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[2013] ZAFSHC 2
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Botha v Road Accident Fund (5393/09) [2013] ZAFSHC 2 (31 January 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 5393/09
In the matter between:-
DANIEL JOHANNES
CORNELIUS BOTHA
..................................
Plaintiff
and
ROAD ACCIDENT FUND
...........................................................
Defendant
_____________________________________________________
HEARD
ON:
7 DECEMBER 2012
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
31 JANUARY 2013
_____________________________________________________
[1] The matter came to
court by way of action proceedings. The plaintiff delictually sued
the defendant for the recovery of damages
arising from certain bodily
injuries he sustained in a road accident. His motor vehicle collided
with two other motor vehicles
statutorily insured by the defendant.
The action was defended
[2] By agreement between
the parties, I ordered the separation of the issues in terms of rule
33(4) of the Uniform Rules of Court.
Accordingly I was called upon to
adjudicate the issues of liability only. Those issues were set out in
paragraphs 3, 5, 6 and 7
of the summons and identically corresponding
paragraphs of the plea. Needless to say that the issues of quantum
were shelved for
later adjudication.
[3] I was also requested
to decide the issue of costs in connection with the determination of
the question of liability. Moreover,
I was further requested to
decide the issue of costs pertaining to the interlocutory application
for the separation of the two
classes of issues. The application was
served and filed by the plaintiff on 7 November 2012 prior to the
mutual agreement to have
the issues separated.
[4] The version of the
plaintiff was narrated by two witnesses, namely Mr D J C Botha, the
plaintiff himself and Mr R H van den
Berg, the plaintiff’s
witness. The plaintiff testified that he and his witness were in an
area of Kelleysview shortly before
the accident happened. They were
there to view some railway houses. Some of those houses were expected
to go up for sale soon.
The two gentlemen were interested in
purchasing residential properties in the area. They were on their way
back to the city when
they became involved in a road accident.
[5] He testified further
that he properly negotiated the last but one bend as he was
approaching the level crossing. He was nearing
the ultimate bend
which would have required him to turn left in order to cross the
railway track. He was traversing the short distance
between the two
curves when the collision occurred. He lost consciousness as a result
of the impact. He was rushed to the hospital
where he was admitted.
He received medical treatment and nursing care as an inpatient. On
account of the bodily injuries he sustained,
he was hospitalised for
a fairly long period of time.
[6] His version was
corroborated by his witness as to what exactly brought the collision
about. The plaintiff’s terse testimony
did not really help.
Seemingly he suffered loss of memory. What he could recall, was that
he was the driver of the Bantam; that
Mr Van den Berg was his
passenger and that he was travelling on the correct lane or side of
the road at the time of the collision.
[7] The plaintiff’s
passenger, Mr Van den Berg, also testified. His testimony was useful
in determining what had happened.
He testified to the effect that as
they were approaching the last curve on the road, the two insured
vehicles loomed up in front
of them. According to the witness, the
insured vehicles were occupying the entire road. They were virtually
travelling alongside
each other - the one on its correct side of the
road, but the other on the incorrect side of the road. In other
words, the latter
was travelling on the plaintiff’s correct
traffic lane.
[8] The witness testified
that he was frightened by the imminent danger posed by the insured
driver, whoever he was, travelling
on the plaintiff’s path of
travel. He immediately shouted alarm to the plaintiff, nonetheless
the collision occurred firstly,
because of the respective speed at
which the two vehicles were approaching each other and secondly,
because the plaintiff had nowhere
else to swerve in an attempt to
avoid the collision. He testified to the effect that slamming the
brakes would not have helped
as the two insured motor vehicles were
too close to the plaintiff’s vehicle when they appeared around
the bend.
[9] The witness could not
remember which of the two insured motor vehicles, the Hyundai or the
Seat was travelling on the plaintiff’s
correct lane when they
first appeared around a sharp curve. However, he was adamant that one
of them was travelling on its incorrect
side of the road as the
plaintiff was approaching the same curve from the opposite direction
but on his correct side of the road.
However, he was certain that the
collision took place on the correct traffic lane of the plaintiff.
According to the witness the
collision took place on the Kloofeind
Road at Kelleysview on Friday 2 February 2008.
