About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2013
>>
[2013] ZAKZDHC 74
|
|
Lucken v Ndlovu (9619/2009) [2013] ZAKZDHC 74 (28 June 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE
KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
Case
No: 9619/2009
In
the matter between:
VIKASH
LUCKEN
………………………………………………
Plaintiff
and
BOY
DOMINIC NDLOVU
.................
………………………
Defendant
JUDGMENT
Delivered:
28 June 2013
MBATHA
J
[1]This
is a claim for damages arising from a collision of the Plaintiff’s
motor vehicle and the Defendant’s motor vehicle.
The trial
proceeded on liability only, as per agreement between the parties.
[2]It
is common cause that a collision occurred between motor vehicle
registration number N[…] driven by the Plaintiff and
motor
vehicle registration number N[…] driven by the Defendant. The
collision occurred on the 8
th
of October 2008 at the
intersection of Argyle Road and NMR Avenue, in Durban. The collision
occurred at about 7h00. It is also
common cause that both motor
vehicles were damaged in the collision.
[3]The
only issue in dispute is whether it was the Defendant who caused the
collision or not.
[4]Plaintiff’s
evidence is that he was driving down Argyle Road towards the
intersection at NMR Avenue. He was on the farthest
left lane of
Argyle Road driving at about 50-55 km per hour. As he entered the
intersection, the Defendant without warning turned
right across his
path of travel. A collision occurred between his motor vehicle and
the Defendant’s motor vehicle. His motor
vehicle was damaged in
the front and the Defendant’s motor vehicle was damaged on the
left hand side. Plaintiff further stated
that as result on the
collision he sustained damages in the sum of R139 362.37 being
the reasonable and necessary costs of
repairing his motor vehicle,
which had to be towed from the scene of the collision at the cost of
R2 250.00. The Plaintiff
is therefore seeking judgment in his
favour against the Defendant.
[5]The
Defendant disputes that he was the cause of the collision. His
version is that on that morning he was travelling in the opposite
direction of Argyle Road and approached the NMR intersection. He was
travelling on the extreme right lane. He stopped at the robot
and
awaited the green arrow to allow him to enter the intersection. He
observed that there were two (2) motor vehicles in the first
and
second lanes opposite him, where he was crossing the intersection.
They were in a stationary position, as the robot had closed
for them.
He then proceeded to enter the intersection, turned right as the
arrow had turned green to allow him to move forward.
He drove past
opposite the first stationary motor vehicle. As he was opposite the
second lane he saw a motor vehicle coming at
a high speed towards
him. He accelerated forward to avoid being hit by it. He also tried
to turn and swerve in trying to avoid
the collision but his motor
vehicle was still hit on the left hand side by the motor vehicle
driven by the Plaintiff. The Defendant
suffered damages in the sum of
R108 700.00.
[7]Prior
to the commencement of the trial, the Defendant withdrew his
counterclaim as he had been compensated by his insurers.
[8]An
inspection
in loco
was held by the Court to ascertain how the
robots operate at the intersection of Argyle Road and NMR Avenue. It
is important to
record that the inspection
in loco
took place
between 14h30 and 15h20 and not at 7h00. The Court observed that the
robots turn to green and red simultaneously on
each side of Argyle
Road where there is an intersection to NMR Avenue. It was further
observed that at intervals of 10 to 15 minutes
a green arrow would
appear on the robot to allow traffic to cross the intersection to the
right hand of the road. Whilst the arrow
reflect green, the traffic
coming from the opposite direction to the line travel of the turning
motor vehicles remain waiting at
the robot until the arrow turns to
amber, then the robot changes to a green light to allow them to move
forward.
The
Court observed that this is a major road, which is very busy even at
that the time of the day. The road has three (3) lanes
on each side
to indicate how busy it is and that it is designed to deal with
volumes of traffic.
[9]The
Plaintiff’s evidence is that the robots were green as he
approached the intersection and he had a right of way. The
Defendant
entered the intersection at an inopportune moment and tried to cross
before the Plaintiff moved past the intersection.
The Plaintiff
applied the brakes but still collided with the Defendant’s
motor vehicle on the left had side.
[10]In
analysing the evidence of the Plaintiff, the following left an
impression on the Court:
10.1The Plaintiff’s
evidence is that he is always cautious when he drives with his seven
(7) year old son. One wonders then
what the child was doing in the
front passenger seat.
10.2The Plaintiff
admitted that he was not aware of the presence of the other two (2)
drivers in lane one and two parallel to the
lane where he was
driving.
10.3The Plaintiff
informed the Court that he drove at a speed of about 50 to 55 km per
hour but, according to him, the Defendant’s
motor vehicle was
hit by his motor vehicle and pushed to a distance of about six (6)
metres away from the point impact.
APPLICATION
OF THE LAW
[11]The
Plaintiff bears the onus of proof in this case. The Court must
determine on the evidence before this Court if he has discharged
the
required onus on the balance of probabilities.
