REPUBLIC OF SOUiH AreRICA. JUDGMENl. [1] The plaintiff is claiming damages from the Road Accident Fund

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1 REPUBLIC OF SOUiH AreRICA IN TH~ HIGH COURT OP SOUTH Al=AICA GAU'J"ENG 01V1StON 1 PRETORIA CAS NO: 26910/2016 In the matter between: NICOLENE PRINSLOO Plaintiff and ROAD ACCIDENT f=uno Defendant JUDGMENl MABESELE, J: [1] The plaintiff is claiming damages from the Road Accident Fund (defendant) for personal injuries arising out of a collision which occurred on 25 October 2014 near Mbombela Stadium, in Nelspruit, and in which an

2 2 unidentified motor vehicle and the motorcycle which was driven by the plaintiff were involved. [2] The plaintiff avers that the sole cause of the collision was a negligent driving of the insured driver of the unidentified vehicle,n one or more of the following respects: 2.1 He failed to keep a proper lookout 2.2 He travelled at a speed Which was excessive under the circumstances. 2.3 He failed to avoid the accident t;)( collision, when 1 by taking reasonable and proper care and skill, could and should have done so. 2.4 He failed to maintain sufficient control over the insured vehicle. 2.5 He failed to apply thf3 brakes of the insured vehicle at all or timeously. 2.6 He drove the Insured vehicle in such a way as to cause an obstruction to the motorcycle driven by the plaintiff.

3 3 [3] The defendant disputes negligence. In addition, it pleads contributory negligence, in the alternative. It contef1d$, inter Blia, that the plaintiff failed to maintain any, alternatively, sufficient control over her motorcycle and travelled at a speed which was excessive under the circumstances. [4] At the commencement of the trial and by agreement between the parties, I ordered a separation of merits and quantum in terms of the Rules of Court. The matter accordingly proceeded on the merits only. [5] The plaintiff was the only witness called to testify. She enjoys driving motorcyeles. Prior to the accident she had been driving motorcycles for four years. She does not possess a licence to drive a motorcycle. However, she does not doubt her skill and ability to drive a motorcycle. [6] A day before the accident she teceived a new motorcycle after it was delivered to her place of residence. ''fhat rnototcycle differed in shape ahd mode of operation from th~ motorcycles she drove previously. For instance, the new motorcycle was lower in height than the previ6us ones and was fitted with a cruise. It was for this reason that the plaintiff made arrangements that the motorcycle be offloaded at Mbombela Stadium the following day, thcat ls, 25 October 2014, so that she could take some rounds inside the stadium to get the feel of it. She preferred to drive inside the stadium because it was quiet in there.

4 4 [7] After she had taken some rourlds!!"!side the stadium 9lie decided to ~o out and in the public road. It was around 12:00. At the ~)(it or the staoiutn she turned rightj as depicted ih the rough sketch plan marked ''X'', Snd drove to the Northern direction. The front light of the motorcycle was on. She was driving at a speed limit of 60 km per hour. fhe road she was travelling 6n was tarred and smooth. Th~ road is divided into four lanes; two on the side of the plaintiff and the other two on the opposite direction. fhe weather was clear. [8] Whilst on the road she noticed s vehicle at a distarh;e of more than 30 metres in front of her. It was traveliln~ towarcis her or, har lane or path of travel. She was unabie to determine the speed at which the vehicle was travelling. [9] After she had noticed the mant1er in which the vehicl~ was travelling she drove close to the pavemer1t and still on her side. She consistently kept an eye on the vehicle in front of her and hsd noticed that it was still travelling on her path of travel from the aforementioned distance ur1til it reached her. When the vehicle was about to collide with her motorcycle she immediately swerved to the left and lost control of the motorcycls. As a result the motorcycle ran over the pavement and threw Iler into the ditch outside the road. She lost her leg durl1"1g that process. (1 O] It is trite that in a collision case the bur-den of proving the defendant's negligence and the causal connection between the negligence and the damages suffered falls upon the plaintiff whereas the burden of proving that

