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[2016] ZAGPPHC 1141
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S v Road Accident Fund (26227/2015) [2016] ZAGPPHC 1141 (18 October 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
26/10/2016
Date
of hearing: 18 October 2016
Case
number: 26227/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
J
D S
Plaintiff
and
ROAD
ACCIDEN FUND
Defendant
JUDGMENT
BRENNER
AJ
1.
The plaintiff, J. D. S. ("S.") was involved in a motor
vehicle accident on Saturday, 6 April 2013, at about 11h30,
in a
residential suburb in Huguenot Street, Vanderbijlpark, resulting in
his sustaining severe bodily injuries, including a head
injury,
fracture of the right humerus, pelvic fracture to the left
acetabulum, left knee injury at the patella femoral joint and
numerous abrasions and bruises. He was 53 at the time, his date of
birth being [...] 1960.
2.
At the time, S. was driving a motorbike, and one Kirsten Venter
("Venter"), was driving a VW Polo with registration
number
BH[...]GP ("the Polo").
3.
The defendant, the Road Accident Fund, ("the RAF"),
repudiated liability on the merits, and the case proceeded on the
issue of merits only. The issue of quantum was reserved for
determination by another Court in due course.
4.
I interpose to mention that the papers in this case cited S. as
represented by a curator, namely, advocate Mart-Marie Tromp N.O.,
acting as curator for S.. A curatorship application was heard before
the Honourable Mr. Justice Tuchten on 17 October 2016 and
dismissed.
I was placed in possession of a copy of this order. I am entitled to
act on the premise that Mr. Justice Tuchten was
satisfied that there
was no basis for S. being considered as
non-compos mentis
and
unable to manage his own affairs. I was assured by Counsel for S.
that he was in a position to give a coherent account of the
events
which culminated in the collision.
5.
For the plaintiff, S., evidence was adduced by S. and his daughter,
Candice Wytrykowski ("Candice"). For the defendant,
the
RAF, evidence was advanced by Venter, the driver of the vehicle which
collided with the motorbike driven by S..
6.
S. testified that he had expertise in boilermaking, welding and steel
erection. On the morning in question, he had left his home
in
Sasolburg to visit the home of his daughter situate at Huguenot
Street in Vanderbijlpark. (S. mentioned that it was the home
of his
granddaughter but it appears that he was mistaken in this regard).
His said that his son in law had asked him to set the
carburetor of
his motorbike. S. did so and then took the motorbike for a test drive
about 20 to 30 metres along Huguenot Street.
He testified that he
would not have driven the motorcycle without first having tested its
brakes, lights and indicators to ensure
they were in working order.
He wore an old German made helmet which could not be found after the
collision.
7.
The street was smooth, and tarred, and it was a sunny day with good
visibility. It merits mention that this street was double-laned
to
accommodate traffic in each lane travelling in opposite directions.
S. said he was about 10 metres away from turning left into
the
driveway to his daughter's home, after indicating to do so. He was
driving at a speed of between 40 to 50 km per hour. Then
a Polo,
travelling in an opposite direction, in the same street, stopped and
indicated to turn right to cross the lane in which
he was travelling,
into her mother's driveway. So S. proceeded on the assumption that
Venter would give him right of way. S. was
about ten metres away from
the Polo when he saw her indicating to turn. He said it looked to him
as if she was speaking on her
cellphone. In his view, there were
vehicles behind the Polo and vehicles behind him.
8.
A plan of the accident revealed that the homes of the parties were
all on the same side of Huguenot Street. Venter's mother's
home was
north, then there was an unidentified neighbour's home south of this,
and then contiguous to this home, the home of S.'s
daughter.
9.
S. testified about the evasive steps which were taken to avoid the
collision. He braked and hooted. There appeared to be brake
marks on
several of the photographs. He said that he could not turn right
because of cars behind the Polo. He could not turn left
because of a
small concrete wall which abounded the outside perimeter of the home
belonging to Venter's mother. The photographs
revealed a small green
wall of about thirty centimetres in height. His motorbike collided
with the left front fender of the Polo.
