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[2015] ZAGPPHC 916
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Vorster v Road Accident Fund (62204/2013) [2015] ZAGPPHC 916 (3 August 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 62204/2013
DATE: 03 AUGUST 2015
EDWARD ALBERT
VORSTER
.........................................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
...............................................................................................
DEFENDANT
JUDGMENT
KHUMALO J
INTRODUCTION
[1] The Plaintiff instituted an action
against the Defendant, the Road Accident Fund as a statutory insurer
in terms of
s 17
of the
Road Accident Fund Act 56 of 1996
, as
amended, for damages he suffered as a result of personal injuries
that he sustained from a motor vehicle collision which occurred
on 19
October 2011. The appellant alleged in his particulars of claim that
at about 8h30 on that day he was driving a motorbike
with
registration number [F…….] on Vander Street in
Middleburg, when a collision occurred between his motorbike and
an
Audi motor vehicle with registration number [B……..]
("Audi") driven by one J Mtsweni (the "insured
driver"). He further alleged that the sole cause of the said
collision was the negligence of the insured driver in the respects
alleged in his particulars of claim, inter alia, that he turned right
in front of the Plaintiff motorbike at a dangerous and inopportune
moment.
[2] The Defendant in its plea, save for
admitting to the citations of the parties, its locus standi and the
collision having taken
place, denied liability, putting Plaintiff to
the proof of all its allegations as per the particulars of claim. It
prayed in the
alternative that if any
damages are awarded to the Plaintiff
they be reduced in terms of the Apportionment of the Damages Act, no
34 of 1956. The matter
was set down and allocated for trial on 29
July 2015.
[3] On the date of trial, the
Defendant's attorney instructed Counsel at roll call to seek a
postponement, on the basis that he
did not arrange for the
Defendant's witness from Mpumalanga, the insured driver, to be at
court as they did not anticipate that
the trial would proceed since
there was likelihood of the parties reaching a settlement on the day.
The postponement was refused,
Defendant was however not in a position
to proceed with its case. Hence when the parties approached in
Chambers, the attorney who
was not fully robed solicited the standing
down of the matter (in essence, a postponement since the matter was
set down for only
that day) until the next day so that he can get his
witness to come to court. The endeavour was challenged by the
Plaintiff. I
refused to adjudicate on any issue relating to a
postponement, as it was already decided upon.
[4] At the beginning of the trial, I
accordingly made an order as it was greed between the parties that
the issues of liability
will be separated from that of quantum,
postponing the issue of quantum sine die, for later determination.
Evidence
[5] The only version upon which the
court was to decide the issue of liability was that of the Plaintiff,
he being the only witness
to have led evidence. According to him the
collision occurred at about 9h00 in the morning on a road in
Middleburg, on a very clear
open day. The road has a double lane on
each of the opposite direction with a middle solid white line that
demarcates the lanes
of traffic to each direction and was in a good
condition. He was driving in the right hand lane between two
intersections approaching
a robot at the next intersection when an
approaching motor vehicle travelling in the opposite direction
suddenly turned into his
lane in front of him to go into the
municipality offices. At the point of impact there is a white broken
line, for vehicles turning
to go into the Municipality offices that
were on his left. He did see the insured driver approaching coming
closer without indicating
or warning that he intended turning right
he was at a distance of about 15 to 20 meters away from him before he
actually turned
into his way. He applied his brakes and his motorbike
swerved to the left into a motor vehicle travelling on his left lane,
hitting
the front wheel of the vehicle on the left. He thinks there
was no way of avoiding the collision in its totality. He sustained a
few bruises that have now healed, injuries on his right leg and a
broken knee.
[6] His evidence under cross
examination was that the speed limit on that road was 60km/h. He
could not have been driving fast because
he was wearing short pants
and a t- shirt without the protective gear. He said he was travelling
between 2 robots at an estimated
speed of between 50 and 55 km/h and
on his way to the next robot when he noticed the insured vehicle
approaching. The driver did
not indicate so he did not anticipate a
turn. He tried to avoid the collision by swerving and applying brakes
at a speed that he
was travelling on, that is 50-55km/h. The insured
motor vehicle started making a turn at about 15 to 20 meters away
that is where
he noticed that it was going to turn. There was nothing
he could do whilst driving at a speed of 55 km/h.
