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[2015] ZAGPPHC 165
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De Bruyn v Road Accident Fund (15450/13) [2015] ZAGPPHC 165 (3 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 15450/13
DATE: 3 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
DONAVAN PETER
DAVID DE
BRUYN
..................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
.........................................................................................................................................
DEFENDANT
JUDGMENT
HEARD ON: 03
FEBRUARY 2015
JUDGMENT ON: 26
FEBRUARY 2015
KUBUSHI, J
[1]
The plaintiffs claim is against the Road Accident Fund (the
defendant) for personal injuries sustained in a collision on 20
March
2010. At the time of the collision the plaintiff was riding a motor
cycle and the driver of the insured motor vehicle, Mr
Steve Peter
Fleetwood (the insured driver), was driving a babbie. The plaintiff
sustained serious injuries as a result of the collision
and he is
claiming damages in respect thereof. The claim is based on
negligence. The
onus
is
thus on the plaintiff to prove on a balance of probabilities that the
insured driver was negligent. The plaintiff has no recollection
of
the collision and the only evidence tendered is that of the insured
driver and Mr Ian Robert Hurter an independent eye witness
to the
collision.
[2] The defendant
denies the allegations of negligence and alleges that the collision
was caused by the sole negligence of the plaintiff.
In the
alternative the defendant pleads contributory negligence on the part
of the plaintiff in the event the court makes a finding
that the
insured driver was the proximate cause of or contributed to the
negligence in the collision.
[3] The defendant in
its plea raised a special plea that the plaintiff failed or neglected
to submit himself to the medical assessment
required in terms of
regulation 3 (1a) of the Road Accident Fund. This special plea was
not pursued during trial.
[4] At the beginning
of the trial, the plaintiffs counsel applied for the amendment of
paragraph 12 of the plaintiffs particulars
of claim by the deletion
of the words “being rendered a quadriplegic” on the last
sentence in that paragraph. The defendant
did not object to the
application and the amendment was granted.
[5] The plaintiffs
counsel handed in a bundle of documents as agreed between the parties
at the pre-trial conference held on 9 December
2014 (two conferences
were held). The bundle of documents consisted of: the Index -
Pleadings and the Index - Documents. Some of
the documents contained
in the Index- Documents were: the Officer’s Accident Report;
sketch plan; and twelve photographs
depicting the scene of the
collision. The photographs consist of serial “A” and
serial “B". According to
counsel the photographs in serial
“A" were taken a year after the collision and the
photographs in serial “B”
were taken in January 2015. All
the photographs depict the surrounding area where the collision
occurred and they were taken from
different angles.
[6]
The parties had agreed at the pre-trial conference that merits and
quantum
should
be separated. At the hearing and on application by the parties. I, in
terms of uniform rule 33 (4) granted the application
for separation
of issues. The matter is proceeding before me on merits only and
quantum
is
postponed
sine
die.
[7] I must also
mention that at the close of the plaintiffs case the defendant’s
counsel applied for the defendant to be absolved
from the instance. I
refused to grant the application.
[8] The plaintiffs
counsel informed me at the beginning of the proceedings that the
plaintiff was suffering from amnesia as a result
of the injuries
sustained in the collision. The plaintiff was however called in to
give evidence and confirmed that he does not
have a memory of the
collision. His memory prior to the collision has also been affected
in that he can remember some parts of
his life before the collision
and then remembers from the time he found himself at a rehabilitation
facility in Bloemfontein. He
remembers nothing about the collision
but testified that a certain Mr Ricket Potgieter was a passenger on
his motor cycle on the
day in question. The said Mr Potgieter was
killed in another unrelated motor cycle collision. The sum total of
the plaintiffs evidence
does not help this court at all.
[9] In addition to
this evidence, the plaintiff relied on the evidence of the following
documents: the police accident report; the
police sketch plan; and
the photographs. These documents as already alluded, form part of the
bundle of documents handed in court.
According to the second minutes
of the pre-trial meeting of the 9 December 2014 the parties agreed
that the documents contained
in the bundle are what they purport to
be. They also agreed that the contents of the documents need to be
proven or agreed in order
to rely thereon. The plaintiff did not call
any of the persons responsible for the contents of the documents it
relied on to give
evidence. The defendant raised no objection, and,
as such, the documents were accepted into evidence as they were.
