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[2013] ZASCA 8
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Crafford v South African National Roads Agency Ltd (215/12) [2013] ZASCA 8 (14 March 2013)
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THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
215/12
Reportable
In
the matter between:
DIRK JOHANNES CRAFFORD
.......................................................................
Appellant
and
THE
SOUTH AFRICAN NATIONAL ROADS AGENCY LIMITED
.............
Respondent
Neutral citation:
Crafford v South African
National Roads Agency Limited
(215/2012)
[2013] ZASCA 8
(14 March
2013)
Coram:
Brand and Leach JJA and Schoeman, Plasket
and Saldulker AJJA
Heard:
21 February 2013
Delivered:
14 March 2013
Summary: Claim for damages arising out of a collision
between a motorist and a kudu at night ─ appellant alleging
collision
due to respondent’s negligent failure to mow the
grass in the road reserve ─ no direct evidence as to how the
collision
occurred ─ appellant failing to prove that the
respondent’s alleged negligence the cause of the collision.
___________________________________________________________________
O R D E R
___________________________________________________________________
On appeal from:
North Gauteng High Court,
Pretoria (Louw J sitting as court of first instance):
The appeal is dismissed with costs, including the costs
of two counsel.
___________________________________________________________________
J U D G M E N T
__________________________________________________________________
LEACH JA (BRAND JA AND SCHOEMAN, PLASKET AND SALDULKER
AJJA concurring):
[1] The superstition that Friday the 13
th
is
an unlucky day proved to be true in the case of the appellant on 13
January 2006. Late that Friday night he was driving home
along the
R510 national roadway between Thabazimbi and Ellisras when his motor
vehicle collided with a kudu cow. The impact was
considerable, the
kudu having been propelled through the windscreen into the interior
of the vehicle. Most unfortunately, the appellant
was severely
injured in the process.
[2] The respondent was at the time responsible for the
maintenance of both the road on which the collision occurred and the
road
reserve immediately adjacent thereto and, in due course, the
appellant sued the respondent for damages suffered as a result of his
injuries. His claim was essentially founded on an averment that the
respondent or its employees had neglige
ntly
failed to cut the grass alongside the road and had allowed it
to grow so high that it had prevented him from seeing the kudu until
it entered the road, at which stage it was too late to avoid a
collision. This the respondent denied.
[3] When the matter came to trial in the North Gauteng
High Court, Pretoria, the hearing proceeded solely in respect to the
question
of liability with the issues relating to the appellant’s
damages standing over for later determination. The high court held
that the appellant had failed to establish that the condition of the
grass alongside the road had caused the collision and dismissed
the
appellant’s claim. With the leave of the high court the
appellant appeals to this court against that order.
[4] Before October 2004 the R510 and its road reserve
had been the responsibility of the Limpopo Provincial Government.
However,
on 22 October 2004 the road was declared to be a national
road under s 40(1) of
The South African National Roads Agency Limited
and National Roads Act 7 of 1998
, whereupon the respondent assumed
responsibility for the maintenance and care of both the road and its
reserve. In the 15 month
period that elapsed from then until the
incident giving rise to the appellant’s claim, the grass in the
road reserve at the
scene of the collision had not been mown but been
left to grow wild (mowing the road reserve alongside the R510 had
commenced but
had not yet been completed). It is upon this omission
that the appellant founded his claim for damages.
[5] It is trite that an
injured
party who seeks to recover damages in a situation such
as this must establish that the omission sued upon was (a) negligent,
(b)
wrongful – in the sense that it was a failure which as a
matter of public and legal policy should be regarded as actionable
–
and
(c) caused the alleged loss. This third
element requires proof of the omission complained of having been in
fact a cause of the
loss suffered – commonly known as factual
causation – and, once that is established, that the loss is not
too remote
but sufficiently linked to the loss to attract liability –
so called legal causation.
1
[6] All three of these elements, negligence,
wrongfulness and causation, were placed in issue, both in this court
and in the court
a quo. The high court’s decision to dismiss
the appellant’s claim as the condition of the grass on the road
reserve
had not been shown to have caused the plaintiff’s
collision with the kudu, is solely one of factual causation.
