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2020
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[2020] ZAGPPHC 93
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De Wet Truter v Road Accident Fund (A444/2011) [2020] ZAGPPHC 93 (20 January 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO
OTHER JUDGES:
YES
/NO
CASE
NO: A444/2011
20/1/2020
In
the matter between:
J
DE WET
TRUTER
Appellant
and
ROAD
ACCIDENT
FUND
Respondent
JUDGMENT
Tuchten
J:
1
This
is an appeal from a decision of Sardiwalla AJ dismissing the
appellant's claim for damages for bodily injuries which he brought
against the respondent. Leave was granted by the learned judge in the
court below.
2
The issues of what are colloquially called merits were separated at
the
commencement of the trial. The Issue was therefore confined to
the question of negligence.
3
The evidence showed that on 20 July 2013, during the afternoon. the
plaintiff
was riding a motorcycle on a gravel road in a forestry
plantation in the lowveld. At the same time, the insured driver was
driving
a truck in the opposite direction along the same road. The
two vehicles did not collide but when the plaintiffs version was that
when he approached the truck, he realised that unless he took evasive
action there would be a collision because the truck was in
his path.
The plaintiff veered to his right but the motorcycle began to slide
and the plaintiff was flung from the motorcycle and
landed beneath
the wheels of the truck.
4
The Insured drivers version, on the other hand, was that when he, the
insured
driver, observed the motorcycle for the first time the
plaintiff was doing a wheelie, le causing the motorcycle to rear up
on its
rear wheel and that the plaintiff lost control when the
motorcycle was close to the truck causing the plaintiff to fall off
the
motorcycle and slide under the truck,
as
a
result of
which the plaintiff sustained serious injuries.
5
The plaintiff called a reconstruction expert who gave his opinion as
to
he cause of the collision. The plaintiff and the insured driver
both testified. There were
no
other witnesses.
6
The learned judge below was impressed by the evidence of the insured
driver
and preferred his evidence to that of the plaintiff and the
expert. But the learned judge did not in my
view,
give sufficient
weight to the statement which the insured driver gave to the police
after the incident in the forest, which as In
certain material
respects contradicted the evidence of the insured driver given in
court. In particular, the insured driver testified
that the plaintiff
was one of a group of drivers who were racing each other. There was
no suggestion of that in the police statement
and if the group had
been racing each other, members of the group would not have performed
wheelies as that would have slowed them
down.
7
I do not think that one need consider the evidence of the expert in
any
detail. The evidence showed that the road was wide enough for the
two vehicles to pass each other and there was, as the learned
judge
below found, adequate visibility for the two drivers to observe the
other prior to the incident under consideration.
8
In these circumstances, the most probable conclusion is that the two
drivers
were both lulled Into a false sense of security by the
isolation of the forest road and did not take note of each other
until it
was too late to warn the other, slow down or take evasive
action. In my view the two drivers were equally negligent.
9
It follows, therefore that the appeal must succeed and the defendant
must
be held liable for 50% of the plaintiff's proven or agreed
damages.
10
I make the following order:
1
The appeal succeeds with costs. The order of the court below is set
aside
and replaced with the following:
1.1
The
defendant is held liable to compensate the plaintiff for 50% of his
proven or agreed damages.
1.2
The
defendant must pay the plaintiffs costs of suit in the action.
NB
Tuchten
Judge
of the High Court
20
January 2020
I
agree
MJ
Teffo
Judge
of the High Court
January
2020
I
agree.
B
Neukircher
Judge
of the High Court
January
2020