THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case no:
096/06

In the matter between:

ROAD ACCIDENT FUND

Appellant

and

JASON KING GROBLER

Respondent

_____________________________________________________

Coram:
Farlam JA, Hancke et Musi AJJA

Date of hearing: 23 March 2007
Date of delivery: 31 May 2007

Summary:
Collision between a motor vehicle and motor cyclist ─ to avoid a
collision, the cyclist swerved to his incorrect lane of travel ─ if the motor cyclist
committed an error of judgment, the question is whether a reasonable man in the
circumstances could have done the same ─ it is wrong to examine meticulously the
options taken by the cyclist in the light of after-acquired knowledge ─ no contributory
negligence proved on the part of the motor cyclist ─ order in para [15].

Neutral citation:  This judgment may be referred to as RAF v Grobler [2007] SCA 78 (RSA).
_____________________________________________________
HANCKE AJA

HANCKE AJA:

[1] I have had the advantage of reading the judgment of my colleague
Musi AJA. I have come to the conclusion that the appeal must fail for the
reasons which follow.

[2] The facts I consider relevant for the determination of the appeal are
either set out in my colleague’s judgment, or are referred to hereinafter.

[3] It is common cause between the parties that immediately prior to the
collision, the insured driver had executed an overtaking manoeuvre,
overtaking a Isuzu bakkie which was stationary in his lane and thereby
entering his incorrect lane of travel, being the lane of travel upon which the
respondent was travelling. The appellant having conceded the negligence of
the insured driver, it bore the onus to prove contributory negligence on the
part of the respondent. Of importance was the distance between the two
vehicles at the point when the insured vehicle failed to return to its correct side
of the road, presenting the respondent with a sudden emergency. On the
evidence, the distance between the two vehicles at that point was between 50
metres, as estimated by the eyewitness Basson, and a maximum of 100
metres, being the reconstruction of the expert Professor Lemmer.

[4] It is apparent from the evidence that the respondent must have had an
unrestricted view down the road ahead of him of more than 1,5 kilometres as
he crested the rise, and that in this vista he would have been able to see both
the stationary Isuzu in the oncoming lane, and the insured vehicle. There was
however no evidence as to the distance between the crest and the stationary
Isuzu, and, more importantly, as to where the insured vehicle would have
been at that point. It is important to note that nowhere in the evidence was a
distance between the Isuzu and the crest or the dip canvassed.

[5] As already mentioned the distance between the insured vehicle and the
respondent’s motorcycle at the point where the former failed to return to his

correct lane was, at best for the appellant, somewhere between 50 metres
and a maximum of 100 metres. That was accordingly the distance between
the vehicles when the respondent could first reasonably have realised that the
oncoming vehicle was not returning to its correct lane.

[6] In this regard, the Court a quo stated the following:
‘Only when the insured driver failed to take the expected action, did the emergency arise.
There is no evidence indicating at what distance this motorcyclist should have realised that
the insured driver was acting oddly. Likewise, there is no evidence indicating how much
earlier than its abortive swerve to the left, the insured driver could have returned to its correct
side of the road.’

[7] The respondent was obliged to take evasive action. One possibility was
to swerve away from the oncoming vehicle to the left. According to the
evidence the terrain to the left was hazardous. There was loose gravel, a
culvert, trees and a fence. According to Professor Lemmer’s evidence, even if
the vehicles were 100 metres apart at that point, going off onto the gravel to
the respondent’s left would have been ‘quite a dangerous exercise’. It is also
important to note that approximately 80 metres in front of the respondent,
there was a stationary Golf with five people (including Basson) standing next
to it on the gravel to his left. On the other side of the road there was the
stationary Isuzu and, further to the right, Basson’s vehicle parked on the
opposite gravel verge to the Golf. According to Professor Lemmer’s
calculations, on the assumption that the distance between the two vehicles
was 100 metres at that stage, then they probably had two seconds to impact.
If the distance between the two vehicles at the time was closer to the 50
metres as estimated by Basson, the time to impact could have been closer to
one second.1 The evidence of Basson in this regard is not contradicted and
his impression was that it happened ‘in the wink of an eye’.

