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2009
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[2009] ZAGPPHC 47
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Cass v Road Accident Fund (4511/07) [2009] ZAGPPHC 47 (4 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL
PROVINCIAL DIVISION
CASE
NO:
4511/07
!n
the matter between :
LIONAL
JOHN CASS
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
ismail
AJ:
[1]
The plaintiff was a passenger in a motor vehicle driven by his
grand mother on the 26 January 1996. The vehicle in which the
plaintiff was travelling in collided with another vehicle [the
insured vehicle] on the N4 highway near Middelburg. The plaintiff's
grand mother was fatally injured in the collision and he sustained
injuries to his body.
[2]
At the time of the collision the plaintiff was a minor. 13 years
old at the time, and his grandmother fetched him at school
and they
were travelling to their farm in Arnold.
[3]
At the commencement of the trial Ms Strauss, acting for the
plaintiff sought to have the merits separated from the question
of
quantum. She submitted that the plaintiff had to show 1% negligence
in order to succeed on his claim as the defendant pleaded
that the
plaintiff's claim was limited to R25 000,00 for special damages
because the driver of the car wherein the plaintiff's
was a passenger
was solely negligent for the collision.
[4]
The application for the separation of the question of the merits
and quantum was successful and the matter proceeded in terms
of Rule
33(4) of the Uniform Rules of Court regarding the question of
negligence.
[5]
The plaintiff testified to the effect that he was a passenger in
the Nissan motor car driven by his
78
year old grand-mother. They were travelling from Middelburg in the
direction of Arnold. It was approximately 5pm and it was raining
quite heavily. He stated that the road had two lanes in each
direction and the middle of the road was separated by two solid lines
with yellow paint between the lines[see exhibit A1].
[6]
His grand mother was on the extreme left lane and she moved over
to the right lane in order to overtake another vehicle.
She passed
the vehicle which she overtook and suddenly the plaintiff noticed
brake lights of a car in front of them. His grandmother
swerved to
avoid colliding with the car and that is all which he can remember
as he was rendered unconscious. He could not say
how far to the
right his grand mother swerved. It was put to him that the
defendant's version was that his grandmother collided
with the
insured driver on the opposite side of the road and on the extreme
right lane from their side. He denied this. The plaintiff
estimated
that his grand mother was travelling at a speed of approximately
80km/h. With the completion of the plaintiff's evidence
his case was
closed.
[7]
Mr Thabethe acting for the defendant brought an application for
absolution from the instance. He submitted that the plaintiff
failed
to make out any case of negligence against the insured driver. This
application was strenuously opposed by Ms Strauss
who submitted that
the defendant's insured driver had to testify and the version put to
the plaintiff was not evidence. The test
for granting of judgment of
absolution was laid out in the matter of
Gascoyne
v Paul Hurter,
1917
TPD 170
where De Villiers JP at 173 stated:
"
At the close for the case for the plaintiff, therefore, the question
which arises for the consideration of the Court is.
is there
evidence upon which a reasonable man might find for the plaintiff ?
... The question therefore is. at the close of the
case for the
plaintiff was there a
prima
facie
case
against the defendant. ."
In
Atlantic
Continental Assurance Co of SA v Vermaak
1973
(2) SA 535
(E) at 526
F-H
the
court stated 'where the evidence on the merits relating to the
alleged negligence on both sides is in the nature of things
bound to
be inextricably interwoven, a trial court should be very chary of
granting absolution at the close of the plaintiff's
case "
[8]
Mr Thabethe thereafter led the evidence of Mr Lawrence Johnson
[Johnson] a member of the defence force during 1996. The
gist of his
evidence was that the vehicle in which the plaintiff was a passenger
had overtaken his car immediately preceding
the collision. He stated
that he was travelling at a speed of approximately 80-90km/h.
According to him when the vehicle overtook
him it gradually moved
towards its right, namely towards the opposite side of the road. He
stated that he did not observe a vehicle
in front of him at the time
the Nissan was overtaking his vehicle.
