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2012
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[2012] ZAFSHC 75
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Masiteng v Road Accident Fund (2415/2010) [2012] ZAFSHC 75 (20 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2415/2010
In
the matter between:
OUPA APRIL MASITENG
…........................................................
Plaintiff
and
ROAD ACCIDENT FUND
…....................................................
Defendant
_____________________________________________________
JUDGEMENT:
RAMPAI AJP
HEARD ON:
1
FEBRUARY 2012
_____________________________________________________
DELIVERED ON:
20 APRIL 2012
_____________________________________________________
[1] The matter came to
court by way of action proceedings. The plaintiff sued the defendant
for payment of the amount of R722 411,70
and ancillary relief. The
action was defended.
[2] The evidence showed
that certain facts were undisputed, notwithstanding denials as
contained in the pleadings. The plaintiff
was at Frankfort on 19
March 2008. He spent the evening out visiting his relative somewhere
at Namahadi where he also lived. From
his cousin’s, he walked
on foot back home at Ithoballe. He walked alone in a narrow
pedestrian passage bounded by a school
on the one side and a
stormwater ditch on another side. He was walking perpendicular to
Namahadi Street.
[3] At the end of the
passage, he reached the aforesaid street, turned left and continued
to walk upwards at a gradient. On that
occasion he was walking
between the front fence of the school on the left hand side and the
aforesaid tarred street on the right
hand side.
[4] It was also
undisputed that the defendant’s insured vehicle was a BMW sedan
with registration number BZZ415FS; that it
was driven by Mr K J
Matsaneng at Frankfort in the same neighbourhood during the
particular night; that such vehicle and the plaintiff
collided in the
aforesaid street at or about 22:30 and that the scene of the accident
was adjacent to a primary school called Thato-Mfundo.
[5] Prior to the accident
the sedan was travelling perpendicular to Namahadi street but from
the opposite side. It was moving on
a dirt street towards the school.
At the intersection of the dirt and tarred streets, it turned left.
Shortly after turning it
joined Namahadi street where the plaintiff
was walking.
[6] The area of impact
between the sedan and the pedestrian was on the stretch of the tarmac
demarcated by the dirt street at the
high end and the narrow
pedestrian passage at the low end. The critical issue in the case was
precisely where on that particular
portion of the street did the
collision occur?
[7] On the one hand Mr
Cilliers, counsel for the plaintiff, submitted that the area of
impact was down at the low end and on the
shoulders of the street
between the front fence of the school and the pedestrian passage
where the plaintiff had turned up the
street. But Mr Kanyane
differed. He submitted, on the one hand, that the area of impact was
on the other side of the tarmac up
at the high end and right on
driver’s correct path of travel. Therefore, I was called upon
to determine whether the point
of impact was up or down and whether
it was on or off the tarmac.
[8] Before I proceed to
analyse the evidence, I want to describe the vicinity around the
scene of the accident. The accident happened
in an urban area. The
scene was in Namahadi street at a spot adjacent to a primary school.
The street was apparently one of the
principal arteries of traffic in
the township called Namahadi at Frankfort. The street consisted of
one traffic lane in each direction.
The centre line which ordinarily
demarcates the roadway into two opposite traffic lanes was invisible
on the photographs. On each
side of the tarmac there was a concrete
pavement – vide 4 exhibit ‘a’. There were no street
lamps, traffic lights
or road signs in the vicinity.
[9] I now proceed to
examine the factual allegations to ascertain the true facts. The
version of the defendant was narrated by one
witness, namely: Mr K J
Matsaneng, the insured driver. His evidence was that the dirt street
joined the main street on a higher
plain, adjacent to the school
premises. He was driving on that street prior to the accident. He did
not stop at the intersection
to ascertain if it was safe to do so but
simply entered the main street and turned left. He immediately saw a
pedestrian on the
tarmac right in front of the sedan walking towards
the centre line. At most the pedestrian was about 5m ahead. He was
shocked.
He dimmed the headlamps and slightly applied the brakes. The
pedestrian suddenly turned back. The vehicle ran him down on the
tarmac.
[10] After the collision,
the sedan went out of control and crashed into an electricity pole
near the culvert. The concrete pole
in question was captured by a
camera – vide photograph 10, exhibit ‘a’.
