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[2010] ZAGPJHC 25
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Smith v Road Accident Fund (A5042/09) [2010] ZAGPJHC 25 (26 April 2010)
REPUBLIC OF SOUTH AFRICA
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO
A5042/09
In
the matter between
SANDRA
SMITH APPELLANT
and
ROAD
ACCIDENT FUND RESPONDENT
______________________________________________________________
J
U D G M E N T
______________________________________________________________
VAN
OOSTEN J:
[1] On 2 January 2007 during the
morning and on the R409 route between Nqamakwe and Ndabazaki, in the
Eastern Cape, a collision
occurred between a Ford Fiesta motor
vehicle (the Fiesta) and a bus carrying 65 passengers. The
appellant’s late husband
was the driver of the Fiesta while
she, their two children and her mother were passengers in the
vehicle. The appellant’s
husband, one of their minor children
and her mother died in the accident, while the appellant and the
other minor child were injured.
The appellant, in her personal
capacity as well as guardian of the remaining minor child, instituted
action against the respondent
as the statutory insurer of the bus in
terms of Act 56 of 1996, for damages arising from the bodily injuries
sustained as well
as loss of support. The matter came up for hearing
before Lamont J who, following upon an application in terms of
Uniform rule
33(4), was required to determine the merits of the
appellant’s claim as a separate issue. The learned judge
decided the issue
against the appellant and absolved the respondent
from the instance, with costs. The appeal comes before us with leave
of the court
a quo
.
[2] Before addressing the merits of
the appeal it is necessary to refer to the application, brought by
the appellant on notice of
motion, to adduce further evidence before
this court, to be considered on appeal. The application is opposed by
the respondent.
Although counsel for the appellant did not press for
the application to be allowed, I consider it necessary briefly to
deal with
it. The further evidence sought to be introduced, in
essence, consists of further photographs recently taken of the scene
of the
accident for the purpose of raising a number of probabilities
and, further, to show when the bus driver would have been able to
make certain observations in approaching the scene. In this regard it
should be noted that the appellant was assisted at the trial
in the
court a quo by an expert in the reconstruction of accidents, who had
visited the scene of the accident and taken a number
of photographs.
Those, as well as photographs taken by the appellant’s brother
of and at the scene of the accident shortly
after the collision, were
extensively referred to during the trial. All these photographs
clearly depict most relevant aspects
of the scene of the accident.
The genesis of the events leading up to the accident, as will become
apparent later in the judgment,
was the Fiesta colliding with a goat
on the road. By the time the first photographs were taken the dead
goat had already been removed
from the road surface and was lying in
the grass to the side of the road. The exact position of the goat
lying on the road surface
after it had collided with the Fiesta was
accordingly not photographed but this aspect was fully dealt with in
the evidence of
both the appellant and the bus driver. The further
evidence seeking to introduce photographs of the assumed position of
the dead
goat on the road surface is seemingly aimed at attacking the
credibility of the bus driver in an attempt to show exactly when the
goat would have been visible to him on his approach to the scene.
[3]
The guiding principles governing applications for leave to adduce
further evidence are well-established. In
Colman
v Dunbar
1933 AD 141
at
161, Wessels CJ dealt with one of the considerations as follows:
‘It
is essential that there should be finality to a trial, and therefore,
if a suitor elects to stand by the evidence which
he adduces, he
should not be allowed to adduce further evidence except in
exceptional circumstances. To allow fresh evidence on
a point which
calls in question evidence already led would necessitate a rehearing
of the witnesses whose evidence is questioned,
so as to give them the
opportunity of answering the fresh evidence. This means that the case
would be largely reopened which militates
against finality…’
Applied to the present application the
appellant, in my view, has failed to show exceptional circumstances
on which the court ought
to accede to the application. From the
grounds advanced on behalf of the appellant for the late tendering of
the further evidence,
it is quite apparent that the appellant’s
attorneys decided on this course of action only after they were faced
with the
adverse judgment of the court a quo, which obviously caused
them to re-considered the merits of the matter and the taking of the
photographs, all in an attempt to bolster the appellant’s case
on appeal. It leaves one in no doubt that the further evidence,
by
proper diligence, could have been obtained for and presented at the
trial. In
MFV Kapitan
Solyanik
1992 (2) SA 926
(NmHC), Hannah J, who wrote for the court, held that where the
failure to adduce further evidence was due to inadequate presentation
of a party’s case at the trial, “further evidence will
only be admitted in the rarest instances”. This, no doubt,
is
not such a case. The further evidence in the present matter concerns
issues of credibility and the allowance thereof would inevitably
have
led to the recalling of witnesses to respond to the new evidence and
the probabilities now alleged to have arisen from the
further
evidence. The aspects now raised have in any event been fully
ventilated, contested and decided at the trial. Finally,
there is
always the danger, in general, of allowing further evidence on
appeal, stated by Innes CJ in
Shein
v Excess Insurance Company Ltd
1912
AD 418
at 429, as follows:
‘The
points to which the trial Court attaches importance having been
ascertained, and its view as to credibility of particular
witnesses
having been expressed, the right to call further evidence would be
very apt to be abused.’
