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[2014] ZAGPPHC 305
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Lombard v Road Accident Fund (60190/2012) [2014] ZAGPPHC 305 (28 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
60190/2012
DATE: 28 MAY 2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
MARNU LOMBARD
…............................................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
…...............................................................................................
DEFENDANT
JUDGMENT
KUBUSHI, J
[1] On or about 19
June 2010 at about 00h25 Angela Marlyn Allan (Allan) was travelling
on the M3 highway towards Muizenberg, Cape
Town. She was travelling
together with her husband who was sitting in the passenger seat and
their two children at the back, she
being the driver. The speed limit
on that road is 100km per hour. The highway consists of two lanes and
a yellow emergency lane
going in the direction she was travelling and
two lanes going in the opposite direction. She was travelling on the
left lane of
the road at a speed of about 80 to 90km per hour. Along
the way she was overtaken by a motor cycle. She does not know at what
speed
the motor cycle was travelling but it must have travelled at a
higher speed than hers because it was able to overtake her. After
overtaking her, the motor cycle swerved back into the left lane which
is the lane she was travelling in and travelled in front
of her. She
did not see the motor cycle reduce speed or apply breaks nor did she
herself reduce speed or apply breaks after the
motor cycle overtook
her. Further down the road, in the same direction she was travelling,
there was another motor vehicle travelling
on the left lane, that is,
the same lane she was travelling in together with the motor cycle.
She was able to see this other motor
vehicle because the road where
they were travelling was flat and she could see the motor vehicle’s
red tail lights. The two
motor vehicles and the motor cycle were
travelling in the same lane, the left lane, just before the
collision. The motor cycle
overtook that other motor vehicle. When
the motor cycle was travelling in the right lane parallel to the
other motor vehicle that
motor vehicle, without any warning, swerved
to the right lane and back again into the left lane, to avoid being
hit by that motor
vehicle the motor cycle swerved further right. Once
the motor vehicle had passed the motor cyclist tried to swerve back
to the
correct lane of the road but he lost control of the motor
cycle. The motor cyclist fell from the motor cycle rolled and landed
in the left lane of the road. The motor cycle fell on its side,
skidded and stopped about 200m from where the motor cyclist fell.
Allan parked her motor vehicle on the side of the road, inside the
yellow emergency lane, alighted and went to assist the motor
cyclist.
From the look of things the motor cyclist was injured because he was
unconscious and had blood on his neck. Allan used
her cell phone to
summon an ambulance to the scene of the collision. One of the ladies
who stopped at the scene was a doctor and
she was able to stabilise
the motor cyclist whilst waiting for the ambulance. The motor cyclist
regained consciousness at the time
he was being placed in the
ambulance as a result Allan did not have an opportunity to talk to
him. She only got to talk to the
motor cyclist when he phoned
together with his son to thank her. Allan had given the police her
contact details at the scene of
the collision. At the time when the
ambulance was about to leave the scene of the collision they noticed
a body of a man lying
on the inside of the yellow emergency lane next
to the place where the other motor vehicle had swerved to the right.
The motor
vehicle which caused the collision proceeded on its way
without stopping. The details of the motor vehicle and the driver are
unknown.
[2] The motor
cyclist in the collision is the plaintiff in this instance and he is
as a result of the said collision claiming damages
against the Road
Accident Fund for personal injuries sustained when he fell from the
motor cycle. I was informed at the commencement
of the trial that the
plaintiff was badly injured during the collision and has no memory of
the collision. Allan was called to
give evidence on his behalf.
[3] The parties
agreed at the pre-trial conference that the matter should be heard on
the merits only. On application at the start
of the trial, I granted
leave that the matter be heard on the merits only and quantum be
postponed sine die.
[4] Allen was the
only witness for the plaintiff and at the close of the plaintiffs
case the defendant’s counsel applied for
absolution from the
instance on the ground that the plaintiff did not testify on his
behalf. I refused to grant the application
and undertool? to give my
reasons therefore when I give judgment. It is common cause that the
plaintiff sustained head injuries
which rendered him unable to
remember the circumstances which led to the injuries he sustained. It
is indeed so that it is not
incumbent on the plaintiff to give
evidence when he is not able to do so. What the court has to consider
in an application for
absolution is whether there is evidence before
court upon which a reasonable court might give judgment against the
defendant. It
is not necessary that such evidence be tendered by the
plaintiff personally. Any evidence before court should be considered.
In
this instance, the plaintiff tendered the evidence of an eye
witness Angela Marlyn Allan who was able to put the court into the
picture. There is thus evidence before me. What I should consider is
whether it is evidence upon which I might give judgment against
the
defendant. In my opinion the evidence tendered by Allan is evidence
which I might grant judgment against the defendant.
[5] The defendant
closed its case without giving evidence.
[6] In argument, the
plaintiffs counsel contended that I should find in favour of the
plaintiff because the plaintiffs injuries
were caused by the sole
negligence of the unidentified driver of the unidentified motor
vehicle. He argued further that there is
no evidence that the
plaintiff was travelling at excessive speed. The evidence of Allan
shows that the driver of the unidentified
motor vehicle did not keep
a proper look out. The driver should have seen or been aware of the
motor cycle because it had its lights
on and at the time he swerved
to the right the motor cycle was travelling next to the unidentified
motor vehicle.
[7] The argument by
the defendant’s counsel is that the plaintiffs claim should be
dismissed on the ground that the plaintiff
must have been travelling
at an excessive speed of over 90km per hour at the time he overtook
Allan. Plaintiff should have been
aware of the lighting conditions
and should have kept a proper look out and by reasonable care he
should have avoided the collision.
