Magor v Road Accident Fund (25343/2002) [2005] ZAGPHC 226 (26 April 2005)

Magor v Road Accident Fund (25343/2002) [2005] ZAGPHC 226 (26 April 2005)

The Plaintiff failed to discharge the onus of proving negligence on the part of the insured driver. Her own evidence, including admissions under cross-examination and prior affidavits, established that she did not keep a proper lookout and entered the intersection from a stop sign into the path of oncoming traffic, which had the right of way. The Plaintiff's attempt to rely on the insured driver's speed and position on the road was not pleaded as a ground of negligence and was not sufficiently investigated or ventilated. The principle of res ipsa loquitur was inapplicable as the Plaintiff was the lawbreaker. The Defendant's failure to testify did not attract an adverse inference, as the...

Citation
[2005] ZAGPHC 226
Parties
Plaintiff: Magdalena Susanna Magor; Defendant: Road Accident Fund
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
26 April 2005
Case Number
25343/2002
Procedural Posture
Civil Trial / Merits and Liability Only
Outcome
Absolution from the instance with costs against the Plaintiff.
Judges
GSS Maluleke
Legal Topics
Negligent Driving, Apportionment of Damages Act, Onus of Proof, Absolution From the Instance
Delict Civil Procedure Negligent Driving Apportionment of Damages Act Onus of Proof Absolution From the Instance

Case Brief

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Parties

Magdalena Susanna Magor

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Merits and Liability Only

Legal Issues

  1. 1 Whether the insured driver was negligent and whether such negligence caused or contributed to the collision.
  2. 2 Whether the Plaintiff discharged the onus of proving negligence on the part of the insured driver.
  3. 3 Whether the Plaintiff can rely on unpleaded grounds of negligence or the res ipsa loquitur principle.

Ratio Decidendi

The Plaintiff failed to discharge the onus of proving negligence on the part of the insured driver. Her own evidence, including admissions under cross-examination and prior affidavits, established that she did not keep a proper lookout and entered the intersection from a stop sign into the path of oncoming traffic, which had the right of way. The Plaintiff's attempt to rely on the insured driver's speed and position on the road was not pleaded as a ground of negligence and was not sufficiently investigated or ventilated. The principle of res ipsa loquitur was inapplicable as the Plaintiff was the lawbreaker. The Defendant's failure to testify did not attract an adverse inference, as the...

Court Disposition

Absolution from the instance with costs against the Plaintiff.

Orders

  • Absolution from the instance is granted.
  • Plaintiff is ordered to pay the costs of suit.