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[2019] ZAGPPHC 7
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Mbokane v Road Accident Fund (2188/17) [2019] ZAGPPHC 7 (31 January 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE
(2)
OF INTEREST
TO OTHER JUDGES
(3)
REVISED.
CASE NO: 2188/17
In
the matter between:
DAVID
MBOKANE
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
COLLIS
J
INTRODUCTION
[1]
The
plaintiff, an adult male, has instituted a damages action against the
defendant for certain bodily injuries he sustained in
a motor vehicle
collision on 31 March 2016. At the time of the collision, the
plaintiff was the driver of a motor vehicle bearing
registration
letters and numbers [….], which collided with a truck bearing
registration letters and numbers [….],
referred to as the
insured driver.
[2]
In its particulars of claim, at
paragraph 5 thereof, the plaintiff alleged as follows:
"The
collision
was
caused by the sole negligence of the insured driver who
was
negligent in one or more of the following respects:
5.1
he failed to keep
a
proper lookout;
5.2
he
travelled at an excessive speed regard being had to the prevailing
circumstances;
5.3
he
failed to drive with due skill, diligence, caution and/or
circumspection;
5.4
he
failed to take any alternatively sufficient cognisance of the
presence, the actions and the visibility intended and/or alternative
probable further actions of the motor cycle driven by the plaintiff;
5.5
he
drove his vehicle without due regard for other road users
specifically those of the plaintiff;
5.6
he
failed to exercise any or proper control over the motor vehicle he
was
driving;
5.7
he
failed to apply the brakes of the motor vehicle he was driving
timeously, adequately or at all;
5.8
he
failed to avoid a collision whereby the exercise of reasonable care
and caution he could have and ought to have done
so;
5.9
he
attempted to execute an inherently dangerous manoeuvre and did
so
in a reckless fashion;
5.10
he
drove into the plaintiff's path of travel at a time when it was
unsafe and/or inopportune to do
so."
[3]
In
his plea, the defendant denied any negligence on the part of the
insured driver and, in the alternative, had pleaded contributory
negligence on the part of the plaintiff.
THE DISPUTE
[4]
The
matter comes before me for determination of the
liability.
The parties, by agreement, having
applied to the court for a separation of the issue of
liability
to that of the
quantum
in terms of Rule 33(4). The Court
upon application ordered such separation.
THE EVIDENCE
[5]
The
plaintiff, Mr David Mbokane, testified that, on 31 March 2016, he was
driving a motor cycle bearing registration letter and
numbers [….]
when he was involved in a collision with a truck. Prior to the
collision, he was returning to his place of
employment after having
made a delivery to a customer. As he proceeded along the R40 road in
Mbombela, he was following two other
vehicles. They all approached an
intersection with the traffic light facing them being in their
favour. The two vehicles travelling
ahead of him then entered the
intersection and he proceeded to follow them. As he was busy
traversing through the intersection,
the insured driver approaching
from his right also entered the intersection and a collision then
occurred.
[6]
He
described the road he was travelling on as consisting of four lanes
with two compulsory right turning lanes at the intersection,
with the
other two lanes permitting vehicular traffic to travel straight. He
also testified that the same road carried opposite
lanes having the
same directional arrows for traffic travelling from the opposite
direction. Of the two lanes permitting traffic
to travel straight, he
testified that he was travelling in the extreme left of the two
lanes. As he was already inside the intersection
when the truck
executed a right turn, he tried to apply his brakes and swerve to the
left. He concluded his testimony in chief
by stating that he was
unable to determine at what speed he was travelling prior to the
collision but that his speed would not
have exceeded the maximum
speed of 60 kilometres per hour permitted for a built up area.
[7]
During
cross-examination, Mr Mbokane conceded that, as he was not looking at
his speedometer prior to entering the intersection,
he was unable to
recall at what exact speed he was travelling immediately prior to
entering the intersection. The witness further
pointed out X on
Exhibit A, as the direction from which the truck was travelling and
point Y as the point of impact. He was adamant
that he did observe
the truck as he entered the intersection as he had right of way and
never observed the truck indicating that
it was about to execute a
turn into the intersection. He further conceded that, had he been
keeping a proper lookout, he would
have observed that the truck
driver wanting to execute a turn into the intersection. He testified
that, upon approaching the intersection,
he did not reduce his speed
but qualified his answer that the traffic light facing him was in his
favour and, therefore, he did
not reduce his speed.
[8]
During the examination, he amplified his
evidence-in-chief by testifying that this truck consisted of a horse
and trailer and that
he had collided with this truck on its horse
side.
[9]
The plaintiff then closed his case.
[10]
The defendant closed its case without the tendering of any
viva
voce
evidence.
ON MERITS
[11]
The
plaintiffs evidence was that the collision occurred as he was
traversing through a traffic light controlled intersection where
he
had the right of way. This portion of his evidence is uncontroverted
as no evidence in rebuttal was presented by the defendant.
LEGAL PRINCIPLES AND AUTHORITIES
[12]
In the present matter it is important to
consider the legal principles and some authorities when dealing with
two important aspects
relevant to the matter at hand, namely, a
driver's duty to keep a proper lookout at traffic light controlled
intersections and
his or her duty when executing a turn to the right
at such intersection.
