About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 101
|
|
Mmekwa v Road Accident Fund (33275/09) [2012] ZAGPPHC 101 (13 June 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT – PRETORIA\
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 33275/09
DATE:13/06/2012
In
the matter between:
THABO
JONAS
MMEKWA
.......................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
..........................................................................................
DEFENDANT
JUDGEMENT
Date
of hearing: 19 February 2012
Date
of Judgement:June 2012
INTRODUCTION
[1]
On 3 June 2009, the Plaintiff, a self employed bricklayer, instituted
an action against the Road Accident Fund ("the Defendant")
as a juristic person created in terms of section 2 of the Road
Accident Fund Act 56 of 1996 ("the Act") whose object
is to
pay compensation in accordance with the provisions of the Act for
loss or damage caused by the negligent driving of motor
vehicles,
claiming damages for personal injuries sustained from a motor
collision that occurred on 31 August 2008 near a plot in
Roodeplaat
allegedly caused by the sole negligence of Jansen Van Vuuren (the
"insured driver").
[2]
The trial proceeded only on the issue of liability, after I have
ordered, in accordance with the request by the parties counsels,
that
the issue of liability and that of the extent of damages was to be
separated and the latter issue to stand over for later
determination.
[3]
In its Plea filed on 15 August 2009, save for admitting to the name
of the plaintiff and its own locus standi, the Defendant
denied any
knowledge of the accident, placing all the allegations in the
plaintiffs particulars of claim in issue by either denying
any
knowledge thereof or putting the plaintiff to the proof thereof. On 8
February 2012, a week before trial, the Defendant filed
a notice in
terms of Rule 28 amending its Plea, denying that the collision as
alleged by the Plaintiff occurred and claiming that
if it is to be
found that the collision occurred, then the Plaintiff was negligent
and the collision was caused by Plaintiffs sole
negligence
alternatively that such negligence contributed to the cause of the
collision.
[4]
In the pre-trial minute of the 13th February 2012, the Defendant
conceded that a collision occurred on 31 August 2008 as in
accordance
with the accident report in which the insured driver confirmed that
he was driving on Moloto Road in Roodeplaat when
he hit an object
that he later discovered to be a person. The Defendant also agreed
that Plaintiff was the pedestrian but still
put all the other issues
in dispute.
[5]
It was also common cause that the locale where the collision took
place the road is tarred with one lane carrying traffic on
each
opposite direction with a wide gravel side of the road that is
referred to by the Defendant's insured driver as 'the shoulder"
on either side of the tarred road. The accident happened during the
night at a very dark area with no lighting.
EVIDENCE
[6]
Each party had only one witness testifying, the Plaintiff and on
behalf of the defendant the insured driver was the only witness.
[7]
Plaintiffs testimony was that he is a single, self employed
bricklayer and stays at
Kameeldrift.
Since the accident he has not done any work, so effectively he is
unemployed. On Sunday 31 August 2008 at noon, he
went to a shop
nearby where he spent the day playing pool with his friends until
late at night. At approximately 21h00, he left
the shop with one of
his friends and together they walked back home on Moloto Road. The
friend left him behind when he stopped
to assist a certain lady they
encountered on the road, stuck in a car. He thereafter started
jogging to try and keep pace with
his friend and had also during that
time crossed the road from the right of the gravel side to the gravel
on the other side of
the
road,
proceeding northerly towards the direction of Pretoria from the
direction of Umhlanga. As he was passing plot no 47, he saw
his
friend disappearing near plot 41. He continued jogging on the gravel
side of the road and as he was passing near the gate of
plot 37 he
was hit by this vehicle. He confirmed that the tarred road is for the
motor vehicle traffic and the gravel side of the
road where he was 3
hit by the vehicle is used by pedestrians. Also that the lights of
the on-coming cars on the right hand side
were shining on him and
that at the time he was wearing sky blue pants and a striped cream
white shirt.
