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[2013] ZAGPPHC 135
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Khan v Road Accident Fund (13566/2012) [2013] ZAGPPHC 135 (31 May 2013)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER: 13566/2012
DATE:31/05/2013
In the matter between:
MOOSA KHAN
….....................................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
......................................................................
DEFENDANT
JUDGMENT
RATSHIBVUMO AJ:
1. Introduction: The plaintiff claims
damages in terms of the Road Accident Fund Act 56 of 1996 (the Act)
pursuant to bodily injuries
sustained in a motor vehicle collision on
28 February 2004, for an amount of R807 939.00. The collision
occurred at about 19h00
along Mzimkhulu/Kokstad Road. The matter was
initially before the Kwazulu-Natal High Court, Durban and was
transferred to this
court following a court order dated 15 February
2012, which order was made by consent of the plaintiff and the
defendant. The jurisdiction
of this court to hear the case was agreed
to by both parties.
2. Pursuant to an agreement reached at
the Rule 37 pre-trial conference, the parties requested that the
trial proceed in respect
of the merits only and that the quantum
stand over for determination at a later stage; a request acceded to
by the court.
1
Accordingly, trial proceeded only in respect of defendant’s
liability.
3. In the initial particulars of
claim, the plaintiff gives details of the registration letters and
numbers of the motor vehicles
that were involved in a collision as
CNL 993 (vehicle 1 driven by NP Nodada), NP 12357 (vehicle 2 driven
by P Mzebetshana and NPN
75548 (vehicle 3 driven by the plaintiff).
2
4. Issues for determination. Issues in
dispute have been listed in paragraph 7 of the plaintiff’s
particulars of claim as
whether or not the diver of motor vehicle 1,
alternatively the driver of motor vehicle 2 was negligent in one or
more of the following
aspects: failure to keep a proper look-out;
driving the vehicle at an excessive speed; failure to keep the
vehicle under control;
failure to apply brakes timeously or at all;
failure to drive with due consideration for the other road users, in
particular the
plaintiff; failure to avoid the collision when, by
slowing down, turning aside or stopping he could have done so;
failure to avoid
the collision when by exercising a reasonable care
he could have done so or driving onto the incorrect side of the road
thereby
colliding into the plaintiff’s vehicle. In essence the
plaintiff alleges from the pleadings that the collision was caused
solely by the negligence of a driver of vehicle 1 or vehicle 2 or
both such drivers. This version is disputed by the defendant
who
alleges that the collision was caused by sole negligence of the
plaintiff.
5. In order to determine whether the
plaintiff succeeded in discharging the onus, it is apposite to
consider the factual matrix
upon which the matter is predicated. Four
witnesses testified in total, one for the plaintiff and three for the
defendant.
6. The following exhibits were handed
in by agreement. Exhibit A being the Index to plaintiff’s trial
bundle on merits. This
index comprised of a covering letter from the
plaintiff’s attorney to the defendant enclosing plaintiff’s
lodgement
documentation, RAF Form 1 with medical report by Dr.
Msauli, RAF Form 1 with medical report by Dr. Couveia, SAPS accident
report
and an affidavit by Tyrone Fynn. Exhibit B being a photo album
comprising of 7 photographs handed in to show the road along which
the collision took place. Exhibit C and D being plaintiff’s
affidavits made on 30 May 2005 and 5 February 2007 respectively.
Reference will be made to some of these exhibits herein under.
7. Plaintiff’s case. Following
is the summary of evidence. The plaintiff testified that on 28
February 2004 at about 19h00,
he was a driver of a Cressida motor
vehicle travelling from Mzimkhulu heading towards Kokstad. The said
road is a two way road
with one lane in opposite directions as
reflected in Exhibit B. He could not tell the exact point of impact
from Exhibit B since
the photos were not clear to him. He had two
passengers in the car being Mthuthuzeli Shazi, seated in the front
passenger seat
and Nomvuyo Shazi, a girl then aged 14 (herein after
referred to as Shazi) seated on the back seat. Mthuthuzeli Shazi
alighted
from the car shortly before the collision. At the time of
the collision, he was travelling at about 70 km/h. He noticed the
lights
of an oncoming motor vehicle driving on his side of the road.
He immediately dimmed his motor vehicle’ lights as until then,
they were bright. The testified that the other motor vehicle crashed
into his. He did not apply brakes or try to swerve his motor
vehicle
to the side because by the time he noticed what was happening, the
collision had already happened. He remembers nothing
that happened
thereafter because he lost consciousness. The next time he regained
consciousness he was in Rietvlei Hospital. He
does not know the
number of motor vehicles his motor vehicle collided with.