For these reasons this Court, in my
view, should not allow the introduction of the further evidence.
[4] The collision and the events
leading up thereto are largely common cause.
It is firstly necessary to broadly
describe the scene where the accident occurred. The bus was on its
return en route from Butterworth
to Rustenburg. The road has a tarred
surface with two single lanes carrying traffic in opposite directions
roughly from north to
south. The two lanes are separated by a broken
white line in the centre of the road. Each lane is approximately 3,7
metres wide
and a yellow line on each side of the road demarcates
emergency lanes of 1,5 metres in width. Approaching the scene from
the north
(as the bus did) there was a slight bend to the left
straightening out at the area of the point of impact. Being in a
rural area
the bus driver’s view ahead was unhindered for
“hundreds of metres”.
[5] The appellant and her two children
were sitting in the rear of the Fiesta which was travelling in a
southerly direction. She
had earlier dozed off and woke up as a
result of a “thud” which, it is common cause, was caused
by their vehicle colliding
with a goat. Her late husband made a
u-turn to investigate and stopped a short distance away from where
the dead goat was lying,
on the western verge of the road facing
north, in the direction the bus was approaching. He alighted from the
vehicle, picked up
a portion of bumper which had come off and threw
it into the vehicle. He then got back into the vehicle.
[6] The bus, driven by Johan Molefe
Ditibane, approached the scene in the western lane from south to
north. He testified that he
was still “at a distance”
when he observed the deceased standing next to the Fiesta at the
driver’s door, which
was open, and him then getting into the
Fiesta and closing the door. Ditibane, however, drove on maintaining
a constant speed of
108 kilometres per hour. He realised that there
was “also another object” in front of him in the middle
of the lane
the bus was travelling in, which it is common cause, was
the carcass of the goat the Fiesta had minutes before collided with.
The
goat was lying about 3 to 4 metres behind the Fiesta. On
approaching further he identified the object as a goat. In order to
avoid
the goat, he swerved across to the opposite (the eastern,
southbound) lane, and applied brakes, leaving two tyre marks on the
road
surface of 13 metres long. The deceased at that stage started to
execute a u-turn. When the bus was 13 metres before the area of
impact, Ditibane for the first time attempted to reduce speed by
braking. The bus however collided with the Fiesta pushing it
northwards along the road, leaving tracks on the road for a further
55 metres until it finally reached its stationary position.
[7] The evidence shows that the point
of impact (confirmed by gauge marks on the road surface) was on the
eastern (southbound) lane.
The collision occurred just after the
Fiesta had already completed just over half of its u-turn and had
already crossed the centre
of the road in turning back (southwards)
along the southbound lane. At the moment of impact, the bus was at an
angle across the
road and also with its front end in the southbound
lane. The bus collided with the right-hand side of the Fiesta causing
extensive
deformed inward damage to the vehicle, extending from the
right front door to the tail lights.
[8] This brings me to the question of
foreseeability of the bus driver which is really the crucial issue in
this appeal. The court
a quo departed from the premise that “the
foreseeability in relation to danger emanating from the goat is not
transferable
to the foreseeability of the vehicle moving across the
path of the bus. The bus driver must be negligent in relation to the
specific
consequences of the acts”. In my view the learned
judge erred in adopting this approach. In
S
v Bernardus
1965
(3) SA 287
(A) 307B-C it was held
‘[i]t
is the general possibility of resultant injury which must reasonably
be foreseeable and not the specific manner and
nature thereof’
(also quoted in
Flanders
and Another v Trans Zambezi Express (Pty) Ltd and Another
2009
(4) SA 192
(SCA)
para [16]).
In
Kruger
v Van der Merwe and Another
1966
(2) SA 266
(A) 272F, Williamson JA dealt with this aspect as follows
(at 272F):
‘
The
doctrine of foreseeability in relation to the remoteness of damage
does not require foresight as to the exact nature
and extent
of the damage; cf.
American
Restatement of the Law,
Torts
(Negligence), para. 435
.
It is sufficient if the person sought to be held liable therefor
should reasonably have foreseen the general nature of the harm
that
might, as a result of his conduct, befall some person exposed to a
risk of harm by such conduct.’
