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[2019] ZAGPPHC 99
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Hundermark v Road Accident Fund (82923/2016) [2019] ZAGPPHC 99 (22 March 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No.: 82923/2016
22/3/2019
In
the matter between:
EJG
HUNDERMARK
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGEMENT
MNGQIBISA-THUSI,
J
[1]
The
plaintiff, Mr Ernest Joseph Geoffrey Hundermark, has instituted an
action against the defendant, the Road Accident Fund (“RAF”)
for damages suffered as a result of injuries sustained in a motor
vehicle collision which occurred on 12 December 2015 at around
02h00
along the Essenhout Street, Phalaborwa, Limpopo.
[2]
At
the time of the collision the plaintiff was the driver of the motor
cycle bearing registration number [….]. The
plaintiff’s
motor cycle collided with a motor vehicle driven by one Maroeska
Harding (“the insured driver”).
[3]
The
plaintiff alleges that the collision was caused by the sole
negligence of the insured driver.
[4]
In
its plea, the defendant denies that the insured driver was negligent
and in the alternative pleads that the plaintiff’s
negligence
contributed to the collision.
[5]
The
parties agreed on a separation of issues in terms of Rule 33 (4) of
the Rules of Court. Accordingly, the matter proceeded
on merits
only and the issue of quantum is postponed
sine
die
.
[6]
Further,
the parties agreed that the documents discovered are what they
purport to be without the content thereof being admitted.
Furthermore that the court would consider only those documents
referred to by a witness in evidence.
[7]
The
following facts are common cause:
7.1
that on 12 December 2015 a collision occurred between the motor cycle
driven by the plaintiff
and the motor vehicle driven by the insured
driver along the Essenhout Street, Phalaborwa, Limpopo.
7.2
that as a result of the collision the plaintiff sustained serious
injuries to his right
lower limb and his wrist;
7.3
that there were eye witnesses to the accident as the plaintiff was
unconscious after the
collision and the insured driver had left the
scene of the collision.
[8]
The
plaintiff’s evidence is as follows. On the day in
question he was at a friend’s house where there was a braai
and
left to go to a club to meet another friend. As a result of the
collision, he is suffering from retrograde amnesia for
the period of
two hours before the collision and can therefore not recall how the
collision happened. He only regained consciousness
in hospital
where he was informed that he had been involved in a collision.
The plaintiff testified that he had tried to
open a case at the local
police station but was told he could not as he could not recall how
the accident occurred. A few
days later his father had enlisted
the assistance of a private investigator to investigate the collision
as there were no eye witnesses.
[9]
According
to the plaintiff his motor cycle was written off as it was damaged
beyond repair. He testified that its side engine
casing, the
right crash bars, right foot pad and right hand mirror were broken;
the handle bars were bent and the front right flap
was broken into
pieces.
[10]
Under
cross examination the plaintiff reiterated that he has no
recollection of going to the club to meet with a friend and how
the
collision happened. The plaintiff denied having taken any
alcohol on the day of the collision as he was at the time part
of the
emergency team on the mines and was on standby. He also
testified that he was wearing his helmet and that although
his wife
told him that he was bleeding from the ears, he had not sustained a
head injury.
[11]
The
next witness called by the plaintiff was Mr Alwyn Jacobus Van Wyk
(“Mr Van Wyk”), a regimental sergeant major at
the 7
South African Infantry Battalion, based in Phalaborwa.
[12]
Mr
Van Wyk testified that during 2015 he was the insured driver’s
supervisor at the base. At the time the insured driver
was a
rifleman. He testified that he got to know about the collision
three days after it happened when he was called by the
town’s
chief traffic officer who inquired from him if he had a person who
owned a vehicle of a certain type and colour.
According to Mr
Van Wyk the traffic officer informed him that an accident had
occurred and at the site of the collision the police
had recovered
certain debris which had a certain blue colour. On checking the
town’s vehicle register, he had discovered
that there were only
two vehicles with that particular colour registered. The police
had checked the first motor vehicle
and found that it had no
damage. On inquiring at the base if there was anyone
driving a motor vehicle with the colour
mentioned, he was informed
that such a vehicle was driven by the insured driver.
[13]
Mr
Van Wyk testified that at the time of his inquiries, the insured
driver was on leave. He telephoned her and inquired from
her is
she had been involved in a collision on the day in question.
The insured driver confirmed that she had been but was
quite vague as
to how the collision occurred save to say that a motor cycle collided
with her. The insured driver further
confirmed that after the
collision she had alighted from her vehicle, checked the plaintiff
who was lying on the ground and found
that he was still breathing.
She then left the scene. She also confirmed that she did not
assist the plaintiff nor
did she report the collision to the police.
The insured driver informed him that she left the scene of the
accident as she
did not want to get involved. Further the
insured driver admitted that she had drunk three glasses of brandy
and coke that
evening. The insured driver further told him that
she had reported the accident to the police in Port Elizabeth and
gave
his the name and contact details of the policeman and he
forwarded the details to the local police. Mr Van Wyk testified
that he learnt that actual the insured driver did not report the
accident but merely had a discussion with the police officer.
