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[2017] ZAFSHC 70
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P obo P v Road Accident Fund (5820/2015) [2017] ZAFSHC 70 (11 May 2017)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION. BLOEMFONTEIN
Case
number: 5820/2015
In
the matter between:
M.
M. P. obo
T.
M.
P.
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
06 MARCH 2017
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
11 MAY
2017
[1]
The plaintiff sues the defendant in her representative capacity as
mother and natural guardian. She claims delictual damages.
The claim
arises out of the fatal injury sustained by M. S. E. P., her partner
and father to her minor child, in a road accident.
The action is
defended.
[2]
The parties held a pre-trial conference on 9 September 2016. The
minutes thereof were filed on 12 September 2016. They mutually
agreed
to have the merits and quantum separately adjudicated. At the
commencement of the hearing on 14 February 2017 I granted
the
separation order in accordance with their prior agreement.
Accordingly the issues relative to the quantum of the claim were
shelved and I preceded to hear evidence pertaining to the issues
relative to the merits only.
[3]
The version of the plaintiff was narrated by a single witness,
namely:
Ms
M. M., described as the plaintiff. I shall return to the
plaintiff's papers.
[4]
The defendant called no witness. Its case was closed after the
closing of the plaintiff's case.
[5]
Certain facts were undisputed vide ''exi a". I shall henceforth
refer to the deceased P. as the victim. He and the plaintiff
were
seemingly involved in an intimate relationship. One minor child, T.
M.P. was born of such a relationship. He was born on […]
2008.
[6]
The plaintiff and the victim were on their way to Mafeteng m Lesotho
from Kroonstad on the fateful day. He was the driver of
a sedan, a
Toyota Yaris with registration [...]. She was a front seat
passenger. They were the only occupants of the car.
At Senekal they
preceded towards Marquard. It was raining at Senekal that evening. As
they were nearing Marquard, the victim lost
control over the car. It
swerved from side to side, veered off its correct side of the road,
crossed the centre line and, on the
wrong side of the road,
ultimately crashed into a stationary truck. It was drizzling at the
time of the accident. The wet road
had potholes.
[7]
The accident took place at Marquard on Thursday 28 February 2013. The
time was approximately 14:15. The actual scene of the
accident was a
short distance outside Marquard on the main road from Senekal.
[8]
The victim sustained fatal bodily injuries in the accident. He
instantly died. An inquest was held at Marquard on 19 June 2013.
Mr S
van der Merwe, the district magistrate, made the following findings
in terms of sec 16 Inquest Act 58/1959:
8.1
that the deceased was M. S. E. P., an adult male born on […]
1961;
8.2
that he died on 28 February 2013;
8.3
that the cause or likely cause of his death was multiple internal
injuries and profuse internal
bleeding following a motor vehicle
accident and
8.4
that his death was not brought about by any act or omission
prima
facie
involving or amounting to an offence on the part of anyone.
vide p25 plaintiff's discovery bundle
The
plaintiff survived uninjured.
[9]
The cardinal question in the case is whether the insured driver, in
leaving the insured truck unattended on the verge of the
roadway,
foresaw the possibility of harm to other road users caused by the
stationary truck so parked.
[10]
On the one hand Ms Tlelani, counsel for plaintiff,
submitted that the answer to the question must be affirmative.
The submission was based on the contention that the accident was
caused by the negligence of the truck driver, B Radebe.
[11]
On the other hand, Mr Lechwano, counsel for
defendant, submitted that the answer to the question must
be
negative. The submission was based on the contention that the
accident was caused by the exclusive negligence of the sedan driver
M. S. E. P..
[12]
I deem it necessary to make a cursory overview of
some applicable principles of law.
[13]
It is trite that the plaintiff bears the onus of proof. She is
required by law to prove that the death of the victim
was
occasioned by an act or omission amounting to delictual negligence on
the part of the defendant's insured driver, Bongani Radebe.
In
determining whether or not she has discharged the onus, the measuring
civil standard is proof on a balance of probabilities.
There is no
room for the measuring criminal yardstick - proof beyond reasonable
doubt. Therefore, it goes without saying,
that where the
balance of probabilities favours the plaintiff, I would be
inclined to accept her version as probably true
-
National
Employers General lnsuarnce Co. Ltd v Jagers
1984 (4) SA 437
(E).
