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[2009] ZAGPPHC 178
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Graceffa v Road Accident Fund (4124/06) [2009] ZAGPPHC 178 (23 March 2009)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT
PRETORIA
DATE:23/03/2009
CASE
NR.:4124/06
In
the matter between:
A
GRACEFFA
….....................................................................................
PLAINTIFF
versus
ROAD
ACCIDENT
FUND
......................................................................
DEFENDANT
JUDGMENT
MAKHAFOLA,
AJ
:
INTRODUCTION
:
[1]
The
plaintiff who is 69 years old has issued summons against the Road
Accident Fund for damages suffered by him on account of being
knocked
down by a motor vehicle with registration letters and numbers
BJX404NC there and then driven by one FGJ Laubscher, the
insured
driver. The collision occurred between the insured motor vehicle and
the plaintiff who was a pedestrian.
[2]
The question of quantum has been settled. The court must now decide
the question of liability. The disputes centre on the crossing
location. According to the plaintiff he was crossing the road at the
intersection in Klerksdorp at the corner of Church and Delver
Streets, walking from north to south as indicated on the plan. The
defendant in its short plea denied almost all of the allegations
contained in the particulars of claim save for partially admitting
paragraphs 1 and 2 relating to the names of the plaintiff and
the
defendant.
CASE
FOR THE PLAINTIFF:
[3]
Antonino Graceffa testified that he was involved in a motor accident
on 2 January 2002 in Klerksdorp at or near the intersection
of Delver
and Church Streets. The intersection is robot controlled. When the
insured vehicle collided with him it was about 10:30
to 11:00. He was
on his way to Checkers and he was walking. According to him he
arrived at the robot and waited for it to turn
green before he could
cross. When the robot turned green, and whilst he was walking across
the street, he found himself on the
ground on the other side of the
road, because a small van had hit him. From the collision with the
van he sustained injuries to
his right hand side of the hip and foot.
[4]
Petro Antonio Graceffa is the son of the plaintiff. He had received a
phone call from his brother, telling him that his father
had been
knocked down by a motor vehicle. He proceeded to the scene where he
found his father lying. He also found the driver of
a light coloured
bakkie there. The driver of the bakkie went to him and told him that
he was not from Klerksdorp. He further told
him that when he look up
he just saw his father in front of the bakkie. He found the bakkie at
the crossing, further down north.
The defendant’s case was
closed without calling any witness to testify.
THE
LAW
:
[5]
In FISHER V MALGA
1937 TPD 261
at page 266 Greenberg J stated that:
“until the court has all the facts before it, until it knows
all the circumstances that
combined to produce the result which was
observed, it cannot say definitely that the Defendant was negligent.”
[6]
This is not a case where there is mutually destructive evidence
because the evidence of the defendant is not before the court.
The
court relies, and will have to decide the outcome of this case on the
evidence of the plaintiff and his witness. The court
relies also on
the versions put to the plaintiff especially “the admission
that the driver admits he did not see you, he
saw you just before he
hit you in front of the vehicle.”
Vide
:
NATIONAL EMPLOYER’S GENERAL INSURANCE V JAGERS 1984 (4) SA437
(ECD) at 440 d-g and NATIONAL EMPLOYEES MUTUAL INSURANCE ASSOCIATION
V GANI
1931 AD 187.
In the circumstances of this case, the principles
enunciated in above two cases do not apply.
[7]
During cross-examination the plaintiff admitted that when he collided
with the bakkie he did not see where it had come from.
The plaintiff
should have kept a proper look out when he entered the intersection
to cross over the road. The fact that the robot
was green for him did
not absolve him from the duty of care.
[8]
On the flip side of the coin the insured driver as a reasonable
driver was expected to have taken reasonable steps to ensure
that it
was safe to cross an intersection by keeping a proper lookout for
pedestrians crossing the road. If the driver knows what
to do, but
does not care at all, this amounts to reckless driving which is more
serious than negligent driving. The principle expressed
in the
following criminal cases is sufficiently instructive.
Vide
:
R V RUNDLE [1953(2)] SA 662 (SR)
RV
LEVINE
1927 TPD 949.
[9]
On the totality of the evidence before court it is clear that both
the plaintiff and the insured driver were proportionally
negligent.
In the result I find as follows:
a)
that both the plaintiff and the insured driver were negligent;
b)
that both the plaintiff and the insured driver have by their
negligence contributed to the collision in question;
c)
that the plaintiff was 20 % negligent and the insured driver 80 %
negligent;
d)
that the plaintiff has succeeded to prove 80 % of his damages;
[10]
In conclusion, I make the following order:
(i)
the defendant is liable for 80 % of the damages suffered by the
plaintiff;
(ii)
judgment is granted on the basis of 80 % to 20 % in favour of the
plaintiff in terms of the provisions of the Apportionment
of Damages,
ACT 34 of 1956;
(iii)
the draft order marked “XX ‘ is made an order of court.
K
MAKHAFOLA
JUDGE
OF THE HIGH COURT
Advocate
for Applicant: Adv. AG Horak
Attorney
for Applicant: Van Zyl le Roux Attorneys
Advocate
for Defendant: Adv. E Seima
Attorney
for Defendant: Rangath Attorneys