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[2009] ZAGPPHC 322
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Van Blommestein and Another v Road Accident Fund (6108/07) [2009] ZAGPPHC 322 (23 August 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
PRETORIA
CASE NO: 6108/07
NOT REPORTABLE
DATE: 23 AUGUST 2009
In
the matter between
:
JOHANNA
JACOBA VAN
BLOMMESTEIN 1
st
Plaintiff
HELENA FRANCINA JOCINA
COLESKE 2
nd
Plaintiff
and
THE ROAD ACCIDENT
FUND Defendant
JUDGMENT
Judgment reserved:
18/09/09
Judgment
handed down: 23 /09/09
LEGODI
J,
INTRODUCTION
[1]
In this action, the two plaintiffs are claiming damages
against The Road Accident Fund (hereinafter referred to as the
defendant)
arising from a motorvehicle collision which occurred on
the 23 August 2002, at a robot intersection of corner Voortrekker and
Kruger
Streets in Vereeniging.
[2]
The collision was between a motorvehicle driven by the first
plaintiff and another motorvehicle driven by one Inspector Joubert
(hereinafter referred to as the insured driver).
[3]
At the start of the hearing of this matter, counsel for the
plaintiff applied for separation of merits from quantum. The
application
was duly granted by this court and therefore the matter
proceeded only on merits.
PLEADINGS
[4]
In their particulars of claim, the plaintiffs aver that the
collision was due to the negligent driving of Inspector Joubert, who
is alleged to have been negligent amongst others in one or more of
the following respects: that he failed to keep a proper look
out,
that he failed to avoid the collision whilst through reasonable care
he could have done so, that he failed to apply brakes
at all or
timeously in order to avoid the collision and that he made an
unexpected turn in front of the first plaintiffs motorvehicle.
[5]
The alleged grounds of negligent were denied in the
defendant’s plea as follows:
"
3.1 The allegations contained in this paragraph are denied as if
specifically traversed and the Plaintiffs are placed to
the proof
thereof
3.2
Alternatively
in the event of it being held by the above Honourable Court, that a
collision occurred as alleged by the plaintiffs
and that the driver
of the insured vehicle was negligent (which is denied), the Defendant
pleads that such negligence was not the
cause of the collision. The
Defendant pleads that the collision was caused by the sole negligence
of the I
st
Plaintiff, she being negligent in one or more or all of the following
respects:
3.2.1
she failed to keep a proper look-out;
3.2.2
she failed to avoid the collision when,
by taking reasonable or proper care, she both could and should have
done so;
3.2.3
she failed to take sufficient account of
the presence and/or alternatively
visibly intended actions of the insured
vehicle;
3.2.4
she failed to take due regard of other
road users, in particular the insured vehicle;
3.2.5
she failed to exercise proper or
adequate control over his vehicle;
3.2.6
she failed to apply the brakes of his
vehicle timeously, or at all;
3.2.7
she drove at an excessive speed under
the prevailing traffic conditions
3.3
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 cause of the collision (which is also denied) the,
and in that event, the
Defendant avers that the I
st
Plaintiff was also negligent and that her negligence contributed to
the cause of the collision. Particulars of the I
st
Plaintiffs negligence are set out in the preceding sub-paragraph.
PLAINTIFFS’
EVIDENCE
[6]
Two witnesses testified on behalf of the plaintiffs. These
were the plaintiffs themselves. Their evidence in nutshell was to the
following effect:
6.1
On the evening of the 23 August 2002, they were traveling
along Vortrekker road, coming from the south direction towards the
north.
The second plaintiff was the only passenger in the first
plaintiff’s vehicle.
6.2
About 20 meters towards a robot controlled intersection of
Voortrekker and Kruger streets, they noticed that the robot was red
for
them. At that this stage, the first plaintiff also saw three
motorvehicles stationery parallel to each other at the intersection.
The three vehicles were coming from the north direction towards
south. They were waiting for the robot to turn green. The insured
vehicle was one of these vehicles.
6.3
The road in question has double lanes from all four
directions. At the direction from the north the third vehicle which
was stationery
at the robot, was on the side as if it was going to
turn to its left towards the east into Kruger Street.
6.4
The first plaintiff was traveling at about 60 kilometers per
hour at the time she realized that the robot ahead of her was red.
She reduced the speed to about 40 km per hour by applying brakes.
