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[2018] ZAGPPHC 537
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Pillay v Road Accident Fund (A 661/2015) [2018] ZAGPPHC 537 (27 March 2018)
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Certain
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IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: A 661/2015
27/3/2018
In
the matter between:
DANNY
PILLAY
Appellant
and
ROAD
ACCIDENT
FUND
Respondent
JUDGMENT
MAAKANE
AJ
INTRODUCTION:
1.
This
matter came before my brothers and I as an appeal to the Full Bench
of this division.
2.
The
Appellant, who was the Plaintiff in the Court a
quo
instituted a claim for delictual
damages against the Respondent in the Pretoria Regional Court. The
claim emanates from bodily injuries
he sustained in a motor vehicle
accident that occurred on 11
th
of March 2012 in Pretoria West.
3.
The
matter went on trial and having heard evidence, the Regional Court
Magistrate granted an order of absolution from the instances
with
costs.
4.
It
is against the Magistrate's judgment and order that the Appellant now
appeals. Initially the matter served before my sisters,
Moseamo J and
Nobanda AJ on 1 April 2016. They ordered that the matter be referred
to and considered by the Full Bench of this
Court.
PLEADINGS:
5.
In
his particulars of claim, Appellant alleges that the insured driver
was negligent and that her negligence was the sole cause
of the
collision to which I have referred. In this regard, Appellant makes
the following allegations of negligence on the part
of the insured
driver:
"
4.
The aforesaid collision was
caused solely by the negligence of the driver of the said insured
vehicle, she being negligent in one
or more or all of the following
respects:
5.1
She
travelled at an excessive speed;
5.2
She
failed to reduce speed when she ought to and could have done so;
5.3
She
failed to keep
a
proper
lookout;
5.4
She
failed to have due consideration to the other users of the road;
5.5
She
failed to keep the said vehicle under proper or any control;
5.6
She
failed to take any or adequate steps to avoid the collision when, by
the exercise of reasonable and diligence, she could and
should have
done
so;
5.7
She
failed to apply the brakes of her vehicle either timeously, adequate
or at all and drove into the Plaintiff's motor vehicle;
5.8
She
moved into the oncoming lane of traffic at a dangerous and
inappropriate time."
6.
In
its plea, Respondent denies negligence on the part of the insured
driver. It instead alleges that the cause of the accident was
negligence on the part of the Appellant and goes on to set out the
respects upon which it relies for this allegation. I find it
unnecessary to deal any further with alternative pleas raised, at
this stage.
MAIN
ISSUES FOR DETERMINATION:
7.
The
main issues between the parties and for the determination by this
Court are whether:
7.1
The
evidence on record and adduced by the Appellant in the Court a
quo
is sufficient enough for a
reasonable Court to give judgment in favour of the Appellant.
7.2
The
Regional Court Magistrate in the light of all evidence led in the
Court a
quo,
was
correct in granting an order of absolution from the instances as she
did.
7.3
The
Regional Court Magistrate was correct in finding that at the close of
the Respondent's case, she was faced with two (2) uncorroborated
versions of the parties which versions according to her, were
mutually destructive.
BACKGROUND
AND EVIDENCE LED:
8.
It
was common cause at the commencement of the trial that the Appellant
bore the
onus
of
proof as well as the duty to begin. The parties also agreed that the
trial will proceed on determination of liability only, issues
of
merits and liability having been separated in terms of Rule 33(4) of
the Uniform Rules of this Court.
9.
In
his endeavour to discharge the
onus
that rests on him, Appellant was the
first to give evidence. According to the record, his evidence was in
a nutshell to the following
effect:
9.1
On
11 March 2012, he was the driver of a Go NOW Double Cab van, with
registration letters and numbers [….]. He was in the
company
of his wife who was seated on the front left passenger seat.
9.2
He
was travelling from West to East along W F Nkomo Street, formerly
known as Church Street, west of Pretoria. It was around 16H00
and the
road was fairly busy due to afternoon traffic. They were driving to
the Spar in Pretoria West.
