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[2016] ZAGPPHC 806
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Van Heerden v Road Accident Fund (82263/2016) [2016] ZAGPPHC 806 (9 September 2016)
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THE
REPUBLIC OF SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no: 82263/2014
DATE:
9/9/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
VAN
HEERDEN
..................................................................................................
APPLICANT
AND
ROAD
ACCIDENT
FUND
.................................................................................
DEFENDANT
JUDGMENT
MOLAHLEHI
AJ
Introduction
[1]
This is a damages claim arising from the collision between the
plaintiff's motor cycle and the motor vehicle which was driven
by the
driver insured (the insured driver) by the Road Accident Fund (the
respondent).
[2]
The quantum are by agreement between the parties separated from the
merits in terms of Rule 34 of the Uniform Rules of the Court.
[3]
The plaintiff contended that the cause of the accident was the
negligent driving of the insured driver. The respondent on the
other
hand disputed the claim and contended that the cause of the accident
was the plaintiff alternatively he contribute to cause
of the
accident.
Background
facts
[4]
It is common cause that the plaintiff and the insured driver were
involved in a motor collision, on 19 October 2010 at 7H10
and on the
R21 Highway at Boksburg. They were both travelling northwards.
[5]
The insured driver, Ms Madelin Olivier, was driving the motor
vehicle, registered[ DMB 7… FS]. The plaintiff was driving
a
Suzuki SXR1000 motor cycle with registration number [ZCK 1.. GP].
[6]
It is common cause that there were road works on the R21 on that day
and that there were concrete barricades on the right hand
side of the
road. The road which operated on two lanes was dry with good
visibility on the day.
The
plaintiff's case
[7]
The plaintiff in support of his case presented the testimony of three
witnesses including himself. His testimony in brief was
as follows:
The accident occurred on a Sunday morning whilst he was travelling
from Boksburg to Edenvale on his way to work.
[8]
The plaintiff was travelling on the right hand lane of R21, when he
suddenly saw the motor vehicle driven by the insured driver
moving
from the slow moving lane on the left hand side of the two lane road
to the right. By the time he noticed the insured driver's
car it was
too late. He tried to swerve to the right but could not avoid the
accident because of the concrete barriers. He also
applied the brakes
to no avail.
[9]
He further testified that upon impact his motor cycle caught fire.
For him the consequences was that he was seriously hurt and
had to be
taken to the hospital by an ambulance.
[10]
The second witness for the plaintiff was his father, Mr Van Heerden.
He briefly, testified that he arrived at the scene of
the accident
soon after he received the telephone message about the accident. On
arrival there he spoke to the passenger, who described
to him, how
the accident occurred. He then spoke briefly to his son who at that
stage was already in the ambulance. The son told
him that the insured
driver swerved into his lane, causing the accident.
[11]
The third witness was the plaintiffs mother. The essence of her
testimony was that she was responsible for dealing with the
insurance
of the insured driver. They accepted liability and paid for the motor
cycle which had been written off.
The
case of the respondent.
[12]
The insured driver, testified that the morning of the accident she
was travelling with a friend on their way to attend a conference
of
O.R Tambo airport. She was travelling of the R21 towards the north.
[13]
Before the accident she was travelling on the right hand side of the
road. The traffic on the left side was moving very slow.
As soon as
she realised that there was an opportunity to move to the left lane
she proceeded to do so after satisfying herself
that it was safe to
do so.
[14]
After, travelling for about 100 to 150m on the right hand lane she
suddenly heard a bang at the back of her car which was the
result of
the impact by the plaintiffs motorcycle. She also in this regard
testified that she looked around
and
had her indicators on before moving to the left lane. She reported
the accident at the Kempton Park police station where she
made the
statement including making the rough sketch showing how the accident
occurred.
Evaluation
and analysis
[15]
The dispute which the court in this matter need to resolve concerns,
who caused the accident. In this respect it is clear that
there are
two mutually destructive versions.
[16]
The version of the plaintiff on the one hand is that the collision
was caused by the insured driver who suddenly without any
warning
changed the lanes from the left to the right. The accident according
to him happened so quickly that there was nothing
he could do, to
avoid it.
[17]
The version of the insured driver on the other hand is that she was
travelling on the left lane of the road which was moving
very slow,
she moved to the left lane when she noticed that it was safe to do
so. She testified that at the time of the accident
she was already
travelling in the right hand lane.
[18]
The leading authority on the approach to adopt when faced with
conflicting versions of the parties is
Stellenbosch Farmers Winery
Group Limited
and
Another
v Martell et Kie, which provides the following guidelines in this
regard:
"
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. The technique generally
employed by
the courts in resolving factual disputes of this nature may
conveniently be summarised as follows. To come to a conclusion
on the
disputed issues a court must make findings on (a) the credibility of
the various factual witnesses; (b) their reliability;
and (c) the
probabilities. As to (c) this necessitated an analysis and evaluation
of the probability or improbability of each party's
version on each
of the disputed issues. In the light of assessment of (a), (b) and
(c) the court will then, as a final step, determine
whether the party
burdened with the onus of proof has succeeded in discharging it."
