ASSESSMENT OF CLAIMS
INTRODUCTION - This brochure will briefly discuss the assessment of claims by firstly looking at the principles involved in the most common 'accident scenes/scenarios', namely right-hand turns and following traffic, intersections and stop streets. Thereafter, a number of issues independent to the cause of action that also have an impact in the assessment of claims will be discussed.
RIGHT-HAND TURNS AND FOLLOWING TRAFFIC
This unfortunately is one of those situations where there are conflicting decisions as to whether the driver turning right only has a duty to signal his intention to turn right or whether such driver must also satisfy himself that his signal has been heeded and responded to by the following traffic.
HEED AND RESPOND TO SIGNAL
The majority of cases are of the view that the driver turning right needs to ensure that the following traffic has observed and responded to his signal to turn right (see Brown vs Santam 1979 4 SA 370 W, Potgieter vs AEG Telefunkun 1977 4 SA 3 O, James vs Fletcher 1973 1 SA 687 RA, Boots Co vs Somerset West Municipality 1993 SA 216 (C)).
The one case in favour of the driver turning right only having to signal his intention to do so is Hatting vs R 1935 NPD 336. The reason for the driver only having to signal is that the driver should focus all his intention on the oncoming traffic.
DUTIES OF OVERTAKING DRIVER
It is not only the right turning driver that has certain duties. The overtaking driver also has duties to adhere to whilst overtaking. These duties will vary according to the different circumstances of each matter.
In Mabaso vs Marine & Trade Insurance 1963 (3) SA 439 (D) it was said that an overtaking motorist is entitled to assume that the slower moving traffic will keep left. The hooter should only be used if a slower moving vehicle gives any indication of straying from its course. Similar view were expressed in Castle & Castle vs Pritchard 1975 (2) SA 392 (R) and in Beswich vs Creus 1965 (2) SA 690 (A).
DUTIES OF DRIVERS IN GENERAL
Where drivers enter intersections there is a general duty to drive at such a speed so as to be in a position to be able to avoid collisions with other vehicles which may also enter the intersection.
The correct speed depends on the circumstances of each case. For instance, should the driver's visibility be obscured by a blind corner the speed must obviously be reduced accordingly.
The driver entering an intersection is obliged to proceed slowly until he can clearly see that no traffic is approaching, firstly from the right and then from the left. This is set out in Victoria Falls & Transvaal Power vs Thorntons Cartage Company Limited 1931 TPD 516.
ROBOT CONTROLLED INTERSECTION
The duty of care that a driver has whilst entering an intersection is not absolved by the fact that there are traffic lights at the intersection and the signal is in his favour (i.e. green).
The degree of care that a driver entering a robot controlled intersection has to exercise if the signal is in his favour, depends on how close the driver was to the intersection when the traffic light changed in his favour. The closer he was to the intersection when the lights changed to his favour, the greater the degree of care is that he has to exercise. The reason for this is that traffic which entered the intersection lawfully may still be in the intersection. (See Santam vs Gouws 1988 2 SA 629 A).
POSITION OF DRIVER WHO DISREGARDS TRAFFIC SIGNALS
A driver who passes through a red robot and enters an intersection is regarded as a trespasser. However, this does not give an obedient driver the right to run the trespasser down heedlessly. If it is found that the obedient driver failed to avoid a collision when he could have done so by the use of ordinary care, it will amount to negligence (See Van Der Walt vs Gershalter 1944 TPD 240)).
An obedient driver is, however, not obliged to look out for traffic which might possibly enter the intersection unlawfully from either side against the red light (See Van Vollenhoven vs McAlphine 1976 (3) SA 579 (N) and Seba vs Louw 1977 (3) SA 1103 (C)).
A driver does not have a general right to proceed against an amber light. He should regulate his speed so that he would be able to respond to an adverse signal without a sudden stoppage. If the lights are amber against a driver he should stop (See Fay Fashions (Pty) Ltd vs SAR&H 1946 TPD 44, Sorenson vs Botha 1944 CPD 66 and S vs Van Stryp 1979 2 SA 707 (E)).
