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2009
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[2009] ZAGPJHC 35
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Gover v Road Accident Fund (31278/07) [2009] ZAGPJHC 35 (11 August 2009)
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 31278/07
In the matter between:
GOVER JUNE ALISON
PLAINTIFF
and
ROAD ACCIDENT FUND
DEFENDANT
______________________________________________________________
JUDGMENT
SALDULKER J:
A. INTRODUCTION
[1] The plaintiff
has instituted an action against the defendant for damages su
ffered
as a result of personal injuries sustained in a motor vehicle
collision on 16 November 2006, at the intersection of Verona
and
Main Streets, Rosettenville, Johannesburg.
[2] T
he
collision occurred between motor vehicle registration number NDR 147
GP driven by the insured driver, E. H. Ngwu and a motor
vehicle
registration number JPP728 GP driven by the plaintiff.
[3] At the
commenc
ement
of the trial the question of liability and quantum were separated in
terms of Rule 33(4) and the matter proceeded only on
the question of
liability.
B. EVIDENCE
[4] The plaintiff
testified that on the morning of 16 November 2006, at approximately
10h30, she was travelling from west to east
along Verona Street, Rosettenville. Verona Street is a flat,
straight road with two lanes and forms an intersection at right
angles with Main Street, which runs from north to south.
[5
]
The plaintiff was familiar with the intersection as she travelled
through it approximately 2 to 3 times per month. The intersection
is
controlled by traffic lights and is busy depending on the time of
day. A chemist which is situated on the north-western corner
of the
intersection, obscures the vision of the eastbound driver in Verona
Street, of the vehicles approaching from the northern
side in Main
Street.
[6]
On
her approach to the intersection, the chemist was on her left side.
She entered the intersection at approximately 60km/ph, with
the
traffic lights green in her favour. There were no cars travelling
immediately in front of or behind her. When she was almost
in the
middle of the intersection, her daughter who was a passenger in the
vehicle, shouted: “
This
car is not going to stop
”.
[7
]
The next moment, the insured driver, travelling in a maroon Fiat
Uno collided with the left side of her vehicle, at the centre
of the
front and rear passenger doors. She was unable to avoid the collision
and her vehicle spun and ended up facing east to west
on the other
side of the road. When the ambulance arrived, she was fitted with a
neck brace and removed from the scene of the collision.
[8
]
Under cross- examination she stated that there was no time to apply
brakes and had she done so, the collision would probably
still have
happened. She would also not have been able to accelerate fast enough
through the intersection to avoid the collision
as she drove a 1300
sedan vehicle which did not possess the capacity of rapid
acceleration. When asked whether she could have
swerved to avoid the
collision, she replied that she could not do so due to the presence
of pedestrians on the side of the road.
[9
]
She testified that the insured driver did not hoot nor did she see
him prior to the collision. When her daughter ‘shouted’
at her the insured driver was travelling at more than 60km/ph. She
did not expect the insured driver to travel through the intersection
with the robot against him. She had no time to react.
[10
]
On being questioned by the court the plaintiff conceded that she
should have seen the vehicle of the insured driver but did not.
She
was looking in the front as she travelled. However, she stated that
because of the obstruction posed by the chemist on her
left, in Main
Street, which extended approximately 1.5m to 2m from the corner of
the roadway, she would not have seen the insured
driver on her
approach at any time prior to her field of vision becoming clear of
such obstruction.
[11
]
The defendant closed its case without calling any witnesses.
C
.
THE LAW
[12
]
The case of
Diale
v Commercial Union Assurance CO of SA Ltd
1
was concerned with a vehicle which suddenly appeared from behind an
impenetrable screen (a hedge in that case, a chemist in casu)
creating a source of danger. It was held that it would have been a
different matter if that vehicle was visible and under observation
for some time and thereafter executed a dangerous manoeuvre. The
facts were as follows:
“
On the
north-eastern corner of the intersection
there was … a fairly tall, opaque garden hedge. From the
point of view of a motorist approaching the intersection along
Tana
Road this hedge had the effect of limiting his view of traffic
approaching the intersection along 5
th
Avenue from the north, i.e. from the motorist’s right, in that
traffic was not visible while it was behind the hedge. The
degree of
limitation naturally decreased as the motorists neared the
intersection – and the angle of vision changed –
and, of
course, at a certain point, near the commencement of the
intersection, the hedge ceased altogether to obstruct his view.”
