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 452
|
|
Viljoen v Road Accident Fund (38267/2013) [2015] ZAGPPHC 452 (25 June 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
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
Case No: 38267/2013
DATE: 25 JUNE 2015
In the matter between:
SUSARA MARIA
VILJOEN
...............................................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
...............................................................................................
DEFENDANT
JUDGMENT
MABENA AJ:
[1] The Plaintiff instituted an action
for damages for injuries arising out of a collision which occurred on
the 15th of August
2012 between a Mercedes Benz motor vehicle bearing
the registration number [D………..] herein after,
referred
to as an insured vehicle, driven by one
Mr LLN Makwakwa and a BMW motor cycle
bearing registration number [F………] driven by one
Mr J.J Viljoen (hereinafter
referred to as the deceased), at
approximately 19h30 at the junction of Louise Street and OR Tambo
Street.
[2] The Plaintiff alleges that the
collision was caused solely by the negligence of the defendant’s
insured driver, who was
negligent in one or, more of the following
respects:
2.1 He failed to keep a proper look
out: and/or;
2.2 He failed to keep the motor vehicle
under proper control and/or;
2.3 He travelled at an excessive speed
in the circumstances of the case, and/or;
2.4 He travelled at a dangerous speed,
having due regard to the traffic conditions at a time and place,
and/or;
2.5 He failed to avoid a collision
when, by the exercise of a reasonable care, he could have and should
have done so.
2.6 He failed to apply his brakes
either timeously or at all, and/or;
2.7 He failed to give due regard to
other road users, and more particularly to the deceased, and/or;
2.8 He failed to display and exercise
the necessary degree of skill as a driver of a motor vehicle; and/or;
2.9 He executed a right hand turn at a
dangerous and inappropriate moment.
[3] As a result of the aforesaid
collision, the Plaintiff alleges that the deceased suffered injuries
and passed away on the same
day, the 15th of August 2012.
[4] The matters, as per agreement
between the parties proceeded on both liability (Merits) and quantum.
[5] COMMON CAUSE ISSUES
5.1 It is common cause that on the 15th
of August 2012 at or in the vicinity of the junction of OR TAMBO and
Louis Street, at Witbank
/ Emalahleni (Mr Jacobus Johannes Viljoen) a
motor cyclist, collided with the insured vehicle driven by LLN
Makwakwa.
5.2 It is also common cause that the
Plaintiff need only to establish 1% of causal negligence on the part
of the insured driver,
namely, Mr LLN Makwakwa in order to succeed
with her full claim.
5.3 It is further common cause that the
deceased was lawfully married to the Plaintiff on the 30th of January
1987.
5.4 It is common cause that as at the
time of the demise of the deceased, the deceased was still married to
the Plaintiff.
5.5 It is common cause that the
deceased sustained injuries in the collision that caused or resulted
in his death.
5.6 The deceased was employed, before
his demise as an engineering foreman at Extrata Coal SA and earned
per the certificate of
service and pay slips encapsulated in the
trial bundle.
5.7 It is also common cause that due to
the Plaintiff received an accelerated benefit in the amount of R 1
176 300.00 (divided by
50% equals R 588 150.00).
5.8 That the calculation makes due
allowance for the re-marriage contingency as per the official
statistics.
5.9 A 12% contingency is allowed on
past loss, 15% on future.
[6] The intersection is controlled by
traffic lights. The photo album of the vicinity of the collision was
admitted. Photo 1A and
1B, 2A and 2B
and 3A depicts OR Tambo Street at
Emalahleni. It was taken in the direction the deceased was travelling
seconds before the collision.
The insured vehicle was travelling in
the opposite direction.
[7] Photos 4A and 4B, 5A and 5B and 6A.
These photos were taken in the direction of travel of the insured
vehicle.
[8] Photo 7A depicts the insured
vehicle and the position at which it ended, after the collision.
[9] Photo 10 depicts the motorcycle and
the position at which it came to a halt after the collision.
[10] Photo 5B depicts the engine garage
at the junction in question.
[11] Photo 7A depicts the damages to
the rear left door of the insured vehicle.
[12] EVIDENCE
On behalf of the Plaintiff Warrant
officer Mphahlele was called as a witness. He testified that he
attended the scene at the aforementioned
intersection at
approximately 19:30 on the 15th of August 2012.
[13]
12.1 He testified that: The speed limit
at OR TAMBO, on that stretch of the road is 60 kilometers per hour.
He also pointed to photo
number 7A which depicts damages on the rear
left door of the insured vehicle.
12.2 Photo number 5A and B depicts the
long unobstructed view of the road. It also depicts Overhead street
lamps on the intersection.
