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[2016] ZAGPPHC 282
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Hartley v Road Accident Fund (44376/2014) [2016] ZAGPPHC 282 (10 March 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 44376/2014
DATE:
10 MARCH 2016
IN
THE MATTER BETWEEN
HARTLEY
SIDNEY JOHN
V
THE
ROAD ACCIDENT FUND
[1]
A collision which occurred on 8 October
2011 between a BMW motorbike ridden by the Plaintiff, Mr Sidney John
Hartley and a Polo
Volkswagen v
ehicle with registration [S…….
GP
]
(the insured vehicle), driven by Ms
Lenna Els (the insured driver) became the subject of the dispute in
these proceedings.
[2]
The dispute is between the plaintiff and
the Road Accident Fund (the Fund) in terms of which the plaintiff is
claiming damages against
the Fund as a result of the injuries he
sustained during the collision aforesaid. The issue to be determined
is whether the plaintiff
in anyway contributed to the cause of the
collision
[3]
Two witnesses namely, the Plaintiff and
the Mrs Charissa Swart (Swart) testified in these proceedings. The
defendant closed its
case without leading any evidence.
In
a nutshell the evidence by the plaintiff and his witness was to
following effect: The plaintiff was riding on his bike from west
to
east on the Paul Street, in Morelletta Park Pretoria. He was
following other vehicles approaching a four way stop sign. He was
immediately following the insured vehicle at a distance of between 3
to 4 meters. The insured vehicle was travelling slowly towards
the
stop sign intersection when the plaintiff moved more to his right to
check if it was safe to overtake. In the course of that,
the insured
vehicle unexpectedly moved to its right across the centre line. The
plaintiff also swerved to the right in an attempt
to avoid the
collision, but hit the rear right of the insured vehicle. The point
of impact was indicated as being on the centre
of the lane from the
opposite direction. The plaintiff fell off the bike onto the pavement
with his lower part body on the pavement
and the upper part on the
grass.
[4]
To give a brief layout of the road: It
is a tarred road with single lane from both sides. On the left hand
side towards the direction
where the plaintiff was proceeding, there
is a high wall apparently surrounding an estate. One cannot access
the estate on the
left from Paul Street. However, on the right in the
direction where the plaintiff was heading to, there are drive ways
leading
to the residential areas. On both sides of the road there are
trees.
[5]
After the collision the insured driver
was overheard by Swart telling other on-lookers at the scene that she
was looking for a particular
house number which she could not find
and that she was making a U-turn when the collision occurred.
[6]
As indicated earlier in this judgment,
the real issue is whether the plaintiff in anyway contributed to the
cause of the collision.
The parties had settled general damages in
the amount of R 300 000.00 subject to the determination whether the
plaintiff contributed
to the cause of the collision or not.
[7]
I find it necessary to restate the
principle relevant to the facts of the present case. Before
overtaking another vehicle, a driver
is under a duty to satisfy
himself that it is safe to do in order to prevent a motor vehicle
accident due to negligence. In discharging
this duty, the main
concern of the overtaking driver travelling on a single carriage way
is,
inter
alia,
traffic ahead proceeding in
the same direction. Similarly, the driver of the vehicle intending to
pass another vehicle proceeding
in the same direction, more to
overtake, must pass to the right thereof at a safe distance. There is
no general rule that an overtaking
driver is under a duty to warn the
driver ahead that he is about to overtake.
[8]
On a main road an overtaking driver is generally entitled to
assume that slower
traffic
being overtaken will continue on its course on the left road. A duty
to warn either by flicking headlights or by hooting
will depend
inter
alia
on the visibility, the
movement of the vehicle ahead, its speed, or any other indication
that its driver may be intending to move
to its right. An overtaking
driver may be under a duty to give a proper warning when he intends
passing closely to the vehicle
being overtaken or where he should
anticipate that it may move laterally. (See Weswik v Crews
1965 (2)
SA 690
(A). The underlining above is my emphasis.
[9]
The driver of vehicle on a public road
must upon becoming aware of the other traffic proceeding in the same
direction and wishing
to overtake his vehicle, cause his vehicle to
travel as near to left edge of the roadway as is possible without
endangering himself
or other traffic or property on the roadway, and
may not until the overtaking vehicle has passed.
