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IN THE KWAZULU-NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH AFRICA

CASE NO: 8022/2007

In the matter between

SEEMA MAHARAJ Plaintiff

and

ROAD ACCIDENT FUND Defendant

J U D G M E N T

____________________________________________________________

1.

The Plaintiff is a 31 year old saleslady.

2.

She instituted action against the Defendant for damages suffered in consequence of injuries sustained during an accident which occurred on 29 July 2005.

3.

At the commencement of the trial, I was required to deal with two interlocutory or procedural issues:

(a) an objection to the Defendant’s belated Notice of Intention to Amend its Plea;

(b) a joint application for quantum to be separated.

4.

In the contemplated amendment, the Defendant sought to introduce, for the first time, a plea of contributory negligence on the basis that the accident was also caused by the Plaintiff’s failure to act reasonably. In particular the Defendant alleged that the accident was caused by the Plaintiff’s failure properly to maintain a lookout, take evasive action or her driving at an excessive speed.

5.

I was satisfied that the Plaintiff could not be prejudiced by the belated amendment. After all, her Counsel could not, possibly, properly have prepared without having dealt with these issues (and he, in fact, fairly conceded this).

6.

The application for separation of quantum was clearly justified and I, accordingly, declared that determination of the Plaintiff’s quantum would stand over for determination or agreement (if necessary) later.

7.

Against this background the trial proceeded on liability.

8.

There was only one witness called, namely the Plaintiff. (The Defendant closed its case without calling witnesses).

9.

The Plaintiff testified that, on the night in question, she was travelling from work (at Pinetown) to her home (in Malvern) when she, suddenly, came upon logs lying on front of her on the road surface of the fast lane. She applied brakes, hit one log and then, immediately afterwards, a second one. This caused her to lose control of the vehicle. It rolled up the bank and, apparently, down again, to land on its roof.

10.

She was assisted first by another driver and, thereafter, by paramedics.

11.

At the end of her evidence I heard argument on the following issues:

(a) whether, in fact, the Plaintiff collided with logs and, as a result thereof, lost control of her vehicle;

(b) whether the logs had fallen off another vehicle;

(c) whether the incident was caused by:

(i) the negligence of the driver or owner of the other (unidentified) vehicle;

(ii) the negligence of the Plaintiff; and/or

(iii) the negligence of both.

12.

Initially it was also placed in issue (at least on the pleadings) that, even if it was shown that the logs had fallen off a vehicle, such action did not arise from the driving of a motor vehicle in the circumstances contemplated in Section 17 of the Road Accident Fund Act, 1996.

13.

It is necessary, at the outset, to mention that the onus on issues (a), (b) and (c)(i) was on the Plaintiff. The onus on issue (c)(ii) was on the Defendant.

14.

The first enquiry is whether it has been proved that the Plaintiff lost control because she had struck an object or objects (as I shall, momentarily, refer to them) lying on the road surface.

15.

I have no hesitation in finding in favour of the Plaintiff on this issue. She explained that she had come from a meeting at work, that she did not use alcohol, that she knew the road, that she was not driving too fast and that she had managed good control of her vehicle until she struck the objects. In the absence of any reason to doubt this evidence or gainsaying evidence, the Plaintiff’s version, on this issue, is beyond question.

16.

In the circumstances I find that she lost control of her vehicle because she ran into an object or objects lying on the road surface.

17.

The next question is to decide, on the probabilities, what these objects were and where they had come from. Mr Chithi (for the Defendant) submitted that three equal possibilities existed, namely that:

(a) the objects consisted of abandoned bush-cuttings having been left by the municipality following a clearing or trimming exercise;

(b) the objects represented old timber which might have been lying next to the road for some time;

(c) the objects had fallen off a vehicle and, in all likelihood, a truck.

18.

The parties produced two photographs taken the next day (exhibit “A”). These show pieces of debris of different size and portions of what clearly appears to be logs lying on the edge of the road and the island immediately next to it.

19.

Mr Chithi suggested that the probabilities do not favour any one of the possibilities and argued that the debris resembled intsasa (fire wood or wood chippings).

20.

It is true that the timber debris varies in size and that some of the portions might be correctly so described. What is, however, clear is that the larger logs viewed on the photographs cannot be so described and, clearly, do not look like bush cuttings or vegetation. Whilst there is, indeed, some indication of whiteness in the appearance of some of the logs shown on the photographs, this discolouration does not, necessarily, show that the timber had been lying next to the road for a long time. It could, equally, have been freshly cut.

21.

More importantly, however, is the Plaintiff’s own evidence, to the effect that she had observed logs on the road surface. That evidence is not gainsaid, stands supported by her report to the police on the following day and is supported by the probability arising from the fact that she must have struck something more significant than intsasa to lose control of her vehicle.

22.

In the circumstances I am satisfied that the accident was caused by logs lying on the road surface.

23.

The Plaintiff gave evidence that the route was regularly used by heavy vehicles carrying timber to the premises of a paper-mill at Mondi. (In fact, she claimed that she had seen the same timber at Mondi when, in the past, she had been to the premises because her father had worked there).

24.

In view of the aforegoing I conclude that the most probable inference to be drawn from the aforegoing is that the logs had fallen off a truck or another vehicle which had travelled on the road before the Plaintiff. (This inference is not only consistent with all the facts, but also the most probable of the possibilities referred to).

25.

