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2024
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[2024] ZAFSHC 241
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Steyn v Road Accident Fund (1233/2023) [2024] ZAFSHC 241 (8 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
Case
Number: 1233/2023
In
the matter between:
ETTIENNE
SIMONS STEYN
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BY:
REINDERS, J
HEARD
ON:
8
MARCH 2024
DELIVERED
ON:
8 AUGUST 2024
This
judgment was handed down in open court and distributed to the parties
via electronic mail communication.
[1]
On 24 July 2020 the plaintiff
was working at a
road construction site (“the site”) at Fort Hare Street
in Bloemfontein when he was struck by an eight
ton SAKAI Tandem
Vibrating Steel Drum Roller ("the roller"), operated by Mr
Pieter Mpempe (“the insured driver”).
On that
fateful day the plaintiff sustained serious multiple fractures to his
left lower leg as well as multiple fractures
of his right foot and
upper right forearm. The injuries sustained on his leg sadly resulted
in an amputation above his knee.
[2]
In his particulars of claim it is alleged by the plaintiff that the
mentioned injuries were caused
by the negligence of the insured
driver who was negligent (in one or more ways) in that he omitted to
keep a proper lookout, keep
his motor vehicle under proper control,
avoid the accident when by exercising reasonable care he should and
could have done so
and to adequately apply the controls and other
mechanisms of the motor vehicle in such a way that it does not pose a
threat to
other road users. The plaintiff alleges that as a result of
these injuries, he suffered special and general damages to the amount
of R 9 215 300.00.
[3]
The defendant in its plea denied liability towards the plaintiff,
alleging that the plaintiff
was the sole cause of the collision as he
was negligent (in one or more ways) in failing to keep a proper
lookout, to take cognizance
of the prevailing traffic/traffic
conditions and/or the rights of the insured driver, to avoid the
collision when by exercise of
reasonable care and consideration he
could have done so. It was pleaded in the alternative that the
plaintiff was contributory
negligent in one or more of the grounds
set out in the plea and that any claim which the plaintiff may have,
should be reduced
in accordance with the provisions of the
Apportionment of Damages Act (“the Apportionment Act”)
[1]
.
[4]
During the trial and through settlement negotiations the parties
reached an agreement that the
plaintiff abandons his claim for past
medical and hospital expenses, with future claims of this nature to
be addressed by means
of an undertaking by the defendant in terms of
Section 17(4)(a) of the Road Accident Fund Act
[2]
.
In respect of plaintiff’s claims in his particulars for past
and future loss of income (R 5 215 300-00) and general damages
(R 1
500 000-00), the amounts prayed for were accepted by the defendant
(but for the apportionment as contemplated in the Apportionment
Act).
[5]
The only aspect for adjudication by me accordingly entails the
apportionment of damages
to wit the percentage of negligence in
respect of the insured driver vis-a-vis the plaintiff.
[6]
To proof his case the plaintiff testified and called Mr Jacob Verkes
(Mr Verkes).
6.1
The documentary evidence accepted into evidence include a google map
and handwritten
sketch plan (“the plan”) wherein the
site, positions of road construction machinery and the physical
positioning of
the plaintiff and Mr Verkes at the time of the
incident, are indicated. Fort Hare Street is indicated as a dual
carriageway having
two lanes in each direction, divided by an island,
with resurfacing work taking place in the right lane of the
carriageway. All
the road construction machinery, which included the
roller, a water tanker machine and an asphalt tanker machine, are
depicted
on the plan as having been positioned on the right lane of
the carriageway.
6.2
The expert reports for the plaintiff (an orthopaedic surgeon,
occupational therapist,
industrial psychologist,orthoptist
prosthetist, actuary and a physiotherapist) were admitted into
evidence without objection thereto
by the defendant.
6.3
The defendant did not file any expert reports nor did it call any
witnesses. More specifically,
the insured driver was not called to
testify, with no explanation tendered therefore.
