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[2015] ZAGPPHC 169
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Wessels v Road Accident Fund (20363/09) [2015] ZAGPPHC 169 (20 March 2015)
IN
THE HICH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 20363/09
In
the matter between:
JOHN
WILLIAM
WESSELS
......................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
.......................................................................................
DEFENDANT
JUDGEMENT
TLHAPI:
INTRODUCTION
1]
The plaintiff claims damages arising from a motor vehicle accident
which occurred on 12 April 2004 between Modimolle and Vaalwater
in
the Limpopo Province. The collision was between two vehicles, one
with registration PGG 319 GP driven by Mr Wessels, the plaintiff,
and the other DNS 032 N driven by Mr Pretorius, the insured
driver.
Although
I had initially refused an application on behalf of the defendant for
a separation of issues, after hearing the evidence
of the plaintiff I
recalled the ruling and ordered that the matter proceed on merits
only. It is also important to mention that
the basis for the
application was that it had always been the stance of the defendant
to have a separation as was evident in previous
pre-trial hearings.
Another
reason was that the defendant had withdrawn the mandate of the
previous attorneys and only appointed the present on the
Friday
before the hearing and that in view of the updated reports received
by the defendant as late as the 10 March 2015, on the
assessment of
newly appointed counsel the defendant might need review such updated
reports by appointing its own experts. The application
was opposed on
basis that the defendant had not in the past engaged any experts or
filed any such reports for consideration, that
the call was
unwarranted and would lead to delay in finalizing a long outstanding
matter.
[2]
The plaintiff pleaded as follows on negligence of the insured driver:
“
5.1
He failed to keep any,
alternatively
,
any proper lookout;
5.2
He drove at an excessive speed under the prevailing circumstances;
5.3
He failed to keep his motor vehicle, of which he was the driver,
under any
alternatively
,
any proper control;
5.4
He failed to apply the brakes of his motor vehicle of which he was
the driver timeously or at all;
5.5
He failed to avoid the collision when, by the exercise of reasonable
care, he could and should have done so;
5.6
He failed to pay due regard to the rights of the other users of the
road and in particular the rights of the plaintiff;
5.7
He failed to exercise the care of a reasonable man would have
exercised under the circumstances;”
The
insured driver in denying negligence pleaded on the negligence of the
plaintiff as follows:
“
5.4.1
He failed to keep a proper lookout;
5.4.2
He failed to take any, alternatively, sufficient cognisance of the
presence of the insured motor vehicle;
5.4.3
He failed to avoid the collision when by taking reasonable and proper
care, he should and could have done so;
5.4.4
He failed to take the rights of other road users and more in
particular of the insured driver into account;
5.5
In the alternative and in the event of the above Honourable Court
finding that the insured driver was negligent, as alleged
or at all,
and that such negligence contributed to the collision, all of which
are still
denied,
then and in that event the defendant pleads that the plaintiff was
also contributory negligent in relation to the aforesaid
collision in
one or more of the respects as set out in paragraph 5.4 above and
request the above Honourable Court to apportion
the plaintiff’s
damages.....”
BACKGROUND
Common
Cause Facts
[3]
It was common cause that both drivers knew the road very well. The
collision occurred on a gravel road that was not in good
condition;
the road surface was dry and the weather clear and that the collision
occurred in the afternoon; the collision occurred
on the curve of the
road, with the plaintiff travelling uphill and the insured driver
downhill; according to both drivers the approach
of any oncoming
vehicle at the curve was obscured by vegetation growing on either
side of the road, in particular on the right
hand side of the road in
the plaintiff’s line of travel and on the left hand side of the
insured driver’s line of travel.
For
the Plaintiff
[4]
The plaintiff was 64 years old when the accident occurred. He was a
builder by profession and earned at the time an amount of
R25 000.00
per month from his business. Ten years after the incident he still
continued in his trade. On 20 April 2004 he
was travelling from his
workplace with four of his employees who were seated at the back of
an open van. The insured driver was
also driving a van and he was
returning from a visit to his sister in the company of his
girlfriend.
[5]
The plaintiff testified that he was travelling up a very steep hill
at a speed of between 20 to 25 kilometres per hour and besides
the
steep hill he could not increase speed because of the condition of
the road as because he had passengers at the back of his
van. One Mr
Basson was travelling in a vehicle in the same lane ahead of him. Mr
Basson was not available as a witness due to ill
health. On the left
of the road was a big quarry hole. As he came around the curve he
suddenly saw a vehicle approach at a distance
of about 40 to 50
metres from his vehicle, in the middle of the road and it was
travelling at high speed skidding towards his direction.
