MAWETHU SYDNEY MTSHAKAZA

Transcription

1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE LOCAL DIVISION: MTHATHA CASE NO. 57/2012 In the matter between: MAWETHU SYDNEY MTSHAKAZA Plaintiff And ROAD ACCIDENT FUND Defendant JUDGMENT DUNYWA AJ [1] This is action for damages for bodily injuries sustained in a collision the two motor vehicles with registration letters and numbers [...] a taxi and [...] a health emergency vehicle which occurred on 25 October 2008 in R61 road from Engcobo to Mthatha. 1

2 [2] The health emergency vehicle was driven on R61 from Mthatha towards Engcobo. On that road after Mandela Park there is an off ramp leaving R61 to Bedford hospital on the left side of the road. The insured driver was joining R61 from Bedford hospital direction. There is a stop sign for all motor vehicles joining the R 61 from Bedford hospital direction to the T junction. The collision took place at the T junction of the Bedford hospital off ramp. [3] The taxi was driven by Mawethu Mtshakaza (Plaintiff) and the Health Emergency motor vehicle was driven by Mziwakhe Ngidi (the insured driver) respectively at the time of the collision. Both drivers sustained severe bodily injuries as a result of the collision. [4] The plaintiff instituted action against the Road Accident Fund on the basis that the driver of the insured car was negligent. The trial proceeded after the court ordered the separation of merits from quantum in terms of Rule 33(4) of the Uniform Rules of Court. [5] The plaintiff s claim is set out in the particulars of claim as follows; SPECIAL DAMAGES (1) Past medical expenses R (2) Future medical expenses R (3) Loss of earning and Loss of earning capacity R GENERAL DAMAGES 2

3 (1) Pain and suffering R (2) Shock and discomfort R (3) Disfigurement R Total R [6] Mabandla Nxabethi testified for the plaintiff and stated that he is a member of the South African Police Services. On 25 October 2008 he attended a motor vehicle accident which took place on R61 next to Bedford off ramp. He found both drivers and motor vehicles at the scene. [7] He then drew the sketch plan and took measurements not in accordance with the scale. He measured the distance between different points using feet. He explained that the key to the plan reads as follows: A in the sketch plan is the insured vehicle after the accident, which stopped next to the stop sign. The stop sign is for the motor vehicles using the road from Bedford to join the R61. The motor vehicle was on its correct lane, closer to the edge of the road. [8] B is the plaintiff s vehicle which was off the road, opposite the off ramp to Bedford, on the other side of the road. The plaintiff s car was closer to the lane to Mthatha away from the edge of the road. It was closer to the road sign showing the directions marked C. B was 7 metres from the edge of the road in a ditch. C is the road s sign, a fixed object showing directions that Mthatha is to the East and Engcobo to the West. D and E are the edges of the R61 road, on different sides. 3

4 [9] E which was meant to be F if it was not for the mistake of Mr Nxabethi which he admitted is the point of impact very close to the centre line having double barrier lines. The point of impact is on the lane to Mthatha. [10] G is the tyre marks left on the road, as result sudden application of brakes. The tyre marks start before the off ramp to Bedford on the lane leading to Engcobo ending on the Bedford hospital off ramp. He assumed that they could have been caused by the insured vehicle A. The tyre marks were leading to the centre line in the middle of the road. The tyre marks indicate that the insured car was driven on the left lane to Engcobo and the motor vehicle slightly moved towards the centre line. [11] Mr Nxabethi interviewed the driver of the insured car who said the plaintiff s car never stopped at the stop sign F it just joined the road from the Bedford hospital direction. He was not able to talk to the plaintiff because he was badly injured. The point of impact was not shown to him by the two drivers. He could see the point of impact on the road from the debris and the spilling of oil. It was on the centre or middle of the road. The distance from the point of impact to the plaintiff s car was 20 metres. [12] The driver of the insured vehicle told him that he applied brakes to reduce the speed because the taxi suddenly joined the road without stopping. Both motor vehicles were damaged. The insured vehicle was damaged from the front and more on the driver s side. The plaintiff s motor vehicle was damaged on its side from behind the driver s door, but not necessarily in the middle of the motor vehicle. [13] The plaintiff s evidence confirmed that the accident took place in 2008 at approximately 08h30 pm to 09h00 pm. He was the driver of the motor vehicle 4

