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[2018] ZAGPJHC 566
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Kudjoane v Road Accident Fund (17/15116) [2018] ZAGPJHC 566 (17 October 2018)
THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION
Case
no: 17/15116
In
the matter between:
KUDJOANE,
POTH
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Heard
:
15 October 2018
Delivered
:
17 October 2018
Summary:
(Claim for damages – vehicle collision – liability only –
no contributory negligence established)
JUDGMENT
LAGRANGE
J
Background
[1]
The plaintiff is claiming delictual damages from the plaintiff
arising from a motor vehicle collision in which he was the driver
of
one vehicle. The driver of the other vehicle is unknown, having fled
the scene of the accident after it happened. By agreement
between the parties the sole issue for determination in these
proceedings is the issue of liability. Only the plaintiff testified.
[2]
The collision took place at about 23:30 on 26 April 2014. The
plaintiff was traveling on the N12 dual carriageway towards
Carltonville
and was approaching the stop street at the intersection
of the N12 in the road from Randfontein to Westonaria. Before
reaching
the intersection, his vehicle was struck by a car driven by
the unidentified driver, which was crossing the N12 from a stop
street
entering the N12 from the left of the plaintiff’s
direction of travel.
[3]
The plaintiff was traveling on the right hand lane of the westbound
side of the dual carriageway. According to his evidence,
he was
passing a petrol tanker in the left-hand lane when he was struck on
the left-hand side by the vehicle coming from the other
direction
which caused his vehicle to roll. The plaintiff agreed with the
summary description on the accident report form, though
he did not
say when the report was compiled. On the face of the report it
appears to have been written up by the constable concerned
nearly an
hour and a half after the accident at 00:50 on 27 April 2014. The
very summary description of the accident compiled by
the constable
read:
‘
It is alleged that
M/V A was traveling straight [at/on?] N12 when M/V B came from
Waterpan road joining N12 bumped vehicle A on
the left side.’
[4]
It was put to the plaintiff that the accident report indicated that
the vehicle which struck his was turning left, but he was
adamant
that it was going ‘straight to Johannesburg’.
[5]
To explain the accident better, the plaintiff drew his own rough
sketch of the accident which showed that the other vehicle
had struck
his vehicle while he was traveling in the right-hand lane. Although
he had said in evidence in chief that the accident
occurred when he
was passing the tanker, he explained that it occurred just after he
had passed the tanker and the vehicle struck
his vehicle on the
left-hand side.
[6]
He testified that there was no opportunity to brake but he had
swerved to try and avoid the other vehicle. He testified that
it all
happened so fast that it would not have made any difference if he had
braked. He did not even know there was a stop street
where the
vehicle entered the N12. Contrary to the suggestion in the accident
report that the collision was a ‘sideswipe’.
His
recollection was that the other vehicle was moving directly across
his line of travel. When it was put to him that the accident
took the
form of a sideswipe of his vehicle, he insisted that ‘the car
was crossing to the Johannesburg side’, which
appears to have
been a reference to the vehicle attempting to cross the N12 to get to
the eastbound side of the dual carriageway
going towards
Johannesburg, which would have entailed crossing the westbound lanes
in which the tanker and plaintiff were traveling.
[7]
He claimed he did not see the other vehicle until just after he had
passed the tanker. There was no time to slow down as the
vehicle was
very close. He also testified he was decelerating in anticipation of
the main intersection he was approaching. There
was no suggestion he
was speeding.
[8]
In his occupational therapist’s account of what he told her of
the accident, she records him as having said that the other
car was
joining the road when it collided with his vehicle causing his
vehicle to capsize. Similarly, the clinical psychologist
recorded his
version as being that whilst he was passing the truck in the right
hand lane,
‘
. . . A car saw
the truck and wanted to turn in front of the truck only to find Mr
Kudjoane in his lane. Mr Kudjoane swerved and
the car drove into him.
He was wearing a seatbelt. He lost consciousness and he only became
aware of his environment in hospital.’
The
plaintiff could not explain why the experts would have recorded his
version as they did even though he was the only possible
source of
information about the accident.