9.3
While
driving as he did, he saw a green Volvo Sedan driving in the opposite
direction. The Volvo swerved and encroached onto his
side of the
road. In other words, the Volvo was driven against oncoming traffic.
9.4
When
he saw the Volvo, he tried to avoid the collision by applying the
brakes of his vehicle and also swerving towards the left
of the road.
However, because the Volvo came at a high speed he was unable to
avoid the collision. This resulted in a head on collision
between the
two (2) vehicles.
9.5
Both
motor vehicles were damaged on their front parts. After this
collision, he and his wife were and remained trapped in their
vehicle
and could not get out. They were ultimately rescued by emergency
services personnel.
9.6
He
disputed the Respondent's version that he was maneuvering a u-turn.
He adds that it was not possible for him to have tried to
execute a
u-turn maneuver. The reason is that the road was narrow and also busy
as this was during the usual afternoon rush hour.
10.
After
his testimony, he was cross-examined. However, he stuck to his
version and the cross-examination did not yield anything material.
11.
The
next witness was the Appellant's wife. She corroborated his version
in all material respects. She was also cross-examined, but
also stuck
to her version with regard to the manner in which the accident
occurred.
12.
The
third and final witness was a certain Mr Toney Pather
("
Mr Pather'' ).
He also corroborated
the version of the Appellant in every material respect, and in
particular with regard to the manner in which
the accident occurred.
His evidence may be summarised as follows:
a.
On
the day of the accident, he was driving behind the Appellant's double
cab vehicle, along W F Nkomo Street.
b.
He
then saw a Volvo sedan driving in the opposite direction trying to
overtake another car in front of it.
c.
The
driver of the Volvo lost control of the car in the sense that she
failed to return to her left half of the road.
d.
As
a result of this, a head-on-head collision occurred between the Volvo
and the Appellant's vehicle.
e.
After
the collision he went to the Appellant's vehicle to try and help
them. They were both trapped and he could not assist them.
They had
to remain trapped until the emergency medical personnel arrived.
f.
He
then went to the Volvo to try and assist the driver. He found her in
the car, also covered or protected by the airbags of her
car.
13.
Under
cross-examination he confirmed that he does not know the Appellant or
his wife and does not have an interest in the case.
He is a
completely independent witness, who just happened to have been at the
scene of and witnessed the accident.
14.
After
this third witness, the Appellant closed his case.
15.
The
driver of the Volvo
(" the
insured driver' )
was then called as
a witness for the Defendant. It emerged that her name was Bridget
Makgomo Letsoalo. Her evidence was briefly
to the following effect:
a.
She
was on the day in question the driver of the green Volvo Sedan.
b.
She
was driving from east to west along W F Nkomo Street, on her way home
to Atteridgevlile.
c.
As
she was driving she saw the Appellant's vehicle, driving in the
opposite direction. The Appellant tried to execute a u-turn maneuver.
d.
As
a result of this, there was a collision between their respective
vehicles.
16.
She was the only witness and the
Respondent 's case was thereafter closed.
THE
MAGISTRATE'S APPROACH:
17.
Having
analysed the evidence, the Magistrate granted an order of absolution
from the instances with costs. In coming to this conclusion,
the
magistrate gave the following reasons:
a.
The
court was faced with two mutually destructive versions - that of the
Plaintiff on the one hand and that of the Defendant on
the other.
b.
Placing
reliance on National Employers General Insurance Co. Ltd v Jagers
1984 (4) SA 437
(E), she found that on the evidence before her,
probabilities were evenly balanced in the sense that they do not
favour the version
of the plaintiff or that of the defendant.
c.
There
were material contradictions in the evidence and versions of both
parties.
d.
Relying on Koster Ko-operatiewe Landboumaat-skappy Bpk
v S A Spoorwee
en Hawens
1974 (4) SA 420
(W) she held that because of the mutually
destructive versions, the party that bears the onus, namely the
Plaintiff failed to discharge
such onus.
