McKay v Road Accident Fund (19/12) [2013] ZAECPEHC 9 (19 February 2013)

McKay v Road Accident Fund (19/12) [2013] ZAECPEHC 9 (19 February 2013)

The court found that the plaintiff failed to discharge the onus of proving negligence on the part of the insured driver. The evidence did not establish that the insured driver was travelling at an excessive speed or failed to keep a proper lookout in a manner causally linked to the collision. The insured driver was confronted with an unexpected emergency when the plaintiff entered the roadway and acted as a reasonable person would under the circumstances. The court accepted that the insured driver swerved to his right in response to the danger, which was a normal human reaction. The plaintiff's evidence regarding the vehicle being stationary prior to impact was rejected as improbable. In...

Citation
[2013] ZAECPEHC 9
Parties
Plaintiff: Graham Hamilton McKay; Defendant: Road Accident Fund
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
19 February 2013
Case Number
19/12
Procedural Posture
Civil Trial / Merits Separated From Quantum; Trial on Negligence/causation
Outcome
Plaintiff's claim dismissed with costs.
Judges
J W Eksteen
Legal Topics
Negligence, Road Accident Claim, Onus of Proof, Contributory Negligence
Delict Civil Procedure Negligence Road Accident Claim Onus of Proof Contributory Negligence

Case Brief

Summary, issues, holding and outcome

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Parties

Graham Hamilton McKay

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Merits Separated From Quantum; Trial on Negligence/causation

Legal Issues

  1. 1 Whether the insured driver was negligent and caused the collision.
  2. 2 Whether the plaintiff was negligent in entering the roadway.
  3. 3 Whether the evidence supports a finding of excessive speed or failure to keep a proper lookout by the insured driver.

Ratio Decidendi

The court found that the plaintiff failed to discharge the onus of proving negligence on the part of the insured driver. The evidence did not establish that the insured driver was travelling at an excessive speed or failed to keep a proper lookout in a manner causally linked to the collision. The insured driver was confronted with an unexpected emergency when the plaintiff entered the roadway and acted as a reasonable person would under the circumstances. The court accepted that the insured driver swerved to his right in response to the danger, which was a normal human reaction. The plaintiff's evidence regarding the vehicle being stationary prior to impact was rejected as improbable. In...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed.
  • The plaintiff is ordered to pay the costs of the defendant.