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[2016] ZAGPPHC 36
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Tsotetsi v Road Accident Fund (72217/2009) [2016] ZAGPPHC 36 (29 January 2016)
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Certain
personal/private details of parties or witnesses have been
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IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH
AFRICA)
CASE NUMBER 72217/2009
29/1/16
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN THE MATTER BETWEEN:
MQWAITSA JACOB
TSOTETSI PLAINTIFF
And
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
Mavundla, J.
[1] This is a dependant's
claim arising from a motor vehicle accident collision that occurred
around Vrede on the 16 June 2008 between
motor vehicle with
registration number […], the insured motor vehicle, then and
there driven by Mr Brian Coleman, the insured
driver, and motor
vehicle with registration number […], then and there driven by
the deceased Mr Albert Bassie Tsotesti.
[2] The liability of the
defendant arises from its statutory duty in terms of the
Road
Accident Fund Act 56 of 1996
, to compensate for damages for loss of
support, suffered by the minor child of the deceased, as the result
of the death of the
deceased, caused by the injuries he sustained in
the aforesaid motor vehicle collision. The plaintiff need only prove
1% negligence
on the part of the driver of the insured vehicle driven
by Mr. Coleman.
[3] By agreement between
the parties separation of the merits from the quantum was granted in
terms of
rule 33(4)
and the quantum related issues were postponed
sine die
and the matter proceeded on merits related issues
only.
[4] Exhibit "A"
was by agreement handed in. It contained,
inter alia,
the
police accident report containing,
inter alia,
a sketch plan of
the accident. There was no key to the police accident sketch plan.
There were also discovered colour photographs
which show the road
along which the accident occurred. From the photographs it is clear
that the road is tarred, consisting of
one lane carrying traffic in
either opposite direction. From the police sketch plan, the lanes
each carrying traffic in the opposite
direction, are separated by a
broken median lane. From the sketch plan the following is common
cause: the accident happened on
a straight road, with one lane each
carrying traffic in either opposite direction, separated by a broken
median lane. Motor vehicle
"A" is positioned diagonally on
the outside of its lane of travel. Motor vehicle is positioned in the
lane carrying traffic
travelling in its opposite direction, in other
words in the lane of motor vehicle "A". There are arrows
starting from
the lane of travel of motor vehicle "B",
showing the path of travel of motor vehicle "B" crossing
over the
median lane. Motor vehicle "B"'s end position was
facing in the direction it came from but in the lane of travel of
motor
vehicle "A". Point X is shown next to the right rear
end of motor vehicle "B" on the lane of travel of motor
vehicle "A". From the sketch plan it is clear that the
accident occurred on the lane of travel of motor vehicle "A",
meaning that vehicle "B" encroached into the path of travel
of motor vehicle "A". The description of the accident
as
noted in the police accident report was that motor vehicle "A"
was travelling towards South while motor vehicle "B"
was
travelling towards North. Vehicle "A" it was alleged in the
police accident report that it overtook a truck and collided
with the
oncoming vehicle "A".
[5] The plaintiff called
only one witness Mr Isaak Leaha Tsotetsi, who testified that the
deceased was his brother. He came to know
that the deceased passed
away because. on the day the deceased left, he called the deceased to
ascertain whether he reached
his destination but he did not
respond. The deceased left Qwaqwa to Standerton, in Mpumalanga where
he worked at the mines. They
tried to no avail to locate him; until
Tsotetsi received a call from the police informing them he was
involved in an accident and
was at the mortuary. The accident
occurred on the 16 June. On the 17 June 2008 he proceeded to the
scene of the accident where
he found pieces and debris of glass
concentrated in the middle of the road, much in the opposite side of
the other vehicle.
[6] Tsotetsi placed point
"lX" ahead of the two motor vehicles in the lane occupied
by both motor vehicles after the accident.
The concentrations of the
debris are in the lane of travel of motor vehicle 'A". The road
was straight where he placed Xl.
It was put to him that according to
the police the accident happened at dusk and at about 6 pm in the
evening. He further said
that his brother left from home at about
15h00 it is possible that the accident happened about 18hrs.
Considering that the accident
happened in winter it is possible that
it was dusk when it happened. His brother was a driver of a "tipper".
