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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

REPUBLIC OF SOUTH AFRICA

OFFICE OF THE CHIEF JUSTICE

(GAUTENG DIVISION, PRETORIA)

 

CASE NO: 28437/2012

17/11/2015

 

In the matter between:

 

L GERBER                                                                                                                 Plaintiff

and

ROAD ACCIDENT FUND                                                                                      Defendant

 

JUDGMENT

 

MOTEPE AJ:

[1] The plaintiff sues the defendant for damages arising out of a motor vehicle accident that took place on the 13th of December 2006 between the vehicle driven by the plaintiff with registration numbers and letters KFZ386GP and that driven by the insured driver with registration numbers and letters CNZ409MP, driven by Mr C W Potgieter.

[2] The parties have settled the issue of quantum. The trial proceeded only on a limited aspect of the merits. At the beginning of the trial, the parties handed to me a document containing facts that are common cause between them and issued settled. It was handed up by agreement between the parties and admitted as exhibit "A". Mr Marx appeared for the plaintiff with the defendant represented by Mr Strydom.

[3] From exhibit "A", the following facts are common cause:

3.1. The accident occured on 13 December 2006 at about 16:35 between the plaintiff and the insured driver.

3.2. The accident occurred on a national road being the R545, Ogies/Bethal road at a turnoff to Kriel Town.

3.3. The accident occurred between a white BMW motor vehicle with registration letters and numbers […] driven by the insured driver and a red Ford Anglia with registration letters and numbers […] driven by the plaintiff.

3.4.1. The accident occurred when the insured driver turned right in front of the oncoming traffic and specifically the vehicle of the plaintiff.

3.4.2. The point of impact was in the middle of the left hand lane on the plaintiff's side of the road.

3.4. The insured driver paid an admission of guilt fine on a charge of reckless and negligent driving.

[4] The parties reached a settlement that the defendant is liable to pay to the plaintiff delictual damages in the amount of R660 000.00 subject to the Court's findings on whether the plaintiff was contributory negligent.

[5] It is not in dispute that the insured driver was negligent. He has, as stated above, already paid a fine for admission of guilt on a charge of reckless and negligent driving. The only issue raised by the defendant and on which the Court is called upon to decided is whether there should be apportionment of damages on the basis that the plaintiff failed to keep a proper look out and to avoid a collision when by the exercise of reasonable care, he could and should have done so.

[6] The plaintiff took the stand. He in essence testified that as he was approaching a T-junction on a turnoff to Kriel, the insured driver, driving from the opposite side of the road, “cut” in front of him causing the collision. The insured driver did not reduce his speed and he did not indicate that he intended turning onto oncoming traffic. He (the plaintiff) had no time to react because as soon as he saw the incurred driver cutting onto his lane, the collision occurred. It is common cause that he had the right of way.

[7] In cross-examination, various questions were put to the plaintiff. He testified that he did not know the official speed limit of the road he was travelling on. He estimated however that it could between 100km and 120km. He however always travels at between 80km to 100km per hour on that road because he drives an old car. He reiterated his evidence that the insured vehicle did not indicate nor decrease his speed before turning onto his lane.

[8] It was put to the plaintiff that it is improbable that the insured driver could take a right turn at 100km per hour and that he must have reduced his speed to be able to make the turn. The plaintiff's answer was that it could be that he did decrease the speed. It was then put to him that if he then observed the driver reducing the speed, he could have avoided the accident. It was put to him further that if the insured driver had swerved and collided with the plaintiff's vehicle then he would have seen him and could have avoided the accident. His answer was that he had no time react. When he saw him swerve, he (the insured driver) was already in front of him (the plaintiff).

[9] The plaintiff closed its case. The defendant did the same without calling any witness.

[10] In argument, Mr Marx correctly submitted in my view that no version was put to the plaintiff and that his evidence must stand. He referred me to the decisions of this Court in Jacobs v Road Accident Fund[1] and Sebokolodi v Road Accident Fund.[2] It is not necessary to fully analyse each of these cases save to state that the Jacob's matter was a Full Bench decision.

[11] From the Jacob's case and the case referred to therein, the following principles can be extracted with regard to the insured driver executing a turn to the right:

a) Because turning across the path of oncoming or following traffic is an "inherent dangerous manoeuvre", a driver who intends executing such a manoeuvre bears a stringent duty to do so after satisfying himself that it is indeed safe and then choosing the right moment or opportune moment to do so;[3]

b) A driver turning to the right must signal his intention clearly and avoid turning until an opportune moment presents itself;[4]

c) He should only turn to the right once he has satisfied himself that there is room enough between his motor vehicle and the approaching vehicles to allow him to complete the manoeuvre safely.[5]

[12] With regard to the duties of the plaintiff where the insured driver executes a turn to the right, the principles from the case law summarised in Jacobs were the following:

12.1. Drivers who see a driver signalling his intention to turn right are entitled to assume and accept that the driver will only execute his turn to the right at a safe and opportune  moment.  This  is  so because they are not obliged to guard against the unreasonable and negligent actions of a driver who signals his intention to turn to the right.[6] One expects and is entitled to expect reasonableness rather than unreasonableness,  legality rather than illegality, from other users of the road;[7]

12.2. It follows that a driver is only called upon to take precautions against reasonable foreseeable contingencies and not the reckless driving of other motorists.[8]

[13] It is apposite to note that on these authorities, even where a driver sees a driver signalling his intention to turn right, they are entitled to assume and accept that the driver will only execute his turn to the right at a safe and opportune moment and they are not obliged to guard against unreasonable and negligent actions of a driver who signals his intentions to turn to the right. In casu, the established facts are that the insured driver did not even indicate that he intends executing a turn to the right. If the driver who has noticed a driver signalling to take a right turn has no obligation to guard against the unreasonable and negligent actions of a driver who is so signalling his intention, how can a driver who was not even given a signal that the insured driver intends executing a right turn onto his path be expected to guard against the unreasonable and negligent actions of such a driver? How can it be said that he failed to keep a proper look out or that he could have avoided the accident by exercise of reasonable care? It ought to be remembered that it is not extra ordinary care or skill that is required of the plaintiff but one that is reasonable.

[14] To expect the plaintiff to have avoided the collision when the uncontroverted evidence is that there was no signalling from the insured driver is to almost expects miracles from the plaintiff.

[15] In the premises, I make the following order:

1. The defendant is ordered to pay 100% of the plaintiff's agreed or proven damages;

2. The defendant is liable to pay to the plaintiff delictual damages in the amount of R660 000.00;

3. The defendant is liable to furnish the plaintiff with statutory undertaking in terms of section 17(4)(a) of the Road Accident Fund Act[9] to compensate the claimant for loss of future accommodation in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to the claimant after the costs have been incurred and on proof thereof, arising out of the injuries sustained by him in a motor vehicle collision on 13/12/2006;

4. The defendant will pay the plaintiff's taxed or agreed party and party cost on the applicable high court scale subject to the following conditions:

a) The plaintiff shall in the event that the cost are not agreed serve a notice of taxation on the defendant's attorneys of record; and

b) The plaintiff shall allow the defendant 14 court days to make payment of the taxed or agreed cost;

The cost shall include the costs to date of this order, which costs shall further include the costs of the attorney and correspondent attorney which include necessary travelling costs and expenses, attendance at Court, costs for pre-trial conferences and formulation of the pre-trial minutes and costs of actual attendances to pre-trial conferences, costs previously reserved, if any, the reasonable costs on consulting with plaintiff to consider this offer, the costs incurred to accept this offer, and make the offer an order of court. The costs shall also further include:

4.1. The costs of all medico-legal, radiological, actuarial, addendum and joint reports obtained by the plaintiff, as well as such reports furnished to the defendant and/or to the knowledge of the defendant and/or its attorneys, as well as all reports in their possession and all reports contained in the plaintiff's bundles.

4.2. Travelling costs and expenses for plaintiff to attend all the medical legal specialist appointment.

4.3. Travelling costs and expenses for plaintiff to attend the court as a necessary witness.

4.4. The costs of holding all pre-trial conferences, as well as round table meetings between the legal representatives for both the plaintiff and the defendant, including counsel's charges in respect thereof.

4.5. The costs of preparation of 4 (FOUR) trial bundles as agreed upon in the pre-trial minutes.

4.6. The reasonable costs associated with inspections in loco, if any.

4.7. The costs of the qualifying and reservation fee of the specialists for 08/09/015 and 19/10/2015.

4.8. The cost of Mr DJ Marx, in his capacity as senior attorney with right of appearance in the high court which cost also include his day fee for 08/09/2015, 19/10/2015 and 23/10/2015.

 

_________________

JA Motepe

Acting Judge of the High Court

 

Matter heard on:

Judgment reserved on:

 

Counsel for the plaintiff: Adv DJ Marx

Attorneys for the plaintiff: PAS Attorneys

c/o Pas PAS Pretoria Attorneys

187 Parker Street

Pretoria

Ref: Mr D Raath/MS/460A

 

Counsel for the defendant: Adv K Strydom

Attorneys for the defendant: FOURIEFISMER INC

FSF Law Chambers

Cnt Brookyn Road & Brooks Street

Menlo Park

Pretoria

Ref: L Fourie/HC/MP/R23294

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