2
And at G to H:
“
Harm
sen’s
own account of what happened is, shortly, to the effect that he
approached the intersection at a speed of 35-40 miles
p.h. He was
looking ahead of him. At or near the intersection he saw a flash on
his right hand side. He applied his brakes and
swerved slightly to
his left. There was an impact with his motor vehicle, in the region
of the right hand headlight, and something,
later identified as the
plaintiff, was thrown over the bonnet of his vehicle against the
windscreen, which shattered on impact.
The impact and the
commencement of braking took place virtually simultaneously.”
3
[13
]
Corbett JA stated
“
In the present case the reasonable motorist in Harmsen’s
position would have required a substantial period of time
to identify
the object appearing from behind the hedge, to assess its speed,
direction of travel and apparent intention and to
realise that it
presented a source of danger.”
4
[14
]
It was further held in
Diale
that the motorist was not under a duty to keep the cross street under
the same careful observation as he would have been obliged
to do had
it not been a stop street, and that there was no compelling reason
why the motorist should have looked to the right before
looking to
the left
,
‘and that , after the cyclist had emerged from the hedge, the
motorist would have required a substantial period of time
for
assessing the position and reacting to it’.
In these circumstances, it was held that it was very doubtful whether
the plaintiff had established that there had been a delay
on the
motorist’s part, in observing the cyclist and taking evasive
action, sufficiently substantial to amount to negligence.
[15
]
Furthermore, Corbett JA, stated that assuming in the plaintiff’s
favour that there had been a culpable delay on the motorist’s
part, the plaintiff had failed to establish that this had been
causally connected with the collision in the sense that, had the
motorist reacted when a reasonable man would have reacted , the
collision would probably not have occurred.
[16
]
Similarly in
National
Employers’ General Insurance Co Ltd v Sullivan
5
, a through street driver’s vision of a cross street was
obscured by a fence. It was also held that
“the
driver in a through street, while being required to keep a general
lookout, is entitled to assume, in the absence of
indicators to the
contrary, that a driver approaching from a stop street will heed the
stop sign operating against him and bring
his vehicle to a stop. It
is only when it would become apparent to a reasonable man in the
position of the driver in the through
street that the driver in the
stop street does not intend to stop, or will not be able to stop,
that the duty rests on the through
street driver to take appropriate
avoiding action. Until that stage is reached, it is not incumbent
upon him, under normal conditions,
to regulate his driving on the
assumption that the driver in the stop street may not stop.”
6
And at
p
36 H – I:
“
It is
also when it became apparent to him that the Capri was not going to
stop - and there is nothing to suggest that his appreciation
of this
fact was unreasonably delayed – that the duty arose on his part
to take avoiding action. It has not been shown that
by then, allowing
for reaction time, the distances the vehicles were apart and their
respective speeds, there was anything he could
do either to avoid
collision or materially reduce the effect thereof.”
7
[17
]
In both
Diale
and
Sullivan
no
contributory negligence was found on the part of the driver who had
the right of way.
D
.
ASSESSMENT OF EVIDENCE
[18]
The
plaintiff approached and entered the intersection with the traffic
lights in her favour. Her view to the left, being the direction
from
where the insured driver came, was obscured by a chemist which
extended almost to the corner, on the north-western side of
the
intersection.
[19] The
plaintiff’s evidence was not challenged and
no
rebutting evidence was presented. She withstood the rigours of
cross-examination and testified candidly and clearly. As a witness
she was reliable, credible and trustworthy. She was travelling
through a robot controlled intersection, travelling with the robot
in
her favour when the collision occurred.
[20] On approaching
the intersection, the plaintiff was reasonably entitled to expect
that the insured ve
hicle
approaching from Main street, although not yet visible to her,
because of the chemist which obscured her vision, will
heed the red
traffic light operating against him and bring his vehicle to a stop.
[21] Additionally
,
the insured vehicle would not have been visible to the
plaintiff until she
was very close to the commencement of the
intersection.
As was stated in
Sullivan
8
,
by Hefer JA :
“
The driver in a through
street, while being required to keep a general look-out, is entitled
to assume, in the absence of indications
to the contrary, that a
driver approaching from a stop street will heed the stop sign
operating against him and bring his vehicle
to a stop. It is only
when it would become apparent to a reasonable man in the position of
the driver in the through street that
the driver in the stop street
does not intend to stop, or will be unable to stop in time, that the
duty rests on the through street
driver to take appropriate avoiding
action. Until that stage is reached it is not incumbent upon him,
under normal conditions,
to regulate his driving on the assumption
that the driver in the stop street may not stop.”
