Marumolo v Road Accident Fund (511/06) [2007] ZANWHC 16 (24 May 2007)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CIVIL CASE 511/06

In the matter between:

DORAH

SEGAMETSI MARUMOLO

and

ROAD

ACCIDENT FUND

CIVIL

MATTER

MMABATHO

DATE OF HEARING : 30 April 2007

DATE OF JUDGMENT : 24 May 2007

COUNSEL FOR THE PLAINTIFF : Adv. B. Swart

COUNSEL FOR THE DEFENDANT : Adv. M. Mashaba

GURA J:

Introduction

[1] The plaintiff instituted an action for damages for an amount of R1 210 000-00 due to the injuries which she sustained in a road accident. The defendant is the insurer of the motor vehicle in question.

Factual Background

[2] The following facts are either common cause between the parties, are admitted or are not denied.

On 2 May 2005 around 18h30 – 18h45 plaintiff was

crossing a tarred road at Bodibe.

(b) Before she finished crossing it, she was hit by a vehicle which approached her from her right hand side.

(c) Before this vehicle collided with her, neither she nor anyone in her company saw it.

This vehicle was driven by Mr George Seane (Seane)

at a speed of about 60kmh.

(e) The vehicle’s brake mark on the road surface, measured 5.6 metres.

(f) The brake mark starts on the centre line and proceeds slightly into the lane of the oncoming traffic.

(g) That brake mark was caused by the right hand wheel

only.

The point of impact is on the left hand light/indicator of

the van.

After the accident, Seane conveyed the victim to the clinic.

As at the time of the accident, it was already dark, and this would have obliged all drivers to travel with their headlights on.

There was music in the neighbourhood which was played at a high volume and this made the victim and her people not to hear the oncoming vehicle.

(l) The accident occurred in a built-up area.

The load on the van, made it rather difficult for its driver

to control it as he would have done had it not been

loaded.

[3] Mr Teko Peter Marumolo (Teko) and Mrs Rose Marumolo (Rose) testified on behalf of the plaintiff. Plaintiff herself was unable to give evidence due to her poor health condition. The evidence of the two witnesses is to the following effect:

Plaintiff walked across the road, following Teko. The van in question was travelling without any headlights on. The point of impact is on the lane leading from Mafikeng to Itsoseng (D-lane). The plaintiff never ran into the roadway. There was no other car which approached Seane from the front. What caused the accident was that the van drove in darkness without headlights or any other form of light for that matter.

[4] The following people gave evidence on behalf of the defendant: Seane, Mrs Baby Seane (Baby) and Mr Lekeba Mothopeng (Mothopeng). Mothopeng is a police officer who attended the scene of accident on that very same night and the subsequent morning. Seane’s evidence is to the effect that he travelled with his headlights on. The plaintiff entered the roadway suddenly, from his left, running. At that stage, his vision was partly blurred by bright lights of an oncoming car. However, he swerved to his right in order to avoid the collision. All in vain because the victim was busy running to cross the road. The point of impact is on the lane leading from Itsoseng to Mafikeng (B-lane). His dim lights were 6 paces long. Baby’s version is that they were travelling with headlights on, she never saw the victim, all she heard was a thud. At that stage, a car from the front blinded them with its bright lights.

The issues

[5] The following are the disputed facts between the parties:

Did plaintiff enter the road unexpectedly, running?

Did Seane travel without headlights being on?

Did another car or cars from the front partly blur Seane’s vision with its bright lights?

The Law

[6] The sole question to be answered is whether or not the damages suffered by the plaintiff are as a result of the defendant’s sole negligence. Holmes JA had the following to say about the circumstances under which one could be said to have acted negligently in Kruger v Coetzee 1966 (2) SA 428 (A) at 430 E – H:

“For the purpose of liability culpa arises if –

(a) a diligens paterfamilias in the position of the defendant -

would forsee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.

This has been constantly stated by this Court for some 50 years. Requirement (a) (ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned, would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down.”

Evaluation of the evidence

[7] On each side, two witnesses who were present during this accident testified. There are stark differences between the account of plaintiff and that of the defendant. Both witnesses for the plaintiff answered to all questions promptly, none of them contradicted him / herself, nor did they contradict each other. There are no inherent improbabilities in the evidence on behalf of plaintiff. Both of them were in a position to see the oncoming van earlier had it been having any form of illumination. In my view, there was absolutely no reason for urgency for plaintiff to cross the road running if they were aware that a car was coming. In any event, some of the people who were in her company were still behind her. The evidence suggests very strongly that when plaintiff entered the road, the car was less than fifteen (15) metres away. If she was aware about the oncoming vehicle, and if it had its headlights on, why would a 39 year old lady commit such a forensic harakiri?

[8] Baby’s evidence is to the effect that the car never swerved before the impact. Conversely, Seane says that he swerved to the right. She stated that she had her eyes on the roadway immediately before the accident but she did not see the victim. If the headlights of the van were on, what made her not to see the victim, or at least a silhouette? The explanations which Seane gave about how the accident occurred, raise serious questions. On the night of the incident, he told Mothopeng that he could not have avoided the accident because there was an oncoming vehicle. The implication of this is that the oncoming vehicle made it unsafe for him to swerve to the right. There is no mention that he ever swerved. There is no mention of bright lights from the front. In his evidence in chief he testified that when he first saw the victim, the oncoming car was about 100 metres in front of him.

[9] The subsequent morning, during day time, at the scene, he noticed the slight swerve of the car where there was a brake mark. Subsequent to that, he gave the following account to Mothopeng: The victim ran into the road just as he was about to pass the oncoming car, he then swerved to the right. Again here, he never made mention of the blurring bright lights from the front. It was never put to any of plaintiff’s witnesses that another car from the front nearly blurred Seane’s vision with bright lights. The Court heard about the bright lights for the first time when Seane testified. Why so late?

Conclusion

[10] There is a strong probability that Seane did not see the victim prior to the accident because he travelled without any form of light. If he did not see the victim before the impact, he could therefore not have applied brakes or swerved in an avoiding action. In my view, the reason why Baby did not see or feel the swerve is that Seane never swerved at all. The slight curve to the right (as depicted on the road) occurred because only the right hand brake of the van was effective.

[11] In the result, the following order is made:-

(a) It is declared that the defendant is liable to the plaintiff for such damages as she is able to prove in consequence of this accident;

(b) The defendant’s plea of contributory negligence is dismissed;

(c) The remaining issues are postponed for adjudication on a date to be arranged between the parties and the Registrar; and

The defendant is ordered to pay the costs of the hearing of the issues already determined in this judgment.

SAMKELO GURA

JUDGE

OF THE HIGH COURT

Attorneys for Plaintiff : Motlhabani Attorneys

No. 12 Robinson Street,

MAFIKENG

Attorneys for Defendant : Lindsay Keller & Partner

C/O Minchin & Kelly Inc

Kelgor House, 14 Tillard Str.