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2010
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[2010] ZAGPJHC 181
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Kilian and Others v Road Accident Fund (06/14110) [2010] ZAGPJHC 181 (14 June 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
Case No 06/14110
Date:14/06/2010
In the matter between:
ALTA
KILIAN
........................................................................................
First
Plaintiff
HERMANUS FOURIE
…...................................................................
Second
Plaintiff
HEIDENE FOURIE
…........................................................................
Third
Plaintiff
and
ROAD ACCIDENT
FUND
...................................................................
Defendant
MEYER, J
:
[1] This action is for the payment of compensation for damages as a
result of bodily injuries caused by a serious collision that
occurred
in the early evening on 16 April 2005 in Roodepoort. The severity of
the impact caused passengers including children
to be thrown out onto
the tarmac, some of the drivers needed to be cut out of their
vehicles, many of those involved were seriously
injured and were
airlifted to hospital, and a multiplicity of claims were subsequently
lodged against the defendant.
[2] The claims of the second and third plaintiffs were settled. The
only issue before me is the liability of the defendant
vis-à-vis
the first plaintiff, to whom I shall hence on refer as the plaintiff.
By agreement between the parties I ordered that this issue
be
decided before and separately from the issue of
quantum
.
[3] In its plea the defendant baldly denied that the plaintiffs have
complied with the provisions of the Road Accident Fund Act
56 of 1996
(“the Act”), and, at some stage during the trial, the
defendant sought to amplify such denial by an averment
that the
plaintiff had not complied with the provisions of s 9(1)(f) of the
Act. Such attempt at an amendment was abandoned due
to the
defendant’s eagerness to obtain a judgment on the issues of
negligence and contributory negligence, which, I was informed
by Adv.
A. Combrink for the defendant, will assist the defendant in its
dealing with the other pending claims arising from the
same
collision. Accordingly the issues of negligence and of contributory
negligence require decision at this stage.
[4] The plaintiff commenced and proceeded to call Mr. Christiaan Izak
Delport, who was a police officer on the staff of the accident
investigation unit of the Johannesburg Metropolitan Police
Department; Mr. Barry Grobbelaar, who undisputedly is a duly
qualified
expert with vast experience in the reconstruction of motor
vehicle accidents; Mrs. Alta Kilian, who is the plaintiff and who
was
the driver of a Volvo motor vehicle with registration letters and
number RRS 173 GP (“the Volvo”) at the time of the
collision; and Ms. Heidene Fourie, who is the plaintiff’s
niece and who was the only passenger in the Volvo at the time
of the
collision. The defendant called as witnesses Mr Randal Paul
Douman (Jnr.), who is the insured driver and who was the
driver of
the insured vehicle, which was a Mazda Drifter double cab 4 x 4
pick-up van (“the Mazda”) at the time of
the collision;
Mr. William Benjamin Douman (Snr), who is the father of the insured
driver and who was the front seat passenger
in the Mazda at the time
of the collision; and Prof. Gerald Lemmer, who similarly
undisputedly is a duly qualified expert with
vast experience in the
reconstruction of motor vehicle accidents. The facts of this matter
are largely common cause and I accordingly,
except for the disputed
issues, briefly refer thereto.
[5] The collision occurred on Fifth Avenue, Roodepoort at the du Toit
Street intersection. Fifth Avenue runs east to Florida and
west to
Roodepoort. It is 11.1 metres wide and divided into two lanes. The
lane for eastbound traffic travelling in the direction
of Florida is
5.6 metre wide, and the lane for westbound traffic travelling to
Roodepoort is 5.5 metres wide. Traffic along Fifth
Avenue turns
north into du Toit Street. There are no stop signs for traffic along
Fifth Avenue turning into du Toit Street. The
speed limit on Fifth
Avenue is 60 kilometres per hour and there are accesses to
residential properties. There are street lights
along Fifth Avenue
in the vicinity where the collision occurred. Travelling in an
easterly direction along Fifth Avenue and approaching
the du Toit
Street intersection, a vehicle travels around a left hand bend and
then over a rise. The rise prohibits visibility
for vehicles
travelling in both directions. Going over the rise, vehicles
travelling in an easterly direction have at least 100
metres of
unobstructed visibility to the intersection and vehicles travelling
in a westerly direction similarly have an unobstructed
visibility of
at least 100 metres from the intersection. Du Toit Street has a
centre island with two lanes for northbound traffic
and two lanes for
southbound traffic. The width of du Toit Street for northbound
traffic is 7.2 metres and the width for southbound
traffic is the
same. There are stop signs on du Toit Street for southbound traffic
entering Fifth Avenue.
