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[2020] ZAGPPHC 76
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Lawrence v Road Accident Fund (72078/2017) [2020] ZAGPPHC 76 (14 February 2020)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: 72078/2017
14/2/2020
In
the matter between:
HELENE
HENDRINA
LAWRENCE
Applicant
and
ROAD
ACIDENT FUND
Respondent
JUDGMENT
DAVIS,
J
[1]
This is the judgment in a trial regarding a damages claim instituted
by the Plaintiff,
a 58 years old female against the Road Accident
Fund (the "RAF").
[2]
The date, approximate time and place of the collision are all common
cause. So are
the details of the vehicles involved and the drivers
thereof, being the Plaintiff and -the insured driver respectively.
The only
dispute relates to the mechanism of the collision and the
extent of negligence of the two drivers. The insured drive r avers
that
the Plaintiff drove into the back of his truck while he was
reversing and the Plaintiff claims the insured driver turned the
truck
across her lane of travel.
[3]
Witnesses
3.1
The
first witness called by the Plaintiff was Mr Erasmus. He was not
strictly speaking a direct eye-witness to the actual collision,
but
he was at the scene thereof. He testified that his place of
employment was on Moot Street in Pretoria which is where the
collision
occurred. On the morning in question, be was busy loading
his vehicle in preparation for the day's tasks. He observed the truck
driven by the insured driver approaching from his left-hand side
prior to the collision. He alleged that the truck had been reversed.
he would have seen this as he often, when around, assisted trucks in
reversing from the premises visited by the insured driver
which,
although not adjacent to the witness· place of employment, are
close by, on the same side of the street. The assistance
normally
rendered by the witness would be to stop oncoming vehicles and to
indicate to the driver of a truck that it was safe to
reverse into
the road. He did not do any of this on the morning in question. After
having noticed the truck driven by the insured
driver or his
left-hand side. he then heard a car hooter sounding and briefly saw
the 1400 LDV driven by the Plaintiff approaching
from the right hand
side. She was, accordingly to the witness approximately two
bakkie-length's away when he heard the screech
of tyres. Shortly
thereafter the impact took place, but the actual collision was
obscured from the witness· view by his
own truck. He only
heard the impact According to the witness, the truck driven by the
insured driver had turned across both lanes
of the road on the side
of the Plaintiff and she struck the left-hand rear wheel of the
truck. She was in the right hand of
the two lanes of traffic on
her side of the road. Later in his evidence he stated that be only
saw the back of the Plaintiffs LDV
prior to the impact and that she
might have been three vehicle lengths away when he beard her hooter.
He estimated her speed to
have been below 60km/b. According to the
witness when he had gone across to check on the Plaintiff who was
still sitting in her
vehicle after the impact, the insured driver
came over and said "Ma'm are you OK? Sorry, l did not see you".
The witness
denied the version of the insured driver having reversed.
He had some difficulty in explaining the extent and location of the
damage
to the Plaintiff's vehicle. which had the largest impact on
his front left hand side. This was caused, according to the witness'
version in court, by the truck's rear wheel when the truck had been
perpendicular to the Plaintiff's vehicle at the time of the
impact.
3.2
At
the commencement of the trial, the parties indicated that a bundle of
documents discovered by them and which had been. handed
up, were what
they purported to be. According to a minute of one of their pre-trial
conferences. despite not agreeing to the correctness
or the contents
of the documents. they agreed that the documents would constitute
evidence by the mere production thereof. Both
of the parties, but in
particular the Plaintiff, referred the court to some of the
documents. Such as the officer accident report
without it otherwise
having been proved as evidence. Included in the bundle were also
various photographs of both the Plaintiff's
vehicle as well as the
location of the collision. all taken some time after the collision
(and not contemporaneously). Reference
to and use of these
photographs were also made without formal proof. One of the documents
the Plaintiff’s counsel studiously
avoided, however was a
previous affidavit by Mr Erasmus. Therein, he still placed the blame
on the insured driver, but described
nothing of the alleged
perpendicular side-impact he testified about in court when he in
detail, with the aid of the aforementioned
photographs pointed out
where the front and the near of the truck had allegedly been
positioned at the time of impact. In contrast,
in his prior
affidavit, the collision is, without reference to any hooting or
braking on the pan of the Plaintiff. described as
a ·'head-on
collision". l gave the parties the opportunity to address me on
these and other discrepancies in the evidence
and postponed the
matter for the delivery of written heads of argument The Plaintiff’s
only answer therein to this issue
was that the previous affidavit of
the witness should be ignored as it had not formally been introduced
into evidence. I shall
deal with this aspect later.