[10] The version of the
defendant was narrated by two witnesses, namely Mr J E Wagenaar and
Mr F du Preez. The former testified
that he and the latter had an
appointment on that particular day to meet at a pub somewhere at
Kelleysview. He was already at the
pub when he received a cellular
call from Mr Du Preez who told him he was lost. He could not find his
way to the pub. He then suggested
to the lost gentleman to stop
alongside the road and undertook to fetch him from there. He then
drove back towards Bloemfontein
on the Kloofeind Road. He found him
alongside the road approximately 50 metres on the eastern side of the
railway level crossing.
[11] He passed his
friend, made a U-turn slightly behind him and then stopped right next
to his stationary vehicle. The friend’s
stationary vehicle was
off the road. He brought his mobile car to a standstill on the
roadway. They had a brief chat. He then advised
his friend to follow
him. He stopped at a level crossing. He ascertained that it was safe
to cross and proceeded across. His friend
did likewise. There was a
distance of the length of approximately two cars between them. Both
of them drove on their correct traffic
lane one behind the other and
not parallel to each other. He did not see any approaching vehicle in
good time. He just heard a
loud bang as the two vehicles collided. He
was on his correct side of the road at the time. The accident
occurred between 16:45
and 17:15 according to the witness. He was the
author of exhibit “a”, which demonstrated the
post-accident final positions
of the three vehicles involved.
[12] The testimony of the
first insured driver, Mr Wagenaar, was materially corroborated by
that of the second insured driver, Mr
Du Preez. He testified that the
vehicle driven by the plaintiff first collided with that driven by Mr
Wagenaar with its right front
wheel after which it spun. In that
spinning process it collided with the vehicle he was driving. After
the collision he observed
that the plaintiff’s vehicle was
largely in its correct traffic lane, but slightly protruding into the
lane for the incoming
vehicles. The final position of rest of his
motor vehicle was on its correct traffic lane next to the plaintiff’s
vehicle.
However, the final position of Mr. Wagenaar’s vehicle
was off the road on the left hand side, in other words, on the
southern
side of the road (
vide
exhibit “a”).
[13] Both of the
defendant’s witnesses testified to the effect that the
collision took place in their correct traffic lane.
According to Mr
Wagenaar the point of collision was approximately half a metre inside
his correct traffic lane from the middle
line.
[14] I deem it necessary
to give a summary of the undisputed facts. The plaintiff was involved
in a vehicle collision which took
place in Bloemfontein on Friday, 2
February 2008. The scene of the accident was on the Kloofeind Road at
Kelleysview. The road
was macadamised. It consisted of one traffic
lane in each direction. There was no physical esplanade, but the road
was divided
by means of a painted white middle line. Kelleysview is
not an urban neighbourhood, but rather one of the peri-urban areas on
the
outskirts of the city. The accident happened at or about 17:00.
[15] The plaintiff was
the driver of a Ford Bantam with registration number BWR359FS. It was
a white light delivery van. With him
in the vehicle was Mr Van den
Berg, who occupied a front passenger seat. The van was travelling in
an easterly direction towards
a railway level crossing. The scene of
the accident was a few metres west of the level crossing. There the
traffic flow was regulated
by means of warning traffic signs, one on
each side of the crossing.
[16] Shortly before the
collision, there were two other motor vehicles travelling on the same
road but in the opposite direction
in relation to the plaintiff’s
direction. The one was a dark Hyundai sedan with distinctive
registration number DDC117FS
there and then driven by Mr F du Preez.
I shall refer to the Hyundai as the second insured vehicle and its
driver as the second
insured driver.
[17] The other vehicle
was a Seat Altea sedan with distinctive registration number DFS551FS
there and then driven by Mr M Wagenaar.
I shall refer to the Seat as
the first insured vehicle and its driver as the first insured driver.
[18] Seconds from
disaster, the two insured vehicles travelled in a westerly direction.
They too were approaching the same railway
track, but from the
opposite direction. The first insured vehicle reached the level
crossing first. There the first insured driver
stopped. He did so in
order to obey a warning traffic sign. Having ascertained that it was
safe to cross the railway track, he
proceeded and drove across.
[19] The second insured
vehicle was following the first. Its driver was not familiar with the
road. Therefore the first insured
driver had to lead the second
insured driver to the pub they were visiting. When he reached the
level crossing, he too precisely
acted in the same manner as the
first insured driver.