[6] The collision occurred during the early evening of the 16
th
April 2005, between 19h10 – 19h25. Fifth Avenue in the
vicinity of the collision scene was a tarred road with a good
surface.
It was dark, the vicinity of the collision scene was lit by
street lamps, and the illumination was good. The weather was fine
and the road was dry. Immediately before the collision, the Mazda
travelled in a westerly direction along Fifth Avenue. An Isuzu
vehicle with registration letters and number N984G (“the
Isuzu”), which was driven by Mr. Petrus Christoffel Kleynhans,
was also travelling in a westerly direction along Fifth Avenue at
some distance behind the Mazda. The Volvo travelled from the
opposite side in an easterly direction along Fifth Avenue. The
collision between the Mazda and the Volvo was close to a full blooded
head-on with a right front to right front impact. After impact the
Volvo continued in an easterly direction, its left rear tail
lamp
cluster collided with a street lamp pole on the north-eastern corner
of the intersection, and it finally came to a stop against
a pavement
on the northern side of Fifth Avenue facing in an easterly direction.
After impact, the Mazda was forced essentially
rearwards, it rotated
clockwise away from the area of impact into the lane for vehicles
travelling in a westerly direction, which
was the lane of travel of
the Isuzu at the time, a collision between the Mazda and the Isuzu
occurred, and the Mazda finally came
to stop on the eastern side of
the intersection and southern side of Fifth Avenue facing in a
westerly direction. The Isuzu came
to stop on the western side of
the intersection and on the grass section on the southern side of
Fifth Avenue facing in a northerly
direction.
[7] The insured driver testified that he was travelling with his
family and friends in the Mazda along Fifth Avenue in a westerly
direction with the intention of turning south into du Toit Street.
Approximately a kilometre before the point of collision, the
insured
driver overtook a pick-up van which was also travelling west along
Fifth Avenue. This pick-up van was on the extreme left
of the road
as they were travelling, it moved into a bus stop area to the left as
they were travelling, and the insured driver
was accordingly able to
remain in his lane when passing it. In preparing to turn right into
du Toit Street, the insured driver
started to brake, he put the
Mazda’s indicator light on, and he brought the Mazda to a
complete standstill in a parallel
position at the centre line and on
its correct side of Fifth Avenue at a point virtually across from the
centre island on du Toit
Street. When the Mazda came to a standstill
it was passed by an oncoming vehicle which had been travelling east
along Fifth Avenue.
The headlights of the Mazda were on dim, because
of the oncoming vehicle that had passed it. The insured driver
noticed the lights
from another oncoming vehicle and as it was
nearing he could see it was a white vehicle. The next moment was the
impact. The
Mazda remained stationery before the collision and the
insured driver never executed his intended right turn into du Toit
Street.
The white vehicle, which was involved in the collision,
turned out to be the Volvo. The evidence of Mr Douman (Snr.), who
sat
in the front passenger seat of the Mazda at the time of the
collision, corroborated that of his son, the insured driver, in
certain
material respects.
[8] The plaintiff testified that on the evening in question at
approximately 19h10, she was driving the Volvo in an easterly
direction
along Fifth Avenue. She was accompanied by her niece who
sat in the front passenger seat. The plaintiff confirmed that she
had
at least 100 metres of visibility to the du Toit Street
intersection as she was travelling along Fifth Avenue. When she
travelled
over the rise, she noticed two sets of lights which blinded
her. The lights were from oncoming vehicles from the opposite
direction
and, as she was travelling, the one set of oncoming lights
was on the left side of the road and the other on the right. Under
cross-examination the plaintiff said that she then realized that
there was an oncoming vehicle in her lane of travel. She lifted
her
arm to her face to block out the lights, and the impact occurred
immediately. She had no time to brake or to swerve out.
The
plaintiff was in her correct lane of travel and she collided with the
set of lights to her left. According to the plaintiff
she and her
niece were driving unhurriedly immediately before the collision and
she denied profusely that she would have travelled
at speed. She
was, however, unable to say at what speed she was travelling. It was
put to the plaintiff that she was travelling
at a very high speed and
that Prof. Lemmer’s estimate of her speed is approximately 115
kilometres per hour, to which she
replied that she does not know and
that she is not going to lie. In her evidence, the plaintiff’s
niece, Ms Fourie, confirmed
that she was a passenger in the Volvo
when the collision occurred, but she had no significant recollection
of the events and her
testimony was of no value in determining the
issues.
