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[2019] ZAGPPHC 1047
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Van der Merwe v Road Accident Fund (46899/17) [2019] ZAGPPHC 1047 (9 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF INTERSSTTO
OTHERS JUDGES: NO
(3)
REVISED
CASE
NO: 46899/17
12/6/2019
In
the matter between:
L
F VAN DER
MERWE
PLAINTIFF
V
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
NEUKlRCHER
J:
[1]
The
plaintiff has sued the defendant for damages sustained by him in a
motor vehicle accident which took place on 12
th
June 2016 at approximately 06h20 whilst he was on his way to
Ladysmith. He was the driver of a Toyota Aygo registration number
[….].
[2]
At
the outset, Mr Dreyer, who appears for the plaintiff, informed me
that the parties have agreed to separate merits and quantum
and that
the issue before me was the issue of merits
and,
in particular the cause (or as he put it, the 'mechanism') of the
accident as the other vehicle was an unknown vehicle.
[3]
Paragraph 3.3 of the particulars of
claim states;
“
collision
occurred when the insured vehicle (i.e the 'unknown vehicle') passed
so close to the plaintiffs vehicle that the plaintiff
had to swerve
in order to avoid an accident with the insured vehicle, causing the
plaintiff to lose control of the vehicle and
the vehicle
overturning."
[4]
Chapter 6.13 of the Practice Manual of
the North Gauteng High Court which became operational from 25
th
July 2011 provides that
"3.5
if the parties do not settle the matter:
3.5.1...
3.5.2...
3.5.3
there shall be an automatic separation of merits and quantum in
accordance with rule 33(4) unless the parties agree that there
shall
be no separation .
[5]
Bearing this in mind and the issues to be determined, in my view it
was convenient to hear
the separated issue as agreed by the parties
and the matter proceeded on the merits.
[6]
The plaintiff testified that:
6.1
on
12
th
June 2016 at approximately06h20 he was on the highway from
Johannesburg to Durban on his way to Ladysmith and he was travelling
in a Toyota Aygo. It was not quite light outside and he was
travelling with his headlights on and he had no passengers with him;
6.2
he was travelling in the left hand lane
and had to pass a slower moving vehicle, which he did and he stayed
in the right hand lane
[1]
as the speed limit was 120km and he was travelling at 120km;
6.3
he checked his rearview mirror
regularly;
6.4
he first became aware of the
unidentified vehicle when he heard a loud noise and realized it was
the sound of the engine of the
motor cycle travelling at a high
speed;
6.5
when he heard the noise he checked his
rearview mirror and saw that the motor cycle was right behind him and
it looked as though
it was going to collide with him so he swerved
quickly to the left;
6.6
this is when he lost control his vehicle
- it overturned and when it eventually came to rest it ended up in
the road on its roof;
6.7
the motor cycle never stopped-it sped
off;
6.8
someone else stopped and he was taken to
Alberton Union Hospital as he had sustained serious injuries;
6.9
no police officer or traffic officer was
at the at the scene of the accident when he was there, none came to
the hospital and he
never reported the accident;
6.10
the accident report that was completed
by Constable Ndumo was done without consulting him and he never
signed it;
6.11
from the time he overtook the
slow-moving vehicle in the left-lane, to the time of the accident was
about 1-2 minutes.
[7]
In cross-examination he conceded that apart from the other
slow-moving vehicle there
were no other vehicles on the road and
there was sufficient space for him to have moved back into the
left-hand lane after he passed
the slower vehicle so that the
motorbike would have simply passed him.
[8]
He
denied that he did not keep a proper lookout.
[9]
Prof.
Gerald Lemmer was then called. Prof. Lemmer holds a BSc, BSc
(Honours), MSc (Natal) and a PhD (Cambridge). His expertise was
not
placed in dispute by the defendant. Professor Lemmer was requested to
provide an opinion on whether or not, given the manner
in which the
plaintiff described how the accident occurred, his version was
plausible. Professor Lemmer's report states:
"From
the point of physics, Mr van der Merwe's version is perfectly
plausible. A sudden swerve
to
the left will induce
an anticlockwise rotation of the vehicle together with a broadside
skid. The slightest disturbance to one of
the right wheels of the
vehicle would cause the vehicle
to
overturn."
