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[2015] ZAGPPHC 197
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Liebenberg v Road Accident Fund (39831/2013) [2015] ZAGPPHC 197 (27 February 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 39831/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
M LIEBENBERG
….....................................................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
.......................................................................................
DEFENDANT
JUDGMENT
PHATUDI AJ
[1]
INTRODUCTION:
1.1 This is an
action in which the plaintiff sues the defendant for damages he
sustained as a result of a motor vehicle accident
that occurred on 23
June 2012 at approximately 11H45 along Hans Stryjdom Street, Klip
Fontein, eMalahleni (Witbank), Mpumalanga
Province.
1.2 The plaintiff
was the driver of a motorcycle, which collided with a motor vehicle
driven by the insured driver Ms Faith Mahamba,
bearing registration
numbers and letters F[...].
1.3
It was the plaintiffs case that on the one hand that the said
collision was caused by the sole negligence of the insured driver
as
alleged in its particulars of claim, while on the other hand it was
contended on behalf of the defendant that the collision
was not
caused by the negligence on the part of the insured driver, but
solely through the plaintiff s negligent conduct, alternatively
that
the plaintiffs negligence contributed to the collision and that any
damages awarded to the plaintiff, be reduced proportionally
in
accordance with the degree of fault established in terms of the
Apportionment of Damages Act, 1956
1
1.4 Before
commencement of trial itself, counsel were not in agreement whether
the contents of the summary of common cause facts
as prepared and
compiled by counsel for the plaintiff would be acceptable to counsel
for the defendant, Mr Sekhula in which event,
the trial would have
only proceeded in respect of quantum as a stated case.
1.5
The summary of a common cause facts (“the summary”) was
actuated by the concessions the defendant’s attorneys
made
during the pre-trial conferences, as held on 05 September 2013, and
04 November 2014, respectively
2
.
The circumstances as to how and what caused the collision referred
to, were noted in the said minutes including the minutes of
the
pre-trial conferences held on 22 January 2015. Accordingly, the
minutes recorded by the parties’ legal representatives
during
the pre-trial conference mentioned, were indicative of the fact that
the contents of the police’s Accident Report
3
and the annexures thereto, were in fact admitted by the defendant’s
attorneys, thus placing the merits of how the accident
occurred out
of issue.
1.6 It was at the
heart of the Expert’s Reports as abridged in the Summary of
common cause facts, that counsel for the defendant
found himself at
odds to admit the contents thereof without being tested in due
course.
1.7 Following this
discontent, Ms Strydom, counsel for the plaintiff, then sought to
apply for separation of merits and quantum
of damages, and that only
the merits be proceeded with. The application was accordingly
granted.
[2]
QUESTION
FOR DETERMINATION:
Having granted the
order for separation of the merits from the quantum, the next
question for consideration was whether the insured
driver took
responsible steps or precautions to observe approaching traffic
before commencing execution of her turn. Put differently,
could it be
said it was the insured driver’s conduct at the time of the
collision negligent, or that on the flipside of the
coin, whether
contributory fault could possibly be imputed to the plaintiffs
conduct as well.
[3]
A
SUMMARY OF THE PLAINTIFF’S EVIDENCE:
What follows is a
summary of the plaintiffs evidence:
3.1 He testified
that while riding on his motorcycle along Hans Strydom Street
Witbank, he was involved in a collision against the
motor vehicle
driven by the insured driver on 23 June 2012. The collision occurred
at about 11H40 or 11H45. According to the plaintiff,
it was a very
busy road where the collision occurred as the area has several shops
and parking areas on either side of the road.
The road consists of a
double road with two different lanes, crossing each other from either
side. He was driving approximately
at 30 km per hour before the
collision.
3.2 He reached a
four way stop intersection at which point he had to turn right into
Hans Strydom Street. A collision happened near
the Engen garage.
3.3 As he turned
right into Hans Strydom Street, he saw the insured driver on the
right side of the road turning left into the sane
road of the four
way stop, at the bottom of the road. The insured driver turned left
approaching the plaintiff from the opposite
direction. There were no
on coming motor vehicles in front of him at the time.
3.4
At that point, the insured driver, who was then closer to the
plaintiffs 125CC Suzuki motorcycle, indicated her intention to
turn
right into the Engen Garage. A sketch plan was then handed to the
witness to throw light on his travel direction
4
.
He stated that his motorcycle was travelling on the left side of the
road, while the insured driver emerged from the right side
of the
road, from the eastern direction, going towards the western
direction.
3.5 He further
stated that after the insured driver stopped her vehicle, she turned
into her right side in front of the plaintiffs
motorcycle. That was
when he “slammed on my brakes” and tried to swerve to his
right side to get past her vehicle,
and his motorcycle skidded and
collided with her motor vehicle. Before the collision occurred he was
driving his motorcycle at
30 km per hour.
