Tsofela v Road Accident Fund
| Jurisdiction | South Africa |
| Judge | Petse ADJP |
| Judgment Date | 30 October 2008 |
| Citation | 2008 JDR 1478 (Tk) |
| Docket Number | 394/2007 |
| Court | Transkei Division |
Petse ADJP:
[1] This is an action for damages under the Road Accident Act 56 of 1996.
[2] Almost three years ago and on the Port St Johns to Mthatha R61 provincial road and at or in the immediate vicinity of Nkawukazi locality, Gxulu administrative area in the district of Libode a collision occurred between a motor vehicle bearing registration letters and numbers BVX 771 EC of which the plaintiff was the driver and another motor vehicle bearing registration letters and numbers DBX 908 EC ("the insured vehicle") which was immediately prior to the collision driven by a Mr
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Nkosiphendule Zixelile ("Zixelile") who was at all times material to the collision aforesaid a resident of Buthulo administrative area in the district of Port St Johns.
[3] The plaintiff sustained serious bodily injuries in the collision as a result of which he is now wheelchair bound and has as a consequence of the aforesaid injuries suffered damages.
[4] In his particulars of claim the plaintiff has alleged that the aforesaid collision was entirely attributable to the sole negligence of the driver of the insured vehicle, the said Zixelile, who is alleged to have been negligent in one, some or all the respects pleaded in paragraph 7 of the plaintiff's particulars of claim.
[5] In its plea, as amended on 27 February 2008, the defendant has denied that Zixelile was negligent in the respects alleged or at all. In amplification of this denial the defendant has averred, in the first place, that it was faced with a situation of sudden emergency which was brought about as a result of the plaintiff attempting to execute a U-turn without having given any indication, whatsoever of his intention to do so at a time when it was both dangerous and inopportune to do so. In the second place the defendant has averred that the collision aforesaid was attributable to the sole negligence of the plaintiff who was negligent in one, some or all of the respects pleaded in paras 4.2 to 4.5 of the defendant's plea. In the alternative the defendant's plea avers that the aforesaid collision was caused also by plaintiff's contributory negligence in the respects alleged and thus whatever damages that the plaintiff may prove to have suffered would fall to be reduced in terms of sec 1(1) of the Apportionment of Damages Act 34 of 1956.
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[6] At the commencement of the trial before me on 22 February 2008 and pursuant to their agreement recorded in their second pre-trial minute filed of record on 22 February 2008 the parties jointly made an application for the separation of the issues of liability and quantum being of the view that the trial should run on the issue of liability only with the issue of quantum to stand over for determination at a later stage, if necessary.
[7] Being satisfied that this was an eminently reasonable approach to adopt I made an order by agreement in terms of Rule 33(4) of the Uniform Rules separating the issues at the behest of the parties.
[8] Before the adduction of evidence the Court was informed by counsel that the Police Accident Report and more particularly the sketch plan in relation thereto was prepared by the Police without any input from the drivers of the two motor vehicles involved in the collision giving rise to this action and consequently all indications from the drivers were that they were not ad idem in relation to the point of impact. Consequently counsel were of the considered view that it was not only desirable but indeed eminently advisable that an inspection - in- loco be
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held before any evidence is adduced as this would assist the Court gain a better insight into the versions that would be presented by the parties which are diametrically opposed.
[9] I deferred to counsel's better judgment on this issue and readily acceded to their request to conduct an inspection – in – loco.
[10] On resumption counsel for the parties had prepared a document titled "Minutes of Observations at The Inspection – in – loco" which document, being a product of their joint endeavours, was, by mutual agreement, admitted as Exhibit "A" the content of which was then read into the record.
[11] I consider that it would be convenient at this juncture if I were to set out the content of Exhibit "A". It records the following :
"At the inspection – in – loco that was attended by the Court on the R61 road between Mthatha and Port St Johns on 27 February 2008 the following observations were made both by the Court and the parties :
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The distance from the High Court to Nkawukazi Junction is about 12,5 kilometres.
There was no agreement between the parties' witnesses with regard to the spot where the impact between the plaintiff's motor vehicle and the insured vehicle took place.
On the plaintiff's version the point of impact is directly opposite the middle of Zitatele Junction and it is three paces from the right edge of the R61 road facing Mthatha.
On the defendant's witnesses version the point of impact is 99 paces from Zitatele Junction towards Mthatha and is six and a half paces from the right edge of the road facing Mthatha almost at the centre of the road.
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It was noted that the R61 road is level for a distance of about 700 metres on either side of Zitatele Junction.
The width of the R61 road near Zitatele Junction is 15 paces.
Presently, the R61 road surface is newly tarred and there are no road markings like the white centre line or the yellow line at the edge of the road on either side.
The plaintiff contended that the width of Zitatele Junction, as it presently stands, is different from what it was at the time of the accident by which time it was narrower.
The distance between Nkawukazi Junction, which is on the left-hand side of the road facing Mthatha and Zitatele Junction, which is on the right-hand side of the road facing Mthatha is 37 paces.
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From Port St Johns direction towards Zitatele Junction facing Mthatha at a distance of about 700 to 800 metres the road dips in.
After Zitatele Junction on the right-hand side facing Mthatha there is another small turnoff also towards Zitatele Administrative Area, which is about 500 metres from Zitatele Junction."
[12] I digress to mention in passing that from the inspection-in-loco the divergent versions of the drivers became readily apparent. Two different points of impact which are approximately 99 paces apart were identified by the drivers. I will return to this aspect of the case when I evaluate the versions of the parties. Suffice it to say at this juncture that these versions are mutually exclusive.
[13] At the trial a Mr Mzondeli Marwaya ("Mzondeli") testified on behalf of the plaintiff as did the plaintiff.
[14] Mzondeli told this Court that he is ordinarily residing at Zitatele locality in Gxulu administrative area, Libode. On the day in question he left his home and walked on foot to a bus stop on the R61 provincial road
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intending to hitch a hike to Mthatha. Whilst still standing at the bus stop he saw three vehicles travelling on the road proceeding towards the Mthatha direction. The vehicle travelling ahead was a Nissan 1400 light delivery van ("Nissan") followed by two sedans. Then he observed that the Nissan was signalling its intention to execute a right turn into Zitatele locality. The two sedans that were following behind drove past the Nissan on its left side at which stage a Venture motor vehicle ("the Venture") emerged and as the Nissan was in the process of executing its right-turning manoeuvre a collision occurred between the Nissan and the Venture when the latter vehicle attempted to overtake the former. The impact of the collision caused both vehicles to career off the road and both eventually came to a stop next to the fence on the northern side of the road.
[15] A large group of persons of which he was part rushed to the scene at which the Nissan and the Venture had come to a stop. Upon arrival at the scene he observed that the driver of the Nissan whom he knew by sight only was trapped inside his vehicle and was as well apparently unconscious. He was extricated from the wreckage and was then conveyed to Hospital by an ambulance which was summonsed to the scene by Traffic Officers who had also arrived at the scene. He in turn conveyed the plaintiff's wife who was travelling together with the
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plaintiff in the Nissan to her home in a motor vehicle belonging to his neighbour one Mr Luthando Vuke. He said as far as he could ascertain the plaintiff's wife was, apart from being in a state of shock, otherwise uninjured. He went on to say that the Nissan had already driven past the turn-off to Nkawukazi location (which it is common cause was to the left of the road) when it collided with the Venture. When it was put to him under cross-examination that there was a road block manned by Traffic Officers a short distance from the Gxulu junction he said that he never saw one on the day in question. Mzondeleli also disputed what was put to him under cross-examination that the plaintiff had initially swerved to his extreme left over the yellow line before attempting to execute a U-turn in a desperate attempt to evade the road block without regard to the presence of oncoming traffic and in particular the Venture which was travelling in a westerly direction.
[16] The plaintiff who became wheelchair-bound as a consequence of the injuries he sustained in the collision also testified at the trial. He told the Court that on the day in...
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