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2011
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[2011] ZAFSHC 26
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Enslin v Road Accident Fund (3563/09) [2011] ZAFSHC 26 (10 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3563/09
In
the matter between:-
D
J G ENSLIN
…...............................................................................
Plaintiff
versus
ROAD ACCIDENT FUND
….........................................................
Defendant
HEARD ON:
25 January 2011
DELIVERED ON:
10 February 2011
_______________________________________________________
MOCUMIE, J
[1] The plaintiff is Mr.
Daniel Jacobus Enslin, a 77 year old man who resides in Meyerton and
worked for Lindsay Saker Company (Ltd)
during the year 2006 and the
driver of the motor vehicle with registration number ABL269GP.
[2] The defendant is the
Road Accident Fund (“RAF”) a juristic person established
in terms of
section 52(1)
of the
Road Accident Fund Act No. 56 of
1996
with its principal office situated at Sanlam Centre, Cnr of
Pretorius- and Andries Streets, Pretoria, Gauteng.
[3] At the commencement
of the trial the plaintiff applied for a separation of issues in
terms of Rule 33(4) of the Superior Court
Rules. The defendant
opposed the application. As the defendant could show no inconvenience
it would suffer in the event that a
separation of issues was granted,
I made an order for a separation of the issues on the basis that this
Court will deal with the
merits for the days the case has been set
down for adjudication and the determination of the quantum at a later
stage.
[4] During the night of 8
September 2006, along the N1 High Way near Rooiwal between Kroonstad
and Koppies, a collision occurred
between an Audi driven by Mr Daniel
Jacobus Enslin (“
Enslin”
) and a
Scania truck/tractor and tanker combination driven by the insured
driver Mr C.W Clark (“
Clark”
).
[5] It is common cause
between the parties that the N1 is a tarred road stretching from
south to north and north to south with single
lanes in each direction
and a barrier line in the middle. It is also common cause that the
said road was dry, flat and unobstructed
by natural obstructions and
that the area at that time of the night was dark.
[6] Enslin testified that
on the day of the collision he was driving an Audi A3 from Bellville
in the Western Cape enroute to Meyerton
which is south to north on
the N1. He was working for Lindsay Saker Company then and had been
sent to exchange a car for another
in Bellville. The Audi that he was
driving was still new. When they left Bellville he checked the
headlights and these were working.
As a company policy he was
accompanied by a second driver. They left Bellville around 13h00. At
Ventersburg Free State) less than
100 kilometres from where the
collision occurred, they stopped to have something to eat and drink.
What is referred to as a
“convenience break.”
[7] Whilst driving along
the road the head lights of the Audi were on and he wore his safety
belt. There were several vehicles on
the road concerned approaching
from the opposite direction and those he had to overtake as the
traffic was a bit congested on that
Friday as it is usually on
Fridays on the N1. At some point he followed a truck for some time as
he could not overtake it safely
due to the reasonably high volume of
traffic at that time. He maintained a constant following distance of
one car’s length
behind the truck.
[8] Whilst in his lane
and waiting for a safe opportunity to overtake the truck in front of
him, he suddenly noticed reflecting
lights of a truck in the rear
view mirror of his car. This truck there and there collided with him
from the rear. He suffered a
concussion and only remembered being
removed from the scene by an ambulance to Parys Hospital. He
sustained injuries as a result
of the collision.
[9] He testified further
that the Monday after the Friday on which the collision occurred he
went to inspect the Audi. He found
that the Audi was damaged on its
rear end as depicted on a photo forming part of exhibit C, C36.
Exhibit C was handed in per agreement
between the parties. The photo
depicts that the impact was on the full rear of the vehicle with more
damage to the left causing
the roof to collapse.
[10] During
cross-examination he stuck to his version; did not contradict himself
and was consistent. He denied that because of
the long trip from
Bellville he was tired at the time of the collision as it was
suggested to him. He denied that his vehicle spun
across the middle
or centre line and landed in front of the truck causing the truck to
collide with it.
[11] Clark testified and
gave a completely different version to that of the plaintiff. He
testified that he was travelling on the
same road as the plaintiff
but from the opposite direction.i.e north to south from
VanderBijlpark enroute to Port Elizabeth. As
he neared the part of
the N1 under discussion he routinely reduced speed to engage a
conversion in the road by removing his foot
from the accelerator.
Although there was traffic on the road, he noticed the plaintiff’s
vehicle approaching him from the
front. Just a few metres from him,
whilst in its lane, he noticed that something in regard to the Audi
was wrong and it started
to spin in its lane and then cut across its
lane; over the traffic island into his lane.
[12] He testified further
that upon realising that a collision is going to occur he attempted
an emergency stop but the Audi spun
right in front of him and he hit
it with his right front part of the truck on its left side. The Audi
landed on the western side
of the road right across the truck and his
truck on the eastern side of the road on his lane.
