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[2009] ZAGPPHC 349
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Diketane v Road Accident Fund (29547/06) [2009] ZAGPPHC 349 (11 December 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT PRETORIA)
CASE
NUMBER 29547/06
DATE:
11 DECEMBER 2009
In
the matter between
SELEGE
PAUL
DIKETANE PLAINTIFF
AND
ROAD
ACCIDENT
FUND DEFENDANT
JUDGMENT
TLHAPI
AJ
[1]
The plaintiff instituted action against the defendant for injuries
sustained in a collision at Tafelkop between the vehicle
driven by
the insured driver Mr JB Matlala (
“
Matlala
”
)
with registration numbers [
…
...]
and that of the plaintiff with registration numbers [
…
.....]
plaintiff claims carnages amounting to R2 150 000 00 for general
damages, loss of income, future medical expenses and related
expenses. By agreement between the parties only the issue of
liability had to be determined. A separation was ordered in terms
of
Rule 33(4) of the rules of Court.
The
main issue to be determined by the court pertained to the point of
impact. The plaintiff and the insured driver maintain that
the point
of impact was in their respective lanes.
THE
FACTS
[2]
The collision occurred at about 21.30 on 7 March 2003. The plaintiff
was travelling from his home at Phokoana towards Tafelkop.
The road
had two lanes divided by a white doted line in the middle and yellow
lines on the left each lane. According to the plaintiff
there were no
streets lights and he reduced his speed to 60km as he drove through
Tafelkop which was in a built up area. There
were no street lights.
He saw a vehicle which was at a distance of 80 -100km from his
vehicle. The said vehicle had its bright
lights on, and was
travelling in the opposite direction. He flickered his lights to
indicate to the oncoming vehicle that its lights
were on bright. The
driver of the oncoming vehicle failed to dim his lights. Although the
Plaintiff swerved his vehicle more towards
his left, he was familiar
with the condition of the road, he knew that he could not swerve to
the left off the tarmac because his
vehicle would have capsized. He
also lowered his eyes towards the dashboard in order to focus and see
the lines on the road He
heard a loud noise and regained
consciousness after two days. The impact took place in his lane.
After he recuperated he accompanied
the police to the scene and a
sketch plan of the accident scene was drawn so that he could lodge a
claim with his insurers.
[3]
Inspector Mokolo attended the scene on 7 March 2003. Both drivers had
been injured. He visited the scene about 3 month later
and had taken
the drivers individually on different occasions in order to draw a
sketch plan. On the day of the accident he made
certain observations.
The plaintiffs vehicle a Polo Classic ('vehicle A') was damaged on
the right hand side of the driver and
it was facing towards
Mosterlus. The bumper and lights fell off and were next to the
vehicle to the left of point V on the sketch
plan. The insured driver
was driving a Mitsubishi half/ton truck (vehicle B') and the damage
was on the right hand side of the
driver in front. The insured
driver's vehicle was facing the road with a pan of its body outside
the edge of the road.
The
sketch plan by Inspector Mokolo was annexed to the merits bundle
which formed part of the pleadings and the following observations
are
made:
1.
The
road was divided by a dotted line, the yellow lines are not shown
.
2.
A1
was the point of impact shown by the plaintiff and it appears more or
less next to the dotted line in plaintiff s lane
3.
B1
is the point of impact shown by the insured driver and it is more or
less in the middle of the lane on which he was travelling;
4.
The
distance between A1 and A (the vehicle) was 6 1m;
5.
The
distance between B1 and B (the vehicle) was 5.4m;
6.
The
distance between A and the fixed pole electric pole point C was
26,3m.
7.
The
distance between B and C was 24.8m
8.
The
distance between A and the edge of the lane of travel was 4,5m;
9.
Vehicle
B appears to have come to a standstill after the collision on the
edge of the lane of its travel with half of its body or
the gravel
outside the edge of the road and the front portion protruding onto
the tarmac.
10.
Vehicle
A appears to have come to a standstill with the rear and the two hind
wheels protruding onto the lane of travel of vehicle
B
11.
The
width of the entire road was 9.3m
Inspector Moloko
was also responsible for the Officer's Accident Report and drew the
sketch plan appearing on page 8 of the report.
[4]
The insured driver testified that he was from Groblersdaal travelling
towards Tafelokop and Mosterius, travelling at 60km. His
head lights
were on dim and, although there were no street lights, he had good
sight of the road. He saw two vehicles approach
from the opposite
direction at high speed. The vehicles were at a distances of about a
100 metres. The first vehicle drove past
and suddenly the second
vehicle encroached onto his side of road, he tried to swerve towards
the left but it was too late the two
vehicles made contact and
collided with each other. His vehicle B was damaged on the right hand
side in front and the vehicle A
was damaged on the driver
’
s
side the right front.
