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[2020] ZAWCHC 192
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Auret N.O obo Kieser v Road Accident Fund (14206/2014) [2020] ZAWCHC 192 (28 April 2020)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
'WESTERN CAPE DIVISION, CAPE TOWN
CASE NO. 14206/2014
In the
matter between:
ADV E
AURET N.O. obo WR KIESER
and
Plaintiff
ROAD ACCIDENT
FUND
Defendant
JUDGMENT: 28 APRIL 2020
STEYN J
The
plaintiff is the duly appointed curator ad litem for
Warren Robert
Kieser
('Warren') who was seriously injured in a motor vehicle
collision at about í8h00 on Sunday 30 August 2009 in
Rondebosh,
Cape Town. Plaintiff claims dejictual damages for and on
behalf of Warren from the defendant in terms of the provisions of the
Road Accident Fund Act, 56 of 1996
, as amended. The damages arise as
a result of the personal injuries sustained by Warren as a
result of the said motor vehicle
collision.
2.
Issues of liability and quantum were separated in accordance
with the relevant rules of court. The matter proceeded on the
question
of liability only, with the issues relating to the
quantification of the claim, standing over.
3.
It is common cause that, on the day in question:
3.1
Warren was riding, (test driving) a Kawasaki 600 super motor
cycle with registration no [….] along Kromboom Road in
Rondebosch,
Cape Town, in a westerly direction, towards Table
Mountain;
3.2
Trè Brett Kieser ('Trè),
the ll.year-old son of Warren, was riding pillion on the back of the
motorcycle;
3.3
The collision occurred at about 181100 on Sunday 30 August
2009, in sunny weather, with good visibility, at a bridged,
robot-controlled
intersection on Kromboom Road: where the road
crosses over, and allows access to and from the M5 freeway;
3.4
The insured driver, Ranchhod, was driving a grey Toyota Tazz
with registration number CA 599332, along Kromboom Road in the same
direction as Warren and his son, in the same lane, before the
collision;
3.5
The motorcycle and the Tazz were both approaching the bridged
intersection on Kromboom Road, driving away from Rondebosch,
Both
the Tazz and the motorcycle were travelling in the right-hand lane of
the two left lanes of the highway that face west;
3.7
The speed limit on Kromboom Road, in that area, is 60km/ph;
3.8
The motorcycle with Warren and Trè was somewhere behind
the motor vehicle driven by Ranchhod, who did not see the motorcycle
before the collision;
3.9
When the motor vehicle and the motor cycle were
both on the bridge of the intersection on Kromboom Road, in the area
before a robot,
the motor vehicle stopped at the intersection, to
turn right onto the M5;
3.10
Warren took evasive action and swerved in an attempt to avoid
a collision with the Tazz, but in the manoeuvre the back of the
motorcycle
connected with the left, back area of the Tazz;
3.11
The motorcycle continued driving past the stationary vehicle
of the insured driver, on its left hand side, before swerving right
across the intersection in front of approaching traffic, where the
motor cycle collided with an unknown stationary vehicle in a
driveway, on the opposite side of the road to where he had been
travelling;
4.
It is not presently relevant but appears to be undisputed that
Warren sustained severe injuries to his head with serious
consequences
to him and his family, physically, financially and
emotionally. He has not been able to work again and was not able to
testify
at the hearing.
5.
In plaintiffs pleadings it is alleged that the accident
occurred after Warren had to swerve to
avoid a collision
with
the stationary motor vehicle, driven by Ranchmop (sic) ('Ranchhod'),
the insured driver 'who suddenly and without
warning
stopped to turn off the road without indicating.
6.
The plaintiffs claim was founded on a number of alternative
causes of action, the gist being that the sole cause of the
collision,
and the injuries sustained by Warren as a result of the
collision, was the sole negligence of the insured driver who was
negligent
in one or more of the following respects:
6.1
He failed to keep a proper lookout;
6.2
He drove at an excessive speed in the circumstances;
6.3
He failed to apply the brakes of the motor vehicle timeously,
adequately or at all; and
6.4
He failed to keep the motor vehicle under proper control; and
6.5
He failed to take any or adequate steps to avoid the accident
when by the exercise of reasonable care and skill he could and should
have done
so;
7.
Some of the alleged grounds of negligence by the insured
driver are in contrast to the limited testimony presented on behalf
of
the plaintiff, such as that he was driving too fast. The matter is
defended. The defendant denies that the accident occurred as
a result
of any negligence by the insured driver.
8.
