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[2023] ZAFSHC 348
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Lalmiah v Road Accident Fund (734/2021) [2023] ZAFSHC 348 (1 September 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Reportable Yes/No
Of interest to
other judges Yes/No
Circulate to
Magistrates Yes/No
Case
Number: 734/2021
In
the matter between: -
ISAQUE
LALMIAH
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
CORAM:
MBHELE, DJP
HEARD
ON:
23
May 2023
DELIVERED
ON:
01 September 2023
[1]
Plaintiff alleges that he sustained bodily injuries arising from a
motor vehicle accident caused by
an unknown third party. He
instituted a claim for damages against the Defendant (RAF). The
merits were separated from the quantum.
At the beginning of the
trial, the RAF abandoned its special plea.
[2]
The plaintiff’s testimony was essentially as follows. On 19
November 2019, the plaintiff was travelling
from Senekal to Welkom in
a Toyota Hilux single cab bakkie with registration numbers and
letters F[…] 9[…] FS (Plaintiff’s
vehicle)
carrying one passenger. The vehicle was travelling on a tarred road
with a single carriage in both directions with cardboard
boxes
containing stationary loaded on the back of the bakkie. The plaintiff
was travelling at a speed of approximately 90- 100
kilometres per
hour. About 30 kilometres before Welkom in between, Hennenman and
Ventersburg, he noticed a blue Toyota Tazz (insured
driver) following
him.
[3]
The insured
driver overtook the plaintiff where after he reduced his speed to
approximately 80 – 90 kilometres per hour. The
plaintiff
followed the insured driver for about 5 – 8 Kilometres on a
road consisting of rolling hills. The insured vehicle
was driving
slowly and the vehicle was making sudden abrupt left and right turns
(driving in a zig-zag). Plaintiff indicated his
intention to overtake
and then proceeded with a manoeuvre to overtake the insured vehicle.
While his vehicle was parallel to the
insured vehicle, the insured
vehicle moved into the right lane without indicating and it slightly
bumped with the left fender of
his vehicle. He swerved to the right
and his vehicle landed outside the tarmac on the gravel, he
immediately thereafter swerved
to the left, lost control of the
vehicle and crossed the left lane where he eventually landed in the
veld.
[4]
The photos of the plaintiff’s vehicle show that it had
damages on the bonnet and on the sides.
Plaintiff contradicted the affidavit taken down by his Attorney and
submitted to the RAF accompanying the RAF1 form when he lodged
his
claim.
In his affidavit, the plaintiff said that he
collided with a blue Mazda bakkie with registration numbers and
letters
D[…] 5[…] FS
after which he lost control
of the vehicle and it rolled.
[5] In
cross-examination, he denied ever telling his Attorney that he
collided with a vehicle as described in
the affidavit. He reiterated
that he collided with a blue Toyota Tazz whose
registration numbers and letters are unknown.
The plaintiff was
confronted with the inconsistencies between the oral evidence
tendered in court and the affidavit he signed in
support of his claim
but he offered no satisfactory explanation. He was evasive in
his response and failed to answer many
questions.
[6]
The RAF closed its case without calling any
witnesses. I have to evaluate the evidence on the version proffered
by the plaintiff.
[7]
In the particulars of claim, the plaintiff alleges 5 grounds for
negligence on the part of the insured
driver: That he drove too slow
under the prevailing circumstances, he failed to keep a proper
lookout, he failed to apply brakes
of the vehicle he was driving
effectively alternatively at all, he failed to drive the vehicle with
the necessary skill expected
of a reasonable driver in the
circumstances, he moved into the lane for oncoming traffic at a time
when it was inopportune and
unsafe to do so.
[8]
The onus rests upon the plaintiff to prove
negligence on the part of the defendant on a balance of
probabilities. In
Sardi
v Standard and General Insurance,
[1]
Holmes JA remarked as follows:
‘
At the end of the
case, the Court has to decide whether, on all of 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 a
prima
facie
case;
and then (b) deciding whether this has been rebutted by the
defendant’s explanation’
[2]
[9]
The question to ask is whether the evidence adduced by the plaintiff
is credible and sufficient to prove
his case See
Van
Wyk v Lewis
[3]
where the following was said “
‘
The
question of
onus
is
of capital importance. The general rule is that he who asserts must
prove. A plaintiff therefore who relies on negligence
must establish
it. If at the conclusion of the case the evidence is evenly balanced,
he cannot claim a verdict; for he will not
have discharged
the
onus
resting
upon him. ‘
[10]
The plaintiff must show that there was a duty of care that the
defendant breached. The plaintiff, as a driver of a motor
vehicle on
a public road, had certain duties to fulfil to stay safe on the road.
He had to appreciate that he shared the road with
other road users,
he had to recognise the existence of reciprocal duties and was
obliged to avoid harm to other road users. He
had a duty to
keep a proper lookout, to keep left, to travel at a reasonable speed
under the prevailing circumstances and to avoid
collision by the
exercise of reasonable care. He had a duty to act reasonably and to
regulate his speed in relation to his range
of vision. A breach of
these duties justifies a conclusion of negligent conduct on the part
of a driver.
[4]
[11]
A reasonable driver using a public road would be capable of
foreseeing situations that may cause harm on the road,
such as
stationary traffic, fast-moving traffic, pedestrians, animals and
obstructions as well as irregularly.
