Who is at Fault? Analyzing Skid Marks and Evasive Action in RAF Claims

Case Summary

Name of case

Bezuidenhout v Road Accident Fund (2192/2023) [2026] ZAECPEHC 1 (29 January 2026)

I. Summary of the facts

The plaintiff sued the Road Accident Fund for damages following a collision on 28 August 2019 on the R330 road between Hankey and Humansdorp. The plaintiff, driving a Toyota Land Cruiser, testified that he slowed down for pigs crossing the road. To avoid a subsequent pig, he swerved right, briefly crossing the centre line before returning to his correct lane. Shortly thereafter, the insured driver (driving a Nissan bakkie for the SAPS) approached from the opposite direction. The plaintiff alleged the insured driver crossed the centre line and collided with him. The defendant denied negligence, arguing the plaintiff had swerved into the insured driver’s path, forcing the insured driver to brake and swerve.

II. Legal question

The court had to determine two main issues on a balance of probabilities:

1. Was the collision caused by the negligence of the insured driver?

2. If so, was the plaintiff contributorily negligent, requiring an apportionment of damages under the Apportionment of Damages Act?

 

III. Ratio decidendi (Reasoning)

The court found in favour of the plaintiff, relying heavily on objective evidence rather than just the “he-said, she-said” testimony.

1. Skid Marks: The court noted continuous skid marks of approximately 60 paces leading from the insured driver’s lane across the centre line. This court inferred the insured driver was speeding and lost control.

2. Point of Impact: The insured driver conceded the impact occurred over the centre line (in the plaintiff’s lane), which contradicted his claim that he was merely taking evasive action against an obstruction.

3. Dangerous Evasive Action: Citing President Insurance Company Ltd v Tshabalala, the court reiterated that swerving to the incorrect side of the road is a dangerous course of action. The reasonable driver would have swerved left (where space was available) rather than into the path of oncoming traffic.

However, the court also looked at the plaintiff’s actions. Every driver has a duty to take reasonable steps to avoid an accident. As there was insufficient evidence regarding what specific evasive steps the plaintiff took at the critical moment to avoid the collision, the court found he contributed to the accident.

IV. Finding

The Road Accident Fund was held liable for 80% of the plaintiff’s proven damages, with the remaining 20% apportioned to the plaintiff due to contributory negligence.

Q&A: Understanding the Judgment

The following Questions and Answers are based specifically on the facts and findings in Bezuidenhout v RAF.

Q: How does the court decide who is telling the truth when drivers have different versions of the accident?

A: When faced with conflicting versions (mutually destructive versions), the court looks at the probabilities and objective evidence. In this case, even though the insured driver claimed the plaintiff caused the accident, the objective facts—specifically the continuous skid marks and the position of the vehicles after impact—supported the plaintiff’s story. The physical evidence showed the insured driver crossed the line, which made his version of events “improbable.”

Q: Can a driver be held responsible if they swerve to avoid an animal?

A: Yes. While an animal on the road is a sudden emergency, a driver’s reaction must still be reasonable. In this case, both drivers reacted to pigs on the road. The court accepted the plaintiff’s action of swerving and returning to his lane as credible. However, the insured driver’s reaction—braking heavily and crossing into the oncoming lane—was deemed negligent because a reasonable person would have swerved to the left where there was space.

Q: What is “Apportionment of Damages”?

A: This is a legal concept derived from the Apportionment of Damages Act. It allows the court to reduce the damages awarded to a plaintiff if the plaintiff was also partly to blame for their own loss. The court determines what is “just and equitable” based on degrees of fault.

Q: Why did the plaintiff get 20% of the blame if the other driver crossed the line?

A: The court noted that “every driver has the responsibility to avoid an accident.” Even though the insured driver was mostly at fault (80%) for speeding and crossing the line, the court found no evidence that the plaintiff took sufficient steps to avoid the collision once the danger became apparent. Therefore, the plaintiff was found to be 20% contributorily negligent.

Q: Does “proof on a balance of probabilities” mean the plaintiff has to prove they are 100% right?

A: No. As the judgment explains, the standard is not absolute certainty. It requires showing that the plaintiff’s version of events is more probable (more likely to be true) than the defendant’s version. The court weighs the evidence to see if the “particular state of affairs existed” on a preponderance of probabilities.