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South Africa: North Gauteng High Court, Pretoria
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[2019] ZAGPPHC 45
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Maseko v Road Accident Fund (379994/17) [2019] ZAGPPHC 45 (6 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED
CASE NO: 379994/17
6/2/2019
In the matter between:
PAULUS ISAAC
MASEKO
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
ANDREWS,
AJ
1.
This
action concerns a claim for compensation under the Road Accident Fund
Act 56 of 1996 (the Act) for personal injury arising
out of the
driving of a motor vehicle where the identity of neither the owner
nor the driver thereof has been established. The
claim therefore
falls under section 17(1)(b) of the Act
2.
Plaintiff's
particulars of claim state that on March 12
th
2016, he was a pedestrian and that he was injured in a·
collision along the R557 between Willas Farm and Thulamtwana, Gauteng
Province by an unknown insured motor vehicle with unknown
registration.
3.
The
plaintiff pleaded that the sole cause of the said collision was the
negligence of the unidentified insured driver of the unidentified
vehicle who was negligent in the following respects:
a.
He
drove the vehicle at a very high speed under the circumstances;
b.
He
lost control of the vehicle and recklessly drove off the road
inconsiderate of the people who were walking alongside the road;
c.
He
failed to keep a proper and/or adequate lookout;
e.
He failed to apply brakes of the insured
vehicle at all or timeously;
f.
He
failed to avoid a collision when by taking reasonable and proper care
(including but not limited to travelling slowly, swerving)
he both
could and should
g.
He
failed to avoid a collision when by taking reasonable and proper care
(including but not limited to travelling slowly, swerving)
he both
could and should have done so.
4.
The
plaintiff pleaded further that a result of the collision he sustained
severe bodily injuries including fractures to the tibia
and fibula, a
knee injury, lacerations of the anterior distal left leg, a knee
injury and other multiple injuries.
5.
The
defendant opposed the action and in its plea denied that the
collision took place as alleged in the particulars of claim. At
the
trial counsel for the defendant indicated that it no longer disputed
that the collision had taken place.
6.
At
the hearing of the matter the only issue for determination was
whether the defendant is liable for plaintiff's loss or damage
suffered as a result of any bodily injury to himself caused by or
arising from the driving of the said vehicle on 12
th
March 2016.
7.
The
question of liability turns on whether the driver of the vehicle was
negligent and whether such negligence caused the damage
suffered by
the plaintiff. If so, the defendant will be liable to compensate the
plaintiff or the loss or damages suffered as a
result of any bodily
injury to him caused or arising from the said negligent driving. The
quantum of damages and compensation will
thereafter have to still be
determined.
8.
The
plaintiff was the only witness led in order to determine liability of
the defendant. He testified that during that afternoon
that he
attended a soccer function and left the soccer field to return home.
Just before he crossed the street he saw a vehicle
in the distance
moving towards him at high speed. It was still far away from him. He
had already crossed the road when the vehicle
hit him. The road was
tarred with gravel verges where the pedestrians walk and he as on the
gravel when the vehicle hit him from
behind. The vehicle did not stop
after hitting him and he never found out who was driving it.
9.
From
the impact he concluded It was going at high speed. It was not very
dark. He was assisted by strangers who took him to the
Baragwanath
Hospital. He was hospitalised for five to six days and thereafter was
using crutches.
10.
The
plaintiff's evidence is consistent with the statement given to the
police some six months after the collision. He explained
the delay in
making the statement that he was on crutches and only went to the
police once he had made a recovery.
Argument
11.
Counsel
for the plaintiff argued that the plaintiff's evidence had
established that the driver had collided with the plaintiff at
a
point that was on the pedestrian part of the road and for this reason
his conduct was negligent.
12.
Counsel
for the defendant suggested that the witness contradicted himself as
he did not testify that the driver lost control of
the vehicle and
recklessly drove off the road as pleaded. He argued further that
there was contributory negligence on the part
of the plaintiff as he
had seen the vehicle coming at speed and as a result had a duty to
safeguard himself by taking reasonable
steps to ensure that the
vehicle did not hit him. There was no absolute right of way of anyone
in a public road.
13.
Counsel
for the plaintiff rejected this argument stating that no evidence of
contributory negligence had been led. Moreover there
could be no
contributory negligence when the point of impact was on the gravel
pedestrian part of the road.
Analysis
14.
The
plaintiff s evidence was not challenged to any meaningful degree and
was generally credible that he had seen the vehicle approaching
at
speed and was thereafter hit from behind while on the pedestrian side
walk. His evidence was also generally consistent with
statements made
to the police and as recorded on the RAF claim form, as well as the
case pleaded. He did not however testify that
the driver had lost
control of the vehicle as pleaded. The fact that this pleaded ground
of negligence was not established by him
does not make him a
contradictory witness. The basis of his claim was negligence in
one
or more
of the named respects,
including loss of control of the vehicle. His evidence is also
consistent with the driver having lost control
of the vehicle.
15.
On
the balance of probabilities his evidence establishes that he was hit
by a vehicle travelling at speed while he was walking on
the gravel
sidewalk. The vehicle did not stop. The fact that the point of impact
was on the pedestrian side walk is sufficient
to make a finding of
negligence in respect of the conduct of this driver. In the result
the defendant is liable for the loss or
damages suffered by him as a
result of the collision, in terms of section 17(1)(b) of the Act.
16.
The
defendant's pleading concerning contributory negligence was not
confirmed by any evidence, nor was the contention put to the
plaintiff in cross examination that he could have contributed to the
negligence. The proposition that a pedestrian should not only
be off
the road but should take further steps to avoid a speeding vehicle is
not a valid basis for an apportionment for contributory
negligence in
these circumstances.
17.
Accordingly
the driver of the vehicle was negligent in one or more of the
respects pleaded in paragraph 5 in the plaintiff's particulars
of
claim. As a result the defendant is one hundred percent liable for
the plaintiffs proven damages arising as a result of the
collision.
I
make the following order
a)
The
defendant is liable in terms of
section 17(1)(b)
of the
Road Accident
Fund Act 57 of 1996
for my proven loss or damage suffered as a result
of any bodily injury to himself caused by or arising from the driving
of the
insured vehicle on 12
th
March 2016 on the R557 road, Gauteng Province;
b)
Costs
are reserved until the final determination of t e quantum of damages
herein.
A
ANDREWS
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE
HEARD
: 30
JANUARY 2019
DATE
DELIVERED
: 6
FEBRUARY 2019
FOR
THE PLAINTIFF
: ADV M
MAPHUTHA
INSTRUCTED
BY
:
MAMOGOBO ATTORNEYS
FOR
THE DEFENDANT
:
ADV L
MOHLAPAMASWI
INSTRUCTED
BY
: MARIVATE
ATTORNEYS