Van der Merwe v Road Accident Fund (802/2007) [2010] ZAFSHC 17 (18 February 2010)

Van der Merwe v Road Accident Fund (802/2007) [2010] ZAFSHC 17 (18 February 2010)

The court found, on a balance of probabilities, that the collision was caused by equal degrees of negligence on the part of both the plaintiff and the driver of the Ford. The objective evidence, including the nature of the impact and the position of the vehicles, indicated that the Ford was angled to its right at the time of collision, and not the Golf. The court rejected the defendant's eyewitness evidence as inconsistent with the physical evidence and found no credible basis for the claim that the plaintiff was using his cellphone at the time. As the collision occurred close to the centre of the road and the plaintiff could not recall the incident, the inference of equal negligence was...

Citation
[2010] ZAFSHC 17
Parties
Plaintiff: Stefanus Josua Benjamin van der Merwe; Defendant: Road Accident Fund
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 February 2010
Case Number
802/2007
Procedural Posture
Civil Trial / Determination of Negligence Under Rule 33(4)
Outcome
The collision was caused by equal degrees of negligence on the part of the plaintiff and the driver of the Ford. The defendant is ordered to pay the costs of the trial.
Judges
C. H. G. Van der Merwe
Legal Topics
Road Accident Fund Act, Negligence, Contributory Negligence, Motor Vehicle Collision
Delict Road Accident Fund Act Negligence Contributory Negligence Motor Vehicle Collision

Case Brief

Summary, issues, holding and outcome

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Parties

Stefanus Josua Benjamin van der Merwe

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Determination of Negligence Under Rule 33(4)

Legal Issues

  1. 1 Was the collision caused by the negligence of the plaintiff, the driver of the Ford, or both parties?
  2. 2 Did the plaintiff contribute to the collision by failing to keep a proper lookout or take reasonable avoiding action?
  3. 3 Was the plaintiff using his cellphone at the time of the collision, thereby causing or contributing to the accident?

Ratio Decidendi

The court found, on a balance of probabilities, that the collision was caused by equal degrees of negligence on the part of both the plaintiff and the driver of the Ford. The objective evidence, including the nature of the impact and the position of the vehicles, indicated that the Ford was angled to its right at the time of collision, and not the Golf. The court rejected the defendant's eyewitness evidence as inconsistent with the physical evidence and found no credible basis for the claim that the plaintiff was using his cellphone at the time. As the collision occurred close to the centre of the road and the plaintiff could not recall the incident, the inference of equal negligence was...

Court Disposition

The collision was caused by equal degrees of negligence on the part of the plaintiff and the driver of the Ford. The defendant is ordered to pay the costs of the trial.

Orders

  • It is declared that the collision in question was caused by equal degrees of negligence on the part of the plaintiff and of Mr J M Gatebe.
  • The defendant is ordered to pay the costs of the trial.