[8]
He further testified that he did not see the car that knocked him
down because he lost consciousness immediately. The driver
of the
vehicle, as he learnt later, stays in Plot 37 and is the one who
phoned the ambulance and the police. He was badly hit and
his
injuries were so serious that he stayed in hospital for 2 months and
3 days. In illustrating the point of impact where the
accident
occurred Plaintiff pointed at a photo I have marked as exhibit 1
which is photo no 3 on page 20 of the index of documents
submitted by
the parties. The photo shows a tarred road from the southerly
(Umhlanga) to the northerly direction (towards Pretoria)
with a wide
gravel side of the road ("shoulder"). Approaching the point
of impact as illustrated by the Plaintiff the
road is level and
straight and at approximately a distance of a metre or more from the
said point the single lane to the direction
of Pretoria becomes a
dual lane. He indicated a position of just about a metre and a half
away from the tarred road as where he
was hit by the car.
[9]
Under cross examination he denied the suggestion that the insured
driver could
have
been driving very slowly and stated that, that was inconsistent with
his injuries that were too severe. He also suggested that
for the
insured driver not to have seen him and to have been driving in that
speed on the side of the road used by pedestrians,
he must have been
drunk. He said he was flung to a tree and fell down on the grass away
from the gravel shoulder. The tall grass
is next to the wide gravel
shoulder. He denied a suggestion that he might be the one who was 4
drunk stating that the pool shop
did not sell liquor on Sundays. He
was questioned on the contents of a statement he made to his
attorneys in which he stated that
on the date of the accident he was
walking and from work, contrary to his testimony that he was running
and from the shop and he
pointed out that it was a Sunday and he
definitely was not from work and at the time when he was hit by the
car he was jogging.
The questioning did not take the matter further.
[10]
The insured driver testified that he lives on Moloto road where the
accident occurred and drives on that road everyday. On
that
particular night and time he was with his son in his Toyota Corsa
bakkie driving along Moloto road from the direction of Umhlanga
towards Pretoria, which is towards the northerly direction. He was
about 150 metres from his plot when he started reducing speed
and
suddenly hit something. He was totally not aware what it was, so he
immediately drove off the road and walked backwards where
he thought
he had hit the object but could not find anything. He then drove into
his property to get somebody with a torch and
came back to the area
again. They searched for nearly ten minutes without finding anything
until he saw, away from the gravel shoulder,
a person lying in the
long grass. The person was badly injured so he immediately phoned the
police and the ambulance. He decided
to have a proper look at the
injured person whilst he was being taken away in a stretcher and
smelt from him a strong smell of
alcohol. The person was wearing dark
blue suit pants and he could not make out what colour the shirt was
because it had a lot of
blood. He denied that he probably swayed off
the road and hit the Plaintiff on the gravel shoulder and also that
he might have
been drunk. His car had damages on the windscreen, left
hand side of the bumper, side mirror and bonnet. There were damages
also
on the panel. He alleged that the place visited by the Plaintiff
on the day is not a shop but a cafe that has a pool table on the
stoep (referring to a veranda) and a shebeen that sells liquor
everyday on the same premises.
[11]
Under cross examination his evidence was that before he reduced the
speed he was travelling at 80 km/h and had reduced it down
to 30km/h.
When the accident occurred his speed was between 70 and 80 km/h. He
explained that he was initially driving at 80 km/h
and then he put
his foot off the petrol paddle, the speed was then between 80 and 70
km/h and his headlights were on but he did
not see anything on the
road. He could only see the road in front of him where he was
heading. He confirmed that he only heard
a bang but did not see
anything and therefore could not comment on the clothes Plaintiff was
wearing at the time. He explained
that the Plaintiff landed on the
grass even though he was driving at a speed of between at 70 - 80km/h
probably because the gravel
shoulder is about 1 and a half metre to
the grass and the Plaintiff was lying 4 to 5 metres away from the
edge of the road. He
denied colliding with the Plaintiff on the
gravel and stated that he hit the Plaintiff whilst he was driving on
the tarmac. When
he was asked to indicate exactly where on the tarmac
he then said he could not say and admitted that it must have been on
the side
of the tarmac. He further stated that he was surprised that
it happened and only realised after it had happened that he must have
hit the Plaintiff on the side of the tarmac. He said he did not
explain this to his lawyers because he was asked only a day before
the trial to come and testify and his son who was with him in the car
at the time was not asked to come and testify. The Plaintiff
was
bleeding profusely from his head, upper torso as well as forehead and
his leg was broken.