He applied
his brakes and could not veer to the left because of the quarry hole,
the said vehicle collided with his, on his side
of the road and the
impact was on the right front of his vehicle. He sustained a fracture
to his ankle, had back pain, suffered
of headaches and was detained
for a week at the Steve Biko Hospital. He also developed problems
with blood flow on his leg which
conditions was treated.. He also
made use of the diagram of the road on page 6 of the merits bundle
and of the copies of photographs
of the scene which were in black and
white.
[6]
Mr Baleseng was employed by the plaintiff and had been one of the
passengers at the back of the van. He testified that he was
sitting
on the body of the back of the van and not on the floor because of
the bumpy road. He could see the road ahead and confirmed
the
plaintiff’s testimony that the insured driver approached at
high speed. He testified that the plaintiff was driving slowly.
The
plaintiff could not avoid the collision because there was a big hole
near the road. On impact they were nearly thrown into
the hole.
For
the Defendant
[7]
Mr Pretorius testified that before he reached the curve there was a
ditch about 15-20 cm in depth and which ran across the road.
It
caused him to slow down. As he went around the bend he observed
another vehicle travelling at high speed while his vehicle was
travelling on the left side of the road, he could not get out of the
road save but to swerve. Plaintiff applied his breaks and
the two
vehicles collided with each other either on his side of the road or
more towards the centre of the road. The impact on
his vehicle was on
the right front. He confirmed that the plaintiff was driving uphill
but that it was not as steep as the plaintiff
maintained.
The
merits bundle
[8]
The Accident Report form was used to confirm only the personal
details of the Plaintiff, the diagram therein was not useful
instead the plaintiff indicated sketch on page 6 of the merits bundle
and also some of the black and white photographs on pages
15 to 29 of
the same bundle were used by the parties. There is no indication on
the photographs of the date on which they were
taken. The
diagram on page 6 does not display measurements of the road (e.g. the
width of the road in order to determine
the position of the point of
impact in relation to the centre of the road; or the distance of the
quarry to the edge of the road),
except that it depicts the position
of the vehicles after the collision and the position of the quarry
next to the road. The plaintiff
and insured driver were referred to
photographs on pages 17,18, 21, 22, 23, 24 and 25 of the bundle, with
the insured driver making
a mark on page 25 as being the point of
impact on the road.
EVALUATION
[9]
Both drivers evidence differed in respect of the speed at which each
vehicle was travelling; on the point of impact and
whether the
plaintiff was negotiating or driving up a very steep hill.
It was further common cause that the surface
of the road was in very
bad condition and it is probable that these conditions could have
resulted in an impediment to both drivers.
Mr
Swartz submitted that the plaintiff had discharged his onus on a
balance of probabilities and that the collision was caused solely
and
exclusively by the negligent driving of the insured driver. He
argued that the evidence of the plaintiff was the more
probable in
that he could not have travelled at a high speed thereby endangering
the lives of his passengers and that his evidence
was supported by
his witness. According to him the insured driver’s demeanour
reflected uncertainty in
his
evidence, that he had gone as far as fabricating the length of the
break marks of the plaintiff’s vehicle and this impacted
upon
his credibility as a witness.
Ms
Pienaar submitted that the statements made by both drivers on a
previous occasion, which were addressed during evidence in chief
and cross-examination also had relevance in the determination of the
credibility of the insured driver in particular where he had
stated
that he had seen the break marks of the plaintiff’s vehicle
when he went to inspect his condition. She argued that
on the
authorities she cited there was contributory negligence on the part
of both drivers.
[10]
I am reluctant to criticize Mr Pretorius demeanour as reflecting upon
his credibility. He did not display such trait to me
or that there
was an attempt to mislead the court. I am also cognizant of the fact
that the incident occurred at least 10 years
ago and that it was
impossible to expect that an accurate account of the incident be
given. The onus being on the plaintiff,
I shall confine myself
to those aspects of the merits bundle that were introduced into
evidence, in order to attempt to objectively
determine the issue of
negligence.