[10]
On the other hand, the driver of a
vehicle on a public road who decides to turn to the right must before
reaching the point at which
he or she deciding to turn, indicate his
or her intention to turn and must not effect such turn unless he can
do so without obstructing
other traffic and if he is driving in a
vehicle on the roadway of a public road where such road is intended
for traffic in both
directions, he or she must steer such vehicle as
near as circumstances may permit to the immediate. (See Voortrekker
Apteek v Serfontein
1979 (3) SA 906
(O).
[11]
A driver who intends to turn should
ascertain whether there is following traffic, signal his intention to
turn clearly, and must
refrain from turning until an opportune
movement. A driver should look attentively in his rearview mirror to
ascertain whether
there is traffic following his vehicle. His duty is
a continuous one. One look in the rearview mirror may not be
sufficient. The
circumstances may require the driver to look
repeatedly in his rearview mirror particularly once he or she becomes
aware of the
presence of the following traffic. A driver is under
duty to warn following traffic that he intends to turn to his right.
To this
end, he must signal his intention clearly and timeously. It
is not sufficient, however for the driver who is about to turn right
to signal his intention, even if the signal is given in good time. He
is under further obligation to refrain from making a turn
until an
opportune moment, i.e. at a time when the maneuver will not obstruct
or endanger other traffic. His signal signifies that
he intends
turning at an opportune moment. To carry out right hand turn safely a
driver is invariably obliged to make assumptions
he or she is
entitled to make
vis-a-
vis
following traffic. He must
satisfy himself that the following traffic has seen and is reacting
to his or her signal. (See Bata
Shoe Co v Moss
1977 (4) SA 16
(W).)
[12]
What is stated in paragraphs 8 to 10
above is applicable to the insured driver in the present case as she
made a turn to the right.
She was not called to testify and to
explain herself as to the circumstances under which the collision
occurred. For this reason,
I am prepared to accept that the collision
occurred as testified by the plaintiff and his witness, in particular
that the insured
driver made a U-turn after she could not find the
house number she was looking for on her right. Clearly in the
circumstances of
the case, she had a heavier duty not to make a
U-turn when there was oncoming vehicle driven by Swart and the
plaintiffs bike coming
from behind and busy overtaking. I deal later
with the suggestion that the plaintiff was not overtaking.
[13]
The insured driver gave no signal that
she was turning to the right. She was driving slowly and suddenly
moved to her right across
the center line and in the process collided
with the plaintiffs bike. The insured driver was clearly negligent
and what remained
to be determined is whether he was solely
responsible for the cause of the collision. Put differently, whether
the plaintiff contributed
to the cause of the collision.
[14]
The duty of a motorist intending to
overtake or overtaking is set out in paragraphs 7 and 8 of this
judgment. Added to what is stated
in the aforesaid paragraphs, is the
duty to keep a reasonable following distance. Counsel for the Fund
took the point that the
plaintiff must be found to have contributed
to the cause of the collision by not keeping a reasonable following
distance.
[15]
In the ‘Arrive Alive’
website, and dealing with safe following distances and road crashes
is,
inter
alia,
stated:
“
Adequate
following distances enforce drivers to adjust in emergency situations
and bring their vehicle to a stop safely...
Totally
stopping distance involves the following:
Human
perception time: the time required for a driver to recognize a
potential hazard. This time is answered to be approximately
0.75
seconds in normal situations.
Human
reaction time: Once hazard has been perceived, the driver must,
respond by applying brakes. The average reaction time is about
0.75
seconds. Vehicle reaction time: This is the time it takes for the
vehicle to react once the brakes have been applied by the
driver.
Vehicle reaction time is very quick, usually assumed to be about 0.05
seconds.
Vehicle
braking capability: This refers to the vehicle’s ability to
come to a complete stop once the brakes have been applied.
