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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, MTHATHA JUDGMENT

PARTIES: Leon Le Roux

VS

Road Accident Fund

• Case No: 725/08

• Magistrate:

• High Court: EASTERN CAPE HIGH COURT, MTHATHA

DATE HEARD: 8^th June 2009

DATE DELIVERED: 25^th June 2009

JUDGE(S): Miller J.

LEGAL REPRESENTATIVES –

Appearances:

• for the Plaintiff(s): S.C. Clark

• for the Defendant(s): N. Mtshabe

Instructing attorneys:

• Plaintiff: Hughes Chisholm & Airey Inc

• Defendant: Mgweshe Attorneys

CASE INFORMATION -

1. Nature of proceedings : Civil- Claim for Damages – Road Accident Fund.

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE HIGH COURT : MTHATHA

CASE NO. 725/02

In the matter between:

LEON LE ROUX Plaintiff

and

ROAD ACCIDENT FUND Defendant

JUDGMENT

MILLER, J.:

[1] This is an action brought under the provisions of the road Accident Fund Act, 56/1996. The plaintiff claims damages from the defendant consequent on personal injuries caused to himself when he was involved in a motor vehicle accident on 08 October 1997 on the N2 road between Dutywa and Butterworth. At the hearing of this matter only the question of liability was dealt with, it being agreed that the question of quantum of damages will be considered at a later stage, if necessary.

[2] At the time of the accident the plaintiff was the driver of a light delivery van with registration letters and number BDL 692 EC which was owned by his employer. I shall for convenience refer to this vehicle as “the plaintiff’s vehicle”. It is common cause that the plaintiff’s vehicle collided with a heavy commercial vehicle with registration letters and number CAM 20380. I shall refer to this vehicle as ‘the insured vehicle’. The insured vehicle consisted of horse and two trailers. According to the evidence of Mr Malibongwe Gcwabe a witness called by the defendant, the one trailer was twelve metres in length and the other trailer was 6 metres in length.

[3] The plaintiff testified. He stated that on 08 October 1997 he was driving from Mthatha to East London on the N2. He was the only person in his vehicle. It was drizzling and the road surface was wet. At approximately 15h30 and after he had driven passed the Eastern Cape Technikon, he was driving up hill towards a blind rise in the road. He states that there were no vehicles visible infront of him, that he noticed no vehicles behind him, that there were no vehicles travelling in the opposite direction, that there was a solid barrier line on the road and that he was travelling within the speed limit of 100km per hour.

[4] He stated that immediately after he came over the blind rise, he saw the insured vehicle coming towards him approximately 20 metres away. The insured vehicle had obviously jack-knifed as it was diagonally across the whole of the road, completely blocking his path of travel. There was no way that he could have avoided the vehicle by going to his left. He did, however, see a gap between the horse and the edge of the road on the right hand side of the road. He immediately drove for that gap, but the driver of the insured vehicle corrected and the gap narrowed. He then immediately served to the left and applied brakes, but to no avail, and his vehicle collided with the insured vehicle. He then lost consciousness and woke up later when he was being transported to hospital.

[5] He states that he does not know with which part of the insured vehicle his vehicle collided with. He does not dispute that the point of impact was on the right hand side of the road, that is, his incorrect side of the road. He states that in the past he had undertaken courses in advanced driving, including defensive driving. He is adamant that there was no way at all that he could have avoided the collision, it occurred so suddenly and the insured vehicle, when he first saw it, was not only too close to him but was also in motion coming towards him.

[6] Rodney John De Lange was called as a witness by the plaintiff. He stated that on 08 October 1997 he was driving on the N2 from Mthatha to East London. He was approximately 40 to 50 metres behind the plaintiff’s vehicle. The plaintiff’s vehicle disappeared over a blind rise and when he got to the top of the rise he came across an accident that had just happened, saying that the plaintiff’s vehicle had collided with the insured vehicle.

