Khoza v Road Accident Fund (08/9454) [2009] ZAGPJHC 100 (3 December 2009)

80 Reportability

Personal Injury Law - Road Accident Fund

Brief Summary

Delict — Negligence — Road accident — Plaintiff claims damages from Road Accident Fund following fatal collision involving her husband — Collision caused by negligence of unidentified taxi driver who swerved into oncoming traffic — Plaintiff's husband attempted evasive action but lost control of vehicle — Court finds taxi driver solely responsible for creating emergency situation, with plaintiff's husband taking reasonable evasive measures — Defendant liable for 100% of damages.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a civil action for damages arising from a fatal motor vehicle collision, brought against the Road Accident Fund in respect of an unidentified insured vehicle (an unidentified taxi). The plaintiff, Ms Elizabeth Matladi Khoza, sued both in her personal capacity (as widow of the deceased) and in her representative capacity as mother and natural guardian of the minor child Angel Khoza, who was the deceased’s child.

Two separate actions had been instituted under case numbers 08/9459 and 08/9454. At the commencement of trial, the court consolidated the actions and ordered a separation of issues, with liability to be determined first and quantum to stand over and be postponed sine die.

By the close of the evidence, the only remaining dispute on the merits was whether the collision (between the plaintiff’s vehicle and another identified vehicle) was caused by the negligence of the driver of the unidentified taxi, or whether it was instead caused solely by the alleged negligence of the plaintiff’s driver, Mr Norman Khoza.

2. Material Facts

It was undisputed that the collision occurred on 31 May 2007 at approximately 16h00 on the R101 national road near Bela Bela. The road was a tarred two-lane road carrying traffic in opposite directions, with a yellow line marking the edge of the roadway and a narrow margin beyond the line before uneven ground. In the immediate vicinity of the collision there were drains/ditches on both sides of the road, with a concrete stormwater pipe under the road and chevron demarcation poles.

It was also undisputed that the collision in issue occurred between a maroon Nissan (registration RCJ 031 GP) travelling in the lane towards Limpopo, and a green Ford (registration KJB 404 GP) travelling in the opposite direction towards Pretoria. Mr Norman Khoza drove the Nissan; his father sat in the front passenger seat; the deceased and the plaintiff sat in the back. Ms Veronica Mehlape was a passenger in the Ford.

On the accepted version, a large truck approached the Nissan from the opposite direction. The Ford was travelling immediately behind the truck, and an unidentified taxi was travelling behind the Ford. The taxi then moved into the oncoming lane (the Nissan’s lane) in order to overtake the Ford and the truck, and continued overtaking at high speed while remaining on the wrong side of the road in the face of oncoming traffic.

Mr Khoza, driving the Nissan at approximately 80 km/h, perceived an imminent head-on collision with the taxi. He attempted to warn by hooting and then took evasive action by moving the Nissan off the tar onto the gravel/uneven ground to the left of the roadway. While travelling on the uneven surface, the Nissan headed towards a drain. Mr Khoza believed he could not stop before reaching the drain and therefore swerved to the right to avoid it. The taxi and truck had by then passed. When the Nissan’s front wheels re-entered the tarred surface (at a higher level than the gravel), Mr Khoza lost control, and the Nissan crossed into the path of the oncoming Ford, where a collision occurred despite evasive action by the Ford.

The principal factual dispute relevant to liability concerned whether Mr Khoza’s driving, particularly his steering on the gravel and his re-entry onto the road, was negligent in a way that rendered him the sole cause of the collision, or whether his driving was a reasonable reaction to an emergency created by the taxi.

3. Legal Issues

The central legal issue was whether the plaintiff had discharged the onus of proving negligence and causation on the part of the driver of the unidentified taxi, such that the Road Accident Fund would be liable for the plaintiff’s proven damages (and those of the minor child).

The dispute was primarily one of the application of legal standards of negligence to the facts, including an evaluative determination of what a reasonable driver would have done when confronted with a sudden emergency, and whether any error of judgment by Mr Khoza could properly be treated as negligent or as an excusable response made in the “agony of the moment”.

A related question was whether, even if some fault could be attributed to Mr Khoza, the plaintiff nonetheless proved at least some causally relevant negligence by the taxi driver sufficient to ground liability.

