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[2018] ZAGPPHC 439
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Ninteretse v Road Accident Fund (29586/13) [2018] ZAGPPHC 439 (2 February 2018)
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)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED
CASE NO: 29586/13
2/2/2018
In
the matter between:
NINTERETSE
FELIX
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
RAULINGA J,
1.
The
plaintiff instituted an action claiming for delictual damages against
the defendant, that he suffered on the 20 April 2011,
at
approximately 14H00 when his motor vehicle collided with that of the
insured driver, at the intersection of Lynnwood Road and
Roper
Street, Pretoria. The collision occurred between a motor vehicle
("the Mercedes Benz") bearing registration letters
and
numbers [….], driven by a certain Mr Brown ("the insured
driver") and a motorcycle bearing registration letters
and
numbers [….] driven by the plaintiff.
2.
The
plaintiff contends that he suffered damages as a direct result of the
negligent driving of the insured driver. It is the case
of the
defendant that the collision was caused by the sole negligent driving
of the plaintiff who failed to keep a proper lookout.
3.
At
the beginning of the trial the parties agreed to separate the issues
in terms of Rule 33(4) of the Uniform Rules of this Court.
As a
consequence only the issue of liability was proceeded with and
determination of quantum was postponed sine die.
4.
It
is common cause that on the day of the accident the road was dry, the
weather was clear and that there were no external obstructions
on the
road. It is also 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 direction. Both of
them were travelling towards the western direction
on the Lynnwood
Road.
5.
The
following issues are in dispute:
5.1
Whether
the insured drive was the main cause of the accident by his sudden
stop, if any, in the middle of the road without any warning
to the
plaintiff alternatively;
5.2
Whether
failure by the plaintiff not to adhere to the prescribed following
distance was the main cause of the accident.
6.
The
only witness who testified in this case is the plaintiff himself. The
plaintiff testified that he holds an international driving
licence
which he obtained in Burundi in 2009 and allows him to drive in all
countries.
7.
At
the time of the accident the plaintiff was working in Hatfield and
was familiar with the road as he used to travel on the said
road
regularly.
8.
On
the day of the accident the plaintiff was driving behind the insured
driver's vehicle at a speed of approximately 60 kilometres
per hour.
When he was about 4.5 metres away from the insured driver's vehicle,
he noticed that it was slowing down because the
insured driver had
applied brakes. In his mind, he thought that the insured driver was
just reducing speed and he would then proceed
with his driving. In
light of this, the plaintiff then reduced the speed he was traveling
at.
9.
When
he was about 2.5 metres away from the insured driver's vehicle, he
realised that it had stopped in the middle of the road without
any
prior warning to alert other road users. The plaintiff tried to avoid
the accident by swerving to the right and consequently
his left
shoulder hit the right rear end of the insured driver's vehicle. As a
result he fell down and became unconscious.
10.
He
also testified that. he could not swerve to the left of the road
("outer lane") in that there were other vehicles
travelling
on the outer lane towards the same direction and further that there
were trees and vehicles parked outside the road.
He took all the
necessary steps to avoid the accident but, due to the negligent
driving of the insured driver who suddenly stopped
in the middle of
the road, the accident could not be avoided.
11.
In
cross examination, the plaintiff, when questioned about the speed
limit required on the road in question, he failed to give a
proper
account and testified that he does not know the required speed limit
applicable at that particular spot. From the point
of impact, the
plaintiff said that he could not remember further events that took
place after the collision, save to mention that
he was unconscious
and was taken to Hospital.
12.
The
plaintiff persisted during cross examination that he was not driving
at a high speed, he stood by the point he made in evidence
in chief
that he was driving at plus minus 60 km/h.
13.
Again,
the plaintiff testified in cross examination that in his country of
origin, Burundi, the rules of driving prescribed a right
hand driving
as opposed to South Africa, the rules of which prescribe left hand
driving. There was no any further driving tests
he undertook in South
Africa to accredit him to drive, save that his international licence
allowed him to operate even in South
Africa subject to him
acclimatising to driving.
14.
The
plaintiff conceded he did not maintain the required safe following
distance, and as a driver he has such a duty to maintain
such a
distance. This concession was made only after the court had put
questions to him relating to his failure observing the safe
following
distance rule.
15.
