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[2014] ZAGPPHC 348
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Slater v Road Accident Fund (20291/2013) [2014] ZAGPPHC 348 (12 June 2014)
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IN THE GAUTENG
DIVISION HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
Case Number:
20291/2013
DATE: 12/6/2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
STEVE
SLATER
...............................................................................................................
PLAINTIFF
and
ROAD ACCIDENT
FUND
.............................................................................................
DEFENDANT
JUDGMENT
MOLEFE, J:
[1] On 17 April 2010
on the R544 road between Van Dijksdrift and Kriel, a motor vehicle
with registration numbers ND […],
there and then being driven
by M.L. Ngobeni (“the insured driver”) collided with the
plaintiff who was riding a motorcycle
with registration numbers DJP
[…].
[2] As a result of
the aforesaid collision, the plaintiff sustained bodily injuries for
which he had to receive medical treatment.
The plaintiff
instituted an action against the defendant in terms of the Road
Accident Fund Act No 56 of 1966 (“the
Act”) for damages
suffered as a result of the injuries so sustained. The plaintiff’s
claim is based on negligence of
the insured driver.
[3] At the
commencement of the trial, by agreement between the parties, an order
to separate the issue of liability (“merits”)
and quantum
in terms of Rule 33(4) was granted. In the present proceedings,
the issue of liability must be determined and
the issue of quantum
was postponed
sine die
.
[4] The plaintiff
testified on his own behalf and two witnesses testified on behalf of
the defendant, the insured driver, Mr Ngobeni
and Constable Matlala.
[5] The issues which
must be determined are the following:
5.1 whether the
insured driver was negligent;
5.2 whether the
plaintiff was negligent;
5.3 the
apportionment of negligence, if applicable.
[6] The plaintiff’s
version is that on 17 April 2010 at approximately 17h00, he was
travelling home to Kriel from Witbank.
He was not pressed for
time and was not in a hurry to get home. He was travelling on
the R544 road between Van Dijksdrift
and Kriel. The road
consisted of two lanes, one in each direction. There were
barricades on the side of the road due
to roadworks. The
estimated space between the barricades and the point where the lane
began was approximately 4 meters.
[7] There were a lot
of trucks on the road, which was usual for this road. He was
travelling behind a slow moving truck and
was travelling at a speed
of approximately 40 to 45 km\h. He proceeded to move slightly
over the middle line in order to
determine whether there are any
oncoming vehicles and whether it was safe for him to overtake the
truck in front of him and then
moved back to his own lane as it was
not safe for him to commence with the overtaking manoeuvre. He
did this on several occasions
and during all the occasions he moved
back to his lane as there were oncoming vehicles.
[8] Shortly before
the accident he again moved closer the middle line to obtain a better
vantage point with the intention to overtake
should it be safe to do
so. He was confronted with the approaching oncoming insured
vehicle from the opposite direction,
travelling very close to the
middle line. The insured vehicle and the plaintiff’s
motorcycle collided and the point
of impact was slightly over the
middle line. Plaintiff testified that when the collision
occurred he was not in the process
of overtaking but was simply
checking if it was safe for him to commence with his overtaking
manoeuvre, but the collision occurred
before he could move back to
his lane behind the truck. He did not notice the approaching
insured vehicle earlier and did
not have any time to avoid the
accident. The damage to the insured vehicle was to the right front
part.
[9] Under
cross-examination, he stated that he could not suddenly swerve back
to his lane when he saw the approaching insured vehicle
as a sudden
swerve would have caused him to crash as it is more difficult to
swerve a motorcycle than a motor vehicle. He
stated that he
moved from behind the truck four or five times before the collision
to check if it was safe to overtake. He
was not following the
truck too closely and left sufficient space to move back behind the
truck if there was oncoming vehicles.
The collision happened
too quickly and there was no time for him to move back to his lane to
avoid the collision. He stated
that he expected the insured
driver to swerve to his left to avoid the collision. Plaintiff
denied under cross-examination
that he was carrying alcohol at the
time of the accident.