[14]
The real claimaint in this matter is T. M.P., the victim's minor
child. He was neither a passenger nor a driver in the sedan.
He was
an innocent third party. Because he was not a wrongdoer or a
co-wrongdoer, the principle of apportionment does
not apply to
him. In order to succeed all that he has to establish is a proverbial
one percent degree of negligence on the part
of the truck
driver, Bongani Radebe. See
Mfomadi
&
Another v Road Accident Fund
[2016] JOL 36438
(GNP)
par [32].
[15]
About innocent third party claimants such as the plaintiffs son the
court, per Kuny AJ, articulated the salient principle as
follows in
Odendaal v
Road
Accident
Fund
2002
(3) SA 70
(W) at 75D-F:
“
(a)
The plaintiffs are 'innocent third parties' and, for them to
succeed, they bear the
onus
of establishing on the balance of
probabilities that Dlamini was guilty of
some negligence which was
causally connected to the collision
and therefore to the damages
suffered by them. No question of apportionment of fault or of damages
arises here since there was no
contributory negligence on their part.
(b)
Thus
any causal negligence
on the part of Dlamini,
whatever the
degree thereof,
in relation
to the collision
would render the defendant liable,
as the
insurer under the Road Accident Fund Act, for the
full amount
of
the damages suffered by each of the plaintiffs.
(c)
The fact that the deceased may have been
negligent and may even have had the 'last opportunity' of avoiding a
collision would not
exon
erate the defendant from liability if
Dlamini was causally negligent.”
The
court went on to say:
"(d)
Cooper
Motor Law
1st ed vol 2 at 141 and cases cited
therein suggests that, to determine
whether conduct was a factual
cause of the collision
and therefore of the damages claimed,
the
conditio sine qua
non
test
is applied. This term
embraces
'all
things which have so far contributed to the result that without them
It would
not
have
occurred.
. . .
Accordingly,
the
test
for
factual
causation
is
whether
but
for
the defendant's conduct the alleged harm
would not
have occurre
d'
'.
(my
emphasis)
[16]
In considering whether the conduct of the defendant's driver was
a factual cause of the collision, the applicable delictual
test is
that of a
diligens paterfamilias
in the position of Bongani
Radebe, the driver of the alleged offending truck. It has been
authoritatively held that for the purposes
of delictual liability a
paterfamilias
in the position of the defendant must have
foreseen the reasonable possibility of his conduct injuring another
and causing patrimonial
loss and would have taken reasonable steps to
guard against such occurrence but the defendant had failed to take
such preventative
steps
Kruger v Coetzee
1996 (2)
SA 428
(A).
[17]
In applying the diligens
paterfamilias
test, the conduct of
the defendant must be assessed according to the objective conduct
of a reasonable driver bearing in mind
the prevailing factual
circumstances, statutory regulations and traffic obligations of road
users.
[18]
Traffic Regulation 305(3) reads:
"(3)
No person shall park a vehicle on any portion of the
roadway (excluding the shoulders) of a public road
outside an urban
area or
with any part of such vehicle within one metre of the edge
of such roadway
except in a parking place demarcated by an
appropriate road traffic sign." (my emphasis)
See:
The
National Road Traffic Act 93 of 1996
read with the National Road
Traffic Regulations of 1999, Chapter X, Rules of the Road and Matters
Relating thereto.
See:
Sand and Company Limited v SA Railways
&
Harbours
1948 (1) SA 230
(W) Sand and Company
Limited v SA Railways
&
Harbours (1948]
1 All SA 249
(W).
[19]
A reasonable driver takes all reasonable steps to prevent harm to
other road users irrespective of the direction in which they
may be
travelling. A reasonably diligent and careful road user realizes
that, in certain circumstances, a stationary
motor vehicle may create a hazardous situation on
the road. Consequently he would take appropriate steps to prevent
such harm or to reduce the risk of such foreseeable harm. In taking
reasonable steps or precautions to guard against foreseeably
harmful
occurrence, a reasonably careful driver would make provision for
unexpected lateral movements by other road users. He anticipates
that, at times, motorists do lose control over their vehicles for a
variety of reasons such as tyre-burst, excessive speeding,
driver's
fatigue, being stung by a bee, slippery or potholed conditions of the
road surface, or any other sudden emergency. A reasonable
driver is
alert and mindful that strange things do happen on the roads.