The
defendant did not call any witness and consequently it tendered no
version supported by any evidence. The effect of the defendant's
failure to open its case is that the evidence of the plaintiff in
relation to how the accident happened remains unchallenged and
the
only evidence before the Court.
16.
It
is trite law that the onus is on the plaintiff 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.
17.
There
is no onus on the defendant to prove anything. The defendant however,
has an evidentiary burden to rebut the prima facie case
presented or
made out by the plaintiff in this case.
18.
This
legal position is confirmed by the provisions of section 17(1) of the
Road Accident Fund 67 of 1996 as amended by Act 19 of
2006. Section
17(1) also stipulates and sets out the circumstances under which the
Road Accident Fund would be liable to compensate
a claimant for
bodily injuries sustained in or arising out of motor vehicle
collisions.
19.
It
is clear from the evidence given by the plaintiff that he was the
driver of a motorcycle involved in a collision wherein he sustained
bodily injuries arising out of the collision. On his own version, the
plaintiff was not maintaining the required safe following
distance
and that he only applied brakes when he was only 2.5 metres from the
insured driver's vehicle resulting in the collision
with the said
vehicle with its rear end.
20.
The
test for negligence is that of a reasonable man, namely that would a
reasonable man have foreseen the occurrence of the harm
or damage? If
so, would he have taken steps to prevent the occurrence of such harm.
In the context of motor vehicle driving, it
is generally expected of
a driver to throughout exercise the care of a reasonable driver. He
must be able to foresee possible damage
or damages that may result if
he or she were to deviate from such expected conduct. The driver is
also expected to take reasonable
steps to prevent such damage or harm
from occurring. As soon as the driver deviates from the expected
standard or degree of case
of a reasonable man or driver, he will be
negligent. See
Kruger v Coetzee
1966
(2) SA 528
(A).
21.
The
foreseeability test in the determination of negligence was enunciated
by the Appellate Division in this case,
Kruger
v Coetzee (supra).
The court held:
"For the purpose of liability culpa arises if-
(a)
A
deligens paternfamilias
in
the position of the defendant;
(i)
would
foresee a reasonable possibility of his conduct injuring another in
his person or property ... and
(ii)
would
take reasonable steps to guard against such occurrence; and
(b)
The
defendant failed to take such steps."
22.
In
Arthur v Bezuidenhout
&
Miery
1962
(2) SA 566
(A) this principle was formulated as follows:
"There is in my opinion,
only one enquiry, namely: has the plaintiff having regard to all the
evidence in the case, discharged
the onus of proving on a balance of
probabilities the negligence he has averred against the defendant?"
23.
The legal issue in this matter revolves
around a rear-end-collision, which the rules prescribe that the
driver following the other
vehicle (plaintiff) is presumed negligent
until the contrary is proven. However, this must be premised on the
general duties owed
by a driver to:
(a)
Keep a proper look out;
(b)
Travel at a reasonable speed;
(c)
Keep left; and
(d)
Maintain his speed properly .
24.
The
general approach to adopt when dealing with rear-end-collision is set
out by HB Kloppers in
The Law of
Collision in South Africa
(7
th
ED) page 78 as follows:
"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."
25.
The
driver who collides with another from the rear can escape
prima
facie
liability for negligence by
providing an explanation that shows that the collision occurred
because of the negligence of the driver
of the other vehicle or due
to other intervening circumstances.
26.
In
the instant case, the plaintiff wants to escape liability based on
sudden emergency, when he submitted that for the insured driver
to
have applied the brakes and reduced the speed created an untenable
situation for the plaintiff to avoid collision. The plaintiff
avers
that it is strengthened by the fact that the defendant did not tender
any evidence to rebut his version.
27.
I
agree with the submissions of the plaintiff that in certain
circumstances, his explanation may off-set his failure to keep the
required following distance, which is the reason he presented in his
own evidence.
28.
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.
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 Marine 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
traveling 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.
34.
In
the circumstances I make the following order:
34.1 The plaintiff's claim
for damages against the defendant is dismissed with costs.
TJ
RAULINGA
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
Heard
on:
For
the Plaintiff :
Adv U.B Makuya
Instructed
by:
Mphokane Attorneys
For
the Defendant :
Adv M.M Thipe
Instructed
by:
Moche Attorneys
Date
of Judgment:
02 February 2018