3.6 When the motor
cycle swerved and skidded to the right side, the plaintiff then
realised that the insured driver had stopped
in the middle of the
road parallel with him, and he could not get past her as she was
close to him.
3.7 He further
testified that she executed her turn into plaintiffs left lane of the
road, where after he glided into the left side
of the car, in
particular, collided with the left front door of her vehicle. That,
in a nut-shell was the evidence in-chief for
the plaintiff, where
after cross-examination ensued.
3.8 He stated under
cross-examination that the insured vehicle was moving - clearly
executing a right turn, while he was heading
towards the western side
on a straight line.
3.9 After she turned
into Hans Stryjdom towards the eastern direction, opposite the
plaintiff, that was when she stopped her vehicle,
she then indicated
to turn right. The witness turned right at the four way stop.
3.10 He stated that
after skidding, he knocked the vehicle midfront of it. He indicated
that he collided the insured driver’s
vehicle while stationery
at 30km per hour.
During
re-examination, plaintiff again conceded that while his motorcycle
was skidding, her vehicle had stopped in the middle of
his left lane,
and when she stopped at or near the Engen garage she was still
stationery.
That being said, was
the conclusion of cross-examination and so was also the plaintiffs
case.
[4]
THE
DEFENCE’S VERSION:
4.1 The defence
witness, Ms Faith Mahamba, testified that she was driving her motor
vehicle a Volkswagen Polo, negotiating a turn
to get into a filling
station from Hans Stryjdom Street on the day in question.
4.2 Before she could
turn into the garage, she slowed down, and from the distance she saw
a motorbike and then turned into the Engen
Garage. She then heard a
collision against her vehicle.
4.3 By that time,
the front part of her vehicle was already within the premises of the
said garage.
4.4 She stated that
it took her 2-3 minutes signalling before she attempted to execute a
turn as she wanted to make it safe before
she could turn.
4.5 She stated
further that where the collision took place was a high accident area
as the road was busy.
4.6 She stated
further that when the collision occurred, she was already into the
left lane depicted as point of impact on the sketch
plan.
4.7 According to
her, plaintiff’s motorbike collided against the left passenger
door as the front part of her vehicle was
already inside the premises
of the garage.
4.8 Before the
collision, she did not hear any hooter signalling that she was in a
wrong lane of travel.
[5] This was briefly
the evidence in chief for the witness, which also spelt closure of
the defence’s case.
The witness was
exposed to cross-examination at length, and the gist of her evidence
was briefly the following:
5.1 That the impact
of the collision was in the middle as the two doors of her vehicle
were damaged.
5.2 She could not
recall the distance from where the plaintiff s motorbike emerged as
it was moving fast, and could hardly say if
she saw it before or
after the intersection that was even farther from where she had
stopped. She estimated it about 100 metres
away.
5.3 Before she could
turn into the right lane, she indicated her intention to turn, then
stopped while the indicator was on.
5.4 Before turning
into garage, some time had passed-by before the collision occurred,
and the time when she first saw the plaintiffs
motorbike (“the
bike”)
5.5 She stated that
while observing the bike coming from the opposite side, it could be
moving at a speed of 80 - 100 km per hour
in a build up area. She
based the estimation of high speed in relation to the damage to her
car.
[6]
FACTS
WHICH ARE COMMON CAUSE:
What follows are a
summary of the facts which are common cause:-
6.1 A collision
between the motorcycle driven by the plaintiff and a motor vehicle
driven by the insured driver bearing registration
numbers and letters
J[...] took place along Hans Stryjdom Street, eMalahleni on 23 June
2012 at about 11H45.
6.2 According to the
Sketch Plan depicted on bundle 7 page 7 thereof, the said collision,
being the point of impact, occurred in
the right lane of the road as
the insured driver attempted a right turn towards the Engen garage.
6.3 That the point
of impact projects that the insured motor vehicle had already entered
into the left lane when the plaintiff’s
motorbike collided with
her motor vehicle.
6.4 Further that,
the insured motor vehicle was damaged on the middle left passenger’s
side as a result of the collision referred
to.
[7]
THE
FACTUAL MATRIX:
Applying the factual
matrix relevant to the present inquiry the following observation
become apparent:-
7.1 From the three
sets of the Minutes of the pre-trial conferences held, it follows
that the police-officers Accident Report (Bundle
7. P4) were at all
material times admitted by the defendant’s attorneys of record.
These Minutes were not disputed during
the trial either.
The
plaintiffs version was couched and captured as follows:
“
Op
die 23 Junie 2012, was ek oppad met my motorfiets na my vrou se werk
in Klipfontein. Ek was alleen op my motorfiets. Ek het gemerk
dat
daar ‘n rooi VW Polo in die teen oorgestelde rigting staan met
flikkerligte aan om regs te draai. Die Polo het skielik
begin draai
reg voor my. Ek het rem aangeslaan, maar het nogtans met die Polo
gebots.
