In A Road Accident Fund (RAF) claim with a twist, a motorist claimed damages from the entity after he said that he had hit a black, dead donkey that was in the middle of the lane in which he was travelling.
Frederick Barnard told the High Court in Pretoria, that at first he did not realise what had caused the accident. However, he later saw that a donkey was lying in his travel lane.
It appeared that Barnard had struck a donkey that had been hit by another motor vehicle and left on the road.
Counsel for the RAF questioned whether the animal was hit by another vehicle, and if the court found that it was, it raised the aspect of contributory negligence on Barnard’s side.
He testified that he has a Code 14 driver’s licence. On the day of the accident, he, his fiancée and their three children were on their way to the Free State to visit family.
They travelled at night on a two-lane tar road, and when he approached a bend in the road, an upcoming car was travelling with its brights on. As the car was next to him, he struck something.
Barnard said he lost control, and the vehicle rolled over. One of their children was subsequently fatally injured. He walked around the scene to see what he had struck.
Evidently, he saw a black donkey was lying in his travel lane. As he walked around the scene, he saw indications in the other lane that the donkey had previously been struck by another vehicle.
He found pieces of hair, intestines, and blood on the road. He did not see other donkeys in the area.
He testified that he could not have done anything to avoid hitting the object in the road. Barnard added that he would also have hit the donkey if it was on its feet as he had been blinded by the approaching vehicle.
When the police arrived, they took pictures of the accident scene, but not of the donkey.
It was put to Barnard by counsel for the RAF that he should have expected animals near the road because he had passed an informal settlement. He was also accused of speeding at the time.
While Barnard denied this, the fund did not call any witnesses or experts to refute Barnard’s version of events.
Judge Elmarie van der Schyff said this case highlights the predicament faced by many legal practitioners representing the RAF.
She said since no witnesses were called to testify on behalf of the fund, despite such witnesses being available, the only version before the court is that of the plaintiff.
“By agreeing to accept the documentary evidence without calling the authors of the respective documents, the fund deprived itself of an opportunity to contest ambiguities,” she said.
“Where a witness’s credibility cannot be questioned, the court is bound to accept that witness’s version of events, particularly if such a version is not improbable or far-fetched.”
The judge accepted that the donkey was the cause of the accident as it had been previously hit by another car. She said Barnard explained that he showed the intestines, hair and blood to the police when they were at the scene, and he can’t explain why they did not include pictures thereof in their plan.
Barnard’s counsel, according to the judge, correctly submitted that the donkey could not have dropped dead lying in the road, and a common-sense approach should be followed.
“It is a reasonable and probable inference that the donkey was earlier hit by another vehicle and was then projected by the impact from the opposite lane to the middle of the lane where the plaintiff was travelling.”
The judge added that it was the duty of the motorist who had initially hit the animal to either remove it from the road or give sufficient warning to oncoming traffic.
“The unknown driver’s failure to do so constitutes negligence,” she said.
Judge van der Schyff explained that it is trite in our law that a driver is bound to guard against danger he could and should have foreseen. What is reasonably foreseeable would depend on surrounding circumstances.
“Even if one was to accept that the plaintiff travelled at high speed, instead of the 80km/h he testified, there is no evidence that he could have avoided the crash if he was travelling at a slower speed,” the judge said.
She ordered that the RAF was 100 percent liable for the damages which Barnard could prove he had suffered. The amount of the damages will be determined at a later stage.