[9]
He was asked in evidence in chief if he saw the stop street where the
other vehicle entered the N12 and his answer was that
he did not as
it was dark. At the time he was reducing his speed from approximately
80 km an hour, because he was approaching the
intersection with the
Randfontein road.
[10]
It was argued, but it was not put to the plaintiff, that he ought to
have seen lights from the other vehicle, which is a proposition
that
was based on an assumption that the other vehicle’s lights were
on.
[11]
After the accident he was taken to Leratong hospital accompanied by
family members who had come to the scene of the accident.
Evaluation
[12]
The defendant did not put up an alternative version of the accident,
but sought to find flaws in the plaintiff’s account
in order
to, at least, establish a claim of contributory negligence on his
part. The thrust of this attack on his case was that
he did not keep
a proper lookout and failed to brake when he saw the other vehicle.
[13]
While there were a number of discrepancies between the various forms
signed by the plaintiff and the characterization of the
type of
collision recorded by the medical experts he consulted compared with
the version he gave in his testimony, those discrepancies
in the
description are not so starkly different that they postulate two
completely different and incompatible factual scenarios.
On an
assessment of the probabilities arising from the evidence it is
difficult to avoid the following conclusions:
13.1 The other vehicle
had either struck the plaintiff’s vehicle because the driver
was attempting to cross the westbound
lanes in order to enter the
eastbound lanes of the N12, or it had turned left onto the N12 in the
westbound direction of the traffic,
but had not turned into the
left-hand lane where the tanker was traveling, but had crossed that
lane and entered the right-hand
lane where the plaintiff was
traveling.
13.2 On either account,
the other vehicle had entered the N12 from a stop street in the path
of oncoming traffic which had right-of-way.
13.3 The plaintiff
testified that he did not see the stop street from which the other
vehicle entered the N12 because it was dark.
It was not put to him
that he would have seen it if he had been keeping a proper lookout.
13.4 The collision took
place with virtually no warning and the plaintiff had no reasonable
opportunity to brake. There was no evidence
that the other vehicle
had taken evasive action. The best the plaintiff could do in the
circumstances was to swerve to attempt
to avoid the collision, which
he did.
[14]
I was
referred to the judgment in case of
Mmeti
v Road Accident Fund
[1]
, by defendant’s
counsel. In that case contributory negligence of 20 % was attributed
to the plaintiff. Unlike in this case,
where the insured driver fled
the scene of the accident, the insured driver testified. There were a
number of factual similarities
between that case and this. In
particular it also involved a collision in which the plaintiff was
travelling on a main road, having
right of way, but struck a vehicle
which had entered the main road from a stop street. Despite the
similarities, what stands out
at as a distinguishing factors are in
that
Mmeti
‘s
case:
14.1 The plaintiff was
speeding.
14.2 The plaintiff had a
clear view of the stop street from which the other vehicle entered
the road he was travelling on.
[15]
It is true
that even though the plaintiff had right of way, a driver has a duty
to keep a proper lookout when approaching an intersection
and have
regard to traffic entering the road from a side street (See
Van
der Westhuizen v SA Liberal Insurance Co. Ltd
[2]
).
However, there was no evidence that the plaintiff either would have
seen the stop street had he kept a proper lookout or ought
to have
been aware of the existence of the stop street.
Conclusion
[16]
In the circumstances I am satisfied that the plaintiff has
established on a balance of probabilities that that the insured
driver was negligent. I am also satisfied that the defendant
has failed to discharge the onus that the plaintiff’s
conduct
evidenced a degree of negligence on his part. Accordingly,
there is no basis for making a finding of contributory
negligence in
this matter.
Order.
[1]
The defendant is held liable to compensate the plaintiff for 100 % of
his damages, the quantum of which remains to be determined
in
subsequent proceedings.
[2]
The defendant is ordered to pay the plaintiff’s costs.
___________
Lagrange
J
Acting
Judge of the High Court
APPEARANCES
APPLICANT:
L
Steyn instructed by McMillan Attorneys
RESPONDENT:
N
Adams instructed by
Shereen
Meersingh & Associates
[1]
(2038/2008)
[2011] ZANWHC 82
(3 February 2011).
[2]
1949 (3) SA 160
(C) at 172.