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[2016] ZAFSHC 64
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Venter v Member of the Executive Council Department of Police, Roads and Transport, Free State Province, Venter v Member of the Executive Council Department of Police, Roads and Transport, Free State Province (1951/2013) [2016] ZAFSHC 64 (28 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No. : 1951/2013
In
the matter between:-
RIAAN
CARL
VENTER
Plaintiff
Case
No. : 1076/2013
In
the matter between:-
GENEVIEVE
VENTER
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF POLICE, ROADS
AND
TRANSPORT, FREE STATE
PROVINCE
Defendant
HEARD
ON:
19
APRIL 2016
JUDGMENT
BY:
KRUGER,
J
DELIVERED
ON:
28
APRIL 2016
[1]
This judgment concerns the negligence in relation to the claims of Mr
and Mrs Venter flowing from a collision on 8 October 2011.
On
that day Mr Venter was the driver of his Jeep SUV vehicle and Mrs
Venter was his front-seat passenger. Mr Venter swerved
out for
an unlit and unmarked island in the middle of the road and his car
rolled several times. He was flung out and injured
to such an
extent that he can remember nothing of the day of the accident until
14 days thereafter.
I
THE CLAIM OF MRS VENTER
[2]
Mrs Venter instituted action on 15 March 2013 under case number
1076/2013 in which she claimed:
(a)
past hospital and medical expenses
R 31 602.17
(b)
future medical expenses
R 50 000.00
(c)
general damages
R231 602.17
[3]
In its plea the defendant denied liability alternatively sought an
order that Mrs Venter’s claim be reduced by the extent
of Mr
Venter’s negligence. A third party notice was issued
against Mr Venter. Mr Venter filed a plea to the third
party
notice denying that he was a joint wrongdoer. In argument
before me Mr Bomela, for the defendant, placed no reliance
on the
third party notice and did not refer to it.
[4]
On 10 November 2015 Moloi J made
inter
alia
the following orders:
“
2.
The question of negligence in relation to the plaintiff’s claim
will follow the outcome of the court’s
finding on negligence in
case number 1951/2013 in the above Honourable Court.
3.
The quantum of the two plaintiffs under case number 1951/2013 and
case number 1076/2013 are consolidated
in terms of rule 11.
”
II
THE CLAIM OF MR VENTER
[5]
Mr Venter instituted action on 20 May 2013 under case number
1951/2013 in which he claimed:
(a)
past hospital and medical expenses
R
701 117.78
(b)
future medical expenses
R 226 000.00
(c)
past loss of earnings
R 14 762.20
(d)
future loss of earnings
R 500 000.00
(e)
general damages
R 600 000.00
Total:
R1 815 879.98
[6]
In the plea the defendant denied liability, alternatively that Mr
Venter’s claim be reduced because of his contributory
negligence for driving at an excessive speed, not keeping a proper
look-out and failing to brake.
[7]
On 10 November 2015 the matter was by agreement postponed to a
pre-trial hearing before a judge under Rule 37(8). The
quantums
of the claims of Mr and Mrs Venter were consolidated.
III
THE HEARING BEFORE ME ON 19 AND 20 APRIL 2016
[8]
The hearing before me dealt only with the issue of liability in
respect of the claims of Mr and Mrs Venter, not quantum.
The
evidence of Mr Venter, Mrs Venter and Mrs Buys was lead. The
defendant called no witnesses. The report of Deon
Roux, the
chief engineer at the Department of Police, Roads and Transport was
handed in by consent.
[9]
Mr Venter testified that he could remember nothing of the accident
until 14 days after the accident. He remembers that
he and his
wife and child were travelling, he does not know where. In
cross-examination he said he does not drive recklessly.
He went
to the scene of the collision later and saw that the island was not
visible.
[10]
Mrs Venter was a front-seat passenger in the vehicle driven by her
husband. She was at a function and wanted to leave.
Her
husband works as an electrician and was called out to attend to an
emergency at the mine during the afternoon. When he
arrived at
9pm they left. They did not go home but went to friends they
were going to see the next day. They did not
take their normal
route home but took a road they did not know. That was the R30
between Welkom towards Odendaalsrus.
The road has two lanes for
traffic in each direction. She and her husband were discussing
their plans for the next day.
Her husband drove and looked at
the road ahead. At one stage she turned to look ahead and saw
an island in the road.
She shouted “Riaan, Island”.
At that stage her husband swerved left to try to avoid colliding with
the island.
Their vehicle overturned and rolled a view times.
