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2012
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[2012] ZAGPPHC 190
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Bosman obo Bosman and Another v Road Accident Fund (A746/2010) [2012] ZAGPPHC 190 (24 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
Number: A 746/2010
DATE:24/08/2012
In
the matter between:
D.
J. BOSMAN obo T. M.
BOSMAN
.........................................................................
1st
APPELLANT
T.
M. OOSTHUIZEN (formally)
BOSMAN
..................................................................
2nd
APPELLANT
and
ROAD
ACCIDENT
FUND
..........................................................................................
RESPONDENT
JUDGMENT
Delivered
on: 24 August 2012
POTTERILL
J,
1.The
appellant is appealing against the order of the Court a quo whereby
the appellant's action was dismissed and the plaintiff
ordered to pay
the costs.
2.
The appellant argued that the Court a quo erred in not finding that
the insured driver was 1% negligent thereby entitling the
passenger
of the motor cycle to claim against the respondent.
3.
It was common cause that on 1 August 2003 at approximately 20:30 at
the robot-controlled intersection of Louis Trichardt and
Henshall
Streets in Nelspruit where there was a collision between a motorcycle
and a minibus (taxi) hereinafter referred to as
the insured driver.
The driver of the motorcycle died on the scene and the appellant
(second plaintiff) was a passenger on the
motorcycle.
4.
The plaintiff called an eye-witness to the collision, Mr Meiring,
[hereinafter referred to as Meiring] an on duty traffic officer.
He
observed the motor-cyclist skipping two red robots whereupon the
witness proceeded to pursue the motorcyclist. In this pursuit
he
switched on his vehicle's blue lights and indicated to the cyclist to
stop. The driver of the motorcycle slowed down as if to
heed to
Meiring's instruction to stop, but then increased speed when the
robot turned green. Meiring thereupon also activated his
vehicle's
siren. At the next intersection the motorcyclist again went through
the robot that was red for him. The motorcyclist
was by then
travelling no less than 130 kilometres per hour. The motorcycle
crossed a pedestrian crossing that was 150 metres back
from the next
intersection where the collision between the insured driver and the
motorcyclist took place. At the intersection
where the collision
occurred the road the motorcyclist and Meiring were travelling in had
four lanes. Between the pedestrian traffic
and the intersection where
the collision took place the motorcyclist in a reckless manner almost
drove into the back of a Golf
vehicle that was travelling in the
middle of that road. A collision with the Golf vehicle was avoided by
the motorcyclist swerving
to the left. Meiring noticed that the
insured driver was stationary at the intersection. The road the
insured driver was travelling
in had two lanes of traffic in each
direction. The insured driver was in the left-hand lane and would
have crossed in front of
the motorcyclist. The insured driver pulled
off when the robot turned green for him and at that stage the
motorcyclist was 40 metres
from the intersection. When the insured
driver had crossed three-quarters into the intersection, the
motorcyclist in attempting
to skip the red light attempted to pass
the insured driver on the left and collided with the left front wheel
of the insured driver's
vehicle.
5.
The appellant also called the passenger of the motorcyclist but she
could not recall the accident and her evidence did not take
the
matter any further.
6.
The insured driver, Mr G Z Phiri had in the mean time passed away,
but the parties agreed that an affidavit be handed in and
the
appellant relied heavily on a certain portion of the affidavit as
support for their contention that the insured driver was
at least 1%
negligent. This portion reads as follows:
"As
I entered the intersection, a motorbike which was being chased by a
Police vehicle skipped the red robot I tried to avoid
a collision,
but unfortunately collided with the motorbike."
7.
The court a quo found that the motorcyclist recklessly and against a
red light entered the intersection at a speed of 140 kph.
The insured
driver pulled off when the green light was in his favour. It was
found that there was no evidence to indicate that
the insured driver
noticed the motorcycle or was negligent in any way. The court also
found that there was no evidence that there
were any exceptional
circumstances where more was expected from the insured driver. The
reasonable cautious driver would do no
more than the insured driver
did in the circumstances. The factual findings were substantiated in
law with inter alia reference
to Van Wezel v Johannesburg City
Council 1955(4) SATPD on p164F-H:
"....The
driver must take steps to avoid cars which he could reasonably be
expected to see. Failure to see every vehicle suddenly
and wrongly
emerging from a side street which is a stop street or which is in
effect temporarily an absolute stop street because
of the red light
of a robot, cannot be said to be negligence on the part of the driver
on a busy through street in all circumstances."