[11] According to the
version of the driver, the pedestrian was walking towards the school
when he first noticed him. We also know
that the insured motor
vehicle was travelling towards the same school shortly before it
turned left at the intersection. From this,
it can be reasonably
deduced that the pedestrian and the vehicle came from the same
direction. The powerful high mast neighbourhood
lamps lit the area.
The headlamps of the vehicle were also on bright shortly before the
accident. The two powerful sources of illumination
made visibility
around the particular area very good.
[12] In those alleged
circumstances and assuming, in favour of the defendant, that the
proximate point of impact was in the vicinity
of the intersection, I
find myself unable to acquit the driver of negligence. In my
judgment, and on his own say-so, the driver
had been negligent. His
negligence was deeply anchored in his dismal failure to see the
pedestrian earlier than a reasonably careful
driver would in such
circumstances. Had the driver done so, he would have slowed down the
speed as he was nearing the intersection,
he would have stopped at
the intersection, he would have first ascertained whether it was safe
to join the main street before he
blindly turned as he did, he would
have realised that the pedestrian was entitled to proceed because he
reached the main street
first, he would have allowed him to walk
across and he would certainly have had sufficient time to avoid the
collision –
see
TOFFAR NO v SHIELD INSURANCE CO LTD
1980 (4) SA 654
(CPD).
[13] The version of the
plaintiff was narrated by two witnesses, namely Mr Oupa April
Masiteng, the plaintiff himself and Mr Sipho
Piet Moloi, the
plaintiff’s witness. The plaintiff’s version and the
defendant’s version were diametrically opposed.
According to
the plaintiff’s version, the proximate point of impact was on
the lower plain close to the point where the pedestrian
passage on
the side of the school linked up with the main street. There was
photographic evidence which showed that there was a
culvert, a curve
and a damaged concrete pole in the vicinity. The pole was one of many
which had been erected to support aerial
electrical cables in the
township in general and the main street in particular.
[14] The concrete pole
was in the vicinity of a curve – vide photo 6 exhibit ‘a’.
The photograph also showed that
such a pole was slightly diagonal to
the corner of the school fence where the victim turned out of the
pedestrian passage into
the precincts of the main street. If a
straight line was drawn from the corner across the main street, the
position of such pole
would be beyond such an imaginary line as one
drove down towards the curve from the direction of the dirt street up
the slope.
[15] During
cross-examination the defendant’s witness admitted that the
distance between the concrete pole near the culvert
and the car as
shown in photograph 4, exhibit ‘a’ was ± 140m. The
witness also conceded that it was fairly reasonable
to estimate that
the intersection where he turned the insured vehicle into the main
street could have been ± 100m from the
stationary car as
reflected in the photograph. Therefore, the pole and the intersection
were ± 240m apart.
[16] The defendant’s
witness also admitted that photographs 7, 8, 9 and 10 of exhibit ‘a’
were representative
of one and the same concrete pole as depicted on
photo 4 and 6 of exhibit ‘a’. From the group of those
four photographs,
it could be seen how extensive the damage to the
concrete pole was. It would appear that more damage was caused to the
lateral
aspect of the concrete pole fencing the main street that that
facing the dirt street. I am uncertain as to whether evidence was
canvassed about the estimated distance between the concrete pole and
the proximate point of impact according to the plaintiff’s
version. By the look of things, however, it is pertinently clear and
obvious that such distance was, a whole lot shorter by comparison
to
the estimated distance of 240m between the same concrete pole and the
proximate point of impact according to the defendant’s
version.
[17] From the version of
the defendant it seemed improbable firstly, that the insured vehicle
would have travelled a farther distance
of over 235m from the point
of the first impact with the pedestrian to the point of the second
impact with the pole. Secondly,
the extent of the physical damage to
the pole, just like the distance thereto, strongly militates against
the defendant’s
version that the point of first impact was so
remote from the point of the second impact.
[18] The aforesaid
probabilities tended to give credence to the pedestrian’s
contention that the collision was very close
to the passage; that the
insured vehicle was travelling very fast; that it unexpectedly
deviated from its correct traffic lane
far from the intersection;
that it moved across the centre line into the wrong traffic lane
primarily designed for the opposite
stream of traffic; that it left
the tarmac on the incorrect side of the road and that it struck him
down off the tarmac on the
cemented portion of the street where he
was walking.