[7]
It is common cause that the plaintiff had at the time been employed
for a period of four
years by Global Surfacing (tasked with the
resurfacing of the road). During the project he was the worker/site
foreman of the team,
whilst Mr Verkes was the site supervisor
responsible for the safety at the construction site.
7.1
A brief synopsis of the evidence of plaintiff and Mr Verkes entailed
that on
the day of the incident plaintiff was filling the roller with
water from a water tanker truck positioned behind the roller, just
moments prior to the collision. Mr Verkes at the same time was in
close proximity to an asphalt paving machine.
7.2
Following the injection of water into the roller, it started moving
in the direction of
Harvey Road. During this phase, the roller
performed forward and revers manoeuvres in order to lubricate the
steel roller drums
with water prior to compacting the asphalt truck's
heated asphalt deposit. At this point, the plaintiff was positioned
behind the
roller.
7.3
Whilst the roller was moving forward and backward, the plaintiff was
called by Mr Verkes,
intending to give him certain instructions
regarding the water tanker. The plaintiff approached Mr Verkes as he
was unable to hear
him due to the noises at the site. Following this,
Mr Verkes also approached the plaintiff, and when they were within
hearing distance
of each other, Mr Verkes directed the plaintiff to
notify the water tanker operator to vacate the area.
7.4
While turning to notify the operator of the water tanker, the
plaintiff was knocked to
the ground by the roller which had moved
backward, causing plaintiff’s right foot to be caught under it.
The driver however
got bewildered and moved the roller forward,
thereby driving over plaintiff’s right leg, resulting in the
injuries sustained
as described above.
[8]
The
case law applicable to the adjudication of this matter is trite. The
test for negligence as stated in
Kruger
v Coetze
e
[3]
has as a yard stick the conduct of the reasonable man (hereafter the
reasonable ‘person’). It is trite that the
onus rests on
the plaintiff to prove the defendant's negligence which caused the
damages suffered, on a balance of probabilities.
To avoid liability,
the defendant must produce evidence to disprove the inference of
negligence on his part, failing which the
defendant risks the
possibility of being found to be liable for damages suffered by the
plaintiff. On the other hand, w
here
the defendant had in the alternative pleaded contributory negligence
and seeks a finding of an apportionment, the defendant
would have to
establish negligence on the part of the plaintiff on a balance of
probabilities.
[9]
The law of delict is clear on the principle that a person should bear
the loss she/he suffers
where she/he contributes to her/his damages
by her/his own negligent conduct which should be taken into account
in reducing such
damages accordingly.
In terms of the
Apportionment Act, damage shall be regarded as having been
caused by a person's fault notwithstanding
the fact that another
person had an opportunity of avoiding the consequences thereof and
negligently failed to do so.
In pleading contributory negligence, it is incumbent to prove that
there was a causal connection between the collision and the
conduct
of the plaintiff, being a deviation from the standard of
the
diligence
paterfamilias.
Section
1(1)(a) of the Apportionment Act affords a discretion to the trial
court to reduce a plaintiff’s claim for damages
suffered, on a
just and equitable basis and to apportion the degree of liability.
[10]
Counsel for the defendant submitted that the version of the plaintiff
on the exact circumstances which led
to him being injured, cannot be
correct. He alluded to discrepancies in affidavits attested to by the
plaintiff and Mr Verkes shortly
after the incident, and their
testimonies in court. More specifically, he submitted
that
if the roller struck the plaintiff whilst Mr Verkes was at the water
tanker as testified, Mr Verkes could have warned the plaintiff
of the
roller as the plaintiff was struck in close proximity of the water
tanker, which renders the positioning of Mr Verkes at
the time,
improbable. Counsel for the defendant ultimately submitted that the
circumstances surrounding the collision are inconsistent
and, on that
basis, the insured driver’s negligence, save for his failure to
properly observe when he turned the roller into
reverse mode, has not
been proven on a balance of probabilities.
[11]
In my observation of the plaintiff testifying, it is my view that he
was honest to the extent that he did
not shy away from making
concessions when cross-examined, even if to his possible or ultimate
detriment.
