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2014
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[2014] ZAGPJHC 355
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Peverett Obo Smith and Another v Road Accident Fund (13/13626) [2014] ZAGPJHC 355 (28 October 2014)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO 13/13626
DATE: 28 OCTOBER 2014
In the matter between:
NQATYISWA PEVERETT obo J SMITH and L
HOPA
..........................
PLAINTIFF
And
ROAD ACCIDENT FUND –
JOHANNESBURG
................................
DEFENDANT
JUDGMENT
ANDREWS AJ
1. This is a claim for damages arising
as a consequence of the death of Mr Johnson Thobile Mbane (“the
deceased”), who
was injured in a collision with a motor vehicle
and subsequently died. The claim is a loss of support claim brought
by the plaintiff
in her representative capacity as the natural
guardian of Jessica Smith and Lutho Hopa, who were minors and
dependants of the deceased
at the time of his death. The issue of
quantum in this claim has been settled by the parties. What remains
to be determined is
liability of the defendant, the Road Accident
Fund, duly established by the provisions of section 2(1) of the Road
Accident Fund
Act, 56 of 1996 (“the Act”).
2. At the commencement of the hearing
of this matter an application was made by the plaintiffs’ legal
counsel, Mr Louw for
the defendant to begin, in light of the fact
that the plaintiff had no witnesses. This application was refused
after arguments
were presented by counsel for the respective parties.
The plaintiff’s counsel then proceeded to interview the
defendant’s
witnesses in the presence of the defendant’s
legal representatives, and then led their evidence.
3. At the close of the plaintiff’s
case the defendant’s legal counsel, Mr Matoboge applied for
absolution from the instance,
and in the alternative for the
plaintiff’s claim be dismissed with costs on the basis that the
plaintiff had failed to make
out a prima facie case of causation of
death due to negligence or other wrongful act by the Mr Steven Leith
(“the insured
driver”) while driving the vehicle with
registration letter and numbers BZ& 162 GP (“the insured
vehicle”),
both being essential requirements for a dependant’s
loss of support claim under the Act.
4. The application for an order of
absolution was refused, as it cannot be concluded that no reasonable
court could draw the inference
contended for by the plaintiff that:-
a. The deceased was dead before being
struck by the second vehicle; and
b. The act of swerving to the left by
the insured driver was conduct that was at least one percent
negligent.
5. It is common cause that at
approximately 19H00 on 31st October 2009 and on the R21 Griffith Road
highway a collision occurred
involving the insured vehicle driven by
the insured driver, and the deceased who was a pedestrian at the
time.
6. The plaintiff pleaded that the
collision was caused solely by the negligent driving of the insured
driver, who was negligent
on one of more of the following respects:
a. he failed to keep up the lookout;
b. he travelled at a speed which was
excessive in the circumstances;
c. he failed to apply the brakes of the
insured vehicle at all, alternatively timeously and/or sufficiently;
d. he failed to avoid the collision
when, by taking reasonable and proper care (including but not limited
to, travelling more slowly,
swerving) he could and should have done
so;
e. he failed to maintain any,
alternatively sufficient control over the insured vehicle;
f. he failed to take into account the
rights of other users of the road..
g. It was further pleaded that the
deceased was the biological father of the two minors and was lawfully
obliged to maintain them,
and did so. He sustained injuries as a
result of the aforesaid collision from which he died on 31st October
2009. Had he not
been unlawfully killed, he would have been legally
obliged to continue to support them and would have been able to do
so.
7. The defendant denied the allegations
of negligence and causation of death and put the plaintiff to the
proof thereof. The following
is a summary of the evidence led by the
three witnesses.
8. Ms Isabella Meyer, a member of the
Ekurhuleni Metropolitan Police Department, testified that she arrived
at the scene of the
collision at about 19H40 after receiving a
callout. She found the traffic at the scene to be “quite busy”
and recorded
her observations of the evidence of the collision on a
sketch which she later transcribed into a computer generated diagram.
Her
evidence referred to the initial sketch which she stated was the
more reliable one.
9. Of relevance was a depiction of the
highway which contains three lanes, separated by broken lines, and
the position of debris
from the collision. This straddled the white
line separating the first and second lane, and she stated that most
of the debris
was found in the second lane. She found a side mirror
from the insured vehicle lying in the middle of the first lane. She
estimated
the point of first impact to have been in the middle of the
first lane. In front of that point she measured a 20.3 meter vehicle
skid mark which veered towards the shoulder of the road, where the
insured vehicle had stopped. In the second lane close to the
white
line she measured a 41.8 meter trail of blood at the end of which lay
the deceased. She measured the middle lane as having
a width of
3.7 meters.
10. The witness confirmed that she had
made a statement after attending the scene. The streetlights were out
of order at the time.