[19] In our motor law,
there is no rigid general principle that a driver is negligent if he
drives, particularly at night, he drives
at such a speed that he
cannot effectively exercise proper control over a vehicle in motion
and, if needs be, to stop it within
the range of his vision.
Conversely, there is no inflexible general principle of driving that
driving at such speed that a driver
cannot so control and, if
practical exigencies dictate, safely stop the vehicle within his
restricted field of vision, cannot constitute
driving negligence –
UNION & SWA INSURANCE CO LTD v MARKUS
1981 (3) SA
1220
(AD).
[20] The insured driver
knew that the main street was a busy road. He had driven in that
street before. His brother lived at Phahameng.
Since that was the
case, it was not unreasonable to assume that the insured driver had
prior to the date of the accident, probably
driven in that street
many times to and from his brother’s. He had previously seen
pedestrians in the street at night especially
over the weekend. Given
the knowledge of the street and the danger posed by the pedestrians
in what was a major street in the township
concerned, a reasonable
driver would have been more careful and mindful to the hazards than
the insured driver. That he was careless
and perhaps reckless was
demonstrated by the way he joined the main street.
[21] The plaintiff’s
injury, the material damage to the pole and to the vehicle
objectively indicated that the vehicle was
travelling too fast
seconds before the disaster. He was negligent in driving at a high
speed in the prevailing circumstances. Such
negligence was the cause
of the collision. In the circumstances, I have come to the conclusion
that the defendant’s insured
driver was negligently driving the
insured vehicle and that the accident was occasioned by his exclusive
negligence.
[22] The contention that
the plaintiff was also negligent was not supported by any credible
and reliable evidence. Where he was
walking, parallel to the
trafficable portion of the street, seconds before the disaster, the
plaintiff was entitled to expect that
he was visible to any
reasonably careful motorist and that he allowed adequate safe berth
between himself and oncoming vehicles.
In my view the plaintiff was
not to blame for the accident. Even if he was somehow negligent,
which contention failed to persuade
me, such negligence did not
contribute to the actual causation of the accident.
[23] The crucial issue in
this secondary inquiry was what danger was reasonably foreseeable by
the pedestrian to justify the contention
that he could and should
have taken practical precautions to guard against it. The argument
was unsound.
[24] Accepting the
pedestrian’s version as substantially correct and assuming in
the driver’s favour, that there was
a fairly broad space
between the concrete portion or pavement and the school fence, the
fact remains that the pedestrian was not
walking on the same side of
the roadway as the insured vehicle; that he did not walk across but
along the trafficable tarmac; that
there he saw the oncoming vehicle
initially moving on its correct side of the roadway; that there were
no other road-users or dangerous
obstructions on the road between him
and the approaching vehicle; that there was no obvious reason why any
reasonable driver in
the position of the insured driver would have
wanted to move over to the wrong side of the roadway; that he
believed that he was
visible to the driver and that the driver would,
in those circumstances, respect his right to use that portion of the
road which
appeared to be reasonably safe relative to oncoming
motorists as well.
[25] The accident
happened because, contrary to all objectively reasonable human
expectations, the vehicle suddenly deviated from
its correct path of
travel, veered diagonally to the right across the tarmac, left the
roadway on the wrong side and ran the pedestrian
down on the
pavement. I hold the view, and it is a very firm view, that the
pedestrian did not act unreasonably by not deviating
from his
original course. His failure to take any practical evasive action did
not, on the proven facts, amount to negligent walking
which
materially contributed to the cause of the accident.
SENATOR
VERSEKERINGSMAATSKAPPY BPK v LAWRENCE
1982 (3) SA 136
(A).
[26] The defendant’s
counsel, Mr Kanyane endeavoured to extract, from the plaintiff’s
evidence, proof of negligence
on the part of the plaintiff. He argued
that in as much as having observed the driver’s dangerous
driving, he failed to run
away from the pavement out of the dangerous
course of the vehicle in order to give the driver a wide berth. The
answer to this
was that there was no reliable evidence led as to: How
broad the space between the pavement and the fence was; or how quick
the
pedestrian’s reflexes would allow him to react to such an
emergency or how close to the fence the vehicle went. It has to
be
borne in mind that the deviation was very sudden.
[27] Since no proper
foundation was laid, the conduct of the pedestrian could not be
properly assessed within proper factual context.
