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[2024] ZALMPPHC 12
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Wilson v Road Accident Fund (3640/2018) [2024] ZALMPPHC 12 (12 February 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 3640/2018
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED.
DATE:
12/02/24
In
the matter between:
BALOYI
HLULANI MAGALELA
WILSON
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff has instituted an action
against the defendant claiming damages allegedly arising out of a
motor vehicle accident
which occurred on 21
st
December
2017. At the time of the accident the plaintiff was the driver of the
vehicle with registration number DSC […].
According to the
plaintiff's particulars of claim the accident was caused by the sole
negligence of a motor vehicle with unknown
registration numbers
which was driving behind him in that it
flashed its lights which resulted in the plaintiff losing control of
his vehicle. As a result
of the accident the plaintiff sustained
serious bodily injuries.
[2]
The defendant had defended the plaintiff's
claim. The defendant in its plea had pleaded that the accident was
caused by the sole
negligence of the plaintiff. In the alternative
the defendant had pleaded contributory negligence on the part of the
plaintiff.
In the further alternative the defendant had pleaded
sudden emergency on the part of the insured driver.
[3]
The parties have agreed on the separation
of merits and quantum. The plaintiff took the witness stand and
testified under oath.
He testified that on 21
st
December
2017 he was involved in a motor vehicle accident whilst driving from
Steers. As he was driving, he stopped at the
four way stop at Agatha.
The road he was using had two lanes on his side and two lanes from
the opposite direction. He was driving
on the middle lane. About 100
metres after passing the four way stop, he saw through the mirror of
his vehicle a vehicle from behind
flickering its head lights on him.
He tried to swerve to the extreme left lane in order to give the
vehicle behind way to pass.
However, the vehicle behind him also
swerved to the extreme left lane. The plaintiff swerved his vehicle
to the right into the
lane of oncoming cars, lost control of it and
collided with concrete dustbin which was on the right side of the
road.
[4]
After colliding with the dustbin, the
plaintiff's vehicle fell on its side. Some pedestrians came and
assisted the plaintiff. The
unknown vehicle did not stop after the
accident. The plaintiff lost his consciousness and woke in Van Velden
hospital, and found
that he had sustained some injuries as a result
of the accident. The headlights of the vehicle which was driving
behind him had
blinded him which made him to lose control of his
vehicle
[5]
The plaintiff was cross examined and it was
put him that in his particulars of claim he had not pleaded that he
was blinded by the
lights of the vehicle behind him, and his response
was that he had mentioned that in his police statement and also told
his attorney.
When asked how the lights of the vehicle from behind
had blinded him, his response was that they were so bright to the
extend that
it reflected inside his vehicle. He stated that the
accident occurred around
24h00.
He stated that he did not know where the vehicle behind him came
from, but it just emerged from a curve and when it was at
a distance
of about 10 to 15 metres it started flickering lights to him. The
plaintiff stated that he was travelling at a speed
of less than 60 km
per hour. He further stated that the vehicle behind him came at an
excessive speed and he do not know whether
it had stopped at the four
way stop, and that made him (plaintiff)
to
end in the lane of oncoming cars as he was trying to avoid it. The
plaintiff conceded that after the vehicle from behind him
had
flickered its lights,
he
could still see the road ahead of
him.
[6]
That concluded the evidence of the
plaintiff and he closed his case. The defendant in turn closed its
case without leading any evidence.
Both parties have addressed the
court on the merits of the case. The plaintiff argued that the
plaintiff lost control of his vehicle
as result of been blinded by
the vehicle behind him which was travelling at an excessive speed.
The defendant argued that this
is a case where the plaintiff lost
control of his vehicle, and that there was no other car involved.
Therefore, the plaintiff was
the sole cause of the accident.
[7]
It
is trite that RAF is obliged to compensate for bodily injury caused
by or arising from the driving of a motor vehicle. The casual
link
that is required is essentially the same casual link that is required
for Aquilian liability. There can be no question of
liability if it
is not proved that the wrongdoer caused the damage of the person
suffering the harm. Whether an act can be identified
as a cause,
depends on a conclusion drawn from the available facts and relevant
probabilities. The important
question
is how one should determine a causal nexus, namely whether one fact
follows from another. (See
Grove
v The Road Accident Fund
[1]
).
