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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 REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 64815/17

E[…] F[…]                                                              PLAINTIFF

AND

ROAD ACCIDENT FUND                                       DEFENDANT

JUDGMENT: DEFAULT JUDGMENT APPLICATION

NV KHUMALO

Introduction

[1]               This is an application for default judgment in an action instituted against the Road Accident Fund, the Defendant, as the body that is, in terms of the Road Accident Fund Act, 56 Of 1996 ("the Act"), responsible for any loss suffered as a result of the negligent driving of motor vehicles, for damages for personal injuries Plaintiff sustained in a motor vehicle collision that occurred at Krugersdorp on 6 November 2015.

[2]             The Plaintiff applied in terms of Rule 33 (4) of the Uniform Rules of Court ("the Rules") for the separation of the issue of merits from that of quantum. He seeks to proceed only on the merits of his claim. The order was granted, with the issue of quantum postponed for later adjudication.

[3]               There are no attorneys on record for the Defendant, having recently withdrawn. Prior to commencement with the trial I was assured that attempts were made to contact the Defendant's office directly, specifically the Claims Handler who was identified as overseeing the litigation in this matter with no success. I proceeded on the basis that a Notice was sent to the Defendant's offices to notify them that the matter is proceeding before me at 10h00  on 12 June 2020. In addition a proper notice of withdrawal by the Defendant's erstwhile attorneys was sent to the Defendant after the notice of set down was served on the attorney notifying them of the trial date.

[4]              The collision occurred on the R104- Pelindaba Road at or near the corner of the RSll Road between Broederstorm and Hartebeespoort. The Applicant as a driver of motor vehicle with registration number BR […] collided with a motor vehicle with registration number CP […] ("the insured motor vehicle") driven by J[…] V[…] d[…] M[…] ("V[…] d[…] M[..]"), the insured driver and suffered multiple injuries.

[5]        The Plaintiff in his particulars of claim alleges that the collision was caused by the insured driver's sole negligence. All the incidents of duty of care that could possibly have been breached by the insured driver were mentioned as having possibly been the cause of the collision.

[6] In its plea the Defendant has denied liability to the Plaintiff's claim and or any negligence and put the Plaintiff to the proof thereof. The Defendant pleaded, in the alternative that it was the negligent driving of the Piaintiff that caused the collision also using the general catch all grounds. In a further alternative the defendant pleaded contributory negligence on the part of the plaintiff and requested the court to apportion plaintiffs damages in terms of the Apportionment of Damages Act, Act 34 of 1956, as amended.

[7] In terms of the minute of the special pre-trial conference supposedly held by the parties on 8 June 2020, via telephone conferencing, there was no representation for the Defendant. The evidence of the insured driver on Affidavit and as per the Accident Officer's Report was agreed by the Plaintiff to be admissible as part of the record. Both point at the negligence of the Plaintiff. The Plaintiff had proposed thereat that the Defendant should be liable for a certain percentage of the Plaintiff's proven damages.

Evidence on the collision

[8] According to the insured driver's Affidavit, when the accident happened he was turning right at an intersection which has got a fourway stop. The Plaintiff's vehicle did not stop at the stop sign and collided with his motor vehicle. Plaintiff was seriously injured, therefore could not comment after the accident.

[9] For the Plaintiff, only the Plaintiff testified. His version is that he was driving straight towards a fourway stop street, on his way to Krugersdorp coming back from Hartebeespoort. He collided with the insured motor vehicle, a white ford ranger bakkie at the intersection. The bakkie had come from the left hand side and was about to turn right. He did not stop at the stop sign and he tried to swerve but couldn't and drove into the back of the bakkie. The road is a double or two lane open road. There was a Fortuner driving behind him and a big bakkie in front of him. He therefore could not see in front of the bigbakkie. The Fortuner was flashing lights and the driver was on his phone, trying to pass. The big bakkie then turned left he could not see the stop sign and drove past it. It was daylight and perfectly clear. The surface was slippery and the road tarred. He hit the ford ranger bakkie that was already In the intersection to such an extent that it turned around 360 degree. He was trying to get around the bakkie and he hit it at the back. He had a passenger in his car who also sustained serious injuries. His knees were crushed. After the accident he was awake and knew what was going on and trying to get help for his passenger who was badly injured. He gave information about his passenger, also his age. He was taken out of the vehicle. His eyes were always on the road. Only when he was overtaking the car in front of him did he see or notice the stop sign. It was too late he could not stop and he hit the turning bakkie.

[10] According to the statement the Plaintiff made to the police, put on record by the Plaintiff, the accident occurred at 10h00 on that day he was driving from Krugersdorp towards Hartebeespoort. There was a car driving behind him flashing its light and he thought it was an emergency vehicle. There was also a big bakkie in front of him so he could not see what was in front of him. When he was approaching the R511 road he started to overtake the vehicle. He overtook and when he was coming back to the lane, he noticed a stop sign in front of him. He could not stop because it was too late. He hit a bakkie (that was in the intersection) on the right back side. Then from there he could not remember anything. After that he could not remember anything because he was unconscious and woke up after 3 days at Kalafong Hospital. The statement was made under oath on 27 February 2016.

Legal framework

The Approach

[11] Liability generally depends on the wrongfulness of the act or omission relied on by the plaintiff. Wrongfulness, in these cases is inferred from the fact that the third party negligently caused the accident; see Minister van Polisie v Ewels 1975 (3) SA 590 (A); Minister of law and Order v Kadir [1994] ZASCA 138; 1995 (1) SA 303. The statutory nature of the liability is such that the RAF insures the third party "for any loss or damage which the third party has  suffered  as a result of any bodily injury to himself ... if the injury .•. is due to the negligence or other wrongful act of ... the insured driver"; see S 17(1) of the Act. This analysis is confined to a personal claim

[12]     Thus, once negligence of the third party driver is proved, wrongfulness is generally assumed. It must then be shown that the loss suffered by the claimant is due to the negligent/wrongful act in issue.

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

 For the purpose 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,

.......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 circumstance of each case. No hard and fast basis can be laid down."

[14]       It is trite that the onus then rests on the plaintiff to prove the insured driver's negligence which allegedly caused the damages suffered on a balance of probabilities. The elements thereof being (i) duty (ii) breach (iii) causation and (iv) damages.

Analysis

[15]      In casu Mr Bisschoff on behalf of the Plaintiff had conceded that the Plaintiff was negligent and argued that though conceded Plaintiff's negligence should be attributable to only 20 to 30% of his proven damages. The Defendant should be found liable for the remaining percentage.

[16]      On the evidence of the Plaintiff the accident occurred after he overtook the motor vehicle that was in front of him which was obstructing his view. He confirms that his eyes were on the road, therefore was aware that he could not see what was in front of him, but nevertheless decided to overtake the big bakkie. He did not wait until he was sure that it was safe to overtake but overtook whilst not aware of what was happening ahead of him, also notwithstanding that the overtaking had to be done dangerously on the face of oncoming traffic as it was a two way lane road, and whilst approaching a stop sign. He obviously breached his duty of care towards other road users and to himself. He also knowingly and voluntarily assumed the risk of injury to himself.

[17]           The Plaintiff has further indicated that he could not stop at the stop sign, further endangering other users of the road. It is obvious that as he was overtaking he had accelerated. He therefore instead of decreasing speed as he was approaching an intersection, had increased it and as a result could not stop at the stop sign. Hence what made him not to be able to stop had nothing to do with the other motor vehicles. He solely put himself in that risk. The damages to his car on an impact of a stationery motor vehicle tells its own story with regard to the speed the Plaintiff was driving on. His battery fell off the car and the whole front of the car nearly came out. The other car was hit to a 360 degree spin.

[18]            On the other hand the other driver had waited at the stop sign and entered the intersection with an expectation that the Plaintiff will stop. The insured driver was already executing his turn when the Plaintiff did not stop and just drove through. The only fault that could have been attributable to the insured driver is that he should still have waited to see that the car was going stop, which argument was not raised. However the big bakkie that was in front of the Plaintiff had turned and the insured driver had already started executing his turn. It was expected of the Plaintiff to wait at the stop sign. It therefore cannot be said that the insured driver was engaged in a negligent risk creating behavior. To speak about contributory negligence on the part of the Plaintiff, both parties must have been engaged in  a negligent risk creating behavior. In this instance only the Plaintiff was, approaching the stop sign. There was no sudden movement on the insured' side.

[19]             The Plaintiff was undoubtedly grossly negligent and exposed himself and other road users to the danger. His negligence single handedly caused the accident. To try and attribute any negligence on the vehicle that was correctly turning at the intersection is ludicrous. His judgment call was exercised irrationally when he decided to overtake during an obstructed view. Plaintiff therefore should be completely barred from recovering, seeing how major or gross his fault was.

[20]  The Defendant's liability is imposed in circumstances contemplated in the Act, only to a third party, it is not, under any liability to a negligent driver who inflicts loss or damage to himself or herself. Therefore a person who is solely responsible for their own injury does not have a claim, however a person whose injuries were caused partly by his own fault and partly by the fault of another motorist is entitled to compensation;  see Smith  v RAF [2006)  ZASCA  15[2006] ZASCA 15; ; 2006 (4) SA 590 SCA.

[21]             The Plaintiff has failed to prove any negligence attributable to the insured drive, therefore no liability has been proven on the side of the Defendant. No apportionment of liability is justifiable. I therefore find that the Plaintiff was solely liable for the damages he suffered due to the injuries he sustained from the collision. The Defendant is not to be liable for any percentage of Plaintiff's proven damages.

It is therefore ordered that:

1.       That the Plaintiff's claim is dismissed with costs.

NVKHUMALO

JUDGE OF THE HIGH COURT OF SA

GAUTENG DIVISION, PRETORIA

For the Plaintiff:       Adv Bisschoff

Instructed by:            Kritzinger Attorneys

Ref: A Kritzinger/ms/KD/0769

Email: marinda.@lc1181.co.za

For the Defendant:     No appearance

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