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					IN THE HIGH COURT OF SOUTH AFRICA
REPORTABLE

DURBAN AND COAST LOCAL DIVISION
                                                              CASE NO.
6552/2003


In the matter between:-


ROBIN VALDON HOME PETTERSON N.O.
(Z B MALUNGA)
PLAINTIFF

and

ROAD ACCIDENT FUND
DEFENDANT



                                   JUDGMENT



NDLOVU J


1.    The plaintiff, in his capacity as the curator ad litem on behalf of the minor
      child, Ziyanda Beryl Malunga (“Ziyanda”), instituted an action against the
      defendant for damages, in the total sum of R1 900 000,00 plus costs,
      arising out of bodily injuries sustained by Ziyanda when she was involved
      in a collision with a motor vehicle, a 3 ton truck, bearing the registration
      letters and numbers KZN 25396 (“the insured vehicle”) on 21 July 2000 in
      the Mswilili Location in the district of Umzinto. At the time of the collision
      the insured vehicle was driven by Magayisa Timothy Mkhungo (“the
      insured driver”). It was common cause that Ziyanda was a pedestrian at
      the time of the collision.


2.    The parties having consented thereto, the Court ordered that the issues of
                                        2


       liability and quantum be dealt with separately, in terms of rule 33(4) of the
       Uniform Rules of Court, and that the only issue which the Court had to
       decide was the issue of liability, with specific reference to the question of
       negligence.


3.     The plaintiff alleged in the pleadings that, among other things, the collision
       was caused by the negligent driving of the insured driver who was
       negligent in one or more of the following respects:-


        “7(a) He failed to keep a proper lookout.
        (b)    He failed to keep the motor vehicle he was driving under proper
               control;
(c)     ………
(d)     He failed to take proper cognizance of pedestrians in the vicinity of his
motor vehicle, in particular proper cognizance of the minor child ZIYANDA
BERYL MALUNGA and he failed to have due regard to the position in which they
were immediately prior to his motor vehicle colliding with her and he further failed
to have due regard to the narrowing distance between his motor vehicle and the
said named minor child in consequence of which he drove his vehicle in such
manner on or around a bend in the road (colloquially referred to as “cutting the
corner”) so that it came into contact with the aforesaid named minor child when
he drove his vehicle too close to the said child and/or to the edge of the road on
which he was travelling;
(e)     He failed to apply his motor vehicle’s brakes timeously or at all;
(f)     He failed to swerve, turn aside or take any avoiding action to avoid a
collision when by the exercise of reasonable care and skill he could and should
have done so;
(g)     He failed to maintain adequate control over his vehicle.”

       In its denial of the plaintiff‟s allegations the defendant pleaded that the
       collision was caused solely by the negligence of Ziyanda in that:-
       Ad paragraph 2.2
       “2.2.1 she failed to keep a proper lookout;
       2.2.2 she unexpectedly entered the line of travel of KZN 25396;
       2.2.3 she walked on the road at a time and place when it was unsafe for
              her to do so.”

4.     The plaintiff adduced evidence from Ziyanda and Jeffrey Jabulani
       Khawula (“Khawula”). The insured driver testified for the defendant.
                                      3


5.   Ziyanda, who was 10 years old at the time (born on 22 November 1989)
     testified that on 21 July 2000 at about 14h30 she was coming from school
     walking along the gravel road in the company of her friends, Pretty and
     Joy Msomi and her cousin, Buyisiwe Malunga. They were walking in a
     file closely following each other, with her walking behind.      She was
     knocked down by a motor vehicle and she sustained serious bodily
     injuries. She only remembered seeing a truck approaching but could not
     recall the circumstances under which the truck collided with her. She had
     lost consciousness which she regained some time later in hospital. The
     account of events as reflected in her statement which she subsequently
     made to the police was only a version as related to her by other people
     after the accident.


