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[2021] ZAGPJHC 868
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Pretorius v Road Accident Fund (20663/2016) [2021] ZAGPJHC 868 (12 July 2021)
S
AFLII
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personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
No.: 20663/2016
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES / NO
REVISED
12
July 2021
In
the matter between:
GERT
PRETORIUS
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Coram:
NICHOLS AJ
JUDGMENT
NICHOLS AJ:
INTRODUCTION
[1]
The plaintiff, Mr. Gert Pretorius,
instituted action against the defendant (the RAF) in terms of the
Road Accident Fund Act 56 of
1996 (the Act), for damages as a result
of injuries he sustained in a motor collision which occurred on 29
June 2014. The plaintiff
was a pedestrian when a motor vehicle with
registration number [....], then driven by an unknown driver,
collided with him in Eldorodo
Park.
[2]
The
RAF was unrepresented in these proceedings. Miss Sibiya, the claims
handler who is responsible for this claim, maintained a
watching
brief on behalf of the RAF throughout the proceedings. It was not
contended, and correctly so, that Miss Sibiya could
as the claims
handler, formally represent the RAF in the proceedings.
[1]
[3]
At the commencement of the trial the
plaintiff’s counsel sought to amend the plaintiff’s
particulars of claim to amend
the date of the collision from 30 June
2014, wherever it appears in the particulars of claim to 29 June
2014. In support of this
application, plaintiff’s counsel
submitted that the plaintiff’s hospital records were not clear
on the date of his
admission and accident. The accident report was
equally unhelpful because the collision had been reported months
after it had occurred.
The hospital subsequently confirmed the
plaintiff’s date of admission as 29 June 2014 although he was
first examined by an
attending doctor on 30 June 2014. In view of the
fact that no prejudice can be suffered by the RAF attendant upon such
amendment,
the application to amend was granted.
SEPARATION OF ISSUES
[4]
The plaintiff sought a separation of the
issues of liability and quantum of damages in terms Rule 33(4). The
application in terms
of Rule 33(4) was granted with the only issue
for determination in this trial being that of liability.
HISTORY OF THE LITIGATION
[5]
In July 2020, the plaintiff sought and was
granted an order compelling the RAF to serve and file the medico
legal reports which
it would seek to rely upon in this matter. The
RAF was also ordered to convene a Rule 37A meeting with the plaintiff
in order to
curtail the issues in dispute. This order was not
complied with. In addition, the RAF failed to discover as required in
terms of
the Uniform Rules of Court. The matter was certified as
trial ready in August 2020 and the trial date was duly allocated for
the
matter to proceed.
[6]
As with the majority of cases involving the
RAF in this division, the RAF terminated the services of its legal
representatives at
some point prior to the commencement of the trial
with the result that it was unrepresented throughout these
proceedings before
me. The presence of the claims handler, Miss
Sibiya, in no way ameliorated any prejudice which the RAF may
potentially have suffered
in consequence of it being unrepresented.
This is so because as much as Miss Sibiya was able to observe the
proceedings and perhaps
make notes for her internal file, she could
in no way participate or contribute to the proceedings.
ISSUE FOR DETERMINATION
[7]
Adopting
the four stage inquiry posited by Fisher J in
MS
v RAF
[2]
,
the issues to be decided in this matter are whether the negligence of
the third party driver caused the collision (the Merits
Inquiry) and
whether the plaintiff sustained the pleaded injuries in the accident
(the First Causation Inquiry)
[3]
.
THE FACTS AND EVIDENCE
[8]
The plaintiff pleaded that he was involved
as a pedestrian in a motor vehicle collision on 29 June 2014 at
approximately 12h30.
He pleaded that the collision was caused solely
by the negligent driving of the insured driver who failed to avoid
the collision
when by the exercise of reasonable care, he could and
should have done so; who drove at an excessive speed in the
circumstances;
who failed to keep a proper lookout; who failed to
keep the vehicle he was driving under proper control and who failed
to apply
the brakes of his vehicles timeously or at all. As a result
of the accident he sustained a head injury, a right shoulder injury,
a neck and spine injury and other serious and severe injuries.
[9]
The plaintiff and two witnesses led
evidence in support of the plaintiff’s case. The second witness
was the plaintiff’s
wife and the third witnesses was an
independent witness.