[9]
Mr Johnson stated that he made a u turn after the accident in
order to assist the injured people. His car's hazard were
on prior
to the accident as visibility was poor. He noticed that the Nissan
vehicle was on the extreme right lane and the truck
was off the road
surface approximately 20 metres into the bush or grass.
[10]
The second witness which the defendant called was the insured
driver, Mr Solomon Setabola [Mr Setabola]. He stated that
he was
driving from Belfast towards Tshwane and that he had 2 passengers
seated with him in the front of the truck and approximately
twenty
passengers at the back of the vehicle. He described the weather on
that day as
"it
was raining and it was also misty".
According
to him if on coming cars had their head lights on you could observe
them from about 40 metres away. He was asked to
point out the
distance and it appeared that it was 25 metres rather than 40
metres.
He
stated that he was
"astonished
to see the vehicle heading towards him and that it was travelling at
a high speed and in a wink of an eye the car
collided with the
vehicle he drove" .He
stated
that he tried to swerve to his left in order to avoid the collision
however he was unsuccessful in his attempt
11]
He described the damage to the Nissan to the front, top and driver's
side. According to him the Nissan collided with the right
side of his
vehicle.
[12]
During cross-examination this witness stated that after the accident
his truck was off the road surface on the grass and that
the Nissan
wherein the plaintiff was a passenger was in the lane he was
travelling on. According to him the Nissan came towards
his side of
the road and he saw it crossing the middle lines and he realized that
the vehicle was going to collide with him. He
swerved towards his
left in order to avert the accident. It was put to Mr Setabola that
he was adapting his version as he failed
to state in his evidence in
chief that he took his foot of the accelerator pedal and he also
failed to tell the court that he applied
brakes. He was confronted
with the evidence of Mr Johnson who testified that the Nissan moved
gradually across the middle line
whereas Setabola stated that the
vehicle moved across swiftly. His response to this difference was
that
"I
don't know people never view a thing the same way" -
see
S
v
Oosthuiizen l982(3) SA
571
(T-)Where statements are made by two witnesses, the Contradiction in
itself proves only that one of them is erroneous.
[13]
Pursuant to Mr Setabola's evidence the defendant closed its case
[14]
Ms Strauss submitted that the court should find that the insured
driver was negligent in that he failed to take reasonable
steps to
avoid the accident when he could do so, such as apply brakes or
travel at a slower speed than that which he was travelling
at. Mr
Thabethe on the other hand hardly surprisingly submitted that the
insured driver did everything expected of a reasonable
driver to
avoid the accident. He swerved his truck towards the left in order to
avoid the accident.
[15]
During their respective addresses to the court both counsel agreed
that the sole issue which I needed to determine was whether
the
insured driver was contributorily negligent in that he did not take
appropriate action in order to avert the accident. Both
advocates
agreed with me on this aspect. Neither of them could provide me with
any reported authority dealing with a similar situation.
This case
had to be determined on the factual matrix of evidence presented
before me.
APPRAISAL
OF WITNESSES AND THE EVIDENCE
[16] The
evidence of Mr Cass, the plaintiff, did not assist in the
determination of the question of whether there was any negligence
on
the part of the insured driver. The common cause evidence in this
matter are :-
That
the vehicle the plaintiff was a passenger in drove off onto the
wrong side of the road ;
That
it was raining heavily at the time and visibility was limited to a
distance of 25-40 metres;
the
collision took place on the lane in which the insured driver was
travelling on;
that
the plaintiff's grand mother died in the accident and that the
plaintiff suffered injuries arising out of the collision:
that
Mr Johnson was traveliing at a speed of between 80-90km/h when the
Nissan passed him and that the Nissan at that stage was
travelling
at least 20km/h faster than Mr Johnson's vehicle.
that
the plaintiff saw what appeared to be brake lights which caused the
driver, his grand mother, to swerve onto the lanes off
oncoming
traffic;
[17]
Mr Johnson was an independent and objective witness and it is his
evidence which to a large extent gives the court a semblance
of how
the accident took place. Although he did not observe red brake lights
ahead of him he was prepared to concede that there
could have been
another car ahead of him. This entrenches the view that the weather
conditions were severe and that visibility
was limited.