6.   Khawula told the Court that he was walking along the same gravel road
     following a group of children, including Ziyanda. They were walking on
     the right hand side of the road from northerly to southerly direction,
     approaching a gentle curve which was slightly bending towards the right.
     It was in broad daylight and the visibility was good. He noticed a truck
     approaching from the opposite direction and it appeared to be traveling at
     a normal speed.       That truck was the insured vehicle.    At that point
     Khawula saw the children moving off the roadway onto the grass verge
     outside the road. The insured vehicle had a long bin at the back. As it
     drove past the children he noticed the rear of the insured vehicle knocking
     into Ziyanda, thus causing her to fall to the ground. He said the insured
     driver appeared to be unaware that he had been involved in a collision
     with a pedestrian because he continued driving further along. He then
     stopped the insured driver and informed him about the collision. Under
     cross-examination, Khawula stated that the insured vehicle had “cut the
     corner”, thus colliding with Ziyanda.


7.   The insured driver testified that he was employed as a driver by the KZN
                                       4


      Provincial Government Department of Health and, at the time, he was on
      duty carrying medicines packed in boxes and stacked in the bin at the
      back of the vehicle. The medicine boxes were packed at the same height
      level as the bin.    On the day in question he was driving the insured
      vehicle from southerly to northerly direction along the road as depicted in
      the photos contained in exhibits “B” and “C”. He was approaching a bend
      that was turning towards the left.


8.    As he approached the bend he saw school girls (they were clad in school
      uniform) approaching from the front, walking on his side of the road, to his
      opposite direction. As he was driving closer the children moved off the
      road and walked onto the grass verge alongside the road. He drove past
      the children without seeing anything happening. At the time he passed
      the children he was travelling at about 40 km per hour. After he had
      proceeded for about 20 metres he was stopped by a person who was
      driving cattle who informed him that he was being called behind by other
      people. He said he had had a clear view on the road and that there were
      no other vehicles on the road at the time. He had then reversed to the
      spot where he was being called to. When he came there he found a
      child, a girl, lying apparently injured on the road. With the assistance of
      other people present at the scene, he placed the child in the vehicle and
      conveyed her to the nearby local clinic for medical attention.

9.      The defendant is obliged, in the case of a claim for compensation arising
from the driving of a motor vehicle, where the identity of the owner or the driver
has been established, to compensate any person for any loss or damage which
such person has suffered as a result of any bodily injury to himself or herself,
caused by or arising from the driving of a motor vehicle by any person at any
place within the Republic if the injury 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 their duties. (Section 17(1)(a) of the Road Accident Fund 56
of 1996.)

10.   On the pleadings, the onus was on the plaintiff to prove that:-
      1.     The damages which Ziyanda allegedly suffered resulted from bodily
                                        5


              injury to herself either caused by or arising out of the driving of the
              insured vehicle.
2.      The bodily injury to Ziyanda was due to the negligent driving of the insured
driver.

11.    Therefore, the plaintiff had to show either that the driving of the insured
       vehicle was a direct cause of Ziyanda‟s bodily injuries or that her bodily
       injuries were causally connected with the driving of the insured vehicle
       and that such driving was a sine qua non thereof. (See Barkett v S.A.
       National Trust and Acceptance Co. Ltd        1951 (2) SA 353 (A) at 365;
       Wells v Shield Insurance Co. Ltd 1965 (2) SA 865 (C) at 868-871.)


12.    With regard to the alleged negligent driving of the insured driver, the
       plaintiff had to prove that:-
       1.     a reasonable person in the position of the insured driver –
              (a)     would foresee the reasonable possibility of his conduct
              injuring another person, such as Ziyanda, in her person and
              causing her patrimonial loss, and
              (b)     would take reasonable steps to guard against such
              occurrence, and
       2.     the insured driver failed to take such steps.
       (see Kruger v Coetzee 1966 (2) SA 428 (A)).


13.    It has been held by the Court in a number of cases that extra or special
       care on the part of motorists was expected to be shown in instances of
       automobile collisions where the injured parties were child pedestrians.