[8]
According to the plaintiff's particulars of
claim the unknown vehicle that was driving behind him flashed lights
on him which resulted
in him swerving his vehicle to the extreme left
and back to the right lane. As the plaintiff was swerving his
vehicle, he lost
control of it and hit a dustbin. In court the
plaintiff testified that the vehicle behind him had flashed its
lights which blinded
him, and he tried to swerve to the extreme left.
As he was swerving to the extreme left he saw that the vehicle that
was behind
him was also swerving to the extreme left, and that made
him to swerve to the right into the lane of oncoming cars, and in the
process lost control of his vehicle. The version of the plaintiff is
problematic. Firstly, the plaintiff in his particulars of claim
has
not pleaded that he was blinded by the flashing of the lights of the
unknown vehicle that was behind him. Secondly, if indeed
he was
blinded, he would not have seen the
unknown vehicle swerving on the left.
Thirdly, under cross examination the plaintiff conceded that despite
the flashing of the lights,
he could still see the road ahead of him.
If indeed he was blinded by the lights of the unknown vehicle, he
would not have seen
the road ahead of him or the vehicle behind him
through his mirror swerving to the extreme left. Fourthly, at the
speed of less
than
60
km
per hour,
he would easily have been able to control
his vehicle.
[9]
It
is normal for a reasonable driver who is faced with a threatening
situation to swerve to the left in order to avoid a collision.
It is
only in exceptional circumstances where the driver will swerve to the
right in order to avoid a collision.
In
Road
Accident Fund v Grobler
[2]
Haneke
AJA said:
"When a person is
confronted with a sudden emergency not of his own doing, it is, in my
view wrong to examine meticulously
the options taken by him to avoid
the accident, in the light of after-acquired knowledge, and to hold
that because he took the
wrong option, he was negligent. The test is
whether the conduct of the respondent fell short of what a reasonable
person would
have done in the same circumstances".
[10]
The road which the plaintiff was travelling on the date of the
accident had four lanes. It had two lanes
on the direction in which
the plaintiff was travelling, and two lanes from the opposite
direction. Immediately prior to the accident
the plaintiff was
driving on the middle lane. If indeed there was a vehicle which came
from behind the plaintiff and flashed its
head lights, and when the
plaintiff tried to swerve to the extreme left lane that vehicle also
swerved to the extreme left lane,
a reasonable driver in the position
of the plaintiff would have remained on the middle lane to allow the
vehicle behind to him
to pass on the extreme left lane. The vehicle
from behind would have easily passed the plaintiff without causing
any hicupps. There
was no need for the plaintiff to swerve to the
right in the lane of oncoming cars.
[11]
From
the
facts
of
this
case
it
is
doubtful
whether
there
was
any
unknown
vehicle that
came from behind the plaintiff and caused him to lose control of his
vehicle. The plaintiff testified that he was blinded
by the unknown
vehicle behind him, but was able to see that unknown vehicle swerving
to the extreme left lane whilst in a state
of blindness, and was also
able to see the road ahead of him whilst in a state of blindness. The
possibility is that this unknown
vehicle, is a fictious vehicle
created merely to suite the version of the plaintiff. I agree with
the defence counsel that this
is a case where the plaintiff lost
control of his vehicle, and there was no other car that was involved.
The plaintiff was therefore
the sole cause of the accident. The
plaintiff has failed to prove negligence on the part of the unknown
insured driver, if deed
it was there on the day in question, and
therefore, liability of the defendant has not been proved or
established at all.
[12]
In the result the following order is
made:
12.1
The
plaintiff's
claim
is
dismissed
with
costs.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
For
the plaintiff
:
Adv Nkwenyana
Instructed
by
:
Mashamba Incorporated
For
the defendant
:
R Mudau
Instructed
by
:
Office
of State Attorney
Polokwane
Date
heard
:
23
rd
January 2024
Electronically
circulated
on
:
12
th
January
2024
[1]
[2011]
ZASCA 55
(31
March
2011) at para 7
[2]
2007
(6) SA 230
(SCA)
at para 12