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[2016] ZAGPPHC 1064
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S.T.K v Road Accident Fund (3688/2015) [2016] ZAGPPHC 1064 (15 December 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No.: 3688/2015
15/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
S
T
K
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGEMENT
MNGQIBISA-THUSI,
J
[1]
The plaintiff, S T K, has instituted an action against the defendant,
the Road Accident Fund ("RAF") for damages as
a result of
injuries sustained in a motor vehicle collision which occurred on 13
January 2014. At the time of the collision the
plaintiff was a
pedestrian. The motor vehicle which collided with them for
registration number eight HGH was driven by Amelia Ndlovu,
the
insured driver. The collision occurred along the Mganduzweni Road,
between Hazyview and White River, Mpumalanga.
[2]
In its plea the RAF denied that the insured driver negligently caused
the collision in which he plaintiff was injured. Further,
the RAF
pleads that when the collision happened, the insured driver was faced
with a situation of sudden emergency and therefore
cannot be held to
have been negligent. Furthermore, the RAF pleaded that the plaintiff
also contributed to the loss he has suffered
in that he was also
negligent.
[3]
The following facts are common cause:
3.1 the collision
occurred on 13 January 2014;
3.2 at the time of the
collision the plaintiff was 21 years old and is currently23 years
old;
3.3 the point of impact
occurred outside the road;
3.4 the road along which
the collision occurred has to lanes, with one lane in each direction.
3.5
the road was dry and visibility was clear at the time the collision
happened.
[4]
As a result of the collision, the plaintiff sustained the following
injuries:
4.1 fracture of the left
tibia and fibula with an above knee amputation;
4.2 right tibia and
fibula fracture;
4.3 scarring and
disfigurement; and
4.4 psychological
problems.
[5]
The issue of loss of earning capacity is provisionally agreed upon at
an amount of R1 519 880.05.
[6]
The issues to be decided are:
6.1. whether the insured
driver was negligent, if he was, whether the plaintiff contributed
through his own negligence; and
6.2. general damages.
[7]
The plaintiff has served and filed the medico-legal reports of the
following experts:
7.1 Dr CW Goosen
(Orthopaedic surgeon);
7.2 Dr L Hyson (Clinical
psychologist);
7.3 Dr N J Mogoro
(Independent medical assessor);
7.4 Ms L Mashishi
(occupational therapist);
7.5 Dr M Mathabela
(industrial psychologist);
7.6 GRS Actuarial
Consulting (actuary).
[8]
The RAF has served and filed the medico-legal reports of the
following experts:
8.1 Dr TO Marley
(independent medical practitioner);
8.2 Dr P Briets
(industrial psychologist);
8.3 Alexander Forbes
actuary; and
8.4 Dr J Masango
(occupational therapist).
[9]
The RAF's amended plea was allowed by agreement.
[10]
The plaintiff's evidence is as follows. He is 22 years old currently
registered for a bridging course in information technology
and lives
at Umgaduzweni, Nelspruit. On the afternoon of 13 January 2014, he
together with his friend, Mr Thulani Gumbi ("Mr
Gumbi"),
were coming from Nkanini, facing oncoming traffic, from White River
to Hazyview. As they were walking on the side
of the road, they saw a
car whose driver appeared to have lost its control coming along the
road and travelling in the opposite
direction to which they were
facing. They tried to run away. In the process the car came towards
them and ended up hitting them.
As a result of the injuries he
sustained, he was taken to the Themba hospital by ambulance where he
was hospitalised for approximately
two weeks. The plaintiff estimated
the distance between the road and the point of impact is about 10
paces. He testified that there
was no other car except the car which
hit them.
[11]
During cross-examination the plaintiff testified that on the day in
question he did not drink any alcohol. He estimated the
time at which
they went to his friend's uncle's home was around 11h00 and that they
could have left the uncle's home at around
15h00.
[12]
The plaintiff was referred to a sketch plan of the area where the
collision occurred which was discovered by the plaintiff
and was
drawn by the insured driver. The sketch plan is found on page 19 of
the merits bundle. However, during cross-examination
it was apparent
that the plaintiff was not familiar with the sketch plan as drawn. As
a result the plaintiff drew a new sketch
plan of the area where the
accident as he understood it.
[13]
The sketch plan drawn by the plaintiff indicated the following
points: the place where the plaintiff caught sight of insured
driver,
marked as 'A'; Nkanini, where the plaintiff and his friend were
coming from, marked as 'B'; the area where the plaintiff
and his
friend were walking, marked as 'C'; the direction in which the
plaintiff ran to as the insured driver's motor vehicle approached
them, marked as 'D'; and the estimated point of impact marked as 'E'.
[14]
Further during cross-examination testified that they walked on the
opposite side of the road opposite to Nkanini. Initially
the
plaintiff could not remember at what stage they had crossed the road
to the other side of the road. However, the plaintiff
testified that
they had crossed the road to the other side way back along the road.
