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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: NO

(2)    OF INTEREST TO OTHER JUDGES: NO

(3)    REVISED: YES

 

CASE NO: 56226/17

 

In the matter between

 

JOHAN ERIC HARWOOD                                                                         PLAINTIFF

 

and

 
ROAD ACCIDENT FUND                                                                          DEFENDANT

 
JUDGMENT

 

VAN DER SCHYFF, AJ

Introduction

[1]        The plaintiff was injured in a motor vehicle collision on 28 July 2016. The matter was set down solely for the determination of the merits.

[2]        Plaintiff averred in the summons that the collision was caused by the sole negligence of the insured driver, who was negligent in one or more of the following respects: (i) he failed to drive with care and consideration for other road users; (ii) he failed to keep a proper look-out to react timeously when he should have done so; (iii) he failed to stay in the proper lane; (iv) he failed to avoid the collision when a reasonable driver could and would have done so; (v) he failed to drive with the skill, care and consideration which a reasonable person would have exercised under the circumstances; and (vi) he failed to be in a proper position to have a clear vision of the road and he failed to avoid the collision when, by exercise of reasonable care, he could and should have done so.

[3]        The defendant pleads in relation to the allegation of its negligence as contained in the summons and stated in paragraph 1 above, as follows: "Admit insofar as it corresponds with the Officer's Accident report if same is not in dispute".

[4]        The Officer's Accident report (the OAR) contains the following description of the accident: ' Na bewering het die bestuurder van voertuig A in Hermon se rigting gery toe voertuig B in die teenoorgestelde rigting kom en die bestuurder vermoedelik beheer verloor het en binne in voertuig A vasgery het'.

 

(Translated: The driver of vehicle A allegedly travelled in the direction of Hermon, and vehicle B was travelling in the opposite direction. The driver of vehicle B allegedly lost control of his vehicle and collided with vehicle A.)

 

Vehicle A was driven by the plaintiff and vehicle B was driven by the insured driver.

 

[5]       A copy of the OAR was handed in without objection and thus serves before this court as evidence. The contents thereof will be considered in the light of the evidence that was adduced.

[6]       It is trite that in trial proceedings parties must formulate their cases and the issues on which evidence must be led, in their pleadings.[1] A defendant cannot, at the trial, rely on a defence, in casu sudden emergency, which is not pleaded. Neither can a plea of apportionment of damages be considered in the absence of specific allegations concerning the plaintiff's negligence.

[7]       In the present matter, the defendant attempted to lead evidence that (i) the plaintiff was contributory negligent, and (ii) the defendant was faced with a sudden emergency. The plaintiff objected to the leading of the evidence on the ground that the necessary facta probanda in supporting these defences were not pleaded. I upheld the objections.[2] As a result the evidence before the court needs to be assessed in order to determine whether the plaintiff satisfied the burden of proving negligence.

 

The case for the plaintiff

[8]        The plaintiff testified that he was traveling on the Hermon Road on 28 July 2016. The road consisted of two lanes, one in each direction.

[9]        It was raining hard. His windscreen wipers were on full speed. His visibility was impaired by the rain. As a result he drove at 50km/ph although the speed limit on the road is 60km/ph.

[10]     He observed a truck approaching from the opposite direction. He first noticed the truck when it was approximately 50m in front of him. When the truck was approximately 30m in front of him, the tail of the truck suddenly started to swerve in his lane and then the truck skidded into his lane. He swerved to his left and had no choice but to slam on the brakes and brace for impact. The truck collided with his vehicle on the left hand side of the lane he was traveling in. He testified that he was unable to swerve to the other side of the road because of approaching traffic in that lane.