[20]
In
Mokgadi Moletsane v Road Accident Fund
[2015]
JOL 34855 (FB) par [15] the court held; per Lekale J:
"[15]
As correctly submitted by Mr Pohl, the accident herein could have
been easily avoided had the driver of the insured truck
taken steps
to warn other road users about the danger posed to them ... "
[21]
In
Manderson v Century Insurance Co Ltd
(1951] 1 ALL
SA 401 (A) par [14] the court held, per Van den Heever JA, that
the driver's omission to remove his stationary
car from its dangerous
position was the cause of the accident which operated right up to the
moment of impact. I pause to point
out that, in that case, the
stationary car was stopped some 10 - 13 feet from the roadway but on
the correct side of the road -
the left hand side. The standard width
of a traffic lane is approximately 12 feet. In the instant matter the
position of the stationary
truck, on the right hand side of the
road, was hardly one foot from the edge of the roadway.
[22]
In stopping the truck in such a dangerously obstructive manner,
the truck driver tacitly accepted the risk of foreseeable injury
to
others for he was prepared to stop or leave a potentially dangerous
obstacle within such a hazardously narrow margin from
the
centre line.
Manderson,
supra.
[23]
The test for negligence entails an enquiry whether the conduct of an
alleged wrongdoer complies with the normalised and standardised
conduct of a reasonable person. If it does, a delictual claim
fails. If it does not, a delictual claim succeeds. For
a
defendant to be held delictually liable as a wrongdoer, the harm
resulting from the negligence attributed to him must be
foreseeable and preventable. Applied to bodily injury claims
arising out of road accidents, these principles require that
a court
has to objectively determine how a reasonable driver would have
conducted himself or herself in the circumstances that
were
prevailing at the time of the accident and also to objectively
determine whether the driver in question had acted as a reasonable
driver would have.
Harvest Corporation (Pty) Ltd v Duncan
Dock Cold Storage (Pty) Ltd
2000 (1) SA 827
(SCA).
[24]
As regards the first element of the test, the question is whether a
reasonable driver would have foreseen the reasonable possibility
that
his conduct, whether positive or negative act, would injure another's
person and cause such victim to suffer patrimonial loss.
[25]
The truck was stationary on the main public road between the two
towns at the time of the accident. It was facing in the direction
of
Senekal. Its wheels on the right hand side were fractionally
off the road tarmac for the Senekal bound stream of
traffic.
The particular section of the rural road, consisted of one traffic
lane in each direction. The victim's sedan was in motion
seconds
before the disaster. It was travelling towards Marquard. In other
words it was approaching the stationary truck from the
front. See
police accident report - p20 Index: Plaintiffs
Discovery Bundle as well as the plaintiff's
rough sketch
- "exi b". The speed limit was 100km per hour. The
road surface was in poor conditions. It was potholed
and wet.
[26]
I am still in the dark as to a number of things. For instance I am
clueless as to why the truck was parked as it was, as to
where its
driver was at the crucial moment, as to how long it had been parked
on the scene, as to whether its red emergency lights
were on or not,
as to whether a danger triangle was placed anywhere in its
vicinity to warn other road users of a potentially
hazardous
situation it posed, as to why it could not have been completely
removed from the precincts of the public roads without
delay or as to
why it was not, at least, parked farther away from the tarmac.
[27]
Although the onus rested on the plaintiff to prove the alleged
negligence or culpable conduct on the part of the truck driver,
it
has to be borne in mind that a mere violation of a statutory rule,
designed to enhance the traffic safety of road users in general,
by
itself may be conclusively indicative of a driver's negligence.
Sand
supra
and
B &
B Eiendomme (Edms)
Beperk v Find A Load
[2016] ZAFSHC (2535/16) FB per
Nicholson AJ.
[28]
The prohibition contained in the aforesaid traffic rule 305(3) is
peremptory. In the absence of any innocent explanation by
the
transgressor concerning the circumstances which led him to violate
the traffic rule, his violation must be regarded as culpable
conduct.