3.3
The Plaintiff testified that. on the morning in question, she was
driving in a westerly
direction in Moot Street when the truck, driven
by the insured driver, approached from the opposite direction. She
knew the road
as she was on her way to her sister’s house dose
by. She estimated her speed to have been approximately
55
km/h.
She was in the right-hand lane of the two lanes in her direction of
travel as she intended to tum right two blocks later.
When she was
5
or
IO meters from the truck, it "cut'' in front of her without
prior indication or warning. She had no opportunity to hoot,
brake or
swerve and hit the truck on its left rear wheel. She sustained
serious injuries but remained conscious and verbally lashed
out at
the driver of the truck when he crone over to ask if she was all
right. She also alleges that the driver of the truck said
"sorry,
ma·m1 did not see you".
3.4
After
the commencement of the trial had been somewhat delayed, the insured
driver, much to the expressed surprise of the Plaintiff
and her legal
team, made his appearance. His evidence was that he had uploaded his
truck at his employer's yard in Silverton to
the North-east of
Pretoria as per usual. After the necessary paperwork for his intended
deliveries bad been concluded, he proceeded
·with his daily
activities. eventually travelling west in Moot Street where he turned
into the premises where he had to
make a delivery on the same side of
the street as the premises of the witness Erasmus' place of
employment. After the delivery,
be checked that the road was clear
and reversed back into Moot Street, intending lo thereafter to
proceed to a further delivery
point to the west of Pretoria in
Atteridgeville.. He slowly reversed across the two southern lanes of
Moot Street when he heard
an impact at the rear of his truck. He
stopped, jumped out and found that the Plaintiff had driven into the
rear left-hand comer
of the truck, scratching the paint and damaging
the taillight. He saw that the elderly Plaintiff bad been injured and
said ··”sorry,
sorry”, not meaning any
admission. but expressing sympathy as one would do, for example, when
seeing a person slipping. falling
and getting injured.
3.5
There
are some a factual disputes between the witnesses as to what happened
after the incident as to whether people had gathered,
started
harassing the injured driver. stolen his wallet from his truck and
whether had he fled the scene or not. The insured driver
said he was
forced to leave the scene in these circumstances whereupon he
immediately proceeded to the Hercules police station
to report the
accident. Upon his return to the scene, the Plaintiff's vehicle was
no longer there. Nothing much rums on this.
[4]
In an
article
“
Truth
in the courtroom”
by
Edward Jay Epstein in the August 1969 edition of
Commentary
the
general perception of a trial is described as being this:
··”It
is looked upon as a fact-finding operation, an occasion for the
public exposure of all known information
regarding a given crime. The
general assumption is that, if fairly conducted, a trial will yield
the whole truth; aside from meting
out justice
...
ii
will provide complete information
...".
The same can be said about civil trials where the adversarial system
and the testing of evidence by way of cross-examination
is perceived
to ensure that the truth will prevail (the effectiveness of
cross-examination in this otherwise noble quest is. however
sometimes
questioned. See: Schirkkard,
Does
cross-examination enhance accurate fact-finding?,
SALJ 2019
Vol 136 Part 1, 27 - 41).
[5]
In this case, even cross-examination could not provide accurate
answers to the following
questions:
•
What was
the exact mechanism of the collision?
•
Did
the plaintiff in fact hoot prior to the collision (and did she have
time to do so)?
•
Did
the Plaintiff apply her brakes at all to the extent that her tyres
screeched? Was there time to apply brakes?
•
How was
the damage to the Plaintiff's vehicle exactly caused and by what? By
the truck's wheel or any other pan of the side of the
truck? Or did
she hit the rear of the truck? Why washer vehicle more damaged on her
front left-hand side than the front right-hand
side (quite severely
so)?
•
Had
the truck driver indeed done a delivery on that day at the address he
had indicated? What was delivered etc. (this could easily
have been
ascertained)? If he had done a delivery and thereafter proceeded
west, it would support his version of having reversed.
