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[2021] ZAMPMBHC 14
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Ngobe v Road Accident Fund (3367/2018) [2021] ZAMPMBHC 14 (18 May 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES
:NO
(3)
REVISED: YES
18/05/2021
CASE
NO: 3367/2018
In the matter
between:
SHERIFF
NGOBE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J
U D G M E N T
MASHILE J:
[1]
On 30 April 2016, the Plaintiff sustained personal injuries while
driving motor vehicle
bearing registration letters and number [….]
.
He was driving on R40, the road between Mbombela and Barberton, into
the direction of Barberton when an unknown motor vehicle
(“insured
vehicle”) driven by an unknown driver, travelling into the
opposite direction, suddenly turned onto the
lane of oncoming traffic
forcing the Plaintiff to swerve to the right to avoid a head-on
collision. While in the process of doing
so, his vehicle collided
with a barrier on the right-hand side, lost control and overturned
causing him injuries for which he
is now pursuing compensation.
[2]
Believing that the collision was due to the negligent driving of the
insured driver
and that in terms of the
Road Accident
Fund Act 56 of 1996
, the Defendant would be exposed to liability to
compensate him, he instituted these proceedings seeking relief as
per his particulars
of claim. The action is not opposed by the
Defendant. That said, the Plaintiff still had to allege and prove his
claim notwithstanding
that the claim was not opposed. Prior to the
commencement of proceedings, Counsel for the Plaintiff applied to
Court to have
merits and quantum separated as contemplated in
Uniform Rule of Court 33(4). The Court considered the matter. Noting
that it
would be convenient and cost effective to treat the two
issues discretely, the Court granted the application.
[3]
The Plaintiff was the only witness who testified in support of his
own case. He stated
that he had driven pass Hilltop and was
descending towards Barberton. He noticed a vehicle whose
registration letters and number
he could not record driven by an
unknown person, suddenly move onto his path of travel. To avoid a
head-on collision with the
insured vehicle, he applied brakes and
swerved to his right-hand side where his vehicle collided with a
barrier, lost control
and overturned.
[4]
He told the Court that he did not know why the driver of the insured
vehicle decided
to swerve to the lane of oncoming traffic especially
in circumstances where there was no vehicle that he was overtaking.
He conceded
that it was possibly as a result of shock of seeing a
vehicle suddenly entering his path of travel that he swerved
to the
far right-hand side where his vehicle hit the barrier. He said
that had it not been for that sudden jolt, he would not have swerved
that far but could have swerved just enough to avoid a head-on
collision especially because there was no oncoming vehicle on
the
opposite lane.
[5]
He added that he could not have directed his vehicle to his left-hand
side because
there was an embankment. As such swerving into that
direction would have been more dangerous. Insofar as he was
concerned, he
could not have taken any other measures than those on
which he embarked to avoid the collision. Following the collision, he
observed
the presence of police officers at the scene of the
collision. Probably appreciating that he was badly injured, the
police officers
did not say anything to him at the time. On his
release from hospital though, they visited him at home
to obtain
a statement. His testimony was not challenged as the
Defendant was not opposing and the Court had no other version. The
Plaintiff
then closed his case.
[6]
The issues to be decided are firstly, whether or not the unknown
driver of the unidentified
motor vehicle was negligent. Secondly and
if so, were there any steps that the Plaintiff could have taken to
avoid the collision
happening?
To
resolve these two issues I now turn to the legal guiding principles
below.
[7]
Counsel for the Plaintiff has referred this Court to what she
believes is pertinent
authority on the subject.
In
the case of
Sedumemanyatela
v Road Accident Fund
(65678/2012) (2014)
ZAGPPHC 445 (30 MAY 2014)
,
it was stated that even when an approaching vehicle is on its
incorrect side of the road, a driver on his correct side may assume
that the former will return timeously to its correct side. But this
assumption does not entitle a driver on the correct side of
the road
to remain passive in the face of threatening danger. As soon
as the danger of the collision becomes evident he
is under a duty to
take reasonable steps to avert one.
[8]
E
very
driver has a duty to be alert and keep a proper lookout on the road
at all times in order to avoid collisions happening
.
