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[2016] ZAGPPHC 639
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Masilela v Road Accident Fund (87122/14) [2016] ZAGPPHC 639 (27 July 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 87122/14
27/7/2016
Not
reportable
Not
of interest to other judges
Revised.
IN
THE MATTER BETWEEN:
JABULANI
ISAAC
MASILELA PLAINTIFF
And
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
MAKAMU AJ;
[1]
The plaintiff was involved in a motor vehicle collision on the 4th of
February 2012, when his vehicle collided with the vehicle
ahead of
him which was being towed. He suffered some injuries and claimed
compensation from the defendant for the injuries sustained
as a
result of the accident.
[2]
The parties agreed that the issue to be adjudicated upon at this
stage is whether the plaintiff was involved in an accident
through
the negligence of the other driver and the issue of quantum shall be
postponed sine die.
[3]
The issue to be determined is on the issue of negligence, and
particularly on who was to blame for the collision.
[4]
The onus of proof rested on the Plaintiff to show on the balance of
probabilities, that the insured driver was negligent on
one or more
of the grounds set in the particulars of claim. The question is
whether the plaintiff managed to discharge the onus
of proof, and the
assessment of credibility of the witnesses will be bound up with the
consideration of probabilities of the case
and if the balance of
probabilities favours the plaintiff then the court will be inclined
to accept his version as being probably
true.
[5]
In this case there are two mutual destructive versions, and the
correct approach will be to decide as to which version is more
probable than the other.
[6]
The crux of the plaintiff's case was that the insured driver was
towing another vehicle and decided to turn into the Meyer's
off ramp
without signalling to the towed vehicle about his intention to turn
or to take that off ramp and this resulted in the
chain used to tow
the vehicle breaking and the towed vehicle veered to the other lanes
towards the right and collided with the
plaintiff's vehicle, and the
plaintiff lost control of his vehicle and overturned when it hit the
drain.
[7]
The plaintiff avers that had it not been for the insured driver he
would not have been involved in the collision as such he
claims for
damages as a result of injuries suffered, past medical and hospital
expenses, estimated future medical expenses, past
loss of earnings,
future loss of earnings/earning capacity and general damages.
[8]
The Defendant through the insured driver denies any wrong doing as
far as his driving is concerned. The insured driver admit
that he was
driving along N4 High way when the vehicle driven by the Plaintiff
collided with his vehicle and as a result it overturned
but it was
not due to his negligence that the Plaintiff's vehicle overturned. He
admit that he had silent intention to take Meyer
off ramp but changed
his mind and he did not communicate his intention to take Meyer off
ramp or his decision to continue to the
next off ramp however he was
driving on the extreme left lane.
[9]
He changed the lane to the inner lane and he had seen the Plaintiff's
vehicle in his rear from a distance but he all of a sudden
whilst in
the lane that he took heard a bang and when he looked he saw
Plaintiff's vehicle overturning to the side of the High
way.
[10]
He spoke to the Plaintiff when he was lying on the ambulance
stretcher asking for his cell phone numbers when the Plaintiff
said
his vehicle was not insured and he was unemployed and the insured
driver promised to help him repair his car out of the goodness
of his
heart which he fulfilled but he never saw the Plaintiff again but
requested his cousin Justice to interact with the Plaintiff
by taking
him to the police station the next day to sign the statement which
the insured driver had signed and the accident report
which the
insured driver had already made at the police station and signed. He
further asked his cousin Justice to be a go between
in order to
arrange the repairs of the Plaintiff's car as he lives in the Free
State province. The insured driver also mentioned
that Justice only
came to the scene of accident after he phoned him and the Plaintiff
had already been taken to hospital so he
was never the driver or at
the scene of accident.
[11]
Both the defendant's witnesses were reliable and corroborated each
other and the Court will find that their version is more
probable
than the version of the plaintiff. The insured driver denied being
towed at any stage at the time of the accident and
that his motor
vehicle was in a good condition at the time. [8]The only motor
vehicles involved in the collision was his and that
of the plaintiff,
yet the insured driver testified that there were many vehicles on the
road at the time after 15h00 on a Saturday
afternoon. The plaintiff
was driving behind the defendant, and the defendant saw the
plaintiff's motor vehicle at a distance. There
is no evidence that
suggest that the plaintiff was driving at a very high speed to can
cause or call for the insured driver to
be alert and to take a
reasonable step. There is nothing expected of the insured driver to
have done.
[12]
According to the sketch plan filed by the plaintiff the plaintiff's
vehicle collided into the insured driver's vehicle on a
straight lane
whereas the insured vehicle according to his sketch on accident
report he was changing lanes when he heard the bang.
If the insured
vehicle heard a bang when he was changing lanes then he would not
have kept a proper lookout however according to
the plaintiff's
averment the insured vehicle was being towed and could not have
changed lanes as its motion was dependant on the
towing vehicle.
[13]
The sketch plan as per accident report is consistent with the
plaintiff's version save for the fact that it was being towed
however
according to the sketch plan drawn by the Limbazz Investigators and
Assessors as commissioned by the plaintiff contradicts
Accident
report's sketch plan which showed that the insured vehicle was not
being towed, although he claims that it was the insured
driver who
suggested to him to say he was not being towed and indeed the insured
vehicle could not veer on the path of the plaintiff
if it was being
towed unless there was expert evidence to suggest otherwise. As a
result it renders the evidence of the plaintiff
to be highly
improbable.
[14]
The plaintiff said he was influenced by the insured driver to say
that he was not being towed so that his insurance would not
repudiate
his claim and that insured driver was not the one who testified Mr
Leshilo but Justice yet the insured driver's version
is that Justice
was never at the scene when the collision took place he only came to
the scene long after the plaintiff was taken
to hospital, and the
insured driver used him to interact with the plaintiff towards the
repairs of his vehicle which was never
denied and Justice was never
called by any of the parties to come and testify. The plaintiff's
versions are different and which
one must the Court believe, he
concedes that he lied on the day of the collision, how do we the
Court know that he is not lying
again in court.
[15]
The plaintiff failed to bring evidence that would explain the
probability of the towed vehicle veering to the right when the
chain
breaks because of the towing vehicle turning to the left.
[16]
The essence of the Plaintiff's case was that the insured driver
turned his vehicle which was towing another vehicle without
giving
notice of his intention which led to the towed vehicle to break the
chain and veer into the other traffic lanes and collided
with the
Plaintiff's car.
[17]
The reasonable person test is used to assess the conduct of road
users. The court set out that, conduct expected of the prudent
road
user, and the obligations which apply to motorists. It was found
against that backdrop that a reasonable and prudent driver
would not
have conducted himself in the way the plaintiff did prior to the
collision. He did not keep a proper lookout, he did
not keep a safe
following distance, and did not take any evasive steps to avoid the
collision.
[18]
On the facts before court the plaintiff is solely to blame for the
collision and the plaintiff's negligence was the primary
cause of the
accident.
[19]
In the result I make the following order:
That the plaintiff's
claim is dismissed with costs.
________________________________
M.S
MAKAMU
ACTING
JUDGE OF THE HIGH COURT
DATE
OF JUDGEMENT
: 27 /07 /2016
PLAINTIFF'S
ADV
: ADV F MATIKA
INSTRUCTED
BY
: B.DLOVA MOLOT ATI
DEFENDANT'S'
ADV
: E MOGANE
INSTRUCTED
BY
: RAMBEVHA MORABANE ATT