[6]
In
Stellenbosch Fanner's Winery Group Ltd & another v Martell
et Cie & others
2003 (1) SA 11 (SCA) the exposition of the
manner in which evidence is to be assessed and compared when
conflicting versions are
presented bears quotation:
“
The
technique generally employed by courts in resolving/actual disputes
of this nature may conveniently he summarized as follows:
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular witness will
depend on its
impressions about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness' candour and demeanour in the
witness-box, (ii) his bias. la1ent and blatant, (iii)
internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf. or with established
facts or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects of his version,
(vi) the
caliber and cogency of his performance compared to that of other
witnesses testifying about the same incident or events,
As to (b) a
witness' reliability will depend apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities
he had to
experience or observe the event in question and (ii) the quality,
integrity and m dependence of his recall thereof As
to (c). this
necessitates an analysis and evaluation of the probability or
improbability of each parry's version on each of the
dispute issues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the
party burdened with the
onus of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs
when a court's credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The
more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities-prevail”.
[7]
Evaluation:
If
one applies the technique proposed by the Supreme Court of Appeal,
the following emerges:
7.1
The so-called eye-witness did not witness the actual collision. His
lack of
ability to observe might impact negatively on his recall of
the remainder of his actual observations. The finding-of an elderly
lady in a small LDV having collided with a huge truck clearly -made
the longest and strongest impact on his memory. These two factors
(lack of observance and emotional impact) also lead. to internal
contradictions in his evidence regarding where exactly the point
of
impact between the bodies of the two vehicles took place. These
contradictions were exacerbated by the extent and location of
the
damage to the Plaintiff's vehicle. His evidence also suffers from the
external contradictions with his prior affidavit. As
a document
presented by agreement, the affidavit bad evidential status, the
contents of which, being not inadmissible hearsay attributable
to
another person carries some weight (See also:
Visser v 1Life
Direct Insurance Ltd
2015 (3) SA 71
SCA at par [8] (majority
decision) and paras [3-9] and [4-8] (minority decision)) and Absa
Bank Ltd v ONS Beleggings BK 200(4)
SA 27 (SCA) at [6] and the cases
quoted there.
7.2 The
Plaintiffs own evidence suffers from external contradictions with the
“eye-witness”
regarding rime and opportunity to boot and
brake and on internal inexplicability of how her vehicle became
damaged in the way it
did.
7.3
The
truck driver testified in a clear and adamant fashion and impressed
as a witness but floundered when he could not explain why,
when
reversing, he did not see the Plaintiff approaching on a flat open
road if he had been keeping the proper look-out which he
said he had
prior to reversing.
7.4
There
are also the following objective facts against which the various
discrepancies must be measured:
•
The
collision took place not more than
two
vehicle
lengths prior to a t-junction intersection to the Plaintiffs right
(as can clearly be seen from photograph 7 of the photographs
produced
on behalf of the Plaintiff).
•
The
intersection is furnished with a '"zebra-stripe"'
pedestrian crossing and pedestrians are visible in the area on
multiple of the phot0graphs.
•
Moreover,
the two lanes in the Plaintiff’s direction of travel, both have
painted yield signs and there is a yield sign posted
on the left
band side of the road. These signs Imposed obligations on traffic
travelling in the direction that the Plaintiff
had been travelling
in.
•
The
address at which. the truck driver had made his delivery that morning
(and this evidence had remained uncontested) is located,
if not
actually on the left-hand side of the t-junction (i.e its straight
angle) then immediately opposite the yield-sign regulated
portion
thereof.
•
In
short, the Plaintiff had approached the t-junction where there are
yield signs and a pedestrian crossing, all at the exact location
where the truck had done a delivery.
7.5
One
must add to the above, the improbabilities
as
to
why, if the truck driver had come from the eastern side of town had,
travelled down the same road as the Plaintiff in the same
westerly
direction for purposes of his delivery, he would. on the Plaintiff s
version, come back in an easterly direction if his
next delivery was
further on in south-westerly and direction. The probabilities favour
him simply reversing after bis delivery
and thereafter continuing in
a westerly direction down Moot Street.