[20] From the level
crossing westwards the narrow road, with no emergency zone or gravel
shoulders, meandered. The winding road
sharply curved to the right
and then sharply to the left. The plaintiff negotiated a sharp curve
to the right and proceeded to
a sharp curve to the left. Similarly
the first and the second insured drivers were negotiating an equally
sharp curve to the right.
Somewhere between the two sharp and close
curves the Bantam collided first with the Seat and then the Hyundai.
[21] The type of
collision may be described as a double partial head-on collision. The
area of the double impact was between 20
metres at least and 40
metres at most from the railway track. The area of such an impact was
closer to the bend nearest to the
railway level crossing than the
bend farthest from there. I suppose I have said enough about
undisputed facts. Now I turn to the
dispute.
[22] In his particulars
of claim (
vide
paragraph 5) the plaintiff averred that the
first insured driver was negligent in that:
“
5.4 He moved
into the lane of travel of the Plaintiff’s vehicle and collided
with the Plaintiff’s vehicle on its correct
side of the road;
5.5 He moved into the incorrect lane
of travel for approaching vehicles at a time when it was inopportune
and dangerous to do so;”
[23] In his particulars
of claim (
vide
paragraph 6) the plaintiff averred that the
second insured driver was also negligent. He attributed the same
grounds of negligence
to the second insured driver as he did the
first insured driver.
[24] In its written plea
(
vide
paragraph 5) the defendant denied such allegations and
pleaded that the collision was caused by the plaintiff’s
exclusive
negligence. Accordingly the defendant pleaded that the
collision was primarily occasioned by the exclusive negligent driving
of
the plaintiff and denied that the insured driver was negligent as
alleged or in any other manner whatsoever. However, no specific
grounds of negligence were outlined here.
[25] In the first
alternative, the defendant raised the defence of contributory
negligence on the part of the plaintiff. Among others,
the defendant
alleged that the plaintiff failed to keep a proper lookout (
vide
paragraph 5.2.1); he failed to adhere to the rules of the road (
vide
paragraph 5.2.2) and he failed to pay due regard to the rights of
other road users, in particular, the first insured driver (
vide
paragraph 5.2.3). In the second alternative, the defendant raised the
customary defence of confession and avoidance, in other words,
non-causative negligence.
[26] In paragraph 6 of
the plea the defendant raised the same defences of contributory
negligence on the part of the plaintiff and
totally harmless
negligence on the part of its insured drivers in connection with the
second insured driver, Mr Du Preez.
[27] It was apparent from
the testimonial versions that the dispute revolved around the issue
of negligence. Put differently, the
question to be decided was
whether the plaintiff succeeded on a balance of probabilities to
prove that one or both of the insured
drivers was negligent in the
driving of the insured vehicle. To that end the plaintiff had to
carry the onus.
[28] At the same time I
was called upon to decide whether or not the defendant had succeeded
on a balance of probabilities to prove
that the plaintiff was also
negligently driving his motor vehicle and whether such contributory
negligence causatively brought
about the collision. To that end the
onus of proof rested on the defendant.
[29] On the one hand, Mr
Pohl, counsel for the plaintiff submitted that the issue had to be
affirmatively decided in favour of the
plaintiff. On the other hand,
Ms Le Roux, counsel for the defendant submitted that the answer to
the crucial question had to be
in the negative.
[30] The defendant’s
witnesses maintained that, before and after the commencement of the
trial, they informed the defendant’s
legal representatives that
the collision had taken place in their correct lane. The testimonies
of the witnesses were contrary
to the defendant’s plea. In
paragraph 5 and in paragraph 6 thereof the defendant spelled out the
grounds of the plaintiff’s
negligence, on which it relied. It
was significant to note that nowhere in its plea the defendant
pleaded that the collision took
place in the plaintiff’s
incorrect lane. I shall return to analyse the evidence. Let me
digress for a moment.
[31] I deem it necessary
to refer to some applicable legal principles. The
locus classicus
in respect of negligence is still the case of
KRUGER v
COETZEE
1966 (2) SA 428
(A) at 430 E – F where Holmes
JA said the following:
“
For
the purposes of liability
culpa
arises
if -
(a)
a
diligens
paterfamilias
in the position of the defendant -
(i) would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him
patrimonial loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b)
the
defendant failed to take such steps.
”
[32]
In
NYANDENI v NA
TAL
MOTOR INDUSTRIES LTD
1974 (2) SA
274
(D) at 279 A – B Fannin J had this to say about the purpose
of pleading:
“
The
plea directed the attention of the plaintiff to that issue and that
issue alone. The purpose of pleading is to clarify
the issues
between the parties and a pleader cannot be allowed to direct the
attention of the other party to one issue and then,
at the trial,
attempt to canvass another.”
