IN THE NORTH WEST HIGH COURT, MAFIKENG LENTIKILE DAVID PHETE JUDGMENT. [1] This is an action instituted by Lentikile David Phete, a major male

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1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE NORTH WEST HIGH COURT, MAFIKENG In the matter between: CASE NO: RAF189/2014 LENTIKILE DAVID PHETE Plaintiff and ROAD ACCIDENT FUND Defendant JUDGMENT CHWARO AJ: Introduction [1] This is an action instituted by Lentikile David Phete, a major male born on [..], ( the plaintiff ) in terms of which he claims for damages arising out of personal injuries suffered by him following an alleged motor vehicle accident that occurred on or about 22 1

2 June 2012 and at and/or along the Ottoshoop - Lichtenburg road. [2] The plaintiff issued summons out of the above Honourable Court on 3 July 2014 setting in motion an action against the Road Accident Fund, ( the defendant ), an entity established in terms of the Road Accident Fund Act, No 56 of 1996, ( the Act ) and which is liable for compensation of victims of motor-vehicle accidents for personal injuries sustained from such accidents. [3] At the commencement of the trial, I was informed that an agreement between the parties under rule 33(4) of the Uniform Rules, was reached regarding the separation of the issue of liability and/or merits from that of quantum so that the trial should only proceed on the issue of liability and/or merits. Pleadings [4] In his particulars of claim, the plaintiff alleges that on or about 22 June 2012 and along the Ottoshoop / Lichtenburg road and while riding a bicycle, he was hit by and/or collided with an unidentified motor vehicle ( the insured vehicle ) there and then driven by a driver whose full and further particulars are unknown to the plaintiff, ( the insured driver ). [5] The plaintiff further alleges that the collision was as a result of the 2

3 sole negligence of the insured driver who was negligent in a number of respects, including that he/she failed to keep the insured vehicle under proper control in circumstances where he/she was obliged to, s/he failed to keep a proper look out, s/he failed to apply the brakes of the insured vehicle timeously or at all alternatively that the brakes were not in a proper working condition and that s/he was driving under excessive speed under the circumstances. [6] As a result of the accident, plaintiff pleads that he suffered injuries comprising of Grade III compound fractures of the junctions of the middle and distal thirds of the right tibia and fibula; so-called Galeazzi fracture of the midshaft of the right radius with a dislocation of the distal radioulnar joint and multiple contusions and abrasions. [7] The defendant filed a plea in terms of which three special pleas were raised. Nothing turns on these special pleas as it appears that the parties found each other at a pre-trial stage and I need not be further detained by same. [8] In its defence on the merits, the defendant denies that the insured driver was negligent as alleged by the plaintiff but avers that the collision was caused by the sole negligence of the plaintiff, 3

4 alternatively that if the insured driver was negligent, the collision was solely caused by the negligence of the plaintiff who was negligent in that he failed to keep a proper lookout, he failed to keep the motor cycle under proper control, he was driving his motor cycle at an excessive speed and that he failed to avoid the collision when by exercise of due and reasonable care he could and should have done so. In the further alternative, the defendant pleaded contributory negligence. The evidence [9] The defendant decided not to lead any evidence and the trial proceeded on the basis of the evidence of the plaintiff only. [10] The plaintiff testified that on the morning of 22 June 2012 and at around 05h00, he was riding his bicycle on his way from his place of employment situated at E. F. to S., his place of residence. Approximately two kilometres from E. F. and whilst riding a bicycle on the left lane of the two lanes, he was hit by a vehicle from behind and as a result of the impact he fell on the ground and when he attempted to stand up, he realised that he was injured on his right foot, which he could not uplift or use, his right hand as well as some abrasions on his face. 4

5 [11] Plaintiff further testified that he used the same road on a daily basis to commute between his place of residence and his place of employment and at no stage during this period was he ever involved in an accident. He testified that on the morning in question he was wearing a reflective orange jacket with khaki trousers and that his bicycle was fitted with a red reflective light at the rear. [12] The plaintiff testified that following the accident the passers-by who found him on the road summoned the police to the scene of the accident and the latter called an ambulance which transported him to hospital. The police took a statement from him and compiled an accident report relating to the accident as described by him. [13] During cross-examination by Mr Seremane, it was put to the plaintiff that he could not see nor identify the vehicle that allegedly hit him. The plaintiff conceded that he could not see nor identify the said vehicle as it was travelling from behind and that there were other vehicle that were travelling in the opposite direction. Plaintiff testified further that he was certain that a motor vehicle collided with him in that there were some debris left at the scene of the accident which resembled pieces of plastics from a front bumper and mirrors of a motor vehicle. 5

