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[2010] ZAFSHC 77
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Van der Merwe v Road Accident Fund (7475/2008) [2010] ZAFSHC 77 (3 June 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No.: 7475/2008
In the case between:
A
NNA
SUSANNA ELIZABETH VAN DER MERWE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
_______________________________________________________
JUDGMENT:
J. B. MTHEMBU, AJ
______________________________________________________
_
HEARD
ON:
4 MAY 2010
_______________________________________________________
DELIVERED
ON:
3 JUNE 2010
_______________________________________________________
[1] The plaintiff
instituted this action against the defendant in terms of
section 17
of the
Road Accident Fund Act no. 56 of 1996
. She seeks to recover
damages she allegedly suffered as a result of the bodily injuries
she sustained in a road accident which
occurred on the
Welkom/Theunissen road in the magisterial district of Virginia on 21
Augustus 2006.
[2] On 13 August 2009
the court issued an order separating the merits from the quantum and
that only the merits should be adjudicated
at the hearing of this
matter.
[3] The above order in
essence entailed that I make a determination of the issues as
contained in paragraph 5 of the plaintiff’s
summons and
paragraph 5.2 of the defendant’s plea. Therefore I proceeded
to hear evidence in order to determine the relative
negligence, if
any, of the insured driver and that of the plaintiff, if any, seeing
that the defendant had pleaded contributory
negligence on the part
of the plaintiff.
[4] Three persons
testified on behalf of the plaintiff, namely Arina Sussana van der
Merwe, in other words, the plaintiff herself,
inspector De Ru, a
police inspector and Konrad Walter Lotter an expert witness,
mechanical engineer. The defendant did not call
any witnesses.
After hearing the evidence and oral argument, I then reserved
judgment.
[5] First, in paragraph
3, the particulars of claim, the plaintiff alleged that a road
accident occurred at Virginia on 21 August
2006 and that the scene
of the accident was on the Welkom/Theunissen road. She also alleged
that there were two motor vehicles
involved in the accident. The
one motor vehicle with registration number GBC658FS was a Volkswagen
Citi Golf sedan driver by
a certain M A Mtshawe, the insured driver.
The other motor vehicle was a Toyota Hilux bakkie with registration
number DCD287FS
driven by the plaintiff. These averments were
admitted by the defendant at the hearing.
[6] Second, in paragraph
5 of the particulars of claim, the plaintiff alleged that the said
road accident was caused by the exclusive
negligence of the insured
driver. No less than ten grounds of negligent driving were
proffered. Perhaps the most important of
these grounds were set out
in the paragraphs that read as follows:
“
5.3 Versuim het om sy voertuig
aan die korrekte kant van die pad te bestuur.
5.4 Gepoog het om ‘n voertuig
wat in dieselfde rigting as sy voertuig beweeg het, in die gesig van
aankomende verkeer verby
te steek;
5.5 Op ‘n stadium toe dit
ongeleë en gevaarlik was om dit te doen na sy verkeerde kant
van die pad oorbeweeg het;
5.6 Versuim het om op eiseres se
waarskuwings te reageer om na sy korrekte kant van die pad terug te
keer;
5.8 Agter die stuurwiel van sy
voertuig aan die slaap geraak het;”
The defendant denied
all these ten allegations.
[7] Third, in paragraph
5.2 of the defendant’s plea, the defendant alleges that the
sole cause of the road accident was
the negligence of the plaintiff.
No less than six grounds of negligence were proffered. Among
others, the defendant alleged
in the following paragraphs of its
plea:
“
5.2.2 He/She failed to keep
the vehicle he/she was driving under proper control;
He/She drove at an excessive speed
in the circumstances;
He/She failed to apply the brakes
of his/her vehicle timeously adequately or at all;
The plaintiff denied all
those six allegations of negligence.
[8] In the light of the
above quotations from the pleadings and in view of the evidence
presented at the trial, it became patently
clear that the above
quotations from the pleadings embodied the factual dispute between
the parties. This then completes the
cursory resumé of the
pleadings.
[9] The evidence showed
that the common cause consisted of the following facts. The Toyota
Hilux bakkie was travelling from Theunissen
to Welkom and the Citi
Golf in the opposite direction. The accident occurred in the
morning at about 11.30a.m. The weather
was good. The driver of the
Citi Golf sustained fatal injuries in the accident. The driver of
the Toyota Hilux bakkie survived.
[10] The particular
stretch of the road was a tarred road with one traffic lane in each
direction. The two were separated by
a painted white line of
demarcation. On the outside of each traffic lane was a furrow and a
gravel strip.
[11] On the morning in
question neither the plaintiff nor the insured driver pointed out
any points on the scene to the police.
They never did so at any
other time afterwards. On account of the force of the impact the
rear section of the
bakkie
was still in its original lane whereas, the Citi Golf was on the
opposite lane lying on its left hand side.
[12] The damage to the
Toyota Hilux bakkie was on the front left hand side and its front
left wheel was damaged in such a way
that mud left scratch marks on
the road. The damage to the Citi Golf was also on its front left
hand side and damage would also
have left scratch marks. These then
were the undisputed facts.
[13] It is trite that
the plaintiff bears the overall onus to prove, on a balance of
probabilities, that the insured driver was
driving negligently at
the time of the collision. In
STACEY
v KENT
1995 (3) SA 344
(ECD) at 352i Kroon J writing for the majority of
the full bench put it in this way:
“
The enquiry at the conclusion
of the case remains whether the plaintiff has, on a balance of
probabilities, discharged the onus
of establishing that the
collision was caused by negligence attributable to the defendant. In
that enquiry the explanation tendered
by the defendant will be
tested by considerations such as probability and credibility.”
It is also trite that
no onus rests on the defendant to establish, on a balance of
probabilities, the correctness of his explanation,
as to the
circumstances which led to the occurrence of the event.
STACEY
v KENT,
supra
at 352 and
GUARDIAN
NATIONAL INSURANCE CO LTD v SAAL
1993 (2) SA 161
(CPD).
[14] On behalf of the
plaintiff direct evidence was adduced by herself and indirect
evidence was adduced by two witnesses one
of whom was an accident
and reconstruction expert. No direct or indirect evidence was
adduced on behalf of the defendant.
[15] Where one motor
vehicle suddenly deviated from its correct path of travel, moved
across or encroached onto the wrong side
where it collided with
another motor vehicle, the driver of the latter, the court has held,
has proved facts from which an inference
of negligence against the
driver of the former vehicle may be inferentially deduced in the
absence of an explanation see
ARTHUR
v BEZUIDENHOUT AND MIENY
1962 (2) SA 566
(AD) at 573 C – H. In such a case the maxim
res
ipsa loquitor
may correctly be applied. See also
SARDI
AND OTHERS v STANDARD AND GENERAL INSURANCE CO LTD
1977 (3) 776 (AD) at 780 C – D.
[16] I shall now examine
the facts, evaluate the evidence and apply the aforesaid principles
of law to the facts.
[17] The plaintiff
testified that during Augustus 2006 she was a farmer. She was on
her way to Welkom. It was a beautiful road
with no potholes. The
weather was good. She was travelling at a speed of 100 kilometres
per hour which was the maximum speed
limit on that road. She saw a
truck in front travelling in the opposite direction that was 3 –
4 telephone poles, about
240 metres away. Then a Citi Golf came
from behind the truck onto her lane.
[18] She testified that
she reduced her speed by removing her foot from the accelerator and
applied her brakes. She also flicked
her head lights a few times.
The Citi Golf did not react, it came towards her. Just as the truck
passed her, the Citi Golf
was close by and trying to move to its
right side and to her left side. The Citi Golf’s right hand
wheels went on to the
side of the gravel. When the truck passed
her, the Citi Golf was 20 metres away.
[19] She tried to move
to the right but at that time the Citi Golf moved back to the road
and collided with her vehicle. The
point of impact was on the
middle part of her lane.
Her
vehicle was damaged on the left front side and the Citi Golf was
also damaged on the left front side. At the time of impact
her
vehicle’s front right wheel was over the middle lane. A few
seconds before impact she moved to the right. If she had
not moved
to the right, there would have been a head on collision.
[20] At that crucial
moment it was impossible for her to swerve to the left as the Citi
Golf driver’s side was already off
the road. There was also a
furrow on her left hand side. When the collision occurred, she was
travelling between 50 –
60 kilometres per hour. The only
option she had was to come to the right hand side of the road.
[21] During her indirect
evidence she testified that although she was scared, she still
managed to apply her brakes, hoot, flick
her lights and reduce
speed.
[22] When counsel for
the defendant suggested to her that during
the
5 – 6 seconds it took her to take the above preventative
measures, she had reasonable time to decide how best to avoid
the
collision because the other person did not do anything but continued
to come towards her, she replied that she thought that
that person
would swerve back to his lane. She did not concede that because her
speed was much higher, she could not take any
other
action after alerting the Citi Golf that it was on her lane. She
also did not concede that if she says that she reduced
speed to 50 –
60 kilometres per hour, it follows that she would have been able to
go on the left hand side of the road
without endangering herself nor
did she concede that because of her high speed, it was dangerous for
her to move to the gravel
part of the road. The driver’s side
of the Citi Golf was on the gravel and the rest of it was on her
side of the road.
[23] The truck passed
her in a matter of seconds and at that stage the Citi Golf was very
close to her and she swerved to her
right. In the middle was a
broken line and the Citi Golf was trying to overtake the truck.
[24] The next witness on
behalf of the plaintiff was Inspector Du Ru. He has been with the
South African Police for 22 years
and for the past 12 years was at
the criminal record centre. He received training in sketch drawing,
video recording, drawing
up measurements and to do finger prints.
He stated that he visited the scene just after the accident at about
12:30. The marks
on the gravel were still fresh, if you stand at
point “G” of the sketch plan, it was possible that the
Citi Golf
could have gone off the road, then came back on to the
road.
[25] He testified that
he drew the sketch plan and took photographs of the scene. The area
of impact of the collision was on
point “C” of the
sketch plan. Photo 5 shows scratch marks closer to the white line
and going over it.
[26] During cross
examination he answered that if you considered the positions of the
vehicles, then it was unlikely that the
scratch marks on photo 5
could have been caused by something else. There were no brake marks
on the scene. The sketch plan
was drawn from his observations.
[27] Konrad Walter
Lotter was the last witness to testify on behalf of the plaintiff.
He stated that he is a mechanical engineer,
registered with the
engineering council. After he left the South African Police
Services on 31 July 1999 where he was employed
as a mechanical
engineer, he did work in his own company until now. He investigated
what happened in this accident in question.
He confirmed as true
and correct the opinions he expressed in the written summary of his
evidence.
[28] In point 2.1, third
paragraph, he indicates various scratch marks at the scene, starting
close to the centre line. Vide
photo 5 on exhibit “B”.
In paragraph 4, looking at photos 5 and 6 of exhibit “B”,
you see the best position
of the vehicles, the bakkie is still on
its original lane (its rear section), whereas the Citi Golf is on
its opposite lane lying
on its left hand side.
[29] In point 2.2 photos
are available to assess the damage properly. The impact was on the
bakkie’s front left hand side
and its front left wheel was
damaged in such a way that mud left scratch marks on the road.
There was a large angle between
the two vehicles.
[30] The damage on the
Citi Golf was on its left side and due to the impact, it was struck
on its front section. Both vehicles
were at an angle at the time of
impact. The damage on the Citi Golf would also have left scratch
marks.
[31] On paragraph 3 of
point 2.2, most of the damage was on the left hand side of the Citi
Golf (photo 5), because of this damage,
the scratch marks were
probably caused by the left hand side of the Citi Golf. Most of the
Citi Golf was on the lane of the
bakkie at the time of impact. The
marks start from west to east, so one or both vehicles had momentum
to the east. The Citi
Golf was travelling at such high speed that
it drove the bakkie back.
[32] He testified that,
in that 0.1 seconds when the crashing occurred and you take the
scratch marks to the west it means the
Citi Golf was more in the
lane of the bakkie. Before impact, the Citi Golf was in the wrong
lane, far onto the lane of the bakkie.
[33] The Citi Golf was
on the wrong side probably on the gravel, it swerved to the left
trying to get to its rightful lane but
turned its steering onto the
right hand side, so when the impact occurred it fell over.
[34] Everything
indicates that the Citi Golf was far into the lane of the bakkie,
the driver of the bakkie could not swerve to
the left and it would
have fallen into the furrow and rolled if it swerved to the left
off the road. At approximately the time
that the bakkie tried to
swerve to the right, the Citi Golf also tried to swerve to the left,
to its original lane but most of
the vehicles were in the lane of
the bakkie at the time of impact. It would have been extremely
dangerous for the Citi Golf
to overtake at that time.
[35] Because of two
extreme actions of the Citi Golf it would have been difficult for
any driver to control the vehicle, it jerked
to the left then to the
right, even if the collision did not occur, the driver would have
lost control.
[36] The Citi Golf
started to overtake, then drifted and at a late stage swerved to the
direction of the bakkie. There were a
number of options available
to the Citi Golf. It could have moved back behind the truck.
That
would have been the safest option to avoid a collision. It would be
a dangerous and unsafe option to move out from behind
the truck.
[37] He stated that the
driver of the Citi Golf did not indicate the actions of an
attentive
driver. It was as if he was hypnotised. He was not alert; it
appears as if he could have fallen asleep, by swerving
to the left
then to the right.
[38] During
cross-examination he stated that he did not visit the accident
scene. He saw the photos and testified in the criminal
matter as
well. He did not consult with the investigating officer as he
prefers not to speak directly to witnesses and prefers
to look at
facts objectively. The accident was well documented as per the
photographs and the sketch plan.
[39] Notwithstanding
that he did not visit the scene, the point of impact is incorrect on
the sketch plan. If you take point
“C” which is more
towards the east, then the marks will appear more towards east at
least 2 metres from the centre
line, as the area indicated as the
point of impact is already towards the east. The marks on the
centre line prove that point
“C” is incorrect.
[40] He said the impact
occurred more than a metre into the lane of the bakkie.
Disregarding what the lines tell us, the driver
must establish if it
is safe to overtake. The Citi Golf was partially on the edge of the
road to the left of the bakkie meaning
that half of the Citi Golf
was on the gravel, the other half on the road.
[41] As per photo 2, the
bakkie could not swerve to the left on the rough edge of the road as
the driver could have endangered
herself unless if she was
travelling at 10 kilometres per hour.
[42] It was probable
that the debris would be thrown on the opposite lane. The Citi Golf
could have been travelling at two times
the speed of the bakkie.
This concludes the testimony of Mr Lotter. It brings us to the end
of the plaintiff’s case.
[43] As I have stated
above, the defendant did not call any witnesses as the insured
driver sustained fatal injuries in the accident.
[44] Mr Steenkamp, on
behalf of the plaintiff, urged me to find in favour of the
plaintiff. He argued that according to the version
of the
plaintiff, which version was supported by Du Ru and Lotter, the
collision took place on her correct side of the road.
Therefore, he
submitted that the insured driver of the Citi Golf was negligent.
It was quite clear that this accident was unavoidable;
the plaintiff
could only go to the right.
[45] But Ms Ramaimela,
on behalf of the defendant disagreed. She argued that the insured
driver was not the sole cause of the
accident. This court should
make its finding based on the reasonable man test. A 100%
compensation for the plaintiff would
be unreasonable. A 50% - 50%
apportionment as a cause of the accident would be reasonable.
[46] In
SOLOMON
AND ANOTHER v MUSSETT AND BRIGHT
(1926) AD
427
at the bottom of page 433, the court held that:
“
The general rule under such
circumstances is that persons using the road upon their proper side
have the paramount right and are
entitled to preference, so that, in
case of danger of a collision, it is the duty of those on their
wrong side to give way first.”
As to the above quote,
it is exactly what happened here.
[47] In
MARAIS
v CALEDONIAN INSURANCE CO LTD
(1967) (4) SALR 199
, in this case the plaintiff moved to the
incorrect side of the road. On page 199 paragraph H, the court had
this to say:
“
Had the plaintiff voluntarily
resorted to the exceptional course of swerving to his wrong side,
this would probably have
been inexcusable as the
wrongful driver had given
way timeously, but this
was not such a case.”
It is quite clear that
this accident was unavoidable; the plaintiff could only go to the
right. The plaintiff had to do something,
and she did, she took the
only alternative available. The Citi Golf remained on the incorrect
lane all the time, at the very
last opportunity closed the gate for
the plaintiff by moving to the left.
[48] The driver’s
ability to avoid an accident depends amongst other factors, on the
speed of the vehicles approaching each
other. In this case the
undisputed evidence of Lotter is that the Citi Golf was travelling
at twice the speed of plaintiff’s
bakkie. If the evidence of
the plaintiff is that she reduced speed to about 50 – 60
kilometers per hour, then the Citi
Golf was travelling between 100 –
120 kilometres an hour.
[49] Turning to the
argument of a reasonable man as advanced by Ms Ramamela on behalf of
the defendant, in
McMURRAY
v H L & H (PTY) LTD
2000 (4) SA 887
(N), the court had this to say about the reasonable
man:
“
One knows that the reasonable
man generally expects and is entitled to expect reasonableness
rather than unreasonableness, legality
rather than illegality, from
others. (
SOLOMON AND
ANOTHER v MUSSET AND BRIGHT LTD
1926 AD 427
at 433;
MOORE
v MINISTER OF POSTS AND TELEGRAPHS
1949 (1) SA 815
(A) at 826). The reasonable man certainly does not
in general regard himself as obliged to take steps to guard against
recklessness
or the gross negligence of others. (
SOUTH
AFRICAN RAILWAYS AND HARBOURS v REED
1965 (3) SA 439
(A)
It goes without saying
that this notional reasonable man generally complies with the law
and always acts reasonably. We know
that the reasonable man is not
a timorous faint heart, always in trepidation lest he or others
suffer some injury; on the contrary,
he ventures out into the world
engages in affairs and takes reasonable chances. He takes
reasonable precautions to protect his
person and property and
expects others to do likewise (per Van Heerden JA in
HERSCHEL
v MRUPE
1954 (3) SA
464
(A) 490F).”
As the evidence shows,
the plaintiff did everything humanly possible to avoid the accident.
It is quite clear that the reasonable
man would have been injured
in this accident. If the plaintiff had moved to the left, she would
have driven into the Citi Golf.
[50] If it is accepted
that the collision took place on the plaintiff’s correct side
of the road, then the
maxim
res ipsa loquitur
applies.
In this regard it is then necessary to have regard to the decision
of
ARTHUR
v BEZUIDENHOUT AND MIENY
1962 (2) SA 566
(A) at 573 C – H:
“
I am of the opinion that on
the facts of the present case the maxim may rightly be applied. For
when plaintiffs proved that defendant’s
truck for no apparent
reason suddenly swerved onto its incorrect side there to collide
with their truck, plaintiff proved facts
from which an inference of
negligence against the defendant may, in the absence of any
explanation be drawn –
res
ipsa loquitur
.”
[51] In the case of
SARDI
AND OTHERS v STANDARD AND GENERAL INSURANCE CO LTD
1977 (3) SA 776
(A), the court had this to say about the
maxim
res ipsa loquitur:
“
In this court in seeking to
establish negligence of the driver of the insured vehicle counsel
for the appellant referred to the
fact that he swerved across the
road. Wherefore counsel relied on the
maxim
res ipsa loquitur
(the
thing speaks for itself). He submitted that it was for the
respondent to adduce sufficient evidence to overcome the
prima
facie
effect of the
evidence that Coxon drove on to the incorrect side of the road. The
maxim has no bearing on the incident of the
onus of proof on the
pleadings. It is invoked where the only known facts, relating to
negligence consist of the occurrence itself.”
[52] In the instant case
the collision was occasioned by the exclusive negligent driving of
the insured driver. On the version
presented on behalf of the
plaintiff, the direct evidence of the plaintiff was that the Citi
Golf veered into her lane and at
the very last opportunity closed
the gate for her by moving to the left. I have to come to the
conclusion that the collision
was caused by the defendant’s
insured driver.
[53] Counsel for the
plaintiff urged me to find that the accident was caused by the
insured driver and the defendant must pay
all
the proven damages from this accident and it must pay 100%.
[54] On the other hand,
counsel for the defendant argued that a 100%
finding
against the insured driver was not reasonable and that a 50% - 50%
apportionment would be more reasonable. However, counsel
for the
defendant later abandoned this submission and left the issue in the
hands of the court.
[55] As I have stated
above, there was no negligence on the part of the plaintiff and the
accident was caused by the negligence
of the insured driver.
[56] Accordingly I make
the following order:
56.1 The defendant is
liable for 100% of the plaintiff’s proven or agreed damages.
56.2 The defendant is
also liable for the plaintiff’s costs to date.
_________________
J. B. MTHEMBU, AJ
On behalf of the
plaintiff: Adv. Steenkamp
Instructed by:
Wessels and Smith
BLOEMFONTEIN
On behalf of the
defendant: Adv. Ramaimela
Instructed by:
Matsepes
BLOEMFONTEIN
/ar