[10]
Prof. Lemmer also testified that
plaintiff probably reacted in the way anyone would have - he jerked
his vehicle to the left and
based on plaintiffs version, there was no
reason for plaintiff to move into the left lane earlier and from the
point of view of
physics, nothing rebels against plaintiffs version.
[11] Of
course, in cross-examination Prof. Lemmer quite correctly conceded
that it was possible that plaintiff
did not have to swerve as he did
and he stated that, in his opinion, based on the laws of physics,
there are also other possible
outcomes of the scenario, of which the
plaintiffs is but one.
[12] Mr
Thabethe, for the defendant, then used the table set out in his
expert's
report
[2]
"the speed-distance-time calculation". In essence the
experts agreed that it would take the plaintiff's vehicle +-6 seconds
to travel a distance of 200m if traveling at 120km/h. Using the same
table and postulation they agreed that the motor-cycle was
travelling
the same distance but at 240km/h it would take 3 seconds and if
travelling 200km/h it would take 4seconds to travel
222m.
[13]
This concluded the plaintiff's case.
[14]
The defendant then called Mr J.P
Strydom. His expertise was likewise not placed in dispute by Mr
Dreyer and accordingly to his report
he is a "trained and
experienced traffic accident analyst."
[15]
Mr Strydom testified that he conducted
an inspection
in loco
at
the scene of the accident. He found that the road surface was flat
but that one cannot see past a certain point because of the
incline
in the road facing towards Johannesburg at a point of 200m south of
the roadside marker.
[16]
He never inspected the plaintiff's
vehicle itself or the damage to the vehicle but opined that given the
facts, the plaintiff could
comfortably have moved out of the way for
the motorcycle to have passed without the necessity of swerving and
over-steering.
[17]
His opinion was that the plaintiff could
have done more to avoid him losing control over his vehicle resulting
in a single vehicle
collision and that plaintiff would have seen the
motor cycle had he kept a proper lookout.
[18]
In cross examination Mr Strydom conceded
that:
18.1
he relied on an accident report which
was not only drafted without plaintiff's input but also makes no
mention of a second unidentified
vehicle. He conceded that he would
have to take the second vehicle into account for purposes of his
report and conclusion;
18.2
that his report does not take into
account what time of the day the accident occurred and that this does
make a difference to his
conclusions;
18.3
that a rear-view mirror can distort
images which would be a factor in plaintiff's observations and this
was not taken into account
by him;
18.4
that the top speed of the Toyota
Aygo
is 160km/h and if the plaintiff had
geared down he could have reached this speed - but he conceded that
there was a "drag time"
on how long it would take the
vehicle to speed up which he had not taken into account and therefore
he could not state with certainty
that plaintiff would have been able
to avoid an accident had he sped up to the vehicle's maximum speed.
[19]
This then was the end of the defendant's
case.
[20]
Mr Dreyer argued that there was in
actual fact, only one version of what occurred on 12
th
June 2016 and that the facts stand uncontroverted. He argues that the
plaintiff thought the only maneuver he could safely perform
was to
swerve left and that Prof. Lemmer had stated that this was what
everyone probably would have done, which was not controverted
in
cross examination or any other evidence.
[21]
The plaintiff was not doing anything
wrong by travelling at 120km/h in the fast lane - he was entitled to
travel in this lane by
virtue of the speed at which he was
travelling. Furthermore, the plaintiff's evidence was that merely
from the sound of the oncoming
motorcycle, he realized it was
travelling at a very high speed which is what prompted him to look in
his rearview mirror but by
then it was too late.
[22]
Mr Dreyer postulated that if the
motorcycle travelled at for example, 240km/h it meant that it
travelled a distance of 200m every
three seconds. This meant that (on
defendant's version) plaintiff was expected to check his rearview
mirror every three seconds
and that the question is whether it can be
reasonably expected of plaintiff to have done so.
[23]
Mr Dreyer submitted that:
23.1
there was no real dispute between the
two experts;
23.2
nothing the plaintiff did was
unreasonable;
23.3
the driver of the unidentified vehicle
was 100% negligent
23.4
that the defendant has not pleaded an
apportionment of damages and is therefore not entitled to one;
23.5
costs should follow the result.
