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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

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, PRETORIA

 

(1)      NOT REPORTABLE

(2)      NOT OF INTEREST TO OTHER JUDGES

CASE NO: 71566/2012

18/6/2018

 

In the matter between:

 

QUENTIN CHRISTOU                                                                                           PLAINTIFF

 

And

 

ROAD ACCIDENT FUND                                                                                      DEFENDANT

JUDGMENT

MIA, AJ

[1]       The plaintiff, Mr Quentin Christou, instituted a claim for damages in the sum of R1520 000,00 against the defendant, the Road Accident Fund for damages arising out of injuries sustained in a collision with a truck on 3 October 2008 on Main Road North (M18), Olifantsfontein. Mr Christou alleges that the defendant is liable to him as he suffered damages due to bodily injuries suffered due to the negligent driving of the driver of the truck.

[2]        The issue of liability was separated from quantum in terms of Rule 33(4) of the Uniform Rules of Court. I accordingly granted an order separating merits from quantum and the issue of quantum was postponed sine die.

[3]        On or about 3 October 2008 at approximately 9h00 at Main Road North (M18), Olifantsfontein, a collision occurred between a truck with registration numbers [….] combined with two trailers with registration numbers [….] and [….] ( insured vehicle) and the plaintiff who was riding a motor cycle with registration number [….]. The insured vehicle was driven by Mr MK Kobe (insured driver).

[4]        The plaintiff's· claim was founded on a number of alternative causes of action. The gist being that the sole cause of the collision and the injuries sustained as a result of the collision was either the result of the sole negligence of the insured driver in one or more of the following respects:

3.1     he failed to keep a proper lookout;

3.2     He drove too fast in the prevailing circumstances;

3.3      He failed to avoid the accident when by the exercise of reasonable care he could and should have done so;

3.4     He turned left in front of the plaintiff at an unsafe an inopportune time.

The matter was defended and all forms of negligence were denied.

 

The Evidence

[5]       Three witnesses were called in support of the plaintiff' s claim. Mr Christou was the first witness. His evidence is summarised as follows: He went to a motorcycle gathering in Orkney, on the morning of 3 October 2008. He left from his residence at 14 Steenbok Street, Clayville East, Gauteng. He was accompanied by his friend, Mr van Staden. Their motor cycles were low on fuel and they were on their way to a fuel station to fill up. They were both travelling on Super bikes. Mr Christou was driving a Honda Superbike and was wearing a helmet. The collision occurred 3km from his home. It was a summer day and the visibility was clear.

[6]       The parties agreed to hand up the sketch provided by the owner of the insured vehicle to his insurance company for the purposes of a claim. They also handed up a number of photographs marked exhibit A and a further photograph marked exhibit B. The photographs are google photo prints of the road where the collision is alleged to have occurred. Mr Christou indicated that where the collision is indicated on the photographs, is the same road which passes his home. The photograph numbered 13 depicts the road on which the collision occurred. The point which the insured driver pointed out was earlier on the road and was double lane traffic travelling north, the direction in which both the insured river and Mr Christou were travelling. The lane to the left was marked with a left turning arrow. The lane was separated by broken lines, with a solid line at the left turn. The road narrowed to a single lane shortly after the left turn.

[7]       Mr Christou said that he was driving at a slow speed because his fuel light was on. He estimated his speed at the time of the collision to be 60 km per hour. He observed a truck ahead of them in the lane to the right. He and Mr van Staden were driving next to each other in what is described as " stacker". Mr van Staden was to his left and he was on the right some distance behind Mr van Staden. Mr Christou said that he saw the truck indicating that it was turning to the right and his experience has shown that trucks usually pulled off onto the right hand side of the road at that particular point on the road.

[8]        There was approximately more than one metre away between him and Mr van Staden who was ahead of him. The truck then turned left without indicating that it intended doing so. Mr Van Staden managed to move left passing the truck as he was travelling to the left of Mr Christou. Mr Christou moved to the left in an attempt to avoid colliding with the truck. He collided with Mr Van Staden who continued in the same direction where he further then collided with a rock further down the road. Mr Christou hit the left and front of the horse portion of the truck as it turned across his path. According to Mr Christou there was no time to brake and he tried to swerve and this is how he collided with Mr van Staden. He could not avoid colliding with the truck.

