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IN THE NORTH WEST HIGH COURT

MAHIKENG

RAF 227/2016

In the matter between:

RICKUS CORDIER                                                                    Plaintiff

and

THE ROAD ACCIDENT FUND                                             1^st Defendant

MEMBER OF THE EXECUTIVE COUNCIL FOR

HEALTH NORTH WEST PROVINCE                                  2^nd Defendant   

CIVIL MATTER

KGOELE J

DATE OF HEARING                     :        19,20,21 & 22 NOVEMBER 2018

DATE OF JUDGMENT                  :       13 DECEMBER 2018

FOR THE PLAINTIFF           :                 Adv. H B Marais

With Him Adv. C A du Plessis

FOR THE DEFENDANT    :           Adv. L M S Mello

With Him Adv. M Baloi

JUDGMENT

[1]        The action concerns a delictual claim by the plaintiff, a 27 year old man, against the first defendant (The Fund) and the second defendant (The MEC for Health).

[2]        The plaintiff’s claim against the Fund arises from the damages he allegedly suffered as a result of the injuries sustained in a motor-vehicle collision which occurred on 29 November 2013 at approximately 17h00 along the Old Pretoria Road, North West Province.   Although the plaintiff claims that the proximate cause of his injuries was this collision, he further claims that the medical staff of the second defendant breached the legal duty they had against him, by negligently failing to diagnose and/or render proper treatment to the injuries so sustained.

[3]        The merits and quantum of this matter were previously separated by an Order of Court.  The matter served before this Court on trial for merits only.  The merits of the claim against the second defendant was settled between the parties at the onset of the trial, hence the judgment relates to the issue of merits against the first defendant only.

[4]        At the beginning of the trial Counsel representing both parties agreed that the following facts were common cause:-

·         That the collision took place on the Old Pretoria Road at approximately 17h00 between a motorcycle driven by the plaintiff and the insured vehicle driven by one T R Muzvondiwa;

·         That the insured vehicle was stationary in the emergency lane, and had been stationary in said lane for a while when the collision took place;

·         That there was no reflective triangle placed behind the insured vehicle to alert other motorists, such as the plaintiff, of the presence of the insured vehicle in the emergency lane;

·         That the plaintiff’s motorcycle collided with the insured motor vehicle at the rear side while it had parked in the emergency lane.

[5]        In his particulars of claim the plaintiff initially averred that the insured driver was the sole cause of the collision.  This approach however changed before the trial commenced because of the common cause agreement reached between the parties which I have already dealt with above.  Therefore, the onus which the plaintiff bore in order to succeed with his claim against the first respondent to the effect that the driver of the insured vehicle was negligent was satisfied when the parties reached this agreement.  This is so because it is trite law that the plaintiff is required to prove only some negligence on the part of the insured driver for him to succeed.  What remains for consideration is the contention raised by the Fund that the plaintiff’s conduct on the date of the collision also contributed to the occurrence of the collision and that accordingly, there should be an apportionment of damages to be made by this Court.

[6]        The contention for an apportionment of damages attracts an onus on the Fund to prove fault on the part of the plaintiff.  In addition to the plaintiff himself, three witnesses were called to give viva voce evidence on the plaintiff’s behalf in respect of the issues in dispute.   No witnesses were called to testify on behalf of the Fund.  From the evidence that was led in this Court it is quite clear that the only issues in dispute between the parties were whether:-

6.1       it was raining at the time of the collision, and

6.2       the hazard and lights of the insured vehicle were on at the time of the collision.

[7]        Counsel representing the Fund, Advocate Mello, applied for absolution from the instance after the plaintiff closed his case which application was dismissed as the Court was of the view that the there was a prima facie case established against the first defendant from the common cause facts.  The reasons for the refusal to grant absolution at that stage are encapsulated in this judgment.

[8]        The first defendant did not call any witnesses after the application for absolution was dismissed and closed its case.