[15]
The plaintiff called Mr Gumbi to testify. His evidence is that
on 13 January 2014 at around 15h30, he together with the
plaintiff
were walking next to the main road, the R538, facing oncoming
traffic. As he was busy chatting on his cell phone, he
heard the
plaintiff warning him to be on the look-out as there was a motor
vehicle coming from the opposite direction which appeared
to have
lost control. He and the plaintiff tried to run away in order to
avoid being hit by this vehicle, unfortunately vehicle
hit them both
and they were taken to the Themba hospital.
[16]
After the evidence of Mr Gumbi, the plaintiff closed its case.
[17]
The insured driver, Ms Ndlovu, testified in her evidence was as
follows. On the day of the accident she was coming from work
and
going home and travelling at about 60 km/h, travelling from Hazyview
in the direction of white River, when she saw two African
males
running across the road. At the same time there was another vehicle,
a VW Golf, which was overtaking her at high speed. Further
at the
same time as the Golf was overtaking her, another vehicle was coming
from the opposite direction. As she tried to avoid
the Golf, she
swerved to the left and collided with a rock which flew into the air
and hit her windscreen before rolling to the
ground and hitting the
plaintiffs left leg.
[18]
Cross-examination Mr global considered that her evidence as to the
area where the incident occurred differs from the sketch
plan drawn
by the plaintiff. In her evidence Mr global head testified to 3 cars
having been in the area of the accident when the
accident occurred.
However the sketch plan only indicates one vehicle in the vehicle
which was driven by the single. Furthermore
during cross-examination
Mr global was confronted with a statement she made to the police in
which she did not mention either the
golf or the car which came from
the opposite direction no the which heat is used screen in the
plaintiff's left leg. Furthermore
Ms Ndlovu was confronted with the
accident report which was admitted at an agreement during the
pre-trial conference in which it
is confirmed that a windscreen was
not damaged.
[19]
In argument it was submitted on behalf of the plaintiff that the
plaintiff and Mr Gumbi's evidence was consistent and there
were no
contradictions and that the court should accept their evidence as
credible and truthful. It was further submitted on behalf
of the
plaintiff that the plaintiffs version as to where the accident
happened, that is, outside the road, was confirmed by the
RAF's
assessor, Kay Gee Investigations and Security. On the other
hand it was argued on behalf of the RAF that the collision
was solely
through the negligence of the plaintiff and Mr Gumbi running across
the road which put the insured driver in a sudden
emergency
situation. Further that the plaintiff's evidence was contradictory
and inconsistent particularly with regard to where
he claims they
crossed the road. It was also submitted that Mr Gumbi's evidence
should be rejected as he was not an independent
witness. In the
alternative it was argued that even if it is found that the insured
driver was negligent, the court must also make
a finding that the
plaintiff was also negligent and therefore contributed 50% towards
the negligence which caused the collision.
[20]
It is not in dispute that the plaintiff bears the onus of proving on
a balance of probabilities that the injuries he sustained
are as a
result of the negligence of the insured driver.
[21]
In
National
Employers' General Insurance
Co
Ltd v
Jagers
[1]
the court stated that:
"... that in any
civil case, as in any criminal case, the onus can ordinarily 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 rest on the plaintiff as in the present case, and where there
are two mutually destructive
stories, he can only succeed if he
satisfies 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 plaintiff's
allegations 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
probabilities favour the plaintiff, 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
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."
[22]
The plaintiff's version is that he and Mr Gumbi were walking on the
side of the road in the direction of White River when the
insured
driver who was travelling in the opposite direction towards Hazyview
and at high speed and who appeared to have lost control
of her car
hurtled towards them and hit them, resulting in the plaintiff's left
leg being severed after he was hit by the insured
vehicle. The
plaintiff and Mr Gumbi denied that they were hit whilst crossing the
road. Further, the plaintiff and Mr Gumbi denied
the presence of any
other vehicle other than that of the insured driver.
[23]
The RAF's version, as testified to by Ms Ndlovu is that a City Golf
had undertook he at high speed and at the time it overtook
her
another vehicle was coming from the opposite direction, and in an
attempt to avoid the City Golf, her car left the road, hit
a rock
which hit his windscreen and rolled over to hit the plaintiff.
[24]
The plaintiff and Mr Gumbi came across as credible witnesses when
they testified about the events leading to the insured vehicle
colliding with them and their evidence is accepted as being true. The
plaintiff's evidence as to how the collision occurred was
corroborated by the evidence of Mr Gumbi and no material
contradictions could be found even under cross examination.
