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[2024] ZALMPPHC 30
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Mokokoana v Road Accident Fund (10344/2022) [2024] ZALMPPHC 30 (2 April 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 10344/2022
In
the matter between:
MOKOKOANA
THABO
PAUL
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGEMENT
KGANYAGOJ
[1]
On
9th August 2021 the plaintiff was involved in a motor vehicle
collision along the R521 road in Kalkbank when he collided with
the
insured motor vehicle. At the time the collision plaintiff was the
driver of his own vehicle. The plaintiff has sustained some
injuries
as a result of the accident. He lodged a third party claim with the
defendant. The matter was not finalised within the
prescribed time
period, and the plaintiff instituted an action against the defendant
claiming damages arsing out of the accident
of the 9
th
August 2021.
[2]
According
to the plaintiff's particulars of claim, the accident was caused by
the sole negligence of the vehicle driven by the insured
driver when
he lost control of his vehicle and collided with the plaintiff's
vehicle. The defendant did not enter any appearance
to defend, and
the plaintiff proceeded to set down the matter for a default
judgment.
[3]
At
the default judgment trial the plaintiff testified under oath. He
testified that on 9th August 2021 he was driving from his home
in
Bochum to Mabokelele village in Moletji using the R521 road. As he
was driving towards the direction of Polokwane, he joined
a convoy
four cars and his vehicle was the fifth in the convoy. Behind him
there was a truck which was the sixth vehicle. As they
were in that
convoy, two Polo vehicles came from behind the truck and started
overtaking that convoy of vehicles at a high speed.
Those Polo
vehicles were travelling as if they were racing with each other. The
plaintiff decided to apply brakes abruptly, and
when he did that he
saw that the truck behind him was going to collide with him from
behind. In avoiding to collide with the truck
from behind, the
plaintiff swerved to right passing the lane of oncoming cars into the
gravel side and stopped his vehicle. The
plaintiff stated that he
could not swerve to the left side as there was a ditch.
[4]
When
the plaintiff was on the gravel side, two vehicles came from the
opposite direction (from the direction of Polokwane). The
first
vehicle passed, and the second was that of the insured driver and it
was travelling at a high speed. The driver of the insured
vehicle
drove off the tarmac road into the gravel side of the road towards
the plaintiff. When the plaintiff saw the insured vehicle
coming
towards him, the plaintiff tried to swerve his vehicle back into the
tarmac road in the lane of oncoming cars, but the insured
driver also
drove back to the tarmac and a collision occurred.
[5]
Under
questions by the court, the plaintiff was referred to accident report
that shows that what looks like a ditch on the accident
sketch has
been described as a culvert and it appears on both side of the road,
and it is far from the point of impact and also
ahead of the point of
impact. The plaintiff changed his version and stated that on the left
side the road was uneven, and that
the uneven part of the road does
not appear on the sketch. The plaintiff was also referred to the
brief description of the accident
on the accident report where the
insured driver had stated that the plaintiff was the one who was
overtaking the convoy of vehicles
when the accident occurred. The
plaintiff stated that the police never interviewed him as he had lost
his consciousness. The plaintiff
could not tell what were the
exceptional circumstances that made him to swerve to the right
instead of the left side of the road,
taking into consideration that
the surface on the left was merely uneven, and therefore less risky
than facing oncoming cars.
[6]
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 as the 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 casual nexus, namely, whether one fact follows from
another. (See
Grove
v The Road Accident Fund
[1]
).
[7]
According
to the plaintiff's version, he was driving in convoy of vehicles
wherein there were four vehicles in front of him, and
the sixth
vehicle was a truck which was travelling behind him. Suddenly, two
polo vehicles started overtaking them and he applied
brakes abruptly.
As he was applying brakes he saw that the truck behind was going to
knock him from behind and he swerved to the
extreme right into the
gravel. He could not swerve to the extreme left as there was a ditch.
[8]
In
Cape
Metropolitan
Council
v
Graham
[2]
Scott
JA
said:
"Turning
to the question of negligence, it is now well established that
whether in any particular case the precautions taken
to guard against
foreseeable harm can be regarded as reasonable or not depends on
consideration of all the relevant circumstances
and involves a value
judgment which is to be made by balancing various competing
considerations. These would
ordinarily
be
'(a)
the degree or extent of the risk created by the actor's conduct; (b)
the gravity of the possible consequences if the risk materialises;
(c) the utility of the actor's conduct; (d) the burden of eliminating
the risk of harm'".
