About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 287
|
|
Van Der Merwe v Road Accident Fund (16420/2013) [2015] ZAGPPHC 287 (12 May 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 16420/2013
In
the matter between:
MJ
VAN DER
MERWE
.......................................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
...............................................................................................
DEFENDANT
JUDGMENT
MOSEAMO
AJ:
[1]
Plaintiff instituted an action against the defendant claiming payment
of R2 177 319.10. The action arises from
an accident
in which the plaintiff was involved on the 11
th
October
2009. At the commencement of the trial the parties indicated
that there was an agreement between them that the trial
should
proceed on the basis the defendant was at fault in causing the
accident that occasioned the damages being claimed by the
plaintiff.
[2]
The parties also agreed on quantum of R2 050 569.16 made up
as follows:
Past hospital,
medical and related expenditure
R69 108.16
Past loss of
earnings
R
5 393.00
Future loss of
earnings
R1 676 068.00
General
damages
R300 000.00
[3]
The parties also agreed that the defendant shall furnish the
plaintiff with an undertaking
of 100% in terms of
section 17(4)(a)
of
the
Road Accident Fund Act 56 of 1996
, for the plaintiff’s
costs of future accommodation in a hospital or nursing home or
treatment or rendering of service or
supplying of goods to him
arising from injuries sustained by him.
[4]
The only issue before me is whether apportionment should apply.
[5]
Plaintiff testified that on the 11
th
October 2009 he was
travelling to work on the Kriel road. It was at night and he
was going to work night shift which was
to start at 22h00. He
was fresh as he had slept earlier that day. There was traffic
behind him and there was traffic
travelling in the opposite
direction. The weather was good, there was no moonlight and the
road was dark. Prior to
the collision he was blinded by an
oncoming vehicle which had its bright lights on. He was driving
with dimmed lights at
the time. He was at all material times
looking in front of him and did not see anything except for the
vehicle that was going
in the opposite direction. After he went
past that vehicle he put his bright lights on and he saw a stationery
truck in his
lane of travel. He was a few metres away when he
first saw it, he applied his brakes but he still collided into the
rear
of the truck as the distance was too short. He did not
swerve to the left as he could have gone off the road and he did not
swerve to the right either as there was oncoming traffic. The
only thing he could do under the circumstances was to apply
brakes.
[6]
During cross-examination he admitted that he drove on that road
regularly and he was aware there was a road turning to the right.
He denied that it was foreseeable that there could be vehicles
entering the road from that side road as the road is a gravel road
leading to a power station with a gate that is always closed.
He conceded that prior to the collision he was not aware that
the
gate to the power station is always closed. He said he did not
see any reflectors on the truck. He indicated that
he could not
swerve to avoid the collision as he was too close to the truck and
there was therefore no time to swerve. It
was put to him that
he failed to keep a proper lookout, which the plaintiff denied.
[7]
I found plaintiff to be a reliable witness. He gave evidence in a
cogent manner and made concessions where necessary.
[8]
Defendant closed its case without calling any witnesses.
[9]
It is submitted on behalf of the plaintiff that he could not have
done anything to avoid the collision other than to apply the
brakes.
It is further submitted that
Res ipsa locitur
is not
applicable in this matter as the truck was not illuminated.
Plaintiff’s counsel referred me to Seemane v AA
Mutual
Insurance Limited 1975 (4) 767 AD.
[10]
It is contended on behalf of the defendant that the truck is big and
the plaintiff could have avoided collision if he had kept
a proper
lookout and if he had not been driving at a high speed. It was
further submitted that the plaintiff did not take
any decisive steps
to avoid the collision.
[11]
The defendant in this case had to show on a balance of probabilities
the plaintiff was negligent in not avoiding the accident.
In
Hoffman v South African Railways and Harbows
1955 (4) SA 476
at 478
A-E Schreiner ACJ dealt with proper legal approach to cases where a
motorist collided with an unlighted obstruction at night.
He
quoted a passage by De Villiers J at the hearing of the matter in the
court
a quo
. ‘If the crown proves that a pedestrian or
cyclist or other object with which the motorist collided was visible
so that a
person keeping a proper look-out or driving at a reasonable
speed in the circumstances ought to have seen the obstruction in time
to avoid the accident then the inference of negligence can be drawn.
But where the evidence does not show that the person
with whom the
car collided was visible in that sense then there is no ground for
drawing the inference of negligence.’ See
Rex v Ysel
1945 TPD
235
[12]
In this case the question is whether the plaintiff could with
exercise of reasonable care have seen the truck and avoided the
collision.
[13]
I would firstly like to deal with the contention that the speed at
which plaintiff was driving contributed to the collision.
There
is no evidence before me that the plaintiff was driving at an
excessive speed under the circumstances. I find that this contention
is not supported by any facts before me and as such it is rejected.
[14]
Secondly, the defendant’s counsel contends that the truck is so
big that had the plaintiff exercised reasonable care
he have would
seen it and avoided the collision.
[15]
There is no evidence led to show that the truck was visible, so that
a person keeping a proper lookout in the circumstances
could have
seen it in time to avoid the collision. I accept the plaintiff’s
evidence that (a) the road was dark and unlit;
(b) the truck
had no lights, no reflectors and did not indicate to show that it was
turning to the right; (c) plaintiff was
blinded by the lights
of an oncoming vehicle prior to the collision; (d) plaintiff
had his eyes on the road at the time and
only saw the vehicle going
in the opposite direction.
