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[2016] ZAGPPHC 994
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Kruger v Road Accident Fund (66316/2014) [2016] ZAGPPHC 994 (4 November 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 66312/2014
DATE
OF HEARING: 20 OCTOBER 2016
DATE
OF JUDGMENT: 4 NOVEMBER 2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
ANGELA
INEZ
KRUGER
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
J
U D G M E N T
AVVAKOUMIDES,
AJ
[1]
This is an action wherein the plaintiff claims damages arising from
injuries sustained by the plaintiff in a motor collision
on 13 June
2013. The quantum has been settled in the amount of R2 223 059.45.
The only issue for determination is the merits.
[2]
The collision occurred in an agricultural area and at the
intersection of road number 5 and Campbell Road, Randfontein. It is
common cause that the main road is road number 5 and that Campbell
road is the side road. Campbell road is partly tarred on the
left
side of road number 5, travelling in the direction of travel by the
plaintiff, and after its crosses road number 5, it is
a gravel road.
It is common cause that the plaintiff sustained serious injuries in
the collision. She accordingly testified that
she had no recollection
of the collision and her memory came back to her a few weeks after
the collision. She was diagnosed with
retrograde amnesia and could
not testify as to how the collision occurred.
[3]
The plaintiff testified that she had been living in the area for some
time before the collision, and still does. The collision
occurred
about 3 blocks away from her home. She was riding on her motorcycle.
The plaintiff testified that she regularly used road
number 5 and
drove across the intersection of Campbell. She testified that
Campbell road is the side road, whereas road number
5 is the main
road, but that there are no traffic signs at that intersection and
most other intersections in that area. The plaintiff
testified that
if one drives along road number 5 you do not have to stop at the
intersection of Campbell road because road number
5 is the main road.
Traffic driving along Campbell road must stop and yield to the
traffic along road number 5.
[4]
Under cross examination the plaintiff testified
that when one drives along
Road number
5, as she did, you still have to pay attention to traffic coming from
the side roads and be aware of the surroundings.
The plaintiff
testified that the custom in the area is for traffic along Campbell
Road to yield for traffic coming along road number
5. This is
generally the case in that area where many of the side roads join the
main roads. The plaintiff's husband, Mr Kruger,
testified that on the
night in question, approximately 18h30, he was driving behind the
plaintiff in a Volkswagen Sharan, at a
distance of approximately 30
to 40 metres behind her. He had his lights on as did his wife.
[5]
Mr Kruger testified that if you did not have your lights on you would
not be able to drive along that road given the poor visibility
and
the many potholes on the road. He testified that he did not see any
lights coming from his left, i. e the direction from which
the
insured driver was travelling. They were travelling back from the
Cradle of Mankind in Ventersdorp. His speed was approximately
40 to
50 kilometres per hour. He testified that there are no road signs at
the intersection of road number 5 and Campbell Road
as there are no
signs at most of the intersections. It was dark and all he could see
was the area illuminated in front of him by
his headlights and his
wife on the motorcycle. He suddenly saw lights of a vehicle from his
left and then a collision occurred
between this vehicle and his wife.
[6]
He stopped and went to look for his wife. He initially actually
thought that this vehicle may have missed colliding with his
wife but
then found her on the right of the intersection. He testified that
the grass on the left of road number 5 had grown long
at that stage
and this, together with the darkness, made it impossible to see any
vehicles travelling across the intersection.
Mr Kruger stated that
the insured vehicle had come to a standstill right into the
intersection. According to Mr Kruger the first
time he saw the lights
of the insured vehicle is when the insured vehicle had come into the
intersection.
[7]
The insured vehicle was a Toyota farm bakkie that operated as an
Armed Reaction Response in the area. The skid marks of the
bakkie
were approximately 17 metres into the intersection. Under cross
examination he stated that the grass on his left had grown
to a
height which was a little higher than the bakkie and this prohibited
him from noticing even the glare of any oncoming lights.
It was put
to him that the insured driver only saw Mr Kruger's lights on his
right but not the lights on the motorcycle. The motivation
for this
question was to suggest that the lights on the motorcycle were not
on. Mr Kruger responded that if you did not have any
lights on you
would not be able to drive along that road, given the darkness and
potholes. The plaintiff closed her case.
[8]
The defendant called the insured driver, Mr Myburgh. He
testified that he knows the crossing in issue. He confirmed that
he
was travelling along Campbell Road towards road number 5 and he saw
lights coming from his right towards the intersection. He
said that
he satisfied himself that the lights were far way enough for him to
cross the intersection. He did not see the plaintiff
on her motor
cycle at all. He had responded to an emergency call out at that stage
and he travelled at 60 to 70 kilometres per
hour towards the
intersection. When he approached the intersection he started braking,
on and off, to slow his vehicle. He was
already in the intersection
when the motorcycle collided with the right front of his vehicle.
The reason for him braking
on and off was that he wanted to see what
was coming along, this after already having testified that he had
seen the oncoming lights
of Mr Kruger.
