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[2016] ZAFSHC 169
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Cous .N.O. obo Jordaan v Road Accident Fund (5115/2014) [2016] ZAFSHC 169 (3 October 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5115/2014
In
the matter between:
JOHANDI
COUS
N.O.
Plaintiff
(Duly
appointed
curator ad litem
on behalf of
WILLEM
JACOBUS JORDAAN,
Identity
number: [5......])
and
ROAD
ACCIDENT
FUND
Defendant
CORAM:
CHESIWE,
AJ
HEARD
ON:
23, 24
& 26 AUGUST 2016
JUDGMENT
BY:
CHESIWE,
AJ
DELIVERED
ON:
03
OCTOBER 2016
[1]
The plaintiff is Mr Willem Jacobus Jordaan, an adult male who is
currently unemployed and residing at [...] H. R. F., Bloemfontein,
Free State. The plaintiff has been placed under curatorship of
Johandi Gouws N.O (the curator) on the 4 August 2016 by Mathebula
AJ
of the above Honourable Court.
[2]
The defendant is the Road Accident Fund, a statutory body established
in terms of the Road Accident Fund Act 56 of 1996 (the
Act) with its
head office or alternatively its chosen
domicilum
citandi
executandi
at 38
Ida Street Menlopark Pretoria.
[3]
This action is for payment of compensation for damages suffered as a
result of bodily injuries caused by a collision that occurred
on 2
April 2013. The court is requested to determine which party is
liable for the damages of the plaintiff and who is to
be blamed for
the collision. At the commencement of the trial, the parties
per agreement requested the court to direct that
the issues relating
to merits and
quantum
[1]
be
separated and the only issue to be decided by the court will be that
of the merits, whereafter it was subsequently so ordered.
The
quantum
trial
was postponed to the 5 December 2016.
[4]
It is common cause that a collision occurred on the 2 April 2013 at
De La Rey Avenue, Fleurdal, Bloemfontein, between a motor
vehicle
with registration numbers and letters DXE443FS (the Hyundai) and a
motor vehicle with registration numbers and letters
CVL245FS (the
Nissan). The Hyundai was driven by the plaintiff and the Nissan
was driven by Mr Johannes Michael Lindaque
(the insured driver).
[5]
The plaintiff in the particulars of claim, paragraph 4.1 to 4.6,
pleaded that the accident occurred as a result of the negligent
driving of the insured driver who was negligent in one of the
following instances:
5.1 The
insured driver exceeded the speed limit immediately prior to the
accident, alternatively he drove too
fast under the prevailing
circumstances.
5.2 He
failed and neglected to keep a proper lookout.
5.3 He
neglected or failed to apply his brakes which under the circumstances
the accident could have been avoided
had he applied his brakes
effectively.
5.4 He
failed to foresee and prevent an accident which was under the
prevailing circumstances reasonable foreseeable.
5.5 He drove
reckless, dangerous or unsafe and/or negligent under the prevailing
circumstances.
[6]
The defendant filed an Amended Plea on 20 May 2015 in respect of
paragraph 4 of the particulars of Claim, the defendant denied
any
negligence on its part or on the part of the insured driver
alternatively in the event that the driver of the insured vehicle
was
negligent as alleged, the defendant pleaded that the plaintiff was
also negligent in one or more of the following respects:
“
the
plaintiff failed to keep a proper look-out. He failed to avoid
the collision while he was with the exercise of reasonable
care and
in a position to do so.”
[7]
Before commencement of the trial on 24 August 2016, an application
was made by the plaintiff that an
inspection
in loco
must
be conducted. Subsequently the court granted an order for the
inspection
in
loco
of
the scene of the accident. The parties that attended the
inspection
in
loco
were:
Honourable AJ Chesiwe, Mr Kagiso Moruri, Adv HJ Cilliers, Mr Cobus
Verwey, Ms Janelle Nel, Mr Jurie Jordaan, Mr Barry Grobbelaar,
Adv
Mhlana, Mr A Jeje and Mr Albert Cilliers. A sketch was provided
to all parties present to assist during the inspection.
