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[2018] ZAGPPHC 381
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Noah obo Minor v Road Accident Fund (2017/11539) [2018] ZAGPPHC 381 (13 March 2018)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
Case
Number: 2017/11539
13/3/2018
In
the matter between:
LML
NOAH obo
Minor
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MOKOSE
AJ
[1]
This
is a loss of support claim under Section 17 of the Road Accident Fund
Act 56 of 1996 (as amended) by the plaintiff in her capacity
as the
biological mother and natural guardian of her minor child, R P M who
was aged 5 years at the time of the accident.
[2]
The
plaintiff's claim arises from the death of Lebohang Abraham Mabuya
who was involved in a motor vehicle collision which occurred
on 5
July 2015 on the N3 Toll Road near Warden between motor vehicle
bearing registration number [….] being driven by the
deceased
and motor vehicle bearing registration number [….] NW driven
by the insured driver.
[3]
It
was agreed between the parties that the determination of the merits
and quantum be separated. The determination of the quantum
is
therefore postponed. The only issue to be determined between the
parties is the merits, that is, the liability of the defendant
for
the damages suffered by the plaintiff as a result of the motor
vehicle collision. The plaintiff bears the onus of establishing
on a
balance of probabilities the negligence of the insured driver being
the primary cause of the collision. Similarly, the defendant
bears
the onus of proving that the negligence of the deceased was the sole
cause of the collision.
[4]
It
is common cause that the plaintiff only need prove the proverbial 1%
negligence on the part of the insured driver in order to
get 100%
damages that he or she is entitled to recover from the defendant.
[5]
The
plaintiff alleges in her particulars of claim that the insured driver
was the sole cause of the accident in that he was negligent
in one or
more or all of the following respects:
(i)
he
failed to keep a proper lookout;
(ii)
he
drove too fast under the circumstances;
(iii)
he
drove without consideration for safety of other road users, in
particular the plaintiff;
(iv)
he
failed to keep the insured vehicle under proper control;
(v)
he
failed to avoid a collision when, by the exercise of reasonable care
and consideration, he could and should have done so; and
(vi)
he
failed to apply the brakes of the said vehicle timeously or at all.
[6]
In
its plea the defendant denied all the grounds of negligence and
specifically pleaded that the deceased was the sole cause of
the
accident. It prayed that the plaintiff's claim be dismissed with
costs. The defendant relied on the following grounds of negligence,
that the plaintiff:
(a)
failed
to keep a proper look-out;
(b)
failed
to take any, alternatively sufficient cognisance of the presence, the
actions and the visibly intended and/or probable further
actions of
the driver of the insured vehicle;
(c)
failed
to avoid a collision when by the exercise of skill and care he could
and should have done so;
(d)
travelled
at an excessive speed under the circumstances:
(e)
failed
to have any, alternatively adequate regard for other vehicles on the
road, in particular to the vehicle driven by the insured
driver;
(f)
failed
to exercise any, alternatively, proper control over the motor vehicle
he was driving; and
(g)
failed
to apply his brakes timeously, adequately or at all.
[7]
The
matter had previously been brought before court but was postponed due
to the lack of witnesses. In dealing with liability two
witnesses
being the insured driver and a police officer who attended on the
accident were subpoenaed to appear in court.
[8]
Fakazi
Herbet Mbhele, the insured driver gave evidence that on the day in
question, he was driving a Dodge Caliber bearing registration
number
[….]at approximately 18:00 on the N3 Toll Road in a southerly
direction towards Durban. He testified that although
he worked in
Limpopo, he was not at work due to his company having been affected
by strike action.
[9]
Mr
Mbhele testified that the traffic flow on the day in question was
heavier in the direction of Johannesburg. The weather conditions
were
clear as also the road which was also flat. It was dusk and there
were no street lights in the area.
[10] The
insured driver testified that the speed limit on that stretch of the
road was 120 km per hour and
that he was driving at that approximate
speed. He testified further that there were two lanes of travel in
both directions and
that he was travelling on the extreme left-hand
lane when he suddenly noticed a silver-grey VW Polo cross the barrier
line, enter
his direct path of travel and travel towards his motor
vehicle. He could not avoid the vehicle and a head-on collision
ensued.
[11]
Mr
Mbhele could not remember anything else of the accident as he fell
unconscious on impact but offered an explanation that the
cause of
the accident was the loss of control of the motor vehicle driven by
the deceased driver. He confirmed further that as
a result of the
impact the engine of the Ford Caliber, which he was driving, was
dislodged from the car and landed on the road.
[12]
In
cross-examination, Mr Mbhele conceded that it was possible that he
was driving at slightly over the speed limit but not over
135 km per
hour as he was in a hurry to get back to Durban as his fiancee was
going to work the next morning. He indicated that
it was also
possible that he was driving at a speed less than the limit. He was
not sure about the point of impact but was of the
opinion that he was
not the sole cause of the accident as per the particulars of claim.