[9] The Isuzu was probably the vehicle which the insured driver had
overtaken before he reached the intersection. The second set
of
lights that the plaintiff had seen to her right when she travelled
over the rise was probably those of the Isuzu, which vehicle
had been
travelling in a westerly direction along Fifth Avenue at some unknown
distance behind the Mazda and subsequently collided
with the Mazda
immediately after the impact between the Mazda and the Volvo.
[10] The two essential issues are accordingly the speed at which the
Volvo was travelling and the position of the Mazda immediately
prior
to and at the time of impact between the Volvo and the Mazda.
[11] I do not accept the plaintiff’s testimony that she and her
niece were driving unhurriedly immediately before the collision.
Her
evidence on the issue of speed contains obvious internal
contradictions. Under cross-examination she first profusely denied
that she was travelling at a very high speed, and later on she
testified that she does not know.
[12] Both Prof. Lemmer and Mr Grobbelaar were
ad idem
that the
plaintiff travelled at a very high speed. They used the same
methodology in their determination of the probable speed
at which the
Volvo was travelling before and after the collision. In short, their
evidence on this issue was that in such a collision
the vehicles
acquire the same speed by virtue of the fact that they are in contact
with each other for a finite time. The mass
ratio for the Mazda and
Volvo is approximately 1.4, with the Mazda therefore being 1.4 times
heavier than the Volvo. By conservation
of momentum, which is a
fundamental principle governing all collisions, the speed of the
Volvo before the impact would be 2.4 times
the speed of the vehicles
after impact. In order to determine the speed of vehicles after
impact one has regard to their masses,
the distances of their post
impact movements, and their decelerations on route to their
ultimately coming to a standstill.
[13] Mr Grobbelaar assumed a retardation coefficient varying between
0.3 and 0.5 for the post impact travel of the Volvo and of
the Mazda,
which lead him to estimate the impact speed of the Volvo at between
76 and 98 kilometres per hour. In estimating the
retardation
coefficients at between 0.3 and 0.5, Mr. Grobbelaar
inter alia
took the downhill gradient of 6% into account and he criticized
the opinion of Prof. Lemmer for not taking it into account. Under
cross-examination, however, Mr Grobbelaar conceded that it made very
little difference to the calculated impact speed. When
confronted
under cross-examination with the severity of the damage to both
vehicles, Mr Grobbelaar conceded that the Volvo’s
speed on
impact was probably more in the region of 98 kilometres per hour.
[14] Prof. Lemmer assumed a retardation coefficient of 0.6 for the
post impact travel of the Volvo and the Mazda, which lead him
to
estimate the impact speed of the Volvo to have been at least 115
kilometres per hour. Mr Grobbelaar’s concessions and
Prof.
Lemmer’s convincing evidence on this issue lead me to prefer
the reasoning and opinion of Prof. Lemmer on the Volvo’s
impact
speed. His opinion is that it is very reasonable to assume an
average deceleration of at least 6m/s². He supports
his opinion
on the grounds that the post-collision distances of 15,3 metres for
the Volvo and 14,5 metres for the Mazda should,
in the light of their
ultimately coming to a standstill forcibly, be regarded as minimum
distances; that, with reference to the
various gauge, scrape, skid
and broadside marks on the road surface as well as the post impact
clockwise rotation of the Mazda
and the approximate 90° rotation
of the Volvo from impact to the lamp pole, an inference is justified
that both vehicles underwent
significant decelerations en route to
their ultimate stopping places; and the severity of the collision
damage to both vehicles.
[15] I accordingly find as a matter of probability that the Volvo
travelled at a speed of at least 115 kilometres per hour immediately
prior to and at the time of impact. But even if I am wrong in this
assessment, a speed of between approximately 100 to 115 kilometres
per hour remains an extremely high speed on a road running through a
residential area with a maximum speed limit of 60 kilometres
per
hour. The undisputed evidence is that had the plaintiff been
travelling at a speed of 80 kilometres per hour and had she observed
the Mazda on its incorrect side of the road from a distance of 100
metres away, she would, including reaction time, have been able
to
bring the Volvo to a complete standstill within the distance of 100
metres. Travelling at a higher speed, she would have been
able to
pass the Mazda to her left in her lane had she reduced her speed.
[16] This brings me to the position of the Mazda immediately prior to
and at the time of impact. I do not accept the insured driver’s
testimony on this issue. It is refuted by objective evidence in the
form of the scrape, gouge and tyre marks found on the road
surface
shortly after the collision, and by the convincing evidence and views
of Mr Delport and Mr Grobbelaar on this issue. The
insured driver
conceded that it is possible that he might have brought the Mazda to
a standstill
“a few millimetres”
over the centre
line onto its incorrect side on Fifth Avenue.