[7] The classical formulation for deciding whether an
omission caused the loss allegedly suffered is the so-called ‘but
for’
test. This involves an enquiry as to whether, but for the
omission, the loss probably would not have occurred. In this regard,
the question is not one of mathematical percentage but, rather, what
is more likely. As was explained by this court in
Minister
of Finance & others v Gore NO,
2
a judgment recently referred to with approval by the
Constitutional Court:
3
‘
[
A]pplication
of the “but for” test is not based on mathematics, pure
science or philosophy. It is a matter of common
sense, based on
the practical way in which the ordinary person's mind works
against the background of everyday-life experiences.
Or, as was
pointed out in similar vein by Nugent JA in
Minister
of Safety and Security v Van Duivenboden
:
“
A
plaintiff is not required to establish the causal link with
certainty, but only to establish that the wrongful conduct was
probably a
cause of the loss, which calls for a sensible
retrospective analysis of what would probably have occurred, based
upon the evidence
and what can be expected to occur in the ordinary
course of human affairs rather than metaphysics.”’
4
[8] Bearing these principles in mind, I turn to consider
whether the court a quo correctly held that the appellant had failed
to
prove the element of factual causation. Although it was common
cause that the collision had occurred on the R510 national road some
50 kilometres from Thabazimbi, the precise scene was a matter of some
dispute at the hearing, the respective parties having identified
two
places a few hundred metres from each other as being where the impact
had occurred. In my view, nothing really turns on this
and it can be
accepted that it was on a straight stretch of tarred road running
approximately east to west. The road surface was
approximately 7,6
metres in width while the road reserves both to the north and to the
south of the edges of the roadway were approximately
15 metres wide.
After the collision the appellant’s motor vehicle was found
stationary on the trafficable surface of the
roadway, and the
inference is irresistible that the kudu cow was on the road at the
time of impact.
[9] There was considerable dispute at the trial in
regard to the condition of the road reserve at the material time, in
particular
in regard to the length and density of the grass. It can
be accepted that there were clumps of a grass known as
hyperthelia
dissoluta
that can grow to at least two metres in height but,
unfortunately, no photographs were taken shortly after the incident
nor was
there any detailed evidence from which it is possible to
reliably determine the length and density of the grass at the place
where
the impact occurred at the relevant time. Despite this
difficulty, it can be accepted that the grass had been allowed to
grow tall
and was, in places, in clumps sufficiently large and dense
to have seriously affected an approaching driver’s ability to
see kudu on the road reserve ahead.
[10] It must be mentioned that photographs handed in at
the trial show that the road passes through fairly thick bushveld
where
kudu are likely to abound. The road reserve to the north of the
road was at the time separated from the surrounding veld only by
a
standard stock-proof fence which, so the evidence establishes, kudu
are capable of clearing with no difficulty at all. Moreover,
not only
were there nearby traffic signs warning of the possible presence of
kudu, but the appellant, who used the road regularly
to travel
between his home on a game farm near Ellisras and his work in
Pretoria, had on several occasions seen kudu next to the
road, both
by day and at night.
[11] The plaintiff unfortunately sustained severe head
and facial injuries which has given rise to retrograde amnesia, and
he has
no recall of the circumstances under which the collision
occurred. However, despite the appellant’s inability to
describe
what happened, it was argued on his behalf that the most
probable inference to be drawn from the known facts is that the kudu
with
which he collided was not visible to him by reason of the long
uncut grass until it emerged into the roadway at a time when it was
too late to take effective avoiding action.
[12] It takes little imagination to think of various
circumstances in which the collision may have taken place. The kudu
may have
been in the road as the appellant approached but was not
seen by him until it was too late; the appellant may have seen the
kudu
crossing the road at a safe distance ahead and relaxed his
vigilance, only for it to turn back when the vehicle was close by;
the
kudu may have come bounding over the stock fence and across the
road reserve, either in fright or because the bull of the herd on
the
other side of the road barked a call. These are but a few scenarios
that readily spring to mind, but the list is truly endless.
What has
to be considered is whether the scenario advanced by the appellant,
namely, that the kudu emerged into the roadway from
a position in
which it had been obscured by the long grass in the road reserve at a
time when it was too late to take effective
avoiding action, has been
factually established as being what probably occurred
[13] The appellant’s argument is that he proved
that the collision occurred in these latter circumstances as a result
of the
necessary inferences which are to be drawn from the other
known facts. Of course it is necessary at all times to distinguish
between
speculation on the one hand and factual inference
legitimately drawn from proven objective facts on the other. An
inference of
fact can only properly be drawn if the other proven
facts justify doing so. If they do not, the inference sought to be
drawn becomes
mere speculation.