[14]
Mr
Van Wyk further testified that the insured driver informed him that
her motor vehicle was being repaired in Port Elizabeth and
sent him
photos she had taken of the damage to her motor vehicle. From
the photos, he noticed that the insured driver’s
motor vehicle
had a big dent on the driver’s door, that a step at the trunk
of the vehicle was missing and that the rear
right hand tyre was
missing some pieces.
[15]
The
next witness called by the plaintiff was Mr Eugene Engelbrecht, the
private investigator employed by the plaintiff’s father.
Mr Engelbrecht admitted that he was not an expert but was merely
requested to investigate the accident as the police were unhelpful.
He testified that from his investigation, he suspected that a third
party was involved as the accident scene was tempered with.
He
further testified that at the accident scene he some debris which was
blue aquamarine in colour. He later learnt from
the traffic
chief that the police had made contact with the owner of the blue
aquamarine vehicle which was involved in the collision.
On
inspection of the scene he discovered vehicle marks and an oil spill
from the road to where the plaintiff is said to have landed.
Mr
Engelbrecht testified that a certain Mrs Audrey Khoza had informed
him where the plaintiff was lying after the accident and
that she had
called the police and the ambulance after the collision happened.
Further, Mr Engelbrecht pointed out from the
sketch plan drawn by the
parties as to where he surmises the point of impact might have been.
According to Mr Engelbrecht,
the plaintiff must have been travelling
from west to east along Essenhout Street as he found debris on the
side on which the plaintiff
had fallen. Furthermore Mr
Engelbrecht testified that he withdrew from the case after the police
decided to take over the
investigation.
[16]
The
defendant did not call any witnesses. The defendant has not
presented any version as to how the accident happened except
what is
stated in a pre-trial minute dated 1 August 2018 in which defendant’s
legal representative undertook to revert to
the plaintiff on its
version.
[17]
The
test for determining negligence involves the questions whether (a) a
reasonable person in the defendant’s position would
foresee the
reasonable possibility of his or her conduct causing harm resulting
in patrimonial loss to another; (b) would take
reasonable steps to
avert the risk of such harm; and (c) the defendant failed to take
such reasonable steps
[1]
.
[18]
It
is not in dispute that the plaintiff bears the onus of proving on a
balance of probabilities that the injuries he sustained are
as a
result of the negligence of the insured driver.
[19]
The
plaintiff came across as credible witness. There is no evidence
as to how the collision might have occurred.
[20]
It
is common cause that there is no eyewitness to the collision. The
plaintiff has testified that he has no of the period relating
to two
hours before the collision. He is only recollection of the
period before the accident is that at some stage during
the day in
question he was visiting a friend’s place. As a result of
the accident the plaintiff was unconscious at
the scene of the
accident. It can therefore not be expected of the plaintiff to
give evidence on what transpired before the
accident. On the
other hand, the insured driver was not called by the defendant to
give evidence as to how the accident occurred.
According to Mr
Van Wyk the insured driver is still stationed at the military base in
Phalaborwa.
[21]
In
Galante
v Dickinson
[2]
the court heard that:
“
It is not advisable to seek to
lay down any general rule as to the effect that made properly be
given to the failure of a party
to give evidence on matters that are
unquestionably within his knowledge. But it seems fair at all events
to say that in an accident
case where the defendant was himself the
driver of the vehicle the driving of which the plaintiff alleges was
negligent and caused
the accident, the court is entitled, in the
absence of evidence from the defendant, to select out of two
alternative explanations
of the cause of the accident which are more
or less equally open on the evidence, that one which favours the
plaintiff as opposed
to the defendant”.
[22]
There
is evidence by the plaintiff and his witness Mr Van Wyk that the
plaintiff’s motorcycle was damaged on the right hand
side.
Further, according to Mr Van Wyk’s evidence, he gleaned
from photos taken by the insured driver of the damage
to her motor
vehicle that it was damaged on its right hand side. From these
facts it can be inferred that the plaintiff and
the insured driver
were traveling in opposite directions. Further, according to
Mr. Engelbrecht, the debris he found when
he inspected the accident
scene was found on the side where the plaintiff was lying. In
the absence of any evidence from
the defendant contradicting the
evidence presented on behalf of the plaintiff, it can be inferred
that the accident or the point
of impact was on the lane travelled by
the plaintiff. As a result it follows that the inference to be drawn
is that the insured
driver was the cause of the accident in that she
must have veered onto the lane travelled by the plaintiff.
[23]
Taking
into account all the evidence before me and in the absence of any
contradicting evidence from the defendant, I am satisfied
that the
collision was caused by the negligent driving of the insured driver
and that the defendant is therefore liable for loss
suffered by the
plaintiff as a result of the collision. No evidence was
presented by the defendant with regards to the alleged
contributory
negligence of the plaintiff.
[24]
In
the results, an order is granted in terms of the draft order marked
“X”.
NP
MNGQIBISA-THUSI
Judge
of the High Court
For
Plaintiff: Adv JHP Hattingh (instructed by VZLR Inc)
For
Respondent: Adv M L Matlala (instructed by Maluleke Msimang &
Associates)
[1]
Kruger v Coetzee
1966 (2) SA 429
(A).
[2]
1950 (2) SA 460
(A) at 465.