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[2013] ZAGPPHC 174
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Kwathani v Road Accident Fund (71348/11) [2013] ZAGPPHC 174 (14 June 2013)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No: 71348/11
DATE:14/06/2013
In
the matter between:
ROFHIWA
FULUFHELO
KWATHANI
........................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
...........................................................................................
Defendant
JUDGMENT
CHETTY, AJ :
[1]
The plaintiff in this matter instituted action against the defendant
for a total sum of R4m in respect of damages resulting
from bodily
injury which she allegedly sustained as a result of being involved in
a collision with a motor vehicle on the night
of 24 September 2009 at
or near Tshidzui Road, near Makhado, Limpopo Province. At the time of
the accident, the plaintiff was a
pedestrian and the insured vehicle
was being driven by one Ndonyana Solomon (‘the insured
driver').
[2]
The plaintiff in her particulars of claim alleges that collision was
caused due to the negligence of the insured driver of motor
vehicle
bearing registration number and letters DWB 536 GP, in one or more of
the following respects:
1.
He failed to keep a proper lookout;
2.
He failed to apply the brakes timeously or at all;
3.
He unreasonably placed himself in a situation of sudden emergency and
subsequently failed to act in accordance with such situation;
4.
He travelled at an excessive speed under the circumstances;
5.
He failed to avoid the accident a collision when, by the exercise of
reasonable care and skill, he both could and should have
done so;
6.
He failed to maintain any, or alternatively, sufficient control over
the insured motor vehicle;
7.
He drove the insured vehicle knowing or in circumstances where he
couid reasonably established that it had defective breaks or
was in
an unroadworthy condition;
8.
He failed to give any warning of approach of the insured motor
vehicle;
9.
He encroached onto the path of travel of the plaintiff;
10.
He disregarded the interests of other road users, particularly those
of the plaintiff.
[3]
The defendant denies that the negligence of the insured driver was
responsible for the collision, and that if any negligence
is found,
it denies that such negiigence causally contributed to the collision.
In the alternative, the defendant pleads that if
it is found that the
insured driver was causally negligent, then in such circumstances
alone the defendant pleads that the collision
was caused by the joint
and contributory negligence of the driver of the insured vehicle and
the plaintiff. In such circumstances,
the defendant pleads that the
Court order a just apportionment of any damages which the plaintiff
may be found to have suffered
in terms of the Appointment of Damages
Act No 34 of 1956, as amended.
[4]
The defendant further contended that the plaintiff was negligent in
one or more of the following respects:
1.
She failed to keep a proper look out;
2.
failed to avoid a collision when with the exercise of reasonable care
and skili she could have and should have done so;
3.
She failed to satisfy herself as to the presence of other traffic on
the road, alternatively, failed to respect the rights of
other road
users;
4.
She failed to exercise the care which a reasonable person would have
exercised under the prevailing circumstances.
[5]
By agreement between the parties, the Court agreed to a separation of
the issues of liability and quantum and the matter proceeded
on the
issue of liability only (Rule 33(4)). The Court was therefore only
required to determine whether the cause of the collision
was the
negligent driving of the insured driver as alleged in the plaintiff's
particulars of claim, and if so, whether the insured
driver was
solely responsible for the accident or whether the insured was
contributory
npinlinanf
[6]
The plaintiff testified that on 24 September 2009 she and a friend
had earlier visited Tshiozwi. near Makhado, Limpopo Province,
where
they had listened to traditional Venda music. Whilst she confirmed
that alcohol was on saie at the function, she stated that
she did not
drink on this occasion. She testified with reference to the Accident
Sketch Pian that she was walking along Tshidzui
Road with her friend
in an easterly direction, heading towards her home in Madoubidzha.
which is close to Tshiozwi. The road surface
was tarred and the
plaintiff and her friend walked on what she described as the
‘shoulder' of the road, which was paved with
gravel. This part
of the road resembled a pavement, and was only used by pedestrians.
