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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT)

 

Case Number: 26781/11

Date: 13 December 2013

Not Reportable

Not of interest to other judges

 

In the matter between:

 

ALETTA JACOBA GROBLER                                                          PLAINTIFF

 

 

and

ROAD ACCIDENT FUND                                                              DEFENDANT

Coram: HUGHES J

JUDGMENT

Delivered on: 13 December 2013

Heard on: 15 October 2013

 

 

HUGHES J

1. This is a loss of support claim under section 17 of the Road Accident Fund Act No 56 of 1996 ("the Act"). The plaintiff Aietta Jacoba Grobler, a 55 year old female claims in her personal capacity and as biological and natural guardian of her minor daughter, Carmen Grobler 19 years of age.

2. The plaintiffs claim arises from the death of her husband Pieter Grobler, who was involved in a collision on 23 March 2010 on the N1 between Polokwane and Pretoria. At the time of the collision the deceased was the driver of a light duty vehicle ("LDV") with registration numbers and letters BWT 354 L ("the deceased") whilst, Amos Maluleke was the driver of a Isuzu truck with registration numbers and letters VJM 474 GP ("the Insured Driver").

3. The parties have agreed that the issues of liability and quantum will not be separated and I am tasked to make a determination on both issues. This is a loss of support claim and as such the plaintiff needs only prove 1% negligence on the part of the insured driver.

4. The plaintiff alleges in her particulars of claim that the insured driver was the sole cause of the collision in that he was negligent in one or more of the following respects:

4.1 he failed to keep a proper lookout;

4.2 he failed to keep the vehicle, which he was driving under proper control;

4.3 he drove at an excessive speed;

4.4 he failed to reduce his speed after becoming aware of the presence of the deceased's vehicle on the road; and

4.5 he failed to avoid the collision, by the exercise of due and reasonable care and skill, he could and should have done so.

5. On the other hand the insured driver alleges, in the of the defendant's plea, the Road Accident Fund ("RAF"), that the sole cause of the collision was the deceased in that he was negligent in one or more of the following respects set out below:

5.1 he failed to keep a proper lookout;

5.2 he failed to avoid the collision when by the exercise of reasonable care he could and should have done so;

5.3 he failed to have adequate or any regard for rights of other road users, more particularly that of the insured driver;

5.4 he failed to comply with the rules of the road;

5.5 he failed to keep the insured vehicle under proper observation; and

5.6 he intentionally exposed himself to danger.

6. In dealing with respect to the issue of liability, two witnesses were called, Professor Gerhard Lemmer a reconstructive expert of 40 years' experience on behalf of the plaintiff and the insured driver on behalf of the RAF.

7. I propose to set out the version of the insured driver first and then to deal with the evidence of Professor Lemmer in light of the insured driver’s evidence, the physical evidence depicted in the photographs and the statement made by the insured driver to the police immediately after the collision had taken place.

8. The insured driver's testified that he was employed as a driver of a company R & P Marketing. He had attained his driver's license in 2005. On the day in question he had made deliveries in Mokopane and was travelling back from to Jetpark in Pretoria.  

 9. He stated that he was travelling on the slow lane (left lane) of the two lanes on the N1 freeway from Polokwane to Pretoria, in the direction of Pretoria. The deceased's vehicle was travelling from Pretoria to Polokwane, about 10 to 15 meters from his vehicle; he noticed the deceased vehicle for the first time. At that stage the deceased travelling on its correct path of travel.

10. The deceased's vehicle then left its path of travel and proceeded to approach his vehicle in a curve like fashion heading for the slow lane that he was travelling in. His testimony is that about 7 to 8 meters from his vehicle, the deceased's vehicle was now in his lane, the insured driver decided to swerve into the fast lane (right lane) proceeding in the direction of Pretoria. The insured drivers evidence is that at that same time the deceased also swerved into that specific lane. All he saw was a white object in front of him and he applied dead brakes, there was a loud bang, the collision had occurred.

11. The insured driver testified that he was travelling at a speed of "75 or close to 80 km/h". He could not have been travelling over 80 km/h as the vehicle he was driving being a company truck is mechanically set not to exceed 80 km/h.

12. When asked why he moved to the right lane (fast lane) he replied as follows:

"My observation was that as this bakkie was conning, it would eventually drive past my lane and had I decided to swerve to the left I would collide with it there and then and on the other side, on the other side of my lane, that is my left hand side, there is a ditch and I saw it safe to swerve to the right because there was no traffic on that lane."

Further

"So where were you now_f when did you swerve to your right? — No that is not what I am saying, what I am saying is that I saw it for the first time at the distance that I had indicated to you and it was coming towards me, towards the slow lane and when I saw this no it is coming to the slow lane it is then when I swerved to my fast lane, the right hand side"

13. The relevant portion of the warning statement of the insured driver dealing with how the collision took place is set out below:

"On 2010-03-19 at about 12:00 I was the driver of an Isuzu truck reg. no. VJM 474 GP. I was on my way from Polokwane direction Pretoria on the N1. I was driving in the slow lane. I saw a white LDV coming from direction Pretoria. Suddenly the LDV left the road on his side and came to my side of the road. I swerved to my right to avoid a collision but then the LDV also came to my right. I collided with the LDV in the fast lane to Pretoria, which is my side of the road. After the accident my truck overturned and landed on its roof on the wrong side of the road."

 

14. The plaintiff called Professor Lemmer he testified that from all the evidence gathered by the police, together with his inspection in loco of the scene conducted during May 2013, his view was that, from the rest position of both vehicles, being on the western side of the road, this tied in with the insured drivers version that the deceased vehicle moved towards his side of the road before the collision. He referred to this movement as momentum and explained that the law of momentum was that the momentum before is equal to the momentum afterwards.

15. He confirmed that according to the photographs taken by the police immediately after the collision, the point of impact depicted is "right in the middle between the two solid lines". The rest position of the deceased vehicle was off the road on the western side of the road, whilst the rest position of the insured driver’s vehicle was straddling the fast lane, also on the western side of the road.

16. He voiced his concern in his testimony that the insured driver performed an unusual movement in trying to avoid the collision by swerving to the right. He stated that one would have expected him to move to the left away from the danger coming at him but instead he moved towards it. He further explained that there was "a beautiful verge on off road on his left" that he (insured driver) could have moved to by leaving the road on the left hand side.

17. During cross examination, on the professor's examination of the statement of the insured driver as against the point of impact depicted by the police, he stated that it would seem that "he swerved (insured driver) from the slow lane towards the centre of the road and the LDV went back towards its correct side and he said the collision takes place in, I think what they are both saying is that ...indistinct... [Point of impact] inconsistent with the point of collision located by the police being in the middle of the road."

18. The professor also explained that the Isuzu, insured vehicle, was much bigger than the deceased's vehicle and its momentum would have pushed the deceased's vehicle far back to its rest position, whilst the Isuzu moved forward to come to its final rest position.

19. In "The Law of Collisions in SA by H B Klopper 7^th Edition" at page 11 paragraph (f) the author has this to say about foreseeability and preventability in collisions:

"The test for negligence is whether a person's conduct complies with the standard of the reasonable person. In order for a person to be liable the damage resulting from the negligence must be foreseeable and preventable. If these principles are applied to a motor vehicle accident, the driver must act like a reasonable person under the prevailing circumstances, be capable of reasonably foreseeing the damage flowing from his negligent act and must also take reasonable steps to prevent damage from occurring. Failure to do so will constitute negligence."

20. In terms of Regulation 299(3) of the National Road Traffic Act 93 of 1996 ("the Act"), a driver, where the road is divided into lanes may not turn from one lane into or across another lane unless he can do so without endangering or obstructing other traffic.

21. It is undisputed that the deceased moved from his correct side of the road to his incorrect side of the road just before the collision took place. It is also undisputed that the insured driver was travelling, that is, before the collision and during the collision, on his correct side of the road. The law is clear that its res ipsa loquitur of the deceased being negligent, if the collision occurs on the deceased's incorrect side of the road.

22. The only direct evidence before me as regards how the collision occurred and where the point of impact in fact is, is that of the insured driver, who says that, the collision occurred in the fast lane on his correct side of the road. I also have a point of impact depicted by the police in the photographs that this is in the centre of the two lines in the middle of the road. However, there is no evidence before me as too how this point was established by the police. No evidence was led in this regard. Under these

circumstances the direct evidence of the insured driver that the collision took place in the fast lane on his correct side of the road, stands undisputed.

23. That being the case the following passage from Klopper (supra) at page 78 paragraph 9.4.1 is of relevance:

"(a) Collisions on the incorrect side of the road If there is irrefutable proof of a collision on the incorrect side of the road, such collision constitutes prim a facie negligence on the part of the driver who was found to be on his incorrect side of the road at the time of the collision. Once the plaintiff has established that the collision did in fact occur on his side of the road, the defendant has to explain his presence on the defendant's incorrect side of the road. If the explanation is insufficient to dispel the inference of negligence arising from his presence on the incorrect side of the road, the defendant will be held negligent"

24. In the circumstances no explanation can be attained from the deceased for being on the incorrect side of the road. The explanation of the insured driver is therefore irrefutable proof of where the collision took place and must accepted as such. Thus it is my view that the deceased was res ipsa loquitur negligent.

25. The enquiry does not end there I have to determine whether the insured driver negligent in any way. In addressing this I considered the following extract also stated in Klopper (supra) on page 21 paragraph 5

"A driver is permitted to make errors of judgment if a reasonable driver could have made the same error in the circumstances. An error of judgment may be present even when there is no suddenness or unexpectedness. A driver is also not negligent when he acts 'negligently' when threatened by a sudden and imminent danger."

26. The evidence of the plaintiff by way of the Professor is that the insured was negligent when he opted to perform an unnatural thing by swerving to the right instead of the left or moving onto the verge off the road on the insured driver left hand side.

27. The insured driver in his evidence explains why he performed the move that he did. He was under the impression that the deceased was going to continue in his path of travel in the slow lane that he was driving in, that's why he moved to the fast lane on his correct side of the road. He did not expect the deceased to swerve into the fast lane suddenly, thereby causing the collision. This to my mind amounts to an error of judgment on the part of the insured driver in a sudden situation caused by the deceased.

28. As far as the contention of the insured driver moving to the left on the verge instead of the right, his explanation is that there was a donger on the verge area and he was of the view that the Isuzu was too big and it would not have fitted on the verge and as such the Isuzu would have ended up in the donger instead. The fact that he did not move the verge also amounts to an error in judgment of the width of the verge and the close proximity of the donger to the verge.

29. It is trite that negligence may be excluded in circumstances where driver acted in an error of judgment. In light of the facts of this case and the evidence before me, I come to the conclusion that in the circumstances no negligence can be attributed to the insured driver. In the result the plaintiff has failed to prove the 1% negligence required to succeed in her claim for loss of support for herself and on behalf of her daughter, Carmen Grobler.

30. The order made is as follows:

28.1 The plaintiff's claim is dismissed with costs on a party and party scale.

 

W. Hughes Judge of the High Court

 

Delivered on: 13 December 2013 Heard on: 15 October 2013

 

Attorney for the Plaintiff:

DE MEYER ATTORNEYS.

39 Soutpansweg

PRETORIA

Tel: 012 329 9669

Ref: DE MEYER/DG0128

 

Attorney for the Defendant:

A. P. LEDWABA INC.

867 Church Street

Arcadia

Church Square

PRETORIA

Tel: 012 342 0900

Ref: MS DICHABA/MDT/RAF21166

 

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