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South Africa: North Gauteng High Court, Pretoria
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[2016] ZAGPPHC 822
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De Wee v Road Accident Fund (71326/2013) [2016] ZAGPPHC 822 (2 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPORTABLE
OF
INTEREST TO OTHER JUDGES
DATE:2/9/2016
CASE
NO: 71326/2013
In
the matter between:
J
DE
WEE
…..........
PLAINTIFF
and
ROAD
ACCIDENT FUND
….........
DEFENDANT
J
U D G M E N T
MALI
J
[1]
The plaintiff sued the defendant in terms of the
Road Accident Fund
Act of 1996
for damages suffered as a result of injuries sustained in
a motor vehicle accident which occurred on 23 February 2012. The
plaintiff's
claim is for the amount of R425 500.00. The defendant
denies liability.
[2]
The plaintiff is a 57 year old widowed gentleman. He described
himself as an adult male employed as a Production Manager and
residing at [3…]Warwick Crescent , Sherwood in Port Elizabeth.
[3]
The defendant is an entity established in terms of the Road Accident
Fund Act No 56 of 1996, ("the Act") and which
is liable for
compensation of victims of motor-vehicle accidents, for personal
injuries sustained from such accidents.
[4]
The claim for damages arises out of the injuries sustained by him
because of the collision involving an unknown vehicle, driven
by an
unknown person. The said unknown vehicle collided with a motor
vehicle with registration letters and numbers
FZL [6…] GP,
driven by the plaintiff at the time of the accident.
[5]
The parties have agreed to a separation of the merits and quantum and
an order had been made to such an effect. The quantum
is postponed
sine die. The matter proceeds on merits with this court being tasked
to make a determination thereon.
LAW
[6]
It is trite law that the onus is on the plaintiff to prove, on a
balance of probabilities that the plaintiff's injuries were
caused as
a result of the negligent driving of the unidentified driver of the
insured motor vehicle. See
Laas v Road Accident Fund
2012 (1)
SA 610
( GNP).
[7]
It is also expected that he should prove that there was contact
between the unidentified motor vehicle and him
[8]
I now turn to inquire whether the collision was caused by the sole
negligence of the driver of the unknown vehicle.
THE
EVIDENCE
[9]
The defendant did not lead any evidence and the trial proceeded only
on the evidence presented by the plaintiff.
[10]
The plaintiff testified that he has 36 years of experience in driving
motor vehicles. He further stated that he drove a company
car for 33
years, therefore driving motor vehicles has been a large part of his
employment and he had to exercise caution all the
time.
[11]
The plaintiff further testified that on the day of the accident he
left home at 5h30 in the morning and started at Sun Ridge
Mall ("
the Mall") to withdraw money from the bank's automated machine
services. ("ATM"). He then drove from
the Mall, at
approximately 5h55, and turned left into Canna Road with the
intention of joining Kragga Kama Road (" the Road")
by
executing a turn to the right. The road has two lanes in both
directions and connects with Canna Road by means of a T junction.
[12]
The plaintiff further stated that the lights of his motor vehicle
were on as the weather was not really good, because it was
misty and
raining. The visibility was poor and sunrise had not occurred. As the
plaintiff intended to turn right, since the traffic
light was green
for him, he put on the indicators indicating to the right. As he
turned the vehicle to the right a dark object,
which later proved to
be a motor vehicle truck with no lights on, abruptly appeared from
the right whilst the traffic light were
red from its side.
[13]
The plaintiff further testified that in order to avoid the accident
he accelerated his vehicle. This was his attempt to manoeuvre
his
vehicle as he could not apply the brakes because it was wet due to
the rain.
[14]
The plaintiffs motor vehicle slipped and heard and felt the banging
sound behind him as the truck hit his motor vehicle at
the back. The
plaintiff further testified that he lost control of his motor vehicle
due to the truck hitting his motor vehicle.
There was nothing further
he could do to avoid the accident.
[15]
Under cross examination the plaintiff stated that he was hospitalised
for a period of 3 months and he never saw his motor vehicle
again. He
further stated that the scrap yard took possession of his vehicle
without him seeing it because of the trauma he suffered
due to the
accident. He further stated that his late wife took the photographs
of his car whilst he was hospitalised. The photographs
were in his
late wife's cellular phone and he was not interested in viewing the
photographs again because of the trauma. The photographs
were later
deleted by his late wife. He further clarified that he knew that his
motor vehicle was hit at the back because he heard
and felt the bang
at the back and his motor vehicle went across and plunged into a
tree.
