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[2015] ZAGPPHC 260
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Johnson v Road Accident Fund (13020/2014) [2015] ZAGPPHC 260 (8 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
13020/2014
DATE: 8 MAY 2016
JOHNSON, DANIEL
JAMES
......................................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
........................................................................................................
DEFENDANT
JUDGMENT
THOBANE AJ,
[1] The plaintiff in
this matter issued summons against the Road Accident Fund, the
defendant, for damages arising out of a motor
collision that occurred
on the 22nd January 2013, in Waverly Pretoria, Gauteng Province.
[2] The defendant
defended the matter and denied all forms of negligence. The defendant
further pleaded, over and above denial of
negligence, in the
alternative, that should the court find that the insured driver
contributed to the collision, apportionment
be applied in accordance
with the provisions of the Apportionment of Damages Act No. 34 of
1956.
[3] At the
commencement of proceedings, the parties advised that they had agreed
on a separation of issues in terms of the provisions
of Rule 33 (4)
of the Rules of Court. The matter accordingly, proceeded on the
question of liability only and the question of quantum
was held over
for later adjudication.
[4] The crisp issue
for determination is where does negligence lie.
(a) Was the insured
driver negligent,
(b) Was the
plaintiff negligent,
(c) Apportionment of
negligence, if any.
[5] The version of
the Plaintiff is that he was on a motor cycle traveling from west
towards the east. The insured driver, so the
Plaintiff testified, had
been driving from the east towards the west. This means both the
motorcycle as well as the insured vehicle
were traveling in opposite
directions. When they were about to pass each other, the insured
vehicle simply turned in front of the
motorcycle without indicating.
The motorcycle then collided with the left side of the vehicle. He
ended up on the road.
[6] During cross
examination plaintiff confirmed his version that when he saw the
insured vehicle approaching he had reduced speed
from 60km/h to
50km/h as he suspected that the insured vehicle might turn after he
had passed it. The defendant's version was put
to him so that he
could comment on it. It was put to him that the version of the
insured driver was to the effect that both the
motorcycle and the
insured vehicle had been traveling in the same direction and that the
plaintiff decided to simply overtake on
the left hand side, which was
clearly negligent. He indicated that the insured vehicle had not been
stationary as he approached
it prior the impact. It was further put
to him, in view of his admission that he did not a have a license to
drive the motorcycle,
that his actions were clearly unlawful.
Pertinently, it was put to him that the defendant had an independent
witness who would
confirm, thus corroborate the defendant's version
that he, plaintiff, overtook the insured vehicle on the left hand
side.
[7] The insured
driver Mr Jansen Van Rensberg testified that he was a driver of some
15 to 20 years experience and that on the day
of the collision, he
was traveling from west to east on the single carriage road. As it
was his intention to turn left, he put
on his indicators. While
turning, the motorcycle driven by the plaintiff collided with the
left hand side of the insured vehicle.
The plaintiff was flung off
his bike onto the side of the road the road between two trees. The
insured vehicle on the other hand
was damaged on the left door up to
the the fender which was consistent with a "side swipe like"
collision. He further
indicated that he had observed the motorcycle a
few blocks back but prior the impact he did not see it. When invited
to comment
on the version of the plaintiff he indicated that he is
certain that both vehicles had been traveling in the same direction
and
that since his vehicle was fitted with a tracking devise he would
be able to back up that claim. According to him the plaintiff
was
fully responsible for the collision.
[8] During cross
examination he indicated that he had not been aware of the plaintiff
when he turned and that he had already turned
a bit when the
collision occurred. He confirmed that he had checked his rear view
mirror but not the left hand side mirror prior
to turning. He was not
forthcoming when it was put to him that, on his version, had he
looked into the left hand side mirror, he
would have seen the
plaintiff and therefore would have acted differently. He denied that
the insured vehicle as well as the motorcycle
had been traveling in
opposite directions.
[9]
In their respective addresses both parties were in agreement that
there were two mutually destructive versions before court.
On the one
hand, it was submitted on behalf of the plaintiff that the evidence
of the plaintiff, to the effect that the insured
driver turned in
front of him, was clear and is to be believed. That if the insured
driver had kept a proper lookout as would be
expected of a driver of
his experience and as required by law, the collision would not have
happened, irrespective of where the
plaintiff came from. Finally that
the collision was caused by the sole negligence of the insured
driver. In the alternative it
was submitted that should apportionment
be applicable, then in that event the percentage to be applied was
30/70 in favour of the
plaintiff. On the other hand it was submitted
on behalf of the defendant that in instances where there were two
mutually destructive
versions, as
in casu,
absolution
from the instance should be granted with costs. It was submitted that
the version of the plaintiff should be rejected,
for the plaintiff
was an inexperienced driver without a license, therefore would not
have had the diligence of an experienced driver
such as the insured
driver. Further, that the impact as described would have been
possible only if the vehicles had been traveling
as explained in the
version of the insured driver, i.e. traveling in the same direction.
