Dlekedla v Road accident Fund (492/2001) [2004] ZANCHC 98 (6 February 2004)

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[2004] ZANCHC 98
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Dlekedla v Road accident Fund (492/2001) [2004] ZANCHC 98 (6 February 2004)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
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to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
no: 492/2001 Date delivered: 06/02/2004
In
the matter of
:
AYANDA
MAXWELL DLEKEDLA PLAINTIFF
and
ROAD
ACCIDENT FUND DEFENDANT
JUDGMENT
TLALETSI
J:
INTRODUCTION
The
plaintiff has instituted an action for damages against the defendant
pursuant to a collision which took place on the 30
th
September 1998 along Central Road, Kimberley which is within the
area of jurisdiction of this court.
I
ordered with the consent of both parties, that the merits and the
quantum
be separated in terms of rule 33 (4) of the Rules of this court.
The effect of the order is that the issues of the negligence
and the
liability of the parties and the driver; as well as the costs of the
trial at this stage be decided before and separately
from the
remaining issues.
An
inspection
in
loco
was held before any evidence was tendered. A sketch plan of the
scene prepared by the parties was admitted as exhibit “B”.
A
bundle of photographs depicting the place where the collision took
place was admitted as exhibit “A”. Central Road is a
dual
carriage way divided by a paved island. It runs from East to West.
The width of the lane in which the collision occurred
is 9 metres,
i.e. from the pavement on the side of Campbell Restaurant to the
island. The road is leading into a subway bridge
where it narrows
inward.
It
was common cause that the plaintiff who was a pedestrian was
involved in a collision with a motor vehicle bearing registration
numbers and letters: CC 63710, driven by one Mr. M. Motlekar. The
collision occurred at Beaconsfield, in a build up area. Plaintiff
sustained bodily injuries as a result of the collision.
PLAINTIFF’S
CASE
The
plaintiff’s case is based on his sole evidence. His evidence may
be summarised as follows. On the 30
th
September 1998 he was at Campbell Restaurant (the restaurant)
waiting for his uncle. He did not consume any liquor as he had no
money. At about 14h55 as he felt the pangs of hunger, he decided to
leave. After leaving the entrance of the restaurant he walked
a
short distance on the pavement. He stopped and looked towards his
right for any oncoming motor vehicles. There were no people
and
cars outside the restaurant. He then proceeded to cross the road,
as there were no oncoming vehicles. As he was in the middle
of the
road, he heard and noticed a motor vehicle which was already close
to him, travelling towards him. It was at a distance
of about 10 ½
metres from him.
According
to him the dual road had a dotted white line which could accommodate
two motor vehicles travelling to the same direction.
The car he saw
was travelling on the left lane which was on the side of the
restaurant. As he saw this motor vehicle he retreated
about 3 paces
to avoid the collision. As the car was now close to him, seeing
that it was to collide with him he ran across towards
the island.
He was at all times looking at the motor vehicle. After crossing
the white broken centre line the motor vehicle swerved
towards the
same lane, closer to the island and collided with him.
The
motor vehicle was neither travelling too fast nor slow. The front
middle portion of the motor vehicle collided with him on
his legs
and he fell next to the island that divided the road. He did not
see this motor vehicle before he embarked on crossing
the road.
Under
Cross examination he testified that there were no motor vehicles
parked in front of him or the restaurant. He admitted that
he
should have seen this motor vehicle before crossing the road more so
that nothing obscured his view. He denied ever stopping
or standing
still on the road. He retreated three paces and as he reached the
pavement he noticed that the motor vehicle was moving
directly
towards him and he immediately ran forward. It was put to him and
he disputed, that he was not in contact with the front
portion of
the motor vehicle, but the left side.
He
was referred to a written statement in Afrikaans allegedly made to
the police by him. He acknowledged his signature but disputed
the
contents as he never related to the police the details of the
accident. He in fact referred the police to his uncle on the
latter’s instructions whilst in hospital. In the statement it was
pointed out that he said ‘as he noticed that it was late,
he ran
across the road, and he saw a motor vehicle approaching. He stopped
and retreated. He thought that the motor vehicle will
stop. As he
was on the road he ran forward and the next thing he collided with
the left door of the motor vehicle’. This statement
was handed in
as exhibit ‘C’. According to the plaintiff he attended school
up to standard 7 and was taught English and Isixhosa
Languages.