Owners and drivers of cargo carrying vehicles and log carrying trucks, in particular, are duty-bound to take all reasonable steps to ensure that their cargo is properly secured. Fellow road-users face the risk of death or serious injury if this is not done and I would think that any driver embarking upon his route would, before he proceeds, make sure that there is no risk of the cargo spilling onto the road.

26.

The inference to be drawn from the aforegoing is that the driver or owner of the preceding vehicle or truck had failed to comply with this duty and I am, accordingly, satisfied that the accident was caused by such negligence.

27.

Mr Chithi conceded that such a finding would take care of the legal issue (namely whether, on that basis, the incident arose from the driving of a motor vehicle).

28.

This is consistent with the authorities.

29.

In Wells & Another v Shield Insurance Co. Limited & Others 1965 (2) SA 865 C the following was said by Corbett J (as he then was):

“The words ‘caused by’ referred to the direct cause of the injury, whereas the words ‘arising out of’ referred to the case where the injury, though not directly caused by the driving, is nevertheless causally connected with the driving and the driving is a sine qua non thereof”.

See also: Grobler v Santam Versekering Beperk 1996 (2) SA 643 TPD (at 647 H - I).

Minister of Safety and Security v Road Accident Fund 2001 (4) SA 979 NPD (at 984 - 985).

30.

The next question is whether it has been shown that the Plaintiff was also negligent in one or more of the respects mentioned.

31.

She testified that she was travelling at a speed of between 80 and 90 kilometres per hour. On a double-carriage freeway with a speed limit of 100 kilometres per hour, with light traffic and good road surface conditions and no reason to expect trouble, she cannot be blamed for the speed she chose.

32.

There is also no evidence to suggest that she was not keeping a proper lookout.

33.

What is left is to consider whether or not the Plaintiff could have avoided the collision by taking evasive action.

34.

To determine this it is necessary carefully to consider her evidence.

35.

She initially estimated distance and, in doing so, demonstrated that she had no clue about distance. When asked to explain with points of reference in Court, she estimated that she first saw the logs when she was about 6 to 10 metres away. She was in the right hand lane. It was pitch dark (except for her lights) and she had just come around a bend with a bank on her right (which would have obscured her direct line of sight), when she, suddenly, saw the logs in front of her. On this basis she claimed that she could not have seen them earlier.

36.

It is trite that whilst there obviously is a relationship between speed and visibility and, in appropriate cases, a driver’s failure to regulate his speed to stop within his line of vision, may be regarded as negligent, the question is, ultimately, one of fact and not of principle.

S v Van Deventer 1963 (2) SA 475 A (at 481 D- F).

Viriri v Wellesley Estate (Pty) Limited 1982 (4) SA 308 ZSC (at 313).

37.

Presumably the Defendant would have cross-examined the Plaintiff on her line of sight and placed photographic or other evidence before me to demonstrate that she could earlier have viewed the fallen logs if, indeed, she could have done so. In the absence of a serious challenge or such evidence, I cannot find that the Plaintiff could earlier have observed the fallen logs (in the context of darkness, a bend and an elevated bank obscuring her line of sight).

38.

What remains is whether I could find that the Plaintiff could and should have taken evasive action.

39.

It is possible that the Plaintiff might have been able to do so. Cases are, however, not decided on possibilities. She claimed that she first saw the timber when she was about 6 to 10 paces away and that they were scattered mainly on the fast lane, with some of them lying to her left. She immediately applied brakes but apparently made no attempt to swerve. She said that even if she had done so, she would still have hit a log or logs on her left.

40.

On simple mathematics, the Plaintiff would have been travelling about 22 metres per second (at 80 kilometres an hour). Even if some allowance is made for the possibility that she had seen the logs earlier (than the 6 to 10 paces pointed out in Court), the Plaintiff would have had virtually no time effectively to swerve and, even if she did, might have ended up striking other logs.

41.

Because she was obviously not an independent witness and in view of the difficulties she had with her estimates of distance, I carefully considered the Plaintiff’s demeanour and, more importantly, her evidence, to decide whether or not there is reason to doubt her credibility. She came across well spoken and honest. She made concessions against her own interests (like the admission that her vehicle’s lights were not the brightest, that it was her and not the orthopaedic surgeon’s mistake to refer to a log, that she, herself, could not say whether the logs had become dislodged from another vehicle and by not denying the existence of an elevation on the road surface).

42.

In the circumstances I have no reason to doubt the Plaintiff’s evidence when she said that she could not really do anything to avoid the incident. On the facts found, she, quite simply, appeared to have very little opportunity to react and her choice to brake and not swerve, in the circumstances which faced her, could not be described as negligent.

43.

In the circumstances I am not satisfied that the Defendant has shown contributing negligence on the part of the Plaintiff.

44.

I touch on the issue of costs.

45.

On the evidence before me I cannot find that the Plaintiff’s quantum will exceed the Magistrate’s Court limit. It may or may not. Whilst I would have been inclined to award costs in favour of the Plaintiff if there was a reasonable indication, at least, of her quantum exceeding the Magistrate’s Court limit, I would be hesitant to do so in the present case (since, after all, the Plaintiff was not immediately hospitalised and it was only much later that it was discovered that she had sustained a mild superior end plate compression fracture at T12).

46.

The costs will therefore have to stand over.

47.

In the circumstances I make the following Orders:

(a) it is declared that the Defendant is liable to compensate the Plaintiff for all damages suffered in consequence of the injuries sustained by her as a result of the accident on 29 July 2005;

(b) costs are reserved.

_________________________

MARAIS AJ

14 October 2009

Acting Judge of the KwaZulu-Natal High Court

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