14.    In Jones N.O. v Santam Beperk 1965 (2) SA 542 (A) at 548H as follows:-
              “It has been emphasized in a number of decisions that a motorist
              approaching children who are near the side of a highway, is under
              a special duty to take care in relation to such children. This duty
              was restated recently in this Court in the case of South British
              Insurance Co. Ltd v Smit, 1962 (3) SA 826 (AD), in this form at
                                          6


               p.837:
                        „The propensity of children – even though well versed in road
                        safety – to rush heedlessly across the street is, of course,
                        well known. It is because of that very propensity that the
                        law requires the driver of a vehicle who sees children upon
                        or near his roadway to be specially upon the alert.‟”

15.   In S v Moodley 1966 (1) SA 248 (N) an accused had been traveling along
      the left hand side of the road at between 25 to 30 miles per hour when he
      saw a group of children standing off the road on his left. He reduced his
      speed slightly and continued travelling at a distance of approximately one
      yard from the edge of the road on which side the children were, as he had
      been doing previously. One of the children dashed into the road and was
      struck by his vehicle. On a charge of reckless and negligent driving, he
      was found guilty of negligent driving.        On appeal Caney J stated, at
      250E:-
               “More, however, than that, I consider it to have been the duty of the
               appellant, seeing the group of children so close to the road as this
               group was, to have deviated in his course. It was unnecessary for
               him to hug the left hand side of the road. He had half the width of
               a 33-foot road available to him, without crossing on to his incorrect
               side. He could have taken a course which would have given the
               children a very much wider berth. That, in my opinion, was a
               course which he should have taken. Had he done so, the space
               available when the accident was about to happen would have been
               so much greater that it is almost certain that the child would not
               have been hit by the car, since the evidence is it was hit by the front
               of the car at its left hand side. The giving of the wider berth would
               have avoided the accident. By taking either step, keeping a closer
               and more observant attention on the children as he was
               approaching them, or by giving them a wider berth, the probability
               is that the accident would have been avoided. But certainly, in my
               opinion, he ought to have taken both those steps, and had he done
               so there would have been no accident.”

16.   In the decision of Levy N.O. v Rondalia Assurance Corporation of South
      Africa Limited 1971 (2) SA 598 (A) a child who had been holding onto a
      hand of an adult, pulled into a roadway and was knocked down by a motor
      car. The driver of the car was held to be negligent. Holmes JA stated, at
      599H-600C:-
                                       7


             “As a general proposition it is well settled, and it accords with
             humanity and common sense, that a motorist approaching young
             children near the edge of the road ought to drive with a degree of
             special care and vigilance because of their tendency sometimes to
             dash heedlessly across the road. To hold otherwise would be to
             put an old head on young shoulders, and to assume that they will
             look before they leap. But the rule must not be applied as a fixed
             principle without reference to the facts. The foreseeability of
             reasonably possible collision, and the degree of special care
             required, will vary according to the particular circumstances of each
             case, for example, the visibility of the children; their apparent age;
             their proximity to the edge of the road and to the path of the vehicle;
             their immobility or liveliness; the indications, if any, of an intention
             to cross the road; the extent of their supervision by a responsible
             person; their apparent awareness of the latter, and of the children,
             of the approach of the motorist; the available width of the road; and
             the stopping power of the vehicle in relation to speed, brakes and
             road surface. Such factors (and the list is not exhaustive) are
             interrelated and not individually decisive. Their cumulative effect
             must be considered. Similarly, the particular circumstances will
             dictate the reasonable steps in relation to matters such as hooting,
             berth, swerving, slowing down or pulling up, with a view to guarding
             against the occurrence of collision, the reasonable possibility of
             which was foreseeable.”

17.   In Santam Insurance Company Limited v Nkosi 1978 (2) SA 784 (A)
      Corbett JA stated at 791F:-
             “The true position, it seems to me, is that, depending on the
             circumstances, a motorist may be bound to exercise especial care
             and vigilance not only towards children whom he sees, or ought
             reasonably to see, are present in or near the street but also
             towards hidden children whose presence there he ought
             reasonably to foresee or anticipate.”

