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[2019] ZAGPPHC 146
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Mkhondo v Road Accident Fund (40838/15) [2019] ZAGPPHC 146 (9 May 2019)
SAFLII
Note:
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
(2)
OF INTEREST TO OTHER JUDGES:YES
(3)
REVISED
Case
No.: 40838/15
MKHONDO:
THOZAMA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MNGQIBISA-THUSI,
J:
[1]
The plaintiff, Mr Thozama Mkhondo
,
has instituted an
action against the defendant
,
the Road Accident
Fund, in which he seeks damages (loss of support) for loss suffered
in
a
motor vehicle collision which occurred on 13 October 213
.
Mr Sipho Robert
Mabasa
("the
deceased), who died
at the scene of the accident
,
was the driver of a
motor vehicle
,
a
Volkswagen Golf
,
bearing registration
number
[….]
,
which motor vehicle
collided with two other motor vehicle
,
initially
,
with a Toyota Prado
bearing registration number [….] ("the first insured
Motor vehicle
"
)
and subsequently with a Hyundai bearing registration number [….]
(
"
the
second insured motor vehicle")
.
Both the first and
second insured vehicles were towing a trailer and a caravan
,
respectively
.
[2]
The collision happened along the
Rosslyn and Brits Road, with the first and second insured motor
vehicles travelling in the opposite
direction to that of the
deceased. The Prado was driven by Mr Claude Smit ("the first
insured driver") and the Hyundai
was driven by a certain Mr
Gouws ("the second insured driver
"
).
[3]
It is common cause that before
the initial collision happened, the vehicle driven by the deceased
had a tyre burst and the deceased
lost control of his vehicle
,
resulting in him colliding with the
trailer of the first insured vehicle, ending up on the wrong lane
where he collided head
on with the second insured vehicle
.
[4]
At the time of the accident
,
the plaintiff was
married to the deceased in terms of a customary marriage on 26 June
2010 and one minor child
,
Nosipho Mabasa
,
was born from the
marriage.
[5]
The
parties agreed by that the matter would proceed only on the issue of
merits
,
and
that quantum be postponed
sine die.
[6]
It is the plaintiff's contention that the collision was as a result
of the negligence
of either and/or both of the insured drivers in
that he/they
:
(i)
failed to keep a proper lookout
;
(ii)
failed to avoid the collision when by
the exercise of reasonable care, he could and should have done so;
(iii)
failed
to take sufficient account of the presence and/or
alternatively visibly intended actions of the deceased
'
s
veh
i
cle
;
(iv)
failed to take due regard of other road
uses
,
in
particular the deceased
'
s
vehicle
;
(v)
failed to exercise proper or adequate
control over his vehicle;
(vi)
failed
t
o
apply the brakes of hi vehicle timeously, or at all;
(vii)
drove at an excessive speed under the
prevailing circumstances
;
(viii)
failed to allow sufficient berth for the
deceased's vehicle to proceed unhindered
.
[7]
The
defendant has denied that either of the two insured drivers
negligently caused the collision. In the alternative
,
the defendant pleads that the deceased
'
s
negligence contributed to the cause of the accident.
[8]
The
issue to be decided is whether either of both of the insured drivers
negligently caused the collision
.
[9]
In
the pre-trial m
i
nute
the parties ag
r
eed
that
,
in
view of the demise of the deceased
,
the
version of the first insured driver
,
Mr
Smit
,
as
contained in his statement
,
should
be taken into consideration by both the court and the accident
reconstruction expert the plaintiff intended calling as a
witness. Mr
Smit's statement reads in part as follows
:
•
"Whilst
driving
,
he
noti
c
ed a
black VW Golf which was travelling from direction east towards
direction west. He saw the right front tyre bursting of the
WV black
vehicle and it began to swerve
.
•
Then
the said vehicle
"
hit
"
the right front portion of his trailer
he was pulling, he stopped his vehicle to see what had happened, he
observed that the said
WV Golf also collided with another vehicle
"
.
[10]
The only witness to testify at the trial
was Mr Conrad Walter Lotter (
"
Mr
Lotter")
,
a
reconstruction expert. Mr Latter
'
s
evidence is as follows
.
