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[2021] ZAGPPHC 102
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Welman v Road Accident Fund (A96/2019) [2021] ZAGPPHC 102 (16 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
DATE:
12-02- 2021
Case Number:
A96/2019
In
the matter between:
P.J
WELMAN
APPELLANT
and
ROAD
ACCIDENT FUND
RESPONDENT
JUDGMENT
KUBUSHI
J (MOKOSE J AND VORSTER AJ CONCURRING)
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
[1]
This unopposed appeal is against the order and judgment of Khumalo J.
The appeal emanates
from a claim against the Road Accident Fund (the
respondent herein) for personal injuries sustained by the appellant
in a motor
vehicle collision.
[2]
The appellant had sustained serious injuries in the collision and had
as a result claimed
damages from the respondent for loss of earnings/
earning capacity, general damages and loss for past medical expenses.
[3]
Before the commencement of the trial the respondent had conceded
negligence on the part
of the insured driver. By agreement between
the parties the only issue to be determined by the trial court was
whether the appellant
had contributed to the negligence or not.
[4]
On the basis of the evidence tendered in relation to liability, the
trial court found the
appellant to have negligently contributed to
the collision in that he failed to avoid the head-on collision whilst
the driver of
the motor vehicle travelling in front of him was able
to do so. The trial court apportioned negligence at 70/30 in favour
of the
appellant.
[5]
As regards
quantum
, the trial court was informed, before the
trial commenced, that the parties had entered into a settlement
agreement in which they
had agreed that the respondent will pay the
appellant an amount of R5
290 025 for loss of earnings/earning capacity, the amount of R1 500
000 for general damages and the amount of R89 507, 28 for past
hospital, medical and related expenses. The trial court, however, in
its discretion reduced the amount of general damages from
the agreed
amount of R1 500 000 to R1 000 000 and the appellant was awarded an
amount of R1 000 000 for general damages.
[6]
Aggrieved by the judgment and order of the trial court the appellant
approached this court
on the grounds that the trial court misdirected
itself in finding that: -
6.1.
the appellant had contributed to the
negligence and that an apportionment of 70/30 should apply; and
6.2.
in awarding R1 000 000 for general
damages instead of R1
500 000.
[7]
The appeal is before us, leave to appeal having been granted on
Petition to the Supreme
Court of Appeal in so far as it relates to
the trial court’s finding that the appellant had contributed to
the negligence
and that an apportionment of 70/30 should apply; and
in respect of the award made for the general damages in the amount of
R1 000 000.
[8]
Only two witnesses testified at the trial, being the person who
witnessed the collision
and was driving the motor vehicle that was
travelling in front of the appellant’s motor vehicle when the
collision occurred
(“Mr Welman”); and the appellant, who
had no recollection of the collision. The respondent did not tender
any evidence
having opted not to call the insured driver to give his
version of the collision. As such, the only version of the collision
that
was before the trial court was that of the appellant as tendered
by Mr Welman.
[9]
The factual background is gleaned from the evidence tendered in court
by Mr Welman. According
to Mr Welman, a head-on collision occurred on
the appellant’s side of the road in the early evening of 15
March 2013. The
lights of all motor vehicles involved were switched
on and on dim. The speed limit along that road was 80 kilometres
per
hour. The road had one lane in each direction with gravel shoulders
on either side and there was a solid line in the middle of
the road.
On the left-hand side of the road was an open field and on the
right-hand side was a restaurant.
[10]
Mr Welman, the biological uncle of the appellant – hence the
same surname, was driving a Nissan
Hard body LDV (“the bakkie”)
and the appellant was travelling directly behind him in a Citi Golf.
The appellant is
said to have maintained a normal following distance.
Mr Welman and the appellant were both travelling at the normal speed
with
their headlights switched on dim.
[11]
Mr Welman noticed a motor vehicle (“the insured motor vehicle”)
coming from the opposite
side of the road with its lights also on
dim. The insured motor vehicle suddenly and unexpectedly moved over
from its correct lane
of travel into the lane of travel of Mr Welman
hurtling towards him. To avoid colliding with the insured motor
vehicle, Mr Welman
swerved to the left-hand side of the road, out of
the way of the oncoming motor vehicle onto the gravel. He had
to take sudden
emergency evasive action by swerving out of his lane
of travel onto the gravel shoulder of the road to avoid colliding
with the
insured motor vehicle.
