About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 78
|
|
Lekhehle v Road Accident Fund (6765/08) [2011] ZAFSHC 78 (26 May 2011)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 6765/08
In
the appeal between:-
LYDIA MAPHOKA
LEKHEHLE
…......................................................
Appellant
and
ROAD ACCIDENT FUND
…...........................................................
Respondent
HEARD ON:
10 MAY 2011
DELIVERED ON:
26 MAY 2011
MOLOI,
J
[1] This is a claim for
compensation for injuries sustained in a motor collision in terms of
the
Road Accident Fund Act No 56 of 1996
. By agreement the court
ordered the separation of the merits from quantum. This judgment is
consequently on the question of merits
alone.
[2] The plaintiff was a
passenger conveyed for reward in a Mazda motor vehicle with
registration letters and numbers CLY 183 FS
(hereinafter referred to
as “the Mazda”). The Mazda was driving behind another
motor vehicle, a Nissan combi with registration
letters and numbers
BCT 752 FS, also a taxi, (hereinafter referred to as “the
Nissan”). The two motor vehicles were
driving from south to
north in Moshoeshoe Road, Mangaung, Bloemfontein, i.e. from the
township in the direction of the city of
Bloemfontein.
The Mazda
was following the Nissan.
[3] The plaintiff
testified that at a point near the crossing with Lehasa Street (also
known as Elias’ corner) a potential
passenger appeared in
Lehasa Street and waived for the Nissan to stop. She (the plaintiff)
was a front seat passenger sitting next
to the driver in the Mazda
vehicle. The Mazda had driven behind the Nissan from a certain curve
estimated at between 100 and 120m
before the point of impact and both
vehicles were moving slowly at approximately 60km/h. When the
potential passenger appeared
the plaintiff looked in his direction
for approximately two (2) seconds before she heard a bang as
collision occurred between the
Mazda and the Nissan. This happened
because the Nissan suddenly stopped in the middle of the left lane
where both motor vehicles
were moving without indicating the
intention to stop nor go out of the roadway onto the pavement where
it was supposed to stop
in order to load a passenger. Moshoeshoe Road
is a dual carriage way having two lanes on each side separated by a
centre island
in the middle. There was no obstruction in the right
hand lane nor were there any moving vehicles in that lane. As a
result of
the collision she sustained injuries, got a fright and held
on to the dash board.
[4] The driver of the
Mazda did not intend to overtake the Nissan but could easily have
passed the Nissan on the right was there
a timeous indication given
the Nissan would stop. The Mazda was moving approximately 3½
to 4m behind the Nissan. She attributed
the collision squarely to the
sudden stop by the Nissan and insisted the driver of the Mazda was
not to blame for the collision.
She persisted that had the Nissan
moved onto the pavement to pick up the passenger or have given
timeous and adequate warning it
would stop, the Mazda would have
taken evasive action not to collide with it. She did not see the
Nissan reversing.
[5] Under
cross-examination she agreed that the Mazda was following the Nissan
about a car-length behind and persisted she did not
see the Nissan
reversing because she momentarily looked at the intending passenger
to her left. She would not respond to what the
driver of the Mazda
stated in his affidavit, namely that he was following the Nissan
approximately 100m behind driving at the speed
of approximately
between 40 and 50 km/h; that at crossing with Lehasa Street (he
called it Elias Street as Elias lives at that
corner) he saw an
intending passenger coming from the right and that the Nissan
suddenly stopped and immediately reversed to pick
up the passenger;
that he immediately stopped but the Nissan collided with the
stationary Mazda while reversing. She, however,
insisted the Nissan
caused a dangerous situation by stopping in the middle of the lane.
That concluded the plaintiff’s evidence
as the driver of the
Mazda was not called to give evidence.
[6] The defendant led the
evidence of Thuso Joseph Mosoka, the driver of the Nissan. He stated
that on 12 May 2005 he was driving
a taxi, a Nissan referred to
above. That there was no other traffic on the bright morning save for
the Mazda vehicle that was coming
from behind him. He had three
passengers in his taxi. That he saw a potential passenger approaching
Moshoeshoe Road from his left
in Lehasa Street. He switched on his
indicators to show he was deviating from the lane to go onto the
pavement to pick up the passenger
and applied the brakes. As he was
moving towards the pavement he heard a bang from behind. When he
stopped and went to see what
happened, he found that the Mazda that
was coming from behind had collided with him. He asked the driver of
the Mazda what happened
and the driver simply wanted to telephone his
employer, the owner of the Mazda. He called the police and on their
arrival they
attended the scene. He had hooted his Nissan for the
passenger to indicate if he wanted a ride and wanted to get onto the
pavement
to pick the passenger up when the collision occurred. The
Mazda had been moving approximately 30 to 35m behind him from where
he
first saw it at the curve before the point of impact.
