Korb v Road Accident Fund (2725/2019) [2022] ZAFSHC 271 (10 October 2022)

80 Reportability

Personal Injury Law - Road Accident Fund

Brief Summary

Negligence — Motor vehicle collision — Plaintiff seeking damages from the Road Accident Fund for injuries sustained in a collision with a vehicle driven by the insured driver — Defendant admitting collision but denying negligence — Plaintiff alleging sudden braking by the insured driver caused the collision — Court required to determine merits of the case — Evidence presented by both parties regarding negligence and contributory negligence — Court finding that the insured driver's sudden braking was the proximate cause of the collision, and that the plaintiff was unable to avoid the accident due to the unexpected nature of the insured driver's actions.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an application for absolution from the instance brought by the defendant, the Road Accident Fund, at the close of the plaintiff’s case. The plaintiff, Mr Frank August Korb, sued the Road Accident Fund for damages arising from injuries sustained in a motor vehicle collision involving the plaintiff’s motorcycle and an insured motor vehicle (a Kia) driven by Ms Belinda Ngubane.

Procedurally, summons was issued for delictual damages. At a pre-trial conference in February 2022, the parties agreed to a separation of issues between merits and quantum, with the court required to determine only liability (merits) at this stage. After the plaintiff led evidence (including two witnesses) and closed his case, the defendant applied for absolution from the instance. The plaintiff opposed that application.

The general subject-matter of the dispute was whether, on the evidence led by the plaintiff, there was a basis upon which the court could or might find the insured driver negligent, and whether the plaintiff had therefore established a prima facie case sufficient to require the defendant to present its case on the merits.

2. Material Facts

It was common cause that a collision occurred on 26 September 2016 at an intersection on the R730 in the Free State, involving a Kia motor vehicle driven by the insured driver and a motorcycle driven by the plaintiff. The defendant admitted the occurrence of the collision but denied negligence on the part of the insured driver and pleaded, in the alternative, contributory negligence by the plaintiff.

On the plaintiff’s version, the relevant circumstances were that the morning was sunny, visibility was good, and the road surface and markings were clear. The plaintiff was travelling southbound on a dual carriageway (two lanes in one direction) behind the Kia for a distance said to be approximately 100–200 metres. The speed limit was 100 km/h, but due to traffic congestion ahead, the plaintiff reduced speed to approximately 50–60 km/h, and the Kia in front also reduced speed to a similar pace.

The plaintiff testified that he observed a congestion of approximately five to six vehicles ahead of the Kia in the left lane, before the intersection. He decided to indicate and move to the right lane to pass the Kia, partly because the right lane traffic was flowing better and partly because the lanes converged after the intersection. He stated that he was approximately 10–12 metres behind the Kia when preparing for the lane change, and that he waited for a vehicle in the right lane to pass from behind before commencing the manoeuvre.

The plaintiff’s evidence was that at the moment he began moving to the right to pass, the insured driver suddenly and unexpectedly applied harsh brakes, apparently almost bringing the Kia to a standstill, without warning and without any visible obstruction ahead. He attempted to brake but was unable to stop in time, colliding with the rear right side of the Kia. He maintained that evasive action was not realistically available given the suddenness of the braking.

During cross-examination, the plaintiff accepted that a “safe following distance” could be expressed as two to three seconds, and he estimated that he was approximately 15–20 metres behind the Kia prior to the collision, though he was not able to give precise distances regarding vehicles ahead of the Kia.

A further witness, Mr J J van den Berg, testified that he arrived shortly after the collision and took photographs (included in Exhibit “A”). He observed what he described as “fresh” brake marks which he attributed to the Kia, and he also identified skid marks which he attributed to the motorcycle. The court treated this evidence as part of the plaintiff’s case on the accident dynamics, while noting that he did not witness the collision itself.

The plaintiff also called Mr D Strydom, who furnished opinion evidence based on documentation (including police materials, sketches, photographs, and a scene visit). His opinion supported the plaintiff’s account that the collision occurred when the Kia braked suddenly while the plaintiff attempted to pass, and that the available space diminished too quickly for the plaintiff to avoid impact.

The defendant’s position for purposes of the absolution application was that there was no evidence of negligence by the insured driver, that aspects of the physical-mark evidence were inconsistent with the plaintiff’s account, that the plaintiff did not maintain a safe following distance given the congestion, and that the evidence of Mr van den Berg and Mr Strydom should be afforded little or no weight (including on the basis that the latter lacked qualifications or objectivity). The court recorded that no contradictory version of how the collision occurred was put to the plaintiff’s witnesses during cross-examination.

3. Legal Issues

The central question was whether, at the close of the plaintiff’s case, the plaintiff had presented evidence upon which a court could or might find that the insured driver was negligent and that such negligence caused or contributed to the collision, such that absolution from the instance should be refused.

