About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 275
|
|
Moolman v Road Accident Fund (64982/2014) [2016] ZAGPPHC 275 (25 April 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
25/4/2016
Case Number: 64982/2014
In the matter between:
MOOLMAN,
NM
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
CORAM: VAN ROOYEN, AJ
1.
The Plaintiff (who was born on 1 April 1963) sues
the Defendant for damages sustained in a motor vehicle collision
which occurred
on 10 November 2012.
2.
At
the outset of the hearing. I was informed that the parties agreed to
separate the issue of liability from the issue of quantum.
I was
requested by counsel for Plaintiff to order a separation in terms of
Rule 33(4) and to postpone the issue of quantum. This
order was
granted.
3.
Before I deal with the facts in this matter, I
intend to first deal with an issue pertaining to the necessity of
calling the expert
witness, Mr Grobbelaar (Plaintiff's Accident
Reconstruction Expert) and with the costs incurred by calling his
evidence.
4.
I
was referred to the pre-trial minutes, dated 26 March 2015 (although
it appears that this date is incorrect) and more specifically
to
paragraph 2 thereof. In this paragraph the Plaintiff requested the
Defendant to set out clearly and concisely the version of
the Insured
Driver or any other witnesses of how the collision occurred which
gave rise to the Plaintiff's claim. The Defendant's
reply was the
following:
"The Defendant
does not have a version of the insured driver The Defendant is
relying on the report of the Plaintiff's reconstruction
expert, but
reserves its rights to amend or supplement your version."
5.
Plaintiff's counsel submitted in her opening
address that this could mean nothing other than the admission of the
report of the
expert and she was of the view that it was not
necessary to call the evidence of Mr Grobbelaar. However, after
discussion with
counsel for Defendant, she was informed that the
report was not admitted and that it was necessary to still call the
evidence of
Mr Grobbelaar.
6.
When asked what the Defendant's reply in the
pre-trial minutes meant, counsel for Defendant indicated that the
report was indeed
not
admitted
and that he was of the view that Mr Grobbelaar's evidence should
still be heard.
7.
I
deal with the evidence of Mr Grobbelaar and the costs occurred later
herein.
8.
On
behalf of the Plaintiff, he himself testified, his son, Mr Connie
Moolman and Mr Grobbelaar.
9.
The Plaintiff's evidence can be summarised as
follows:
9.1.
He testified that he was involved in a motor
vehicle collision on 10 November 2012. He was riding a motor cycle
and his son was
a passenger on the back of the motor cycle.
9.2.
He travelled from South to North in Steve Biko
Road (the old Voortrekker Road) in Gezina when he approached the
intersection with
Annie Botha Street.
9.3.
Steve Biko road has five lanes in a Northern
direction and he was travelling in the middle lane, i.e the third
lane from the left.
(I was referred to the Merits Bundle, p 33 - 36
where the road and area of collision are depicted on several
photographs).
9.4.
As he approached the robot controlled
intersection, he noticed that the traffic lights were red. His
evidence was that he decelerated
and also noticed three stationary
motor vehicles in the 4th lane, i.e the lane to his right.
9.5.
As he was still approaching, the traffic lights
turned green. He then noticed a golden golf approaching from the
opposite side turning
to its right into Annie Botha Street. (See
photograph 6 on p 35)
9.6.
The golf then stopped in the intersection. The
Plaintiff assumed that the driver of the golf saw him and
accelerated. At that moment,
the golf started moving forward again.
9.7.
The Plaintiff then applied his brakes, swerved to
his left to prevent a collision with the golf, put the motor cycle
down and kicked
it away from him. The motor cycle ended up against a
pole as indicated with the red arrow in photograph 3, page 34.
9.8.
He and his son were lying on the tar surface
across the intersection in the second lane when he saw that the golf
stopped (again)
and then continued to drive off. There was no contact
between the motor cycle and the golf.
9.9.
On specific questioning as to how far he was from
the golf when it turned in front of him, he answered that he was at
the horizontal
stop line (as depicted in photograph 4 on page 34).
9.10.
According to his evidence, he travelled less than
60 kph as he was coming from Soutpansberg Road (a block away) before
he turned
into Steve Biko Road.
9.11.
The Plaintiff testified that there was nothing
else he could have done.
10.
In cross examination, the Plaintiff was
questioned about his speed, the time when the traffic light turned
green, and also when
he observed that the golf started moving.
11.
The Plaintiff testified that he was quite a
distance from the intersection when the light turned green. By that
time his speed was
less than 60 kph. He observed the golf at the time
when the light turned green and the golf was stationary at the time.
He saw
that the golf started to move into the intersection, but then
stopped. The Plaintiff then accelerated and as he was at the
horizontal
line he noticed that the golf started to move again. He
took the evasive steps as indicated above.
12.
On the Court's questioning, the Plaintiff
testified that he did not see the golf when it was stationary (as he
focussed on the traffic
lights) but only saw it when it was moving
into the intersection - at the point when the traffic lights turned
green
13.
The Plaintiff's son also testified. He was at the
back of the motor cycle and he testified that he could not see past
his father.
He felt the motor cycle decelerate and then accelerate.
