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2024
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[2024] ZAFSHC 110
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Kruger v Road Accident Fund (1175/2023) [2024] ZAFSHC 110 (16 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO/YES
CASE
NO.: 1175/2023
In
the matter between
:
GERT
CAREL JACOBUS KRUGER
Plaintiff
[1]
and
THE
ROAD ACCIDENT FUND
Defendant
[2]
Coram:
M Opperman J
Heard
:
28 February 2024 & 2 April 2024
Delivered:
16 April 2024. This judgment was
handed down in court and electronically by circulation to the
parties’ legal representatives
via
email and release to SAFLII on 16 April 2024. The
date and time of hand-down is deemed to be 15h00 on 16 April 2024
Summary:
Trial – merits
ORDER
The plaintiffs’
claim is dismissed on the merits with costs.
JUDGMENT
Opperman J
[1]
The merits of the claim is the focus here. An
order in terms of rule 33(4) on 16 October 2023 separated the merits
from all other
claims for trial.
The following order is
issued:
1.
A separation of issues is granted in accordance with rule 33(4) in
terms whereof the merits only
pertaining to the disputes contained in
paragraphs 1, 3, 4, 5 and 10 of the particulars of claim, read with
paragraphs 1, 3, 4,
5, 6, 7, 8, 9, 10 and 13 of the plea shall be
adjudicated during the forthcoming hearing, and all other issues to
stand over for
later adjudication.
2.
The matter is declared trial-ready and three days shall be allocated
for the hearing
[2]
The particulars of claim that brought the matter
to trial sketch the incident that the plaintiff relies upon for his
claim against
the Road Accident Fund on the merits as follows:
4.
On or about the 11th of
February 2021 at about 4:00 and on the R34-Road between Bloemfontein
and Hoopstad, Free State province (sic),
a motor vehicle accident
occurred when the Plaintiff, then and there the driver of motor
vehicle with registration number H[…],
in an attempt to avoid
an accident with another motor vehicle (hereinafter referred to as
“the insured vehicle"), the
identity of neither the driver
(hereinafter referred to as "the insured driver") nor the
owner of which is known, lost
control over his motor vehicle
subsequent to which the Plaintiff's vehicle veered of the road
surface, capsized and rolled.
[3]
The plaintiff claims that:
-3-
The collision occurred as
a result of the sole negligence of the insured driver who was
negligent in one or more or all of the following
respects:
5.1
[3]
He failed to take reasonable and/or timeous, if any,
precautions to alert oncoming traffic, more particularly the
Plaintiff, of the insured vehicle's presence on the road surface.
5.2 He
left the insured vehicle in a stationary position on the road surface
in such a position that it encroached
on the path of oncoming
traffic, more particularly the Plaintiff's oncoming vehicle;
5.3 He
failed to adhere to the rules of the road;
5.4 He
failed to avoid a collision which he could have avoided had he acted
reasonably.
[4]
The RAF disputes the above and maintains that:
6.
Should the Honourable
Court find that that (sic) a collision occurred as alleged by the
Plaintiff in Paragraph 4 and 5 of Plaintiff's
Particulars of Claim,
then the Defendant pleads as follows.
7.
The Defendant denies that
the
unknown
driver (further referred to as 'the insured
driver') the driver of the motor vehicle with registration numbers
and -letters
unknown
(further referred to as 'the insured
vehicle') was negligent as alleged or otherwise.
8.
IN THE ALTERNATIVE to
Paragraph 7 above, should the Honourable Court find that the insured
driver was negligent as alleged, or otherwise,
(which the Defendant
denies), then the Defendant denies that such negligence was the cause
of the collision and pleads that the
sole cause of the collision was
the negligence of the Plaintiff, who was negligent in one or more of
the following respects:
8.1 He
failed to keep a proper lookout.
8.2 He
failed to take cognizance of the prevailing traffic and/or prevailing
traffic conditions.
8.3 He
failed to keep his vehicle under proper control.
8.4 He
failed to apply the brakes of his vehicle timeously or at all.
8.5 He
drove at a speed which was excessive in the prevailing circumstances.
8.6 He
failed to avoid the collision, when by the exercise of reasonable
care and consideration, he could and
should have done so.
8.7
Or any other ground(s) which may be proven during
the course of the trial.
[4]
[5]
The evidence consisted of the
viva
voce
testimony of the plaintiff and
also:
1.
Exhibit A: The photo album consisting of four
photos of the scene that was taken after the incident. The photos
were taken after
the incident the same morning by a friend of the
plaintiff. The exhibit was handed in during the evidence of the
plaintiff and
not disputed by the RAF.
2.
Exhibit B: A hand drafted sketch plan by the
plaintiff and handed in through the evidence of the plaintiff.
3.
Vital is the merits bundle that served as evidence
for the plaintiff. It consists of the accident report to the police,
the affidavit
of the plaintiff dated the 17
th
of May 2022 and the photo album mentioned above.
4.
The defendant did not adduce any evidence and
closed their case summarily.
[6]
The evidence of the plaintiff.
1.
