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[2013] ZAGPPHC 324
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Barnard v Road Accident Fund (30265/12) [2013] ZAGPPHC 324 (6 November 2013)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No. 30265/12
DATE:06/11/2013
In
the matter of:
D
H
BARNARD
.......................................................................
Plaintiff
and
THE
ROAD ACCIDENT FUND
..........................................
Defendant
JUDGMENT
KEIGHTLEY
AJ:
1.
In this matter the plaintiff, David Hermanus Barnard, claims damages
from the defendant, the Road Accident Fund, arising out
of a motor
vehicle accident that occurred on 3 March 2008.
2.The
parties have agreed on a separation of issues, and I am called upon
only to rule on the merits of the case. The question of
quantum will
be determined at a later date.
3.
There is much that is common cause in this matter. The place, time
and date of the accident are all common cause. It is also
common
cause that the collision occurred between the vehicle driven by the
plaintiff, a four-wheel quad bike, and a yellow Toyota
Stallion
vehicle owned by the defendant’s sole witness, Mr Makua. These
were the only two vehicles on that section of the
road at the time.
The road is a public, gravel road, in a rural, farming area. It is
wide enough to accommodate two vehicles, side
by side. Alongside the
road is a grass verge. On the stretch where the accident occurred,
the road is straight. It was daylight
when the accident occurred and
general visibility was good.
4.
The evidence of the plaintiff is that he was travelling to work at a
nearby farm on the morning of the accident at approximately
7am. He
was not in a hurry to get to work. He also knows the road well and
has been using the quad bike as a means of transportation
for a
relatively long time.
5.
None of this is contested. Unfortunately, however, this is where the
plaintiffs version of the accident and that of the defendant
part
ways. The difference between the two versions is stark.
6.
According to the plaintiff, he was travelling at approximately 60km/h
on the straight stretch of road. He was driving on his
side of the
road, and saw the Toyota Stallion clearly about 300m to 400m ahead of
him. When he first saw the vehicle, it was stopped
in the road but
towards the left hand side. It appeared to be picking up or dropping
off passengers. As the plaintiff approached
the vehicle to pass it,
the driver pulled off directly into the plaintiffs path. The
plaintiff testified that he collided with
the Toyota Stallion and
that the point of impact was on the back, right-hand side of the
vehicle, between the back wheel and the
fender. The plaintiff
demonstrated the point of impact on his counsel, Mr Mulligan’s,
cell phone, which played the useful
role of the Toyota Stallion for
purposes of proceedings in court.
7.
The plaintiff lost consciousness as a result of the accident and does
not remember what happened subsequently. He only regained
consciousness much later, in hospital. He did not speak to any police
officers on the scene, nor did he later give any statement
to them.
8.
The defendant’s version of the collision is less
straightforward, and it only became apparent what the full conspectus
of this version was when the defence witness, Mr Makua, took the
stand. Unfortunately, the defendant failed to comply with the
practice directive of this court in providing its version of the
accident in advance of the hearing. The pre-trial minutes filed
indicate that the defendant undertook, on two occasions, to provide
its version of the accident, but failed to do so. It obtained
an
accident assessment report from Becker Mzimela Investigtions in May
2013, but this report was only made available to the plaintiff
shortly before proceedings commenced, and it was only made available
to the court after proceedings had commenced.
9.
The defendant’s conduct in this regard is regrettable. The
practice directive is there to ensure that both parties and
the court
know well in advance how the plaintiffs and defendant’s
versions of the relevant collisions may differ, in order
to aid the
finalisation of these matters. The defendant’s failure to
comply with the practice directive put the plaintiff
and the court
and, indeed the defendant itself, at a disadvantage in this regard.
10.
Returning to the defendant’s version. Mr Makau was adamant in
his evidence that his vehicle was at a standstill throughout
the
incident, and that the plaintiff had collided with his vehicle while
it was stationary. This much had been apparent from Mr
Van Vuuren’s
cross-examination of the plaintiff.
What
was not apparent until Mr Makau gave his evidence, however, is that
the defendant’s ultimate version was that the Toyota
Stallion
was completely off the road, and parked on the verge when the
incident occurred.
11.
Mr Makau consistently stuck to this version of events, and confirmed
it under cross-examination with the aid of a graphic sketch
drawn up
by Mr Mulligan during the course of cross-examination and handed in
as exhibit C. There can be no doubt at all that Mr
Makau’s
version (and hence the version the defence relies upon) was that his
vehicle was off the road in its entirety when
the accident occurred.
12.
Accordingly, I accept Mr Mulligan for the plaintiffs submission that
there
were
two mutually destructive versions of the accident before the court,
and that I am thus required to consider the probabilities
of each.
13.
It is correct, as Mr van Vuuren for the defendant pointed out, that
the plaintiffs recollection of the incident is not one hundred
percent as a result of the injuries he sustained. It is also correct
that the plaintiff may have been less than clear on some of
the
details, such as exactly what speed he was travelling at when the
accident occurred.
14.
However, on the material issues, the plaintiff was clear and
consistent: he did not stray from his version that the Toyota
Stallion was at a standstill when he first sighted it, but that it
pulled off and moved into his path without warning as he came
up to
it. Mr van Vuuren did not question the plaintiffs evidence to the
effect that the Toyota Stallion had been in the road, to
the left had
side before it pulled off. Nor did Mr van Vuuren put it to the
plaintiff that the defendant’s version was that
the Toyota
Stallion was completely off the road, on the verge, at all times and
that, as Mr van Vuuren later suggested in argument,
the plaintiff may
have swerved off the road to collide with it.