18.   In the case of Transvaal Provincial Administration v Coley 1925 AD 24, a
      case dealing with negligence relating to children in a school yard, it was
      stated at page 27 by de Villiers JA:-
             “The care which is exacted by our law is that which the diligens
             paterfamilias would have taken in the circumstances. It is not the
             care which the man takes in his own affairs, nor that which the
             ordinary or average man would take. It is higher than that. The
             law sets up as a standard to which everybody has to conform that
             degree of care which would be observed by a careful and prudent
             man, the father of a family and of substance, who would have to
                                       8


             pay in case he fails in his duty. It will be observed that the
             standard of conduct is a high one. The test is not the diligence of
             the supine man, but of the man who is alive to probable dangers
             and takes the necessary steps to guard against them.”

19.   In Road Accident Fund v Landman 2003 (1) SA 610 (C) a 14 year old
      school girl was knocked down on the road in front of her school by a motor
      vehicle driving between 40 and 50 kilometres per hour. The child had
      been hidden from view of the driver by a stationary bus and had crossed
      the road from behind the bus to meet a friend on the opposite side. At
      the time there were numerous school children of various ages milling
      about in the vicinity.   The road on which the accident occurred was
      approximately 6,5 metres wide. The motorist proceeded along the street
      for some 80 metres without reducing her speed and did not sound her
      hooter. At page 616H Thring J stated:-
             “In the circumstances of this case, for Feris to proceed at an
             unabated speed of as much as even 40 kph, the lower end of the
             range found by the Court a quo and conceded by the appellant,
             was, in my judgment, negligent. She knew, or ought to have
             known, that at that speed there was no hope of braking to an
             emergency stop in four or five metres.”

20.   Counsel for the plaintiff submitted that there were no other vehicles on the
      road at the time of the accident and that the insured vehicle was travelling
      at about 40 kilometres per hour. The children (including the minor child
      Ziyanda) were not in the roadway, but were off the roadway approximately
      1 metre away from the side of the road and the accident took place on a
      bend with the insured vehicle turning to its left.       The children were
      unsupervised by any adult and were walking in a group albeit a short
      distance behind each other.


21.    Counsel for the defendant submitted that the evidence of the two
witnesses for the plaintiff was materially contradictory and that it demonstrably
exposed the unsatisfactory features of the plaintiff’s case. He pointed out, in
particular, that apart from Ziyanda’s evidence being mutually contradictory, it was
also entirely inconsistent with her statement which she made to the police
subsequent to the accident. Whilst in her evidence in Court she had professed
                                        9


not to recall anything about the collision, in her statement to the police she had
purported to remember clearly the circumstances under which the collision
occurred. He further argued that as her evidence progressed, however, she
seemed to know the details concerning the collision which she had earlier
professed not to recall. He further criticized her as having been evasive in a
number of respects whilst under cross-examination.

22.    In my assessment of Ziyanda as a witness, I do not find in her a person
       who came to Court deliberately to tell lies. It ought to be recalled that this
       tragedy befell her when she was only 10 years old. Without getting into
       the nature and severity of the injuries which she sustained as a result of
       this accident (an issue more relevant on the quantum debate), it was
       obvious that she suffered, among other things, a serious head injury which
       she showed to the Court as she stood in the witness box. She had a
       healed depressed and pulsating sutured wound on her left forehead
       measuring about 7 – 8 cm long. She had lost consciousness and only
       came to when she was at Wentworth Hospital a few days later. In my
       view, there was nothing unusual and uncommon, under the circumstances
       in which Ziyanda came to be, that she could not, and did not, remember
       how the collision came about.        It was also probable that when she
       returned home from hospital those who were in her company at the time of
       the collision, namely, Pretty and Buyisiwe (who were both older than her),
       related to her the circumstances under which the collision occurred. She,
       in turn, related this version in her statement to the police as though it was
       from her own recollection. Of course, such statement was hearsay to
       her. However, the circumstances remained unknown under which she
       made that statement to the police. The nature of the questions and the
       manner in which they were put to her by the police officer who was taking
       her statement were unknown. Nevertheless, I was satisfied when she
       testified in Court explaining how the inconsistencies came about, and that
       the truth of the matter was what she told the Court in her evidence,
       namely, that she did not recall how the accident occurred.
                                         10


