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[2017] ZAGPPHC 142
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Stols v Road Accident Fund (76180/2014) [2017] ZAGPPHC 142 (3 May 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 76180/2014
3/5/2017
In
the matter between:
J
L
STOLS
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
TEFFO.
J:
[1]
The plaintiff sued the defendant for damages arising from a motor
vehicle accident which occurred on 28 March 2013. At the time
of the
accident the plaintiff was the driver of a motor vehicle which
overturned after he lost control of it. He alleges
on paragraph
4 of the particulars of claim that an identified motor vehicle driven
by an identified driver
(" the insured vehicle")
caused
an obstruction to the motor vehicle he was driving and this resulted
in the motor vehicle he was driving leaving the road
surface and
overturning.
[2]
I was only requested to determine the issue of liability in the
matter.
[3]
The following facts are common cause and not in dispute between the
parties:
3.1 The collision occurred on 28 March
2013 at approximately 05h45 on the N12 highway between Delmas and
Sundra.
3.2 The N12 highway between Delmas and
Sundra consists of two lanes in either direction.
3.3 There were roadworks on the left
lane of the motor vehicles which were travelling from Johannesburg to
Delmas.
3.4 The speed limit on the N12 highway
is 120 km/h and on the single lane where the plaintiff was
travelling, it was 60 km/h because
of the roadworks.
3.5 There is some wide grass in
between the two roads opposite to each other.
[4]
Only the plaintiff testified in support of his case and the defendant
called one Mr Skhumbuzo Zulu as the only witness.
The
evidence
[5]
The evidence of the plaintiff was briefly as follows: On 28
March 2013 between 05h00 and 05h45 he was travelling from
Johannesburg to Delmas on the N12 highway. There were road
works on the left lane of the direction he was travelling. The
tarred
surface of the road on the left lane from the edge up to where the
left lane meets with the right lane, was removed. When
he approached
the road works, he moved to the
right and as he
was approaching, he
reduced the speed. His headlights were on dim. There was also
oncoming traffic from the opposite direction.
As he was approaching,
connecting to a single lane because the left lane was closed, he then
saw something on the road. A female
passenger who was sitting next to
him in the motor vehicle shouted his name out and as she was
screaming, he switched the motor
vehicle lights on bright. He
immediately saw a chevron board right in front of him. As a result he
swerved the motor vehicle from
the right lane to the left lane. He
tried to apply the brakes but the object was very close. He could no
longer remember
what happened thereafter.
[6]
As he came closer he realised that the chevron board that he saw was
a stationary trailer which was loaded with things. When
he first saw
it, he was at a distance of ± 30 metres away from it. There
was no expectation that such an object could be
on the road and there
were no road signs that gave him a warning that there was something
ahead. He could not do anything to avoid
the collision.
[7]
Under cross-examination he testified that he cannot recall the speed
he was driving before he reached the road works but he
reduced his
speed as he was approaching the road works. He disputed that he could
have been travelling at an excessive speed when
he approached the
road works but could not explain why he said so. He admitted that
when the passenger who was seated next to him
in the motor vehicle
shouted his name out, she was warning him that he should watch out as
there was a trailer ahead. He also denied
that a driver who was
driving on the same road at a reasonable speed of ± 60 km/h on
that day, could have been able to avoid
the accident.
Evidence
of the defendant
[8]
Mr Skhumbuzo Zulu testified as follows: On 28 March 2013 in the early
hours of the morning (not sure about the exact time),
he was
transporting workers and travelling on the N12 highway from Witbank
to Johannesburg. He together with his crew were to reach
the head
office at Jetpark around 07h00. He had just passed Delmas and as he
was approaching, he saw a motor vehicle rolling in
front of the motor
vehicle he was driving. At that time he was travelling in the
opposite direction on the fast lane. He applied
the brakes. He also
realised that the motor vehicle had already ejected two of its
occupants. As he was trying to avoid colliding
with the people who
were ejected from the rolling motor vehicle, the motor vehicle he was
driving was hit by the tyre that dislocated
from the rolling motor
vehicle. He got frightened and did not stop the motor vehicle he was
driving. He reduced speed from 120
to 80 km/h, drove slowly until he
reached the head office. He eventually reported the accident at
Leandra police station.