It was maintained on behalf of the plaintiff in the opening
address that the
legal
principles relating to sudden emergency apply on the facts proffered
on behalf of the plaintiff. Counsel for defendant argued
that 'sudden
emergency' had not been pleaded.
9, Defendant pleads that the collision
was caused by the sole negligence of the plaintiff/Warren, who:
9.1
failed to keep a proper lookout;
9.2
failed to avoid a collision when by the exercise of reasonable
care and skill he could have and should have done so;
9.3
failed to pay due regard to the presence of the traffic and
the driver of the insured motor vehicle;
9.4
drove at an excessive speed in the circumstances; and
9.5
failed to apply the brakes of his motor cycle timeously,
adequately or at all.
10. Defendant pleads
that in the event that the court finds that the insured driver
was
negligent in any respect, defendant denies that such negligence
contributed causally to the collision. He pleads that if the
court
finds that both drivers were negligent, the terms of the
Apportionment of Damages Act should be applied and the quantum of
plaintiffs claim should be reduced accordingly,
11. The aspect left
for determination by this court is essentially:
11.1
Whether or not Ranchhod was negligent in stopping his vehicle
at the robot controlled intersection on Kromboom Road, that resulted
in the collision of his vehicle by the Kawasaki driven by Warren,
causing Warren to swerve to avoid an accident, resulting in a
further
collision of the motorbike with a parked vehicle; and
11.2
if so, whether Ranchhod's negligence was the sole cause of the
collision, and, if not, the extent to which his negligence falls to
be apportioned between defendant and plaintiff.
12
1 deal with the onus later, but emphasise that the onus to decide
whether the insured driver was negligent and to what extent,
rests on
the plaintiff, who must show 'on a balance of probabilities that the
insured driver was negligent and that the negligence
was the cause of
the collision from which he sustained the bodily injuries. There is
no onus on the Defendant to prove anything.'
1
He may have
an evidentiary burden to rebut a prima facie case established by
plaintiff.
13. The scene of the
accident is important in the assessment of negligence. I have
concluded, from the testimony and documentation provided, including
photographs and sketches, my knowledge of the area and the
useful
Google Maps, the following:
13.1
The accident occurred on a relatively busy highway, Kromboom
Road, in Rondebosch, Cape Town. It has western and eastern bound
carriage
ways that consist of two traffic lanes in each direction,
each about
3.7 meters wide;
13.2
The road runs over a bridged, robot-controlled
intersection with the M5 freeway, a wide carriageway that runs in a
north-south direction;
13.3
The robots on the intersection control the
traffic accessing the
Kromboom Road highway from the tv15 on one side, and accessing the M5
freeway from the highway, on the other side. Traffic drive
straight
or enter and/or leave Kromboom Road on the intersection.
14. Counsel for the
plaintiff called Warren's ex-wife, Melanie ('Melanie'), and
son Trè
('Trè'), as well as an accident reconstruction expert, John
Craig ('Craig') to testify. The defendant called
the driver of the
insured vehicle, V Ranchhod ('Ranchhod').
15.
Melanie
Kieser
, the wife of Warren at the time of the incident, (they
were subsequently divorced) testified that Warren, who was in his
early
thirties at the time, had much experience of riding motorbikes
as 'he comes from a family of bikers' and has a passion for
motorbikes.
He inherited a Honda CBR 400 motorbike from his
grandfather in about 2005. He often went biking with his cousins,
usually riding
one of their bikes as the Honda was too small and
slow.
16. Warren wanted to
buy a more powerful motorbike and was interested in purchasing
a
particular second hand Kawasaki. On Sunday 30 August 2009 the family
cancelled their plans to go hiking and went to look at this
motorbike
instead. Warren took the bike on test drives, alone at first and
later with Melanie, who rode pillion with him twice
on the M5
freeway. She though the M5 was a relatively safe road to use. Warren
also took their one son, Keano, for a ride and later,
at about 18h00,
he took their youngest son Trè, 11 years old at the time, on a
test ride.
17. Shortly after
they left there was a phone call that Warren and Trè had
been
in an accident. Melanie went to the scene just after the Kromboom
Road off-ramp
Raulinga
J, in N Felix v RAF (29586/13) [2018) ZAGPPHC 439 (2 February 2018)
paragraph 28
over the M5. Warren was unconscious. Trè and Warren were taken
to hospital in an ambulance. After Warren eventually regained
consciousness, he started a slow, traumatic, recovery process.