The issues
identified at the collision scene were set out in detail in the Heads
of Argument of the plaintiff and these were also
read into the
record. The defendant raised no objection to issues pointed out
at the scene and that the issues be read out
into the record.
[8]
The plaintiff did not testify, as he has no recollection of the
accident, due to the brain injury he suffered during the collision.
It is for this reason a curator
ad litem
was appointed on
behalf of the plaintiff. The plaintiff called the first
witness, Mrs Janelle Nel, she testified that
on the 2 April 2013 at
about 21:00, she was watching television with her fiancée at
house no. 70 in General De La Ray Avenue,
when she heard a loud bang
outside the house. She went outside to look and as she exited through
the gate she noticed a Hyundai
motor vehicle facing south westerly
and also noticed a Nissan which was facing the same direction as the
Hyundai.
Mrs
Nel, testified that she did not personally see the collision happen.
However she was able to note the damages on both vehicles,
the
Hyundai was badly damaged on the left front side and the Nissan was
damage on the front. She confirmed that the road surface
was tarred
and dry, the weather was good, that the road visibility is good as
the street is not only located in a residential area
but is also
busy. She testified that the speed limit in De La Rey Street is
60km/H.
The
skid marks that she pointed out at the inspection
in
loco
were
measured by Mr Grobbelaar. The skid marks were measured from
house no. 74 to where the Nissan was stationed and their
length was
13,7metres (m). The distance from the middle of the driveway of
house no. 74 to where the direction the Hyundai
was pointed was
39,8m. She confirmed that the debris was observed in front of
the driveway of house no. 74. Ms Nel
testified that on the
morning of 3 April 2013, she passed the accident scene and saw the
skid marks which she confirmed were those
contained in the
plaintiff’s bundle.
[9]
The plaintiff then called Mr Jurie Jordaan as the second witness and
he testified that he was the plaintiff’s brother.
Mr Jordaan
stated that he did not witness the accident, but visited the scene of
the accident on the morning of 3 April 2013.
He took
photographs of the scene. He testified that he observed skid
marks on the road surface of general De La Rey Avenue,
which at the
inspection
in loco
were marked as starting from house no. 78
and led up to the middle of the driveway of house no. 74. He
further confirmed that
the measurement done by Mr Grobbelaar during
the inspection
in loco
on 24 August were the correct
distances.
During
cross-examination, Mr Jordaan informed the court that he had a
telephone conversation with the insured driver, who confirmed
to him
that he was going home travelling in a southern western direction on
General De La Rey Avenue when the collision occurred.
[10]
The plaintiff called an expert witness Mr Grobbelaar. He
proceeded to deal with his report which was handed in as exhibit
B.
Mr Grobbelaar was very detailed in his report and testimony. He
testified that the construction of the motor vehicle
collision scene,
literally starts at the end where the vehicles ended up as pointed
out by Mrs Nel. He explained that the point
of impact as indicated to
be from the front of the driveway of house no. 74 to house no. 78
explained the length of the skid marks
as 31m.
According
to Mr Grobbelaar, in his expert opinion the insured driver saw the
Hyundai at a distance of at least 72m before the impact
in front of
house no. 74. He explained that the average reaction time of a
human being to apply pressure to the brakes after
observing an object
was 1.5 seconds. He further explained to the court that had the
insured driver travelled at the legal
speed limit of 60Km/h, at the
distance of 72m from the Hyundai he would have been able to stop at
least 10m before house no. 74
and the insured driver would not have
collided with the Hyundai. He calculated the minimum speed that
the insured driver
travelled at a distance of 72 meters from the
Hyundai at 115Km/h and the maximum speed at 127Km/h and explained the
probability
that the insured driver grossly exceeded the speed limit
was the sole cause of the collision.
