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[2009] ZAGPJHC 117
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Zotter v Road Accident Fund (08/15848) [2009] ZAGPJHC 117 (26 October 2009)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Case No. 08/15848
Date:26/10/2009
In the matter between:
ALFRED
ZOTTER
........................................................................................
Plaintiff
and
ROAD ACCIDENT
FUND
........................................................................
Defendant
MEYER, J.
[1] This is a claim for the payment of
compensation for damages as a result of bodily injuries caused by a
most unnecessary motor
vehicle collision. The parties were in
agreement that the issues for decision at this stage should exclude
the
quantum
of
damages and be confined to the questions of negligence and causality.
I ordered such separation.
[2] The following undisputed facts
appear from the pleadings and the evidence of the only witnesses who
testified, who are the plaintiff,
his wife, and the driver of the
insured vehicle, Mr. Mathikinga. The collision occurred on 3
September 2005 at about noon on the
N12 highway between the Snake
Road on-ramp and the Putfontein off-ramp (‘the highway’).
The distance between the Snake
Road on-ramp and the Putfontein
off-ramp is about two kilometers. The plaintiff was the driver of a
1.3 Ford Bantam light delivery
vehicle bearing registration number
and letters CNS 473 GP (‘the plaintiff’s vehicle’).
He was accompanied by
his wife, Mrs. Zotter. Mr. Mathikinga was the
driver of a 1.3 Ford Tracer motor vehicle with registration number
and letters FHW
537 GP (‘Mr. Mathikinga’s vehicle’).
He was accompanied by a passenger to whom he had given a lift. Both
vehicles
entered the N12 highway at the Snake Road on-ramp and
travelled in an easterly direction towards Witbank. The intention of
each
driver was to exit the highway at the next off-ramp, which is
the Putfontein off-ramp.
[3] The conditions were in every
respect ideal. It was a clear day. The visibility was excellent.
The part of the highway on
which they were travelling has a
double-carriageway for traffic travelling east and good sized
emergency lanes on both sides (exhibit
‘A’, photographs 1
– 8). Mr. Mathikinga probably entered the highway shortly
before the plaintiff and his wife
did. There was no traffic visible
to him while he was travelling on it. The plaintiff and his wife
also did not encounter traffic
apart from Mr. Mathikinga’s
vehicle. They noticed Mr. Mathikinga’s vehicle for the first
time when it was about five
hundred metres ahead of them. It was
travelling in the left lane at an estimated speed of between 80 –
90 kilometres per
hour. The plaintiff and his wife were at that
stage also travelling in the left lane at an estimated speed of 100
kilometres per
hour. The plaintiff moved over to the right lane to
overtake Mr. Mathikinga’s vehicle. The collision between the
two vehicles
occurred when the plaintiff’s vehicle reached that
of Mr. Mathikinga.
[4] The respective versions of the
point of collision (impact) are mutually destructive. The
plaintiff’s version is that
Mr. Mathikinga’s vehicle
swerved over to the right lane when the plaintiff commenced
overtaking it and it collided with the
plaintiff’s vehicle in
the left lane in which the plaintiff was travelling. The defendant’s
version is that Mr. Mathikinga
was travelling in the left lane when
the plaintiff’s following vehicle collided into the rear of Mr.
Mathikinga’s vehicle.
[5] The plaintiff indisputably did not
keep a proper look-out. He lost sight of Mr. Mathikinga’s
vehicle at some stage before
his vehicle even reached that of Mr.
Mathikinga. The plaintiff conceded that he did not see where Mr.
Mathikinga’s vehicle
was travelling when he was still
approaching it, that he did not see it when his vehicle reached it
and when his vehicle was about
to pass it, and that he did not see it
when the impact occurred. The plaintiff testified that he was just
looking straight ahead.
