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[2018] ZAGPPHC 444
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Noah obo Minor v Road Accident Fund (2017/11539) [2018] ZAGPPHC 444 (13 March 2018)
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
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 [….]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 plaintiff's
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 plaintiff's 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