18. To avoid trauma
Melanie never asked Trè about the accident. I gathered
from
her evidence that she was not only upset, but angry at what her
family experienced that day, and subsequently. There is
statement/affidavit
of Melanie,
2
taken just more than a
month after the accident. She could not give an account of what
happened. Both her husband and son received
treatment for their
injuries. Her husband sustained a severe head injury. There is also a
statement of Trè
3
not commissioned, that was taken
during consultation, in her presence. She heard the details of the
accident from her 'baby son'
for the first time then.
19.
Tre Kieser
was the
only witness for plaintiff on the aspect of the collision
.
He confirmed that at times in the past he had ridden pillion with his
father on his old Honda. Replying to leading questions he
said his
father was always very safety conscious. On the day in question he
was 1 1 years old and in Primary School. He testified
nearly 10 years
after the event.
20. On the relevant
day, when his father was test-driving the Kawasaki 600, he
accompanied his father as a pillion passenger, only once. He did not
know what his father intended with the ride, as regards the
route or
its duration. They were riding along Kromboom Road, close to where
they were visiting, in a westerly direction, towards
Table Mountain.
There
were vehicles around them
. They approached the robots
situated on both sides of Kromboom Road, where the road crosses the
M5 freeway, in the area where one
would turn right to access the M5.
There was one car in front of them and cars behind them. They were
travelling more or less the
same speed as the car in front of them, a
grey Toyota Tazz, about 8 or nine meters behind it, which equates to
one and a half car
lengths. The speed limit was 60
km/ph and, again in response to some
leading questions, they were not travelling fast, whatever that
means.
21. From where he was
sitting, on the slightly elevated pillion seat, he could
see over his
father's right shoulder. The first robot they passed on the
intersection, was green. They were travelling in the right-hand
lane
of the dual carriageway. There were vehicles travelling in the left
lane, but 'further behind' them, not next to them. He
said, 'all of a
sudden', the car in front of them, (in the same lane of travel) was
moving one moment, but 'the next instance'
the car was not moving, it
'suddenly stopped moving'. He
did 'not recall'
seeing any
brake lights. (Testimony that became relevant later.)
22. His father
swerved left, and as he did so, they collided with the left rear
of
the Tazz vehicle in front of them. His father lost control of the
bike, but I gather it remained upright. They passed the stationary
car of the insured driver on its left and swerved right into the
oncoming traffic, with
cars approaching them
from the opposite
side. His father swerved further to the right and bumped into a
parked car in a driveway on the opposite side
of the road.
23.
He
was referred to a photograph
4
which
shows four lanes across the wide
2
Exhibit p 2, dated
5 October 2009
3
'A' p l
4
The top photograph
in Exhibit 'A', p 19
Kromboom Road, two lanes going towards the intersection, over the M5,
travelling away from Rondebosch, towards Table Mountain,
and two
lanes visible on the opposite side, travelling towards Rondebosch,
where they had come from. The collision occurred at
the
robot-controlled intersection on the bridge over the M5 freeway. The
pictures indicate that on the two lanes approaching the
intersection
leading west, on the left hand lane, there was an arrow pointing
forward only, while on the right-hand lane,
where they were
travelling
, an arrow pointed forward and another arrow pointed
right, as usual at many intersections on busy roads, indicating that
cars could
turn right into the intersection to access the M5, to
approach Cape Town.
24. The bottom photograph ('A' p 19) shows the intersection facing
the direction from where they had approached, from
Rondebosch/Crawford.
On this section of the road vehicles could
either turn left towards the tv15 or go straight towards Rondebosch.
He explained about
the presence of other cars and that there was one
car directly in front of them and no car behind them, in the same
lane, when
the accident occurred.
25.
He was asked about his statement, that I have referred to
[1]
that must have been drafted on about 5 October 2009. It was
signed at the lawyer's office, after he had relayed to them, in his
mother's presence, what he recalled had transpired.
Events must still have been fresh in his
memory.
26.
In this statement he mentioned that a motor
vehicle suddenly, and
without warning or
indicating.
(which is not what he testified),
stopped to turn right onto the
M5. His father
took evasive action and swerved to the left, into the left lane, but
lost control of the bike and, after passing
the car in front of them,
swerved to the right, into the lane of oncoming traffic. He said he
assumed the Tazz would be turning
right, although it was not
indicated, as it would not have braked and stopped if it wanted to
travel straight. He repeated that
he did not
recall seeing
brake lights. He noticed that the traffic lights were green for the
Tazz to drive onwards. (If conclusions are drawn, the only
logical
conclusion why the Tazz did not proceed, would be that it was either
waiting at a red light, or it was waiting for oncoming
traffic.)
