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[2015] ZAGPPHC 992
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Du Plessis v Road Accident Fund (73992/13) [2015] ZAGPPHC 992 (31 July 2015)
OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION.
PRETORIA)
DATE:31/7/15
CASE
NO: 73992/12
IN
THE MATTER BETWEEN
J
DU
PLESSIS
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
LEGODI
J
[1]
Before me is an action against the Road Accident Fund. I have
been called upon to determine whether the Fund is liable
to
compensate the plaintiff as a result of a
collision which occurred on the evening of the 18 April 2012
at or
about 21 h00 on the N1 Highway towards the North near the Stormvoel
off-ramp from which the plaintiff suffered serious injuries.
The
plaintiff has no recollection of the events and only one witness
testified on behalf of the plaintiff.
[2]
Mr Riaz Chaboo was on the evening in question, driving on the N1 road
towards the North and before Stormvoel turn-off, a collision
occurred
between the plaintiff's vehicle, a Toyota Fortuner and a truck the
particulars of which are registration number ND 700572.
[3]
Three lanes were in use at that time. The fourth lane (fast
lane) was under construction. Mr Chaboo was driving on the
slow lane.
In the middle lane, it was the plaintiff's vehicle and on the third
lane (then fast lane) was another motorist going
to the same
direction. The witness (Mr Chaboo) was a bit behind the two vehicles.
All of a certain, he saw a smoke on the direction
of the plaintiff's
vehicle and he concluded that an accident had occurred, initially he
thought that the plaintiff's vehicle had
overturned.
[4]
The plaintiff's vehicle came to a stand-still on the left off the
Highway and he also stopped on the left side, off the road.
He was
surprised to see a truck on the centre lane, which he did not see
before. He even asked the other motorist where the truck
came from.
[5]
It became clear that the plaintiff's vehicle hit the truck from
behind. That in short was the evidence on behalf of the
plaintiff. The defendant closed its case without
leading any evidence.
[6]
The issue at hand is whether the plaintiff established on the
balance of probabilities that the insured driver,
that
is, the driver of the truck was in any way negligent. There was no
evidence that the truck was stationery on the road. In
fact, the
evidence was that after the impact, the truck proceeded on its lane
and as a result the witness Mr Chaboo requested the
other motorist to
bring back the driver of the truck to the scene.
[7]
The truck driver was obviously not aware that he was hit from behind.
When he was brought back to the scene, and saw the
plaintiff's
vehicle, he uttered words to this effect
"
Tjoo!!"
[8]
Hitting another car from behind, without any explanation, establishes
negligence and in the present case, the driver of
the truck
cannot be blamed for having been negligent.
[9]
In the particulars of claim, the grounds of negligence are pleaded as
follows:
"5.
1
He/she failed
to keep
a
proper
lookout;
5.2
He/she
failed
to
exercise
proper or
effective
control
over
the
vehicle
that
he/she
was
driving;
5.3
He/she
knowingly
drove
a
motor
vehicle
that
was
not
roadworthy;
5.4
He/she
failed
to
avoid
the
collision, when,
by
the
exercise
of
reasonable
care,
he/she
could
and
should
have
done
so''
[10]
None of these grounds were established through the evidence of
Mr Chaboo. In the pre-trial minutes, the plaintiff's
version and of relevance. is stated as follows:
"
The plaintiff collided with
a
truck
in
front
of
him
who
had
no
lights
or
reflective signs
on
it".
This is not what Mr Chaboo said. Further in the pre-trial minutes
the version is stated as follows:
"The
eye
witness
states
that
the
truck
was
not
visible
to
any
driver
on
the
road, and
that
the
plaintiff would
not
have
been
in
a
position
to
see
that
there
was a
truck
travelling at
a
slow
speed
or
stationery
in
the
plaintiff's lane
of
travel,
and thus
would not
have been
in
a position
to avoid
it"
[11]
Mr Chaboo can only speak for himself and not for the
plaintiff or the other motorist. Therefore
the statement that
"
the
truck
was
not visible
to
any
drivers
on
the road"
can only apply to him and it would be understandable why he would
not have seen the truck. All the motorists, including the
truck
driver were in front of him, although not on the same lane. The
TOYOTA Foturner was apparently behind the truck. A
Fortuner is
not a small car. It is not clear how low the towing vehicle is, which
the witness was driving.
[12]
With all of the above, it cannot reasonably be inferred that the fact
that he did not see the truck was because it had no lights
or
reflective lights on. It cannot be inferred that the
truck was not visible to other drivers and that the other drivers
would not have been in a position to see that there was a truck
travelling at a slow speed or was stationery
in the
lane of the plaintiff. The witness saw the truck immediately
upon collision. If the truck had no lights or reflectors
on, he
would have said so, but he did not.
[13]
It could well be that the plaintiff just did not keep a proper look
out. In fact, on the facts of the case, that would be a
reasonable
inference to make. I am however mindful of the fact that the other
motorist, who was apparently parallel to the plaintiff's
vehicle was
not called as a witness. Apparently, this other motorist explained
to Mr Chaboo what had happened. Without
the evidence of
the said motorist, this court is in the dark as to what actually
happened. There is just no evidence establishing
any negligence on
the part of the driver of the truck. For this, absolution will
be appropriate.
[14]
I therefore find that the plaintiff has not discharged the onus and
consequently an absolution from the instance with costs
is hereby
granted.
_______________________________
M
F LEGODI
JUDGE
OF THE
HIGH COURT
HEARD
ON:
30 July 2015
JUDGMENT
HANDED DOWN: 31 July 2015
FOR
THE PLAINTIFF:
ADV
L. EAST
INSTRUCTED
BY:
GERT
NEL
INC.
1235
Cobham Road
Queeswood, PRETORIA
Tel: 012 333 8290
Ref: GN6083/ll
Martens/MJH
FOR
THE DEFENDANT:
ADV
F.
MATIKA
INSTRUCTED
BY:
TAU
PHALANE
INC.
12 Maple Lanie
Cnr Myrtle Street
Arcadia, PRETORIA