TRANSVAAL PROVINCIAL DIVISION

!n the matter between :

LIONAL JOHN CASS

And

			JUDGMENT

ismail AJ:

[1]   The plaintiff was a passenger in a motor vehicle driven by his grand mother on the 26 January 1996. The vehicle in which the plaintiff was travelling in collided with another vehicle [the insured vehicle] on the N4 highway near Middelburg. The plaintiff's grand mother was fatally injured in the collision and he sustained injuries to his body.
[2]   At the time of the collision the plaintiff was a minor. 13 years old at the time, and his grandmother fetched him at school and they were travelling to their farm in Arnold.

[3]   At the commencement of the trial Ms Strauss, acting for the plaintiff sought to have the merits separated from the question of quantum. She submitted that the plaintiff had to show 1% negligence in order to succeed on his claim as the defendant pleaded that the plaintiff's claim was limited to R25 000,00 for special damages because the driver of the car wherein the plaintiff's was a passenger was solely negligent for the collision.	

[4]   The application for the separation of the question of the merits and quantum was successful and the matter proceeded in terms of Rule 33(4) of the Uniform Rules of Court regarding the question of negligence.

[6]     His grand mother was on the extreme left lane and she moved over to the right lane in order to overtake another vehicle. She passed the vehicle which she overtook and suddenly the plaintiff noticed brake lights of a car in front of them. His grandmother swerved to avoid colliding with the car and that is all which he can remember as he was rendered unconscious. He could not say how far to the right his grand mother swerved. It was put to him that the defendant's version was that his grandmother collided with the insured driver on the opposite side of the road and on the extreme right lane from their side. He denied this. The plaintiff estimated that his grand mother was travelling at a speed of approximately 80km/h. With the completion of the plaintiff's evidence his case was closed.

[8]    Mr Thabethe thereafter led the evidence of Mr Lawrence Johnson [Johnson] a member of the defence force during 1996. The gist of his evidence was that the vehicle in which the plaintiff was a passenger had overtaken his car immediately preceding the collision. He stated that he was travelling at a speed of approximately 80-90km/h. According to him when the vehicle overtook him it gradually moved towards its right, namely towards the opposite side of the road. He stated that he did not observe a vehicle in front of him at the time the Nissan was overtaking his vehicle.

[9]    Mr Johnson stated that he made a u turn after the accident in order to assist the injured people. His car's hazard were on prior to the accident as visibility was poor. He noticed that the Nissan vehicle was on the extreme right lane and the truck was off the road surface approximately 20 metres into the bush or grass.

11] He described the damage to the Nissan to the front, top and driver's side. According to him the Nissan collided with the right side of his vehicle.

571 (T-)Where statements are made by two witnesses, the Contradiction in itself proves only that one of them is erroneous.

[13] Pursuant to Mr Setabola's evidence the defendant closed its case

[14] Ms Strauss submitted that the court should find that the insured driver was negligent in that he failed to take reasonable steps to avoid the accident when he could do so, such as apply brakes or travel at a slower speed than that which he was travelling at. Mr Thabethe on the other hand hardly surprisingly submitted that the insured driver did everything expected of a reasonable driver to avoid the accident. He swerved his truck towards the left in order to avoid the accident.

[15] During their respective addresses to the court both counsel agreed that the sole issue which I needed to determine was whether the insured driver was contributorily negligent in that he did not take appropriate action in order to avert the accident. Both advocates agreed with me on this aspect. Neither of them could provide me with any reported authority dealing with a similar situation. This case had to be determined on the factual matrix of evidence presented before me.

APPRAISAL OF WITNESSES AND THE EVIDENCE

[16]	The evidence of Mr Cass, the plaintiff, did not assist in the determination of the question of whether there was any negligence on the part of the insured driver. The common cause evidence in this matter are :-

(1)	That the vehicle the plaintiff was a passenger in drove off onto the wrong side of the road ;
(2)	That it was raining heavily at the time and visibility was limited to a distance of 25-40 metres;
(3)	the collision took place on the lane in which the insured driver was travelling on;
(4)	that the plaintiff's grand mother died in the accident and that the plaintiff suffered injuries arising out of the collision:
(5)	that Mr Johnson was traveliing at a speed of between 80-90km/h when the Nissan passed him and that the Nissan at that stage was travelling at least 20km/h faster than Mr Johnson's vehicle.
(6)	that the plaintiff saw what appeared to be brake lights which caused the driver, his grand mother, to swerve onto the lanes off oncoming traffic;

[17]   Mr Johnson was an independent and objective witness and it is his evidence which to a large extent gives the court a semblance of how the accident took place. Although he did not observe red brake lights ahead of him he was prepared to concede that there could have been another car ahead of him. This entrenches the view that the weather conditions were severe and that visibility was limited.

Notwithstanding his attempt at avoiding the accident as he put it" he was unsuccessful."

[21] In the circumstances I am of the view that the insured driver was not negligent and that he tried to avoid the accident. Accordingly I am of the view that the plaintiffs action should be dismissed with costs.

		APPERANCES
		
		For the Plaintiff: Adv S Strauss instructed by J H Van Der Merwe Inc-Pretoria	
		For the defendant: Adv Thabethe instructed by Geldenhuys Lessing Malatji Inc- Pretoria