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[2013] ZAFSHC 73
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Prisnloo v Road Accident Fund (904/2006) [2013] ZAFSHC 73 (16 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 904/2006
Appeal Case No.: A98/2012
In the matter between:-
H.C. PRINSLOO
........................................................................
Appellant
and
THE ROAD ACCIDENT
FUND
..............................................
Respondent
_______________________________________________________
CORAM:
C.J. MUSI, J
et
VAN
ZYL, J
et
MHLAMBI,
AJ
_________________________________________________________
HEARD
ON:
11 FEBRUARY2013
_______________________________________________________
JUDGMENT BY:
MHLAMBI, AJ
_______________________________________________________
DELIVERED:
16 MAY 2013
_______________________________________________________
INTRODUCTION:
[1] This is an appeal
against the judgment of Kubushi AJ (as she then was). Leave to appeal
was granted by Jordaan J on the ground
that the Court
a quo
failed to make a finding on the question of negligence.
1.1. The appellant,
(hereinafter referred to as “plaintiff”) instituted a
claim of damages against the respondent, (hereinafter
referred to as
“defendant”) for personal bodily injuries suffered in a
motor vehicle collision which occurred on the
21
st
of
April 2001, a Saturday night, on the N6, a national road between
Rouxville and Aliwal North.
1.2. The parties agreed
to separate the issues of quantum and merits. Both the plaintiff and
defendant led evidence on the issue
of negligence only. The Court
a
quo
was requested to make a decision in respect of the issue of
negligence.
1.3. The Court
a quo
dismissed the plaintiff’s claim on the basis that the plaintiff
failed to show a connection between the injuries sustained
and the
collision.
[2] The grounds upon
which the plaintiff relies for this appeal is that the Court
a quo
erred in finding that:
2.1. It was necessary for
the plaintiff to show exactly how he sustained his injuries, while
the Court was called upon to only adjudicate
on the aspect of the
merits and more specifically the issue of negligence;
2.2. The plaintiff failed
to prove a connection between the collision and the injuries
suffered, while such evidence is only necessary
for the determination
of the quantum of the claim.
ASPECTS THAT ARE
COMMON CAUSE:
[3] 3.1. The accident
took place a few kilometres outside Aliwal North in the direction of
Rouxville on a Saturday night, the 21
st
of April 2001, at
approximately 21h00.
3.2. The road leading up
to the scene of the accident consisted of two lanes for traffic from
Aliwal North to Rouxville and had
a high incline, a bit of a bend to
the right with the two lanes divided by a demarcated white line. When
one passed the incline
where the road made a slight turn, the
demarcated white line discontinued and the lanes for traffic from
Aliwal North became a
single lane.
3.3. The speed limit on
this specific portion of the road was 120km/h (one hundredand twenty
kilometres per hour).
3.4. In the area where
the road still consisted of two lanes, the width of the road was 7.4
metres, being the distance from the
yellow line to the middle of the
road and from the very edge of the tar to the yellow line the width
was 1.5 metres.
3.5. In the area where
the accident occurred, the width of the road from the road edge to
the yellow line was 2.4 metresand from
the yellow line to the middle
of the carriageway the width was 6.85 metres for traffic travelling
towards Rouxville.
THE PLAINTIFF’S
VERSION:
[4] 4.1. Plaintiff
received a telephone call from his sister who informed him that she
drove her “bakkie” off the road
between Rouxville and
Aliwal North. Plaintiff was at his father’s farm watching rugby
and conceded under cross-examination
that he had some alcohol to
drink.
4.2. After he received
the call, plaintiff phoned the Police at Aliwal North and two towing
services. But none of them answered
his calls. He further tried to
get hold of them via cell phone when he entered Aliwal North, but to
no avail.
4.3. He conceded during
cross-examination that he could have gone to the police station
personally, but explained that at that stage
he was concerned about
the “bakkie” that went off the road. He would need a
police escort to the scene, but as he did
not know where the accident
took place and believing that the police did not want to assist him,
he decided not to ask for their
assistance.