4. Court’s Reasoning

The court accepted the evidence of the plaintiff and her witnesses as credible, reliable, and probable, noting that although there were inconsistencies between their accounts (and between prior statements and oral evidence), these were adequately explained as stemming from language issues and the manner in which statements were taken without being read back or explained in the witnesses’ own languages. The defendant called no witnesses, and the court treated the plaintiff’s version of the events as adequately supported and mutually corroborated on material aspects.

On the merits, the court reasoned that the risk of a head-on collision between the taxi (overtaking on the wrong side) and the Nissan (approaching in its correct lane) was a very real and imminent danger. The court found that the taxi driver was undeniably responsible for creating the emergency, since the taxi had imprudently moved into the lane of oncoming traffic and persisted in overtaking at speed.

The court regarded it as common cause (or, at least, not reasonably disputable on the evidence) that Mr Khoza took evasive action by leaving the tar and driving onto the gravel. It inferred that the Nissan would have entered the gravel at approximately the same speed it had been travelling before leaving the tar (about 80 km/h), as there was no evidence of braking at that moment.

In evaluating Mr Khoza’s subsequent steering choices on the gravel, the court considered the proximity of the drain, the uneven and unsuitable surface, and the short time available for decision-making. It found it probable that, without further evasive action, the Nissan would have collided with the drain. In those circumstances, Mr Khoza’s judgment that he could not stop timeously and his swerving to the right to avoid the drain were not considered unreasonable, particularly given the evidence that the vehicle was “moving up and down” on the uneven surface and could not be properly controlled.

The court rejected an artificial “compartmentalisation” of the sequence into isolated steps; it emphasised that events unfolded within seconds, in a rapidly developing emergency. Even if Mr Khoza could be said to have over-steered to the right, the court held that such an error would be excusable as one that a reasonably careful and skilled driver might commit in the agony of the moment, applying the approach endorsed in the authorities it cited.

On causation and liability, the court concluded that the plaintiff had discharged the onus of proving that the collision and its consequences were caused by the negligence of the taxi driver, whose conduct was described as patently negligent and as showing a disregard for the safety of other road users. The court added that even if some fault were attributed to Mr Khoza, the taxi driver’s fault remained significant, and the plaintiff had in any event proved at least minimal causal negligence (“the proverbial one percent”) on the part of the unidentified taxi driver sufficient to establish the defendant’s liability on the merits.

5. Outcome and Relief

The court held that the Road Accident Fund was liable to compensate the plaintiff and the minor child in respect of the proven or agreed damages arising from the collision.

The court ordered that the defendant was liable to pay the plaintiff 100% of her proved or agreed damages in her personal capacity, and 100% of Angel Khoza’s proved or agreed damages in the plaintiff’s representative capacity. The defendant was also ordered to pay the plaintiff’s costs of the hearing. The determination of quantum remained postponed sine die pursuant to the earlier separation order.

Cases Cited

Van Staden v May 1940 W.L.D. 198.

Thornton v Fismer and Another 1928 A.D. 398.

Kleynhans v African Guarantee and Indemnity Co. Ltd. 1959 (2) S.A. 619 (E.C.D.).

Legislation Cited

No legislation was expressly cited in the judgment text provided.

Rules of Court Cited

No rules of court were expressly cited in the judgment text provided.

Held

The court found that the plaintiff proved, on a balance of probabilities, that the collision and resulting harm were caused by the negligence of the driver of the unidentified taxi, who created a sudden emergency by overtaking into oncoming traffic at speed. The court accepted that the Nissan driver’s evasive manoeuvres were a reasonable response in the circumstances, and that any error of judgment occurred in the “agony of the moment” and did not displace the causal negligence of the taxi driver. On that basis, the Road Accident Fund was held liable for 100% of the plaintiff’s and the minor child’s proved or agreed damages, with costs awarded against the defendant.

LEGAL PRINCIPLES

A driver who creates a sudden and dangerous situation on the road through imprudent overtaking into oncoming traffic may be found negligent and causally responsible for a resulting collision, even where the physical impact ultimately occurs between other vehicles reacting to the danger.

Where a driver is confronted with a sudden emergency not of their own making, the evaluation of negligence takes account of the “agony of the moment”. An error of judgment made in the split seconds of an emergency may be treated as excusable, provided it is of a kind that a reasonably careful and skilled driver might make under the same conditions.

In establishing liability, it is sufficient for a plaintiff to prove that the insured (or unidentified insured) driver’s negligence was a causal contributor to the collision. The judgment reflects that even minimal causal negligence on the part of the unidentified vehicle’s driver may suffice to establish the defendant’s liability on the merits in the circumstances presented.