Nontsele v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Sambudla AJ
• Judgment Date: 02 May 2023
• Citation: 2023 JDR 1614 (ECM)
• Hearing Date: 12 April 2023
• Docket Number: 474/2022
• Court: Eastern Cape Division

Sambudla AJ:

[1]

Sintu Thimna Nontsele, (plaintiff) seeks to recover from the Road Accident Fund (defendant) damages arising from a motor vehicle collision that occurred on 19 February 2019 on N2 National Road, near Sibangweni, Mthatha.

2023 JDR 1614 p2

Sambudla AJ

[2]

On 12 April 2023, by agreement between the parties, merits were separated from quantum. A formal order to that effect was made in terms of Rule 33(4).

[3]

The court was required to determine the issue of negligence and contributory negligence, as the defendant conceded liability during the trial.

[4]

Plaintiff was the only factual witness called to testify and the defendant failed to call any witness.

[5]

The following facts are common cause and/or at least not in dispute:

At about 14H30 whilst driving on the N2 National Road on a clear, sunny day and dry tarred road surface;

1.

Plaintiff was travelling on dual carriage way road for vehicles en-route to Mthatha from Qumbu direction;

2.

Plaintiff overtook an unknown vehicle, driven by an unknown driver (first driver) [1] en-route to Mthatha, which had occupied the left slow lane of a dual carriage way;

3.

Plaintiff moved his vehicle to the fast lane on his right-hand side, still reserved for vehicle enroute to Mthatha;

4.

The road is divided by a barrier line from oncoming vehicles, that is, from Mthatha to Qumbu direction;

2023 JDR 1614 p3

Sambudla AJ

5.

The road was curvy and sloppy;

6.

To overtake a slow-moving vehicle on left lane, the plaintiff moved his Isuzu Bakkie with registration numbers 111 TLF EC to the fast lane; and

7.

Plaintiff did not have to cross the barrier line and traverse the path of the oncoming traffic when overtaking the slow moving vehicle on the slow lane.

[6]

Suddenly, according to plaintiff, an unknown insured driver (second driver) [2] left his correct lane of travel, whilst overtaking a truck going towards the Qumbu direction.

6.1

On the oncoming traffic side, the second driver, overtook a truck, whilst it was inopportune to do so and therefore traversed the plaintiff's lane of travel;

6.2

To avoid a head-on collision, the plaintiff swerved his vehicle to the path of the vehicle driven by the first driver;

6.3

First driver was still occupying the slow lane, enroute to Mthatha;

6.4

To avoid a head-on collision with the second driver/vehicle, that was overtaking the truck, plaintiff swerved his vehicle to the left-hand side; and

6.5

Plaintiff drove straight into the path of the first driver/vehicle on the slow lane.

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Sambudla AJ

[7]

Plaintiff testified that, he swerved his vehicle into a gap between his car and the first driver/vehicle. Plaintiff testified that, the gap was small and the incident took place quickly and suddenly.

[8]

The first driver/vehicle then collided with the plaintiff's motor vehicle from behind. This caused the plaintiff to lose control of the vehicle, which veered off the road and rolled.

[9]

Plaintiff lost consciousness which he only regained some five days after the collision.

[10]

When plaintiff went to report the collision at the Libode Police Station after his discharge from hospital he was the only driver to attend the scene with the police.

[11]

When the sketch plan was drawn and Accident Report (AOR) compiled by the Libode SAPS member/s, it was the plaintiff who narrated the collision to the police.

[12]

In this regard, the plaintiff only recalls advising SAPS member how the collision occurred and this enabled the SAPS member to complete the AOR and Sketch Plan of the collision scene.

[13]

The defendant led no factual witnesses in relation to the collision.

2023 JDR 1614 p5

Sambudla AJ

[14]

The defendant's counsel was content only to cross-examine the plaintiff regarding contributory negligence.

[15]

In SAR & H v SA Stevedores Services Co Ltd 1983 (1) SA 1066 (A) at 1089, it was held that, contributory negligence cannot be raised as a defence to an action.

[16]

To the extent that, the defendant pleaded contributory negligence, in my mind, the latter sought only to reduce its liability and no more.

[17]

Suffices to say, the plaintiff appeared as a credible witness, who maintained the simplicity of his version regarding how the collision occurred.

[18]

Perhaps, to bolster what would later be argued, it was put to the plaintiff that, on the 19 February 2019, he was able to avoid the collision with the first driver/vehicle by taking precautionary and or preventative measures, in that;

18.1

He could have applied his brakes;

18.2

He could have accelerated his vehicle to prevent and/or avoid colliding with the first driver/ vehicle; and

18.3

Because of his failure to take precautionary measures, plaintiff contributed the collision.

[19]

Plaintiff refuted the above assertions maintaining that, he found himself in a sudden emergency.

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Sambudla AJ

[20]

Regard being heard to the second driver, it was put to the plaintiff that, since it was during the day and the road curvy, there was no impediment preventing plaintiff from being able to see the second driver at a distance.

[21]

This suggestion was once more refuted by the plaintiff and his response to it that, the second driver/vehicle appeared suddenly behind the truck, traversed his path of travel and left him with little room wherein to manoeuvre.

[22]

Surprisingly, during course of the trial, liability was conceded on behalf of the defendant and only the apportionment was left for determination.

[23]

It is therefore unnecessary to decide on liability. I therefore hold the defendant liable for the plaintiffs' proven damages, save for the contributory negligence

[24]

In the following paragraphs I traverse whether there is any fault attributable to the plaintiff in the form of contributory negligence and the extent of apportionment of damages, if any.

Test for Negligence

[25]

The test for negligence was aptly stated in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G, and I need not repeat herein.

[26]

The plaintiff took a gap where none existed and this resulted in the first driver colliding with the plaintiff from the back. Plaintiff caused a sudden

2023 JDR 1614 p7

Sambudla AJ

emergency to the first driver in that, the plaintiff changed lanes when it was not opportune for him to do so.

[27]

A person cannot be held liable if he has not caused any damaged, see mCubed International (Pty) Ltd and Another v Singer and Others NNo. [3]...