About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2020
>>
[2020] ZAGPPHC 100
|
|
Kabini v Road Accident Fund (26209/2018) [2020] ZAGPPHC 100 (19 February 2020)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGHCOURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 26209/2018
In
the matter between:
GM
KABINI PLAINTIFF
and
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
Van
der Schyff, J.
[1]
On 10 June 2017 the plaintiff was injured in a motor vehicle accident
between a motor vehicle driven by himself and an, unknown
vehicle.
The matter came before me for adjudication on the merits only.
[2]
In his particulars of claim the plaintiff avers that the accident was
caused as a result of the sole negligence of the unknown
insured
driver, the latter being negligent in one or more of the following
respects:
i. He travelled at a high speed under
the circumstances;
ii. He omitted to keep a proper
lookout;
iii. He omitted to keep his motor
vehicle under proper control , He failed to comply with the statutory
traffic rules;
iv. He failed to avoid an accident
when by exercising reasonable care he should and could have done so;
v. He failed to adequately apply the
controls and other mechanisms of his motor vehicle in such a way that
it does, not pose-a threat
to other road users;
vi. He failed to adequately consider
the presence, movements and clearly visible movements of other motor
vehicles; and
vii. He failed to consider the rights
of other road users.
[3]
The plaintiff pleaded that the accident occurred when the insured
vehicle veered into the lane of the plaintiff and the plaintiff
swerved to the left to avoid colliding with the insured vehicle and
collided with a barrier on the left side of the road.
[4]
The defendant pleaded that it is not in a position to admit or deny
the allegations pertaining to the negligence of the insured
driver
and put the plaintiff to the proof thereof. In the alternative the
defendant pleaded that if it was found that the insured
driver was
negligent, that the collision was caused by the plaintiff who was
negligent in one or more of the following aspects:
i. He failed to keep a proper look
out;
ii. He failed to avoid the collision
by failing to exercise the reasonable care and skill;
iii. He failed to take evasive
measures,
iv. He failed to take sufficient
cognisance of the presence of the insured driver on the road surface:
end
v. He failed to abide by the general
rules of the road.
In
the further alternative, it was pleaded that in the event of it being
found that the insured driver was negligent, the said collision
was
partly caused by the fault of the insured driver and partly by the
fault pf the plaintiff and that damages must be apportioned
in
accordance with the Apportionment of Damages Act 34 of 1956 as
amended.
[5]
The only witness who testified was the plaintiff. His version of the
events was that he was driving in a northern direction
on the
Mapobane Highway and the accident occurred around 18h30. He was
driving in the left of two lanes that carry traffic in the
same
direction. There were no other vehicles directly behind him in the
same lane, but there was a vehicle Immediately In front
of him.
His·undisputed evidence is that this vehicle was about 5
metres in front of him. There were two kombis in the right
lane who
approached from behind and passed him. As he checked his rear view
and side mirrors, he noticed a white vehicle approaching
from behind.
When he noticed the vehicle for the first time it was far behind him
but when he saw the vehicle again it was next
to him. He regarded the
vehicle to be driven at -an excessive speed I pause to note that the
plaintiff said that all the
new
vehicles look the same to him
, but it, the white vehicle, could have been a BMW.
[6]
When the white vehicle was next to his vehicle and behind the taxi
that was diagonally in front of him, the vehicle suddenly
swerved to
the left to move into the space between the plaintiff’s car and
the car in front of him, the plaintiff thought
that the white vehicle
would collide with him and instinctively swerved to his left. He
passed the yellow line. The next moment
he heard a loud noise. He
thought he drove in to a pot-hole. He saw his vehicle's wheel rolling
passed. He saw fiery sparks caused
by the friction, and lost control
of his car. He collided with a cement barrier that was standing next
to the road. The white vehicle
did not stop.
[7]
The plaintiff testified that if he did not swerve, he would have
collided with the white vehicle, He testified that it was not
safe to
swerve to the right. He also testified that his motor vehicle was
property maintained.
[8]
Plaintiff was then cross-examined. Counsel for the defendant
attempted to introduce the accident report into evidence, but since
the plaintiff did not consent thereto, and he had no witness present
through whose evidence a proper basis could be laid for the
acceptance of the accident report into evidence. He abandoned that
line of cross examination
[9]
Counsel for the defendant then laid a basis to introduce an affidavit
previously attested to by the plaintiff. Into evidence.
II was
admitted as Exhibit 8. The content of the affidavit corresponds with
the evidence of the plaintiff, save for the fact that
it is not
stated In the affidavit that the plaintiff thought that the white
vehicle was a BMW, and the plaintiff did not explain
in the statement
that he lost his wheel after he swerved to the left and before he
collided with the barrier
[10]
The plaintiff explained that when he made the statement, he was
providing a short version of the events. And was not "asked
to
that point".
[11]
Counsel for the defendant proceeded to cross-examine the plaintiff on
the basis that II ls very peculiar for a motor vehicle's
wheel to
come off when a pothole is struck. I asked him whether any expert
evidence would be presented regarding what could be
expected in
circumstances when a pothole is struck, and he indicated that he
would not lead any evidence In light thereof I disallowed
the
question.