[33]
The importance of the rule of cross-examination was stated in the
decision of
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA AND OTH
ERS v SOUTH AFRICAN
RUGBY FOOTBALL UNION AND OTHERS
2000
(1) SA 1
(CC) at page 36 paragraph 61 the court unanimously
remarked:
“
The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it is
essential,
when it is intended to suggest that a witness is not speaking
the truth on a particular point, to direct the
witness's
attention to the fact by questions put in cross-examination showing
that the imputation is intended to be made and to
afford the witness
an opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending
his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled
to
assume that the unchallenged witness's testimony is accepted as
correct. This rule was enunciated by the House of Lords in
Browne
v Dunn
and
has been adopted and consistently followed by our courts.”
[34] In the same decision
on page 37 paragraph 63 the court went on to say:
“
The precise
nature of the imputation should be made clear to the witness so
that it can be met and destroyed, particularly
where the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not
only that the
evidence
is
to be challenged but also
how
it is to be challenged. This is so because the witness must be given
an opportunity to deny the challenge, to call corroborative
evidence, to qualify the evidence given by the witness or others and
to explain contradictions on which reliance is to be placed.”
[35] In
TENGWA v
METRORAIL
2002 (1) SA 739
(C) at 745 F – G Msimang AJ,
as he then was, said:
“
However,
not only did plaintiff's notice of amendment come to light late
in the proceedings,
but
the amendment seeks to introduce omissions relating to a completely
new incident
.
While in the original particulars of claim the plaintiff had pleaded
the attack by the robbers and defendant's failure to protect
him from
them and had hitherto conducted his case on the basis of the said
allegations, he now wishes to introduce the incident
as narrated by
Ms Mazimba with its accompanying omissions which bear no relevance to
the original incident.”
[36] I now proceed to
examine the evidence in the matter. The important aspect of the
enquiry in this matter was precisely where
in relation to the line of
demarcation line in the middle of the road the first collision
occurred. On the one hand, the evidence
tendered by and on behalf of
the plaintiff indicated that the point of impact was on the
plaintiff’s correct traffic lane.
On the other hand, the
evidence tendered on behalf of the defendant indicated that the
vehicles collided on the insured drivers’
correct side of the
road.
[37] The evidence of the
defendant’s witnesses concerning this extremely important
aspect of the matter was not in line with
the grounds of negligence
pleaded by the defendant. That sharp contradiction had to be seen
against the backdrop of the plaintiff’s
specific averment that
the first insured vehicle and his vehicle collided in his correct
traffic lane. The averment was made in
paragraph 5.4 and 5.5 of the
particulars of claim. The plaintiff, particularly his witness
tendered evidence which established
that averment.
[38]
The defendant’s evidence was at variance with its plea (
vide
paragraphs 5 and 6). The evidence sought to introduce a completely
new aspect relating to the real issue in dispute. The defendant
omitted to plead such a vital aspect as a ground of negligence
attributable to the plaintiff. Accordingly the defendant was
precluded
by the rules of fair engagement from belatedly testifying,
at the stage of trial, about that which was not pleaded – which
was that the plaintiff deviated, crossed the line and, on the wrong
side of the road, collided with the two insured vehicles –
TENGWA v METRORAIL
supra
.
The plaintiff prepared, conducted and presented his case on the
legitimate assumption that his averments about the proximate and
probable area of impact were undisputed. In my view he was entitled
to do so.
[39] In deciding whether
a party succeeded in proving any negligence, it is of vital
importance to have regard to the pleadings.
In this matter it was not
the defendant’s case on the pleadings that the collision took
place in the correct traffic lane
of the insured drivers. Such
evidence surfaced for the first time when the first insured driver
testified. By then the plaintiff’s
case had already been
closed. In that sense the defendant’s evidence was belated.
Besides that, there was a definite discord
between the defendant’s
plea and the evidence tendered in support thereof. In that sense the
evidence was startling.
[40]
At no stage was the plaintiff’s attention drawn, by way of the
defendant’s plea, to any allegation that the plaintiff’s
vehicle deviated from its correct path of travel, veered to the
right, moved across the demarcation line onto its incorrect path
of
travel and there collided with the first insured motor vehicle. The
defendant’s omission to do so defeated the purpose
of pleading
as set out in
NYANDENI
’s case
supra
.
