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[2015] ZAGPPHC 508
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D.A.M obo K.M v Road Accident Fund (73765/2010) [2015] ZAGPPHC 508 (26 June 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
Case
Number: 73765/2010
DATE:
26 JUNE 2015
In
the matter between:
[D..................
A............ M.........] obo K..........
M..........]
..............................................
PLAINTIFF
And
THE
ROAD ACCIDENT
FUND
.....................................................................................
DEFENDANT
JUDGMENT
LEPHOKO
AJ
[1]
The plaintiff sued the defendant for damages arising out of a
motor vehicle collision that occurred on 24 September 2008. The
plaintiff
sued for loss of support in her representative capacity as
the mother and guardian of her minor child, [K...........]
[M...........]
[2]
The following facts are, among others, common cause, namely:
2.1 The applicant
has the necessary locus standi;
2.3
On 24 September 2014 2008 at 19h00 a collision occurred
between a motor vehicle with registration SLX …....... GP
driven
by the deceased and a bus with registration WLF 9....... GP;
2.4
On the day of the collision, the deceased had a passenger who
was epileptic. The passenger had a seizure which interfered with the
deceased's driving that in turn led to the deceased losing control of
the vehicle he was driving;
2.5
The deceased died as a result of injuries sustained in the
aforementioned collision.
[3]
The merits and quantum were separated in terms of rule 33(4).
The matter proceeded only in respect of the merits and the
determination
of the quantum was postponed sine-die. The only issue
for determination by this court is whether the negligence of the
insured
driver was the cause of the accident.
THE
PLAINIFF'S CASE
[4]
The plaintiff called two witnesses. The two witnesses are the
police officers who attended the scene of the accident but had not
witnessed the collision.
[5]
Constable Jacob Mosako (Mosako) testified that on 24 September
2008 at about 19h30 he and Warrant Officer Moloisane attended the
scene of the accident on the main road at the
Mabopane
Industrial Site. It was dark and the street lights were not
functioning. The road is a tarred double-carriage way with
two lanes
in each direction of travel. They found that the deceased's vehicle,
a Ford Icon sedan had been involved in the accident
and had hit a
stationary bus at the back. He used his torch to check the position
of the cars. He observed that the bus was parked
in the emergency
lane with its right side wheels slightly over the yellow line and
protruding slightly onto the outer left lane.
No warning signs were
placed in the vicinity of where the bus was parked to warn other road
users of the potential danger posed
by the parked bus. The driver of
the bus was not at the scene. There were three injured people in the
car and two of them were
dead.
[6]
During cross examination it was put to Constable Mosako that:
there is a bus depot in the vicinity of where the bus was parked; due
to renovations there was no space for the buses to park at the
railway station where they were normally parked; buses that could
not
be accommodated in the depot were often parked on the left side of
the road around the area where the accident occurred. Mosako
was
unable to dispute this allegation but stated that whenever he
patrolled the area he saw buses parked inside the depot. He confirmed
that there was a reflector fitted across the back of the body of the
bus.
[7]
Mr Levy Moloisane who is no longer in the employ of the South
African Police service confirmed that he accompanied Mosako to the
scene of accident. He confirmed Mosako's version in material respects
and where their evidence differed the variations were insignificant
and of no consequence. He testified that he completed the accident
report and later that day personally wrote his own statement
concerning his attendance at the scene of the accident. He confirmed
the contents of his statement. His cross examination did not
take his
evidence any further.
DEFENDANTS
CASE
[8]
Kagiso Mputle was called as an independent witness who
witnessed the accident. He testified that he was a taxi driver at the
time
and knew the area well as he drove on that road very often. It
was common for buses to park along the road next to the garage which
is situated on the side of the road near the bus depot. Buses were
normally parked there during the day and during the evening
as the
Mabopane station was under renovation. The accident occurred in the
area where the buses were often parked.
[9]
On the night in question he was driving on that road when he
noticed the deceased's car drive past him at high speed. The bus
which
was involved in the accident with the deceased's car was parked
in the vicinity of the garage with part of the bus directly on the
road. Shortly before the accident the deceased lost control of his
car which then veered completely off the road and drove on the
shoulder of the road causing a lot of dust. The car collided with the
back of the bus. He stated that the deceased's car never
returned to
the road. The deceased's car drove very fast and did not appear to
slow down. There were no other cars between him
and deceased's car.
He could not say if the deceased applied brakes or reduced speed as
he kept at a distance due to poor visibility
caused by the dust. He
observed that the right side wheels of the bus were protruding
slightly onto the left lane. His impression
was that the deceased
would have been able to pass on either the right or the left side of
the bus. He did not remember how long
he had observed the deceased's
car and did not know how long the bus had been parked there.
TOTALITY
OF THE EVIDENCE
[10]
The evidence of the plaintiff and the defendant puts it beyond
any doubt that the bus was parked in the emergency lane and its right
side wheels protruded slightly over the yellow line and were on the
left lane. It is estimated that the protrusion was about one
metre at
most. The photos taken at the scene of the accident reveal that the
deceased's car struck the bus with the whole of its
front portion.
The point of impact was more to the left of the back centre of the
bus. The back of the bus was fitted with a reflector
although the
distance from which it was noticeable was not ascertained. Shortly
before the accident the deceased's car went completely
off the road
but was inside the emergency lane at the time of impact. The
defendant admitted that there were no warning triangles
or any
warning signs placed on the road to warn other road users of the
potential danger posed by the bus. It is the defendant's
undisputed
evidence that it was customary for buses to be parked around the area
where the insured bus was parked.