5 [...]. He was from Bedford hospital driving towards Mthatha. He stopped the motor vehicle at the stop sign. He saw a motor vehicle approaching from Engcobo direction towards Mthatha. He waited and joined the road after the motor vehicle drove past him. He joined the road and faced Mthatha direction and thereafter he saw two oncoming vehicles. The one car tried to overtake the other. The overtaking car was the insured driver s car. [14] The insured motor vehicle did not manage to overtake fully to return to its correct lane. The plaintiff then swerved to avoid the accident. The insured driver s car hit his car on the driver s door. His motor vehicle was hit and it landed in the ditch. He could have been driving at 20km per hour at the time of the impact because he had recently stopped. He was driving in second gear after leaving the stop sign in first gear. The accident was caused by the insured driver when overtaking. The insured driver s car stopped next to the stop sign, after the accident. It was next to the edge of the road. He could not see clearly how the insured driver s car was damaged. [15] The plaintiff s version is that the insured driver was negligent in that he did not keep the proper lookout. He was driving at excessive speed. The insured vehicle had not appeared when he joined the road. The accident took place after he joined the R61 and he was already far away from the stop sign. The point of impact was in the middle of the left lane his correct side of the road. Later he said the point of impact could have been in the middle of the road because his motor vehicle was facing the yellow line. He denied that the point of impact was infront of the stop sign. The point of impact was far away from the intersection or the T junction. His motor vehicle was on the yellow line when the collision occurred. 5

6 [16] The plaintiff vehemently denied that there were tyre marks from the insured motor vehicle before the stop sign. He disputed that there were tyre marks as reflected at point G in the plan. If the driver of the insured car applied brakes it could have been at the time of the collision. The tyre marks he saw are not before the point of impact, but at the point of impact. [17] He swerved to the yellow line to avoid the accident. The insured vehicle collided with his car on the driver s door and the door was bent to the inside. The insured car was damaged on its front right side and his car was damaged on the side. [18] Mziwakhe Ngidi the driver of the insured car testified that he has worked as a paramedic for the last 22 years. His duties entail the supervision of paramedics and to attend emergencies to stabilize patients. On 25 October 2008 he was attending a patient who had collapsed at Cicirha. He was driving from Mthatha to Engcobo on this R61 road. [19] He was driving a golf car marked like an ambulance. The red beacon lights were on at the top of the car and extra lights were also on next to the headlights. He did not put the siren on. The siren is only used when there is traffic in his lane. There was no traffic in front of him at that particular time. [20] He saw the plaintiff s motor vehicle joining from the Bedford T junction without stopping, at close range. He tried to avoid the accident by driving behind the crossing vehicle, after applying brakes. He was driving at speed of km per hour when the plaintiff s failed to stop at the stop sign. The area has a recommended speed of 80 km per hour. He was driving above the 6

7 speed limit, because the protocol for emergency vehicles allows them to exceed the normal speed limit by 30km per hour. [21] He had no enough time to avoid the accident. He applied brakes to reduce the speed. He hit the plaintiff s car almost on the centre in the area of the seat behind the driver to the area in front of the rear wheels. The front part of his motor vehicle was damaged. His motor vehicle did spin after the collision but remained on its correct side of the road. It is the plaintiff s car which landed in the ditch in front of the stop sign. [22] He saw the plaintiff s car metres before it joined the T junction. He ignored the motor vehicle because he thought it was to stop at the stop sign. He sustained injuries on his arm, leg and mouth. He denied that he was overtaking a motor vehicle, and that he drove on his incorrect side of the road. He never checked the tyre marks that night but attended the scene of accident some weeks after the accident. The point of impact occurred on his side of the road. [23] He further denied that the accident took place beyond the stop sign. The point of impact is at the stop sign where the plaintiff s car was crossing. He managed to control his motor vehicle. In his view the accident never took place in the manner as described by the plaintiff. If the plaintiff s version is correct the two vehicles could have collided head on or grazed each other by sides. The motor vehicles collided at 90 degrees that is his front part of the vehicle landed on the side of the plaintiff s motor vehicle. [24] In his argument the plaintiff averred that the two versions from each party are mutually destructive. He also argued that the speed at which the insured car was driving including his justification was not pleaded. The defendant argued that his version is supported by the first plaintiff witness in that the insured car 7