When she was about 15 meters towards the robots, the lights turned
green for her. Just when she entered the intersection, the ensured
vehicle, which was on the extreme right when one comes from
the north
unexpectedly moved into the intersection in the face of the
plaintiff’s vehicle. It was just too late for the first
plaintiff to do anything to avoid the collision despite the fact that
she tried to swerve. As a result a collision took place,
like almost
in the middle of the intersection more or less at a point marked by
the first plaintiff as point X on the sketch plan
marked Exhibit E.
The insured vehicle came to a standstill after the collision at a
point marked C indicated on Exhibit E, which
is just almost in front
of point X. The plaintiff’s vehicle on the other side, came to
a standstill across the intersection,
west northerly direction at a
point marked D. In short this was the evidence of the plaintiffs.
DEFENDANT’S
EVIDENCE
[7]
Two witnesses also testified on behalf of the defendant. These
were the insured driver and one Mr Viviers. The insured driver
entered
the intersection from East to West along Kruger road. The
robots were green for him. As he entered the intersection, at a point
marked by him as Bl, he saw the first plaintiff’s vehicle. He
realized that the first plaintiff’s vehicle was not going
to
stop. At point XI marked by him, his vehicle and that of the first
plaintiff collided. He could not have avoided the collision.
The
collision took place as he was trying to swerve in order to avoid the
collision. The robots were red for the plaintiffs when
the collision
took place. This in short was the evidence on behalf of the
defendant.
ISSUES RAISED
[8]
At the start of the submission, I enquired from the parties as
to whether the followings were not issues raised by the pleadings
and
evidence:
8.1
Whether or not the plaintiffs have succeeded in showing that
the insured driver was coming from the north to south before the
collision
and not from East as alleged by the witnesses on behalf of
the defendant? And if so,
8.2
Whether on the defendant’s evidence, and in particular
the insured driver’s evidence negligence has not been
established
against the defendant?
[9]
Counsel for the plaintiffs agreed that, indeed these were the
issues to be determined in this case. In my view, added to the issues
raised in 8.1 and 8.2, the other issue is, whether or not there is
contributory negligence? And if so, what is the extent of such
contributory negligence?
[10]
Before I deal with these issues, I find it necessary to refer
to some few principles that might be of relevant to the issues.
APPLICABLE PRINCIPLES
[11]
As rightly pointed out by counsel on behalf of the plaintiffs
in paragraphs 22 to 24 of his written heads of argument, where there
are two mutually destructive stories, a party bearing the onus like
the plaintiffs in the present case, can only succeed if the
court on
a preponderance of probabilities is satisfied that the version of a
party bearing the onus, is accurate and acceptable
and that the other
version advanced by the other party is false, mistaken and that it
falls to be rejected as such. In doing so,
the court will weigh up
and test the allegations of a party bearing the onus against that of
general probabilities. The estimate
of the credibility of a witness
will therefore be inextricably bound up with consideration of the
probabilities of the case. If
the balance of probabilities favours
the plaintiff, then the court will accept such a version as being
probably true. If however,
the probabilities are evenly balanced in
the sense that they do not favour the plaintiffs case, anymore than
they do, the defendant’s
case, the plaintiff can therefore only
succeed if the court nevertheless believes the plaintiff and is
satisfied that his or her
evidence is true, and that of the
defendant’s version is false.
(See
National Employees General Insurance Company Ltd v Jagers
1984 (4) SA
437
E at 440).
[12] A driver who enters
an intersection whilst the robot is green should look for the traffic
that is already at the intersection,
for example, the traffic that
had already entered the intersection before the traffic light had
changed. He or she must also not
ignore which he or she is aware of,
which clearly moving in a negligent manner.
(See
Netherlands Insurance Co of SA Ltd V Brummer 1978 94) 824 (A) at 833
E-F).
However, it is not expected of him to look at the
traffic that might unlawfully go against a red robot at an
intersection from left
or right.
[13]
The duty of a motorist who approaches an intersection and
enters it with the green light in his favour, is to have regard to
the
reasonable possibility that traffic which entered the
intersection lawfully, may still be in the intersection. He should
therefore,
regulate his speed and his entry into the intersection in
such a manner as not to endanger the safety of such other traffic.
The
motorist
is to the intersection when the traffic lights turns green in
his favour, the more likely it is that the
intersection may not be
completely
clear of traffic
. (My own emphasis).