27.
Trè conceded in his testimony that his attention was
not only on the car ahead of the them. He could
not say
if the
motorbike's
indicator lights were on. His
statement
did
not mention a grey vehicle or a Toyota Tazz, and importantly, it did
not
mention any. collision with the left rear of the car
that
'suddenly stopped'. Trè could not say, with reference to the
photograph, on p 33 of 'A', exactly where the Tazz had
stopped before
the collision. Everything happened quickly. He was not prepared to
agree that, if there was no car directly ahead
of the Tazz, as he
said, that the Tazz would have stopped on the solid white stop line.
He recalled
a bakkie approaching them from the front,
in one
of the approaching lanes.
28.
A demonstration was given with some model cars during which he
reiterated that the Tazz and the bike were both travelling in the
middle of the right-hand lane, going towards the robot-controlled
intersection from the Rondebosch side. The back section of the
bike,
and his right knee, hit (clipped) the back, left, rear light and
bumper area of the Tazz It made the bike swerve out, his
dad lost
control of the bike, as they passed and swerved into oncoming
traffic, while passing the front of the stationary car.
Thece-yas-gnggm
jng-tcafflg
approaching and his father swerved
the bike further to the right and hit a car parked on the opposite
side. Tre lost consciousness.
He agreed some details were vague. He
was flung off the bike.
He could not explain why he had not
mentioned in his statement of October 2009 that his right knee and
the back of the bike struck
the stationary Tazz vehicle
before
the bike swerved, or even that the bike and vehicle had connected.
29.
John Oswald Craig
[2]
is a motor vehicle accident reconstruction specialist who
testified on behalf of plaintiff. His extensive technical testimony
has
limited value, as he based his findings and calculations on
incomplete documentation and inaccurate information provided to him
by plaintiffs representatives. The documents included the combined
summons but does not refer to the plea. He does not appear to
have
noticed that nothing was said in the summons about the motor cycle
colliding or connecting with the insured vehicle at the
robot-controlled intersection. Nor did Trè say anything about
such a collision in his 2009 statement, Craig did not deal
with this
aspect in his report, save that he says
[3]
that according to the Accident Report Form, (with information
provided by Ranchhod) the
motorcyclist drove fast
and straight
and 'bumped' the insured stationary vehicle, He conceded that this
version differed materially from the version of
Trè in his
statement.
30.
He explained how Warren must have operated the bike as he
'swerved to the left to avoid the Toyota'.
3
(In fact he
did not avoid the Toyota, he connected with it, caused extensive
damage, and did not stop.) The only collision Craig
refers to is the
collision with the unknown car on the opposite end. I do not
understand how he reconciles this evidence with the
damage indicated
on the Accident Report at the left rear of the insured car. A 'sudden
emergency', that he referred to, was not
specifically pleaded. He was
also misinformed about the visibility on the evening in question. He
had not been provided with Ranchhod
t
s statement, dated 23
April 2015, when he visited the scene in September 2017, or when he
compiled his report, in January 2018.
31.
Craig made a concession, considering the later testimony of
Ranchhod, and his version to the police in the Accident Report, that
if a motorcycle drives into the back of a stationary vehicle, then
the motor cyclist is to blame. He said he looked at the physical
evidence (which was limited), and at the statements, one of which was
defective, namely that of Trè. The statement of Ranchhod,
he
did not see. He believed the Tazz braked heavily, based on what a boy
of 11 recalled years later of an accident that left him
unconscious,
injured, and traumatised. Ranchhod denied, not unconvincingly, that
he suddenly braked heavily.
32.
Craig testified that the Kawasaki that Warren rode that day
was a very powerful 'superbike
t
and that with a passenger
it would be heavier and be more difficult to swerve and manoeuvre. He
testified that at 60 km/h the motorcycle
would travel 25 meter in 1.5
seconds
9
and
i0
that 'the motorcycle just being
able to avoid it (the car) by swerving; then the vehicle coming up on
the left hand side; the sudden
acceleration on the superbike', the
bike sliding across the road at
80 km/h
, etc. He mentioned in
court that he heard there were no indicators or brake lights,
p
15 (h) 9 'A' p 15 (e)
that he must have accepted, but this is
inaccurate. The testimony was that Trè did
not recall
this aspect. Ranchod said the opposite, throughout.
33.
While testifying Craig made a calculation and estimated that
the speed at which Warren was driving the motorbike, before being
confronted
with the alleged sudden emergency, must have been 80km/h,
just before he finally collided with the unknown parked car some 50
meters
away. He accepted that the driver of the insured vehicle
suddenly braked very hard to turn right onto the off-ramp to the M5,
as
though that was an established fact, without considering that he
had arrived at a robot, while driving in the right hand lane, where
he wanted to turn right, where there was traffic approaching from the
opposite direction. Craig's version, (on p 15 par (j) of
exhibit 'A')
that there was a vehicle in the left lane into which the motorcycle
swerved, that was approaching rapidly from behind,
causing Warren to
accelerate rapidly to avoid this vehicle from colliding with them,
was news to me. In essence his testimony and
conclusions amounted to
speculation not based on the full facts of the matter.
34.
Vimal Ranchod
testified on behalf of defendant. He was
the driver of the insured Toyota Tazz He is a mechanical engineer who
was working at Saldanha
Steel in 2009. He visited his home near
Rondebosch, close to Kromboom Road, over weekends. On Sunday evenings
he returned to Saldanha,
usually not late, to avoid driving in the
dark. This had been his routine since about 2003, when he finished
his studies at UCT.
He usually drove west along Kromboom Road, took
the right hand turn off to the M5, and then drove along the R 27 to
Saldanha.
35.
He drove a grey Toyota Tazz that he had owned for about 6
years. It was serviced routinely. His
brake and indicator lights
were fully functional
. On the day in question he was driving, as
usual, west along Kromboom Road towards the bridge intersection with
the M5. It was
a clear Sunday evening before sunset. He approached
the robot in the intersection and noticed a vehicle in front of him.
There
are two robots on the Kromboom Road bridge. One as you
approach, in the left lane, when you could go left on the M5 to
Muizenberg,
and another robot as you proceed (in the right hand lane)
where you can go straight or turn right onto the M5.
36.
There were no cars around him on the intersection, only a
stationary car in front of him, also in the right-hand lane and at
the
red robot, about to turn right. While stationary, another vehicle
stopped behind him. He does not recall the make of either of these
vehicles. He watched the vehicle behind him. He did not see the
motorbike in his mirrors while driving along Kromboom Road or on
the
intersection. He did not hear it approaching. He waited only 3-4
seconds before he felt a jolt at the left rear of his vehicle.
At
about the same time, he noticed a motorbike passing/swerving, on his
left, in the left lane. The bike passed him and the car
in front of
him, before it fell in the road, in the lanes for oncoming traffic.
37.
He did not watch what happened in front of him as he was
concerned about his vehicle and the jolt he felt. When the robot
turned
green, and the car ahead of him moved off, he crossed the
intersection and parked on the left-hand side to inspect his vehicle
and to see what was happening. The motor cycle was on the road in the
oncoming traffic.
38.
There was an indentation on the left rear of his vehicle, the
left rear light was damaged, and a body panel was smashed. He had it
repaired at a cost of about R 12 000. He denied that he had brought
the vehicle to a sudden stop. He maintained that he had gradually
decelerated, and then stopped. It was a manual gear box. There was no
way he could have avoided the collision.
39.
Ranchhod was cross-examined extensively. He gave a description
of the collision, contained in an Accident Report (AR) Form, to a
Police Officer on the date of the incident.
11
The report
is not very legible or instructive and I found deciphering this
document not simple. It makes provision for vehicles
'A' and 'B'
Vehicle
A was the motor vehicle driven by Ranchhod, while B was the
motorcycle driven by Warren, its capacity incorrectly reflected
as
under 125cc.
12
Vehicle A was damaged at the back, left,
while vehicle B had 'multiple' damage. The area of the back-left
damage to motor vehicle
A is clearly indicated in the middle column
on p 6 of the AR form. The accident is reflected as a head/rear end
collision. There
is an accident sketch, not to scale, where the B
cycle is shown connecting with the far-left rear of vehicle A, at the
robots on
the Kromboom Road intersection. No
other vehicles are
indicated.
40.
Ranchhod said he was not present when the sketch and
description were completed. No other vehicles were involved in the
collision
or accident. In fact, the vehicle that Warren had
ultimately crashed into, was not depicted either. Ranchhod described
the accident
in 'brief' by relating that his vehicle was stationary
waiting for the robots to open for him 'and indicating to the right'
to
join the M5, when B, the (motor cycle) came from behind 'driving
fast traveling straight'
Il
Exhibit A p 5
'A'
para I l .
and 'bumped the stationary vehicle A.
41.