[9]
The
plaintiff's version is full of loopholes. The plaintiff has failed to
explain why he
had
to
apply
brakes
abruptly
when
the
two
polo
vehicles
were
merely
overtaking even if
they were overtaking when it was dangerous for them to do so. It
would have made sense if the plaintiff had testified
that as the
polos were overtaking, there was an oncoming car that forced the two
polos to move back into their correct lane in
front of him or any of
the cars the were driving in front of him, but that is not his
version. From the plaintiff's version, it
does not seem that as two
polos were overtaking, they forced their way in front of any of the
cars that were driving ahead of the
plaintiff. These polos were not
in any way interfering with plaintiffs path of travel, except that
they were overtaking when it
was dangerous to do so.
[10]
The
plaintiff has testified that he could not swerve to the extreme left
as there was a ditch. When the plaintiff was confronted
with the
accident report which on the sketch does not show any ditch but a
culvert which appears on both side of the road, and
was far ahead of
the point on impact, the plaintiff changed his version that it was
not a ditch, but the road was uneven. When
asked where on the sketch
plan was the road uneven, he testified that it was before where the
drafter of the accident plan had
drafted the sketch, and that it does
not appear on the sketch. That version makes the plaintiff's version
to be more improbable,
as if that is the case, the uneven road will
be far away from where he started swerving to the right and the point
of impact, since
the plaintiff had testified that after swerving to
the gravel on the right side of the road, he had stopped his vehicle.
The point
of impact as per his version was not far from where he had
stopped his vehicle. When he saw the two cars coming from the
direction
of Polokwane his car was stationary and far away from the
uneven left side of the road.
[11]
The
plaintiff did not testify that when he swerved to the extreme right,
there was an oncoming car. The plaintiff could not explain
why he
chose to swerve to the extreme right onto the gravel, and not just on
the lane of oncoming cars since there was no eminent
danger ahead of
him. The truck which the plaintiff was avoiding which was coming
behind, was not stationary, but moving. A reasonable
driver faced
with the plaintiff's situation, if it indeed happened as testified by
the plaintiff, would have swerved to the right
(if the right was
his/her only option) into the lane of oncoming cars, slowed down his
vehicle to allow the truck to pass, and
thereafter moved back to his
correct lane. Swerving to the right should have been the plaintiff's
last resort, as the uneven side
of the road would have been less
risky than facing oncoming cars. The court is mindful of the fact
that the decision should be
made in a split of seconds, but that
decision should be what a reasonable driver faced with that situation
would have done.
[12]
The
only reasonable conclusion to be made from the plaintiff's version,
is that he is the one who was trying to overtake the convoy
of cars,
and was faced with an oncoming car. He could not swerve to the left
as there was a convoy of cars, and he opted to swerve
to the extreme
right onto the gravel. The driver of the insured oncoming car also
swerved to the extreme left, which as a reasonable
driver facing an
oncoming car was supposed to do. When the insured driver saw the
plaintiff swerving to the gravel side, he tried
to swerve back to his
correct lane, and that resulted in a head on collision. The insured
oncoming car cannot be blamed for the
collision, but the collision
was as result of the negligent driving of the plaintiff who tried to
overtake when it was dangerous
to do so. There is no element of
contributory negligence on the part of the insured driver of the
oncoming car. The plaintiff has
failed to prove negligence on the
part of the insured driver of the oncoming car, and therefore
liability of the defendant has
not been proved or established at all.
[13]
In
the result the following order is made:
13.1
The
plaintiffs claim is dismissed.
13.2
No
order as to
costs
KGANYAGO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the plaintiff
:
Adv RC
Molepo
Instructed
by
:
MWIM
&
Associates
INC
Counsel
for the defendant
:
In
default
Date
heard
:
5
th
March 2024
Electronically
circulated
on
:
2
nd
April 2024
[1]
[2011]
ZASCA 55
(31 March 2011) at para 7
[2]
2001(1)
SA 1197 (SCA) at para 7