[10]
The plaintiff’s evidence was that the
accident occurred between 12pm and 1pm on 29 June 2014 on Vlei Lane
in Old Eldorado
Park. It was a Sunday and he had left home to visit a
friend. He was walking on the pavement along Vlei Lane when he
noticed a
yellow Mazda 323 turn left into Vlei Lane at the T-junction
between River Road and Vlei Lane. He then realized that the vehicle
was driving towards him on the pavement. He tried to run from the
vehicle but he had nowhere to run because there were yard fences
in
the way. The vehicle collided with the right side of his body. He
lost consciousness as a result of the collision and when he
regained
consciousness he was on his back. He noticed that the vehicle was
stationary on the opposite side of the road. He also
noticed that
there were people standing around him although he only saw their
legs.
[11]
The plaintiff testified that the police did
not attend at the scene of the collision on the day of the accident,
although he heard
a few people saying that the police had been
called. He was taken by ambulance to Baragwanath Hospital. His wife
had been called
to the scene of the accident and she rode in the
ambulance with him to hospital. When the paramedics were moving him
onto the stretcher
and into the ambulance, he could hear and see but
he could not move his body and hands. He was admitted during the late
afternoon
on the Sunday and he was only attended to on the Monday
morning at the hospital. X-rays were taken and he was discharged
later
on the Monday. He sustained injuries to his spine, back of
neck, back of head and right shoulder. He testified that he was
dizzy,
weak and could barely climb off the stretcher but he was
discharged on the Monday because there were no beds, linen or food at
the hospital. He recuperated at home for about a year in the care of
his wife.
[12]
He did not immediately report the accident
because he was recuperating at home and could barely walk. His wife
tried on several
occasions to report the accident at the police
station without him. When he could move, he went with his wife to the
police station
to report the accident. They took the police officers
to the scene of the accident and his statement was recorded there.
When it
was pointed out to the plaintiff that the accident report
makes reference to the accident as having occurred in Fontein Street,
he maintained that his accident occurred on Vlei Lane. He maintained
that the police were taken to the scene of the accident and
that he
pointed out where it occurred.
[13]
The plaintiff’s second witness was
his wife, Gail Pretorius. She testified that she was told at about
1pm on Sunday 29 June
2014 that her husband had been involved in an
accident. She had just returned from church service. At the scene of
the collision,
she found the plaintiff lying on the ground. He was
unresponsive and unconscious for about two to three hours. The
plaintiff regained
consciousness by the time the ambulance arrived
but he still could not speak. He was placed on a stretcher with a
neck support
and taken to hospital by ambulance. She testified that
she accompanied the plaintiff in the ambulance to the hospital and
that
she provided both of their information to the paramedic. At the
hospital, the paramedics provided all the registration information
for the plaintiff to the hospital.
[14]
Mrs. Pretorius testified that bystanders at
the scene pointed out the vehicle which had collided with the
plaintiff to her. It was
still abandoned unattended at the scene. The
police were called but did not attend at the scene of the accident
whilst she was
there. The police did not visit the plaintiff at the
hospital either. She confirmed that the plaintiff was discharged on
Monday
30 June 2014. She tried, unsuccessfully, a few times to report
the accident at the police station on her own. Eventually, in March
2015, the plaintiff was able to accompany her to the police station
to report the accident. They were taken to the scene of the
accident
by two police officers in a police vehicle. There she conducted
various pointing outs to the police and provided all the
information
required for the completion of the accident report form. Although the
plaintiff was with them at the scene, Mrs. Pretorius
testified that
she provided all the information to the police officers including the
description of the accident. The accident
happened in Fontein Street.
She ascertained this as the name of the street was written on the
wall. She testified that it also
known as Vlei Laan.
[15]
The plaintiff’s third witness was Ms.
Nicomes Beck, an independent witness who witnessed the collision. She
testified that
she had been in the park, smoking a cigarette when she
witnessed the plaintiff being knocked over on the sidewalk by a car.
