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[2014] ZAGPPHC 433
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Mchepu v Road Accident Fund (66306/2012) [2014] ZAGPPHC 433 (30 May 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
66306/2012
DATE OF HEARING:
6 MAY 2014
DATE: 30 MAY 2014
NOT REPORTABLE
In the matter
between:
J V
MCHEPU
.................................................................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
........................................................................................................
DEFENDANT
JUDGMENT
MAKHOBA AJ:
1.
INTRODUCTION
The Plaintiff
instituted an action against the Defendant, claiming damages suffered
as a result of injuries sustained in a motor
vehicle accident which
occurred on the 28
th
July 2011.
At
the outset it was agreed by the two parties that quantum be postponed
sine die.
The
only aspect in dispute is the negligence on the part of the insured
driver.
2.
COMMON CAUSE
It is common cause
that the Plaintiff was a pedestrian when he was hit by a vehicle
whilst crossing the road. The vehicle that collided
with the
Plaintiff was driven by the insured driver.
3.
EVIDENCE BEFORE
COURT
The Plaintiff (Mr
James Ussi Mchepa) testified that on the evening of the 28
th
July 2011 at about 19H00, he, together with his brother, alighted
from a taxi on the corner of Voortrekker road and Lochner street,
Raslouw, Centurion. Voortrekker road is a two way street, running
from South to North and vica versa. It is divided into two lanes
on
each side.
There are stop signs
on both sides of Lochner street for traffic wanting to turn into
Voortrekker street. There is another lane
for traffic wanting to turn
right into Lochner street.
There were road
works in Voortrekker street and the street was not lit. Plaintiff
testified that he was with his brother and he
was carrying a big bag
on his head. He intended to cross the road but before he could do
that he saw a vehicle approaching but
it was still far. He saw the
lights of this vehicle. The said vehicle was travelling too fast and
when he saw it, it was about
100 meters away. Nevertheless he decided
to cross the road.
He testified that he
cannot remember in which lane the vehicle collided with him but later
he testified that it was on the lane
on page 88 photo 2 of the
Court’s bundle. Whilst crossing the road a vehicle driven by
the insured driver hit him on his
leg. When he crossed the road he
was walking, he never heard the vehicle approaching. After the
collision he was taken to hospital.
The Plaintiff was the only
witness for his case.
Defendant called two
witnesses namely the insured driver and one person who was a
passenger in the insured vehicle.
Trinity Bore
testified that on the day of the collision he was driving his vehicle
on Voortrekker Street from South to North. It
was not the first time
he was driving on this road. There were also passengers in the
vehicle. He was travelling at a speed of
about 90 km/h. It was dark,
there were no street lights. The road surface was good. There were
road works on the road.
Whilst on the fast
lane he noticed two pedestrians ahead crossing the road. The two
pedestrians then stood in between the two lanes,
one of them stopped,
however, the other one being the Plaintiff proceeded to cross the
road. He hooted, but unfortunately the pedestrian
was carrying a bag
on his head and he reacted late. The witness testified that he
swerved to his right to avoid colliding with
the pedestrian but
unfortunately the Plaintiff was hit by the left mirror and front
wheel of his vehicle. After the accident he
administered first aid to
the Plaintiff.
Defendant called the
second witness Mr Tebogo Makgale who testified that on the day in
question he was a passenger in Mr Bore’s
vehicle, he was seated
in the front seat and he was talking on his cell phone when Mr Bore
swerved the vehicle and hooted. Their
vehicle collided with the
Plaintiff. Plaintiff was wearing dark clothes and carrying a big bag
on his head. The collision took
place in the middle of the road.
The Defendant
thereafter closed his case.
4.
THE LAW
In Ntsala and Others
v Mutual and Federal Insurance Co Ltd 1996(2) SA 184(T) the
honourable Judge Els. Stated the following “The
onus rests on
the plaintiff to prove negligence on the part of the defendant’s
driver”.
In Davies v
Grossling
1935 WLD 107
in this case, although the driver hooted to
the pedestrian he was found to be negligent since he did not take
extra caution.
In
Manual v SA Eagle Insurance Co Ltd 1982(4) SA 352(c) at page 357
paragraph A the court said
“
The
principles to be extracted from these cases are as follows.
“
A
motorist who sees a pedestrian on the roadway or about to venture
thereon should regulate his driving so as to avoid an accident
The
pedestrian may by his conduct convey to the motorist the impression
that he recognises, and intends to respect, the motorist’s
right of way. When such an impression is conveyed by the pedestrian,
the motorist may proceed on his way accordingly. Whether the
motorist
is reasonably entitled to assume or infer, from the conduct of the
pedestrian, that his right of way is being recognised
and respected,
is a question of fact to be decided in each case some examples are to
be found in the decisions cited above. When
the assumption is not
justified, the motorist must regulate his driving to allow for the
possibility or probability, that his vehicle
may not enjoy an
unobstructed passage. Where a pedestrian reacts appropriately to the
presence of an approaching vehicle, the critical
enquiry is whether a
reasonable motorist would foresee the reasonable possibility that the
pedestrian might nonetheless act irrationally
by moving, perhaps
suddenly, into the vehicle or its path. That possibility exists for
young children, for adults who are plainly
drunk, and may arise in
other cases. ”
In my view this
decision sets out succinctly the duties of a motorist when a
pedestrian is crossing the road as well as the duties
of a pedestrian
when crossing the road.
The author W.E.