The
plaintiff was further referred to another statement signed by him
and allegedly obtained by his attorneys. In this statement
which
was accepted as exhibit ‘D’ the following is recorded:-
g
Ten
einde by my woning uit te kom moes ek noodwendig gewys Centralweg
vanuit ‘n westilike na ‘n oostelike rigting kruis. Ek het
gaanstil staan op die westilike opgeboude sypaaitjie langs Centralweg
en nadat ek myself vergewis het dat daar geen aankomende verkeer
was
nie het ek daarop oor Centralweg vanuit ‘n westelike na ‘n
oostelike rigting begin loop. Ek het reeds die 1ste baan suksesvol
gekruis en was ongeveer in die helfte van die 2 de baan waarop ek ‘n
motorvoertuig gewaar het wat in die regter baan teen ‘n
hoë spoed
vanuit ‘n suidelike na ‘n noordelike rigting in Centralweg
aangekom het, welke motorvoertuig sonder enige indikasie
oor beweeg
het in die regter baan en reg op my afgepeil het. Ek het daarop
begin vinniger loop in die rigting van die eiland waarop
voormelde
motorvoertuig met my gebots het toe ek ongeveer 1 m vanaf die
opgeboude eiland was.”
DEFENDANT’S
CASE
The
defendant on the other hand based its case on the evidence of the
driver, Mr. M. Motlekar. His evidence in brief was that he
had been
travelling for about 500 meters along Central Road at a speed of
approximately 50 – 55 km/ h. He saw a sedan motor
vehicle parked
next to the entrance of Campbell Restaurant or on his left hand
side.
He
was travelling from east to west. There were no markings on the
road.
As
he approached the restaurant he moved to the right lane and reduced
speed. He saw the plaintiff standing at a distance of about
10 –
12 paces looking at him. He did not blow the hooter as he believed
that the pedestrian was aware of his coming. He was
standing on the
left side in relation to his motor vehicle. There was nothing
between him and the plaintiff that could obscure
his view. As he
drove past him he heard a thud and he immediately stopped his motor
vehicle. He alighted and noticed that the
plaintiff had fallen on
the ground towards the island. The left front door of the motor
vehicle was dented. The left mirror of
the motor vehicle had
already been damaged on a previous occasion.
He
testified further that when he saw the plaintiff he moved his motor
vehicle more towards the right closer to the island. He
could not
avoid colliding with the plaintiff as he had already driven past him
when the plaintiff collided with his motor vehicle.
Under
Cross examination the following transpired. He used Central Road
75% of his time on his way to and from work. The area is
well known
to him. Because liquor is sold at Campbell Restaurant which was a
bottle store then, the place was busy during month
end and people
often sat on the stoep. However on this day there were no people
seated outside save for the sedan motor vehicle
in which two people
were seated. The speed limit in that area is 60 km/h. The pavement
in front of the restaurant is raised and
he was in a position to see
at least the upper body of a person in front of the sedan motor
vehicle. He had an unimpaired view
of what was happening on the
road.
He
testified further that as he approached the restaurant he changed
his lane. At this stage he did not see anybody. The reason
why he
changed the lane was that it is a dangerous area and people could
run out of the bar/restaurant in front of the parked
car. He was
therefore worried about pedestrians. He was now travelling at a
speed of approximately 45 km/h. At this stage the
pedestrian was on
the right hand lane towards the island. He did not see him run or
walk there. He testified further that he
did not see him in time,
and had he seen him, he could have taken evasive action. He does
not know how he made contact with his
motor vehicle as he did not
see him move.
He
was asked about his written statement to the police which was handed
in as exhibit ‘E’. He admitted saying in his statement
that
seeing the pedestrian he reduced speed. He drove slowly and swerved
to the right. He thought that the person will stop.
He saw him
move on the road. He could not explain the difference between his
testimony and what he said in his police statement.
He however
denied ever making a u-turn on the road.
THE
ISSSUE AND LEGAL PRINCIPLES
The
plaintiff is saddled with the onus to prove, on a balance of
probabilities that the driver of the insured vehicle Mr. Motlekar,
had driven the said motor vehicle negligently and that his
negligence had caused or contributed to the accident (
See
:
Guardian
National Insurance Company Ltd v Saal
1993(2) SA 161 (C) at 162 f-g.
The
classical formulation of negligence (culpa) is that of
Holmes
JA
in
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430 E -G :
“
For
the purpose of liability culpa arises if :-
a
diligence paterfamilias in the position of the defendant-
would
foresee the reasonable possibility of his conduct injuring another
in his person or property and causing him patrimonial loss:
and
would
take reasonable steps to guard against such occurrence : and
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
diligence
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.”
It
means therefore that even if a reasonable possibility of harm is
foreseeable but it cannot be reasonably expected of the defendant
to
guard against that harm, the plaintiff would have therefore failed
to discharge the onus of proving the defendant’s negligence.
As
to what a reasonable person is,
Van
den Heever JA
had the following to say in
Herschel
v Mrupe
1954(3) SA 464 (A) at 490 F: –
g
The
concept of
the
bonus
paterfamilias
is not a timorous faintheart always in trepidation lest he or others
suffer some injury; on the contrary, he ventures out into the
world,
engages in affairs and takes reasonable precautions to protect his
person and property and expects others to do likewise?”