[22
]
Furthermore, the plaintiff’s evidence that she did not see the
insured vehicle before the impact, is of no consequence.
The question
is, when would the reasonable man in the plaintiff’s position
realise that the insured vehicle intended not
to heed the traffic
lights and take steps to avoid the collision. Making allowance for
reaction time, the distances of the vehicles
and their respective
speeds, in these circumstances, no culpable delay can be attributed
to the plaintiff. There was no time to
avoid the collision.
[23] Even if such a
delay is assumed, it must be established that had the plaintiff
observed the insured vehicle prior to the collision,
she would have
been able to take avoiding action. The plaintiff was travelling at
approximately 60km
/ph
and could not come to a complete standstill in the middle of the
intersection. The plaintiff also could not accelerate in such
a short
space of time and distance, to a speed which would allow her to
clear her entire vehicle of the intersection thereby
avoiding the
collision. In any event, no such evidence was presented by the
defendant. The probabilities, thus favour the plaintiff.
[2
4]
Furthermore swerving to the right was not an option for the
plaintiff, as there were people standing at the corners of the road.
In any event, this can hardly be considered as evasive action since
the plaintiff would have swerved in the same direction in
which the
insured driver was travelling.
[25] The
uncontested evidence is that the insured driver drove at a high speed
through a red traffic light, thus establishing his
negligence. The
high speed at which the insured driver travelled reduced the time for
the reasonable man in the plaintiff’s
position to react.
[26
]
In my view the reasonable driver in the plaintiff’s position
would have required, as in the
Diale’s
case with Harmsen, a substantial period of time to identify the
object appearing from behind the chemist, assess its speed, its
direction of travel and apparent intention and thereafter realise
that it presented a source of danger.
[
27]
Every driver is under a duty to keep a proper lookout in relation to
controlled intersections. It is clearly not required
of a driver
approaching a green traffic light to assume that other drivers will
not stop at the corresponding red light, thereby
crossing its path of
travel, and to direct his/her actions in accordance with that
assumption. Only when it becomes apparent to
the reasonable driver
that a vehicle is going to run through the red traffic light does the
duty arise to take avoiding action.
The uncontested evidence in the
present case establishes that, that point in time arrived rather late
as the reasonable driver
in the plaintiff’s position would not
have seen the insured vehicle until she was near or at the
intersection by virtue of
the chemist obscuring her vision in that
direction.
E. CONCLUSION
[28] In view of
all the aforegoing, the defendant has failed to establish causal
negligence on the part of the plaintiff. It has
not been established
that the plaintiff’s failure to see the insured driver or a
delay on the part of the plaintiff in observing
the insured driver
and taking evasive action, was sufficiently substantial to amount to
negligence on the plaintiff’s part.
In these circumstances the
defendant has failed to establish that as a reasonable driver, the
plaintiff could have avoided the
collision or materially reduce the
effect thereof. There is no contributory negligence on the part of
the plaintiff.
[29
]
The plaintiff has succeeded in proving on a balance of probabilities
that the injuries that she sustained in the motor vehicle
collision
was caused as a result of the negligence of the insured driver.
F. ORDER
[30
]
In the result, I make the following order:
30.1 The
question of liability and quantum are separated in terms of Rule33
(4) of the Uniform Rules of Court
30
.2
The determination of quantum is postponed sine die.
30
.3
The motor vehicle collision on the 16 November 2006 was caused
entirely through the negligence of the insured driver.
30.4
The Defendant is ordered to pay to the plaintiff, 100% of her
agreed or proven damages suffered as a result of personal injuries
sustained in the motor vehicle collision on the 16 November 2006.
30.5
The Defendant is ordered to pay the Plaintiff’s costs in
respect of the determination of the question of liability.
--------------------------------
H.K.
SALDULKER
JUDGE OF THE
HIGH COURT
Plaintiff’s Attorney: Munro
Flowers & Vermaak
Plaintiff’s Counsel : Adv
Horn
Defendant’s
Attorney : Routledge Modise
Defendant’s Counsel: Adv
Ramapadi
Date of Hearing: 10 June 2009
Date of Judgment: 11 August 2009
1
1975(4) SA 572 (A)
2
Diale,p575,linesA-to B
3
Diale,p575
4
Diale,p578,lines A to B
5
1988(1)SA 27
6
Sullivan, Hefer JA,
p 36, D-F
7
Sullivan, p 36, H-I
8
1988 (1) SA 27
, at p36,D-E