Raath v Road Accident Fund (599/04) [2007] ZANCHC 37 (25 May 2007)

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[2007] ZANCHC 37
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Raath v Road Accident Fund (599/04) [2007] ZANCHC 37 (25 May 2007)

IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case No:
599/04
Date
heard: 06-07/03/07
Delivered: 25/05/07
ANFRID
JUNIOR RAATH
PLAINTIFF
versus
THE
ROAD ACCIDENT FUND                                  DEFENDANT
JUDGMENT
MOKGOHLOA AJ:
1.
The plaintiff, a
pedestrian, instituted action against the defendant, the Road
Accident Fund (
“
RAF”)
for damages suffered by him as a result of a collision with a motor
vehicle with registration numbers and letters BBS983NC
(the insured
vehicle) driven by one Mr Willem Berg (the insured driver).  The
said collision occurred on 11 March 2002 at 22h00
at Gousblom
Street, Andalusia, Jan Kempdorp.  The plaintiff based his claim
on the alleged sole negligence of the insured
driver.
2.
At the
commencement of the trial, by agreement between the parties, I was
requested to order, in terms of Rule 33(4) of the Superior
Court
Rules, that the merits be adjudicated separately from the quantum,
which order I granted.
Exhibit
“
A” which is the
plaintiff’s
bundle
was referred to extensively by both parties during the trial.
COMMON CAUSE
FACTORS
3.
The following
factors were common cause:
3.1
That there was a collision
between the plaintiff and the insured vehicle;
3.2
That the plaintiff
sustained injuries as a result of the collision.
FACTORS IN DISPUTE
4.
The following
factors were in dispute:
4.1
Whether the point of
impact was  on the sidewalk or on the road surface;
4.2
Whether this was a frontal
(a head on) or a side collision and which part of the insured
driver’s motor vehicle collided with the
plaintiff: was it the
front left bumper or the side left mirror.
PLAINTIFF
’
S
CASE
5.
The plaintiff,
Anfrid Junior Raath, a 26 years old male, and two of his witnesses
testified.  His evidence was that on the evening
of 11 March
2002 at about 22h00 he was walking along Gousblom Street in Jan
Kempdorp in the company of his two friends, Mr Daniel
Edward and Mr
Franco Maasdorp. The three of them were walking abreast.  He was
on the extreme right heading North.  Edward
was walking in the
middle and Franco on the left.  They were going to turn right
after some distance.  Plaintiff was walking
on the gravel verge
which served as a sidewalk. The sidewalk was demarcated from the
tarred road by concrete kerb stones but the
latter were flush with
the ground level so that there was no gutter between the tarred road
and the gravel verge.
6.
According to the
plaintiff there were no street lights except for a flood light which
was on the far left side of the road. However
the street was not well
illuminated because the shadows of the trees along the street fell on
the street. Plaintiff was wearing a
khakhi shirt and a khakhi pair of
trousers. There were no other pedestrians along the street except
himself and his two companions.
7.
Whilst walking as
aforesaid he observe the lights of a motor vehicle approaching them
from behind.  He looked back and saw that
the vehicle was
travelling in the same direction that they were taking.  He knew
he was safe as he was walking on the gravel
and not on the tarred
road. He turned to face the direction they took. The motor vehicle
bumped him from behind and knocked him down.
He was injured on
his right foot and lost some of his teeth.  The impact
catapulted him to land on the tarred road with his
injured right foot
and his whole body on the gravel verge. The evidence of Edward and
Maasdorp corroborated that of the plaintiff
in all material respects.
There were no contradictions worth mentioning, if it all.
DEFENDANT
’
S
CASE
8.
On behalf of the
RAF the insured driver, Mr Willem Berg who is 62years old, testified
that he was driving an Al Camino bakkie at a
speed of about 40
kilometres per hour from South to North of Gousblom Street.  His
dimmed headlights illuminated the street
ahead of him. There was no
traffic approaching from the opposite direction. He  saw three
pedestrians walking on the left side
of the road.  They were
coming from a side road and joined Gousblom Street walking in the
same direction as he was travelling.
These pedestrians tried to
cross the road. The one on the extreme right, i.e. the plaintiff,
looked back and must have seen his motor
vehicle approaching.