4.4. Plaintiff went to
his farm and fetched some of his farm workers, who were having a
feast and drinking beer. This was confirmed
by the witness called by
the plaintiff, Mr M. Mkhenku, who testified that he consumed 750ml of
beer before plaintiff arrived requesting
their help.
4.5. He took a rope and a
torch, which he indicated as being big as his hand’s palm, with
him to the scene. With him in the
red Nissan double cab “bakkie”
(hereinafter referred to as “the Nissan”) was his 5
(five) year old son,
his father and 5 (five) of his employees.
4.6. At the scene outside
of Aliwal North the Ford stood off the road with its nose in a bush
about 3 meters from the tarred surface
of the road. As it was locked
they could not switch on the light. A corner of the back of the Ford
was on the side of the tarmac,
the back of the Ford was level with
the shoulder of the road and predominantly off the road.
4.7. It rained earlier
that night and the road surface was wet, but there were no water
puddles on the carriageway; there was no
moon as it was cloudy. As
they retrieved the Ford bakkie, the Nissan bakkie’s emergency
lights (hazards) were on and the
headlights on dim. His father was
warning traffic travelling towards Rouxville with a torch, standing
about 30 to 50 metres from
where they were working. The traffic from
Aliwal North could see them from far away and there was ample space
for vehicles to pass
them safely.
4.8. During
cross-examination, he conceded that this was insufficient warning and
that they were ill-equipped for the task at hand
as they did not have
any recovery equipment on the Nissan, but maintained that it was
practical. Even though he conceded that it
was a dangerous place to
retrieve the Ford, he did his best to avoid an accident with the
warning signals that he used.
4.9. Plaintiff decided to
pull the Ford bakkie from where it was standing on the side of the
road onto the road surface and to assess
the damage to it. Whilst he
retrieved the Ford from the thorn bush, plaintiff realised that the
Ford’s wheels were turned
and locked (“ge-crank”)
to the right and that the front right wheel was flat. He tried to
retrieve the Ford with the
rope and repair it himself with the
assistance of his employees.
4.10. A taxi stopped at
the scene and offered assistance. During this period three to five
vehicles, coming from the direction of
Aliwal North, reacted to the
warning signals and slowed down.
4.11. Plaintiff made two
attempts to pull the Ford out of the carriageway, and before the
third attempt, the collision occurred.
At this point the Ford was
facing oncoming traffic and stood at an angle of 45 (forty five
degrees) into the carriageway.
4.12. Plaintiff conceded
that the carriageway became a single lane, its width narrowing before
the place where they were busy working.
The Nissan’s right
wheels were on the yellow line with the rest of its body in the
carriageway. The Nissan was approximately
1,6 metres in width and
stood in the lane of oncoming traffic with its lights shining
directly into the lane of oncoming traffic.
4.13. The Ford was about
5 metreslong, stood behind the Nissan with its nose in the traffic
lane and its front wheels about one
meter into the traffic lane. He
conceded that the Ford’s Nose was approximately 500mm –
750mm in thecarriageway. At
this point the carriageway’s width
decreased by almost 0.55 metres.
4.14. The process to
retrieve the Ford from the ditch and onto the road surface took about
5 (five) minutes before the collision
occurred.
[5] 5.1 Mr M.
Mkhenku(hereinafter referred to as “Mkhenku”)an
ex-employee of plaintiff testified and confirmed that
he was one of
the 5 (five) employees that assisted plaintiff in retrieving the Ford
from the side of the N6.
5.2. On their arrival at
the scene where the Ford left the road, plaintiff instructed him and
the other employees to push the Ford
up to the surface. The Nissan
that was pulling the Ford was behind the yellow line, with its
hazards on and the head lights apparently
on dim. Plaintiff’s
father was in front of the red vehicle; he could not remember the
model but it was plaintiff’s
vehicle. He further confirmed the
prevailing weather conditions.
