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[2024] ZALMPPHC 33
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Paul v Road Accident Fund (10344/2022) [2024] ZALMPPHC 33 (2 April 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 10344/2022
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
In
the matter between:
MOKOKOANA
THABO PAUL
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1] On
9
th
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 9
th
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
plaintiff’s 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 plaintiff’s claim is dismissed.
13.2
No order as to costs
KGANYAGO
J
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