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[2018] ZAGPJHC 622
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Fourie v Road Accident Fund (2017/26408) [2018] ZAGPJHC 622 (20 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2017/26408
In the matter
between:
FOURIE
MORGAN
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J U D G M E N T
MABESELE,
J
:
[1] The plaintiff claims damages due
to the injuries he sustained in a collision between a motorcycle
driven at the time by him
and a motor vehicle driven by Mr Manqoba
Myeza, the insured driver. The collision occurred in Barry Marais
Road, Boksburg, on 30
December 2016 at approximately 14h30.
[2] The plaintiff avers that the sole
cause of the collision was the negligent driving of the insured
driver in one or more of the
following aspects:
2.1. He failed to keep a proper
lookout;
2.2. He failed to apply brakes
timeously or at all;
2.3. He drove at an excessive speed
under the circumstances;
2.4. He failed to keep the motor
vehicle of which he was the driver under control;
2.5. He collided with the plaintiff’s
motorcycle which was stationary to the left of the emergency lane;
2.6. He failed to avoid a collision
when he could and should have done so by the exercise of a reasonable
care;
2.7. He failed to pay due regard to
the rights of other road users, in particular the rights of the
plaintiff;
2.8. He failed to exercise the care a
reasonable man would have exercised under the circumstances.
[3] The defendant raised a special
plea of
volenti non fit injuria
. It contends that the
plaintiff willingly placed himself in a position where harm might
result, knowing very well that some
degree of harm might result.
[4] In its plea the defendant
specifically denies each and every allegations in so far as they
relate to the cause of the collision.
In the alternative, the
defendant pleaded that should it be found that he, the insured
driver, was negligent in any of the respects
as alleged by the
plaintiff, then and in that event, the defendant denies that such
negligence was a cause of, or contributed to
the collision.
[5] This matter proceeded on the
merits only.
[6] The plaintiff and his witness were
called to testify for the plaintiff on both the special plea and
merits and two witnesses
including the insured driver, testified on
behalf of the defendant.
[7] It is common cause that prior to
the accident an incident of road rage occurred between the
plaintiff and the insured
driver at the entrance to the Parkland
Estate and the intersection of Van Wyk Louw Drive up to and including
the intersection slipway
area of the intersection of Van Wyk Louw
Drive and Barry Marais Road. The plaintiff and the insured
driver were each in the
company of a passenger.
[8] The plaintiff and the insured
driver stopped at the intersection slipway area of the intersection
of Van Wyk Louw Drive and
Barry Marais Road and alighted from their
vehicles together with their passenger. They started exchanging
words between them.
Thereafter the plaintiff and his passenger
got onto their motorcycle and left the area.
[9] The plaintiff testified that after
he and his passenger left the scene he drove in the normal lane of
travel of Barry Marais
Road. Along the way he pulled over into the
emergency lane to his left and stopped to check whether their helmets
were properly
fastened. He looked back and spoke to the
passenger. As soon as he turned to pull away he looked through
the side mirror
and suddenly saw a silver Dodge behind him collide
with his motorcycle. Due to that sudden impact he fell down on
his back.
When he looked up he saw the passenger doing a
somersault away from the motorcycle. At the same time he
noticed a piece of
his own bone sticking out and saw his takkies
lying around. He realised at that time that his leg was missing.
[10] Whilst he was lying on the ground
someone came and offered assistance. He was finally taken to the
hospital by a helicopter.
[11] Mr Chesney Stewart is a member of
the Community Policing Forum (“CPF”). He testified
that on the day of the
incident he was travelling along Barry Marais
Road towards the intersection of Van Wyk Louw Drive and Barry Marais
Road.
He pulled off the road to his left and stopped in order
to smoke a cigarette. Whilst he was busy smoking outside the vehicle
he
looked down the road in front of him and noticed an altercation
between the occupants of a motorcycle and silver motor vehicle.
He saw the motorcycle coming from the incident and travelling towards
him. The motorcycle pulled off the road and stopped in the
emergency
lane at a distance of 20 meters from him, at point X as depicted on
photo 1 on page 10 of the scene photos in the Metro
Police
investigation report.
[12] He testified that approximately
two minutes after the motorcycle had stopped the passenger jumped off
and a silver vehicle
collided with the motorcycle. Thereafter
the driver of the motor vehicle drove into Jubilee Street.
Nothing obstructed
his view from the time that he first noticed an
altercation down the road until the collision occurred.
[13] After the collision he drove down
to the robot to make a U-turn and went to assist the driver of the
motorcycle who was lying
on the road at point Y as depicted on photo
1 on page 10 of the scene photos in the Metro Police investigation
report.
[14] On arrival at the accident scene
he took off his T-shirt and tied it around the driver’s thigh
to prevent bleeding. Thereafter
he and the passenger asked other
motorists for help. It was at that stage that he got back into
his vehicle and drove into
Jubilee’s Street to look for the
driver of the motor vehicle. He could see the vehicle then.