[10] The factual
matrix of the collision can only be gleaned from the unchallenged
evidence of the defendant through the testimony
of the insured driver
and that of Mr Hurter. Mr Hurter was travelling behind the insured
driver immediately before the collision.
[11] The common
cause facts between the parties are that on 20 March 2010 at about
18:00, the insured driver was driving his babbie
with registration
number HFC 224 NW along Carel De Wet Road in Elandsrand, Brits. The
plaintiff, Mr Donovan Peter David De Bruyn,
was riding his motor
cycle with registration number HFH 026 NW along Raasblaar Avenue. The
two streets meet and cross each other
at an intersection. Carel De
Wet Road carries traffic from West to East whilst Raasblaar Avenue
carries traffic from South to North
and both streets carry traffic in
single lane in opposite directions. Motor vehicles travelling along
Carel De Wet have right of
way. At the corner of Carel De Wet Road
and Raasblaar Avenue, on both opposite sides of Raasblaar Avenue,
there are stop signs.
As such motor vehicles travelling along
Raasblaar Avenue must stop at the intersection to allow motor
vehicles travelling along
Carel De Wet Road to pass. The evidence is
that the plaintiff drove through the stop sign and collided with the
insured driver.
The motor cycle and the babbie collided with each
other in the intersection. According to the sbetch plan on page 38 of
the bundle,
the collision occurred in Carel De Wet Road, in the lane
of travel of the insured driver and directly opposite the stop sign
that
is in Raasblaar Avenue. After the collision, the motor cycle
landed in that lane and the insured motor vehicle stopped in Carel
De
Wet Road in the lane of oncoming traffic.
[12] The scene of
the collision as depicted in the photographs is not in dispute. It is
common cause that at the time of the collision
there were trees
somewhere up the street along both Raasblaar Avenue and Carel De Wet
Road, the foliage of which would have respectively,
limited
visibility of both drivers towards the intersection. From photograph
A3 depicting the view of the plaintiff towards the
intersection, it
is evident that the stop sign is clearly obscured by the foliage.
And, from photograph A5 depicting the view of
the insured driver
towards the intersection, it is clear that Raasblaar Avenue is
obscured by the foliage.
[13] At the
intersection, along the left side of both streets, there is a school.
The gate of the school is along Raasblaar Avenue.
On the day in
question it was a Saturday and there were no school children in that
area.
[14] Almost all the
facts in this instance are common cause between the parties. What
remains in issue is the question of negligence.
The plaintiff in his
particulars of claim, alleges that the defendant was negligent in
that: he failed to beep a proper lookout;
he drove at an excessive
speed under the circumstances; he failed to keep the insured vehicle
under proper control; he failed to
apply the brakes of the insured
motor vehicle timeously, alternatively sufficiently, further
alternatively at all; he failed to
avoid a collision when by the
exercise of reasonable care, he could and should have done so; the
insured driver entered the abovementioned
intersection when it was
unsafe to do so.
[15] What I must,
therefore, determine is whether or not there was any negligence on
the part of the insured driver and, if so,
to what extent this
negligence contributed to the collision.
[16]
The negligence required to establish liability in civil actions is
determined by a simple test, namely the standard of care
and skill
which would be observed by a reasonable person.
1
I am, thus, required to determine on all the evidence before me
whether the insured driver had in the circumstances of this instance,
observed the required standard of care and skill.
[17] The plaintiffs
counsel conceded, on behalf of the plaintiff, during his opening
address that the plaintiff was the proximate
cause of the collision
in that he drove through a stop sign without stopping whilst it was
expected of him to do so and is as a
result negligent. His
contention, however, is that the insured driver contributed to the
collision.
According to
counsel, the insured driver was aware that he was approaching a high
risk area and he ought to have reduced speed to
give himself the
opportunity to beep a proper lookout. At a speed at which he was
travelling at the time, that is 60 km per hour,
he was not able to do
anything. If he had travelled at a reduced speed he should have seen
the plaintiff approaching and been able
to reduce speed further or
apply brakes or swerved to avoid being hit by the motor cycle. But
because he was travelling at an excessive
speed in the circumstances
he was not able to take appropriate avoiding action, so he argued.
