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[2016] ZAGPPHC 1121
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Pienaar v Road Accident Fund (14962/2016) [2016] ZAGPPHC 1121 (6 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
Case
number: 14962/2016
Date:
6/12/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
RUAN
PIENAAR PLAINTIFF
Versus
ROAD
ACCIDENT
FUND RESPONDENT
JUDGMENT
TOLMAY.
J:
1.
This action for damages for personal injuries against the Road
Accident Fund ("the RAF") stems from an accident which
occurred at approximately 06:00 on 20 July 2014 when the Polo vehicle
which the plaintiff drove ("the Polo") collided
from the
rear with the single cab LDV vehicle ("the bakkie") driven
by the insured driver on the N12 freeway in the vicinity
of the
Rondebult Road bridge.
2.
The parties agreed that merits and quantum be separated and it was so
ordered.
3.
The issue of liability is the only issue for adjudication. This
involves
3.1.
the issue of the alleged negligence of the insured driver; and
3.2.
the issue of the alleged contributory negligence of the plaintiff.
4.
The plaintiff’s version was in essence that he was driving
towards Johannesburg in the third lane from the left of four
lanes
carrying westbound traffic on the N12. It was dry and the road
surface was tarred. It was still dark and there was no artificial
illumination of the road by street lights. The Polo's headlights were
switched on, but were dimmed due to traffic from the opposite
direction. He was driving at approximately 120 km/h, which is the
legal speed limit on that section of the N12. He was on his way
to
fetch his brother to play cricket later that morning.
5.
Plaintiff intended to change lanes to move to the fourth lane and had
looked in his right side mirror and rear-view mirror, and
had checked
"his blind spot". The next moment as he looked to the front
again, he became aware of an object in front
of him. He applied the
brakes of the Polo and attempted to swerve to the left, but he
collided with the bakkie. His impression
was that it was either
stationary or moving very slowly prior to impact. The bakkie ended up
on the right hand side against the
concrete divider dividing the
eastbound and westbound traffic on the N12. The Polo came to a
standstill, partly on the grass verge
and partly on the concrete
culvert on the far left of the westbound lanes of the N12.
6.
Although the Plaintiff sustained injuries, he climbed out of the Polo
after the collision and spoke to the insured driver who
initially
swore at him. There were other passengers in the insured vehicle. He
was adamant that the dark blue bakkie's tail lights
were not working
at the time of the accident.
7.
The Plaintiff was unable to furnish exact distances and time periods
canvassed with him during cross-examination. He estimated
the
distance which his headlights were able to illuminate the road as
being in the region of 45 meters. He estimated with reservation
and
caution that he was between 15 and 20 meters from the bakkie when he
saw it for the first time. He was adamant that he simply
had
insufficient time, after noticing the bakkie for the first time, to
avoid the accident. He described the time lapse between
first
noticing the bakkie and impact as "split seconds". He
confirmed that the photographs of the Polo after the
accident
depicted the damage sustained during and as a result of the
collision.
8.
The plaintiff’s version pertaining to the speed he was
travelling at and the fact that the Polo's headlights were on dim
and
his attempted action to avoid the collision, was uncontested.
9.
Mr Grobbelaar, an accident reconstruction specialist testified that
it would have been impossible for the plaintiff to have seen
an unlit
bakkie timeously if he was traveling at 120 km/h with the Polo's
headlights switched on dim and if it was dark. Given
that it was dark
he opined that a reasonable normal reaction time allowed would have
been in the order of 2 seconds. Even if that
is reduced to the usual
daytime reaction time of 1 to 1.5 seconds, it would have been
impossible for the plaintiff to have avoided
the accident at the
speed at which he was traveling given that he covered 33 m/s at that
speed. It would have required 148 meters
to have brought the Polo to
a standstill. He was unable to contribute to a calculation of the
speed of the Polo at the time of
collision due to a paucity of
information.
10.
He confirmed that the speed differential between a vehicle in the
position of the Polo and the bakkie if the latter travelled
at 100
km/h would have been 4-5 m/s (33m/s minus 28 m/s). If the latter
travelled at 80 km/h it would have been in the order of
11m/s
(33.3m/s minus 22.2 m/s).
11.
