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[2023] ZAFSHC 442
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Van Zyl v Road Accident Fund (3141/2022) [2023] ZAFSHC 442 (9 November 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
,
FREE
STATE DIVISION
,
BLOEMFONTEIN
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
number: 3141/2022
In
the matter between:
HENDRIK
JACOBUS
VAN ZVL
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
HEARD
ON:
05 SEPTEMBER
2023
JUDGMENT
BY:
VELE,
AJ
DELIVERED
ON:
09 NOVEMBER
2023
[1]
The
plaintiff has issued summons against the Road Accident Fund
(hereinafter referred to as "the RAF" or "the
defendant")
for the payment
of
R 2 152
599
-
39
as damages
arising
from
the motor
vehicle
accident that occurred on 03 September 2020, along the R59 between
Hoopstad and Hertogville. The plaintiff was the driver
of the motor
vehicle bearing the registration numbers and letters FSL […]
that collided with vehicle bearing registration
number CK 1[…]
driven by Mr A Mutswangwa (hereinafter referred to as "the
insured driver").
Prior
to instituting the proceedings, the plaintiff complied with the
statutory requirements as set out in the Road Accident
Fund
Act.
[1]
[2]
In his summons, the
plaintiff alleged that the sole cause of the collision was negligent
driving of motor vehicle CK1[…]
by the insured driver,
resulting in the plaintiff sustaining the following bodily injuries:
injury
to
the left hip involving a fracture of the left acetabulum and
associated injury to the sciatic nerve. Lower back injury involving
the nerve roots and the left knee injury involving a fracture of the
proximal left tibia involving the plateau. The RAF defended
the
action as it denied that it was liable to compensate the plaintiff,
alleging that the sole cause of the collision was the plaintiffs
negligence driving. The RAF further raised two special pleas.
[3]
During the pre -
trial meeting, the
parties agreed to separate the merits and quantum, with only the
merits portion to proceed whilst the quantum
portion stand over for
later adjudication. The Defendant conceded that the Plaintiff
compiled with the statutory requirements prior
to instituting the
current proceedings, and abandoned both special pleas at the
commencement
of
the trial.
[4]
The Plaintiff Mr HENDRIK
JACOBUS VAN ZYL; gave evidence that could be summarised as follows:
[5]
He was residing at
house number 5[…] H[…] Street in Hoopstad, Free State.
On
03
September
2020,
he
was
involved
in a motor
vehicle collision
at
around
13H00,
whilst
driving
along
the
R59
Road
from Hertogville
towards
Hoopstad.
He
drove
a
Toyota
Hilux
2.5
long wheel -
based,
LDV with registration
number
FCL […]. It
was a tarred with a single lane in each direction,
separated
by the broken line.
As
it was
a
sunny
day,
the
road
surface
was
dry,
flat,
straight and free of
potholes.
He
could see far ahead as he was travelling at the speed of 100KM/H.
He was on his way to
procure the outside - bearing
of
the Silo's
outside
Argur,
as
the one he had
secured
was
incompatible. When he was about 10KM from Hoopstad, there was a truck
with two grain .... trailers in front of his with registration
number
CK 1[…]; he could not immediately pass due to oncoming
traffic. He reduced his speed to about 80KM/H and remained
behind it
for about two Kilo -
meters.
He kept a distance of about 20 Meters behind the truck, which allowed
him to see at least two oncoming traffic vehicles.
Once an
opportunity presented itself, he put on his right indicator and
accelerated
to
about
90KM/H
in
an
attempt
to
overtake
the
truck. Whilst
in
the
process
of
overtaking
and
past
the
rear
trailer,
he realised
that the truck
has moved
in front
of his motor
vehicle,
as it commenced
turning to the right without indicating. He applied brakes, but
his
brakes
locked
and
the
vehicle
skidded
until
it
collided
with head's
right
rear
-
wheel
with
his
left
front
side,
as
the
truck
had already
turned
with
its
heard
past
the
right
hand
-
side
of
the
road way.
[6]
The Plaintiff
referred to the
discovered
photo
-
album
that contained 11 photographs.
In
Photo
3
,
both
truck
-
head
and first -
trailer
are
reflected
already on the gravel off the tarred road, with the plaintiff's
vehicle attached to the rear wheel.
Photo
2
reflects
Plaintiff's vehicle stuck under the trailer attached to the deflated
rear -
tyre
of the head.
Photo
8
reflects
impact caused damage on plaintiff's front left side.
Photo
9
reflects
plaintiff's vehicle under the trailer. His motor vehicle was a write
-
off
following the accident. There was nothing, he could do to avoid the
accident. He denied that his negligence was the sole cause
of the
collision.