[12]It
is clear that there are two (2) contradictory versions before this
Court. No independent evidence has been led by the Plaintiff
to
corroborate his version. It is his word against the Defendant’s
word.
[13]It
is clear from the evidence of the Plaintiff and the photos indicating
the damage to the Plaintiff’s motor vehicle presented
before
this Court as evidence, that this was a serious collision. The
Plaintiff has failed to lead any independent evidence either
by way
of the police accident report and sketch plans thereto, which would
have assisted in proving his case. The Court is left
in the dark,
even with regard to issues which are often determined by the police
or other experts, like the determination of point
of impact. It is
trite that Courts are often assisted by such evidence where there are
mutually destructive versions. It is also
important that where there
are witnesses, that such witnesses are called to give evidence in
Court. Some kind of physical
evidence, like broken glass,
skid marks, brake marks found on the collision scene assist the
Plaintiff in proving his case. No
such evidence was adduced in this
trial. It is very unlikely in this case that there was no such
evidence, due to the magnitude
of the damages suffered by the
Plaintiff and the Defendant. The Plaintiff bears the onus of proof to
prove negligence on the part
of the Defendant. No explanation was
given by the Plaintiff for the failure to present such important
evidence.
[14]The
Defendant’s denies being the cause of the collision. The
Defendant’s evidence is that the Plaintiff failed to
keep a
proper lookout, was not driving at the reasonable speed in the
circumstances and he entered the Defendant’s path of
way, when
he should have stopped at the robot.
It
is an established duty of the driver to keep a proper lookout when
approaching an intersection, as stated in
Matindale v Woltraadt
1940 AD 235
at 242 to 245. The duty to keep a proper lookout means
awareness of what is happening in your immediate vicinity on the
entire
road, including the pavements. The standard is high on the
road user, in keeping a proper lookout, where there is an
intersection.
He must take all reasonable steps not to collide with
other motor vehicles coming from the other side of the road.
[15]Even
though the intersection is controlled by traffic lights and the
traffic lights are in your favour it does not relieve you
from a duty
to appreciate the reasonable possibility of, and to keep a proper
lookout for traffic which had entered the intersection
lawfully, but
may still be in the intersection. The driver is required to regulate
the speed and his entry so as not to endanger
the safety of such
traffic.
Santan Insurance Co. LTD v Gouws
1985 (2) SA 629
(A)
at 634.
[16]The
probabilities in this case indicate that the Defendant entered the
intersection lawfully as he went past the two (2) stationary
motor
vehicles at the intersection. He would not have been able to go past
the first two (2) lanes at all if the robots were closed
for him. The
Plaintiff admitted that he was not even aware of the presence of the
other motor vehicles in his own path of travel.
I take this to mean
that he was not keeping a proper lookout at all. He did not dispute
the presence of the other two (2) motor
vehicles in his line of
travel, save to say that he was not aware of them.
[17]The
Plaintiff was approaching an intersection of a busy road. I find that
the he should have reduced his speed, should have
been more aware of
the presence of other road users and should have been more cautious
of the presence of other road users.
[18]Counsel
for the Plaintiff submitted that since the Defendant withdrew his
counterclaim on the trial day, the Defendant was left
with a bare
denial plea only. The reason for the withdrawal of the counterclaim
was that the Defendant’s claim had been settled
by his
insurance company. I find that a bare denial is sufficient in this
case, more so as the withdrawn counterclaim fully substantiated
it.
The Plaintiff bears the onus of proof and not the Defendant. A bare
denial is a valid defence in law. I was referred to
Nyandeni v
Natal Motor industries LTD
1974 SA (2) 274 (D), where counsel
submitted that there must have been an amendment to the pleadings by
the Defendant. At the same
time, at the inception of the trial, there
was no application by the Plaintiff to strike off the Defendant’s
defence. The
counterclaim formed part of the pleadings up to the day
of the trial and nothing prejudiced the Plaintiff in this case. The
basis
of the Defendant’s defence has not changed at all and he
fully gave evidence in Court in line with what was in the withdrawn
counterclaim.
[19]Having
considered and evaluated all the evidence before this Court I find
that no negligence can be attributed to the Defendant.
The Plaintiff
has failed to discharge the onus placed upon him to prove that the
Defendant was the cause of the collision through
his negligent
driving.
[20]
I there made the following order:
(a)
The Plaintiff’s claim is dismissed with costs
MBATHA
J
Date
of hearing:25 June 2013
Date
of Judgment:28 June 2013
Counsel
for the Plaintiff:Adv G.H Thomas
Instructed
by:Peacock, Liebengerg & Dickinson Inc.
4 Pastoll Road
Pinetown
C/O Messenger King
Suite 360, 3
rd
Floor
Mansion House
12 Field Street
DURBAN
Counsel
for the Defendant:Mr L Ngcwabe
Instructed
by:Lulu Ngcwabe & Associates
Suite 540, 5
th
Floor
102 Field Street
DURBAN