Consequently such an act of neglect attracts delictual liability. The
evidence given by the plaintiff revealed that the
truck was parked in
such a manner that it occupied virtually the entire prohibited one
meter zone from the edge of the tarmac roadway.
There was no evidence
which indicated that the particular portion of the road where the
truck was actually parked was demarcated
by an appropriate sign as a
parking place. I am, therefore, inclined to determine the first leg
of the inquiry in favour of the
plaintiff.
[29]
A diligent driver must not only be capable of reasonably foreseeing
harm which may possibly flow from his act. He must also
be able to
take reasonable steps to prevent such foreseeable harm from possibly
occurring.
Kloppers: Law of Collisions in South Africa 7
th
ed. 2003 at p11.
Failure to do so will constitute negligence.
To this second element of the test, I turn now.
Travelling
on a country road, a reasonable driver, aware of the hazard posed by
potholes, foresees a reasonable possibility of another
driver
encountering an animal, cyclist, pedestrian or a pothole anywhere at
any time. Moreover, he foresees a reasonable possibility
that a
motorist who encounters such a situation would take one or other
evasive action and that in the process of doing so he might
lose
proper and effective control of the vehicle.
[30]
Once a motor vehicle goes out of control, there is no telling which
course of motion it would follow to its equally unpredictable
position of final rest. It may, after spinning all over the show,
finally come to rest in the middle of the road or on the incorrect
traffic lane or on the correct traffic lane or off the road on either
the wrong side or the correct side of the road.
A
diligent driver takes preventative steps by removing his motor
vehicle from the roadside where it may aggravate the plight
of a
driver in such a crisis. The victim's panic exclamations showed that
he had lost control of his motor vehicle.
[31]
Before it ultimately reaches the position of its final rest, it may
or it may not collide with any object on the way. Where
there was no
intervening collision, the factual scenario does not concern us. I am
grappling with the factual scenario where the
fateful route of the
victim's sedan was tragically halted by its collision with the
stationary truck. Now between that actual
point of
fatal obstruction and the imaginary point of the sedan's final rest
the fatal result might not have occurred
had the stationary truck not
prematurely put to an end the free and uncontrolled motion of the
sedan. There were two possibilities
in the factual scenario, had
the truck not been on the fateful path of the sedan. The one was that
the victim might still
have died, anyway. The other was that the
victim might have survived, just as the victim did in
Mokgadi's
case,
infra.
[32]
Those were two alternative possibilities of the end result of the
uncontrolled motion of the sedan which were more or less
equally open
on the balance of probabilities. The result of the obstructed motion
was death. The result of the unobstructed motion
might have been
different. The chain of events which together constituted a factual
cause of the collision and the ultimate fatal
result was a material
consideration. Such events included the speed of the victim's sedan,
the potholes on the road, the position
of the stationary
truck, the possible damage to the sedan, the
victim's inability to
slam the brakes, to control the sedan and to
avoid the collision. Without all these things the collision would not
have occurred
and death would not have resulted.
[33]
Am
ong all things which
have so far causally contributed to the fatal result, was the
hazardous position of the truck without which
it would probably not
have occurred. But for the truck driver's conduct the harm would not
have occurred. That is what the
condictio sine qua
non test
embraces -
Cooper: Motor Law,
supra.
The insured driver
failed to take preventative steps to guard against the occurrence of
such foreseeable harm. To that extent, he
was negligent. His
negligence commenced from the moment he parked the truck and operated
right up to the moment of impact -
Manderson,
supra.
[34]
In
Mokgadi Moletsane v Road Accident
Fund
[2015] JOL 34855 (FB) the plaintiff was one of several
passengers in a bus. The dual road was straight and tarred.
It had a
fair number of some uphills and downhills but no potholes. A
stationary truck was spotted on the road ahead of the bus.
Its wheels
on the right hand side were occupying a greater portion of the
traffic lane on which the bus was travelling. It was,
therefore,
physically obstructing the flow of traffic especially those vehicles
approaching it from behind, such as the bus. The
emergency lights of
the truck were not flickering. However, there was a danger warning
triangle placed about 2 metres behind it.