[12]
The insured motor vehicle that had nearly collided with him passed
him on his right-hand side. When
he looked into the rear view mirror
of his motor vehicle, Mr Welman saw the collision between the insured
motor vehicle that had
just passed him and the appellant’s
motor vehicle.
[13]
At the time of the collision the appellant’s motor vehicle was
on its correct side of the road.
According to Mr Welman, the insured
motor vehicle was already too close to his motor vehicle when he saw
it coming over to his
side of the road and that he only had time to
swerve away and narrowly avoid the collision. There was no time for
him to warn other
motorists in any way such as by putting on his
hazard lights. Mr Welman testified that the appellant could
also not have
had time to swerve to the left to avoid the collision
because most probably his bakkie which had a canopy might have
obscured the
appellant’s view. He testified further that he
would not have been able to avoid the collision with the insured
driver if
he had been in the appellant’s position.
[14]
The appellant’s evidence was that he did not remember anything
about the collision. Under cross
examination he testified that he
normally drove at a safe following distance behind other motor
vehicles that would enable him
to stop if the motor vehicle in front
of him stopped suddenly and that would enable him to take evasive
action if he saw a motor
vehicle from the opposite direction coming
over to his side of the road. But in this case he did not see the
insured motor vehicle
when it came to his side of the road and
collided with him.
[15]
Before us, the appellant is arguing that the trial court misdirected
itself on the facts, the application
of the law and on the exercise
of its discretion.
[16]
For the reasons that follow hereunder I intend to show that, on the
merits, the appellant is correct
that the trial court misdirected
itself on its factual findings and the application of the law
thereon, and that it misdirected
itself when exercising its
discretion in regard to the general damages.
[17]
As argued, correctly so, by the appellant the trial court misdirected
itself on the following factual
findings:
17.1.
that the appellant’s version was
that if there was space he would have been able to see a vehicle
crossing his lane;
17.2.
that the appellant would have seen the
insured driver leaving its lane of travel if he had been keeping a
vehicle's following distances
on a two lane road if he was paying
enough attention to the road;
17.3.
that the appellant testified that he did
not see anything when the insured motor vehicle was approaching
during the time of impact.
[18]
In reaching the decision it did on the merits, the trial court relied
on the following distance the
appellant maintained behind Mr Welman’s
motor vehicle at the time of the collision. However, there is no
evidence on record
that it was the appellant’s version that he
would have been able to see the insured motor vehicle crossing its
lane of travel
into the lane of his travel if there was space between
his motor vehicle and that of Mr Welman. In his testimony the
appellant’s
version is that he could not remember anything that
happened after they left the BP garage which they had visited prior
to the
collision. His speculation about distances during cross
examination, remains just speculation. The speculation is of no value
and
as such, no weight ought to be attached to it. The only
evidence of value that the trial court ought to have considered is
that of Mr Welman whose testimony is that the appellant maintained a
normal following distance.
[19]
There is also no evidence on record to support the finding that the
appellant would have seen the insured
driver leaving his lane of
travel if he [the appellant] had kept a proper following distance and
if he was paying enough attention
or whether there would have been
enough time for the appellant to take evasive action to avoid a
head-on collision. The mere fact
that Mr Welman was able to take
evasive action and avoid the collision does not necessarily justify a
finding on the probabilities
that the appellant should also have been
able to do so.
[20]
Of importance, that the trial court should have taken into account,
is that the evidence that was before
it was that the appellant was
not in a position to testify whether he saw anything, whether he took
evasive action or exactly what
happened immediately before the
collision occurred.
[21]
I am in agreement with the appellant’s argument that the trial
court erred in its application
of the law relating to the keeping of
proper following distances. The argument by the appellant that the
mere fact that a motorist
is unable to avoid a head-on collision does
not prove that such motorist either did not keep a proper lookout or
did not keep a
safe following distance behind the motor vehicle in
front of it, has merit.
[22]
The general principle in law is that it is expected of a motorist to
react as soon as it becomes clear
that another motorist is acting
unlawfully and in contravention of the rules of the road.
[23]
In this instance, there is no evidence to support a contention that
the appellant failed to act when
a reasonable person would in his
position or should have acted and that he would have been able
to avoid the collision if
he had done so. There is no evidence, on
record, to suggest that a reasonable man in the appellant’s
position would have
been on the lookout and would have foreseen the
possibility of the insured motor vehicle coming from the opposite
direction, suddenly
and unexpectedly moving over to its incorrect
side of the road at a dangerous and inopportune time.