The plaintiff also testified that the shoulder
of the road was
narrow, and for that reason her friend walked ahead and she followed
behind. As they walked, they intermittentiy
stopped to signal
approaching vehicles that they were hitch-hiking, and wanted a lift.
[7]
According to the plaintiff, they saw a car approaching them from the
west, on the same side of the road as they were walking.
The driver
of the vehicle seemed to be driving in a zigzag manner and appeared
to have very bright lights on at the time. In light
of the apparent
unstable manner of driving, the plaintiff and her friend decided that
they would not attempt to hitch a lift with
this particular car. The
plaintiff then turned, facing east according to the accident sketch
pian, and continued walking, with
her friend in the front. As she
momentarily turned around, she saw the car imminently before the
collision. Thereafter, she only
recalls waking up in hospital. She
testified that her friend with her on the evening, died as a result
of injuries sustained in
the collision.
[3]
The cross examination of the plaintiff produced no inconsistencies in
her evidence and her version remained essentially intact.
When
questioned as to what she did. having seen that the insured driver
was heading in the direction of herself and her friend,
the plaintiff
responded that they continued walking, except that they did not
signal to the driver that they were in need of a
lift. When
questioned as to whether there was anything that she couid to avoid
the collision, the plaintiff responded that she
was walking on the
shoulder of the road which was covered in gravel. There was no
further distance away from the road that she
could walk due to the
number of market stalls lining the road. No further evidence was ied
on behalf of the plaintiff.
[9]
Mr Kanyane, who appeared for the defendant, informed the Court that
he did
not
intend calling any witnesses. The defendant then closed its case. See
Gaiante
v Dickinson
1950 (2) SA 450
(AD) where the Court held at 465 :
“
It
was not advisable to lay down a general ruie as to the effect that
may properly be given to the failure of a party to give evidence
on
matters unquestionably within his knowledge. But is seems fair at all
events to say that in an accident case where the defendant
himself
was the driver of the vehicle tne driving of which the plaintiff
alleges was negligent and caused the accident, the court
is entitled,
in the absence of an explanation from the defendant to select out of
the two alternative explanations of the cause
of the accident which
are more or less equally open on the evidence, that one which favours
the plaintiff as opposed to the defendant.”
The
failure to cali the driver of the insured vehicle is surprising
especially as the defendant knew the identity of the driver
and that
this matter was set down for trial almost nine (9) months ago. It
would seem as though little, if any, preparation had
been given to
the defendant's case, despite the persistence in the matter
proceeding to trial.
[9]
Counsel for the plaintiff informed the Court that it was common cause
between the parties that an accident did occur on the
date alleged by
the plaintiff and that the plaintiff was injured as a result of the
collision involving motor vehicle DWB 536 GP.
[10]
Counsel for the plaintiff submitted that in light of the failure of
the defendant to call any witnesses in rebuttal to the
evidence of
the plaintiff, this Court is obliged to find in favour of the
plaintiff. It was further submitted that notwithstanding
the
plaintiff being a single witness, there was no reason to reject her
evidence. In 5 v Sauls and Others
1981 (3) SA 172
(A) at 180E the
Court heid that
"there
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the evidence of
a single
witness.'
The
Court must consider the merits and dements of evidence, and having
done so, must be satisfied that the witness has told the
truth. There
was nothing in the demeanour of the plaintiff that would suggest she
was being evasive, uncooperative or contradictory
in her
evidence, and accordingly there would be on basis to reject the
plaintiff's version as being false. She came across as an
honest
witness. When asked whether there was alcohol available at the
traditional music festival which she attend before the accident,
she
responded in the affirmative, but added she did not consume alcohol
that evening.