[12]
It was put to the plaintiff that there was no other car involved in
the accident that was driven negligently and that he was
involved in
the accident alone. The plaintiff answered that if it was not for the
white car nothing would have happened. lt was
then put to the
plaintiff that the accident occurred simply because his wheel came
off, and the plaintiff reiterated that the accident
was caused due to
the fact that his car's wheel came off.
[13]
The only aspect dealt with ln reply was to the effect that the
content of the affidavit and the plaintiffs evidence in chief
is not
contradictory but that the affidavit was merely not that extensive.
[14]
The plaintiff closed his case, where after the defendant dosed his
case.
[15]
Counsel for the plaintiff argued that the plaintiff has made out its
case. He argued that the plaintiff was a good, honest
witness whose
evidence was consistent. Counsel for the plaintiff surmised that the
only issue that was put in dispute by the defendant's
counsel was the
fact that the plaintiff did not previously mention that his vehicle's
wheel came off and the that this caused the
accident. As a result, he
argued that the following facts are undisputed:
i. The plaintiff was driving in the
left lane;
ii. He was following a vehicle in the
same lane and the distance between the two vehicles was approximately
5m;
iii. There were two kombis diagonally
In front of him,
iv. A white car approached fast from
behind and swerved In front of him;
v. The plaintiff swerved to the left
in order to avoid an accident heard a loud banging sound and his
car's wheel got off;
vi. He lost control of his vehicle and
collided with a barrier.
[16]
I drew his attention to the statement put to the plaintiff that there
was no other car or driver that was negligent and that
the plaintiff
was in the accident alone and asked if this is not indicative of the
fact that the defendant disputes the existence
of the white car and
its concomitant actions. Counsel argued that facts must be directly
and clearly disputed and that it cannot
merely be regarded to be
disputed based on assumptions drawn by the Court.
[17]
Counsel for the plaintiff argued that the accident was solely
attributable to the conduct of the insured driver, and that no
negligence is attributable to the plaintiff. He could not foresee
that the white car would unexpectedly swerve to enter his lane,
neither could he execute any other preventative actions.
[18]
Counsel for the defendant argued that whether evidence ls contested
or not a court must look at the evidence in its entirety
The Court
was requested to take cognisance of the fact that that the plaintiff
did not make any contact with any vehicle, that
his evidence that his
vehicle's wheel came off was raised for the first time in Court. He
concluded by staling that the version
of the plaintiff alone leaves
much lo be desired and argued that if the Court finds that the
insured driver was negligent a 50-50
apportionment must be made.
[19]
I pause to note that it was never put to the plaintiff during
cross-examination that he was negligent in any way. He was not
cross-examined on the speed that he was driving in the circumstances,
nor on the way that his vehicle was maintained, the condition
of the
road surface or any other possible events that could have caused the
tyre breaking loose.
[20]
The plaintiff was a good witness whose evidence was consistent. There
is no reason not to accept his evidence. I thus accept
his version
that a white vehicle driving al an excessive speed approached him
from behind and suddenly swerved In front of him.
In order to avoid a
collision, he swerved to the left. He suddenly heard a loud noise and
though it that he hit a pothole, .is
a result whereof a wheel broke
loose He lost control of the vehicle and collided with a barrier.
[21]
It is trite that a plaintiff only has to prove 1% negligence on the
part of an insured driver for a claim to be established.
It is then
for the defendant to prove contributory negligence on the side of the
plaintiff.
[22]
Based on the plaintiffs version that is accepted, the unidentified
Insured driver was at least 1% negligent when he (or she)
suddenly
and unexpectedly swerved to the left in an effort to enter the space
between the plaintiff and the vehicle travelling
in front of him.
This action was the catalyst for the accident since It was a
sine
qua non
for the plaintiffs preventative actions which resulted in
his vehicle losing a tyre·and the subsequent collision with
the
barrier.
[23]
The question whether the insured driver should have foreseen that the
plaintiff could drive into a pothole when he had to take
evasive
action, must be answered in the affirmative. Rampai J stated in
P
obo P. v Road Accident Fund
(5820/2015) (2017] ZAFSHC 70 (11 May
2017): 'Travelling on a country road, a reasonable driver, aware of
the hazard posed by potholes,
foresees a reasonable possibility of
another driver encountering an animal cyclist pedestrian or a pothole
anywhere at any time."
(My emphasis.)
[24]
No basis was laid for the Court to find that the plaintiff was
contributory negligent in any way.
[25]
There is no reason to find that the general rule that costs follow
suite should not apply I was specifically requested to address
the
use of an interpreter in the cost order.
ORDER·
As
a result, the following order is made:
1. The defendant is 100% liable
for-the plaintiff's proven or agreed upon damages,
2. The defendant is to pay the costs
of this trial, which costs include the costs of the interpreter who
assisted in the proceedings.
_____________________
Evan
der Schyff
Judge
of the High Court, Gauteng Division, Pretoria
Counsel
for the plaintiff: Adv WJ Dreyer
Instructed
by: VZLR INC.
Counsel
for the defendant: Adv T J Ramotseklsa
Instructed
by: MORARE THOBEJANE INC.
Date
of the hearing: 18 February 2020
Delivered:
19 February 2020