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[2011] ZAFSHC 129
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Dlamini v Road Accident Fund (302/2010) [2011] ZAFSHC 129 (25 August 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : 302/2010
In
the matter between:
PAUL
DUMISANI DLAMINI
…..........................................................
Plaintiff
and
ROAD ACCIDENT FUND
….........................................................
Defendant
HEARD
ON:
24 MAY 2011
_____________________________________________________
DELIVERED ON:
25
AUGUST 2011
KUBUSHI, AJ
INTRODUCTION
[1] The plaintiff is
suing the Road Accident Fund for damages for personal bodily injuries
which he sustained in a motor vehicle
collision. As a result of the
said collision he sustained serious injuries and claimed damages in
the amount R2 340 562,30 being
for general damages, past and future
medical costs and past and future loss of earnings.
[2] The defendant denied
the allegations of negligence and alleged that the collision was
caused by the sole negligence of the plaintiff.
In the alternative
the defendant pleaded contributory negligence on the part of the
plaintiff in the event the court made a finding
that the insured
driver was the proximate cause of or contributed to the negligence in
the accident.
[3] At the commencement
of the hearing and in accordance with the agreement of the parties
and in terms of Rule 33(4) of the Uniform
Rules of Court I granted an
order separating the merits and the quantum and ordered that the
trial proceed on the merits only.
[4] The plaintiff’s
counsel handed in a bundle of documents which was admitted in the
record as exhibit “A” and
a copy of a photo album
admitted in the record as exhibit “B”. The following
documents formed part of Exhibit “A”:
the accident report
from the Warden Police Station dated 12 July 2007; a motor accident
claim form completed by FP Logistics in
respect of a motor vehicle
with registration number FWD 354 NW; a motor accident insurance claim
form completed by Provantage (Pty)
Ltd in respect of motor vehicle
with registration number VKY 232 GP dated 16 July 2007; four
photographs showing the motor vehicles
after the accident all dated
12 July 2007; an unsigned statement which appears to be that of Mr
Madiba, the insured driver; a statement
(in Afrikaans and a
translation thereof in English) by sergeant Blanche Augustyn, the
police officer who attended the scene of
the accident. The documents
that were part of Exhibit “B” were the following: a
statement made and signed by inspector
Tseko Joseph Nzimande, the
police officer who took photographs of the scene of the collision; a
key to the photographs and plan;
a drawn plan of the collision scene;
eight copies of the photographs showing the motor vehicles after the
accident; a statement
by Mr Paul Dumisane Dlamini and a warning
statement; and a statement by Mr Shimane Frederick Madiba and a
warning statement. The
parties agreed that the exhibits were not to
be proved in evidence but either party could challenge the contents
thereof. The contents
of these exhibits were not challenged at the
trial.
[5] The plaintiff’s
counsel informed me at the beginning of the proceedings that the
plaintiff was suffering from amnesia
as a result of the injuries
sustained in the accident and that he will not be called to testify.
The insured driver was called
to testify on behalf of the plaintiff.
The defence did not call any witnesses and the insured driver was the
only witness in this
case.
FACTUAL BACKGROUND
[6] On the 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 number FWD 354 NW, driven by Mr S F Madiba (the
insured driver), and a Toyota
Hilux motor vehicle (the bakkie) with
registration number VKY 232 GP, driven by the plaintiff. The bakkie
collided with the truck
at the back. All three passengers in the
bakkie were killed. The plaintiff, sustained serious injuries to the
head and suffered
amnesia as a result thereof. The defendant was at
all material times the insurer of the motor vehicle driven by Mr S F
Madiba.
THE EVIDENCE
[7] The insured driver,
the only witness in the case, testified that in 2007 he was working
as a driver employed by FP Logistics
since 2002. He obtained his
driver’s licence in 1975. On the day of the collision, he was
travelling in a Tata Novus truck
with registration number FWD 354 NW,
from Delmas to Durban. He was carrying a heavy load of light coal. He
explained the truck
as a big motor vehicle consisting of one chases
with two containers thereon. He was travelling along the R101 route,
which was
from Delmas and he was to join the N3 highway on his way to
Durban. He entered the N3 using a slip road. His testimony was that
before he joined the highway he checked his mirrors for oncoming
traffic. He noticed two motor vehicles travelling on the highway
parallel to each other in the southerly direction i.e in the same
direction he was travelling. He then travelled inside the yellow
line
which was part of the slip road, towards the truck stop that was
further up the road to allow the motor vehicles to pass.
[8] At about 30 –
40 meters into the N3 and still travelling inside the yellow line, he
felt the truck jump gear. He changed
to the next gear and as this was
unusual he looked at his left side mirror and noticed a canopy lying
on the side of the road.
This appeared strange to him as he had not
seen this canopy when he passed the spot where the canopy was lying.
He looked at his
right side mirror and noticed a white object at the
back of the truck. He stopped the truck at the side of the road and
went to
investigate. At the back of the truck he found that a white
Toyota Hilux bakkie had collided with the truck. The bakkie had gone
deep under the truck and was attached to the rear end of the truck.
The passengers in the bakkie were already dead but the driver
was
still alive. According to the witness, at the time when the collision
occurred he was travelling at a very slow pace of between
50 –
60 km/h as he was negotiating a steep incline.
[9] Under cross
examination, he testified that there were no stop signs or any signs
at the intersection of the R101 and the N3
as it was a slip road. The
accident happened in broad day light, the road surface was smooth and
dry and there were no obstructions.
He drove inside the yellow line
because he saw the two motor vehicles driving parallel to each other.
He testified that he was
considering other road users by allowing the
two motor vehicles to pass. He was at that time driving at a speed of
50 – 60
km/h because of the steep incline. He saw no other
motor vehicles except the two that passed him. When he entered the N3
he had
not seen the bakkie either on the R101 or the N3. Because the
trailer was very high even if he could have looked in his rear view
mirror he would not have seen the bakkie if the bakkie was driving
too close to the back of the truck he was driving. The truck
weighed
30 tons and the bakkie was a 1 ton bakkie and was therefore very
light as a result he did not feel the impact and was only
alerted by
the jumping gears that something was wrong. The road was a Y
junction, when coming from the R101 there was a bridge
over the N3
and as such he could not see the N3. The slip road was on a steep
incline and where the R101 joined the N3 the road
curved towards the
right.
[10] At the end of the
evidence of this witness, the plaintiff’s counsel applied for a
postponement of the case in order to
call an expert witness to
testify about accepted perception/reaction times and distances in
collision cases. The defendant’s
counsel opposed the
postponement on the grounds that the case was set down well in
advance and the plaintiff’s counsel was
aware that he would
require the expert witness but failed to make sure the witness was in
attendance. I declined the application
on those reasons.
[11] The plaintiff closed
his case. The defendant also closed its case without leading
evidence. The two counsels addressed me and
I made an order that they
submit heads of argument. The heads of argument were to be filed on
or before the 25 June 2011.
THE ARGUMENTS
THE PLAINTIFF
[12] The plaintiff’s
counsel argued that in adjudicating the merits the court must
consider whether there was negligence on
the part of the insured
driver and whether or not that negligence was causally connected to
the accident. The test, according to
him, was that of a reasonable
person. 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. The insured driver was driving a very heavy vehicle. His
visibility of traffic
coming behind him was obscured to some extent.
[13] He contended that a
reasonable motorist would have given a right of way to motorists
travelling on the N3 and observed other
motorists. Every driver was
obliged to keep a proper lookout especially as he entered a busy road
and there was a heavy duty on
him to keep a proper look out in such
circumstances, he argued. He maintained that when a heavy motor
vehicle, like that of the
insured driver, entered a free way –
the driver thereof was duty bound to do so without endangering other
road users. The
insured driver testified that he looked but did not
see the plaintiff. He must have seen the plaintiff’s motor
vehicle because
it must have been on the N3 either with the two motor
vehicles or immediately thereafter. According to him, the insured
driver
was supposed to consider other road users by not entering the
high way when it was not opportune to do so. He did not stop and he
did not look out, if he had done so, he could have seen the plaintiff
because the plaintiff was on the N3.
[14] According to him
this was not a simple rear end collision. The motor vehicles in
question were not in the traffic and none
was stationary. This was a
case where a truck was entering a main road and did not have a right
of access. The accident happened
a short distance after the insured
driver entered the main road, the N3, even though it was at the side
of the road. He maintained
that the truck cut in front of another
motor vehicle, namely the plaintiff’s bakkie. A truck travels
slowly and if it cuts
in front of another motor vehicle it poses a
danger to that motor vehicle. The truck driver failed to see the
bakkie, he must however,
have seen it, the collision happened in
broad day light as such he did not keep a proper look out. The court
must therefore find
the insured driver negligent in that he failed to
keep a proper look out and that he entered the road at a time when it
was not
safe to do so.
[15] According to the
plaintiff’s counsel, once negligence had been established the
court may then consider contributory negligence
and therefore
apportion negligence. He conceded that the plaintiff was negligent in
that he collided with a large motor vehicle
in broad daylight and in
circumstances that he should have seen it. The defendant must however
prove contributory negligence. According
to him it was highly
probable that the plaintiff must perhaps have been travelling at
120km/h. With the bakkie travelling at that
speed and the truck
travelling at a speed of 50 – 60 km/h it would have taken the
plaintiff approximately one second to cover
that distance and collide
with the truck. That would have meant that the plaintiff had only one
second to perceive and react to
the danger posed by the insured
driver’s motor vehicle. He submitted that an average person
faced with a sudden emergency
takes time to react. He or she sees the
danger before he or she puts his or her foot on the brakes. It takes
one to two seconds
to put a foot on the brakes. The plaintiff as such
had little or no time to put his foot on the breaks, he stated. But
because
the truck was travelling slowly the plaintiff ought to have
seen it and reduced speed.
[16] He conceded that
there was a degree of contributory negligence to be attributed to the
plaintiff. The weight of blame should
however be attributed to the
insured driver because he created the cause of the accident –
he entered the road without making
sure that it was safe to do so.
The insured driver must be found to be negligent. He requested the
court not to allow contributory
negligence.
THE DEFENDANT
[17] The defendant’s
counsel in counter argument stated that the
onus
was on the
plaintiff to prove on a balance of probabilities that the defendant
was negligent. The plaintiff had no recollection
of what happened.
The only witness was the insured driver. The insured driver testified
that he drove inside the yellow line of
the road and allowed other
motor vehicles to pass. The weather was clear. He observed the road –
only two motor vehicles
passed. The N3 at that point was a two lane
road and the plaintiff, coming from behind the truck, could have
easily overtaken the
insured motor vehicle on its right. The insured
driver was driving slowly and inside the yellow line. She argued that
it could
not be said that there was negligence on the part of the
insured driver.
[18] According to her,
the trailer of the truck was very high and the insured driver would
not have been able to see the plaintiff
if he was driving too close
behind the truck. The plaintiff ought to have foreseen that he was
travelling up to the truck and reduced
speed. The test for negligence
is that it must be foreseen. The insured driver could not have
foreseen the accident because he
did not see the plaintiff. She
contended that where there was a rear end collision an explanation
must be given. There was no explanation
by the plaintiff as he cannot
recall what happened and no other witness was called to show that the
defendant was negligent. She
argued that the insured driver acted
reasonably at all times.
THE ISSUE TO BE
DECIDED
[19] At the end of the
trial I was faced with two contradictory versions as to how and why
the collision occurred and who between
the two drivers bore the duty
of care towards the other. The only available witness’ evidence
did not assist me to determine
how and why the collision occurred. He
did not see the plaintiff’s motor vehicle either before the
collision or at the time
of the collision. He became aware of the
collision only after it had happened. I therefore had to determine
the issues on the basis
of the reconstruction of the collision by the
two counsels when they addressed me.
[20] The plaintiff’s
counsel presented that at the time of the collision the insured
driver was approaching an intersection
and as such motorists,
including the plaintiff, proceeding along the N3, which was a main
road, had a right of way, and the insured
driver, coming from a minor
road, had a duty to ensure that he entered the main road, namely, the
N3 in this instance, at a time
when it was safe or opportune to do
so. According to him, because the insured driver did not see the
bakkie, he failed to keep
a proper look out and thereby entered the
N3 when it was not safe or opportune to do so. The insured driver,
according to him,
was therefore the proximate cause of the collision.
[21] The defendant’s
counsel on the other hand contended that this was a rear end
collision and it was expected of the plaintiff
to furnish an
explanation. The plaintiff, according to her, did not testify and as
such failed to provide that explanation. She
argued that at the time
of the collision, the plaintiff had a general duty to act reasonably
and a particular duty to regulate
his speed in relation to his range
of vision. According to her, the plaintiff ought to have seen the
truck and reduced his speed.
The truck, having been described as a
cumbersome vehicle, must have been visible from a reasonable
distance, the collision happened
in broad day light and there was
nothing which could have caused the plaintiff not to see the truck
and reduced speed.
[22] The following facts
are common cause, namely, that the plaintiff suffered amnesia and
could not testify at the trial; the insured
driver was the only
witness to the incident; the plaintiff’s motor vehicle collided
with the insured driver’s motor
vehicle at the back and was
embedded in the truck; the truck was a cumbersome motor vehicle with
two containers on a single chases
and weighed 30 tons; at the time of
the collision the insured driver was entering the N3 highway through
a slip road from the R101
road travelling at a speed of 50 -60 km/h
because the slip road had a steep incline; the collision occurred in
broad day light
and there were no obstructions; the insured driver
was alerted of the collision when the truck jumped gear and he did
not see the
bakkie either before or at the time of the collision.
[23] Based on the above,
I had to determine whether or not the plaintiff had proved negligence
on a balance of probabilities against
the defendant. If so, to
determine whether or not there was any contributory negligence on the
part of the plaintiff.
PROOF OF NEGLIGENCE
[24] It is trite that the
onus
of proving negligence on a balance of probabilities rests
with the plaintiff. In this instance so too the plaintiff was
expected
to prove negligence against the defendant on a balance of
probabilities. See
MONTOELI v WOOLWORTHS (PTY) LTD
2000
(4) SA 735
WLD at 742C. The court in
KRUGER v COETZEE
1966 (2) SA 428
(A) at 430E – H set out the test for proving
negligence as follows:
“
For the
purposes of liability
culpa
arises if –
(a) a
diligens paterfamilias
in
the position of the defendant –
(i) would have foreseen the reasonable
possibility of the conduct injuring another in his or her person or
property and causing
him or her patrimonial loss; and
(ii) would take reasonable steps to
guard against such occurrence; and that
the defendant failed to take such
steps.
Whether a
diligens paterfamilias
in the position of the person concerned would take any guarding steps
at all and, if so, what steps would be reasonable, must always
depend
upon the particular circumstances of each case, no hard and fast
basis can be laid down.”
[25] The question to be
asked was whether the insured driver had foreseen the reasonable
possibility of his action, entering the
carriageway as he did,
injuring another person and if so, whether he took reasonable steps
to guard against such an occurrence.
The plaintiff’s counsel
presupposed that the plaintiff must have been travelling on the N3 at
the time of the collision and
that as the insured driver did not keep
a proper lookout, he did not see the bakkie, he entered the road and
cut in the path of
the on coming bakkie and caused the collision.
[26] I agree with him,
both motor vehicles must have been travelling on the N3 carriageway
at the time of the collision. The evidence
was that the bakkie
collided with the truck from the back. It went deep under the truck
and was attached to the rear end of the
truck. The wreck of the
bakkie, as depicted in the photograph, was squashed and extensively
damaged. The extensive damage to the
bakkie and the fact that it was
deeply embedded in the back of the truck indicated the extent of the
force of the impact. It suggested
to me that the bakkie must have
been travelling at a very high speed. The legal speed limit on a
highway like the N3 is 120km/h.
One can safely assume that the
plaintiff was travelling at that speed. However, because of the
extensive damage caused to the bakkie
and the fact that it went deep
under the truck, a possibility existed that he might have even been
travelling at a speed higher
than 120km/h. If that was the case, at
that speed the plaintiff could not have been travelling along the
R101. The collision happened
on the N3 and if he had joined the N3,
from the R101, using the slip road as the insured driver did, he
would have been forced
to reduce speed. I find therefore that at the
time of the collision the bakkie must have been travelling along the
N3.
[27] Besides the evidence
of the insured driver I also relied on the exhibits that were
admitted in the record. I relied mainly
on the photographs which the
plaintiff’s counsel referred the insured driver to when leading
him in his evidence in chief.
The photographs were part of exhibit
“A”. There were four photographs in all. The first
photograph (photo 1), in black
and white, was on page 12 and showed
the bakkie embedded at the back of the truck; the second photograph
(photo 2), also in black
and white, on page 13, showed a trailer at
the side of the road; the third photograph (photo 3) in colour, was
on page 14 also
showed a trailer on the side of the road; and the
last photograph (photo 4), in colour, also on page 14 showed the
bakkie embedded
at the back of the truck.
[28] Photo 4 was the one
that caught my attention. It showed the truck standing inside the
yellow line with the bakkie embedded
at the back. The truck’s
trailer was painted bright red. The bakkie was embedded more towards
the right side of the truck
and with its rear right wheel resting
outside the yellow line on the carriageway. There were two people,
most properly the emergency
crew, standing behind the truck next to
the left front side of the bakkie. This space where the two people
were standing indicated
that the impact was more to the right side of
the truck. The left side of the bakkie was the one that collided with
the truck and
perhaps that was the reason why the passengers were
killed.
[29] The photograph
showed the place where and the position in which the truck came to
stop when the insured driver wanted to investigate
“the white
thing” at the back of the truck. The position at which the
bakkie came to stop, as depicted in the photograph,
suggested to me
that, at the time of the collision, the truck must have been
travelling, or that the greater part of the body of
the truck was in
the carriageway, and not inside the yellow line as the insured driver
testified. My view is that sometime before
the collision occurred the
insured driver must have protruded onto the carriageway. If the
insured driver was travelling inside
the yellow line, like he
testified, I cannot fathom how the bakkie could have collided with
the truck. If he was travelling as
he said he was, there could have
been enough space for the bakkie to pass without colliding with the
truck. I found his version
of events in this regard improbable and
concluded that at the time of the collision the bakkie must also have
been travelling on
the carriageway.
[30] The insured driver,
to my mind, was already travelling on the carriageway at the time of
the collision. The evidence before
me was that the insured driver did
not see the bakkie at all. But the bakkie was somewhere on the N3.
The insured driver’s
testimony was also that the road formed a
Y junction and when coming from the R101 there was a bridge over the
N3 and as such he
could not see the N3. The slip road was on a steep
incline and where the R101 joined the N3 the road curved towards the
right.
This curve and the steep incline, in my opinion, might be the
reason why he did not see the bakkie. At the time the truck entered
the carriageway the bakkie must have still been somewhere down the
curve and/or the incline and the insured driver would not have
seen
it. Failure to see the bakkie did not absolve the insured driver from
his duty to keep a proper look out. He cannot, in my
view, be
exculpated from blame simply because he did not see the bakkie. In
the
SIKO v SANTAM INSURANCE CO LTD
1979 (2) SA 687
(SECLD) judgment at 694F – H, the honourable Addleson J stated
the following:
“
I can
envisage no circumstances where a driver is totally relieved of his
duty to keep a proper look-out. There may well be circumstances
where
his duty is not as onerous or stringent as in other cases…”
[31] This is one of the
cases where the duty to keep a proper look out was onerous. The
insured driver was supposed to have been
more cautious. In his own
words, from where he was travelling he could not see the N3. He had
travelled only about 30 – 40m
into the N3 when he felt the gear
jump. It means he had just entered the carriageway when the collision
occurred. It is thus evidently
clear that he did not keep a proper
look out. He entered the carriageway too close to the curve. A
reasonable man in his position
would have travelled further, say
about 100 – 200m, inside the yellow line before entering the
carriageway. He should have
made sure that he sees 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 cautious. My view is therefore, that by
entering
the carriageway as he did, he should have foreseen that his
action could endanger other road users and should therefore have been
more cautious. In the circumstances, to my mind, the insured driver
was negligent in entering the carriageway as he did and failing
to
keep a proper look out and that that negligence was a cause of this
collision.
[32] The plaintiff,
however, contributed to the negligence. He failed to avoid the
collision when he could have done so. He must
have been travelling as
I have already indicated at a very high speed and had little or no
time to put his foot on the breaks to
stop the bakkie in time to
avoid the collision. He should have seen the truck though, it was
broad day light, the truck was said
to have been a cumbersome motor
vehicle and it was painted bright red. There were no obstructions
along the road which could have
obscured his view. The truck was
travelling very slowly he ought to have seen it and reduced speed. A
reasonable driver negotiating
a road is obliged to avoid harm to
other road users by driving at a speed commensurate with his or her
vision and ability to stop
timeously.
[33] The plaintiff’s
counsel referred me to the case of
EKSTEEN v GOTZE
1979
(2) SA 1141
(CPD) as a guide to me to apportion fault against the
parties in this instance. The apportionment in that decision was
assessed
at 90% to 10% because the court found the negligence of the
plaintiff to be not great. I am, however, of the view that the
plaintiff’s
negligence in this instance was quite extensive and
should therefore be commensurate. Having taken all the circumstances
of this
case into consideration, my view is that the plaintiff’s
degree of negligence should be assessed at 20%.
[34] Ordinarily costs
should follow the successful party. I see no reason why even in this
case it should not be so. The plaintiff
is thus entitled to his
costs.
[35] In the circumstances
I make the following order:
1. The plaintiff’s
claim succeeds to the extent of 80% negligence on the part of the
defendant.
2. The defendant is
ordered to pay the costs to the extent of 80%.
________________
E.M.
KUBUSHI, AJ
On behalf of the
plaintiff: Adv. P.A. Corbett
Instructed by:
Malcolm Lyons &
Brivik Inc
CAPE TOWN
(Ref: TB/SE/D62)
c/o
Matsepes Inc
BLOEMFONTEIN
(Ref: Mr Sackstein)
On behalf of the
defendant: Adv. B.J. Smal
Instructed by:
Webbers Attorneys
BLOEMFONTEIN
(Ref: A. Ostermeyer/lv/Roa74/0001)
EKM/sp