[17] Mr Delport, who was an inspector at the time of the collision
and well experienced and qualified in investigating collisions,
including the taking of relevant measurements, the observation of
marks, the gathering of evidence, and the determination of probable
points of impact at scenes of collisions, and Mr Grobbelaar both
expressed the view that the probable point of impact was at a
point
which was referred to as X1. This point represents the positioning
of the Volvo’s right front wheel at the time of
impact. It is
0.7 metres north of the centre of the centre line on Fifth Avenue, in
other words well within the lane for eastbound
traffic which was the
Volvo’s lane of travel. The width of the Volvo is
approximately 1.71 metres and the Mazda approximately
1.67 metres.
Both the Volvo and the Mazda display severe damage to their right
fronts up to approximately the centre fronts of
each vehicle. This
is indicative of a right front to right front impact, and it means
that the Mazda was probably positioned at
a point which was across
from the du Toit Street intersection and approximately 1.5 metres
onto the lane in which the Volvo was
travelling immediately before
and at the time of the impact.
[18] Both Mr Grobbelaar and Prof. Lemmer were
ad idem
that in
this type of head-on collision vehicles cannot go through each other,
they push each other apart, and impact is accordingly
followed by a
sideways displacement of the vehicles – each to its left.
Prof. Lemmer suggested that the marks at point X1
could have been
made by the Volvo after it had suffered the sideways displacement and
in such event the point of impact would be
slightly closer to the
centre of the road, but still within the Volvo’s lane of
travel. Under cross-examination Prof. Lemmer
conceded that, even if
point X1 does not represent the point of impact but the marks made by
the Volvo after its sideways displacement,
the Mazda nevertheless at
the time of impact would probably have crossed over the centre line
into the Volvo’s lane at a
distance of more than half the width
of the Mazda. Prof. Lemmer further conceded that the marks at point
X1 are indicative of
the point of impact even if they were caused by
the Volvo after its sideways displacement.
[19] I accordingly find as a matter of probability that immediately
before and at the time of the impact the Mazda was positioned
at a
point which was across from the du Toit Street intersection and
approximately 1.5 metres onto the lane in which the Volvo
was
travelling.
[20] The plaintiff and the insured driver were, in my view,
negligent. It is an inevitable inference from the evidence that the
plaintiff must have seen the Mazda obstructing her lane when she was
approximately 100 metres away from it. She did not apply
brakes nor
did she deviate from her course. Whether her failure to take
avoiding action was due to the excessive speed at which
she was
travelling or whether she simply failed to keep a proper look-out or
both is impossible to say. Her conduct, in my view,
clearly fell
short of what is to be expected of the reasonable driver under the
prevailing circumstances. By stopping the Mazda
in the intersection
on his incorrect side of the road and onto the lane of oncoming
traffic, the insured driver also, in my view,
fell short of what is
to be expected of the reasonable driver under the prevailing
circumstances.
[21] Adv. Combrink submitted that the negligence of the insured
driver did not contribute causally to the collision. I disagree.
If
the Mazda was not positioned approximately 1.5 metres onto the lane
in which the Volvo was travelling, the collision would
probably not
have occurred. Also, if the plaintiff was not travelling at an
excessive speed or was keeping a proper look-out and
took appropriate
evasive action by applying brakes and either stopping or passing the
Mazda at a much slower speed to her left,
the collision would
probably not have occurred. The negligence of each was linked to the
collision sufficiently closely or directly
for legal liability to
ensue. The insured driver’s negligence contributed to the
collision, the harm was caused directly
to the plaintiff, was
reasonably foreseeable, could easily have been avoided, and no
novus
actus interveniens
was proved. The same considerations apply
equally to the plaintiff. [See:
International Shipping Co (Pty)
Ltd v Bentley
1990 (1) SA 680
(A) at p 700E - J;
Road
Accident Fund v Sauls
2002 (2) SA 55
(SCA), at pp 61 – 62,
paras 12 – 13;
Road Accident Fund v Odendaal
2004 (1)
SA 585
(W), at p 592, para 16].
[22] In my assessment, the plaintiff and the defendant deviated to
the same extent from the norm of the reasonable driver. I consider
the plaintiff to have been 50 per cent at fault and any damages which
the plaintiff may prove in due course should be reduced accordingly.
[23] In the result the following order is made:
1. The defendant is liable to the first plaintiff for payment of 50%
of her proven damages;
2. The defendant is ordered to pay the first plaintiff’s costs
of the hearing on the issue of liability.
PA MEYER
JUDGE OF THE HIGH COURT