[13]
The following shall be borne in mind:
13.1
if collisions were to be avoided, all
road users should keep a proper lookout;
13.2
the term
"proper
lookout”
varies from case by
case, depending on the circumstances;
13.3
priority of right of way does not confer
an absolute right of way on a driver;
[1]
13.4
a driver entering an intersection when
the traffic light signal is green in his favour has to regulate his
speed and entry so as
not to endanger the safety of traffic which
entered the intersection lawfully and which may still be in the
intersection;
[2]
13.5
a turn across the path of travel of
oncoming or following traffic is an
"inherent
dangerous manoeuvre"
and that a
driver who intends executing such a manoeuvre bears a stringent duty
to do so after satisfying himself that it is indeed
safe and then
choosing the right moment (often called the opportune moment) to do
so.
[3]
It is, therefore, understandable why a driver turning right has a
greater duty toward both the traffic following as well as traffic
approaching from the opposite direction;
13.6
a driver turning to the right must
signal his intention clearly and avoid turning until an opportune
moment presents itself;
[4]
13.7
such a driver about to turn right should
only turn to the right once he has satisfied himself that there is
room enough between
his motor vehicle and the approaching motor
vehicles (in the present instance, the motor cycle) to allow him to
complete the manoeuvre
safely;
[5]
13.8
a driver is entitled to assume that
those who are travelling in the opposite direction will continue in
their course and that they
will not suddenly and inopportunely turn
across the lane of traffic. This assumption may continue until it is
shown that there
is a clear intention to the contrary;
[6]
13.9
drivers who see a driver signalling his
intention to turn right are entitled to assume and accept that that
driver will only execute
his turn to the right at a safe and
opportune moment. This is so because they are not obliged to guard
against the unreasonable
and negligent actions of a driver who
signals his intention to turn to the right;
13.10
it therefore follows that a driver is
only called upon to take precautions against reasonable foreseeable
contingencies and not
the reckless driving of other motorists.
[7]
[14]
Applying
the principles dealt with above to the facts of the matter, the
following becomes apparent:
14.1
Mr
Mbokane testified that, as he was entering the intersection, he
observed the insured driver and the latter gave no indication
that he
would enter the intersection and thereby not wait for the plaintiff
to safely clear the intersection;
14.2
there
was no reason for the plaintiff to except that the insured driver
would execute the right hand turn before he had cleared
the
intersection and thereby not allowing him to travel through the
intersection before he turned right;
14.3
the
plaintiff took all reasonable steps available to avoid the collision.
He applied his brakes, although not to the full extent,
and he
swerved his motor cycle to the left, but all in vain;
14.4
a
greater duty of care rested upon the insured driver than the
plaintiff, given the circumstances of the case, to keep a proper
lookout and to take all reasonable measures to avoid the collision;
14.5
the
plaintiff was entitled to proceed through the intersection in the
manner which he did;
14.6
in
the present case, Mr Mbokane was entitled to assume that the insured
driver would obey the traffic light and turn only when it
was safe
and opportune to do so. In the absence of any rebuttal evidence
presented by the defendant, this court only has the version
of the
plaintiff as to how the collision had occurred;
14.7
in
the circumstances, there was no obligation or duty, in the
circumstances of the plaintiff's case, for him to have kept a better
look out to guard against vehicles that might enter the intersection
and turn to the right across his path of travel, even on Mr
Mbokane's
evidence in circumstances where he had noticed the insured driver
when he entered the intersection.
[15]
Counsel
for the defendant spent a considerable amount of time on the speed at
which the plaintiff was travelling immediately upon
his approach into
the intersection. During closing argument, counsel for the defendant
had argued that if the plaintiff was not
travelling at such a high
speed he would have been able to have avoided the collision, and his
failure to have avoided the collision
is indicative of negligence on
his part.
[16]
Before
this court, however, there was no evidence presented to show that the
collision could have been avoided had the plaintiff
travelled at a
reduced speed.
[17]
On
the evidence presented, as well as the legal principles referred to
above, I am persuaded that the insured driver was indeed
the sole
cause of the collision on the day in question, that the insured
driver entered the intersection at an inopportune moment
across the
path of travel as the plaintiff was traversing through the
intersection.
[18]
The
insured driver is, as a result, therefore, liable to 100% of the
plaintiff's proven or agreed damages.
ORDER
[19]
In the result, I make the following
order:
19.1
the
defendant shall pay 100% of the plaintiff's proven or agreed damages;
19.2
the
defendant shall pay the plaintiff's taxed or agreed party and party
costs, inclusive of the costs of counsel and preparation
of Trial
bundles.
C J COLLIS
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
Appearances:
Counsel
for the plaintiff:
Adv A van Staden
Instructed
by:
Pieter Nel Attorneys
Counsel
for the defendant:
Adv L Mashilane
Instructed
by:
Matabane Inc
Date
of hearing:
11 September 2018
Date
of judgment:
31 January 2019
[1]
S
v Desi
1969
(4) SA
23 (T)
[2]
Santam Insurance Company Ltd v Gouws
1985 (2) SA 630
(A) at
634
[3]
AA Mutual Insurance Association Ltd v Moneka
1976 (3) SA 45
(AD) at 52E
[4]
Welt v Christner 1976 (2) SA 170 (N)
[5]
R v Court
1945 TPD 133
at 134
[6]
Van Staden v Stocks
1936 AD 18
[7]
Rondalia Versekerings Korporasie van
SA
Beperk v De Beer
1976 (4) SA 707
at 711