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2017
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[2017] ZAFSHC 83
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Van Pletzen v Road Accident Fund (4992/2014) [2017] ZAFSHC 83 (1 June 2017)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4992/2014
In
the matter between:
WILLEM
HENDRIK VAN PLETZEN
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
16 & 17 MAY 2017
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
01 JUNE 2017
[1]
This is an action
instituted in accordance with the provisions of the Road Accident
Fund Act 56 of 1956 (as amended) in respect
of personal injuries
sustained by the plaintiff. It is common cause that the
plaintiff was involved in a “hit and run”
accident on the
5
th
February 2011 near the corner of Kellner Street and Second Avenue in
Westdene, Bloemfontein. This left him with extensive
multiple
injuries to the head, face and right leg.
[2]
The only issue to be determined in this matter is the merits.
It is common cause that the defendant accepted liability
and that the
dispute revolves around the degree of negligence on the part of the
insured driver.
[3]
At the outset of the trial, counsel for the plaintiff brought an
application that I should make a ruling that the defendant
had
already conceded the merits and that there is no outstanding issue to
be adjudicated. He pertinently referred to the
Request for
Further Particulars, Further Particulars and the Minutes of the
Pre-Trial Conference in terms of the Uniform Rules
of Court number 37
where the defendant repeatedly accepted 1 % liability towards the
plaintiff. I was not persuaded with
his submission and I
dismissed the application. I shall deal with the reasons of my
ruling in the following paragraphs.
[4]
The occurrences of that fateful day for the plaintiff were narrated
by the sole witness namely Stephanè Victor who was
employed as
a taxi driver by the plaintiff’s father. She received a
telephone call from the plaintiff requesting her
to pick him up at
Ulong Lounge situated in Second Avenue. It was around 22H00.
On her arrival the street was busy and
she parked her taxi on the
side of the street and made a call to the plaintiff who was in
conversation with an unknown person while
sitting on the steps of the
premises he was visiting.
[5]
According to her, she parked her motor vehicle facing Kellner Street
in the north with Zastron Street in the south. The
plaintiff
stood up and took steps to cross Second Avenue from east to west.
It is important to note that all the buildings
that were on her side
have been demolished probably to make way for a new development.
On that day visibility was hindered
by the buildings that were on her
side of the street.
[6]
The plaintiff walked up to the edge of the street and located himself
between the two (2) motor vehicles that were parked on
his side of
the road. He made his observations by looking on his left and
right side before crossing the street. He
took the first step
to cross the street. On the blink of an eye, a grey motor
vehicle racing up Kellner Street from the west
to the east with noisy
music appeared on the scene. It turned to the right into Second
Avenue and all she heard was the screeching
tyres and she took her
eyes off the plaintiff to attend to an enquiry from her passenger.
The next moment she noticed the
plaintiff sprawled on the tarmac of
the street. She momentarily froze in disbelief with shock.
Commotion ensued as
bystanders rushed to the plaintiff as he lay on
the tarmac. The insured driver did not stop but sped off from
the scene of
the accident. An unknown man jumped into his motor
vehicle and gave chase but it turned out to be an exercise in
futility.
[7]
Mr Snyman submitted that the witness gave a good account of what
transpired on that night and that I should find that the plaintiff
has proved his case on a balance of probabilities. In essence
that the insured driver was wholly to be blamed for the accident
and
that there was nothing that the plaintiff could have done to avoid
it. He kept a proper lookout and acted in the manner
that was
expected of him when he attempted to cross the street.
[8]
The submission of Mr Gcasamba was to the effect that the plaintiff
was also to be apportioned the negligence given his conduct.
He
did not keep a proper lookout and entered the street when it was
inopportune to do so. It was largely because of this
indiscretion on his part that he was involved in the accident.
[9]
In the application I referred to in paragraph 3, Mr Snyman relied on
the judgement of
Daffue J in Du Toit obo Dikeni v Road Accident
Fund
2016 (1) SA 367
(FB)
. In paragraph 18 the court said
the following: “
The merits were set down for hearing
on 27
th
May 2014. It is common cause
that the collision between the two (2) motor vehicles occurred very
close to the middle of the
road and that the plaintiff had to prove
merely 1% negligence on the part of the first insured driver to
obtain full compensation
to be proved or agreed upon
.”
The issue of proving 1% negligence in such circumstances
(my
emphasis)
is the correct restatement of the legal position.