On impact, his body flew off
the motorbike and he hit the roof with the back of his head landing
on the bonnet of the Polo. The
motorbike was not badly damaged other
than for bent forks, and its handles, lights and seat being damaged.
This is consistent with
the photographs handed in to Court.
10.
Venter ran away into her mother's house but returned to the scene a
short while later with her mother. S. did not have an opportunity
to
speak to her. He was taken to Sasol Hospital, then Kroonstad, then to
Bloemfontein Hospital where he underwent traction for
one month and
thereafter, he had a series of operations.
11.
S. was aware that Venter was subsequently prosecuted for reckless and
negligent driving but that the case was mediated. An extract
from the
criminal docket corroborates this fact.
12.
S. testified that, although he had a learner's licence for driving a
motorbike at the time, he had driven motorbikes for about
35 years
without any prior accidents.
13.
S.'s daughter, Candice, arrived at her sister's home in Huguenot
Street on 6 April 2013 to find S. tuning her sister's husband's
motorbike. She stood on the pavement outside the neighbour's house
which was between her sister's house and Venter's mother's house
in
Huguenot Street to watch S.. She saw him drive down the road then
turn back to return to their house. He was not driving fast.
There
was a car behind S. and a car behind Venter. She observed the Polo
stopping outside Venter' mother's home to turn into the
driveway. The
driver of the Polo suddenly turned in front of S.'s motorcycle and S.
flew over the vehicle and hit the ground. S.
appeared to start losing
consciousness. The driver, Venter, ran into her mother's home.
14.
Venter testified that she had received her driver's licence in 2007.
She was travelling along Huguenot Street on 6 April 2013
when she
turned left into the driveway of her mother's home. The visibility
was good, although there was shade from trees near
the street. She
indicated to turn across the side of the street for oncoming traffic
but she did not stop. To use her expression,
she turned
"in
one motion"
because she saw
"no reason to stop".
She had seen no car behind or in front of her. She had seen no
cars behind the motorcycle or behind the Polo. She conceded that this
was wrong for not stopping when she was about to cross a lane for
traffic coming in the opposite direction. She admitted that she
failed to look out for other vehicles in the side of the road over
which she intended to cross. She denied that she was speaking
on her
cellphone at the time.
15.
She said that the first time she saw S. was when the collision
occurred and he landed on the bonnet of her Polo. She testified
that
she
"did not
see
him at all."
This is
consistent with her statement to the SAPS Vanderbijlpark on 19 April
2013 in which she said "/
did not
see
the bike at all,
it
was a
total shock to me when I heard the bang.”
16.
She conceded that she should have been "a
bit more vigilant'.
She proffered a suggestion that S. was speeding, and said that
she had heard no braking or hooting. She conceded under cross
examination
that if she did not see the motorcycle she could not have
known if it was speeding. She could not controvert S.'s evidence
that,
under the given circumstances, he was unable to take evasive
action to avoid the collision. She said that she ran into her
mother's
home after the collision because members of S.'s family had
started to scream and swear at her.
17.
Venter said that she was criminally prosecuted but negotiated an
admission of guilt fine of R1 000, 00 to avoid a criminal record.
18.
A similar set of circumstances occurred in
Sierborger
v South African Railways and Harbours 1961(11 SA 498 (A)
.
the only difference being that, in
Sierborger,
the
driver in the position of S. did not see the driver in the position
of Venter indicating. In
Sierborger,
Sierborger was travelling from east to west in Cape
Road intending to cross into 7th Avenue, a road running from south to
north,
where the roads intersected. Sierborger allowed a small car to
cross Cape Road into 7th Avenue. But behind this small car in 7th
Avenue was one du Preez, the driver of a railway vehicle comprising a
hauler and pantechnicon. Sierborger put out his right hand
and turned
across Cape Road into 7th Avenue, whereupon his vehicle collided with
the railway vehicle.
19.
In
Sierborger at page 504 to 505,
the Court
said
:
"Du
Preez was in the circumstances of the particular case entitled to
expect that appellant (Sierborger) would, in relation
to the motor
vehicle, choose an opportune moment to cross in front of it, and
would do so in
a
reasonable manner. He was thus entitled to
expect that appellant would not suddenly and at the last moment dart
across the line
of hi travel. See Milton's case (Milton v Vacuum Oil
Co of SA Ltd
1932 AD 197)
, Martindale v Wolfaardt 1940AD 235 at p244,
Roux N.O. v Osgood and Another
140 AD 139
at p144.