[14] Where, as here, a court is asked to draw inferences
of fact in relation to an alleged negligent omission in determining
whether
factual causation has been established, the enquiry is
further complicated by requiring ‘the substitution of a
hypothetical
cause of lawful conduct for the unlawful conduct of the
defendant and the posing of the question as to whether in such case
the
event causing harm to the plaintiff would have occurred or not’.
5
As was observed by this court in
Gore
NO
, inferential reasoning is required in such
circumstances to determine ‘what would have happened if the
wrongful conduct is
mentally eliminated and hypothetically replaced
with lawful conduct?’
6
Accordingly it becomes necessary to consider whether it
has been shown by inference drawn from the known facts that the kudu
with
which the appellant collided would probably have been visible to
him early enough for effective avoiding action to be taken had
the
road reserve been mown short.
[15] In considering that issue, it must be remembered
that the incident occurred late at night at a time when the
appellant’s
ability to see the road and the adjacent road
reserve ahead of him was considerably compromised, his range of
vision having been
restricted to the area illuminated by his
headlights. Of course drivers do not necessarily have to be able to
stop within the range
of their headlights at all times, but a kudu
which ventures into a main road at a place beyond the lights of an
approaching vehicle
might well be difficult to avoid if a driver
cannot stop in time once it becomes visible. In addition, the
evidence in this case
established that even if the grass had been
cut, the appellant’s lights would not have illuminated the
whole of the road
reserve but only about that half closest to the
road ie up to about eight metres from the edge of the road. Thus
neither a kudu
on the road reserve beyond that range nor one beyond
the fence would have been visible in the appellant’s lights.
[16] It must also be remembered that notwithstanding
their large size, kudu are extremely difficult to see at night. Not
only is
this a matter of common experience but the parties’
experts were agreed that ‘kudu are by way of skin colouring and
habits well camouflaged and are difficult to see’ and that they
are ‘more difficult to see at night, even when light
sources
like headlights of cars are present’. This was also borne out
by the evidence of Mr Du Toit, called on behalf of
the plaintiff, and
the information contained in the annexures to his expert’s
report to which he referred, which established
that, as kudu are
difficult to see at night and often move into and across roadways
despite the presence of fences, collisions
with them are all too
common an occurrence on roads traversing rural areas in which kudu
are regularly found.
[17] A further consideration is the speed at which kudu
are capable of travelling. The evidence established that a kudu trots
at
about 30 kph and can run at 50 kph or faster. Consequently, during
the 1.5 seconds which the evidence established it takes the average
driver to visualise, perceive and react to the sudden appearance of
danger, kudu will travel approximately 12.5 metres if it is
trotting
and approximately 20 metres if running. Over the same period, a motor
vehicle driven at 100 kilometres per hour (as the
appellant testified
he would have been driving) will cover about 40 metres. It is readily
apparent from this exercise that a kudu
on a road reserve trotting
towards the adjacent road from a position beyond the range of an
approaching vehicle’s lights
will only become visible at best a
second or so before it reaches the road itself, and that a motorist
approaching at 100 kph,
then 50 metres or so away at that stage
will hardly have the opportunity to react, let alone to take
effective avoiding action,
before reaching the animal.
[18] While I am acutely aware of the difficulties
attendant upon attempting to make mathematical calculations in
matters of this
nature, based as they are on estimates as to
positions, speeds and motions which may not be at all reliable, it is
nevertheless
an exercise ‘useful as a check’
7
that shows how difficult it may be to avoid colliding
with a moving kudu while driving along a road at night, even where
there is
nothing to obstruct visibility alongside the roadway.
[19] The truth of the matter is that even had the grass
alongside the road been short at the time, one does not have
sufficient
information to determine how the collision probably took
place. The list of imponderables is infinite. We do not know whether
the
kudu came from the northern or southern side of the road, nor
whether it was trotting or running. Even accepting that the appellant
was driving at about a 100 kph, one has no idea how, in what
manner and at what speed the kudu moved as the gap between it
and the
motor vehicle closed. It may have moved slowly into the road from a
position in which it was standing behind a large clump
of grass close
to the road but, equally possibly, it may have come at a run from the
bushveld beyond the road reserve, clearing
the fence and charging
towards the road into the roadway directly in front of the vehicle,
giving the appellant no chance to see
it. To find that any one of
these scenarios is in fact what probably occurred would be to indulge
in impermissible speculation.
[20] Moreover, even if the grass in the reserve had been
short, it would also be a matter of speculation to find that the kudu
would
have become visible when there was still sufficient space
between it and the approaching appellant for successful avoiding
action
to be taken. Possibly it could have been seen in time but,
bearing in mind the restricted view of the road reserve that the
appellant
would have had in his headlights and the difficulty one has
of seeing a kudu at night even when they fall within the range of a
vehicle’s lights, the kudu may well not have been visible to
the appellant until a very late stage even if his ability to
see had
not been compromised by the long grass there was on the night of the
collision. Certainly that is no less probable than
the kudu becoming
visible when there was sufficient time and space to avoid it ─
or, for that matter, that the collision
occurred in any other way.
[21] Without knowing where the kudu came from, how it
moved, the manner in which it came to be in the road, and where it
and the
appellant’s motor vehicle were in relation to each
other at any material time, it is really impossible to determine
solely
from the fact of a collision where the kudu would have been
and at what stage it would have become visible to an approaching
motorist,
irrespective of the length of the grass alongside the road.
In my view there are thus insufficient objective facts from which it
can be inferred that if the grass alongside the road had been kept
short the appellant would have seen the kudu earlier than he
did, let
alone that on seeing it he would have had sufficient time and space
to have reacted and slowed his vehicle sufficiently
to avoid a
collision. The appellant therefore failed to establish on a balance
of probabilities that if the grass had been kept
short the collision
would not have occurred.
[22] I am accordingly of the view that the trial court
correctly concluded that the appellant had failed to discharge the
onus of
establishing that the state of the road reserve caused the
collision. This renders it unnecessary to consider the elements of
negligence
and wrongfulness as, even if they were to be determined in
the appellant’s favour, his claim would still fail.
[23] I need to mention one final matter. It is important
for the administration of justice that the roll of this court is not
clogged
by cases which should properly have been referred to a full
bench of the high court. The inappropriate granting of leave to
appeal
to this court has been adversely commented on regularly in the
past.
8
Section 20(2)
(a)
of
the Supreme Court Act 59 of 1959 requires a high court granting leave
to appeal to direct that the appeal be heard by a full
court ‘unless
it is satisfied that the questions of law and of fact and the other
considerations involved in the appeal are
of such a nature that the
appeal requires the attention of (this court)’. This is clearly
not such a case. Although the damages
claimed by the plaintiff were
substantial, it is a relatively straightforward factual matter
involving well-settled legal principles.
Leave to appeal should
clearly have been granted not to this court but to a full court.
[24] Be that as it may, the appeal is dismissed with
costs, including the cost of two counsel, including the costs of two
counsel.
_____________________
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: J F Mullins SC (with him J D du Plessis)
Instructed by:
Van Zyl Le Roux Inc, Pretoria
Honey Attorneys, Bloemfontein
For Respondent: J D Maritz SC (with him T Potgieter)
Instructed by:
Savage Jooste & Adams, Pretoria
Webbers Attorneys, Bloemfontein
1
See
in this regard eg
Siman & Co (Pty) Ltd v Barclays National
Bank Ltd
1984 (2) SA 888
(A) at 914F-H and
Delphisure
Insurance Brokers v Dippenaar
2010 (5) SA 499
(SCA) para 28.
2
Minister
of Finance v Gore NO
2007 (1) SA 111
(SCA) para 33.
3
See
Lee v Minister of Correctional Services
[2012] ZACC 30
para
47.
4
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA)
([2002]
3 All SA 741)
para 25
.
5
Siman
& Co
at 915E-F.
6
Gore
NO
para 32.
7
Per
Ogilvie Thompson AJ in
Van der Westhuizen v SA Liberal Insurance
Co Ltd
1949 (3) SA 160
(C) at 168, a comment subsequently
approved by this court – see eg
Netherlands Insurance Co of
SA Ltd v Brummer
1978 (4) SA 824
(A) at 831E-F.
8
See
eg
Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC
2003
(5) SA 354
(SCA).