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[2018] ZAGPPHC 536
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Ntaka v Road Accident Fund (19868/13) [2018] ZAGPPHC 536 (6 February 2018)
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REPUBLIC OF
SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 19868/13
6/2/2018
In
the matter between:
MCEBISI
PETROS
NTAKA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
TEFFO,
J:
INTRODUCTION
[1]
The
plaintiff sued the defendant for damages suffered as a result of
bodily injuries sustained by him in a motor vehicle collision.
[2]
The
collision occurred on or about 23 July 2009 at approximately 04h55 on
the Schweizer-Reneke Road, Vryburg between the motor vehicle
with
registration letters and numbers [….] there and then driven by
the plaintiff at the time and a stationary motor vehicle
with
registration letters and numbers [….] there and then driven by
a driver who could not be identified at the time (hereinafter
referred to as the
"insured
driver').
[3]
The
defendant denies liability.
[4]
At
the commencement of the trial I was requested to separate the issue
of quantum from the merits and determine liability only in
terms of
Rule 33(4) of the Uniform Rules of Court. I accordingly granted the
order and the issue of quantum was postponed for later
determination.
BACKGROUND
[5]
The following facts are common cause between the parties: The
locus
standi
of the plaintiff to institute the action, the fact that
the collision took place, the date and place of the accident and the
defendant's
liability to compensate the plaintiff for the injuries
sustained
as a
result of the collision save for the
apportionment of damages.
THE ISSUE
[6]
The
issue for determination is whether or not the plaintiff was in part,
if at all, contributory negligent in causing the collision
and
whether an apportionment in terms of the provisions of the
Apportionment of Damages Act, No 34 of 1956 as amended, is
applicable.
THE PLEADINGS
[7]
The
basis of the plaintiff's claim is that the sole cause of the
collision was the negligence of the insured driver of the defendant.
He specifically pleaded in paragraph 7 of his particulars of claim
that the insured driver was negligent in one or more or all
of the
following respects:
7.1
he
failed to pay due regard to other road users, in particular the
plaintiff;
7.2
he
failed to keep the insured vehicle under adequate or proper control;
7.3
he
failed to avoid the collision when, by the exercise of reasonable
care, he could and should have done so·,
7.4
he
parked his vehicle in the middle of the highway;
7.5
he
left his vehicle unattended in the middle of the highway and failed
to place a triangle or any other warning device behind his
vehicle.
[8]
At
paragraph 5 of its amended plea, the defendant denied liability. It
pleaded in the alternative that should it be found that its
insured
driver was negligent as alleged or at all, all of which is denied,
such negligence was not the cause of the collision.
The defendant
further pleaded in the alternative that should it be found that its
insured driver was negligent as alleged or at
all, all of which is
denied, the cause of the collision was the joint and contributory
negligence of its insured driver and the
plaintiff. It contended that
the court should grant an order that the damages suffered be
apportioned to the extent at which the
plaintiff could be found to
have been contributory negligent in terms of the provisions of the
Apportionment of Damages Act No
34 of 1956, as amended.
[9]
The defendant pleaded that the plaintiff was contributory negligent
in one or more
or all of the following respects:
9.1
he
failed to keep a proper look-out;
9.2
he
failed to avoid a collision when with the exercise of reasonable care
and skill, he could and should have done so;
9.3
he
failed to apply the brakes of his vehicle adequately, timeously or at
all;
9.4
he drove too fast having regard to the
prevailing circumstances;
9.5
he failed to keep his vehicle under
proper control;
9.6
he
failed to satisfy himself as to the presence of other traffic,
alternatively, failed to respect the rights of other road users;
9.7
he
failed to exercise the care a reasonable person would have exercised
under the prevailing circumstances.
THE EVIDENCE
[10] The
plaintiff testified in support of his case and also called Warrant
Officer, Kalamore. The
defendant closed its case without calling any
witnesses.
[11]
The plaintiff testified that on 23 July
2009, he was travelling in a truck from Alrode, Gauteng on his way to
Upington. His co-worker
took over the driving from Klerksdorp until
at Schweizer-Reneke road where he bought refreshments, which included
an energy drink,
at a filling station. He took over the driving from
there and proceeded in the direction of Vryburg. It was dark. As he
was driving
the truck on the Schweizer-Reneke road, at a distance of
± 20 km towards Vryburg, he collided with the insured vehicle
which
was stationary on the road. There was no triangle next to the
insured vehicle. He tried to reduce the speed prior to the collision.