He
did not attend the scene of the accident. However, analysing the
accident
,
Mr
Lotter was provided with certain information
[1]
.
Mr Lotter described the area where the accident happened as he used
certain information made available to him. Mr Lotter described
the
scene of the accident in the following manner
.
The road is approximately 3
.
5m
wide on each lane with a yellow line on the edge of the road
.
On the shoulder of each there is a
gravel portion of approximately 2m wide
.
Further that the road is straight and
there are no obstructions to obscure visibility.
[11] Mr
Lotter testified that from his observations of the positions the
vehicles had adopted after the
accident
,
he observed that
both insured vehicles where in their correct lane
.
The conclusion Mr
Lotter came to was that after the deceased lost control of his
vehicle, he must have swerved to the right, which
would have given
the first insured driver
about
1.5 seconds to take evasive action
.
Thereafter the
deceased would have swerved to the left and this movement would have
been for approximately 1 second
.
Thereafter there
would have been a third movement by the vehicle driven by the
deceased
,
leading
to the deceased
'
s
vehicle colliding the trailer pulled by the Toyota Prada and this
movement Would have taken 1 second
.
According to Mr
Lotter
,
taking
into account the time lapses of the movements of the deceased
'
s
vehicle
,
the
first insured driver
would have had 4
,
5
seconds to avoid the collision
,
particularly as he
had observed
the
tyre burst f he
deceased
'
s
vehicle
.
[12]
Mr Lotter further
testified
that
,
he
was of the opinion that had
the
second
insured driver kept a safe distance behind
the
first
insured
dr
i
ver
,
he would have had 2 seconds to react to
the collision between the deceased's vehicle and the trailer of the
first insured driver.
Mr Lotter was further f the opinion that
,
from the photographs he was given,
it
appears that the collision between the
second insured driver and the deceased happened in the middle of the
road. He came to the
conclusion that
it
appears that the second insured driver
did not take any evasive action to avoid colliding with the
deceased
'
s
vehicle
.
Mr
Lotter was of the opinion that from the information
in
his possession
,
h
i
s
conclusion was that both insured drivers were negligent.
[13]
The
defendant
did not call any
witnesses
before closing
its
case.
[14]
On behalf of the plaintiff it was argued
that I should make a finding that both insured
drivers were negligent. With regard to
the first insured
driver, counsel
submitted that had he been keeping a proper lookout
,
he could have foreseen the deceased
crossing lanes and as a reasonable person he would have taken steps
to avoid the deceased colliding
with his vehicle. With regard to the
second
insured
driver,
counsel argued that if he had kept a safe following distance
,
as a reasonable driver
,
he would have seen the deceased crossing
over to the incorrect lane and would have avoided the accident.
[15]
Liability for negligence arises if a reasonable person
in
the
position of the
defendant:
(i)
would foresee the reasonable
possibility of his conduct
injuring
another in his person or property and
causing him patrimonial loss;
(ii)
would take reasonable steps to
guard against such occurrence; and
(iii)
the defendant failed to take such
steps
[2]
.
[16] It is
common cause
that
immediately before
the first collision, the front tyre of the deceased
'
s
vehicle burst
,
and
he
lost
control
of
the
vehicle
.
Further that the
deceased's vehicle collided with the back of the first insured
driver
'
s
trailer and hereafter collided head-on with the vehicle driven by the
second insured driver
.
[17] It is
also common cause that the deceased died at the scene of the accident
and since both insured
drivers did not testify
,
there are no eye
witnesses as to how
the accident occurred except what is contained in the first insured
driver
'
s
statement to the police
,
which statement was
by agreement, to be considered. The only other evidence before this
court is the evidence and the report of
Mr Lotter on how the accident
could have happened.
[18]
In
Motor
Vehicle Assurance Fund v Kenny
1984
(4
)
SA
(ECO) 432 the court stated at 436H that:
"
Direct
or credible evidence of what happened in a collision
,
must
,
to my mind,
generally carry greater weight than the opinion of an e
x
pert
,
however
e
x
perienced
he may be
,
seeking to
reconstruct the events from his experience and scientific training
.
Strange
things often happen in a collision and
,
where two
vehi
c
les
approa
c
hing
ea
c
h
o
ther
from opposite directions collide
,
it is
practically impossible for anyone involved in the collision to give a
minute and detailed description of the combined speed
of the vehicles
at the moment of impact
,
the angle of
contact or of the subsequent lateral or forward movements of the
vehicles
.
Tompkins'
concession
,
therefore
,
that there
are too many unknown factors in any collision to warrant
a
dogmatic
asserti
o
n
by an e
x
pert
as to what must have happened seems to me to ha
v
e
been a very proper one
.
An e
x
pert's
v
iew
of what might probably have occurred in
a
collision must
,
in my view
,
gi
v
e
w
ay
to the assertions of the direct and credible evidence of an
eyewitne
s
s
.
It i
s
only where
such direct evidence is so improbable that its very credibility is
impugned
,
that an
e
x
pert
'
s
opinion as to
w
hat
may or may not have occurred can persuade the Court to his view
(
cf
Mapota v Santam Versekeringsmaatskappy Bpk
1977 (4) SA 515
(A) at
527-8 and Madumise v Motorvoertuigassuransiefonds 1983
(
4
)
SA 207
(
0
) at 209)".
[19]
In
his statement Mr Smit admits to seeing the front tyre of the deceased
car bursting. However
,
Mr
Smit does not say if he took any evasive
action
or that under the circumstances he would not have been able to take
any action in order to avoid the collision
.
Accord
i
ng
to Mr Lotter
,
the
first insured driver had about 2 seconds in which he could have taken
evasive action to avoid the collision
.
However
,
bearing in mind that the first insured
driver was pulling a trailer
,
Mr
Lotte
r
could
not say whether the first insured driver
,
taking into account that he was pulling
a trailer
,
had
sufficient time to avoid the accident.
[20]
There being no evidence to contradict
the accident construction expert
'
s
evidence and in the failure by either of the insured drivers
testifying and no explanation given as to why they were not available
to testify
,
I
am of the view that w
i
th
regard to the fi
r
st
i
nsured
driver, I am not convinced that evidence on a balance of
probabilities was presented to show that within the time period
postulated by Mr Lotter
,
the
first insured driver could have taken evasive action to avo
i
d
the deceased colliding with his trailer
.
[21]
With regard to the second insured driver
and bearing in mind that he was pulling a caravan
,
I am satisfied by Mr Lotter
'
s
evidence that had he kept a safe distance behind the first insured
driver
,
he
would have had sufficient time to avoid co
l
liding
with the deceased. From the time the deceased lost control of h
i
s
vehicle and
i
n
i
tia
ll
y
veering to the right and then to the left
,
the second insured driver would have
seen these movements and taken evasive action
.
I am satisfied that the plaintiff has
proven on a balance of probabilities that the second insured driver
was negl
i
gent
in failing to take any steps
,
in
view of the emergency
situation which
had arisen
,
to
avoid colliding with the deceased instead of driving st
r
a
i
ght
on
.
[22]
In the result the following order is
made
:
1.
The second respondent is found to
be liab
l
e
to the plaintiff's agreed or proven damages due to the negligence of
the second insured driver
.
2.
The defendant to pay the costs of
the action.
N
P MNGQIBISA-THUSI
Judge
of the High Court
For
the Plaintiff Adv I.W Makhubo (
i
nstructed
by Mohulatsi Attorneys)
;
for the Defendant
Adv R Strydom (instructed by Mathie Jooma Sabdia Inc
.
)
[1]
A copy of the accident report; the statement of constable SG Sekao,
the first police officer to arrive at the accident scene;
a
statement of warrant officer A T Kgomo, the investigating officer; a
black and white copy of the police's photo album; the
statement of
Mr Smit, a statement of Mr B van Wyk, an eye witness, the
post-mortem report, a telephone conversation with Mr Smit
and Google
map showing the layout of the accident scene.
[2]
Kruger v Coetzee
1966 (2) SA 266
(A).