[16]
Thirdly, It is submitted that the plaintiff could have avoided the
collision by swerving. Plaintiff testified that (a) he could
not have
swerved to the left as he could have gone off the road and he could
not have swerved to the right as there were
oncoming vehicles;
(b) he saw the truck after the vehicle that had blinded him had gone
past and he had switched on his bright
lights; (c) he was too close
to the truck when he first saw it and applied brakes.
[17]
In Manderson v Century Insurance Co Ltd
1951 (1) SA 533
AD at 544
para B-D ‘In assessing the likelihood of a collision with an
unlighted obstruction he was obliged to take into
consideration his
ability to avoid it by swerving. He knew that his lights would be
dimmed only until he passed the oncoming car.
Can it reasonably be
expected of him to have anticipated that within the very short
distance over which he would have to drive
with dimmed or rather
dipped lights he would meet with an unlighted motor-car practically
in the middle of the road and at the
very point that he would meet an
oncoming car so that he would be unable to swerve? In my opinion the
answer to that question is
in the negative.’
[18]
Applying the test applied in the Manderson case, I find that it
cannot be reasonably expected of the plaintiff to have anticipated
that there would be an unlighted motor vehicle in the middle of the
road at the time that he had just driven past an oncoming vehicle
that had blinded him.
[19]
The defendant referred to the case of Thornton and Another v Fismer
1928 AD398 at 407 where Solomon CJ stated
‘…
.the
defendant is on the horn of dilemma for either he was not keeping a
proper look out or else he was driving at an excessive
speed, and in
either event he would be negligent.’
[20]
In Seemane v AA Mutual Insurance Association Ltd
1975 (4) SA 767
AD
at 769 A-B Hofmeyer AJ stated as follows:
‘
But
there is no rule of law to the effect that collision with a
stationary or receding object at night demonstrates negligence in
the
sense that the driver was either travelling too fast for his range of
visibility or that his look-out was inadequate in the
circumstances:
in other words there is no dilemma (as a matter of law) facing a
driver involved in such a collision, which necessarily
places any
kind of
onus
on him: it is for his adversary to prove his negligence.
[21]
In Seemane v AA Mutual Insurance Association Ltd it was held that the
question was not whether the driver could have avoided
the accident
if he had driven at a lower speed and had kept a sharper look out.
It was held that the test is whether a reasonably
careful driver
would not have been entitled to drive in the manner in which the
plaintiff drove his vehicle on the night in question.
[22]
In the present case the evidence of the plaintiff regarding the
manner in which he was driving is clear. He testified
that he
was driving along on a dark road and had his eyes on the road at all
material times. He was blinded by an oncoming
vehicle and only
saw the truck after that vehicle had driven past and he had switched
on his bright lights. He was too close
and could only apply his
brakes in an attempt to avoid the collision.
[23]
The defendant has not established that the plaintiff should have
foreseen the possibility of an unlighted object in the middle
of the
road. It has neither been established that a reasonable driver
in the plaintiff’s position could have driven
in a manner
enabling him to avoid the collision, particularly at a lower speed or
swerving to the left or to the right under the
circumstances.
[24]
In my view there was no acceptable proof that plaintiff could have
been reasonably expected to avoid the collision. I
therefore
find that the defendant has failed to prove on a balance of
probabilities that the plaintiff was negligent. Therefore
the
plaintiff is entitled to his full damages.
[25]
I have incorporated the draft order as handed up by plaintiff’s
counsel except paragraph 3.3. The said paragraph
is excluded
because there were no witnesses.
In
the result I make the following order:
1.
The defendant is ordered to pay to the plaintiff on or before 28 May
2015 the sum of R2050 569.16 which amount shall be paid
to the credit
of the trust account of the plaintiff’s attorneys of record,
Marais Basson Inc, Witbank, whose trust details
are as follows:
Marais Basson
Incorporated Trust Account
Standard Bank
– Witbank
Account
Number
: […]
Branch
Code
: 052750
Ref
: Mr DA Venter /svs / VA0485
2.
The defendant is ordered to furnish to the plaintiff an undertaking
of 100% in terms of
section 17(4)(a)
of the
Road Accident Fund Act,
56 of 1996
, for the plaintiff’s costs of future accommodation
in a hospital or nursing home or treatment or rendering of a service
or
supplying of goods to him arising from the injuries sustained by
him in consequence of the motor vehicle collision on 11 October
2009
on the Kriel / Kinross Roads after the costs have been incurred and
on proof thereof.
3.
The defendant is ordered to pay the plaintiff’s taxed or agreed
party and party costs, which costs shall include:
3.1
The costs consequent upon the employment of senior junior counsel,
inclusive of the costs of appearance on 28 April 2015 and
of
attending the pre-trial conferences;
3.2
The costs of obtaining the reports (addenda thereto, joint reports
and RAF 4 reports where applicable) of and the reasonable
taxable
preparation, reservation (if any) and / or qualifying fees of the
following expert witnesses:
Orthopaedic
Surgeon
Dr
Louis Marais
Occupational
therapist
Ms Corlien MacDonald
Industrial
Psychologist
Dr D Schreuder
Actuary
Dr RJ Koch
Clinical
psychologist
Dr
Kobus Truter
Plastic
Surgeon
Dr JD Erlank
4.
If the amount owing as set out in paragraph 1 is not paid on the due
date and the amount as set out in paragraph 3 is not paid
on
presentation, the outstanding amount shall bear interest at the rate
of 9% per annum from the due date of payment.
______________________________________
PD
Moseamo
Acting
Judge of the High Court, Pretoria