8. The following came out during cross
examination of the plaintiff. The details of the collision as to
where it happened and everything
that happened after the impact,
including the description of the motor vehicle(s) he collided with
were told to him by Shazi and
her mother. Shazi is a family relative
of the plaintiff. He had no personal recollection of the registration
number plates of motor
vehicle 1 and motor vehicle 2 as described in
Exhibit C and D or who the drivers were. He only wrote the said
details in the affidavits
after he saw them in the summons that was
served on him by Shazi’s father. From his personal collection,
he remembers colliding
with one motor vehicle, not two. He only saw
his damaged motor vehicle at a scrapyard after he was discharged from
the hospital.
He denied that his car veered out of its lane into the
oncoming traffic. It was put to him that he nearly collided with the
first
motor vehicle, the driver of which swerved to the left to avoid
his (plaintiff’s) motor vehicle; that he then proceeded on
the
wrong lane hitting the second car on its right destroying its right
mirror, before colliding into the third motor vehicle.
He disputed
this version. The case for the plaintiff was closed without further
evidence.
9. Absolution from the instance. At
the close of the plaintiff’s case, Adv Sibisi sought an
absolution from the instance on
behalf of the defendant. The basis
for this application was that the plaintiff had not made out a prima
facie case. This was opposed
by Adv Clemens on behalf of the
plaintiff. The application was premised on the fact that the evidence
of the plaintiff contradicted
his earlier version as contained in the
particulars of claim and the affidavits he deposed and that he relied
on what he was informed
by other people to make out his case. This
application was refused for the reason that I was of a view that
there was a prima facie
case made out by the plaintiff. Further
reasons were reserved.
10. Harms JA conveniently set out the
definitive approach to an absolution application in Gordon Loyd Page
& Associates v Riviera
and Another
3
as follows;
The test for absolution to be applied
by a trial court at the end of a plaintiff's case was formulated in
Claude Neon Lights (SA)
Ltd v Daniel
1976 (4) SA 403
(A) at 409G - in
these terms:
'(W)hen absolution from the instance
is sought at the close of plaintiff's case, the test to be applied is
not whether the evidence
led by plaintiff establishes what would
finally be required to be established, but whether there is evidence
upon which a Court,
applying its mind reasonably to such evidence,
could or might (not should, nor ought to) find for the plaintiff.
(Gascoyne v Paul
and Hunter
1917 TPD 170
at 173; Ruto Flour Mills
(Pty) Ltd v Adelson (2)
1958 (4) SA 307
(T).)'
This implies that a plaintiff has to
make out a prima facie case - in the sense that there is evidence
relating to all the elements
of the claim - to survive absolution
because without such evidence no court could find for the plaintiff
(Marine & Trade Insurance
Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 37G - 38A; Schmidt Bewysreg 4th ed at 91 - 2). As far as
inferences from the evidence are concerned, the inference relied
upon
by the plaintiff must be a reasonable one, not the only reasonable
one (Schmidt at 93). The test has from time to time been
formulated
in different terms, especially it has been said that the court must
consider whether there is 'evidence upon which a
reasonable man might
find for the plaintiff' (Gascoyne (loc cit)) - a test which had its
origin in jury trials when the 'reasonable
man' was a reasonable
member of the jury (Ruto Flour Mills). Such a formulation tends to
cloud the issue. The court ought not to
be concerned with what
someone else might think; it should rather be concerned with its own
judgment and not that of another 'reasonable'
person or court. Having
said this, absolution at the end of a plaintiff's case, in the
ordinary course of events, will nevertheless
be granted sparingly but
when the occasion arises, a court should order it in the interests of
justice.
11. It follows therefore that although
the plaintiff relied on what he was informed to make out his
affidavits; he testified of
what he personally knew and saw up to the
stage when he lost consciousness. The plaintiff disputed much of the
State’ version
when it was put to him. He also advanced an
explanation on why his evidence differed from what his particulars of
claim contained.
Although his explanation can still be tested in
evaluating his credibility, it would be wrong to suggest that his
evidence does
not make out a prima facie case worthy of a response by
the defendant. For those reasons, the absolution from instance was
not
granted.