This was primarily an issue concerning the application of law to fact within the procedural context of an absolution application. The court was not required at this stage to make a final factual determination on negligence or causation, but rather to assess whether the plaintiff had established a prima facie case sufficient to require the defendant to answer.

A subsidiary evaluative issue concerned the extent to which the court, at the absolution stage, could engage with criticisms directed at the reliability, weight, or expertise of the plaintiff’s witnesses and whether such criticisms displaced the existence of a prima facie case.

4. Court’s Reasoning

The court approached the matter by identifying the applicable principles governing absolution from the instance at the close of a plaintiff’s case. It relied on the formulation in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G–H, namely that the test is not whether the plaintiff’s evidence proves what is ultimately required for final judgment, but whether there is evidence on which a court, applying its mind reasonably, could or might find for the plaintiff.

In addressing the negligence enquiry as it arose on the plaintiff’s case, the court recorded two related propositions reflected in the judgment. First, it noted the general position that where a driver collides with the rear of another vehicle, the following driver is prima facie negligent unless an explanation is provided to show absence of negligence. Second, the court referred to duties imposed by the road traffic regulations, particularly the obligation to give a signal when intending to stop or suddenly reduce speed, and the prohibition on stopping on a roadway where doing so would constitute a danger or obstruction, save in specified circumstances. These regulatory provisions were treated as relevant to whether the insured driver’s alleged sudden braking without warning could constitute negligence.

On the evidence, the court considered that the plaintiff’s account was the only direct evidence describing how the collision occurred, and it attached significance to the fact that the defendant did not, during cross-examination, put any alternative version contradicting the plaintiff’s description of sudden braking and the manner of the collision. The court reasoned that, in those circumstances, the plaintiff did not have the opportunity to respond to or explain contradictions against any alternative factual account from the insured driver.

The court further emphasised the procedural limitation inherent in an absolution application, referring to Atlantic Continental Assurance Co of SA v Vermaak 1973 (2) SA 525 (E) at 527 for the proposition that the court should not evaluate the evidence at this stage in a manner that amounts to a final assessment of credibility or probabilities. In applying that approach, the court accepted that the plaintiff’s evidence, taken at face value for purposes of absolution, described conduct by the insured driver (sudden harsh braking without warning in the prevailing circumstances) that could constitute negligence and could be causally linked to the rear-end collision.

While the defendant advanced arguments attacking the probative value of the photographs and the expertise or objectivity of Mr Strydom, the court’s reasoning focused on whether, despite those criticisms, the plaintiff’s case still contained evidence capable of sustaining a finding in the plaintiff’s favour. The court concluded that the plaintiff had indeed made out a prima facie case and that the evidence “holds the possibility” of a finding for the plaintiff on the merits, which meant the defendant was required to answer.

5. Outcome and Relief

The court dismissed the defendant’s application for absolution from the instance.

The application was dismissed with costs.

Cases Cited

Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G–H.

Atlantic Continental Assurance Co of SA v Vermaak 1973 (2) SA 525 (E) at 527.

Legislation Cited

National Road Traffic Act 93 of 1996 (as referenced in the judgment, in relation to regulations promulgated thereunder).

Apportionment of Damages Act 34 of 1956.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, applying the established test for absolution from the instance, the plaintiff’s evidence at the close of his case was sufficient to establish a prima facie case on negligence and causation such that a court could or might find for the plaintiff. In particular, the plaintiff led direct evidence that the insured driver suddenly and unexpectedly braked without warning, which (if accepted) could support a finding of negligence in light of the duties imposed on drivers regarding signalling and stopping or reducing speed.

The court further held that, at the absolution stage, it was not appropriate to finally evaluate the evidence, and it noted that no alternative version contradicting the plaintiff’s account was put to the plaintiff’s witnesses during cross-examination. The application for absolution from the instance was therefore dismissed with costs.

LEGAL PRINCIPLES

The test for absolution from the instance at the close of a plaintiff’s case is whether there is evidence upon which a court, reasonably applying its mind, could or might find for the plaintiff, rather than whether the plaintiff has already proved the case to the standard required for final judgment.

In considering absolution, the court should be cautious not to engage in a final evaluation of the evidence at that stage; the enquiry is directed at the existence of a prima facie case, not a definitive determination of credibility, probabilities, or ultimate liability.

Road traffic regulatory duties concerning signalling an intention to stop or reduce speed and restrictions on stopping on a roadway in a manner constituting danger or obstruction are relevant considerations when assessing whether sudden stopping or harsh braking without warning can constitute negligence in collision matters.

The judgment also reflects the principle that where a party does not put a contradictory version to a witness in cross-examination on material aspects, the witness’s version stands as the uncontradicted account for purposes of evaluating whether a prima facie case has been made out at the absolution stage.