Lockhat v Road Accident Fund (1859/06) [2007] ZAECHC 62 (4 September 2007)

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

NOT REPORTABLE ECJ no 184

PARTIES: FAMIDA

LOCKHAT V ROAD ACCIDENT FUND

REFERENCE NUMBERS -

Registrar: 1859/06 (SECLD)

Magistrate:

Supreme Court of Appeal/Constitutional Court:

DATE DELIVERED: 4 September 2007

JUDGE(S):

JANSEN J

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s): ADV

A FROST

for the accused/respondent(s): ADV

N PATERSON

Instructing attorneys:

Applicant(s)/Appellant(s):

LE

ROUX INC

Respondent(s):

KETSE

NONKWELO INC

CASE INFORMATION -

Nature of proceedings :

Topic:

Keywords:

IN

THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

Case No.: 1859/06

Date delivered: 4/9/2007

In the matter between:

FAMIDA LOCKHAT Plaintiff

and

THE ROAD ACCIDENT FUND Defendant

JUDGMENT (NOT REPORTABLE)

JANSEN J:

This is an action for damages. The plaintiff was the victim of a hit and run accident. It happened on 2 April 2005 when she crossed Church Street in the district of Uitenhage at approximately 9 o’clock in the evening. At the request of the parties I made an order separating the merits of the case from the quantum of damages. All I am required to decide at this stage is whether the plaintiff was contributory negligent. It was conceded on behalf of the defendant that the unidentified driver of the vehicle which collided with the plaintiff was 80% negligent. It was submitted that 20% negligence should be ascribed to the plaintiff. It was the plaintiff’s case that the sole cause of the plaintiff’s damages is to be blamed on the unidentified driver.

The plaintiff herself did not testify. She is apparently not in a state of mind to give evidence in a court of law. The only version of the events came from the plaintiff’s boyfriend, Mr Jerome Leonard.

It is common cause that Church Street, which the couple wanted to cross that evening, is 12 metres wide with two lanes divided by a solid white line. Church Street carries vehicular traffic in opposite directions. The white solid line separating traffic travelling in opposition directions can be seen in both directions for a distance in excess of 200 metres.

It was cold that evening. Leonard was wearing a navy blue tracksuit with white stripes and white patches underneath the arms. The plaintiff was dressed in a pair of blue jeans but with a bright yellow top. She was on the right hand side of Leonard holding onto his right arm. Leonard’s hands were in his pockets. When they stepped into Church Street there was no traffic either from the right or the left. They started to walk towards the middle line. Then Leonard saw a bakkie approaching them from the left. They came to a standstill approximately in the middle of the first lane which would have been approximately 3 metres from the white solid line in the middle of the road. They stopped for the bakkie to pass. Leonard then did the natural thing to do, that was to look to the right again to establish whether it was still safe for them in the middle of that lane to wait for the oncoming bakkie from the left to pass. The next moment he heard, as he put it in an affidavit he made shortly after the incident, “a motor vehicle engine which sounded as if the motor vehicle was speeding”. He then looked to his left and for a fleeting moment saw a white Opel Astra vehicle overtaking the bakkie on its incorrect side of the road. The Astra must have crossed the solid barrier line and struck Leonard as well as the plaintiff where they were standing in the middle of the lane which they were about to cross. The Astra and the bakkie did not stop and drove off.

It is clear, and properly conceded on behalf of the defendant that the driver of the Astra was reckless in overtaking the bakkie and crossing the barrier line. The bakkie as well as the Astra had their headlights on. Church Street was well lit in the area with streetlights 37 metres apart. Had the driver of the Astra kept a proper lookout, he/she would have seen Leonard and the plaintiff standing in the middle of the lane some 3 metres away from the solid barrier line. The Astra was driven in a reckless manner. The evidence shows that the Astra must have followed the bakkie closely behind it and immediately before the collision moved out from behind the bakkie and crossed the barrier line and collided with Leonard and the plaintiff. It appears from Leonard’s evidence that everything happened so fast that they could not do anything to avoid the collision. It was submitted on behalf of the defendant that had the plaintiff and Leonard kept their eyes on the left hand side of the road from where the bakkie was approaching they would have seen the Astra overtaking and they would have avoided the collision. The evidence is overwhelming that the Astra was driving at a very high speed. The force of the impact caused the plaintiff to land some distance away from where she had been struck. Nothing was placed before me to indicate that even if Leonard and the plaintiff had kept their eyes to the left from where the bakkie was approaching that they could have avoided a speeding Astra which suddenly appeared from behind the bakkie which it was overtaking. Leonard was, in any event, only looking momentarily to his right to see whether it was still safe for them to remain where they had stopped to wait for the oncoming bakkie.

On behalf of the defendant Mr Paterson referred me to a decision by Vos J in Matyeba v Santam Versekeringsmaatskappy 1980 (4) SA 142 (CPD) where the head note reads as follows:

“Daar kan nouliks van ‘n voetganger verwag word om te voorsien dat, op die stadium wanneer hy vir ‘n paar oomblikke op die rand van die teer van ‘n teerpad is met sy gesig na aankomende verkeer, n kar aan die verkeerde kant van agter sy rug af gaan kom, en hom gaan tref.”

This decision does not support the defendant but rather the plaintiff.

In my view, the evidence establishes on a balance of probabilities that the unidentified driver was the sole cause of the plaintiff’s damages. On the merits, therefore, I find in favour of the plaintiff with costs, which costs include one inspection in loco and the costs of the photographs of the scene and the costs of preparing the certificate of probabilis causa.

________

J C H JANSEN

JUDGE

OF THE HIGH COURT