The
principles extracted from various decided cases regarding the
driver’s duty have been stated as follows in
Manuel
v SA Eagle Insurance Company Limited
1982 (4) SA 352
(C) at 357 A-D per
Comrie
AJ
(as he then was):-
g
A
motorist who sees a pedestrian on the roadway or about to venture
thereon, should regulate his driving so as to avoid an accident.
The
pedestrian may by his conduct convey to the motorist the impression
that he recognises and intends to respect, the motorist
right of way.
When such an impression is conveyed by the pedestrian, the motorist
may proceed on his way accordingly. Whether the
motorist is
reasonably entitled to assume or infur, from the conduct of the
pedestrian, that his right of way is being recognised
and respected,
is a question of fact to be decided in each case. When the
assumption is not justified, the motorist must regulate
his driving
to allow for the possibility, or probability, that his vehicle may
not enjoy an unobstructed passage. Where a pedestrian
reacts
appropriately to the presence of an approaching vehicle, or to a
warning by the vehicle, the critical enquiry is whether a
reasonable
motorist would foresee the reasonable possibility that the pedestrian
might nonetheless act irrationally by moving, perhaps
suddenly into
the vehicle or its path.”
It
is expected of a prudent driver to guard against the possibility of
a pedestrian’s instinctive reaction to a sudden awareness
of the
proximity of his/her motor vehicle, to act impulsively or
irrationally on the spur of the moment to his/her own and /or
the
driver’s detriment. It is also expected of the motorist to allow
a reasonable space between his/her vehicle and the pedestrian.

(see:
S
v
Khan
1974(1)
SA 383 (NPD) at 385 F-H. )
Mr
Nortier
who appeared on behalf of the plaintiff argued among others, that
Mr Motlekar was negligent in that he failed to keep a proper
lookout. Having known that he was travelling in a dangerous area of
the road he ought to have ensured a continuous scanning
of the
road ahead, from side to side for potential obstructions( see:
Rondalia
Assurance Corporation of SA Ltd v Page and Others
1975(1) SA 708(AD) at pp 718 H -719 B). He submitted further
that the negligence of the insured driver was the cause of the
collision.
Mr
Pohl
on behalf of the defendant submitted that
inter
alia
,
as there was no pedestrian crossing at the point of the collision
the motorist had a right of way. He argued that the plaintiff
having stopped on the road he conveyed to the motorist the message
that he acknowledged his presence and right of way, and he
was
therefore entitled to assume that the plaintiff gave him a right of
way. (see
:
Machumela v Santam Insurance Co
.
Ltd
1977 (1) SA 660
(AD) at 663 E – F).
There
was disagreement as to whether the road at the point of collision
had road markings that separated the traffic travelling
to the
west. In my view nothing turns around on this aspect. It is
common cause that the road is 9 metres wide and is able
to
accommodate at least two motor vehicles travelling parallel to each
other in the westerly direction. Further more Mr Motlekar
through
out his evidence referred to him changing lanes between the
restaurant and the island.
The
next aspect to be considered is the reason why Mr Motlekar decided
to change the lanes or the side on which he had been travelling.

It was put to the plaintiff under cross examination that the reason
why Mr Motlekar moved from the lane close to the restaurant
to be
closer to the island is that he was approaching a subway where the
road narrows towards the right. However the reason
given under
cross examination by Mr Motlekar is that he was worried about the
pedestrian who could run across the road from the
restaurant
pavement in front of the sedan motor vehicle. Having this in his
mind, I would have expected him to be more cautious.
The
other issue is when did Mr Motlekar take note of the plaintiff’s
presence. According to his evidence save for the two people
seating in the sedan motor vehicle he did not see any other person.
Nothing obstructed his view from the pavement up to the
island.
Having travelled a distance of at least 29 metres one would have
expected him to see the plaintiff enter the road.
He only saw him
already in a standing position in the middle of the road, and
cannot account how it came about for him to be
at this point.
It
was however put to the plaintiff on his behalf that he saw the
plaintiff stop and look at him. It is for this reason that
he
interpreted this to be a message conveyed to him that his right of
way was being recognised. It was further put to the plaintiff
that
as Mr Motlekar was swerving to the right in preparation to go to
the subway bridge, the plaintiff stopped. What complicates
the
issue is the fact that Mr Motlekar
admitted
that he
told
the police in his statement that he saw a person moving on the road
and thought that he will stop although it is not the
truth. All
these discrepancies which are acknowledged by Mr Motlekar cannot be
explained. His evidence on these issues cannot
be relied upon. It
clearly suggests that he failed to keep a proper lookout.
The
next aspect is the point of impact. The plaintiff pointed a point
which is 6 metres from the pavement towards the island.
