Swart v Road Accident Fund (16014/2004) [2005] ZAGPHC 340 (17 November 2005)

Swart v Road Accident Fund (16014/2004) [2005] ZAGPHC 340 (17 November 2005)

Both the plaintiff and the insured driver were negligent in causing the collision. The insured driver failed to keep a proper lookout and did not have an outside left mirror, which increased his blameworthiness. The plaintiff, despite observing erratic movement by the insured driver, failed to anticipate a sudden turn and did not keep a proper lookout, travelling at a higher speed than the insured driver. The court found that the insured driver's negligence was greater and apportioned liability at 80% against the insured driver and 20% against the plaintiff. The defendant is therefore liable to pay 80% of the plaintiff's proven or agreed damages. Costs are awarded to the plaintiff.

Citation
[2005] ZAGPHC 340
Parties
Plaintiff: Jacobus Hermanus Swart; Defendant: Road Accident Fund
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
17 November 2005
Case Number
16014/2004
Procedural Posture
Civil Trial / Merits Separated From Quantum; Trial on Merits Only
Outcome
Liability apportioned 80% to the insured driver and 20% to the plaintiff. Defendant liable for 80% of plaintiff's damages. Costs awarded to plaintiff.
Judges
N M Mavundla
Legal Topics
Motor Vehicle Collision, Contributory Negligence, Apportionment of Liability, Proper Lookout, Roadworthiness, Damages Liability
Delict Civil Procedure Land and Property Motor Vehicle Collision Contributory Negligence Apportionment of Liability Proper Lookout Roadworthiness +1 more

Case Brief

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Parties

Jacobus Hermanus Swart

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 in causing the collision.
  2. 2 Whether the plaintiff was negligent and contributed to the collision.
  3. 3 How liability should be apportioned between the parties.

Ratio Decidendi

Both the plaintiff and the insured driver were negligent in causing the collision. The insured driver failed to keep a proper lookout and did not have an outside left mirror, which increased his blameworthiness. The plaintiff, despite observing erratic movement by the insured driver, failed to anticipate a sudden turn and did not keep a proper lookout, travelling at a higher speed than the insured driver. The court found that the insured driver's negligence was greater and apportioned liability at 80% against the insured driver and 20% against the plaintiff. The defendant is therefore liable to pay 80% of the plaintiff's proven or agreed damages. Costs are awarded to the plaintiff.

Court Disposition

Liability apportioned 80% to the insured driver and 20% to the plaintiff. Defendant liable for 80% of plaintiff's damages. Costs awarded to plaintiff.

Orders

  • The insured driver was 80% contributory negligent.
  • The plaintiff was 20% contributory negligent.