That being the case,
the suggested evasive course of action cannot be equated to
contributory negligence. To blame the pedestrian
for not avoiding a
clearly unforeseeable and sudden accident as was suggested, would be
to unrealistically impose too burdensome
an obligation on the
pedestrian. The defendant failed to discharge the onus that the
plaintiff did not keep a proper lookout or
that he could and should,
by taking any evasive step, have avoided the accident. The plaintiff
did not render himself guilty of
any negligence whatsoever by
choosing to remain on the pavement he used as a sidewalk.
[28] It is trite that the
onus rests on the plaintiff to prove that the accident was occasioned
by the negligence of the defendant’s
driver in the driving of
the insured vehicle. No onus rests on the defendant to show that the
insured driver had not being negligent.
Where the plaintiff proves
that the collision occurred on the driver’s wrong side of the
road, a legitimate inference and
not a presumption of negligence
arises against the driver. Once the plaintiff has done so, the driver
had to give an explanation
sufficient to dispel the drawing of such
an inference.
[29] The plaintiff and
his witness were credible and reliable witnesses. Notwithstanding
some discrepancies in his evidence, I accept
the plaintiff’s
version as a substantially true account of the circumstances of the
accident. On the contrary, the same cannot
be said about the
defendant’s version. The defendant’s witness was
unimpressive. His evidence was contradictory, inconsistent
and
improbable in certain material respects. I have no hesitation to
reject it as an incredible and unreliable account of what
happened.
Wherever his evidence differs from that of the plaintiff or his
witness, their must be preferred to his.
[30] There is one more
aspect on which I need to comment. There was a passenger in the
insured vehicle. The lady concerned was not
called on behalf of the
defendant to give evidence. The lady was seemingly available
according to the driver. Perhaps she might
have been in a position to
testify on the crucial issue in the matter concerning the point of
impact. There was simply no explanation
by the defendant as to why
the lady was not called.
[31] It has to be borne
in mind that she was, by the look of things, closely associated with
the driver. It seemed to me that neither
the plaintiff nor his
witness were aware of the lady. The defendant possessed adequate
resources to trace and interview witnesses
in order to prepare its
defence. In the circumstances I am persuaded that the probable reason
why the defendant did not call the
lady as a witness was that the
defendant feared that her evidence would expose facts unfavourable to
its case –
MUNSTER ESTATE (PTY) LTD v KILLARNEY HILLS
(PTY) LTD
1979 (1) SA 621
(AA).
[32] On the facts the
following findings were justified: the plaintiff was walking along
the street off the tarmac. To get to his
final destination, in other
words his home at Ithoballe, he had to cross the main street at some
point farther up the street. The
vicinity was illuminated by a high
mast aerial lamp. The insured vehicle was travelling in the same
street but in the opposite
direction. It was travelling at a high
speed in the circumstances where the driver knew, all too well, that
pedestrians often crossed
the busy main street to and from adjacent
neighbourhoods on either sides of such street. It then deviated from
its path of travel,
moved across the tarmac and overran the plaintiff
on the shoulders of the road. The insured driver did take effectively
adequate
steps avoid the accident. The driver could and should have
been able to avoid the accident since there were no other road-users
or obstacles on the road. He failed to keep a proper look-out and to
exercise effective control over the vehicle and thus caused
the
accident.
[33] Consequently the
plaintiff has showed, on a balance of probabilities, that the
defendant was 100% liable for the damages he
suffered as result of
the road accident which took place in Namahadi Street at Namahadi
Frankfort on 19 March 2008.
[34] The aforegoing
disposes of the issue of the merits. Now I turn to the issue of
quantum.
[35] The plaintiff was
born on 8 March 1964. He was a standard 5, in other words grade 7,
pupil when he dropped out of school. He
became a widower in 1992 when
his wife passed away. The couple had two children. He is the sole
breadwinner for his two dependant
minor children, as son 16 years old
and a daughter 12 years old. Since 2006 he worked as a garden
attendant until 19 March 2008,
being the date on which he was injured
in a road accident. His employer was a certain Mr Linde of Frankfort.
He never resumed work
after the accident. Since then he has not
gainfully worked. He has virtually no source of livelihood. He lost
one eye in a previous
accident. Prior to the accident, he did not
take part in any form of sporting activity. He has a sedentary
lifestyle – vide
orthopaedic assessment report per Dr P
Engelbrecht.