[9]
In regard to
the conduct of Ditibane
the court a quo determined the issue whether he was negligent on the
basis of:
‘
[t]he
true question to be asked as far as the Ford (the Fiesta) is
concerned is whether or not the reasonable bus driver driving
with
the skill and expertise required of him on the road (a major road) on
the day in question would have anticipated a right-hand
turn by the
driver of the Ford at the time that it was executed. In other words
the bus driver driving along would notice the vehicle
and would there
from his point of view, be anything drawing his attention to the fact
that it posed a threat to his travel.’
I am constrained to differ. As I see
it, the issue whether the bus driver was negligent, directs the
spotlight to an earlier stage
in the events leading up to the
collision than the one addressed by the court a quo. The use of
mathematical
odds
and ends
in an attempt to
reconstruct the
collision
with reference to the bus driver’s conduct at the stage when
the goat became visible, and then to enquire whether
he should have
foreseen the possibility of the Fiesta making a u-turn as it did, in
my view, was superfluous and accordingly unnecessary.
The real
enquiry, in my view, is to determine the bus driver’s conduct
at the stage when he observed an unusual and potentially
dangerous
situation right in front of him, in his line of travel, alerting him
that something was amiss. This then is what he was
confronted when at
a distance of some 200 meters from the scene: a stationary vehicle on
the verge of the road to his right facing
north and therefore
oncoming traffic in the south bound lane; a man (the driver of the
Fiesta) standing next to and then getting
into the vehicle and
seconds later an object (the dead goat) lying on the road within his
lane of travel, just behind the Fiesta.
[10] A reasonable bus driver in these
circumstances, in my view, should have realised that there was a
potentially dangerous or
unusual scene ahead of him. He accordingly
should have slowed down so as to enable him to properly assess the
situation and to
stop timeously should it turn out to be necessary
(see
Flanders
supra,
para [16]). He therefore owed a duty, not only to his passengers but
also other users of the road (
Rex
v Masimango
1950 (2) SA 205
(N) 208) having regard to the prevailing circumstances to approach
the scene at a reasonable speed (cf
Woods
v Administrator Transvaal
1960
(1) SA 311
(T) 314;
Du Plooy
v SA Onderlinge Brandversekeringsmaatskappy
Bpk
1975
(1) SA 791
(0) 794/5). In similar vein as was held by Griesel AJA in
Flanders
this is not an unduly onerous duty to impose upon a professional
driver, in casu, in the position of Ditibane, especially having
regard to the fact that he, literally, held the lives of 65 people in
his hands.
[11] It is common cause that the bus
driver did not reduce his speed at all until the very last moment
when he swerved in order
to avoid the dead goat. A speed of 108 km
per hour in the continued approach to the scene was clearly
excessive. His failure to
reduce his speed, in my view, accordingly
constituted negligence on his part. That negligence also contributed
to the accident.
The question of contributory negligence does not
arise: a finding of negligence on the part of the bus driver entitles
the appellant
to succeed on the merits of her claim. I accordingly
conclude that the appeal must succeed.
[12] It remains to deal with the costs
of the application to adduce further evidence. The application was,
strictly speaking, unnecessary.
This raises the question of the
wasted costs occasioned by the application. Those costs are
insubstantial. No additional time was
spent in argument on the
application. The costs thereof accordingly only concern the
affidavits that were filed. The appellant,
being successful in the
appeal, is entitled to the costs of the appeal. But, those costs, in
my view, should exclude any costs
relating to the application to
adduce further evidence.
[13] In the result the following order
is made:
The appeal is upheld with costs,
including those occasioned by the employment of two counsel.
The order of the court a quo is set
aside and replaced with an order in the following terms:
It is declared that the defendant is
liable to compensate the plaintiff for the plaintiff’s
proven damages arising
from the collision on 2 January 2007.
The defendant is ordered to pay the
plaintiff’s costs thus far incurred relating to the merits of
the plaintiff’s
action such costs to include the costs
consequent upon the employment of two counsel.
The determination of the quantum of
the plaintiff’s claim is postponed sine die.
_________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
I agree.
________________________
JC
LABUSCHAGNE
JUDGE
OF THE HIGH COURT
I agree.
________________________
F
KATHREE-SETILOANE
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR THE
APPELLANT ADV B
ANCER SC
ADV D GOODENOUGH
APPELLANT’S
ATTORNEYS NORMAN BERGER & PARTNERS
COUNSEL
FOR THE
RESPONDENT Mr
P UYS
RESPONDENT’S
ATTORNEYS LINDSAYKELLER
DATE
OF HEARING 1 APRIL 2010
DATE OF JUDGMENT 26 APRIL
2010