[9]
Under cross-examination he testified that apart from observing the
rolling motor vehicle, he did not see anything in front or
behind it.
Submissions
by the parties
[10]
Counsel for the plaintiff correctly conceded in my view that the
plaintiff could have been contributory negligent. He correctly
pointed out that the plaintiff could not explain certain things in
his evidence, viz, he could not tell at what speed was he travelling
when he approached the road marks and at the time of the collision.
He submitted that it cannot be said that the plaintiff
was in
the wrong in that the trailer was stationary on the road and there
were no signs that it was there. He further submitted
that taking the
evidence into account, there was a possibility that the trailer could
cause an accident and it was a dangerous
manoeuvre. He argued that as
a result the plaintiff elected to swerve to the left and not to the
right. He could not do anything
taking into account the short space
of time he had under the circumstances, he accordingly pointed out.
He proposed a reduction
of the plaintiff's damages to the extent of
his contributory negligence by 20%.
[11]
Counsel for the defendant submitted that the evidence of Mr Zulu did
not challenge the evidence of the plaintiff. He
argued that
from the plaintiff's evidence it is clear that he saw the object at a
distance of ±30 metres. The plaintiff
should have foreseen
that when he approached the road where road works were in progress at
that time in the morning, he should
not have driven at an excessive
speed, so he argued. According to him the plaintiff should have taken
precautionary measures to
avoid the collision. He did not. He could
not answer certain questions when he testified. He said he was not
sure. At a distance
of ±30 metres the plaintiff was able to
see the stationary trailer. He pointed out that the fact that the
plaintiff lost
control of the motor vehicle he was driving, is an
indication that he was driving at an excessive speed. According to
him it is
highly improbable that the motor vehicle driven by the
plaintiff was driven at 60 km/h at the time of the accident and that
a reasonable
driver should have reduced the speed of the motor
vehicle under the circumstances. He proposed a reduction of the
plaintiffs damages
by 50%.
Assessment
of evidence
[12]
The plaintiff did not acquit himself well as a witness. He could not
answer certain questions which were very crucial to his
evidence. He
was reticent, calculating and evasive. He could not tell at what
speed he was driving when he approached the road
works and also at
the time of the accident. It is clear from the evidence that on the
road where the road works started, the speed
limit was 60 km/h. He
testified that he reduced the speed as he was approaching the road
works and moving to the right lane but
surely given the impact of the
collision resulting in him losing control of the motor vehicle and it
overturning, it is highly
improbable that he had reduced his speed as
he testified and/or that he drove at 60 km/h at the time. One could
only surmise that
the worst could have happened had the passenger not
have warned him of the object that was ahead of them.
[13]
Mr Zulu whom I regard as an independent witness made a good
impression to the court. His evidence was clear and straight to
the
point. It was consistent, coherent and logical. He did not contradict
himself. I accept his evidence as correct and credible.
This evidence
is important in that it gave the court a clear picture as to what
could have happened that led to the accident and
it also answered
questions which the plaintiff himself could not answer. The following
crucial information emerged from Mr Zulu's
evidence: he saw the motor
vehicle driven by the plaintiff rolling in front of the motor vehicle
he was driving. As he was reducing
his speed to avoid colliding with
the rolling motor vehicle, he noticed that it had already ejected two
of its occupants. He further
testified that he avoided colliding with
the passengers ejected from the rolling motor vehicle and in the
process, he observed
a dislocated tyre from the rolling motor
vehicle.