In his endeavour to reduce the speed, he saw lights of an oncoming
motor vehicle from the opposite direction. He failed to bring
the
truck to a standstill and the truck collided with the stationary
vehicle.
[12]
He got trapped in the cabin of the
truck. Glass particles penetrated his eyes and he had no vision
thereafter. His co-workers, Wiseman
and Andile with whom he was
travelling, summoned emergency services who took him
out of the truck.
[13]
He was rushed to the hospital in Vryburg
and later transferred to a Medi-Clinic in Bloemfontein.
[14]
Under cross-examination he testified
that the truck he was driving, was loaded with pallets of water
bottles, juices and chocolates.
He did not know the weight of the
load on the truck, and the truck's load capactiy. It was a big truck.
He drove the truck on the
road where the speed limit was 120 km per
hour. He was driving at a speed limit of 80 km per hour prior to the
collision. His lights
were on bright and immediately he saw the
lights of the motor vehicle which was coming from the opposite
direction, he switched
them to dim. His headlights were on dim when
the collision took place. He first saw the oncoming motor vehicle's
lights before
he saw the insured vehicle. He could not tell how long
in seconds he switched his lights from bright to dim before the
collision.
All what he said was that immediately after he had
switched his lights to dim, he noticed the stationary vehicle on the
road. He
testified that his concentration was on the road and on the
oncoming motor vehicle. When his lights were still on bright, he did
not see the stationary motor vehicle. He does not know what happened
to the oncoming vehicle because after the collision the glass
particles penetrated his eyes and he did not see anything.
[15]
He could not elaborate how much time it
took after he switched his lights to dim for the collision to take
place because the collision
happened fast. He denied that the
accident happened for a short period of time. He was adamant that
because he was driving a truck
and not a small sedan, the accident
could have taken a long time. This, he testified, could have been
because the load on the truck
also had an impact for it to stop
quickly. He could not tell whether the time that lapsed prior to the
collision and after he switched
his lights from bright to dim, was
short or long.
[16]
He was cross-examined about the
affidavit that he made to his attorneys. The affidavit appears on
page 57 of Bundle "C"
- The documents. The crux of the
cross-examination was that he did not mention the oncoming motor
vehicle in the affidavit and
why he did not mention it. Paragraphs 3
and 4 of his affidavit read as follows:
"3.
On the 23rd July 2009 at about 04h50, I was the driver of a truck
with registration
letters and numbers [….] which was
travelling on the Schweizer-Reneke Road in Vryburg.
4. Whilst
travelling I suddenly hit
a
stationary trailer which had no
lights, indicators or triangle."
[17]
He confirmed that the signature on the
affidavit was his. He testified that he told his attorney about the
oncoming vehicle but
denied seeing the affidavit beforehand.
[18]
warrant Officer Garenamotse Michael
Kalamore also testified. His evidence was as follows: He is a police
officer with 27 years'
service in the South African Police Service
stationed at Makgobistad in Mafikeng. On 23 July 2009 he was
stationed in Vryburg.
On the same day in the early hours of the
morning around 04:00, he was at work. He was performing his duties
together with Constable
Congwane posted outside the police station.
He received a message from the police station on a two way radio that
a collision took
place between a truck and a motor vehicle on the
road between Vryburg and Schweizer-Renek.e He and Constable Congwane
immediately
rushed to the scene. Upon their arrival at the accident
scene, he noticed a damaged truck on the road, clothing, blankets,
mirrors
and some luggage were lying around the truck. There were two
male persons who turned out to be passengers who were in the truck
prior to the collision. The two male persons pointed out a van to him
that had a trailer and told him that the van collided with
the truck.
As he was looking at where the van and the trailer had landed, he
also noticed another three male persons.
[19]
The two male persons who told him that
they were passengers in the truck further informed him that the
driver of the truck was trapped
in the cabin of the truck. He
immediately phoned the head office to send them the necessary
personnel and the ambulance services.
[20]
He subsequently approached the other
three male persons. He introduced himself to them and asked them what
happened. They informed
him that they were from Pakistan. They were
travelling in the bakkie that was involved in an accident with the
truck. They had
just gone to do some shopping for items they had
intended selling in the neighbourhood.They further informed him that
the driver
of the bakkie left them at the scene in order to go and
seek help in Vryburg. He asked them what happened that led to the
accident.