12.3 Further that there are two lanes
on either side of the streets with turning lanes (third lane) (to the
left and to the right
for vehicles travelling in the opposite
directions of the OR TAMBO Street).
12.4 That the AR Form was completed by
someone else. That “A” on the sketch plan represents the
insured vehicle. That
“B” represents the motorcycle.
12.5 He identified the point of impact
between the motorcycle and the insured vehicle by the presence of
broken glasses and debris
lodged on the road as a result of the
impact.
12.6 That the damage to the insured
vehicle as depicted in photo 7A indicates that the insured vehicle
was on the way of the motorcycle.
12.7 That at the point of impact the
insured vehicle was on the verge of turning.
[13] It was put to warrant officer
Mphahlele during cross-examination that the insured vehicle was
already 180% angle before the
accident and that the impact of the
collision spinned it around. That the motorcycle was travelling at a
high speed to an extent
that it caused the insured vehicle to spin
around due to the impact.
[14] It was further put to him that
after the impact the insured vehicles spinned around and ended at
point “E” of the
sketch plan and not point “B”
as testified by Warrant Officer Mphahlele.
[15] The following propositions were
also put to Warrant Officer Mphahlele;
15.1 That the insured driver testified,
inter alia that as he approached the intersection the lights turned
amber and then red.
15.2 That there was a vehicle in the
opposite direction that had come to a standstill at the traffic
lights.
15.3 That the insured driver brought
the vehicle to a stop, and a green arrow flickered to the right,
giving him the right to execute
a right turn into Louise Street.
15.4 That as the insured driver
proceeded to execute the right turn and as his vehicle was in the
right angle, he saw, with the
corner of his eye, a motorcycle
approaching, and heard a bang. It collided with the insured vehicle
on the left rear door.
15.5 It was lastly put to him that
there was nothing the insured driver could have done to avoid the
collision, at that time.
The Plaintiff closed its case without
calling further witnesses.
[16] The defendant called Mr Linda Leo
Makwakwa as a witness. He testified that:
16.1 That on the 15th of August 2012 he
was driving his Mercedes Benz which collided with a motor cycle at
corner OR TAMBO and Louise
Street, at Emalahleni.
16.2 He travelled from N4 freeway, into
OR Tambo Street off-ramp.
16.3 He is familiar with that stretch
of the road as well as the junction in question.
[17] That as one approaches the OR
Tambo and Louise intersection, the road broadens on the side of the
first lane, in order to make
room for a third lane, (turning lane
into the right). And the same applies with regard to the vehicles
travelling in the opposite
direction. The road widens to accommodate
the turning lane to the left.
17.1 That as he approached the
intersection, the robot was green and it was followed by amber, and
upon reaching the intersection,
it turned red. This was later
followed by the flickering green arrow, signaling right of way to
vehicles turning to the right into
Louise Street.
17.2 According to his experience, if
the robot is red for vehicles travelling straight in the opposite
directions over the intersection,
the green arrow applies to vehicles
turning right or left (on the third lane) of the lanes. As the green
arrow flickered to the
right, he proceeded to enter the intersection
after ensuring that it was safe to enter the intersection. He was
driving, at that
time, 20 to 25 kilometers per hour and the
headlights of his vehicle were switched on.
17.3 As he was executing the turn,
having already negotiated same, he saw with the corner of his eye, a
motorcycle approaching,
that his vehicle had already turned into
Louise Street, as depicted by photo 7A. The motorcycle collided with
the insured vehicle.
It spinned around and faced the direction of the
police station (That is, the opposite corner of the intersection).
That there
was nothing he could have done to avoid the collision.
[18] He was extensively cross-examined
on the functioning of the robots, more pertinently the position in
regard to the green arrow
are red in both directions. He was also
extensively cross-examined about his disparities in his viva voce
evidence and the affidavit
he deposed of dated 22 November 2012. In
this affidavit, (page 48, paragraph 4) Mr Makwakwa deposed that:
“On the 15th of August 2012 at
about 20h15 in the evening and at Emalahleni, I was driving
southwards at OR TAMBO, and as
I approached the OR TAMBO and Louise
street intersection, I intended to turn right at the intersection.
The intersection is controlled
by traffic lights at that time, a
traffic light was showing an arrow flickering green affording me a
right way to right into Louise street
and travelled eastwards”.
[19] It was put to Mr Makwakwa that
this deposition is at variance with his viva voce evidence. That his
viva voce evidence as outlined
above is inter alia, that he stopped
at the intersection until the green arrow flickered giving him right
of way into Louise Street.
[20] It was also put to him that he did
not keep a proper look out. Hence he did not notice the motorcycle
approaching. Mr Makwakwa
contended that the extent of the damage on
the insured vehicle and the fact that after the collision the insured
vehicle rotated
slightly, were indicative of the excessive speed the
motorcycle was travelling at the time of the collision.