[10] The version of
the insured driver was substantially different. He testified
that he was travelling on the R544 road towards
Witbank. He
noticed from a distance a big 26 wheeler truck and when he approached
a bend on his right, he saw the plaintiff’s
motorcycle through
the wheels of the truck, in the process of overtaking the truck.
When he approached the motorcycle, he
noticed that the motorcycle was
further into the middle line of the road and on his lane of travel.
He applied brakes and
attempted to swerve to the left up to a point
where the road barrier stopped him from swerving further. A
collision occurred
and at the point of impact which was on his lane
of travel, he was nearly stationary.
[11] Under
cross-examination the insured driver stated that when he first
observed the plaintiff’s motorcycle it was some
distance away
and it was travelling very fast at a speed of between 120 – 140
km\h. He conceded that it would have taken
some time for the truck
and the motorcycle to reach the insured driver’s vehicle. He
conceded that his motor vehicle came
to a halt at an angle to the
lines of the road. It was then shown to him on the photographs used
as exhibits that but for the car
that was parked at a slight angle
and immediately prior to him swerving slightly to his left, he must
have been very close, if
not on top of the middle line.
[12] The police
officer who completed the accident report form, Constable B.E.
Matlala conceded in her testimony that her report
is wholly
unreliable and that she obtained the information contained therein
exclusively from the insured driver. She further
conceded that
she cannot dispute the plaintiff’s evidence about the point of
impact being on the middle line or slightly
over it. The
evidence of the constable is unreliable and no weight can be attached
to it.
[13] The versions of
the plaintiff and the insured driver are irreconcilable in material
respects regarding how the collision occurred,
and are mutually
destructive. It is common cause between the parties that the
plaintiff bears the onus of proving negligence
on the part of the
insured driver on a balance of probabilities.
[14] The technique
generally adopted by the Courts in resolving factual disputes when
dealing with two irreconcilable versions is
set out in
SWF
Group Limited and Another v Martell ET CIE and Others
[1]
,
wherein
the following relevant applicable principles are stated:
“
14.1.
Findings must be made on:
14.1.1 the
credibility of the various factual witnesses which depends on a
Court’s impression about the veracity of the witnesses;
14.1.2 their
reliability; and
14.1.3 the
probabilities.
14.2 In regard
to the credibility of a witness, a number of factors must be taken
into consideration:
i) the witness’
candour and demeanor in the witness-box;
ii) his latent
and blatant lies;
iii) internal
contradictions in his evidence;
iv) external
contradictions with what was pleaded or put on his behalf, or with
the established facts or with his own extra curial
statements or
actions;
v) the
probability or improbability of particular aspects of his version;
and
vi) the caliber
and cogency of his performance compared to that of other witnesses
testifying about the same incident or events.
14.3 A witness’
reliability will depend, in addition to the aforesaid factors
mentioned in paragraph 14.2 (ii) (iv) and (v)
above, on:
i) the
opportunity he had to experience the event in question;
ii) the quality
integrity and independence of this recall of the event.
14.4 Having
regard to the probabilities, this necessitates an analysis and
evaluation on the probability or improbability of each
party’s
version on each of the disputed issues.
14.5 In light of
its assessment of the factors in 14.2 to 14.4 above, a Court
should then, as a final step, determine whether
the party burdened
with the onus of proof, has succeeded in discharging it.
14.6 When a
Court’s credibility findings compel it one direction and its
evaluation of the general probabilities compels
it in another
direction, the more convincing the former, the less convincing will
be the latter. But when all factors are
equipoised,
probabilities will prevail”.
[15] The opinion
tendered by both the plaintiff and the insured driver are by and
large irrelevant and do not assist in determining
the probabilities.
[16] The test
propounded by Wessels JA in
National
Employer’s Mutual General Insurance Association v Gany
[2]
is to the effect that “
where
there are two stories mutually destructive, before the onus is
discharged, the court must be satisfied upon adequate grounds
that
the story of the litigant upon whom the onus rest is true and the
other false”.
[17] In
Selamolela
v Makhado
1988 (2) SA 372
(V)
, the court
reconfirmed the principle that where there are two mutually
destructive versions in a civil trial, the correct approach
to be
adopted in deciding the issue, is to determine which of the two
versions is more probable than the other.