THE DEFENDANT’S
VERSION:
[6] [6.1] Mr D.F. van der
Merwe, (hereinafter referred to as the “insured driver”),
testified for defendant. He and
his former wife, Ms P.C. van der
Merwe, went to Aliwal North to fetch their daughter who was on her
way back from Queenstown, where
she took part in a hockey tournament.
6.2. It rained when they
picked up their daughter and the insured driver decided that it would
be better for his daughter to sit
in front on his wife’s lap in
the passenger seat as it was too cold to sit in the back of the Corsa
“bakkie”.
The rain stopped as they left Aliwal North. The
road was still wet due to the rain that fell earlier.
6.3. As they travelled
out of Aliwal North towards Rouxville, the insured driver drove in
the left lane of the unlit double carriageway
towards Rouxville.
6.4. He drove at a speed
between 90 to 110 km/h as the Corsa did not have enough power to
drive faster than 100 km/h up the incline
of the road.
6.5. In cross-examination
he conceded that he reduced his speed by 10km/h, taking his foot off
the accelerator because of an approaching
vehicle whose lights were
on bright, but confirmed that everything happened so fast that there
was no time to use his brakes. He
also stated that he could not
remember whether he had used his brakes or not. At the time he
thought he did, but realised that
if he had used his brakes he would
not have been able to swerve the Corsa to the left and would have
collided with the motor vehicle
which was in front of him. He
conceded that he drove at a speed of 90 to 95 km/h when he saw the
approaching vehicle whose lights
were on bright.
6.6. He had driven on the
left lane throughout. The two lanes ultimately became a single lane.
Close to the area where the collision
occurred, he thought he saw the
lights of a motor vehicle which seemed to be on the white line of the
road,even though he did not
know whether it stood still or was
approaching him.Just before the entrance to Goedemoed he saw the
lights of this vehicle which
were on bright. In cross-examination he
indicated that he saw these lights for the first time at a distance
of +/- 600 to 800 meters,
but could not remember if the approaching
vehicle was moving or standing still, as the road made a bend and
they were half blinded
by the approaching lights.
6.7. The said vehicle’s
lights blinded him about +/-300 to 400 meters away even though he
could not estimate the distance
well.
6.8. As he approached the
vehicle he dimmed his lights, but the vehicle in front of him did not
dim its lights. The reason why he
dimmed his lights was to see if the
other vehicle would also dim its lights. Just as he passed the
vehicle, he turned his lights
onto bright and saw another vehicle
standing right across the road in front of him, about 6 to 8 meters
away.
6.9. There was nothing
else on the road, only the two lights coming from the vehicle
approaching. There were neither objects nor
pedestrians on the left
side of the road.
6.10. He immediately
swerved to the left and collided with the Ford. The insured driver
conceded that if the vehicles stood as indicated
on exhibit “B”,
he would have been able to pass safely on the right hand side. But
the vehicle he passed was more to
the middle of the carriageway.
6.11. He conceded that
one did get pedestrians and cyclists on the shoulder of this road and
that it was foreseeable that one could
encounter a vehicle parked on
the shoulder of the road from time to time. One should be on the
look-out for such vehicles.
[7] 7.1 Ms P.C. van der
Merwe testified for the defendant. She confirmed that she was a
passenger with her daughter and there was
nothing impairing her view.
The radio was off and they did not really talk while the insured
driver was driving.
7.2. She leaned a bit to
her right so that she could have a clear view of the road in front of
her.
7.3. The Corsa was in a
very good condition; the windscreen was clean and had no cracks.
7.4. She confirmed that
they drove at about 100 to a maximum of 110 km/h and it didn’t
feel as if they were driving fast.
The insured driver reduced his
speed by approximately 10 km/h because of the approaching vehicle
whose lights were on bright, blinding
them.
7.5 As they were driving
along this road towards Rouxville, she saw bright lights and it
looked as if these lights were approaching
them from the opposite
direction. The insured driver dimmed his lights but the other
approaching vehicle did not dim its lights.
