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South Africa: North Gauteng High Court, Pretoria
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[2017] ZAGPPHC 838
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Janse van Vuuren NO v Road Accident Fund (A525/2015) [2017] ZAGPPHC 838 (28 March 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: A525/2015
Date: 29 March 2017
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
In the matter between:
M D JANSE VAN VUUREN
N.O.
APPELLANT
AND
ROAD ACCIDENT
FUND
RESPONDENT
JUDGMENT
TOLMAY,
J:
[1] This is an appeal
brought against the order of absolution from the instance with costs
granted in favour of the Respondent against
the Appellant by the
Court
a quo.
[2] The action was
instituted as a result of an accident that occurred on 5 January 2011
at about 10:00 on the N3 highway south
bound towards Durban,
approximately 10km from the Marian Hill tollgate. The accident
occurred between a RAV 4 motor vehicle, with
registration number
BMX443L, driven by Christiaan Harmse Janse van Vuuren, who died
subsequent to the institution of the action
herein (“the
deceased”) and an unidentified motor vehicle (the first insured
vehicle), driven by Phumlani Nxumalo (“the
first insured
driver”) and a Caravelle Microbus, with registration number
NWW703GP (“the second insured vehicle”),
driven by R
Pretorius (“the second insured driver”). The Appellant
claims damages from the Respondent in her capacity
as the executrix
in the estate of the deceased. Appellant was a passenger in the
vehicle driven by the deceased at the time of
the collision.
[3] At a pre-trial
conference the Respondent admitted the version of the Appellant that
the first insured driver lost control in
the path of travel of the
deceased and that the deceased took avoiding action in order to avoid
a collision with the first insured
vehicle. It was also admitted that
the deceased thereafter lost control of his vehicle and collided with
the second insured vehicle,
who was travelling in the opposite
direction.
[4] At the trial the
following was common cause:
a) The N3 is a double
carriage highway with lanes on each side of the road and divided by a
grass median.
b) The deceased’s
vehicle was travelling in a southerly direction and the second
insured vehicle was travelling in a northerly
direction. It was also
never disputed that the deceased’s vehicle and the first
insured vehicle was both travelling in the
left lane.
c) The first insured
vehicle overturned in the left lane in front of the deceased’s
vehicle.
d) The deceased, in order
to avoid colliding with the first insured vehicle, swerved to the
right lane, lost control of his vehicle
and collided with the second
insured vehicle.
e) The collision between
the deceased’s vehicle and the second insured vehicle occurred
on the latter’s correct side
of the road.
f) There was heavy
rainfall at the time of the accident.
[5] The Appellant, who
was a passenger in the deceased’s vehicle, testified that it
was raining heavily and visibility was
poor. The deceased reduced
speed from plus minus 110 kmp to 70 kmp, when suddenly they saw the
first insured vehicle, which had
overturned and was sliding in
the same direction of travel and by doing so obstructed the left lane
of travel. The deceased
swerved his vehicle to the right lane, lost
control over his vehicle, which skidded across the highway and onto
the grass median
and ended up in the incorrect side of the road and
in the lane of the second insured vehicle. The deceased’s
vehicle collided
with the second insured vehicle.
[6] The Appellant
testified that there was nothing that the deceased could have done to
avoid the accident.
[7] The Respondent closed
its case without calling any of the insured drivers and gave no
reason at all for the failure to do so.
[8] The Court
a quo
found that the overturned vehicle did not create any risk which
is causally connected to the collision with the second insured
vehicle.
It was also found that the facts did not warrant an
inference of negligence on the part of the first insured driver. The
Court
a quo
found that the deceased was driving too fast in
the light of the prevailing weather conditions. He proceeded to find
that, due
to the fact that the first insured driver did not testify
to explain why he overturned the vehicle, the Court is unable to come
to a conclusion on the facts before it and granted an order of
absolution of the instance.
[9] The Appellant’s
version was admitted at the pre-trial and the Appellant testified and
told the Court exactly what happened
and her version was undisputed.
The Appellant explained that visibility was extremely poor and
neither she nor the deceased saw
the overturned vehicle, because of
the heavy rain until it was too late.
[10]
The court
a
quo
misdirected
itself in postulating that one cannot by the mere conduct of the
overturning of a vehicle draw an inference of negligence
against a
driver. A vehicle which is driven properly and without negligence
does not normally overturn whilst travelling along
a roadway. The
principle of
res
ipsa loquitur
finds
application.
[1]
The evidence
points to an inference of negligence on the part of the first insured
driver.
[2]
There exists no
evidence on which it could be held that the deceased was negligent
even if he might not have made the right decision
in the agony of the
moment.
[3]
[11]
As a result of the admissions at the pre-trial and the evidence led
the Appellant proved
prima
facie
that
the first insured driver was negligent
.
C
onsequently
there was a duty on the Respondent to explain why the vehicle
overturned. In the light of the absence of evidence from
the
Respondent, or any explanation for the failure to call the first
insured driver an adverse inference is warranted. It was incumbent
on
the Respondent to have called the first insured driver to avoid a
negative inference to be drawn. Once a plaintiff proves an
occurrence
giving rise to an inference of negligence on the part of a defendant,
the defendant must produce some evidence to explain
how the incident
happened.
[4]
[12]
It is clear that the evidence led by the Appellant called for an
answer or explanation by the Respondent. As a result there
is nothing
to disturb the inference of negligence on the part of the first
insured driver.
[5]
[13] In the light of the
aforesaid the Appellant had proven that the collision occurred as a
result of the first insured driver’s
negligence.
[14] Consequently the
appeal must succeed.
[15] I make the following
order:
15.1 The appeal is
upheld;
15.2 The order of the
Court
a quo
is set aside and substituted with the following:
“
It is declared
that the Defendant is liable for the payment of the Plaintiff’s
proven or agreed damages flowing from the accident
that occurred on 5
January 2011. The Defendant is ordered to pay the Plaintiff’s
costs of the action relating to the issue
of liability”.
16.3 The Respondent is
ordered to pay the Appellant’s costs of the appeal, which costs
will include the costs of senior counsel.
___________________
R G TOLMAY
JUDGE OF THE HIGH
COURT
I agree:
_________________________
C P RABIE
JUDGE OF THE HIGH
COURT
I agree:
_______________________
T BRENNER
ACTING JUDGE OF THE
HIGH COURT
DATE OF HEARING: 1 MARCH
2017
DATE OF JUDGMENT: 28
MARCH 2017
Attorney for Appellant:
Klagsbrun Edelstein Bosman
De Vries Inc
Advocate for Appellant:
Attorney for Respondent:
AL Ledwaba Iinc
Advocate for Respondent:
1
Malgas v Guardian Assurance 1961(1) PH O4; Minister of Justice v
Seametso 1963(3) SA 530 on 535-6’ Durban City Council
v SA
Board Mills Ltd 1961(3) SA 397 (AD) at 405
2 Sauerman v Barnard
1958(4) SA 149 (O) on p 156; Jama v Auto Protection Insurance
1963(2) PH O49’; Kuluse v Marine &
Trade Insurance 1969(2)
PH J21
3 Cooper, Motor Law vol,
2, par C p 101; Klopper, Derdepartyvergoedingsreg, par (B) p 67;
Road Accident Fund v Mehlomakulu 2009(5)
SA 390 (ECD) on 397-398
4 Van Staden v May
1940
WLD 198
at 201
[5]
RAF v Mehlomakulu
supra,
p
397