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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

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

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

(3)    REVISED

CASE NO:25388/2017

27/11/2019

 

In the matter between:

 

NOBESUTHU BABRAH BALABALA                                                        PLAINTIFF

 

And

 

THE ROAD ACCIDENT FUND                                                                    DEFENDANT

JUDGMENT

 

STRIJDOM AJ

INTRODUCTION

[1]        In this matter the plaintiff instituted an action for the recovery of the delictual damages in terms of the Road Accident Fund Act 56 of 1996 due to injuries sustained by the plaintiff on the 21^st of August 2014 near lsabela Clinic, Kempton Park. At the time of the incident the plaintiff was a pedestrian and the driver of a vehicle with registration letters and numbers [….] (hereinafter refer to as the insured vehicle) upon reversing, struck the plaintiff.

[2]        The parties agreed that the issues of merits and quantum must be separated in terms of the provisions of Rule 33(4) of the Uniform Rules of Court and that the issues of quantum be postponed sine die.

 

The Issues.

[3]        In its plea the defendant denied negligence and put the plaintiff to the proof, alternatively in the event of it being held by the court that the insured driver was negligent, then in that event the defendant avers that the said collision was caused partly by the fault of the insured driver and partly by the fault of the plaintiff.

 

The Plaintiffs Case.

[4]          The plaintiff Babrah Balbala a qualified nurse, testified and her evidence can be summarised as follows:

4.1         On 21 August 2014 at 17h00, she was from a course in Brakpan with other colleagues travelling to lsabela Clinic in Kempton Park.

4.2         When she arrived at lsabela Clinic she alighted from the vehicle and was standing in the parking area having a conversation with one of her colleagues.

4.3         She testified that she was standing approximately eight metres with her back towards the insured vehicle. The insured vehicle reversed from the parking bay at a high speed and struck her from behind whereupon she fell on the ground.

4.4         She further testified that before the insured vehicle collided with her, her colleagues were shouting at the insured driver to stop. After the vehicle collided with her, her colleagues assisted her to stand up. She testified that the driver of the insured vehicle approached her and apologised.

4.5         The Plaintiff testified that she went home and later her right leg become swollen. Her right leg, knee and back was in pain. She testified that she first tried to treat her leg because she is a nurse but was unsuccessful. After three days she went to the doctor and hospital where she received medical treatment.

 

[5]          It was put to the witness in cross-examination that the accident never happened and that she did not sustain the injuries as a result of a accident. She disputes this allegation.

[6]          The evidence of the plaintiff was not seriously contented in cross examination. It was never disputed that the driver of the insured vehicle apologized to the plaintiff after she collided with the plaintiff.

[7]          It was also put to the plaintiff that she was negligent not to keep a proper look out, she denied this.

 

Evaluation of the Plaintiffs evidence.

[8]          The plaintiff gave a detailed and thorough account of the incident in a straight forward manner. She made a favourable impression on the Court as an intelligent witness whose account was truthful and reliable. Her evidence was credible and free from any material contradictions. She impressed the court as a good witness and there is nothing to cast doubt on her veracity concerning the actual incident.

[9]          Although the plaintiff was a single witness her evidence was corroborated in the medico-legal report of the Orthopaedic Surgeon, Dr WE Williams.

[10]      Dr Williams stated in his report that the plaintiff sustained the following injuries:

10.1      Straining injury of the lower back;

10.2      training injury of the right knee;

10.3      Straining injury of the right ankle, involving principally the anterior talofibular ligament.

 

[11]       The defendant closed its case without tendering any evidence;

[12]       It is trite that the onus rests on the plaintiff to prove the defendant's negligence which caused the damages suffered on a balance of probabilities. In order to avoid liability, the defendant must produce evidence to disprove the inference of negligence on his part failing which he\she risks the possibility of being found to be liable for damages suffered by the plaintiff.

[13]       Liability depends on the conduct of the reasonable person. The test for negligence was stated in Kruger v Coetzee 1966(2) SA 428 (A) at 430 E-G as follows:

 

"For the purpose of liability cup/a arises if,·

(a)          A diligent paterfamilias in the position of the defendant;

(i)     Would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss and;

(ii)    Would take reasonable steps to guard against such occurrence and;

(iii)   The defendant failed to take such steps;"

 

[14]       Where the defendant had in the alternative pleaded contributory negligence and an apportionment, the defendant would have to adduce evidence to establish negligence on the part of the plaintiff on a balance of probabilities, Johnson, Daniel James v Road Accident Fund Case Number 13020/2011 GHC para 17, confirming Solomon and Another v Musset and Bright Ltd 1926 AD 427 and 435.

[15]       Section 1 (1) (a) of the Apportionment of Damages Act, Act 34 of 1856 gives a discretion to the court to reduce a plaintiffs claim for damages suffered on a just and equitable basis and to apportion the degree of liability.

[16]      Where apportionment is to be determined, the court is obliged to consider the evidence as a whole in its assessment of the degree of negligence of the parties.

[17]       On a conspectus of all the evidence before me I am persuaded that the plaintiff discharged the onus to prove on a balance of probabilities that the driver of the insured vehicle was negligent. In my view there is a nexus between the accident and the injuries the plaintiff sustained.

[18]       I am also of the view that the insured driver was solely responsible for the collision.

[19]       In the result the following order is given:

19.1     It is ordered that the defendant is 100% liable for the damages incurred by the plaintiff.

19.2     The defendant is ordered to pay the costs in this matter.

 

 

 

JJ STRIJDOM

ACTING JUDGE OF THE HIGH COURT

 

 

 

Matter heard on:                          22 November 2019

Judgment delivered:                    27 November 2019

Counsel for Applicants:               ADV PS MAREMA

Attorneys for Applicants:            LEDWABA Attorneys

Counsel for Plaintiffs:                  ADV MOJAMABU SK

Attorneys for Plaintiffs:               MORARE THOBEJANE INC

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