[9]       Under cross examination he explained that the point of impact was on the tar closer to the gravel. He conceded he may have also accelerated in an attempt to avoid the collision but his fuel was low. He also conceded that he failed to mention seeing the indicator of the truck in his statement. He denied the defence witness's version that the collision occurred earlier on the same road where the bell mouth occurred. He denied that the insured driver indicated to the left before he turned.

[10]     Mr Christou indicated that the horse was not visible as it was on the right side and off the road on the gravel portion. The two trailers were still on the tar portion of the road. He testified that when he passed the first trailer the horse became visible and it became apparent that it was turning left across his lane and came out at a ninety degree angle and at that point it was too late to stop. He attempted to swerve to avoid the collision. He denied that he did not see the horse when it turned left because he failed to keep a proper lookout. He explained that Mr van Staden was able to avoid the collision as he was slightly ahead of him and riding on his left hand side. He did not apply brakes as his intention was to get away. It was put to him he could possibly have stopped motor cycle. He explained that it was a possibiilty but he would have been hit by the truck and in the moment he attempted to get away from the truck rather than collide with it.

[11]      The second witness for the plaintiff was Mr van Staden, a friend of the plaintiff. He confirmed that they were on their way to a motor cycle gathering in Orkney. They were on their way to the fuel station to fill up as both their tanks were low on fuel. He rode a Repsol Honda Fire blade 1000C which is also a superbike. He remembers the gate at Tigerbrand and the collision occurred before the gate. He confirmed that he and the plaintiff regularly rode in a set formation where he rode on the left hand side and the plaintiff rode on the right hand side. He was thus closest to the buildings. The truck was in front of them on the right.

[12]      When he observed the truck he calculated that the truck was going to park on the right hand side of the road as he often saw trucks park on that side of the road. As he got closer he observed that the horse of trailer was closer to the broken white line in the middle of the road to the left. He realised then that it was not moving off to the right hand side and moved further to the left on the road to avoid a collision. He was travelling at 40 km per hour. As the plaintiff was behind him he hoped the plaintiff had made the same observation and would also mov to the left. He indicated the plaintiff was not travelling fast. The plaintiff collided with the truck and on impact he felt water from the plaintiffs radiator and the plaintiff bounced off and collided with him. He then collided with a culvert wall and his visor hit him. He continued on his bike and hit a rock further down the road.

[13]      The third witness for the plaintiff was Mr Kirby a transport broker employed at Loubser Transport. He testified that he was called on the 3 October 2008 and informed one of their trucks was involved in a collision. He was closest to the collision and went to the scene of the collision. He indicated that it took ten minutes to arrive on the scene. The vehicles were still on the scene. The motorcycle was lying near some rocks and was seriously damaged. The plaintiff was lying about a metre from the rocks. The truck was on the road where it was about to turn. He asked the driver what happened and was informed he had to make a delivery to Tigerbrand. He moved to the right hand side of the road to turn left into the gate. As the gate was narrow, this was the only way to execute the turn to ensure the truck entered the premises through the gate.

[14]      Mr Kirby testified that he asked the driver whether he saw the motorcycle and his reply was that he only saw it when it hit the bumper. He explained that the truck was situated opposite the entrance of Tigerbrand's entrance when he arrived at the scene and was not at the circle earlier on the same road. He explained further that the horse had to make a sharp turn to the left and the mirrors of the horse would be facing the trailers so the road and traffic would not be visible to the driver. This accounted for the driver not seeing the motorcycle. He maintained the point of impact was close to the Tigerbrand entrance as the security guards stationed at Tigerbrand spoke to them about the collision. The plaintiff closed its case after the third witness.

[15]      The driver of the truck Mr Kobe testified for the defendant. He was employed at Loubser Transport at the time of the collision. He drove heavy trucks and had been a driver for six years. He is still a driver at his new place of employment. He resides in Lichtenburg. He confirmed that the road on which the collision occurred was photo 13. He pointed out photo 14 as the road where the point of collision occurred. This is a point on the road some distance before the Tigerbrand entrance. He testified that on the day of the collision he was to deliver pallets to Lafarge. He stopped on the road on the left hand side to obtain directions before the traffic circle.

[16]      He ascertained that he was travelling in the correct direction and entered the road again and was now reaching the point where he was to enter into the entrance on the left hand side. He moved to the middle of the road where the arrow was still pointing straight and indicated his intention to turn left. He observed it was clear using his mirrors. He turned and the motor cycle collided into his truck and he saw the person fall in the vicinity of the tree.