He was referred to a statement he made on 23 April 2015 to an
assessor of RAF relating to the collision. In that statement he
repeated
what has already been stated, including that, as he
approached the robot-controlled intersection in the right-hand lane,
he was
indicating
'to turn right towards the M5 Freeway.' He
added that, as he approached the robot, there was already a
stationary vehicle in front
of him and after he had stopped, another
vehicle, that had followed him for a while, stopped behind him. He
had not noticed the
motor cycle while travelling along Kromboom Road.
42.
After a few seconds he heard an impact at the rear of the
vehicle and noticed a motor bike
passing him. and the vehicle
ahead Qf him
, on his left, in the left lane. He noticed the motor
bike fall on the tar road in the lanes of oncoming traffic. He moved
forward
when the robot turned green and parked on the other side. He
noticed the damage to his vehicle, to the left rear light and the
boot. He commented in this statement that there were 'no vehicles in
the left lane prior to the collision'. He spoke to the police
and the
wife of the motor bike rider on the scene. He could not explain why
the motorbike rider passed the vehicle behind him and
collided with
his vehicle, as they were both stationary, before the collision
occurred. He agreed that he had not provided this
description of
three vehicles
to the police on the scene. He had only been
concerned with himself and his vehicle, as he was the person whose
vehicle was involved
in a collision with the bike.
43.
He was referred to the actions by the motorcycle
after it had bumped into his car. He said, repeatedly, that he could
not see what
happened when the bike passed
him. He did not see the motor bike
before the impact. He looked in his rear-view mirror and just saw the
vehicle behind him. He
was referred to a sketch of the accident
scene, depicting three vehicles at the robot, (p 36, exhibit 'C'),
part of discovery in
terms of rule 36(10) by defendant's attorney, or
the RAF claims handler, dated 19 May 2015. He had not seen this
document and it
was not his handwriting. He could not recall if he
had any input in the document. He had no recollection about the make
or colours
of the other vehicles.
44.
He repeated, repeatedly, that the other two vehicles drove
off, as far as he recalled, and he was the one involved in the
accident.
He specifically recalled the first one moving off, as he
had to wait for him to leave so he could cross over the road and
check
the damage to his vehicle. This aspect, of two alleged versions
by Ranchhod, was traversed ad nauseam. Ranchhod said that what he
said to the police, was in response to questions. He did not see what
was written or drawn on the form:
'I said my vehicle was present, I didn't
mention another vehicle, two vehicles, beside me, because / was only
concerned about those
vehicles
involved
in the accident, and that's what the police actually asked me. '
45.
Later Ranchhod stated again that his version to the police
only related to the vehicles involved in the accident, not all the
vehicles
on the scene, and then, later, he was required to give a
detailed description to defendant's representative.
46.
It was put to him that his sudden stopping created a sudden
emergency as a result of which the motorbike had to swerve and struck
his car at the rear. The remainder of the cross-examination was often
cross, repetitive, argumentative and ostensibly aimed at
intimidation. Ranchhod was asked, interspersed with interruptions,
how it could have happened that the motorbike only connected
his
vehicle, not the one behind him, and not the one in front of him. His
very acceptable reply was, at least three times, that
he could not
guarantee the
aliqnment
of the vehicle behind him; and, if it
was aligned directly behind him, giving little space for the motor
cycle to actually collide,
then the situation may have been as
unusual, as proposed. Ranchhod remained composed and stood his ground
despite the speculative
cross-examination on this aspect.
LEGAL ASPECTS
47. The plaintiff
bears the onus of proving negligence on the part of the insured
driver on a balance of probabilities
[4]
The court, in deciding whether the plaintiff has succeeded in
discharging this onus, will consider the evidence presented during
the trial holistically.
48. There are two
versions before court that are mutually destructive on some material
aspects. The version of the plaintiff is that the collision was
caused by the insured driver who, while travelling in the right
hand
lane of two lanes on a busy interesection, suddenly, without any
warning, applied brakes and came to a standstill at a green
robot,
where he could turn right to access the M5, as the arrow on the road
plainly indicated. The accident, according to plaintiff,
happened so
quickly that there was nothing he could do to avoid it. (There was no
explanation why the Tazz would slam on brakes
to turn right, and
stop, when the robot was green, as alleged.)
49. The version ofthe
insured driver on the other hand is that he was travelling
on the
right hand lane as he was about to turn right onto the M5, as usual
on his way to his home in Saldanha. The robot was red
and there was
traffic approaching from the other side. He received a bump on the
rear end of the vehicle. After the motor cyclists
had fallen in the
area of the approaching traffic, the insured driver was still waiting
at the robot for the vehicle in front of
him to move off.