[18] The contention
by the defendant’s counsel is that in the absence of evidence
by the plaintiff there is no obligation
on the defendant to have done
anything. I do not agree.
[19]
It is trite that a driver who approaches an intersection in a through
street does not have an absolute right of precedence
or is not
relieved of his duty of keeping a proper look out.
2
It is my view that although the plaintiff did not tender any
evidence, there is, however, evidence before me in the form of the
police report and sketch plan and the photographs. There is also
evidence tendered by the insured driver and Mr Hurter. I must
consider all this evidence and in the process determine whether or
not the insured driver had, in the circumstances of this case,
an
obligation to have done something in order to evade the collision.
[20]
The insured driver’s testimony is that he did not travel at an
excessive speed and he kept a proper look out. He states
in his
evidence that he was travelling at a speed of 60 km per hour. This is
confirmed by Mr Hurter who was travelling behind him
immediately
before the collision. It is common cause that the speed limit in that
part of the road is 60 km
per
hour.
The insured driver conceded under cross examination that the area
around the intersection is high risk mainly because it is
next to a
school. On that basis, the plaintiffs counsel contends that even
though the speed limit in the area was 60 km
per
hour,
because this is a special intersection due to the high risk the
insured driver should have reduced speed.
[21]
I do not agree with counsel’s submission that the insured
driver should have reduced speed in the circumstances of this
case.
Even though it can be accepted that the area around the intersection
is high risk, sight should not be lost that the collision
occurred at
18h00 on a Saturday which was not a school day. There is no evidence
that there were school children around the area
at that time and
there was no sign which required motorists to slow down in that area.
There was as such no reason for the insured
driver to reduce speed.
He was also not travelling at an excessive speed, as the plaintiffs
counsel wants to suggest. He was at
all times, from the time he
emerged from underneath the bridge, travelling at a speed of 60 km
per
hour
and there is no evidence to the contrary and as stated this is the
maximum speed at which he should have been travelling at
on that part
of the road. For the same reasons that did not require him to reduce
speed, it cannot be said that he was driving
at an excessive speed.
[22] My view is
that, even though the insured driver was not, in the circumstances of
this case, driving at an excessive speed or
was expected to reduce
speed, he was, however, under the duty to beep a proper or general
look out.
[23]
It is trite that a driver travelling along a through road does not
enjoy an absolute right of precedence, and he or she is
not relieved
of the duty to beeping what is so often referred to as a general loob
out. Such a general loob out means more than
loobing straight ahead -
it includes an awareness of what is happening in one’s
immediate vicinity, viewing the whole road
from side to side. A
driver on a through road is not under a duty to beep a cross road
under the same careful observation as would
be required of him if
there was no stop sign.
3
But, where approaching traffic in the side road will enter the
intersection on the left of traffic in the main road, thus
unavoidably
barring the way for traffic in the main road, there is
greater duty of care on the driver on the main road. He must observe
the
crossing traffic more closely than in cases where such traffic
will enter the intersection on his or her right.
4
[24] The evidence is
that, at 5 to 10 meters to the intersection, the insured driver
looked left and right for crossing traffic
along Raasblaar Avenue and
saw nothing. At this distance he would have been able to see at a
distance of two motor vehicles which
could have stopped at the stop
sign, if any. He looked again for crossing traffic when he was about
2 to 5 metres to the intersection
and again saw nothing. At this
distance he should have been able to see at a distance of three motor
vehicles which could have
stopped at the stop sign, if any. Having
seen no traffic he proceeded to enter the intersection.
[25] The insured
driver’s evidence is that he did not see the motor cycle until
immediately before it collided with his bakkie.
This in my view
suggests that the insured driver must have been driving along
somewhat inattentively as he entered the intersection,
and, as such
became conscious of the motor cycle only when it was close upon him.
The motor cycle must have been somewhere along
Raasblaar Avenue at
the time the insured driver entered the intersection. This can be
inferred from three aspects in the insured
driver’s testimony.