The next moment he felt that his father swerved to the left, put the
motor
cycle down and kicked it away from them. After he made sure
that his father was breathing, he looked around and saw the golf
stationary
in the intersection. As he approached the golf, he saw a
woman inside the vehicle just before it sped off in a Westerly
direction
in Annie Botha Street
14.
Mr Grobbelaar was called as an expert to give
evidence. He confirmed the contents of his report and his opinion. He
was also present
in court when the Plaintiff and his son gave
evidence.
15.
In cross-examination he confirmed that he cannot
say whether there was another vehicle on the scene. On the question
whether it
was possible that the Plaintiff could have lost control
over his motor cycle for other reasons, he conceded that many
possibilities
exist for a person to lose control over a vehicle He
however referred to the facts provided and found it to be consistent
with
the end position of the motor cycle and the version that the
Plaintiff swerved to his left to avoid the collision. According to
Mr
Grobbelaar's evidence, it is a natural reaction to swerve away from
the danger and not towards it. He confirmed that the insured
driver
had unrestricted visibility for traffic approaching in the manner of
the Plaintiff.
16.
No witnesses were called on behalf of the
Defendant as this is an indentified claim.
17.
The Court was referred to case law pertaining to
the discharging of a party's onus. The Court has to evaluate the
evidence before
it on a balance of probabilities.
18.
It is noted in the report of Mr Grobbelaar
(paragraph 7) that no mention was made in the affidavit by the
Plaintiff that the insured
driver, after proceeding to enter the
intersection, first
stopped
before
it proceeded to turn to its right in front of the Plaintiff. Neither
does it seem as if this was conveyed to Mr Grobbelaar
at the scene
during the interview.
19.
The court heard the
viva
voce
evidence of the Plaintiff when he
testified that as he approached the intersection, he saw the golf
turning in front of him and
then it stopped. He (Plaintiff) assumed
that it saw him and he accelerated. At that point, the golf started
moving again and to
prevent a collision, he swerved to his left.
20.
This issue has, unfortunately, not been taken up
in cross-examination. The evidence that the insured driver entered
the intersection
and then stopped before it proceeded again, is in my
view an important factor to be taken into consideration.
21.
It is trite that a driver who approaches an
intersection must keep a proper look out, not only for traffic
already in the intersection,
but also for vehicles that are being
driven in a negligent manner.
22.
It is not quite clear to the court when did the
Plaintiff decelerate and the reason for the deceleration. Was it
because the traffic
lights were red as he approached and he
anticipated stopping, or was it when he saw the golf entering the
intersection and he was
not certain whether this person saw him?
23.
Plaintiff's evidence was that he assumed that the
insured driver saw him (because the insured driver stopped) and then
he accelerated.
He was already at the horizontal stop lines when the
insured driver started to move again and he had to take evasive
action.
24.
The court finds it strange that the insured
driver, who must have had an unobstructed view, and who probably
stopped because she
saw the Plaintiff approaching on his motor cycle,
would suddenly proceed to turn in front of Plaintiff.
25.
The Court finds that the undisputed evidence of
Mr Connie Moolman placed the (unidentified) insured vehicle on the
scene of the
accident.
26.
I
am of the view that on the evidence of the Plaintiff himself he did
not keep a proper look-out - if he had done so he would probably
have
seen the golf, more in particular the fact that this vehicle may
create a dangerous situation at an earlier stage. He would
then
probably have been in a better position to take evasive action that
could prevent the putting down of the motor cycle and
the damages
resulting from this action.
27.
The driver of the golf was obviously negligent
and in my view the main cause of the accident.
28.
After considering the issues carefully I have
come to the conclusion that the negligent conduct of both parties
contributed to the
accident and the damages suffered.
29.
The apportionment that I deem appropriate, is
that the negligent conduct of the driver of the insured driver
contributed 80% and
that of the Plaintiff, 20%.
30.
This brings me to the question of the necessity
to call Mr Grobbelaar and the request for a punitive costs order
against the Defendant.
31.
Whatever the meaning of the answer in paragraph
2.1 of the pre-trial minutes is, the Defendant made it clear that
that it did not
admit the report of Mr Grobbelaar.
32.
The Plaintiff is
dominis
litis
and he is at liberty to adduce any
admissible evidence to prove his case. Although the Court has great
regard to the expertise and
opinions of expert witnesses, a party
must carefully consider the necessity of calling the evidence of such
expert witness.
33.
In this instance, the Court is of the view that
neither the report, nor the evidence of Mr Grobbelaar could assist
the court from
an expert point of view. As Mr Grobbelaar correctly
pointed out in his report and during his testimony, it is not
possible to establish
whether or not the insured vehicle was at the
scene or what it movements were. This would be a matter of evidence.
In this regard,
the Plaintiff and his son placed the insured driver
on the scene and their evidence in this regard, stands undisputed.
34.
I
am of the view that there was no real justification to call the
evidence of Mr Grobbelaar. However, in view of the fact that counsel
on behalf of Defendant persisted in him being called as a witness, I
will allow the costs. I am however not of the view that the
situation
justifies any punitive cost order.
35.
I
make the draft order, marked "X", an order of Court.
______________________
VAN ROOYEN, AJ
25 APRIL 2016