[35]
When the bus suddenly loomed up, the stationary truck was dangerously
close. The bus driver immediately swerved to
the
right in an attempt to avoid crashing into the truck from behind.
Although he succeeded, the bus was confronted by another
bus which
was travelling in the opposite direction. In yet another desperate
attempt to avoid a head-on collision with an oncoming
bus, the
plaintiff's bus driver sharply swerved to the right, across the
traffic lane for the opposite stream of traffic, completely
veered off the road, ploughed into the adjacent field, hit a rock
and eventually overturned.
[36]
The plaintiff survived. He survived notwithstanding the fact that
the bus went out of control, left the road, and hit
a rock before it
overturned. It may be argued by analogy, that the absence of a
stationary truck on the other side of the road
enhanced the chances
of the plaintiffs survival. Consequently, it may be
argued, again by analogy, that in the instant
accident, the presence
of a stationary truck on the other side of the road substantially
diminished the victim's chances of survival.
But for the dangerous
position of the truck the victim might not have died.
[37]
Indeed the instant matter is factually distinguishable from the cases
of
Mokgadi
supra
and
Manderson
supra.
In
those two cases, the offending vehicles were parked on the same side
of the road on which the innocent vehicles were
travelling. However, that by itself is not supposed to be the
decisive consideration. It must be borne in mind that, although the
stationary truck was parked on the other side of the road, it was no
more than 3 metres away from the middle line demarcating the
two
opposite traffic lanes.
[38]
The evidence of the plaintiff was that the road had potholes;
that it had been raining; that the sedan was travelling
at an average
speed of 100km per hour seconds before the disaster and that she
heard a strange sound seconds before the victim
lost control over the
car. The victim exclaimed: "Eish!" which was
followed by another exclamation:
"Shit!" He
exclaimed in that way when he realized that the sedan was
destined to crash into the stationary truck.
Shortly after the second
exclamation the sedan crashed into the truck. It is significant to
note that the right front bumper of
the sedan and the right front
wheel of the truck were involved in the forceful impact.
[39]
Mr Lechwano contended that the insured driver was not negligent as
pleaded or in any manner whatsoever. The theme
of
counsel's cross examination and closing argument was that the victim,
the sedan driver, was travelling at an excessive
speed in the
circumstances. He submitted that even the proverbial one percent
negligence could not be imputed to the insured driver.
The
submission was informed by the contention that, in any event,
there was no causal nexus between the alleged or imputed
negligence
and the ultimate collision.
[40]
The essence of the plaintiff's pleaded case was encapsulated in par 4
of her particulars of claim. Among others she alleged
that:
"4.1
He parked his motor vehicle at or within an area not designated or
demarcated for parking motor vehicle by a road traffic
sign.
4.2
He failed to act timeously and avoid the collusion by removing his
car along the side of the road, where he was prohibited from
parking/
or stopping.
4.5
He failed to adhere to traffic rules and regulations."
[41]
However, the defendant barely denied those serious allegations. The
general denials were not amplified at all. Consequently
it was not open to the defendant to argue that the excessive speed of
the sedan causally had everything to do with the ultimate
collision.
The evidence given by the plaintiff as regards the speed must be
accepted. As a driver herself, she gave a reasonably
informed
estimate of the speed of the sedan. In its plea, the defendant
alternatively prayed for apportionment of damages on the
ground that
the negligence of the sedan driver was the contributory cause of the
collision. Such an alternative defence against
an innocent claimant
is bad in law -
Odendaal's
case,
supra.
Mr Lechwano,
who was not the author of the defendant's plea, wasted no time to
abolish such an unmeritorious alternative defence.
[42]
In the course of his argument, Mr Lechwano also submitted:
"It
could not have been possible for him to foresee that the deceased
would lose control over his vehicle, at the time and
place he did,
and collide with the stationary truck on the other side of the
road, which was in no way obstructing traffic
flow for vehicles
travelling on either lane of the road."
