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[2019] ZAGPPHC 38
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Van Bosch v Road Accident Fund (94751/16) [2019] ZAGPPHC 38 (22 February 2019)
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Certain
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION ,PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO: 94751/16
22/2/2019
In
the matter between:
ADELE
VAN BOSCH
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MOSOPA.
AJ:
INTRODUCTION
[1] The
plaintiff, Ms Adele van Bosch, an adult female person, was involved
in a motor
collision on 25 September 2013 at approximately16:30, at
or near the T-junction of Alwyn Street and Volkspele Drive,
Pellissier,
Bloemfontein. At the time of the collision the plaintiff
was the driver of the motor vehicle with registration numbers and
letters
[….]collided with the motor vehicle driven by N V
Boshoff
(“insured driver”),
with registration
number and letters [….] ("insured vehicle").
[2]
The plaintiff is now suing the defendant
(“Fund”)
in terms of the provisions of section 170 of the Road Accident
Fund Act, Act No 56 of 1996 ("Act'),as a result of this
collision,
for bodily injuries she suffered.
[3]
At the commencement of the proceedings the parties agreed on a
separation of the issue of merit and issue of quantum in terms of
section 33(4) of the Act and further agreed that the issue of quantum
be postponed
sine die.
I then ordered such separation in terms
of section 33(4) of the Act.
FACTUAL BACKGROUND
[4]
The plaintiff avers in paragraph 5 of her particulars of claim
as follows:
" 5.
The sole cause of the
accident was the negligence of the insured driver, which
was
negligent in one or more of the following respects:
5.1
The insured driver:
5.1.1
failed to keep
a
proper and/or adequate lookout;
5.1.2
failed
to keep the motor vehicle he was driving under proper control;
5.1.3
failed
to ensure that the motor vehicle was roadworthy;
5.1.4
failed
to pay due regard to other road-users and more specifically to that
of the plaintiff, by driving in such a way resulting
in the vehicle
being driven by him to collide with the vehicle being driven by the
plaintiff;
5.1.5
failed
to pay due regard to the prevailing conditions on the road he was
travelling on;
5.1.6
failed to
pay due regard to the rights, safety and wellbeing of other
road-users and more specifically that of the plaintiff;
5.1.7
failed
to prevent the accident when, by the exercise of due and reasonable
care he could and should have done so;
5.1.8
failed
to ensure that the motor vehicle is in good working order and that
the motor vehicle's tyre and brakes are in good order;
5.1.9
failed
to apply the brakes of the motor vehicle he was travelling in
sufficiently alternatively timeously further alternatively
at all;
5.1.10
failed to prevent the
collision where he could have done so with the exercising of
reasonable care and skill;
5.1.11
drove too fast given
the prevailing road conditions."
[5] At
paragraph 6 the plaintiff averred as follows:
"6.1 As
a
result of the collision and aforesaid
negligence by the insured driver, the plaintiff sustained inter alia
the following injuries
(hereafter 'the injuries’)::
6.1.1 disc herniation cervical spine at
level
C5/C6
vertebrae."
EVIDENCE
[6] The
plaintiff testified in this matter and called one witness Ms Sune
Pike her daughter, who was travelling with her as her passenger on
the day of the collision. The defendant closed its case without
calling any witness.
[7] The plaintfif, Ms
Adele van Bosch, testified that on 25 September 2013 she
went to a
filling station, to fill petrol in her motor vehicle a white Toyota
Yaris as she was supposed to start work the following
day. The
weather on that day was clear and visibility was good and was
traveling on the tarred road, which was in a good condition.
As she
was coming out of the shopping complex she drove into a stop sign and
stopped her vehicle. The road she was supposed to
drive in after
stopping, is a road with two lanes travelling in the same direction,
travelling from East to West. As she intended
turning right, she
could not use that road but she had to pass it drove straight into a
slipway so that she can execute her turn
to the right on another way
with two lanes travelling in the same direction. As she was still
stationary at the stop sign a red
VW Chico motor vehicle collided
with her vehicle by hitting her vehicle from the front and the
driver's door, which could not open
as a result of the collision.
There was nothing she could do to avoid the collision as her vehicle
was stationary at that stage.
She then sustained injuries and was
operated on her neck.
[8] In
cross-examination, she testified that after stopping at the stop
sign,
she looked to her left and her right. She could not see traffic
properly as there was another vehicle turning into the slipway and
the other vehicle was stationary on the side of the road. She was
wearing spectacles on that day. She further testified that the
insured driver had a right of way and was travelling on the right
hand of the road that travels past the stop sign. She did not
see the
insured vehicle and it was put to her that the reason that she could
not see the insured vehicle is that she did not keep
a proper
lookout. It was further put to her that she drove straight into the
stop sign not stopping and collided with the insured
driver. That is
why her vehicle was damaged on the right front side and the insured
vehicle on the left front side.
[9] After the
testimony of Ms Van Bosch the plaintiff called Ms Sune Pike as a
witness. She confirmed that the plaintiff is her mother and that she
was travelling with her mother in the same vehicle on 25 September
2013. She testified that after coming out of the shopping centre, her
mother who was the driver of the vehicle turned left. At
that stage
she was looking at the grocery bags and when she looked up at her
mother, she saw a vehicle
"slamming"
brakes. She was
at that stage seated on the front passenger seat. When the collision
occurred their vehicle was stationary at the
stop sign and when she
looked at her mother she saw the red VW Chico vehicle coming to them.