23.    Ziyanda was subjected to an extensive and vigorous cross-examination by
       the defendant‟s counsel. It was contended, on behalf of the defendant,
       that   several   contradictions    emerged     from    Ziyanda    during    her
       cross-examination.      In my view, apart from the inconsistency between
       Ziyanda‟s statement to the police and her evidence in Court, the
       discrepancies that may have emerged during her cross-examination were
       generally not of a material nature. In fact, despite her having stated that
       she could not recall how the accident occurred, Counsel appeared to
       pressurize her into saying something about the collision. Being a fairly
       young and relatively unsophisticated witness, it seemed to me that she
       found herself giving answers about something which she either did not
       know or was not certain about, including, in some instances, the version of
       the matter as related to her by her companions. As stated already, I was
       satisfied that she did not remember how the collision occurred and,
       therefore, whatever she may have said in response to questions during
       cross-examination, which purported to indicate that she knew how the
       collision occurred, can be disregarded as only unreliable evidence rather
       than deliberate lies.    She did not appear to me to be a deliberately
       evasive and untruthful witness, but rather a timid young girl who may even
       have rarely come to a city, let alone entering a court room, and, more so,
       the witness box to testify.
24.    The defendant‟s counsel also sought to have an adverse inference drawn
against the plaintiff‟s case for failure by the plaintiff to call Ziyanda‟s companions
as witnesses despite the fact that they were available to testify. Indeed, the
Court would ordinarily be inclined to draw such inference in similar situations.
However, each case is dealt with on its own merits. In the present instance I
considered the fact that the witness who was called by the plaintiff as an
eye-witness, namely Khawula, was an independent witness, in comparison to
Ziyanda‟s companions, one of whom was her cousin and the others her friends,
and who, therefore, would probably not have testified against her. Even though
Khawula knew Ziyanda and her family, he was an independent and unbiased
witness who impressed the Court as being truthful, honest and reliable. In
coming to this conclusion, the Court considered his demeanour in the witness
box, his apparent unsophisticated and rural standing, and the lapse of time since
the occurrence of this collision. His overall impression was that of a person who
came to Court to tell the truth and not expecting any benefit therefrom.
                                      11



25.   It seems to me that most of what was contended as being material
      discrepancies    in   Khawula‟s      evidence,    especially    during   his
      cross-examination by the defendant‟s counsel, were features that were
      rather natural and consistent of a version that was not rehearsed and
      fabricated. In this regard, the Court considered his evidence in a holistic
      manner (including both its merits and demerits) and concluded that, on a
      balance of probabilities, in it the truth was told about how Ziyanda was
      struck down by the insured vehicle. As indicated hereunder in relation to
      some of the criticism levelled against Khawula‟s evidence, most of it was,
      with respect, either unfair or unrealistic, from a pragmatic or logical point
      of view.


26.   The collision occurred on 21 July 2000 and this was a common cause fact.
      Even if Khawula may have stated in his evidence that it occurred in 2002,
      there was nothing, in my view, to turn on that.        It was obviously an
      innocent mistake, particularly taking into account that one was dealing
      with an unsophisticated witness. The date of the accident was an issue
      which could even have permissibly been canvassed with the witness by
      way of a leading question by the plaintiff‟s counsel, since it was not only
      an undisputed fact but, as I have stated, one which was common cause
      between the parties. The impression the Court gained from the witness‟
      mistake in this regard was that his recollection of the events surrounding
      the collision was still so fairly vivid in his mind that when he testified in
      September 2004 (four years after the accident) he probably thought the
      collision was only two years old.


27.   The discrepancy in the distance from where Khawula was to the point of
      impact, being 30 to 40 metres as testified by him in his evidence contrary
      to approximately 100 metres as reflected in his statement to the police,
      was explained by the witness that these were only estimations.            Of
                                       12


      significance was the fact that the spot where he marked (as point “K”) on
      photos 7 and 8 of exhibit “C” as being the point where he was in relation to
      where the children were (including Ziyanda) when the collision occurred,
      afforded him a clear and unobstructed view of the point of impact at the
      time of the collision, which occurred on a clear day and in broad daylight.