[5]
[12]
In order to prove negligence in a collision between an
overtaking vehicle and the one being overtaken, an overtaking
driver
must be able to show that the collision was occasioned by the sudden
movement to the right of the driver of the vehicle
being overtaken
and that he/she had given sufficient space between the two vehicles
to allow for foreseeable and normal lateral
movement of the vehicle
being overtaken. A driver who overtakes another vehicle must ensure
that it is safe to do so. The overtaking
driver must be alert to the
possibility that the vehicle being overtaken may turn to its
right
[6]
.
[13]
The test for negligence is well established. In
Kruger
v Coetzee
[7]
it was held
that negligence arises if a reasonable person in the position of the
defendant 'would foresee the reasonable possibility
of his conduct
injuring another in his person or property and causing him
patrimonial loss' and 'would take reasonable steps to
guard against
such occurrence' but the defendant failed to take those steps.
[14]
In
Cape Town Municipality v
Paine
(1923,
A.D at p. 216) the following was said: -
"It
has repeatedly been laid down in this Court that accountability for
unintentional injury depends upon culpa, the failure
to observe that
degree of care which a reasonable man would have observed. I use the
term reasonable to denote the
diligens paterfamilias
of
Roman law, the average prudent person. Every man has a right not to
be injured in his person or property by the negligence
of another,
and that involves a duty on each to exercise due and reasonable care.
The question whether, in any given situation,
a reasonable man would
have foreseen the likelihood of harm and governed his conduct
accordingly, is one to be decided in each
case upon a consideration
of all the circumstances. Once it is clear that the danger would have
been foreseen and guarded against
by the
diligens
paterfamilias
, the duty to take care is established, and it only
remains to ascertain whether it has been discharged."
[15] The
evidence before me shows that for about 8 kilometres when the
plaintiff was following the insured vehicle,
the latter had been
making abrupt movements to the left and right. The movement of
the insured vehicle to the right was not
sudden, it had been observed
by the plaintiff for about 8 kilometres and for that distance,
plaintiff experienced no harm. Having
observed the insured driver for
such a distance it would have been apparent to the plaintiff that
overtaking the insured vehicle
would put his life in harm's way.
[16]
As stated above, the overtaking driver must, when overtaking, assume
that the vehicle being overtaken will keep to the
left lane and
continue on its course until the manoeuvre is complete. There was no
basis for the plaintiff to assume that the insured
vehicle would keep
to the left lane as it is normally the case. It was clear for the 8
kilometres that the 2 vehicles travelled
together that overtaking the
insured driver would be tantamount to walking into a lion’s
den.
[17]
Although the insured driver drove recklessly the
plaintiff had a reciprocal duty to keep other road users safe,
including his passenger.
Plaintiff
foresaw the possibility of his vehicle colliding with the insured
driver but he nevertheless overtook the insured vehicle.
The
plaintiff’s conduct was irreconcilable with that of a
reasonable driver in a similar situation.
[18]
In
Santam
Insurance CO LTD v Vorster
[8]
the
court said the following when it dealt with voluntary assumption of
risk
‘
Whether or not the
plaintiff consented to the risk of injury through the negligent
driving of van der Schyff and/or Conradie during
the race is
admittedly a question of fact. Cf.
Letang v
Ottawa Electric Railway Co.
,
1926 A.C. 725
(P.C.) at p. 731, where it was said that:
'If the defendants desire
to succeed on the ground that the maxim
volenti non fit
injuria
is applicable, they must obtain a finding of fact that
the plaintiff freely and voluntarily, with full knowledge of the
nature
and extent of the risk he ran, impliedly agreed to incur it.'
[19]
The facts before me evince that the plaintiff
engaged in an activity and that he was aware of the risks
inherent in
such activity as a driver. The plaintiff voluntarily accepted the
risk through his conduct. He cannot complain
that he sustained
injuries flowing from such activity and seeks compensation for such
injuries. The negligent driving of the insured
driver caused no harm
until the plaintiff decided to overtake at an inopportune moment.
[20]
I am unable to find that the collision as
described by the plaintiff was directly caused by the sole negligence
of the insured driver. The plaintiff chose to encounter a well-known
risk when he decided to overtake the insured driver in the
circumstances. The collision could have been avoided had
the plaintiff exercised the necessary caution expected of
a
reasonable driver in his position. The plaintiff’s
claim cannot succeed.
[21]
I make the following order:
1. The
plaintiff’s claim is dismissed with costs.
N.M. MBHELE, DJP
Appearances:
For
the Plaintiff:
Adv.
Coetzer
Instructed
by:
Honey
Attorneys
Bloemfontein
For
the Respondents:
Ms.
Gouws
Instructed
by:
State
Attorney
Bloemfontein
[1]
1977 (3) SA 776 (A).
[2]
Ibid at 780G-H.
[3]
1924 AD 438 at 444
[4]
Klopper’s Law of Collisions in South Africa 8
th
edition page 38
[5]
Klopper’s Law of Collisions pages 64,72 and 73
[6]
Klopper’s Law of Collisions pages 66, 72, 73
[7]
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E – F.
[8]
Santam Insurance CO LTD v Vorster
1973 (4) SA 764
(A)