[19]
In
City
of
Johannesburg
Metropolitan
Council
v
Ngobeni,
[1]
the
SCA
had
the
following to say:
"The
approach to be adopted when dealing with the question of onus
and
the probabilities
was outlined by Eksteen JP in National
Employers' General
v
Jagers, as
follows: 'It
seems
to
me,
with
respect, that
in
any
civil
case,
as
in
any
criminal
case,
the
onus
can
ordinarily only
be
discharged by adducing credible evidence
to
support
the
case of the party on
whom the onus rests. In a civil case the onus
is
obviously not as
heavy as
it
is
in a
criminal case, but nevertheless where
the
onus rests on
the
plaintiff as
in
the
present
case, and where there
are
two
mutually
destructive
stories,
he
can
only
succeed
if
he satisfied the
Court
on
a preponderance of
probabilities
that
his
version is true and accurate and
therefore acceptable, and that the other version advanced by the
defendant is therefore false or
mistaken and
falls to
be
rejected. In
deciding
whether that evidence is
true
or
not
the Court will weigh up and test the
plaintiffs a/legations against
the general
probabilities. The estimate of the credibility of a witness
will therefore be inextricably bound up with a consideration
of
the probabilities of
the
case
and,
if
the
balance
of
probabilities favours the plaintiff, then the Court
will
accept his version
as
being
probably true. If
however
the
probabilities are
evenly
balanced in
the
sense
that
they do not favour the plaintiff's case any more than they do
the defendant's, the plaintiff can only succeed if the Court
nevertheless believes him and is satisfied that his evidence is true
and that the defendant's version is false." (Footnotes
omitted).
[20]
In argument the defendant's counsel emphasised the fact that this was
a rear end collision. The inference to be drawn
from this
submission is that, because of that reason the plaintiff is
automatically the cause of the accident. In dealing
with
the
issue
of
rear
end
collision
this
court in
Van
Der
Berg
v
Road
Accident
Fund,
[2]
held
that:
"[14]
The general approach to adopt when dealing with rear
end
collision is
set
out
by
the
author H
B
Kloppers
in The
Law
of Collision
in
South
Africa
(7th
Ed)
page 78
as
follows:
'A
driver
who
collides
with
the
rear
of
a
vehicle
in
front of
him
is
prima facie
negligent unless
he
or
she
can
give an explanation indicating that he or she was
not
negligent.
"
[15]
The driver who collides with another from the rear end can escape
prema facie liability for negligence by providing an explanation
that
shows that the collision occurred because of the negligence of the
driver of the other vehicle or due to other intervening
circumstances. The example of the exception to the general rule of
rear end collision is said to be where for an example, as stated
by
Klapper, the driver in the front suddenly swerves immediately and
applies the breaks."
[21]
In the present instance the plaintiff has provided the explanation as
to how the accident occurred which is that insured driver
sudden
swerved to his side which is the cause of the accident.
Evaluation
[22]
In my view, the version of the plaintiff is more plausible than that
of the defendant. In this respect the probabilities point
to the fact
that the accident occurred as the insured driver was changing from
the left lane, where the
traffic
was moving slow, to the right lane. The traffic on the left lane was
flowing smoothly. The plaintiff's version which was
not challenged is
that the space between him and the next vehicle before the accident
was about 15 meters.
[23]
Before dealing with the conflicting versions presented before this
court, I need to point out that the defendant did not call
the
passenger of the insured vehicle as its witness. This is a witness
who could have assisted the court in understanding as to
what
actually happened on the day in question. She could have assisted the
court in relation to how her friend moved from the right
lane to the
left lane more importantly whether the insured driver had her
indicators on as she was moving from the right to the
left lane. The
respondent has provided no reason as to why she was not called to
testify. The only inference to draw is that she
was likely to give an
adverse version to that of the respondent.
[24]
Turning to the two versions as presented by the parties, the version
of the plaintiff is more plausible than that of the defendant.
There
are a number of areas where the version of the plaintiff is in some
way supported by that of the respondents.
[25]
It is common cause that at the time of the accident the plaintiff was
driving on the left hand lane where the traffic was moving
smoothly
than that in the right hand side. The insured driver did not dispute
that she was on the right hand lane which was moving
very slow and
that it is for that reason that she decided to move to the right
lane. The draft sketch of the accident which she
drew at the police
station support the version of the plaintiff that she swerved to the
right lane and cut off in front of the
plaintiff's motorcycle. This
is also supported by the sketch drawn by the plaintiff's father which
he did on the basis of the information
given to him by the insured
driver.
