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[2019] ZAGPPHC 179
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Ismail v Road Accident Fund (2018/15259) [2019] ZAGPPHC 179 (23 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
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO. 2018/15259
23/3/2019
In
the matter between:
ISMAIL
RIAZ
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
NOCHUMSOHN
(AJ)
1. This
is an action instituted by the Plaintiff against the Road Accident
Fund, arising out of injuries sustained in a motor vehicle collision
that took place on 10 May 2017.
2.
By
agreement between the parties, the issues were separated in
accordance
with Uniform Rule of Court 33(4), thus the trial proceeded
only on the question of liability, with the remaining issues relating
to the quantification of the Plaintiff's claim to be postponed
sine
die.
3. Prior
to the commencement of the hearing on 15 May 2019, counsel for both
the Plaintiff and Defendant jointly informed me, in chambers, that
the following is common cause between the parties:
3.1.
The Plaintiff, Mr Riaz Ismail, was driving a white Volkswagen Polo
behind
a silver Kia, driven at the time by Ms Anneri Swanepoel, who
in turn was driving behind a light delivery truck;
3.2.
The collision took place at the intersection of Hendrik Verwoerd
Drive
and Hippo Avenue, in Centurion;
3.3.
At the time of the collision, the robot was green in favour of all
three
vehicles, that is to say, the truck, the Kia and the Polo;
3.4.
Prior to entering the intersection, the driver of the truck braked
and
came to a sudden stop. Swanepoel, who was driving the Kia, which
was travelling behind the truck, braked and came to a stop without
hitting the truck, but the Polo collided into the rear of the Kia,
pushing it into the truck;
3.5.
An unidentified taxi disturbed the driver of the truck causing the
truck
driver to stop.
4.
How the presence of the unidentified taxi came about, from where it
came and the manner in which it "disturbed" the truck
driver, remained an issue for determination, suffice it to say
that
it was common cause that the presence of an unidentified taxi
"disturbed" the truck driver.
5.
At the commencement of the trial, I placed the above information on
the record, which the counsel for both Plaintiff and Defendant
confirmed.
6.
I was informed by the Plaintiff's counsel that the truck driver had
been subpoenaed but was not available to testify and that neither
party would be calling the truck driver in the result.
7.
In his opening address, counsel for the Plaintiff informed me that
he
would base the Plaintiffs case upon proving that the collision was
caused by both the negligence of the unidentified taxi driver
as well
as that of the truck driver, who would not be called.
8.
Against the aforementioned background, counsel for the Plaintiff
called both the Plaintiff as well as an accident reconstruction
expert, Professor Gerald Lemmer, to testify, and the Defendant called
the driver of the Kia, Anneri Swanepoel.
9.
The Plaintiff testified that:
9.1. He was
a twenty-eight year old, employed as a Principal and English Educator
at the Enderun
College;
9.2. On the
day of the collision, 10 May 2017 and at approximately 8.30 in the
morning, he was
driving the white Polo with registration number DML
101 L from Erasmia to Centurion on the way to take his car for its
first year
service;
9.3. He was
approaching the intersection of Hendrik Verwoerd and Hippo, the
traffic conditions
were busy as it was peak hour, and the robot was
green in his favour;
9.4. He was
travelling between 55 to 58 kilometres per hour, which he said was
his average speed
as he was trying not to go over the speed limit;
9.5. He was
travelling behind a silver Kia, which in turn was driving behind a
truck;
9.6. As he
was driving, the Kia in front of him stopped. Unfortunately, he was
not able to stop
and collided with the rear of the Kia;
9.7. Apart
from applying his brakes, he could not recall whether there was
anything else that
he could have done to avoid the collision. He
could not recall if there were vehicles on his left, and later,
during the course
of his cross-examination he said that he could not
swerve to the right in the light of oncoming traffic;
9.8. After
the collision he phoned his mother and spoke to the truck driver who
informed him
that he (the truck driver), hit "dead brakes"
in order to avoid a collision with an unidentified taxi that had
skipped
the red robot;
9.9. He did
not see the taxi, but in the course of his substantial cross
examination and
re-examination, it emerged that he could not see what
was in front of the truck, as his vision was obliterated by the
truck. He
could however see that the robot was green in his favour,
as the robots were on the sides and not directly in front of him;
9.10.