[11]       In cross-examination by counsel for the defendant, Mr Moteno the plaintiff stated that he was on his way to a conference which was to start at 09h00. He still had a distance of approximately 40km to travel to the venue. Because of the rain, he allowed himself an hour traveling time to reach his destination. When it was put to the plaintiff during cross-examination that the defendant will lead evidence to the effect that he was driving at an excessive speed, the plaintiffs attorney objected contending that the evidence was inadmissible on the ground that this ground of negligence was not pleaded in the plea. In the exchange that followed I enquired from counsel whether in view of the absence of any pleaded negligence, the issue could be addressed by way of cross-examination. When the court resumed after a tea adjournment, counsel withdrew the question.

[12]       The remainder of the cross-examination dealt with the possibility of any objects that could have obstructed the plaintiff's view, which the plaintiff denied.

[13]     The plaintiff then closed his case.

 

The case for the defendant

[14]     The defendant called Mr Lucas Morewa as a witness.

[15]     Mr Morewa testified that he was a passenger in the insured vehicle. He testified that the insured driver was driving at a speed between 60 - 70 km/ph.

[16]     He explained that a vehicle entered the road at a point approximately 500m in front of the truck. This vehicle did then not drive in the yellow line 'as he was supposed to do' but remained in the lane in front of the truck. When the insured driver applied his brakes the truck started to skid.

[17]     Plaintiffs attorney objected to the evidence being led in so far as it was led in an attempt to set out a defence of sudden emergency.

[18]       Mr Morewa further testified that the truck skidded over the lane of the oncoming traffic and came to a stop. At that point the plaintiff, who he alleged was traveling at an excessive speed, collided with the truck.

[19]       Plaintiffs attorney objected to the evidence being led in so far as it was led in an attempt to prove contributory negligence on the plaintiffs side.

 

Applicable legal principles

[20]       It is common cause that the point of impact was on the far left side of the lane in which the plaintiff was driving. The principle has been set out in President Insurance v Tshabalala 1981 (1) SA 1016 (A) that a driver who remains on his correct side of the road will rarely be found to be negligent. The fact that a collision occurred on the incorrect side of the road may constitute evidence of prima facie negligence on the part of the driver who travelled on the incorrect side of the road.[3]

[21]      Once a plaintiff establishes that the collision occurred on his/her side of the road, the defendant has to explain the presence of the insured driver on the incorrect side of the road. If the explanation is insufficient to dispel the inference of negligence arising from the insured driver's presence on the incorrect side of the road, the insured driver will be held negligent.[4]

[22]       As soon as a plaintiff adduces evidence indicating negligence on the part of the defendant driver, the burden of proof rests with the latter to raise and prove the existence of the defence of sudden emergency.[5]

[23]       In this matter the defendant admitted the insured driver's negligence but the plea does not contain a single averment indicating any negligence on the plaintiffs side, or substantiating a defence of sudden emergency. In the absence of an application for an amendment of the plea, the contributory negligence and sudden emergency plea cannot be entertained. In Ndaba v Purchase [1991] 2 All SA 63 (E) 63 the court held in regard to the absence of allegations of negligence in the plea, '[t]hat being so, it seems to me that the case resolved itself into a so-called one percenter and that no question of contributing negligence or apportionment of damages could arise'. The court then referred to the judgment in AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (AD) where the then Appellate Division held that 'it was not necessary for a Defendant to plead an apportionment of damages provided (and that is important), provided that the negligence of the Plaintiff had been placed in issue'.

[23]     On the evidence before this court, I am satisfied that the insured driver's negligence was the sole cause of the collision.

 

ORDER

[25]       In the result the following order is made:

[1]       The defendant is liable to pay 100% of the plaintiff s proven or agreed damages.

[2]       The defendant is to pay the costs of the action on a party and party scale.

 

 

E VAN DER SCHYFF
Acting Judge of the Gauteng Division, Pretoria

 

 

For the Plaintiff:                 Mr Kriek

Instructed by:                      Sylvia Venter Attorneys

 

For the Defendant:            Adv Moteno

Instructed by:                     Mothle Jooma Sabdia Inc

 

Date of trial:                       15 August 2019

Date of judgment:              19 August 2019

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