Legal framework
[7] As the facts stand I was implored
by the Plaintiffs Counsel to decide the matter on the basis of the
Res ipso loquitur principle
that involves the presumption of
negligence. He referred to the statement in the leading decision on
that principle in the matter
of Milton t/ Vacuum Oil Company of SA
Ltd
1932 AD 197
at 205 that:
"Where there are two streams of
traffic in a road in opposite directions, a person in a vehicle
proceeding in one direction
is entitled to assume that those who are
travelling in the opposite direction will continue in their course of
travel and that
they would not suddenly and inopportunely turn across
the line of traffic. A person travelling on one direction can assume
that
one travelling in the opposite direction will continue his
course, but he may only assume that until he is shown a clear
intention
to the contrary. When a clear and undoubted warning is
given, then there is no longer any room for the assumption that the
person
will continue in his former course."
Counsel therefore submitted that even
though the Plaintiff carries the onus to prove on a balance of
probabilities the liability
of the Defendant, on the facts as per
Plaintiffs uncontested version, Defendant is presumed to have been
negligent when he did
not continue on his line of travel as expected
and turned into Plaintiffs path of travel. So, he argued that the
Defendant carries
the onus to rebut the presumption (burden of
rebuttal) and in the absence of evidence contradicting the Plaintiffs
version, the
presumption prevails.
[8] Simply, what is inferred by the
presumption is that since it is evident that the accident happened on
the side of travel of
the Plaintiff, the Plaintiff is presumed to
have been correct and prima facie established the insured vehicle's
negligence. The
principle was clearly enunciated in Solomon and
Another v Musset and Bright
(1926) AD 427
on p433 that:
"The general rule under such
circumstances is that persons using the road upon their proper side
have the paramount right and
are entitled to preference, so that, in
case of danger of a collision, it is the duty of those on their wrong
side to give way
first".
[9] It is so that although the onus of
proving Defendant's liability remains with the Plaintiff till to the
end, the establishment
of prima facie inference of negligence on the
part of the insured driver places the burden on the defendant to
adduce or tender
evidence in rebuttal that negates the prima-facie
inference of negligence.
[10] On the other hand the Defendant's
attorney being not able to lead Defendant's evidence to rebut the
presumption, attempted
to persuade the court that even though there
is no evidence led on behalf of the Defendant, the facts that are
alleged to establish
the presumption are less probable and therefore
the presumption non-existent and also to illustrate that the
Plaintiff's evidence
indicated some degree of negligence on his side
as well. Mr Sekgopela attempted as a result to illustrate from the
Plaintiff's
version that the Plaintiff was also negligent even absent
the Defendant's testimony.
[11] Even though that was possible
there being no legal prohibition to do so, in such instance, where
the Plaintiff has succeeded
to establish prima facie negligence on
the part of the insured driver, proving or establishing some form of
negligence on the part
of the plaintiff would not discharge the
Defendant from liability or negate the presumption of prima facie
negligence or assumption
of guilt of the insured driver entirely but
might affect the Defendant's extent of liability. In that any measure
of negligence
proven against the
Plaintiff might benefit the Defendant
by reducing the extent of liability of the Defendant. Whilst the
burden of disproof of the
presumption apply to the defendant until
the end of the case, placing the insured driver's whole conduct under
scrutiny.
[12] Also the fact that the Defendant
did not call any witnesses does not necessarily affect his ability to
discharge the onus that
lies upon him. As an onus can of course be
discharged without the party on whom the onus lies presenting
evidence. It is confirmed
by Frank AJ in Shiimi v Mutual and Federal
Insurance Company of Namibia Ltd (Case
no (P) I 2269/2007)
[2008] NAHC 109
(28 July 2008) by referring to
the statement Davis AJ.A. made in Pillay v Krishna and Another
1946
AD 946
at 953 that reads:
"it (the onus") may have been
completely discharged once and for all, not by any evidence what has
been led, but by some
admission made by his opponent on the pleadings
(or even during the course of the case), so that he can never be
asked to do anything
more in regard thereto;..."
Further, he on [24] stated that:
"From this I gather these
admissions may stem from formal admissions by the opponent or his
lawyer but it can also emanate
from the evidence presented by the
opposing party."
"with this admission on record it
is the submission on behalf of the Defendant that he "can never
be asked to do anything
more in regard thereto."