NEGLIGENCE
[12]
The main issue that was in contention after the Plaintiff has
testified and at the beginning of the insured driver's evidence
was
the locus in quo. According to Plaintiffs evidence he was hit by the
insured car on the gravel side (shoulder) of the road
and near the
gate of plot 37, which was denied by the insured driver in his
evidence in chief. The contention was however resolved
by the insured
driver's evidence under cross examination when he conceded that the
collision must have happened on the gravel,
even though he initially
thought he collided with the Plaintiff on the tarred road. He
confirmed that he was surprised when he
realised after the accident
that it indeed happened on the side of the road. His concession makes
sense and gives credence to his
allegation that he was travelling at
a speed of approximately between 70 to 80 km/h when he collided with
the Plaintiff and explicable
that Plaintiff would then be thrown and
be found 2 and a half metres into the grass away from the gravel
shoulder. The alternative
that the insured driver was driving on the
tarred road at the time would have meant that the insured driver's
speed was way in
excess of 80 km/h, for Plaintiff to land at a
distance of 4 to 5 metres from the edge of the road. Insured driver's
surprise and
struggle to accept the turn out of events is
understandable if like he testified he did not see the Plaintiff.
Although his evidence
might have seemed to be a little wobbly under
cross examination, I do find him to be a credible witness and his
evidence reliable.
DETERMINATION
OF LIABILITY
[13]
The insured driver's concession that the collision occurred on the
gravel side of the road establishes a prima facie inference
of
negligence on his side that is normally explained as a rebuttable
presumption that the injury arose as a result of his negligence.
[14]
Although the onus of proving negligence still remains with the
Plaintiff, the establishment of prima facie inference of negligence
on the part of the insured driver places the evidential burden on the
defendant to adduce and tender rebuttal evidence which negates
the
prima-facie negligence. It becomes the case of res ipsa loquitur. The
question of the requisite evidence in rebuttal is more
enunciated in
Sardi and others v Standard and General Insurance Co Ltd
1977 (3) SA
776
(A) at 780 C-H. According to Cooper, Motor Law Principles of
Liability Volume 2, Juta 1987 page 99, for this doctrine to apply
there must be two basic requirements:-
[14.1]
the occurrence must be of such a kind which ordinarily does not occur
unless someone has been negligent, and
[14.2]
it must be due to a thing or means within the exclusive control of
the defendant.
[15]
The burden of disproof applies to the defendant until the end of the
case, placing
his
(the insured driver's) whole conduct under scrutiny. Therefore it
would not be discharged by proof that Plaintiff as the pedestrian
was
negligent. Such proof can 8 only be significant in determining the
extent of liability to be attributed to the defendant.
[16]
In establishing the negligence required to determine liability in
civil actions a simple test that involves the standard of
care and
skill that would be observed by a reasonable man applies, which also
depends on the atypical circumstances of each individual
case. See
Flanders v Trans Zambezi Express
2008 ZASCA 152.
In carrying out this
judicial analysis the following factors will be decisive in this
matter:
[16.1]
If the insured driver adhered to his ongoing obligation to keep a
proper lookout in all the circumstances.
[16.2]
If the insured driver kept a reasonable speed (within the range of
his vision) immediately before the collision.
[16.3]
the visibility of the pedestrian Plaintiff, was he in plain view of
the operators of motor vehicles proceeding on the road
thus wearing
light coloured clothing?
[16.4]
If the insured driver or Plaintiff each met the duty to anticipate a
reasonable apparent risk and take appropriate precautions?
[16.5]
The time of day at which the accident occurred, the location of the
collision, the speed involved?
[16.6]
Did alcohol, drugs or other types of impairment maybe play a role to
deprive either driver or pedestrian of the ability to
avoid the
collision.