Tsotetsi
went to view his brother's vehicle where it had been towed
to after the accident. His brother's vehicle was damaged all over,
but
mostly with its front portion pushed inside, indicating a head-on
collision. He did not see the other vehicle which was also involved
in the collision. The road was a tarred.
[7] Under cross
examination he conceded that the concentration of the debris was on
the opposite of the path of travel of the deceased,
on the side of
oncoming traffic in relation to his brother's path of travel. The
debris was next to the demarcation line but on
the side of oncoming
traffic. Asked by the Court he said that the debris concentration was
about less than a meter from the median
lane.
He conceded that he did
not witness the accident. He cannot say whether the concentration was
there when the accident occurred.
He conceded that the accident
occurred on the side of the oncoming vehicle but insisted that the
deceased's vehicle was close to
the demarcating line. To the Court's
question he estimated the distance of the concentration of the
debris, which he marked Xl
on the police accident report to be less
than a meter from the centre lane.
The case of the plaintiff
was closed. The defendant asked for the absolution on the basis that
the concentration of the debris occurred
on the opposite side of the
path of travel of the deceased and there was no evidence showing any
negligence on the part of the
insured river
.
[8] The test to be
applied when absolution from the instance at the close of the case
for the plaintiff is 'whether there is evidence
upon which a court,
applying its mind reasonably to such evidence, could or might (not
should nor ought to) find for the plaintiff...'
Vide
Claude Neon Lights {SCA} Ltd v Daniel
[1]
approved
by the
Supreme
Court of Appeal
in
Gordon
Lloyd Page
&
Associates
v Riever and Another.
[2]
[9] It is trite that in a
claim for damages arising from negligent driving,the plaintiff must
prove negligence on the part of the
insured driver
. In casu,
the
claim is on behalf of a dependant of the deceased, in which instance
all that needs to be proven is 1% negligence on the part
of the
insured driver
.
[10] I must hasten to
refer to the matter of Mcintosh
v
Premier, KwaZulu-Natal and
Another where Scott JA stated,
inter alia,
that:
"As is apparent from
the much-quoted dictum of Holmes JA in Kruger
v
Coetzee
1966
(2) SA 428
(A) at 430E - F, the issue of negligence itself involves a
twofold inquiry. The first is: was the harm reasonably foreseeable?
The second is: would the diligens paterfamilias take reasonable steps
to guard against such occurrence and did the defendant fail
to take
those steps? The answer to the second inquiry is frequently expressed
in terms of a duty. The foreseeability requirement
is more often than
not assumed and the inquiry is said to be simply whether the
defendant had a duty to take one or other step,
such as... perform
some or other act positive act, and if so whether the failure on the
part of the defendant to do so amounted
to a breach of that duty."
Scott JA further
proceeded to state that:
"The crucial
question, therefore, is the reasonableness or otherwise of the
respondent's conduct. This is the second leg of
the negligence
inquiry. Generally speaking, the answer to the inquiry depends on a
consideration of all the relevant circumstances
and involves a value
judgment which is to be made by balancing various competing
considerations, including such factors as the
degree or extent of the
risk created by the actor's conduct, the gravity of possible
consequences and the burden of eliminating
the risk of harm. See Cape
Metropolitan Council v Graham
2001 (1) SA 1197
(SCA) para 7.”
[11] It is trite that
every driver bears a duty of care towards other motorist, to keep a
proper lookout, to take reasonable steps
to avoid a collision.
However, a person alleging negligence on the part of a driver must
however place evidence before the court
demonstrating that the said
driver failed in one or other way to take reasonable steps to avoid
the collision and that such failure
was the proximate or contributory
to the collision.
[12]
In casu,
it
is common cause that the accident occurred on the incorrect side of
the deceased. The inference is that he was negligent in straying
off
his path of travel and resulted in the head-on collision. The
question to be decided is in what way, can it be said that the
insured river was negligent and his negligence contributed in the
collision. The plaintiff in this regard need only prove 1%
contributory
negligence on the part of the insured driver.