[7] Under
cross-examination he accepted the accident report and plan and
confirmed that it showed the vehicle having collided inside
the left
lane but insisted he wanted to get onto the pavement and that part of
his vehicle was already on the pavement when the
collision occurred
as “it was not safe to stop in the lane”. He, however,
could not say which part of the Nissan was
already on the pavement.
He knew it was not safe to stop in the driving lane. When he hooted
he was two to three car lengths from
Lehasa street. He had seen the
Mazda behind him in his side mirror but never used the rear-view
mirror inside the Nissan. When
the collision occurred he was looking
at the passenger and not the Mazda and was moving at less than
10km/h. He saw the Mazda till
it collided with him. He knew his
flicker-lights were functioning because he saw the light on the dash
board and he knew that his
brake lights were also functioning
properly. That concluded the defendant’s case.
[8] In argument it was
contended on behalf of the plaintiff that the driver of the Nissan
was contributorily negligent in that he
failed to look in the
rear-view mirror, did not take sufficient precautionary measures to
avoid the collision by failing to give
indication of his intention to
move out of the roadway timeously and that he actually suddenly
stopped in the middle of the lane,
and thereby created a dangerous
situation.
On behalf of the
defendant it was argued that the driver of the Nissan had done
everything expected of him and could not be said
to have caused the
collision: he indicated to get off the lane onto the pavement, he
reduced speed and applied the brakes of the
vehicle he was driving
and he had started to move out of the roadway onto the pavement when
the collision occurred. In this regard
the court was referred to
MOOSA v HESSBERG
1979(3) SA 432 (T) at 436 E-G where
the following was stated:
“
Where a
motorist sees or ought to see the lights of an oncoming vehicle from
behind in his rear view mirror, I am of opinion that
it is not
expected of that driver to anticipate that the vehicle approaching
from the rear will collide with him. He is entitled
to assume
reasonableness, i.e. that the driver from the rear will observe the
vehicle in front, will regulate his speed accordingly
or overtake him
on the right hand side at a proper opportunity. The driver of the
front vehicle need not anticipate that the driver
from the rear will
collide with him and he is therefore not obliged to drive off the
tarmac surface of the road at right and so
permit the vehicle from
the rear to overtake him.”
The
court was also referred to
VERWEY v MALHERBE
1959 (1) SA 884
(C)
at 888 G-H and
STEYN,
E v SANTAM VERSEKERINGSMAATSKAPPY BEPERK
1979(2)
PH J73on 167
and
NAIDOO v
DURBAN CORPORATION AND ANOTHER
1961 (2) SA 775
(N)
at
778 C-D
where Milne, J stated:
“
But I hold
the view that a driver who gives the appropriate signal several
seconds ahead of his actual movement to the right is
entitled, in the
absence of special circumstances, to assume that his signal has been
observed and, accordingly, that it will be
heeded.
[9] In determining
whether or not the driver of the Nissan was negligent, the court must
consider all the evidence on record and
make a determination
accordingly. The starting point, however, is what rules of road
should be borne in mind in making that determination
in the
circumstances of each case. In this case the driver of the Nissan
intended to stop in order to load a passenger he suddenly
noticed
emerging from a side street. In
Delictual Liability in Motor
Law
by W. E. Cooper, 1996 edition the following is stated on
p. 162:
“
The driver
of a vehicle on a public road who intends to stop his vehicle or
suddenly reduce its speed must give conspicuous signal
in the manner
prescribed (in Reg. 7) of his intention, visible to any person
approaching him, and of a duration sufficient to warn
the person of
his intention.
Section
93
(of the
National Road Traffic Act No 93 of 1996
)
accords
with the principle that a driver who intends stopping or decelerating
should do so at an opportune moment (i.e. with due
regard to other
traffic) after giving a visible, adequate and timeous signal.”
