About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1176
|
|
Van Rooyen NO v Road Accident Fund (23905/2014) [2016] ZAGPPHC 1176 (25 November 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
25/11/2016
Case Number: 23905/2014
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
In the matter between:
ADV M VAN ROOYEN N.O. obo SIDNEY
LEGODI
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
JANSE VAN NIEUWENHUIZEN J
[1] The plaintiff, in her official
capacity, claims damages in respect of injuries sustained by Sidney
Legodi (Legodi) in a motor
vehicle collision that occurred on 8 July
2011.
[2] At the commencement of the trial,
the parties indicated that they had agreed to a separation of the
issues pertaining to liability
and quantum and an order facilitating
the separation was issued.
[3] In the premises, the trial only
proceeded on the question of liability.
FACTS COMMON CAUSE
[4] During his opening address, Mr De
Waal SC who appeared with Ms Ferguson on behalf of the plaintiff,
listed the following facts
as being common cause between the parties:
i.
the collision
occurred on 8 July 2011 at approximately 23:50 at a traffic light
controlled intersection at Bremmer Street and the
RSO Highway in
Hercules, Pretoria;
ii.
Legodi was the
driver of a Polo motor vehicle and the insured driver, a police
officer, was the driver of a Golf motor vehicle
("the insured
vehicle");
iii.
the collision
occurred to the far left of the lane of travel of the insured
vehicle;
iv.
Legodi was
executing a right hand turn when the collision occurred.
[5] Mr De Waal SC referred to various
photos depicting the scene of the collision and the damage to the
motor vehicles. The photos
and sketch plan thereto is also common
cause between the parties. Bremmer road is dual carriageway with a
grass section dividing
the two sections. The damage to the Golf is at
its right front side and that of the Polo at its left front side.
[6] Both parties obtained reports from
motor vehicle collision reconstruction experts. The experts, Dr
Lemmer on behalf of the defendant
and Mr Grobbelaar on behalf of the
plaintiff, compiled joint minutes, which minutes record the
following:
"1. The experts are in
agreement that the damage to the vehicles and their positions of rest
are consistent with the Golf having
travelled in an essentially
southerly direction prior to collision and the Polo having initially
travelled in
a
northerly direction and turned in an easterly
direction across the path of travel of the Golf.
2. The experts agree that there was
essentially unrestricted visibility for both of the drivers to have
seen the other vehicle and/or
its headlights approaching,
as
the
road was essentially straight and flat on approach to the accident
scene.
3.
3.
1 The experts agree that the
speed of the Golf at collision was probably between 90 km/h and 100
km/h and that the Golf was therefore
travelling considerably faster
that the speed limit of 60 km/h.
3.2 They agree that any braking or
slowing down by the Golf driver prior to collision implies that the
Golf was probably travelling
at
a
higher speed than this prior
to braking or slowing down.
4.
4.1
The experts agree that
they are not in
a
position to establish, independently, what
the colour of the traffic lights were for either of the vehicles at
the time of the accident.
4.2
They are however in
agreement that, considering the traffic light sequence, there was
a
50% probability that there was
a
flashing green right tum
arrow for the Polo allowing it to tum right, and
a
red light
for the Golf.
5.
5.
1 The experts agree that,
depending on the circumstances (i.e. the colour of the traffic
lights), the Polo turning to its right
across that lane of the Golf
may be considered
a
dangerous manoeuvre.
5.
2 They however also agree that,
depending on the circumstances, when considering the speed of the
Golf on approach to the accident
scene
as
agreed in paragraph
3 above, the driver of the Polo may have misjudged the approach speed
of the Golf and attempted to cross the
intersection prior to the Golf
reaching it."
PLAINTIFF'S CASE
[7] The plaintiff relied on various
instances of negligent conduct by the insured driver, to wit:
"5.
1.1
He failed to
keep
a
proper lookout;
5.1.2
He failed to take any,
alternatively sufficient, cognisance of the presence, the actions and
the visibility intended and/or probable
further actions of Mr Legodi;
5.1.3
He travelled at
a
speed which was excessive in the circumstances;
5.1.4
He failed to apply the
brakes of the insured vehicle timeously and/or sufficiently and/or at
all;
5.1.5
He failed to avoid the
collision when, by taking reasonable and proper care (including, but
not limited to, travelling more slowly,
sweNing, remaining on his
correct side of the road) he both could and should have done
so;
5.1.6
He failed to maintain
any, alternatively sufficient, control over the insured vehicle."
[8] The plaintiff, due to the injuries
he sustained in the collision, has no recollection of the incident
and did not testify.
