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[2012] ZAFSHC 198
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Road Accident Fund v Dlamini (A12/2012) [2012] ZAFSHC 198 (25 October 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No: A12/2012
In
the appeal of:
ROAD
ACCIDENT FUND
..........................................................
Appellant
(Defendant in court
a
quo
)
and
PAUL
DUMISANI DLAMINI
..................................................
Respondent
(Plaintiff in court
a
quo
)
CORAM:
RAMPAI, J
et
MOLOI, J
et
MOLEFE, AJ
_____________________________________________________
JUDGMENT BY:
MOLEFE, AJ
_____________________________________________________
HEARD ON
:
3 SEPTEMBER 2012
DELIVERED ON:
25 OCTOBER 2012
[1] This is an appeal
against the judgement and resultant order by a single judge in the
judgement delivered on 25 August 2011,
the court
a quo
found
that the accident was occasioned by the negligence of both the
appellant’s insured driver and the respondent. The court
a quo
apportioned the blame 80% to 20% in favour of the respondent. The
appeal is opposed.
[2] The accident occurred
at Warden, in the Free State on 12 July 2007. The scene of the
accident was approximated 10 kilometres
outside Warden, on the N3
national road between Villiers and Warden.
[3] The respondent
sustained bodily injuries in the accident and had sued the appellant
for damages arising from those injuries
in the sum of R2 340 562,30.
[4] The first question to
be decided by the court a quo was whether the driver of the insured
vehicle was causally negligent in
relation to the collision. The
second question was whether there was contributory negligence on the
part of the respondent. If
the third question which then arose was,
what the appropriate degree of the apportionment of the negligence
was.
[5] The undisputed facts
were that in the morning of 12 July 2007 and on the N3 national road
between Villiers and Warden, a collision
occurred between a Tata
Novus horse and trailer truck (“the truck”) bearing
registration numbers FWD453NW, driven by
Mr S F Madiba (“the
insured driver”) and a Toyota Hilux motor vehicle (“the
bakkie”) bearing registration
numbers VKY232GP, driven by Mr P
D Dlamini (“the respondent”). The bakkie collided with
the truck at the bakkie were
killed? The respondent sustained head
injuries and suffered amnesia as a result thereof. In terms of the
Road Accident Fund Act, No 56 of 1996
the appellant was at all
material times the insurer of the motor vehicle driven by the insured
driver.
[6] At the trial the
respondent called the insured driver as his only witness and
appellant did not call any witness. The insured
driver was therefore
the only witness in this case. The insured driver described the
accident as follows: On the morning of the
21 July 2007, he was the
driver of the truck, travelling from Delmas to Durban, carrying a
heavy load of coal. He was travelling
on the R101 road up to Warden
where entered the N3 highway and turned eastwards towards Durban. The
two roads were linked by an
on-ramp. He used his side mirrors to
check for oncoming traffic along the N3 road and noticed two motor
vehicles travelling along
the N3 road in the same direction as the
insured vehicle. He then decided to travel on the yellow line (the
emergency lane) to
allow the two vehicles to pass. He travelled for
about 30-40 meters on the emergency lane, before he felt the truck
jumping gear.
As this occurrence was unusual, he looked in his left
side mirror and noticed a canopy lying on the side of the road. He
stopped
the truck on the side of the road and went to investigate.
[7] He found that a white
bakkie had collided with the back of the truck, from the back, that
it had gone deep under the truck and
that was attached to the rear
end of the truck. All three passengers in the bakkie were dead but
the bakkie driver was still alive.
He testified that at the time the
collision occurred he was travelling at a slow speed of between 50-60
kilometres per hour as
he was negotiating a steep incline.
[8] When he entered the
N3 road he never saw the bakkie except the two vehicles he mentioned.
The trailer was very high and even
if he could have looked in his
rear view mirror, he would not have seen the bakkie if it was driving
too close to the back of the
truck. The truck weighed 30 tons and the
bakkie was a 1 ton bakkie and was very light. As a result the insured
driver did not feel
the impact of the collision and was only alerted
by the jumping gears that something was wrong.
[9] The court
a quo
,
on the question of the causal negligence of the driver of the insured
vehicle made the findings: that the onus of proving negligence
on a
balance of probabilities rested with the plaintiff (respondent). It
was clear that the insured driver did not keep a proper
look out and
that he entered the carriageways too close to the curve. A reasonable
man in his position would have travelled further
into the yellow line
before entering the carriageway. He should have made sure that he saw
a better part of the road behind him
before he attempted to enter the
carriageway. The truck was cumbersome and he was driving very slowly
on the incline, as such,
he should have been more cautions. The court
a quo
found that by the insured driver entering the
carriageway as he did he should have foreseen that his actions would
endanger other
road users and should therefore have been more
cautious. The court found that the insured driver was negligent in
entering the
carriage way as he did and failing to keep a proper look
out and his negligence was the cause of the accident.