[8] A driver of a motor vehicle who is faced with an oncoming vehicle
which has swerved and entered its incorrect lane of travel, and an impending

1 Allowance must be made for reaction time. Cf Pretorius v African Gate and Fence Works Ltd
1939 AD 567 at 575; R v Goodall 1969 (3) SA 541 (RAD) at 543A-B. In his evidence
Professor Lemmer allowed for reaction time of about one second.

collision must, as a general rule, avoid swerving to its incorrect lane as his
primary course of action. Kleinhans v African Guarantee and Indemnity
Company Ltd 1959 (2) SA 619 (E) at 624F; President Insurance Company Ltd
v Tshabalala and Another 1981 (1) SA 1016 (A) at 1018F-H and 1020C;
Burger v Santam Versekeringsmaatskappy Bpk 1981 (2) SA 703 (A) at 708A.
It is important that each case be judged on its own merits. The cases referred
to must be seen in the context of their own facts. In all the cases mentioned
the motorists who veered onto the incorrect side of the road had more
opportunity and/or options than the respondent had.

[9] It is clear from the evidence that the respondent was plunged by the
insured driver’s negligence into a situation of sudden emergency, that he had
no more than a second within which to escape that emergency, and that he
effectively was given a choice between facing the danger, or veering away
from it and hoping that it would not follow him. He did the latter. In Rodrigues v
SA Mutual & General Insurance Company Ltd 1981 (2) SA 274 (A) Van
Heerden AJA stated the following on 280H-281A:
‘He was confronted by a sudden emergency as a result of the unexpected presence of a
kneeling person in the street. He judged that by swerving as he did he would be allowing a
sufficient berth to avoid colliding with the appellant. He also had to consider his own safety as
well as that of the passengers in the back of the van, which could have been endangered by a
violent swerve. In my view the circumstances were such that his failure – if indeed it was one
– to swerve more to his left did not amount to negligence but at the most to an error of
judgment.’2

[10] If he committed an error of judgment, the question is whether a
reasonable man in the circumstances could have done the same. In Ntsala
and Others v Mutual & Federal Insurance Company Ltd 1996 (2) SA 184 (T)
Els J stated the following on 192F-H:
‘Where a driver of a vehicle suddenly finds himself in a situation of imminent danger, not of
his own doing, and reacts thereto and possibly takes the wrong option, it cannot be said that
he is negligent unless it can be shown that no reasonable man would so have acted. It must
be remembered that with a sudden confrontation of danger a driver only has a split second or

2 See also Von Wielligh v Protea Versekeringsmaatskappy Bpk 1985 (4) SA 293 (C) at 301D-
F.

a second to consider the pros and cons before he acts and surely cannot be blamed for
exercising the option which resulted in a collision.’3

[11] The question is whether the respondent acted reasonably in the
circumstances. In SAR and H v Symington 1935 AD 37 Wessels CJ stated
(at 45):
‘Where men have to make up their minds how to act in a second or in a fraction of a second,
one may think this cause better whilst another may prefer that. It is undoubtedly the duty of
every person to avoid an accident, but if he acts reasonably, even if by a justifiable error of
judgment he does not choose the very best course to avoid the accident as events afterwards
show, then he is not on that account to be held liable for culpa.’4

[12] When a person is confronted with a sudden emergency not of his own
doing, it is, in my view, wrong to examine meticulously the options taken by
him to avoid the accident, in the light of after-acquired knowledge, and to hold
that because he took the wrong option, he was negligent.5 The test is whether
the conduct of the respondent fell short of what a reasonable person would
have done in the same circumstances.

[13] In finding no contributory negligence on the part of the plaintiff, the
Court a quo stated the following:
‘There is no basis upon which it cannot be found, that until a very late stage the second
plaintiff had no reason to anticipate that the insured driver would not return to his lane. After
all, the insured driver was executing the more dangerous manoeuvre of passing the LDV on
its right, and on the wrong side of the road, and one would have expected him to be very alert
as to when he was to return to the correct lane.
It is so, that if the motorcyclist carried straight on, then the collision would not have occurred.
On the other hand, if the insured driver did not also swerve to the east and tried to travel in its
correct lane, the motorcyclist would have avoided the collision with its right hand swerve.
It is my view, that a sufficient basis has not been established by the defendant on which the
court can find that the conduct of the second plaintiff fell short of what a reasonable
motorcyclist would have done.’

3 See also Rabe v Multilaterale Motorvoertuigongelukkefonds [1997] 4 All SA 407 (T).
4 See also Sierborger v South African Railways and Harbours 1961 (1) SA 498 (A) at 506D-G.
5 Van den Heever J in Cooper v Armstrong 1939 OPD 140 at 148.