[24] Mr
Thabethe argued that once the plaintiff overtook the slower vehicle
he should immediately have gone
back to into the slow lane and that
if he had done this he would have avoided the accident. This is also
the rule of the road he
submitted i.e keep left pass right.
[25]
That the plaintiff, in any event, should
have kept a proper lookout which he failed to do.
[26]
That whatever occurred, the plaintiff
was partly responsible and an apportionment of 70/30 is appropriate.
[27]
The first question to be answered was
the cause of the accident: it was never placed in dispute that the
plaintiff swerved to avoid
a collision with an unidentified motor
cycle that was travelling at an extremely high speed. It was also
common cause between the
experts that, had the motor cycle been
travelling at the speed of 240km/h it would have travelled 200m in
three seconds. In my
view, to expect the plaintiff to check his
mirrors every three seconds for an approaching vehicle is
unrealistic. In any event,
his evidence was that he regularly checked
his mirrors and that from passing the vehicle on his left to the time
of the accident
was about minute or two later.
[28]
Given this and given the uncontroverted
evidence that he heard the motor cycle, checked his rearview mirror
and it seemed that it
was almost "on top of him" I accept
that any reasonable driver would have instinctively done what
plaintiff did and that
is swung out to avoid a collision.
[29]
It also is in my view that if the motor
cycle was travelling at a very high speed and almost on top of
plaintiff when he saw it,
a gradual veering to the left would not
necessarily have avoided a collision between the two vehicles and, in
any event, no cross-examination
took place regarding any evasive
maneuvers that the driver of the motor cycle had attempted to make.
[30]
This being so and Professor Lemmer's
uncontroverted evidence that the plaintiff's version is "perfectly
plausible" I find
in favour of the plaintiff on the merits on a
balance of probabilities.
[31]
On the issue of whether there should be
an apportionment or not, Mr Dreyer's contention that the defendant
has failed to plead an
apportionment and is therefore precluded from
arguing same, is incorrect:
31.1
firstly the plea states
"
that defendant prays that
the plaintiff claim be dismissed with costs, alternatively that the
High
Court
makes an order having regard to the provisions of
the Apportionment of Damages Act 34 of 1956...
";
31.2
secondly, in AA Mutual Insurance
Association Ltd v Nomeka
[3]
,
Viljoen AJA stated the following:
“
The
weight of the decisions is, therefore that provided the plaintiffs
fault is put in issue, an apportionment need not be specifically
pleaded or claimed. This is the correct view in my view in my
opinion. The Act has become part of the former all-or-nothing effect
of the common Jaw in this respect. I agree, with respect with O'Hagan
J that upon a determination of the issues properly raised
in the
pleadings the Court must give judgment in accordance with the
imperative direction of section 1 of the Act.”
[32]
Even though apportionment has not been
specifically pleaded in the body of the pleading itself, it has been
claimed and therefore
plaintiff was forewarned of the defendant ' s
argument. Furthermore, the plea itself (and the evidence presented)
puts plaintiff
negligence firmly in issue and thus I find that
defendant is entitled to raise and argue the issue of apportionment.
[33]
However, I find that on the facts of
this matter, had it not been for the actions of the unidentified
driver who was travelling
at a high speed, which was in all
probability in excess of the speed limit of 120km/h, this accident
could have been avoided.
[34]
Therefore, the defendant
is
100% liable for the plaintiff's
proven damages.
ORDER
35.1
The defendant is liable for 100% of the
plaintiff's proven or agreed damages arising out of the motor vehicle
accident of 12th June
2016.
35.2
The defendant is to pay the plaintiff's
costs including the qualifying fees of the plaintiff's expert
Professor Lemmer.
NEUKIRCHER J
JUDGE
OF THE HIGH COURT
Date
of hearing: 6 June 2019
Date of judgement: 9 June 2019
For
the plaintiff:
Adv W
J Dreyer
Instructed
by VZLR Inc
For
the Defendant:
Adv
M I Thabethe
Instructed
by Mathipane Tsibane Attorneys
[1]
The
road is a
dual
carriageway
ln both directions.
[2]
Mr J. P Srydom of J.P Strydom Accident Consultants CC
[3]
1976 (3) SA
45
(SCA) at
SSC-E