EVALUATION OF EVIDENCE
21.1 The Defendant did not challenge
the evidence of Warrant Officer Mphahlele regarding the directions of
travel of both the motorcyclist
and the insured driver.
21.2 The evidence of the break marks on
the tunnel was not disputed nor challenged by the Defendant.
[21]
22.1 That the insured driver executed a
right turn under the circumstances while there was a green arrow
flashing which gave him
a right of way was challenged by the
Plaintiff.
It was submitted on behalf of the
Plaintiff that the insured driver has not established that when he
executed the right turn into
Louise Street, the arrow was flashing
green due to contradictions in his evidence.
22.3 In viva voce evidence the insured
driver testified that he stopped at the intersection before executing
a turn to his right.
However, in his affidavit, he deposed that he
executed the turn without stopping.
22.4 The insured driver’s viva
voce evidence is that he saw, with the corner of his eye, the
motorcycle at a late stage, while
in his affidavit he deposed that he
never saw the motorcycle and he only heard a noise of impact.
[23]
23.1 That even if the arrow was
flashing green for the insured driver it is clear that he had no
appreciation of the oncoming vehicles
and in particular the
motorcyclist. There was a vehicle which had stopped in the first lane
of oncoming traffic, however there
was no obstruction in regard to
the second lane in which the motorcyclist was travelling.
23.2 The inexplicable failure to notice
or hear the oncoming motorcycle, lend credence to the view that the
insured driver failed
to keep a proper lookout.
[24]
24.1 In Franco v Klug 1940 (AD) 126, it
was held that a driver entering an intersection does not have an
absolute right of precedence.
24.2 It was held in Rondalia Assurence
Corporation of South Africa Ltd v Page and others
1975 (1) SA 708
(AD) that a driver entering an intersection is under a duty to keep a
proper “general look-out”.
[25]
25.1 A motorist was negligent because
despite having a clear view of the cross road for about 100 to 150
yards, he had failed to
see a motorcyclist “...Until the last
moment...”
Marine and Trade insurance Co. Ltd v
Biyasi
1981 (1) SA 918(A).
In this case the court also held that
although the motorcyclist had been the “Primary cause of the
collision”, the insured
driver "... would also have
realized... that the Plaintiff was not going to stop at the stop
line... and would in that event,
have taken effective steps to avoid
the collision, e,g by sounding a hooter to alert the Plaintiff to the
danger, or by applying
his brakes and bringing his car to a stop,
before reaching the Plaintiffs path of travel”.
[26]
25.2 On the insured driver’s
testimony that the motorcyclist was driving at a high speed, this
suggestion it was submitted,
was based solely on unacceptable surmise
and the extent of the damage to the insured vehicle, one cannot infer
that the motorcycle
was driving at a speed higher than the speed
limit.
25.3 The question that the impact
caused the vehicle to rotate suggest that the motorcycle might have
been at a high speed, it was
submitted on behalf of the Plaintiff
that this is an aspect of expert evidence. This can only be
determined after one has taken
into account aspects of momentum,
co¬efficiency of friction, angles of attach etc which all fall
within the realm of expert
evidence. There is merit in this
submission.
26 3 This court was referred to the
Full Bench in Motor Vehicle Assurence Fund v Kenny
1984 (4) SA 432
(E) at 436 H-l where the following was said where there are experts
involved:
“Strange things happen in a
collision and, where two vehicles approaching each other from
opposite directions collide, it
is practically impossible for anyone
involved in the collision to give a minute and detailed description
of the combined speed
of the vehicles at the moment of impact, the
angle of contact with subsequent lateral and forward movements of the
vehicle”.
[26] This court is convinced that one
cannot infer by the degree of rotation, what the speed was if one
does not know what the angle
of attack was.
[27] I am of the view that on either
versions of the insured drivers in regard to stopping or not stopping
at the intersection,
he had ample opportunity to notice the
approaching motorcyclist. His failure to do so constitute negligence.
[28] I accept the version of the
Plaintiff as plausible and on the balance of probabilities, the
Plaintiff has been able to show
that the collision was caused solely
by the negligent driving of the defendant insured vehicle.
[30] The Plaintiff only has to prove 1
percent negligence against the Defendants in order to succeed in
100percent of her claim.
[31] In the result, I make the
following order:
1. The Defendant’s negligent
driving on the 15th of August 2012 was the sole cause of the
collision between the motorcycle
bearing registration number FHK
123MP and the insured vehicle bearing registration number DW 657MP on
the junction between OR TAMBO
Street and Louise Street at Emalahleni.
2. A draft order hereto annexed and
marked “X” is made an order of this court.
M.H. MABENA.
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION