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[2009] ZAGPPHC 337
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Leshalabe v Road Accident Fund (21631/08) [2009] ZAGPPHC 337 (19 May 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: 21631/08
DATE:
2009-05-19
In
the matter between
MKHOMOLA
FLORENCE LESHALABE
Plaintiff
versus
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
PRELLER.
J
:
The plaintiff was a pedestrian. She approached the Jane Furse public
road from the direction of certain RDP houses that were on
the one
side of the road. According to her there is an open space of some 50
metres between the houses and the road. There are
also houses on the
other side of the road.
The
incident happened on 4 June 2007 at about five o’clock in the
afternoon. She says that there were many pedestrians in
the area but
not in the immediate area where she was. She intended to cross the
road to the other side in order to catch a taxi
to take her home. The
direction in which she intended to go was to her right. While she was
waiting at the road she says that two
taxis passed from her left to
her right, in other words going into the direction that she wanted to
go herself. I do not know why
she mentioned these two taxis unless
she had the intention of catching one of them.
The
road itself is a single lane carriage in either direction and
according to the plaintiff, and this was common cause, there is
also
a yellow line on either side of the road with an emergency lane which
is about a metre wide. The road is straight and level
except that
approximately a 100 metres to the plaintiff’s right, that is in
the direction in which she proposed to travel
home, there is a hill
which I must infer is a blind rise.
The
plaintiff testified that she had stopped before she reached the tar,
looked to her right for oncoming traffic and that there
was none. She
then looked to the left and initially she said that whilst still
looking to her left she was struck by a motor vehicle.
Later on she
said that had she looked to her right first, then to the left and
when she turned her eyes forward she was struck
by the vehicle. She
said that this vehicle was travelling at a high speed and she only
saw it at the moment that it hit her. It
must be an inference that
she draws that the vehicle was travelling at speed and that inference
can only be drawn from the fact
that the vehicle was not there when
she looked to her right and covered the distance between the crest of
the hill and the point
of impact in a very short time.
I
have tried to establish but, of course, it is not possible to do so
with any degree of certainty, how long it takes one if one
is looking
to the right to turn one’s eyes to the left and to the front
again. There is no doubt that if one does this in
the normal way it
takes a second or two.
The
plaintiff says that the vehicle struck her with its left front part
near the headlight. She suffered a fracture of the right
tibia and
fibula and sustained what Dr Lekalakala called a segmented fracture.
That means that the tibia was fractured in two places,
the first
being about a third of the way up and the second being about two
thirds of the way up from the ankle. It was an open
fracture with the
bone protruding through the skin. The doctor says, and this is
actually a matter for general knowledge or common
sense, that there
must have been a considerable amount of force exerted on the leg in
order to cause this fracture. What is a considerable
amount of force
of course a relative concept and it is impossible to infer the speed
of the vehicle that had struck the plaintiff
from the fact of the
fracture. I say that because everybody knows that the mass of a
motorcar is far more than that of a person
and even when travelling
at as little as 20 or 30 kilometres an hour a vehicle with its
substantial mass must exert substantial
force on a person’s leg
if it were to hit a person.
The
insured driver on the other hand testifies that he came over the
crest of the hill and saw nothing. He never noticed the plaintiff,
not even when he passed her and only became aware of her presence
when he heard an impact on the left rear of his car. He suggests,
therefore, that the plaintiff walked into his car. He says that the
only damage to his car was a few minor dents in the vicinity
of the
cap to the petrol tank of his car which is situated somewhere near
the left rear wheel. He says there was no other damage
to his vehicle
and he was not challenged on that. He is corroborated to some extent
by the police Inspector Phalamohlaka who says
that he saw the insured
vehicle shortly after the collision. He says that he inspected it for
damage and the only damage to the
car was the dent or two about which
the insured driver testified and which was on the left rear part of
the car. He says that he
did inspect the car for other damage and
that there was none and he was also prepared to say that there was no
blood anywhere on
the car because he would have noticed it if it had
been there.
The
onus in a case of this nature is, of course, on the plaintiff to
persuade the Court, on a balance of probabilities, that her
version
of the collision is the correct one. I just interpose here to add
that according to the evidence of the insured driver
he was
travelling at a speed of between 50 and 60 kilometres per hour. He
was not challenged on this and I find no reason to reject
this
version.
On
the plaintiff’s version and if the speed of the insured vehicle
as given by the insured driver is correct it would have
taken
approximately six seconds for the car to recover the 100 metres from
the top of the hill to where the collision occurred.
It is simply
just not probable that the plaintiff could have spent that amount of
time just to look to her left before she turned
her eyes to the front
again. I think the simple fact is that she did not look to her right
or if she did look she did not take
proper notice of what was going
on. In any event if the distance to the top of the hill is relatively
short and
one would have expected her to
look to her right again before commencing to cross the road. It seems
to me probable that the plaintiff
was intent on catching one of the
two taxis that she had mentioned, that she was in a hurry and that
she had simply started to
cross the road without looking. I do not
see any reason why the insured driver would have actually swerved out
of his line of travel
to hit the plaintiff who was standing next to
the road on her version.
The
problem that I have with both versions is that it is difficult to
understand how the collision could have occurred in the way
that it
did and how the plaintiff could have suffered the injuries that she
did indeed suffer. I say that, because if the front
of the car had
collided with her, particularly at a relatively high speed one would
have expected her to have been thrown onto
the bonnet or the
windscreerf of the car and one would have expected more damage to the
car and also more injuries to the plaintiff
and perhaps, some open
wounds perhaps to her head and some blood on the car.
On
the other hand if the insured driver’s version is the correct
one it is difficult to understand why she would have sustained
this
kind of fracture to her right leg simply from walking into the side
of the moving car. The only explanation that occurred
to me of how
the accident could have happened was that as the plaintiff had put
her right-foot down and started to put some weight
onto it, the
corner of the left side of the car’s bumper hit her lower leg
and that she then fell forward as a result of
the support of her leg
being taken under her and that she fell against the left rear side of
the car causing the dents that were
noticeable there. That is, of
course, pure speculation and there is no basis in the evidence for
coming to the conclusion that
this was indeed the way that the
collision had occurred apart from the factors that I have mentioned
regarding the damage to the
car etcetera. It is no more than a
possible way in which the collision could have occurred.
I
think the probabilities favour the version that the plaintiff had
indeed walked into the road without looking. If the probabilities
do
not actually favour that version I think it can be said that the
plaintiff did not persuade me that the version of the defendant
is
not the correct one and I can consequently not accept her version.
I
therefore, have to adjudicate the case on the version given by the
insured driver.
On
his version it is quite clear that he did not pay proper attention to
the pedestrians that were not only on the road but also
next to it as
is the duty of the driver. He should have noticed the plaintiff
approaching the road if on his version she was walking
all the time
or standing next to the road if her version is to be accepted. He did
neither of these. If he had seen her approaching
in time he could
have warned her of his presence by sounding his hooter or he could
have swerved to avoid the collision with her
or perhaps even have
stopped. I find that he was negligent in not keeping a proper look
out and I would apportion 30% of the blame
for the collision
occurring to the insured driver.
In
the result the order that I would make is the following:
1.
It is declared that the defendant is liable for 30% of the damage
suffered by the plaintiff and
2.
The defendant is ordered to pay the plaintiffs costs.