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/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 23/09/2005

CASE NO: 25209/2003

UNREPORTED

In the matter between:

MARIE NELSON PLAINTIFF

And

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

MAKHAFOLA, AJ

This is an action for damages arising from a motor vehicle collision between motor vehicle DRF282NW then and there driven by the plaintiff and motor vehicle BCM967NW which was driven by the insured driver that occurred at an intersection of Von Weilligh and Smit Streets in Rustenburg on 13 October 2000 at about 18:40.

At the commencement of the trial, by agreement between the parties, the court was requested to order in terms of rule 33(4) of the Uniform Rules of Court that the issue of merits be adjudicated separately from the issue of quantum, and that the matter should proceed on the merits only. This order was accordingly given.

Exhibit A which is sketch of the scene, prepared by the parties handed in by agreement was extensively referred to by both parties during the trial.

Common Cause factors:

(1) There was a collision between the plaintiff’s motor vehicle and the insured motor vehicle in the intersection of Smit and Von Wielligh Streets;

(2) The collision occurred on 13 October 2003 at 18:40;

(3) The jurisdiction of the court is confirmed.

Dispute

The main dispute of facts can be summarised as follows:

(a) point of impact; and

(b) negligence.

Plaintiff’s case:

According to plaintiff: she was driving in Smit Street from west to east and had stopped at the intersection of Von Wielligh Street at an ankle indicating to turn right. She was waiting for a white motor vehicle coming from the east to west on Smit Street to pass before she could turn. The robot was green when she so stopped. She had a conversation with her passengers one Jurina van der Westhuizen and Karin Estelle Pretorius. Whilst waiting to turn, she could see a white motor vehicle travelling from east to west on Smit Street before it entered the Smit Von Wielligh intersection. She heard a bang and her car span to the other side of the middle line and faced west. She did not see the insured vehicle and could not say from which direction it came from prior to the collision. At best she assumed it should have been driving from north to south on Von Wielligh Street to collide with the car she was driving from the nature of the damages from both motor vehicles. She was injured in the collision and had to get medial attention.

Robert Nelson

He is the husband of the plaintiff. He arrived there within five minutes of having been telephoned by the plaintiff. He points at a different spot as a point of impact. He assumes the point of impact about 13 hours after the accident on the basis of observing concentration of oil, glass and scratch markings on the tarmac road.

Jurina van der Westhuizen:

She testified that she was seated with plaintiff as a front passenger on 13 October 2000 at the time of the accident. They were travelling in Smit Street. She does know that the robot was green for them. There was an approaching motor vehicle from the front travelling east to west. She cannot remember anything now and she cannot tell the court what happened. She was injured in the collision. She did not see the red BMW (the insured vehicle).

Case for the defendant:

The defendant called Mr A Moonsammy who is the insured driver at the time of the collision on 13 October 2000. He testified that prior to accident he was travelling in Smit Street from east to west in the right lane. He denied having been travelling in Von Wielligh Street north to south. He was travelling at a speed of about 60-70 kph. Traffic lights in Smit Street were green for him. There were no motor vehicles travelling in front of him. He had already entered the intersection of Smit and Von Wielligh Streets when a Conquest motor vehicle turned in front of him and he collided with it. He could not avoid colliding with the Conquest. He did not see plaintiff’s vehicle stationary at point AI. He saw the plaintiff’s motor vehicle for the first time when he collided with it. He hit the plaintiff’s motor vehicle which was turning on the left hand side but more to the front. Plaintiff’s motor vehicle spun around after the collision. Visibility was clear, it was at sunset and the sun did not obscure his sight. He was injured on his ankle as a result of the collision.

Evaluation of Evidence:

(1) Marie Nelson:

The plaintiff’s particulars of claim, paragraph 4.6 allege that the insured driver had failed to stop at a red robot. On consultation with an orthopaedic surgeon Dr Van den Berg she repeats the allegations embodied in a medico-legal report dated 16 July 2003 which is attached to the pleadings. In her evidence in chief, plaintiff fails to sustain that allegation mad ein her particulars of claims. The rest of her evidence could not be corroborated by Mrs Van der Westhuizen who was seated in the front seat with her. Having not seen the insured vehicle she can hardly tell the court what happened except to say she heard a bang and has seen her car spinning, and that she had sustained injuries from the collision.

(2) Mr Robert Nelson

He does not take the plaintiff’s case any further. Except to say that his conclusion leading to the point of impact is not an expert conclusion, he was told about what had occurred prior to the collision.

(3) Mrs Jurina van der Westhuizen

She could not assist in the plaintiff’s case at all because she cannot remember what had happened.

I did not get the impression that the plaintiff and her witnesses were lying or trying to mislead the court. My impression is that the plaintiff was honest about what she could recall occurred on that day of the collision. She is not a liar too because she did not pursue her plea of the red robot because it did not accord with viva voce evidence when she could have persisted in that to the detriment of her case.

Mr Robert Nelson admitted the point of impact pointed by him was an assumption. He never claimed to be an expert when he was not. Mrs Van der Westhuizen did not want to waste the court’s time to tell it about things she does no longer remember.

Mr A Moonsammy the only witness for defendant gave uncontroverted direct evidence as to where the insured vehicle was travelling to, up to the time of the collision. He did not see the plaintiff’s motor vehicle except when he was about to collide with it and could not avoid the collision. He was a good witness. I did not gain any impression that he was lying or trying to mislead the court. He was honest in that he even testified to the facts which were not promoting the defendant’s case eg he admitted that he was travelling at the speed of 60 70 kph in a built-up area of a town.

Mutually destructive evidence:

This is a matter where the evidence is not mutually exclusive to apply the principle relative to such a matter. Vide: Negi v Jagers 1984 4 SA 437 (ECD) E-G and Nemgia v Gani 1931 AD 187.

From the evidence summarised above, it is clear that the plaintiff was negligent to some degree based on the fact that she admitted not having kept a proper look out when she was reasonable expected to do so in the circumstances. As a result it is probable that she had driven into the right of the way of the insured vehicle causing the collision in dispute.

The insured driver has also been negligent in that he did not see the plaintiff’s motor vehicle from a reasonable distance after entering the intersection when with the exercise of the care he should have been able to see and is reasonably expected to see the plaintiff’s car to avoid the collision. I am not in the slightest suggestion, of the view that a driver of one car should also be a driver of other motor vehicles by spirit, miracle, magic or by ... control on our public roads. I am ... restating the position as enunciated by our courts as to what is expected from any driver who uses a public road as I understand the law and reasonable expectations thereof.

From the totality of the evidence and the evaluation hereinabove made, I find as follows:

(1) that both the plaintiff and the insured driver were negligent;

(2) that both the plaintiff and the insured driver have by negligence contributed to the collision in question;

(3) that the plaintiff was 60% negligent and the insured driver was 40% negligent;

(4) that the plaintiff has succeeded to prove only 40% of her damages.

In the premises I make the following order:

(1) The defendant is liable for 40% of the damages suffered by the plaintiff;

(2) Judgment is granted on the bases of 40% to 60% in favour of the defendant in terms of the provisions of the Apportionment Act;

(3) The defendant is ordered to pay 40% of the plaintiff’s costs.

MAKHAFOLA

ACTING JUDGE OF THE HIGH COURT

25209/2003

Heard on:

For the Applicant/Plaintiff: Adv

Instructed by: Messrs

For the respondent/defendant: Adv

Instructed by: Messrs

Date of Judgment:

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