Mr
Motlekar however took it ½ metre further and 1 metre west of the
point indicated by the plaintiff. I do not expect the
parties
after such a long time to be accurate without the assistance of
markings. What is important though is that in their
recollection
their points are very close to each other. They both agree that it
is in the same area where the plaintiff fell
and the insured driver
stopped the motor vehicle after the collision. The difference is
in my view insignificant.
There
is a serious dispute as to which portion of the motor vehicle was
in contact with the plaintiff. The submission made on
behalf of
the plaintiff is that his version is more probable taking into
account the undisputed fact that he sustained the injuries
on both
his legs and if he collided with motor vehicle on the side, one
would have expected him to have sustained the injuries
on his upper
body as he would bend forward if in a running position. I find
merit in this argument. To add, the plaintiff
testified that he
saw the front portion of the motor vehicle collide with him. The
insured driver on the other hand conceded
that he did not see the
plaintiff move or collide with his motor vehicle. In my view it
is highly unlikely that a man aged
38 years would sustain the
injuries on both his legs and be admitted to hospital for 4 weeks
by merely running into or hitting
against a slowly moving motor
vehicle. (See:
SA
Mutual
Co.
Ltd v Mhlawuli
1977(1) SA 891 (AD) at 895 A-B).
In
my view the versions of the two witnesses do converge as to how the
collision occurred. It is reasonable to infer that the
plaintiff
was crossing the road. As he was towards the middle he saw the
motor vehicle moving torwards him. He retreated and
noticing that
it was too close to him ran forward. At the same time in order to
avoid him the motor vehicle moved towards the
right and as a result
collided with the plaintiff.
I
am of the view that Mr Motlekar did not do what was expected of him
under the circumstances to avoid the collision. On his
own version
seeing the plaintiff at a distance of about 10 -12 paces neither
did he reduce speed or stop his motor vehicle.
He did not hoot.
The sudden appearance of the plaintiff on the road as he allege,
should have caused him to be more cautious.
He conceded that had
he seen the plaintiff earlier on he could have taken an evasive
action, and the collision would not have
taken place. The facts in
the case of
Senator
Versekeringmaatskapy
v Lawrence
1982(3) SA 136(AD) are distinguishable from this case. In that
case the court took cognisance of the fact that the pedestrian
had
narrowly avoided an accident with another vehicle and the
reasonable motorist expected that he would be more careful.
I
therefore come to the conclusion that the insured driver was
negligent as alleged in the pleadings, and that such negligence
had
a causal link with the collision. Mr Motlekar was not an
impressive witness especially when he had to testify on the crucial
aspect of the collision. He took a long time to answer and at
times offered no answers under cross examination.
As
to the position of the plaintiff I am of the view that he was also
negligent. It was not opportune at the time to cross the
road. He
also failed to observe the vehicle in broad daylight when he was in
a position to do so. The defendant has succeeded
in discharging
the onus of providing contributory negligence on the part of the
plaintiff (See:
Adendorff
v Shield Insurance Co. Ltd
1979(4) SA 390(CPD) at 393 A).
APPORTIONMENT
The
next issue to be decided is the degree of negligence of the parties
in relation to the collision. Counsel referred me to
various
decisions in which different awards were made. These helpful
decisions include
Silitsha
v Santam Insurance
Company
Ltd
1982(2) SA 387(A) in which the majority of the court awarded the
pedestrian 40% of her damages;
Hockly
v
AA Mutual Insurance Association Ltd
1980 (1) SA 784
(AD) where the pedestrian was awarded 50% of her
damages; and
Manuel
v Southern Insurance Association Ltd
1976(3) SA 736 (ECD) in which the court awarded 35 % of the
proved damages in favour of the pedestrian.
It
is clear from the above cited cases that each case was decided on
its own facts. In
casu
,
I am of the view that the degree in which the defendant was at
fault in relation to the damage is equal to the degree in which
the
plaintiff was at fault. In my view each acted without keeping a
proper look-out, the one to cross the street as he did and
the
other the manner in which he drove his vehicle. Until a very late
stage, each could have taken steps, successfully, to avoid
the
collision had they appreciated its imminence. As I have already
found, in their confusion they both went to the same direction
where the collision took place, in a bid to avoid each other. With
regard to costs there is no justification for a departure
from the
general rule that costs follow the result.
The
following order is accordingly made:
The
defendant is ordered to pay the plaintiff 50% of his damages.
The
defendant is ordered to pay the costs.
_________________
L
P TLALETSI
JUDGE
ADVOCATE FOR
THE PLAINTIFF : ADV NORTIER
ADVOCATE
FOR THE DEFENDANT : ADV PHOL
ATTORNEY FOR
THE PLAINTIFF : VENTER VAN EEDEN INC.
ATTORNEY
FOR THE DEFENDANT : HAARHOFFS INC.