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2023
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[2023] ZAECMKHC 113
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Hayward v South African National Roads Agency Limited (1831/2022) [2023] ZAECMKHC 113 (17 October 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE NUMBER.:
1831/2022
In
the matter between:
GAVIN
HAYWARD
Plaintiff
And
THE
SOUTH AFRICAN NATIONAL ROADS
AGENCY
LIMITED
Defendant
JUDGMENT
Beshe
J
[1]
This is a claim for damages for injuries
that plaintiff suffered in a motor vehicle collision that
took place
on 7 September 2019. The collision occurred on the R75 road between
Jansenville and Wolwefontein. Plaintiff alleges
that the defendant is
liable for the said damages.
[2]
The defendant was served with the summons
initiating proceedings in this matter on the 27 June 2022.
However,
no notice of intention to defend was delivered, hence the action
being heard on an undefended basis.
[3]
At the commencement of these proceedings,
plaintiff’s counsel moved an application for the merits
of the
claim to be determined separately before the determination of the
quantum of plaintiff’s damages, depending on the
outcome of the
adjudication of the merits. The application was mainly motivated by
the need to contain costs. This, due to inter
alia the fact that some
of the expert reports will require to be updated or supplemented.
This will require a significant amount
of funding, which the
plaintiff is not in a position to provide due to financial
constraints. Being satisfied that a case for separation
of issues
have been made, I issued an order in the following terms:
1. That the merits of
plaintiff’s claim be determined separately prior to the
determination of the issue of the quantum of
his damages.
2. That the determination
of the quantum of damages be stayed pending the outcome of the
adjudication of the merits of plaintiff’s
claim.
[4]
The defendant as the appellation suggests,
is the South African National Roads Agency, a company established
in
terms of the South African Road Agency Limited and National Roads Act
7 of 1988. It is sued on the basis, so it is pleaded by
the
plaintiff, that defendant as well as its employees acting in the
course and within the scope of their employment, had a legal
duty to
manage and control the national roads of the Republic of South Africa
and to take charge of the development, maintenance
and rehabilitation
thereof. A duty that includes a duty to take reasonable care in
monitoring, inspecting, maintaining and improving
the roads including
the R75 road.
[5]
Plaintiff further pleaded that the said
legal duty was breached by the defendant: by failing, inter
alia, to
ensure that the barricade netting that was placed where the guardrail
was damaged, was fitted properly/safely; to ensure
that the barricade
netting was clearly visible to road users at all times; by failing to
recognise that the exposed, unprotected
ends of the damages guard
rail constituted a hazard to the road users; that the exposed
unprotected ends of the guard rail were
rendered safe to road users;
failing to erect any warning signs alternatively, adequate or
sufficient warning signs where the guard
rail was damaged to warn
road users of dangers attendant thereto. Further that as a result of
the said breach, the plaintiff sustained
multiple injuries including
to his nose and to his lower legs.
[6]
Plaintiff gave
viva voce
evidence on
the 23 August 2023. A number of exhibits were also handed in to wit:
a copy of plaintiff’s identity card, a copy
of his driver’s
licence, a set of photographs depicting the scene of the accident
before and after the collision as well
as his affidavit in support of
his application for default judgment.
[7]
Plaintiff’s evidence was, briefly
stated, to the following effect:
On Saturday the 7
September 2019 he attended a split braai in the Jansenville area
where he had been employed by a construction
company as a safety
officer. He left the said function at approximately 22h35 and drove
to a farm outside Wolwefontein where he
was staying. He was driving a
Toyota Hilux single cab. He was driving on the R75, a tarred road
comprising of single lanes on both
directions. The weather was good.
He was driving within the requisite speed limit which is 120
kilometres per hour. Approximately
5 kilometres from Jansenville in
the direction of Wolwefontein and on the Delport River bridge,
something blew in front of the
vehicle he was driving. He reacted by
swerving right and back to the road again. In the process he lost
control of the motor vehicle
and collided with a damaged guard rail.
It turned out that it was a barricade netting sheet that had flown in
front of his vehicle.
All this, according to the plaintiff, happened
quickly in ‘a split second’. He reacted to the object
that flew in front
of his vehicle out of shock as he did not expect
it, thinking it could be a wild animal. A piece of the guard rail
pierced his
vehicle from below the steering wheel and penetrated the
front of the motor vehicle. He was attended to by paramedics at the
scene,
after which he was taken to hospital. As a result of injuries
sustained during the accident plaintiff lost both his legs.
