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[2018] ZAGPPHC 385
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Lotriet v Road Accident Fund (86925/2016) [2018] ZAGPPHC 385 (15 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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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
OF INTEREST
TO OTHER JUDGES
(3)
NOT REVISED.
CASE
NO: 86925/2016
15/2/2018
In
the matter between:
LOTRIET,
ANTHONIE LOWRENS
and
ROAD
ACCIDENT FUND
JUDGMENT
MTATI
AJ:
[1]
The plaintiff, Anthonie Lowrens Lotriet
is an adult male electrician who was born on [….] 1991 who
sustained injuries arising
out of the driving of a motor vehicle
driven by Steven Prinsloo and a motor cycle bearing registration
letters and numbers [….]
driven by the plaintiff .
[2]
The accident took place on 31 July 2015
at around 7h1Oat Oswald Street in the district of Langebaan in the
Western Cape. Both parties,
as per agreement, consented to the
separation of issues between liability and the amount of damages and
the trial proceeded only
on the question of Road Accident Fund's
liability.
[3] The
particulars of claim state that the "..
.sole cause of the
injuries sustained by the plaintiff was the negligence and/or
wrongful act of the driver and/or owner of the
insured vehicle, which
negligence and/or wrongful act materialized in one or more or all of
the following respects:
6.1.
He/she/it failed to keep
a
proper lookout;
6.2.
He/she/it failed to pay due
regard to the rights of road users, including those of other drivers,
passengers and pedestrians;
6.3.
He/she/it failed to take
reasonable steps to prevent the occurrence of harm to the plaintiff,
when he/she/it was capable and obliged
to do
so;
6.4.
He/she/it failed to take
reasonable precautions to ensure that insured vehicle was in
a
proper and safe working condition in
circumstances when it was foreseeable that same would be operating in
circumstances where it
could cause damage to others;
6.5.
He/she/it was negligent in
exercising
a
manoeuvre
on
a
road
without taking precautions that
a
reasonable person would have to have
ensured that same was safe and would not endanger others;
6.6.
He/she/it failed to give
reasonable indication of the nature of the actions he/she/it was
attempting;
6.7.
He/she/it failed to apply the
brakes of the insured vehicle timeously or at all;
6.8.
He/she/it failed to avoid
a
collision when by the exercise of
reasonable care he/she/it could and should have done so;
6.9.
He/she/it travelled at an
excessive speed having regard to the circumstances; and,
6.10.
He/she/it failed to observe the
plaintiff's motor cycle, turned right at a time when it was unsafe to
do so and collided with the
plaintiff's motor cycle."
[1]
[4]
The plaintiff testified and his evidence
can be summarised as follows: he was riding his motor cycle from his
girlfriend going to
work. He was following a bakkie which was also
driving towards Langebaan at a speed of approximately 60 km/h. The
speed limit on
that route decreases from 80km/h to 60km/h as you
approach Langebaan. Along the same road there is an intersection on
the left
hand side that is a gravel road. It is at this intersection
where a Golf vehicle suddenly turned right into the gravel road and
collided with plaintiff's motor cycle.
[5]
The Court was referred to the photos
indicating this intersection and the exact point of impact and where
the vehicles were stationed
immediately after the accident.
[6]
During cross-examination it transpired
that plaintiff had a learner's licence for the riding of the motor
bike. This point was not
pursued further since the riding of a motor
bike whilst in possession of a leaner's licence is permissible by
law. It was also
put to the plaintiff that the lights of his motor
bike were not switched on at the time when the accident took place
which was
vehemently denied. I will revert to this point later when
analyzing the evidence.
[7]
This was the only evidence presented on
behalf of the Plaintiff and the Road Accident Fund also called the
insured driver to testify.
[8]
Mr. Steven Prinsloo testified under oath
and stated that he was driving from the direction of Langebaan and
saw a vehicle in front
of him which appeared to be a Toyota Fortuner
with its headlights on. Immediately after this vehicle he then turned
right into
the gravel road and suddenly he collided with the motor
bike of the plaintiff. He testified that his headlights were on and
did
indicate his intention of turning right. He further stated that
he did not see the motor bike.
[9]
On a question by Counsel for the
Defendant if the headlights of the motor bike were switched on he
answered in the negative and
he later was confronted in cross
examination how he could see if the headlights were off when his
testimony was that he did not
see the motor bike.
[10] It is not in
dispute that when the accident took place it was in winter and it was
dark. Mr.
Prinsloo testified however that, whilst dark, it was a
clear day and through use of headlights, a person could see clearly.
[11] The Court
was not of the impression that any of the witnesses was going out of
his way to provide
an impressive version to the Court nor did the
Court find that any one of them was untruthful. Having said that, it
should be noted
that the two versions cannot both be true since they
are self-destructive. The Court should also be guided by the
responsibility
of each of the drivers. It is common cause that
plaintiff was proceeding straight on the road towards Langebaan
whereas Mr. Prinsloo
was executing a right turn.