He did not see that the
truck had stopped. He only saw that the Kia in front of him suddenly
stopped;
9.11. He testified that there
was no reason for him to foresee that the car in front of him would
suddenly stop;
9.12. He could not remember
whether or not he had maintained a proper following distance;
9.13. His eyes were glued to
the Kia in front of him;
9.14. The distance between
him and the Kia, at the time that he applied brakes, was a normal car
length;
9.15. He could not recall
whether or not he skidded;
9.16. Weather conditions were
good;
9.17. He had been a licensed
driver since 2016;
9.18. He would always
anticipate and be observant whilst driving;
9.19. He was observant on the
morning of the accident;
9.20. He did not know if he
was driving at a higher speed than that of the Kia;
9.21. He could not recall
whether or not he spoke to the driver of the Kia after the collision;
9.22. It was put to him that
the Kia driver, Ms Swanepoel would testify that immediately after the
collision the
truck driver spoke to both her and the Plaintiff and
informed them that a taxi encroached upon him, which is why the truck
driver
had stopped. The Plaintiff said he could not comment but the
truck driver had merely told him that he had been "disturbed"
by the taxi.
Notwithstanding fierce
cross-examination, the Plaintiff stood by his testimony.
10. Under
cross-examination, the Affidavit that he signed in terms of Section
19(f) (pages
6 to 8 of the merits bundle) was drawn to the
Plaintiff's attention, and in particular paragraph 6 thereof, which
reads:
"I confirm that there was
nothing that I could have done to avoid the collision."
He was pertinently asked the
question as to how it came about that four months after the
collision, the aforegoing was his evidence
on affidavit, whereas in
his evidence in chief, he testified to having applied the brakes. The
Defendant's counsel called for an
adverse inference to be drawn
against the Plaintiff by virtue of this inconsistency. I do not view
this statement as one in conflict
with the Plaintiff's evidence. The
statement merely lacks content to the effect that it does not contain
the words
"apart from applying brakes",
there was
nothing that he could have done. In the nature of things these
statements are prepared by legal representatives and signed
by the
parties. While the statement is lacking, it does not oust the
vive
voce
evidence from the plaintiff that he did "apply dead
brakes" and there is no reason to discredit him or draw any
adverse
inference.
11. In
re-examination, the Plaintiff was asked by his counsel if he had
retained his consciousness
throughout, to which he replied that he
had experienced a seizure on the side of the road and that there was
an initial diagnosis
of concussion and thereafter epilepsy. This
evidence was not brought to light in chief. Counsel for the Defendant
initially objected
to this evidence upon the grounds that it should
have emerged in chief. Nevertheless, I allowed such evidence to be
adduced in
re-examination and gave counsel for the Defendant an
opportunity to cross-examine upon such evidence, which opportunity
was declined.
12.
My reason for allowing such evidence is that it speaks to the
Plaintiff's inability
to clearly recall events. Initially, I had the
impression that the Plaintiff was evasive as I could not understand
why he could
recall little detail, but this was not the case given
that he did experience a seizure after the collision, which fact only
came
to the fore in re-examination. It thus stands to reason that he
could not recall much. This left me with a last impression that
the
Plaintiff was a sincere and honest witness who did not try to mislead
the court in any way.
13.
Counsel for the Plaintiff then called Professor Gerald Lemmer as an
expert witness
who had filed a one page report dated 25 April 2019
which was on record at page 1 of the Plaintiff's expert bundle and
which report
was admitted by the Defendant.
14.
With reference to the series of photographs which form part of the
trial bundle, Professor
Lemmer testified that the probabilities were
that the unidentified taxi had swerved from the left lane in front of
the truck and
encroached upon its path of travel, causing the truck
driver to suddenly stop. One could see from the photographs taken
immediately
after the collision that the truck had stopped at least
three car lengths before the intersection. This gave credence to the
Professor's
hypothesis.