The pedestrians then proceeded to walk straight along the Gousblom
Street with their backs turned against
him.  There was no need
for him to sound a hooter because the plaintiff was aware that he is
approaching. He saw other pedestrians
on the other side of the road.
9.
According to Berg,
the plaintiff was walking on the tarred road about 2 metres from the
sidewalk/pavement and about 1½ metres from
his motor vehicle.
He swerved the motor vehicle to the right to avoid knocking the
plaintiff.  He drove past these three
pedestrians and then heard
a bang from the front left side of the motor vehicle. He stopped and
alighted from the vehicle and found
the plaintiff lying down with his
right foot on the tarred road and body on the pavement.  He then
called the police and an
ambulance.
10.
The
Officer’s
Accident
Report (OAR) Form was completed and photos of the scene of the
accident were taken.  A sketch plan was also drawn up
and Berg
confirmed the correctness of the OAR Form, the photos and sketch
plan.  He also confirmed that he pointed out the point
of impact
to the police.  These materials were part of the bundle of
documents, Exhibit
“
A
”
.
11.
The defendant also
called one Ms Lucia April, a female of 27 years, to testify.
She said that she knew Berg very well.
She was with him earlier
on that evening conducting a census.  When the incident occurred
she was walking along Gousblom Street
on the right hand side from
South to North.  She saw three pedestrians (the plaintiff and
his friends) emerging from a side
left road which runs into Gousblom
Street. The plaintiff was walking in the middle of the tarred road.
His friends pulled him
off the road but he returned to the road.
The motor vehicle, driven by Berg, approached the plaintiff from
behind. The driver
swerved the motor vehicle to the right to avoid
the plaintiff.  The plaintiff groped at the vehicle but was
struck by the side
mirror.
EVALUATION OF
EVIDENCE
12.
The plaintiff
’
s
evidence is clear and simple.
It is corroborated by that of Edward and  Maasdorp in all
material respects.  They are
in agreement on the point of
impact.  They also agree that the insured motor vehicle veered
off the road and knocked the plaintiff
down.
13.
As far as the
evidence of the RAF witnesses, Berg
’
s
and that of April is concerned, it reveals several contradictions on
material aspects. The following are noted:
13.1
According to April the
plaintiff was walking in the middle of the road prior to the
accident. She marked the point as LT3 on photo
20.  However,
Berg
’
s
version is that the plaintiff was
walking on the road about 2 metres from the sidewalk not in the
middle of the road;
13.2
April says the plaintiff
was dragged and pulled off the road by his companions. Berg did not
see this happening;
13.3
Berg says he swerved his
car right up to about 1½ metres from the plaintiff whilst April’s
testimony is to the effect that Berg
swerved his car right up to the oncoming cars lane.  The width
of the road according to
scale on photo 24 is 7,5 metres;
13.4
The point of impact
according to Berg is at the extreme left side of the surface of the
road whilst April’s
version
is that the point of impact is in the middle of the road, which she
marked as LT6 on photo 20.
PROBABILITIES AND
IMPROBABILITIES
14.
In order to succeed
in his claim, the plaintiff has to prove negligence on part of the
defendant.  In
Kruger
v Coetzee 1966(2) SA 428 (A) at 430 E-G
,
Holmes JA
stated the following:
“
For
the purpose of liability culpa
arises if-
(a)
a diligens paterfamilias in the position of a defendant
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property
and causing him patrimonial loss;
and
(ii)
would take
reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.
This
has been constantly stated by this Court for some 50 years.
Requirement (a)(ii) is sometimes overlooked.  Whether
a diligens
paterfamilias in the position of the person concerned would take any
guarding steps at all and, if so, what steps would
be reasonable,
must always depend upon the particular circumstances of each case.
No hard and fast basis can be laid down.
Hence the futility, in
general, of seeking guidance from the facts and results of other
cases
.
”
15.
The test for
whether a particular act was negligent or not has been formulated by
Van der Walt and
Midgley
,
Principles
of Delict (3ed) Durban
,
Lexis Nexis
Butterworths: 2005 at para [29]
as
follows:
“
Traditionally,
the forseeability test is applied
to determine whether or not conduct was negligent.  The test
basically comprises three elements:
reasonable forseeability of harm;
reasonable precaution to prevent the occurrence of such foreseeable
harm; and failure to take the
reasonable precautions.
”
16.
