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[2015] ZAGPPHC 7
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Williams v Road Accident Fund (7989/12) [2015] ZAGPPHC 7 (23 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NUMBER:
7989/12
DATE: 23 JANUARY
2015
In the matter
between:
KELLY JOHNSON
WILLIAMS
.............................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
....................................................................................
DEFENDANT
JUDGMENT
MOSEAMO, AJ
[1] This is an
action for damages brought by the plaintiff following injuries he
sustained as a result of a collision that took
place on the 22
January 2011.
[2] At the
commencement of the trial the parties applied for a separation of the
merits and quantum in the matter, which order was
granted. The matter
proceeded only on the merits.
[3] It is common
cause that (a) the plaintiff was the driver of a motor vehicle
bearing registration letters and numbers JFZ 509
GP and John Chirwa
was the driver of a motor vehicle bearing registration letters and
numbers KLC 025 GP when the collision occurred;
(b) both vehicles
were travelling in the same direction; (c) the plaintiffs vehicle
went over the pavement to the left into the
bushes until it collided
into a tree.
[4] Plaintiff
testified and called one witness. He testified that on the 22
nd
January 2011 he was travelling on the N17 from Secunda to Sophiatown.
The road is a free way with three lanes going in the same
direction.
He was the driver of a VW Golf 4 with registration letters and
numbers JFZ 509 GP. He was travelling at 80km per hour.
He was
travelling together with his wife, two daughters and three grand
children aged four years thirteen months and one month
respectively.
The collision occurred when motor vehicle driven by John Chirwa
(insured driver) attempted to ‘cut’ in
front of him and
collided into his motor vehicle pushing it off the road. He lost
control of the vehicle and it veered to the left
down the hill until
it collided into a tree and stopped.
[5] Lucinda Williams
(Lucinda) testified that she is the daughter of the plaintiff and was
a passenger in plaintiffs vehicle when
the collision occurred. She
was seating in the seat behind the plaintiff. Plaintiff was driving
on the extreme left lane on the
road that had three lanes going in
the same direction. She saw a VW with a big learner sticker on the
rear window driving on the
right lane, the middle lane. It swerved to
the left as it was going past them and collided into their vehicle.
Their vehicle went
over the pavement to the left, into the bush and
hit a tree where it came to a stand still. Plaintiff got out of the
vehicle to
assist her sister who was having problems breathing. He
was assisting her sister when he lost consciousness next to her. She,
Lucinda
was busy with her baby who was also not breathing. She called
her uncle from her cellphone. Three ambulances came to the scene and
she, her father and her sister were taken to the hospital in
different ambulances.
[5] John Dick Chirwa
(insured driver) testified for the defendant. He was travelling on
Wemmer Pan Road, which is a dual carriage
road. He was travelling on
the left lane at approximately 50 to 60km per hour as he was about to
turn left at the robots ahead.
He was alone in his vehicle while his
friend, Mbonisi Mabena (Mabena) was following him in a different
vehicle. He saw the lights
of Mabena’s vehicle flashing and
then he saw a vehicle travelling at a high speed overtaking his
friend and he heard a bang.
His vehicle veered to the right and
stopped on the side of the vehicles going in the opposite direction
while the plaintiffs vehicle
veered to the left went into the bushes
and collided into a tree.
[6] Mbonisi Mabena
also testified for the defendant. He testified that they were
travelling from Boksburg on N17. They approached
the robots and the
insured driver who was travelling ahead of him turned into Wemmer Pan
Road. As he turned into Wemmer Pan Road
plaintiffs vehicle came from
nowhere and overtook him. He flashed his lights as the vehicle
swerved in front of him and he saw
the insured driver’s vehicle
veer to the right and the plaintiffs vehicle veered to the left into
the bushes. The insured
driver’s vehicle was damaged on the
left rear. During cross-examination he said that the three vehicles
drove for 10 to 15
seconds on the left lane before the collision. He
was driving 60m behind the insured driver prior to the collision.
After the collision
he stopped behind the plaintiffs vehicle while
the insured driver’s vehicle stopped 14 to 15 meters away.
[7] It is on the
evidence before me that I have to determine the two issues: whether
the insured driver was negligent and whether
the negligence of the
insured driver resulted in or caused the injuries of the plaintiff.