15. The
Professor testified further that:
15.1. whilst both the truck
had managed to stop without colliding with the unidentified taxi, and
Swanepoel driving
the Kia had managed to stop initially without
colliding with the truck, it would not have been possible for the
Plaintiff, who
on his own version had been travelling at 55 to 58
kilometres per hour to have avoided colliding with the Kia, given
that at the
point of braking, there was only a single car distance of
some four to five metres between the Polo and the Kia;
15.2. at such speed, one
would require far more than 4 to 5 metres of space in order to stop.
He testified that
reaction time would be approximately one and half
seconds before braking, and at that speed, one would cover at least
25 metres
in one and a half seconds. Thus, it would have been
impossible to avoid the collision given the Plaintiff's following
distance;
15.3. the Plaintiff was
probably travelling faster than the Kia, which was able to stop
without hitting the truck;
15.4. whilst the Plaintiff
was probably not maintaining an adequate following distance, in high
density peak hour
traffic, it is almost impossible to maintain a safe
following distance. He ascribes as a reason for this that as soon as
one falls
back to maintain a safe following distance, invariably
another driver will cut in front and close the gap. In the result,
the Professor
testified that nobody maintains an adequate following
distance in high traffic density;
15.5. from a look of the
photographs, the damage to the vehicles was insubstantial and the
Plaintiff was probably
travelling at no more than 20 kilometres per
hour at point of impact. In the result, the Professor did not regard
this as a high-speed
collision. The Professor put this down to the
Plaintiff having closed the gap between him and the Kia somewhat
faster than the
Kia had been closing the gap between it and the
truck. This version also gave credence to the Plaintiff's testimony
at having applied
dead brakes, inasmuch as the Plaintiff would have
slowed down from 55 kilometres per hour to 20 kilometres per hour at
point of
impact.
15.6. it would have been
safer for the Plaintiff to have travelled at a slower speed and to
have maintained a
safer following distance.
16.
The Plaintiff then closed its case whereupon the Defendant called
Anneri Swanepoel,
the driver of the Kia, as its only witness.
17.
In chief, Swanepoel testified that she was travelling at no more than
40 kilometres
per hour. This was contrary to her Witness Statement
filed of record which reflected her speed as plus minus 50 kilometres
per
hour. Counsel for the Plaintiff objected to this evidence being
led on the basis that the Witness Statement was common cause and
admitted. In response, counsel for the Defendant correctly pointed
out that in the Witness Statement the speed of 50 kilometres
per hour
was expressed as a plus-minus speed, which caters for her direct
evidence of a speed of 40 kilometres per hour. I was
prepared to
accept this evidence on such basis, which was consonant with that of
the Professor, who testified that Swanepoel probably
was driving
slower than the Plaintiff, who on his own version testified that he
was driving at 55 to 58 kilometres per hour.
18.
Whilst there is not much of a difference between 40 kilometres per
hour and 55 to
58 kilometres per hour, the difference of some 15 to
18 kilometres per hour can be fairly significant in the ability to
bring about
an emergency stop and the damages that would ensue.
19.
Swanepoel testified that she had been maintaining a safe following
distance between
her and the truck, that the truck suddenly stopped
and that as a result of the safe distance between her and the truck
she was
able to stop without colliding with the truck. She testified
that her car, the Kia was struck thereafter in the rear by the Polo
driven by the Plaintiff and pushed into the back of the truck.
20.
Swanepoel testified further that it was bumper to bumper traffic,
that the robot was
green for her and that
"we
all accelerated as it was our time to go".
Thereafter
the truck suddenly applied brakes very sharply and she managed to
stop behind him. She could see the truck's brake lights,
which the
Plaintiff could not as they as they were obliterated by the Kia.
21.
Swanepoel testified that the truck driver had informed both her and
the Plaintiff
(although the Plaintiff could not remember this) that
he had been disturbed by an unidentified taxi, although she too had
also
not seen the taxi.
22.
Thereafter counsel for the Defendant closed his case. From the
evidence presented,
I am satisfied that neither Swanepoel, nor the
driver of the truck, were in any way to blame for the collision. It
is quite clear
that the driver of the truck had managed to stop the
truck and bring it to a halt in order to avoid colliding with the
offending
unidentified taxi, which had encroached upon the truck
driver's path of travel.
