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[2015] ZAGPPHC 519
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Van Vuuren v Road Accident Fund (35330/2012) [2015] ZAGPPHC 519 (25 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
Case No: 35330/2012
25/6/2015
In
the matter between:
MAGERETHA
DOROTHEA
JANSEN VAN
VUUREN
PLAINTIFF
(In
her capacity as the executrix)
and
ROAD
ACC
I
DENT
FUND
DEFENDANT
JUDGMENT
MABENA
AJ:
[1]
The Plaintiff (in her capacity as executrix of the
estate) of the late CHRISTIAAN HARMSE JANSEN
VAN
VUUREN (the husband), instituted an action
for compensation for damages arising from a motor
vehicle accident
which occurred on the 5th of January 2011, at about 10:00, on the N3
Highway South bound (on the double carriage
stretch
of
the road), towards Durban, at approximately 10 kilometers from the
MarianHill toll-gate.
[2]
The Plaintiff was the driver of a silver grey RAV4 bearing
registration number BMX 443L which collided with a silver Caravelle
Microbus with registration number [………] herein
referred to as the second insured vehicle.
[3]
There was also a third vehicle involved in the collision, which
allegedly overturned in front of the husband's vehicle, travelling
on
the left lane of the carriageway, that is on the left lane of the
double carriage.
[4]
As the pleadings were closed at the time of the demise of the
husband, the Plaintiff substituted him, following a notice in
terms
of Rule 15 (2) of the Rules of this Court. Therefore, the Plaintiff
sues in her capacity as the Executrix of the deceased
estate.
[5]
The parties agreed that the issue of Past Medical Expenses and
General Damages be postponed
sine die.
Therefore the only
issue for adjudication at this juncture is the issue of liability.
[6]
COMMON CAUSE ISSUES:
6.1
It is common cause that the collision between the Plaintiffs vehicle
and, the second insured driver's
vehicle occurred on the latter's
side of the road (i.e oncoming lane of the double carriage).
6.2
That the N3 is a double carriage highway on either side of the road,
proceeding to the southely and
northely directions.
6.3
It is common cause that the first insured driver's vehicle overturned
in the left lane in front of her
husband's vehicle. The Plaintiff,
allegedly, in order to avoid colliding with the first insured
vehicle, turned to the right lane,
lost control of his vehicle and
collided with the second insured vehicle, which was travelling in the
opposite direction, in the
northely direction.
6.4
That there was heavy rainfall at the time of the accident.
[7]
The Plaintiff allege that the accident was caused solely by the
defendants first insured driver, driven, at that time, by one
Phumlani Nxumalo,
alternatively
the second insured
driver, at that time, driven by one R. Pretorius and further
alternatively,
by the joint negligence of the first
insured driver and second insured driver.
[8]
With regard to the first insured driver, the Plaintiff allege that
the collision was caused solely by his negligent, in one
or more of
the following respects:
8.1
He lost control of his vehicle, causing it to overturn in heavy rainy
conditions, causing an obstruction
in the road;
8.2
He failed to avoid a collision by taking reasonable and
proper care, he both could
and should have done so;
8.3
He failed to keep a proper lookout;
8.4
He travelled at a speed which was excessive in the circumstances;
8.5
He failed to apply his brakes timeously or at all;
8.6
He failed to maintain any,
alternative sufficient control over the
first
insured
vehicle;
[9]
ALTERNATIVELY, the collision was caused solely by the negligence of
the second insured driver who was negligent in one or more
of the
following respects:
9.1
He collided with the Plaintiff's vehicle after having noticed that
the Plaintiff was
attempting to avoid a collision with the first
insured vehicle.
9.2
He failed to avoid a collision by taking reasonable and proper care
when both
could and should have done so;
9.3
He failed to keep a proper lookout;
9.4
He travelled at a speed which was excessive in the circumstances;
9.5
He failed to apply his brakes timeously or at all;
9.6
He failed to maintain any, alternative sufficient control over the
insured vehicle.
[10]
FURTHER
ALTERNATIVELY,
the collision was
caused by the joint negligence of the first and second insured
drivers, who were negligent in one of the grounds
set out above.
[11]
As a result of the collision, the Plaintiff allegedly sustained the
following bodily injuries:
11.1
Skull fracture with haemorrhaging from both ears, subdural haematoma
and head lacerations.
11.2
Diffuse axonal brain injury (haemorrhages) causing frontal lobe
dysfunction regarding cognition and
behaviour.
11.3
Permanent serious psycho-organic disturbances and
loss of intellectual
capacity;
11.4
Loss of smell, taste and hearing;
11.5
Left scapula fracture with glenoid fossa involvement;
11.6
Multiple rib fractures, with intercostal nerve
damage and right
pneumothorax as well as a mediastinal
shift to the left;
11.7
Left sided hemi-paresis;
11.8
Myofascial injuries to the cervical and lumbo-sacral spine.