[8]
S17 (1)
(b)
of
the Road Accident Fund 56 of 1996 reads that
“
(1)
The fund or an agent shall -
(a)...
(b) subject to
any regulation made under section 26, 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 nor the driver
thereof has been established, be obliged to compensate
any person
(the third party) for any loss or damages which the third party has
suffered as a result of any bodily injury to himself
or herself or
the death of or any bodily injury to any other person, caused by or
arising from the driving of a motorvehicle by
any person at any place
within the Republic, if the injury or death is due to the negligence
or other wrongful act of the driver
or of the owner of the motor
vehicle or his or her employee in the performance of the employee’s
duties as employee.
(2)...”
[9] From the above
it is evident that the Fund will be able to compensate a victim of a
motor vehicle collision for damages which
that person suffered as a
result of bodily injuries sustained due to the negligent driving of a
motor vehicle even where neither
the driver of such motor vehicle nor
the motor vehicle itself has been identified. It is common cause that
in this instance the
driver of the motor vehicle and the motor
vehicle he or she was driving were not identified. What is in issue
is negligence.
[10] According to
the plaintiffs counsel the collision was caused by the sole
negligence of the unidentified driver who was negligent
in one or
more of the grounds set out in the plaintiffs particulars of claim,
namely, that the unknown driver -
10.1
failed to beep a proper,
alternatively
any proper lookout;
10.2
failed to beep his vehicle under proper,
alternatively
under any proper control;
10.3 drove at an
excessive speed in the circumstances;
10.4 drove into
the plaintiff’s path of travel, causing plaintiff to swerve to
try avoid the collision;
10.5
failed to have regard,
alternatively
any proper regard to the rights
of other road users;
10.6 failed to
avoid the collision where by the exercise of reasonable care he could
and should have done so.
[11] The defendant’s
counsel on the other hand submits that the collision was caused
solely by the negligence of the plaintiff
on the grounds as set out
in the defendant’s plea, namely
11.1 He failed to
beep a proper lookout.
11.2 He drove his
motor vehicle at an excessive speed.
11.3 He failed to
beep the motor vehicle he was driving under proper control;
11.4 He failed to
avoid the collision when by exercise of due and reasonable care he
could and should have done so;
[12] The credible
evidence of the plaintiffs witness is uncontested. The witness is an
independent eye witness to the occurrence
of the collision. She did
not know the plaintiff at the time of the collision. There is no
reason why she would opt to lie. It
was also not suggested during
cross examination that her evidence might not be true. I therefore
have to accept her evidence as
the truth of what happened.
[13] Allan’s
evidence shows that the collision was caused by the driver of the
unidentified motor vehicle who swerved into
the path of travel of the
plaintiff when it was not opportune to do so. The plaintiff was at
that time travelling parallel to the
unidentified motor vehicle and
its driver ought to have seen him. My view is that the unidentified
driver also failed to beep a
proper lookout. The evidence is that
that part of the road where the collision occurred is semi-rural and
does not have lights
and I would infer that at that time of the night
it would have been dark. The unidentified driver should as a result
have been
more cautious. It is possible that the unidentified driver
saw the body lying on the side of the road and tried to avoid it. If
he or she was cautious and kept a proper lookout he or she would have
been able to pass that body without swerving to the right
and as such
go into the path of travel of the plaintiff causing the plaintiff to
swerve and lose control of the motor cycle. Allan’s
evidence is
that the body was lying inside the yellow emergency lane; the
unidentified motor vehicle should therefore have easily
passed the
body whilst still travelling on the left lane. If he or she had kept
a proper lookout he or she would have seen the
plaintiff coming up to
him or her and overtake the unidentified motor vehicle because the
lights of the motor cycle were on. If
he had kept a proper lookout he
or she would as such been aware that the motor cycle was about to
overtake. The unidentified driver
would also have been able to avoid
swerving to the right by applying breaks and allow the plaintiff to
pass before swerving into
the right lane or should have stopped.
[14] There being no
other evidence to countenance that of the plaintiff my view is that
the unidentified driver is the sole cause
of the collision. There is
also no evidence that the plaintiff might have contributed to the
cause of the collision. Immediately
before the collision the
plaintiff had indicated his intention to overtake the unidentified
motor vehicle by moving to the right
lane. The unidentified driver
ought to have seen him because the motor cyclist’s lights were
on. At the time of the collision
the plaintiff was already travelling
parallel to the unidentified motor vehicle. There was no way he could
have avoided the collision
other than to swerve further to the right.
The uncontroverted evidence of Allan is that the unidentified motor
vehicle swerved
to the right without any warning. It is my view
therefore that the defendant is liable to compensate the plaintiff
for the injuries
sustained.
[15] Consequently
the plaintiffs claim succeeds with costs including the costs of
Angela Marlyn Allan (to be taxed) as a necessary
witness.
EM KUBUSHI
JUDGE OF THE HIGH
COURT
HEARD ON THE: 21 MAY
2014
DATE OP JUDGMENT: 28
MAV 2014
PLAINTIFF’S
COUNSEL: ADV J J WESSELS, SC
PLAINTIFF’S
ATTORNEY: MUNRO FLOWERS & VERMAAK
DEFENDANT’S
COUNSEL: ADV M N LEBALLO
DEFENDANT’S
ATTORNEY: T M CHAUKE ATTORNEYS