[9]        The summary of the evidence relevant to the determination of the issues before Court is as follows:-         The plaintiff testified that when he left the farm of Mr Kobus Latsky, which is approximately 900 metres from the Old Pretoria Road, the rain started drizzling. Upon reaching the Old Pretoria Road and turning left into it, it started raining harder with small hail.

[10]      He further indicated that he opted to drive his motorcycle in the emergency lane.  His reasons were that there is an uphill from the direction he was coming from after joining the intersection, and because it was raining hard at that time, he thought the vehicles coming behind him will not be able to see him and his motorcycle if he drives on the main road.  He does not remember what happened immediately after joining the road and at the time he was travelling on that emergency lane, as he only recovered himself being at the hospital.

[11]      Ms Nicolene Latsky testified that she had travelled on the Old Pretoria Road earlier on during the afternoon of the day of the accident in order to take a worker to Rustenburg.  When she left the property adjacent to the plaintiff’s place of employment (Mr Kobus Latsky’s farm) it was approximately 16h30 and she was travelling to Rustenburg.

[12]      She testified that when she turned into the Old Pretoria Road, shortly after 16h30 on the day of the accident, it started drizzling (she called it ‘dripping’).  When she entered the Old Pretoria road she travelled in the emergency lane and noticed that the insured vehicle was in front of her in the emergency lane.  At the time she noticed the insured vehicle she could not determine whether it was stationary or moving.   She only saw that it was stationary in the emergency lane when she was close to it and had to swerve to her right to avoid colliding with it.  According to her, the insured vehicle’s hazards and lights were not switched on when she passed it.

 [13]     Mr Paul Cordier (the plaintiff’s father) testified that he passed the insured vehicle at approximately 15h10 on the day of the collision where it had already been stationary at the scene where the accident occurred on the Old Pretoria Road.  When he passed the insured vehicle, its hazard and lights were not switched on.  He was later informed about the accident when he was already home and upon attending the scene of the accident, he found that the insured vehicle’s hazard and light were still not on.

[14]      Mr Ruan Latsky testified that there was a cloud burst around the time he was to pass the intersection (that is the road from Mr Kobus Latsky’s farm where it joined the old Pretoria road)  which is not far from where the collision took place.  According to him, visibility was poor and it was quite difficult to see far out due to it raining shortly before he arrived at the scene where the incident took place, necessitating him to switch on the headlights of his vehicle.

[15]      Although he was not present when the collision took place, he testified that he arrived shortly after the collision.  He estimated it to be about half a minute or a minute after it happened solely because one Rogers whom he found at the scene, told him that the collision had just occurred before he, Ruan, arrived, upon enquiring from him as to when the accident occurred.  When he arrived at the scene the hazard and lights of the insured vehicle were not switched on.  He stopped upon realising that the plaintiff was lying on the ground.  He decided to go home to collect his umbrella when he realised that the rain was not stopping to help cover the plaintiff.

[16]      When he came back they waited for the ambulance for some time.  He had to also wait for the rain to stop to take photos with his cell phone.  Before taking the photos, he realised that the lights of the insured vehicle were still not on.  He had to switch them on to warn the oncoming vehicles.  It is at that time that he realised that the lights and hazards of the insured vehicle were not in good condition as they were faded, looked dirty inside, and the front ones were not working.  He nevertheless switched on those that were working.  He also testified that he took some photos when the lights were on and when they were off.  The photographs he took are the ones in the photo bundle marked as photos numbers 2,3,4,5,6,7,8,11,12,15 and 16.

[17]      All the witnesses called on behalf of the plaintiff gave evidence throughout the course of the trial in a coherent, candid and consistent manner.  They were not shaken during cross-examination.  Although their evidence as far as the weather condition around the time when the collision took place were not the same, this is not a sign of contradictions as the first defendant’s Counsel argued.  It is clear from their evidence that they did not pass the scene of accident at the same time.  What came out clear from their evidence taken as a whole is that there was a cloud burst first, which is connected to drizzling as described by others and, shortly thereafter, the rain started and increased its velocity.  It is also quite clear that all of them work and live nearby where the accident took place.  Depending on the time they left from their respective work place and the time they each passed there, the manner in which it was raining at the time will obviously differ.  As far as Mr Cordier Senior is concerned, he is out of the equation because he passed there long before it rained and the accident occurred.  I come to the conclusion that Ruan corroborated the evidence of the plaintiff that it was raining hard when the collision took place.

[18]      In as far as the lights are concerned, they corroborated each other that the lights including the hazards of the insured driver were not on when they passed or saw it standing on the emergency lane.  They did not contradict themselves at all on this issue.  Although their observation of the pictures Ruan took were not the same when they were shown to them in Court in order to comment as to whether the lights depicted there were on or not, it cannot be said that they contradicted each other.  Advocate Mello on behalf of the Fund ultimately agreed that the pictures depends on one’s own observation, and he was at pains to concede that this is not a contradiction per se.

[19]      Advocate Mello criticized the evidence of Ruan in that he did not include in his written statement that he at one stage got into the insured vehicle and switched on the lights and hazards of the insured vehicle.  In my view, this omission on its own cannot taint his credibility, when the crucial part of his evidence which was to the effect that immediately before and after the accident the lights of the insured vehicle were not on was corroborated by other two witnesses.  The same applies to the criticism that he just went into the insured vehicle and switched on the lights without the permission of the driver or owner of the insured vehicle.

[20]      Of particular importance is that the defendant did not present any evidence to gainsay the version presented by the plaintiff, which version accords with the case pleaded in the plaintiff’s particulars of claim.

[21]      Advocate Mello also criticized the plaintiff because he testified that he does not know how the accident took place.  According to Advocate Mello, this means that the plaintiff did not place any evidence before Court showing how the conduct of the insured driver caused the accident and therefore failed to prove that the conduct of the insured driver caused the accident in one way of the other.  This argument flies against the fact that there were common cause facts which had been agreed upon by the parties at the commencement of the trial which have been alluded to above.  Secondly, and with the risk of repetition, there is independent evidence of the witnesses who testified on behalf of the plaintiff as to what was the condition of the insured vehicle’s lights were around the time the accident happened and after, which evidence had not been disputed by the first defendant.  Reliance on the pictures by the first defendant’s Counsel cannot salvage the case for the defendant firstly because it was difficult to discern from them with a naked eye whether the lights were on or not.  Secondly, Ruan indicated that at the time he took the photos, he had switched them on.  This called for an answer from the defendant which they failed to do.  Above all, the evidence they testified about is furthermore contained in the affidavits they made shortly after the incident.  The first defendant could not point any inconsistency thereof besides the one mentioned above.

[22]      I have no doubt but to find that they were credible witnesses, and further that their evidence can be relied upon.

[23]      From the evidence before this Court, I am able to find that at the time the collision took place, the rain was heavy and the lights and the hazards of the insured motor-vehicle were not on.

[24]      This finding brings me to consider the apportionment of the blame which is the gravamen of the issues before this Court.  Both parties were in agreement that the facts of this case clearly indicates that the first defendant is to be held liable to the plaintiff for the damages he had suffered.  They were also in agreement that there is also contributory negligence on the part of the plaintiff as well.  The only question which remained for consideration from the evidence above is the apportionment of the blame of the two drivers which is hotly contested.

[25]      The only authority which the plaintiff’s Counsel relied heavily on in advancing the plaintiff’s case regarding a collision that occurred in an emergency lane is the matter of Maseng v Road Accident Fund (44331/2013) [2015] ZAGPJHC 40 (5 March 2015) wherein the case of the Road Accident Fund v Odendaal 2004 (1) SA 585 (W) which dealt with the same issue was referred to and followed.  Paragraph 15 and 16 therein provides:-

“[15] An emergency lane, while it does not enjoy any particular definition or recognition in terms of the Road Traffic Act 29 of 1989, is ‘resorted to by motorists in situations of emergency.’ (see Road Accident Fund v Odendaal  2004 (1) SA 585 (WLD)). A motorist does not necessarily act unlawfully by stopping in an emergency lane; it is not generally used as a thoroughfare but generally speaking a motorist that is stationary in the emergency lane ought reasonably to foresee that the vehicle may constitute a danger or obstruction to other possible users of the emergency lane. Guarding against that harm would require reasonable steps to be taken to ensure that other motorists were alerted to the hazard represented by the stationary vehicle, for example, by the use of reflective triangles and hazard lights (Road Accident Fund v Odendaal (supra) at paragraph 15.

[16] The owners and/or the driver of the insured vehicle ought to have foreseen the reasonable possibility that leaving the insured vehicle in the emergency lane for a protracted period would pose a risk of harm, and ought to have taken reasonable steps, including steps to move the vehicle out of the emergency lane and into the adjoining veld, so as to avoid that risk. The presence of the insured vehicle in the emergency lane when in a state of mechanical breakdown would by each sheer size and weight present a potential danger to road users such as the plaintiff. There is no evidence of any steps taken by the owners of the insured vehicle to remove the vehicle from the emergency lane, indeed, the attitude appears to be one of indifference. In these circumstances, in my view, the owners were negligent in leaving the insured vehicle in the emergency lane for what by the time of the collision was already a protracted period and what was clear to be an even more extended period pending the delivery of spares from overseas.”

[26]      Counsel for the plaintiff suggested that this Court should order that the first respondent be liable to pay 70% of the plaintiff’s proven damages whereas Counsel for the first defendant suggested 20/80% apportionment in favour of the first defendant.  I am of the view that the driver of the insured vehicle should shoulder most of blame of the collision.  I find the principles laid down in the cases of Maseng and Odendaal relied upon by the plaintiff’s Counsel apposite in this case.  Whilst he cannot be blamed for the breakdown of the vehicle which seems to be apparent from the photos, he caused the obstruction in the first place because he:-

·         Left the insured vehicle in the emergency lane for a protracted period of time without moving such vehicle out of the emergency lane;

·         The reasons for not moving the vehicle completely out of the road was not given;

·         Did not put a triangle to warm other road users that he had stopped at an emergency lane;

·         Did not put on his vehicle’s hazard and lights on amidst conditions of heavy rain down-pouring and poor visibility to warn other road users of the presence of his vehicle.

[27]      Counsel representing the first defendant lastly argued that the Court must take into consideration that a triangle, the hazards and/or lights serve the same purpose.  According to him, this should render the apportionment of the blame to the Fund to be far less than that of the plaintiff because it is the only wrong thing that the insured driver did in this matter.  I do not agree that this can salvage the insured driver’s degree of blameworthiness because, the two have each its distinctive purposes which in the circumstances of this case, were both necessary because it was raining.

[28]      By comparison, the plaintiff was only put in a situation of danger by failing to amongst others:-

·         Stop and not continue with the trip at the time it started to rain heavily and when visibility was restricted;

·         To keep a proper lookout as to whether it was safe for him to drive in the emergency lane;

·         To drive slowly in order to timeously react to any danger that might confront him, especially during the weather conditions that were prevailing at that time.

[29]      In my view, a fair apportionment of fault / blame is to be 60% against the first defendant and 40% against the plaintiff.

[30]      The following Order is thus made:-

30.1    The first defendant is ordered to pay the plaintiff 60% of such damages the plaintiff may prove;

30.2    The first defendant is ordered to pay the costs, including the costs of the two Counsel or of a Senior Counsel if applicable.

                                               

A.M. KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS

For the Plaintiff                    :           AS Bosman Attorneys

                                                          C/O Maree & Maree Attorneys

                                                          11 Agaat Avenue

                                                            MAHIKENG

                                                            2745

For the Defendant   :           Maponya Attorneys

                                            Megacity Shopping Complex

                                             Sekame Road, Dr James Moroka Avenue

                                             1^st Floor, Office 29 CB

                                              MMABATHO

                                               2735

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