[7] He says that his was the first vehicle on the scene. He stopped his vehicle and got out of it and immediately ran to assist the plaintiff. He stated that the insured vehicle was diagonally across the road, but not completely blocking the lane of travel from Dutywa to Butterworth. He believes, but is not sure, that the plaintiff’s vehicle collided with the horse of the insured vehicle and that plaintiff’s vehicle moved after the collision. He thinks, but again is not sure, that the driver of the insured vehicle was still in the vehicle when he, the witness, rushed to the plaintiff’s aid. He says that the plaintiff was ultimately removed from his vehicle with the aid of the jaws of life.

[8] Malibongwe Gcwabe testified on behalf of the defendant. He states that he was a passenger in the insured vehicle, sitting next to the driver. According to him the insured vehicle which was driving in the direction from Butterworth towards Dutywa started to sway and the driver said that the front right wheel had locked. The driver tried to control the vehicle, but the vehicle jack-knifed to such an extent that the horse was facing towards Butterworth and the front trailer hit and broke the passenger window of the horse.

[9] He says that while the insured vehicle was swaying he could see many vehicles both coming from Butterworth and coming from Dutywa. The insured vehicle came to a standstill and both he and the driver alighted therefrom. He states that when the insured vehicle was stationary it completely blocked the road.

[10] He states that there was a long line of stationary vehicles on the Dutywa side of the insured vehicle, too many to count, all with their hazard lights on. The plaintiff’s vehicle then approached, at a high speed, on its incorrect side of the road, passing all of the stationary vehicles and collided with the horse of the insured vehicle and then got stuck under the front trailer.

[11] When giving evidence-in-chief he initially said that the road surface was dry but then said he is not sure, but then again, when under cross-examination, he said the road surface was dry because it had not rained that day. He stated that the driver of the insured vehicle passed away towards the end of 1997. He died of natural causes unrelated to the accident.

[12] There are two diametrically opposed versions, the one depicting a driver driving lawfully on his correct side of the road, within the speed limit, who is confronted with a sudden emergency situation, and the other depicting a driver driving in a grossly reckless manner on his incorrect side of the road, passing a long line of stationary vehicles, all with their hazard lights on, and colliding with the stationary insured vehicle.

[13] All the witnesses, in my view, gave their evidence in a satisfactory manner, in the sense that their demeanour was good and they were not evasive in answering questions. It must also not be overlooked that they were testifying to events which occurred almost twelve years ago. No explanation could be given to the Court for the inordinate delay in the hearing of this matter.

[14] The evidence of the plaintiff was, in all material aspects, corroborated by that of Mr De Lange, who was an independent witness. It is clear from the evidence of Mr De Lange that he was driving immediately behind the plaintiff’s vehicle, that the plaintiff did not cross the barrier line to pass a string of stationary vehicles and that he was the first person to come upon the scene of the accident.

[15] Against this evidence is the uncorroborated evidence of Mr Gcwabe. There should have, on his version, been a host of independent witnesses, being the occupants of the long line of stationary vehicles, to corroborate his evidence. None were called by the defendant and no explanation has been given for this failure. I also do not believe that Mr Gcwabe had an adequate opportunity to observe what was happening on the road ahead of him, particularly the build up of the long line of stationary vehicles. On his own evidence the horse of the insured vehicle swayed and when the jack-knife occurred, swung around to face the opposite direction. He, in the circumstances, probably only saw the long line of vehicles with their hazard lights on only after he alighted from the insured vehicle. His recollection of the events is also probably not clear as his evidence that the road surface was dry is contradicted not only by the evidence of the plaintiff and Mr De Lange, but also by the police accident report.

[16] I am also of the view that the probabilities favour the plaintiff’s version. It is, to my mind, improbable that in the time that it must have taken for the insured vehicle to jack-knife, a long line of vehicles, as described by Mr Gcwabe, could have developed. It is also improbable that the plaintiff, an experienced driver who has attended advanced driving courses, would have, at speed, gone onto the incorrect side of the road to pass, on a blind rise, a line of stationary vehicles, all indicating by their hazard lights that danger lay ahead.