GROUNDS OF APPEAL:
18.
In
her notice of appeal, the Appellant relies among others on the
following grounds:
a.
The
Learned Magistrate erred in failing to pay any,
alternatively
due consideration to the fact that
absolution from the instance ought not to be granted at the end of a
trial, when there is sufficient
evidence upon which a reasonable
court ought to give judgment in favour of a Plaintiff.
b.
The
Learned Magistrate erred in failing to find that the Appellant has
placed sufficient evidence before the Court a
quo
to discharge the burden of proof
which rested upon him;
c.
The
Learned Magistrate erred in failing to find that the insured driver
was the sole negligent party and furthermore that her negligence
caused the collision;
d.
The
Learned Magistrate erred in failing to pay any,
alternatively
sufficient consideration to the fact
that the Appellant's version regarding the manner in which the
collision occurred, was corroborated
by two witnesses;
e.
The
Learned Magistrate erred in failing to pay any,
alternatively
sufficient consideration to the fact
that two witnesses corroborated the Appellant's version that the
insured driver veered over
onto the incorrect side of the road (i.e.
in the appellant's lane of travel) shortly before occurrence of the
collision;
f.
The
Learned Magistrate erred in failing to pay any,
alternatively
sufficient consideration to the fact
that the insured driver contradicted herself materially with regards
to the manner in which
the collision occurred:
g.
The
Magistrate erred in finding that the court a
quo
was faced with mutually destructive
versions regard being had to the fact that the insured driver
contradicted herself with regards
to the manner in which the
collision occurred;
h.
The
Learned Magistrate erred in finding that the probabilities on both
sides were evenly balanced; and
i.
The
Learned Magistrate erred in not upholding the Appellant's claim, with
costs.
DETERMINATION OF NEGLIGENCE
AND THE MAGISTRATE'S REASONING:
19.
It
is trite law that the
onus
is
on a Plaintiff, Appellant in this instance, 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.
20.
There
is no
onus
on
the Respondent to prove anything. Respondent however, has an
evidentiary burden to rebut the
prima
facie
case presented or made out by
the Appellant in this case.
21.
This
legal position is confirmed by the provisions of Section 17(1) of the
Road Accident Fund, No. 67 of 1996 as amended by Act
19 of 2005.
Section 17(1) also stipulates and sets out the circumstances under
which the Road Accident Fund (RAF) would be liable
to compensate a
Claimant for bodily injuries sustained in or arising out of motor
vehicle collisions.
22.
Section
17 of the Act stipulates:
"Liability of Fund and
agents
-
(1)
The fund or an agent shall
-
(a)
Subject
to this Act, in the case of
a
claim
for compensation under this section arising from the driving of
a
motor vehicle where the identity of
the owner or the driver thereof has been established.
(b)
Subject
to the regulations made under Section 26, in the case of
a
claim for compensation under the
section arising from the driving of
a
motor vehicle where the identity of
neither the owner or the driver thereof has been established, be
obliged to compensate any person
(the third party) for any loss or
damage which the third party has suffered as
a
result of any bodily injury to
himself or herself or the death or any bodily injury to another
person, caused by or arising from
the driving of
a
motor vehicle by any person at any
place in the Republic, if the injury or death is due to the
negligence or other wrongful act
of the driver or the owner of
a
motor vehicle or of his or her
employee in the performance of the duties as employee: Provided that
the obligation to the Fund to
compensate
a
third party for non-pecuniary loss
shall be limited to compensation for serious injury
as
contemplated in subsection (1A) and
shall be paid by way of
a
lump
sum."
23.
It
is clear from the evidence given by the Appellant that he was the
driver of a vehicle involved in a collision wherein he sustained
bodily injures arising out of the collision. He also testified and
set out the grounds or respects in which he alleged negligence
on the
part of the insured driver. He testified that it is the insured
driver's negligence, which caused the collision.
24.
