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2024
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[2024] ZAFSHC 271
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Louw obo K.S.M v Road Accident Fund (6263/2018) [2024] ZAFSHC 271 (5 September 2024)
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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
No. 6263/2018
In
the matter between:
ADV.
MC LOUW obo KS M[…]
PLAINTIFF
and
ROAD
ACCIDENT FUND
LINK:
3768902
DEFENDANT
JUDGMENT
BY:
MHLAMBI, J
HEARD
ON:
03 MAY 2024
DELIVERED
ON:
05 SEPTEMBER 2024
[1]
The plaintiff sustained injuries in a motor collision that took place
on 7 May 2014 in a residential
area at Thaba-Nchu, Free State, when a
motor vehicle, with registration number FKS […], driven by the
insured driver, KC
Mathopa, collided against the plaintiff who was a
pedestrian at the time. The plaintiff’s action for damages
based on his
injuries is defended. The matter proceeded on the merits
only as the parties agreed to separate the merits from the quantum.
[2]
The plaintiff called two witnesses to support his case, while the
defendant closed its case without
calling any witnesses. The
plaintiff’s uncontested evidence is that on 07 May 2014, at
about 18h00, he stood on a pedestrian
sidewalk close to the corner of
an intersection with one street running from North to South and the
other from East to West, waiting
for his friend to arrive by bus from
Bloemfontein. The streets in that area had no street names.
[3]
The street running from East to West is a thoroughfare, and vehicles
travelling on it are not
required to stop at the intersection and
have the right of way. Stop signs at the intersection controlled
those travelling from
North to South. The plaintiff stood in front of
the corner residential property at the intersection of the two
streets, one running
along its eastern boundary and the other on its
northern boundary. The bus stop was across the street, going
eastwards, opposite
where the plaintiff stood, but slightly to his
left. His back was close to the boundary fence on the northern side
of the corner
residence. He stood approximately 1,25 meters from the
street on the sidewalk facing towards the bus stop. On his right-hand
side
and behind his back was an anchored steel pole on the corner of
the property. This pole supported the fence in front of the northern
boundary of the corner residence.
[4]
While waiting for the bus to arrive from Bloemfontein, he talked to
people on the other side of
the street. The bus would be approaching
from his left-hand side, on the opposite side of the street, and
would be moving from
west to east. Passengers would alight on the
left-hand side of the bus onto the curb. It was sunset at about
18h00, and it was
getting dark. He never moved from where he stood.
His next recollection was when he woke up at the hospital. He could
not recall
how many days he was in a comma. He did not see how the
accident happened and who collided with him
[5]
Mr S M[...], the plaintiff's father, testified that on 7 May 2014, he
was at home when he was
called to the scene of the accident by boys
who knew his son. On arrival at the accident scene, he found his son
lying face up
with his head on the cement curb. His son was lying
with his body in front of a bus at the bus stop. At the bus stop, the
road
from west to east widens before the intersection, allowing the
bus to stop without causing traffic congestion. A stationary vehicle
was on the sidewalk behind the bus stop. It was damaged in the middle
of its front part, which was dented and bent inwards. The
fenders,
front bumper, side of the vehicle, and lights were also damaged. All
four tyres of the vehicle were deflated.
[6]
He found brake and tyre marks that he measured 100m long on the
street from the north to the south.
They started on the southern side
and moved north into the street to the east. He did the measurements
the day after the accident,
as he took his son to the hospital the
previous evening. The marks started on the right-hand side of the
street from the north
before the stop sign at the intersection. They
then moved to the left-hand side of the street, moving from south to
north, before
the stop sign. The marks then left the road, went up
the sidewalk on the left-hand side of the street, and cut the street
corner
of the residential property on the left-hand corner and to the
left of the stop sign.
[7]
He observed the day of the accident, at the corner property across
the street from the bus stop,
marks on the ground and debris from the
motor vehicle's glass and parts lying in the area of an unearthed and
bent steel pole embedded
in a block of cement lying on the ground.
Two bent steel poles were attached to either side of the central
pole, which was used
to anchor and stabilise the corner steel pole
that upheld the fence of the corner property. The marks then went on
both sides of
the rundown corner steel pole, continued across the
street from west to south, and ended on the opposite side of the road
at the
bus stop, close to where the damaged motor vehicle stood
stationary on the pedestrian sidewalk.
[8]
Mr. S M[...] only knew the insured driver from seeing him. However,
he knew that the criminal
case against the insured driver was still
ongoing, and he had to appear in court later that month on charges
relating to the accident.
He drew a rough sketch to assist the court
with his observations, which was handed up provisionally as exhibit
A. The defendant
closed its case without presenting any evidence.
[9]
The plaintiff’s counsel contended that the plaintiff had, on a
balance of probabilities,
discharged the onus of establishing that
the sole negligence of the insured driver caused the collision. The
defendant’s
counsel argued that having considered the
Plaintiff's evidence, it was the Defendant's submission that the
Plaintiff had not proven
that the accident was caused by the
negligent driving of the insured driver as he did not have an
independent recollection of how
the accident occurred. The Plaintiff
testified that he was not looking in the direction where the bus came
from but was facing
forward and concentrating on what was happening
in front of him. Given that he was standing at the corner of the
road, the applicant
would have been able to see a vehicle approaching
him from the south side and taken steps to avoid the accident.
Considering that
he indicated that taxis were busy on that road, he
would have seen the insured vehicle approaching.
[10]
The defendant’s counsel contended further that the second
witness was not present when the accident
occurred. The witness’
sketch plan, marked Exhibit A, had no probative value as the witness
made an assumption, and its probative
value is outweighed by the
procedural disadvantage of receiving it on the day of the trial;
thus, the same should be excluded as
it is prejudicial to the
Defendant. As such, the Court had no evidence of how the accident
occurred and no evidence of negligence
on the part of the insured
driver.
[11]
In conclusion, the counsel submitted that the plaintiff’s claim
should be dismissed with costs as no
negligence could be attributed
to the insured driver. Alternatively, should the court find that the
insured driver was negligent,
the plaintiff’s claim should be
apportioned at 70/30 in the plaintiff’s favour.
[12]
In response, the plaintiff’s counsel referred to the dictum in
Galante
v Dickinson,
[1]
that:
“
It
is not advisable to seek to lay down any general rule as to the
effect that may properly be given to the failure of a party to
give
evidence on matters that are unquestionably within his knowledge. But
it seems fair at all events to say that in an accident
case where the
defendant was himself the driver of the vehicle the driving of which
the plaintiff alleges was negligent and caused
the accident, the
court is entitled, in the absence of evidence from the defendant, to
select out of two alternative explanations
of the cause of the
accident which are more or less equally open on the evidence, that
one which favors the plaintiff as opposed
to the defendant
.”
[13]
The plaintiff’s evidence was uncontested, especially that he
was on the sidewalk and never moved therefrom
until he woke up in the
hospital. Furthermore, Mr. M[...]’s evidence was uncontested.
His evidence corroborated the plaintiff’s
version of how the
accident occurred by indicating the direction of the insured vehicle
and where it ultimately came to a standstill.
Even though he
was not an eyewitness, he gave a layout of the accident scene, which
aligned with his testimony. This evidence is
material and helps to
prove the pertinent
facta probanda.
Therefore, exhibit A, a
sketch that he drew to depict the tyre marks and the direction
followed by the insured vehicle until it
came to a standstill, which
was provisionally allowed, is admitted to evidence. There can,
therefore, be no suggestion that the
plaintiff was contributorily
negligent as to the causation of the accident.
[14]
In the circumstances, I am satisfied that the plaintiff has adduced
the necessary evidence and has proved
his case on a balance of
probability. I find that the defendant was 100% negligent in causing
the accident. There is no reason
why the costs should not be awarded
in favour of the plaintiff. I therefore make the following order:
ORDER:
1.
The plaintiff succeeds with costs, with the
Counsel’s fees on scale B.
2.
The defendant is held 100% liable for the
plaintiff’s proven or agreed-upon damages.
JJ
MHLAMBI, J
APPEARANCES:
On
behalf of the Plaintiff
Mr.
D Marx
Instructed
by:
Du
Plooy Attorneys
BLOEMFONTEIN
On
behalf of the Defendant
Ms.
N.P Banda
Instructed
by:
State
Attorneys
BLOEMFONTEIN
[1]
1950(2)
SA 460 (A) at 465
.