[12]
It is further alleged that a result
of the aforesaid severe injuries
sustained by the Plaintiff in the collision:
12.1
The Plaintiff was rendered unconscious on impact treated in ICU while
in a coma with GCS 8/15 and was intubated
and artificially vetilated;
12.2
An underwater drain for his haemopneumothorax was applied;
12.3
He was eventually cared for in a rehabilitation unit;
12.4
The Plaintiff endured pain, suffering and discomfort and
will in future continue to endure
such pain, suffering and
discomfort;
12.5
The Plaintiff suffered emotional shock and
trauma and will in
future suffer emotional shock and
trauma;
12.6
The Plaintiff underwent medical treatment, the full nature and
extent whereof is more fully set out
in the Medigo Legal Report by
Dr D de Klerk (Neurosurgeon), attached as Annexure "A"
attached to the Plaintiff
s particulars of claim.
12.7
The Plaintiff suffered loss of enjoyment of life and has suffered
brain damage, loss of memory, loss
of concentration and
attention, an inability to control impulses and live independently;
he suffers from physical disability, specifically
relating to his
hemi-paresis (has to walk with crutches) and pain to the ribs and
shoulder, as a result of the collision and his
injuries sustained
therein.
[13]
The Plaintiff accordingly, allegedly suffered damages in the amount
of
R
3 550 000.00
calculated as follows:
13.1
Past medical expenses
R
550 000.00
13.2
Future medical expenses
R
1 000 000.00
13.3
General damages
R
2 000 000.00
_______________
TOTAL
R 3 550 000.00
[14]
In
viva
voce
evidence, the Plaintiff
testified that she was a passenger in the vehicle, a RAV4 utility
vehicle, bearing registration number BMX
443L, driven by her husband.
[15]
That it was raining heavily. Visibility was poor. That for a while
prior to the collision they had been driving 110/115 kilometers
per
hour. As the rain got heavier, the deceased reduced the speed to 70
kilometers per hour. She observed it from the instruments
cluster.
She
even
confirmed it with the deceased.
[16]
Suddenly the first insured driver's vehicle overturned in front of
their vehicle. The overturning vehicle slided in the same
direction
of travel, thereby obstructing the husband's left lane of travel. The
husband's vehicle and the first insured driver's
vehicle were both
travelling on the left lane of the carriageway.
[17]
She testified that in an attempt to avoid colliding with the first
insured driver's overturned vehicle, her husband swerved
the
Plaintiffs vehicle to the right lane, then lost control of the
vehicle. The vehicle skidded across the highway and onto grass
median
dividing the carriageways, and ended in the incorrect and oncoming
lane of the second insured driver's lane of travel. The
Plaintiff's
vehicle collided with the second insured driver's vehicle on the
latter's correct side of the road.
[18]
Under cross-examination, amongst others, she was asked why she
enquired about the speed limit from the deceased if she could
observe
it herself, from where she was seated. Her response was that she
could not see the speedo-meter clearly as visibility was
poor due to
the prevalent weather conditions.
[19]
The Plaintiff closed its case.
[20]
The Defendant closed its case without calling any witness.
[21]
The Plaintiff does not dispute that the accident occurred on the
second insured driver's side of the road. Let alone that it
is a
common cause issue.
[22]
Mr De Vries, who appeared for the Plaintiff submitted that only the
negligence act of the first insured vehicle is causally
linked for
the damage suffered by the Plaintiff. That the presence of the
overturned vehicle in the left lane gave rise to the
sudden emergency
which necessitated the husband to take action as he did, in an
attempt to avoid the danger in circumstances of
sudden emergency.
[23] In other words, the
Plaintiff rely on the presence of the overturned first insured
driver's vehicle in the left lane of the
highway as conduct causally
connected to the damages eventually suffered by the Plaintiff
[24]
On the other hand, on behalf of the Defendants it was argued that,
once it is proven that the Plaintiff's vehicle, as in this
case,
entered the incorrect side of the road, as at the time of the
collision, this gives rise to an inference of the driver's
negligence. Consequently, an evidential burden is cast upon the
Plaintiff to adduce evidence sufficient to rebut the inference
of
negligence. Mr Kanyane referred me to
Colin Authur
Weir
v James Savage [2013) ZAWCH C 31 (27 February 2013).
If
the explanation is insufficient to dispel an inference of negligence,
the Plaintiff will be held negligent.
The
law of collision in South Africa by HB Wopper at page 78.
[25]
Also
In President
Insurance Company
Limited
v Tshabalala
and another
1981
(1)
SA
1016
(A)
@
1020
C,
it was held that, in an
impending collision, as a general rule, one must avoid swerving to
his or her incorrect side of the road.
[26]
In effect, the doctrine of sudden emergency is that a driver acting
in the best way to avoid danger in a sudden emergency,
is not
negligent.
Goode v SA Mutual Fine and General Ins
1979 (4) SA 3
or
Brown v
Hunt
1953 (2) SA 540
(A).
