Mogale obo M v Road Accident Fund (24432/2018) [2019] ZAGPPHC 407 (9 September 2019)

Mogale obo M v Road Accident Fund (24432/2018) [2019] ZAGPPHC 407 (9 September 2019)

The court found that although the deceased motorcyclist was the primary cause of the collision by overtaking when it was unsafe, the insured driver also contributed to the accident by failing to take sufficient evasive action. The insured driver had an opportunity to move further left or use his hooter to warn the motorcyclist but did not do so. The road was straight and unobstructed, and a reasonable driver in the insured driver's position ought to have acted to avoid the collision. Therefore, the insured driver was found to have contributed more than 1% negligence to the accident, making the defendant liable for costs.

Citation
[2019] ZAGPPHC 407
Parties
Plaintiff: L A Mogale obo K M M[….]; Defendant: Road Accident Fund
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 September 2019
Case Number
24432/2018
Procedural Posture
Civil Trial / Merits Separated From Quantum; Trial on Merits Only
Outcome
The insured driver was found to have contributed significantly to the negligence causing the collision. The defendant is ordered to pay the costs of suit.
Judges
M.L. Senyatsi
Legal Topics
Loss of Support, Negligence, Contributory Negligence, Road Accident Claims
Delict Civil Procedure Loss of Support Negligence Contributory Negligence Road Accident Claims

Case Brief

Summary, issues, holding and outcome

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Parties

L A Mogale obo K M M[….]

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Merits Separated From Quantum; Trial on Merits Only

Legal Issues

  1. 1 Whether the insured driver was negligent and contributed to the collision resulting in the death of the deceased motorcyclist.
  2. 2 Whether the insured driver failed to take reasonable evasive action to avoid the accident.
  3. 3 Whether the plaintiff is entitled to damages for loss of support.

Ratio Decidendi

The court found that although the deceased motorcyclist was the primary cause of the collision by overtaking when it was unsafe, the insured driver also contributed to the accident by failing to take sufficient evasive action. The insured driver had an opportunity to move further left or use his hooter to warn the motorcyclist but did not do so. The road was straight and unobstructed, and a reasonable driver in the insured driver's position ought to have acted to avoid the collision. Therefore, the insured driver was found to have contributed more than 1% negligence to the accident, making the defendant liable for costs.

Court Disposition

The insured driver was found to have contributed significantly to the negligence causing the collision. The defendant is ordered to pay the costs of suit.

Orders

  • The insured driver contributed significantly to more than 1% negligence to the collision.
  • The Defendant is ordered to pay the cost of suit.