[17] I accordingly accept the version presented by the plaintiff and reject that of the defendant.

[18] The defendant, in its initial plea, merely did not admit the plaintiff’s allegations that the driver of the insured vehicle was negligent. In its first amended plea, dated 07 April 2006, the defendant denied the plaintiff’s allegations relating to negligence on the part of the driver of the insured vehicle, and in amplification of such denial, alleged that the plaintiff was the sole cause of the accident, he being negligent, inter alia, in overtaking stationary vehicles at a time when it was dangerous to do so and failing to have due regard to the insured vehicle which had a sudden emergency. In its latest plea, dated 29 May 2009, the defendant makes reference to the insured driver having an emergency situation.

[19] Mr Clark, who appeared for the plaintiff, has made reference to the Full Bench decision of Stacey vs Kent 1995(3) SA 344(E) at 355 E where the following was stated:

“If a defendant’s motor vehicle behaves in an abnormal manner or appears in a situation where it has no right to be, negligence may be inferred.”

In this matter the insured vehicle behaved in an abnormal manner and also placed itself in a situation where it had no right to be, that is, diagonally across the N2, thus giving rise to an inference of negligence on the part of the driver.

[20] The only defence raised against this by the defendant is its reference in the amended plea to the insured driver having had “an emergency situation” and the only evidence put up by the defendant in this regard is that of Mr Gcwabe who said that the driver of the insured vehicle said that the front right wheel had locked. There is no evidence that it did indeed lock or, if it did, what caused it to lock. There is no evidence of the locked wheel causing a skid mark or of the front wheel of the insured vehicle being examined after the accident or that the insured vehicle was in a proper roadworthy condition when it embarked on its journey. The defendant, in my view, has not produced sufficient evidence to negate the inference of negligence.

[21] There is, on the other hand, no doubt that the plaintiff was confronted with a sudden emergency situation when he came over the blind rise. The insured vehicle was blocking his path of travel and coming towards him. He had extremely little time to react and took, what in his mind at the time, was the only option to avoid a collision, that is, to swerve to the right and try to avoid the insured vehicle. As it turned out, he did not succeed in avoiding the collision. Whether he could have adopted a course of action that would have avoided the collision is not known. The plaintiff, in my view, gave a reasonable explanation for taking the option that he did. He saw a space between the horse and the right edge of the road and he went for that space. He may have succeeded in avoiding the collision if the horse did not narrow that gap.

[22] A driver confronted with an unexpected sudden emergency will not be found to be negligent if he chooses a reasonable option to avoid a collision, even if such option, after the event is proven to be wrong. See Berwick vs Crews 1962(2) SA 690(A) at 705 D where the following was stated:

“The law does not require of any driver that he should exhibit perfect nerve and presence of mind enabling him to do the best thing possible. It does not expect men to be more than ordinary men.”

[23] In these circumstances I do not believe that it can be found that the plaintiff drove in a negligent manner. My conclusion therefore is that the accident was caused solely by the negligence of the insured driver.

[24] In the result, the following order is made:

2. The defendant is liable to pay the plaintiff all of his proven or agreed damages.

3. The defendant is to pay the plaintiff’s costs of suit to date on the High Court tariff, which costs are to include the costs of the sketch plan and photographs.

4. The defendant is to pay the plaintiff interest on the costs of suit from 14 days after allocatur.

5. The plaintiff and Mr De Lange are declared necessary witnesses.

6. The issue of quantum of damages is postponed sine dies.

JUDGE OF THE HIGH COURT

HEARD ON : 08 JUNE 2009

DELIVERED ON : 25 JUNE 2009

COUNSEL FOR PLAINIFF : S. C. Clark

INSTRUCTED BY : Hughes Chisholm & Airey Inc.

COUNSEL FOR DEFENDANT : N. Mtshabe

INSTRUCTED BY : Mgweshe Attorneys

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