The
test for negligence is that of a reasonable man, namely that would be
a reasonable man has 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 care
of a reasonable man or
driver, he will be negligent.
See: Kruger v Coetzee
1966 (2)
SA 528
(A)
25.
The
forseeability test in the determination of negligence was enunciated
by the Appellate Division in this classical case,
Kruger
v Coetzee
(supra).
The
Court held:
" For the purpose of
liability, culpa arises if
-
(a)
A
diligens paterfamilias in the position of the defendant-
(i)
would
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."
26.
In
Arthur v Bezuidenhout & Mieny
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 balance of
probabilities the negligence he has averred against the Defendant?"
27.
In
determining the liability of an insurer such as the Defendant, the
Court in
Wells and Another v
Shield Insurance Co. Ltd and Others
1965 (2) SA 865
(C) at 867 (Corbett
J) said the following:
"The section lays down two
prerequisites of liability upon the part of a registered insurance
company for damages suffered
by a third party as a result of bodily
injury. These are (i) that the injury was caused by or arose out of
the driving of the insured
motor vehicle and (ii) that the injury was
due to the negligence or other unlawful act of the driver of the
insured vehicle, or
the owner or his servant."
28.
In
his evidence under oath, Appellant testified that while driving he
noticed that the Respondent was driving at high speed, and
had
encroached on his side of the road. He tried to avoid the collision
by applying his brakes and also, swerved towards the left.
Notwithstanding all of these, the insured driver continued to drive
in the negligent manner. She encroached onto the Appellant's
left
half of the road, and in this manner, caused a head-on collision
between the two vehicles. This occurred on the Appellant's
side of
the road.
29.
Regarding
collisions which occur on the incorrect side of the road, which is
the case in this matter, H B Klepper in his book: The
Law of
Third-Party Compensation - Third Edition states the position as
follows:
" If there is irrefutable
proof of
a
collision on the
incorrect side of the road, such collision constitutes prima facie
negligence on the part of the driver who was
found to be on his
incorrect side of the road at the time of the collision".
and
"
Once the
Plaintiff has established that the collision did in fact occur on his
side of the road, the defendant has to explain his
presence on the
defendant's incorrect side of the road
. If the explanation is
insufficient to dispel the inference of negligence arising from his
presence on the incorrect side of the
road the
Defendant will be
held negligent".
(at page 91, paragraph 5.3.13.1)
30.
Els
J, confirming the same approach in
Ntsala
v Mutual and Federal Insurance
1996
(2) SA 184
(T)
expressed himself as
follows:
" In this particular
case,
it is common
cause that no negligence can be attributed to the First Plaintiff
and, purely by virtue of the fact that the collision
occurred on the
insured vehicle's incorrect side of the road, negligence is thus
inferred against the driver of the insured vehicle.
As said, there is
no onus on the defendant to show that he was not negligent, but it is
required of him to give an explanation
which is sufficient to dispel
the prima facie proof of negligence otherwise he runs the risk of
judgment being given against him."
(at
page 191, paragraph G - H)
ABSOLUTION FROM THE INSTANCE
31.
It
is trite law that in determining whether or not an order for
absolution from the instance is appropriate, the applicable test
is
"
Is there evidence upon which the court ought to give judgment in
favour of the Plaintiff."
See:
Supreme Service Station (Pty) Ltd
1971 (4) SA 90
(R)
32.
In
Gordon Lloyd Page &
Associates v Rivera
2001 (1) SA 88
(SCA)
Harms JA States the correct
approach as follows:
" The test for absolution
to be applied by
a
trial court at
the end of
a
plaintiff's case
was formulated in Claude Neon Lights (SA) Ltd v Daniel
1976 (4) SA
403
(A) at 409
G
-
Hin these
terms:
'When absolution from the
instance is sought at the close of the plaintiff's case, the test to
be applied is not whether the evidence
Jed by the plaintiff
establishes what would finally be required to be established, but
whether there is evidence upon which
a
court, applying
its mind reasonably to such evidence could or might (not should or
ought to) find for the plaintiff.