7.6 She testified that
she saw this vehicle’s lights at a distance of about 250 meters
from the scene of the accident and
it was difficult to determine the
distance because it was dark. There were no other lights on the road
nor anything obstructing
the beam of light coming from the vehicle
approaching them.
7.7 In cross-examination
she re-affirmed that she saw the lights at +/-250 meters. She further
confirmed that when they passed this
vehicle that looked like
approaching traffic, the insured driver switched the Corsa’s
lights to bright. Throughout her testimony,
she stated that it was
difficult to determine whether this vehicle, which had its lights on
bright, moved or stood still.
7.8 As the insured driver
switched his lights to bright, having passed the vehicle whose lights
blinded them, she saw a vehicle
standing right across the road in
front of them in their carriageway. This vehicle was about 8 to 10
meters in front of them as
its lights were off.
7.9 One would have seen
the Ford standing across the road surface if it were not for the
lights coming from the opposite direction.
There were no other
warning lights as one approached the area where the collision
occurred.
7.10 She confirmed that
everything happened in a matter of seconds and the insured driver
acted on instinct as he executed the manoeuvre
to the left.
7.11 After the collision,
she ran after her daughter and saw a black man running around with a
torch enquiring about their safety.
In her opinion, the plaintiff
should be held responsible for the collision because there were no
warning signs.
ABSOLUTION FROM THE
INSTANCE
[8] The defendant applied
for absolution from the instance. In dismissing the application the
Court
a quo
stated the following:
“
In this
instance the Plaintiff has the onus to prove negligence on a balance
of probabilities. The test for proving negligence is
set out in the
case of
Kruger
v Coetzee
1966
(2) SA 428
(A)at page 430 E-H …..The plaintiff acknowledged in
his evidence that he foresaw that his conduct as explained in
paragraph
5 above, would put other road users in danger and according
to him he took the necessary steps to guard against such danger. The
plaintiff’s evidence is that his red bakkie had its hazards and
dim lights on. His father was standing in front of the red
bakkie
with a torch which he was flickering to make other road users aware
of the danger and that one of his employees was directing
traffic to
pass on the right side of the bakkie. He was satisfied that he had
taken reasonable steps to warn the oncoming traffic
of the danger.
The evidence also indicates that
before the collision there had been other motor vehicles that had
passed the scene and had been
able to avoid a collision. According to
him this collision was caused by the negligence of the insured driver
in that he drove
at a very high speed and was thus unable to avoid
colliding with the plaintiff.
This is the evidence before me and I
have to decide whether with this evidence the plaintiff has succeeded
to establish negligence
on the part of the insured driver or not. It
must be remembered though that the test applicable at this stage is
not whether the
evidence established 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 or ought to, find for the plaintiff. I refer in this regard to
Erasmus,
Superior Court Practise
, page B1/292 – B1/292A
and the case is quoted there.
When applying this test, I am
satisfied that the facts established by the plaintiff are at this
stage enough and that a court applying
its mind reasonably thereto
might find for him. In my view a
prima facie
has been made and
in respect of the defendants second ground the rule has always been
that absolution should not be granted at the
end of the plaintiff’s
evidence, except in very clear cases and questions of credibility
should not normally be investigated
at this stage. It had been held
that a court must assume, in the absence of very special
consideration such as the inherent unacceptability
of the evidence
adduced, that the evidence is true. I am inclined in this instance to
also accept the plaintiff’s evidence
as true. There is nothing
in the evidence of the plaintiff that makes this evidence to be
unacceptable…”.
[9] The court went
further and said:
“
I do not
agree with the defendant’s counsel that under cross-examination
the plaintiff broke down and could not explain how
his sister’s
bakkie ended in the position in which it was. The plaintiff was in my
view able to explain how he hauled the
bakkie from the bushes to the
surface of the road and as to how it ended in the position it was
facing at the time of the collision.
Whether this is probable or not
is not for this court to consider at this stage. I can also not at
this stage consider whether
the second witness evidence is reliable
or not”.
