Case no: 307/03 & 322/03 WLD

Tim De Maayer v Terry Anne Serebro and Another

Terry Anne Serebro v RAF

On 29 September 2004 the Supreme Court of Appeal dismissed with costs an appeal brought by Dr Tim de Maayer and struck from the roll with costs an appeal brought by Dr Terry Anne Serebro.

Both the appellants had appealed against the findings made by two full courts of the Johannesburg High Court. The Supreme Court of Appeal confirmed the finding by the second full court of the Johannesburg High Court that Dr De Maayer, the third party, was solely responsible for a motor vehicle collision which took place on 6 August 1998 in Sandown, Gauteng. He was accordingly liable to compensate Dr Serebro for the damages arising from her injuries in the collision

Dr Serebro had sued the Road Accident Fund in the Johannesburg High Court for damages arising out of the collision. She together with the Road Accident Fund had joined Dr De Maayer as a third party in the proceedings. At the time of the collision Dr Serebro was a passenger in the motor vehicle driven by Dr de Maayer. His vehicle had collided with a vehicle driven by the insured driver, a Mr Baudery. The court of first instance found the insured driver to be exclusively negligent in that he drove at an excessive speed and failed to keep a proper look out thereby entitling Dr Serebro to claim any damages she could prove from the Road Accident Fund. Dr de Maayer was absolved of any liability. The Fund thereafter appealed to the full court (first full court) of the Johannesburg High Court. Dr Serebro should have conditionally cross-appealed against the order absolving Dr De Maayer from the instance. It was her failure to do so which entailed a further hearing of an appeal by the second full court of the Johannesburg High Court. On the 19 June 2002 the first full court found the driver of the insured motor vehicle not to be negligent. Dr Serebro thereafter made an application to the Supreme Court of Appeal for special leave to appeal against the above finding of the Full Court of the Johannesburg High Court. On the 26 August 2002 leave was refused by the Supreme Court of Appeal. It was in light of this refusal that her appeal was struck off the roll.

With further leave of the trial court Dr Serebro thereafter appealed to the full court (second full court) in order to establish negligence on the part of Dr de Maayer. The second full court found Dr de Maayer to be exclusively negligent in that he negotiated a turn into the path of the insured driver at a time when it was inopportune or unsafe to do so. It was this decision which was confirmed on appeal.