23.
It is equally clear that Swanepoel was able to stop the Kia, without
initially colliding
with the truck. She only collided with the truck
subsequently, as a result of having been hit in the rear by the
Plaintiff's vehicle,
which pushed the Kia into the back of the truck.
I am satisfied that Swanepoel was in no way negligent and was in no
way the cause
of the collision.
24.
It is common cause that the robot was green for all three vehicles,
that is to say
the truck, the Kia and the Polo which the Plaintiff
was driving.
25.
On the evidence presented,
coupled with the common cause facts, it is clear that but for the
encroachment or disturbance by the
unidentified taxi, the driver of
the truck would not have braked and come to a sudden halt. In turn,
but for the truck having come
to a sudden halt, Swanepoel would not
have braked and brought the Kia to a sudden halt. By logical
deduction, but for the Kia having
come to a sudden halt, the
Plaintiff would not have collided with the Kia.
26. Therefore,
I find that the primary cause of the collision was attributable to
the negligent
driving of the unidentified taxi, who clearly caused
the truck driver to come to suddenly brake sharply and to come to a
sudden
halt in order to avoid colliding with such taxi. But for this
occurrence, all three vehicles, that is to say, the truck, the Kia
and the VW Polo would have safely crossed the intersection and the
collision would not have taken placed.
27. The
only aspect left for determination is:
27.1. whether or not the
Plaintiff was negligent in having caused the Polo to collide with the
rear of the Kia,
pushing the Kia into the rear of the truck; and,
27.2. if so, whether such
negligence was the sole cause of the collision, and, if not, the
extent to which such
negligence falls to be apportioned between the
Plaintiff and that of the unidentified taxi driver.
28. From the
evidence presented, the Plaintiff was clearly driving too fast for
the conditions,
albeit not by much. He was driving within the speed
limit, but nevertheless at an excessive speed for the traffic
conditions, the
peak hour and the density of traffic at the time. In
addition, I find that the Plaintiff had failed to observe sufficient
a following
distance or to have kept a general proper lookout, such
so as to have enabled him to bring the Polo to a halt without
colliding
with the Kia in front of him. In the result, I find that
the Plaintiff too, was negligent in causing the collision.
29. Whilst
it is quite clear that the unidentified taxi driver was the
predominant and
manifest cause of the collision it is incumbent upon
a driver of a motor vehicle to at all times maintain a safe and
adequate following
distance, a safe and adequate speed in the
prevailing circumstances, to anticipate driving conditions and the
propensity for negligence
on the part of other road users which may
pose a hazard or obstruction. The Plaintiff failed to drive in a
sufficiently anticipatory
manner, failed to maintain an adequate
following distance, between him and the Kia in front of him and
failed to maintain a safe
speed in the prevailing circumstances.
30. In
closing argument, counsel for the Plaintiff drew my attention to the
unreported
judgment of
Van der Linde
J
in the matter of
Bainton
v The Road Accident Fund,
High Court, Gauteng Local Division, at Johannesburg, Case Number
4559/2016. Counsel rightfully contended that the facts in Bainton
were similar to the case
in casu.
In
the Bainton case, and at paragraph 4 of the judgment of
Van
der Linde J,
the following was
noted:
" As already indicated,
the plaintiff testified that he was travelling on
a
clear day at
around 13h25 in the middle lane in an easterly direction at about 80
kph two and
a
half car lengths
behind the vehicle in front of him, when it suddenly swerved out to
the right. The stationary Cambi confronted
him, but it all happened
too quickly for him to take any evasive action; in any event, he
could not have swerved to the right,
because there were then vehicles
in that lane."
31.
Van
der Linde J
went on to elaborate
that there were only really two points in issue, the first being
whether the driver of the Combi was negligent,
and if so, whether the
Plaintiff too was negligent. In considering whether or not the
Plaintiff was negligent,
van der
Linde J
noted that a driver in the
position of the Plaintiff was required to maintain such a distance as
would enable him to stop, or swerve
to avoid colliding with the
vehicle in front of him, were it to suddenly stop. The Plaintiff was
following at about two and a half
car lengths behind the vehicle,
which the parties accepted to be about seven metres. At 80 kilometres
per hour (the Plaintiff's
speed) at about 22.2 metres per second,
even with a reaction time as short as, 5 seconds,
van
der Linde J
found that it was
understandable that the Plaintiff would not be in a position to avoid
the collision. There was simply no space
to swerve out and not enough
time or space to brake in time.
32. At
paragraph 11 of the Bainton judgment,
van
der Linde J
said:
"[11]
The conclusion cannot be avoided that on the evidence
as
presented the
plaintiff
was
following too hot
on the heels of the vehicle in front of him, and that he did not
leave sufficient berth to deal with a sudden
emergency. To that
extent, he was causatively negligent in relation to the collision."
33.
Van
der Linde J
went on to add at
paragraphs 13 and 14 of the Bainton judgment, the following:
"[13]
Both parties' responsible drivers were accordingly negligent. The
question of an appropriate
apportionment arises. It seems to be me
incontestable that the presence of the Cambi on the road was the
cause of it all. The Plaintiff
could have avoided the collision, but
his remissness falls into a very different, and lower, category than
that of the driver of
the Cambi.
[14]
Apportionment is a difficult endeavour, because it is subjective and
requires that a percentage
must be placed on what is essentially a
value judgment of the respective degrees of remissness of two
individuals in circumstances
where the court itself was not present.
Doing the best I can, I believe that 20/80 in favour of the plaintiff
is fair.
34. Against
the backdrop of Bainton and the 20/80 apportionment held therein in
favour
of that Plaintiff, counsel for the Plaintiff contended that
were I to apply an apportionment of damages, I ought to follow the
rationale of
van der Linde J
in
accordance with Bainton, given that the facts relating to that
collision were similar to the facts in the case
in
casu.
35. Against
this argument, counsel for the Defendant drew my attention to the
unreported
judgment of
Raulinga J
in
this division in the case between
N
Felix v Road Accident Fund
,
Case number 29586/13. In the
Felix matter, the Plaintiff was driving a motorcycle at a speed of
approximately 60 kilometres per
hour on a dry road, in clear weather
conditions, with no external obstructions upon the road. It was
common cause that the insured
driver and the Plaintiff were involved
in the collision wherein they were travelling in the same lane (the
inner lane) and in the
same direction. Both of them were travelling
in a westerly direction upon Lynnwood Road. Only the Plaintiff
testified at such trial.
The Plaintiff's evidence was that he was 4.5
metres away from the insured driver's vehicle when he noticed that it
slowing down
because the insured driver had applied brakes. In the
Plaintiff's mind, he thought that the insured driver was merely
reducing
speed and would then proceed with his driving. In the light
of this, the Plaintiff reduced his speed. When the Plaintiff was 2.5
metres away from the insured driver's vehicle, he realised that it
had stopped in the middle of the road without prior warning.
The
Plaintiff tried to avoid the accident by swerving, but collided with
the rear end of the insured driver's vehicle. In paragraph
12 of the
Judgment,
Raulinga J
notes
that the Plaintiff persisted during cross-examination that he was not
driving at a high speed and stood by the point that
he made in his
evidence in chief that he was driving at plus minus 60 kilometres per
hour. At paragraph 14 of the Judgment, it
is noted that the Plaintiff
conceded that he did not maintain the required safe following
distance, which concession was made only
after the court had put
questions to him, relating to his failure to have observed the safe
following distance rule. On the Plaintiff
s own version in
Felix,
he was not maintaining the required
safe following distance and only applied brakes when he was 2.5
metres away from the insured
driver's vehicle, resulting in the
collision with its rear end.
36. Relying
on the general approach to adopt when dealing with rear end
collisions, as
set out by
H B
Kloppers
in
The
Law of Collisions in South Africa (7
th
Edition)
page
78 which reads:
"A driver who collides
with the rear of
a
vehicle in front
of him is prima facie negligent unless he or she can give an
explanation indicating that he or she was not negligent."
Raulinga J
found
that Felix could not escape liability based on sudden emergency by
the insured driver having applied brakes and creating an
untenable
situation for Felix to have avoided the collision.