[18] In a civil
case, the onus is obviously not as heavy as it is in a criminal case,
but nevertheless, where the onus rests on
the plaintiff as it is in
the present case, and where there are mutually destructive stories,
the plaintiff can only succeed if
he satisfies the court on a
preponderance of probabilities that his version is true and accurate
and therefore acceptable, and
that the other version advanced by the
defendant is therefore false or mistaken and falls to be rejected.
In deciding whether
that evidence is true or not, the Court will
weigh up and test the plaintiff’s allegations against the
general probabilities.
(See
National
Employers’ General Insurance v Japers
[3]
.
[18] The Court when
having regard to the credibility of the plaintiff, was impressed by
his demeanor. He appeared to be honest,
reliable and a credible
witness. He gave evidence in a concise, to the point manner
without exaggeration. Plaintiff’s
Counsel
[4]
submitted that the evidence of the plaintiff in relation to the point
of impact being on or just over the middle line remained
unchallenged. Counsel relied on
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000
(1) SA 1
(CC)
,
wherein the Constitutional Court found that if a point in dispute was
left unchallenged in cross-examination, the party calling
the witness
was entitled to assume that the unchallenged witness’ testimony
was accepted as correct
[5]
.
[19] Defendant’s
Counsel
[6]
submits that the
plaintiff’s own version supports his own negligence and, apart
from the evidence that the insured driver
was “fairly close”
to the middle line and that the insured driver could have swerved, no
other evidence was adduced.
As such, the plaintiff can only
rely on the inference of negligence. Counsel relied in the
matter of
AA
Onderlinge Assuransie Bpk v De Beer
[7]
wherein the court held per Viljoen JA that:
“
It is not
necessary for a plaintiff invoking circumstantial evidence in a civil
case to prove that the inference which he asks the
court to make is
the only reasonable inference. He will discharge the onus
which rests on him if he can convince the court
that the inference
he advocates is the most readily apparent and acceptable inference
from a number of possible inferences”.
[20] Counsel for the
defendant argued that on the plaintiff’s own version, he moved
over into the oncoming traffic when it
was not safe to do so.
He did not even take any steps to avoid the accident when he saw the
insured driver. The accident
occurred in the lane of the
insured driver after he had applied brakes and swerved to the left.
On this basis, defendant’s
counsel contends that plaintiff was
negligent and failed to show on a balance of probabilities that the
insured driver was negligent.
Counsel submitted that the claim should
be dismissed with costs.
[21] On the evidence
before me, the plaintiff’s version is clear; he was not
overtaking the truck before him, but had simply
moved onto or
slightly over the middle line to obtain a better vantage point in
order to check any oncoming traffic and to check
if it was safe for
him to commence with his overtaking manoeuvrer. He was
travelling behind a slow moving truck at a speed
of 40 – 45
km\h. I can find no reason why the plaintiff would have
overtaken a long 26 wheeler truck without first
establishing that it
was safe to do so. He travelled on or slightly over the middle
line and the point of impact was not
challenged that it was on or
slightly over the middle line. The damages on the insured
driver’s vehicle, on the right
front part, corroborates the
plaintiff’s version that the motorcycle was not at the point of
impact, travelling in the insured
driver’s lane of travel.
Having regard to the totality of the evidence, I can find no reason
not to believe the plaintiff.
[22] The insured
driver however was not a very impressive witness. His versions
of the events were inconsistent, differed
from the version put to him
by plaintiff’s counsel. His version is in my view
improbable for various reasons.
It is highly improbable that
the plaintiff was travelling at a speed of 120 – 140 km\h
behind a slow moving truck.
He conceded that he was travelling
very close to the middle line of the road as drawn by him on the
photograph that was handed
up as an exhibit. This confirms that
he was too close to the middle line whilst he was aware that vehicles
behind trucks
would attempt to overtake slow-moving trucks.
Although on his own version he noticed the truck and the motorcycle
some distance
away, he failed to take evasive action by moving his
car slightly to the left and then straightening his vehicle.
This is
despite his version that the lane was big enough for a 26
wheeler truck to move around his lane even after the collision.
The insured driver’s version is that the collision was
reasonably foreseeable and preventable but he failed to avoid it when
he had time, the space and opportunity to take the required evasive
action.