(See
Doorsha and others v Parity Insurance Co. Ltd
1963 (3) SA 365
D at
367 F - 368 and Santam Insurance Co. Ltd v Gouws 1985 (2) 629 AD at
634 l-J)
DISCUSSIONS,
SUBMISSIONS AND FINDINGS
[14]
I must immediately deal with the first issue raised in
paragraph 8.1 of this judgment.
Whether
or not the plaintiffs have succeeded in showing that the insured
vehicle was coming from north to sought and not from east
to west as
alleged by the defendant’s witnesses?
[15] Here one is
confronted with two contradictory versions by two witnesses from both
sides. Therefore, the principle set out in
paragraph 11 of this
judgment is applicable and preponderance of probabilities plays a
major role in assessing and evaluating the
two versions. Credibility
is also a relevant consideration.
15.1
The three vehicles as explained by the first plaintiff was not
specifically corroborated by the second plaintiff. The second
plaintiff
was only alerted to the insured vehicle by the first
plaintiff. For example, during her evidence, the second plaintiff
indicated
that the robot changed to green. The first plaintiff
increased the speed. The next moment the first plaintiff said, to the
second
plaintiff that a car was driving in front of them. The first
plaintiff then indicated that she was going to knock the other car.
The second plaintiff then saw the insured vehicle moving in front of
them, then there was a collision. Now till up to this stage,
did the
second plaintiff seen the three cars coming from the northerly
direction as testified by the first plaintiff. On the second
plaintiffs version, it looks like she only became aware of the
insured vehicle when she was alerted thereto by the first plaintiff.
Very difficult therefore to rely on her version regarding the
direction of the insured vehicle just before the collision. One can
only rely on the first plaintiffs evidence regarding the north to
south direction of the insured vehicle.
15.2
However, against the first plaintiffs evidence in this regard,
it is the insured driver’s evidence and that of Mr Viviers.
According to Mr Viviers, he also came from the same direction as the
plaintiff’s vehicle. He stopped at the intersection
on the left
lane because the robot was red for him. The insured vehicle
approached from the east direction. The robot was green
for the
insured driver.
1 5.3 Whist counsel for
the plaintiff sought to criticize the evidence of Mr Viviers as being
evasive or unreliable, I must immediately
say I did not share the
same view. Mr Viviers was a neutral witness. Unlike the other three
witnesses, he has nothing to gain from
the collision or to protect
himself. Secondly, he impressed me as a good witness. For example, he
readily conceded that it is possible
that at the time of the actual
collision the robot might have been green for the plaintiffs.
15.4 His evidence, that
is, Mr Viviers’ evidence materially corroborated the evidence
of the insured driver that the latter
approached the intersection
from the east. Counsel for the plaintiff also sought to criticize the
insured driver’s evidence
as having been wanting. For example,
in a statement or affidavit deposed by him on the 27 August 2002, he
indicated that he was
traveling from south to north in Votrekker
street. If one was to go by this, it means he was driving in the same
direction as the
plaintiffs. However, this was corrected by hand on
the 2 October 2002. The statement was corrected to read
vanaf
oos na wes”.
15.5
In his evidence before me, he indicated that indeed it was a mistake
to state in his statement of 27 August 2002
“vanaf
suid na noord
”
.
.
I am prepared to accept that it
was a mistake and not much a cover up or corroboration of the
plaintiffs’ evidence. His evidence
in any event is corroborated
by the evidence of a neutral witness, Mr Viviers. I therefore find
that the evidence of the defendant’s
witnesses is more probable
than that of the plaintiffs. Put it
differently, the
plaintiffs have failed in showing on the balance of probabilities
that the insured vehicle came from north to
south. This must then
bring me to another issue which was not specifically raised in
paragraphs 8.1, 8.2 or 9.1 of this judgment
Whether
at the time of the collision or impact the robots were green or red?
[16] Probabilities play a
role again here. Secondly, credibility is also relevant. This aspect
is linked to the averment in paragraph
3.2.1 of the defendant’s
plea that the first plaintiff did not keep a proper look out. I have
already made a finding that
the insured driver was coming from east
to west. This finding has the effect that the first plaintiff could
not have seen the insured
vehicle until at the time when it was in
front of her. Her allegations of the three cars at the robot
including the insured vehicle
as I said, was not specifically
corroborated by the second plaintiff. She is also not claiming to
have seen any car coming from
the east when in actual fact there was
a car, the insured vehicle. In the light of all these, her evidence
and that of the second
plaintiff as having observed the robot lights
turning to green is terribly shaken and cannot be relied upon.