TURNING RIGHT AT ROBOT CONTROLLED INTERSECTIONS
Where there is a fair amount of traffic using a robot controlled intersection, the normal and reasonable procedure for a driver who wishes to turn right is to enter the intersection when the lights are green in his favour. He must then to pause at the centre of the intersection and remain there until the lights change and the traffic using the road he is in is stopped by the red light. Though it is perfectly permissible for a driver to execute this manoeuvre while the lights are still green in the road from which he is turning, he must remember that, when he is doing this, the green lights are giving the traffic crossing his path a special right of way, and it is his duty, in these circumstances, to be particularly careful that he does not impede this traffic. (Norwich Union Fire Insurance vs G Chiduku 1971 (1) SA 599 (RA)).
A Court is entitled to take judicial notice (i.e. accept as fact) that when the traffic lights facing in one direction at a right angled intersection are green, those facing at right angles to them should be, and probably are, red. This is, however, not an irrebuttable presumption and the contrary can thus be proved.
A stop street does not dispense with the necessity of a motorist driving along a 'through street' to keep a proper lookout for traffic entering the intersection from the stop street (See Ulrich vs Pepler & Co (Pty) Ltd 1935 CPD 46).
However, the degree of care in respect of a motorist travelling along a through street is not as high as that expected of a motorist not travelling were there is a stop street (Electric Supply Commission vs Le Roux 1954 1 SA 1047).
Hereunder follows a short checklist of issues that are independent of the merits of a matter that also play a role in determining whether or not to institute action.
AMOUNT OF CLAIM
Quantum will obviously be a deciding factor in whether or not to institute action. It may not be worthwhile to institute action if the quantum is low. The legal costs involved may make the instituting of an action uneconomical.
POSSIBLE COUNTERCLAIM AND APPORTIONMENT
These two aspects go hand in hand and the best way to illustrate is by way of an example.
The Plaintiff driving a 1970 beetle that collides with a new Mercedes Benz in an intersection may be wise not to institute action against the driver of the Mercedes Benz. The reason for this is that the damage incurred by the Mercedes Benz is far likely to be substantially higher than the damage done to the beetle. Thus, even if the merits clearly favour the Plaintiff and a higher apportionment is awarded in his favour, he may still end up paying money to the Defendant.
Legal costs can escalate and have a bearing on your decision. In today's age, money talks and the legal costs that may be incurred must be weighed up against possible recoveries. Accordingly, it may not be viable to proceed against a 'man of straw' even though the merits are clearly in the Plaintiff's favour. This would amount to throwing good money after bad.
Legal costs are not the only costs to consider when deciding to institute action. Witnesses may not reside in the district you intend instituting action. Substantial costs may be incurred in consulting with such witnesses and getting them to court to testify.
MUTUALLY EXCLUSIVE VERSIONS
Matters in which the Plaintiff and the Defendant give completely different versions as to how the cause of action arose must be considered very carefully. In such circumstances the odds are stacked in favour of the Defendant as the onus of proof falls on the Plaintiff. Decisions that may be arrived at by the Court are as follows:
- all or nothing in favour of the Plaintiff or the Defendant;
- absolution of the instance. (i.e. 'a draw')
In cases of absolution of the instance, an adverse cost order is normally awarded against the Plaintiff.
Where there are mutually exclusive versions, you must least ensure that you have the following at your disposal:
- a reliable witness; and
- confirmatory evidence (e.g. brake marks, damage to vehicle)
If you do not have the above, the Magistrate will have to base his decision on the testimony given by the Plaintiff or the Defendant. Should the Plaintiff not be able to discredit the Defendant's version to such an extent that the Court has no option but to disregard it, absolution from the instance will normally be awarded.
Having an independent witness that confirms your version is obviously an advantage. The reason for this is that any testimony given by an independent witness which is unbiased should result in the Court accepting your version.
The above is not a complete checklist in respect of assessing claims. However, the points that have been listed are the most important to consider when deciding to institute action.