[14] I agree and am accordingly of the view that the Court a quo was correct
in finding that no contributory negligence was proved on the part of the
plaintiff.

[15] I would therefore make the following order:
The appeal is dismissed with costs, including the costs consequent upon the
employment of two counsel.

________________
SPB HANCKE AJA

CONCUR:

FARLAM
JA

MUSI AJA:

[16] This is an appeal from a judgment of the Transvaal Provincial Division
of the High Court delivered on 28 October 2005. The dispute arises out of a
road accident that occurred on 4 September 1999 on the road between
Pretoria/Tshwane and Hammanskraal (the old Warmbaths road) some 8
kilometres from Hammanskraal, in Gauteng. The collision involved a Nissan
Skyline motor vehicle driven by one Mr SR Matseke (hereinafter referred to as
the insured driver) and a Yamaha motorcycle there and then driven by the
respondent. As a result of the collision, the respondent was severely injured.
The injuries are described in the following terms in the judgment of the Court a
quo:
‘The second plaintiff sustained severe injuries as a result of the collision the most traumatic of
which, is the fact that he is completely paralysed below T8, with concomitant incontinence
complications and that the use of his arms and his hands, have become impaired.’

[17] The respondent, who was a minor at the time and was duly assisted by
his mother, instituted action against the appellant as the body that carries
responsibility for compensation of the victims of road accidents in terms of

s 2(1) of the Road Accident Fund Act No 56 of 1996 (the Act) claiming
compensation for the damages he sustained as a result of the accident.
Hartzenberg J found that the collision was due to the sole negligence of the
insured driver and awarded the respondent damages in the total amount of R3
931 461 with costs, including the costs of two counsel and the qualifying fees
of the experts who testified in the trial. He made a further order that the
appellant furnish an undertaking in terms of s 17(4)(a) of the Act relating to the
respondent’s future medical treatment. I should mention that the respondent’s
mother, who featured as the first plaintiff in the court a quo, also claimed and
was awarded an amount of R438 031.51 for the expenses that she had
personally incurred in respect of the respondent’s injuries. This award is not
the subject of this appeal and hence the erstwhile first plaintiff no longer
features.

[18] The appellant now appeals, with leave of the court a quo, against the
whole of the judgment and the orders made in respect of the respondent.

[19] The factual background to this matter is largely undisputed. By the time
that the case was tried, the insured driver had died of causes unrelated to the
accident and could therefore not testify. On the other hand, due to the fact
that he had become unconscious upon impact, the respondent could not
remember the events of the day, save for a hazy recollection of what
transpired immediately before the collision. The case was decided largely on
the testimony of the sole eye-witness, Mr Ronald Basson, who was called by
the respondent. In addition, two experts testified on behalf of the respondent
on the merits and the appellant relied solely on the testimony of an expert.
Photographs of the scene of the accident were also handed in and they give a
very clear picture of it.

[20] In summary, the evidence is as follows. The accident occurred on a
clear sunny day at about 12h30 and traffic was not busy. The section of the
road where the accident happened is made up of two lanes, one in each
opposite direction. It is a tarred road with broad gravel shoulders on either
side. It is a straight road that moves in the direction of north to south as one

goes towards Pretoria and south to north as one travels towards
Hammanskraal. Just before the scene of the accident, as one comes from the
south, there is a rise followed by a gentle curve to the left and then the road
straightens, declining toward a dip and then inclining again. The same would
be the case with a person travelling in the opposite direction. He would be
declining towards the dip and then going up the rise. The accident happened
in the area between the dip and the rise as one travels southward. As the
respondent emerged from the rise coming from the south he would have had
a clear, undisturbed view ahead of him extending to about 1.5 kilometres to 2
kilometres. The same would be the case with the insured driver as he
approached the dip from the north.