[11]
The issue that remains to be determined is whether the insured
driver was negligent in parking the bus in the emergency lane without
placing warning signs on the road or taking reasonable steps to
ensure that the bus did not pose a danger to other road users.
NEGLIGENCE
[12]
For
the purpose of liability negligence arises if- (a) a reasonable
person in the position of the defendant- (i) would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial loss; and (ii) would
take
reasonable steps to guard against such occurrence; and (b) the
defendant failed to take such steps.
[1]
The negligence required to establish liability in civil actions is
determined by a simple test, namely the standard of care and
skill
which would be observed by the reasonable man. The standard will, of
course, depend on the peculiar circumstances of each
individual
case.
[2]
(my emphasis).
[13]
The
defendant relied on the case of Flanders v Trans Zambezi Express
(Pty) Ltd
[3]
for its argument that the deceased ought to have reasonably foreseen
that there might be obstructions on the road ahead. In Flanders
the
accident occurred at night where the insured bus collided with a
truck parked on the left side of the road with part of the
truck
protruding onto the left lane of the road and causing an obstruction
to traffic moving in the left lane. The extent of the
obstruction was
such that the bus would not have been able to pass the truck without
the bus moving onto the incorrect side of
the road. The left front of
the bus collided with the protruding right rear corner of the truck,
which caused the whole of the
left side of the bus to be cut open.
[14]
In Flanders the insured driver drove whilst his vision was
seriously impaired by the bright headlights of an approaching vehicle
and did not brake or reduce his speed. The court held that in these
circumstances, and given the foreseeability of unlighted obstructions
on the road ahead, the duty resting on the insured driver was not
merely to slow down, but to reduce his speed by braking immediately
so as to be able to stop within the range of his vision. His failure
to stop or to slow down was held to be a "crucial factor"
in holding that he was negligent.
[15]
My
view is that the case of Flanders is distinguishable from the present
case. In Flanders the collision happened in the left lane
of the road
and not in the emergency lane as it did in the present case. The
negligence of a driver who collides with an unlit
obstruction at
night is judged using the reasonable foreseeability and
preventability test, that is, if an obstacle is foreseeable
by a
reasonable driver, he is required to prevent a collision.
[4]
A motorist driving on the road ought reasonably to foresee that there
would be traffic ahead of him and that that traffic may cause
an
obstruction to other road users although he may not reasonably
foresee that vehicles would habitually use the emergency lane
for
routine parking.
[16]
In
Road Accident Fund v Odendoal
s
an appeal court dealt with a collision involving a vehicle parked in
the emergency lane and its findings were summarized by Van
Niekerk J
in Moseng v Rood accident Fund
[5]
as follows: "An emergency lane, while it does not enjoy any
particular definition or recognition in terms of the Road Traffic
Act
29 of 1989, is 'resorted to by motorists in situations of an
emergency.'(see Road Accident Fund v Odendaol
2004 (1) SA 585
(WLD)).
A motorist does not necessarily act unlawfully by stopping in an
emergency lane; it is not generally used as a thoroughfare
but
generally speaking a motorist that is stationary in the emergency
lane ought reasonably to foresee that the vehicle may constitute
a
danger or obstruction to other possible users of the emergency lane.
Guarding against that harm would require reasonable steps
to be taken
to ensure that other motorists were alerted to the hazard represented
by the stationary vehicle. For example, by the
use of reflective
triangles and hazard lights [Road Accident Fund v Odendoal (supra) at
paragraph 15."
[17]
Motorists are entitled to expect that the emergency lane will
be kept clear for their intended purpose; i.e. use by emergency
vehicles
or in other circumstances of emergency/ No evidence was
placed before this court to suggest that on the night of the accident
there
were other obstacles in the emergency lane that would have
caused the accident even if the bus had not been parked there.
[18]
Mputle's evidence that the deceased's car went completely off
the road and drove on the shoulder of the road is undisputed. A
reasonable
inference to be drawn from this evidence is that the
deceased had regained control of his car and managed to put it in the
emergency
lane possibly to allow him time to re-enter the road. The
probabilities are that had warning signs been placed on the road to
alert
other road users of the parked bus the deceased would possibly
have had sufficient time to react to the danger posed by the
stationary
bus and taken
7
Maseng v Road
Accident Fund supra at para 19.
evasive
action. In the light of the totality of the evidence and the balance
of probabilities I am of the view that the insured
driver's
negligence was the cause of the accident.
I
the circumstances, it is ordered that:
1.
The insured driver's negligence was the cause of the accident
that took place on 24 September 2008.
2.
The Defendant is liable to pay 100% of the plaintiffs proven
or agreed damages.
3.
The defendant is liable to pay the plaintiffs costs in respect
of the merits of the plaintiffs claim.
(ACTING
JUDGE OF THE HIGH COURT)
Heard
on: 03 June 2015.
Judgment
delivered on: 26 June 2015
For
the Plaintiff: Adv. T L Mahasha Instructed by: Mamokgalake Chuene
Attorney
For
the Defendant: Adv. P J Vermeulen Instructed by: Iqbal Mahommed
Attorneys
b
Road Accident Fund v Odendaal
2004 (1) SA 585
(WLD).
[1]
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-F.
[2]
Flanders v Trans Zambezi Express (Pty) Ltd
2009 (4) SA 192
(SCA) at
197 par a 13.
[3]
Flanders v Trans Zambezi Express (Pty) Ltd (supra.)
[4]
Sebate v Road Accident Fund ZANWHC 77 {8 December 2011) at para 35.
[5]
Maseng v Road accident Fund ZAGPJHC (5 March 2015) at para 15.