 

The law

[17]      It is trite that the plaintiff bears the onus of proving negligence on the part of the insured driver on a balance of probabilities.(See Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (AD) at 576G [also reported at [1962] 2 All SA 506 (A) - Ed]; Sardi & others v Standard and General Insurance Co Ltd 1977 (3) SA 776 (A) at ?BOC - H [also reported at [1977] 4 All SA 233 (A) - Ed] and Madyosi & another v SA Eagle Insurance Co Ltd [1990] ZASCA 65; 1990 (3) SA 442 (E) at 4440 - F [also reported at [1990] 2 All SA 408 (A) - Ed]. The court in deciding whether the plaintiff has succeeded in discharging this onus, has to consider all the evidence led during the trial in toto.

[18]     In considering the plaintiff's version compared to that of Mr Kobe's version it is evident that there are two mutually destructive with regard to:

18.1    the point of impact;

18.2    whether or not the insured driver indicated before he executed the turn to alert other road users regarding his intention to execute a left turn. and

18.3    whether or not the insured driver kept a proper lookout and could have avoided a collision.

 

[19]     The correct approach to be adopted when dealing with mutually destructive versions was succinctly set out in the case of National Employers General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440E - G [also reported at [1984) 4 All SA 622 (E) - Ed], where Eksteen AJP said:

". . . Where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false."

 

[20]     In the case of Stellenbosch Farmers Winery Group Ltd & another v Martell Et Cie & others 2003 (1) SA 11 (SCA) at 141 - 15E [also reported at [2002] JOL 10175 (SCA) - Ed], the Supreme Court of Appeal, approved this approach saying:

"The technique generally employed by Courts in resolving factual disputes of this nature may be conveniently summarised as follows. To come to a conclusion on the disputed issues the Court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. . . . As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. . ."

 

[21]      When there are mutually destructive versions before the court, the principle is established, that the plaintiffs onus of proof can only be discharged if s/he establishes his/her case on a preponderance of probabilities. The principle is also established that the requirement that a court has to be satisfied that the plaintiffs version is true and that of the defendant false in order for the plaintiff to succeed in discharging his/her onus of proof, is only applicable in cases where there are no probabilities one way or the other. See African Eagle Life Assurance Co Ltd v Gainer 1980 (2) SA 324 (W) [also reported at [1980] 1 All SA 122 (W) - Ed].

[22]     Mr van Jaarsveld appearing for the plaintiff submitted that in determining the issues of negligence and contributory negligence I should consider that no questions pertaining to contributory negligence were put to the plaintiff witnesses. He submitted that the point of impact according to the plaintiff and the defendant was not the same point. On the plaintiff’s version, Mr van Staden was more reliable as a witness only because he was not as seriously injured as Mr Christou. When considering their combined evidence however the plaintiffs version was not farfetched and not a version that could be rejected out of hand. They observed the truck and thought it was pulling over to the right hand side of the road. The horse was not visible in view of the length of the truck and trailer. The sudden change in direction of the vehicle from right to left caused the collision. This must be compared to Mr Kobe's explanation that he did not see the motor cycles which has a bearing on the insured driver keeping a proper look out. He submitted that on this basis there could be no criticism against the plaintiffs version.

[23]     The third witness for the plaintiff was an employee of the company which employed the insured driver and had no interest in the matter. He confirmed the point of impact after arriving on the scene fifteen minutes after the collision occurred. His evidence was based on his discussion with the insured driver. The insured driver was unable to explain why this witness would give such testimony which contrasted so starkly with the evidence he later gave. He submitted that the insured river was a poor witness as he posed questions instead of answering them and thereby avoided questions. He also refused to make basic concessions. He submitted therefore that the plaintiffs version should be accepted and the defendant's version rejected. The insured driver's evidence was not of any assistance to the court.

[24]      He anticipated the submission by the defence that the plaintiff ought to have done something to avoid the collision. In this regard he referred to Ntsala & others v Mutual & Federal Insurance Company Ltd 1996 (2) SA 184 (T) where Els J stated the following at 192F-H:

'Where a driver of a vehicle suddenly finds himself in a situation of imminent danger, not of his own doing, and reacts thereto and possibly takes the wrong option, it cannot be said that he is negligent unless it can be shown that no reasonable man would so have acted. It must be remembered that with a sudden confrontation of danger a driver only has a split second or a second to consider the pros and cons before he acts and surely cannot be blamed for exercising the option which resulted in a collision."

He submitted that the sudden emergency the plaintiff found himself in was not of his own doing and he was limited in the evasive action he could take given he only saw the horse at the last minute. He was not able to stop. He tried to swerve but being on the right hand side toward the middle of the road whilst Mr van Staden was travelling on the left hand side and toward the outer side of the road, his evasive action amounted to him increasing speed and led to him colliding with Mr van Staden and hitting the left hand side of the truck as there was no other place to go. Mr van Staden was on his left and the truck was on his right. In view hereof he submitted the plaintiff was entitled to one hundred percent of the damages and costs.

 

[25]      Mr Rabana appearing for the defendant submitted that the defendant's evidence be accepted with regard to the point of impact. This point was after the solid line earlier on the same road and not outside of Tigerbrand as testified by the plaintiff's witnesses. He submitted further that the plaintiff was unreliable in his evidence regarding the evidence whether he observed the truck indicating or not. If the plaintiff saw the truck indicator on and proceeded this would not be responsible. This version was different to if he saw the truck move to the right hand side of the road whilst he was travelling at 40 km per hour and it was ahead of him. He would have been able to pass easily if he increased his speed to 45 or 55 km per hour as he testified he did. He also submitted that that the plaintiff conceded that he had the option of stopping. An option he did not pursue.

[26]     He submitted further that the sketch drawn by the insured driver did not match that of the plaintiff or that provided by the employer of the insured driver or the police report. He urged this court to consider the plaintiff's duty when overtaking as described in Coopers 2^nd Edition at p 165. A driver must overtake on the right hand side unless while travelling in an urban area and it is safe to overtake on the left where another vehicle is turning right or she/ he is driving on a multi­ lane road or dual carriageway. Regulation 298 of the National Road Traffic Act 1996 provides:

 

"Reg 298: "Subject to the provisions of subsections (2) and (4) and subregulation 296, the driver of a vehicle intending to pass any other vehicle proceeding in the same direction on a public road shall pass to the right thereof at a safe distance and shall not again drive on the left side of the roadway until safely clear of the vehicle so passed: Provided that, in the circumstances as aforesaid, passing on the left of such vehicle shall be permissible if the person driving the passing vehicle can do so with safety to himself and other traffic or property which is or may be on such road and

(a)        the vehicle being passed is turning to its right or the driver thereof has signalled his or her intention of turning to his or her right;

(b)        such road is a public road in an urban area and-

(i)        is restricted to vehicles moving in one direction; and

(ii)       the roadway is of sufficient width for two or more lines of moving vehicles;

(c)        such road is a public road in an urban area and the roadway is of sufficient width for two or more lines of moving vehicles moving in each direciton;

(d)        the roadway of such road is restricted to vehicles moving in one direction and is divided into traffic lanes by appropriate road traffic signs; or

(e)         he or she is driving in compilance with the directions of a traffic officer or is driving in traffic which is under the general direction of such officer, and in accordance with such direction:

Provided further that in no event shall any passing referred to in paragraph (a), (b), (c) or (d) be done by driving on the shoulders of the roadway or on the verge of the public road concerned." .

 

[27]     In view of the above Mr Rabana submitted that the plaintiff bore part of the responsibility for the collision occurring. The insured driver looked into his mirror and did not see the plaintfif. In this regard he conceded this was the driver's negligence. However he submitted the plaintiff overtook when he could have stopped to avoid the collision and in this regard he was negligent. He therefore submitted that the negligence should be apportioned fifty percent to the plaintiff and fifty percent to the insured driver.

 

Assessment of evidence

[28]      In considering the evidence I found the plaintiff to be a fairly credible witness. He was unclear regarding the indicator of the truck and made that concession with regard to his lack of clarity. He was even willing to concede that it was an option to stop even though this is long after the fact and it does not reflect his response at the scene and his view at the time of the collision. The plaintiff testified that he formed the view that the truck was turning off to the right hand side of the road and he thus was attempting to overtake the insured driver's motor vehicle on the left hand side. He could not see the horse in view of the length of the trailers. He was travelling on the right hand side whilst Mr van Staden travelled on the left hand side slightly ahead when the his motor cycle collided with the horse of the truck.

[29]      The plaintiffs evidence in this regard is corroborated by Mr van Staden, who testified that the plaintiff was behind him, they were travelling at a distance of approximately 40-45 km per hour and that at about the same time, the insured driver started turning to the right he moved further to the left on the multiple carriage lane and passed the horse. He hoped the plaintiff would see that the trailer suddenly changed direction from turning right to turning left and would manage to move to the left as well and pass the horse. Mr van Staden's evidence was that the plaintiff did not manage this as he collided with him (Mr van Staden) when he picked up speed causing Mr van Staden to collide with a rock further down the road. The point of impact was confirmed by all three of the plaintiffs witnesses as well as the police accident report. Mr Kirby who had no interest in the matter and arrived on the scene fifteen minutes after the collision confirmed where he observed the vehicles. This position is not anywhere close to the position identified by the insured driver but corroborates the position identified by the plaintiff.

[30]      The version advanced by the plaintiff and his witnesses are not only probable but also accord with common sense and logic. The plaintiffs testimony that the truck appeared to be moving to the right hand side of the road according to the insured driver's version that he turned right into the lane of oncoming traffic to execute a turn. This was a multiple- lane carriage and the plaintiff would be entitled to overtake on the left in terms of Regulation 298 of the National Road Traffic Act 1996.The plaintiff and Mr van Staden had often seen vehicles pull off onto the right hand side of the road and thought the same on this occasion.

[31]      The insured driver whilst turning left was required to comply with regulation 302 of National Road Traffic Act 1996, which provides

"Reg 302: "(1) The driver of a vehicle on a public road who desires to turn to the left shall, having due regard to the provisions of section 94 , before reaching the point at which he intends to turn, indicate, in the prescribed manner, his intention to turn and shall steer his vehicle as near to the left side of the roadway on which he is travelling as circumstances may permit and shall make such turn with due care and merge into such traffic stream as may at the time be proceeding along, towards or into the public road into which he desires to turn."

The insured driver was not in the lane closest to the road into which he intended to turn. Mr Rabana also conceded and Mr Kirby confirmed that in view of the length of the truck it was not possible to see the traffic behind when the horse was turned at a ninety degree angle. This however creates a dangerous situation if the insured driver proceeds to make the turn when he does not have sight of traffic in the lane next to him or behind him as he is creating an obstruction and can endanger traffic as occurred in the present matter.

 

[32]     In the light of what I have stated, I find that plaintiffs version is, on the probabilities, true and that the version of the defendant falls to be rejected. The court accepts the plaintiff's version that:

32.1     both vehicles were travelling in the same direction;

32.2    the plaintiff attempted to overtake the insured vehicle that was travelling in front; and

32.3   that the insured vehicle suddenly turned to its left and collided with the plaintiff's motorcycle.

 

[33]     On the facts, the court finds that the insured driver was negligent in that he failed to exercise his duty towards other motorists when executing a left turn, in that he failed to keep his vehicle as far as possible to the left in the lane he was travelling, at the time when the plaintiff was overtaking the insured vehicle. He also acted negligently when he executed a turn to the left when he was not able to observe other traffic users in his mirror. The defendant has submitted that the plaintiff was contributory negligent. On the evidence, I am satisfied that the plaintiff and Mr van Staden were entitled to assume that the insured driver driving ahead to their right on a multiple lane road would continue on its course. Both plaintiff's witnesses testified they observed the truck moving over to the right lane. This accords with the testimony of the insured driver. In terms of Regulation 302 if the insured driver intended turning left he was required to steer his vehicle to the left side of the road. He did not do so.

[34]      In my view the insured drive acted negligently as he acted in a manner in which a reasonable person in his position would not have acted. Furthermore, his negligence was the sole cause of the collision.

[35]     I am satisfied that the plaintiff has successfully discharged the required onus on a balance of probabilities and has shown that the insured driver drove the insured vehicle in a negligent manner. It has not been shown that any negligence can be attributed to the plaintiff. The defendant is accordingly liable to compensate the plaintiff fully for all his damages suffered as a result of personal injuries he sustained in the collision that occurred on 3 October 2008.

[36]      I accordingly make the following order:

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

2.        The defendant is ordered to pay the plaintiffs costs.

3.        The determination of quantum is postponed sine die.

 

 

S C MIA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Appearances:

 

On behalf of the plaintiff                           :           Adv C van Jaarsveld

Instructed by                                              :           Rob Laubscher Attorneys

 

On behalf of the Defendants                     :           Adv Rabana

Instructed by                                             :           Maponya Incorporated

 

Date of hearing                                         :           7 March 2018

Date of judgment                                      :           18 May 2018

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