Furthermore, Mr Mbhele confirmed that he
failed to apply his brakes
as he believed that doing so would have caused a bigger accident. He
could not have done anything to
avoid the accident as it happened
very fast.
[13]
Further
in cross-examination, Mr Mbhele conceded that the road had a shoulder
and that he could have moved onto it. The vehicles
driving both in
front of him and behind him were at a fair distance as to enable him
to move onto the shoulder or the other lane,
should he have so
required. He conceded further that he has no knowledge whether he
would have avoided the accident had he been
driving at a slower
speed.
[14]
The
second witness was Makoko Ephraim Malefane, a policeman stationed at
the Roadside Police Station in the Free State. He testified
that his
job included investigations of motor vehicle accidents. He confirmed
that he had attended at the scene of an accident
on 5 July 2015 in
which the two abovementioned vehicles had been involved on the N3
Toll Road.
[15]
Mr
Malefane testified that the traffic was heavy in the northerly
direction due to it having been a weekend when there was much
social
activity in Durban. It was not so of the traffic flow in the
southerly direction. He confirmed that the point of impact
was on the
fast lane (right-hand lane) in the southerly direction, that is,
towards Durban. He confirmed further that the vehicle
being driven by
the deceased crossed the barrier line and also that the engine of the
Dodge Caliber was dislodged on impact.
[16]
Mr
Malefane testified that the deceased's motor vehicle could not have
been driving at an excessive speed due to the heavy traffic
flow in
the direction in which he travelled. He was unable to ascertain the
speed of the VW Polo as it did not have a tracking
device. The Dodge
Caliber's tracking device was also not working due to its insurance
having been cancelled some two months prior
to the collision. He
confirmed that in a subsequent interview with the driver, he was not
given any confirmation as to the speed
he drove at as he had no
recollection at all. The insured driver did however confirm to him
that he could not avoid the accident
and that he was in a hurry to
get back to Durban as his fiancee was due to return to work the next
day.
[17]
At
the close of the plaintiffs case the defendant applied for absolution
from the instance. Counsel for the defendant submitted
that there was
no prima facie proof that the insured driver had been negligent and
suggested that the threat of sudden emergency
caused the negligent
action on the part of the insured driver. He relied on the judgement
of Hughes J in the matter of
Grobler
v Road Accident Fund
2013 ZAGPHC 417
at
para 25 where it was said that:
"The
enquiry does not end there I have to determine whether the insured
driver was negligent in any way. In addressing this,
I considered the
following extract also stated in Kloppers (supra) on page 21 para 5:
A driver
is permitted to make errors of judgment if a reasonable driver could
have made the same error in the circumstances. An
error of judgment
may be present even when there is no suddenness or unexpectedness. A
driver is also not negligent when he acts
'negligently' when
threatened by a sudden and imminent danger.·
[18]
Counsel
for the plaintiff rejected this argument of sudden emergency as it
had not been pleaded by the defendant nor did the insured
driver give
evidence of such. He argued that there was negligence on the part of
the insured driver who drove at an excessive speed
and failed to keep
a proper look out.
[19]
The
application for absolution was dismissed on the ground that there was
a
prima facie
case
that had been made out by the plaintiff.
[20]
The
defendant closed its case without calling any witnesses.
[21]
A
duty to keep a proper look out and a duty to drive at a reasonable
speed are logically interrelated. Consequently, for a driver
at night
to travel at a speed which does not permit him to stop within his
range of vision means that he will be driving towards
a section of
the road which his eyes cannot see. Such a speed precludes a driver
from keeping a proper look out.
WE Cooper: Delictual Liability
in Motor Law (1996) ed. p139
[22]
In
his evidence, the insured driver confirmed that the visibility at the
time of the collision was not as clear as daylight. It
was dusk. He
furthermore conceded that he had been driving at a speed faster than
the speed limit and that he failed to apply his
brakes as he thought
by so doing, it would cause a big accident. I am of the considered
view that the insured driver had failed
to keep a proper look out
especially at a time when the visibility was unclear.
[23]
It
cannot be concluded that there had been an error in judgment on the
part of the insured driver nor can it be said that the insured
driver
failed to react to the oncoming vehicle because of shock. This was
not pleaded by the defendant. The defendant merely pleaded
that an
incorrect action had been taken by the insured driver.
[24]
I
am of the considered view that the insured driver was negligent. As
such, I make the following order:
(i)
The
defendant is 100% liable for the plaintiffs proven or agreed damages;
(ii)
The
defendant is liable for costs of suit.
MOKOSE
AJ
Acting Judge of the High
Court of South Africa
Gauteng Division,
Pretoria