The speed limit on the road was 120 km per
hour. She spoke to the insured driver and recorded that that he had
stated that he was
driving in the middle lane when he saw a
pedestrian crossing from the left side. He was not sure if he was
running or walking.
He was right in front of him. He swerved to the
left and the deceased collided with the right side mirror. Her
statement recorded
the following “the driver….alleged
that he saw the pedestrian in the middle of the road crossing from
the left side,
swerve (d) to the left but the pedestrian was still
running to the right hand and collided with the pedestrian in the
middle lane.”
She stated that the position that she found the
mirror in suggested that the impact had happened in the first lane.
11. The evidence of the witness Ms
Luzaan Lieth, a passenger in the insured vehicle was that she was
travelling with her husband,
the insured driver, (hereafter referred
to as Leith) in the middle lane of the R 21 highway, and just after
they had passed under
a bridge she noticed a white packet and some
movement and she then shouted. Leith responded by pulling the vehicle
over to the
left. She could not make out a figure, only a while bag
at a distance of about 6-7 meters from the insured vehicle, as it had
all happened so fast. Only afterwards did they assume that this
object was a person.
12. She stated that the reason they
could not see the deceased earlier was that the road was dark under
the bridge, and although
they were not directly under it, they were
within a darker area in the range of the bridge. The vehicle lights
were on but they
were not strong lights. She estimated that the
position of the deceased when struck was in the middle lane, just off
to the right
and close to the third lane. They had been travelling at
the same speed as the other vehicles and her husband was “not a
racing driver.”
13. After seeing the deceased, Leith
swerved and braked and then stopped the vehicle on the shoulder of
the road. He did not swerve
earlier because they did not see the
deceased earlier. He then got out of the vehicle to flag down the
motorists and help the
deceased, who was trying to get up. Then a
second vehicle, driving very quickly crossed into the first lane and
collided with
the deceased, dragging him a distance of about 20
meters before coming to a halt. The vehicle then reversed over the
deceased,
drove over him again and left. The deceased was found to
have died after that.
14. Leith then testified that while
driving in the middle lane of the R21 highway, his passenger Ms Leith
screamed and he then saw
a white packet in front of his vehicle at a
distance of about 6 to 7 seven meters away. He swerved hard to the
left and braked.
It was dark and at the speed of 100 to 120 km per
hour he could not tell if the deceased was walking running or
standing. The
deceased was one third of the way into the middle lane
which he was driving in. It was dark and he could not see his
clothes.
He did not know why he had not seen him before that, as his
eyes were on the road. When asked why his wife saw the deceased
before
he did, he responded by saying that she is a nervous passenger
and keeps her eyes on the road.
15. Under cross examination Leith was
presented with a sketch of the insured vehicle’s skid mark and
it was suggested to him
that the angle of the skid indicated that
this was a very mild swerve. He replied that he is not and expert
and does not usually
skid, but that he had indeed swerved to avoid
the deceased.
16. Leith stated that his instinct was
to swerve to the left, and he had no time to assess the situation,
and what was behind him.
After colliding with the deceased he
confirmed the version given by Ms Leith as to the second vehicle
which collided with the
deceased, dragging him further down the road.
He could not vouch for the suggestion that swerving to the right he
would have missed
the deceased. If he had gone straight he probably
would have hit the deceased on the left of the vehicle.
Analysis of the evidence and arguments
17. The evidence of Leith was credible
and consistent and was corroborated in a number of material respects
by the evidence of Ms
Meyer. Her description of where she found the
accident debris, and skid marks corroborated his evidence of the
position of the
vehicle and deceased when he collision occurred. The
evidence of Ms Leith was less reliable. Her evidence as to the
position
of the deceased when struck by the insured vehicle did not
square with the position of the debris from the accident as described
by Ms Meyer. She explained this discrepancy by stating that at the
time it was dark, the lanes were not visible and she was not
concentrating on them at the time. Mr Louw recorded that this
version of the position of the collision differed from what she
had
told him in the earlier consultation. I accept that her recollection
might not have been precise given the circumstances of
the collision
and her description of the lighting. Accordingly no reliance will be
placed on her testimony as to the position of
the deceased at the
point of collision.
18. The Leiths’ evidence was not
disputed that a second car collided with the deceased after the
collision with their vehicle,
and dragged him a distance of about 40
meters, stopped, reversed over him and then drove over him again and
left the scene. He
was confirmed dead after this occurrence. They
both testified that they had seen the deceased trying to get up after
the first
collision. No evidence was led as to the precise time of
his death but in all likelihood it occurred after the second
collision
given this fact. The driver of the second vehicle was not
cited in the claim and the court was advised that the claim against
him had prescribed.