[17]
The upshot of this inquiry, in order to exonerate the defendant
completely should therefore indicate that, after careful
consideration
of the whole evidence, the defendant could not have
avoided the accident even by exercise of reasonable care but that the
plaintiff
by his conduct, contributed in a material way to the
accident. Griesel AJA in Flanders paragraph 14 illustrates the
predicament
of a defendant in the circumstances of the insured driver
exceptionally well when he states that:
"It
has frequently been argued that a driver who collides with an
unobserved obstruction at night finds himself on the horns
of a
dilemma: if he had kept a proper look- out and been travelling at a
reasonable speed in the circumstances, he would have been
able to
pull up before the vehicles collided, since admittedly he could not
do so, he was either travelling too fast in the circumstances
or
failed to keep a proper look out.
[18]
In Manderson v Century Insurance Co Ltd
1951 (1) SA 533
(A) at 538,
Van den Heever JA indicated how the defendant may escape this dilemma
stating that:
'if
however, he travels along a frequented road upon which he should have
foreseen the likelihood of there being animals, pedestrians
or
stationary vehicles and he takes the risk of travelling through the
section of the road which he has not probed with his eyes,
at a speed
which does not permit of his drawing up before reaching any object
which suddenly appears within the range of his vision
and an accident
results, I have difficulty in seeing how as a matter of reasoning,
not law - he can escape from the dilemma. Of
course when other
factors, which such a person cannot reasonably have foreseen,
contribute towards the collision, other considerations
will enter
into the inquiry'.
[19]
The accident occurred at night and at a very dark place where there
are no lights and on a frequented road that insured driver
is
familiar with and drives on every day and more importantly, happened
on the side of the road that is used by pedestrians, off
the tarred
road. The insured driver submits that he had his head lights on and
he, notwithstanding, did not see anything when he
collided with the
Plaintiff and was surprised when he realised that he must have
collided with the Plaintiff and on the gravel
side of the road,
confirming his affirmation that he was totally unaware when the
events unfolded. So the question that arises
is whether was it
because of his own negligence that he did not see the Plaintiff and
therefore caught by surprise when the accident
happened.
[20]
Plaintiffs evidence was that he was wearing sky blue pants and a
cream white striped shirt at the time of the collision. The
insured
driver confirmed that the Plaintiff was wearing blue pants but could
not confirm if the shirt was indeed cream white with
stripes as he
only observed the Plaintiffs clothes after the collision and
Plaintiffs upper body and clothing was so full of blood
that it was
difficult to ascertain what colour it was. Plaintiff confirmed that
when he was given back his clothes at the hospital,
the shirt was
torn and full of bloodstains. It is therefore reasonable, if the
shirt was torn and full of blood after the collision
that the insured
driver was not able to ascertain its colour. I accordingly accept
Plaintiffs unchallenged and direct evidence
that on the night of the
collision he was wearing a white striped shirt, which would have made
him visible to other road users.
[21]
As a result, the prevailing circumstances at the time when the
collision took place, particularly the fact that it was at night
and
on the side of the road that is used by pedestrians, demanded of the
insured driver as a reasonable man to anticipate the possibility
of
there being a pedestrian and as a result thereof to take the
necessary reasonable steps to guard against the apparent risk.
The
first step under the circumstances was to, in time, reduce the speed
to a reasonable level that will enable him to brake or
stop before a
collision occurs if he is confronted with the anticipated risk and to
stop when he does encounter the danger. His
speed must allow him
enough opportunity to scan the area on his way of travel and within
his range of vision and to in due course
brake or stop.
[22]
The insured driver's evidence is that he was initially driving at a
speed of 80 km/h and had started reducing his speed by
removing his
foot on the paddle when he collided with the Plaintiff. So, even if
it is accepted that he in fact removed his foot
on the paddle, it
clearly did not have any significant consequence on the speed to
reduce it to a level that the situation demanded
at the time. This is
substantiated by his further evidence that he was in fact driving at
a speed of at least 70km/h when he collided
with Plaintiff. The speed
was obviously excessive for travelling on a dark and unlit area that
is used by pedestrians and consequently
12
did not allow him proper observation of what was in his vicinity and
way of travel to be able to stop or brake immediately if
confronted
by a situation within his range of vision that required him to do so.