It
was a Sunday between 12h30 and 13h00, the time when people usually
arrived home from church services. The park was directly opposite
the
point where the accident occurred and she had a clear and
unobstructed view of the road and the accident as it happened. The
car came from around the corner of Vlei Laan at the time when the
plaintiff was walking on the sidewalk facing away from direction
that
the vehicle came from. The left side of the car hit the plaintiff but
she could not clarify which part of the plaintiff’s
body was
impacted. She expressed the view that she did not think that the
plaintiff saw the vehicle approaching him from behind
or that there
was anything he could have done to avoid the collision, once he
became aware of the vehicle, because the vehicle
had climbed onto the
sidewalk and collided with him from behind. She was still at the
scene when the second witness, the plaintiff’s
wife arrived and
when the ambulance arrived. Quite a few people called the ambulance
and it arrived within about 30 minutes. She
joined the other
bystanders by the plaintiff who was lying on the ground before the
ambulance arrived and noted that he was unresponsive
for a period.
THE LAW
[16]
It
is trite that the onus is upon the plaintiff to prove on a balance of
probabilities that his injuries were caused as a result
of the
negligent driving of the insured vehicle.
[4]
EVALUATION
[17]
I found the plaintiff to be a
credible witness. His evidence was also corroborated by both his wife
and the independent witness
in all material respects. Further
documentary corroboration was provided by the police accident report
and the Baragwanath Hospital
documentation. The accident report
records the description of the accident as follows:
“
Pedestrian,
Mr. Pretorius alleged that he was bumped by the car in Fontein
Street, Old Eldos and sustained right shoulder and spine
injuries”
[18]
The plaintiff’s patient registration
form with Chris Hani Baragwanath Hospital is dated 29 June 2014. His
patient examination
form records the doctor’s examination notes
on 30 June 2014 and records the plaintiff’s injuries as
including cervical
spine, lumbar, right shoulder and head injury.
[19]
The plaintiff and his witnesses’
evidence was uncontested and not subject to cross-examination in
consequence of the fact
that the RAF unrepresented at the trial. This
court was mindful of that fact and took greater care to clarify
issues with the witnesses
that required clarification. This included
a consideration of whether any contributory negligence could be
attributed to the plaintiff.
[20]
Both
the plaintiff and the independent witness gave evidence that the
collision between the insured vehicle and the plaintiff occurred
on
the sidewalk and that there was nothing which the plaintiff could
have done to avoid the accident. It is trite that sidewalks
are not
intended for vehicles and the plaintiff would not have been obliged
to foresee that a vehicle would, without warning, mount
the sidewalk
from behind and collide into him.
[5]
Failing any evidence being led before me to support a finding of
contributory negligence on the part of the plaintiff, I find that
no
contributory negligence can be attributed to plaintiff.
CONCLUSION
[21]
On a consideration of the evidence in
totality, I find that the plaintiff has discharged his onus. I am
satisfied that the plaintiff,
as a pedestrian, was involved in a
collision which occurred on 29 June 2014 and that he sustained
various injuries as a result
of that collision. I further find that
no contributory negligence may be attributed to the plaintiff. The
plaintiff is entitled
to recover his full proven damages against the
defendant.
ORDER
[22]
In the result
the following order is made:
(a) The defendant is
liable for 100% of the plaintiff’s proven or agreed damages
consequent upon the injuries sustained by
him during the accident on
29 June 2014.
(b) The defendant shall
pay the plaintiff’s costs of the trial on the merits.
(c)
The determination of the plaintiff’s quantum of damages is
postponed
sine die.
____________________________
Acting
Judge of the High Court
Nichols
AJ
Date
Heard
: 23 April 2021
Date
Judgement Delivered :
12 July 2021
For
the Plaintiff
: Advocate Molope-Madondo
Instructed
by
: NT Mdlalose Inc
114 Jan Smuts Avenue
Parkwood
Johannesburg
Email:
siyakha@mdlaloseinc.co.za
No
appearance for the Defendant:
[1]
Maseko
v RAF
(7086/2018)
[2020] ZAWCHC 94
(19 August 2020) para 6 – 7.
[2]
(10133/2018)
25 March 2019.
[3]
MS
matter
para 12.
[4]
Laas
v Road Accident Fund
2012
(1) SA 610
(GNP);
MS
matter para 11.
[5]
Fabrinso
v Road Accident Fund
(3676/11)
[2016] ZAGPJHC 242 (9 September 2016) para 10.