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2019
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[2019] ZAFSHC 94
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Mosia and Another v Road Accident Fund (3484/2017) [2019] ZAFSHC 94 (24 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3484/2017
In
the matter between:
MASEODI
SUZAN
MOSIA
1
st
Plaintiff
MASEODI
SUZAN MOSIA
N.O.
2
nd
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
26 & 27 FEBRUARY 2019
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
24 MAY 2019
[1]
The only issue to be determined is the merits of this claim. As
per agreement between the parties, I ordered separation
of the merits
and quantum in terms of Rule 33 (4) of the Uniform Rules of Court.
[2]
The common facts as recorded are that the accident occurred on 22
July at around 19H45 pm on the intersection near Winburg where
the
Virginia Road intersect and cross over the N5 freeway. The
deceased, a member of the South African Police Service, was
driving a
motor vehicle to wit Toyota Quantum with registration letters and
numbers […] B. The insured driver was
driving a motor
vehicle to wit a Volvo truck with registration numbers and letters
[…] GP. As a result of the accident,
the deceased
suffered severe bodily injuries and passed away on the same day.
[3]
The pertinent issue for determination is whether the insured driver
drove the insured motor vehicle in a negligent manner causing
or
contributing to the accident. The plaintiff must discharge the
burden of proof on a balance of probabilities.
[4]
Two (2) witnesses namely an independent witness Ronel Smith and the
insured driver Zama Mrawushe testified in this matter.
[5]
Briefly Ronel Smith testified that on the day in question she was a
passenger in a motor vehicle driven by her husband.
They were
on the road between Winburg and Senekal. Because he is a slow
driver she was able to observe in clear details the
flow of traffic
around them. In addition it was fairly quiet on the road.
[6]
They were following a truck driven by the insured driver when she
noticed a motor vehicle on her left approaching the intersection
in a
high speed. She could see it from quite a distance. The
driver of that motor vehicle was the deceased. This
episode
gave her a fright and she alerted her husband of the impending danger
who responded by swerving to the left of the road
to avoid any
collision. They stopped about ten (10) metres away.
[7]
He saw the deceased’s motor vehicle colliding with the trailer
pulled by the insured motor vehicle on the left back.
It
occurred to her that the insured driver was not aware of the
collision as he continued driving for about two hundred (200) metres
before stopping. On his return he informed them that he felt
that all was not in order. It was her opinion that he
did not
realise that he had been involved in an accident.
[8]
In a “nutshell” the insured driver testified that he had
been driving heavy duty motor vehicles since 1994 and the
N5 freeway
was well known to him. He observed the motor vehicle coming
from his left side with its headlights on approaching
from a distance
of approximately one (1) kilometre. Thereafter he did not see
the lights again because he did not look in
that direction. His
main focus was on controlling his motor vehicle and keep a proper
lookout on the road.
[9]
On entering the intersection he did not envisage that anything will
happen to his motor vehicle. However, he did feel
it shaking
and suspected that it was a puncture. At that stage he was on
the incline and driving at a low speed. There
was no obligation
on him to bring the motor vehicle to a stop. Further that there
was nothing that he could have done to
avoid the accident.
[10]
The two (2) witnesses though on the opposite side of the same coin,
gave a good and detailed account of the events leading
to the
collision. It is common cause that the deceased approached the
intersection cutting across the N5 on a high speed.
It is an
uncontradicted fact that the insured driver had the right of way
which demanded that the deceased can only enter the N5
when it was
safe to do so. However, this did not exempt the insured driver
from keeping a proper lookout as measured on the
standard of care and
skill which would be observed by the reasonable man.
[11]
In
Nogude
v Union and South West Africa Insurance Co Ltd
[1]
the court described a proper lookout as entailing a continuous
scanning of the road ahead, from side to side, for obstructions
or
potential obstructions. The insured driver on his own version
testified that he saw the deceased’s motor vehicle
heading
towards the intersection and lost sight of it. In essence after
observing it once, he did not look in that direction
again.
Even the impact of that motor vehicle on his truck felt like a minor
distraction. This ties up with the evidence
of Ronel Smith that
he appeared to be unaware that he was involved in an accident.
He continued to drive on for approximately
two hundred (200) metres
before bringing his truck to a halt. This points in the
direction of a person not keeping a proper
lookout as plainly
described in Nogude’s matter.
[12]
A driver of such vast experience would be expected to be more
cautious at all times. His level of being alert will even
be
more activated when he observes another road user driving at a high
speed or wrong side of the road or any other indiscretion
that might
be a hazard to others. This will require him/her to take
appropriate measures to mitigate any danger. The
insured driver
came short of keeping a proper lookout as per required standard of
care and skill of a reasonable man in the position
of the insured
driver in similar factual circumstances.
[2]
[13]
In matters of this nature the plaintiff only has to prove 1%
negligence against the insured driver. As discussed in
preceding paragraphs, I conclude that the insured driver’s
conduct is indicative of negligence on his part. Therefore,
the
plaintiff ought to succeed in her claim.
[14]
I make the following order:-
14.1. Judgement is
entered in favour of the plaintiffs with costs.
__________________
M.A.
MATHEBULA, J
On
behalf of applicants: Adv. R.P. van Niekerk
Instructed
by: Kramer Weihmann & Joubert
Bloemfontein
On
behalf of respondent: Adv. J. S. Motloung
Instructed
by: Maduba Attorneys
Bloemfontein
[1]
1975
(3) SA 685
(A) at 688A
[2]
Kruger
v Coetzee
1966 (2) SA 428
(AD) at 430 D-F