Barnard v Road Accident Fund
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Van der Schyff J |
| Judgment Date | 14 September 2023 |
| Citation | 2023 JDR 3531 (GP) |
| Hearing Date | 31 August 2023 |
| Docket Number | 35094/2020 |
| Court | Gauteng Division, Pretoria |
Van der Schyff J:
Introduction
The plaintiff was involved in a motor vehicle accident on 23 June 2018. The plaintiff was the driver of the motor vehicle. It is the plaintiff’s case that he struck a donkey
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that was hit by another motor vehicle and left on the road surface. The defendant questioned whether the animal was hit by another vehicle, and if the court found that it was, it raised the aspect of contributory negligence on the plaintiff’s side. Merits and quantum are in dispute. This trial deals only with the merits, as the plaintiff’s Rule 33(4) application to separate merits and quantum was granted.
Evidence
Two witnesses testified on behalf of the plaintiff, to wit, the plaintiff and his fiancée, who was a passenger in the vehicle. The parties also agreed that the documents presented to the court would be accepted as evidence, and there would be no need to call the authors.
The plaintiff testified that he has a code 14 driver’s licence. On the day of the accident, he left his home in Hoedspruit around 2h30 in the morning with his fiancée and their three children to visit family in the Free State. Everybody’s seatbelts were fastened. He frequently drives on the road in question.
They travelled on a two-lane tar road. His windscreen was clean, and the lights were in a working condition. The road was dry, and it was not raining. He passed between the tunnel and Ohrigstad. He approached a bend in the road. He was driving within the speed limit of 80km/ph. After the bend, the road is straight but from his side with an incline. Exiting the bend, he saw an oncoming vehicle with its lights on bright. He flicked his lights a few times, but the approaching driver did not dim its lights. The car’s lights blinded him, and he struck something in his lane when the car was next to him. He lost control, and the vehicle rolled over. When the vehicle stopped, he enquired about his passengers’ safety. It became apparent that one of the children was fatally injured.
After he exited the vehicle and tended to his family members, he walked around the scene to see what he struck. Evidently, a black (dark-colored) donkey was lying in his travel lane. As he walked around the scene, he saw indications in the other lane that the donkey had previously been struck by another vehicle; he found pieces of
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hair, intestines, and blood on the road. He did not see other donkeys in the area. He testified that he could not have done anything to avoid colliding with the object in the road. He added during cross-examination that he would also have hit the donkey if it was on its feet as he was blinded by the approaching vehicle.
The second witness confirmed the plaintiff’s evidence. She testified that when they exited the bend and saw the approaching vehicle’s lights, the plaintiff slowed down. She testified that the plaintiff could not swerve to the other lane because the vehicle in the other lane was next to them. The plaintiff testified that he did not reduce speed when he saw the approaching vehicle.
When the police arrived, they took photos of the accident scene. They did not take photos of the blood, intestines, and hair in the other lane. A report was handed in from Toyota wherein it is explained that the airbags did not deploy because the point of impact was too low.
During cross-examination, it was put to the plaintiff that he was driving at an excessive speed. Counsel referred the plaintiff to the report...
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