One of them informed him that one of the rear wheels of the
bakkie dislocated from the bakkie and the driver managed to bring it
to a standstill though it was still on the road. He asked them how
come did the truck collide with the bakkie from the rear. They
were
hesitant to tell him. In the process they were exchanging calls with
their acquaintances. One of them said he only noticed
the truck
coming and colliding with the bakkie from behind. They further told
him that they were standing outside the road and
not inside the
bakkie when the collision between the bakkie and the truck took
place. Because the scene was messed up, the emergency
services
assisted in putting the cones on the road and also to direct the
traffic. As the emergency services were busy with the
driver who was
trapped in the truck, he marked the points of impact. He also wrote
his statement.
[21]
The driver of the truck was then
transported to the hospital. He also took down the names of the
passengers of the truck. They informed
him that they were asleep and
were awaken by the sound of the collision.
[22]
He also phoned the police station to
check the whereabouts of the accident sketch plan team and the
investigators. Unfortunately
they did not come. The charge office
sent them a nearby breakdown to remove the truck on the road.
Eventually he and his crew member,
Constable Congwane left the scene
and proceeded to Vryburg police station where they captured the
information. He did not take
statements from the passengers of the
truck. He only interviewed them.
[23]
The accident report was compiled by
Constable Congwane. He marked the points of impact with a stone. He
made markings where the
truck was standing still, and where the
wheels of the truck were on the tarred surface of the road. He also
took loose stones and
placed them where the trailer landed. He was
asked where was the point of impact and he explained that from his
observation and
the explanation that was given to him by the
passengers of the bakkie, where the bakkie lost its wheel there is a
marked shaft
on the wheel which had started to make a whole on the
road and where it was pointed out to him as the standstill point.
There were
also some markings of the impact between where the truck
and the bakkie was up to where the truck came to a standstill. The
markings
were on the surface of the road and this includes the point
of impact between the truck and the trailer. He explained that the
collision between the truck and the trailer was on the road and that
as a result of the collision, the trailer was ejected from
the road
on to the grass part outside the road.
[24]
Under cross-examination he testified
that by virtue of his work, he does the markings on the road and the
accident sketch plan department
will come to do the measurements with
a measuring tape.
THE LAW
[25]
Section 17(1) of the Road Accident Fund
Act 56 of 1996
(“the
Act”)
provides that there must be negligence in order to establish
liability of the Road Accident Fund ("RAF').
[26]
In
Kruger
v Coetzee
1966 (2) SA 428
(A) the
following remarks were made:
"When
a
person is negligent he or she is
reproached for his or her conduct or attitude of carelessness and his
or her inattentiveness because
his or her conduct does not comply
with the standard of care legally required of him or her. The
standard used to judge the conduct
of
a
person is that of a reasonable person
or bonus paterfamilias. If the principle of negligence is applied to
a
motor
vehicle accident, the court places itself as far
as
possible in the place of a driver at
the time of the accident. The conduct of the driver is then compared
to that of a reasonable
person under the then prevailing
circumstances. A driver of
a
motor
vehicle is negligent if he or she is capable of reasonably foreseeing
that his or her conduct will cause damage and such driver
does not
take reasonable steps to prevent such damage from occurring."
[27]
The slightest degree of negligence is
sufficient to satisfy the requirements of negligence under section
17(1) of the Act and consequently
to render the RAF liable (see Van
der Walt and Midgley
Principles and
Cases Vol 1 par 96, Cooper
Delictual
Liability in
Motor
Law
77) .
[28]
In
Road
Accident Fund v Mehlomakulu
2009 (5)
SA 390
(E) the full court of the same division was confronted with
almost similar set of facts as in the present matter except that the
accident happened at night and that it took place on a road that was
curving. In its judgment the court said the following:
"The plaintiff came around
a
curve on an open country road at
night. He
was
suddenly
faced with an unlightened, stationary vehicle immediately in front of
him in his lane of travel, which he was unable to
avoid. He does not
know how it got there or what it was doing there. But he does not
know that it should have been there. He is
entitled to say re ipsa
loquitur. It is then over to the defendant to explain how the
obstruction got there, what it was doing
there and why it was still
there when he arrived. There is nothing unfair about the law imposing
a
duty
of rebuttal on the defendant in these circumstances. It was after all
the insured vehicles, for which the defendant is by statute
liable,
which formed the dangerous obstruction in the road, and their drivers
would have caused them to be there. Absent an explanation
by the
defendant which tells the remainder of the story and which is
sufficient to displace the inference of negligence, evidence
of the
creation of
a
danger
in the roadway at night, to my mind compels an inference of
negligence. Is there before the Court an explanation, based on
fact
and not speculation, sufficient to displace the inference."