[13] It is trite that
every driver has a duty to scan the road ahead of him at all times,
and to avoid a collision happening. In
the matter of
Road Accident
Fund v Grobler
(96/06) ZASCA 78; (2007] SCA 78 (RSA);
2007 (6) SA
230
(SCA) (31 May 2007), the Supreme Court of Appeal held that in a
situation similar as
in casu,
the proper approach is not to
confine the inquiry into the negligence to the conduct of the driver
from the moment they became embroiled
in an emergency. The inquiry
must extend to cover what steps a driver took to avoid the impending
emergency. If he/she had an opportunity
to take measures ahead of the
emergency to avoid the accident, and he
I
she failed to do what
a reasonable person in similar circumstances would have done, then he
/or she would have been negligent.
[14] In the matter of
Road Accident Fund v Grobler
(96/06) ZASCA 78; (2007] SCA 78
(RSA);
2007 (6) SA 230
(SCA) (31 May 2007) the Supreme Court of
Appeal held that:
"[19] It is clear
from the evidence that the respondent was plunged into a situation of
sudden emergency, that he had no more
than a second within which to
escape that emergency, and that he effectively was given a choice
between danger, or veering away
from it and hoping that it would not
follow him. He did the latter. In
Rodrigues v SA Mutual
&
General Insurance Company Ltd
1981 (2) SA 274
(A) Van Heerden
AJA stated the following on 280H-281A:
"Where the evidence
indicate that the accident occurred on the correct side of the
insured driver and suggesting that the latter
was plunged in a
situation of sudden emergency as the result of the negligence on the
part of the other driver who veered off his
path of travel into the
incorrect path, the former is in my view duty bound to show what
steps he nonetheless took to avoid the
accident.
[15]
In casu,
the
collision occurred on the side and path of travel of the insured
driver. I accept on inferential basis, premised from the facts
placed
before this Court, that the vehicle of the deceased left its path of
travel and encroached into the path of travel of the
insured driver,
regard being had to the point of impact as demonstrated in the police
sketch plan and also as pointed out by the
witness for the plaintiff,
the insured driver was plunged into a sudden accident. There is no
evidence placed before the court
as to what steps the insured driver
took to avoid the imminent sudden emergency he found himself in. The
insured driver is the
person who could have told the Court what steps
he took to avoid the collision as he was duty bound to, but was not
called to do
so.
[16] The sketch plan
shows the vehicle "A" of the insured driver positioned
diagonally outside its lane of travel but
on the left and outside of
the road. From the photos which were discovered it is clear that
there is a large space from the yellow
lane to the edge of the road
where the macadam ends, which allows a vehicle to park there without
encroaching into the lane of
travel. From the edge of the road to the
border fence there is also a large of space which is not tarred. It
does not appear that
there were any trenches on the outside of the
road where the accident occurred. Besides, the road at that point
seems to be straight
and flat. In my view nothing would have impeded
the insured driver swerving in time, upon seeing the deceased's
vehicle veering
out of its path of travel. Nothing seems to have
presented an obstacle preventing the insured driver from swerving to
his left
to try to avert the collision. I find that the insured
driver failed to take evasive action, which he was duty bound to have
taken.
I find that his failure to avoid the accident constituted
negligence on his part and contributed to the collision. I further
find
that the proportion of his contributory negligence, in relation
to that of the deceased, was 10%. I find that the deceased's
contributory
negligence was 90%.
[17] In the light of the
above findings, I make the following order:
1. That the application
for absolution is dismissed;
2. That the insured
driver was negligent, and his negligence was 5% contributory to the
collision;
3. That the defendant is
100% liable for the proven damages of the plaintiff;
4. That the defendant to
pay the costs of the plaintiff.
_________________________
N M MAVUNDLA
JUDGE OF THE HIGH COURT
HEARD ON THE: 14/01/2016
DATE OF JUDGMENT: 29
I
01/2016
APPICANT'S ADV: ADV. K.
M. RÖNTGEN
INSTRUCTED BY: RÖNTGEN
& RÖNTGEN INC.
RESPONDENTS' ADV: ADV. H.
VERMAAK
INSTRUCTED BY: DYASON
INCORPORATED
[1]
1976 (4) SA 403
(A) at 403G-H.
[2]
2001 SA 88
(SCA) at 92E-93A.