12. Case for the Defendant. Mr.
Mluleki Norman Nodada (Nodada) gave evidence for the defendant. He
testified that on the date of
the incident he was driving a Mercedes
Benz motor vehicle with registration letters and numbers CNL 993 EC
from Kokstad direction
towards Mzimkhulu, in the company of two
passengers. He also confirmed that Exhibit B depicts the road he was
travelling on. He
was driving at about 60 km/h because he was about
to stop and drop a passenger at Ncapancapeni – the area where
the collision
took place. At that stage it had started being dark
though not completely. He testified that there was a white Toyota
Corolla driving
in front of him which suddenly swerved to its extreme
left to a void a motor vehicle driving on its lane. He also swerved
to the
left and stopped at edge of the road in order to avoid the
same motor vehicle avoided by the Toyota Corolla. The motor vehicle
in question was a Cressida driven by the plaintiff. He could not
completely avoid it since it collided with his motor vehicle on
its
right side, crushing out the right mirror of his car. He described
the collision with his car as side-swiping. Although he
had stopped,
the Cressida did not stop after colliding with his motor vehicle.
13. As he stepped out of his motor
vehicle in order to observe the damages, he heard a banging sound of
cars colliding behind him.
Together with his passenger they proceeded
to the scene of second collision. As he walked on, he observed pieces
of glasses and
brake screech marks on left side of the road. The
Cressida had just collided with another motor vehicle (a van). The
two of them
were however on the right side of the road, after the
impact. He testified that the driver of the Cressida was trapped
inside the
motor vehicle, and its front was dented into him. He did
not appear to be normal in his view since he seemed unconcerned about
what had just happened. He also observed a passenger on the back
seat. He also observed that there was liquor bottles inside the
Cressida. He could not remember if it was brandy or whisky, but it
was red star liquor. He testified that he then took part in
attempts
to rescue the Cressida driver.
14. Under cross examination by Adv
Clemens, he stated that he realised after the collision that the
driver of a van was Jabulani
Mzebetshana whom he knew very well. He
could not point the exact point of impact from the photos in Exhibit
B. He could not have
avoided the impact by driving further to his
left because the road becomes narrower and he was at the far end. His
motor vehicle
was scratched on its left by the bushes after he drove
out of the road to the bushes on his left. He denied that the
plaintiff
was driving on his right side of the road. He also stated
that the Cressida lights were bright and continued without being
dimmed.
He stated further that the Cressida was driven at a speed
faster than the 70 km/h. Although he could not tell if the plaintiff
had the safety belt on at the time of the collision, he noticed that
he did not have it on at the time he arrived at the scene of
the
second collission.
15. Mr. Jabulani Petros Mzebetshana
(Mzebetshana) also testified for the defendant. He testified that on
the date of the incident
he was driving an Isuzu van with
registration letters and numbers NP 12357. He had six passengers in
the car, two in the front
being his father and Mr. Cia and four at
the back of a van. They were from a wedding at Ezingolweni driving
along R56 from Kokstad
direction towards Mzimkhulu. As they drove
past the village of Ncapancapeni, a motor vehicle driving towards the
opposite direction
to his veered from its lane to his side of the
road driven at a high speed. One of his passengers in the front
shouted on him to
move the motor vehicle out of the road since the
oncoming motor vehicle was about to collide with them, which he did.
He drove
his car to his left by the edge of the road. The said motor
vehicle proceeded to collide with his motor vehicle on its front
right
side. He then lost consciousness and only regained it when in
hospital. He could not have driven any further because the road gets
narrower because of the bushes on the left of the road. He conceded
that the said bushes do not appear in Exhibit B but he attributed
this to road works that have been undertaken since that part of the
road fell under Kwazulu-Natal, for then it was still under
Eastern
Cape and there were bushes with no road works.
16. Under cross examination by Adv
Clemens, the following came to light. He was sober and he had not
consumed any alcoholic beverages.
He was travelling at a speed of
70-80 km/h since it was drizzling and the road was wet and there are
animals along that road. He
denied that the plaintiff was travelling
at a speed of 70 km/h saying it was faster than that. He also denied
that the impact took
place on the right side of the road saying it
took place on the left but both motor vehicles landed on the right
side after the
impact. The road was not busy, for there were only
three motor vehicles being his, that of Nodada and the one driven by
the plaintiff.
He had driven a long distance behind the motor vehicle
driven by Nodada and at the time of the impact, it was about 200 to
250
meters ahead of him. Although he knew Nodada personally, he was
only told after the collision that he was the driver of that motor
vehicle. He could not see if Nodada’s motor vehicle collided
with the plaintiff’s.