See Road Accident Fund v Landman
2003 (1) SA 610
©.
[23]
The fact that his speed was indeed excessive is borne out by his
evidence that he did not see or observe the Plaintiff in his
vicinity
or path of travel and consequently could not avoid the collision. The
intensity of the impact and severity of the injuries
sustained by the
Plaintiff and the fact that he was thrown to a distance of at least
more than 1 and a half metre away (which is
the estimated width of
the gravel shoulder) to the grass also attests to the excessiveness
of the insured drivers speed at the
time and is inconsistent with a
slow speed that was dictated by the circumstances. He unquestionably
failed to take the necessary
precaution as necessitated by the
situation, accordingly failing to perform his duty to take due care
as a reasonable man. It is
as a result of this failure that he could
not avoid colliding with the Plaintiff.
[24]
He was also required to be on continuous alert in anticipation of a
possibility of coming upon a pedestrian on the side of
the road
keeping a proper look out all the time. In other words he should have
foreseen the likelihood of pedestrians on the road
and exercised the
necessary caution by being in constant look out for them, all the
time. Yet his testimony was that he was caught
by surprise when he
realised what has happened as he did not see anything and was not
aware of Plaintiff when he collided with
him, despite his headlights
being on and Plaintiff being visible. He therefore in breach of the
duty that he carried as a result
of 13 driving at night and on the
side of the road used by pedestrians, did not take the extra
precaution required to keep a proper
look out all the time. In Nogude
v Union and South West Africa Insurnace Co. Ltd
1975 (3) SA 685
(A)
at 668A -C the description ascribed to a proper look out was that;
"A
proper look out entails a continuous scanning of the road ahead, from
side to side, for obstructions or potential obstructions....
Driving
with virtually blinkers on (Rondalia Assurance Corporation of S.A.
Ltd v Gonya,
1973 (2) SA. 550
(A.D) at p554B) would be inconsistent
with the standard of the reasonable driver in the circumstances of
this case."
[25]
Accordingly, the insured driver's conduct and explanation of the
occurrence is inconsistent with the exercise of due care,
he
evidently failed to appreciate the potential risk and to take the
necessary precautions required of a reasonable person under
the
circumstances. My conclusion is that, had he slowed down and in
anticipation of the apparent risk and kept a proper look out,
the
collision would not have happened. See Manderson v Century Insurance
Co Ltd 195
1 (1) SA 533(A)
at 537H-538D.
[26]
The Defendant has consequently not discharged the onus of rebuttal as
per the established prima facie case of negligence. I
am in converse
satisfied that the plaintiff has established on a preponderance of
probability that the collision in question was
caused by the sole
negligence of the insured driver.
[27]
The Defendant's counsel submitted that it was probable the Plaintiff
was drunk at the time since the insured has alleged that
he smelt of
alcohol. No conduct that is outside his nature that could be
attributable to him possibly being drunk at the time has
been allegpd
by the defendant as could have been the cause or contribution to the
causation of the accident He was jogging on the
side of the road
where he was supposed to be and therefore carried the paramount right
and entitled to preference of its usage.
The principle was clearly
enunciated in Solomon and Another v Musset and Bright
(1926) AD 42
7
on p433 that:
"The
general rule under such circumstances is that persons using the road
upon their proper side have the paramount right and
are entitled to
preference, so that, in case of danger of a collision, it is the duty
of those on their wrong side to give way
first".
[28]
I accordingly find that the insured driver was the sole cause of the
collision and make the following order:
[28.1]
The Defendant is ordered to compensate Plaintiff for 100% of his
proven or agreed damages.
[28.2]
The Defendant is ordered to pay Plaintiffs costs to date.
N
KHUMALO
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
Appearing
for Plaintiff: Advocate Z O Mashigo
Instructed
by: Makgoka Sebei Inc, Johannesburg
Appearing
for Defendant: Advocate J P Nel
Instructed
by: Mothle Jooma Sabdia Inc, Pretoria