[9]
Under cross examination the insured driver conceded that he was not
that acquainted with the roads in the area because he had
just
started working as a response officer in the area. He confirmed that
he knew that road number 5 is the main road and that
he would have to
yield for traffic coming in road number 5. He said that traffic
coming in road number 5 have the right of way.
He conceded that he
bore an obligation to ensure that it was safe to cross the
intersection. Mr Myburgh testified that he went
into the intersection
at approximately 15 kilometres per hour. This means that he did not
stop completely. Yet his skid marks were
measured at 17 meters on the
gravel road, meaning that he continued skidding for 17 metres after
the collision. He did not see
the motorcycle at all and conceded
that, as a result, could not say whether the lights of the motor
cycle were on or not.
[10]
In argument the plaintiff's counsel referred me to authority,
Martindale v Wolfaardt
1940 AD 235
, in support of the
submission that, at an intersection which is not governed by traffic
signs, the traffic traveling in side roads
has the duty to yield
for traffic traveling in main the roads of
such intersection.
In Martindale the court held
that the driver of a vehicle travelling on a main road is entitled to
regulate the manner of
his driving on the assumption that the driver
of a vehicle driving in a side road approaching the intersection
would not suddenly
without warning expose himself and others to
danger,
"and
that
under
the circumstances
the defendant
had
not been negligent
in not reducing his speed at an
earlier stage in the occurrence."
[11]
The defendant submitted that, with reference to the
decisions in Robinson Bros v Henderson
1928 AD 138
at 141
and Martindale,
supra,
the plaintiff had a duty when
approaching the intersection, no matter whether she believed
that she had the right of way or
not, to have regard to the traffic
coming from the side street. Whilst this is correct, the facts of
this case do not support the
defendant's submission. It was dark and
on the insured driver's version, he was travelling at 60 to 70
kilometres per hour on his
way to an emergency call out. When he
entered the intersection he had still not seen the plaintiff and only
realized that something
was wrong when the collision occurred. He
braked and skidded for approximately 17 metres. It is clear that,
given the surrounding
area and poor visibility he was driving too
fast and was negligent. Whether any contributory negligence may be
attributed to the
plaintiff is for the defendant to have proven.
There was no evidence upon which I could find that the plaintiff was
contributory
negligent.
[12]
Consequently I find that the driver of the insured vehicle was solely
to blame for the collision. In the result I make the
following order:
[12.1]
The defendant is liable for 100% of the plaintiff's agreed or proven
damages arising from the motor vehicle accident of 13
June 2013.
[12.2]
The Defendant shall pay the capital amount of
R
2
223 059.45
(TWO MILLION
TWO
HUNDRED
AND
TWENTY
THREE
THOUSAND
AND FIFTY
NINE RANDS AND
FORTY
FIVE CENTS)
to the Plaintiff.
[12.3]
Payment shall be made into the Plaintiff's attorney of record's trust
account, details as follows:
Name
of Account Holder: Moss and Associates Inc Trust Ace
Bank
Name: First National Bank
Branch
Name: RMB Private Bank
Account
Number: [6......]
Branch
code: 25 06 55
[12.4]
Payment shall be made by the 28th of November 2016, failing which the
Defendant shall pay interest a
tempora
morae
at the rate of 10.25% on the amount to date of final payment.
[12.5]
The Defendant shall furnish the Plaintiff with an undertaking in
terms of
Section 17(4)(a)
of the
Road Accident Fund Act, No 56 of
1996
, for 100% of the costs of future accommodation in a hospital or
nursing home or treatment or rendering of a service or supplying
of
goods to the Plaintiff or related expenses arising out of the
injuries sustained by the Plaintiff in the motor vehicle collision
on the 13 June 2013, after such costs have been incurred and
upon proof thereof.
[12.6]
The Defendant shall make payment of the Plaintiff's agreed or taxed
party and party High Court costs of the action including
costs of
Senior Counsel and the qualifying, reservation and/or preparation
expenses of the Plainitff's experts:
GW
Jacobson (Actuaries)
Dr
JJ Schutte (Orthopaedic Surgeon) Dr Oelofse (Orthopaedic Surgeon)
Dr
Berkowitz (Plastic Surgeon) Dr P Steyn (Urologist)
Dr
Scheltema (Neurosurgeon) Dr Cheyip (Neurologist)
Dr
K Roux (Psychiatrist)
Dr
C Gordon (Neuropsychologist)
N
Doorasamy (Occupational Therapist) Meryl! Shein (Industrial
Psychologist)
[12.7]
Any cost attendant upon obtaining payment of the capital
amount.
[12.8]
The reasonable traveling and accommodation costs incurred to ensure
the Plaintiff's attendance to all Medico-Legal appointments.
[12.9]
The Plaintiff shall, in the event of the costs not being agreed,
serve the notice of taxation on the Defendant's attorneys
of record.
[12.10
The Plaintiff shall allow the Defendant 14
(Fourteen) days to make payment
of the taxed costs.
_____________________________
G.
T. AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE:
4 NOVEMBER
2016
Representation
for Plaintiff:
Counsel:
I. J. Zidel S. C.
Instructed
by: Moss & Associates
Representation
for Defendant:
Counsel:
H. J. Strauss
Instructed
by: T. M. Chauke