Berg
described the point of impact to be on the extreme left of the road
and that he had swerved his motor vehicle to the right to
avoid the
accident, it is highly improbable that the point of impact still
remained at the extreme left of the road.  With such
evidence
one would have expected that the plaintiff was bumped by Berg
’
s
motor vehicle towards the centre of
the road.
17.
It is improbable,
in terms of the evidence given by April, that the collision could
have taken place on the right hand side of the
road. It makes no
sense that having been passed by Berg the plaintiff would grope at
the vehicle which had virtually gone passed
him. A side rear view
mirror has to be located in front of the driver to be useful and
cannot be located towards the rear of the
vehicle.
18.
Mr Pohl, on behalf
of the defendant, argued that there should be apportionment of blame
on the part of the plaintiff. He argued that
maybe the plaintiff
decided to cross the road at the time when the motor vehicle was
already near him. He further argued that maybe
Berg did not keep a
proper distance between himself and the plaintiff.
19.
In the case of
Hoffman v South
African Railways and Harbours 1955(4) SA 476 (A)
the Appeal Court had to deal with the issue of contributory
negligence.  The Court referred briefly to the legal approach
where
a motorist has collided with an unilluminated object.
Schrerner ACJ
,
as he then was, stated as follows at
478
B-H
:
“
In
the Court below, De Villiers, J.,
after rightly stating that the onus lay upon the defendant to prove
that the plaintiff was negligent,
continued,
"
In
die onderhawige saak kan daar geen twyfel wees nie dat daar
‘
n
plig op eiser gerus het om
‘
n
behoorlike uitkyk te hou vir
voorwerpe op die publieke pad, of die voorwerpe verlig was, al dan
nie, want hy kon sulke voorwerpe,
wat onverlig was, redelikerwys
verwag het,
(vgl.
Manderson v. Century Insurance Co. Ltd.,
1951 (1)
S.A. 533
(A.D.) te bl. 539
)
en hy moes sy spoed so gereguleer het dat hy binne die afstand wat hy
kan sien, sy motor tot stilstand kon gebring het...
”
The passage quoted by
De Villiers, J., is from the head-note of
Rose v. Madden,
1913
TPD. 82
. I prefer, however, the language used by Ramsbottom, J.,
in the other case cited by De Villiers, J., namely,
Rex v. Yssel,
1945 TPD 235
.  This was a criminal case but for the present
purposes  that is immaterial.  At p. 243 Ramsbottom, J.,
says,
“
If
the Crown proves that a pedestrian
or cyclist or other object with which the motorist collided was
visible so that a person keeping
a proper look-out or driving at a
reasonable speed in the circumstances ought to have seen the
obstruction in time to avoid the accident
then the inference of
negligence can be drawn.  But where the evidence does not show
that the person with whom the car collided
was visible in that sense
then there is no ground for drawing the inference of negligence.
”
“
Could
with the exercise of reasonable
care
”
is a
legitimate elaboration of the word
“
should
”
,
provided that due emphasis on the
word “reasonable”
is
preserved and that one does not slip into the error of supposing
that, if the collision could have been avoided, it therefore should
have been, in the sense that failure to avoid it proves negligence.
In the case of Manderson, to which De Villiers J. refers,
Hoexter
J.A., giving the majority judgment of this Court, quoted with
approval from Lord Greene’s
judgment
in
Morris v.
Mayor of Luton,
1946 K.B. 114
,
the view that no rule of law can be laid down that a person driving
in the dark must be able to pull up within the limits of his
vision.
It is of course difficult to refrain from generalising in a matter of
this kind; careless driving of swift vehicles
is certainly dangerous
and there is obviously a relationship between speed and visibility.
But the generalisations regarding
night driving, of which our reports
contain many examples (see, e.g
.
Venter v. London &
Lancashire
Insurance Co. Ltd.,
1951 (4) S.A. 554
(A.D.) at pp. 556 and
560),
must
not be construed as laying down a rule of law which can be applied as
governing the facts of each case of this kind.  It
is the facts
that are decisive throughout and they are too infinitely variable to
admit of the formulation of a legal rule.
”
20.
It is the evidence
of both the plaintiff and Berg that the plaintiff was visible.
Berg stated in his evidence that he saw and
was aware of the
plaintiff and his companions’ presence along the road.
According to him they were walking on the left hand
side of the road
about 2 metres from the pavement.  The road is 7,5 metres wide.