[18]
The test to determine negligence has always been described as the
"reasonable man test". In
Kruger
v Coetzee
1966
(2) SA 428
(A) Holmes JA stated :
"
For the purposes of liability
culpa
arises
if-
(a)
a
diligens
paterfamilias
in
the position of the defendant-
(i)
would
foresee the reasonable possibility of his conduct
injuring another
in his person or property and causing him
patrimonial loss; and
(ii)
would
take reasonable steps to guard against such
occurrence; and
(b)
the
defendant failed to take such steps
This
has been consistently stated by this Court for some 50 years,
requirement (a) (ii) is sometimes overlooked. Whether a
diligens
paterfamilias
in
the position of the person concerned would take 3ny 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. Hence the futility, in general,
of seeking
guidance from the facts and results in other cases."
[19]
Mr Setabola on his version was travelling at a speed of 90km/h.
It was submitted by defendant's counsel that the speed
in those
circumstances was excessive and had he been travelling at slower
speed he could have avoided the accident. I do not agree
with
counsel's submission in this regard because both the driver of the
vehicle wherein the plaintiff was travelling in and Mr
Johnson were
travelling at a similar speed. In fact on Mr Johnson's evidence the
plaintiffs vehicle was travelling between 100-110km/h
at the time he
was being passed. It would appear that the cause of the accident
occurred when the plaintiff's grand mother overtook
Mr Johnson's
vehicle at an in opportune time and when she moved into the right
lane travelling towards Witbank, she saw the brake
lights ahead of
her causing her to swerve. This sat in motion a train of events,
namely that she crossed over to the incorrect
side of the road and
secondly an accident occurring on the left lane of her travel on the
incorrect side of the road. The fact
that the plaintiffs driver was
negligent is
fait
accompli,
however
the question which needs be answered is whether the insured driver
was also negligent in that he did not adhere to the requirement
set
out under (a) (ii) referred by Holmes JA.
[20]
Applying the principles laid down by the Appellate Division in
Coetzee's
matter
supra,to the facts presented in this matter I am of the view that the
insured driver who would have been two lanes away from
the Nissan
vehicle travelling in opposite directions to each other, would have
had limited vision to about 25 metres ahead of him.
When the Nissan
swerved to its right, onto its incorrect side, the speed at which it
swerved would be an important factor. On this
score Mr Johnson
described its movement as a gradual swerve as opposed to the insured
driver who described its movement as fast
and rapid. Mr Setabola
stated that he swerved but was unsuccessful in avoiding the accident.
In this regard he stated that his
vehicle after the accident was off
the road surface and some 20 metres into the grass on the left of the
road. This is important
in that it indicates that the truck moved of
the road either because of the impact or because the driver swerved
as he testified.
Whether Mr Setabola applied brakes or not in the
circumstances and could have thereby avoided the accident 1 have my
doubts. He
did what any reasonable driver in the circumstances would
instinctively have done namely swerve to avoid the accident.
Notwithstanding
his attempt at avoiding the accident as he put it" he was
unsuccessful."
[21]
In the circumstances I am of the view that the insured driver was not
negligent and that he tried to avoid the accident. Accordingly
I am
of the view that the plaintiffs action should be dismissed with
costs.
APPERANCES
For
the Plaintiff: Adv S Strauss instructed by J H Van Der Merwe
Inc-Pretoria
For
the defendant: Adv Thabethe instructed by Geldenhuys Lessing Malatji
Inc- Pretoria
'
Judgment delivered on 4 March 2009.