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[2023] ZAECMKHC 63
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Madolo v Road Accident Fund (1199/2017) [2023] ZAECMKHC 63 (23 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 1199/2017
In
the matter between:
SIKHUNJULWE
MADOLO
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
LAING
J
[1]
This is a claim for damages arising from a motor vehicle accident
that occurred
on 7 May 2016, along the N2 freeway, in the vicinity of
the Berlin off-ramp, between Qonce and East London.
Background
[2]
The plaintiff alleges he had been the driver of a motor vehicle when
another
driver suddenly changed lanes without warning, colliding with
the plaintiff as the latter was overtaking. The cause of the
accident,
pleads the plaintiff, was the sole and exclusive negligence
of the other driver. As a result, the plaintiff suffered various
fractures,
lacerations, and a head injury. He claims damages in the
amount of R 5,300,000.
[3]
The defendant’s plea amounts to a bare denial. It pleads, in
the alternative,
that any negligence on the part of the other driver
was not the cause of the accident, which was caused by the negligence
of the
plaintiff.
Issues
for determination
[4]
The parties identified,
inter alia
, the following issues in
relation to the determination of the merits: the cause of the
accident; the plaintiff’s degree of
negligence; whether the
other driver had been negligent; whether the plaintiff suffered any
injuries; and whether the defendant
was liable for compensation to be
paid to the plaintiff.
[5]
The court ordered that the determination of the merits be separated
from the
determination of quantum. The matter proceeded to trial on
the question of merits only.
[6]
A brief overview of the relevant principles is set out in the
paragraphs below.
Legal
framework
[7]
In terms of
section 17(1)
of the
Road Accident Fund Act 56 of 1996
, the defendant
is obliged to compensate a person for loss or damage suffered because
of a bodily injury caused by or arising from
the driving of a motor
vehicle. The defendant’s liability is conditional, however,
upon the injury having resulted from the
negligence or wrongful act
of the driver.
[1]
This means
that a person such as the plaintiff is required to prove such
negligence.
[8]
The loss or damage can be reduced by the degree of any contributory
negligence
on the part of the accident victim. This arises from the
provisions of section 1 of the Apportionment of Damages Act 34 of
1956
(‘the Act’), which states as follows:
‘
(1)
(a) Where any person suffers damage which is caused
partly by his own fault and partly by the
fault of any other person,
a claim in respect of that damage shall not be defeated by reason of
the fault of the claimant but the
damages recoverable in respect
thereof shall be reduced by the court to such extent as the court may
deem just and equitable having
regard to the degree in which the
claimant was at fault in relation to the damage.
(b)
Damage shall for the purpose of paragraph (a) be regarded as having
been caused by a person’s fault
notwithstanding the fact that
another person had an opportunity of avoiding the consequences
thereof and negligently failed to
do so.
[9]
The above principles comprise an elementary framework for the
assessment of
the facts in the present matter. We proceed to deal
with the evidence presented during the trial proceedings.
Evidence
at the trial
[10]
The plaintiff testified on his own behalf. He stated that he had been
returning to his home in East
London after finishing late at work, in
Qonce. He had been travelling in the slow lane of a double carriage
freeway at a speed
of between 80 and 100 kilometres per hour when he
caught up with a white Toyota
bakkie
. It had been
approximately 10.00 pm and it had been drizzling at the time.
Visibility, however, had been relatively clear.
[11]
The
bakkie
had been travelling very slowly, prompting the
plaintiff to indicate his intention to overtake it. There was a gap
of about nine
metres between the motor vehicles. As the plaintiff
moved into the fast lane, on his right-hand side, the
bakkie
swerved in front of him, clipping his front bumper. The collision
caused his motor vehicle to roll and come to a rest on the far
side
of the freeway. No other motor vehicles had been in the area at the
time.
[12]
The plaintiff testified that he had lost consciousness but was taken
to the Cecilia Makiwane Hospital
in Mdantsane. He was severely
injured in the accident and received extensive medical treatment.
There was, in his opinion, nothing
that he could have done to have
prevented the accident.
[13]
During cross-examination, the plaintiff explained that the collision
with the
bakkie
had forced his motor vehicle onto a section of
gravel between the fast lane and the median strip. This had resulted
in his losing
control of the motor vehicle.