The defendant adduced the evidence of the insured driver, Mr Michael
Khumalo. He testified that he was traveling in the bakkie
at 80 to
100 km/h in the first lane from the left of the N12 when he suddenly
felt an impact from the rear. The bakkie's rear was
lifted up and
pushed to the right side of the road into the concrete divider where
it came to rest after the accident facing in
the direction from where
he came. The Polo came to rest on the "island" to the left
of the westbound lanes of the N12.
During the cross-examination of
the plaintiff the opposite was put to the plaintiff by defendant's
counsel, but it may be due to
a misunderstanding and I will not draw
any negative inference from it. The variance between Mr Khumalo's
evidence and what was
put in cross-examination was not relied on by
Mr De Waal SC as reflecting negatively on Mr Khumalo's credibility.
12.
Mr Khumalo testified that the street lights were on and illuminated
the road enabling a clear unobstructed view to the front
or rear in
the order of 100 to 200 meters. He did not see the Polo at all prior
to impact. Immediately prior to impact there was
one other vehicle in
the lane to his right (i.e. the second lane from the left). He said
that even if he had looked in his rear
view mirror and saw that a
collision was imminent, he would not have been able to swerve either
left or right due to the concrete
culvert on his left and the other
car to his right. The headlights of the bakkie were in working order.
13.
Mr Khumalo confirmed having made and signed the statement he made to
the assessor of the defendant the day before trial, 22
November 2016.
Although he didn't read the statement prior to signing it, everything
recorded in it was correct, save for one single
sentence which was in
conflict with his evidence in court that the plaintiff in fact
answered him during the discussion they had.
His statement records
that the plaintiff did not answer him at all. This variance only
became apparent when the plaintiff introduced
the undiscovered
assessor's report of the defendant. Mr Khumalo was unable to explain
why he did not point out to the assessor
that he was traveling at 80
to 100 km/h (as opposed to the 100 km/h recorded in the statement) or
why he did not point out in cross
examination when he was given the
opportunity to do so, that the statement was also not entirely in
accordance with what he had
told the assessor in this regard.
14.
The essence of Mr Khumalo's version is that he was traveling slightly
below the speed limit on the far left of the N12 whilst
being clearly
visible to any approaching traffic when the collision occurred.
15.
In this instance the Court is faced with two mutually destructive
versions.
16.
The approach to evidence where the court is faced with mutually
destructive versions is trite. If the court is satisfied that
the
preponderance of probability favours the party upon whom the
onus
rests, that is the end of
the enquiry. If not, there is no such preponderance and such a party
has not discharged the
onus
and must fail because there
is no proof of anything unless the court is satisfied that it
believes the one party and disbelieves
the other. The probabilities
are first considered to indicate where the probable truth lies and
only if there is no balance of
probability, may the court consider
the relative credibility of the witnesses.
[1]
17.
The following facts are either undisputed or common cause:
17.1.
The plaintiff was traveling at approximately 120 km/h in the same
direction on the N12 as the insured driver with his headlights
switched to dim;
17.2.
The plaintiff collided with the insured vehicle from the rear;
17.3.
The plaintiff’s vehicle ended up to the left off the N12 and
the insured vehicle to the right against the dividing concrete
barrier;
17.4.
The plaintiff and the insured driver had a brief conversation.
18.
The following material facts or issues are in dispute at the
conclusion of all the evidence:
18.1.
Whether the insured driver was traveling in the 3rd lane from the
left (plaintiffs version) or whether he was traveling in
the far left
hand lane (defendant's version);
18.2.
Whether the insured vehicle was stationary or moving very slowly
(plaintiffs version) or whether it was traveling at a speed
slightly
below the speed limit (80 to 100 km/h-defendant's version);
18.3.
Whether the area where the collision occurred was unlit (plaintiffs
version) or whether the freeway lights were working and
provided good
visibility (defendant's version).
19.
On the plaintiff’s version and the evidence of Mr Grobbelaar,
the insured driver is entirely to blame for the accident
and there is
no room for any finding of negligence on the part of the plaintiff.
20.
On the defendant's version the insured driver, despite not keeping a
proper lookout in his rear view mirror by his own admission,
was
entirely blameless and the plaintiff is entirely to blame for the
accident.
21.
If the court is able to make a finding that one version is more
probable than the other that is the end of the matter and findings
on
credibility or reliability becomes irrelevant.
22.
It was argued by the plaintiff that:
(a)
the preponderance of probability favours the plaintiff and that he
has discharged his onus of proving that the insured
driver was
negligent.
(b)
there is no room for any finding of contributory negligence and,
accordingly, any apportionment, against the plaintiff.