Issues to be determined
[12]
In my view there are two issues to be
determined by the Court, firstly, whether in executing the right turn
on the road, sufficient
precautions were taken by Mr. Prinsloo as
should be expected of a reasonable person ensuring safety of other
road uses and secondly,
whether the actions of the plaintiff were in
any way contributory to the collision.
Legal Principles and case law
[13]
I have already mentioned that plaintiff
was proceeding straight towards Langebaan and Mr. Prinsloo wanted to
execute a right turn.
It needs to be mentioned that there is ample
authority relating to all drivers to keep a proper look out in all
instances. For
purposes of this case I will allude to instances where
a driver is of intention to execute a right turn. It is so that in
this
matter the road on which both plaintiff and Mr. Prinsloo were
driving on was a single lane for each driver and as such to execute
a
right turn, Mr. Prinsloo had to cross over the plaintiff's lane.
[14]
In the matter of
Jacobs
C
and
The Road Accident Fund
[2]
the Full Court of this Division,
through Msimeki J, had the following to say:
"1. Our Provincial Divisions and the
Supreme Court of Appeal have held that to tum across the path of
oncoming traffic in an
'inherent dangerous manoeuvre' and that
a
driver who intends executing such
a
manoeuvre bears
a
stringent duty to do
so
after satisfying himself that it is,
in deed, safe and then choosing the right moment (often called the
opportune moment) to do
so...It is therefore understandable why
a
driver turning right has
a
greater duty towards both the traffic
following as well as traffic approaching from the opposite direction.
2.
A driver turning to the right
must signal his intention clearly and avoid turning until an
opportune moment presents itself
(See
in this regard Welf v Chrstner
1976 (2)
SA
170
(N)).
3.
He should only turn to the right
once he has satisfied himself that there is room enough between his
motor vehicle and the approaching
vehicles to allow him to complete
the manoeuvre safely. (See
RV
Court,
1945 TPD 133
at 134).
4.
A driver 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. This assumption may continue until
it is shown that there
is
a
clear
intention to the contrary. (See
Van
Staden v Stocks,
1936 AD 18
and
Rustenburg v Otto,
1974 (2)
SA
268
(C)
and
Old Mutual Fire and General
Insurance
Co
of
Rhodesia (PVT) LTD and Others v Britz and Another 1976 (2)
SA
650 (RAD).
5.
Drivers who see
a
driver signaling his intention to
turn right are entitled to assume and accept that that driver will
only execute his turn to the
right at
a
safe and opportune moment. This is
so
because they are not obliged to guard
against the unreasonable and negligent actions of
a
driver who signals his intention to
tum to the right. In this regard Van Winsen AJA (as he then was) in
the matter of
Sierborger v
South African Railways
&
Harbours ,
1961 (1) SA 498
(AD) at 504
-
505
said:
'....
the answer seems to be 'none other than
keep
a
look-out'.
There was no obligation upon him
to stop or even slowdown because of having seen
a
signal
.
In parenthesis, it need scarcely be remarked, that du Preez's
statement in evidence that had he seen appellant's signal he would
have stopped, even supposing it to be true, cannot burden him with an
obligation not imposed by Jaw.' (Emphasis included)..."
Common cause facts
[15]
Without repeating what is already stated
supra
the
following facts are common cause:
1.
The Plaintiff was driving behind a
bakkie towards Langebaan;
2.
The accident took place on 31 July 2015,
in winter around 7h10 and it was still dark;
3.
Mr. Prinsloo wanted to execute a right
turn into a gravel road
[16] Having
reviewed the conspectus of evidence and the relevant authority, I am
convinced that there
was a larger burden on the part of Mr. Prinsloo
to satisfy himself that there indeed was no obstacle in front him to
execute a
right turn. The available authority is clear on what was
expected of him and further that there was no real obligation on the
part
of plaintiff to take extra care even if he saw the insured's
vehicle except if there was clear indication that he was not going
to
stop.
[17] In the
result, I make the following order:
1.
The Defendant is liable for 100% of the
plaintiff's proven or agreed damages;
2.
The Defendant is ordered to pay
plaintiff's costs on the merits; and,
3.
The determination of quantum is
postponed
sine die.
MTATI AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
FOR
THE PLAINTIFF: ADVOCATE: M. VAN DER BARSELAAR
INSTRUCTED
BY: DE BROGLIO ATTORNEYS
FOR THE DEFENDANT: ADVOCATE M. PIENAAR
INSTRUCTED BY: MARIVATE ATTORNEYS
[1]
Para 6 of the Particulars of Claim
[2]
A402/2008 SA GNP at p22