[17] Whilst Mr Viviers
conceded that it is possible that at the time of the impact, the
robots could have turned green for him,
such a concession should be
seen in context. Firstly, the insured driver had said. He said the
robots were red for the plaintiffs.
Secondly, Mr Viviers had been
waiting for the robot to turn green. In a split of some seconds,
whilst the robot was still red he
saw through the mirror that the
plaintiffs’ car was going to drive through a red robot. At that
stage, he spoke to his wife
and suddenly there was a collision. The
suggestion is that, within those few seconds when he spoke to his
wife, the robots could
have turned green. I find this to be unlikely
and wanting to speculate on the concession made by Mr Viviers, unless
if one was
to find the plaintiffs’ version to have been
credible and more probable. I cannot make a finding in favour of the
plaintiffs
in this regard. I therefore find that the probability is
that the robot was still green for the insured driver at impact.
[18]
In any event, even if one was to be wrong in this regard, the
first plaintiff would still be hit by the principle referred to
earlier
in paragraph 13 of this judgment. That is, the closer the
motorist is, to the intersection when the traffic lights turns green
in his favour the more likely it is that the intersection may not be
completely clear of traffic. I now turn to deal with the issue
raised
in paragraph 8.2 of this judgment.
Whether
on the defendant’s evidence, negligence has not been
established?
[19]
The insured driver at point B1, as indicated by him, saw the
first plaintiffs’ car at a distance of about 50 meters. At that
moment he was traveling at a speed of about 40 KM per hour. As he
noticed the first plaintiffs’ vehicle, he realized that
the
first plaintiffs’ vehicle was going to hit against a red robot.
The insured driver however, did not stop or apply brakes.
Instead he
proceeded until up to point XI. As I said earlier, point XI is almost
in the middle of the intersection whiles B1 is
just before entering
the intersection across the two lanes that go towards the south. This
would mean that instead of applying
brakes as hard as possible, the
insured driver crossed the two lanes towards the south with the
result that in the middle of the
intersection a collision took place.
He said so under cross examination that, if he had applied brakes at
B1, the collision would
not have taken place. I do not think that
this concession is a speculation as suggested by counsel on behalf of
the defendant.
Bearing in mind that the insured driver crossed two
lanes without applying brakes after having seen the danger of the
first plaintiff’s
car and bearing in mind that he was traveling
at a speed of 40 KM per hour, his concession is not improbable or
farfetched. He
should therefore be found to have failed to avoid the
collision whilst through reasonable care he could have done so. This
does
have a bearing on contributory negligence. I must immediately
then turn to deal with the issue raised in paragraph 9 of this
judgment.
Whether
or not there is contributory negligence? And if so, what is the
extent of contributory negligence?
[20]
As I have just indicated in paragraph 19 above, the insured
driver should be found to have been negligent as well. Or to put it
differently, he did not act like a reasonable man in the
circumstances. However, the issue is the extent of negligence. This
is
not an easy task. You cannot use any formula.
[21]
I have already found that in all probabilities, the robot was
still red for the first plaintiff at impact. Secondly, the first
plaintiff
failed to see the insured vehicle coming from the east
until it was just too late to take any helpful evasive steps. She
should
therefore be found to have been more negligent than the
insured driver. The apportionment should therefore be 7
0%/30%
against the first plaintiff.
CONCLUSION
[22]
I therefore make an order as follows:
22.1
Judgment in 30% of the first plaintiffs proven damages is
hereby granted.
22.2
Judgment in 100% of the second plaintiffs proven damages is
hereby granted.
22.3
The defendant to pay the costs of the action to date.
M
F LEGODI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
FOR
THE PLAINTIFFS: C J VAN RENSBURG ATTORNEYS
Saambou Building
Shop no. 2, Ground Floor
227 Andries Street
PRETORIA
REF: CVR/CV0077
TEL NO. 01 2 335 1938
FOR
THE DEFENDANT: MOTHLE JOOMA SABDIA & ATTORNEYS
Duncan Manor, 1
st
Floor
Cnr Duncan
&
Brooks Streets
BROOKLY,
PRETORIA
REF:
G S GARDEN/C KOPPLINGER/LS/CKO8I 5
TEL
NO.: