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[2018] ZAFSHC 112
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Van Rhyn v Road Accident Fund (4784/2016) [2018] ZAFSHC 112 (25 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
4784/2016
In
the matter between:-
HERMANUS
BRAND VAN
RHYN
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
CORAM:
MBHELE, J
HEARD
ON:
20 AND 23 MARCH 2018
DELIVERED
ON:
25 JUNE 2018
[1]
This is an action for damages in terms of the
Road Accident Fund Act,
56 of 1996
, as amended (the Act). The plaintiff claims an amount of R
998 406.72. 00 as a result of the injuries he sustained on 03 May
2014,
allegedly
as result of a collision that
occurred on Frans Kleynhans Drive. The plaintiff alleges that
he was riding a motorcycle when
he
swerved off the road to avoid an oncoming unidentified motor vehicle
being driven on the incorrect side of the road.
He
collided with a chevron board, fell and sustained injuries.
.
[2]
The Plaintiff alleges that the collision occurred as a result of the
sole negligence of the unknown driver who was negligent
in one or
more of the following respects:
·
He drove partially in the lane of the plaintiff;
·
He drove too fast in the circumstances;
·
He failed to drive with the necessary care and
skill the is expected of a prudent driver;
·
He drove away from the scene of the
incident
The
defendant has denied the allegations of negligence against the driver
of an unidentified vehicle. Defendant denies the
accident
happened as alleged in paragraph 3 of the particulars of claim.
[3]
The parties requested a separation of the issues of liability and
quantum,
to which I agreed, as I considered it convenient that the issues be
determined separately. Accordingly, the matter is before me
for the
determination of liability. Only the plaintiff testified, as the
defendant closed its case without calling any witnesses.
[4]
Plaintiff testified, inter alia, to the effect that on 3 May 2014 at
22h00 he was riding a motorcycle travelling in Frans Kleynhans
Drive
in the direction of Tempe Airport in Bloemfontein. When he came to
the turn located opposite the entrance of Emoya Estate,
a vehicle
came from the opposite direction driving partially in his lane at a
high speed. It took half of the lane that the plaintiff
was
travelling in. he was travelling at about 30 Kilometres per hour
before entering the turn and when he saw the vehicle approaching
he
reduced his speed further to approximately 10 – 15 Kilometres
per hour. He could not identify the colour nor the make
of the
vehicle because of the glare on its head lamps. In order to avoid a
head-on collision with the unidentified vehicle, he
swerved to the
left and immediately to the right colliding with a chevron pole on
the left hand side of the curve. He fell into
a ditch with the
motorcycle on top of him. Everything happened too fast in a distance
of about 22 meters and there was no chance
he could have avoided the
accident. He has been a driver for 22 years and is familiar with the
road because he uses it often when
teaching his daughter to ride a
motorcycle.
One
Robert Olivier arrived at the scene and summoned an ambulance which
took him to No. 3 Military Hospital in Bloemfontein. He
was
discharged the following day from the hospital and put on sick leave
for a week. When he went for a check-up in June
he was informed
of a need for an operation. He only learned of the severity of his
injuries in July when he was operated on and
booked off for three
months. He was confined to bed during that period. In cross
examination he reiterated that he did not report
the accident to the
police because he was bedridden for most of the time after the
accident and that he laboured under an impression
that the person who
arrived first at the scene had reported it.
Applicable
Law
[9]
Road users have a duty to exercise care and act
reasonably on the road. This duty entitles drivers to assume that
other drivers
will also exercise care and act reasonably.
One
expects and is entitled to expect reasonableness rather than
unreasonableness, legality rather than illegality, from other road
users. (See
Moore v
Minister of Posts and Telegraphs
1949 (1) SA 815
AD
on
p
826
).
[11]
In
The Law of Collisions in South Africa
, 7
th
Edition at 72, Klopper explains the general duties and rights
of drivers on public roads as follows:
"Because
a driver is under a duty to act reasonably, he is entitled to expect
other road users to do the same. This principle
translates into
certain assumptions a driver of a motor vehicle is justified to make
when his duties and driving skills are considered.
These justified
assumptions are inherent in the process of establishing whether a
driver was negligent in not complying with the
various duties imposed
on a driver. However, the existence of justified assumptions does not
relieve a driver from the duty to
appreciate that other drivers may
act unreasonably and to provide for such a contingency by taking all
possible reasonable steps
to avoid a collision occasioned by another
driver's unreasonable behaviour. A driver will be negligent if the
unreasonable conduct
is generally foreseeable and he does not take
reasonable preventative action to avoid a collision.”
[11]
The plaintiff’s evidence stands unchallenged that an
unidentified vehicle drove partially into his lane causing him to
swerve to the left and immediately to the right resulting in him
colliding with a chevron pole on the left side of the road. Mr.
Mopeli, on behalf of the defendant, argues that it would have been
impossible for the plaintiff to collide with the chevron if
he was
driving at the speed he alleges he was driving at. The plaintiff
testified that everything happened swiftly at a sharp curve
with no
chance for him to avoid the accident.
Mr.
Mopeli, further, argues that failure by the plaintiff to report the
accident is an indication that there was no accident and
that there
was no second vehicle involved. He submits that the plaintiff’s
evidence as a single witness must be rejected.
It
is indeed so that the plaintiff is the only one who testified that
the alleged accident happened and that his evidence is not
contradicted. In
Siffman v Kriel
1909 TS 538
at 543
the following was said:
“
It does not follow, because
evidence is uncontradicted, that therefore it is true…..The
story told by the person on whom
onus rests may be so improbable as
not to discharge it.”
In
Daniels v General Accident Ins Co Ltd
1992 (1)
SA 757
(C)
it was said:
“
The single witness, more
particularly where he is one of the parties, must be credible to the
extent that his uncorroborated evidence
must satisfy the court that
on the probabilities it is the truth.”
When
dealing with the evidence of a single witness, the trial judge will
weigh his evidence, will consider its merits and demerits
and, having
done so, will decide whether it is trustworthy and whether, despite
the fact that there are shortcomings or defects
or contradictions in
the testimony, he is satisfied that the truth has been told. (See
S
v Sauls and Others
1981 (3) SA 172
(A)
at
180F). Although the above principle was enunciated in a criminal case
I am of the view that it finds application in the current
matter.
[13]
The plaintiff was an impressive witness, he was candid and reliable.
He related his story without exaggerating. He did not
contradict
himself. In my view, he told the truth. It is clear that he did not
make up the events that led to his injuries. Observations
during the
inspection in loco
support the Plaintiff’s version that
he could not have avoided the accident. The accident happened at a
corner where there
are a few chevron poles, a heap of soil and a
ditch. Although reporting the accident to the police within the
reasonable time would
have been beneficial, failure to do so does not
suggest that the accident did not happen.
My
view is that although the plaintiff had a duty to exercise
precaution, and the law imposes a duty on drivers to be mindful of
"unreasonable drivers", the evidence before me does not
suggest that the plaintiff drove his motorcycle negligently and
that
such negligence contributed to the collision. Consequently, the
defendant must be held liable for 100% of the plaintiff’s
proven damages.
[14]
Consequently the following order is made:
ORDER
(a)
Defendant
is liable for 100% of such damages as the plaintiff may prove to have
suffered as a result of the collision that occurred
on 03 May 2014.
(b)
The
question of quantum will stand over for determination on a date to be
arranged with the Registrar.
(c)
The
defendant is ordered to pay costs attendant upon the hearing of this
matter.
______________
NM
MBHELE, J
On
behalf of the plaintiff: Adv JL OLIVIER
Instructed
by:
Pieter
Skein Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Adv M MOPELI
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN