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[2009] ZAGPPHC 200
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Modirapula v Road Accident Fund (28560/2006) [2009] ZAGPPHC 200 (11 June 2009)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
Case no.: 28560/2006
Date: 11/06/2009
In
the matter between:
MARGARET
SEBOTSENG
MODIRAPULA
.......................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
….......................................................,,,,,,,
Defendant
JUDGMENT
VlLAKAZl AJ:
1.
The Plaintiff claims payment in the sum of R 1 306 215.73 plus
interest thereon at the rate of 15, 5% from the date judgment
to the
date of payment against the defendant, arising from accident which
occurred on the 31
st
of December. 2002 at Amandabult,
Northern Province between herself and a motor vehicle with
registration number CDY119MW (insured
motor vehicle) then driving by
a certain Edward N Mothusi (insured driver).
2. The defendant denies
liability in
toto.
3.
On or about the 31
st
December 2002 the plaintiff was involved in a motor accident as a
result of which she sustained the following injuries:
1.
Laceration of:
i.
The forehead and
ii.
The right knee.
2.
Fracture of:
i.
Both upper arms
ii.
Left femur
iii.
Left fibia
iv.
Right ankle (compound)
4.
On admission at Amandabult Hospital, she was stabilised by the
doctors; thereafter transferred to Peglerae Private Hospital in
Rustenburg where internal fixation of the fractures was performed,
the laceration of the forehead and knee sutured
5.
In her particulars of claim she avers that the collision has been
caused solely by the negligence of the insured driver, he being
negligent on one or more of the following instances:
“
2.1.
He drove the said vehicle reckless, negligently and unlawfully
2.1.1.
he drove the said vehicle and public road without a valid drivers
licence or
2.1.2.
he
failed to apply brakes timeous/y and adequately or
2.1.3.
he failed to fail to regards for other road users or
2.1.4.
he failed to keep
a
proper
lookout or
2.1.5.
he drove at an excessive
speed
under
the circumstances or
2.1.6.
he failed to keep the insured motor vehicle under control or
2.1.7
.
he
failed to take precaution to prevent the said collision, when by use
by reasonable care and skill; he could and should have avoided
the
said collision."
6.
In its plea the defendant denies this allegations and alleged,
amongst others that:
6.1.
she fasted to take the rights of other road users
,
specifically
the insured driver into account;
6.2.
she failed to take any, alternatively sufficient notice of the
presence
and/or
movement of the insured motor vehicle:
6.3.
she entered the main thoroughfare, and the insured driver’s
lane of travel at the time when if
was unsafe
and/or
inopportune to do so and in total disregard of her own safety and the
safety of other road users
,
particularly
the insured driver;
6.4.
she attempted to cross
a
main
thoroughfare and the insured drivers lane of travel
,
af
the
time when it
was
unsafe
and/or inopportune to do so and in total disregard of her own and the
safety of other road users more particularly the insured
driver "
7.
Over and above that, the defendant pleaded that there was
contributory negligence on the part of the plaintiff which justified
an apportionment of damages, if any, awarded to the plaintiff in
terms of the Apportionment of Damages Act of 1956. At the
commencement
of the trial, the parties agreed to a separation of
quantum and merits. The plaintiff was the only witness in her case
while for
the defendant there were no witnesses at all. The
plaintiffs evidence was briefly to the effect that as she was walking
alone and
approaching a certain tarred road. When she was near the
sharp curve she noticed the insured motor vehicle approaching from
the
left. She proceeded until she reached the gravel portion on the
right side of the Curve. She did not pay any further attention to
the
oncoming motor vehicle as she assumed that it would follow it normal
course of travel. The
next
moment she raised her eyes, she realised that the motor vehicle was
not following the curve but was coming straight down towards
her. She
tried to retreat but it was too late and the insured motor vehicle
collided with her She passed out and regained consciousness
at
hospital.
8.
During cross-examination, it emerged that the plaintiff had made a
statement to the police which was inconsistent with his evidence
before court. The statement was to the effect that she was trying to
cross the tarred road when the collision occurred The plaintiff
admitted having made a statement to the police while she was in
hospital She admitted further that all other information which
appeared on the statement was given to the police by herself.
However, she vehemently denied having told the police that she was
trying to cross the tarred road at the time of the collision The
plaintiff denied that the statement was read back to her though
she
admits having signed it. The statement was not handed in as an
exhibit. '
9.
In any civil case, the
onus
rests on the plaintiff to prove his/her case on the balance of
probabilities. In considering the merits, the Court will take into
account the evidence as whole, the probabilities and improbabilities
in order to arrive at a decision. In this case, the Court
will have
to look at the probabilities of the plaintiffs version as against the
version put to her during cross-examination. It
is evident when one
considers the plaintiffs version that the accident could not have
happened as she had described it.. When one
scrutinised the sketch
plan and the photos contained in the bundle, it becomes clear that
the accident could not have happened
as she described. The road
starts to curve a few metres from where she had allegedly been
standing and makes a sharp curve frorm
right to the left. If the
driver of the insured motor vehicle had been driving on the left lane
and lost control of the vehicle
as he was negotiating the curve, the
insured motor vehicle would have careered Straight onto the overgrown
area and collided with
or even drove-passed the chevron by a few
meters.
10.
Even without retreating the insured motor vehicle would not have
collided with the plaintiff. On the evidence, the court is
not
satisfied that the collision occurred as described by the plaintiff
but is inclined to believe that the plaintiff was crossing
the road
at the time of the collision On the plaintiff s own version there is
a degree of contributory negligence on her part and
the court accepts
that she was attempting to cross the road at the time when it was
inopportune for her to do so and without exercising
a proper lookout,
11.
Similarly the driver of the insured motor vehicle did not keep a
proper lookout and failed to take reasonable steps to avoid
the
collision which by exercise of reasonable care and skill he could and
should have avoided the collision. Had the insured driver,
as an
observant and diligent motorist, kept the movement of the plaintiff
under observation he could have realised that the plaintiff
did pay
attention of his distance and carried on walking until it was too
late for both of them to avoid the inevitable. During
cross-examination of the plaintiff it was not put to the plaintiff
what steps were taken by the driver of the insured motor vehicle
to
avoid the collision. Significantly, there was no indication that the
driver used hooted to draw the plaintiffs attention of
his approach.
12.
The Court is accordingly satisfied that there was simultaneous
negligence on both parties. However, the driver of the insured
motor
vehicle had a greater responsibility to keep his vehicle under proper
control and to ensure the safety of other users of
the road, in
particular the plaintiff in this matter. Accordingly an apportionment
in terms of the Apportionment of Damages Act,
34 of 1956 is
applicable to this matter.
13.
The defendant does not contest the quantum which has been established
through several medico-legal reports, occupational therapists
and
psychologists.
14.
Having
weighed all the facts in this matter the court is of the view that
40% negligence must be apportioned against the plaintiff
The
defendant does not dispute the quantum.
15.
As the plaintiff has been substantial!/ successful in her claim the
costs must follow the cause.
Consequently:
Judgment
is granted in favour of the plaintiff as follows:
Past
medical expenses R38 286 26
Future
hospital and medical expenses R127 400.00
General
damages R180 0000
Past loss
earnings R4800 00
Future loss of
earning R172 000
Total R522 486, 29
Interest
on the above amount at the rate of 15,5% per annum from date of
judgment to date of payment;
Costs
of suit
TJ
VILAKAZI
ACTING
JUDGE OF THE HIGH COURT