Thus,
in
Road
Accident Fund v Grobler
(96/06)
ZASCA 78; (2007] SCA 78 (RSA
);
2007
(6) SA 230
(SCA)
(31 May 2007),
it
was held that in a sudden emergency situation
,
the
proper approach is not to confine the inquiry into the negligence to
the conduct of the driver from the moment they
became
embroiled in an emergency. The inquiry must extend to cover what
steps a driver took to avoid the impending emergency.
If a driver had
an opportunity to take measures ahead of the emergency to avoid the
accident, and he failed to do what a reasonable
person in similar
circumstances would have
done, then he /or she would have been negligent.
[9]
Finally, i
n
Ntsala
and others
v
Mutual and Federal Insurance Co Ltd
the
Court held that:
Where
a driver of a vehicle suddenly finds himself in a situation of
imminent danger, not of his own doing, and reacts thereto
and
possibly takes the wrong option, it cannot be said that he is
negligent unless it can be shown that no reasonable man would
so
have acted. It must be remembered that with a sudden confrontation
of danger a driver only has a split-second or a second to
consider
the pros and cons before he acts and surely cannot be blamed for
exercising the option which resulted in a collision.
[10]
An analysis of the factual background, the issues involved and a
consideration of the applicable
law should not detain this Court for
long. It must always be borne in mind that the evidence of the
Plaintiff was not contested.
As such, the Court has no different
version from his. Ordinarily, it is expected that drivers would keep
to their lanes when driving.
Without any cause, it would appear, the
driver of the unidentified motor vehicle went onto the lane of
oncoming traffic. The only
time a driver is allowed to do so, is
when overtaking. That is, however, conditional upon it being safe to
execute such a maneuver.
[11]
From the facts, it is clear that the driver of the insured vehicle
was not overtaking another
but he was still driving on the wrong
side of the road. That leaves this Court baffled. Even if he was
passing another vehicle,
it would not have been the safest place to
carry out such an exercise especially when another vehicle was
approaching from the
opposite end. In my opinion, the driver of the
unknown motor vehicle was negligent by swerving over to the lane of
travel of oncoming
motor vehicles.
[12]
Turning then to the question whether or not the Plaintiff could have
avoided the
collision. In the manner circumstances
unfolded shortly before the collision, the Plaintiff was faced with a
situation where he
had to make sudden decisions and all in a split
of a second. Ordinarily, a driver does not anticipate another to
drive on
the lane of oncoming traffic especially
when there is another vehicle approaching from the opposite
direction. The Plaintiff’s
shock when seeing the insured
vehicle in his lane is therefore perfectly understandable.
[13]
Since the action of the driver of the insured vehicle happened so
swiftly, it would have been
suicidal for the Plaintiff to assume that
the driver of the insured vehicle would swerve back to his lane. He
had to take measures
to avoid the collision then and there. In the
circumstances and placing him in the position of a reasonable
driver, I conclude
that the situation was such that he had to swerve
to the right- hand side of the road to avoid a head-on
collision. This
is no different to the situation describe in the
Sedumemanyathela case
supra
.
[14]
Similarly, when considering the question whether or not the Plaintiff
could have swerved just
enough not to hit the barrier on the
right-hand side of the road, one must do so as a reasonable man
placed in the position of
the Plaintiff who found himself confronted
with that situation of sudden emergency. The shock that he
experienced might have
exacerbated his reaction. The question is, can
he be blamed for such an act? In my opinion no. This should be in
line with what
the Court held in Ntsala
supra.
He could
not have swerved to the left-hand side because there was an
embankment and driving ahead would have meant a head- on collision
with the insured driver. As such, the only way out for him was
swerving to the right-hand side.
[15]
In the circumstances, I am satisfied that the Plaintiff has on a
balance of probabilities established
that the driver of the
unidentified motor vehicle was negligent by driving on the lane of
oncoming traffic. The Plaintiff could
not have taken any other steps
than those he took to avoid a head-on collision. The Defendant is
held liable for 100% of the
collision happening. I make an order in
the following terms:
1.
The Defendant
is liable for 100% of damages that the Plaintiff may prove; and
2.
The Defendant
is directed to pay the costs of the Plaintiff.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 18 May 2021 at 10:00.
APPEARANCES:
Counsel for the
Plaintiff:
Ms L Ramarumo
Instructed
by:
Thobela Attorneys
Counsel for the
Defendant:
No appearance
Instructed
by:
Date of
Hearing:
26 April 2021
Date of
Judgment:
18 May
2021