National Employers' General Insurance Co Ltd v Jagers

• Jurisdiction: South Africa
• Judge: Eksteen AJP, Zietsman J and Van Rensburg J
• Judgment Date: 09 August 1984
• Citation: 1984 (4) SA 437 (E)
• Hearing Date: 01 August 1984
• Court: Eastern Cape Division

Eksteen AJP:

The respondent in this matter was the plaintiff in the Court a quo. He sued the appellant, claiming an amount of R10 879 as damages alleged to have been suffered by him when he E was knocked down by a motor car driven by one Dr Raghavjee and insured by the appellant. Prior to the commencement of the trial, however, the quantum of the respondent's damages was agreed upon, and the trial therefore proceeded only on the issue of negligence.

It was common cause that the collision had occurred on 29 March 1981 on the main road between East London and King William's F Town near the hamlet called Breidbach, at about 6.30 pm. It was dusk at the time and motor cars on the highway had their lights on.

The respondent's case was that he had come to Breidbach from his home in East London to attend a funeral. The funeral had taken place at about 3 pm, and he had then visited friends of G his in Breidbach. There he had consumed some sorghum beer, and at dusk he says he decided to go and visit other friends of his at Kalashe. Kalashe is situated on the other side of the highway from Breidbach, and it was therefore necessary for the respondent to cross the road to get there.

The road in this area consists of two carriageways, one for traffic from East London to King William's Town, and the other H for traffic in the opposite direction. Each carriageway is some 11,6 metres wide and has two lanes for traffic as well as a tarred shoulder demarcated by a yellow line on either side. The two carriageways themselves are separated from each other by a grass-covered strip.

The respondent says that, coming from Breidbach, he crossed the northern carriageway which carries traffic from King William's I Town to East London, and walked across the grass-covered strip between the two carriageways. He concedes that he was deep in thought and not paying attention to any traffic on the road. When he got to the southern carriageway, carrying traffic from East London to King William's Town, he simply walked on to the road without looking to see whether anything was coming. He crossed the first, or inner traffic

Eksteen AJP

lane and, as he got to the broken white line in the middle of A the road, he suddenly noticed the lights of a car. When he looked up he saw the car a mere seven paces or so from him. He says he jumped back in order to avoid being knocked down but despite his efforts the right front wheel struck his right ankle and he fell down in the road.

It was not quite clear from the respondent's evidence where exactly he was in the road at the time he was struck. At first B he seems to suggest that he was already in the second or outer lane when he was struck, but later on he says that he had not yet crossed the centre white line when he jumped back to avoid the approaching car. In crossexamination he says that he stopped walking and stood still on the white line when he C noticed the approaching car. But then he also says that, although the car was travelling fairly close to the white line, it at no stage crossed over the line into the inner traffic lane. If this is so then it is very difficult to imagine how the car could have hit him after he had jumped backwards to get out of its way.

Dr Raghavjee gives an entirely different version of the collision. He says he was coming from East London to King D William's Town on the southern carriageway, but that he was travelling in the inner lane and not in the outer lane as the respondent says. He says a Kombi was travelling in the outer lane slightly ahead of him and that he was gradually overtaking this Kombi. His lights were on, as it was comparatively dark, and he was travelling at approximately 90 kph. In cross-examination he concedes that his speed might even have been less than that.

E Suddenly, he says, he saw the respondent emerge from in front of the Kombi and move across his line of travel. He immediately applied brakes but was unable to avoid hitting him. He says his right front wheel caught the respondent's right ankle and that respondent fell on the tarred road between the yellow line and the edge of the tar.

F On Dr Raghavjee's version, therefore, the respondent entered the road from the southern side and not from the northern side as respondent says. Furthermore respondent must have crossed the outer lane in front of the Kombi before being knocked down by Dr Raghavjee in the inner lane. On the respondent's version G there was no suggestion of a Kombi travelling along the road at all. In fact he says that Dr Ragvjee was travelling in the outer lane and there was no traffic on the inner lane. He says that after he had been knocked down he fell in the inner lane and had there been any traffic in this lane it would have gone right over him. These two versions are in effect mutually destructive in the sense that the acceptance of the one must H necessarily lead to the rejection of...