[11]
Mr Grobbelaar, emphasis that the collision occurred in the lane of
travel of the Nissan. Had the Nissan been travelling
at or
below the speed limit of 60Km/h instead of 115Km/h or more, the
collision would on probability have been avoided. He
concluded
that whether the Hyundai had its lights on or not was irrelevant as
it is clear that the Nissan on probability saw the
Hyundai at a
distance of approximately 72m. He said that the distance was more
than enough for the Nissan driver to have seen the
Hyundai and be
able to brake to a stop prior to the collision. Mr Grobbelaar
informed the court that the calculation that
he had done was actually
to the advantage of the insured driver by working on the best case
scenario of the insured driver.
[12]
The defendant opted not to call any witnesses or the insured driver.
The defendant indicated that the insured driver was not
available to
come to court to testify.
[13]
Advocate Mhlana on behalf of the defendant submitted that the
plaintiff was contributory negligent in that he failed to exercise
the same care and skills which a reasonable man in the circumstances
would have exercised in the following respects:
13.1 He
failed to keep a proper look-out.
13.2 He
failed to avoid a collision while he was with the exercise of
reasonable care and in a position to do
so.
[14]
Adv Mhlana further argued that the plaintiff’s witness Ms Nel
came after the collision and that her evidence is not evidence
that
the court could draw inferences that either the plaintiff and/or the
insured driver is the cause of the accident. He
argued that Mr
Jordaan, brother of the plaintiff does not know how the accident
occurred as he was not at the scene. He visited
the scene the
following day on 3 April 2013 when he went to take photographs.
He could only speculate from the distances
of 32m that the skid marks
were those made by the insured driver. Adv Mhlana indicated
that Mr Grobbelaar’s evidence
confirmed the insured drivers
version that the collision occurred in its lane of travel from
eastern direction to western direction
and that the plaintiff vehicle
was crossing the road facing house no. 74 and was stationary. That
the expert witness view that
the insured vehicle might have been
travelling at an excessive speed, and this is based on the expert
opinion of the distance of
the brake marks of 32 metres, where the
insured vehicle started prior to the impact and the 20 metres where
the plaintiff vehicle
stopped after the collision. He concluded
that it is probable that the plaintiff misjudged the speed of the
insured vehicle
prior to performing his turn.
[15]
The defendant opted not to call witness including the insured driver
Schreiner JA in
Galante v Dickinson
1950 (2) SA 460
(A)
stated that:
“…
Later
cases in this Court have examined positions where it has not been
shown that the witness was available at the trial or where
there was
no good reason why he should have been called by the one side rather
than the other (see Gleneagles Farm Dairy v Schoombee,
1949 (1),
S.A.L.R. 830
(A.D.). In the case of the party himself who is
available, as was the plaintiffs witness in this case.”
[2]
The
court could only draw inferences on the evidence of the plaintiff
before court; the court is aware of the plaintiff medical
condition
but has no full knowledge as to the unavailability of the insured
driver. Schreener JA says further stated that:
“
It
is not advisable to seek to lay down any general rule as to the
effect that may properly be given to the failure of a party to
give
evidence on matters that are unquestionable witness his knowledge.
But it seems fair at all events to say that in an
accident case where
the defendant was himself the driver of the vehicle the driving of
which the plaintiff alleges was negligent
and caused the accident,
the court is entitled, in the absence of evidence from the defendant,
to select out two alternative explanations
of the cause of the
accident which are more or less equally open on the evidence that one
which favours the plaintiff as opposed
to the defendants.”
[3]
[16]
From the evidence it was obviously unreasonable and dangerous for the
insured driver to exceed the legal speed limit in that
area.
General De La Rey Street is in a residential area and a busy street.
It is expected that vehicles will turn in and
out of it, to join the
main road. Nevertheless, before the court there is no evidence from
the plaintiff as to what exactly he
was doing prior to the collision
but that is neither here nor there.
What
is clear from the expert’s evidence is that the insured driver
was driving at an excess speed of 115km in a 60km/h zone.