50. The approach to
be adopted when dealing with mutually destructive versions
was
succinctly set out in the case of National Employers General
Insurance Co Ltd v Jagers
14
where Eksteen AJP noted:
Where
the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can
only succeed if he
satisfies the Court on a preponderance of probabilities that his
version is true and accurate and therefore
acceptable, and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding
whether that evidence
is true or not the Court will weigh up and test the plaintiff's
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities
of the case and, if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably
true. If however the probabilities are
evenly balanced in the sense that they do not favour the plaintiff's
case any more than
they do the defendant, the plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that
his evidence
is true and that the defendant's version is false.
Insurance
co Ltd
[1990] ZASCA 65
;
1990 (3) SA 442
(E) at 4440 - F.)
1984
(4) SA 437
(E) at 440E - G
51. In the oft-quoted
Stellenbosch Farmers' Winery Group Ltd and Another v Martell
and
Others,
15
the SCA explained how factual disputes should
be resolved to ascertain, as far as possible, where the truth lies
between conflicting
factual
assertions:
'To come to a conclusion on the disputed issues, a court must make
findings on:
(a) the credibility
of the various factual witnesses;
(b)
their
reliability; and
(c)
the
probability or improbability of each party's version on each of the
disputed issues.
In light of the assessment of (a), (b) and (c), the court will then,
as a final step, determine whether the patty burdened with
the onus
of proof has succeeded in discharging it. The hard case, which will
doubtless be a rare one, occurs when a court's credibility
findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised,
probabilities prevail'
[5]
52. In this matter
the motorbike connected with the rear end of the vehicle. The
inferenceto be drawn, as stated by Craig, is that the plaintiff is
the cause of the accident, unless the contrary is shown. In
dealing
with the issue of rear end
2003
(1) SA 11
(SCA) at para 5
collisions, this court, in
Van DerBergvRoadAccident Fund,
17
held that:
'14] The genera/ approach to adopt when dealing with rearend
collisions is set out by the author H B Kloppers in The Law of
Collision
in South Africa (7th Ed) page 78as follows:
"A driver who collides with the rear of a vehicle in front of
him is prima facie negligent unless he orshe can give an explanation
indicating that he or she was not negligent.
[151 The driver who collides with another from the rear end can
escape prima facie liability for negligence by providing an
explanation
that shows that the collision occurred because ofthe
negligence of the driver ofthe other
vehicle
or due to other intervening circumstances. The example of the
exception to the general rule of rear end collision is said
to be
where for an example, as stated by Klopper, the driver in the front
suddenly swerves immediately and applies the breaks (sic).
'13
53. This court must
ascertain who was responsible for causing this very tragic
accident,
and to determine if there was any contributory negligence by the
other party. In this matter the version of the motorcyclist/plaintiff
is compromised. The motorcyclist himself was not available to
testify. The only witness, apart from the insured driver, of the
collision itself, was his young son, then aged I l , who sat on the
back of the motor cycle; it is his now seriously impaired father's
motorcycle riding that he must comment on. The statement that he made
shortly after the accident, also contained in the summons,
and as far
as I can gather, also the
(35504/11) 12013] ZAGPJHC 94 (20 March 2013)
IS See Klopper footnote 447.
version provided to the expert, failed to mention that the bike had
connected with the back of the vehicle of the insured driver,
around
the time or just before his father took evasive action to avoid a
collision,
54. What he could not
explain is why his father was riding his bike in the right
hand
lane, unless he also wanted to turn right onto the M5 for the test
ride, where his mother had twice travelled with his father.
If that
was his intention, he should have been driving slower, ready to stop
and/or turn. If not, he should not have been in the
right-hand lane,
provided mainly for turning traffic. If the vehicle could stop, a
careful motorcycle should have been able to
stop too.
55. Ranchhod
explained that he decelerated before stopping at the robot, that was
red. He denied suddenly applying his brakes. Apart from the testimony
of Trè sitting behind his father on a motor bike,
and the fact
that a collision occurred between the back of the bike and the left,
back of the car, a fact that the boy did not
consistently relate in
his version of events, there is no explanation why the
bike
connected with the vehicle so forcefully, that in 2009 R 12 000 worth
of damage was incurred by a Toyota Tazz
56.