”
[16]
It is further stated in the website that
most international road safety campaigns refer to the “2"
- “3”
second rule as a guideline for safe following
distance. A point on the road is noted; 2-3 seconds are counted and
if that point
is still visible then there is probably enough
following distance. The 2-3 seconds rule is said to be advised
measure when driving
conditions are ideal and that it should be seen
as a bare minimum to be adjusted to at least 5-6 seconds in
inter
alia
situations like when
following vehicles with different characteristic; i.e. motor cycle
and trucks.
[17]
No evidence dealing with what is stated
above was led. However, the plaintiff told this court that at the
time the insured driver
made a turn to the right, he was about 3 to 4
meters away from the insured vehicle. The estimated distance by Swart
was 4-5 meters.
The speed at which the insured driver was travelling
was not disclosed neither did the plaintiff provide an estimation of
the speed
he was travelling at time when he tried to avoid the
collision by swerving to the same direction. Therefore any suggestion
of unreasonable
following distance and speed should be seen in this
context. The fact that the plaintiff did not apply brakes and could
not avoid
the collision would not necessarily be indicative of
unreasonable following distance.
[18]
Overtaking and passing on the right with
intention to overtake has no significant difference. Therefore
although counsel for the
plaintiff wanted to suggest that the
plaintiff was not overtaking at the time of the collision, but that
he was checking whether
it was safe to overtake or not, exhibit C
used to cross-examine the plaintiff suggests otherwise. Exhibit C
depicts the drawing
of the road in question, the direction and
positions of the insured vehicle and the bike just before the
collision. The insured
vehicle is depicted as being more to the left
and the
plaintiff’s
bike more to
the right. The positioning of the bike does not depict mere checking
whether to overtake or not. The process of overtaking
had already
begun. I therefore deal with this case on the basis that at the time
of the collision the plaintiff was overtaking.
[19]
It is so that before overtaking another
vehicle, a driver is under a duty to satisfy himself that it is safe
to do so. While there
was oncoming vehicle or vehicles at the time
the plaintiff was so overtaking, the lane of his travel is wide
enough to be able
to pass another vehicle without encroaching on the
center line, taking into account the fact that the plaintiff was on a
bike.
Exhibit A is a photo which also depicts the road in question
and the point of collision. Of importance, there are two vehicles
depicted on the photo following each other approaching towards the
intersection. The one behind is Volkswagen Polo or Jetta. It
is more
to the left and on its right, that is, between it and the center
line, there is enough space which in my view, would have
allowed the
motorbike to pass on the right without posing danger to the oncoming
vehicles. It therefore appears that, had the insured
not made sudden
right turn, the plaintiff would have been able to overtake the
insured vehicle to the right at a safe distance.
[20]
The insured vehicle was slower and that
was confirmed by Swart. While the uncontested evidence was that the
motorbike had its headlamp
on, in the circumstances of the case and
as is also a general rule, the plaintiff was under no duty to warn
the insured that he
was about to overtake. The plaintiff was entitled
in the circumstances to assume that the insured driver will continue
to keep
the insured vehicle on its course to the left of its lane
towards the intersection. There is no evidence that the movement of
the
insured vehicle, other than been slower, was such that it
intended to move to its right in which case the plaintiff would have
been under duty to give other warning signs like flicking or hooting.
Whilst the locality is that motorist driving in that direction,
might
turn to the right to access residential areas, evidence in this case
is that no such warning was given by the insured driver.
On the facts
of the case, I am unable to find that the plaintiff has in any manner
contributed to the cause of the action.
[21]
Consequently an order is hereby made as
follows:
[21.1]
The defendant is held liable to pay 100%
of the defendaffi’s proven damages;
[21.2]
Judgment in the amount of R300 000.00
for general damages is hereby granted;
[21.3]
The defendant to pay interest at the
rate of 15.5% per annum from date of judgment to date of payment;
[21.4]
The rest of the head of damages is
hereby postponed sine die;
[21.5]
The defendant to pay costs of the action
to date hereof.
MF
LEGODI
JUDGE
OF THE HIGH COURT
FOR
THE APPLICANT: ADV I LINGENVELDER
INSTRUCTED
BY: ADAMS & ADAMS
FOR
THJE RESPONDENT: ADV.T.TSHABANGWE
INSTRUCTED
BY: TSEBANE MOLOBA ATTORNEYS