[6] I find it astounding, on anyone’s
version, that the plaintiff did not even see Mr. Mathikinga’s
vehicle immediately
before and at the time of the impact. On the
plaintiff’s version, Mr. Mathikinga’s vehicle swerved
over to the right
lane and the contact between the vehicles was
behind the right rear wheel towards the rear end of Mr. Mathikinga’s
vehicle
and on the left front side forward of the left front wheel on
the plaintiff’s vehicle. This means that most of Mr.
Mathikinga’s
vehicle was immediately next to and forward of the
plaintiff’s vehicle on its left side. On Mr. Mathikinga’s
version,
the plaintiff’s vehicle collided with the right rear
of his vehicle. This means that part Mr. Mathikinga’s vehicle
was immediately ahead of the plaintiff’s vehicle at the time of
the impact.
[7] Apposite is the following passage
in the judgment of Jansen, J.A. in
Nogude
v. Union and South-West Africa Insurance Co. Ltd.
1975
(3) 685 (A.D.), at p 688 A – C:
‘
A proper look-out entail a
continuous scanning of the road ahead, from side to side, for
obstructions or potential obstructions
(sometimes called “a
general look-out”; cf.
Rondalia
Assurance Corporation of S.A. Ltd. V. Page and Others,
1975
(1) S.A. 708
(A.D.) at pp. 718H – 719B). It means –
“
more than looking straight
ahead – it includes an awareness of what is happening in one’s
immediate vicinity. He (the
driver) should have a view of the whole
road from side to side and in the case of a road passing through a
built-up area, of the
pavements on the side of the road as well”.
(
Neuhaus,
N.O. v. Bastion Insurance Co. Ltd.,
1968
(1) S.A. 398
(A.D.) at pp. 405H – 406A).
Driving with “virtually blinkers
on” (
Rondalia
Assurance Corporation of S.A. Ltd. V. Gonya,
1973
(2) S.A. 550
(A.D.) at p. 554B) would be inconsistent with the
standard of the reasonable driver in the circumstances of this case.’
[8] The plaintiff suggested that he
did not see Mr. Mathikinga’s vehicle since he, the plaintiff,
had to keep his eyes on
the road straight ahead of him because of the
speed of 100 kilometres per hour at which he was travelling. If this
is so then
he was also travelling at an excessive speed in the
circumstances of this case even though he was travelling at a speed
that was
below the speed limit and in excellent conditions for
travel.
[9] Mr. Mathikinga’s evidence
that his vehicle travelled towards the left side on the left lane
‘touching’ the
emergency lane is probable since it is
common cause that he was travelling at a relatively slow speed of
between 80 – 90
kilometres per hour on a highway with a speed
limit of 120 kilometres per hour. It is common cause that there was
nothing untoward
in the way in which his vehicle was travelling until
immediately before the collision occurred. One would have expected
him to
merely continue on his course on the left of the road. He
testified that he had no reason to change over to the right lane and
that he intended to take the upcoming Putfontein turn-off to his
left. Mrs. Zotter, however, came up with a reason why Mr.
Mathikinga’s
vehicle suddenly swerved to the right and impacted
with the plaintiff’s vehicle in the right lane.
[10] The plaintiff testified that his
wife told him that the insured driver was talking to his passenger at
the time of the impact.
In her evidence in chief, Mrs. Zotter said
that she looked at Mr. Mathikinga when they got close to his vehicle
and she noticed
that he was talking and looking at the passenger that
was seated next to him. When they got nearer to his vehicle, she
noticed
his vehicle moving over to their side. She alerted her
husband by saying ‘watch out’ to him. They ‘caught’
Mr. Mathikinga’s vehicle at its rear right hand side when they
were passing it. Her version changed somewhat when she was
cross-examined. She said that she saw Mr. Mathikinga talking to and
looking at his passenger when they were about 6 – 7
metres away
from his vehicle. His vehicle swerved somewhat to the left and then
suddenly swerved over to the right lane when they
reached the rear of
his vehicle and started to overtake it. She did not notice whether
Mr. Mathikinga and his passenger were still
communicating when Mr.