[7]
He was cross -
examined and denied
being in hurry to get back to work. He confirmed that road was bumpy
but not on the section where the collision
occurred. He could not
give an estimate of the distance between his vehicle and the truck
prior to overtaking; merely stating it
was enough to see oncoming
traffic. He confirmed moving to the right side of the road saying it
was safe to do so. He further stated
he could have slowed down, if
oncoming traffic appeared. He confirmed that he was travelling at
90KM/H during his attempt to pass
the truck. Attorney referred to
Photo 1 of the bundle, which reflects long skid - marks of about 30 -
40 meters. He could
not explain
as
to how it happened that he could make such
long skid -
marks
if when
he applied brakes he
was already past the rear- trailer. He further stated that due to his
vehicle's age, it was not fitted with
the ABS system, which made
sudden braking easy.
[8]
This was his evidence
in a nut -
shell.
The plaintiff applied for a postponement in order to secure a witness
in support of his case. Matter was postponed to the
following day.
Counsel of the plaintiff informed the court that said witness has
immigrated
to
Australia and
not
available to attend to court. Plaintiff closed his case, as he did
not have further witnesses to call.
[9]
The RAF also closed
its case without calling any witnesses, nor giving any explanation
as to why the insured
driver was not available.
[10]
The plaintiffs claim arises from driving of a motor vehicle, which
ended up in a collision with another motor
vehicle, resulting in him
sustaining personal injuries. It is a requirement of the RAF Act that
in an instance where someone sustain
injuries in a motor vehicle
accident, a copy of the police docket with witnesses statements and
the accident -
report
by the police -
officer
who attended the scene, which includes the sketch -
plan
of the scene; must be part of documents
lodged
with
the
claim. The plaintiff
did
not call the police
-
officer
who attended the scene and opened the case docket, nor produce same
as part of his evidence. No Accident- Report was also
not availed to
the court, nor was any explanation for failure to do so provided. In
terms section 19 (f) (ii)
[2]
,
provides:
[11]
"The Fund or the
agent shall not be obliged to compensate any person in terms of
section 17 for the loss or damage -
(f) if the third
party refuses or fails -
(i)
... , (ii) to furnish the Fund or such agent with copies of all
statements and documents relating to the accident that gave
rise to
the claim concerned, within reasonable period after having come into
possession thereof."
[12]
The above makes it
compulsory to make all document available for the consideration of
the claim. It is also applicable to a plaintiff,
who want to proof
that he or she is entitled to compensation.
[13]
Photograph
6 to the plaintiff's photo -
album
reflects the cover of the case
docket,
as
well
as
what
appears
to
the
Road
-
Accidents
-
Register. The Regulations require that the Accident -
Report,
which contains the versions of both drivers and the sketch -
plan
form part of supporting documents attached to
claim
Form 1 in terms of section 24
(1)
(a)
[3]
.
The
Accident
-
Report
could
have
shed
some
light
into
what the scene was like and the measured length of the skid -
marks.
The police would have measured the skid -
marks
and given us the insight
of
what
was
the
length
thereof.
In
the absence
thereof,
the
court has to rely on the guess -
work
based on Photo 1. Surely,
the
Plaintiff's attorneys must be aware of this minimum requirement.
[14]
The Defendant also
closed its case without calling the insured driver.
[15]
Both parties filed
heads of argument. In the plaintiff filed the heads of argument, it
was stated that he has discharged the onus
put on him on the balance
of the probabilities, which was disputed by the RAF.
[16]
The
Fund is liable to compensate any third -
party,
injured due to negligent conduct of the insured driver, who is a
person other than
the
plaintiff. The plaintiff must prove the causal link between the
conduct
of
the insured
driver
and
consequences
he
suffered.
In
the matter of Lee v Minister
for
Correctional
Services
[4]
,
at
paragraph
38
and 39 causation was set out as follows:
[17]
"[38] The point of departure is to have clarity on causation
.
This element
of liability gives rise to two distinct enquiries. The first is a
factual enquiry into whether the negligent act or
omission caused the
harm, giving rise to the claim. If it did not, then that is the end
of the matter. If it did, the second enquiry,
a juridical problem
arises. The question is then whether the negligent act or omission is
linked to the harm sufficiently closely
or directly for legal
liability to ensure or whether the harm is too remote. This is termed
legal causation.
[18]
[39] This element of liability is complex and is surrounded by much
controversy. There can be no liability
if it is complex and is
surrounded by much controversy. There can be no liability if it is
not proved, on a balance of probabilities,
the conduct of the
defendant caused the harm. This is so because the net of liability
will be cast too wide. A means of limiting
liability, in cases where
factual causation has been established, must therefore be applied.
Whether an act can be identified as
a cause depends on a conclusion
drawn from available facts or evidence and relevant probabilities."