[41] In this matter the
defendant tried to do, by means of evidence inconsistent with its
plea, precisely that which should not
be done according to the
decision of
NYANDENI
’s case
supra
. In its
plea the defendant evaded to deal with an issue pertinently raised by
the plaintiff and only at a very late stage of the
trial attempted to
introduce it in order to deal with that real issue. When the
defendant’s witnesses testified I was taken
aback to hear for
the very first time that the collision took place in their correct
traffic lane and not in the plaintiff’s
correct traffic lane,
as averred by the plaintiff long before the trial.
[42] At times an issue
not pertinently pleaded may be so fully canvassed that it becomes
part and parcel of the evidential material
that a court hearing the
matter may have to deal with as if it had been properly pleaded.
However, in the instant matter, it cannot
be argued that the issue,
namely the allegation that the collision took place on the
plaintiff’s incorrect traffic lane,
was fully canvassed. This
is so because for an issue to be fully canvassed, such contrary
version had to be put to an opposite
witness, who must then be
invited to comment and afforded an opportunity of doing so. It was
never done in this particular matter.
About that there was no dispute
– the
PRESIDENT
’s case,
supra
,
paragraph 63. Since it was neither expressly pleaded nor fully
canvassed, the omitted aspect cannot be redeemed.
[43] Both of the
defendant’s witnesses maintained that they had informed the
defendant’s legal representatives right
from the onset that the
collision took place in their correct traffic lane and not in the
plaintiff’s correct traffic lane,
as the plaintiff alleged. The
difficulty I had with their testimonies was that the defendant’s
version to that effect was
neither put to the plaintiff nor his
witness. What was even more telling against the defendant was the
fact that the contrary evidence
of the plaintiff and his witness to
the effect that the collision occurred on his correct traffic lane,
was not disputed during
cross-examination by the defendant’s
counsel. The nett result of the omission by the defendant’s
counsel was that the
issue was not fully canvassed.
Vide
the
PRESIDENT
’s case
supra
.
[44] Since no contrary
imputation was made to suggest that the plaintiff and his witness
were not speaking the truth on that particular
point, they were
deprived of an opportunity of giving an explanation in order to
defend their testimonies and their characters.
In such circumstances
the rule of cross-examination required that the unchallenged
testimony of the plaintiff and his witness be
accepted as correct. In
the
PRESIDENT
’s case
supra
the court
unanimously accepted that the rule of cross-examination imposed
certain obligations on a cross-examiner and that it was
an essential
rule designed to ensure fair play and fair dealing with witnesses.
With that I could not agree more.
[45] This was not the
case where a vital imputation was not clearly made to the witness.
Here we have the case where a vital imputation
sought to be relied
upon was not at all made not to one but to two witnesses. Both of
them left the witness box unaware that a
crucial aspect of their
evidence would be later challenged. Clearly they were given no
opportunity to deny or to deal with the
challenge. As far as they
were concerned there was no challenge to their evidence and because
there was no challenge, they expected
the court to accept their
evidence as true and correct.
[46] To find otherwise in
these circumstances would constitute an unfair play and an unfair
dealing with them. They were denied
the opportunity to respond to the
belated allegations made by the defendant’s insured drivers. In
the light of all these
circumstances I cannot find, as I was urged to
find, that the vehicles collided on the plaintiff’s wrong side
of the road.
[47] The importance of
properly pleaded case was also demonstrated in the decision of
TENGWA
’s case
supra
. The plaintiff has
conducted his case on the basis of the essential averments he made in
the particulars of his claim. He, through
his witness, tenaciously
asserted those undisputed averments in his testimony. To dismiss his
claim at this stage on the strength
of the evidence of the defendant,
which did not tally with the defendant’s plea, would constitute
a serious violation of
the cross-examination rule – the
PRESIDENT
’s case,
supra
.
[48] In the premises
counsel for the plaintiff submitted that the evidence as to the
probable area of impact being on the defendant’s
insured
driver’s correct traffic lane appeared to be an afterthought by
the two insured drivers. Counsel went on to say if
that was not the
case, one would imagine that the legal representative of the
defendant would have asked for an amendment of the
plea prior to the
commencement of the trial. However, that was not done. The omission
to do so, coupled with the fact that the
plaintiff’s evidence,
as substantially corroborated by his witness, was unchallenged during
cross-examination indicated that
the evidence of the two insured
drivers was untrue.