17. Hopewell Thembalihle Cia was the
last witness for the defendant. He is one of the two passengers who
were seated in the front
of a van driven by Mzebetshana. He was
seated on the left while the driver’s father was seated in the
middle. He saw the
lights of a motor vehicle driven the opposite
direction coming directly to their motor vehicle. He immediately
shouted to Mzebetshana
to pull out of the road to avoid the collision
which he did. Just as he finished shouting and the driver had
complied, the oncoming
motor vehicle further drove out of its lane
into theirs colliding into their motor vehicle. At the time of
collision, Mzebetshana
had already moved the car out of the road and
his car had straightened up though still moving. After the impact the
cars landed
on the right side of the road. With this evidence, case
for the defendant was closed.
18. Submissions: Adv Clemens addressed
the court asking that the version by the plaintiff be accepted. He
argued that there were
inconsistencies in the defendant’s
version making it improbable. To this end he pointed out the
Mzebetshana testified that
the plaintiff’s motor vehicle left
its lane after crossing Nodada’s motor vehicle which is not in
line with Nodada’s
version. Adv Sibisi countered this saying
the improbable version is that of the plaintiff and the claim should
be dismissed with
costs. To this end he pointed out that the
plaintiff gave a number of versions, being his evidence before the
court and his evidence
as tendered by the affidavits.
19. Evaluation. It is common cause
that the plaintiff was driving along R56 (Mzimkhulu/Kokstad Road)
when he was involved in a motor
collision. It is also common cause
that he collided with a motor vehicle travelling along the opposite
direction. It is equally
not disputed that he lost consciousness as a
result of the injuries sustained in this collision. There appears to
be no dispute
that Nodada and/or Mzebetshana are the insured drivers.
20. There is however a dispute as to
how many motor vehicles the plaintiff collided with that day. The
side of the road where the
collision took place is also disputed. The
speed at which the plaintiff and /or Mzebetshana was/were travelling
is also disputed.
21. I do not consider either of the
versions of how the collision occurred to be inherently improbable.
Yet, it is obvious that
both versions cannot be correct. The
plaintiff alleges that he remembers colliding with just one motor
vehicle and that the point
of impact with that motor vehicle was on
his side of the road while Mzebetsahana and Nodada allege that they
all collided with
the plaintiff’s car and that it was on their
side of the road. Accordingly the court is dependent on the
credibility of respective
witness and the probabilities in order to
make a finding on issues disputed.
22. The plaintiff could not tell how
many motor vehicles he collided with because he lost consciousness
after the collision with
the only motor vehicle he could remember
colliding with. Both Nodada and Mzebetshana allege he collided into
their motor vehicles.
Although the plaintiff could not deny colliding
into two motor vehicles, he denies the version of Nodada that he
collided with
his motor vehicle, side swiping its right before
colliding with the motor vehicle driven by Mzebetshana. The obvious
reason for
his stance is that if he was involved in a collision with
more than one motor vehicle, then the second collision must have
happened
after he lost consciousness due to the first collision.
23. The plaintiff’s affidavits
handed in as Exhibits C and D reflect that at the stage he deposed of
the same, he believed
the version that he collided with two motor
vehicles. Nothing in the affidavits suggests that he was writing
facts he was not sure
of. To the contrary, he is said to have sworn
to the statements knowing and understanding the contents of the
declarations which
were true and correct. He now distances himself
from his affidavits’ contents for the reason that he only wrote
what he was
informed of. But if he remembered what happened at the
stage of deposing those affidavits the same way he appeared to
remember
when he gave evidence in court, one would expect of him to
avoid writing what he knew to be incorrect; unless he only had the
recollection
of the events at a later stage. One has to keep in mind
that Exhibits C and D were made some 22 months apart from each other.
It
is unlikely in my view that the plaintiff would repeat something
he knew was not in line with his recollection some two years apart
unless he also believed it to be so. The only other possibility would
be that he did not know what happened on the date of the
incident
altogether.
24. It does not make sense at all that
the plaintiff at one stage believed the version on how the collision
took place to the extent
of penning it into his own affidavit, only
to come and distance himself therefrom when he gave evidence in
court. The only conclusion
one can infer from this is that he could
be distancing himself not because it did not happen that way, but
because it could hinder
his chances of success in the claim against
the defendant. Equally I do not see any basis for Nodada to come and
claim that his
car was also collided with if it did not happen.
Police accident report suggests that there were indeed three motor
vehicles involved
in a collision which is in line with the
defendant’s version and the plaintiff’s version as
contained in his affidavits.
