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[2009] ZAGPPHC 49
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Sindane v Road Accident Fund (21801/2006) [2009] ZAGPPHC 49 (5 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA DIVISION)
CASE
NO: 21801/2006
In
the matter between:
LEBOGANG
SINDANE
Plaintiff
And
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
LEDWABA,
J
[1]
The plaintiff instituted a claim against the defendant in terms of
the
Road
Accident Fund Act 56 of 1996
(hereinafter
referred to as "the Act").
[2]
The parties agreed that the merits and quantum be separated. I, in
terms of the Rules of Court, ordered that the merits and
quantum be
separated and issued relating to quantum be stayed.
[3]
The accident upon which the claim is based happened on 25
th
January 2005 between 13H00-14H00 at the intersection of Pretorius and
Johan Streets, Arcadia, in Pretoria. It is common cause that
the
motor vehicle with registration PSD 177 GP (vehicle B) which was
driven by the plaintiff was involved in an accident with motor
vehicle registration number PXM 038 GP (vehicle A) which was driven
by Mr. J. Ramalepa (the insured driver).
[4]
In paragraph 4 of the plaintiff's particulars of collision it is
alleged that:
'The
collision was caused solely by the negligence of the insured driver
in that:
4.1. He
did not keep a proper look out of the road,
4.2. He
failed to consider the safety of other road users,
4.3
He
failed to apply the brakes of his motor vehicle adequately, timeously
or at all, alternatively he drove a motor vehicle of which
the
braking system was defective, a fact which he could and should have
been aware of by the exercise of reasonable care,
4.4
He
failed to exercise control over his motor vehicle under the
circumstances,
4.5. He
drove the motor vehicle at an excessive speed under the
circumstances,
4.6. He
failed to avoid an accident while he was in a position to do so with
the exercise of reasonable care that a driver would
have exercise
under the circumstances."
[5]
Defendant's plea to the said paragraph reads as follows:
"4.1
Each and every allegation herein contained is denied as if
specifically traversed and the plaintiff is put to the proof
thereof.
4.2
Alternatively, and in the event of it being held by the above
Honourable Court that a collision occurred as alleged by the
Plaintiff and that the driver of the insured vehicle was negligent,
which is denied, then the defendant pleads that such negligence
was
not the cause of the collision. The collision was caused by the sole
negligence of the Plaintiff, he (sic) being in one or
more or all of
the:-
4.2.1. he
(sic) failed to keep a proper look out;
4.2.2. he
(sic) drove at an excessive speed under the circumstances.
4.2.3
he (sic) failed to avoid a collision when, by the exercise of due
and reasonable care and skill, he could and should have
done so;
4.2.4. he
(sic) failed to maintain sufficient, alternatively any control over
his motor vehicle;
4.2.5. he
(sic) failed to pay due regard to motor vehicles in the area and in
particular, to the vehicle which the defendant was
driving.
4.3.
Further alternatively, and in the event of the above Honourable Court
finding that the driver of the insured vehicle acted
negligently as
alleged, which is denied, and that such negligence contributed to the
collision which is also denied, then and in
that event, the Defendant
avers that the Plaintiff was also negligent and that his (sic)
negligence contributed to the cause of
the collision, then it is
pleaded that apportionment of damages as is foreseen in the
Apportionment of Damages Act, should be ordered."
[6]
The plaintiff testified and closed her case without calling any
witnesses. The defendant's counsel applied for absolution from
the
instance and the application was dismissed because the court was of
the view that there was evidence upon which the court might
find in
favour of plaintiff.
[7]
After both parties closed their cases and during arguments, the
defendant's counsel informed the court that defendant intends
amending it's plea by adding paragraph 4.4 which reads as follows:
"4.4
Further
alternatively
,
in the event the above Honourable Court finding that the collision
did occur either as alleged or at all (which is still denied),
and
that the collision was solely caused a result of the negligence of
the insured driver, then in that event the Defendant pleads
that the
insured driver was faced with a situation of sudden emergency in that
the Plaintiff suddenly turned to the right into
Johan Street from the
second lane from the right (which lane does not permit her to turn)
while the insured driver's vehicle was
at close proximity."
[8]
The intention to amend the particulars of claim was raised during the
argument stage when the court informed defendant's counsel
that
defendant did not specifically raise 'sudden emergency' as a defence
in the plea.
[9]
Defendant's counsel's reason for bringing the application late was
that, he together with defendant's attorney only managed
to consult
with the insured driver in the morning on the day of the hearing.
[10]
I find it disturbing that the defendant filed a plea not knowing the
version of the insured driver. Defendant's attorneys were
served with
a
notice
of set-down on the 29
th
January 2008. The plaintiff's claim-form was lodged with the
defendant on the 23
rd
January 2006 and summons was served on 12
th
July 2006. The defendant had ample time to investigate and consult
with the relevant witnesse(s). The manner in which the defendant
failed to secure the insured driver's statement timeously is
unacceptable. A proper plea could have been filed and the Plaintiff
could have known and prepared it's case properly and timeously.
[11]
There was a delay bringing of the application for an amendment.
Application was refused. If the defendant had properly pleaded
to the
plaintiff's claim, the plaintiff could have known the nature of the
defendant's defence(s). This, in my view, should have
a bearing on
the question of costs.
[12]
It is common cause that vehicles A and B collided with each other at
the intersection, both vehicles were driving in Pretorius
Street to
the westerly direction prior too the accident. Pretorius Street is a
one way street and has four lanes at the intersection
where the
accident occurred. Johan Street accommodates vehicles moving from
south to north and from north to south.
[13]
When preparing for trial the plaintiff's version of how the accident
occurred differs materially with the evidence of the insured
driver
regarding the lanes on which each party was driving prior to the
collision.
[14]
The plaintiff said she was driving alone on the extreme right lane in
Pretorius Street which accommodates vehicles driving
straight and
vehicles turning to the right. The road was not busy and she was on
her way to Arcadia Street to see a doctor. When
she approached Johan
Street she reduced the speed of vehicle B about 30-40 kilometres per
hour. When she was about five (5) to
seven (7) metres away from Johan
Street she switched on her right indicator. On the question of why
did she turn to the right,
it is not clear because Arcadia Street is
on the southern side of Pretorius Street and runs parallel to
Pretorius Street.
[15]
She said when she started executing the turn to the right she heard
an impact on her vehicle, lost control of vehicle B and
it stopped
when it collided with a wall of a flat on her right side after the
intersection.
[16]
She further said she did not see the insured vehicle prior to the
accident. She cannot recall if she looked at her rear mirror
before
executing the turn. Vehicle B was damaged on the right front, right
middle back and the front as noted in the Accident Report
form (AR).
She sustained a broken femur.
[17]
As a result of the damages on vehicle B she assumed that the insured
vehicle was from behind. During cross examination she
was confronted
with the contents of paragraph three, exhibit 'C, and 'affidavit'
wherein she states that:
"The
accident occurred when I was travelling from east to west along
Pretorius street and as I was about to turn right into
Johan street,
having been indicating my intention to turn right, the vehicle which
was following me from behind hit my vehicle
on the right side
directly on the drivers door."
[18]
Her explanation to the contents of paragraph 3 of exhibit 'C was that
she did not see the insured driver colliding with her
vehicle, she
just assumed the insured driver collided with her right hand side
because of the damages on the right side of the
vehicle.
[19]
I provisionally accept the contents of exhibit 'C despite the
objection by plaintiff's counsel that it is prejudicial to the
plaintiff and that the document only given to them just before the
trial commenced. The court noted some problems regarding exhibit
'C,
for example, plaintiff said she did not sign it before the
commissioner of oaths despite the fact that it had a page showing
that it was duly signed and commissioned on 28
th
June 2008. The plaintiff said she signed it on the 27
th
June 2006.
[20]
The said document was discovered in an unsigned discovery affidavit
which was served on plaintiff's attorneys on 12
th
August
2005 and plaintiff's attorneys did not object to the validity of the
said 'discovery affidavit'.
[21]
At the pre-trial the parties agreed that the documents in the bundle
are what they purport to be without the parties admitting
the
contents thereof, for that, exhibit 'C is finally accepted and it
forms part of the record.
[22]
The insured driver's version is that he was in the extreme right lane
driving at a speed of about 55 kilometres per hour. He
saw
plaintiff's vehicle for the first time at a distance of further
argued that it plaintiff was travelling at 35 kilometres per
hour and
the insured driver drove at 55 kilometres per hour the damage would
not be extreme.
[25]
The plaintiff's version was that she was on the extreme left lane and
she assumed that the insured vehicle was behind her and
it collided
with her vehicle.
about
twenty-one (21) metres ahead on the second lane from the right. When
he was about five metres away from the intersection and
was about to
pass plaintiff's vehicle, the plaintiff's vehicle front part was
already in the intersection, she suddenly and unexpectedly
executed a
turn to the right. He did not have time to apply breaks nor swerve to
avoid the accident. Vehicle A collided with the
right middle side of
the plaintiff's vehicle, he lost control and the next thing he heard
was when his vehicle collided with the
wall on the right side after
the intersection.
[23]
He denied that plaintiff's vehicle right indicator was on and that
the plaintiff was driving on the extreme right lane.
[24]
Plaintiff's counsel argued that the plaintiff's version that she was
travelling at thirty to forty kilometres per hour was
not disputed.
Having record to the damages in the AR, especially to the damage on
the rear right side of plaintiff's vehicle the
court should infer
that the insured driver was driving too fast and he was driving
behind the plaintiff on the extreme right lane.
He further failed to
keep a proper look-out and his negligence caused vehicle A to collide
with vehicle B. He further argued that
if plaintiff was travelling at
35 kilometres per hour and the insured driver drove at 55 kilometres
per hour the damage would not
be extreme.
[25]
The plaintiff's version was that she was on the extreme left lane and
she assumed that the insured vehicle was behind her and
it collided
with her vehicle.
[26]
The insured driver's version was that he was on the extreme right
lane and was in a situation of sudden emergency. He further
said the
accident was caused by the plaintiff's negligence in that she turned
into the path of the insured vehicle when she was
not suppose to do
that. In my view, the defence raised in paragraph 4.2.5 of the plea
embraces the insured driver's version.
[27]
I carefully considered the contents of the AR and the evidence before
me. It is of importance to mention some of the damage
noted in the AR
in respect of vehicle A are disputed by the insured driver. The
plaintiff disputes the positions of the vehicle
set out in the AR
after the accident. The point of impact has not been marked in the
AR. The contents of the AR cannot assist the
court in the
adjudication of the case.
[28]
If the evidence in respect of the damages was clear, that could have
assisted the court in determining which version is more
probable. The
plaintiff clearly states that she did not see all the damages on
vehicle B. The plaintiff thinks vehicle A was behind
her and it was
travelling at an excessive speed. It is not very clear as to what
caused the damages on the right mid centre of
vehicle B. The damages
on the right mid centre of vehicle B may suit the insured driver's
version.
[29]
The version of the plaintiff and the defendant are mutually
destructive and the onus rests on the plaintiff to prove on the
balance of probabilities that the plaintiff's version is true and
that of the defendant's is false. In evaluating the evidence,
plaintiff had not discharged the onus.
[30]
I
therefore, make the following order:
(i)
I grant absolution from the instance.
(ii)
Each party to pay its own costs.
A.
P. LEDWABA
JUDGE
OF THE HIGH COURT
Date
of hearing: 23 February 2009
Counsel
for Applicants': Advocate B. L. Roode
Instructed
by: Van Rensburg Koen & Baloyi Attorneys
Counsel
for Respondent: Advocate D. P. Mogagabe
Instructed
by: Maponya Incorporated