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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 21255/2016

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

RIAAN NAUDE                                                                                      Plaintiff

And

THE ROAD ACCIDENT FUND                                                               Defendant

JUDGMENT

MODISA AJ:

[1]     The Plaintiff instituted an action for damages pursuant to a motor vehicle collision which occurred on 30th May 2015 at around 11h30 at Lynnwood between a motor vehicle with registration letters and numbers DD22XKGP there and then driven by one G.J Leuner ( hereinafter referred to as the " insureddriver" ) and the motor cycle with registration letters and numbers CH19LPGP there and then driven by the Plaintiff.

[2]     At the commencement of the proceedings a copy of the minutes of the pre-trial conference which was held on 20th August 2018 was handed up by agreement between the parties;

[3]     It is common cause between the parties that the collision occurred on 30 May 2015 at 11.h30 along Lynwood Road near Dyer Road[1];

[4]      The parties have agreed to separate the issues of loss of earnings and past medical expenses from all the other issues in terms of Rule 33 (4) of the Uniform Rules of Court and that same be postponed sine die ;

[5]       Furthermore, the parties informed the Court that the issue of general damages has been settled at an amount of R 400 000.00 ( Four Hundred Thousand Rand);

[6]        The issue which had to be adjudicated by the trial Court is that of liability;

[7]       The Plaintiff, Mr Riaan Naude testified as the only witness in these proceedings;

[8]        His evidence was to the effect that on 30 May 2015 at about 11h30 along Lynnwood he was driving on his motorcycle with his daughter at the back from Menyln side to the westerly direction;

[9]       He drove past Duxbury Road proceeding to an intersection at Dyer Road;

[10]        There was a stationary LDV motor vehicle ("bakkie"} at the traffic lights awaiting to turn right;

[11]       According to the Plaintiff Lynwood Road consists of three lanes of travelling the first two lanes enables traffic to proceed straight and the third lane on the right hand side only allows traffic to turn right along Dyer Road. He was travelling in the middle lane. The Plaintiff also drew a sketch plan whilst testifying in Court[2];

[12]       The parties also agreed that the aerial photograph depicting the scene of the collision be used and it was handed up as exhibit C;

[13]      The Plaintiff made certain marks on exhibit C depicting the motorcycle, the LDV motor vehicle and the BMW Sedan motor vehicle which was driven by the insured driver;

[14]      Prior to the collision the traffic lights were still red and the LDV motor vehicle flickered its light indicator which showed that the driver intended to turn right at the intersection of Dyer Road;

[15]     Immediately after the traffic lights turned green and whilst the Plaintiff was proceedings straight at a speed of between 50 and 60 km/h the BMW Sedan motor vehicle driven by the insured driver entered into the intersection and the Plaintiff bumped onto its right wheel and he then flew from the motor cycle and he sustain injuries. Prior to the collision the LDV motor vehicle which was next to him on the right hand side was still stationary waiting for other traffic to pass because it had.to turn right;

[16]       According to the Plaintiff's version the issued driver was executing a turn at the southerly direction and even though he saw the BMW it was too late;

[17]         Furthermore, the LDV motor vehicle created an obstruction by virtue of the fact that its height was higher than an ordinary sedan motor vehicle specifically that particular BMW motor vehicle. His evidence was also to the effect that visibility was good and the rest of the traffic was behind him when he approached Dyer Road;

[18]       The Plaintiff was referred to the OAR[3];

[19]       The Plaintiff also read his statement[4] which he made after the collision;

[20]       I must interpose to indicate that the evidence of the Plaintiff is consistent with the contents of the OAR having regard to the remarks which were made by the officer who compiled the Officer's Accident Report and numerous inscriptions contained therein[5];

[21]      Under cross examination it was put to him that a reasonable man would have reduced his speed if he had realised that there is an obstruction and then he answered that he was not driving at a higher speed;

[22]      He also explained that there was an expectation that there would be no vehicle which might execute a U-turn as the insured driver did;

[23]       Nothing turned on the cross examination of the Plaintiff moreso that Counsel for the Defendant would not have been able to put a version to the Plaintiff;

[24]       In my view, the Plaintiff was a credible witness and his evidence is cogent as well as its consistency with exhibit C and the Officer's Accident Report

[25]        There is no shred of evidence which begins to suggest that the Plaintiff was travelling at a high speed and was therefore negligent;

[26] The Court is in no position to attribute any negligence on the part of the Plaintiff particularly in the absence of any evidence of the insured driver or any other evidence which the Defendant failed to tender to apportion blameworthiness;

The Court in Galant v Dickinson[6] remarked as follows:

" It was condended on behalf of the defendant that assuming that he was negligent his negligence may only have consisted in a failure to see the plaintiff in time and that on this view the plaintiff would have failed to show that the defendant's negligence, any more than that of the plaintiff, was the real cause of the accident or, to use the language generally employed in our decisions, that the defendant had the last opportunity of avoiding the accident. It is unnecessary for the purposes of this case to refer further to the disparagement of this approach to problems of contributory negligence, which was referred to in Moore v Minister of Posts and Telegraphs (1949 (1) SALR 815 (AD)) and Evans v African Guarantee and Indemnity Company (1950 (1) SALR 754 (WLD)) and which has been further expounded in a recent article by LORDWRIGHT in 13 Modem Law Review p. 2. For whatever language is used in approaching the question of liability in this case and assuming that the plaintiff was negligent as well as the defendant, it is substantially more probable than not, on the evidence recorded and in the absence of contradiction or explanation by the defendant, that it was he who, by his negligent driving, caused or was responsible for the collision"

[28]            Counsel for the Plaintiff also referred me to the unreported judgment of the matter of Johaan Daniel Botes v Road Accident Fund[7]. The learned Judge's reliance on the principles which was confirmed by Msimeki J in the matter of Jacobs v The Road Accident Fund ( A 402 /2008 ) (2011) ZAGPPHC121 (13 June 2011) on paragraph 25.4 are instructive. The said principle is as follows:

driver is entitled to assume that those who are travelling in the opposite direction will continue in their course and that they will not suddenly and inopportunely tum across the line of traffic. This assumption may continue until it is shown that there is a clear intention to the contrary. (See Van Staden v Stocks, 1936 AD 18)"

[29]      The Defendant also carried the onus of proof in so far as the aspect of contributory negligence is concerned[8];

[30]       There is nothing to gainsay the version of the Plaintiff before Court to warrant any contributory negligence from his party as suggested by the Defendant's Counsel;

[31]       The suggestion by Counsel for the Defendant to the effect that the Plaintiff should have travelled at a lesser speed than that which he was travelling at or that he should have stopped defies logic having regard to the repetitive an wer by the Plaintiff when he indicated that 'it was too late';

[32]      ] I agree with Counsel for the Plaintiff that the principle of res ipsa liquitur[9] are indicative of the uncontroverted version of the Plaintiff which must stand; In the circumstances the following order is made:

1.     The Defendant is liable to pay 100% of the Plaintiffs proven or agreed damages;

2.     The Defendant is to pay the Plaintiffs attorneys a sum of R 400 000.00 (Four Hundred Thousand Rand) in respect of general damages, payment of the said amount should be effected into the Plaintiffs attorney's trust account details which are as follows: Account holder VZLR Inc

Branch :    Business Bank Hilcrest, Pretoria Branch code :          632005

Account Type : Trust Account Account No. :      [3…]

3.       The aspect of quantum pertaining to loss of earnings and past medical expenses is separated from all the other issues in terms of Rule 33 ( 4) of the Uniform Rules of Court and are hereby postponed sine die.;

4.      In the event of default of payment mentioned in 1.1 hereinabove, interest shall accrue on such outstanding amount at 10% ( at the mora rate of 3.5 % above the repo rate on the date of this order, as per the Prescribed Rate of Interest Act 55 of 1975 , as amended ) per annum calculated from due date as per the Road Accident Fund Act until date of payment.

5.        The Defendant shall furnish the Plaintiff with an undertaking , in terms of section 17 (4)(a) of Act 56 of 1996, in respect of future accommodation of the Plaintiff in a hospital or nursing home or treatment of or the rendering of a service or supplying of goods of a medical and non-medical nature to the Plaintiff ( and after the costs have been incurred and upon submission of proof thereof ) arising out of the injuries sustained in the collision which occurred on 30 May 2015;

6.       If the Defendant fails to furnish the undertaking mentioned in paragraph 5 hereinabove to the plaintiff within 30 ( thirty ) days of this order, the Defendant shall be held liable for the payment of the taxable party and party additional costs incurred to obtain the undertaking;

7.       The Defendant is ordered to pay the Plaintiff's taxed or agreed party and party costs , in the above mentioned account . which costs shall include , but not limited to the following:

7.1     All reservation fees ( if any);

7.2     The fees of Senior Junior Counsel;

7.3      The costs of obtaining all expect medico legal reports, actuarial reports, and any other report of any expert nature which were furnished to the Defendant and/or it's experts;

7.4      The reasonable taxable qualifying, preparation• reservation and attendance fees of all experts, including the costs of consultation fees with the legal teams , if any ;

7.5      The reasonable travelling and accommodation costs , if any. incurred in transporting the Plaintiff to all medico legal appointments ;

7.6       The above-mentioned payments with regards to costs shall be subject to the following conditions:

7.6.1      The Plaintiff shall, in the event that costs are not agreed, serve the notice of taxation on the Defendant's attorneys of record; and

7.6.2      The Plaintiff shall allow the Defendant 14 ( fourteen) calendar days to make payment of the taxed costs

7.7        In the event of default on the above payment interest shall accrue on such outstanding amount at the mora rate of 3.5 % above the repo rate on the date of taxation/settlement of the bill of cost , as per the prescirbed rate of the Interest Act, 55 of 1975, as amended , per annum, calculated from due date until the date of payment;

8 There exist no contingency fee agreement between the Plaintiff and his attorneys.

MODISA AJ

HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE OF HEARING:                    23 AUGUST 2018

DATE OF JUDGMENT:                                                            

PLAINTIFF COUNSEL:                ADV LA PRETORIUS

PLAINTIFF'S ATIORNEY:             MR R COETZER-VZLR INC

SECOND DEFENDANT :              ADV S MANAKANA

DEFENDANT'S ATTORNEYS :     MR JOHN MNISI - MATHIPANE

TSEBANE ATTORNEYS

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