6 [14] Following the closure of the plaintiff s case, the defendant did not present any evidence at all to either substantiate its plea or to counter the evidence presented by the plaintiff. Legal principles [15] It is trite law that the onus is on the plaintiff to prove, on a balance of probabilities that his injuries were caused as a result of the negligent driving of the unidentified driver of the insured motor vehicle. See: Laas v Road Accident Fund 2012 (1) SA 610 (GNP) [16] The defendant s liability is found in section 17 (1)(b) of the Act which provides thus: 17. (1) The Fund or an agent shall (a) ; (b) subject to any regulation made under section 26, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established, be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or arising 6

7 from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of the employee s duties as employee: Provided that the obligation of the Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum. [17] The plaintiff s claim emanates from an alleged collision between the plaintiff, who was then riding a bicycle and an unidentified motor vehicle there and then driven by a driver whose full and further particulars are unknown. The claim stands to be determined in accordance with the regulations promulgated under section 26 of the Act and thus at the commencement of the trial I asked both counsel as to whether the issues relating to the timeframes as provided for in Regulation 2(1)(b) were complied with and I was assured that there was compliance and the only issue for determination was the negligence and/or liability of the defendant. Analysis of the evidence [18] It is common cause that the only evidence presented before me was that of the plaintiff, who impressed me as a candid, 7

8 straightforward and reliable witness. He easily and readily conceded facts that were obvious, like the fact that he did not see/witness a motor vehicle coming from behind as well as when it sped off after colliding with him. [19] A cursory perusal of the defendant s plea indicates that the latter has been under the impression that the plaintiff was riding a motorcycle instead of a bicycle and thus its defence was, amongst others, based on aspects like an allegation that plaintiff was negligent by riding the motor cycle at an excessive speed under the circumstances and failing to avoid the collision. [20] It is abundantly clear that the plaintiff could not reasonably and possibly have avoided the collision as he was hit from behind and that he was riding a bicycle instead of a motor cycle. [21] In the absence of any credible and admissible evidence led by the defendant which would show that the plaintiff was negligent, I am unable to find that there could be any negligence, contributory or otherwise, that could be attributed towards the plaintiff on the morning of 22 June [22] The uncontested evidence is that the plaintiff was wearing visible clothing and that his bicycle was equally fitted with a red reflective 8

9 light at the rear to enable other road users to recognise him and the bicycle at ease. The plaintiff was riding his bicycle on the correct side of the road being the left-hand side of the road and that he used the similar road on a daily basis and at no stage was he ever involved in an accident of a similar nature. [23] In his submission, Mr Jordaan, for the plaintiff, argued that this is a classical case where the facts speak for themselves. I cannot fault this argument and concur with him on this score. Conclusion [24] Under the circumstances I am of the view that the plaintiff s evidence is reliable and has discharged the onus on a balance of probabilities that the insured driver of the unidentified insured vehicle was solely negligent and responsible for the collision that occurred on 22 June 2012 and which resulted in the plaintiff sustaining bodily injuries. [25] In the absence of any evidence from the defendant, the court cannot find that the plaintiff was negligent and/or possibly contributed to his injuries. The end result is that the court finds that the defendant is liable to compensate the plaintiff for such damages as he may prove. 9

10 Order [26] In the premises, the following order is made: 1. It is ordered that the determination of liability is separated from quantum in accordance with rule 33(4) of the Uniform Rules; 2. The defendant shall pay to the plaintiff 100% (one hundred percent) of his proven or agreed damages; 3. The defendant is liable to pay the plaintiff s party and party costs on a High Court scale for determination of liability; 4. The determination of quantum is postponed to a date to be arranged with the Registrar of the above Court. 10

11 O K CHWARO ACTING JUDGE OF THE HIGH COURT DATE OF HEARING : 28 JULY 2015 DATE OF JUDGMENT : 29 JULY 2015 COUNSEL FOR THE PLAINTIFF : ADV CG JORDAAN Instructed by: VAN ROOYEN TLHAPI WESSELS MAHIKENG COUNSEL FOR THE DEFENDENT : ADV LC SEREMANE Instructed by: MAPONYA INC. MMABATHO 11