FORM A
FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT
PARTIES:
MZWANDILE ALFRED DIAMOND
PLAINTIFF
and
THE ROAD ACCIDENT FUND
DEFENDANT
•
Case Number: 1207/2007
•
High Court: EASTERN CAPE DIVISION
•
DATE HEARD:
19/08/2008
JUDGE(S): PLASKET J
LEGAL REPRESENTATIVES –
Appearances:
•
For the Appellants(s): Mr R Hart
Instructing attorneys:
•
Appellant(s): Nettletons
•
Respondent(s): Neville Borman and Botha
CASE INFORMATION -
(a)
Nature of proceedings
:
(b)
Topic:
(c)
Key Words:
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
CASE NO: 1207/2007
DATE HEARD: 19/08/2008
DATE DELIVERED: 21/8/08
NOT REPORTABLE
In the matter between:
MZWANDILE ALFRED DIAMOND
PLAINTIFF
and
THE ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
PLASKET J
[1] In this action for damages arising form a motor vehicle accident I separated the merits from the quantum in accordance with a request
to this effect by the parties. This judgment is, as a result, concerned only with the question of whether the defendant is liable
for the damages that the plaintiff may have suffered as a result of the accident.
[2] It is common cause that, on 18 July 2003 at about 13h00 and on the national road between Kinkelbos and Colchester, an accident occurred
involving a motor vehicle driven by the plaintiff and an articulated truck driven by one J.S. Lentoor, who is now deceased. Arising
from this accident, which the plaintiff alleged was caused solely by the negligence of Lentoor, the plaintiff has claimed damages
from the defendant in the amount of R450 000.00.
[3] The plaintiff testified that he was driving between Grahamstown and Port Elizabeth in good driving conditions on a road he knew well.
He saw, ahead of him, an articulated truck travelling in the same direction as him but to his left on the road surface – between
the shoulder of the road and the yellow line.
[4] The plaintiff was travelling at about 120 kilometres per hour. The truck driven by Lentoor was, he estimated, travelling at between
60 and 80 kilometres per hour. As he was travelling to its right he intended passing it without crossing the centre line of the road.
He saw vehicles travelling towards him from the opposite direction.
[5] As he was about to pass the truck, he saw the horse move to the right into his line of travel. He was not able to pass it to the right
because he would have collided head-on with an oncoming vehicle. He was not able to brake because he was travelling significantly
faster than the truck and would have collided with the horse. He opted instead to swerve to the left and, he hoped, to miss the rear
of the trailer. Instead of doing that, he collided with the trailer.
[6] The plaintiff stated that he was not able to avoid the accident, no matter what he might have tried. He was faced with a sudden emergency
– Lentoor unexpectedly and without warning moving into his line of travel – and he chose the best of three bad options
available to him in the split second he had to decide on what to do.
[7] A statement that he made some time ago – on 9 June 2004, nearly a year after the accident – was put to the plaintiff.
It differed in some respects from the evidence he gave. In my view, the difference are not material and do not adversely affect the
plaintiff’s credibility or the probabilities.
[8] The only witness to testify was the plaintiff. The defendant did not call any witnesses, apparently because Lentoor and a second eye
witness had both died between the time of the accident and the commencement of the trial.
[9] The only evidence before me is that of the plaintiff. On his version, the sole cause of the accident was Lentoor driving his truck,
for no reason and without warning, into the path of the plaintiff. On his evidence, he was unable to avoid the accident which ensued.
I accept his evidence.
[10] My finding is that the defendant is liable for the damages that the plaintiff has suffered as a result of the accident.
[11] The following order is made:
(d)
The defendant shall be liable for the damages that the plaintiff proves in due course arising from the motor vehicle accident that
occurred on 18 July 2003.
(e)
The defendant is directed to pay the plaintiff’s costs.
_________________
C. PLASKET
JUDGE OF THE HIGH COURT
APPEARANCES:
For the plaintiff: Mr R Hart of Nettletons, Grahamstown
For the defendant: Mr L Spruyt instructed by Neville Borman and Botha, Grahamstown
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