Van der Linde and Another v Road Accident Fund (3465/04) [2008] ZAECHC 60 (30 May 2008)

Van der Linde and Another v Road Accident Fund (3465/04) [2008] ZAECHC 60 (30 May 2008)

The court found that both Mr. Tembani, the insured driver, and the plaintiff were negligent. Tembani drove at an excessive speed given the misty and dark conditions, failed to keep a proper lookout, and did not take reasonable steps to avoid the collision. The plaintiff, on her part, failed to ensure she had a clear view of the Addo road before entering, did not keep a proper lookout, and did not wait for the approaching bus to pass before moving into the intersection. The court held that the probabilities favored the conclusion that the collision could have been avoided had either party exercised reasonable care. Accordingly, the court apportioned liability, attributing 60% of the blame...

Citation
[2008] ZAECHC 60
Parties
Plaintiff: Bernice van der Linde; Plaintiff: Luschka van der Linde; Respondent: Road Accident Fund
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
30 May 2008
Case Number
3465/04
Procedural Posture
Civil Trial / Merits
Outcome
Liability apportioned: plaintiff in her personal capacity entitled to 40% of proven damages; plaintiff in representative capacity entitled to full proven damages.
Judges
Liebenberg
Legal Topics
Contributory Negligence, Road Accident Claim, Apportionment of Liability, Personal Injury
Delict Civil Procedure Contributory Negligence Road Accident Claim Apportionment of Liability Personal Injury

Case Brief

Summary, issues, holding and outcome

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Parties

Bernice van der Linde

Plaintiff

Luschka van der Linde

Plaintiff

Road Accident Fund

Respondent

Procedural Posture

Civil Trial / Merits

Legal Issues

  1. 1 Was the insured driver, Mr. Tembani, negligent in causing the collision?
  2. 2 Did the plaintiff contribute to the collision through her own negligence?
  3. 3 How should liability be apportioned between the parties?

Ratio Decidendi

The court found that both Mr. Tembani, the insured driver, and the plaintiff were negligent. Tembani drove at an excessive speed given the misty and dark conditions, failed to keep a proper lookout, and did not take reasonable steps to avoid the collision. The plaintiff, on her part, failed to ensure she had a clear view of the Addo road before entering, did not keep a proper lookout, and did not wait for the approaching bus to pass before moving into the intersection. The court held that the probabilities favored the conclusion that the collision could have been avoided had either party exercised reasonable care. Accordingly, the court apportioned liability, attributing 60% of the blame...

Court Disposition

Liability apportioned: plaintiff in her personal capacity entitled to 40% of proven damages; plaintiff in representative capacity entitled to full proven damages.

Orders

  • The plaintiff in her personal capacity is entitled to payment by the defendant of 40% of any damages she may be able to prove.
  • The plaintiff in her representative capacity is entitled to payment by the defendant of such amount of damages as she may be able to prove.