Cooper in Delictual Liability in Motor Law 1996 edition at pages
193-194 writes as follows about a pedestrian’s
duty when
crossing the road a road: “A pedestrian who intends crossing a
road should do so at an opportune moment and he
must exercise
reasonable care. He must use his senses to ascertain whether any
motor vehicles are approaching. He should keep a
proper look-out; he
should acquaint himself with the vicinity and scan the road so as to
ascertain whether any motor vehicle on
the road may be an actual or
potential risk to his safety. Usually a pedestrian will look to the
left and to the right before entering
the road. Once he reaches the
centre of the road he should devote his attention to motor vehicles
approaching from his left”.
See also Beech and Another v
Setzkorn and Another
1928 CPD 500
at 504; Singh v New India Assurance
Co Ltd 1966(4) SA 154(D); Mazibuko v Santam Insurance Co Ltd and
Another 1982(3) SA 125 (A).
The same author,
supra, on page 195 comments as follows about the duties of a driver:
“A driver is required to exercise reasonable
care and vigilance
not only towards a pedestrian he sees, or ought reasonable to see, on
or near the road; he is obliged to exercise
the same reasonable care
and vigilance towards an unseen pedestrian whose presence he should
reasonably foresee or anticipate because,
for example, of the
proximity of a school or of a passenger bus.”
In Dlangamandla v
Road Accident Fund 2011(5) SA 565(FB) on paragraph 27 the court said
“it has been held that a reasonable,
prudent pedestrian should
not cross the road when doing so exposes himself to the reasonable
risk of collision with passing vehicles”.
In Dlangamandla v
Road Accident Fund supra in this case a collision took place between
a pedestrian and a vehicle at about 19H10.
The Plaintiff in that case
was wearing dark clothes and the driver of the vehicle had seen the
Plaintiff from a distance. The court
held that under those prevailing
circumstances the driver should have adjusted his speed long before
reaching the pedestrian.
5.
EVALUATION
The Plaintiff in
this case when he gave his testimony it was clear to me that he was
not proficient in the English language and
he struggled to express
himself properly. Besides the shortcomings in expressing himself he
managed to give evidence up until the
end of his testimony. The
Plaintiff’s testimony is riddled with inconsistencies and
improbabilities. In addition he contradicted
himself in material
respects. I will mention just a few of these inconsistencies below:
a) In his affidavit
handed in by consent between the parties page 35 of the bundle he
says “I had already crossed the street
a green BMW with
registration number R[...] bumped me from behind”. In his
evidence in chief he testified that the insured
vehicle collided with
the right side of his body.
b) He testified that
when he crossed the road he was having a big bag on his head. He saw
the vehicle first when it was 100 meters
away from him and it was
travelling very fast despite this he told his brother that they must
cross the road.
c) During
cross-examination he was asked whether he looked or checked how far
the speeding vehicle was that he saw earlier on. He
answered as
follows “I was in the road, I never checked”.
In regard to the
insured driver, that is Mr Bore, he testified and conceded to the
following:
a) He was travelling
at a speed of about 90km/h when he first saw the Plaintiff and his
brother crossing the road. Page 83 of the
court bundle shows the
speed limit on that road to be 80km/h,
b) He testified that
he did not apply brakes but he immediately removed his foot from the
accelerator pedal and applied brakes after
swerving to avoid
colliding with the plaintiff.
c) Even though he
saw one of the two pedestrians stopping he did not reduce speed.
Besides giving his
testimony Mr Bore gave his evidence in a clear and direct manner.
Tebogo Makgale the second defendant’s
witness confirmed that
the Plaintiff was carrying a big bag on his head and Mr Bore did hoot
to him.
6.
CONCLUSION
From Mr Bore’s
own testimony the court is satisfied that on a balance of
probabilities he was negligent in that:
i) When he noticed
the Plaintiff crossing the road with a big bag on his head which
obstructed his view (the pedestrian) he (the
insured driver) should
have realised that his vehicle may not enjoy an unobstructed passage
and should have reduced the speed and
regulated his driving
accordingly. See Manuel v SA Eagle Insurance Co Ltd Supra
ii)
The
insured driver testified that he was travelling at a speed of about
90km/h in an 80km/h zone. In my view that in itself constitute
negligence especially when the road was not lit.
iii) The insured
driver did not apply brakes when he saw the Plaintiff crossing and
the other pedestrian stopping instead all he
did was to lift his foot
from the accelerator pedal.
Taking all these
factors into account the court is satisfied that, on a balance of
probabilities the Plaintiff has discharged the
onus of showing that
the insured driver was negligent.
However the
Plaintiff is not without blame.
The court finds that
the Plaintiff was also negligent as well in the following manner:
1. In his testimony
he testified that he saw the vehicle approaching at a high speed and
yet he proceeded to cross the road.
2. He was wearing
dark clothes, carrying a big bag on his head which impeded his view
and he crossed the road.
3. Whilst in the
middle of the road he did not exercise reasonable care by checking or
looking how far the speeding vehicle was
which he saw approaching
earlier on.
4. As a pedestrian
he had a duty to exercise reasonable care and unlike his brother he
did not stop to avoid colliding with the
vehicle. See Manuel v Eagle
Insurance Co Ltd Supra.
The court finds that
Plaintiff have negligently contributed to the collision. In the
matter of A.A Mutual Insurance Association
Ltd v Nomeka 1976(3) SA
45(A) the court held that “.... provided the Plaintiff’s
fault is put in issue an apportionment
of damages need not be
specifically pleaded or claimed.”
Taking all the
evidence into consideration as well as case law referred to above the
court is satisfied that both the Plaintiff
and the insured driver
were at fault.
7.
ORDER
Accordingly I make
the following order:
a) On merit the
Plaintiff’s claim should succeed on 60% of proven or agreed
upon damages.
b) The Defendant is
directed to pay the costs of the trial.
MAKHOBA.
AJ
JUDGE
OF THE HIGH
COURT
OF SOUTH AFRICA.
GAUTENG
DIVISION.
PRETORIA