[14]
To questions put to him by the court, the plaintiff testified that
the accident had occurred on a straight
portion of the road, with a
slight up-hill gradient. The condition of the tar had been good but
wet because of the rainy conditions
at the time.
[15]
The plaintiff closed his case without introducing any further
witnesses. The defendant led no evidence.
Onus
on the parties
[16]
It is helpful, as a point of departure, to
restate a basic principle that applies in civil matters. In
Schwikkard PJ (et al),
Principles of
Evidence
, the learned writer observed
that:
‘
In
civil cases the burden of proof is discharged as a matter of
probability. The standard is often expressed as requiring proof
on a
“balance of probabilities” but that should not be
understood as requiring that the probabilities should do no
more than
favour one party in preference to the other. What is required is that
the probabilities in the case be such that, on
a preponderance, it is
probable that the particular state of affairs existed.’
[2]
[17]
The plaintiff in the present matter bears
the onus of discharging the burden of proof regarding the allegation
that the other driver
was negligent. Insofar as the defendant has
denied the allegation that the other driver was negligent and gone on
to plead that
the cause of the accident was the plaintiff’s
negligence, the onus lies with the defendant to prove this.
[18]
The subject of onus was addressed in this
division in the case of
National
Employers’ General Insurance Co Ltd v Jagers
[1984] 4 All SA 622
(E), where Eksteen AJP, for a full bench, held as
follows, at 624-5:
‘…
in
any civil case, as in any criminal case, the onus can ordinarily only
be discharged by adducing credible evidence to support
the case of
the party on whom the onus rests. In a civil case the onus is
obviously not as heavy as in a criminal case, but nevertheless
where
the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can only
succeed if he
satisfies the Court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable,
and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether
that evidence
is true or not the Court will weigh up and test the plaintiff’s
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities
of the case and, if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably
true. If, however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff’s
case any more
than they do the defendant’s, the plaintiff can
only succeed if the Court nevertheless believes him and is satisfied
that
his evidence is true and that the defendant’s version is
false.’
[19]
The evidence presented by the plaintiff was his own testimony about
the accident. He was a credible
witness, making consistent statements
and no obvious contradictions while under cross-examination. As to
reliability, no criticism
can be levelled against him, other than to
say that there would be an inherent bias in his evidence since he is
the plaintiff,
and the possibility cannot be excluded that an
entirely truthful and accurate recall of the events would have been
compromised
by the passage of time and the uncontested fact that he
lost consciousness immediately after the collision. The probabilities
of
the plaintiff’s version, however, require further comment.
[20]
It was not disputed that the accident happened at night in rainy
conditions, along a straight section
of the N2 freeway with a slight
up-hill gradient and a tarred surface in good condition. It was also
not disputed that the other
driver had been travelling slowly and
that there had been a gap of about nine metres between the
bakkie
and the plaintiff’s motor vehicle when the latter had commenced
to overtake. It was not disputed, furthermore, that the other
driver
had swerved in front of the plaintiff. What is puzzling is the force
of the collision, which had caused the plaintiff’s
motor
vehicle to roll, leading in turn to the severe injuries described.
This would not have been expected considering the conditions
at the
time, the distance between the motor vehicles, and their relative
speeds. It is, in the circumstances, improbable that the
other driver
had been travelling very slowly, and that the plaintiff had been
travelling between only 80 and 100 kilometres per
hour. It is likely
that their speeds would have been somewhat higher to have supplied
the kinetic energy necessary to have overturned
and rolled the
plaintiff’s motor vehicle so that it came to a rest on the far
side of the freeway. Such a finding has a bearing
on the question of
contributory negligence.
Contributory
negligence
[21]
At the outset of proceedings, counsel for the defendant indicated
that she would argue that there was
contributory negligence on the
part of the plaintiff. His claim should be reduced accordingly. She
accepted that the defendant
had not pleaded contributory negligence
but contended that the court was not prevented from applying section
1(1)(a) of the Act.
[22]
The relevant portion of the defendant’s plea reads as follows:
‘…
Defendant
in particular denies that the driver of the insured vehicle was
negligent either as alleged or at all.
…
In the
alternative… and only in the event of this Honourable Court
finding that the insured driver was negligent either as
alleged or at
all (which is denied), then the defendant pleads that such negligence
did not cause or contribute to the collision
which was caused by the
negligence of the plaintiff who was negligent in one or more of the
following respects…’
[23]
The defendant prayed that the plaintiff’s claim be dismissed
with costs. There was no prayer
for the apportionment of damages.