[11]
Counsel for the defendant submitted that if I were to find in favour
of the plaintiff. I should give consideration to the application
of
the Apportionment of Damages Act in determining the extent of the
defendant's liability. In this regard, counsel submitted that
the
plaintiff had not shown what steps she took to avoid the collision,
particularly in circumstances where the plaintiff knew
prior to the
collision that the driver of the insured motor vehicle was
approaching in a reckless manner, and in light of her evidence
that
she carried on walking in the same direction that the insured vehicle
was travelling without doing anything in anticipation
that the
vehicle would collide with her. The problem with the contention of
the defendant is that it has not laid the basis or
foundation for
this Court to apportion blame to the plaintiff. The defendant failed
to call any witnesses which may have provided
an explanation for why,
if at all, the driver drove in the manner as alleged by the
plaintiff. The plaintiff however testified
that she was walking on
the shoulder of the road at the time of the collision, and that she
had nowhere else to go to avoid the
impact of the insured vehicle.
She further explained that the road surface was tarred and the
shoulder of the road on which she
and her friend were walking was
paved with gravel. This portion of the road is reserved for the
exclusive use by pedestrians.
[13]
In support of the submission that I should apply a 70/30%
apportionment, counsel for the defendant relied on Gaba v Minister
of
Police
[1975] (2) SA 220
(EDC) where the court assessed that the
plaintiff had been 30% negligent. In that case, the plaintiff was
walking to town on a
busy road and as she passed a narrow part of the
side walk, adjacent to a beer hall, she entered a part of the road,
which although
regularly used by pedestrians, was nonetheless
traversed vehicles. Although the driver conceded negligence, he
alleged that there
had been contributory negligence on the part of
the plaintiff. The Court found that the plaintiff had chosen to walk
with his back
to the traffic, without keeping a watch for vehicles
from the rear, and had failed to walk closer to a fence when
circumstances
permitted him to do so, resulting in some negligence on
his part.
[14]
I find that the above case is distinguishable from the present matter
in that the road on which the plaintiff was travelling
was not busy,
and although there was no lighting, the plaintiff at no time gave
evidence that she walked on the road as opposed
to the ‘shoulder'.
She and her friend, although walking in the same direction as the
insured vehicle, regularly stopped and
turned to look back for
approaching vehicles, as they were hitch-hiking home.
[15]
In terms of
section 17(1)
of the
Road Accident Fund Act 56 of 1996
,
the defendant is “obliged to compensate any person (the third
party) for any loss or damage which the third party has suffered
as a
result of any bodily injury to himself or herself .... caused by or
arising from the driving of a motor vehicle by any person
at any
place within the Republic, if the injury ... is due to the negligence
or other wrongful act of the driver or of the owner
of the motor
vehicle" concerned.
[16]
The onus was on the plaintiff to show, on a balance of probabilities,
that the injuries were directiy caused by the driving
of the insured
driver, alternatively that it is causally connected with the driving
of the insured driver at the relevant time,
and that such driving
was. therefore, a sine qua non thereof. (See Barkett v S.A. National
Trust and Acceptance Co. Ltd
1951 (2) SA 353
(A) at 365; Wells v
Shield Insurance Co. Ltd
1965 (2) SA 865
(C) at 868-871). Referred to
in Lupke v Road Accident Fund (unreported decision of Ndlovu J, 12
March 2009)
[17]
In my view,-on the basis of the evidence presented by the plaintiff,
I am satisfied that the injuries sustained by her were
due 100% to
the negligent driving of the insured driver. A reasonable person in
the position of the insured driver would have foreseen
the reasonable
possibility that his conduct could cause injury to another person,
but the insured driver failed to take any such
steps to avoid the
collision. The plaintiff was a pedestrian walking on a part of the
road not traversed by vehicles. In my view
no negligence can be
attributed to her.
In
the result the following order is made:
1.The
collision under consideration was caused solely by the negligence of
the insured driver
2.
The plaintiff is entitled to 100% of the damages that she may prove,
or which may be agreed upon.
3.
The plaintiff is awarded costs of suit on a party and party scale in
respect of the merits of the claim.
CHETTY
AJ
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
Parties
For
the Plaintiff: Adv Koalepe
Instructed
by: Chueu Attorneys
For
the Defendant : Adv J.T Kanyane
Instructed
by: Fourie Fismer inc
Date,
of Hearing: 23 May 2013
Date
of Judgment:14 June 2013