15.
I find nothing improbable in the plaintiffs version.
16.
On the other hand, the defendant's version is a different kettle of
fish. Without taking into account any other facts, it is
of course
plausible that the plaintiff may have swerved off the road and
collided with the Toyota Stallion while it was parked
off the road,
on the verge. Unfortunately for the defendant, however, there are
other relevant facts in this case that militate
against this.
17.
To begin with, Mr van Vuuren’s failure to put this version to
the plaintiff is inexplicable and detracts fundamentally
from its
credibility. In addition, the accident report form completed by the
South African Police Service provides an entirely
different version
of the accident to that given by Mr Makau and relied on by the
defendant. The sketch included in this report
clearly shows that the
vehicles were both on the road at the time. While Mr Makau denied
that he had given this version to the
police, the fact remains that
the plaintiffs uncontested evidence was that he never gave a
statement to the police at all. Accordingly,
Mr Makau, who confirmed
that he spoke to the police at the scene of the accident, could have
been the only source of the information
contained in the accident
report, which was completed only some 2 hours after the accident
occurred. Unfortunately, the police
officer that completed the form
was not called as a witness, and the defendant did not offer any
motive for the police including
a false version of events in its
accident
report. In the circumstances, the plausibility of the defendant's
version is once again in doubt.
18.
The absence of any available witnesses to corroborate Mr Makua’s
version is also telling, as is the absence of any photographs
of the
damage inflicted on the Toyota Stallion. The defendant’s
version was that, consistent with the vehicle being stationary
at the
time of the accident, the point of impact was at the rear of the
Toyota Stallion. Mr Makau testified that his vehicle still
bears the
scars of the accident, and that he showed the damage to the
investigator from Becker Mzimela Investigations when they
came to
take photographs of the scene. However, the investigator did not
include a photograph of the damage in its report. It is
fair to
conclude that if the damage indeed supported the defendant’s
version, viz. that the point of impact was at the rear
of the
vehicle, consistent with it being stationary, then such a photograph
ought properly to have been included in the report
relied on by the
defendant. The absence of such corroborating evidence (when it was
available without much effort) supports the
conclusion that the
defendant’s version cannot be sustained.
19.
For all of the above reasons, I find that the defendant’s
version is improbable, and I accept the plaintiffs version
as being
more probable.
20.
Mr Mulligan for the plaintiff conceded up front that his client was
to some extent negligent and that an apportionment of blame
would
have to be effected between the parties. Therefore, I must consider
an appropriate allocation of fault between the parties.
Mr Mulligan
suggested an apportionment of 80-20 or 70-30, as between the
defendant and plaintiff respectively. His reasoning was
that on
plaintiffs version, Mr Makau moved into the stream of traffic, and
accordingly should bear a proportionately greater share
of the blame.
Mr van Vuuren suggested that a 50-50 proportionality between the
parties would be more appropriate.
21.
It is well established in this Division that a driver who turns into
a stream of traffic bears a duty not only to clearly signal
such
intention, but also to ensure that other drivers in approaching
traffic have heeded the signal and are responding to it. See
in this
regard R v Cronheim
1932 TPD 86
; R v Miller
1957 (3) SA 44
(T); S v
Swart
1976 (4) SA 348
(T); Bata Shoe Company Limited (South Africa) v
Moss
1977 (4) SA 16
(W); and Brown v Santam Insurance Company Ltd
1979 (4) SA 370
(W).
22.
The plaintiff was undoubtedly negligent in driving a vehicle without
a hooter, which he conceded. It is also possible (but this
was never
properly canvassed due to the plaintiffs loss of memory about the
finer details of the incident) that he should have
slowed down more
when he saw the Toyota Stallion in the distance loading or
off-loading passengers, and that perhaps he should
have made
allowance for a greater passing distance between the vehicles.
23.
On the other hand, however, on the version of the accident that I
have accepted, Mr Makua turned into the road without any warning.
Critically, even on Mr Makua’s own version, (for he conceded
this), he never checked is mirrors or the road at the critical
time.
In fact, Mr Makua was clear in his testimony that he did not see the
plaintiffs quad bike at all until after the impact.
Any driver
pulling off into a road must keep a proper lookout. In particular,
they must keep a close eye on any traffic that may
be bearing
down
on their vehicle. Failure to do this is a fundamental act of
negligence and such a driver must bear the bulk of the blame for
any
accident that occurs as a result.
24.
In the circumstances, I find that the appropriate apportionment of
faul between the parties is 75% in respect of Mr Makua, and
25% in
respect c the plaintiff. Any damages that ultimately are awarded to
the plaintiff mus be reduced accordingly.
25.
I make the following order:
(a)
The plaintiffs claim on the merits succeeds, provided that the amount
of damages to be awarded to plaintiff shall be reduced
in terms of
section 1 of Act 34 of 1956 by 25%;
(b)
The defendant is directed to pay the plaintiffs costs.
R.M
KEIGHTLEY
ACTING
JUDGE OF THE HIGH COURT
DATE
OF THE JUDGMENT : 06/11/2013
PLAINTIFF’S
ATTORNEYS : TSEBANE MOLABA INC
DEFENDANT’S
ATT : EDELING VAN NIEKERK INC