[10]
However, the circumstances in that matter are vastly different to our
present circumstances. In that matter the court
was saddled
with a passenger claim for compensation. The parties probably
reached an agreement on that basis without the
court making a
determination on the matter. This case before me is an accident
involving a pedestrian whose conduct also
have to be scrutinized and
where appropriate the necessary apportionment be applied.
[11]
The use of a public road requires a careful consideration of both
motor vehicle drivers and pedestrians to ensure their safety
and that
of other road users. Second Avenue in Westdene is abuzz with
revellers visiting different restaurants and bars in
the area.
It is a hive of activity at night particularly by young people
milling around. On the day in question it
was no different.
A crisp question to be posed and answered is, how would a reasonable
driver in that situation or similar
situation have acted? The
testimony of the only witness is that the insured driver came down
Kellner Street in a high speed
and with screeching tyres turned into
Second Avenue. He did not apply any brakes or sounded a hooter
to warn other road users
of the impending danger.
[12]
In the circumstances it was foreseeable that the likelihood of harm
occurring was an eventuality. He did not take any
steps to
guard against such occurrence but simply proceeded with his conduct.
It is also instructive that even after colliding
with the plaintiff,
he simply drove off and measures taken to locate him did not yield
any fruits. Stephanè Victor
impressed me in the manner
that she was candid and direct as she dealt with the questions posed
to her. She did not see the
impact and readily admitted that
aspect. The incident happened in a flash second and the next
moment the plaintiff was lying
on the tarmac with the speeding motor
vehicle driving on. It must be noted that the defendant did not
lead any evidence to
contradict Victor’s evidence. Even
the cross-examination did not yield any contradictions.
[13]
On the other hand, the plaintiff observed the flow of the traffic on
both sides before embarking on crossing the road.
It is
apparent that he was aware of the lurking danger of crossing the road
without ensuring one’s safety. When it
was safe to do so,
he took the first step to cross to the other side. He was
barely at it when he was hit by the passing
speeding motor vehicle.
He acted like a reasonable, prudent pedestrian who should not cross
the road without proper lookout.
Acting in the contrary exposes one
to the reasonable risk of collision with passing motor vehicles.
This was held in
Swanepoel v Parity Insurance Co Ltd
1963 (3) SA
819
(W)
and confirmed in
Dlangamandla v Road Accident Fund
2011 (5) SA 565
(FB)
. He took the necessary steps and
applied the only available precautions to him. There is no
allegation(s) against him
of any untoward conduct on the day in
causing or contributing to the accident.
[14]
Mr Gcasamba was at pains to substantiate his submission that I should
find that the plaintiff at least contributed in part
of the
accident. There is no basis for such a finding but rather that
the insured driver was wholly responsible in causing
the collision.
The plaintiff did not testify because he is severely injured and he
has no recollection of the events as they
unfolded on that night.
Mr Snyman urged me to make a finding that the insured driver created
a dangerous situation and that
the plaintiff did not and could not
have been expected to have an opportunity to avoid the accident.
I agree with him on
this aspect because his submission is consistent
with the evidence led in this matter. I am satisfied that the
plaintiff
has discharged the necessary onus of proof on a balance of
probabilities as required by the law.
[15]
In so far as the costs are concerned, I do not have any reason to
depart from the general rule that the costs follow the event.
Mr Snyman submitted that I make a cost order including the travelling
and accommodation costs of the witness Stephanè Victor.
The reason that he advanced was that she was now resident in
Johannesburg and that the plaintiff will be unfairly prejudiced if
made to incur such costs. He was cautious in emphasizing that
he is not by any stretch of imagination asking for qualifying
fees or
costs of such nature.
[16]
The issue whether to award or not award costs lies in my discretion
which must be exercised in a judicial manner. In
doing so, one
must strive to achieve a just and equitable decision. The
witness called by the plaintiff was immensely helpful
but cannot be
classified in any different category than all other lay witnesses.
It is incumbent upon litigants to ensure
that necessary witnesses are
brought to court in order to advance their matters. Every
witness (except an expert) called
by a party is necessary for his/her
case. I am therefore not convinced to exercise my discretion to
the extent of making
a special order of costs other than the general
one.
Accordingly,
I make the following order:-
1.
Judgement in favour of the plaintiff.
2.
The defendant is ordered to pay the
plaintiff’s costs for the 16
th
and 17
th
May 2017.
___________
MATHEBULA,
J
On
behalf of applicant:
Adv.
C Snyman
Instructed
by:
Bezuidenhouts Inc.
On
behalf of respondents:
Mr M Gcasamba
Instructed
by:
Maduba Attorneys