37. At
paragraph 27 of the Felix judgment,
Raulinga
J
did say:
"I agree with the
submissions of the Plaintiff that in certain circumstances, his
explanation may offset his failure to keep
the required following
distance."
However,
Raulinga J
went on
to add at paragraph 28 of the judgment:
"I have already intimated
in this judgment above that the Plaintiff bears the onus to prove on
a
balance
of probabilities that the insured driver was negligent and that the
negligence was the cause of the collision from which
he sustained the
bodily injuries. There is no onus on the Defendant to prove anything.
Even in the instance where the Defendant
has not tendered evidence to
rebut the evidentiary burden of the prima facie case presented by the
plaintiff in this case, the
plaintiff may not succeed with his claim
depending on the nature and weight of the evidence so tendered."
38.
Raulinga
J
went on to add at paragraphs 29 to
33 of his judgment, the following:
"[29]
Moreover, even in the absence of the defendant's evidence it can
clearly be inferred from the evidence
of the plaintiff that he was
the sole cause of the accident through his negligence in that he
failed to keep a proper lookout.
[30]
I agree with the defendant in his submissions that it is the duty of
every driver, in this case
the plaintiff to keep proper lookout at
all material times, i.e. a continuous scanning of the road ahead,
from side to side for
obstruction or potential obstruction. See
Jenneker v Martine and Trade
1978 (2) SA 145
(SE) at 149H.
[31]
The issue of sudden emergency raised by the plaintiff is rejected on
the basis that the plaintiff
failed to keep a proper lookout, did not
travel at a reasonable speed in the circumstances of this case, and
did not maintain the
required following distance and was consequently
negligent.
[32]
It is the version of the plaintiff that the road was busy with
traffic flowing from both directions.
This is borne out by the fact
that when he was about 2.5 metres from the insured driver's vehicle
he could not veer off to the
side of the oncoming traffic because
there were vehicles on the two opposite lanes. Nor could he swerve to
the left lane because
there were vehicles on that lane.
[33]
Moreover, when he was about 4.
5
metres from the
insured driver's vehicle he was travelling at
a
speed of 60km
when he reduced speed. He only realised that the vehicle in front of
him had suddenly stopped when he was. only 2.
5
metres from it.
He then had no choice but to swerve to the right thereby colliding
with the insured driver's vehicle on its rear
end. This simply means
that the plaintiff drove his motorcycle negligently and is the sole
cause of the accident."
39. The
distinguishing characteristics between the
Felix
case and the case
in
casu
lies in the facts that, in the
case
in casu:
39.1. the truck, the Kia and
the Polo were approaching a robot controlled intersection, where the
robot was green
in their favour;
39.2. Swanepoel testified
that
"the robot was green so we
all accelerated as it was our time to go";
39.3. there was the presence
of the offending unidentified taxi which "disturbed" the
driver of the
truck causing him to bring the truck to screeching
halt.
40. Counsel
for the Defendant submitted that even if I were to find that the
driver of
the unidentified taxi was negligent, there was insufficient
a nexus between such negligence and the negligence of the Plaintiff
in his failure to have brought the Polo to a stop without colliding
with the Kia. Such argument was predicated upon the driver
of the
truck having been able to stop without colliding with the offending
taxi, and, Swanepoel having been able to bring the Kia
to a stop
without having collided with the truck. Against this background,
Defendant's counsel submitted that the only reason for
the Plaintiffs
Polo having collided with the Kia, arose out of his negligence,
which, similarly to that of
Felix,
was three tiered, embracing:
40.1. a failure
to have maintained a safe following distance;
40.2. a failure
to have maintained a safe speed; and
40.3. a failure
to have maintained a proper lookout.
41. Arising
out of these submissions, the Defendant's counsel urged me to find
that there
is no basis for an apportionment of damages and to hold
the Plaintiff fully accountable for the collision. In the alternative
to
this argument, counsel for the Defendant suggested that were I to
nevertheless find that the damages ought to be apportioned between
the Plaintiff and the unidentified taxi driver, then, such
apportionment ought to be at 90% against the Plaintiff and 10% in
favour
of the insured driver.