19. Mr Louw argued that Leith should
have swerved to his right of his field of vision, away from danger
but instead swerved to the
left and towards the deceased. The
deceased was on the left hand side of his vehicle when he saw him.
He argued that to get around
an object that is to the left of the
vehicle entailed moving a greater distance than swerving away from it
to the right. In so
doing Leith made an error of judgment and failed
to take sufficient evasive action. He was not keeping a proper
lookout and did
not see the deceased, and had to be warned of his
presence by his passenger. A skilled driver would have kept a
lookout for
objects on the road and this he failed to do. He got a
fright and exercised the wrong option by swerving to the left and he
swerved
wrongly, in other words did not take sufficient evasive
action. In so doing he negligently caused the collision with the
deceased.
This act set in motion a chain of events which but for the
collision would not have occurred and which resulted in the death of
the deceased. As a result the defendant is liable as pleaded.
20. Mr Matoboge argued that the entire
blame for the collision lay with the deceased in that he was
unlawfully on the highway.
He referred to section 323 (2) of the
National Road Traffic Regulations 2000 (GNR 225 of 17 May 2000),
which states that no person
shall be on a freeway save in limited
circumstances that do not apply in this case. Leith stated that he
did not expect to see
a pedestrian on that road which is a highway
and the location of the collision was not in a residential area. The
deceased by
his conduct had created a situation of sudden emergency.
It was a case of volenti non fit iniuria. The insured driver had
acted
immediately he saw the deceased and had taken reasonable steps.
21. Mr Matoboge argued further the
second collision was an actus novus interveniens and was the actual
cause of the death of the
deceased, rather than the first collision.
He drew this conclusion from the fact that the deceased was seen
trying to stand up
after the first collision. He argued that the
plaintiff had framed the case based on citing the wrong driver and
when this was
realised it was too late to rectify the matter as the
claim had prescribed. In the circumstances it was unjust to hold the
defendant
liable.
22. The following summary of the
applicable legal principles was set out by van Heerden, AJA in
Minister of Safety and Security
and another v Rudman and another
[2004] 3 All SA 667
(SCA) at paragraph
65:
“The classic test for
establishing the existence or otherwise of negligence, quoted with
approval in numerous decisions of
this Court, is that formulated by
Holmes JA in Kruger v Coetzee1966 (2) SA 428 (A) at 430E-G.
“For the purposes of liability
culpa arises if –
(a) a diligens paterfamilias in the
position of the defendant –
(i) would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial
loss; and
(ii) would take reasonable steps to
guard against such occurrence; and
(b) the defendant failed to take such
steps.
Whether a diligens paterfamilias in the
position of the person concerned would take any guarding steps at all
and, if so, what steps
would be reasonable, must always depend upon
the particular circumstances of each case. No hard and fast basis can
be laid down.”
As was emphasised by this Court in Sea
Harvest Corporation (Pty) Ltd and another v Duncan Dock Cold Storage
(Pty) Limited and another:
2000 (1) SA 827
(SCA) para 21-22 at
839G-840 in the following terms:
“[21] ..it should not be
overlooked that in the ultimate analysis the true criterion for
determining negligence is whether
in the particular circumstances the
conduct complained of falls short of the standard of the reasonable
person. Dividing the inquiry
into various stages, however useful, is
no more than an aid or guideline for resolving this issue.
[22] It is probably so that there can
be no universally applicable formula which will prove to be
appropriate in every case . .
.”
“ . . . it has been recognised
that, while the precise or exact manner in which the harm occurs need
not be foreseeable, the
general manner of its occurrence must indeed
be reasonably foreseeable.” (See too the most recent Carmichele
case (SCA) (supra)
para 45 at 148G-149A.)
Moreover, it must constantly be borne
in mind that, in considering the question as to what is reasonably
foreseeable:
“ . . .one must guard against
what Williamson JA called ‘the insidious subconscious influence
of ex post facto knowledge’
(in S v Mini
1963 (3) SA 188
(A) at
196E-F). Negligence is not established by showing merely that the
occurrence happened (unless the case is one where res
ipsa loquitur),
or showing after it happened how it could have been prevented. The
diligens paterfamilias does not have ‘prophetic
foresight’
. . .In Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co
Ltd (The Wagon Mound)
[1961] UKPC 1
;
[1961] AC 388
(PC) ([1961]
[1961] UKPC 1
;
1 All ER 404)
Viscount Simonds said at 424 (AC) and at 414G-H (in All ER) :
‘After the event, even a fool is
wise. But it is not the hindsight of the fool; it is the foresight of
a reasonable man which
alone can determine the responsibility.’”
(See S v Bochris Investments (Pty) Ltd and another
1988 (1) SA 861
(A) at 866J-867B, quoted in Sea Harvest Corporation (supra) para 27
at 842G-H and in the most recent Carmichele case (SCA) (supra)
para
45 at 149B-D.)