[19]
On the plaintiff's
version, he was driving behind the truck for approximately
2 KM at the speed of
80 KM/H with a distance of about 20M in between the two vehicles. He
accelerated to 90KM/H in order to overtake
the truck, but it turned
right suddenly,
when
he was past the rear
trailer.
He applied
brakes but the
vehicle
continued
to skid for several
meters.
[20]
The
RAF referred to the decision of Raulinga, J in N Felix v Road
Accident Fund
[5]
, at Paragraph
28, wherein the following was stated:
[21]
"Plaintiff bears
the onus to prove on the balance of probabilities that the insured
driver was negligent and that the negligence
was the cause of the
collision from which he sustained the bodily injuries. There is no
onus on the defendant to prove anything.
Even in the instance where
the Defendant has not tendered evidence to rebut the evidentiary
burden
of
the prima facie case presented by the plaintiff
in this case,
the plaintiff may not
succeed with his claim depending
on the nature and
weight of the evidence so tendered."
[22]
The
general approach to adopt when dealing with the rear end collisions;
is
set- out in HB Kloppers
[6]
-
Page
78:
[23]
"A driver who
collides with the rear of a vehicle in front of him is prima facie
negligent unless he or she can give an explanation
indicating that he
or she was not negligent."
[24]
The onus is on the
plaintiff to prove that the damages he suffered; resulted from the
insured driver's negligent or other unlawful
conduct. The Plaintiff
relied only on his evidence in court. He did not produce the police's
Accident Report or call the Officer
who attendant the scene to state
how it looked like. He elected to rely on the photographs
taken
by one
of
his co -workers
only
.
[25]
Should the
plaintiff's evidence that he was past the rear -
trailer when the
truck suddenly turned right in front of his motor vehicle, is for a
moment correct, how was it possible to make
the length of the skid -
marks of about 30 -
40
Meters starting just where on the left side of the road ends as
reflected in Photo 1? The further fact that emanates from Photo
1; is
if he was past the rear -
trailer, and parallel
the front -
trailer
the time, his skid marks would be only on the right side of the road
and not that long.
If
this was the position,
logic
is he should in the circumstances, have collided with the truck -
head
in a much shorter
distance, taking into account that the truck would have been just
next to his vehicle.
It
is clear from this photo that when he collided with the rear wheel of
the truck -
head,
it was over the right side of the road, as they both ended being on
the gravel off the tarmac. The skid marks as reflected
in Photo 1, do
not support his case.
[26]
The onus is on the
plaintiff to proof the negligence on the part of the insured driver.
He collided with a huge truck; that cannot
execute a sudden turn at
such high speed of 80KM/H. In the absence of the official documents
in support his claim, it has become
difficult to apportion any blame
on the insured driver. He must explain the length of the skid marks,
if he was next to the first
trailer with the speed difference of just
over 10KM/H. He further must explain why collided with the head and
not first -
trailer
which was just next to his vehicle. Evidence points towards the
driver not keeping a proper lookout and having failed to
observe the
truck as he alleged, as he could have applied brakes and avoided the
collision, if travelling at the alleged speed.
[27]
Before calling the
defendant to rebut his evidence, he must have placed a
p
rima
facie
case,
that if left unchallenged,
he
must succeed. This is not the case here, as his evidence, which was
uncorroborated in any way, and Photo 1 that he provided are
inconsistent.
It
is highly improbable that the insured driver's truck, which has two
trailers, would execute a sudden turn at such high speed,
as it may
end up overturning. The length of the skid -
marks remained
unexplained in the circumstances. The fact that he completely avoided
colliding with the first -
trailer, which was
just a few meters in front of his motor vehicle as he was skidding
forward, makes it difficult to understand
the length of the skid -
marks.
[28]
In the circumstances, the court finds that the plaintiff has failed
to prove negligence on the part of the insured driver
in support of
his case on the merits and cannot succeed with his action.
[29]
Accordingly I make the following orders:
1.
The Plaintiff's
action
is
dismissed.
2.
The
Plaintiff
to
pay
the
Defendant's
costs
on
party
and
party scale.
S
O V
E
LE,
AJ
APPEARANCES:
Counsel
on behalf of the Plaintiff:
ADV.
J C COETZER
Instructed
by:
HONEY
ATTORNEYS
BLOEMFONTEIN
Counsel
on behalf of the Defendant:
MRS
D MKHWANAZI
Instructed
by:
THE
OFFICE OF THE STATE ATTORNEY
BLOEMFONTEIN
[1]
Road
Accident Fund Act 56 of 1996, (hereinafter referred to as "RAF
Act")
[2]
RAF
Act
[3]
RAF
Act
[4]
2013
(1) SACR 213 (CC)
[5]
Case
number
29586/13
[6]
The
Law of Collisions in South Africa (7
th
Edition)