42. Having
considered all of the above factors in the context of the applicable
facts applied
to relevant facts and cases mentioned above, I consider
an apportionment of negligence as to 60% to the Plaintiff, and 40% to
the
unidentified taxi driver, to be a fair and reasonable
apportionment of contributory negligence between the two of them in
the case
in casu.
In
making this finding, I have given due consideration to the sentiment
expressed by Van Der Linde J, in Bainton
supra,
where he held that apportionment is
a difficult endeavour, is subjective, and essentially calls for a
value judgment of the respective
degrees of remissness. I have
considered this and believe that a 60/40 apportionment against the
Plaintiff represents a correct
assessment of the value judgment
required.
43. Accordingly,
I make the following Order:
43.1. The Defendant is liable
to compensate the Plaintiff for 40% of the proven or agreed damages
resulting from
the injuries that he sustained in the collision which
occurred on 10 May 2017;
43.2. Merits and quantum are
separated in terms of the provisions of Rule 33(4) of the Uniform
Rules of Court
with quantum postponed
sine
die;
43.3. The Defendant shall
furnish the Plaintiff with an undertaking in terms of Section
17(4)(a) in respect of
40% of the costs of the future accommodation
of the Plaintiff in a hospital or nursing home or treatment of or
rendering of a service
or supplying of goods to him, after the costs
have been incurred and on proof thereof, resulting from the accident
that occurred
on 10 May 2017.
43.4. Inasmuch as it was
confirmed that Plaintiff's attorneys do not act in accordance with a
contingency fee
agreement, the Defendant must make payment of the
Plaintiff's taxed or agreed party and party costs on the High Court
scale, which
costs shall include, but not be limited to the
following:
43.4.1.
The fees of Senior-Junior Counsel on the High Court Scale inclusive
of the
counsel's full reasonable day fee for 15 May 2019 and 16 May
2019, the reasonable costs in respect of the preparation of the Heads
of Argument.
43.4.2. The
costs of the Plaintiff's expert's fees in regard to the preparation
and
attendance at court are awarded on a party and party scale
against the Defendant on the following basis:
43.4.2.1.
The costs (fees and disbursements) of all consultations (inclusive
of
telephone consultations) with counsel and/or the Plaintiff's
attorney;
43.4.2.2. The
costs (fees and disbursements) of attending accident site
inspections;
43.4.2.3.
The costs of expert meetings;
43.4.2.4. The
allowances payable to witnesses in civil cases as published
in
Government Gazette Number 30953 (No. R394) dated 11 April 2008 and
specifically section 4 thereof is not applicable and the
Defendant
must make payment of the full day fees in respect of the reservation
to testify and attendance at court (if applicable)
on 15 May 2019 in
respect of Professor Gerald Lemmer (Accident and Reconstruction
Specialist);
43.4.3.
The costs of all consultations between the Plaintiff and his
attorney, and/or
Counsel, and/or experts and/or with in preparation
for hearing of this action.
43.5. The above costs will be
paid into the trust account of Adams & Adams, details of which
are as follows:
Account
holder:
Adams &
Adams Trust Account
Bank:
Nedbank
Branch:
Pretoria
Branch
code:
198765
Account
number:
[….]
Reference:
AMP/JJF/P3029
43.6. The following
provisions will apply with regards to the determination of the
aforementioned taxed or agreed
costs:-
43.6.1. The
Plaintiff shall serve the notice of taxation on the
Defendant's
attorneys of record;
43.6.2. The
Plaintiff shall allow the Defendant 7 (seven) court
days to make
payment of the taxed costs from date of settlement or taxation
thereof;
43.6.3.
Should payment not be affected timeously, the Plaintiff
will be
entitled to recover interest at 10.25% on the taxed or agreed costs
from date of allocatur to date of final payment.
NOCHUMSOHN, G
ACTING
JUDGE OF THE HIGH COURT
On behalf of
Plaintiff
Advocate Johan van den Berg - 082 466 4588
Instructed by:
Adams & Adams
On
behalf of the Defendant:
Advocate Sibara - 082 511 6219
Instructed
by:
The State Attorney
Date
of Hearing:
15 and 16 May 2019
Date of Judgment:
23May 2019