23. Leith reacted to the sight of the
white object which was held by the deceased, after his passenger had
screamed. He did not
see the deceased as such, only this object. His
explanation as to why Ms Leith had reacted to it before he did was
that she was
a nervous passenger and keeps her eye on the road.
Assuming that he had been as attentive as she was, in other words a
reasonable
person who keeps his eye on the road, the question is
whether he could have taken evasive action which would have resulted
in him
not colliding with the deceased.
24. The following facts are relevant to
this enquiry. The Leiths both testified that it was very dark on the
highway and they were
travelling at high speed with head lights that
were not very powerful. Leith could not tell if the deceased was
standing, walking
or running because it was dark. Neither of them
saw the deceased - they only saw a packet he was holding. This is
consistent
with the terrain being very dark. Leith saw the deceased
so late that he did not have time to take his foot off the
accelerator.
He swerved sharply, according to his evidence. He
acted by instinct. He could not say whether the outcome would have
been different
if he had swerved to the right.
25. A speed of 120 km per hour roughly
approximates to 33 meters a second and if Leith had seen the deceased
when his wife did,
he would have had a fifth of a second to take
evasive action. Mr Louw argued that drivers are constantly called
upon to make split
second decisions and a quarter of a second is
enough to make the right decision.
26. In my view this may be true if an
object, for example a pothole, is clearly visible in front of a
driver, and depending on the
speed in which the vehicle is moving.
In the present case it was so dark that neither of the occupants
could even see that there
was a human being in the road in front of
them and whether he was moving or stationary. If the deceased been
moving ie walking
or running across the highway from left to right in
front of the traffic, a swerve to the right might have resulted in a
collision
with him. It therefore does not follow that there was a
“correct” course of action for Leith to take under the
circumstances
and that he took the wrong course of action by swerving
to the left.
27. It is common cause that the speed
limit was 120km per hour and no evidence was tendered that Leith was
travelling beyond the
speed limit. The argument that he was going
too fast is therefore not supported by facts.
28. The suggestion that Leith did not
swerve sufficiently is an inference drawn by Mr Louw from the angle
of a skid mark created
by the insured vehicle’s tyres on the
road, before it came to a halt. This theory does not take into
account the effect
of speed on the mark caused when the vehicle
skidded. Leith stated that he did not take his foot off the
accelerator when he
swerved and he was travelling around 120 km per
hour. Clearly a vehicle travelling at a lower speed will cover a
shorter distance
than a vehicle travelling at a higher speed, in the
same amount of time. If both were to swerve to an equal degree, it
would seem
reasonable to infer that this would affect the angle of
their respective tracks on the ground. However in the absence of
expert
evidence about what the skid mark indicate about the degree to
which Leith swerved, nothing further can be concluded from it, save
that it shows that the vehicle veered to the left, which is
consistent with Leith having swerved when he encountered the
deceased.
29. In circumstances of poor
visibility, which the evidence shows applied in this case, the
argument that Leith did not keep a
sufficient lookout, and that if he
had done so he could have taken more appropriate evasive action, is
conjecture rather than fact.
According to Ms Meyer the street lights
were not operating. If a human being was not visible to his very
attentive wife at a
distance of 7 meters it seems unlikely that he
would have been more visible at a greater distance, with even less
light on the
him from the headlights.
30. It is clear that as soon as he saw
the white object Leith foresaw that he could collide with it and took
evasive action. The
action he took, which was to swerve to the left,
all but missed the deceased. Only the side rear view mirror of the
vehicle hit
the deceased knocking him to the ground. A few more
centimetres and he might have missed him altogether. His conduct in
swerving
to the left was reasonable in the circumstances and if it
was not, he certainly did not have time to weigh up the options and
take
a better course of action as, apart from anything else it was
not clear to Leith whether the deceased was standing, walking or
running.
31. The conduct of Leith was reasonable
in the circumstances. He swerved and largely avoided a serious
collision with the deceased.
There is no basis on which it is
possible to conclude that his actions were negligent. The claim
therefore fails.
32. In light of the fact that the
dependents of the deceased have suffered a loss of parental support,
and were minors when he
passed away I have exercised my discretion
and make no order as to costs against the plaintiff
33. I make the following order:
a. Judgement for the defendant;
b. No order is made as to costs.
A ANDREWS
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE HEARD : 27th AUGUST 2014
DATE DELIVERED : 28th October
2014
For the Plaintiff : ADV LOUW
Instructed by : Smit Herbst and
Burger Attorneys
For the Defendant : ADV MATOBOGE
Instructed by : Kekana Hlatshwayo
Radebe Inc