[49] The aforesaid
submission was persuasive. But there was more to it than just that.
It may well be that the witnesses did inform
the defendant’s
legal representatives about how the accident occurred and precisely
where the area of impact was, as they
maintained they did. Where
nobody cared to take proper note of accurate accounts given by
witnesses and to accurately draw up a
plea accordingly, the character
of an otherwise impressive witness may be impaired or adversely
affected. Such failures by legal
representatives are not uncommon in
my experience. Quite often they may lead to poor presentation of
cases of litigants. However,
it would constitute an appealable
misdirection if one were to have a litigant case dismissed on such
grounds of perceived lack
of expertise.
[50] If it is accepted,
and I think it should, that the plaintiff did not deviate from his
correct path of travel as he was nearing
the last sharp bend, then it
follows as a matter of logic that one of the insured divers did. The
evidence suggests that Mr Wagenaar
was the transgressor. By driving
on the incorrect side of the sharply curving road, where his field of
vision was significantly
restricted – he should have foreseen
the reasonable possibility of his careless conduct injuring another
road-user. By driving
as he did, he failed to carefully take
reasonable steps to guard against such foreseeable harmful
occurrence. A diligent
pater familias
or
mater familias
would have acted differently in those prevailing circumstances. He
could have avoided the collision by keeping to his correct side
of
the road until he had a clear view of the traffic situation ahead of
him. In the circumstances I am inclined to reject the version
of the
insured drivers. In reaching this conclusion I have borne in mind the
test for negligence as enunciated in the decision
of
KRUGER v
COETZEE
supra
.
[51] I am of the view
that the plaintiff has shown on a balance of probabilities that the
collision was occasioned by the sole negligence
of the first insured
driver in the negligent driving of the first insured vehicle. That,
in my view, was the primary cause of the
collision. This is so
because there is no other credible and reliable version to contradict
his version, as corroborated by his
witness, that he was driving on
his correct traffic lane and that one of the insured motor vehicles
travelling on its incorrect
lane, emerged out of the blue and
collided with his motor vehicle.
[52]
The defendant pleaded contributory negligence on the part of the
plaintiff. The onus to aver and to prove contributory negligence
rested on the defendant. Perhaps the only grounds of contributory
negligence that may possibly be attributed to the plaintiff was
his
failure to keep a proper lookout. In this regard the pertinent legal
position as outlined in
GUARDIAN NATIONAL INSURANCE CO
LTD v SAAL
1993 (2) SA 161
(C) by
Cooper J
applies. The headnote captures the gist of the decision quite well as
follows:
“
Held
,
that in order to recover damages against the appellant the
onus
had
been on the respondent to prove on a balance of probabilities that M
had driven negligently and that his negligent driving had
caused or
contributed to the collision.
Held
,
further, that the finding by the trial Court
that
M had not been keeping a proper lookout at the time of the collision
was not sufficient to render the appellant liable, since
respondent
had to prove that M's failure to keep a proper lookout was causally
connected with the collision, the critical
question being
whether M ought reasonably to have become aware thereafter, at a
stage when effective avoiding action could still
be taken, that the
pick-up truck was not going to stop
.
Held
,
further, that the respondent had to prove that, had M reacted when
the reasonable man would have reacted, the collision would
probably
not have occurred.
Held
,
further, that on M's version of the collision, and because respondent
suffered from amnesia, the precise speed at which the vehicle
was
travelling when it entered the intersection and at what stage
he intended doing so could not be established, and unless
these
facts could be established on a balance of probabilities, the Court
could not find that, if M had reacted as a reasonable
man would have,
the collision would not have occurred.”
[53] It was common course
that the collision occurred in the vicinity of a curve near the level
crossing. On both sides of the winding
road there was relatively high
vegetation. The railway track, the curves and the plants cumulatively
impaired and diminished a
driver’s range of vision in the
vicinity of the scene. Consequently the plaintiff did not instantly
appreciate the impending
danger. This is so because his driver
alerted him to the danger posed by the oncoming vehicle. The warning
given by the passenger
justified the conclusion that the plaintiff
was not keeping a proper lookout at the time. However, on the
persuasive authority
of the decision in
SAAL
’s
case
supra
that finding alone was not sufficient to render the
plaintiff liable on the basis of contributory negligence. The
plaintiff was
seriously injured in the collision as a result of which
he suffered from retrospective amnesia and could not give a full and
helpful
account of how the collision occurred.
