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[2014] ZAGPPHC 71
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Harcus v Road Accident Fund (43607/12) [2014] ZAGPPHC 71 (14 February 2014)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
CASE NO.: 43607/12
DATE: 14 FEBRUARY 2014
In the matter between:
KARIN
HARCUS
........................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................
Defendant
JUDGMENT
KGANYAGO AJ
[1] The plaintiff is claiming damages
arising out of a motor vehicle accident. According to the plaintiff,
the accident occurred
on the 29
th
July 2007. Even though the defendant in their plea, has denied that
the collision has occurred, at the end of their closing arguments,
they conceded that the collision has occurred.
[2] The plaintiff was a passenger in the
motor vehicle with registration number R[...]. The driver of the
motor vehicle in which
the plaintiff was a passenger, was Mr GJH
Harrisson.
[3] It is alleged that the driver of the
vehicle which the plaintiff was a passenger, collided with another
vehicle driven by a
certain Mr Hunkin, when Mr Harrisson was forced
to take evasive actions in order to avoid a collision with a speeding
white Mercedes
Benz, which the identity of the owner or driver is
unknown to the plaintiff. According to the defendant, the accident
was caused
by the sole negligence of Mr Harrison.
[4] At the commencement of the trial, the
parties agreed to the separation of merits and quantum of the
plaintiffs damages. I accordingly
ruled that the matter will proceed
on the issue of merits of the claim only.
[5] The parties further agreed that the
issue of Tp 2 form which was signed and submitted by the plaintiff,
will be argued at a
later stage in the form of a point in limine to
be raised by the defendant.
[6] Two witnesses testified for the
plaintiff: the plaintiff and Mr Harrison the driver of the vehicle in
which the plaintiff was
the passenger.
[7] The plaintiff testified that she is an
architect. On the 29
th
July 2007 she was a passenger in the motor vehicle driven by Mr
Harrison. They were from the parkade of Eastgate Mall, joining
the
main road. Whilst on the
main road, Mr
Harrison indicated to move from the left lane to the right lane.
[8] As he was attempting to move to the
right lane, he saw a Mercedes Benz coming at high speed (insured
driver). He moved back
to the left lane and in the process he knocked
the vehicle that was driving in front him in the left lane.
[9] During cross examination, she stated
that the weather condition was good. The traffic was clear. They were
travelling in the
region of 35 to 40 km per hour. She denied that Mr
Harrison was negligent, but that the accident was caused by the
negligent driving
of the speeding insured driver. She conceded that
at the time when the driver of the vehicle in which she was a
passenger, was
attempting to move to the right lane, the insured
driver could have been behind them, but that it was unlikely that the
insured
driver could have been close to them.
[10] Mr Harrison testified that at the time
of the accident, he was the driver of motor vehicle with registration
number R[...].
The plaintiff was a passenger in that vehicle. At the
time of the accident, he was engaged to the plaintiff and they are
now married.
[11] The plaintiff was injured during the
accident. The accident happened at Bradford road, which is a 60 km
area zone. He was driving
in the region of 3 0 to 3 5 km per hour.
[12] There was a car which was driving in
front of them. When he looked on the mirror, he saw the insured
driver who was about 80
metres behind them. He indicated to enter
into the right lane. As he was in the process of
entering
the right lane, he saw that the insured driver was now behind them at
about 10 metres from them. In order to avoid colliding
with the
insured driver, he swerved back to the left lane and that is when he
collided with the vehicle that was in front of him.
The vehicle that
was driven by the insured driver was a Mercedes Benz and it was
coming at high speed.
[13] Under cross - examination, he stated
that the vehicle that was driving in front of him was driving slowly
at the same speed
he was driving. He stated that before he attempted
to move to the right lane, he had checked whether it was safe to do
so. He was
evasive to state whether the insured driver had a right of
way or not.
[14]
Section 17(1)
of the
Road Accident Fund
Act, 1996
as amended, (“the Act”) reads as follow:
"(1) The
fund or an agent shall -
a) Subject to
this Act, in the case of a claim for compensation under this section
arising from the driving of a motor vehicle where
the identity of the
owner or driver thereof has been established;
b) Subject to
any regulation made under
section 2
, in the case of a claim for
compensation under this section arising from the driving of a motor
vehicle where the identity of neither
the owner or driver thereof has
been established,
c) Be obliged
to compensate any person (the party) for any loss or damage which the
third party has suffered as a result of any
bodily injury to any
other person, caused by or arising from the driving of a motor
vehicle by any person at any place within the
Republic, if the injury
or death is due is due to the negligence or other wrongful act of the
driver or of the owner of the motor
vehicle or of his or her employee
in the performance of the employee's duties as employee ”
[15] The plaintiff was a passenger in motor
vehicle with registration number R[…] and is required to prove
1% negligence
on the side of the defendant’s insured driver or
against Mr Harrison who was the driver of the vehicle in which she
was a
passenger.
[16] The issues which must be determined by
the court are the following:
16.1 whether the
insured driver was negligent;
16.2 whether Mr
Harrison, the driver in which the plaintiff was a passenger was
negligent;
16.3 whether
both the insured driver and Mr Harrison are to blame for the
accident.
[17] Both the plaintiff and Mr Harrison testified that Mr Harrison
was driving in the region of 30 to 35 km per hour, and that the
vehicle that was driving in front of them was driving slowly. The
version of the two witnesses is that the alleged insured driver
came
from behind at a high speed and caused Mr Harrison to swerve back to
the left lane. However, both witnesses are in agreement
that Mr
Harrison had not yet moved into the right lane and was still in the
process of moving to the right lane when the insured
driver came from
behind.