11.1
These admissions included that he was not only aware of the safety
protocols and measures applicable
to road construction sites and the
inherent hazardous nature of the roller, but also that pedestrian
movement was extremely limited
in close proximity of the roller. He
conceded that by the time Mr Verkes had called him, the roller had
already started its forward
and backward manoeuvres. Despite this
awareness, he turned his back towards this potentially dangerous
reverse manoeuvres of an
eight-ton machine. He conceded that this was
negligent of him.
11.2
Plaintiff conceded that the roller is equipped with a buzzing siren
that alerts those in the rear that
it is in reverse mode and warns
them to yield to this dangerous circumstances. The roller was
consistently moving back and forth,
with its siren activated each
time it is in reverse mode. The plaintiff did however not pay
attention to this. Insofar he failed
to pay attention, he admitted to
having been negligent.
11.3
Plaintiff could not deny that he deposed to an
affidavit in support of his claim against the Workmen’s
Compensation Commissioner in 2022, stating that when the roller was
following him as he was heading toward the tanker: “…
ek
het nie daarop gemerk nie
” and later “…
ek
het nie ag geslaan op roller voertuig”
and “
ek
het met my rugkant na die roller voertuig weggestap in die rigting
van Mnr. Verkes
”.
[12]
Counsel on behalf of the plaintiff took an opposite view of the
submission that the only negligence on the
part of the insured driver
related to him not heading to the safety protocol that he had known
due to his uncontested training.
Counsel pressed on me to take into
account that there were in fact two separate incidents causing the
plaintiff’s injuries.
Firstly, the plaintiff’s foot only
was initially caught when he was struck by the roller in its
reversing manoeuvre, whilst
the second incident occurred when the
insured driver became bewildered and drove the roller forward. This
last movement of the
roller, so it was submitted, was the real cause
of the seriousness of the injuries sustained by the plaintiff.
Accordingly, so
the argument went, the insured driver’s degree
of negligence by far outweighs that of the plaintiff under the
prevailing
circumstances.
[13]
In making a finding in respect of the apportionment,
I
considered the evidence as adduced.
The
plaintiff was injured at a construction site and conceded that due to
the potentially hazardous nature of the roller, pedestrian
movement
should be restricted to the greatest extent feasible. The
aforementioned roller is equipped with a buzzing siren that
alerts
those in the rear that it is in reverse mode and warns them to yield,
making forward and backward movements whilst the siren
was in reverse
mode. Counsel for the defendant submitted that the
only
negligence that can be attributed to the insured driver is that he
did not keep a proper lookout when he reversed. He submitted
that
common sense dictates that because the reverse mode of the roller is
equipped with a siren, and because the roller continuously
moves back
and forward, a reasonable person may rely on the beeping sound and
would not consistently look back and forward each
time the roller
moves. According to him a reasonable person also accepts that a
person with the vast experience of the plaintiff
as a site foreman
would heed the warning of such reverse siren, would not turn his back
towards it knowing that it consistently
moves forward and backward
and he would stay clear of the roller’s path when in
conversation with others.
[14]
Counsel for the plaintiff pleaded
with me to take into account that the plaintiff is judged, even by
himself, in hindsight and it
should be accepted that the reasonable
person is not perfect.
He
urged me
to make a finding in favour
of the plaintiff that the collision was occasioned through 95 - 90%
of the defendant’s (and thus
5-10% of the plaintiff’s)
negligence, whilst counsel for the defendant submitted that the
plaintiff’s negligence amounted
to 60%,
with
only 40%
negligence on the side of the
defendant.
[15]
On a conspectus of the evidence as a whole I am
satisfied that both plaintiff and defendant were negligent.
15.1
Both knew that they were in a secured area where members of the
public were excluded due to the operation of heavy machinery
and the
inherent danger of the work undertaken. Both knew or should have
known that as a result they at all times had to keep a
proper
lookout.
The
defendant was well qualified to operate the roller and
should
have known that a failure to keep a proper lookout could result in
serious injuries to others and in particular the plaintiff
who was in
the immediate vicinity of the roller.
The
plaintiff was neither an ordinary pedestrian nor a less qualified,
inexperienced construction worker.
Likewise,
the plaintiff knew or should have known that he is in the immediate
vicinity of the roller which moved forth and back,
and that he could
be injured should he not keep a proper lookout for the movements of
the roller.
15.2
Having considered these factors, I am not convinced that one of the
parties was more negligent than the other,
except for the uncontested
evidence that the driver ostensibly became bewildered and drove over
the plaintiff again. In this respect,
the plaintiff was on the ground
and could not prevent any further injury. Had it not been for the
last mentioned fact, I would
have concluded that each of the parties
was 50% negligent.
15.3
The fact that the defendant did not testify does not entitle me to
conclude more negligence on his side than
the facts proven. In my
view, his failure to testify at best allows me to conclude that he
could not explain certain of his negligent
behaviour as there is
simply no explanation for such prima facie negligent behaviour. I
therefore conclude on a conspectus of all
the above that it would be
just and equitable to make a finding that defendant was negligent for
60% and plaintiff for 40% of the
damages sustained by plaintiff.
[16]
What happened to the plaintiff on 24 July 2020 was a tragedy. It
still remains as such. The plaintiff testified
on the pain and
suffering that he had to endure, the medical interventions that
followed and other negative consequences. The accident
left him
wheelchair-bound, unable to do anything by himself without
assistance. It is understandable that as a consequence he suffered
from severe depression as indicated by expert reports. The
unthinkable happened on that fateful day and the clock cannot ever be
turned back. I do not have any hesitation in finding that the claimed
amount for general damages is warranted.
[17] I
was provided with a draft order (the content of which will be
reflected in the order that I intend granting
with some aesthetical
amendments) and requested by the parties to grant same with the
inclusion of the percentages of apportionment
which I deem just and
equitable.
[18] In
view of the conclusion which I have reached in paragraph [15] herein
above, the following order shall
issue:
1.
An apportionment of
60%
/ 40
% is awarded in favour of the
plaintiff in respect of the merits of the claims
against the defendant.
2.
The defendant shall pay to the plaintiff a
capital amount of
R 4 029 180-00
(Four million, twenty-nine thousand and one hundred and eighty rand)
constituted as follows:
2.1
Past and future loss of income
R 5
215 300-00
2.2
General damages
R1
500 000-00
Sub
Total
R 6
715 300-00
Less
40% apportionment
(R 2
686 120-00)
TOTAL:
R
4 029 180-00
3.
The Defendant to pay interest on the sum of
R 4 029 180-00
calculated at 11.25% per annum from fourteen (14) days following the
date of 180 days from this order of court to date of payment.
4.
The defendant shall furnish the plaintiff with an undertaking in
terms of Section 17(4)(a) of Act 56
of 1996 in respect of future
accommodation of the plaintiff in a hospital or nursing home or
treatment of or the rendering of a
service or supplying of goods of a
medical and non-medical nature to the plaintiff (and after the costs
have been incurred and
upon submission of proof thereof) arising out
of the injuries sustained in the collision which occurred on 24 July
2020 (limited
to 60% thereto).
5.
The defendant shall pay Plaintiff's agreed
or taxed party and party cost within fourteen (14) days of taxation
or an agreement of
such fees reached, including the reservation fees
of the following expert witnesses:
Dr
J F Ziervogel;
5.2
Juan
é
Raats;
5.3
Susan
van Jaarsveld;
Munro
Forensic Actuaries;
F A
Kleynhans;
5.6
Nelleke Krog.
6.
The Plaintiff waives his claim against the
Workmen's Compensation Commissioner (WCC).
C
REINDERS, J
On
behalf of the Plaintiff:
Adv.
PJ Greyling
Instructed
by:
Bokwa
Law Inc.
BLOEMFONTEIN
On
behalf of the Defendant:
Adv.
LBJ Moeng
Instructed
by:
State
Attorneys
BLOEMFONTEIN
[1]
34
of 1956, as amended.
[2]
56
of 1996.
[3]
1966
(2) SA 428
(A)
at 430 E-G