[24]
In
AA
Mutual Insurance Association Ltd v Nomeka
,
[3]
the erstwhile Appellate Division considered the case law in relation
to a defendant’s failure to plead apportionment. More
specifically, it dealt with the assertion that the defendant was
precluded from relying on the Act and that the court was barred
from
applying the provisions thereof if it held that the plaintiff was
partly at fault. Viljoen AJA stated that:
‘
The weight of the
decisions is, therefore, that provided the plaintiff’s fault is
put in issue, an apportionment need not
be specifically pleaded or
claimed. This is the correct view, in my opinion.
The Act has become part
of our law of delict. It has supplanted the former all-or-nothing
effect of the common law in this respect.
I agree… that upon a
determination of issues properly raised in the pleadings the Court
must give judgment in accordance
with the imperative direction of
section 1 of the Act.’
[4]
[25]
The
reasoning of the court has been followed in subsequent decisions and
the relevant principles appear to have become established
in our
common law.
[5]
[26]
In the present matter, the plaintiff has alleged that the sole and
exclusive cause of the accident
was the negligence of the other
driver. The defendant, in contrast, has pleaded that the negligence
of the plaintiff was the cause
of the accident. At the end of the
matter, the court is satisfied that the plaintiff has discharged, in
general, the burden of
proof. The defendant, however, has failed to
do so in relation to its plea.
[27]
The court,
nevertheless, is not persuaded that the defendant must be held 100%
liable for the damages incurred. It can well be said
that a
reasonable person in the position of the plaintiff would have
foreseen the reasonable possibility that his or her driving
at night
in rainy conditions and approaching another motor vehicle at speed
could have led to an accident and would have taken
reasonable steps
to guard against such an occurrence.
[6]
Here, the plaintiff could have reduced his speed or created a greater
gap between his motor vehicle and the
bakkie
,
but failed to do so. He must be found to have contributed to the
negligence that led to the damages in question.
Relief
and order
[28]
The court is of the view that the plaintiff has proved his case but
is not entitled to all the recoverable
damages. In the absence of
evidence from the defendant, it would not be unreasonable to hold
that the plaintiff contributed towards
the negligence involved and to
apply section 1(1) of the Act. It would, consequently, be just and
equitable to reduce the plaintiff’s
entitlement to damages by
10%.
[29]
The only remaining issue is that of costs. The plaintiff has been
substantially successful, but it
would seem fair and just to
implement the above approach and to adjust the plaintiff’s
award of costs by the same degree.
[30]
The following order is made:
(a) the
defendant is ordered to pay 90% of the plaintiff’s damages, as
may be proved or agreed; and
(b) the
defendant is directed to pay 90% of the plaintiff's costs in relation
to the determination of the merits.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For
the plaintiff: Adv
Teko, instructed by Akhona George
Attorneys, Makhanda.
For
the defendant: Ms Futshane,
instructed by The State Attorney, East London.
Date
of hearing: 16 May 2023.
Date
of delivery of judgment: 23 May
2023.
[1]
MP
Olivier, ‘Social Security: Core Elements’,
LAWSA
(LexisNexis, Vol 13(3), 2ed, July 2013), at paragraph 163.
[2]
4
th
Ed, 2016, ch32-p 628.
[3]
1976
(3) SA 45
(A).
[4]
At
55 D-E.
[5]
See,
for example,
Ndaba
v Purchase
1991 (3) SA 640
(N);
Gibson
v Berkowitz and another
1996 (4) SA 1029
(WLD); and
Harwood
v Road Accident Fund
2019 JDR 1768 (GP). See, too, the discussion in Klopper HB,
The
Law of Collisions in South Africa
(LexisNexis, 8ed, 2012), at 92 and 148; and Harms LTC,
Amler’s
Precedents of Pleadings
(LexisNexis, 9ed, 2018), at 274.
[6]
See
the classic test for negligence in
Kruger
v Coetzee
1966 (2) SA 428
(A), at 430. See, too, the general discussion of
negligence in Neethling J and Potgieter JM,
Law
of Delict
(LexisNexis, 7ed, 2015), at 137-9.