In what a Pretoria News report calls 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 Gauteng High Court (Pretoria) Judge Elmarie van der Schyff 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.

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 RAF did not call any witnesses or experts to refute Barnard’s version of events.

Van der Schyff said this case highlighted 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 was 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. Where a witness’ credibility cannot be questioned, the court is bound to accept that witness’ version of events, particularly if such a version is not improbable or far-fetched,’ she said.

The judge accepted that the donkey was the cause of the accident as it had been previously hit by another car.

According to the Pretoria News, Barnard’s counsel 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.

Van der Schyff explained that it was trite in our law that a driver was 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 ruled the RAF was 100% liable for the damages which Barnard could prove he had suffered.

The amount of the damages will be determined at a later stage.

Full Pretoria News report in The Star

Judgment