[9] Mr de Waal SC submitted that the
common cause facts as well as the joint minutes of the experts
provide
prima facie
proof, on a balance of probabilities, that
the insured driver's negligence caused the collision. Consequently,
he closed the case
for the plaintiff at the end of his opening
address.
ABSOLUTION
[10] Mr Mathika, counsel for the
defendant, thereupon applied for absolution from the instance.
[11] Having heard counsel for both the
plaintiff and defendant, I dismissed the application and gave a short
ex
tempore
judgment in this regard.
DEFENDANT'S CASE
[12] In its plea, the defendant denied
that the insured driver was negligent and pleaded in the alternative
and in the event that
the court should find that he had been
negligent, that he was confronted with a situation of sudden
emergency, which negates any
negligence on his part.
[13] Two further pleas were raised in
the alternative. Firstly, that the plaintiff s sole negligence was
the cause of the collision.
In this regard, the defendant relied on
the following grounds of negligence:
"3.3.1
He failed to
keep
a
proper lookout;
3.3.2
He drove the motor
vehicle at an excessive speed under the circumstances;
3.3.3
He failed to keep the
motor vehicle under proper control;
3.3.4
He failed to take due
regard to the safety of other road users in particular the insured
driver;
3.3.5
He failed to apply the
brakes of the motor vehicle timeously
alternatively,
adequately,
further alternatively,
at
all;
3.3.6
He failed to avoid the
collision when, by the
exercise
of reasonable care, he could
and should have done
so;
3.3.
7
He unnecessary
interfered with the insured driver's lawful driving;
3.3.8
He
drove into the path
of the insured driver when it was unsafe to do
so."
[14] Secondly, that both the plaintiff
and insured driver were negligent and that any claim the plaintiff
may have should be reduced
in accordance with the provisions of the
Apportionment of Damages Act 34 of 1956.
[15] In support of the averments
supra,
the defendant tendered the evidence of the insured
driver Mr Magoro ("Magoro"). Magoro testified that, on the
night in
question, he was on duty and was travelling with two
colleagues in the Golf motor vehicle. He was travelling in the far
left lane
and upon arriving at the R 80 and Bremmer road
intersection, the robot was green. He proceeded into the intersection
and
"there appeared this vehicle driving on Bremmer road to
tum left into the R 80.
" According to his evidence the
collision occurred in the middle of the intersection.
[16] He was travelling at a speed of
between 50 - 60 km/h and swerved to his left to avoid the collision.
His vehicle was hit on
the right hand side door.
[17] During cross examination it
emerged that Magoro was driving an unmarked police vehicle which was
not equipped with flashing
blue lights or flashing head lights. The
vehicle was equipped with a siren, but the siren was not activated
because, according
to Magoro, there was no reason to do so.
[18] He testified that he was not in a
hurry. Magoro was referred to a statement he made, shortly after the
accident, on 1 July
2011. In the statement, Magoro stated that he was
on his way to a suspect's house when a call was received
"for
a
back up for
a
certain Black Audi that is possibly
used at the ATM bombing."
He further stated that
"At
the robot of Bremmer Street off ramping to
Mabopane Highway
a
certain vehicle unexpectedly turned right and collided
with
the right at the robot. I was driving
+
60
-
70 km per
hour."
[19] Much was made during cross
examination of the difference in speed between Magoro's testimony in
court and his version in his
statement. He testified that, although
he was called for back-up, he drove slowly to keep a look-out for the
Audi and other vehicles.
He noticed the Polo for the first time when
it entered the intersection. At that stage he was under the
impression that the Polo
would stop. It was only when he was a few
metres away that he realised that the Polo is proceeding through the
intersection. This
version does not correspond with his evidence in
chief that he was already entering the intersection when he first
observed the
Polo nor does it correspond with the contents of his
statement, wherein he stated that he only observed the Polo when it
unexpectedly
turned in front of him.
[20] Magoro was referred to the photos
depicting the damage to the Golf vehicle. It was put to him that the
photos do not depict
damage to the right hand side door of the Golf,
but to the right front of the vehicle. Magoro answered that the
accident happened
fast and that it felt to him that the impact was on
the right hand side door of the Golf.
[21] Brake marks in the direction that
he was travelling, which marks lead to the point of impact, were also
pointed out to him.
Although Magoro testified that he did not brake
prior to the collision, he agreed that the brake marks could have
been caused by
the Golf. The significance of this admission is the
fact that the experts agreed that any braking by the Golf prior to
the collision
implies that the Golf was travelling at a higher speed
than 90 km/h - 100km/h.