Daar was geen
manier waarop ek die ongeluk kom vermy nie. ”
7.2 I pause to
remark that these pertinent facts, were re-lived by the plaintiff in
his evidence during trial on the merits.
[8]
APPLICABLE
CASE LAW: TO THE FACTS
8.1 There is a
plethora of authority laid down by our courts on what conduct is
required of a driver turning across the line of
traffic as well as
conduct exacted of a driver travelling in the line of traffic. In
Milton v Vacuum oil S. A,
5
the court held that where there are two streams of traffic in a road
in opposite directions, a person in a vehicle proceeding in
one
direction is entitled to assume that those who are travelling in the
opposite direction will continue in their course and that
they will
not suddenly and in opportunely turn across the line of traffic,
until he has shown a clear intention to the contrary.
When a person
wishes to cross the line of traffic and to turn out into a side
street, he must give ample warning of his intention
to other vehicles
and execute his turn at the right moment and in a reasonable maimer.
8.2 In the present
case, the driver of the insured vehicle, on her own version, knew the
road to be a busy one in a business build
up area. According to her
evidence, when the collision occurred her vehicle was already in the
left lane opposite on coming vehicles
as depicted on the sketch plan
referred to. That explains why the damage on her vehicle was more on
the left passenger’s
side, towards the middle of her two left
doors. If her version is accepted as true and correct, it then
follows logically that
when the collision occurred, her vehicle had
already crossed the left lane from the opposite line of travel.
8.3 This then raises
another question. How far was the plaintiff and at what speed was he
driving his motorbike before the collision
happened. The witnesses
gave two conflicting estimations. The plaintiff alleged that he was
driving at 40 km per hour, while the
insured driver said his speed to
have been between 80 km - 100 km per hour in that urban area.
There is, of course,
no scientific evidence to support either of the allegations made in
relation to the speed at which the plaintiff
was travelling on his
bike at the time. To attempt to determine his speed while on the
bike, would be a matter of pure conjecture.
8.4 Be that as it
may one may, however, draw an inference from the proven facts, which
exclude all other reasonable inferences to
be drawn in the
circumstances that 100 metres from where the driver of the motor
vehicle first saw the coming bike driven by the
plaintiff, and the
point of impact which resulted in the two left side of her vehicle
being damaged, it follows logically that
the plaintiff travelled in
an excessive speed prescribed for build up areas. To hold to the
contrary would still beg the question
as to why would if he was
travelling at a speed of only 40 km per hour, his bike “skid”
after he “slammed”
on his brakes. His version is, to my
mind, not only improbable, but excludes all reasonable vestige of
possible truth.
8.5 This view is
fortified by plaintiffs own version that before he turned into Hans
Strydom Street, he saw the insured vehicle
on the right side of the
road turning left into the same road of a four way stop, at the
bottom of the road. As he approached,
she turned right into the Engen
garage and a collision occurred. As to why if plaintiff could see the
wrongdoer’s motor vehicle
from a distance while driving at a
speed of 40 km per hour as he alleged, raises eye brows induces even
more scepticism.
8.6 In AA Mutual
Insurance Association Lts V Nomeka
6
the court stated that:
“
to
execute a right turn across the line of oncoming or following traffic
is inherently dangerous manoeuvre and there is a stringent
duty upon
a driver who intends executing such a manoeuvre to do so by properly
satisfying himself that it is safe and opportune
to do so.”
8.7
In
cam,
the
driver of the insured vehicle drove across into the right lane of
traffic from the opposite direction, by executing a turn into
the
right (or call it the left lane from opposite direction) and the
plaintiffs bike collided against her vehicle. Before doing
so,
following the
Nomeka’s
decision,
it follows that the wrongdoer acquired a stringent legal duty cast on
her to properly satisfy herself that it was absolutely
safe and
timeous to do so. If not, it is clear that her conduct was negligent
in the circumstances.
8.8 On being asked
by this court whether part of the road where the collision occurred
had a barrier line prohibiting crossing,
the driver of the insured
vehicle conceded that she crossed the barrieer line and encroached
into the lane of driving of vehicles
from the opposite direction, and
that by so doing, she knew it was unlawful “if it is safe to do
so.” Needless to say,
the fact that a collision occurred as a
result of her having crossed the line of on coming traffic,
demonstrates clearly that it
could not have been safe for her to have
done so, as it was inherently dangerous in the circumstances, and her
conduct was not
only the cause of the collision, but invariably
negligent. But the matter does not end there.
8.9 Turning to the
facts of this particular matter, it is undeniable that the direction
of the insured motor vehicle in relation
to the point of impact, the
nature and extent of physical damage to her motor vehicle (middle
left side affecting two doors), the
fact that it had already
commenced execution into the right lane into Hans Strydom Street
encroaching on the path of the west bound
traffic, are facts that are
common cause. However, the version of the plaintiff and that of the
insured driver as to how the collision
occurred, are mutually
destructive, and remain in dispute.
