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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

12/12/2019

CASE NO: 46118/17

 

In the matter between:

 

VERONIQUE RAS                                                                                                        Plaintiff

 

And

 
ROAD ACCIDENT FUND                                                                                           Defendant

JUDGMENT

RANCHOD, J

[1]          In this matter the issue of quantum of plaintiff's damages was separated from that of liability and the trial proceeded on the latter issue only.

[2]          Plaintiff claims damages for bodily injuries she sustained on 29 July 2016 when her motor vehicle with registration number [….] overturned when, she says, she tried to avoid a collision with another vehicle which suddenly appeared in front of her. She does not know the details of the other motor vehicle or its driver. She further states that the 'insured vehicle did not have any lights.' She 'attempted to avoid a collision and swerved to the right, lost control of the vehicle and caused it to overturn.'

[3]          Then follows, in the particulars of claim, the alleged negligence of the unknown insured driver:

'5.         The aforesaid collision was caused entirely by the negligence of the insured driver, who was negligent in one or more of the following aspects:

5.1            He travelled at a speed which was excessive in the circumstances;

5.2            He failed to keep a proper lookout for oncoming traffic;

5.3            He failed to take any, alternative (sic) sufficient, cognizance of the presence, the actions and the visibility intended , (sic) and alternatively probable further actions of other motorists and/or the plaintiff;

5.4           He failed to apply the brakes of the insured vehicle, at all, alternatively timeously and/or sufficiently, alternatively he drove the insured vehicle, whilst the braking system and/or one or more of the tyres thereof were in a defective and unroadworthy condition, the fact of which he was aware, alternatively both could and should, by taking reasonable care, have made himself aware and should have avoided;

5.5           He failed to avoid the collision when, by taking reasonable care (including, but not limited to, travelling more slowly) he both could and should have done so;

5.6            He failed to maintain any, alternatively sufficient, control over the insured vehicle;

5.7           He failed to consider the rights of the other motorists, alternatively he failed to consider their rights properly.'

 

[4]          It becomes immediately apparent that the drafter of the particulars of claim paid scant attention to the basis of the plaintiff's claim. This will become apparent later on in this judgment. Plaintiff's case is that she avoided a collision with a vehicle ahead of her and travelling in the same direction as herself, yet it is alleged the insured driver failed to keep a proper lookout for 'oncoming' traffic. She alleges he was travelling at an excessive speed. If that was indeed so, he would be moving away from her. How, then, did it come about that she tried to 'avoid a collision' and swerved to the right unless she was driving faster than the insured driver and caught up with him rapidly?

[5]        The allegation is made that the insured driver failed to apply brakes. If he or she (the plaintiff refers to the insured driver as 'he' yet she says the driver is unknown) would have done so than a collision would inevitably have taken place.

[6]          If the insured driver was driving at an excessive speed ahead of her how could he or she take 'cognizance' of the presence of the plaintiff?

[7]          Plaintiff says the insured driver failed to avoid a 'collision' by inter alia, not 'travelling more slowly'. Firstly, no collision took place. Secondly, if the insured driver would have travelled more slowly plaintiff would have, on her own version, probably collided with the insured vehicle.

[8]          It is alleged that the insured driver failed to 'maintain control' over the insured vehicle. Again, there is no basis for this allegation.

[9]          Plaintiff says further that the insured driver failed to 'consider the rights of the other motorists' but does not state in what respect the 'other motorists" rights were not considered.

[10]      In an affidavit dated 14 February 2017 in support of her claim the plaintiff states:

'On or about 29 July 2016 I was the driver of a white Hyundai i10 with registration number [….] travelling towards Krugersdorp on the left lane of the N14 highway. In the vicinity of or just before Diepsloot as I was travelling, a vehicle of which the details are unknown to me, suddenly and without any lights, appeared in front of me. I tried to swerve to the right to avoid a collision with the vehicle. I lost control of my vehicle and overturned several times.'

 

[11]      At first glance, the impression created is that the other vehicle drove towards the plaintiff. When giving evidence during the trial, and in answer to direct questions from the court the plaintiff stated both she and the insured driver were travelling in the same direction. And it was only during the course of the trial that the plaintiff testified that she was travelling in the left lane when a pedestrian walked from her left hand side to her right hand side and she swerved to avoid the person and then remained in the right lane to avoid further pedestrians.

[12]       Nowhere in her affidavit or in the particulars of claim is the presence of a pedestrian mentioned.

[13]       Under cross-examination plaintiff elaborated and said it was when she moved to the right hand side that she saw the insured vehicle without lights but she could not say how long it was before she saw it. She said it was because the incident happened three years ago. Under further cross-examination she said she first swerved to avoid the pedestrian then saw the motor vehicle so swerved further to her right.

[14]       She was cross-examined about the fact that in her affidavit she stated she was travelling in the left lane of the N 14 highway when the insured vehicle appeared suddenly in front of her whereas in court she testified that she was in the right lane. Her response was that the affidavit was incorrect. She was in fact travelling in the right lane she said.

[15]       Plaintiff said she could not remember when she arrived nor when she left for home after spending the evening with a friend at a restaurant in Pretoria. She could not remember the time of the accident. In the particulars of claim it is stated that the accident occurred at 3am. However, she said the accident happened near a 'big white tent' and that it was before Diepsloot (an informal settlement).

[16]       Furthermore, she testified that she was keeping a proper lookout and was travelling within the speed limit on the N14 highway going to Krugersdorp.

[17]       A pre-trial meeting was held between the parties on 14 June 2019 i.e two court days before the trial. A signed copy of the minutes of the meeting was handed in at the commencement of the trial. In it is stated by the plaintiffs attorney that the plaintiff will allege that:

'(a)       on 29 July 2016 at approximately 03h00 on the N14 highway at or near Diepsloot, a collision occurred;

(b)       the following two vehicles were involved:

-           a white Hyundai i10 with reg nr [….] , driven by the plaintiff; and

-           a motor vehicle with unknown registration and unknown driver

(c)         the plaintiff was travelling in a western direction towards Krugersdorp when the insured drive/r vehicle, whose vehicle had no lights on, suddenly appeared in front of the plaintiff and caused the plaintiff to swerve and lose control and a collision occurred.'

 

[18]       In her testimony she did not say a collision occurred but that she swerved when she saw the insured vehicle ahead of her and her vehicle overturned. She said if she had not swerved she would have collided with the motor vehicle.

[19]       Not surprisingly, the defendant did not lead any evidence and pleaded a bare denial.

[20]       It is trite that it is the plaintiff in this instance who must prove her case on a balance of probabilities. This she has failed to do. It seems to me that if her version that she swerved to avoid a pedestrian is to be accepted then that was the causa causans (the decisive cause) of her losing control of her car and it overturning.

[21]       In these circumstances plaintiffs claim is dismissed with costs.

 

 

 

RANCHOD, J

JUDGE OF THE HIGH COURT

 

 

Appearances:

Appearance for the plaintiff:          Adv C Jordaan

Instructed by Nel Van Der Merwe & Smalman Inc

Ground Floor, Block B

Agri-Hub Office Park

477 Witherite Street

Die Wilgers, Pretoria

 

Appearance for the defendant:     Adv L.P Maphelela

Instructed by Rambevha Morobane Attorneys

Loftus Office Park

Building B, 3^RD Floor

416 Kirkness Street

Parkfield Court

Arcadia, Pretoria

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