[26] Firstly, the
speed at which the insured driver testified that the motor cycle was
driving at, shows that it must have been
travelling along Raasblaar
Avenue all the time before it collided with the bakkie. The insured
driver’s testimony is that
the motor cycle was travelling at a
high speed. If it is to be accepted that the motor cycle was driving
at a high speed, then,
it must have been travelling along Raadblaar
Avenue. The submission by the defendant’s counsel in his
closing argument that
the motor cycle may not have been travelling
all along in Raadblaar Avenue at the time the insured driver entered
the intersection,
but could have stopped somewhere on the side of the
road or zig-zagged along the road, thus making it impossible for the
insured
driver to see it, is to me fallacious. Besides such
submission being pure speculation by counsel it does not form part of
the evidence
before me. In any event, it is highly improbable that if
it was zig zagging along the street it would have travelled at such a
speed. It is also improbable that if it was travelling at a high
speed it would have taken off from where it had stopped at that
speed.
[27] Secondly, the
point of impact which is shown on the police sketch plan is
indicative that the motor cycle was not that far
off at the time the
insured driver entered the intersection. The collision occurred in
the middle of the intersection right opposite
the letter “stop”
written on the road, that is, in the path of travel of the motor
cycle.
[28] Lastly, the
fact that the motor cycle hit the left front side of the insured
motor vehicle is another indication that even
though the insured
driver was already in the intersection at the time of the collision,
the motor cycle was not that far away from
the intersection and if
the insured driver had kept a proper or general look out he would
have seen it. If the motor cycle had
hit the bakkie more towards the
back a different inference could be made.
[29] If the motor
cycle was travelling along that road at that time, the insured driver
ought to have seen it and could have avoided
the collision by
swerving or applying brakes. The insured driver in his own testimony,
states that because he did not see the motor
cycle until very late,
he did nothing - he did not apply brakes or try to swerve. The
insured driver’s duty of care did not
end when he entered the
intersection. There was a duty on him as he enters the intersection
and whilst travelling through the intersection
to maintain the look
out. My sense is that after the 2 to 5 metre distance and as he
entered the intersection he let down his guard
and as such failed to
keep a proper look out and thus contributed to the collision.
[30] In apportioning
fault against the parties in this instance, I have to consider the
extent at which each party contributed to
the collision. In favour of
the plaintiff, his counsel submits that I should consider the
following factors: the probable speed
of the motor cycle; the fact
that the stop sign was completely obscured to a certain extent and
emerges as one approaches the stop
sign; plaintiff was resident in
Rustenburg at the time and did not know the area of the collision
very well. Counsel’s contention
is that I should apportion
fault at 30% and 40% in favour of the defendant. The assertion by the
defendant’s counsel is that
the apportionment should be nothing
higher than 25%.
[31] It is common
cause that the plaintiff is the proximate cause of the collision and
as such more of the fault should be attributed
to him. Except for the
fact that the stop sign was obscured as depicted in one of the
photographs in the Index - Documents bundle,
the other factors raised
by the plaintiffs counsel for my consideration on this issue do not
form part of the evidence before me
and are thus mere speculation. My
view is that in the circumstances of this case the apportionment of
fault attributable to the
insured driver should be determined at 20%.
[32] Ordinarily
costs should follow the successful party. I see no reason why even in
this case it should not be so. The plaintiff
has succeeded in proving
a degree of negligence against the insured driver and is thus
entitled to his costs to that extent.
[33] In the
circumstances I make the following order:
1. The plaintiffs
claim succeeds to the extent of 20% negligence on the part of the
defendant.
2. The defendant is
ordered to pay to the plaintiff 20% of the agreed or proven damages.
3. The defendant is
ordered to pay the costs of suit to the extent of 20%.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
Appearances
On behalf of the
plaintiff: Adv. E KROMHOUT
Instructed by:
EDELING VAN
NIEKERK INC.
C/O ARTHUR CHANNON
ATT.
C/O DE JACER
ATTORNEVS
Menlo Law Chambers
49-11
th
Street
PRETORIA
On behalf of the
defendant: Adv. H VERMAAK
Instructed by:
SEKATI
MONVANE&PARTNERS
935 Jan Shoba Street
Brooklyn
PRETORIA
1
See
National Employers General Insurance Co Ltd v Sullivan 1988(1) SA 27
(AD).
2
Franco
v Klug
1940 AD 126
at 135.
3
See
Marine&Trade Insurance Co Ltd v Biyasi
1981 (1) SA 918
(A).
4
See
Kruger v Santam Versekeringsmaatskappy en 'n Ander
1983 (4) SA 455
(0)