Finally, that there was no reason for
the insured driver to look to
his left as the road was a single lane carriage road.
That should
apportionment be applied, the plaintiff should be penalized by
awarding him only 20% of proven damages.
[10] Despite an
indication on behalf of the defendant that there was corroboration of
the insured driver’s version by an independent
witness, such a
witness was however not called. There was also no expert evidence led
which could have assisted in establishing
how the collision occurred,
in view of the mutually destructive versions.
[11]
In dealing with the mutually destructive versions, the approach to be
application was clearly spelt out in the matter of
National
Employers General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E)
at
440E-441 A, where Eksteen AJP said:
“
It
seems to me, with respect
;
that in any civil
case, as in any criminal case, the onus can ordinarily be discharged
by adducing credible evidence to support
a 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 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 plaintiff’s allegations
against the general probabilities.
The estimate of credibility of the
witness will therefore be inexplicably 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 plaintiff’s
case any 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.
This
view seems to me to be in general accordance with the view expressed
by COETZEE, J in
Koster Koóperatiewe
Landboumaatskappy Bpk v Suid-Afrikaanse Spoorwee en Hawens
(supra)
and
African Eagle Assurance Co Ltd v Cayner
(supra).
I would merely stress, however, that when in such circumstances one
talks about a plaintiff having discharged the onus
which rested upon
him on a balance of probabilities one really means that the Court is
satisfied on a balance probabilities that
he was telling the truth
and that his version was therefore acceptable. It does not seem to me
desirable for a Court first to consider
the question of the
credibility of the witnesses as the trial Judge did in the present
case, and then, having concluded the enquiry,
to consider the
probabilities of the case, as though the two aspects constitute
separate fields or enquiry. In fact, as I have
pointed out, it is
only where a consideration of the probabilities fails to indicate
where the truth probably lies, that recourse
is heard to an estimate
of relative credibility apart from the probabilities.
"
[12] The Supreme
Court of Appeal has given guidance as to the technique to be applied
in circumstances where a trial court is faced
with two irreconcilable
versions.
Stellenbosch
Farmers
'
Winery Group Ltd and Another v Martell Et CIE and
Others
2003 (1) SA 11
(SCA),
where
the following is stated at 141-15G:
‘
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities.
/As
to (a)
[credibility],
the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity of the witness
.
That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness ’[s]
candour and
demeanour in the witness-box; (ii) his bias, latent and blatant; (Hi)
internal contradictions in his evidence; (iv)
external contradictions
with what was pleaded or put on his behalf, or with established fact
or with his own extra curiaI statements
or actions; (vi) the calibre
and cogency of his performance compared to that of other witnesses
testifying about the same incident
or events. As to (b), a
witness'
[reiiabiiity]
will
depend
,
apart
from the factors mentioned under (a)(ii), (iv) and (vi) above, on (i)
the opportunities he had to experience or observe the
event in
question and (ii) the quality and integrity and independence of his
recall thereof. As to (c)
[probabilities],
this
necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will then, as the final step, determine whether the party
burdened
with the onus of proof has succeeded in discharging it. The hard
case, which will doubtless be the rare one, occurs when
a court’s
credibility findings compel it in one direction and its evaluation of
the general probabilities in another The
more convincing the former,
the less convincing will be the latter. But when all factors are
equipoised probabilities prevail.
"[Words in square brackets and
emphasis added.]
[13] In considering
the credibility of the two factual witnesses that gave testimony, I
can not, on the evidence before me, find
that one was more credible
than the other. Both witnesses gave good accounts of their respective
versions. Unfortunately the versions
as put by them can’t both
be true. For starters, their respective accounts of how the vehicles
were traveling, immediately
prior the collision, is problematic.
Plaintiff was adamant that the vehicles were traveling in opposite
directions facing each
other, whereas the insured driver was emphatic
that they were traveling in the same direction. The plaintiff is of
the view that
the insured driver turned the insured vehicle in front
of him on the one hand and on the other, the insured driver testified
that
plaintiff sought to overtake on the wrong side of the road just
as he was turning, hence the collision. Both versions can not be
reconciled. What is helpful however, is the point of impact which the
parties indicated was common cause and which the plaintiff
pointed
out on photo 1, by making of a mark, and to which the defendant did
not have a problem. I shall return to the point of
impact later when
assessing probabilities.
[14] As to
reliability, the versions of both the insured driver and the
plaintiff appear to be reliable. It is only when one considers
whether any of them had a good and proper opportunity to observe that
the scales tilt, in my view, in favour of the plaintiff.
