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THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

 

CASE NUMBER: 67276/17

 

In the matter between:

 

AG GEORGE                                                                                                                Plaintiff

 

and

 

ROAD ACCIDENT FUND                                                                                          Defendant

JUDGMENT

MOGOTSI AJ

[1]        The plaintiff instituted legal proceedings against the defendant in terms of the Road Accident Fund Act of 1996 for damages suffered as a result of injuries sustained in a motor accident. The plaintiff was a pedestrian at the time of the incident.

[2]        The parties have agreed to a separation of the merits and quantum. The matter proceeds on merits with this court being tasked to make a determination on whether or not the plaintiff is a contributory wrongdoer.

[3]          It is common cause that on 27 December 2015 at approximately 11h00 the plaintiff was standing at a bus stop, the area of which is adjacent to and out of the traffic lane as depicted in a sketch plan which forms part of the papers.

[4]          The submission of the plaintiff, as contended by Advocate W Dyer, is that an unidentified insured vehicle inexplicably moved into the area of the bus stop and collided with the plaintiff. The impact occurred outside the surface area of the road.

[5]          The plaintiff did not commit any act which would have created contributory negligence and further that no apportionment of damages should be applied.

[6]        Counsel for the defendant, Advocate Westebaar, contends that the fact that the plaintiff was under the influence of intoxicating liquor indicates that he contributed to the negligence.

 

THE LAW

[7]        Liability depends on the conduct of the reasonable person. The test for negligence was stated in Kruger versus Coetzee 1966 (2) SA 428 (A) at 430 E-G as follows:

 

"For the purposes of liability culpa arises if-

(a)   a diligens paterfamilias in the position of the defendant -

(i)        would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii)       would take reasonable steps to guard against such occurrence; and

(b)   the defendant failed to take such steps.

 

This has been constantly stated by this Court for some 50 years. Requirement (a) (ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down."

 

[7]        It is trite that the onus rests on the plaintiff to proof the defendant's negligence which caused the damages suffered on a balance of probabilities. In order to avoid liability, the defendant must produce evidence to disprove the inference of negligence on his part, failing which he or she risks the possibility of been found to be liable for damages suffered by the plaintiff.

[8]        It is common cause that the defendant did not call any witness to support his contention. As mentioned supra he had a duty to establish the negligence on part of the plaintiff on balance of probabilities.

[9]        In the premises the following order is given:

1.         It is ordered that the defendant is 100% liable for damages incurred by the plaintiff.

2.         The defendant is ordered to pay costs.

 

 

 

J. MOGOTSI

ACTING JUDGE OF THE HIGH COURT

 

 

 

Representation for parties:

 

For plaintiff:                         Adv Dreyer

Instructed by:                       JOHN B SCOTT ATT

c/o VZLR INC

 

For respondent:                   Adv Westebaar

Instructed by:                      TAU PHALANE INC

 

Date of hearing:                  5 May 2020

Date of Judgment:               8 May 2020

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