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[2022] ZALMPPHC 20
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Doona v Road Accident Fund (380/2015) [2022] ZALMPPHC 20 (22 April 2022)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 380/2015
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In
the matter between:
MMAMAGANA
RAYMOND DOONA
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff is claiming damages arising out of a motor vehicle
accident which occurred on 2
nd
June 2012. At the time of
the accident, the plaintiff was the driver of motor vehicle with
registration number [….] which
collided with motor vehicle
with registration number [….], driven by Modjadji Jones
Makgakga (insured driver).
[2]
The defendant had defended the plaintiff’s action and had also
filed its plea to the plaintiff’s
particulars of claim. In its
plea the defendant is denying liability. However, on the date of the
hearing of this matter, the defendant
was in default despite been
properly notified of the date. The matter proceeded in the absence of
the defendant. The plaintiff
applied for separation of the merits and
the quantum of the plaintiff’s damages. I accordingly ruled
that the matter will
proceed on the issue of merits of the claim
only.
[3]
The plaintiff took the witness stand and testified under oath. He
testified that on 2
nd
June 2012 he was the driver of motor
vehicle with registration number [….] which was involved in a
motor collision with
motor vehicle with registration number [….]
driven by the insured driver. The plaintiff testified that the
accident occurred
in the morning, and that at the time of the
accident there was fog and visibility was not clear, and he could
only see the vehicles
that were near him.
[4]
According to the plaintiff, he was driving on Nelson Mandela drive
road from the direction of Seshego
township towards Polokwane town.
The plaintiff was driving at a speed of below 80km per hour, but
above 60km per hour. The plaintiff
avers that Nelson Mandela drive is
a two-way lane road for vehicles going towards Polokwane. When he
approached the robot at Madiba
Park, the robot was green for him, and
he was driving in the extreme left lane. After the plaintiff had
passed the robot, a certain
truck passed him on the right hand side
on the middle lane also going to the same direction of Polokwane.
That truck after it had
passed the plaintiff, changed the middle lane
to the extreme left lane. The plaintiff was now following that truck
at a distance
of one and half vehicles.
[5]
As he was following that truck, another bakkie came from behind the
plaintiff, and started driving parallel
the plaintiff on the middle
lane. Suddenly, the plaintiff saw the brake lights of the truck that
was in front him, and in order
to avoid colliding with the truck that
was in front of him, the plaintiff swerved to the emergency yellow
lane and started driving
in the emergency lane. Immediately on
entering the emergency lane, he found a stationary bakkie without its
hazards lights on,
and collided with it. The plaintiff then realized
that he could not drive back to the main lanes as there were other
cars which
were already driving on those lanes, and he swerved to the
gravel where he lost his consciousness. According to the plaintiff
the
accident was caused by the truck which had applied brakes
abruptly whilst its brake lights were not that clear, and also the
stationary
bakkie that did not put its hazards lights on.
[6]
That concluded the plaintiff’s evidence and he closed his case.
Counsel for the plaintiff argued
that this was a case of sudden
emergency, and that the plaintiff was left with no other
alternatives, and that that plaintiff’s
claim on merits should
succeed.
[7]
It is trite that RAF is obliged to compensate for bodily injury
caused by or arising from the driving
of a motor vehicle. The casual
link that is required is essentially the same as the casual link that
is required for Aquilian liability.
There can be no question of
liability if it is not proved that the wrongdoer caused the damage of
the person suffering the harm.
Whether an act can be identified as a
cause, depends on a conclusion drawn from available facts and
relevant probabilities. The
important question is how one should
determine a causal nexus, namely whether one fact follows from
another.
(See
Grove v The Road Accident Fund
[1]
).
[8]
There are two prerequisites of liability upon RAF to compensate for
loss or damage suffered by a third
party as a result of bodily
injuries which were formulated in
Wells
& Another v Shield Insurance Co. LTD. & Another
[2]
,
and which are: (i) that the bodily injury was caused by or arose out
of the driving of the insured motor vehicle, and (ii) that
the bodily
injury was due to the negligence or other unlawful act of the driver
of the insured vehicle or the owner thereof or
his servant.
[9]
According to the plaintiff’s particulars of claim, on the date
of the collision, it was misty,
the plaintiff was driving at a slow
speed and following two vehicles, a van and a truck when the driver
of the van suddenly applied
brakes of his vehicle. Further that the
plaintiff then tried to move out of the road to avoid a collision,
unfortunately there
was an unlighted and reflectorless municipal
vehicle parked of the road and he collided with it and thereafter do
not know what
happened next because he was unconscious.
[10]
However, when the plaintiff testified in court, he stated that it was
the truck that applied its brakes and
the brake lights were not that
clear. The plaintiff further testified that he was driving behind the
truck, whilst the bakkie was
driving parallel him, hence he could not
swerve to the middle lane when the truck in front him suddenly
applied brakes. The plaintiff’s
testimony in court, materially
differs from the version as put in his particulars of claim as to how
the accident occurred. The
plaintiff’s particulars of claim are
the basis upon which his cause of action is based, and must therefore
stand and fall
by them.
[11]
The vehicle which the plaintiff had collided with was not parked on
any of the lanes normally used by moving
vehicles, but in the
emergency lane. No evidence was led as to in which way was the driver
who had parked that vehicle in the emergency
lane was negligent,
except to say that its hazards lights were not on. If they were on,
in what way would that have had prevented
the accident since the
plaintiff could not have swerved to the middle lane as there was a
bakkie that was travelling parallel to
his vehicle.
[12]
There is duty upon a driver who drives behind another vehicle to
follow it at a safe distance for any eventualis.
According to the
plaintiff he was following the truck at a distance of one and half
cars. As it was misty at the time of the collision,
the plaintiff was
reasonably expected to drive with extra caution as visibility was not
clear. No evidence was led as to what prevented
the plaintiff to
apply brakes at that following distance as the truck in front of him
was moving and not stationary. In my view,
at that distance, and at
the speed that he was travelling with, a reasonable person in his
position would first have applied brakes,
more especially that there
is no evidence that the road surface was slippery.
[13]
There was no sufficient evidence led regarding the negligent driving
of the insured driver. The plaintiff
has failed to prove negligence
on the part of the insured driver, and therefore liability of the
defendant has not been proved
or established at all.
[14]
In the result I make the following order:
14.1 The plaintiff’s
claim is dismissed.
14.2 No order as to costs
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the plaintiff
:
Mabotja LM
Instructed
by
:
Makwela Mabotja Attorneys
Date
heard
:
19
th
April 2022
Date
delivered
:22
nd
April 2022
[1]
[2011]
ZASCA 55
(31 March 2011) at para 7
[2]
1965
(2) SA 865
(C) at 867H