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[2024] ZALMPPHC 180
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Matsilele v Road Accident Fund (1975/2018) [2024] ZALMPPHC 180 (19 November 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 1975/2018
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO
THE JUDGES:
YES
/NO
(3) REVISED.
DATE: 19/11/2024
SIGNATURE:
In
the matter between:
MATSILELE
KULANI LOVERS
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
On 29
th
July 2017 the plaintiff was the driver of motor
vehicle with registration number J[…] when he was allegedly
involved in
a motor vehicle collision with a motor vehicle (insured
motor vehicle) whose registration numbers were unknown to the
plaintiff.
As result of the accident the plaintiff sustained serious
bodily injuries. The plaintiff has instituted an action against the
defendant
claiming damages arising out of that accident. According to
the plaintiff’s particulars of claim, the plaintiff was driving
behind the insured motor vehicle when the insured motor vehicle
reduced its speed which forced the plaintiff to apply brakes. In
the
process of applying brakes, the plaintiff lost control of his motor
vehicle which rolled.
[2]
The defendant had defended the plaintiff’s action. In its plea
the defendant had denied that the
accident was caused by the
negligent driving of the insured driver, but that it was as a result
of the sole negligence of the plaintiff.
In the alternative the
defendant had pleaded contributory negligence. During the pretrial
conference the parties have agreed on
separation of merits and
quantum. At this stage what the court is required to determine is the
issue of liability only.
[3]
The plaintiff has testified under oath. He testified that on 29
th
July 2017 he was driving his motor vehicle which is an NP200 from
Makhumele village to Malamulele on a tarmac road. He was driving
behind the insured motor vehicle. The insured motor vehicle suddenly
applied brakes and immediately stopped in the middle of the
road. In
order to avoid a collision, the plaintiff swerved to the extreme
right and lost control of his vehicle which rolled.
[4]
When the plaintiff came out of his motor vehicle, he found that the
insured motor vehicle which was
the sole cause of the accident was no
longer there. The plaintiff had sustained serious injuries as a
result of the accident. The
bystanders who came to the scene phoned
an ambulance, but it did not arrive. One of the bystanders took the
plaintiff to the hospital
by his car. Before the accident the
plaintiff was driving at a speed of 80 km per hour, and that the
speed limit in that area was
80 to 100 km per hour. The plaintiff
alleges that there was nothing he could have done to avoid the
accident as on the left there
was a ditch and that is the reason he
swerved to the right. At the time of the accident the plaintiff was
having two passengers
in his car.
[5]
The plaintiff was cross-examined and he stated that the accident
occurred between 8h00 and 9h00 whilst
he was travelling to work in
Malamulele. The weather was clear and it was sunny. The plaintiff
stated that when he first saw the
insured motor vehicle stopping, he
was at a distance of about 50 to 60 metres. He stated that it was a
two-lane road, and that
when the insured motor vehicle stopped there
were no oncoming cars. The plaintiff stated that when he saw the
insured motor vehicle
stopping, he applied brakes and seeing that he
was going to knock it from behind, he swerved to the right.
[6]
The plaintiff was referred to the discrepancy in his
viva voce
evidence and his section 19(f) affidavit. In his section 19(f)
affidavit the plaintiff has stated that the unknown driver had
reduced speed in front of him, and he tried to apply brakes but lost
control of his vehicle and it rolled. The plaintiff stated
that the
correct version is his
viva voce
evidence wherein he had
stated that the insured driver had stopped his vehicle in the middle
of the road which resulted in him
swerving to the right, and in the
process lost control of his vehicle which rolled. The plaintiff
conceded that when he state that
the insured vehicle stopped in the
middle of the road, he refers to it stopping in its correct lane of
travel. The plaintiff stated
that under normal circumstances when he
overtakes a vehicle in front of him, he will do so when he was about
10 metres from it.
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 submitted their closing
address on the merits of the case.
[7]
It is trite that the defendant (RAF) is obliged to compensate for
bodily injury caused by or arising
out of the driving of a motor
vehicle. The causal 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]
).
[8]
For the plaintiff to succeed with his claim against the defendant, he
must prove negligence on the part
of the insured driver. The accident
must have been caused by the negligent driving of the insured driver,
and the plaintiff has
a duty to set out the circumstances which he
regards as acts of negligence on the part of the insured driver. It
follows that failure
to prove any negligence on the part of the
insured driver will absolve RAF from being held liable for any
damages suffered by the
plaintiff arising out of that accident.
[9] The
standard used to determine whether a person is negligent is that of a
reasonable person. In
Cape
Metropolitan Council v Graham
[2]
Scott JA said:
“
Turning
to the question of negligence, it is 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 a
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
of the harm
materialises; (c) the utility of the actor’s conduct; and (d)
the burden of eliminating the risk of harm’.
If
a reasonable person in the position of the defendant would have done
no more than was actually done, there is of course, no negligence”.
[10]
According to the plaintiff’s
viva voce
evidence which he
regards as the correct version of how the accident occurred, he first
saw the insured vehicle at a distance of
50 to 60 metres when the
insured vehicle allegedly stopped in its lane of travel. At that
stage the plaintiff was travelling at
a speed of 80 km per hour and
the permitted maximum speed within that area was 80 to 100 km per
hour as testified by the plaintiff.
The plaintiff was therefore
travelling within the permitted speed limit.
[11]
The weather condition was clear and it was sunny. The road surface
was also clear and there was nothing to
obstruct the plaintiff. The
plaintiff has further testified that normally when he overtakes a
vehicle in front of him, he will
do so when he was about 10 metres
from that vehicle and he will be able to overtake that vehicle
without encountering any problems.
The plaintiff has conceded that
when he saw the insured vehicle allegedly stopping there were no
oncoming cars. The plaintiff even
went on to testify that if there
was any oncoming car, he would have collided with it when he swerved
to the right. The plaintiff
was unable to explain why at the distance
of 50 to 60 metres he did not simply overtake the insured vehicle
since there was no
eminent danger of an oncoming car.
[12]
The question is whether the plaintiff has acted reasonably by
swerving to right instead of applying brakes
at that distance taking
into consideration the speed at which he was travelling, or overtake
the insured vehicle. In
Road
Accident
Fund
v Grobler
[3]
Hanckle AJA said:
“
[11]
The question is whether the respondent acted reasonably in the
circumstances. In South African Railways v Symington 1935 AD
Wessels
CJ stated (at 45)
‘
Where
men have to make up their minds how to act in a second or in a
fraction of a second, one may think this cause better whilst
the
other may prefer that. It is undoubtedly the duty of every person to
avoid an accident, but if he acts reasonably, even if
by a
justifiable error of judgment he does not choose the very best course
to avoid the accident as the events afterwards show,
then he is not
on that account to be held liable’.
[12]
When a person is confronted with a sudden emergency not out 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 circumstances”.
[13]
The plaintiff did not plead sudden emergency. The version of the
plaintiff does not suggest that there was
any sudden emergency. At
the distance at which the plaintiff was when he first saw the insured
vehicle allegedly stopping, the
speed at which the plaintiff was
travelling, and also that there were no oncoming vehicles, in my
view, a reasonable driver who
finds himself/herself in the position
of the plaintiff, would have overtaken the insured vehicle without
any risk of colliding
with the oncoming vehicles as there was none.
There is no evidence presented that at the spot where the insured
motor vehicle had
allegedly stopped, it was dangerous to overtake.
The other option which a reasonable driver would have taken even
though it was
not necessary, would have been to apply brakes and at
that distance and speed, his/her vehicle would have come to a
standstill
without any risk of bumping or colliding the insured
vehicle from behind.
[14]
The plaintiff has testified that he tried to apply brakes but lost
control of his vehicle. The plaintiff
was unable to explain what
caused him to loose control of his vehicle as the insured motor
vehicle was still far away from him,
and also taking into
consideration the speed at him he was travelling, and there were no
oncoming cars, unless he was travelling
at an excessive speed and not
80 km as testified by him.
[15] It
would have been a different story if the plaintiff’s version
was that the insured vehicle suddenly
stopped whilst he was driving
behind him at close range, and he had to make a decision in a split
of seconds due the sudden emergency
he was finding himself in. In my
view, the option which the plaintiff took fell short of what a
reasonable driver finding himself/herself
in that situation would
have done. The plaintiff has failed to prove negligence on the part
of the insured driver. The plaintiff
was 100% to blame for the
accident.
[16] In
the result the following order is made:
16.1
The plaintiff’s claim is dismissed with costs
KGANYAGO J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
appellant
: Adv LT Nkonyane
Instructed
by :
Mashamba Incorporated
Counsel for the
respondent
: MC Mafiri
Instructed
by
: State Attorney Polokwane
Date
heard :
12
th
November 2024
Electronically
circulated on
: 19
th
November 2024
[1]
[2011]
ZASCA 55
(31 March 2011 at para 7
[2]
2001
(1) SA 1197
(SCA) at para 7
[3]
2007
(6) SA 230
(SCA) at para 11 and 12