Under cross-examination he did not dispute that he
told the police that it had been raining. In my view, nothing much
turns on this since first the plaintiff did not use visibility as an
issue instead he explained that it was a few seconds between
the time
he observed the Toyota for the first time and when he then suddenly
saw it in his lane. At that moment and in a split
second, to avoid a
collision, he had to quickly swerve out of the road and that is how
the accident occurred. He had to do something
quickly, and he did and
took the only reasonable alternative available.
[18]
Although the defendant prayed for apportionment, I found no basis to
order
same as no version or justification thereof was put before this
court by the defendant. Apportionment is applicable where damage
is
caused partly by the plaintiff’s fault and partly by the
defendant’s fault. No version was put before this court
showing
that the plaintiff partly caused this accident, all the defendant
said was that other steps could have been taken to avoid
the
accident, without demonstrating to the court with evidence what those
steps are and how they could have been taken. That the
plaintiff was
the sole witness to the accident can also not be the basis for
apportionment, especially if the plaintiff’s
evidence was
honest and reliable, which in my view it was. Applying both the
maxim
res ipsa loquitor
and the doctrine of sudden emergency
as explained above, I am persuaded that the plaintiff cannot be said
to have been negligent
at any point in respect of the accident that
occurred on 18 February 2020.
Consequently,
I make the following
Order
:
1.
The defendant is liable for 100% of the plaintiff’s proven or
agreed damages.
2.
The defendant is liable for the plaintiff’s costs to date.
D.P.
MTHIMUNYE, AJ
Appearances:
For
the Plaintiff
Adv D
Grewar
Bloemfontein
Society of Advocates
Instructed
by
H B
Booysen Attorneys
Bloemfontein
For
the Defendant:
Ms M
Booysen
Instructed
by
Office
of the State Attorney
Bloemfontein