[29]
In
Hoffman
v South African Railways and Harbours
1955
(4) SA
476
(A) the following principle was articulated:
"If he Crown proves that
a
pedestrian or cyclist or other object
with which the motorist collided, was visible so that
a
person keeping
a
proper look-out or driving at a
reasonable speed in the circumstances ought to have
seen
the obstruction in time to avoid the
accident, then the inference of negligence can be drawn. But where
the evidence does not show
that the person with whom the car collided
was visible in that sense then there is no ground for drawing the
inference of negligence.
'Could with the exercise of reasonable care'
is
a
legitimate
elaboration of the word 'should,' provided that due emphasis on the
word 'reasonable' is preserved and that one does
not slip into the
error of supposing that, if the collision could have been avoided, it
therefore could have been, in the sense
that failure to avoid it
proves negligence
...
No rule of law can be laid down that
a
person driving in the dark must be able to pull up within the
limits of his vision. It is of course difficult to refrain from
generalising
in
a
matter of this kind; careless driving of
swift vehicles is certainly dangerous and there is obviously
a
relationship between speed and visibility. But the generalisations
regarding night driving, of which our reports contain many examples,
must not be construed as laying down a rule of law can be applied
as
governing the facts of each case of this kind
...
This
ultimate issue always is whether the facts establish negligence, not
whether they show that the driver in question failed to
keep his
speed within the range of his vision, though such failure may in
a
particular
case
be
a
crucial factor in deciding
whether or not there was negligence."
[30]
The only evidence before court is that
of the plaintiff. Although no evidence was presented on behalf of the
defendant, it was argued
that should the court find that the insured
driver of the defendant was negilgent in causing the collision, it
should also find
that the plaintiff was also contributory negligent
in causing the collision. It was argued that the plaintiff was
hesitant in answering
questions during cross-examination pertaining
to when did he switch the lights of the truck he was driving at the
time of the collision
from bright to dim and how long did that happen
prior to the collision. It was submitted that he testified during
cross-examination
that immediately after he dimmed his lights, he
collided with the insured vehicle. It was further submitted that at
some stage
during cross-examination, he testified that there was a
longer period since he dimmed the lights and collided with the
insured
vehicle.
[31]
The evidence of the plaintiff and
Warrant Officer, Kalamore was not contested. Their evidence
corroborated each other in respect
of the fact that the insured
vehicle was left unattended on the road, there was no triangle on the
accident scene and the driver
thereof was not in the vicinity.
[32] On a balance
of probabilities these are the objective facts of what had happened:
The plaintiff
was driving a truck with a cargo on a dark road on the
highway between Schweizer-Reneke and Vryburg in the early hours of
the morning
in July 2009. He was in the company of his two crew
members who were asleep at the time. They were awaken by the sound of
the collision.
As he was driving he came across an unattended
stationary motor vehicle on his lane of travel. The insured vehicle
was loaded and
carrying a trailer. It did not have lights and there
was no sign or triangle next to it to alert the traffic approaching,
including
the plaintiff, of its presence on the road. He tried to
reduce the speed of the truck he was driving. In the process he
noticed
the lights of the oncoming motor vehicle. He immediately
switched his bright lights to dim. Shortly thereafter he collided
with
the insured vehicle. He could not swerve to the right to avoid
the collision because there was an oncoming motor vehicle
approaching.
He saw the unattended motor vehicle at close range.
There is no evidence that the plaintiff was negligent, in my view.
According
to his evidence, the plaintiff could not move to the right
to avoid the collision because there was oncoming traffic on the
opposite
direction.
[33]
I find the plaintiff and his witness,
Warrant Officer Kalamore to have been impressive good and credible
witnesses. In my view there
is no evidence to suggest that the
plaintiff was contributory negligent.