However, in an
attempt to find a resolution of the factual dispute where there are
two diametrically opposed versions, the court
is enjoined to make the
findings of the credibility of the two witnesses, their reliability
and inherent probabilities or otherwise.
Where all factors are
equipoised, the balance of probabilities should, in my view, prevail.
8.10 In this
instance, although the insured driver had clearly encroached on the
path of oncoming traffic, the plaintiff not expected,
the issue of
what evasive steps did he or could have take to have avoided a
collision in the circumstances is another question.
Her evidence was
that she slowed sown and stopped and indicated her intention to
execute a turn to the right facing on coming traffic,
and all of a
sudden a collision occurred.
[9]
CONTRIBUTORY
FAULT
9.1 What remains to
be ascertained is whether plaintiff was in fact travelling
excessively at the time, such that he could have
avoided a collision,
particularly that on his own version, the road was busy and the place
where the collision occurred was a build
up area. Although there is
no evidence to negative the plaintiff s version that before the
collision he was driving at 40 km per
hour, the extent of the damage
occasioned by the impact on the insured driver’s vehicle,
renders his evidence highly improbable
and less creditworthy. A
motorbike driving 40 km per hour would not have “skidded”
when he applied brakes at the time.
9.2 Furthermore, the
insured driver testified that prior to the collision she did not hear
any sound of a hooter signalling that
she was on the wrong path of
drivers from the opposite direction, the plaintiff not expected.
9.3
I addition, and being asked pertinently by the court, whether before
the collision had happened, she observed any brake marks
from either
side of the road, particularly brake marks of the motorbike, she
replied in the negative, with a loud “no”.
7
9.4 It is the
absence of the brake marks on the road where the point of impact
occurred, that renders plaintiff s version that he
applied brakes and
tried to swerve to his right, but his motorbike “skidded”
even more improbable and not worthy of
salt. If for a moment one were
to accept that indeed it “skidded” after he applied
brakes, the only reasonable inference
that can be drawn would be that
he was travelling excessive speed in the circumstances given that it
was a build up area. His conduct
cannot therefore, completely
exonerate him from contributory fault, the issue being to what
degree.
9.5
Following the principles enunciated in Sieborger V South African
Railways and Harbours
8
,
it is not expected a driver of a vehicle proceeding in the line of
traffic, with reference to a vehicle whose driver has signalled
an
intention to turn across his path and who is directing his vehicle
towards the middle of the road preparatory to doing so, to
incur an
obligation to stop or slow down. Certainly he must keep such vehicle
under superversion and as soon as it is clear that,
despite the
inappropriateness of the moment, it intends to cross in front of him,
he
must take all reasonable steps that may be necessary to avoid
colliding with it. (my own emphasis).
This
in my view, is precisely what the plaintiff should or ought to have
done, but failed to do so.
9.6 It appears from
the totality of the evidence therefore as weighed on a scale of
preponderance of probabilities as well as dictates
of logic, that the
plaintiffs conduct too cannot be held to be free from blame. The
plaintiff was also negligent in his conduct,
and that such negligence
contributed towards the said collision which invariably gave rise to
a claim for damages to be reduced
in accordance with the relevant
provisions of the Apportionment of Damages Act, 1956.
In the result it is
held that:
1
The driver of the insured motor vehicle (JMX 337 MP) was negligent in
that she was the cause of the collision that occurred on
23 June
2012
.
2 The defendant is
held liable for thedamages to be proven by the plaintiff in due
course.
3 The costs are
reserved.
M.G PHATUDI
ACTING JUDGE OF
THE HIGH COURT
GAUTENG DIVISION
PRETORIA
REPRESENTATIONS:
COUNSEL FOR THE
PLAINTIFF: ADV: K STRYDOM
INSTRUCTED BY:
EHLERS ATTORNEYS
ZWARKOP EXT 8,
CENTURION
COUNSEL FOR THE
DEFENDANT: ADV: PP SEKHULA
INSTRUCTED BY: T M
CHAUKE INCORPORATE
DATE
OF HEARING (MERITS ONLY): 06 FEBRUARY 2015
DATE
OF JUDGEMENT: 27 FEBRUARY 2015
1
Act
34 of 1956, as amended
2
Pages
1 - 30, indexed bundle (pleadings, notices & documents,
dated 23-01-2015)
3
Police
officer’s Accident Report (Bundle 7, pp 3 - 6)
4
Sketch
plan - Bundle 7 p.7.
5
1932 AD 197
at 205
6
1976 (3) SA (A) 52F
7
P67
- 68, record.
8
1961
(1) SA 498
(A) at 505 A- D