[23] The test for
negligence has been authoritatively laid down in
Kruger v
Coetzee
1966 (2) SA 428
(A)
, where the
Appellate Division held that:
“
In an
action for damages alleged to have been caused by the defendant’s
negligence, for the purposes of liability culpa only
arises if a
diligens paterfamilias in a position of the defendant not only would
have foreseen the reasonable possibility of
his conduct injuring
another in person or property and causing him patrimonial loss, but
would also have taken reasonable steps
to have guarded against such
occurrence; and the defendant failed to take such steps”.
I find the
plaintiff’s version on how the accident occurred to be more
probable and that the insured driver failed the reasonable
man test
by failing to take reasonable steps to avoid the collision.
Contributory
Negligence
[24] I therefore
consider the causative negligence and whether there was contributory
negligence to be attributed to the plaintiff.
Because the
observance of the rule of road which requires traffic to keep to the
left of the center of the road is of such importance,
a motorist
keeping to his side of the road is entitled to assume that
approaching traffic will do likewise. Even when an
approaching
vehicle is on its incorrect side of the road, a driver on his correct
side may assume that the former will return timeously
to its correct
side of the road. But this assumption does not entitle a driver
on the correct side of the road to remain
passive in the face of
threatening danger. As soon as the danger of the collision
becomes evident he is under a duty to take
reasonable steps to avert
one.
[25] In
Burger
v Santam Versekeringmaatskappy Bpk
1991 (2) SA 703
(A)
, the Court states that when a reasonable driver
approaches a motor vehicle over a considerable distance, which had
been veering
onto the wrong side of the road, that driver would at
least take three steps. The driver would brake, move his motor
vehicle
to the left as far as possible and hoot continuously.
In this case the motor vehicle travelling on the correct side of the
road failed to hoot and thereby bringing the other motor vehicle
driver’s attention to his presence and was found to be 25%
at
fault as a result thereof.
[26] In
casu,
the motorcycle was on or over the middle line of the road and the
insured driver, despite noticing the plaintiff at some distance
away,
failed to take sufficient evasive action and contributed to the
occurrence of the collision. Plaintiff’s counsel
submitted that an apportionment of 50% against the defendant should
be awarded and relied on the case of
Jadezweni
v Santam Insurance Co Ltd and Another
[8]
.
[27] Section 1 (a)
of the Apportionment of Damages Act 34 of 1956, enjoins the Court to
reduce the damages recoverable by a negligent
claimant to such an
extent as the Court may deem just and equitable, having regard to the
degree to which the claimant was at fault
in relation to the
damages. The plaintiff in this case, on his version, moved over
on and\or over the middle line of the
road to check if it was safe to
overtake. He did not have time to take any steps to avoid the
accident as there was no time
to do anything. In my view, the
plaintiff’s negligence should be assessed at 60% and the
insured driver’s negligence
at 40%.
[28] I therefore
make the following order:
1. The issues of
merits and quantum are separated in terms of Rule 33(4);
2. The aspect of
quantum is postponed sine die;
3. The defendant
is liable to pay 40% of the plaintiff’s proven or agreed
damages;
4. The defendant
is liable to pay the costs in respect of the merits portion of the
plaintiff’s action on a party and party
High Court Scale.
______________________
D
S MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
on behalf of Plaintiff :
Adv.S M
Maritz
Instructed by :
Christo Botha Attorneys
Counsel
on behalf of Defendant :
Adv. S G
Myburgh
Instructed
by : Mothle, Jooma, Sabdia INC.
Date Heard :
23 May 2014
Date Delivered
: 12 June 2014
[1]
2003
(1) SA 11
SCA at paragraph (5); See also: Dreyer & Another NNO v
AXZS industries (Pty) Ltd,
2006 (5) SA 548
(SCA) at 558 paragraph 30
[2]
1931
AD 187
at 199
[3]
1984
(4) 432
[4]
Advocate
S G Maritz
[5]
Par
61, p37
[6]
Advocate
S J Myburgh
[7]
1982
(2) SA 603
(A) at 604 G
[8]
1980
(4) SA 310
(C)