[21] Basson testified that he had come from Hammanskraal on his way to
Pretoria at about 12h00 and when he got to this spot where the accident
happened he found an Isuzu bakkie stationary in his lane. The Isuzu had
apparently been involved in an accident earlier. He overtook it, pulled off to his
left and parked his vehicle a short distance from the Isuzu. Opposite the
stationary Isuzu on the gravel on the other side of the road was a red Golf
sedan, next to which stood four men who turned out to be police officers. He
walked across the road and talked to these men. The contents of the
discussions are not necessary for the purposes of this judgment, save that
Basson alerted the policemen to the danger posed by the stationary Isuzu to
other road users. At that point he observed the Skyline approaching from the
direction of Hammanskraal. The insured driver overtook the stationary bakkie
but then did not immediately return to his correct lane. Basson says that he
then observed the respondent approaching. The insured driver had still not
returned to his correct lane. At that point the Skyline and the motorcycle were
50 metres apart facing each other in the same lane and an emergency
ensued. In an attempt to avoid the accident, the respondent swerved to his
right but then the insured driver also swerved to his correct lane. Both drivers
then swerved back to the western lane and collided with each other in the
process.

[22] According to Basson, this was a head-on collision. The motorcycle hit
the Skyline on its right front side, on the driver side, and as he did so the
respondent and his vehicle split. The respondent hit the top of the Skyline
twice, flew over and went to land on the eastern lane. The photographs of the
scene confirm this insofar so as the location of the damage on the Skyline and
the positions of the respondent and the motorcycle are concerned.

[23] I should say in passing that there are aspects of Basson’s evidence
that are inherently illogical and unconvincing. Take the evidence that he saw
the respondent’s eyes turning when the motorcycle went on top of the Skyline.
How could this be when he was 30 metres away and the respondent wore a
head shield that partly obscured his face? Then there is this piece of
evidence, that having first swerved to the eastern lane, both the Skyline and
the motorcycle swerved back to the western lane and collided in the course of
that manoeuvre. In that event, one would have expected the motorcycle to
have hit the Skyline either on its left front or on the middle front. But strangely
they collided head on with the motorcycle hitting the Skyline right in front of
the driver. It appears that the proposition that was put to Basson under cross-
examination to explain why the respondent would have landed where he did
would best explain how the collision occurred. It is to the effect that the
collision occurred at the point where the respondent was in the process of
veering to his right and the Skyline simultaneously swerving back to its correct
lane. The force of the impact would then have carried the respondent in the
direction in which he had been moving. The proposition could not be
sustained though because its exponent, Professor Lemmer, readily conceded
the counter propositions put to him under cross-examination, as he did with
numerous other propositions that he had made. Basson’s impartiality and
objectivity in this matter is also suspect and this begs the question whether he
was perhaps not biassed in favour of the respondent. He would have been a
vital witness in any possible prosecution of the insured driver but never made
any attempt to contact the investigating officer in the matter. Instead he
contacted another policeman in Pretoria who apparently gave him information
about the earlier accident involving the Isuzu bakkie. Under cross-examination
he would not disclose at whose instance he made the typed statement that

was handed in in the trial. And he was evasive as to why did he not contact
the police. He seems to have avoided disclosing to the investigating officer
that there were other eye witnesses to the accident and this may explain why
none were called. Be that as it may, Basson’s credibility appears not to have
been challenged in the court a quo and the issue was not even raised in this
court. There is therefore no basis on which one can question the acceptance
by the court a quo of his evidence. In any event, in the view that I take of the
matter the discrepancies in his evidence are immaterial.

[24] In the court a quo, as in this court, the appellant correctly conceded
that the insured driver was negligent. The crux of its case is that there was
contributory negligence on the part of the respondent. The issue for
determination therefore is whether there was such contributory negligence
and, if so, the extent thereof.

[25] The thrust of the submissions made on behalf of the appellant was that
the respondent was negligent in swerving to his incorrect lane in an attempt to
avoid the accident. It was submitted that there were two clear options that he
should have exercised before taking the dangerous step of swerving to his
right. The one was that he could have reduced his speed and moved as close
as possible to the edge of his lane to his left. Counsel for the appellant
pointed out that it is possible for a motorcycle and a motor vehicle to go past
each other on the same lane. The second option was to reduce speed
considerably and then swerve to his left out of the tarred road and onto the
gravel shoulder. Regarding the evidence of the respondent’s expert witnesses
that it would be dangerous to stray on to the gravel side at the speed of 70
kilometres per hour, counsel for the appellant countered that it would have
been a lesser risk than swerving into the path of an oncoming vehicle and
thereby risking a head on collision. He argued that swerving into the incorrect
lane in circumstances such as the present was inherently dangerous and
should have been done as a last resort. In support of his submissions counsel
cited inter alia Burger v Santam Versekeringsmaatskappy 1981 (2) SA 703 (A)
at 708A; President Insurance Company Ltd v Tshabalala 1981 (1) SA 1016(A)

at 1020C; Kleinhans v African Guarantee and Indemnity Company Ltd 1959
(2) SA 619(E) at 624F.