Ranchhod faced extensive cross-examination, repeatedly being asked
about the
same points to bolster the case of the plaintiff,
unfortunately not always factually completely accurate. He did not
deviate from
his version. He testified that he slowed down and
indicated before he came to a stop. He said his
indicator and brake lights were fully functional and explained how he
knows that. He was prepared to make concessions, such as
that he did
not see the motorcyclist before coming to a halt at the robot. It
needs to be remembered that the accident occurred
at a major
intersection, with various robots and vehicular traffic, coming and
going in different directions. The insured driver
was in the farright
hand lane, as one should be, when intending to turn right, as
indicated with a big white arrow, pointing right.
57. Anyone behind him
should be cautious at that point, as cars turning right across
the
traffic should be anticipated, and there is the inherent danger of
vehicles turning right into the path of oncoming traffic.
After the
impact Ranchhod was anxious to inspect his vehicle. He did not
immediately ascertain the seriousness of injuries to the
motor
cyclist and his son, although he did qualify that they were being
assisted by bystanders. He said he did not see what exactly
happened
in front of him when the cyclist veered across the road. The reason
is apparent: There was a vehicle in front of him.
He had to wait for
this vehicle to drive away, before he was able to cross the road, and
park on the other side. That the insured
driver was required to wait
at the robot, even if it was green, stands to reason. Trè also
testified that there was traffic
approaching from the opposite side.
Ranchod confirmed this.
58. Ranchhod's
version of how the collision occurred was corroborated by his
statement
and his report to the police on the scene, contained in the
Accident Report, although other vehicles were not mentioned, which he
explained quite satisfactorily. In n-y view the version of the
plaintiff is not more plausible or
25
probable than that of the defendant. The probabilities point to the
fact that the accident occurred as the motorcyclist drove too
fast
and did not keep a proper lookout. He should have been a lot more
alert. If he intended to turn right at the robot, he should
have been
driving slower, mindful of traffic ahead of him and approaching, if
he intended travelling straight, he should have been
travelling
slower and he should, for safety reasons, have been in the left lane.
59. To summarise, in
determining the issues of negligence and contributory
negligence
I must consider that the only evidence directly supporting the
version of the plaintiff was the evidence of his young
son, who
himself was involved in the collision and who cannot be categorised
as an impartial, independent witness. He was shocked
and traumatised
by what happened to him and his father. When the particulars of claim
were prepared, the details of the collision
were cursory. When he
testified about the event, it was nearly ten years later. In
addition, and importantly, he did not state
in his statement to the
lawyers, shortly after the collision, that they had collided with the
vehicle of the insured driver.
60. In plaintiffs
particulars of claim the only collision by the motor cycle actually
referred to, is the one with the vehicle with the unknown
registration number. Even after the plea was filed, referring to a
collision
between the vehicle driven by Ranchhod and the motor cycle
driven by Warren, the plaintiffs pleadings were not amended to
rectify
the error, if error it was. It was pleaded on behalf of the
plaintiff that the insured driver drove at an excessive speed, a
version
never testified to by Trej who said that the vehicle and the
motorcycle drove roughly the same speed.
26
61. The tragic
circumstances of the matter were often emphasised, creating much
justified emotion and sympathy. I do not think Tre was a dishonest
witness, but i am not satisfied that his testimony is reliable,
considering his age, his relationship with the plaintiff and the
passage of time, and the fact that he did not alert the plaintiffs
representatives to the full facts of the matter. When considering the
combined evidence of the witnesses, the version of the insured
driver
was credible, probable, not far-fetched and not a version that could
be rejected, in favour of the version of the plaintiff.
62. In conclusion I
find that the accident in this matter was caused solely by
the
negligent driving of the motor cycle. It would not be appropriate to,
in view of sympathy with the plaintiff, make a small
contributory
negligence order, as argued, as an alternative on behalf of the
plaintiff, burdening the insured driver with such
an unjustified
responsibility and burdening the strained RAF fund with an
unjustified payment. There is no reason why costs should
not follow
the result.
ORDER
The plaintiffs claim for damages
against the defendant is dismissed with costs.
E STEYN
JUDGE
HIGH COURT
CAPE TOWN
[1]
p
1
of
exhibit
'A'
[2]
'Craig Consult' on
p
9
of exhibit 'A'
[3]
p
13 para
(f)
[4]
Arthur
v
Bezuidenhout and Mieny
1962 (2)
SA
566
(AD) at 576C; and Madyosí & another
v
SA Eagle
[5]
See
also
African
Eagle
Life
Assurance
Co
Ltd
v
Gainer
1980
(2)
SA
324
(W).