De Kock v Road Accident Fund

The plaintiff was riding her Harley Davidson motorcycle on the R43 road near the Salandra Shell Garage. She was overtaking a line of three vehicles (an Audi, a Jeep Cherokee, and a Lexus) when the insured driver of the Audi, who was ahead of her, executed a right turn into the south entrance of the garage without indicating. A collision occurred between the motorcycle and the right rear side of the Audi. The plaintiff suffered injuries and memory loss and sued the Road Accident Fund for damages. The defendant raised contributory negligence. The court heard evidence from the plaintiff, her husband, an accident reconstruction expert (Mr Craig), and an independent eyewitness (Mr Taylor).

• Whether the insured driver was solely negligent for the collision
• Whether the plaintiff was contributorily negligent
• If both parties were negligent, what the appropriate apportionment of liability should be

The Defendant is liable to pay to the Plaintiff fifty percent (50%) of such damages as the Plaintiff is able to prove arising from the injuries she sustained in the collision. Costs to stand over.

A driver intending to execute a right-hand turn across following traffic has a continuous duty to use a rear-view mirror to check for approaching vehicles and must signal the intention clearly. An overtaking driver must keep the vehicle ahead under observation and not overtake when it is unsafe or where road markings (such as a painted island) prohibit overtaking. Where both the insured driver and the plaintiff fail to keep a proper lookout and their negligent conduct causes a collision, liability will be apportioned in accordance with their respective degrees of fault.

The court criticised the approach in Van der Schyff v Road Accident Fund, stating that a court is obliged to consider relevant legislation and regulations regardless of whether counsel specifically referred to them. The failure of a party to cite a specific provision does not absolve the court from taking cognisance of the applicable law.

This case reinforces the principles of negligence and contributory negligence in motor vehicle collisions involving overtaking and right-turn maneuvers. It clarifies that a plaintiff cannot rely solely on the absence of defense witnesses to escape a finding of contributory negligence when the evidence, including independent eyewitness testimony and the objective circumstances, demonstrates fault on the plaintiff's part. It also confirms that driving on a painted island in contravention of road traffic regulations can constitute negligence.