[25]
I was not impressed with Ms Ndlovu's evidence which Ifound not to be
plausible as to how the collision happened. On the one
hand Ms Ndlovu
alleges that the plaintiff and Mr Gumbi were crossing the road at a
place they were not supposed to cross and without
looking if it was
safe to do so when she hit them. It is common cause that the point of
impact was outside the road. This is inconsistent
with her evidence
of a City Golf overtaking her at high speed and her veering to the
left and hitting a rock. If the plaintiff
and Mr Gumbi were in her
line of travel, she would have hit them on the road and the alleged
City Golf which was travelling at
high speed, including the other
alleged vehicle which was coming from the opposite direction would
have hit the plaintiff and Mr
Gumbi if they were crossing the road at
the time Ms Ndlovu was travelling at the same place. Her
version of how the
collision happened is not probable.
[26]
I am of the view that the insured driver must have seen the plaintiff
and his friend from a distance as it is common cause
that on the
relevant the weather was clear and visibility was good. Even if there
was another vehicle overtaking the insured driver
from the right, the
insured driver should not veered to the left of the road onto the
shoulder of the road particularly as she
was aware of pedestrian
walking along the side of the road.
[27]
The fact that the point of impact was not on the road but outside,
establishes prima facie inference of negligence. I am satisfied
that
the plaintiff has proven that the insured driver was solely negligent
in causing the accident.
[28]
With regard to the RAF's defence of sudden emergency I am not
convinced that the RAF has laid any basis to its defence of sudden
emergency. In Neethling and Potgieter's
Law
of Delict
[2]
,
the
following requirements have to be met in order to prove sudden
emergency:
28.1. "The wrongdoer
must have faced a situation of imminent peril;
28.2. The wrongdoer must
not have caused the perilous situation by his own negligence or
imprudence; and
28.3. The wrongdoer must
not have acted in a grossly unreasonable manner.
[29]
I am of the view that the insured driver has presented any credible
evidence that she was faced with imminent peril. In fact,
taking into
account all the fats in this case, the insured driver caused the
dangerous situation in that she must have been driving
at a speed in
excess of her alleged 60 km per hour speed, thereby losing control of
her vehicle and veering to the shoulder of
the road.
[30]
I am satisfied that the plaintiff's version as to the events leading
to the insured vehicle colliding with them is more probable
and I
accept it and reject the defendant's version as highly improbable.
Further, I am satisfied that the plaintiff has discharged
the burden
of proving his claim against the defendant on a balance of
probabilities.
[31]
I am not convinced that the plaintiff was also negligent when one
takes into account the evidence of the plaintiff and his
witness that
they saw the insured driver travelling at high speed and appearing to
have lost control of her vehicle, and that they
had tried to run away
in order to get out of the path of the insured driver's path.
[32]
With regard to the amount too be awarded for general damages, the
plaintiff is seeking an amount of R2 200 000.00 whereas it
was
submitted on behalf of the RAF that an amount of R900 000.00 would be
an appropriate award as general damages.
[33]
Both parties made reference to unreported judgments which were not
made available to this court. However, the decisions referred
to in
the parties' heads of argument have been considered.
[34]
The plaintiff is 23 years old. As a result of the collision, the
plaintiff’s left foot was amputated just above the knee
and has
lost his ambulatory capacity in that for the rest of his life he is
going to have a prosthesis inserted in order to assist
him in
walking. According to the reports of the plaintiff s clinical
psychologist and independent medical assessor, the plaintiff
feels
ashamed of his amputated leg and has low self-esteem. He is sometimes
angry and unhappy, has become social isolated and appears
to be
suffering from symptoms of depressive mood. According to the clinical
psychologist, the loss of a limb has affected the plaintiff
psychologically and has negatively impacted on his quality of life,
particularly when one takes into account his age.
[35]
I am therefore satisfied that as a result of the injuries the
plaintiff sustained and his permanent disability as a result
of the
collision, he has suffered loss of amenities of life and should be
accordingly compensated.
[36]
Accordingly the following order is made:
1. The defendant is found
to have negligently caused the collision which occurred on 13 January
2014.
2. The defendant to pay
the plaintiff the amount of R1 519 880.05 for loss of earnings.
3. The defendant to pay
the plaintiff the amount of R1 200 000.00 as general damages.
4. The defendant is
liable to pay interest on the amount mentioned of R2 719 880.00 at
the rate of 15.5% per annum calculated from
11 March 2011.
5. The defendant is
directed to furnish the plaintiff with an undertaking in terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
.
6. The defendant is
ordered to pay the costs of suit, such costs to include the costs of
all experts as well as qualifying experts,
if any.
______________________
NP MNGQIBISA-THUSI
Judge
of the High Court
Appearances
For
Plaintiff: Adv F Matika
Instructed
by: TMN Kgomo & Associates
For
Respondent: Adv ZF Kriel
Instructed
by: Mkhonto & Ngwenya Inc
[1]
1984(4) SA 437 (E) at 4400 -G.
[2]
7 edition (2014).