[8]
During questioning by court, it transpired
that some of the photographs that were exhibited were taken
by the
plaintiff a day preceding his accident. He noticed that an accident
involving a truck had occurred in the course of which
the guard rail
was damaged and displaced. The damage to the bridge including the
guard rail is quite extensive as can be gleaned
from the photographs.
That collision seemingly involved a Checkers articulated truck which
can be seen resting on its side next
to the bridge. The images depict
a missing guard rail and where there was one, it had exposed ends. He
explained that he took these
photographs because he is a safety
officer. He testified that it did not occur to him as he was driving
in that area on the following
day, being the evening of the 7
September 2019, that he had observed the damage to the bridge,
including the guard rail the previous
day.
[9]
Even though in the photographs taken after
the accident involving his vehicle there appears to be chevrons,
he
testified that there were none at the time of his accident. There
were no other warning signs as well.
[10]
It is trite that the standard of proof in civil cases
requires proof on a balance of probabilities. 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 prevailed.
[1]
The onus to prove one’s case on a balance of probabilities can
ordinarily be discharged by adducing credible evidence to
support the
case of the party on whom the onus rests.
[2]
The evidence given by the plaintiff in support of his claim, read
with his affidavit in support of his application for default
judgment
against the defendant cannot be faulted. His evidence was consistent
without any obvious contradictions. He struck me
as a credible
witness. In my view, he has discharged the onus resting on him to
show, on a balance of probabilities that the accident
was as a result
a breach of a legal duty on the part of the defendant. That legal
duty being to take reasonable steps to inspect
and maintain the road
and to ensure that it was reasonably safe to use. Due to the
defendant’s failure in this regard, the
accident in question
was caused by a loose barricade netting which was placed against a
damaged guard rail, suddenly blowing across
the front of plaintiff’s
motor vehicle causing him to lose control thereof.
[11]
Questions were directed at the plaintiff by the court
about whether he did in fact keep a proper look-out being
aware of
the damage to the bridge, having taken photographs thereof on the day
preceding the accident involving his motor vehicle.
This was in view
of the fact that the plaintiff did not suggest that he lowered his
speed. Stating that he was driving within the
speed limit being 120
kilometres per hour. In view also of the fact that it was around
22h00. This prompted plaintiff’s counsel,
in his written
submissions, to address the issue of contributory negligence. It
being submitted that the matter should be adjudicated
on the basis
that plaintiff’s particulars of claim have not been disputed by
the defendant. The issue of apportionment of
damages/contributory
negligence on the part of the plaintiff has not been placed in issue
and such, so it was argued, does not
warrant the court’s
consideration. Plaintiff’s particulars of claim do not assert
that the collision/accident was due
solely
as a result of
defendant’s omission to guard against harm coming to users of
R75 or that portion of R75. Neither did plaintiff
testify to that
effect in his viva voce evidence. However, in his affidavit in
support of the default judgment application, plaintiff
makes the
averment at paragraph 5.20, that the defendant’s failure to
properly secure the barricade netting was
the only
and
direct cause
of him losing control of the vehicle, thus causing
the collision. [my emphasis] There being no evidence to gainsay this,
it may
be accepted that this allegation is not disputed.
[12]
I do not have any reason not to accept plaintiff’s
evidence that even though he was keeping a proper
look-out, he did
not see any signs, notices, warnings or delineators relating to the
damaged guard rail or bridge, in the absence
of any evidence to
gainsay this.
[13]
In the circumstances, the following order will issue:
1. The defendant is
liable to pay 100% of plaintiff’s proven or agreed damages
resulting from the accident that occurred on
the 7 September 2019 at
Delport River bridge, Jansenville.
2. The defendant shall
pay the plaintiff’s taxed or agreed party and party costs in
respect of suit, which costs shall include,
where applicable, the
reasonable fees for travelling, accommodation, preparation and
reservation of plaintiff’s attorney
and counsel.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Plaintiff
Adv:
H J VAN DER MERWE
Instructed
by
SYMINGTON
DE KOK ATTORNEYS
C/o
NOLTE SMIT ATTORNEYS
51A
Hill Street
MAKHANDA
Ref:
SYM1/0006/183122
Tel.:
046 – 622 7209
Date
Heard
23
August 2023
Date
Reserved
4
September 2023
Date
Delivered
17
October 2023
[1]
Principles
of Evidence: P J Schwikkard et S E Van Der Merwe 4
th
edition 627.
[2]
See
National Employer’s General Insurance v Jagers
1984 (4) SA
437.