[26]
I also find the plaintiff to have been a good witness. He answered
questions, including those that were not favourable to his
case, in a
fair and objective manner. He indicated that the speed limit on the
road was 100km an hour. He
stated
that he could not tell what speed limit he was travelling at but
suggested that, it could not have been above the speed limit
because
there was traffic congestion. He also conceded that the collision was
on the rear end of the insured vehicle.
[27]
The plaintiff also testified that when the insured vehicle suddenly
moved from the left to the right lane, he attempt to avoid
the
accident by swerving to the right but that did not help because of
the concrete slaps next to the road. This version is supported
by
what the insured driver says in her accident report.
[28]
This testimony of the only witness of the respondent, the insured
driver, was unsatisfactory for the following reasons:
a.
Although, the farther of the plaintiff seemed confused as to who he
spoke to on arrival of the accident, it seems apparent that
he spoke
to the insured driver. The insured driver testified that she did
speak to him and informed him how the accident occurred.
b.
The accident was reported on behalf of the plaintiff at the police by
the father who also drew the sketch of the accident scene
as
indicated earlier in this judgment. He drew the sketch on the basis
of the information provided to him by the insured driver.
His sketch
is in all material respect the same as that drawn by the insured
driver.
c.
The sketch drawn by the insured driver shows her movement from the
right to the left lane, it is direct conflict with her when
she says
that at the point of the collision she was already on the left lane
having travelled for about 100 to 150 meters in that
lane. She could
not provide a satisfactory explanation as to the contradiction
between her testimony in court and her sketch.
[29]
The insured driver was also confronted during cross examination with
the contradiction between her accident report and the
statement she
made on 22 August 2016. The accident report reads as follows:
"Driving
on R21 North, busy changing lanes after observing when
B
crashed
into
the
back of
my
car.
I
didn't
see
him
anywhere. B
went
into the
barrier
and
back
into
my
car
A.
B
flew
ahead
and
stopped
about 30
m
ahead
bike."
[30]
The relevant part of the statement she made read as follows:
"I
was driving on N12 towards O.R. Tambo. The direction of which I
believe was towards Westerly direction. I took an off to
R21
Pretoria, as I drove through a "U" turn into R21, the lanes
used at that time was only two lanes which I was driving
on the right
lane. A motorbike bearing registration no. [ZCK 1.. GP] came from
nowhere at a very high speed forcing its way on
my right shoulder
where there was no lane for any vehicle to pass. He hit my vehicle on
the right back corner and hit the wall
barrier of the road and
bounced back onto my vehicle. The motor bike bounced a few times in
front of my vehicle while I applied
my breaks and moved towards left
to observe this. When the bike caught fire he let it go and fell
down.
The
fact that he hit my vehicle from the right back and went on to bounce
the wall rolling in front of my vehicle was evidence to
me that he
was travelling at a very high speed. He should have followed my
vehicle from behind and overtaken me when there was
a lane available
and safe to do so.
The
motorbike driver was seriously injured, the ambulance arrived and
traffic officials arrived and took over control of the scene.
The
weather was clear and the tar was dry."
[31]
The other difficulty which the insured driver had was to deal the
version of the plaintiff's mother relating to the fact that
the
insurance of her (insured driver) car accepted liability and paid for
the damages to the motorcycle which was
written
off in the accident. She provided no satisfactory explanation as to
why her insurance would accept liability if she was
the cause of the
accident.
[32]
In light of the above, I am of the view the version of the insured
driver is unreliable and that she lacked credibility as
a witness.
Accordingly, I am of the view that the plausible story to accept as
to who caused the accident is that of the plaintiff.
[33]
In summary, the accident was caused by the insured driver who changed
lanes without keeping a proper look-out and did so in
a manner that
had no regard to the safety of herself and other users of the road.
[34]
As concerning contributory negligence the respondent's counsel
contended in the alternative that the plaintiffs negligence
contributed to the accident. There was however, no evidence led by
the respondent to support this allegation.
[35]
In conclusion, I find that the accident in this matter was caused by
the negligent driving of the motor vehicle of the insured
driver. I
see no reason why costs should not follow the results.
Order
[36]
In the result the following order is made:
1.
Judgement is entered in favour of the plaintiff.
2.
The defendant is liable to pay 100% of the plaintiffs proven or
agreed damages.
3.
The defendant is to pay the costs of the plaintiff.
4.
The issue regarding quantum is postponed
sine
die.
______________
Molahlehi
E
Acting
Judge of the Gauteng Division
[1]
(314/11) [2012] ZASCA 55 (30 March).
[2]
(35504/11) [2013] ZAGPJHC 94 (20 March 2013).