[18] Mr Harrison has testified that before
he indicated to move into the right lane, he saw the insured driver
which was about 80
metres from him. He was surprised when he wanted
to enter the right lane, the insured driver’s
car
was now' 10 metres behind them, and that forced him to swerve to the
left lane and he in the process collided with the vehicle
that was in
front of him.
[19] The question is whether the driving of
the insured driver has any direct link in causing Mr Harrison to
collide with the vehicle
that was driving in front of him.
[20] In the case of Grove v The Road
Accident (74/10)
[2011] ZASCA 55
at paragraph 13 the court said the
following:
"A useful guide is found in
Weis & another v Shield Insurance Co Ltd & others where
Corbet C J stated:
'In searching
for some limit lying between direct causation and the vast and
unrestricted field of the causa sine qua non, the Court
must, I
think, be gidded by a consideration of the object and scope of the
Act and by notions of common sense. Broadly the object
of the Act is
to provide protection by way of compulsoiy insurance to all members
of the public who suffer loss by reason of bodily
injury or death
resulting from negligence or other unlawful conduct in connection
with the driving of motor vehicles. The negligence
or unlawful
conduct may consist of some act or omission on the part of the driver
in the actual course of driving, such as driving
at an excessive
speed or failing to keep a proper look-out, or it may consist of some
antecedent or ancillary act or omission on
the part of the driver or
the owner of the vehicle or the servant of the owner, such as failing
to maintain the vehicle in a roadworthy
condition or overloading the
vehicle. The death or bodily injury for which compensation is claimed
must be causally related to
this negligent or otherwise unlawful act
and also to the driving of the vehicle. Where the direct cause from
the point of culpability
is the same act or omission on the part of
the driver in the actual driving of the vehicle then it would
generally be found that
the death or injury was 'caused by' the
driving. Where the direct cause is some antecedent or ancillary act,
then it could not
normally be said that the death or injury was
'caused by’ the driving; but it might be found to arise out of
the driving.
Whether this would be found would depend upon the
particular facts of the case and whether, applying ordinary,
common-sense standards,
it could be said that the causal connection
between the death or injury and the driving was sufficiently real and
close to enable
the Court to say that the death or injury did arise
out of the driving. 1 do not think that it is either possible or
advisable
to state the position more precisely than this, save to
emphasise that, generally speaking, the mere fact that the motor
vehicle
in question was being driven at the time death was caused or
the injrny inflicted or that it had been driven shortly prior to this
would not, of itself provide sufficient causal connection. Thus the
injury suffered by a passenger aboard a bus as a result of
being
assaulted by a. bus conductor could not be said to arise from the
driving of the bus, even though the bus was being driven
at the
precise moment when the assault was committed. Similarly, in the
illustration already given ofX who stepped off the bus
into a hole in
the pavement, it could not be said, that the injury arose out of the
driving merely because driving (in the ordinary
sense) had taken
place immediately prior to this'
[21] Mr Harrison has not yet completed
moving into the right lane but was still in the process. The car that
was in front of him
was moving and not stationery. In my view, if Mr
Harrison was keeping a safe following
distance
and at the speed which he was driving, it was going to be easy for
him to swerve back to the left lane without colliding
with the
vehicle in front of him. Therefore it is my considered view that Mr
Harrison was not keeping a safe following distance.
As Mr Harrison
was not keeping a safe following distance, he was unable to swerve
back to the left lane without causing the accident
with the vehicle
in front of him.
[22] Mr Harrison has testified that he first
saw the insured driver at a distance of 80 metres behind him. If
indeed that was true,
he would have finished moving into the right
lane and if indeed the insured driver was travelling at a high speed,
it would have
collided with him from behind. In my view, Mr Harrison
has misjudged the distance of the insured driver, and when he
realised that
it was nearer to him, he swerved back to the left lane.
As he was not keeping a safe following distance, he collided with the
vehicle
in front of him in the process of swerving back to the left
lane.
[23] It is the duty of every driver to make
sure that before they change the lanes, they must check whether it is
not dangerous
to do so, however, in my view Mr Harrison has failed to
keep a proper lookout before he decided to change the lanes. He had
misjudged
the distance of the insured driver and decided to change
lanes when it was dangerous to do so, and that resulted in him
colliding
with the vehicle that was driving in front of him.
[24] With the evidence that was presented, I
could not find that the accident was caused by the negligent driving
of the insured
driver. The accident was caused by the sole negligence
of Mr Harrison who has failed to keep a proper following distance and
who
has also misjudged the distance of the insured driver when he
tried to change lanes. I could also not find any
contributory
negligence on the part of the insured driver. There was therefore no
casual nexus between the driving of the insured
driver and the
accident.
[25] The plaintiff s counsel has submitted
that since the defendant has denied that a collision has occurred in
their plea, but
only admitted that during their closing argument,
they should be ordered to pay the costs of the plaintiff. The
defendant has been
arguing that the insured driver was not the cause
of the accident and they have succeeded in that. I therefore don’t
find
any ground to grant a costs order against them.
[26] No expert witnesses were during the
trial, merits and quantum has been separated. I therefore don’t
find any reason why
I should make an order that the defendant should
pay the costs of expert witnesses.
[27] In the result 1 make the following
order:
27.1The accident was caused by the sole
negligence driving of Mr Harrison GJH;
27.2The defendant is liable to pay 100 % of
the plaintiffs proven or agreed damages;
27.3Each party to pay her or their own
costs.
M F KGANYAGO
ACTING
JUDGE
OF THE
HIGH COURT