I agree with the court
a
quo’s
approach in dismissing the application for
absolution.
NEGLIGENCE AND
CONTRIBUTORY NEGLIGENCE:
[10] The
locus
classicus
for the determination of negligence
is
Kruger v Coetzee
1966(2)
SA 428 (A).
[11] On page 430 E –
F, Holmes J A said the following:
“
For the
purposes of liability
culpa
arises if –
a
diligens paterfamilias
in
the position of the defendant –
would foresee the reasonable
possibility of his conduct injuring another in his person or
property and causing him patrimonial
loss; and
would take reasonable steps to guard
against such occurrence; and
the defendant failed to take such
steps”.
On the insured driver’s
own version, he was blinded by the lights of the other motor vehicle
for a considerable distance before
the collision occurred; yet he
failed to apply his brakes or to stop in order to avoid a possible
collision.Defendant’s counsel
conceded negligence on the part
of the insured driver in that he drove a motor vehicle at a speed
that he did while blinded by
the lights of a motor vehicle from the
opposite direction. I agree with him and find that the insured driver
was negligent. Negligence
having been established, the next step to
investigate is whether there was contributory negligence.
[12] As defendant was
blinded for a considerable distance, plaintiff’s evidence
cannot be gainsaid by the defendant in that
he had parked the red
bakkie as alleged, and that his father had used the torch to warn and
guide oncoming traffic. So also Mkhenku’s
evidence that other
vehicles, including a taxi that offered assistance, had passed the
scene of the collision safely, smoothly
and uneventfully.
[13] The presence of a
lit torch on the scene is confirmed by Ms van der Merwe; indicating
to me that the plaintiff’s version
is more acceptable and
probable than the defendant’s. Taking into account the weather
conditions, the speed at which the
insured driver drove, his failure
to apply brakes, the bend, the condition of the road, the failure to
stop when blinded, the realisation
of the Ford vehicle only six to
eight metres after putting his lights on bright and before the
collision occurred, makes the insured
driver to be the major
contributor to the causation of the collision.
[14] He conceded that he
had no time to think but to swerve his vehicle to the left to avoid
the collision. On hindsight and on
visiting the scene sometime after
the collision occurred, he suggested that it was correct for him to
swerve to the left as there
were barrier lines on the road where the
collision took place. It would therefore not be proper for him to
turn right into possibly
imminent danger of traffic from the opposite
side. This confirms that he was not alert at all times.
[15] The plaintiff
conceded that the measures he took to tow the Ford vehicle were not
really adequate; but practical, which indicates
that he could have
done more to ensure safety on the road and exercised the manoeuvres
in such a manner as to guard against danger
and to ensure his and
other road users’ safety. The failure by the plaintiff to
either enlist the police to be present on
the scene to
, inter
alia
, control the traffic or to properly illuminate the vehicles
and area where the towing took place and/or use effective lights
which
would have warned other road users of the situation, is to my
mind negligent. I am therefore of the view that the plaintiff was
20%
and the insured driver 80% negligent as to the cause of the
collision.
COSTS:
[16] In the result, costs
should follow the event.
ORDER:
[17] 1. The appeal
succeeds with costs.
2. The order by the Court
a quo
dismissing plaintiff’s claim with costs, is set
aside and replaced by the following order:
(a) The insured driver
Mr. van der Merwe’s negligence contributed 80% and the
plaintiff’s negligence 20% towards the
causation of the
collision and the plaintiff is therefore entitled to recover 80% of
his damages,if any, from the defendant.
(b) Defendant is ordered
to pay the costs of the trial on the merits.
_______________
J.J. MHLAMBI, AJ
I
concur.
___________
C.J. MUSI, J
I
concur.
____________
C. VAN ZYL, J
On
behalf of appellant: Adv. M. D. J. Steenkamp
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
On
behalf of respondent: Adv. J. A. Kitching
Instructed
by:
Webbers
Attorneys
BLOEMFONTEIN