5 5 plaintiff was guilty of negligence which causally contributed to the harm plaintiff suffered falls upon the defendant. i [11] The pl&intiff wasjhe only witness called to testlfy 1 as stated earlier. On the other hand there Is no evidence presented on behalf of the defendant. The implication thereof is that the version of the plaintiff remaihs unthallenged. The plaintiff was honest and reliable, in my view. Therefore I have no reason to doubt her version. Her version is accordingly aoc(!pted that the insuted driver drove in her path of travei in such t:l way as to c use an obstruction to the motorcycle driven by her. Therefore the Insured driver was negligent by driving ih the incorrect lane, thereby causing an accident. [12] The question that arises now is whether it can be said that the contributory negligence was established on ths part of the plaintiff. In this regard counsel for the defendant argued that the plaihtiff's own version proves contributory negligence on her part. Ha relles 011 the answers which the plaintiff provided during cross-examination. [13] The plaintiff testified during cross--examination as follows: She opted to drive the new motorcycle Inside the stadium to familiarise hers~lf with it (because it differed with shape and mode of operation from the motorcycles she drove previously). She did not want to accept that she was "practising to drive" a new motorcycle she was not familiar with although the facts speak for themselves. The plaintiff failed to explain1 when asked to do so, the necessary 1 See Heneke v Royal Insurance Company 1954 (4) SA 606 (A) at 611.

6 6 steps that she took to avoid co!lision from the moment she saw the vehicle approaching her from the distance of more than jq metr~s until the collisiof'i occurred. Importantly, she admitted that she did not attempt to apply the brakes (to reduce speed when sr1e had an opportunity to do se5 before the vehicle came close to her). She was unable to explain, when asked to do so during re~examination, whether the insured driver was driving at an excessive speed just before the collision occurred. Therefore I am unable to come to a conclusion that the insured driver was driving at an excessive speed in his incorrect lahe which could have made It difficult for the plaintiff to weigh her options timeously. The plaintiff admitted that despite driving the motorcycle for four years without licence, no one, such as an official in the government licencing department has ever assured her of her good skill and ability to drive a motorcycle. [14) On the evidence as it stands, the plaintiff had a full view of the vehicle approaching her from the distance of more than 30 metres. Clearly the plaintiff could apparently have taken any one of the several cours~s of which would in all probability have avoided the collision; for Instance, applying the brakes sooner to reduce speed or flick the lights to draw the attention of the insured driver. 2 The plaintiff has not explained Why any of these courses was not open to her. In addition I an'l mindful of the fact that the plaintiff has no experience in driving that type of motorcycle ih a public road. The inference is that she was unable to easily control the motorcycle when she was faced with 2 See Galante v Dickson 1950 (2) SA 460 (A) at 468.

7 7 dahger. Therefore, the plaintiff was at fault1 too. This brings me tc> ar1 i~sue of apportionment of damages. [15] It is trite that where any perton ~uffers damage as the result partly of his or her own fault and partly of the fault of sny person or persons, a claim ih respect of that damage shall not be defeated by reason of the fault Oh th8 person suffering the damage, but the d~rnagf:ts recovarabl~ in respect thereof shall be reduced tb such an extent as me doltrt thinks just and equitable having regard to the claimant's $hare ln U1e responsibility for the damage, [16] Having regard to all the circumstar1ces of the case, I am of the opinion that the degree in which the plaintiff was at fault in relat!on to the darna~~ sustained by her th6uld be assesssd at 20%. rhetefore the plaintiff is only entitled to be awarded 80% of the amount of damages which she can be able to prove. [17] In the result I make the followir1g ordet: 17.1 The defendant shall pay 80% of plaintiffs proven damages The defendant shall p~y plair1tlff's costs to date relating to the merits. M JUDGE THE HIGH COU~T GAUTENG DIVISION, PREiORIA