Analysis of the evidence
[13] The evidence of the Plaintiff was
very clear, forthright and articulated without any hesitation. I did
not sense any lack of
confidence in any of the statements that he
made. He was all the way honest, even pointing out that he was not
wearing any protective
gear at the time and that although a solid
line seemed to have delineated the two opposite lanes however at the
locus where the
accident occurred, the middle line breaks to allow
the cars travelling to the opposite direction that are turning into
the Municipality
offices on the right, to do so past/ crossing their
lane of travel. I find his evidence credible and in that sense very
reliable.
[14] In testifying that he was
travelling straight on his side of the road when the insured vehicle
turned in front of him Plaintiff
prima facie established the
negligence of the insured. However his testimony that the road allows
or indicates that the cars travelling
on the opposite direction
wanting to go to the other side may turn into his side of the road
placed a duty of care upon him as
well. As it has been pronounced
that in establishing the negligence required to determine liability
in civil actions a simple test
that involves the standard of care and
skill that would be observed by a reasonable man applies, which also
depends on the atypical
circumstances of each individual case; see
Flanders v Trans Zambezi Express
2008 ZASCA 152.
In carrying out this
judicial analysis the following factors, inter alia will be decisive:
[14.1] If the Plaintiff as a reasonable
driver adhered to his ongoing obligation to keep a proper lookout in
all the circumstances.
[14.2] If he kept a reasonable speed
(within the range of his vision) immediately before the collision.
[14.3] If the Plaintiff as a reasonable
driver met the duty to anticipate a reasonable apparent risk and take
appropriate precautions.
[14.4] The time of day at which the
accident occurred, the location of the collision, the speed involved?
[14.5] Did alcohol, drugs or other
types of impairment maybe play a role to deprive the driver the
ability to avoid the collision.
[15] The upshot of this inquiry, in
order to exonerate the Plaintiff completely from any form of
liability for his own loss should
therefore indicate that, after
careful consideration of his whole evidence, the Plaintiff could not
have avoided the accident even
by exercise of reasonable care and
that he did not, by his conduct, contribute in any material way to
the accident.
[16] Considering the Plaintiffs
evidence as a whole, the question arises if his testimony indicates
that he indeed adhered to his
obligation to keep a proper lookout in
the circumstance where he was aware of a possibility of cars turning
from the opposite side
to pass through his way of travel to go into
the municipality, keeping a reasonable speed given the circumstances
thus meeting
the duty to anticipate a reasonable apparent risk and
taking appropriate steps.
[17] Plaintiff was driving at a
domestic area with a very low speed limit of 60km/h at 55km/h and did
notice the car approaching
and noticed when it started turning at a
distance of 15 to 20 meters. He did not reduce speed but applied the
brakes and swerved
to avoid the accident. Now taking into account
that this was in an area where there should be an anticipation of
cars turning since
the road allows that, a reasonable person would
have slowed down or travelled at a speed that would have allowed him
to stop in
anticipation of these cars, especially when there was
indeed a car approaching. His testimony instead was that he
nevertheless
did not anticipate a car turning. He did not slow down
but tried to stop when the accident happened as a result collision
occurred
with him veering to the left lane and therefore sustaining
his injuries. It therefore means he was caught off guard.
[18] At the end of the case the
Defendant had not discharged the onus of rebuttal as per the
established prima facie negligence
inferred from the Plaintiffs
evidence (which was the whole evidence) in that he could not adduce
evidence to the contrary. As a
result Plaintiff had in that regard
succeeded in discharging the onus upon him in connection with the
issue of insured's negligence
consequently the Defendant's liability.
However the evidence indicate also some measure of negligence on the
part of the Plaintiff
contributing to the damages suffered as well,
when he failed to anticipate a reasonable apparent risk and to take
appropriate precautions
by keeping a reasonable speed immediately
before the collision, that would have allowed him to do something to
avoid or minimize
the possibility of an accident occurring. He is
therefore liable to a portion of his loss at an apportionment of at
least at 15%. The negligence is
therefore apportioned between the Plaintiff and Defendant at a
percentage of 15/85 respectively.
[19] Under the circumstances I make the
following order:
[19.1] The Defendant is liable to pay
85 % of the Plaintiffs proven or agreed damages.
[19.2] The Defendant is ordered to pay
Plaintiff's costs to date.
N V KHUMALO J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION: PRETORIA
On behalf of the Plaintiff: Adv Du
Plessis
Instructed by: Riette Oosthuizen
Attorneys
On behalf of the Defendant: Mr
Sekgopela
Instructed by: T M Chauke Attorneys