This
made it difficult for the insured driver to apply his brakes at a
reasonable time. According to Mr Grobbelaar, the average
reaction
time of a human being to be able to apply pressure on the brakes
after observing an object is 1.5 seconds. So, had the
insured driver
travelled at the legal speed of 60km/h at the distance of 72m from
the Hyundai he would have been able to stop at
least 10m before house
no. 74 and the Hyundai that collision would never have resulted.
Although
the plaintiff, with hindsight, made an error of judgement, this
should not be visited with negligence given the period
of time in
which the insured driver had to respond and there was no evidence to
suggest that Plaintiff had been negligent. The
plaintiff had
discharged the onus of proving on a balance of probabilities that the
driver of the insured vehicle was solely to
blame for the collision.
In
Steenkamp
v Steyn
1944
AD 536
, it was stated that
“
Plaintiff
misjudged the situation and that was an error of judgement, but
unless such judgement was culpable, in the sense that
a reasonable
careful driver would not have been guilty of it, it was not
negligence”.
[4]
[17]
Section 1 of Apportionment of damages, Act 34 of 1956; Apportionment
of Liability in case of contributory negligence.
“
(1)
(a) Where any person suffers damage which is caused partly by his own
fault and partly by the fault of any other person, a claim
in respect
of the claimant but the damages recoverable in respect thereof shall
be reduced by the court to such an extent as the
court may deem just
and equitable having regard to the degree in which the claimant was
at fault in relation to the damage.”
Before
court there is only one version, that of the plaintiff. There
is further no evidence of any negligence relating to
the plaintiff
and consequently the version of the plaintiff remains uncontested.
[18]
In our law the test for negligence is that of a reasonable man
[5]
.
In other words what is required is the standard of care and skill
which a reasonable man in the position of the driver would
have
observed
[6]
.
Motor Law Vol 2 at 99 -
the principles applicable are the following:
“
The
rule gives rise to a conference, not a presumption, of negligence.
The court is not compelled to draw inferences.
At the end of
the case the enquiry is where, on all the evidence, the balance of
probabilities lies. If it is substantially
in favour of the
party bearing the onus on the pleadings, he succeeds, of not, he
fails
[7]
.
Thus, this onus throughout rests on the plaintiff and it onus
encumbent
upon
him, under the circumstances, to come and give a reasonable and
probable explanation as to what happened. He will succeed
if he
satisfies the court upon preponderance of probabilities that his
version is probably true and thus acceptable, regard being
had to the
facts of the case.”
[8]
In
this regard the court had to rely on the expert witness evidence
which in most cases the expert by and large rely on speculation
and a
theoretical reconstruction of the collision which would per se take
one in the realms of the unknown
[9]
.
Experience has taught that it is very often impossible for an expert,
sitting in the arm chair of the court room, to logically
explain what
happens in a collision. A strict and dogmatic mathematical
reconstruction depends on so many exact facts and
information as to
angles, speed, manner of the vehicles, distance and reaction of time.
This was given by Mr Grobbelaar in this
matter as opposed to the
defendant who chose not to call any witness. In
Van
der Westhuizen and Another v SA Liberal Insurance Co. Ltd
1949
(3) SA 160
(C), Ogilvite Thompson AJ (as he was then) stated that:
“
the
strictly mathematical approach, though undoubtedly very useful as a
check, can but rarely be applied as an absolute test in
collision
cases, since any mathematical calculation so vitally depends on exact
positions and speeds; whereas in truth these latter
are merely
estimates almost invariably made under circumstances wholly
unfavourable to accuracy.”
[10]
The
credibility of the witnesses for the plaintiff, were impressive and
good witnesses, where the probabilities that favour the
plaintiff.
The court could did not find any inconsistencies or contradictions in
their testimonies.
[19]
Whether the plaintiff was turning into house number 74 or driving out
or making a U-turn is not before this court
neither is it
clear as to what the plaintiff was doing. The onus rest
throughout on the plaintiff and it is encumbent upon
him, under the
circumstances, to come and give a reasonable and probable explanation
as to what happened and why he did what he
did. The plaintiff
will succeed if he satisfies the court upon preponderance of
probabilities that his version is probably
true and thus acceptable,
regard being had to the facts of the case of
National Employers
General Insurance v Jagers
1984 (4) SA 437
( E) at 440D-F.