[13] During
cross-examination the following emerged:
13.1 The Police Accident
Report, exhibit C-4-9 was completed after the police interviewed him
the following day. His version according
to the accident report
differs from his evidence-in-chief in material respects on the
following:
13.2.1 He indicated on
the accident report under “
Vehicle Manoeuvre/what driver was
doing”
that the Audi as travelling on a straight line not
spinning or at least swerving immediately prior to the collision.
13.2.2 He indicated on
the report that he struck the Audi on its full rear end with his
right front side yet in his evidence-in-
chief he said he hit the
Audi with his right front part on its left rear side.
13.2.3 The report did not
reflect a traffic island or that a traffic island was covered in
rumble strips as he testified in his
evidence-in-chief. Neither was
this put to Enslin who said the road had a centreline.
13.2.4 He testified that
the Audi landed next to the truck or as he later said in the truck’s
vicinity after the collision
and the point of impact was 14 metres
away contrary to the position he indicated to the police. He then
shifted between 40 and
60 metres and then vaguely in the vicinity.
13.2.5 He was at pains to
explain why the truck was on the eastern Engen 1 Stop garage situated
35 kilometres north of the point
of impact and 10 kilometres south of
the Kroon-Vaal toll Plaza in stead of facing the direction he was
going to originally, Kroonstad.
13.2.6 For the first time
during cross-examination he mentioned that the bulbar of the truck
was dismantled as a result of the collision
which was never put to
Enslin.
13.2.7 He could not
explain what cause of action he took as soon as he could see that
there was something wrong with the Audi as
he put it except having
reduced speed out of routine when he entered that part of the road.
[14] I could not find any
of the witnesses to be outright unreliable in their testimony despite
the contradictions and improbabilities
highlighted in Clark’s
evidence. Consequently there are two conflicting and irreconcilable
versions before me.
[15]
The proper approach to the resolution of factual disputes in a civil
case, is to be found in
N
ational
Employers' General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E)
at 440 D – H where
Eksteen AJP
stated:
“
It seems to me, with respect,
that in any civil case, as in any criminal case, the
onus
can ordinarily only be
discharged by adducing credible evidence to support the case of the
party on whom the
onus
rests. ..... that his
version is true and accurate and therefore acceptable.....”
See also
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et cie and Others
2003 (1) SA 11
(SCA) paras [5] – [7] at 14 – 15;
Dreyer
and Another NNO v AXZS Industries (Pty) Ltd
2006 (5) SA 548
(SCA).
[16] In my view the
plaintiff was a more reliable and credible witness. His evidence was
simple and not riddled with any improbabilities.
He stuck to his
version despite the rigorous cross-examination he was subjected to by
Advocate de Kock. On the other hand Clark’s
version was riddled
with improbabilities to the extent that it differed from that of the
plaintiff. It left many questions unanswered.
For instance if the
plaintiff spun on the wrong side of the road, how could other
vehicles, which he said were on the same road
following the
plaintiff, not have been involved in one way or another in the
collision; how could he not have avoided the collision
when there was
no vehicle next to him to enable him to swerve to the extreme left
side of the road which has grass only on the
sides without slopes or
hills as depicted in the accident report? How could the Audi have
been struck fully on its rear end if
it was spinning?
[17] Clark’s
evidence does not even tally with what he related to the police on
the first opportunity he got to relay his
version to them when he was
presumably in his sound and sober sense in the morning after the
collision. His evidence is made more
improbable by the lack of
corroboratory documents which would have shown the damage on the
truck and what preventative measures
he took to avoid the collision
as according to him this would have been recorded by his company’s
Satellites.
[18] In my view what
Clark tried to describe to this Court is inherently improbable. On a
conspectus of all the evidence, Clark’s
version is farfetched
and does not tally with the collision as depicted on the sketch plan
and related by Enslin.
[19] In assessing the
probabilities comprehensively and in retrospect the conclusion seem
inescapable that of the two versions before
this Court as to how the
collision occurred, the plaintiff’s is more probable. That
being so the plaintiff has succeeded
in discharging the onus on it.
It follows further that the claim must succeed. I accordingly find
that the collision was due to
the negligence of Mr. Clark in the
respects set out above and that the defendant is accordingly liable
to the plaintiff in the
amounts of damages as may be proved at a
later stage.
[20] In the circumstances
I make the following order:
ORDER:
1. The collision was
due to the negligence of the insured driver, Mr. Clark and the
defendant is therefore liable to the plaintiff
for the proved
damages.
2. Plaintiff is
entitled to its costs of this trial.
__________________
B.C. MOCUMIE, J
On behalf of the
plaintiff: Mr. P. Uys
Instructed by: Hill,
McHardy
& Herbst Ing
BLOEMFONTEIN
On behalf of the
defendant: Adv. D. De Kock
Instructed by: A.P
Ledwaba Inc. BLOEMFONTEIN
BCM/sp