7.6
Raving
weighed up all the above, I find that the Plaintiffs version of how
the collision occurred cannot be accepted. I find that
the truck had
indeed been reversed into the road from the left-hand side when the
Plaintiff, travelling in the right-hand lane
of the two lanes (as all
the witnesses agree on) collided with the left-front side of her
vehicle into the rear of the truck. This
construction accords with
the damage on her vehicle. She was clearly not keeping a proper
look-out and travelled at a too high
a speed for one responsibly
approaching the t-junction described above. The truck driver, on the
other hand must have seen the
approaching Plaintiff. On a
construction of the scene as clearly depicted on the photographs she
must have been clearly visible
to him for some time prior to the
collision and, reversing then as he said he did was negligent.
7.7
It
appears then that both drivers had been at fault and, in my view,
equally so. A 50% apportionment must consequently be applied
to the
damages proven by the Plaintiff.
[8]
Damages
8.1
The
Plaintiff was 56 years old at the time of the accident, and she is
currently 58 years old. At the time of the accident she was
self-employed.
8.2
The
Plaintiff sustained the following injuries:
(a)
Left
femur fracture
(b)
Right
open tibia and fibula fractures
(c)
Left
ankle fracture
(d)
Fracture
of the sternum
(e)
Fracture
of the ribs
(f)
Laceration
to lower lip
(g)
Fracture
of the left ring finger and finger.
She
-was admitted at hospital for 43 days. She suffered a left below knee
amputation and it was later in June 2018 converted to
left above knee
amputation.
8.3
The
parties are in agreement as to the calculation of the Plaintiffs past
and future loss of earnings and the contingencies actuarially
applied. I have -perused the calculations and read the various
reports of the numerous experts employed by the parties and I agree
that this calculation is a fair reflection of the Plaintiffs loss. It
amounts to R453 783, 65.
8.4
The
parties' counsel have referred to the following cases in their very
useful and comprehensive heads of argument in respect of
the claim
for general damages:
Shadrack
v RAF
2013
(6D2) QOD 15 GP,
Goba
v
RAF
2013
JDR 1504 (ECG);
Bonesse
v
RAF
2014
(7A3) QOD 1 (ECP); Joko v RAF 2016 (7A2) QOD 1 (WCC),
Rens
v MEC of Health Northern Cape Provincial Department
(2009)
6 QOD D2-1;
Pretorius
v South British Insurance
1963 1C
&,B 259;
Gallant
v RAF
20045
C & B E2-29
Magule
v AA Mutual Insurance
1978
2 C &-B 739,
Taylor
v SA Railways & Harbours
1958 1 C
& B 257,
Jardine
v SA Mutual Fine & General Insurance
1974 2 C
& B 449 and various unreported judgments. I had regard to these
comparable cases and the Plaintiff's loss of amenities
of life and
estimate her general damages.at R1, 4 million.
8.5
The
amount of past medical expenses has been settled between the parties
and it is clear that she qualified for an undertaking as
envisaged in
section 17 of the RAF 56 of 1996.
[9]
I find no reason why costs should not follow the event, the Plaintiff
being substantially
successful in proving a claim against the RAF.
[10]
Order
1.
The Defendant .is liable for 50% of the plaintiff’s damages
pursuant to
a motor vehicle accident in which she was involved on 8
March 2017;
2.
The
Defendant shall therefore pay to the Plaintiff the sum of R226 891,
83 in respect-of past and future of loss of earnings and/or
earning
capacity;
3.
Toe
Defendant shall pay to the Plaintiff the sum of R13 053, 50 in
respect of past medical expenses;
4.
The
Defendant shall pay to the Plaintiff the sum ofR700 000, 00 in
respect of general damages.
5.
In
the event of the aforesaid amount not being paid timeously, the
Defendant shall be liable for interest on the amount at the rate
of
10% per annum, calculated from the 15
th
calendar
day after the date of this order to date of payment.
6.
The
Defendant shall furnish the Plaintiff with an undertaking in terms of
Section 17(4)(a) of Act 56 of 1996 for payment of the
medical
expenses (including caretaking from Johanna Elizabetha Bezuidenhout,
ID [….]) future accommodation of the Plaintiff
in a hospital
or nursing home or treatment of or rendering of a service or
supplying of goods to her resulting the injuries sustained
by the
Plaintiff in the motor vehicle accident that occurred on 08 March
2017, to compensate the Plaintiff in respect of the said
costs·
after the costs have been incurred and upon proof thereof limited to
50%.