8.
In a nutshell the appellant's main contention is that the court a quo
erred in not finding that the insured driver must have
seen Meiring's
vehicle with the flashing lights and siren and therefore the insured
driver should not have entered the intersection
rendering the insured
driver at least 1% negligent in the causation of the collision. The
appellant argued that the traffic officer's
vehicle with flashing
lights and blaring siren in the dark constituted exceptional
circumstances and as such more was expected
from the insured driver.
The court should have found that the insured driver should not have
entered the intersection under these
exceptional circumstances. It
was also argued that the only inference to be drawn from the
affidavit of the insured driver was
that he saw the motorcycle and
therefore he should not have entered the intersection. The court a
quo erred in relying on the Von
Wezel-matter supra because the merits
differ from the matter at hand.
9.
The respondent argued that the court was correct in that the
plaintiff did not present evidence that the insured driver saw or
should have seen the motorcycle. On the facts before the court the
motorcycle must have been between the Golf and the insured driver
up
until the point where it swerved to avoid colliding with the rear of
the Golf. The lights and siren of Meiring's vehicle did
not prove
negligence on the part of the insured driver because these may have
been distractions hindering the driver in seeing
the motorcycle.
Furthermore observing Meiring's vehicle did not imply that the
insured driver saw the motorcycle.
10.
The case-law pertaining to entering a robot-controlled intersection
on green can be summarized as:
•
A
motorist entering on green has the duty to lookout for vehicles still
in the intersection, but there is no duty on such motorist
to look
out for motorists entering the intersection illegally;-Netherlands
Insurance Co of SA Ltd v Brummer 1978[4] SA 824 on 833E-F.
•
"A
motorist may assume that even though an approaching vehicle is
travelling fast that its driver will observe and obey the
red light
although this may involve a sudden and violent application of the
brakes." - Van der Walt v Gershater
1944 TPD 240
on p243. •
Only in exceptional circumstances where it would be obvious to any
reasonable person that the conduct of the oncoming
vehicle is
dangerous and with ordinary care he could have avoided an accident
would he then be considered negligent. [Van der Walt
v Gershater
1944
TPD 240
on p244].
11.
This matter thus only centres on whether there were exceptional
circumstances that would have alerted the reasonable person
that the
motorcycle would not obey the red traffic light. The court a quo was
correct in finding that the plaintiff did not prove
that the insured
driver did indeed see the motorcycle or was negligent in not heeding
the motorcycle. The mere fact that the insured
driver stated that he
tried to avoid a collision does not infer that he saw the motorcycle
before he entered the intersection.
It only infers that when he saw a
collision with the motorcycle coming he did take evasive action. It
must be remembered that the
motor cyclist tried to pass the insured
driver on the left.
The
fact that there was a vehicle with blue flashing lights and a siren
does not call for an inference that the insured driver must
have seen
the motorcycle; it may call for an inference that it should have seen
Mering's vehicle. There was however no evidence
that the insured
driver saw Meiring's vehicle. There was no evidence from which an
inference could be made that had he seen Meiring's
vehicle he was
negligent in entering the intersection when he did. There was no
evidence from which an inference could be made
that at the distance
Meiring's was from the intersection no reasonable person would have
entered the intersection and thereby the
accident with the motorcycle
would have been circumvented. There is no evidence to suggest that
causally the sighting of Meiring's
vehicle would have prevented the
collision with the motorcycle.
12.
I accordingly make the following order:
12.1
The appeal is dismissed with costs.
S.
Potterill
Judge
of the High Court
I
agree: I agree:
V.
V. Tlhapi
Judge
of the High Court
Matter
heard on: 08 August 2012
Delivered
on: 25 August 2012
Attorney
for the Appellant: JACQUES VAN WYK ATTORNEYS Hertzog Street 1121
Pretoria.
Tel:
012 332 5970
(Ref:
MNR VAN WYK/wr/JB6A)
Attorney
for the Respondent: MAPONYA INCORPORATED Pretoruis Street 950
Pretoria.
Tel:
012 342 0523
(Ref:
MRS B RANGATA/law/BR1680)