[26] The gist of the argument advanced on behalf of the respondent was
that the respondent’s conduct should be judged against the reality that he
found himself in an emergency due to no fault of his own and that he only had
a matter of seconds to respond. Counsel for the respondent referred to
Basson’s evidence to the effect that the incident happened in a split second or
“the wink of an eye” and submitted that it was unreasonable to expect the
respondent to have first pondered the other options mentioned by the
appellant’s counsel. He submitted that a reasonable driver finding himself in a
similar situation would have reacted similarly. In hindsight it could be said that
the respondent committed an error of judgment but that does not constitute
negligence, so it was argued. Counsel cited reported cases dealing with the
position of a driver who finds himself in a situation of emergency due to the
fault of the other driver. See inter alia South African Railways and Harbours v
Symington 1935 AD 37 at 45; Sierborger v South African Railways and
Harbours 1961 (1) SA 498 (A); Rodriques v SA Mutual & General Insurance
Company Limited 1981 (2) SA 274(A); Von Wielligh v Protea 1985 (4) SA 293
(C); Diskin v Lester Braun 1992 (3) SA 978 (T) 981 C-F.

[27] The difficulty I have with the approach and oral submissions made on
behalf of the parties is that they focus exclusively on the conduct of the drivers
from the moment that the emergency arose. During the course of the hearing I
broached the subject of what precautionary measures the respondent took to
avoid the impending emergency. In this regard three of the cases that were
cited
in
argument
are
apposite.
The
first
is
Burger
v
Santam
Versekeringsmaatskapp, supra. In this case a Cortina motor vehicle and a
panel van (bakkie) were involved in a head on collision on the bakkie’s
incorrect lane. The driver of the Cortina (appellant) was unable to testify
because she was suffering from amnesia. The driver of the bakkie (Kotze)
was the only eyewitness. Kotze had for some distance seen the appellant
steadily moving towards her incorrect side of the road but had assumed that
she would go back to her lane. He had observed that if the appellant

continued to veer onto the incorrect side of the road a collision would be
inevitable and was aware that the appellant was not seeing him. When the
vehicles were about 30–35 metres from each other, Kotze swerved to his right
in order to avoid the accident but the appellant then also swerved to the same
lane and the vehicles collided on Kotze’s incorrect lane.

[28] Although Kotze had been put in an emergency due to the substantial
negligence of the appellant it was held that he nonetheless had the
opportunity to take pre-emptive measures to avoid the accident but failed to
do so. The following passage is instructive:
‘Die kernvraag is wat ‘n redelike bestuurder in die plek van Kotze sou gedoen het. Dit is nodig
om in gedagte te hou dat die appellante nie skielik oor die pad geswaai het nie, maar oor ‘n
aansienlike afstand na regs beweeg het. Kotze het derhalwe voldoende geleentheid gehad
om aanvanklike voorsorgmaatreëls te tref. Na my mening sou ‘n redelike bestuurder in sy
plek minstens drie stappe gedoen het. Hy sou naamlik, desnoods deur rem te trap, die spoed
van die paneelwa tot ‘n baie stadige pas laat daal het; hy sou so ver moontlik na links gedraai
het, en hy sou aanhoudend getoet het. Die rede vir die draai na links spreek vir sigself. Hy
sou spoed verminder het omdat dit dan langer sou neem voordat die voertuie mekaar sou
bereik en derhalwe ‘n langer tydperk aan die ander bestuurder sou bied om tot verhaal to
kom, en ook omdat hy dan moontlik in ‘n posisie sou wees om desnoods oor die skouer te ry.
Hy sou soos voornoemd getoet het omdat hy sou besef het dat die ander bestuurder
waarskynlik vanweë onagsaamheid oor die pad beweeg het en by bewuswording van die
posisie van sy of haar voertuig na links sou draai.’

[29] The other case that was cited is Fourie v Road Accident Fund 1999 (3)
All SA 661 (O). The facts of this case are almost similar to those in Burger.
The difference is that in Fourie the plaintiff had taken precautionary measures
to try to alert the driver of the other motor vehicle to the fact that he was on
the wrong side of the road. The plaintiff had slowed down considerably,
hooted and flicked his headlights to no avail, and only moved to the incorrect
lane as a last resort. He was exonerated. The unreported judgment of LC le
Grange v Guardian Verskeringsmaatskappy Bpk No 12711/91 delivered in the
Cape Provincial Division on 7 July 1993, which is annexed to the
Respondent’s Heads of Argument, falls in the category of Fourie and does not
assist the respondent.