[54] To partially
repudiate the plaintiff’s claim, the defendant had to prove
that the plaintiff’s failure to keep a
proper lookout was
causally connected with the collision. The practical question being
whether the plaintiff received a passenger’s
warning at a stage
when effective avoiding action could still be taken. Whether he ought
reasonably to have become aware at that
critical moment to have
speedily taken an evasive action, must be borne out by evidence. The
defendant had to prove that in those
given circumstances had the
plaintiff reacted when a reasonable man would have reacted, the
collision would probably not have occurred.
In my view the defendant
failed to prove that the plaintiff’s failure to keep a proper
lookout causally contributed to the
collision.
[55] It was undisputed
that when the danger posed by the head-on collision became imminent,
there was nothing the plaintiff could
do to avoid it. The rejection
of the defendant’s evidence meant that it had to be accepted
that the insured motor vehicles
were travelling parallel to each
other on the road. Seemingly neither the slamming of the breaks nor
the swerving of the vehicle
would have brought about any different
outcome. In certain circumstances an attempt to take an evasive
action by veering off the
trafficable surface of the road, not
knowing what to expect beyond its parameters, may bring about worse
consequences than taking
no evasive action at all. In my view the
defence of contributory negligence attributed to the plaintiff by the
defendant, was not
established.
[56] Therefore the fact
that the plaintiff took no evasive action cannot be held against him
in order to apportion the blame. In
my view the negligence of the
plaintiff in failing to keep a proper lookout, was tantamount to
negligence in the air. It was shown
that there was no causative
connection between the plaintiff’s failure and the harmful
event. The same could not be said
about the defendant. I would,
therefore, dismiss the defendant’s second alternative defence
as well. The negligence of the
defendant’s first insured driver
had everything to do with the injury the plaintiff sustained.
[57] Having made a
determination on the merits that leaves the matter of costs still to
be adjudicated. Mr Pohl, for the plaintiff,
urged that in the event
of my coming to a decision favourable to the plaintiff, I should make
an order in favour of the plaintiff
now with regards to the costs
incurred in determining the issue of liability. Ms Le Roux did not
urge me to reserve costs for the
decision of the court still to be
tasked with the responsibility of finalising the matter.
[58]
In my judgment, it is time to bring the curtain down on this part of
the proceedings instead of having such a decision left
in abeyance.
In coming to this conclusion, I found comfort in the views expressing
in
GROOTBOOM v GRAAFF-REINET MUNICIPALITY
2001
(3) SA 373
(ECD) at 381 G – 382 C by
Ponnan
AJ, as he then was, and the authorities there cited.
[59] Finally, there
remains one more issue of costs relating to the formal application
for the separation of issues in terms of
rule 33(4) of the Uniform
Rules. The stance of the defendant relating to trials is well known.
The defendant has adopted an inflexible
attitude that when a matter
is enrolled, and it is invariably done by the plaintiffs, the
defendant will conduct its case on the
basis that the matter has been
enrolled for a full-blown trial, to adjudicate issues pertaining to
both the merits and the quantum.
As a result of such a stance, a
majority of attorneys who act on behalf of victims of road accidents,
such as the plaintiff in
this matter, often bring applications in
terms of rule 33(4) beforehand or on the date of the trial to have
the issues separated.
[60] In this matter the
application was filed shortly before the date of hearing for hearing
before the commencement of the main
trial on 4 December 2012. The
application was not opposed by the defendant. It was accordingly
granted by mutual consent. In such
circumstances there can be no
persuasive argument as to why the costs relative to such a separation
application should not be borne
and paid by the defendant.
[61] In the premises I
make the following order:
61.1. The defendant is
liable for 100% of the plaintiff’s proven or agreed damages.
61.2. The defendant is
liable for the plaintiff’s costs in respect of the merits.
61.3. The defendant is
also liable for the plaintiff’s costs relative to the
application for the separation of issues in terms
of rule 33(4) which
was served by the plaintiff on the defendant on 7 November 2012.
______________
M.H. RAMPAI, J
On
behalf of plaintiff: Adv L Le R Pohl
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv L Le Roux
Instructed
by:
Moroka
Attorneys
BLOEMFONTEIN
/spieterse