[43]
I was not persuaded by the submission. The public road concerned
was a narrow road with
one
traffic lane in each direction. It was
not in good conditions. There were potholes on the
road and in
particular in the vicinity of the scene of the accident. The truck
was parked no more than 3 metres from the middle
line and virtually
occupied the prohibited 1 metre zone on the verge of the external
boundary of the opposite traffic lane. Given
all those factors and
the prevailing weather conditions, I was not persuaded by the
argument that the stationary truck in no way
obstructed traffic flow
for vehicles travelling on either of the two traffic lanes.
[44]
Quite apart from the aforesaid considerations, I have a more
fundamental difficulty with Mr Lechwano's submission. The
foreseeability
test is satisfied in a case where the
general
and
harmful consequences of a particular act are foreseeable. Harm
is considered to be preventable if a reasonable driver
would have
weighed the seriousness, nature and extent of the harm or damage on
the one hand against the benefit, expense or trouble
resulting from
practical steps necessary to prevent the impending harm. At the heart
of the matter is prejudice. Consequently a
driver is negligent
if he is capable of reasonably foreseeing that his conduct is
likely to cause damage or harm in general
but fails to take
reasonable steps to prevent such damage or harm from occurring.
Klopper,
supra,
at p11-2.
[45]
It follows, from the above, that it is not an elementary requisite of
the foreseeability test that it must have been possible
for the
wrongdoer, to have foreseen the specific manner in which a harmful
event would precisely occur before he can be held liable.
All that
the law requires is that a reasonable driver in the position of
the driver of the insured truck would have foreseen
a reasonable
possibility of harm in general occurring from the way he had parked
the truck on the road.
[46]
It is unknown as to how long the truck had been stationary on the
edge of the roadway. The only person who had intimate knowledge
about
that point was the truck driver. In the absence of any evidence on
behalf of the defendant, I have to assume in favour of
the plaintiff
that the truck had probably been parked there for some fairly long
time; that the insured driver had reasonably adequate
opportunity to
remove it but that he, for no good reason, neglected to have it
removed from its hazardous position. In view of
all these
considerations, I have come to the conclusion that he failed to take
reasonable steps to prevent foreseeable harm. This
completes the
second leg of the test.
[47]
The insured driver of the truck did not testify. No reasons were
given on behalf of the defendant as to why he was not called.
I take
it, therefore, that he was available to do so and that there was no
good reason as to why he was not called.
[48]
It is alleged in the accident report that the insured vehicle, the
truck, was parked outside the roadway and that the victim's
sedan
collided head-on with the truck. Both aspects were somewhat
inconsistent with the evidence. During the course of the cross
examination the plaintiff specifically denied, as untrue, the
suggestion that the truck was parked completely off the tarmac of
the
roadway. She also denied that the collision was head-on as depicted
in the police accident plan. The defendant's
abortive
attempt to shift the position of the truck further away was by itself
a tacit acknowledgement that the driver had
left a hazardously narrow
clearance between the truck and the roadway. Judging by the diagonal
motion of the sedan, there existed
a reasonable possibility that the
collision might never have occurred if the insured driver had parked
the truck farther away from
the edge of roadway. In my view he took
no reasonable steps to give vehicles passing the truck in either
direction an adequately
and reasonably wide berth. The insured driver
had , in my view, parked the truck in a potentially dangerous manner.
Such careless
conduct boiled down to negligence. A reasonable driver
would have foreseen that leaving a stationary truck unattended in
those
circumstances could cause harm to other road users in general
irrespective of whence they came.
[49]
It is common cause that neither the insured driver, Mr Bongani
Radebe, nor the police officer whose duties it was to compile
the
police accident report and to draw up the police accident plan were
called to testify on behalf of the defendant. In such a
situation, I
am entitled to select out of those two alternative explanations
concerning the cause of the accident, that one which
favours the
plaintiff as opposed to the defendant
Galante v Dickson
1950
(2) SA 460
(A) at 65 par Schreimer JA. The essence of that
authoritative decision is that in circumstances such as these the
facts must be
generously interpreted in a manner favourable to the
plaintiffs tested evidence.
Dlangamandla v Road Accident
Fund
2011 (5) SA 565
(FB).
