About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 128
|
|
Beach v Road Accident Fund (53528/2009) [2014] ZAGPPHC 128 (20 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 53528/2009
DATE:
20 March 2014
IN
THE MATTER BETWEEN
:
WILLIAM
HENRY
BEACH
..........................................................................................
PLAINTIFF
AND
THE
ROAD ACCIDENT
FUND
..............................................................................
DEFENDANT
JUDGMENT
KOLLAPEN
J:
1.
In this action the plaintiff sues the defendant for damages resulting
from a collision that occurred on 25 November 2005 at the
corner of
Beaconsfield Street and Violet Street in Primrose, Germiston.
2.
At the commencement of the trial, the merits and quantum were
separated in terms of Rule 33(4) and the matter proceeded on the
merits only. An order was made postponing
sine die
the claim
in respect of quantum. The Court was called upon to determine the
liability of the parties and whether there should be
any
apportionment thereof.
3.
The plaintiff testified on his own behalf and his evidence was
briefly as follows: On the day in question at approximately 16H00
the
plaintiff was the driver of a motorcycle travelling in a west-to-east
direction on Beaconsfield Avenue. He was travelling with
his female
companion who was a passenger on the motorcycle. It was drizzling and
the road surface was wet but visibility was good.
The lights of the
motorcycle were on. He slowed down to go over a speed hump and then
accelerated to a speed of approximately 40
km/h towards the
intersection of Beaconsfield Street and Violet Street where the
collision occurred. The motorcycle was heavy,
not easy to
manoeuvre
and was also not capable of travelling at high speed.
4.
The plaintiff testified that there is a stop sign in Violet Street at
its intersection with Beaconsfield Street. The stop sign
is intended
for traffic travelling on Violet Street. Traffic travelling on
Beaconsfield Street has the right of way. He testified
that as he was
approximately 12 to 15 meters from the intersection he noticed a
bakkie on Violet Street approaching the intersection.
The bakkie was
driven by the insured driver, Ms Cindy De Smidt. He first noticed the
bakkie when it was behind the stop line. The
bakkie was travelling
slowly and he assumed that it was going to stop before entering the
intersection.
5.
His evidence was that after making this assumption he proceeded
without giving the matter a second thought. The bakkie did not
stop,
it entered the intersection and he collided with it as it made a
right turn into Beaconsfield Street. He testified that he
was too
close to the bakkie when it entered the intersection and he could not
do anything at that stage to avoid the collision.
He neither applied
his brakes nor attempted to swerve. He hit the bakkie on the right
hand side towards its rear end. The damage
to the bakkie and the
motorcycle was minimal. The plaintiff and the motorcycle slid along
the road surface and the plaintiff sustained
injuries as a result.
6.
Ms Cindy De Smidt testified on behalf of the defendant. She testified
that she was travelling on Violet Street. She came to the
intersection of Violet Street and Beaconsfield Street and stopped at
the stop sign. She then slowly moved forward to get a better
view of
the traffic on Beaconsfield Street because of the angle of the road
which makes it difficult to see oncoming traffic. The
road was not
busy at the time. She satisfied herself that the road was clear and
that it was safe to enter the intersection.
She then entered
the intersection to turn right into Beaconsfield Street. She had
almost completed the turn when she heard a bang
resulting from the
plaintiff’s motorcycle colliding with the bakkie.
7.
She testified that she was travelling slowly and that she did not see
the plaintiff approaching at any time prior to the collision
including up to the point of impact and as a result could not do
anything to avoid the collision. She suggested that the plaintiff
could have avoided the collision by swerving. The damage to the
bakkie was minimal and was just behind the petrol cap.
8.
It is common cause that the plaintiff and the insured driver were
travelling slowly prior to the collision, which was conceded
by
counsel for the defendant. This conclusion is also supported by
the fact that damage to the bakkie and the motorcycle
was minimal. It
is further common cause that the insured driver entered the
intersection and that the plaintiff had the right of
way.
9.
Both drivers are required to keep a proper lookout and a general
lookout throughout the course of their driving. Whilst the plaintiff
had a right of way and was entitled to assume that the insured driver
would timeously heed the stop sign, that did not give him
an
unconditional right of way. He was still required to keep a proper
lookout and to take reasonable steps to avoid the collision.
10.
The insured driver could enter the intersection only when it was safe
to do so. She was not entitled to assume that the plaintiff
had
observed that she was about to make a sudden turn across his part.
(See
SIERBORGER v SOUTH AFRICAN RAILWAYS AND HARBOURS
1961 (1) 498
(AD) and
COETZEE v VAN RENSBURG
1954 (4) SA 616
(AD).
11.
It is clear from the evidence that the insured driver’s
negligence was the main cause of the accident as she did not see
the
plaintiff before the collision notwithstanding her assertions that
she had satisfied herself that it was safe to enter the
intersection.
In my view, the insured driver would have seen the plaintiff if she
was travelling slowly, which must have been the
case, and if she had
kept a proper lookout she could have avoided causing the accident.
12.
The plaintiff is not without blemish. His evidence is that he saw
that the insured driver did not stop at the stop line but
still
assumed that she was not going to enter the intersection anyway. The
plaintiff should have exercised caution the moment he
noticed the
insured driver going over the stop line without stopping.
13.
The evidence is that the road was not busy and that the plaintiff hit
the bakkie at the back just behind its petrol cap. The
plaintiff was
travelling slowly, and in my view, could have avoided the collision
by taking evasive action such as swerving or
applying brakes. He
could also have hooted to warn the insured driver of his presence.
The plaintiff failed to avoid the collision
as he also did not keep a
proper lookout.
14.
In
NATIONAL EMPLOYERS GENERAL INSURANCE CO LTD v SULLIVAN
1988
(1) SA 27
the court stated as follows:
‘
The
driver in a through street, while being required to keep a general
look-out, is entitled to assume, in the absence of indications
to the
contrary, that a driver approaching from a stop street will heed the
stop sign operating against him and bring his vehicle
to a stop. It
is only when it would become apparent to a reasonable man in the
position of the driver in the through street that
the driver in the
stop street does not intend to stop, or will not be able to stop in
time, that the duty rests on the through
street driver to take
appropriate avoiding action. Until that stage is reached it is not
incumbent upon him, under normal conditions,
to regulate his driving
on the assumption that the driver in the stop street may not stop’.
(at 36D-F)
15.
I find that the insured driver was the substantial cause of the
accident but the plaintiff also contributed to causing the accident.
In
the circumstances I find that it would be just and equitable that the
insured driver is held to be 80% liable for the cause of
the accident
and that the plaintiff contributed 20% in causing the accident.
ORDER
16.
I accordingly make the following order:
i. The defendant is
liable to pay the plaintiff 80% of the plaintiff’s proven or
agreed damages.
ii. The defendant
is ordered to pay the plaintiff’s costs regarding the merits of
the plaintiff’s claim.
N
KOLLAPEN
JUDGE
OF THE NORTH GAUTENG HIGH COURT
53528/2009
HEARD
ON: 28 FEBRUARY 2014
FOR
THE PLAINTIFF: ADV P. M. VAN RYNEVELD
INSTRUCTED
BY: PIETER MOOLMAN ATTORNEYS (ref: Moolman/B0046/ae)
FOR
THE DEFENDANT: ADV MOTSHWANE
INSTRUCTED
BY: MASHAZI & MATHIBELA INC (ref: MOKGADI/TP.476)