The
Plaintiff must therefore further explain or negative apparent
negligence
[27]
Cooper's
Delictual Liability in Motor
law,
1996
@
page
275 alludes that it is trite that a driver who is faced with a sudden
emergency
is
required to exercise
reasonable care and use
reasonable skill to avoid imminent danger.
[28]
In applying the aforesaid doctrine to the present case, I am inclined
to posit the following questions:
28.1
Did the "act" of overturning of the first insured vehicle
place the Plaintiff in such a position
of danger that the latter had
to take steps to try and avoid colliding with it?
28.2
Putting it differently, is it the first insured driver's conduct
which created the risk of harm to
the Plaintiff, a substantive part
of the causative link leading to the damages suffered by the
Plaintiff?
Kruger V Van Der Merwe
1966 (2) SA 266
(A).
28.3
Is the "act" of overturning of the first insured driver's
vehicle causally connected
to the damage eventually suffered by the
Plaintiff consequent a collision with the vehicle of the second
insured driver?
The
attribution of Negligence to the first insured driver by virtue of
mere "act" of overturning of the vehicle, as negligent
conduct which was operative at the time of the collision and linked
to the husband's bodily injuries, would be premised on the
basis that
"negligence causes harm". And not that negligence is the
attribute of the "conduct" which causes
harm. Consequences
flow from conduct and not negligence. As alluded above, the "act"
of overturning of a vehicle does
not constitute negligence unless the
"act" created a risk of harm.
[29]
On the facts, the weather conditions did not permit driving at the
normal speed limit in the highway which is 120 kilometers
per hour.
Visibility was poor to permit normal speed limit. There may have been
sufficient time for the husband to exercise an
option for swerving
into the right lane at the critical time. Since there was time to
weigh the pros and cons, I do not understand
why the husband did not
choose any of the below mentioned available options, and preferred to
enter the right lane.
[30]
Moreover, the evidence of the Plaintiff merely outlines the events as
they occurred and as she observed them as a passenger
in the vehicle,
but she could not assist this court with regard to the crucial
explanation why the husband manoevered the vehicle
the way he did
causing his vehicle to end up in the opposite lane of travel.
30.1 Why the
husband chose to veer into the right lane instead to the left of the
road.
30.2 Why he
considered that option to be safe.
30.3 In view
of the weather conditions, and specifically the minimal speed he was
allegedly driving, why he chose the
second lane as a safer option.
30.4 As the
first insured vehicle, was sliding forward, what danger did it pose
to the husband as according to evidence
he was only driving 70 kpm.
30.5 Why
didn't he react to the overturning vehicle in any other way other
than swerving to the right lane, since he
had enough time to weigh
the pros and cons of the situation, and choosing to swerve to the
right lane.
30.6 Why
didn't he apply his brakes?
[31]
In the absence of evidence in this regard, I am unable to determine
whether or not the reasonable man would have acted in the
manner the
husband did. I do not have an explanation why the husband could not
bring his vehicle under control, under those circumstances,
in the
material time.
[32]
In my view, a reasonable man would not have acted the way the
deceased did. Notwithstanding the above, the Plaintiff as a
reasonable driver, on the road that has two lanes driving 70 kpm
should have chosen a safer option, would have applied his brakes
or
pulled over on the side of the road. He would also foresee the other
vehicle stopping in front of him. The overturned vehicle
did not
create any risk of harm to him which is causally connected to the
collision with the second insured vehicle, in the opposite
carriageway.
[33]
Indications are that the husband was driving very fast, regard being
had of the weather conditions. He consequently could not
bring his
vehicle under control under those circumstances.
[34]
On the other hand, the Defendant did not call the driver of the first
insured vehicle as a witness. No reasons were advanced
for failure to
do so. Consequently and similarly, without an explanation from the
driver of the first insured vehicle as to what
caused his vehicle to
overturn, one cannot, by a mere conduct of overturning of a vehicle,
draw an inference of negligence against
the driver. No evidence
is advanced as to how and why he lost control of the vehicle.
[35]
35.1 Consequently,
in the absence of any explanation on the part of the Plaintiff as to
why, on the face
purported sudden emergency, the husband chose to
turn into the second lane
35.1
rather than exercising any other option in trying to maintain control
of his vehicle, and;
35.2
On the other hand, failure on the part of the Defendant to call the
driver of the first
insured vehicle as a witness in order to explain
the circumstance surrounding the overturning of the first insured
vehicle, this
court cannot decide satisfactory on the evidence before
it.
[31]
Therefore, after hearing the evidence of the Plaintiff, the question
to be asked is whether a reasonable man (or ought to)
give judgment
in favour of the Plaintiff. I am of the view that there is no
evidence in which a reasonable man should (or ought
to) give judgment
in favour of the Plaintiff.
(Gascoyne v Paul and
Hunter
1917 TPD 170).
[32]
Consequently, I make the following order:
37.1
Absolution from the instance be granted to the defendant.
37.2
The Plaintiff is ordered to pay the costs of this action.
___________
M.H.
MABENA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION