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Mathe v Road Accident Fund (2185/07)  ZANWHC 43 (13 November 2008)
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CASE NO. 2185/07
In the matter between:
SAMUEL HLOPHEKA MATHE PLAINTIFF
ROAD ACCIDENT FUND DEFENDANT
DATE OF HEARING 4 NOVEMBER 2008
DATE OF JUDGMENT 13 NOVEMBER 2008
FOR THE PLAINTIFF ADV DU PLESSIS
FOR THE DEFENDANT ADV MASHABA
 Mr S H Mathe (the plaintiff) issued summons against the Road Accident Fund for damages suffered by him while he was a passenger in a bus. The parties have agreed that I determine the issue of negligence and thereafter the quantum. I ordered the issues to be separated.
 It is common cause that on 7 June 2004 between 05:15 and 05:30, while it was still dark, the plaintiff, was a passenger in Bus A, sitting behind the driver Mr G.P Modise. The bus was travelling upon a tar road carrying one lane of traffic in each direction. At a certain point the road (seen from the point of view of the driver of Bus A) takes a bend or curve to the left. It is not disputed that from a place referred to as the bus stop. On the opposite side of the "bus stop" is a side road, described as a "short right, which joins the road upon which the buses travelled. The plaintiff could see the approaching lights of oncoming vehicles coming around the curve about a distance of 300 metres from a point near the bus stop.
 A taxi coming from the "short right" cut in front of Bus A. Bus A's driver pulled into the adjacent lane, crossing a barrier line, in order to overtake the taxi. His reckless and negligent conduct is undisputed. The driver of Bus A realised that he could not overtake the taxi. So Bus A swerved to its right and then slightly to its left. According to the plaintiff the oncoming Bus B also took evasive measures mirroring these measures. Bus A did not cross to its correct side because the taxi was alongside it. Bus A collided with the oncoming Bus B. It's left front hitting the left front of the oncoming bus. The collision took place at a spot shown on photo 2 at "O" or "X". The right wheels of Bus A were on the gravel and the left wheels were on the yellow line of the oncoming bus's lane at the time of impact.
 What is in issue is whether the driver of the oncoming Bus B was at all negligent and, if so, whether his negligence contributed to the collision and the plaintiff's loss.
 The plaintiff's evidence, that when Bus A started overtaking he could see bus B's lights about 300 metres away on the bend or curve, proceeding towards Bus A is uncontradicted. So is the evidence of the driver of Bus B that about 3 vehicles passed by him, in the correct lane before the collision. This explains satisfactorily why he did not undertake the dangerous option of crossing into the wrong lane.
 The driver of Bus B said he saw Bus A's lights. This was when Bus A was in his lane at a distance of 90 metres and his bus (Bus B) was travelling at 60 kmph (which was permissible on that stretch of the road). When he realised that Bus A travelling towards him, in his lane could result in a dangerous situation, he immediately applied his brakes. He stopped before Bus A collided with him. I assume that there must have been some split second between his decision to brake and the application of his brakes. He says he could not swerve to his left as there is a slope on that side. He points out a slope on photo 2. But, on his version, he not yet travelled that far. The collision took place before he got there. I do not think he should be discredited on this account. The photographs do not adequately depict the scene before the point of impact is reached. The onus lies upon the plaintiff to counter the driver of Bus B's evidence.
 It was submitted that Bus B's was not stationary at the time of the collision; even if only momentarily. The attack is founded on two legs. The first is that the driver of Bus B does not say this in his statement to the police. The police statement is brief. He says he could not avoid the collision as Bus A "moved from its way to my way quickly". He also emphasised the fact that he was negotiating the curve prior to the collision.
 Even making allowance for the sometimes unsatisfactorily way witness statements are taken by the SAPS, two facts stand out. To apply brakes and stop amounts to trying to avoid the collision. But that is not what is he conveys. Secondly, he testified that when he saw Bus A's lights it was in his lane. He did not say Bus A moved suddenly into his lane. His veracity must be in some doubt.
 I do not think that the driver of Bus B could be faulted for not taking action when he was 300 metres away. I am not satisfied he would have been able to observe the fact that Bus A was in his lane at that distance, even though the plaintiff could see Bus B. As he approached he would either, as he told the police, have seen Bus A move suddenly (quickly means suddenly in this context) into his lane or he would have seen bus B travelling in his lane a lot earlier than at a distance of 90 metres. He would have appreciated the danger earlier and could have reacted by, at least, taking his foot off the accelerator and by braking. A reasonable driver would have been keeping a proper look out. The driver of Bus B was negligent in not keeping a proper lookout.
 The negligence of the driver of Bus B contributed to the collision. It is not easy to fix the contributory negligence of the driver of Bus B. The situation was not of his making. I would fix his negligence at 10%. The negligence of the driver of Bus A is fixed at 90%.
 To sum up:
The collision was caused by the negligence of both insured drivers. The first insured driver (of Bus A) was 90% negligent. The second insured driver (of Bus B) was 10% negligent.
The defendant is to pay the plaintiff's costs.
A A LANDMAN
JUDGE OF THE HIGH COURT
For the Plaintiff Tlhatlha Attorneys
For the Respondent Motlhabani Attorneys