If is
significant that it was put to the insured driver whether he looked
to his left prior to executing a turn. Generally a driver
has a duty
to at all times keep a proper lookout. He has to be at all times
alert more especially when turning. On his own version,
the insured
driver failed to observe such a duty. He failed to look to his left
before turning to the same side. It was argued
on behalf on the
defendant that there existed no law to the effect that the insured
driver ought to have looked to his left. The
insured driver himself
testified that there was no danger on the left hand side, that
necessitated him looking in that direction.
The duty of care however,
required of the insured driver to look to his left given that he was
going to execute a turn to the left.
When considering the question as
to whether which of the versions is more reliable, I find the version
of the plaintiff to be more
reliable.
[15]Drivers
on the road have a duty to keep a proper lookout. Such a duty, means
more than looking straight ahead. It includes awareness
of what is
happening in one’s immediate vicinity. A driver should have a
view of the whole road from side to side and in
the case of a road
passing through a built-up area, as well as the pavements on the side
of the road. See
Diale v Commercial Union
Assurance Co of SA Ltd
1975 (4) SA 572
(A).
[16]
When considering probabilities, I find the version of the plaintiff
to be more credible. The plaintiff was invited to make
a mark of the
point of impact on a photo which was part of Exhibit "A".
As indicated, the point of impact is not in dispute.
The mark made by
the plaintiff is located in the middle of the road on the east bound
lane in photo 1. For the point of impact
to be there, on the version
of the insured driver, meant that the insured vehicle would have had
to first move and encroach on
coming lane, partially, before turning
left. There was no evidence that such a maneuver was executed. The
probabilities are that
if the insured vehicle did not move inwardly
prior to turning, then the point of impact would have been more
towards the left,
in that the plaintiff would have sought to pass
next to the pavement. The undisputed point of impact, the damages on
the insured
vehicle coupled with the position as to where the
plaintiff landed, on his version, after the collision, point to the
probability
that the insured vehicle turned in the face of the
motorcycle suddenly, hence the collision. In this regard, it has been
repeated
in a long line of cases that to turn across the line of
oncoming or following traffic, is an inherently dangerous maneuver
and
that there is a much more stringent duty upon a driver who
intends executing such a maneuver to do so by properly satisfying
himself
that it is safe and choosing the opportune moment to do so.
See
AA Mutual Insurance Association LTD v Nomeka
1976 (3) SA 45
(AD) at 52E.
In
this regard I find therefore, that the version of the plaintiff, as
to how the collision occurred, is more probable.
[17]
The defendant pleaded apportionment. It was submitted in the
alternative that the plaintiff contributed to the collision. The
onus
of establishing such negligence rests with the defendant. See
Solomon
and Another v Mussett and Bright Ltd
1926 AD 427
at 435.
The
defendant should on its part adduce or elicit sufficient evidence to
support a finding of negligence on the part of the plaintiff
as well
as a causal connection to the collision if it is to succeed with
establishing contributory negligence. The submission that
the
plaintiff did not have a license and that he was less experienced
than a diligent driver is not helpful in that endeavor. The
defendant's pleaded case regurgitates the normal grounds of
negligence without necessarily pointing to how it is alleged that the
plaintiff was negligent and specifically the causal connection.
[18] The duty of
care however applies to all road users, which include the plaintiff.
The plaintiff testified that as he approached
the insured vehicle he
reduced speed from 60km/h to 50km/h. Visibility was clear and the
road surface did not present any challenges.
If the plaintiff had
kept a proper lookout he would have observed that the insured vehicle
had slowed down. On his own version
he thought the insured vehicle
was going to turn after he had passed it. It means that the plaintiff
was aware of the possibility
of the insured driver turning. In my
view, his failure to take evasive action, points to the fact that he
did not act as would
have been expected of a reasonable driver. This
means that he failed to keep a proper lookout, failed to exercise
reasonable care
and failed to take reasonable steps to avoid
colliding with the insured driver.
[19] While I find
that the plaintiff has discharged the onus resting on him to prove
negligence on a balance of probabilities, I
am also of the view that
there is contributory negligence on the part of the plaintiff and the
degree of negligence therefore has
to be apportioned between the
plaintiff and the defendant.
[20]
In the result, I assess the insured driver’s blame at 80% and
that of the plaintiff at
20%.
[21] There is no
reason why the defendant should not be ordered to pay the costs of
the action.
[22] I therefore
make the following order;
[22.1] The defendant
is liable for 80 percent of the plaintiff's proven or agreed damages,
[22.2] The defendant
is ordered to pay the plaintiff's costs.
SA THOBANE
ACTING JUDGE OF
THE HIGH COURT
Counsel for
Plaintiff: Adv. Van Eeden
Counsel for
Defendant: Adv. Keet
Date heard: 7th May
2015
Date of Judgment:
8th May 2015