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[2019] ZANCHC 15
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De Beer v Road Accident Fund (1016/2017) [2019] ZANCHC 15 (25 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY.
Not reportable
Case no:
1016/2017
In the matter
between:
SYBRAND
ABRAHAM DE BEER
PLAINTIFF
And
ROAD ACCIDENT
FUND
DEFENDANT
Heard:
19 February 2019
Delivered:
25 March 2019
Coram:
Phatshoane ADJP
Judgment
PHATSHOANE ADJP
[1]
Mr Sybrand Abraham De Beer, the plaintiff,
instituted
action against the Road Accident Fund
,
the defendant (“the RAF”),
for
damages arising out of
a
collision that occurred
on 09 December 2013 between his vehicle, an Isuzu bakkie, and a
Toyota Landcruiser, the insured vehicle,
which was driven by Mr JH
Maritz.
[2] The
parties agreed that the merits be disposed of first and the question
of
quantum
stand over for later determination. Having granted
the application in terms of Rule 33(4) of the Uniform Rules the
matter proceeded
on the issue of liability only.
[3]
On the late afternoon of 09 December 2013 the plaintiff was driving
back to his farm near Grobblershoop,
Northern Cape Province, in his
Isuzu bakkie towing a four-wheeler trailer. He was alone in the cab
whereas his employee, Mr Zachariah
Witbooi, was on the back of the
bakkie, an apartheid relic which ironically spared Mr Witbooi any
physical injury. The bakkie carried
600 kg (12 bags) of salt. A 1000
kg of fodder was loaded on the trailer. The plaintiff possesses a
code 10 driver’s license
that
authorises
him to drive the
vehicle described. He knows the road very well as he regularly uses
(about twice per week) for the past 40 years.
[4]
Approximately 11km of the road from Groblershoop to his farm is
tarred while 60km thereof has a gravel
surface. It is straight except
that at approximately 12 kilometers from Grobblershop it curves at
the bottom of a small hill. It
has a succession of steep ascents and
descents (undulating) with small sand dunes in between. The condition
of the dirt road is
worse just before reaching the top of the last
sand dune which necessitates careful driving. Due to the weight of
the load on the
bakkie and its trailer, the steep inclines, and the
bad condition of the road, the plaintiff could not exceed speed of
30km/h.
[5]
When the plaintiff exited the last sand dune, he noticed
the
insured vehicle
approaching
from the opposite direction of the gravel road. This vehicle swerved
across the road on its incorrect side, that is,
in the direction of
the plaintiff’s bakkie. To avoid a collision, the plaintiff
swerved his bakkie to the left shoulder of
the road. The bakkie
stopped due to its weight and the heavy sand on the road shoulder. As
the insured vehicle continued in its
threatening course the left part
of the bakkie was outside the roadway. The
insured
vehicle
crashed
into the right front wheel of the bakkie.
[6] The impact
of the collision forced the engine of the bakkie into the cabin of
the vehicle. As a result
of this, the plaintiff’s legs were
trapped inside the wreckage. He was freed three hours later by
paramedics and ferried
to the Mediclinic in Upington to receive
medical attention. He spent four months in a hospital recuperating.
He sustained serious
injuries,
inter alia
, injury to the
achilles tendon on the right ankle; soft tissue injury on the right
ankle; patellectomy of the left knee and other
fractures and
lacerations to his lower extremities.
[7] The
plaintiff testified that prior to the accident, on numerous occasion,
he drove on the side of the
road, on which the insured driver was
driving, and had never experienced any problems. Therefore there
could never have been any
reason for the insured driver to move over
to his left side of the road where the accident occurred.
[8]
What arises for determination is whether the Plaintiff
established
that the collision occurred as a result of the causal negligence on
the part of the insured driver. It should also be
considered whether
there was, in this case, any negligence attributable to the
plaintiff, that is, contributory negligence.
[9] Mr Botha,
for the plaintiff, argued that there was nothing more that the
plaintiff could have done to
avoid the accident. He contended that,
had the insured driver kept to his side of the road and not moved
over to the plaintiff’s
side, the accident would not have
happened.
[10] Mr
Jancowitz, for the RAF, contended that there was
contributory
causal negligence on the part of the plaintiff because he should have
driven “totally to the [left] side of the
road”. He
apportioned 20% of the accident due to the negligence of the
plaintiff and attributed 80% the driver of the insured
vehicle. The
difficulty with this submission is that the
RAF
did not tender any evidence. It
also
failed to plead any contributory negligence.
In
my view, the plaintiff was unable to move further to his left due to
the load the bakkie carried and the condition of the road.
In any
event, the bakkie had already left the road surface before the
accident happened and was stationary. The fact that the accident
was
on a gravel road which ordinarily had no road marks cannot avail the
insured driver or the RAF.
[11]
The plaintiff bears
the
onus
to prove on a balance of probabilities that the driver of the
insured vehicle drove negligently and that his driving caused
or
contributed to the collision.
[1]
The following
dictum in
Milton v
Vacuum Oil Company of
SA
Ltd
[2]
is apposite:
'(W)here
there are two streams of traffic in a road in opposite directions, a
person in a vehicle proceeding in one direction is
entitled to assume
that those who are travelling in the opposite direction will continue
in their course and that they will not
suddenly and inopportunely
turn across the line of traffic. A person travelling in one direction
can assume that one travelling
in the opposite direction will
continue his course, but he may only assume that until he is shown a
clear intention to the contrary.
When a clear and undoubted warning
is given, then there is no longer any room for the assumption that
the other person will continue
in his former course.'
[12]
The cross-examination of the plaintiff did not elicit any
discrepancies or contradictions. He was a credible witness
whose
account had no blemishes. The undisputed facts are that the insured
driver did not keep to the right side of the gravel road
as he was
required to. He moved his vehicle to the incorrect left side of the
road. He was therefore negligent and
his
negligence was causally linked to the accident.
[13]
I
have, therefore, come to the conclusion that the plaintiff
established on a balance of probabilities that he is entitled to
compensation
due to the injuries he has suffered as a consequence of
the collision that occurred on 09 December 2013.
It
follows that the defendant is liable to compensate him
100%
of such damages that he will be able to proof.
[14] Mr Botha urged that
costs of suit be awarded on an attorney and client scale. He
contended that the RAF failed
to take any steps to properly prepare
for the trial. There had been no indication, he contended, that the
insured driver was not
available to testify and therefore the
inescapable inference is that, had he been called, he would not have
been able to contradict
the plaintiff’s version. He further
argued that, under these circumstances, the RAF should not have
persisted in proceeding
with the trial on the merits but should have
conceded liability.
[15]
The following remarks in
Madzunye
and Another v Road Accident Fund
2007 (1)
SA 165
(SCA) are instructive:
‘
[18]
I find it almost impossible to believe that the respondent would ever
have been in doubt that the Court a quo's findings
regarding the bakkie's involvement in the collision were wrong. By
persisting with its opposition of the appeal on the basis of
a
judgment in which the Court a quo had so palpably
misconstrued the issues, the respondent, which relies on the
public
purse for its existence and does not, therefore, have unlimited
financial resources, conducted itself in a manner which
cannot be
reconciled with the requirements set out in
the Klisiewicz [u
nreported
judgment:
Road
Accident Fund v Roman Klisiewicz
(SCA case No 192/2001, 29 May 2002)
]case.
This is particularly so having regard to the fact that the intention
of the Act, in terms of which the respondent functions,
is to
give the greatest possible protection to victims of negligent driving
of motor vehicles. The fact that there may have been
merit in
opposing the appeal in respect of the taxi cannot detract from its
ill-considered decision. In the circumstances, a costs
order on the
attorney and client scale against the respondent is, in my view,
justified.’
[16]
In
Road Accident Fund
v Roman Klisiewicz
[3]
,
the Court pronounced that the RAF existed to administer, in the
interests of road accident victims, the funds it collects from
the
public taxes; that it had the obligation to effect that
administration with integrity and efficiency which entailed the
thorough
investigation of claims and, where litigation is responsibly
contestable, the adoption of reasonable and timeous steps in
advancing
its defence. It held that: “
These
are not exacting requirements. They must be observed.”
It can hardly be said that the RAF discharge its obligations
efficiently. The trial on the merits was absolutely unnecessary and
dilatory. Resultantly, it should bear costs on a punitive scale.
Order
1.
Judgment
is granted in favour of Mr Sybrand Abraham De Beer
,
the plaintiff,
against the Road Accident Fund
,
the defendant, on
the merits;
2.
The
defendant is ordered to pay 100% of such damages that the plaintiff
suffered flowing from the accident which occurred on 09
December 2013
as the plaintiff will be able to proof;
3.
The
defendant is ordered to pay the plaintiff’s costs of the trial
on the merits on an attorney and client scale;
4.
The
hearing on the question of quantum is postponed sine die.
MV Phatshoane
Acting Deputy
Judge President
APPEARANCES:
FOR THE
PLAINTIFF:
Adv C.H.
Botha
Instructed by
Elliott, Maris, Wilmans & and Hay
FOR THE
DEFENDANT:
Adv D.C. Jankowitz
Instructed by
Towell & Groenewaldt Attorneys
[1]
Bezuidenhout and Miebny
1962 (2) SA 566
(A) at 574B and 576G
[2]
1932 AD 197
at 205
[3]
Unreported SCA- C
ase
No 192/2001, handed down on 29 May 2002.