Road Accident Fund v Jason King Grobler

On 4 September 1999, a collision occurred on the road between Pretoria/Tshwane and Hammanskraal involving a Nissan Skyline driven by Mr SR Matseke (the insured driver) and a Yamaha motorcycle driven by the respondent Jason King Grobler. The respondent was severely injured and became completely paralysed below T8 with incontinence complications and impaired use of arms and hands. The accident occurred on a clear sunny day at about 12h30 on a straight tarred road with broad gravel shoulders. An Isuzu bakkie was stationary in the northbound lane. The insured driver, travelling northbound, overtook the stationary Isuzu by entering the southbound lane (his incorrect lane) where the respondent was travelling. The insured driver failed to return to his correct lane timeously. When the vehicles were between 50-100 metres apart, an emergency arose. The respondent swerved to his right (incorrect lane) to avoid collision, but the insured driver also swerved in the same direction, resulting in a head-on collision. The sole eyewitness was Mr Ronald Basson. The insured driver had died by the time of trial, and the respondent had no memory of the accident due to unconsciousness upon impact.

• Whether the respondent motorcyclist was contributorily negligent in swerving to his incorrect lane of travel to avoid the collision
• Whether a driver who takes evasive action in a sudden emergency not of his own making can be held negligent for an error of judgment
• What standard of care applies when a driver is confronted with a sudden emergency
• Whether the respondent failed to keep a proper lookout and take precautionary measures before the emergency arose

The appeal was dismissed with costs, including the costs consequent upon the employment of two counsel. The judgment and orders of the Transvaal Provincial Division awarding the respondent damages in the amount of R3,931,461 with costs were upheld.

When a driver of a motor vehicle is confronted with a sudden emergency not of his own making, created by the negligence of another driver, and has only a split second (1-2 seconds) to react, his conduct should not be assessed by meticulously examining the options available to him in light of after-acquired knowledge. If the driver commits an error of judgment in choosing how to respond to the emergency, this does not amount to negligence unless it can be shown that no reasonable person in the same circumstances would have acted similarly. The test is whether the driver acted reasonably in the circumstances, not whether he chose the objectively best course of action as events subsequently proved. A driver plunged into a sudden emergency by another's negligence who veers away from the danger, even onto his incorrect side of the road, is not necessarily negligent merely because that option resulted in a collision, provided a reasonable person could have made the same choice in the limited time available.

Musi AJA in the minority judgment made important obiter observations: (1) That the proper approach in assessing contributory negligence should not confine the inquiry to conduct during the emergency itself, but should extend to what precautionary steps a driver took to avoid the impending emergency; (2) That if a driver had the opportunity to take measures ahead of the emergency to avoid the accident and failed to do what a reasonable person would have done, he/she would be negligent; (3) That failure to keep a proper lookout is a serious infraction which can have catastrophic consequences. The majority also made obiter comments about the general rule that a driver facing an oncoming vehicle in his lane should, as a general rule, avoid swerving to his incorrect lane as his primary course of action, but emphasized that each case must be judged on its own merits and circumstances (citing Kleinhans, President Insurance, and Burger cases). There were also obiter concerns expressed about aspects of the eyewitness Basson's evidence being inherently illogical and unconvincing, and questions about his impartiality, though these did not affect the outcome as his credibility was not challenged.

This case is significant in South African law for establishing important principles regarding contributory negligence in road accident cases, particularly: (1) The proper approach to assessing negligence when a driver faces a sudden emergency not of his own making; (2) The principle that a driver's conduct should not be meticulously examined in light of after-acquired knowledge when he had only seconds to react; (3) The distinction between an error of judgment made in an emergency and negligence; (4) The test is whether a reasonable person in the same circumstances could have acted similarly, not whether the driver chose the objectively best course of action; (5) The case illustrates a judicial split on whether the inquiry into negligence should be confined to the emergency itself or extended to precautionary measures that could have been taken before the emergency arose. The case demonstrates the application of principles from earlier authorities like SAR and H v Symington 1935 AD 37 and Rodrigues v SA Mutual & General Insurance Company Ltd 1981 (2) SA 274 (A) regarding sudden emergencies.