Adv
Cilliers submitted that the plaintiff’s version is more
probable and that there is clear evidence that the insured driver
was
speeding as could be seen from the skid marks. Adv Cilliers
submitted that the expert witness, Mr Grobelaar is qualified
and as
an expert witness, he applied his mind and made a mathematical
determination of the calculations and that these were not
challenged
by the defendant and that the defendant’s version is not before
court.
[20]
I find, accordingly that such cause of action may, depending on the
circumstances, be justified if no other acceptable means
be available
or avoiding the collision and that the conduct of a driver having to
take such a decision should be examined within
the context of the
extreme circumstances in which he finds himself e.g. exceeding the
legal speed in 60Km/h zone. What is
expected of a driver in the
position of an insured driver as stated by Van Heerden AJA (as he
then was) in
Burger v Santam Versekerings Maatskappy
1981 (2) SA 703
(A ) as follows:
“
Na
my mening sou 'n redelike bestuurder in sy plek minstens drie stappe
gedoen het. Hy sou naamlik, desnoods deur rem te trap, die
spoed van
die paneelwa tot 'n baie stadige pas laat daal het; hy sou so
ver moontlik na links gedraai het, en hy sou aanhoudend
getoet
het.”
[11]
Mrs
Nel led evidence that she did not hear any hooting on that
night. Mr Grobbelaar led evidence that the speed at which
the
insured driver was driving would not have made it difficult for him
to brake on time nor could he have avoided colliding with
the
plaintiff.
[21]
There is to my mind no evidence to suggest that the plaintiff was
himself negligent. In this instance I am satisfied
that
plaintiff had discharged the onus of proving on a balance of
probabilities that the driver of the insured vehicle was solely
to
blame for the collision. It was patently clear during the trial
that the plaintiff had sustained serious bodily injuries
and these
are listed in the report of Dr LF Oelefse attached to the bundle of
the plaintiff documents. The doctor certified
the plaintiff as
totally disable and will never be able to work again.
[22] In the circumstances
I make the following order.
ORDER
1.
I find
the defendant 100% liable for damages sustained by the
plaintiff and arising out of the bodily injuries occasioned
by the
collision on which took place on the 2 April 2013.
2.
Defendant
to pay plaintiff’s costs to date.
______________
S
CHESIWE, AJ
On
behalf of plaintiff:
Adv. JMM Verwey
Instructed
by:
Hill, McHardy & Herbst Inc.
Bloemfontein
On
behalf of defendant: Noxolo
Maduba
Instructed
by:
Maduba Attorneys
Bloemfontein
1. It was done in
terms of Rule 33(4) of
Uniform
Rules
.
[2]
Galante v Dickinson
1950
(2) SA 460
(A) at 465.
[3]
Ibid. See also
Dlangamandla
v Road Accident Fund
2011 (5) SA 565
(FB) para [43] and
[zRPz]De Maayer v
Serebro and Another
;
Serebro
v Road Accident Fund and Another
2005
(5) SA 588 (SCA).
[4]
Steenkamp v Steyn
1944
AD 536
para [553].
[5]
Coetzee v Kruger
1965
(3) SA 677
(E) and
Herschel v Mrupe
1954 (3) SA 464
(A).
[zRPz]
[6]
S v Stavast
1964
(3) SA 617
(T) 620B and see also
S v Van
As
1976 (2) SA 921
(A) at 928G
.
[7]
Fourie v Road Accident Fund
[1999]
3 All SA 661 (O).
[8]
Ibid. See also
National
Employers’ General Insurance v Jagers
1984 (4) SA 437
(E) at 440D–F.
[9]
Ibid at 667.
[10]
Van der Westhuizen and Another v SA Liberal
Insurance Co. Ltd
1949 (3) SA 160
(C)
at 168.
[11]
Burger v Santam Versekerings Maatskappy
1981 (2) SA 703
A at 708H- 709A.