7.
The
Defendant shall pay the Plaintiff's taxed or agreed party and
party
costs
on the high court scale. subject thereto that:
7.1
In the
event that the costs are not agreed
7.1.1
The
Plaintiffs hall serve a notice of taxation on the Defendant's
attorney of record;
7.1.2
The
Plaintiff shall allow the Defendant 14 (Fourteen) court days from
date of allocator to make payment of the taxed costs.
7.1.3
Should
payment not be effected timeously. the Plaintiff will be entitled to
recover interest at the rate of 10% per annum on the
taxed or agreed
costs from date of allocator
-w
date
of final payment.
7.2
Such
cost shall, subject to the Taxing Master' s discretion, include but
not be limited to:
7.2.1
The-
costs incurred in obtaining payment of the amounts mentioned in
paragraphs 2, 3, 4 and
5
above;
7.2.2
The costs
of and consequent to the employment of Counsel, including counsel’s
charges in respect of the trial, as well as
reasonable preparation
and the drafting of heads of argument.
7.2.3
The costs
of all medico-legal, radiological. actuarial. accident
reconstruction, pathologist, joint minutes and addendum reports
obtained by the Plaintiff and furnished to the Defendant and/or its
attorneys, including, the following:
7.2.3.1
Dr P Engelbrecht- Orthopaedic surgeon;
7.2.3.2
Dr Wiele - Orrhotics;
7.2.3.3
Dr Annalie Pauw - Clinical Psychologist;
7.2.3.4
Anneke
Greeff Incorporated- Occupational Therapist;
7.2.3.5
JJ
Prinsloo &. Associates - Industrial Psychologist;
7.2.3.6
Argen
Actuarial Solutions - Actuary (present at court).
7.2.4
The
reasonable and taxable preparation, qualifying and reservation. foes,
if any, in such amount ·as allowed by the Taxing
Master, of
the following experts:
7.2.4.1
Dr P
Engelbrecht- Orthopaedic surgeon;
7.2.4.2
Dr Wiele
- Orthotics;
7.2.4.3
Dr
Annalie Pauw - Clinical Psychologist;
7.2.4.4
Anneke Greeff Incorporated - Occupational Therapist;
7.2.4.5
JJ
Prinsloo & Associates - Industrial Psychologist;
7.2.4.6
Argen
Actuarial Solutions - Actuary (Present at court).
7.2.5
The
reasonable costs and time spent travelling incurred by and on behalf
of the Plaintiff in, as well as the costs consequent to
attending the
medico-legal examinations requested by both parties;
7.2.6
The
costs and time spent travelling consequent to an inspection in loco;
7.2.7 The
costs consequent to the Plaintiffs trial bundles and witness bundles;
7.2.8
The
cost of holding all pre-trial conferences, as well as round table
meetings and judicial case management conference at court
between the
legal representatives for both the plaintiff and the Defendant,
including counsel's charges in respect thereof;
7.2.9
The
cost of and consequent to compiling all minutes in respect of
pre-trial conferences
7.2.10 The
reasonable travelling costs and time spent travelling of the
Plaintiff, and those who are hereby
declared necessary witnesses:
7.2.11
Mrs
JE Bezuidenhout - sister and care giver;
7.2.12
Mr
GJ Erasmus - Eyewitness to accident.
7.2.13 The
reasonable costs for the interpreter Mr P Maleka (present at court).
8.
The
amount referred to above will be paid to the Plaintiff’s
attorneys, Spruyt Incorporated, by direct transfer into their
trust
account, details of which are the following:
Standard
Bank
Account
number: [….]
Branch
code: Hatfield (01 15 45)
REF:
SD3004
9.
It is
noted-that there
is
no
contingency fee agreement between the Plaintiff and Spruyt
Incorporated Attorneys.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing: 02 & 03 December 2019
Judgment
delivered: 14 February 2020
APPEARANCES:
For
the Plaintiff:
Adv S G Maritz
Attorney
for Plaintiff:
Spruyt Inc, Pretoria
For
the Defendant:
Adv O J Ntshole
Attorney
for Defendant:
Maponya Inc.,
Pretoria