[16]
The plaintiff's credibility was attacked because in the motor
accident plan it was recorded that the surface of the road was
good
and that there were no obstructions. This is because the road was
straight; the plaintiff agreed that in general it is a good
road,
however on the day of the accident the road was not dry as it had
been raining.
[17]
Counsel for the defendant questioned the plaintiff on Doctor Gerald
Lemmer's (" Dr Lemmer") report, an accident
reconstructionist. The issue is that Dr Lemmer stated in his report
that he can neither prove nor disprove the existence of unidentified
vehicle as it was a matter of direct evidence. The plaintiff could
not to answer that, be that as it may, Dr Lemmer's report at
page 15
of the paginated papers states as follows:
"It
can, however, be stated that Mr De Wee's version is completely
plausible fom (sic) the point of view of physcis. Had it
not been for
the slight collission with the right rear comer of his car it is most
probable that he would have retained control
of his car in the right
tum into Kraggakama and continued his journey with impunity.
Furthennore, in my view, his decision to accelerate
was probably the
correct one. If he had jammed on his brakes the truck would most
probably have collided with the right side of
his car in a T-bone
(sic) collision and he would have taken the full brunt of the
collision. "
[18]
The above account by Dr Lemmer corroborates the plaintiff's version;
which the defendant could not disprove. The defendant
did not call
the police officer who drew the accident plan to testify. The
defendant seems to rely on the accident sketch plan
taken 15 minutes
post the accident. The sketch plan remains as such as it is not an
affidavit. In fact Constable Thomas who drew
the sketch plan had
never even made an effort to meet the plaintiff. The defendant's
case, supposedly made from the sketch plan,
is that the surface was
dry and there were no obstructions. The plaintiff has already
testified satisfactorily on the issues raised
by the Counsel of the
defendant.
[19]
It was further argued by the Counsel for the defendant that the
plaintiff failed to keep a proper look out, he could have seen
the
unknown vehicle 6 metres away and should have stopped instead of
proceeding with the turning manoeuvre to the right. As indicated
above stopping the vehicle would have involved the application of
breaks, an exercise which would have proved fatal had the surface
in
fact been wet.
ASSESSMENT
OF
THE EVIDENCE
[20]
It is common cause that the only evidence before me is that of the
plaintiff. The plaintiffs evidence was not contradicted
by any other
opposing evidence. The plaintiff impressed me as a candid and
reliable witness. I found him to be a credible witness
who testified
in an honest and trustworthy manner. When he was cross examined about
the fact that he failed in his affidavit to
state that his motor
vehicle was hit at the back, he stated that the statement was taken 6
months after the accident occurred.
Counsel for the defendant could
not take the matter further.
[21]
It is abundantly clear that the plaintiff could not reasonably have
and possibly have avoided the collision as his motor vehicle
was hit
from behind by a truck, a vehicle commonly excepted as having more
weight, as opposed to a passenger vehicle, and therefore
higher
momentum.
[22]
I could find no well- founded suggestion that the plaintiff was
engaged in a fraudulent claim. On defendant's own admission
the
police officer who attended the accident scene, shortly after the
accident, found that there was an accident and that indeed
there was
an impact with a tree. The defendant's admission is in line with the
plaintiff s evidence.
CONCLUSION
[23]
Having regard to the above and on the evidence before me, the
plaintiff has succeeded in proving on a balance of probabilities
that
the collision was caused by the sole negligence of the driver of the
unidentified motor vehicle and that there was contact
between the
unidentified motor vehicle and him. His evidence as to how the
collision occurred is clear, credible and remains uncontested
[24]
The defendant did not prove contributory negligence on the part of
the plaintiff, neither was it argued on its behalf that
the plaintiff
contributed to the collision. Consequently, the defendant must be
held 100% liable for the plaintiffs proven or agreed
damages.
ORDER
[25]
In the result I make the following order;
25.1
The defendant is liable in full for the plaintiffs proven or agreed
damages consequent upon the injuries the plaintiff sustained
during
the collision.
25.2
The defendant is ordered to pay the costs of the trial on the merits.
25.3
The determination of the plaintiffs quantum of damages is postponed
sine
de.
N.P.
MALI
JUDGE OF THE HIGH
COURT
Counsel
for the Plaintiff:
....................
J
Barn
Instructed
by:
......................................
EHLERS
ATTORNEYS
Counsel
for the Defendant:
...............
B S
Tshauke
Instructed
by:
.....................................
DIALE
MOGASHOA ATTORNEYS
Date
of hearing:
.................................
28
April 2016
Date
of Judgment:
…........................
02
September 2016