Smith v SA Eagle Insurance Co Ltd

• Jurisdiction: South Africa
• Citation: 1986 (2) SA 314 (SE)

Smith v SA Eagle Insurance Co Ltd
1986 (2) SA 314 (SE)

1986 (2) SA p314

Citation	1986 (2) SA 314 (SE)
Court	South Eastern Cape Local Division
Judge	Howie J
Heard	August 20, 1985
Judgment	August 23, 1985

Flynote : Sleutelwoorde C

Negligence — Action for damages — Apportionment of damages — Collision between right-turning motorist and D motor-cyclist proceeding through intersection — Motorist having failed to see motor-cyclist at any stage prior to collision — Motor-cyclist having failed to observe turning motor car for most of period of 4½ seconds from commencement of turn at centre of intersection until collision — Motor-cyclist could have stopped timeously had he kept a E proper look-out — Court apportioning motorist's degree of fault at 75% and motor-cyclist's at 25%.

Headnote : Kopnota

In issue in an action for damages for bodily injuries sustained by the plaintiff in a collision between the motor-cycle he was riding and a motor car insured by the defendant in terms of the provisions of the Compulsory Motor Vehicle Insurance Act 56 of 1972, was the question whether the plaintiff was causally negligent in relation to the collision (it having been conceded F in argument that the driver of the motor car was negligent) and, if so, the degree of fault of the plaintiff and the driver of the motor car. It appeared that the motor car had turned right at an intersection and had travelled across the line of travel of the plaintiff who was proceeding through the intersection. At no stage prior to the collision had the driver of the motor car seen the plaintiff. The plaintiff only saw the G motor car when it was very close to his motor-cycle. From the time that the motor car commenced turning to the right from the centre of the intersection until the moment of impact, about 4½ seconds had elapsed. The plaintiff had failed to observe the motor car during most of this period and conceded in evidence that, had he observed the motor car during most of this period and conceded in evidence that, had he observed the motor car from the time it commenced turning, as a reasonable man would have done, he would have been able to stop timeously or even to H have braked sufficiently firmly to have allowed the motor car to pass safely in front of him.

Held, that the plaintiff was causally negligent in relation to the collision.

Held, further, that the plaintiff's degree of fault should be assessed at 25% and that of the motorist at 75%.

Case Information

Civil trial in an action for damages. The facts appear from the I reasons for judgment.

S G Rein for the plaintiff.

H J Liebenberg for the defendant.

Cur adv vult.

Postea (August 23). J

1986 (2) SA p315

Judgment

Howie J:

A This is an action under Act 56 of 1972.

At about 8.15 am on 15 September 1981 and in Kempston Road, Port Elizabeth, opposite the entrance to the premises of General Motors, a Volkswagen beetle motor car, insured by defendant, was involved in a collision with a motor-cycle driven by plaintiff. Plaintiff was injured and sues to recover B his damages.

On the issue of negligence, plaintiff's case is that the driver of the insured vehicle, Mrs Graves, was solely at fault in relation to the collision.

In its plea defendant denied that Mrs Graves was negligent and alleged that the collision was due entirely to negligence on the part of the plaintiff. However, at the argument stage it was conceded, correctly in my view, that Mrs Graves was C causally negligent. The sole issue on the merits therefore is whether defendant has proved that plaintiff was also negligent in relation to the collision.

The facts are shortly as follows:

Kempston Road runs from west to east. Cresswell Street leads off the northern side of Kempston Road. It is a right-angled D intersection. On the southern border of the intersection opposite Cresswell Street is the General Motors entrance. The intersection is robot-controlled on all four side. The relevant stretch of Kempston Road is straight and level. East of the intersection, the southern half of Kempston Road is about 13 metres in breadth and is divided into four lanes of E approximately equal width, whereas west of the intersection the southern half is narrower, carrying only three lanes. The extra lane east of the intersection is the lane nearest the centre of the road and is for the exclusive use of traffic wishing to turn northwards into Cresswell Street. The northern half of Kempston Road has a matching configuration, the F centre-most lane west of the intersection being for traffic intending to turn right into the General Motors premises. The centre of the intersection is demarcated by a circle painted in white on the road surface.

Prior to the collision, Mrs Graves, an employee of General Motors, had travelled from west to east in the extreme right lane on the northern half of Kempston Road. She stopped at the G intersection because the red light was against her. When the light changed to green she drove forward and stopped with the front of her car at the centre circle, preparatory to turning right across Kempston Road towards General Motors. She looked for oncoming traffic in the southern half of Kempston Road, but failed to see plaintiff's motor-cycle. To her it appeared that H there was no approaching traffic which would endanger her turn or be endangered by it. She proceeded to execute the turn and drove at about 8 km/h towards the General Motors entrance. Meanwhile, plaintiff was driving westwards in the southern-most lane towards the intersection at between 40 and 45 km/h. The green light was in his favour. His line of travel was about two metres from the pavement. His attention was focused mainly on I the traffic lights on the southern pavement. He paid no heed to traffic in the intersection and saw the insured vehicle for the first time when it was very close to his motor-cycle. He showed in Court a distance of about one metre. That must be an incorrect estimate for he had time to react. He swung the motor-cycle to the left, he succeeded in deviating only a foot J or two before the impact occurred.

1986 (2) SA p316

Howie J

A The impact with the insured vehicle he described by saying "toe het sy my gestamp". The motor-cycle must therefore have been partially in front of the car on...