Khoarai v Road Accident Fund
In Khoarai v Road Accident Fund a collision occurred between the plaintiff whom was the driver of a Nissan 1400 light duty motor vehicle and the insured driver, Mr E Bacela, whom was driving a BWM motor vehicle at the time of the collision. The collision occurred on 23 December 2015 on the R 27 public road between Dewetsdorp and Wepener.
During the start of the court proceedings the court was asked to separate the merits and quantum in terms of Uniform Rule 33(4) so that only the issues contained in paragraph 1 to 4 of the Particulars of Claim of the Plaintiff and the corresponding paragraph 1 to 4 of the Defendant’s plea be adjudicated and the remainder of the plaintiff’s claim to stand over.
The court was thus only faced with the issue of causative negligence.
According to the Plaintiff, who testified to prove his case, was on his way from Bloemfontein to Wepener to deliver a heavy load of liquor, driving his Nissan-bakkie. It was 14h00 in the afternoon and the visibility was good. He was driving in the left lane on the single lane road. There were no vehicles in front of him. He noticed a red BMW vehicle behind him approaching. He also observed an oncoming vehicle. The Plaintiff was driving at a speed of 60-80km/h. He observed the BMW coming closer, attempting to overtake but then falling back. He heard noises as his Nissan-bakkie was hit on the rear, causing it to travel into the veld and overturn several times. He could do nothing to prevent the accident. The plaintiff handed to the court the accident report together with other supporting documents without any objection from the defendant. The defendant did not lead any viva voce evidence.
In cross-examination the Plaintiff testified that he noticed oncoming traffic from a distance of about a kilometre, checked in his mirror and saw the BMW about 30m behind him. The BMW was signalling his intention to engage in overtaking manoeuvre by way of his vehicle’s indicators. He was aware of the BMW and kept on concentrating on the road. The BMW wanted to overtake his vehicle and he observed same starting to pass him on his lane. The BMW attempted to return to its lane. It was put to Plaintiff that, had he reduced his speed, the BMW could have been successful in falling back in time to avoid a collision. Plaintiff denied this.
In summary the plaintiff led a favourable impression on the court and thus the court could not find any reason not to accept the plaintiff’s testimony. The evidence that the plaintiff presented the court on how the collision occurred was uncontested and no other version was put to the plaintiff.
The plaintiff therefor succeeded in proving negligence on the insured driver. The defendant argued that contributory negligence should apply. The defendant however failed to provide any evidence in that regard nor was any sustainable case law provide to the effect. The court thus ruled against the defendant in the aspect of contributory negligence as mere speculation.
The court thus found that the defendant is liable for payment of 100% of the plaintiff’s proven or agreed damages.
Compiled by: Christian Schietekat (B. Com (Law) & LL. B); source: https://www.lexisnexis.co.za/
Khoarai v Road Accident Fund JOL 44813 (FB)
Case Number: 5005 / 2017
Judgment Date: 30 / 05 / 2019
Country: South Africa
Jurisdiction: High Court
Division: Free State, Bloemfontein
Bench: C Reinders J
Personal Injury/ Delict – Motor vehicle collision – Claim for damages – Causative negligence
Having sustained injuries in a motor vehicle accident, the plaintiff sued the defendant as being statutorily liable for damages that he suffered as a result of the collision.
As a result of a separation of issues, the court was required at the present stage to decide only the issue of causative negligence.
Held that the plaintiff made a very favourable impression on the court, which found no reason not to accept his testimony. His evidence on how the collision occurred was uncontested. He therefore succeeded in proving the negligence of the insured driver as set out in the particulars of claim.
No contributory negligence on the part of the plaintiff was found. The defendant was therefore held liable for payment of 100% of the plaintiff’s proven or agreed damages.