The plaintiff was not a good witness. He more
often than not struggled with the depiction of distances and the
incident itself,
he did not answer questions and deflected from
questions and he contradicted himself. The court in essence does not
have any version
of what happened on the 11
th
of February 2021 that gave rise to the claim. His
counsel, admirably so, endeavoured to rescue the case for the
plaintiff in her
heads of argument but she was also professional
enough to admit that:
78.
In relation to the above the Plaintiffs demeanour
was calm throughout, although very anx-ious (sic), he was
an elderly
gentleman whom (sic) was trying his best to recall the day of the
incident to the best of his ability. He did become
confused and
misunderstood some of the questions but in essence he tried to assist
the Court. He was clearly being honest and was
unbias (sic) in his
testimony. He did make several contradictions in his evidence but
only relating to where he first started driving
in lane 1 of the
sketch, if, when and how he applied his brakes and at what point he
first saw the Grader,
[5]
although this was later confirmed as 70 meters. The Plaintiff's
testimony differed slightly from his Affidavit (sic) filed in that
his affidavit indicates that he was travelling in lane 2 when he was
confronted with the Grader, however it also states that the
Grader
was stationary in lane 2 as well. The testimony indicated that he was
driving in lane 1when he saw the grader ahead of him
in lane 1. On
the probabilities and having regard to the pictorial evidence before
Court, it is submitted that it would in any
event be unlikely if not
impossible to somehow have parked the grader on any of the lanes of
the tar road given the size and close
proximity of the rock piles to
each other.
81.
With regards to reliability firstly it must be
taken into account that the Plaintiff is 60 years of age and
suffered
several very serious injuries, as alluded to above the reaction time
regarding the collision was also between 2/3 seconds.
The Plaintiff
thus had limited time to react and his version before Court was based
upon what he could recall took place in 2021.
His integrity was
impeccable and he was a very truthful witness. The quality of the
evidence may have been lacking since he made
some contradictions, but
one can forgive this having regard to a number of factors including
considering Plaintiff's age and the
fact that the accident took place
almost 3 years ago. Although the matter served before Court in
respect of the merits thereof
exclu-sively (sic), and although no
regard was subsequently given to the
sequelae
of Plaintiff's
injuries and how this might have affected his cognition,
comprehension, memory or speech etc, it was clearly noticeable
that
Plaintiff (sic) arms and hands were shaking uncrotrollable (sic)
prior to, through-out and even after the hearing for all
to see. From
the bench and to the extent that the Court would be inclined to
accept my evidence in this regard, I can confirm that
this was the
case from the moment I met the Plaintiff during preparatory
consultation the day before trial. The sketch of the scene
as
requested by the Defendant and admitted as evidence was also drawn
prior to trial by Plaintiff's attorney as per Plaintiff's
instructions since Plaintiff could simply not control his tremors,
not to mention holding a pen or drawing anything.
2.
The plaintiff started of by contradicting himself
in the affidavit dated the 17
th
of May 2022 when he stated in paragraph 4 that: “I
was earning a salary of R3000 per month from my fishing activities.”
At paragraph 13 he states that fishing is but a hobby. During his
testimony in court, he denied that he earned an income from fishing.
.
3.
Counsel for the defence is adamant that the
evidence of the plaintiff cannot be regarded as prove on a balance of
probabilities
of what happened that caused the accident. This is what
she had to say in her heads of argument:
5.
It is
respectfully submitted that Plaintiff was not a good witness. His
evidence was inconsistent, and he was unable to provide
the Court
with a single, coherent version of events. He contradicted
[6]
himself
in various respects. Such contradictions were not only in respect of
his own evidence, but also contradicted objective evidence.
Plaintiff
was evasive at times, refraining from answering questions posed more
than once, and providing answers which were not
relevant to the
questions posed to him. Where a question required a simple yes or no,
he provided longwinded answers which did
not relate to the question
at hand. Plaintiff adapted and tailored his evidence during
cross-examination. Plaintiff’s evidence
was riddled with
improbabilities, some of which could not be reconciled with objective
evidence before Court.
[7]
The testimony of the plaintiff was of such
poor quality that the court cannot place any reliance on it
whatsoever. The court
is at the mercy of inferences on the most
probable objective reality of the case. The court must keep an eye on
the test to be
applied for a finding of negligence. It was ruled in
Pick ’n Pay Retailers (Pty) Ltd v
Pillay
(900/2020)
[2021] ZASCA 125
(29
September 2021) to be the following:
[13]
In
Kruger
v Coetzee
[7]
Holmes JA formulated the test for negligence as follows:
‘
For
the purposes of liability
culpa
arises
if:
(a)
A
diligens
paterfamilias
in the position of the
defendant -
Kruger v Coetzee
at 430E-F –
(i) would foresee
the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b) the defendant failed
to take such steps.
[14]
In
Sea
Harvest Corporation
[8]
Scott JA stated that dividing the issue of negligence into various
stages, however useful, was no more than an aid or guideline
in
resolving the issue: in the final analysis the true criterion for
determining negligence was whether in the particular circumstances
the conduct complained of fell short of the standard of the
reasonable person. There is no universally applicable formula which
would prove to be appropriate in every case.