[14]
The plaintiff testified that he saw the trailer at a distance of ±30
metres. There were road works on the road where
he was travelling and
the speed limit on that road was 60 km/h. The reflectors of the
chevron and the signage of the speed limit
are warnings on the road
to any driver to slow down for whatever reason. In this instance he
was alerted by a signage of a speed
limit of 60 km/h, which was
conspicuous enough, to slow down. His version that he slowed down
when he approached the road works
and at the time of the collision is
far-fetched taking into account that he failed to control the motor
vehicle he was driving,
he lost control of it as a result of which it
overturned, the impact thereof resulting in the dislocation of one of
the tyres and
the ejection of two of its occupants. The dismemberment
of the parts of the motor vehicle he was driving and the ejection of
the
occupants thereof attest to the speed and the impact with which
the accident occurred. If indeed he had reduced his speed at the
time
as he testified or drove at a speed of 60 km/h when he approached the
road works and saw the trailer at a distance of ±30
metres,
the damage thereof would have been minimal. It would have been far
less than what it is and perhaps he would have been
able to avoid the
collision.
[15]
In
Randalia Assurance Corporation of SA Ltd v Mtkombeni
1979
(3) SA 967
(A) the court held as follows:
"Where earlier cases lay down
principles relating to the duties of
a
motorist entering
a
dust cloud, they are of assistance. However, each case in which it
is said that
a
motorist is negligent must be decided on its
own facts. Negligence can only be attributed by examining the facts
of each case. Moreover
the court does not draw inferences of
negligence on
a
piecemeal approach. The court must consider
the totality of the facts and then decide whether the driver has
exercised
the standard of conduct which the law requires. The
standard of care so required is that which
a
reasonable man
would exercise in the circumstances and that degree of care will vary
according to circumstances. In all cases
the question is
whether the driver should
reasonably in the circumstances have
foreseen the possibility of a collision."
[16]
Boberg
correctly observes that the question of whether the
reasonable person in the position of the wrongdoer would have acted
differently
in order to prevent damage may be answered in a
meaningful way by reference to the consequence(s) that were indeed
reasonably foreseeable
(and not merely by reference to damage in
general) as required by the abstract approach. It is only when these
consequences of
an act are considered that one can judiciously decide
what steps or precautions, (if any), the reasonable person would have
taken
in order to guard against such consequences
(Boberg Delict
276
ff
381-382 and
Neethling and Potgieter
2001
THRHR 476).
[17]
It is clear from the totality of the evidence that the plaintiff
drove at an excessive speed when he approached the N12 road
where
there were road works. He admitted in his evidence that the speed
limit on that road where there were road works was 60 km/h.
A
reasonable man in his position would have approached that road at a
lesser speed limit and have foreseen that given the speed
limit, the
road works and the chevron signage at a distance of ±30 km/h,
driving at an excessive speed on that road would
have resulted in a
collision. He should have taken a proper lookout and kept proper
control of the motor vehicle he was driving.
His failure to do so and
not being able to pull up within the range of his vision when he
travelled on that road with the conditions
thereof at the time,
clearly shows that he was negligent (see
Manderson v Century
Insurance
Co
Ltd
1951 (1) SA 533
(AD)).
[18]
In my view taking into account the totality of the evidence I do not
agree that the plaintiff was 20% to blame for the collision
as
alluded to by his counsel. I am inclined to accept the submission by
counsel for the defendant that the plaintiff was 50% to
blame for the
collision for the reasons advanced above. I find that the plaintiff
was indeed contributory negligent in causing
the accident and
consequently the damages he has suffered have to be apportioned and
reduced in terms of the Apportionment of Damages
Act to the extent of
the degree at which he was contributory negligent.
[19]
In the result I make the following order:
19.1. The defendant is liable to
compensate 50% of the plaintiff's proven or agreed damages arising
from an accident which occurred
on 28 March 2013.
19.2. The defendant is further ordered
to pay the costs of the action.
____________________________
M
J TEFFO
JUDGE
OF THE HIGH COURT
(GAUTENG
DIVISION, PRETORIA)
APPEARANCES
FOR
THE PLAINTIFF
M D MATSETELA
INSTRUCTED
BY
SAVAGE JOOSTE & ADAMS INC
FOR
THE DEFENDANT
A VAN DER WESTHUIZEN
INSTRUCTED
BY
DIALE MOGASHOA ATTORNEYS
DATE
OF JUDGMENT
3 MAY 2017