28.   I do not comprehend why Khawula was criticized for having placed the
      mark “K” on photos 7 and 8 of exhibit “C” as being the spot where he was
      at the time of the collision. He said he was walking on the right hand side
      of the road (from north to south) and that when the collision occurred he
      was opposite the electric pole as seen in the photo.         There was no
      evidence to the contrary to influence the Court that he was not at that spot
      when the collision occurred. It follows that the fact of him being at point
      “K” placed him in a position where he could clearly observe the collision
      and that was probably the reason which enabled him to witness the
      collision.


29.   Khawula was further criticized for not having mentioned anything about
      “cutting the corner” on the part of the insured driver, in his police
      statement, pleadings and evidence-in-chief.      Indeed, this aspect of his
      evidence was important and one would have expected him to have
      mentioned it prior to his cross-examination by the defendant‟s counsel.
      However, the Court had to consider his apparent relative illiteracy and
      level of ignorance, not only from the point of view of academic education,
      but also of motor vehicle driving and road language or colloquialism,
      including such phrases as “cutting of a corner”.        This is an English
      expression which I doubt whether Khawula was even aware of. This was,
      it seems, a situation which depended largely on the competence or
      efficiency on the part of the interpreter who conveyed in English and, in
      particular, in relevant colloquial terms, what he understood when Khawula
      was relating his story at a given time.
                                       13



30.   Much was also contended about Khawula having testified that Ziyanda
      was struck by the rear part of the truck, whereas in his police statement he
      had stated that it was the “back end” of the truck which collided with her.
      To my mind, that version is basically the same. It was not necessary for
      the witness to have been able to observe the specific part of the bin that
      collided with the child in order for him to be believed. The collision was a
      tragic accident which happened so quickly that the witness could not
      reasonably be expected to identify the precise spot on the bin which
      collided with her. It sufficed for him to mention that it was the back of the
      truck (the insured vehicle) which struck her.


31.   The fact that Khawula stated that the children did not jump off the road
      when the insured vehicle appeared did not, in my view, detract from the
      probability that they did in fact move off the road when the insured vehicle
      appeared or came closer. Again, Khawula‟s evidence in this regard can
      only be attributed to an innocent mistake or oversight on his part. After
      all, the fact of the children having moved off the road was mentioned not
      only by Ziyanda‟s two companions in their police statements, but the
      insured driver himself confirmed it in his evidence.


32.   It does seem to me that the negligence on the part of the insured driver
      was not established only from the evidence of Khawula, but also from that
      of the insured driver himself. He told the Court that when he approached
      the bend, travelling at 40 kilometres per hour, he noticed the children on
      the road and that they moved off onto the grass verge alongside the road.
      It would appear, however, that once he saw the children moving off the
      road, he removed his concentration from them and their movements.
      There was no evidence that he reduced his speed or even sounded a
      hooter. Having noticed that these were children he ought to have given a
      wider berth when he closed up to the area where the children were, and
                                      14


      moved towards the right.


33.   Besides, his own experience of that area had taught him that children on
      the road normally retrieved sugar cane from the back of sugar cane
      trucks. Whilst it was not clear to the Court why he had to mention this
      alleged delinquent practice on the part of children, since it obviously did
      not apply to the insured vehicle (which was not carrying sugar cane but
      medicine), this point established, in any event, that the insured driver had
      some foresight that the children might possibly interfere or somehow touch
      his truck as he drove past them, at which time, according to him, they
      were only about 1 metre away.        Such practice simply confirmed the
      observation made by the Courts that children had a propensity to rush
      heedlessly across the road.