25. The plaintiff was not alone at the
time of the collision. There is a witness who went on to tell him
what happened after he
had lost consciousness in the name of Shazi.
This witness is said to be still available and the plaintiff opted
not to call her.
I do not have reasons on record as to why she was
not called as a witness. The plaintiff however indicated that the
version as
to how the collision took place, or the number of motor
vehicles involved, he obtained it from the summons issued against him
by
Shazi’s father against him. Shazi’s father was not
there. The only conclusion to be inferred is that whatever was in
the
summons which the plaintiff now distances himself from, must have
been the information Shazi gave her parents. The likelihood
is that
had the plaintiff avoided calling her because he knew she was not
going to corroborate him. Whatever the reason might have
been;
failure on the part of the plaintiff to call the only eye witness who
was in his car dealt a fatal blow to his version.
26. The court accepts the defendant’s
version as a true version. The court finds that the plaintiff
collided with two motor
vehicles after narrowly missing the third
motor vehicle.
27. I do not agree that the versions
by Nodada and Mzebetshana reflect any form of inconsistency. Nodada
testified on how the plaintiff
drove the motor vehicle at the time of
impact with him whereas Mzebetshana testified of the same conduct by
the plaintiff, but
at the stage of impact with his car. Bearing in
mind that these cars were some distance from each other, estimated up
to 250 meters
from each other; I do not see the basis upon which such
argument can be made.
28. The next dispute is the side of
the road in which the collision took place. If the version of the
plaintiff is to be believed,
it would imply that three drivers
decided to drive on the wrong side of the road, encroaching into the
plaintiff’s lane.
If that version is to be believed, there
would have to be an explanation on what the three drivers may have
been avoiding on their
own side of the road. There is no evidence
about anything the drivers may have been avoiding. From the evidence
before the court,
there is nothing they had to avoid. It is therefore
highly improbable for the three drivers to have just veered out of
their own
lane for no apparent reason. For this reason, I accept the
version that the plaintiff is the one who veered out of his side of
the road to the side where Nodada, Mzebetshana and the other
unidentified driver were driving.
29. The argument for the plaintiff to
the effect that where the car landed after the impact should give
guidance on where the point
of impact was is rejected in that such a
conclusion cannot be made without expert evidence. Without evidence
on the positioning
and the speed of each of the motor vehicles, the
directions the motor vehicles would take after the impact would
remain everybody’s
guess.
30. The last aspect is whether the two
insured driver did everything within their means to avoid a
collision. As a general principle,
a driver who is faced with a
sudden emergency is required to exercise reasonable skill to avoid
the imminent danger.
4
One man may react very quickly to what he sees and takes in, whilst
another man may be slower. It is however undoubtedly the duty
of
every person to avoid an accident but if he reacts reasonably, even
if by a justifiable error of judgment, he does not choose
the best
cause to avoid the accident as events afterwards show, then he is not
on that account to be held liable for culpa.
5
Both insured drivers testified how they drove out of the road to the
erge and/or the end of the road where there were bushes to
avoid the
plaintiff’s car. I am of the view that the two drivers did all
that was humanly possible faced with the emergency
created by the
plaintiff.
31. It is trite that a party seeking
to recover damages must prove that the insured driver’s
negligent conduct caused the
harm giving rise to the claim.
6
Back to the facts of this case, I find that the plaintiff drove his
motor vehicle on the wrong side of the road, facing oncoming
motor
vehicles, narrowly missing one and colliding with two of them. It
would appear the plaintiff was the author of his own misfortunes.
I
am therefore driven to conclude that the plaintiff failed to
establish negligence on the part of the defendant.
32. The plaintiff’s action is
accordingly dismissed with costs.
________________________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
Date Heard: 30 April 2013
Judgment Delivered: 31 May 2013
For the Plaintiff: Adv. Clemens
Instructed by: De Jager Clemens &
Associates
Pretoria
For the Defendant: Adv. Sibisi
Instructed by: Nompumelelo Radebe
Inc
Durban
1
See Rule 33 (4).
2
See paragraph 4 of the particulars of claim –
p. 5 of the index to pleadings.
3
2001 (1) SA 88
(SCA)
4
Mac Lauchlan v Barnes
1954 (4) SA 503
(SR) at 508.
5
Goode v SA Mutual Fire and General Insurance
[1979] 4 All 572 (W).
6
Guardian National Insurance v Saal
1993 (2) SA
161
(C) at 162