Mathikinga’s vehicle swerve to the right. She also
contradicted herself as to which vehicle impacted
with which one.
[11] Mr. Mathikinga testified that he
only spoke to his passenger, who was a young man of about 15 or 16
years of age and unknown
to him, when the young man asked him for a
lift and again when the impact happened. Adv. Z. Kahn, who appeared
for the plaintiff,
submitted that it is improbable that a
conversation would not have taken place between Mr. Mathikinga and
his passenger. I disagree.
Counsel’s submission in this
regard ignores the fact that his passenger was unknown to him, the
wide age difference between
them, and the divergent traits of people.
[12] Mr. Mathikinga testified that he
steered his vehicle onto the left emergency lane and easily brought
it to a standstill in
the emergency lane after it had been impacted
at its right rear end. The evidence of the plaintiff and that of his
wife was that
the plaintiff’s vehicle went over to the far
right and into or through a ditch in the centre island which divides
the two
parts of the highway. Adv. Kahn submitted that the post
impact movements of the two vehicles are inconsistent with Mr.
Mathikinga’s
version and rather support the version of the
plaintiff’s wife as the probable one. I disagree. The
direction in which
Mr. Mathikinga’s vehicle moved after the
impact – into the emergency lane and forward – is, on the
evidence available
to me, not improbable or inconsistent with his
version of a rear end impact, particularly when regard is had to the
relatively
small size of each vehicle and the relative estimated
speed of each (80 – 90 and 100 km p/h). Any inference drawn
from the
fact that Mr. Mathikinga’s vehicle did not spin or its
rear end did not swerve more dramatically because of the impact will
be mere speculation and will amount to dubious reasoning. Nor can
any inference be drawn from the movements of the plaintiff’s
vehicle. The post impact movements of the two vehicles do, in my
view, not establish any probability favouring the one version
above
the other.
[13] Adv. Kahn submitted that Mr.
Mathikinga was also negligent since he did not view what was
happening behind him through the
rearview mirrors of his vehicle.
This submission is, in my view, also without merit. Mr. Mathikinga
testified that he viewed
what was happening behind him from time to
time, but that he did not notice the plaintiff’s vehicle until
after the impact.
This means that he probably did not use his
rearview mirrors during the time that the plaintiff’s vehicle
was travelling
behind his vehicle when it would have been visible to
him in the rearview mirrors of his vehicle. He cannot, in my
judgment, in
the circumstances prevailing at the time be held at
fault for not having looked in the rearview mirrors of his vehicle
more frequently
than he did.
[14] Mr. Mathikinga’s version is
on the totality of the evidence the more probable one. He was an
impressive witness. A
consideration of the probabilities does not
detract from the favourable impression that he made while he was in
the witness stand.
I accept his evidence that he was not distracted
by a conversation with his passenger and I consider the evidence of
Mrs. Zotter
not to be reliable on this issue. There accordingly
exists no plausible reason why Mr. Mathikinga would have swerved his
vehicle
into the lane in which the plaintiff and his wife were
travelling. The plaintiff, on the other hand, clearly did not keep a
proper
look-out of the road ahead of him and it is probable that his
vehicle or part of it veered into the right lane and collided with
the right rear end of Mr. Mathikinga’s vehicle.
[15] I conclude in finding that the
plaintiff has not discharged the
onus
of proof on a balance of
probabilities that the collision was caused by any degree of
negligence on the part of the driver of the
insured vehicle Mr.
Mathikinga. I should mention that it is a matter of regret that no
police plan and evidence relating to the
investigation that was
conducted at the scene of the collision shortly after its occurrence
were presented at the trial. Such
evidence may have included
evidence of debris and other marks found on the road at the scene of
the collision from which an approximate
point of collision may have
been inferred.
[16] In the result the following order
is made:
The plaintiff’s claim is
dismissed with costs.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
26 October 2009