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[2010] ZAFSHC 5
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Thebe v Road Accident Fund (5674/2008) [2010] ZAFSHC 5 (29 January 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 5674/2008
In
the matter between:-
C
G THEBE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
HEARD
ON:
26
JANUARY 2010
_______________________________________________________
JUDGMENT
BY:
MOLEMELA,
J
DELIVERED
ON:
29
JANUARY 2010
[1]
The
plaintiff”s claim arises out of a head-on collision that
occurred between two motor vehicles in Bloemfontein in the early
hours of the 12
th
February 2005. At the time of the accident one vehicle was being
driven by Mr Chabane (referred to in the summons as “the
first
insured driver”), while the other vehicle was driven by Mr.
Claasen (referred to in the summons at “the second
insured
driver”). The plaintiff is the mother of a minor child whose
biological father was fatally injured while he was
a passenger in Mr.
Claasen’s vehicle. The claim is in respect of the child’s
loss of support.
[2] On
the night in question, the 2 (two) aforementioned vehicles were
travelling in opposite directions in Dr. Belcher Road, which
is a
dual road. Mr. Chabane’s vehicle was travelling ifrom west to
east while Mr. Claasen’s vehicle was travelling
in the same
road from east to west.
[3] In her particulars of
claim, the plaintiff alleges that the accident was caused due to the
exclusive negligence of one of the
aforementioned drivers,
alternatively due to the contributory negligence of both drivers.
The plaintiff is accordingly claiming
for payment of R25 000,00 plus
interest and costs, alternatively R230 424,00 plus interest and
costs.
[4]
At
the commencement of the proceedings counsel for the plaintiff, Mr.
Cilliers, applied for a separation of the merits (liability)
from
quantum. This application was unopposed and was duly granted. Mr.
Cilliers placed on record that the defendant was admitting
that the
minor child was the biological child of the deceased and that the
deceased was liable for the child’s maintenance.
This was
confirmed by the defendant’s counsel, viz adv Frosch. It is
common cause that the defendant had, subsequent to
the filing of its
plea, admitted in its response to the rule 37(4) questionnaire that
the deceased (Mr Smith) was a passenger in
Mr. Claasen’s motor
vehicle and that his death was caused as a result of the fatal
injuries he sustained in the accident.
[5] Mr.
Chabane testified on behalf of the plaintiff and Mr. Claasen, on
behalf of the defendant. Mr. Chabane’s evidence
can be
summarised as follows. On the night in question he was driving in an
easterly direction in Dr. Belcher Road. Dr. Belcher
Street is a dual
road and he (Mr. Chabane) was driving in the lane closest to the
barrier line. Another vehicle was travelling
in the same direction
as his vehicle. It was a short distance behind his vehicle but was on
the left lane. He normally drives
slowly in the township and was
thus driving “normally” on the night in question. As he
was driving he noticed a vehicle
travelling in the opposite
direction. The lights of this oncoming vehicle were on high beam
(i.e. in bright lights). The light
of his own vehicle were on
low-beam (dim). At that stage, he was unable to estimate how far this
oncoming vehicle was away from
his vehicle at that stage as its
bright lights were blinding him. He then flashed his lights to this
approaching vehicle to signal
to its driver that he should his
vehicle’s lights. He then noticed that this oncoming vehicle
was veering to the lane in
which he was travelling. He testified
that he would not be able to estimate how far this vehicle was from
his when it started
veering into his own lane. Upon seeing this
vehicle veering to his own lane, he applied the brakes slightly. A
collision occurred.
He lost consciousness and only regained it at the
hospital.
[6] Mr.
Claasen’s testimony was that on the night in question he was
driving in the westerly direction in Dr. Belcher Road.
He was in the
company of the deceased. The road was an open road and he could see
several cars from the direction of oncoming
traffic. The weather was
fine as it was not raining, but the road was dark. He was travelling
on the lane closest to the barrier
line. As he approached a curve,
he saw an Iveco bus travelling on the incorrect side of the road in
that although it was from
the direction of oncoming traffic, it was
in the lane in which he was travelling. He testified that he could
not estimate how
far it was from his vehicle when he first saw it,
but it was not far. He swerved to the right in order to avoid
colliding with
the Iveco bus. Immediately after swerving to the
right there was an impact. At the point of impact he was under the
impression
that his vehicle had collided with the Iveco bus. He only
learnt at a later stage that his car had in fact collided with Mr.
Chabane’s
vehicle and not the Iveco bus. On the night in
question he had not seen Mr. Chabane’s vehicle at or near the
scene at all.
Under cross-examination he was asked whether there was
anything that prevented him from swerving to the left to avoid the
accident,
instead of swerving to the side of oncoming traffic. He
responded as follows:
“
Nothing prevented me from
swerving to the left but at that point in time I swerved the vehicle
to the right.”
[
7] It
is trite law that for liability based on negligence to be established
the standard used is that of a reasonable man in the
position of the
defendant. Furthermore the duty to prove such negligence rests on the
plaintiff. In a claim such as the present
the plaintiff would have to
prove this standard was not man by the driver(s) concerned. She would
have not only the defendant’s
negligence, but that such
negligence on the part of the relevant driver(s) had caused the
accident in which the fatal injuries
were sustained. It is also
trite law that each case is judged on its own facts.
[8
] Adv.
Frosch, argued that the versions of Mr. Chabane and Mr. Claasen were
mutually destructive and that Mr. Claasen could not
have had any
contributory negligence as the accident was apparently caused by the
negligence of the driver of the Iveco bus. She
argued that the
correct order to make in this matter would be to grant absolution
from the instance as no negligence had been proven
in respect of both
drivers. Adv. Cilliers argued that Mr. Claasen’s evidence had
already been conceded in the plea and thus
the only issue for this
court to consider was whether any contributory negligence could be
attributed to Mr Chabane or not. I
think it is apt to, at this stage
consider the defendant’s plea.
[9]
In
paragraph 4.1 of the plea the defendant pleaded as follows:
“
In the event of the above
Honourable Court finding that Basie Jeffrey Smith (hereinafter
referred to as ‘the deceased’)
was a passenger in motor
vehicle bearing registration CVM958FS [i.e. driven by Mr. Claasen]
and that the deceased passed away as
a result of the collision as
alleged by the plaintiff (all of which is still denied), then and in
that event the defendant denies
that the driver of the insured
vehicle (hereinafter referred to as ‘the insured driver’)
was negligent, either as alleged
by the plaintiff or at all and avers
that the collision occurred as a result of the sole negligence of the
driver of motor vehicle
bearing registration CVM958FS, him being
negligent in one or more or all of the following respects: .....”
[10
] The
defendant furthermore pleaded as follows at paragraph 6.1 of its
plea:
“
In the event
of the above Honourable Court finding that the deceased was a
passenger in motor vehicle bearing registration CVM958FS
and that the
deceased passed away as a result of the collision as alleged by the
plaintiff (all of which is still denied), then
and in that event the
defendant
admits
that the collision occurred as a result of the sole negligence of the
driver of motor vehicle bearing registration CVM958FS, him
being
negligent in one of more or all of the following respects: .....”
(my own underlining).
[11] When
one considers the plea in conjunction with the admissions made in the
rule 37(4) response as well as verbally in court,
then there is no
room for any interpretation save that of a concession in respect of
Mr. Claasen’s negligence was made by
the defendant. I
therefore agree with Adv. Cilliers’ contention that Mr.
Claasen’s negligence has been conceded by
the defendant. Even
if I were wrong in this regard, I would agree with Mr Cilliers’
contention that Mr. Claasen, in his own
evidence, in any event
conceded to having been negligent when he admitted to having swerved
to the incorrect side of the road (i.e.
in the lane of oncoming
traffic) and that he did so even though nothing prevented him from
swerving to the left. On his own version,
he clearly executed a
dangerous manoeuvre without satisfying himself of the presence of
other traffic. I am persuaded that he was
negligent to the extent as
set out in the particulars of claim. See
BURGER
v SANTAM VERSEKERINGSMAATSKAPPY BPK
1981 (2) SA 703
(A).
[12] I
must say I do not have any strong criticism relating to the
credibility of either Mr Chabane or Mr Claasen. Although Mr.
Chabane
was visibly impatient towards the end of his evidence, this does not
detract from the fact that he impressed me as an honest
and credible
witness. I must however point out that the version put forward by Mr
Claasen pertaining to the events immediately
preceding the collision
is highly improbable. He testified about an Iveco bus that was
travelling on his side of the road just
moments before the collision.
He also testified that at no stage did he see Mr Chabane’s
vehicle. The fact that his vehicle
collided with that of Mr Chabane
confirms that Mr Chabane’s vehicle was indeed at the scene. The
inevitable question is why
he did not notice Mr Chabane’s
vehicle when it was indeed at the scene. Given Mr Claasen’s
testimony to the effect
that at the point of impact he actually
believed that his vehicle was colliding with the Iveco bus, one would
then have expected
the Iveco bus to have been involved in the same
accident as a third vehicle, given its close proximity to Mr
Claasen’s vehicle.
It is simply improbable that Mr Claasen’s
vehicle would not have collided against any portion of the Iveco bus
when that
bus was allegedly in such close proximity. On
probabilities, Mr Claasen was not keeping a proper look-out and
failed to observe
that he was driving in Mr Chabane’s lane.
With respect, I think the existence of an Iveco bus at the scene of
the accident
is just a figment of Mr Claasen’s imagination. In
my view, if the said bus was in such close proximity to Mr. Claasen’s
vehicle, then it, too would have been involved in the accident.
[13] Mr
Cilliers argued that Mr Chabane’s negligence pertains to his
failure to immediately apply his brakes and slow down
once he was
blinded by the lights of the oncoming vehicle. As authority for his
proposition he relied on the case
s
of
FLANDERS
AND ANOTHER v TRANS ZAMBEZI EXPRESS (PTY) LTD AND ANOTHER
2009 (4) SA
192
(SCA)
;
TRENCOR
SERVICES (EDMS BPK) V LOOTS & LOOTS 7 ANDERE 2001(1) SA 324 (NC)
;
S
V VAN DEVENTER
1963 (2) SA 475
(A).
None
of the afore-said cases are on all fours with the case at hand. None
of the collisions referred to in those cases were head-on.
The
critical difference in the facts is that Mr Chabane did not collide
into an object that was stationary in his path, having
failed to
observe it timeously because of being blinded by the bright lights of
an oncoming car. Although he was blinded by the
lights, he could
still see the road ahead. He was thus not completely blinded and that
is why he was able to notice that the oncoming
car had started
veering into his lane. When he noticed this car veering onto his side
of the road, he immediately applied his brakes
to reduce speed. In my
view, the fact that he testified that he applied the brakes lightly
instead of fully is neither here nor
there when consideration is paid
to the fact that the collision occurred while he was still applying
the brakes. Sight must also
not be lost of the fact that he collided
against a vehicle that was approaching and not a stationary vehicle.
Furthermore, such
a vehicle was on the incorrect side of the road. I
cannot agree with adv Cilliers’ postulation that the accident
could have
been prevented if the brakes had been applied fully and
not slightly. For such a conclusion to be reached, evidence would
have
to be led about the speed of the respective vehicles immediately
before the accident and of course a reliable estimation of the
distance between the vehicles when the drivers first had sight of
each other’s vehicles as well as the time that elapsed
between
the first sighting and the collision. I have no such evidence before
me.
[14] The
impression that I have from the evidence is that Mr Chabane did not
drive for any appreciable distance between the time
he first saw the
oncoming vehicle’s bright lights and the time of the collision.
Without reliable evidence as to velocity
and distance, any conclusion
about the effect of the difference in the force applied to the brakes
would be based on nothing but
conjecture. As I see the facts, there
is nothing that a reasonable man in Mr Chabane’s position could
have done to avoid
the accident. A driver is not expected to
anticipate that another driver will veer off from his correct side of
the road for no
apparent reason. In my view, there is no negligence
that can be ascribed to Mr Chabane. I am thus satisfied that the
defendant
has not discharged its burden of proving any negligence
against Mr. Chabane.
[15] On account of all
the abovementioned circumstances, I find that the accident was caused
by the exclusive negligence of Mr.
Claasen.
[16] With
regards to costs, Adv. Frosch argued that the defendant had made a
tender the day preceding the hearing and that such
tender was not
accepted by the plaintiff. She contended that the plaintiff was
therefore not entitled to the costs of the hearing.
Adv Cilliers
submitted that the aspect of the tender would only become relevant
after judgment, at the stage of the taxation of
the bill of costs.
Since I was not provided with any details pertaining to the nature of
the tender that was made, I am of the
view that the issue of costs
should rather stand over for consideration together with the quantum
at a later stage.
17. I
t
herefore
make the following order:
17.
1. The
accident was caused as a result of the exclusive negligence of Mr
Claasen.
_______
_____________
M.B. MOLEMELA, J
On
behalf of the
plaintiff: Adv.
Cilliers
Instructed by:
BLOEMFONTEIN
On behalf of the
defendant: Adv. Frosch
Instructed by:
BLOEMFONTEIN
MBM
/sp