8 driver applied brakes before reaching the stop sign. The sketch plan also indicates that the accident took place at the stop sign area. If the two versions are mutually destructive, his version is more probable. [25] It is common cause that the accident took place between the two motor vehicles. It is not an issue that plaintiff s car was damaged on the side and defendants car on the front. The issue for determination by this court is how the accident occurred and who the negligent party was. The court should if necessary decide on contributory negligence. [26] The onus is on plaintiff to prove on balance of probabilities that there was negligence on the part of the insured driver. The party who failed to exercise a proper look out in this case is the one who was negligent. In Nogude v Union and South-West Africa Insurance Co Ltd 1995(3) SA 685(A) at page 688 Jansen JA stated: A proper look-out entails a continuous scanning of the road ahead, from side to side, for obstructions or potential obstructions(sometimes called general look out : cf. Rondalia Assurance Corporation of SA Ltd v Page and Others 1975, (1) SA 708 (AD) at page 718H 719B. [27] In my view the plaintiff was not a good witness as correctly pointed out by the defendant. Plaintiff s evidence is self-contradictory and to a greater degree it contradicts that of the first plaintiff s own witness. Plaintiff could not accurately indicate where the point of impact was. At one stage he said it was in the middle of his lane and later conceded that it could have been in the middle of the road. He could not clearly state where his motor vehicle was in relation to the yellow line. 8

9 [28] Plaintiff could not explain why the motor vehicles were damaged in front and on the side if they were almost facing each other. The plaintiff s evidence contradicted that of his first witness in relation to the location of the point of impact. Another contradiction relates to the tyre marks which were before the stop sign whereas the plaintiff maintains that they were at the point of impact. [29] The plaintiff s witness testified that the plaintiff s car was damaged behind the driver s door. The same evidence is disputed by plaintiff who testified that his car was damaged on the driver s door resulting in the door being bent to the inside. [30] In considering the probabilities it is important that, the independent witness called by the plaintiff has given evidence which favours the insured driver. The independent witness and the insured driver both agree that the point of impact was at the T junction or stop sign. They both corroborate each other that brakes were applied before the stop sign, inferring that from the tyre marks left on the road. [31] The defendant s version that the plaintiff s car never stopped at the T junction is more probable. This version is supported by the fact that the accident took place at the T junction. It is also supported by the fact that the insured driver applied brakes before reaching the point of impact. [32] It is more probable that if the plaintiff had stopped at the stop sign the accident would not have occurred. The tyre marks are an indication of a sudden application of brakes by the insured driver as testified by the police officer. The question is what would have prompted the insured driver to act in that way. In 9

10 my view it is reasonable to conclude that he reacted to the plaintiff s conduct in failing to stop at the stop sign. [33] The plaintiff s car after the accident landed in a ditch opposite the stop sign. It is more probable that the accident took place at the T junction. It is improbable that a motor vehicle far away from the stop sign could reverse to the stop sign because of the impact. This view is informed by the type of vehicles that is the Golf and taxi combi. Both vehicles were moving in opposite directions if plaintiff s version was to be considered. [34] In my view it has been clearly established that plaintiff was negligent by failing to stop at the stop sign and that he joined the road when it was not safe to do so. Plaintiff did not exercise a proper look out. The last question for determination is whether the plaintiff was the sole cause of the accident or whether the insured driver was contributory negligent. [35] This court must determine whether the insured driver s speed which was in excess of the permissible speed limit contributed to the accident. Whether or not the insured driver had emergency lights on is another disputed fact. The insured driver has testified that he was rushing for an emergency and his emergency lights were on. His evidence which could not be disputed is that their protocol allows them to exceed the speed limit. [36] The deciding factor is whether the insured driver had enough time to avoid the accident. It is the insured driver s evidence that the time was not enough for him to avoid the accident. The insured driver was driving for an emergency, with emergency lights on exceeding the speed limit in accordance with the terms of protocol. A motorist has an important duty to exercise 10

11 reasonable care when approaching a T junction, to avoid a possible collision with another car entering the road from a side road. See, Robinson Bros v Henderson 1928 AD 138 at There is necessarily a certain amount of danger in approaching a crossing, and it is the duty of every driver to exercise reasonable care to avoid coming into collision with another car entering the crossing from a side street. Having seen such car he is not justified in not taking further notice of it, on assumption that the driver is a careful man and may be relied upon to respect his right of way. [37] It is true that the insured driver expected the plaintiff s car to stop at the stop sign. It is also important for the insured driver to realise that travelling on a through road a motorist has a relative and not an absolute right of way when approaching an intersection and he has to have careful regard to other cars coming from the side road. See, Martindale Wolfaardt 1940 AD 235 in [38] The insured driver could not give an explanation as to why he only saw the plaintiff s motor vehicle lights at a short distance of+-30 metres away. It was at night and the insured driver should have seen the lights of the car joining R61 at that off-ramp a long distance away. The insured driver only saw the plaintiff s car for the first time at a short distance of +-20 metres away from the road. The above two omissions by the insured driver are indicative that he was driving at excessive speed. If he was driving at normal speed of 80km/h not exceeding 110km/h, exercising a proper lookout he could have controlled his motor vehicle after applying the brakes and could have avoided the accident. [39] It was the duty of the insured drive to exercise a proper lookout as well and moreover to take all reasonable steps to avoid a collision as soon as it became evident that another motorist, conduct created a hazardous situation on 11

12 the road, in particular by his failure to stop at a stop sign. See, Solomon v Mussett & Bright Ltd 1926 AD 427 at page [40] The insured driver s averment that the accident took place on his side of the road was not supported by the sketch plan which was from the independent witness. The point of impact was on the insured driver s wrong side next to the centre line. If the insured driver swerved to left as he alleges he could have avoided the accident or reduced the impact on collision. It the circumstances I am persuaded to conclude that the insured driver was contributory negligent in failing to exercise a proper lookout. [41] In National Employers General Insurance Company Ltd v Sullivan 1988(1) SA 27 AD Hefer JA at page 36 D-F stated: The driver in a through street, while being required to keep a general look-out, is entitled to assume, in the absence of indications to the contrary, that a driver approaching from a stop street will heed the stop sign operating against him and bring his vehicle to a stop. It is only when it would become apparent to a reasonable man in the position of the driver in the through street that the driver in the stop street does not intend to stop, or will be unable to stop in time, that the duty rests on the through street driver to take appropriate avoiding action. Until that stage is reached it is not incumbent upon him, under normal conditions, to regulate his driving on the assumption that the driver in the stop street may not stop. [42] In my view the plaintiff was substantially more to blame than the insured driver. In my view plaintiff s share of the blame was 70% and that of the insured 30%. [43] Consequently judgment is granted against defendant for; 12

13 (a) (b) 30% of such damages as the plaintiff may prove he suffered as a result of the collision which occurred on 25 October Cost of suit. DUNYWA AJ ACTING JUDGE OF THE HIGH COURT Counsel for the Plaintiff: Instructed by Adv P. Mnqandi Caps Pangwa & Associates Suite 202, Office No 318 City Centre Complex York Road Mthatha Attorney for the Defendant: Mr Duda Mnqandi Inc. No. 18 Owen Street Mthatha 13