[22] Magoro testified that the Polo
did not travel fast prior to the collision and agreed that the Polo
almost cleared the intersection
before the accident occurred. Asked
why the impact was so severe if both the Polo and Golf were
travelling at low speed, he could
not give a satisfactory
explanation.
[23] Magoro was visibly uncomfortable
during cross examination and when faced with an obvious contradiction
in his version and/or
an improbability, he hung his head, whilst
answering.
[24] The defendant did not call any
further witnesses and Magoro's evidence concluded the case on behalf
of the plaintiff.
DISCUSSION
[25] I agree with Mr de Waal SC, that
the evidence establishes the fact that Magoro was driving at an
excessive speed. I am, furthermore
of the view that Magoro did not
keep a proper look-out. If he was driving at approximately 60 km/h
and if he was keeping a proper
look-out, he would have seen the Polo
earlier and could have taken steps to avoid the collision. The
severity of the impact and
the point of impact support the conclusion
that he drove at an excessive speed and did not keep a proper
look-out.
[26] The question of contributory
negligence then arises. Magoro testified that the traffic light was
green in his favour. Although
Mr de Waal SC, urged me to reject the
evidence of Magoro as being false alternatively unreliable, I do not
deem the contradictions
or discrepancies in his evidence to be fatal
to the remainder of his evidence.
[27] Bearing in mind that the
collision occurred some 5 years ago, discrepancies in his version are
to be expected. What is, however,
clear form his evidence and more
specifically the manner in which he answered certain questions, is
the fact that he refused to
admit that he drove at an excessive
speed. He endeavoured to create the impression that, even though he
is responding to a
"back-up"
call, he was
maintaining the permitted speed limit. This version, as alluded to
earlier, is both improbable and does not accord
with the common cause
facts.
[28] If the traffic light was in
Magoro's favour, the next question is whether Legodi was negligent in
executing a right hand turn
at an inopportune moment. Mr de Waal SC
submitted that although a right hand turn across the lane of travel
of an oncoming vehicle
is generally speaking a dangerous manoeuvre,
the facts of each matter should be judged independently.
[29] In the circumstances under
consideration, Mr de Waal SC submitted that Legodi was not negligent
in executing the right hand
turn at the moment he did. In support for
this submission, he relied on paragraph 5.2 of the joint minutes of
the experts, referred
to
supra,
which indicates that Legodi
might have misjudged the approach speed of the Golf.
[30] This approach found favour with
the Supreme Court of Appeal in
De Maayer v Serebro and Another;
Serebro v Road Accident Fund and Another
2005 (5) SA 588
SCA at
para [13
"[13] Turning across the line
of oncoming traffic is an inherently dangerous manoeuvre and
a
driver intending such manoeuvre must do so by properly satisfying
himself that it is not only safe but opportune to do so (see AA
Mutual Insurance Association Ltd v Nomeka
1976 (3) SA
45
(A)
at 52E-G). This rule, however, does not create
a
general
presumption of negligence, since each case has to be considered on
its own special facts and circumstances. It does not confer on
a
through-driver an absolute right of way (see Milton v Vacuum Oil
Co
of SA Ltd
1932 AD 197
at 205). A through-driver has to be
vigilant and in appropriate circumstances reduce his speed to
accommodate
a
driver who turns across his path of travel.
"
[31] As stated
supra,
it is
trite that the onus to prove contributory negligence rests on the
defendant. In order to succeed in its claim, the defendant
has to
establish on a balance of probabilities that a
diligence
paterfamilias
in the position of the plaintiff would have
foreseen the reasonable possibility of his conduct injuring another
person causing him
patrimonial loss and would have taken reasonable
steps to avoid such event from occurring. [See
Kruger v Coetzee
1966 (2) SA 428
AG at 430E-F].
[32] Given the fact that the Polo
almost cleared the intersection prior to the collision coupled with
the high speed the Golf was
travelling, I am of the view that Legodi
could not have foreseen that a reasonably possibility exists that the
execution of a right
hand turn, in the circumstances, could result in
a collision.
[33] Consequently, the defendant did
not succeed in proving, on a balance of probabilities, any negligence
on the part of the plaintiff.
CONCLUSION
[34] In the premises, the plaintiff's
claim on liability must succeed.
ORDER:
I grant the following order:
1. The Defendant is liable for the
plaintiff's agreed or proven damages.
2. The Defendant is ordered to pay the
costs of suit.
N JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
APPEARANCES
Counsel for the Applicant:
Advocate De Waal SC
Advocate Ferguson
Instructed
by:
Adams & Adams
Counsel for the
Defendant:
Advocate Mathika
Instructed by:
Tau Phalane Inc.