[50]
The truck driver's negligence was further evidenced by his
failure to switch the hazard lights of the truck on. to place any
reflective
triangle anywhere in the vicinity of the stationary truck
or to take any other reasonably meaningful steps to prevent possible
harm. On the facts I find it impossible to acquit the insured driver
of negligence. He was, in my view. also negligent
to
an extent. Such negligence, however small one considers it to have
been, was causally connected to the result. In a case
of an
innocent third party, as in this instance, any causal negligence on
the part of the insured driver, whatever the degree
thereof, renders
the defendant liable for the full amount of the proven delictual
damages -
Odendaal's
case,
supra.
[51]
The only true explanation why the father of the plaintiff's child was
fatally injured as he was, is to be found in the insured
driver's
failure to foresee the possibility of harm in circumstances where a
reasonably prudent and careful driver would have foreseen
it and
would have taken reasonable steps to prevent it.
[52]
Before I pen off, I have to comment on the quality of the plaintiff's
papers as a whole. As regards the plaintiff. she was
cited as M.
P..
See the formal heading of the summons. Also see
the notice of bar.
•
She was also described as
M.
P..
See
par 1.1 particulars of claim.
See
also application for pretrial date. See further notice of pretrial.
•
She was further described
as
R.
P..
See
an index of pleadings. See also an index of notices.
•
She was finally
introduced and presented to me in court as M.
M..
[53]
As regards the victim, he was described as
E.
P..
See
par 3 particulars of claims.
•
He was also
described as E.
S. M.
P..
See
index: discovery bundles
[54]
As regards the minor child, he was described as T.
M.
P..
See
the formal heading of the summons.
•
He was also described as
T. M.P.. See par 6.1 particulars of claim.
See
also
•
He was further described
as T.
M.
P..
See
the prescribed mva claim form, Road Accident Fund 1 p12 index:
discovery bundles.
[55]
Quite obviously, the plaintiff's pleadings and papers as a whole were
riddled with multiple mistakes pertaining to personal
particulars of
the mother, the father and the child. They were not a
model of good draftmanship.
The pleadings
must always be meticulously and elegantly drawn up after all
this is the high court and not a street
committee forum. Let me point
out that R. P. was not the plaintiff but rather the plaintiff's
daughter. I say no more about this
sorry state of the pleadings.
[56]
The correct family surname appears to be P. according to official
documents. The correct names of the child appear to
be T.
M.P., the father M. S. E. P. and the mother M. M. P. ex J. as would
appear from the full birth certificate - vide p24 index:
discovery
bundles, - the inquest record p25 index: discovery bundle and the
Kingdom of Lesotho passport RC012621 p23 index:
discovery
bundles.
[57]
According to Basotho culture, a bride not only adopts the
surname of the bridegroom but also a new marital name. For
instance
L. S. R. would become M. R.. She would even be issued with an
official K.O.L passport in her new name and surname. Therefore,
M. R.
and L. S. R. would, in truth and in reality, be one and the
same woman.
[58]
In the instant matter I readily accepted that M. M. is, by virtue of
culture, one and the same woman as M. M. P. ex J., the
biological
mother and natural guardian of the minor child, T. M.P.. Take it from
me, I did many such mva claims during my heydays
as an attorney.
However, it remains incumbent upon an mva claimant's
attorney to gather evidence
to that effect
in order to, have it presented to the Road Accident Fund and
ultimately to a trial court, if necessary.
[59]
Accordingly I make the following order:
(a)
The defendant is fully liable to the plaintiff in such an amount
of damages as she may prove or as may be agreed
upon.
(b)
The defendant is directed to pay the costs of the trial.
__________________
MH
RAMPAI, J
On
behalf of plaintiff:
Attorney L Tlelai
Instructed by:
Moroka Attorneys
Bloemfontein
On
behalf of defendant: Adv. A Lechwano
Instructed by:
Maduba Attorneys
Bloemfontein
[59]
Accordingly I make the following order:
(a)
The defendant is fully liable to the plaintiff in such an amount of
damages as she may prove or as may be agreed upon.
(b)
The defendant is directed to pay the cost of the trial.
__________________
MH
RAMPAI, J
On
behalf of plaintiff:
Attorney L Ttelai
Instructed by:
Moroka Attorneys
Bloemfontein
On
behalf of defendant: Adv. A Lechwano
Instructed by:
Maduba Attorneys
Bloemfontein