[34]
It is my view as alluded to by the
plaintiff that a truck with a cargo would not stop promptly like a
sedan motor vehicle. The amount
of time it takes to stop would not be
the same. The fact that the plaintiff testified that he dimmed his
lights when he noticed
the lights of the oncoming motor vehicle, was
in my view, the right thing to do. A reasonable driver in his
position would have
done the same, otherwise the consequences of the
collision would have been too ghastly to contemplate. The plaintiff
testified
during cross examination that his lights were on
bright and immediately he saw the lights of the oncoming motor
vehicle, he
switched them to dim. He first saw the oncoming vehicle's
lights before he saw the insured vehicle. He could not tell how long
in seconds she switched his lights from bright to dim before the
collision. He testified that immediately after he had switched
his
lights to dim, he noticed the stationary vehicle on the road and when
the collision took place, his lights were on dim. He
was clear that
when his lights were still on bright, he did not see the insured
vehicle. Nowhere in the evidence did he indicate
that it took long
after he dimmed the lights of the truck for the collision to take
place.
[35]
The fact that the insured vehicle was
left in the middle of a dark road stationary, unattended with no
lights and a triangle or
road signs to alert other road users of its
presence on the road is, in my
view,
sufficient to establish negligence
on the part of the insured driver who left it there unattended and in
those circumstances. In
the absence of his evidence to rebut the
plaintiff's evidence and an explanation why it was on the road as.
the plaintiff found
it, the plaintiff's evidence stands uncontested.
When he left the insured vehicle on the road as it was found, the
insured driver
reasonably foresaw that his or her conduct would cause
damage but did not take reasonable steps to prevent such damage from
occurring.
He was therefore, in my view, negligent. By leaving an
unattended stationary vehicle on the road, he formed a dangerous
obstruction
in the middle of the road. No rule of law can be laid
down that a person driving in the dark must be able to pull up within
the
limits of his vision. The ultimate issue always is whether the
facts establish negligence, not whether they show that the driver
in
question failed to keep his speed within the range of his vision,
though such failure may in a particular case be a crucial
factor in
deciding whether or not there was negligence.
[36]
The plaintiff was taken to task during
cross-examination about the fact that he never mentioned the oncoming
motor vehicle in the
section 19(f) affidavit and that the only time
he mentioned it was when he testified. He was adamant in his evidence
that he mentioned
the oncoming motor vehicle to his attorney and
could not tell why that was not mentioned in his affidavit. He did
not read his
a davit beforehand although he signed it. Mention of
this evidence is, in my view, immaterial. It does not take away the
fact that
there was this dangerous obstruction on the road which the
plaintiff could not avoid under the circumstances. It was never the
plaintiff's evidence that the oncoming vehicle's lights obstructed
his view prior to the collision. The crux of his evidence was
that he
could not avoid the collision by swerving to the right due to the
fact that an oncoming motor vehicle was approaching hence
he had to
switch his bright lights to dim which a reasonably driver could have
done.
[37]
A sworn affidavit is not subject to
cross-examination. It need not be as detailed as evidence in court.
The plaintiff cannot therefore,
in my
view,
be faulted for not mentioning the
oncoming motor vehicle in the section 19(f) affidavit he made to his
attorneys.
[38]
Having considered the totality of the
evidence, I am not persuaded in any way that there is any shred of
evidence to establish any
negligence on the part of the plaintiff.
The Apportionment of Damages Act is therefore not applicable. The
sole cause of the collision,
in my view, was the negligence of the
insured driver of the defendant who formed a dangerous obstruction on
the road by leaving
a stationary, unattended motor vehicle with no
lights and/or signs in the middle of a dark road without alerting
other road users
of its presence. There is no evidence at all that
the stationary motor vehicle was visible on the road so that a
reasonable driver
keeping a proper look-out or driving at a
reasonable speed in the circumstances ought to have seen the
obstruction in time to avoid
the collision. The plaintiff's evidence
that he was driving at a speed of 80 km per hour on the road with a
speed limit of 120
km per hour was also not contested.
[39]
Consequently I make the following order:
39.1
The
plaintiff's action succeeds and the defendant is held 100% liable for
plaintiff's proven damages.
39.2
The
defendant's plea of the apportionment of the damage is dismissed.
39.3
The
defendant should pay the costs of the plaintiff's action.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
For
the plaintiff
J Nkeli
Instructed
by
Jerry Nkeli & Associates Inc
For
the defendant
C P J Strydom
Instructed
by
Fourie Fismer Inc
Heard
on
2 June 2017
Handed
down on
6 February 2018