Body Corporate of Costando v Kiggundu and Another (12811/2013) [2014] ZAGPPHC 676 (5 September 2014)

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

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 41333/11

DATE: 26 SEPTEMBER 2014

In the matter between:

D PICOTA......................................................................................................................................PLAINTIFF

and

ROAD COLLISION FUND.......................................................................................................DEFENDANT

JUDGMENT

MODIBA AJ:

1. This is a damages claim for personal injuries arising out of a motor vehicle collision. By agreement between the parties, the court has been requested to separate the merits from the quantum in terms of rule 34 of the Uniform Rules of Court and to postpone the quantum trial sine die. The Court is only required to adjudicate on the merits of the plaintiffs claim.

2. It is common cause that on 16 July 2009 between 16:30 and 17:00 at Ring Road East in Alberton, a collision occurred between a motorcycle driven by the plaintiff and a motor vehicle driven by the insured driver. At the point of the collision, Ring Road East is tarred. It is also a dual carriage way with double lanes on each side, divided by a paved and garden centre in the middle. The weather was clear. Visibility was good. The plaintiff was driving separate motorcycles with his friend Francois Booysen (Booysen) in a staggered formation. Booysen was driving in front on the right side of the left lane followed two meters behind by the plaintiff who was driving on the left side of the left lane. In front of the plaintiff and Booysen on the right lane, a Toyota motor vehicle was driving in the same direction.

3. There is a dispute between the parties regarding how the motor vehicle collision occurred. The versions of the parties regarding the cause of the collision are mutually destructive. The issue to be adjudicated upon is that of negligence. The Court ought to determine if the insured driver was the sole cause of the collision. If found that the insured driver was not the sole cause of the collision, the Court ought to determine if the plaintiff contributed to the collision in anyway.

4. The test for determining mutually destructive versions as set out in Stellenbosch Farmers Winery v Martell 2003 (1) SA 11 SCA case has been applied repeatedly by our courts.

5. The plaintiff testified in person. Booysen also testified on his behalf. The insured driver was the defendant's only witness.

6. The Plaintiff testified that on the day in question, as the two motorcycles were driving on the left lane along Ring Road East, they saw a Toyota motor vehicle on the right lane. The Toyota had stopped at the traffic lights ahead of them. They slowed down to avoid stopping at the traffic lights and as they approached, the traffic lights turned green and they drove past the insured driver. About 200 meters from where they passed the Toyota, he noticed that the lights of the cars in front of them were on and that the cars were slowing down. Ahead of them on the left lane was a truck. They decided not to stop behind it. 30 meters towards the truck, Booysen decided to indicate right and moved to the right lane parallel to the truck and ahead of the Toyota. He also indicated right and followed Booysen. The Toyota was approaching 40 meters behind them on the right lane. 10 seconds later, the Toyota collided with his motorcycle from behind.

7.Booysen's evidence was consistent with the plaintiffs in material respects. Their evidence differed in respect of distances from which they were driving from the car in front of them and the insured driver’s car. Given that they were not driving parallel to each other, such differences should be expected because each witness testified from his personal perspective. The differences also indicate there was no collusion between the two witnesses.

8. According to Booysen, when he passed the truck to the right lane ahead of the Toyota, the Toyota was 30 meters behind him. 70 meters ahead of him was a bakkie. When he was at a distance of about 40 meters away from the bakkie, he heard a thud sound. Shortly thereafter, the Toyota bumped his motorcycle from the back. Then he heard the sound of breaking tires. His motorcycle became lodged on the Toyota such that he had to push it away to dislodge it from the Toyota. When the Toyota bumped him, he was stationary behind the bakkie and had put his feet on the ground.

9. The insured driver testified that the two motorcycles suddenly moved to the right lane in front of him. They were driving faster than the traffic flow. There was no space for any motor vehicle or motorcycle to fit between his motor vehicle and the motor vehicle in front of him because he was driving at 50 km p/h 2-3 meters behind the motor vehicle in front. He only applied brakes when he saw the plaintiff’s motorcycle. By then it was too late to avoid the collision. As a result, he rear ended the plaintiff’s motorcycle. He denied colliding with Booysen's motorcycle. He also disputed that the plaintiff and Booysen were following a truck prior to moving to the right line. He contended that he did not collide with Booysen's motorcycle because Booysen quickly moved to the far right side of the right lane.

10. Under cross examination, when Counsel for the Plaintiff requested the insured driver to clarify inconsistencies between the statement he made to the police and his evidence, the insured driver disavowed the statement. He testified that he made two statements to the police. He made the first statement immediately after the collision. He made the second one approximately a month later, when his first statement could not be found. He contended that the statement used by counsel for the plaintiff during cross examination was neither of the two statements. However, during re-examination, the defendant's Counsel used the same statement that the insured driver had disavowed to get him to point out aspects written in the statement that he did not tell the police. He testified that he never told the police that Booysen’s motorcycle collided with the motor vehicle that was driving in front of him. To my surprise, counsel for the plaintiff did not object to this line of questioning. In my view, the insured driver may not disavow a statement and when it is convenient for him, use it to show that the police took down his statement incorrectly.

11.I am of the further view that, the insured driver was not a reliable and a credible witness. He disavowed the statement he made to the police and could not explain where the police took the details of the collision from. He also could not explain where the police took the version set out in the statement from. He could not explain who could have made the statement made to Alberton SAPS at 5pm on the day of the collision, using his name. It is common cause that the plaintiff did not make a statement to the police on the day of the collision. On the probabilities, no person other than the insured driver made a statement to the police on the day in question. The statement he made to the police is the one admitted as an exhibit during the trial which he sought to disavow.

12. The insured driver changed his version regarding whether he applied his brakes or not and when he did so. Initially, he testified that he only applied breaks when he saw the plaintiffs motorcycle. This could mean that he did not see Booysen's motorcycle which moved right ahead of the plaintiffs motorcycle. He later testified that there was no time for him to apply breaks because everything happened so fast.

13. In what in my view is a bizarre twist in the insured driver's version, he disputed the plaintiffs evidence that he was transported by ambulance from the scene of the collision to the hospital. He could not explain the ambulance invoice with the date and time the plaintiff was collected from the scene of the collision to the hospital.

14. The insured driver's version is improbable for several reasons. It is improbable that Booysen could manage to pass over to the far side of the right lane in front of his vehicle in the light of his evidence that there was not enough space between his motor vehicle and the bakkie in front of him for another motor vehicle or even a motorcycle to fit in. If his version was true, he should have collided with Booysen before colliding with the plaintiff’s motor vehicle. On the probabilities, the insured driver was not keeping a proper look out and for that reason, does not know how the collision occurred. According to him, Booysen collided with the bakkie in front. This is denied by Booysen. According to both the plaintiff and Booysen, it is the plaintiff who collided with the bakkie that was in front. Interestingly, according to the statement he made to the police, it is Booysen who collided with the bakkie that was driving in front of him. In the statement to the police, he also denied colliding with Booysen's motorcycle when according to Booysen he did. I also find it improbable that he would drive 2 to 3 meters without colliding with a slower driving motor vehicle in front.

15. In the aforegoing, the insured driver's evidence is improbable and stands to be rejected. On the probabilities, he does not know how the motor vehicle collision occurred. He failed to keep a proper lookout while driving on the road when the collision occurred. He also failed to adjust his speed to accommodate the two motor cycles that had moved to the right lane in front of him. Therefore, the motor vehicle collision was caused by negligence on the part of the insured driver.

16. It is trite that the defendant must allege and prove contributory negligence. The plaintiff was never asked if there were any measures he could have taken to avoid the collision and whether he took such measures.

17. Counsel for the defendant submitted that the plaintiff followed Booysen blindly when he moved to the right without first checking if it was safe for him to do so and for that reason, he was not keeping a proper look out. He followed Booysen when it was not safe for him to do so. While this is true, at the time when both the plaintiff and Booysen moved right, there was no danger. The Toyota following 70 and 40 meters behind the respective motorcycles. The collision only occurred 10 seconds after the plaintiff, who was the last one to move to the right lane, had done so. At the time, Booysen's motorcycle was stationery behind the bakkie. Booysen even had the opportunity to dismount his feet from his motorcycle. Therefore in my view, the defendant has failed to prove contributory negligence on the plaintiffs part.

18. In the premises, it is appropriate that I make the following order:

ORDER

1. The merits are separated from the trial.

2. The determination of the quantum is postponed sine die.

3. The Defendant is liable for 100% of the plaintiff’s agreed or proven damages.

4. The defendant is liable for all the High Court costs of the action up until date of this order, including:

4.1 the cost for the trial days of 8, 9 and 10 September 2014;

4.2 the cost of preparing the heads of argument;

4.3 the cost of one counsel.

5. The defendant shall pay the plaintiff’s costs on a party and party scale.

6. Interest of 9% shall only be payable if payment for the plaintiff’s costs remain unpaid 30 days after presentation to the defendant of the plaintiff’s agreed or taxed party and party costs.

7. All payments shall be made into the trust account: Van Rhyns Attorneys, Nedbank, Alberton Voortrekker Branch (190242) Acc. No. [...]

MODIBA AJ

ACTING JUDGE OF THE HIGH COURT

Counsel for the plaintiff: Mr A A Lubbe

Instructed by: Van Rhyns Attorneys

Counsel for the defendant: Ms K Potgieter

Instructed by: Mothle Jooma Sabadia Inc

Date of trial: 9th and 10th September 2014

Date of judgment: 26th September 2014