Visser v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Chetty J
• Judgment Date: 06 November 2008
• Docket Number: 2605/2007
• Court: South Eastern Cape Local Division
• Hearing Date: 03 November 2008
• Citation: 2008 JDR 1409 (SE)

Chetty J:

[1]

Longwy avenue (Longwy) in the residential suburb of Lorraine in Port Elizabeth run roughly north to south. Along its northern course is a stop sign where it intersects with Verdun Road. Thence southbound Longwy becomes a through road. Approximately 500 metres south of the Verdun road intersection it intersects with Courcelles avenue (Courcelles) from which entry is controlled by stop signs at both its eastern and western juncture with Longwy. On the evening of 26 October 2006 between 10 and 11 p.m. a collision occurred in the vicinity of the intersection of Longwy and Courcelles between a BMW 650 CC motorcycle driven by the plaintiff and a tow truck driven by the insured driver. Arising from the collision the plaintiff instituted an action for damages for personal injury sustained in the collision. By order of this court the merits of the plaintiff's action was separated from its quantum component. This judgment is accordingly confined to determining the issues relating to liability.

[2]

In preparation for trial the parties' legal representatives jointly attended an inspection in loco of the scene of the collision at night and compiled a formal minute of their observations. The latter has

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Chetty J

particular relevance to the issue relating to liability and its reproduction in this judgment is unavoidable. It reads as follows:

"1

. . .

1.1

With the front wheels of the insured vehicle on or behind the white stop line painted on the tar surface of the road, the headlight of an approaching motorcycle, travelling from north to south in Longwy Avenue, disappears from the sight of the driver of the insured vehicle for one or two seconds in the vicinity of the light at the complex entrance on the western side of Longwy Avenue;

1.2

Despite the disappearance from sight of the actual headlight, the light illuminated from the headlight of the approaching motorcycle remains visible to the driver of the insured vehicle throughout.

1.3

If the insured vehicle moves forward over the stop line by one metre or more, then the driver of the insured vehicle has an unimpeded view of the approaching motorcycle from the intersection between Longwy Avenue and Verdun Road, which is approximately 500 metres north of the intersection between Longwy

2008 JDR 1409 p4

Chetty J

and Courcelles Avenues.

2.

The following distances were measured:

2.1

The distance from the intersection between Longwy Avenue and Courcelles Avenue (from the position of the driver of the insured vehicle) to the intersection between Longwy Avenue and Nerina Avenue is 212 paces; and

2.2

The distance from the intersection between Longwy Avenue and Courcelles Avenue (from the position of the driver of the insured vehicle) to the light of the complex entrance on the western side of Longwy Avenue mentioned in paragraph 1.1 above is 295 paces."

It is common cause that the road referred to in paragraph 1.1 is Courcelles.

[3]

During the course of the trial the witnesses were referred to two sets of photographs depicting the area of the collision and its immediate surrounds. These photographs depict Longwy as a fairly straight road

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Chetty J

bounded on either side by wide grassed verges. As alluded to earlier, at the northern extremity of the photographs there is a dip in the road. The intersection of Longwy and Courcelles is clearly...