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South Africa: North Gauteng High Court, Pretoria
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[2016] ZAGPPHC 68
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Herbst v Road Accident Fund (50051/2014) [2016] ZAGPPHC 68 (21 January 2016)
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THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
21/01/2016
Case no: 50051/2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
PETRUS JACOBUS
HERBST PLAINTIFF
And
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
MODIBA J:
[1] The Plaintiff sues
the Road Accident Fund for personal injuries sustained in a motor
vehicle accident.
[2] Merits were separated
from quantum in terms of rule 33(4) of the uniform rules of court and
the quantum trial postponed sine
die. The trial proceeded only in
respect of merits.
[3] The Plaintiff
testified that on 17 February 2013 at about 7am on the R38 road
between Bethal and Standerton, the motor vehicle
which he was driving
was involved in a collision with an unidentified motor vehicle driven
by an unidentified driver.
[4] As he was driving' on
this road he noticed the unidentified motor vehicle ahead of him. It
was driving at an unusually low speed
for the type of road they were
driving on. He decided to overtake it. Prior to overtaking he
observed the unidentified motor vehicle
to anticipate an action by
the unidentified insured driver. After ensuring that it was safe to
commence with an undertaking maneuver,
he began to overtake. In that
process, the unidentified motor vehicle suddenly moved to the right
onto his path of travel, causing
the motor vehicle collision.
[5] Where .the collision
occurred is a single. carriage road. on both sides. The road is
straight with no in-roads. At the time
of the collision the road was
being repaired. New tar had been laid on the road and the road
surface was not marked. The weather
was clear and there was
sufficient natural light as one would expect for a late summer
morning in the Gauteng Province.
[6] He tried to avoid a
collision with the unidentified motor vehicle by moving to his
further right. He lost control of his motor
vehicle, and it
overturned. His next recollection was finding himself in the
overturned car. It had landed in water on the side
of the road. He
managed to get out of the car. He realized that his right arm was
broken. He had to support it with the other hand.
He made his way to
the main road. He was dazed and confused. His next recollection is
when he was transported by ambulance to hospital.
[7] The Defendant did not
put any version before court. Its counsel only sought to test the
Plaintiff's version in cross-examination.
[8] In its plea the
Defendant admitted the collision but placed the negligence of the
insured driver in dispute. Counsel for the
Defendant cross examined
the Plaintiff on a sworn statement he deposed to on 9 September 2013
where he started that the collision
occurred when the unidentified
motor vehicle suddenly turned right on his path of travel. He
clarified that by using the word turned
right he meant that the
unidentified motor vehicle moved right to his path of travel as he
has testified. He cannot account for
the reason for the move taken by
the unidentified driver.
[9] Counsel for the
Defendant submitted that the court ought to reject the Plaintiff's
evidence on his own version because on a
straight road, there is no
reason why the unidentified motor vehicle would suddenly turn right.
She argued that the probable conclusion
to draw from the Plaintiff's
evidence·is that no other motor vehicle was involved in the
collision.
[10] This is one of the
most bizarre Road Accident fund claims I have ever come across. The
Defendant has a statutory duty to investigate
motor vehicle accidents
that result in personal injuries for which it has received claims. It
is common cause that the Plaintiff
has complied with all statutory
requirements relating to the Plaintiff's claim. Absolutely no
investigation has been undertaken
by the defendant's representatives
in respect of the plaintiff's claim. The defendant has neglected to
answer to the plaintiff's
request for further particulars for trial
as well as questions requested at the pre-trial conferences held on
21 August 2014 and
on 4 November 2015. In the result, the plaintiff
came to court in-apprised of the defendant's defence.
[11] The defendant came
to court with a plea in which he pleads a bare denial of the
allegations in the Plaintiff's particulars
of claim and with no
version to contradict the plaintiff's allegations in a bizarre hope
that the plaintiff fails to withstand
cross-examination. There is no
duty on a plaintiff to explain the reason for movements of the
unidentified motor vehicle. The defendant
has not shown that the
plaintiff failed to take the steps that a reasonable person in his
position would have taken to avert the
collision. There is therefore
only one version before court. I find that the sole cause of the
foresaid motor vehicle collision
is the insured driver.
[12] I am satisfied that
the plaintiff has discharge the onus on him to prove that the
defendant is 100% liable for damages that
he sustained in the
foresaid motor vehicle colission.
[13] In the premises, I
make the following order:
ORDER
1.
The defendant shall
pay the plaintiff 100%. of his proven agreed damages.
2.
The trial in respect
of quantum is postponed sine die.
3.
The defendant is
ordered to pay the plaintiff’s costs of suit, which costs shall
include:
3.1.
The costs of the preparation of trial bindles;
3.2.
The costs of counsel and attorney, inclusive of their
full day fees for 23, 25 and 26 November 2015;
3.3.
The reasonable costs of attorney including the following
costs: travelling, court attendance, preparation for pre-trial
conferences
including preparation of pre-trial minutes and attendance
at pre-trial conferences;
3.4.
Trial preparation costs for the attorney;
3.5.
The plaintiff is declared a necessary witness. The
defendant shall pay his travel and accommodation costs for the
purpose of attending
trial;
3.6.
Counsel's reasonable trial preparation costs.
4.
The defendant shall
pay the plaintiff's costs of suit as taxed or agreed within 30
(thirty) days from the date or taxation or settlement
of such costs,
failing which the defendant shall be liable to pay interest thereon
at a rate of 9% per annum, from and including
the date of taxation
of-settlement up to and including the date of final payment.
5.
The defendant shall
pay the plaintiff's costs of suit into the following bank account:
Account name:
Gildenhuys Malatji Inc.
Bank:
ABSA
Bank
Branch:
Brooklyn
Account number:
[...]
Branch code:
335345
Reference:
G
Erasmus/01700987
__________________
MODIBA J
DATE OF HEARING: 26
November 2015
DATE OF JUDGMENT: 21
January 2016
LEGAL REPRESENTATIVES:
Counsel for the
Appellant/ Plaintiff: Adv. JC van Eeden Instructed by: Geldenhys
Malatji
Counsel for the
Respondent/ Defendant:
Instructed by: TM Chauke
Incorporated