As he drove back
to the accident scene he posted on the CPF’s
WhatsApp group for a lookout of a silver SUV which crashed into a
motorcycle
in a “
hit and run
” incident. He
said he was the first person to assist the driver of the motorcycle
at the accident scene.
[15] He saw the motor vehicle again
that day in Jubilee Street. He was in the company of other Community
Police Forum members.
The vehicle was already being jacked up
to change the front left tyre. There were two male persons
trying to change the wheel.
He noticed blood on the passenger
side of the vehicle and flesh stuck in the wheel. The left fender and
tyre of the vehicle were
completely damaged. The left side mirror was
also damaged. The persons who were changing the tyre threatened to
beat him with a
wheel spanner. Due to the threats he and other
CPF members got into their vehicle and drove back to the scene of the
accident.
He did not notice any potholes at the area where the
accident took place.
[16] The insured driver testified that
the altercation took place in the emergency lane after he and the
motorcycle driver had stopped
and alighted from their vehicles.
The occupants of the motorcycle continued to swear at him.
[17] As he went back to his vehicle
the motorcycle drove off. He followed. The plaintiff
accelerated and decelerated at the
same time in front of him on the
yellow lane, thereby making it impossible for him to join the road.
[18] Whilst he was still trying to
negotiate his way into the road from the emergency lane he swerved
around the motorcycle.
At some point they were driving parallel
and close to each other. During that process he heard a bang
which made him look
at the side mirror. He noticed a motorcycle on
the ground and realised that a collision occurred. He
nevertheless proceeded
driving. He said he could not stop
because he was intimidated, confused and scared. He drove into
Jubilee Street and stopped
somewhere along that road to phone his
mother and inform her about the accident at Barry Marais Road and his
whereabouts.
He does not know how the accident occurred.
[19] He testified during
cross-examination that his vehicle was not damaged before the
accident and admitted that he stopped in
Jubilee Street because of a
tyre burst. He was fetched from Jubilee Street by a
group of people and the police
and taken to the accident scene. At
the scene he gave a written statement to the police, informing them
that he sideswiped the
motorcycle after he had swerved to avoid
collision with the motorcycle which was accelerating and decelerating
in front of him.
He was scared, confused and intimated.
[20] Mr Ramotsekuwa Moloi lives in Van
Wyk Park at Barry Marais Road. He testified that on the day of
the incident he was
standing and smoking at the gate of his yard. He
first heard a loud sound from the motorcycle. When he looked
down the road
he saw both the motorcycle and motor vehicle
accelerating and decelerating. The incident occurred at a distance of
approximately
20 metres from where he was standing. The motor vehicle
was travelling behind the motorcycle. He saw a motor vehicle
moving
into the emergency lane followed by a motorcycle which
overtook the vehicle and blocked its way of travel. The motor
vehicle
finally accelerated and swerved to the right to join the
road.
[21] He testified that during that
process the vehicles were travelling parallel and closer to each
other. He then saw the driver
of the motorcycle kick the vehicle on
the left side two to three times. At the same time he heard a
bang, followed by the
motorcycle falling onto the emergency lane
whilst the motor vehicle was still in motion.
[22] After the incident he went to the
scene to offer assistance. The person who was a passenger on
the motorcycle was also
asking for assistance. Whilst he was at
the scene, someone driving a Mercedes Benz arrived and attended to
the plaintiff’s
thigh. From the accident scene he went back
home, took his vehicle and drove to Jubilee Street to look for the
insured driver.
The people from the neighbourhood had already
arrived when he got there. The insured driver was taken back to
the accident
scene.
[23] He was adamant that he saw the
plaintiff kick the vehicle and a motorcycle falling on the emergency
lane after he heard a bang.
[24] During cross-examination it was
pointed out to him that his evidence-in-chief differs from paragraph
3 of his statement wherein
he mentioned that the plaintiff’s
leg got trapped into the fender of the wheel and caused a tyre burst.
It was again pointed
out to him that no mention is made in his
statement that he went to the accident scene after the accident
occurred.
[25] There is no doubt that there are
two mutually destructive versions before me. On the one hand the
plaintiff testified that
he was struck by the vehicle of the insured
driver whilst he was stationary on the emergency lane. His
evidence was corroborated
by Mr Chesney Stewart. On the other
hand the version of the insured driver that accident occurred whilst
he and the plaintiff
were travelling parallel and closer to each
other is corroborated by Mr Moloi.
[26]
The correct approach to be adopted when dealing with mutually
destructive versions was briefly set out in
National
Employers General Insurance Co Ltd v Jagers
[1]
wherein
the following was said:
‘…
Where
the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can only
succeed if he
satisfies the court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable,
and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding
whether that
evidence is true or not the court will weigh up and test the
plaintiff’s allegations against the general probabilities.
The estimate of the credibility of a witness will therefore be
inextricably bound up with the consideration of the probabilities
of
the case and, if the balance of probabilities favours the plaintiff,
then the court will accept his version as being probably
true.