To
return to the enquiry
as
to
whether, if du Preez had seen the signal, any action was at that
stage required of him, the answer seems to be 'none other than
to
continue to keep
a
look-out'.
There was no obligation upon him to stop or even slow down because of
having seen the signal.
And
further at
p 505:
"Such
signal is of course
a
notification
to following and oncoming traffic that the driver intends to turn
across the line of traffic, but equally implicit
in it is that he
intends to do so at an opportune moment and in
a
reasonable manner........ A driver of
a
vehicle proceeding in this latter direction
does not, with reference to
a
vehicle
whose driver has signalled an intention to turn across his path and
who is directing his vehicle towards the middle of the
road
preparatory to doing so, incur an obligation to stop or slow down.
Certainly, he must keep such vehicle under observation
and
as
soon
as
it
is clear that, despite the inopportuneness of the moment, it intends
to cross in front of him, he must take all reasonable steps
that may
be necessary to avoid colliding with it."
20.
In
Southern Insurance Association Ltd v Cogill and another
1978(41 SA 128 (A)
,
paraphrasing the headnote, the
driver of a Toyota, one B, had approached a double laned dual main
thoroughfare to intend to turn
right. He made his turn at the
intersection without stopping. He collided with driver A's vehicle,
travelling from the opposite
direction in his own, that is, A's lane.
When A became aware that B was not going to stop, A braked and
swerved slightly to the
left in his own lane. He said he could not
swerve to the right as another car was on his right. The court on
appeal held that the
plaintiff, relying on B, had not discharged its
onus in establishing negligence on the part of A in failing to take
appropriate
evasive action.
21.
In neither
Sierborger
nor
Southern Life
was there an apportionment of blame for negligent driving on the
part of the driver in a similar position to S..
22.
In casu, it is common cause that both S. and Venter indicated their
intention to turn, S. to the left whilst in his lane of
traffic and
Venter to her right across S.'s path. In the result, Venter, in not
even observing S.'s motorbike, failed to exercise
reasonable
vigilance in ensuring that no traffic was coming from the opposite
direction towards her. In admitting that she never
saw the motorbike,
she conceded that she acted unreasonably in failing to maintain a
proper lookout when she could and should have
done so. In admitting
that she should have looked out for oncoming traffic, she accepted
'blameworthiness.
23.
S. proved that he was unable to avoid the collision because of the
obstruction of the green wall on his left and because of
vehicles
behind him and behind Venter. On his version, he was faced with a
sudden emergency. S.'s version is corroborated in all
material
respects by his daughter, Candice, who confirmed that he was not
driving fast and that Venter's turn across his path was
sudden. S.
said he applied his brakes and hooted. This was not seriously
challenged in evidence. I am inclined to prefer S.'s version
over
that of Venter who said that she saw no vehicles behind either the
bike or the Polo because it was plain from her own version
that she
did not see S.'s motorbike and was not keeping a proper lookout and
was patently intent on crossing the road to turn into
her mother's
driveway, in one movement. Moreover, assuming there were vehicles
behind both parties, it is not inherently improbable
for such
vehicles to proceed without stopping, notwithstanding the drivers
witnessing a collision.
24.
The plaintiff discharged its onus of proving on a balance of
probabilities that Venter was 100% to blame for causing the
collision.
25.
On 18 October 2016, while indicating that a written judgment on the
merits would be handed down thereafter, I accordingly make
an order
in the following terms, namely:
a.
The defendant was found liable for 100% of the plaintiffs proven or
agreed claim;
b.
The defendant was directed to pay the costs of the action in respect
of the merits.
26.
On 19/10/2016 based on my ruling on the merits, the terms of a
consent order on quantum was made an order of court.
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
24
October 2016
Appearances
For
the Plaintiff: Advocate
J Bisschoff
Instructed
by: Kritzinger
Attorneys
Counsel
for Defendant: Adv
N D van der Walt
Instructed
by: Marivate
Attorneys