Her mother could not do a thing to
avoid the collision as their
vehicle was stationary. After the collision her mother's door could
not open and the front part of
the insured vehicle was damaged.
[10]
In cross-examination, she testified that when she looked up and heard
brakes screeching they
were still at the stop sign and that happened
very fast. She only saw the vehicle after the impact. She cannot tell
why the vehicle
which was travelling on the right side lane of the
road passing in front of the stop sign ended up coming to their
vehicle. She
is not hundred percent sure that her mother was keeping
a proper lookout and cannot say with hundred percent certainty how
the
collision occurred.
[11] After the evidence of Ms
Pike the plaintiff closed her case and the defendant also closed
its
case without calling witnesses.
LEGAL
PRINCIPLE
[12] The
onus
is on the
plaintiff to prove, on a balance of probabilities, negligence on the
part of the insured driver. (See
RAF v Mgweba
2005 (1) All SA
646
(SCA).)
[13] The applicable test is how a
reasonable person would have acted under the same specific
conditions
prevailing at the time of the accident, as experienced by the driver
of the motor vehicle whose conduct is being scrutinised.
(See
Minister of Defence v African Guarantee and Indemnity
Co
Ltd
1943 AD at 150.)
[14] In
Norwich Union Fire
Insurance Society Ltd v Chiduku
1971 (1) SA 599
(RA) Beadle CJ
stated:
"It is as well to point out first the high duty
of care that sits upon
a
motorist
who turns across the path of oncoming traffic in an intersection.
This high duty of care has been stressed in
a
number of cases, referred to by the learned
Judge, one of the more recent of which is the case of R v Clarke
(judgment no. AD 174168).
The general principle laid down in the
cases is that
a
motorist
should not proceed to turn
across
the
path of oncoming traffic unless and until he
is
quite satisfied that he
is
safe to do
so ..."
[15] The fact that the driver in
the street controlled by a stop sign is bound to stop before
entering
the intersection, does not entitles the driver in the through street
to completely ignore a vehicle approaching a stop
sign. (See
Protea
Assurance
Co
Ltd v LTA Building (SWA) Ltd
1988 (1) SA 303
(A).)
EVALUATION
OF EVIDENCE
[16] A proper look at the
sketch-plan detailing the circumstances pertaining to how the
collision
occurred, signed by both the plaintiff and the insured
driver reveals the following:
16.1 That motor vehicle "A"
which was driven by the plaintiff was turning right and the
insured
driver was proceeding straight on his lane of travel;
16.2 The quality of the road surface
was good, dry, with a clear weather and the collision happened
at
daylight;
16.3 Under obstruction, there was
another vehicle which was identified as vehicle "C",
which
unfortunately drove away after the collision; and
16.4 The plaintiff's vehicle was
damaged on the right front and the insured driver's vehicle damage
on
the left front.
[17]
Ms Pike's evidence is not of much assistance to me in determining how
the collision occurred
for the following reasons:
17.1 She was looking at the grocery
bags;
17.2 All of a sudden she heard brakes
screeching;
17.3 She does not know how it happened
that the insured vehicle came to their vehicle;
17.4 She only saw the insured vehicle
after the impact and she cannot say with certainty how the
collision
occurred.
17.5 The insured driver did not testify
in his matter and as already remarked about the evidence
of Ms Pike,
I am left with the evience of the Plaintiff to scrutinize as to who
is the cause of the collision.
[18] Looking at the
evidence of the plaintiff, when she arrived at the stop sign, there
was a vehicle
on the side which was obstructing her proper view of
traffic passing in front of the stop sign. In her own words she said
she could
not properly make an observation of traffic travelling on
that road because of this stationary vehicle.
[19] It is my considered
view that faced with such circumstances it was not safe for the
plaintiff
to move away from the stop sign under such circumstances it
was required of the plaintiff to stop at the stop sign and not move
until should traffic was clear for her before interfering the road in
front of the stop sign.
[20] In examining the
version presented by the plaintiff that the insured vehicle collided
with her
vehicle while her vehicle was stationary at the stop sign
that cannot be probable.
[21] If that was the true
position, one would have expected the damage on the plaintiffs
vehicle to
be on the side of her vehicle and damage on the insured
vehicle on the front. No damage is mentioned on the Plaintiff's
drivers'
side of the vehicle in the sketch-plan, despite the
Plaintiff testifying that she could not open her door after the
collision,
because it was damaged.
[22] It is therefore my
considered view that the plaintiff drove away from the stop sign,
without
satisfying herself whether or not it was safe for her to move
away from that position. Then colliding with the insured vehicle
which was travelling on the far right hand of the insured driver's
lane of travel. Hence the damage was on her right front of her
vehicle and the insured vehicle damaged on its front left part.
[23] Accordingly, I am of
the opinion that the plaintiff failed to keep a proper lookout,
failed to
exercise reasonable care and failed to take reasonable
steps to avoid colliding with the insured driver. There is
insufficient
evidence before me to come to the conclusion that the
insured driver was negligent and he is the sole cause of the
collision.
ORDER
[24]
I therefore make the following order:
24.1 The plaintiffs claim is dismissed.
24.2 The plaintiff is ordered to pay the costs of the
defendant.
M J MOSOPA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
APPEARANCES
For
plaintiff
: Adv J
Bischoff
Instructed
by
:
Kritzinger Attorneys
For
defendant
: Adv S K
Mojamabu
Instructed
by
: Morare
Thobejane Inc
Date of
hearing
:
8
November 2018
Date of
judgment
:
22
February 2019