If however the probabilities are evenly balanced in the sense that
they do not favour the plaintiff’s case any
more than they do
the defendant, the plaintiff can only succeed if the court
nevertheless believes him and is satisfied that his
evidence is true
and that the defendant’s version is false.’
[27]
This approach was approved in
Stellenbosch
Farmers Winery Group Ltd and Another v Martell Et Cie and Others
[2]
wherein the following was said:
‘
The technique generally
employed by courts in resolving factual disputes of this nature may
be conveniently summarised as follows:
To come to a conclusion on the
disputed issues the court must make findings on (a) the credibility
of the various factual witnesses;
(b) their reliability; and (c) the
probabilities … As to (c) this necessitates an analysis and
evaluation of the probability
or improbabilities of each party’s
version on each of the disputed issues …’
[28] The version of the plaintiff that
he drove off first from the scene of altercation is corroborated by
both Mr Stewart and the
insured driver. The plaintiff left the scene
to avoid further heated exchange of words between them. His
version that he
only stopped in the emergency lane where he was
suddenly crashed into by the insured driver is corroborated by Mr
Stewart.
The plaintiff’s version was again corroborated
by Mr Stewart in that his passenger escaped injuries when the
collision took
place. It is common cause that the passenger was not
injured. Certainly, if the collision had occurred as described
by the
insured driver and his witness the passenger would have
sustained injuries. Due to the collision the left fender and tyre of
the
vehicle were completely damaged. The side mirror was also
damaged. The extent of damage demonstrates clearly that the
vehicle collided with the motorcycle. The insured driver did not stop
after the accident had occurred. It was for that reason
that Mr
Stewart posted on their WhatsApp group for a lookout of a silver SUV
which crashed into a motorcycle in what he described
as a “
hit
and run
”.
[29] Mr Stewart was an impressive
witness, in my view. His evidence is reliable. I do not
hesitate to accept his version
that he was the first person to arrive
at the accident scene and offered assistance to the plaintiff, after
the motor vehicle crashed
into the motorcycle.
[30] The insured driver testified that
he was driving parallel and closer to the plaintiff when the accident
occurred. However,
he has no knowledge of how the accident occurred.
Interestingly, he continued driving after he had realised that the
accident
occurred. The reasons he advanced, which are not
persuasive, are that he was scared, confused and intimidated.
Had
that been the case, as he alleged, he would not alight from his
vehicle at the spot where the altercation took place. In addition,
the fact that the plaintiff drove off first from that spot
demonstrates that he had no intention to harm him. From his
evidence
it is clear that he ran away from the accident scene in
order to get opportunity to phone his mother to try to rescue him
from
possible arrest.
[32] His evidence-in-chief that he
lacked knowledge of how the accident occurred is contradicted by his
written statement wherein
he informed the police that he sideswiped
the motorcycle and caused the collision.
[33] He was not impressive when he
responded to questions in that he was always hiding behind his
version that he was confused and
intimidated on the day of the
incident. He gave unnecessary explanations to evade questions.
He could not explain the
cause of damage to his vehicle.
[34] Mr Moloi regrettably failed to
corroborate and advance the insured driver’s special plea and
defence on a material aspect
of this case. He was adamant that he
only saw the plaintiff kick the vehicle on the left side and the
motorcycle falling on the
ground whereas the insured driver mentioned
in his statement that he sideswiped the motorcycle and caused the
collision.
Mr Moloi failed to explain worrying discrepancies
between his evidence-in-chief and paragraph 13 of his statement in so
far as
they relate to the actual cause of the collision. His
counsel correctly conceded that he was evasive when he was asked to
explain the said discrepancies on this material aspect. He was not an
impressive witness.
[35] There are no contradictions
between the evidence of the plaintiff and his witness. Their
evidence is consistent with
the damage to the insured driver’s
vehicle as depicted in the photographs. In addition, the fact
that the passenger
was unharmed enhances the evidence that he escaped
before the motor vehicle crashed into the motorcycle. Therefore, I
consider
the versions of the plaintiff and his witness to be true and
accurate and therefore acceptable, and that the other versions
advanced
by the insured driver and his witness are therefore false
and fall to be rejected. The result is that at no stage did the
plaintiff place himself in a position where harm might result.
Therefore the defendant’s special plea should be dismissed.
The plaintiff is entitled to claim damages from the defendant.
[36] In the result, I make the
following order:
36.1 The defendant’s special
plea is dismissed.
36.2 The defendant shall pay 100% of
the plaintiff’s proven damages.
36.3 The defendant shall pay the
plaintiff’s costs to date relating to the merits.
________________________________________
M M MABESELE
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date of
hearing:
20 August 2018
Date of
judgment:
20 September 2018
For the
Plaintiff:
Adv A Myburgh
Instructed
by:
Leon J J van Rensburg Attorneys
For the
Defendant:
Adv L Mfazi
Instructed
by
Twala Attorneys
[1]
1984
(4) SA 437
(E) at 440E-G.
[2]
2003
(1) SA 11
(SCA) at 14I-15C.