[11]
The issue of negligence must then be determined on the principles
established in the following cases. In
Jadezweni
v Santam Insurance Co Ltd and Another
1980
(4) SA 310
(C) (Headnote):
“
where
a head on collision occurs more or less in the middle of road the
Court is entitled to infer both drivers were at fault. If
either C
of the vehicles was across the
centre line at the time of the collision the inference would be that
the driver of that vehicle was
negligent. If one of the drivers was
on his correct side and saw the other was travelling on his correct
side, or was about to
cross over onto his correct side, it would be
negligent on the former driver’s part if he failed to take all
reasonable steps
to avoid a collision”
In
Van Staden v Avenant
en ‘n Andere
1971
(2) SA 456
(NC) (Headnote)
“
Where
two vehicles pass each other then the danger areas of the two
vehicles must not encroach upon each other to such an extent
that a
collision occurs. If the two danger areas encroach upon each other to
such an extent that damage results, then there is
negligence on the
part of the one or both drivers. In the case of the drivers of motor
vehicles the middle of the road is the extreme
boundary to which the
danger areas of the vehicles concerned extend to the inside, but if
the danger area of one vehicle goes over
the middle of the road then
it does not relieve the driver of the other vehicle of his duty to do
everything to avoid the collision”
[12]
The first issue to determine is to ask what was the point of impact,
was it solely on the side of the plaintiff, in the middle
of the road
or on the side of the insured driver. I have already alluded to the
fact that the diagram on page 6 is without measurements.
The road was
a gravel one, and from pages 16, 17, 18, 21 and 23 it is clear where
the users of the road confined themselves to,
because there appears
to be room beyond the normal use which vehicles did not use and, from
the photographs grass seemed to grow
in between the gravel. On page
22 the plaintiff is seen pointing to the quarry which appears to be
fenced off.
[13]
If I were to rely on the depiction of the vehicles by the plaintiff
on page 6, then it would seem that the collision could
probably have
occurred towards the middle of the road, either in the pathway of the
plaintiff, or more towards the centre of the
road, that is, having
regard to the points of impact on the vehicle, being on the right
front of both vehicles. The depiction of
the quarry on page 6 is of
no assistance to try and determine its position to the road, so
reliance shall be placed on the black
and white photographs.
[14]
The plaintiff testified that he saw the insured drivers vehicle for
the first time at a distance of about 40 – 50 metres
when he
came around the curve. The insured’s vehicle approached at high
speed, which version was corroborated by his witness
Mr Baleseng. He
only applied his brakes. I have already indicated that from the
photographs it would seem that there was
room to manoeuvre more to
the left without falling into the quarry . The insured driver was
cross-examined on the contradiction
in his statement and testimony
relating to the break marks and of the measurements he sought to
attribute to them.
[15]
While there was a contradiction, what was important was the existence
of the break marks which confirmed the plaintiff’s
testimony
about the only attempt he made to avoid the collision. The insured
driver on the other hand did not apply his brakes
as he saw the
plaintiff’s vehicle approach or as he testified he could have
swerved more to his left to avoid the collision
. The same applies to
the insured driver regarding what could have been sufficient room to
manoeuvre to his left as depicted in
the photographs. He did only
applied his brakes.
[16]
Furthermore I am not satisfied that the plaintiff has proved on a
balance of probabilities that the gradient uphill was very
steep as
he drove towards the point of collision. If he was going uphill
it would seem that he had reached a plateau as he
approached the
curve, and from the photographs this would support the version of the
insured driver on this aspect. I conclude
that there was contributory
negligenceon the part of both drivers.
[17]
In the result the following order is given:
1.
That there was a contributory negligence on the part of both drivers
to a degree of 40% on the part of the plaintiff and 60%
on the part
of the insured driver.
2.
The defendant is to pay the plaintiff’s costs in respect of
theMerits on party and party scale;
3.
The quantum related issues are postponed
sine
die;
4.
The plaintiff approach the Registrar for a preferential date;
5.
The defendant to pay the plaintiff’s wasted costs occasioned by
the postponement of the determination on quantum on party
and party
scale;
__________
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON : 16 MARCH 2015
JUDGMENT
RESERVED ON : 17 MARCH 2015
ATTORNEYS
FOR THE PLAINTIFF : BENNETT ATTORNEYS
ATTORNEYS
FOR THE DEFENDANT : DYASON INCORPORATED