[8]
The versions testified to by the parties are entirely different and
are mutually destructive with regard to: (a) the place where
the
collision took place; (b) whether plaintiffs vehicle overtook
Mabena’s vehicle prior to the collision; (c) whether the
insured driver overtook or attempted to overtake the plaintiffs
vehicle prior to the collision and (d) whether or not it was the
plaintiffs vehicle that collided into the insured vehicle or
vice
versa.
[9]
It is trite that the plaintiff bears the
onus
of
proving negligence on the part of the insured driver on a balance of
probabilities. See
Madyosi
and Another v SA Eagle Insurance Co Ltd
(E)
[1990] ZASCA 65
;
1990 (3) SA 442
at 444D-F.
[10]
The correct
approach to be adopted when dealing with mutually destructive
versions was succinctly set out in the case of National
Employers
General Insurance Co Ltd v JagersJE)
1984 (4) SA 437
at 440 para E-G
where Eksteen AJP said . . Where the onus rests 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 plaintiffs 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 balance of probabilities
favours the plaintiff, then 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 plaintiffs case any more
than they do the defendant, 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.’
[11] The Supreme
Court of Appeal, in the case of Stellenbosch Farmers Winery Group Ltd
and Another v Martell Et Cie and Others
2003 (1) SA 11
SCA at
141-15E, approved this approach saying: The technique generally
employed by courts in resolving factual disputes of this
nature may
be conveniently summarised as follows. To come to a conclusion on the
disputed issues the court must make findings on
(a) the credibility
of the various factual witnesses; (b) their reliability; and (c) the
probabilities. ... As to (c), this necessitates
an analysis and
evaluation of the probability or improbability of each party’s
version on each of the disputed issues ...’
[12] The plaintiffs
version is that he was driving on the N17 keeping the extreme left
lane when the insured driver attempted to
overtake him and collided
into his vehicle forcing it off the road, over the pavement into the
bushes on the left hand side of
the road where it hit a tree. The
road where the collision took place is a free way with three lanes
going in the same direction.
[13] The defendant’s
version is that the insured driver was driving on Wemmer Pan Road on
the left hand lane being followed
by Mabena in a different vehicle.
The insured driver saw Mabena flashing his lights, then he saw
plaintiffs vehicle travelling
at a high speed and he heard a bang
from behind. The insured driver’s vehicle veered to the right
and ended on the side of
the vehicles going in the opposite direction
while the plaintiffs vehicle veered to the left and collided into a
tree.
[14] The two
versions are mutually destructive in the sense that the acceptance of
the one must necessarily lead to the rejection
of the other. In order
to succeed the plaintiff has to prove on a balance of probabilities
that his version is true and accurate
and therefore acceptable. In
deciding whether the evidence of the plaintiff is true or not I have
to weigh up and test the plaintiffs
allegations against the general
probabilities.
[15] I now turn to
consider whether the plaintiff has proved that the insured driver was
negligent.
[16] I must state
that I found the plaintiff to be a credible witness. The plaintiff
remained consistent during his testimony and
he gave clear and cogent
evidence regarding how the collision took place. His evidence is in
line with the statement he made to
the police on the 18
th
August 2011 page 16 Bundle A. It also supports the accident report
especially the sketch and description of the accident on page
24 of
Bundle A. The evidence of his daughter, Lucinda before me also
supports his evidence.
[17] Plaintiff
testified that the insured driver was attempting to overtake him when
the collision took place. This evidence is
corroborated by Lucinda
who testified seeing the insured driver driving past them on the
right hand lane and collided into their
vehicle while attempting to
overtake. The plaintiffs version that his vehicle was hit from the
right by the insured driver who
attempted to cut in front of him
causing his vehicle to veer to the left is in accordance with logic
and common sense, it explains
how his car ended up on the left hand
side of the road.
[18] It is more
probable that the plaintiff was travelling on the left lane and that
the insured driver while attempting to overtake
his vehicle collided
into his vehicle from the right. This would explain why the
plaintiffs vehicle went over the pavement to the
left and into the
bushes. This would lend support to the plaintiffs version that the
insured driver’s vehicle collided into
his vehicle from the
right and pushed his vehicle to the left over the pavement.
[19] I found the
evidence of the insured driver to be unsatisfactory. The insured
driver does not really provide an explanation
on how the accident
happened. He testified that he saw Mabena flashing his lights, he
then saw a vehicle come at a high speed and
heard a bang from behind.