"
(at pages 92 - 93
33.
It
is clear from the above authorities that the order of absolution from
the instance can only be considered and made by the trial
court at
the end of a Plaintiff's case. Such an order cannot be considered or
made at the close of a Defendant's case.
34.
Unfortunately
this is exactly what the magistrate did in this case. She made an
order of absolution from the instance after the
close of the
Respondent's case. This constitutes serious misdirection on her part.
For this reason alone, the order must be set
aside.
CORROBORATION
35.
It
is clear from the totality of the evidence led by the Appellant that
the insured driver did encroach on his side of the road.
He tried to
avoid the collision by applying his brakes and swerving to the left.
Unfortunately because the insured driver was driving
at a high speed,
a head on collision occurred. The collision occurred on his side of
the road.
36.
This
version is corroborated in all material respects by other eye
witnesses who were present at the scene and had witnessed the
incident, namely Appellant's wife and also Mr Pather. The direct
evidence of Mr Pather is particularly important for the reason
that
apart from being an eye witness who saw how the accident occurred, he
is an independent witness who has no interest whatsoever
in the case.
37.
Appellant's
version is further corroborated by circumstantial evidence and other
facts that remain undisputed, namely that:
a.
Both
cars were damaged on their front portions.
b.
After
the collision both Appellant and his wife had remained trapped in
their vehicle until rescued by emergency services.
38.
On
the other hand, the evidence of the insured driver is not
satisfactory at all. She was a single witness and had given more than
one contradictory version to the court. I do not find it necessary to
deal with her evidence in any detail.
39.
The
corroborated evidence on record is that the collision occurred on the
Appellant's side of the road. This is after the insured
driver had
encroached on the Appellant's side of the road. On the evidence, the
insured driver has dismally failed to explain her
presence on the
Appellant's side of the road.
" .... purely by virtue of
the fact that the collision occurred on the insured vehicle's
incorrect side of the road, negligence
is thus inferred against the
driver of the insured vehicle."
See: Ntsala
(supra).
40.
I
am of the view that on record, there is overwhelming corroborated
evidence that the insured driver was negligent on the day, and
that
her negligence caused the collision from which the Appellant
sustained bodily injuries.
41.
This
being the case, the Appellant has succeeded in discharging the
onus
that he bears, that is proving on a
balance of probabilities that the insured driver was negligent in one
or more of the respects
relied on in his particulars of claim. He has
also proved that the insured driver's negligence was the cause of the
collision from
which he sustained the bodily injuries.
42.
On
the totality of the evidence on record therefore, the finding by the
Magistrate that she was faced with two (2) uncorroborated
or mutually
destrucitve versions, is completely wrong. The version of the
Plaintiff is corroborated in every material respect by
two (2) other
eye witnesses.
43.
In
my view, the Magistrate has, for this reason, again, misdirected
herself.
This being the case, this court is entitled to interfere with the
Magistrate's finding.
ORDER:
In
the premises I propose the following order:
1.
The
appeal succeeds and the Magistrate's order is set aside.
2.
The
Respondent is liable to pay the Appellant 100% (One Hundred percent)
of his proven or agreed damages;
3.
The
Respondent shall pay Appellant's costs of the action on merits, as
well as costs of this appeal.
S S MAAKANE
Acting Judge of the
High Court of South Africa
Gauteng Division, Pretoria
I agree:
J RAULINGA
Judge of the High Court
of South Africa
Gauteng Division
Pretoria
I agree:
SP MOTHLE
Judge
of the High Court
of
South Africa
Gauteng
Division
Pretoria
APPEARANCES:
Counsel
for the Appellant :
Advocate J A du Plessis
Instructed
by
: Riete
Oosthuyzen Attorneys
Counsel
for Respondent :
Advocate B Matlhape
Instructed
by
: Mothle
Jooma Sabdia Incorporated