The area was dark as there were no signs to warn drivers to move to
the
left. The lights of their vehicle were on and functioning
properly. The island was not visible for someone to see from
a
distance. She estimated that they were 2½ metres from
the island when she saw it. When her husband swerved
the car
went out of control and rolled. Her husband was flung out of
the vehicle. He had a bad head injury and was
bleeding from the
head. She did not recall whether her husband was wearing his
seatbelt. In her view her husband could
have done nothing else
to avoid the collision.
[11]
In cross-examination she said that she and her husband were talking
about the arrangements for the next day before the collision.
She could not say that he did not see the island. She also
could not say what would have happened if her husband did not
swerve
but proceeded over the island. She agreed that the road they
were travelling on was dark and not known to her and
her husband.
She did not remember whether her husband put on his seatbelt.
[12]
Mr Riaan Buys is a colleague of Mr Venter at the mine. They
knew each other as colleagues. They were not friends.
Both of them were attached to the unit doing rescue work at the mine,
and they were on standby on the day of the collision.
No
alcohol was served at the function. He left the function at
about the same time as the plaintiffs, and was travelling
on the same
road. He knows the road very well. He has been using it
daily for 30 years. He knows it is a dangerous
road, it is
known locally as the road of death. There are two lanes for
traffic in each direction. In the centre of
the road there is a
“lane” leading directly into the island. The lines
on the road are practically invisible.
There is loose gravel on
the road. The sign on the island indicating that drivers should
keep left was knocked down a day
or two before the collision.
There have been several collisions at this point. Buys has
often seen vehicles and emergency
vehicles standing there.
Frequently vehicles collide with the raised island.
[13]
On the evening in question Buys was travelling in the left lane of
that road at about 70-75 km/h. He saw the plaintiffs
overtaking
him, not quickly. Venter was not travelling at more than
80km/h, which is the speed limit on that road.
Venter had his
vehicle 100% under control. Buys saw that Venter was heading
for the island, and said to his wife that Venter’s
vehicle was
going to hit the island. He saw Venter’s vehicle swerving
left, then right, then rolling. There is
no doubt in Buys’
mind that Venter acted correctly in swerving.
[14]
In cross-examination Buys said one only sees the island when you are
at it if you do not know about it. His view was
that a driver
could see the island at about 10-15 metres with his lights on dim.
He said that because he knows the road he
is more careful when
driving there. He always keeps in the left lane. In
re-examination he said that if a driver sees
an island 10-15 metres
ahead of him he gets the fright of his life and jerks away from the
danger, which is what Venter did.
[15]
The most damaging aspects of the defendant’s case appear from
the Engineer’s report. The engineer, Mr Deon
Roux
conducted investigations at the scene on 22 and 29 October 2012, as a
result of the collision on 8 October 2011 in which the
plaintiffs
were involved. The engineer states in the report that he
received information that the warning sign on the island
is replaced
frequently “due to the sign being collided with by vehicles on
a regular basis”. On 22 October 2012,
a year after the
collision in which the plaintiffs were involved, the engineer saw the
keep left warning sign lying on the raised
island and took a
photograph thereof (Photo 4.2.4 in his report).
[16]
The engineer found that the road markings were in very poor condition
and provide “almost no guidance”. He
stated: “Only
the red reflective beads of the road studs are in a good condition
with the white and yellow beads providing
no reflection at night.
This creates a very dangerous situation in that the red reflection at
the road studs can lead a motorist
directly into the raised island”.
If one looks at photograph 4.3.1 in the engineer’s report, two
lanes of traffic
can be seen travelling into the photograph. To
the right of the inside lane there is what appears to be a lane with
red warning
studs at its right, leading directly into the island.
This means that a driver, accepting that the red studs mark the
centre
of the road, travelling to the left of those studs, will drive
directly into the island. It is not in dispute that on the
night of the collision there was no marking sign on the island.
The lines on the road were practically invisible. This
was a
dangerous situation which the defendant had a duty to prevent.
Its failure to do so constituted wrongfulness because
of defendant’s
breach of a legal duty not to cause harm to another (
Jones
NO v Santam Bpk
1965 (2) SA 542
(A) at 551H).
IV
ARGUMENTS RAISED BY DEFENDANT
[17]
Mr Bomela, for the defendant contended that the plaintiffs’
claims should be dismissed because in both particulars of
claim it is
stated that Mr Venter lost control of the vehicle, whereas the
evidence shows that he swerved and the vehicle rolled.
He made
no objection when the evidence was led and did not cross-examine the
witnesses on this alleged discrepancy. There
is no merit in
this point. The vehicle went out of control because of the
swerve. There is no conflict.
[18]
Mr Bomela further submits Venter was not paying proper attention to
the road because he was involved in a conversation with
his wife
planning the events of the next day. Mr Bomela overlooks the
fact that Mrs Venter testified that her husband was
looking at the
road while they were talking. It is not unusual for drivers to
talk while driving. It is speculative
to say that Mr Venter was
distracted. There is no merit in this point.
[19]
Mr Bomela suggests that because Mrs Venter testified that she saw the
island and shouted “island” to her husband,
that Mr
Venter did not see the island. The probability is that both saw
the island at the same time. The fact that
she said she saw it
a moment before Mr Venter swerved does not mean that he did not see
it. It cannot be found that Mr Venter
was not keeping a proper
look-out.
[20]
Mr Bomela also contended that because Venter was not familiar with
the road, he should have been more careful. The point
to bear
in mind here is that the speed limit is 80km/h and it is not in
dispute that Venter was travelling within that speed limit.
It
cannot be held to have been negligent on Venter’s behalf to
have been travelling below 80km/h.
V
CONCLUSION
[21]
Venter was faced with a sudden emergency when he saw the unmarked
island in the middle of the dark road ahead of him.
Allowance
must be made for the circumstances, and it cannot be expected of
Venter to have considered all alternatives (
Union
Government (Minister of Railways and Harbours) v Buur
1914 AD 273
at 286). The evidence of both Mrs Venter and the
independent witness, Mr Buys, is that Mr Venter could no nothing else
but
swerve. At 80km/h he would have been travelling at 22.2
metres per second. Even if he saw the island at 10-15metres
the
correct averting action was to swerve. Braking would have been
useless.
VI
MR VENTER’S SEATBELT
[22]
On the probabilities it must be found that Mr Venter was not wearing
his seatbelt. The reasons are the following:
(1)
Mrs Venter did not see him putting it on.
(2)
There was no evidence from either Mr or Mrs Venter that he usually
wore his seatbelt.
(3)
The fact that he was flung out of the vehicle indicates that he was
probably not wearing a seatbelt. There
is no evidence that the
seatbelt broke, as Mr Louw suggested in argument, and also no
apparent reason why it should have broken
– this was not a
head-on collision the car rolled.
[23]
As to the seatbelt Mr Bomela said that the failure of Mr Venter to
wear his seatbelt constituted negligence, and he requested
that the
award in Mr Venter’s case be reduced.
[24]
There are cases dealing with seatbelts:
(1)
Union national South British Insurance Co Ltd v Vitoria
1982
(1) SA 444
(A)
The
plaintiff was a front-seat passenger. The parties argued that
the collision was caused by the exclusive negligence of
the driver of
the other vehicle. There was a head on collision. Rumpff CJ
held (at 460E-G) that the plaintiff’s negligence
was that she
failed to avoid injury through the use of a seat-belt. It was
held that the onus is on the defendant to prove
that the award of
damages should be reduced by the failure to use a seatbelt. The
defendant did not succeed in proving that,
and no reduction was
ordered (at 463E-G).
(2)
Vorster and Another v AA Mutual Insurance Association Ltd
1982
(1) SA 145
(T)
Goldstone
J reduced the award of damages related to the non-use of the seatbelt
by 20%. The plaintiff was granted a full award
of damages
unrelated to the use of the seatbelt (at 165C-H). Goldstone J
points out that the approach of English, Australian
and Canadian
courts is to reduce a plaintiff’s damages which are
attributable to the failure to wear a seatbelt by between
15 and 25
percent. Questions are asked whether the plaintiff was grossly
or only slightly negligent in not wearing a seatbelt
(at 164G-H, with
reference to Lord Denning MR in
Froom
v Butcher
1976 QB 286):
[25]
As a result of the fact that Mr Venter drove without a seatbelt,
thereby increasing that severity of his injuries, his claim
should be
reduced. It cannot be said that Mr Venter’s negligence
was gross or slight, and a 20% reduction is appropriate.
ORDER
A.
Case 1951/2013
1.
It is declared that the plaintiff Mr Venter is entitled to 80% of his
proven or agreed quantum.
2.
The defendant is ordered to pay 80% of Mr Venter’s costs in
case no 1951/2013.
B.
Case 1076/2013
3.
It is declared that the plaintiff Mrs Venter
is entitled to 100% of her proven or agreed quantum.
4.
The defendant is ordered to pay Mrs Venter’s costs in case no
1076/2013.
_____________
A.
KRUGER, J
On
behalf of Plaintiff:
Adv MC Louw
Instructed
by:
McIntyre & Van Der
Post
BLOEMFONTEIN
On
behalf of Defendant:
Adv LR Bomela
with Adv BO Masoka
Instructed
by:
State Attorney
BLOEMFONTEIN
/wm