[10] The court
a quo
also found that the respondent contributed to the negligence because
he failed to avoid the collision when he could have done so.
He
should have been travelling at a high speed and had little time to
avoid the collision by applying brakes. He should have seen
the truck
as it was broad day light and the truck was a cumbersome vehicle and
was red in colour.
[11] On the question of
apportionment of default, the court
a quo
found that the
respondent’s negligence was extensive and should be
commensurate. The respondent’s degree of negligence
was
assessed at 20% and the court
a quo
made an order apportioning
the blame/fault 80% to 20% in favour of the respondent.
[12] The applicant’s
counsel attached the decision of the court
a quo
on the
following grounds:
(a) The learned Judge
erred in finding that the insured driver must have protruded onto the
carriage way before the collision occurred,
while no such evidence
was presented to court;
That the learned Judge
erred in finding that the insured driver’s version that he
travelled inside the yellow line during
the impact was improbable,
especially having regard to the fact that immediately before the
accident the insured driver was travelling
inside the yellow line to
allow two motor vehicles travelling parallel to each other to pass;
That the learned judge
erred in drawing inferences of an expert nature from the photo 4 on
page 14 of exhibit “A”
while no reconstruction expert
testified or and no other expert evidence was presented on this
aspect;
That the learned judge
erred in not finding that the insured driver was travelling inside
the yellow line, as he testified, when
the plaintiff did not present
any evidence contradicting his version;
That the learned judge
erred in finding that the plaintiff must have been travelling along
the N3 immediately before the accident,
which finding the court only
based on the fact that the plaintiff has been travelling at a high
speed and that at such a speed
the plaintiff could not have been
travelling along the R101;
That the learned judge
erred in finding that the trailer of the truck was very high and the
insured driver would not have been
able to see the respondent as he
was too close behind the truck. He argued that it was a rear end
collision and that the insured
driver acted reasonably at all times.
[14] The appellant’s
counsel argued that the court
a quo
erred in finding that the
respondent must have been travelling along the N3, and attacked the
court
a quo
’s finding which was only based on the fact
that the respondent had been travelling at a high speed and at such
speed that
he could not have been travelling along the R101. It was
the appellant’s counsel’s submission that the court
a
quo
erred in finding that the insured driver’s version that
he travelled inside the yellow line during the impact was improbable.
His contention was that the insured driver’s version was not
disputed and that no evidence was presented to contradict his
version.
[15] The respondent’s
counsel agreed that it is a trite principle of our law that the
plaintiff (respondent) bears the onus
of proof in relation to the
issues of causative negligence on the part of the insured driver in
relation to the collision.
[16] Respondent’s
counsel referred us to
PROTEA ASSURANCE CO LTD v CASEY
1970 (2) SA 643
(AD) where it was held that a driver in control of a
cumbersome combination of vehicles of exceptional length and bulk and
who
proposes to enter the main road on which fast moving traffic may
reasonably be expected, must realise that his undertaking may be
hazardous to other users of the road. The duties imposed upon drivers
approaching an uncontrolled T-intersection were also explained
in
S
v BURGER
1979 (1) SA 777
(C) at 779A – G.
[17] The respondent’s
counsel submitted that it was common cause that the vehicle drove by
the insured driver was an extremely
cumbersome and heavy vehicle
comprising a horse and a trailer upon which two containers were
mounted. The insured driver was entering
the N3 from the lesser R101
which formed a junction with the N3 road. Accordingly, motorists
including the plaintiff proceeding
along the N3 would have had the
right of way. This was conceded by the insured driver in his evidence
where he stated that when
he entered the N3, two vehicles were
approaching in the same direction and he accordingly proceeded along
the left-hand-side of
the road on the yellow line to allow the
vehicles to pass.
[18] The respondent’s
counsel argued that the rule of the right of way was applicable in
this matter as the accident happened
at the intersection of the R101
road and the N3 highway. He contended that a reasonable motorist on a
ramp would have given a right
of way to motorists travelling on the
national road. The insured driver must have seen the respondent’s
motor vehicle because
it must have been on the N3 highway behind the
two motor vehicles which he saw. Counsel contended that the insured
driver did not
stop and did not keep a proper look out before
entering the N3 highway. He submitted that had he done so, he would
have seen the
respondent’s vehicle as he was on the N3 on the
way from Johannesburg and in broad daylight.
[19] I agree with the
respondent’s counsel that the insured driver, with a cumbersome
combination of vehicles should have
given the right of way to the
respondent who was already travelling on the national road. I do not
agree with the insured driver’s
version that he entered the N3
highway when it was safe to do so and that he moved to the emergency
lane when he saw the two vehicles.
The accident clearly occurred on
the N3 road and the insure driver entered the national highway. When
it was not safe and his action
of entering the N3 road without making
certain that it was safe to do so, and without giving the right of
way to motorists on the
national road could endanger other road
users. The insured driver should have been more cautions.
I therefore agree with
the court
a quo
that the insured driver’s negligence was
the cause of the accident.
[20] The second leg of
the appeal is the contributory negligence aspect. The findings of the
court
a quo
was that the plaintiff contributed to the
negligence as he failed to avoid the collision when he could have
done so. The plaintiff
must have been travelling at a very high speed
and had little time to stop the bakkie to avoid the collision. He
should have seen
the truck as the truck was a cumbersome red vehicle
and the accident was in broad day light.
[21] The appellant’s
submission was that the plaintiff’s negligence contributed more
to the collision than the insured
driver’s because the
plaintiff was travelling at an excessive speed, the insured driver’s
truck and the trailer were
visible and that the insured driver was
travelling at a speed of approximately 50 – 60 kilometres per
hour due to the steep
incline he was negotiations. The plaintiff had
ample space to overtake the insured driver.
[22] According to the
respondent’s counsel, it is highly probable that the respondent
must have been travelling at 120km/h
and the truck travelling at a
speed of 50-60km/h. It would have taken the respondent approximately
one second to perceive and react
to the danger posed by the insured
vehicle. He referred to
RODRIQUES v SA MUTUAL AND GENERAL
INSURANCE COMPANY
1981 (2) SA 270
(AD) wherein it was
accepted that ordinarily, the time allowed for a motorist to perceive
danger and react to it was one and half
second.
According to Cooper,
MOTOR LAW
, Vol
2, PP 434
and 441 a vehicle travelling at
60km/h will travel 16,7m per second. A vehicle travelling at 120km/h
will travel 33,3m per second.
At a speed of 120km/h it would take an
average, 133m to come to a stop assuming a braking co-efficiency of
0,5.
In this case, the
respondent had very little time to react.
[23] The respondent’s
counsel conceded that a degree of contributory negligence could be
attributed to the respondent in that
he collided with a large truck
in broad day light, but that the weight of the blame should however
be attributed to the insured
driver as he entered the road without
making sure that is was safe to do so.
[24] I have considered
the contention raised by the appellant’s counsel but I am not
persuaded by his submissions that the
plaintiff’s negligence
contributed more to the accident. I am persuaded by the respondent’s
counsel’s submission
that the respondent contributed to the
negligence which caused the collision. In my view the finding of the
court
a quo
was correct.
[25] In respect of the
apportionment of damages, the court
a quo
determined
apportionment of negligence to be 80% on the part of the appellant
and 20% on the part of the respondent.
[26] Counsel for the
respondent referred the appeal court to
EKSTEEN v GOTZE
1979 (2) SA 1141
(CDD) and to the
TRANSNET LTD t/a METRORAIL
AND ANOTHER v WITTER
[2008] ZASCA 95
;
2008 (6) SA 549
(SCA), wherein it was
held that an appeal court would interfere on apportionment of damages
only where it was shown that the trial
court failed to exercise its
discretion judicially, or had been influenced by wrong principles or
a misdirection on the facts or
had reached a decision which could not
reasonably have been made by a court properly directing itself to all
the relevant facts
and principles.
[27] In my view, the
apportionment by court
a quo
cannot be faulted and the appeal
has to fail on that ground too.
[28] Accordingly, the
following order is made:
28.1 The appeal is
dismissed.
28.2 The appellant is
directed to pay the costs of the appeal.
________________
D. S. MOLEFE, AJ
I
concur.
_______________
M. H. RAMPAI, J
I
concur.
______________
K. J. MOLOI, J
On behalf of the
appellant: Adv. M. Steenkamp
Instructed
by:
Webbers
Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. P A Corbett
Instructed
by:
Matsepes
Inc
BLOEMFONTEIN
/eb