[15]
In the light of recent authorities, J R Midgley
and J C van der Walt in Lawsa
[9]
have made the following observation: ‘When assessing
negligence, the focus appears to have shifted from the foreseeability
and preventability formulation of the test to the actual standard:
conduct associated with a reasonable person. The Kruger v Coetzee
test, or any modification thereof, has been relegated to a formula or
guide that does not require strict adherence. It is merely
a method
for determining the reasonable person standard, which is why courts
are free to assume foreseeability and focus on whether
the defendant
took the appropriate steps that were expected of him or her.’
[8]
These are the issues of foreseeability and focus
that direct that the plaintiff did not take “the appropriate
steps that were
expected of him or her.”:
1.
There were extensive road works on the R34 road
and it was clearly visible. No amount of warning signs would have
made a difference.
2.
The plaintiff was already driving inside the
construction zone for a substantial distance when the incident
occurred. He had to
realise the situation.
3.
The sun had not risen. The vehicle driven by the
plaintiff’s lights were switched on; this indicates a more
perilous situation
that had to be realised by the plaintiff.
4.
The vehicle struck the rocks that were on the
surface of the road with such force that some of the tyres deflated
and the vehicle
capsized and rolled. This is an indication of
excessive speed.
5.
The photos show that the piles of rocks on one
lane of the road are colossal, a few meters apart and must have been
clearly visible
in the lights of the vehicle. The rocks lying in the
road the same.
6.
The
condition of the road could clearly not have been favourable to
either a speed of 100 kilometres per hour or a slacked downed
speed
of 80 kilometres per hour
[10]
at a distance of 70 meters from the obstacle. The plaintiff indicated
that the speed and circumstances were such that if he braked,
he
would have slid into the bulldozer; he elected to swerve but that
also proved to be catastrophic at the speed he was driving
and the
condition of the road that he was well aware of. He realised that the
manner in which he drove might cause a danger if
confronted by a
necessity to brake.
7.
The plaintiff admitted that there is also the
danger of wild animals on the road and that he realised that sand
blew onto the sides
of the road.
8.
The grader or bulldozer is mammoth and bright
yellow. It is just not the truth that the plaintiff could only
observe the vehicle
when he was 70 meters away from it. It was a
straight stretch of road and there were not any obstacles that could
have obstructed
his view. He did not keep a proper lookout and drove
too fast.
9.
There was, having regard to the photos and the
viva voce
evidence
of the plaintiff, enough space to navigate around the bulldozer to
the left.
10.
The simple truth is that the plaintiff did not
drive with the care that is expected; his driving was severely
negligent.
11.
The evidence does not indicate any negligence on
the part of anybody else than the plaintiff. On the evidence of the
plaintiff and
the probabilities there was not anybody in the
bulldozer and there was not any driver identified. As counsel for the
defendant
correctly pointed out; “…the Grader had no
driver inside, Plaintiff’s Particulars of Claim does not
include
any alternative plea of negligence by the owner thereof.
The
only allegations of negligence are against the unknown driver.
”
12.
There is not any case on the objective facts for
sudden emergency and it was not pleaded.
[9]
There is not a version before the court from the plaintiff on which
any finding on a balance of
probabilities can be made in his favour.
Some calculations and submissions in the heads of argument for the
plaintiff is tantamount
to evidence from the bar because it was not
adduced by experts or other evidence but mere calculations and
speculation by counsel;
the correctness whereof could also not be
tested in trial.
[11]
The claim
of the plaintiff on the merits fails and must be dismissed.
[10]
ORDER
The plaintiffs’
claim is dismissed on the merits with costs.
M OPPERMAN J
Appearances
For
plaintiff:
D.C.
Hattingh-Boonzaaier
Instructed
by:
Brand
& Lambrechts Attorneys
c/o
Horn & Van Rensburg Attorneys
Bloemfontein
For
defendant:
J.
Gouws
State
Attorney Bloemfontein
c/o
Road Accident Fund
Bloemfontein
[1]
“
Plaintiff”.
[2]
“
RAF/defendant”.
[3]
Numbering
as per the particulars of claim.
[4]
The
alternative pleas of both parties are for findings of contributory
negligence.
[5]
Also
referred to as a “bulldozer”.
[6]
See
paragraphs 3 to 9 of the heads of argument for the RAF that
correctly pointed out the flaws in the evidence of the plaintiff.
[7]
1966
(2) SA 428
(A).
[8]
Sea
Harvest Corporation (Pty) Ltd
and
Another v Duncan Dock Cold Storage (Pty) Ltd and Another
2000
(1)
SA
827
(SCA);
[2000] 1 All SA 128
(A) paragraph 21.
[9]
LAWSA
3rd edition at 284 paragraph 155.
[10]
Paragraph
25 of the heads of argument for the plaintiff.
[11]
For
example, see
paragraphs
59 to 60 of the heads of argument of the plaintiff.