There was no traffic approaching from
opposite direction.  All
that Berg needed to do to avoid the collision was to keep his vehicle
on the correct side of the road.
The fact that he knocked the
plaintiff on the gravel verge of the road is ample demonstration that
he failed to keep his motor vehicle
under proper control. His failure
to do so rendered him negligent.
21.
Plaintiff and his
companions stated that they were the only pedestrians or people
around when the accident took place. It was never
put to the
plaintiff that April was a witness to the accident and what her
version of events would be. In any event, April was a
poor witness,
and as stated contradicted Berg on material aspects. This forced Mr
Pohl to concede his difficulty and argued that
April
’
s
evidence be disregarded. I agree. Berg
’
s
evidence was no better. I am
satisfied that April was not on the scene and that she was a witness
fabricated by Berg. I therefore
draw an adverse inference against him
and April for their conduct. I reject the evidence of both.
22.
It is trite that a
plaintiff must prove his/her case on a balance of probabilities.
Eksteen AJA, as he then was, said the following
in
National
Employer
’
s
General Insurance v Jagers
1984
(4) SA 437
(ECD) at 440 D - 441 A :
“
It
seems to me, with respect, that in
any civil case, as in any criminal case, the onus can ordinarily only
be discharged by adducing
credible evidence to support the case of
the party on whom the onus rests.  In a civil case the onus is
obviously not as heavy
as it is in a criminal case, but nevertheless
where the onus rests on the plaintiff as in the present case, and
where there are two
mutually destructive stories, he can only succeed
if he satisfies the Court on a preponderance of probabilities that
his version
is true and accurate and therefore acceptable, and that
the other version advanced by the defendant is therefore false or
mistaken
and falls to be rejected.  In deciding whether that
evidence is true or not the Court will weigh up and test the
plaintiff
’
s
allegations against the general probabilities.  The estimate of
the credibility of a witness will therefore be inextricably
bound up
with a consideration of the probabilities of the case and, if the
balance of probabilities favours the plaintiff, then the
Court will
accept his version as being probably true.  If however the
probabilities are evenly balanced in the sense that they
do not
favour the plaintiff
’
s
case any more than they do the
defendant
’
s,
the plaintiff can only succeed if
the Court nevertheless believes him and is satisfied that his
evidence is true and that the defendant
’
s
version is false.
This
seems to me to be in general accordance with the views expressed by
Coetzee J in
Koster
Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse
Spoorweë en
Hawens
(supra) and
African
Eagle Assurance Co Ltd v Caner
(supra).  I would merely stress however that when in such
circumstances one talks about a plaintiff having discharged the onus
which rested upon him on a balance of probabilities one really means
that the Court is satisfied on a balance of probabilities that
he was
telling the truth and that his version was therefore acceptable.
It does not seem to me to be desirable for a Court
first to consider
the question of the credibility of the witnesses as the trial Judge
did in the present case, and then, having concluded
that enquiry, to
consider the probabilities of the case, as though the two aspects
constitute separate fields of enquiry.  In
fact, as I have
pointed out, it is only where a consideration of the probabilities
fails to indicate where the truth probably lies,
that recourse is had
to an estimate of relative credibility apart from the probabilities.
”
23.
The above having
been stated I find as follows:
23.1
The plaintiff has discharged his onus
on a balance of probabilities;
23.2
That the accident occurred as
described by the plaintiff and his witnesses;
23.3
That the point of impact is as
described by the plaintiff in his evidence and
by
Berg on the sketch plan to the police officer at the scene of the
accident
attached
to the OAR in Exhibit “A”;
23.4
That the plaintiff
’
s
injuries on his right leg were not
caused by being knocked  by the insured motor vehicle
’
s
side mirror but by being knocked by
the front left bumper of the insured motor vehicle;
23.5
That the collision was
caused by the sole negligence of the driver of the insured motor
vehicle when he veered off the road to knock
down the plaintiff on
the sidewalk.
24.
There is no reason why costs should
not follow the result.
I therefore make the
following order:
ORDER
Judgment is granted
in favour of the plaintiff with costs.
_______________________
FE
MOKGOHLOA
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the
Plaintiff         :
Adv.
Portier
Instructed by
: Venter van Eeden Inc.
For
the Defendant    : Adv.
Pohl
Instructed by
: Haaroffs Inc.