[10] Bearing the above in
mind the evidence showed that the potential passenger appeared
suddenly from a side street, Lehasa street,
the driver of the Nissan
wanted to pick the potential passenger up and immediately switched on
his indicators, took his foot off
the accelerator and applied his
brakes. According to him he started to move towards the pavement but
before he could do so, he
heard the bang from behind. He said he had
not stopped when the collision occurred. Bearing in mind the
inaccurate and conflicting
estimates of the following distance of the
vehicles, the Mazda (according to the plaintiff was 3½ to 4m
or a car-length
behind, 30-35m according to Mosoka, the driver of the
Nissan and 50m according to the driver of the Mazda, it is difficult
to determine
whether the signals given by the Nissan were visible,
adequate and timeous as the rule of the road requires. This is
important
because
“
A driver
who, without giving following traffic adequate or timeous warning,
stops in the path of following traffic when it is in
opportune to do
so or reduces his speed in such a manner and to such an extent that
his vehicle causes an obstruction to other
traffic, is negligent.”
Cooper,
supra
,
p163. The question is which following distance should the court
accept and base its finding on.
[11] A
driver of a motor vehicle has a duty towards following motor vehicle
to refrain from turning until the opportune moment arrives.
In
KEUNING, NO v LONDON AND SCOTTISH ASSURANCE CORPORATION
LTD
1963 (3) SA 609
(D&C)
at 612 E-F
the following was stated:
“
It seems to
me that any change of direction or reduction of the speed of a
vehicle in traffic must disturb the regularity of the
flow of that
traffic, and, considering first the situation of the leading vehicle,
it is consequently essential that the driver
of it intending so to
change his direction or to reduce his speed should ensure that the
condition of traffic allows this; he must
select an opportune moment
for doing so and carry out his manoeuvre in a reasonable manner. A
signal of his intention is an indication
therefore, that he will
carry it out only at an opportune moment and in a reasonable manner.”
See
also
REX
v RAHMAN
1950
(2) SA 44
(N)
where
it was stated that
“
A driver,
who is about to alter direction is normally bound not only to give
the appropriate signal but also to satisfy himself
that others whom
his change of direction might endanger have observed it.”
Also
R
v MILLER
1957 (3) SA 44
(T).
[12] The evidence of the
driver of the Nissan is that throughout the travel on that day he saw
the Mazda behind him through his
side mirror and never looked into
his rear-view mirror inside his vehicle. A rear-view mirror inside
the vehicle gives the full
view of what is happening behind you
whereas a side mirror can only give you better view of what is
happening on the side you are
looking i.e. left or right. Based on
that, he estimated the following distance of the Mazda as between 30
and 35m. He suddenly
saw a prospective passenger emerging from Lehasa
street, a side road crossing Moshoeshoe Road. He hooted and
immediately got a
signal from the intending passenger that he would
like to board his vehicle (the Nissan). He switched on his indicator,
lifted
his foot from the accelerator, applied his brakes and started
moving towards his left towards the pavement in order to load the
passenger. This was a crucial stage at which he had an obligation to
ensure he was doing so safely. At no stage did he say he looked
again
in his side mirror or even the rear-view mirror inside his vehicle to
ascertain the whereabouts of the Mazda that had been
following him
for the last 100m. The next thing he heard was a bang. He admitted
that at that crucial point he was not looking
at the Mazda but at the
prospective passenger. Logically, having decided to pick up the
passenger, he was expected to once more
satisfy himself of the safety
of doing so by checking the Mazda that was following him by looking
into his rear-view mirror. Had
he done so, he would have seen the
Mazda close to banging into his Nissan not just hearing a bang. Had
he looked into his rear-view
mirror he would have noticed how
perilously close to his Nissan the Mazda had come and would have had
an opportunity to take evasive
action by moving forward. After all,
he knew there was a Mazda on his trail.
In
BUTT AND ANOTHER
v VAN DER KAMP
1982(3) 819 AD at 825 E-F Diemont AJA stated
as follows:
“
There is
clearly a general duty on a driver to keep a proper look-out which
includes the obligation to look in his rear-vision mirror
from time
to time. The frequency with which he should do so depends naturally
on the circumstances of each case”.
[13] In my view the
circumstances in this matter called for another look in his rear-view
mirror during this process of making arrangements
to pick up the
intending passenger. There is no question about the negligence of the
driver of the Mazda according to the evidence
of the plaintiff much
as she insisted that he did nothing wrong. In my view his negligence
accounts for 90% causation of the collision
as against 10% of the
negligence of the driver of the Nissan.
____________
K.J. MOLOI, J
On
behalf of the Plaintiff: Mr. P H Henning
Mcintyre and Van der Post
12
Barnes Street
Westdene
BLOEMFONTEIN
9300
On
behalf of the Defendant: Mr. J Kgokong
Matsepes
Attorneys
26/28
Aliwal Street
BLOEMFONTEIN
9300
/db