[36] From the scene of
the accident the plaintiff was taken to Mafube Hospital at Frankfort.
On 20 March 2008 he was rushed to Boitumelo
Hospital at Kroonstad
where he was admitted. His fractured left femur was immobilised by
means of internal fixation. The fixatives,
a metallic plate, pins and
screws, were inserted. The fractured right tibia was immobilised by
means of external fixation. The
leg was encased in a plaster of
paris. (vide clinical record – Mafube Hospital and orthopaedic
report – Dr P Engelbrecht.
[37] Five days after the
accident, on 24 March 2008, the plaintiff was retransferred to Mafube
Hospital. He was further hospitalised
for bedrest. He was discharged
from the hospital on 18 June 2008. In all he was hospitalised for a
total period of sixty days –
(vide clinical records and medical
report – Dr S Bayizitanda).
[38] The injured
plaintiff was seen, examined and assessed by a few professionals or
experts. He consulted the following experts:
Ms L Delport –
occupational assessment report;
Dr P Engelbrecht –
orthopaedic assessment report;
Mr G W Jacobson –
actuarial assessment report;
Ms S van Jaarsveld –
psychological assessment report.
[39] None of these
experts gave evidence for and on behalf of the plaintiff, concerning
the nature, extent and effects of the injuries
he sustained. They
gave no evidence because their expert findings and opinions
pertaining to the plaintiff’s injuries were,
on behalf of the
defendant, substantially admitted. The only component of the quantum
which was in dispute was the plaintiff’s
alleged past medical
expenses of R8 640,00.
[40] In his opening
address Mr Cilliers abandoned such segment of the plaintiff’s
claim. Mr Kanyane confirmed that, by agreement
between the parties,
the contents of the aforesaid assessment reports were admitted. In
view of the agreement and abandonment,
oral evidence by the experts
was effectively dispensed with.
[41] The wholesale
agreement reached by the parties rendered it unnecessary for me to
critically comment any further on the issue
of quantum. The mutual
agreement concerned three segments only of the claim, viz: future
loss of earnings, future medical expenditure
and general damages.
[42] The plaintiff has
emerged as the victorious party. The costs of the action ordinarily
have to follow success. That general
rules applies to the instant
matter. Such party and party costs includes the reasonable qualifying
fees of the plaintiff’s
expert witnesses for their necessary
preparations and reservations, as well as counsel’s fees on the
scale senior/ junior
advocates.
[43] Accordingly, I make
the following order:
43.1 The plaintiff claim
succeeds 100% on the merits.
43.2 The defendant shall
pay the composite sum of R722 412 to the plaintiff by way of
electronic transfer into the trust account
of Blignaut and Wessels
held at First National Bank, branch number 230833 account nr
53550366696, reference number M1333.
43.3 The aforesaid
capital sum consists of R447 412 and R275 000 in respect of future
loss of income and composite general damages.
43.4 The defendant shall
furnish the plaintiff with written undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
as amended to
cover his future medical expenses including the costs of his future
accommodation and nursing for treatment or provision
to him of
medical services or provision to him of goods as a result of the
injuries he sustained in a road accident at Frankfort
on 19 March
2008 after such costs have been incurred and proof thereof produced
to the defendant.
43.5 The defendant shall
pay the plaintiff’s necessary disbursements including
reasonable qualifying fees of the following
expert witnesses of the
plaintiff for their necessary preparations and reservations:
(a) Dr P Engelbrecht, an
orthopaedic surgeon;
(b) Ms L Delport, a
physiotherapist;
(c) Ms S van Jaarsveld,
an industrial psychologist;
(d) Mr A W Jacobson, an
actuary.
43.6 The defendant shall
pay interest on the capital amounts specified in paragraph 35.3 at a
rate of 15% per annum from the 15
th
day of this order.
43.7 The costs of this
action shall be borne and paid by the defendant on the scale as
between party and party and shall include
counsel’s fee on the
scale of a senior-junior advocate.
________________
M.H. RAMPAI, AJP
On behalf of plaintiff:
Adv. H. J. Cilliers
Instructed by:
Naudes
BLOEMFONTEIN
On behalf of defendant:
Adv. J T Kanyane
Instructed by:
Mpobole & Ismail
BLOEMFONTEIN
/eb