During cross-examination when asked about how the collision took
place he said ‘I did not see much,
all I saw were lights and I
heard a bang’. He was not sure about the time of the accident.
He could not provide the distance
between himself and Mabena. When
asked how his motor vehicle ended up on the right hand side of the
road while the plaintiffs vehicle
hit his vehicle from the right, the
insured driver’s answer was ‘my car was bumped on the
left hand rear and it crossed
over to the other side.’
[20] The evidence of
Mabena regarding how the accident took place was not helpful, it was
also unsatisfactory. He testified that
after turning into Wemmer Pan
Road plaintiffs vehicle cut in front of him and after few seconds he
saw the insured driver’s
vehicle veer to the right while the
plaintiffs vehicle veered to the left over the pavement. He testified
that he did not hear
a bang.
[21] The defendant’s
version as put by defendant’s counsel to the plaintiff is that
the plaintiff overtook Mabena’s
vehicle then attempted to
squeeze himself between the two vehicles and collided into the rear
of the insured driver’s vehicle.
The insured driver did not
agree that the plaintiff squeezed himself between the two vehicles.
Mabena’s testimony that the
insured driver was travelling 60
meters ahead of him also does not support this version.
[22] The damage to
the left hand rear of the insured driver’s vehicle does not
support the version that the plaintiff collided
into the rear of the
insured driver’s vehicle. One would have expected the damage to
be to the right hand side rear as the
plaintiffs vehicle ‘squeezed’
itself alternatively came from the right after overtaking Mabena’s
vehicle.
[23] If one is to
consider the evidence of Mabena that the plaintiff successfully
overtook him and drove between his vehicle and
the vehicle of the
insured driver for 10 to 15 seconds before the collision, then the
damage to the insured driver’s vehicle
would have been to the
entire rear of the insured driver’s vehicle and not to the one
side.
[24] The insured
driver testified that he had an agreement with the plaintiff not to
involve the police. He further testified that
there were police and
traffic officers at the scene but they did not ask to take the
statements from the drivers. I find it improbable
that the police and
the traffic officers would attend the scene of the accident and not
compile an accident report and further
fail to take statements from
the drivers and witnesses especially considering the fact that it was
a serious accident that resulted
in serious injuries.
[25] It is also
improbable that the insured driver whose vehicle was allegedly
damaged through the negligence of the plaintiff in
January 2011 would
have taken no steps to recover damages suffered by him from the
plaintiff. When asked during cross-examination
for the reason why he
has not attempted to recover damages from the plaintiff he could not
provide an explanation.
[26] The insured
driver and Mabena also contradicted each other as to where the
collision took place. According to Mabena the collision
took place
immediately after he and the insured left the N17 and turned right
into Wemmer Pan Road. The insured driver testified
that the collision
took place on Wemmer Pan Road and described the road as a straight
road with an off ramp ahead and that he intended
to turn to the right
ahead.
[27] I was provided
with the map that the parties agreed on indicating the N17 and Wemmer
Pan Road. The map indicates that the N17
splits into two and joins
Wemmer Pan Road. There was no conclusive evidence led on either side
to indicate the exact location of
the collision. The Plaintiff and
her witness testified that the collision took place on the N17 while
the insured driver testified
that the collision took place on Wemmer
Pan Road and Mabena testified that the collision took place on Wemmer
Pan Road immediately
after they left N17. This however does not have
any effect on my findings on negligence.
[28] In light of the
evidence, I find that plaintiffs version is, on the probabilities,
true and that the version of the defendant
falls to be rejected. I
accept the plaintiffs version that: (a) plaintiffs vehicle was
travelling on the left hand side lane; (b)
the insured driver
attempted to overtake the plaintiffs vehicle; (c) the insured
driver’s vehicle suddenly swerved to its
right and collided
with the plaintiffs vehicle forcing it over the pavement to the left
causing it to lose control and crash into
a tree on the left in the
bushes.
[29] The version of
the plaintiff is more plausible than that of the defendant. I am
satisfied that the defendant was the sole cause
of the collision in
that he drove at an excessive speed and he failed to keep a proper
look out.
In the result I make
the following order:
1. The defendant is
liable to pay 100 percent of the plaintiffs proven or agreed damages.
2. The defendant is
ordered to pay the plaintiffs costs.
3. The determination
of quantum is postponed sine die.
P D MOSEAMO
ACTING JUDGE OF
THE HIGH COURT