[30] In my view, the above cases illustrate one crucial point. In a situation
like the present the proper approach is not to confine the inquiry into
negligence to the conduct of the drivers from the moment they became
embroiled in an emergency. The inquiry must be extended to cover what
steps a driver took to avoid the impending emergency. If he/she had the
opportunity to take measures ahead of the emergency to avoid the accident,
and he/she failed to do what a reasonable person in similar circumstances
would have done, then she/he would be negligent.

[31] Reverting to the facts of the instant case, in his Heads of Argument,
counsel for the appellant contended that because the respondent had a clear
view of the whole vista as he descended from the rise, he should have seen
that the insured driver was approaching on the incorrect lane and should have
taken evasive action timeously. Counsel submitted that the fact that the
respondent failed to do so shows that he had not kept a proper lookout.

[32] This is the same subject that I canvassed with counsel during oral
argument. Counsel for the appellant indicated that the point of impact is far
away from the crest of the rise and that the respondent would have travelled
for a considerable distance of more than 150 metres in the straight before the
emergency arose and I did not understand counsel for the respondent to
dispute this estimation of distances. Surely the respondent should have seen
the stationary Isuzu on the road surface, Basson’s vehicle in front of it and the
red Golf with the group of people standing next to it. And then there was the
Skyline coming towards him on his lane. All this should surely have rung a bell
that there was something amiss and it called for alertness and extreme
caution. In such circumstances the respondent should at the very least have
reduced his speed considerably so that should the unexpected happen he
would be in a position to pull safely off onto the gravel to his left.

[33] Basson further testified that both the respondent and the insured driver
had been travelling at about 70 kilometres per hour at the point when the
respondent swerved to his right. And the evidence of the two experts who
testified on behalf of the respondent was that at such speed it would be

dangerous to veer onto the gravel shoulder. However, had the respondent
kept a proper lookout and, given the long clear view and the distance he
would have travelled before the emergency arose, he should have been able
to reduce speed to at least between 30 and 40 kilometres per hour. On the
evidence of Professor Lemmer he would have been able to brake and/or pull
out at that speed. Furthermore it can be accepted that if he had hooted,
Basson would have heard it, judging by the fact that Basson testified that he
could hear the sound of the engine and was able to deduce that the
respondent had decelerated because of the hammering of the engine. At any
rate, there is nothing on record to show that the respondent had hooted or
done anything else for that matter to draw the attention of the insured driver to
his approach.

[34] I conclude therefore that there was negligence on the part of the
respondent which causally contributed to the accident. I think that the
estimation of the degree of such negligence made by the appellant (30%) is
reasonable. Failure to keep a proper lookout is a serious infraction which can
have catastrophic consequences as the facts of this case demonstrate. I
would therefore allow the appeal with appropriate orders as to costs and the
substitution of the orders of the court a quo.

__________________________
HM MUSI

ACTING JUDGE OF APPEAL
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 May 2007
Status:
Immediate
Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal

The dispute in this matter arises out of a road accident that
occurred
on
September
1999
on
the
road
between
Pretoria/Tswane and Hammanskraal. The collision involved a
Nissan Skyline motor vehicle and a Yamaha motorcycle driven by
Mr Grobler the respondent. As a result of the collision he was
severely injured. He was completely paralysed below T8 with
concomitant incontinence complications. The use of his arms and
his hands have also become impaired. In the court a quo he was
awarded damages in the total amount of R3 931 461 with costs.

The only issue in the present appeal was whether the respondent
was contributory negligent. It was common cause that the driver of
the insured vehicle had executed an overtaking manoeuvre and

thereby entering his incorrect lane of travel. The respondent was
obliged to take evasive action.

On appeal the court stated that when a person is confronted with a
sudden emergency not of his own doing it is wrong to examine
meticulously the options taken by him to avoid the accident, in the
light of after-acquired knowledge and to hold that because he took
the wrong option, he was negligent. Accordingly the majority of the
court found no contributory negligence on the part of the
respondent and dismissed the appeal with costs.

--ends--