SUBMISSIONS
[5]
The following submissions were made
For
the plaintiff
1.
It
was submitted that the version of the plaintiff with regard to the
point of impact was never challenged in cross examination;
2.
That
the point of impact was closer to the dotted line in the lane of
travel of the plaintiff which was where the debris from his
vehicle
was found;
3.
Although
the versions of the witnesses were mutually destructive the version
of the plaintiff was favoured by the probabilities:
For the
defendant:
4.
The
plaintiff failed to show the court what the path of travel was of his
vehicle prior to impact;
5.
The
point of impact as shown by him on the sketch plan, conflicts with
his version that he could not see the road and swerved towards
his
left;
6.
The
point of impact shown by the insured driver was more probable.
THE
LAW
[6]
It was conceded that the two versions were mutually destructive. The
plaintiff bore the onus to prove his case on a balance
of
probabilities and where the versions of the parties are mutually
destructive the plaintiff will succeed only where the probabilities
favour him
Machwewane v Road Accident Fund
2005 (6) SA 72
at 76
D-E;
[7]
It was common cause that the collision occurred in a built up area
where there were no street lights. The question that needs
to be
asked is whether the point of impact appearing as A1 on the sketch
plan accords with the evidence of the plaintiff. In order
to avoid
the collision plaintiff swerved towards his left he could not go off
the road completely that is onto the gravel, because
of the gravel
was in bad condition and he feared that his vehicle would capsize.
Inspector Moloko corroborated him by explaining
in his cross
examination that the gravel portion on the extreme end of the lanes
had holes, small and medium sized. Unfortunately
the sketch plan did
not show any yellow line on both lanes, therefore it is not possible
to determine the position of plaintiff
s vehicle after the collision,
in relation to the dotted line, the yellow line and the edge of the
road. It was suggested to the
plaintiff in cross examination that he
could not have pointed out the point of impact because he did not see
how the collision
took place furthermore that no mention was made of
it in his statement. His response was that he saw the point of impact
because
the collision occurred before he lost consciousness in his
evidence in chief he said
“
I
lowered my eyes towards the dashboard so that I could see the lines I
reduced my speed to 60km, I saw the ether vehicle approaching,
I
tried to swerve to the left, I am familiar with the road. I kept to
the left, I could not go further because the vehicle would
capsize,
then there was a big noise. I regained consciousness after two days.
”
Having
regard to the above statement it was, in my view, impossible for
plaintiff to have seen the point of impact. His concentration
was
shifted from the oncoming vehicle because he had lowered his eyes to
the dashboard. He probably could have seen the point of
impact if he
was looking straight ahead of him or if he had alighted from the
vehicle after the collision to view the damage.
[8]
The plaintiff denied that he was following another vehicle and veered
into the lane of the insured driver. It is not disputed
that the
insured diver
’
s
vehicle came to a standstill to the left of his lane. Whether it be
on the version of the insured driver or the sketch plan of
Inspector
Moloko there is no explanation from the plaintiff or from any other
source which would assist the court in determining
how the insured
driver's vehicle landed where it did, that is if according to the
plaintiff, the collision occurred in his lane.
It seems to me having
regard to the positions of the vehicles that the collision occurred
in the lane of the insured driver
[9]
A1 is very close to the dotted line In the lane of the plaintiff.
Unfortunately again there are no measurements of the distance
between
A1 and the dotted line to assist. However, if the version of the
plaintiff is to be believed the court must Determine the
position of
A1 having regard to the evidence of the plaintiff and in relation to
the sketch plan. A1, in my view, is definitely
not to the left or
more towards the left or towards the left and at the edge of the road
on plaintiff's lane. A1 is more towards
the right next to the dotted
line in plaintiff
’
s
lane. Inspector Moloko tried his utmost to convince the court that A1
was more towards the left but he finally conceded. Even
if he had not
conceded. I would have had problems with his evidence because he
admitted to being the author of the sketch plans
on page 8 and 11.
Although he was not cross examined on the stark and telling
differences in the two sketch plans the court is
entitled to consider
and comment on them. The differences in the two sketch plans are
irreconcilable with the evidence of the plaintiff,
the most important
being the positions of the vehicles after the collision.
[10]
I conclude that on the probabilities and on the evidence before the
Court, the plaintiff failed to satisfy the court on a balance
of
probabilities that the insured driver was negligent and responsible
for the collision.
[11]
In the premises, the order given is that of
“
An
absolution from the instance"
TLHAPI.
V
(ACTING
JUDGE OF THE HIGH COURT)
ATTORNEY
FOR THE PLAINTIFF
PAUL MASHA ATTORNEYS
C/0
MOTLOBA ATTORNEYS
PRETORIA
ATTORNEV
FOR THE DEFENDANT
MAPONYA INC PRETORIA