34.   Therefore, the insured driver ought, in my view, to have been extra careful
      and given a wider berth, by moving more towards the centre of the road,
      once he reached the area where the children were, in order to avert any
      potential accident occasioned by this unpredictable behaviour of children
      on or along the roads. He conceded that the road was wide enough to
      accommodate two vehicles parallel to each other at the same time. It
      was also common cause that there were no other vehicles on that
      particular part of the road at that time. Had he given the wider berth, the
      collision would, in my view, not have occurred.


35.   The other striking feature which again pointed at negligence on the part of
      the insured driver was the fact that he did not even see when Ziyanda was
      struck down. He continued driving along until he was stopped by other
      people when he was some distance away.            Such conduct on his part
      confirmed the view that by the time he drove past the children he had
      completely removed his concentration from them, yet according to him,
      they were only one metre away from the side of the road. They were at
                                        15


      or around the bend when he travelled past them.            It would therefore
      appear that what caused the collision was the insured driver having either
      “cut the bend” or having unconsciously moved so close to his left hand
      side that he did not realize his vehicle had gone off the road and
      encroached on the grass verge one metre outside the road where the
      children were.    The fact of him not having noticed his motor vehicle
      colliding with the child can, therefore, only be attributed to him not having
      kept a proper lookout on and around the road where he was travelling at
      the time.


36.   I am, therefore, satisfied that the plaintiff has succeeded in proving, on a
      balance of probabilities, that the negligence on the part of the insured
      driver was the sole cause of the collision between the insured vehicle and
      the minor child Ziyanda Beryl Malunga which occurred on 21 July 2000 in
      Mswilili Location in the district of Umzinto.     There was nothing, in my
      view, which the minor child did that contributed to the cause of the
      collision as to warrant the apportionment of blame between the plaintiff
      and the defendant. She and her companions were walking on the right
      hand side of the road, which was the correct side for pedestrians. When
      the insured driver approached they moved off the road for at least a metre
      outside the road to allow the insured vehicle the right of way.


37.   The plaintiff further sought a costs order in favour of the plaintiff, including
      costs of two counsel.      In this regard, the plaintiff submitted that the
      plaintiff was a curator suing on behalf of the minor child who was
      obviously coming from an indigent family background. The minor child
      sustained serious head injury and the claim involved a large sum of
      money.      It was further pointed out that the plaintiff did not litigate
      luxuriously with two counsel from the start. Initially an attorney attended
      to the pleadings and junior counsel was instructed to attend to the trial.
      Subsequently, however, senior counsel was engaged only when the
                                           16


      defendant engaged senior counsel. In any event, it was submitted, the
      matter was not without difficulty, given the fact that the injured minor child
      could not remember anything about the collision.           On the contrary,
      counsel for the defendant argued that although the defendant had
      employed senior counsel, there had been no need for the employment of
      two counsel on the other side. The defendant‟s pleadings were attended
      to by its attorneys whereafter senior counsel was engaged to attend to the
      trial.


38.   Although the dispute before the Court involved mainly factual issues,
      these were not without complications. There is little doubt, if any, that the
      plaintiff‟s case would have stood at a disadvantage had the plaintiff
      employed junior counsel to face up to the defendant‟s senior counsel. In
      that way, the interest of the injured minor child would have been
      jeopardized. I am, therefore, inclined to grant a costs order as sought by
      the plaintiff.


39.   In the result, I make the following order:-


      (a)      The collision on 21 July 2000 between the insured vehicle and the
               minor child, Ziyanda Beryl Malunga, was caused solely by the
               negligent driving of the insured driver, Magayisa Timothy Mkhungo.


      (b)      The defendant is liable to compensate the plaintiff for any damages
               which the plaintiff may prove.


      (c)      The defendant is to pay the costs of this action thus far, including
               the costs of two counsel.




                                                    ……..………………………………
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Counsel for the Plaintiff :   Mr A.K. Kissoon-Singh SC
     Assisted by :            Mr B.S.M. Bedderson
     Instructed by :          Friedman & Associates

Counsel for the Defendant :   Mr Y.N. Moodley SC
     Instructed by :          Livingston Leandy Inc.

Date of Hearing :             23 September 2004

Date of Judgment :            29 July 2005

				
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