23.
The plaintiff's counsel argued that the plaintiff's version is
plausible and entirely in keeping with normal human experience
with a
good explanation why the accident occurred. He was traveling at a
much higher speed relative to the insured vehicle. His
vision was
impaired due to the darkness, the inherent limitation of illumination
provided by the Polo's headlights on dim and the
unlit rear of the
insured vehicle. He was approaching the insured vehicle at a speed,
although within the legal limit and not unreasonable
in the
circumstances, which made it impossible for him to have avoided the
collision given the limitation of normal human reaction
and ability.
24.
After considering the evidence I am of the view that the insured
driver's version is highly unlikely, while Plaintiff's version
is
plausible and in keeping with normal human experience.
25.
The insured driver's version is improbable because:
25.1.
There was no reason why the plaintiff would have travelled in the far
left lane at a speed of 120 kmph. It is far more likely,
given the
lack of other traffic, that he would have travelled in the lanes to
the right and given the fact that slower traffic
are usually found to
the far left;
25.2.
It is unlikely that the collision would have occurred on Defendant's
version because:
25.2.1.The
insured vehicle was perfectly visible for a few hundred meters and
traveling at marginally below the speed limit;
25.2.2.If
the plaintiff was traveling at 120 km/h (which is uncontested) a
slight push of the brake pedal would have reduced the
speed of the
Polo to within the speed of the insured vehicle resulting in easy
avoidance of the accident;
25.2.3.There
is no apparent explanation and none was suggested in
cross-examination of the plaintiff, why the plaintiff would not
have
seen the insured vehicle and would have driven straight into the rear
of it when it was clearly visible and not moving unreasonably
slowly;
25.2.4.There
is no apparent reason why the insured vehicle did not collide with
the vehicle to its right, seeing that it was in
such a position so as
to have prevented Mr Khumalo from moving to his right hand side.
26.
I agree with the plaintiff's submissions that the Defendant's version
is improbable. It is highly unlikely that the plaintiff
would have
collided with the Defendant if I accept
the insured driver's version. Consequently find
that the Plaintiff's
version is more probable.
27.
It was clearly negligent for the insured driver to have been
stationary or driving very slowly in the 3rd lane from the left
of
the N12, a national road where fast moving traffic is found and
foreseeable;
28.
I found that the plaintiff was not in any way negligent and
consequently the plaintiff discharged his onus to prove the
defendant's
liability based on the negligence of the insured driver.
29.
Consequently the plaintiff is entitled to 100% of his proven or
agreed damages flowing from the injuries sustained in or as
a result
of the accident which occurred on 20 July 2014.
COSTS
30.
Counsel for the defendant argued that costs for senior counsel should
not be awarded as it is a relatively simple matter. It
is trite that
a Court has a discretion as far as costs are concerned. In this
matter, even if the facts turned out to be quite
simple during the
trial, the merits were contested and based on two mutually
destructive versions which complicated the matter.
Furthermore the
amount claimed is in excess of R5 000 000-00. Lastly it is a party's
prerogative to brief the counsel of his choice.
Consequently I am of
the view that costs of senior counsel should be allowed.
31.
Consequently I make the following order:
31.1.
Plaintiff is entitled to 100% of his proven or agreed damages flowing
form the injuries sustained in or as a result of the
accident which
occurred on 20 July 2014; and
31.2.
Defendant is ordered to pay Plaintiff's costs, including costs of
senior counsel and costs of heads of argument.
______________________
R
G TOLMAY
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 23 NOVEMBER 2016
DATE
OF JUDGMENT: 6 DECEMBER 2016
ATTORNEY
FOR PLAINITFF: ADAMS & ADAMS
ADVOCATE
FOR PLAINITFF: ADV W P DE WAAL (SC)
ATTORNEY
FOR DEFENDANT: TAU PHALANE INC
ADVOCATE
FOR DEFENDANT: ADV U B MAKOLA
[1]
See National Employers Mutual General Insurance Association v Gany
1931 AD 187
; Koster Ko-operatiewe LandboumaatskaPPv Bok v Suid
-Afrikaanse Spoorwee en Hawens
1974 4 SA 420
W at 425; African Eagle
Life Assurance Co Ltd v Gainer
1980 2 SA 234
WLD at 237B-238A;
National Employers' General Insurance Co Ltd v Jagers
1984 4 SA 432
ECD at 4400- 441A.