[24]
The general principle in law is that a motorist can expect of other
motorists to be responsible, to
abide by the rules of the road and it
is not expected of other motorists to guard against the possible
unlawful and irrational
behaviour of other motorists.
[1]
In its finding the trial court sought to place the responsibility on
the appellant to guard against the possible unlawful and irrational
manner in which the insured driver conducted himself on the road,
which is not the correct position in law.
[25]
The argument by the appellant that a motorist's following distance is
normally judged with reference
to reaction time required to react to
the movements of the vehicle being followed, has merit. Hence,
following distances
are naturally longer when vehicles travel fast
and judged with reference to the time period lapsing between the
leading motor vehicle
passing a fixed point and the following motor
vehicle passing the same fixed point.
[2]
[26]
No such evidence was led and, as such, the trial court erred in
concluding that the fact that the appellant
did not even realise what
was going on indicates that he was travelling very close to Mr
Welman. The evidence on record is
that the speed limit on the
road was 80 kilometres
per
hour and that both motor vehicles
of Mr Welman and that of the appellant were travelling at the normal
speed. The normal speed
would in the circumstances be not more than
80 kilometres
per
hour. That indicates that the appellant was
not speeding.
[27]
The immediate impact does not justify the trial court's conclusion
that the appellant did not keep
a proper following distance or a
proper look out for other motor vehicles travelling along that road
and that his actions were,
as such, not in line with the conduct of a
reasonable man. As submitted by the appellant, under these
circumstances, he did not
carry the burden of eliminating any risk.
[28]
Where one motor vehicle suddenly deviated from its correct path of
travel, moved across or encroached
onto the wrong side where it
collided with another motor vehicle, the driver of the latter, the
court has held, has to prove facts
from which an inference of
negligence against the driver of the former motor vehicle may be
inferentially deduced in the absence
of an explanation.
[3]
[29]
On the evidence tendered at the trial, bar any explanation from the
insured driver,
[4]
a reasonable
inference to have been made by the trial court would have been that
the appellant did not see the insured motor vehicle
when it came in
his line of travel because the canopy of Mr Welman's bakkie obscured
his view. The facts proven by the appellant,
through Mr Welman’s
evidence, that at the time of the collision, the appellant was
travelling on the correct side of the
road, at the normal speed and
following Mr Welman at the correct following distance supports such
inference.
[30]
Under such circumstances, it cannot be said that the appellant did
not conduct himself as a reasonable
person would have. The trial
court ought, therefore, to have found that the appellant did not
contribute to the collision and concluded
that the insured driver was
100% negligent.
RE:
QUANTUM
[31]
Having come to such a conclusion in regard to the liability, there
could have been no need for the
trial court to apportion the general
damages or to exercise its discretion in favour of reducing the
agreed amount of general damages
from R1 500 000 to R1 000 000.
[32]
Conversely, the appellant’s argument that in decreasing the
amount agreed between the parties
the trial court misdirected itself,
is also correct. The trial court failed to exercise its discretion
properly on the ground that
it was not required to resolve a dispute,
where none existed, between the parties relating to the general
damages; and there was
no justification in law to set aside the
compromise reached between the parties.
[33]
Consequently, the appeal ought to succeed.
[34]
The respondent did not oppose the appeal and I see no reason why it
should be mulcted with costs. No
order as to costs should, therefore,
be made.
[35]
I make the following order:
1.
The appeal is upheld.
2.
The trial court’s judgment and
order are set aside and replaced with the following order:
“
The
Defendant is liable for 100% of the Plaintiff's agreed/proven damages
and that the award for general damages is in the amount
of R1 500
000.00.”
3.
No order as to costs.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
S.N.I
‘MOKOSE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
L.I
VORSTER
ACTING
JUDGE OF THE HIGH COURT, GAUTENG DIVISION,
PRETORIA
Appearance:
Appellant’s
Counsel
:
Adv. J. F Grobler S.C
Appellant’s
Attorneys
:
Adams & Adams.
Respondent’s
Representative
:
The Road Accident Fund
Date
of hearing
: 03 February 2021
Date
of judgment
: 16 February 2021
[1]
NEG v Sullivan 1988 (1) SA 27 (A).
[2]
[3]
Arthur v Bezuidenhout and Meiny
1962 (2) SA 566
(AD) at 573C –
H.
[4]
Guardian National Insurance v Saal
1993 (2) SA 161
(C).