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[2010] ZAWCHC 222
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October v Road Accident Fund (6293/2008) [2010] ZAWCHC 222 (22 September 2010)
IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
REPORTABLE
CASE NO.
6293/2008
In the matter
between:
GERALDINE OCTOBER
…................................................................................................................
PLAINTIFF
And
THE
ROAD ACCIDENT
…...........................................................................................
DEFENDANT
Coram DLODLO, J
Judgment by
DLODI.O, J
Counsel for the
Plaintiff ADV. I.J. TRENGOVE
Instructed by
Jonathan Cohen & Associates
3
rd
Floor,
Equity House
107
St George's Mall
CAPE
TOWN
Tel.
no. 021 422 5270
(Ref.
J.Cohen)
Counsel for the
Defendant ADV. C. BISSCHOFF
Instructed
by
Z
Abdurahman
Attorneys
Ground Floor,
Waalburg Building
28 Wale Street
CAPE TOWN
TEL. no. 021 424
21II
(Kef. Abdurahman)
Date(s)
of Hearing 07, 8 & 9 SEPTEMBER 2010
Judgment
delivered on
22
SEPTEMBER 2010
IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
CASE NO.
6293/2008
In the matter
between:
GERALDINF
OCTOBER
…................................................................................................................
PLAINTIFF
And
THE ROAD
ACCIDENT
…..............................................................................................................
DEFENDANT
JUDGMENT
DELIVERED ON WEDNESDAY, 22 SEPTEMBER 2010
DLOPLO.J
[1]
During the earl) hours of the afternoon of 9 September 2003 and on
Angela Street, Valhalla Park in Cape Town area, an accident
occurred
when a motor vehicle (a truck) owned by Marlow Transport, driven at
the time by one Marlhinus Le Roux, hit and ran over
a cyclist known
as Bradley October. The latter was an eleven (11) year old boy at
the time. The boy was seriously injured in
the said accident. The
trial before me concerns the merits only. At the start of the trial
the parties stipulated that the records
in Exhibit "A"
(the Plaintiffs bundle of documents) would be admitted on the basis
of that they were what they purported
to be, without necessarily
admitting the contents thereof. The Defendant in its Plea does not
deny that the accident took place
and that Bradley sustained serious
injuries. The Defendant maintains that the collision was caused due
to the exclusive negligence
of Bradley who is said to have been
negligent in certain specified respects. In addition (as far as the
injuries are concerned)
the Defendant pleaded that such injuries
were caused by Bradley himself in that he was under an obligation to
wear a crash helmet
but that he failed to do so in circumstances
where he was able to do so and where the wearing of such crash
helmet would have
materially reduced the nature and severity of the
injuries sustained by him. Mr. Trengove appeared for the Plaintiff
and Mr.
Bisschoff appeared for the Defendant. What appears hereafter
represents a summary of evidence led in this matter.
PLAINTIFF'S
CASE
MRS.
GERALDINE OCTOBER
[2]
The Plaintiff, Mrs. October, acts herein in her personal capacity
and in her capacity as the natural guardian of her son,
Bradley
October, who was seriously injured in the motor vehicle collision on
9 September 2003. Mrs. October is the natural mother
of Bradley. He
was born on 9 May 1992, and his birth certificate was admitted as
Exhibit "B". Mrs. October testified
that Bradley had
suffered serious injuries. He is no longer able to remember well, he
becomes angry very easily, and he cannot
handle his own business
affairs even though he has turned 18. He dropped out of school
because he cannot learn, and lives with
his parents. (A
curator
ad litem
will
be appointed in due course.)
[3]
Mrs. October identified photos of the accident scene in Exhibit
"A",
and
testified that the collision occurred around the corner from their
house where Bradley lived. Neither she nor her husband,
who is
Bradley's father, was present when the collision occurred. The
husband was visiting with friends and she was at work.
She was
called at 15h45 on the day of the collision, and went straight to
the hospital from where she only returned four days
later. When she
came home, she saw Bradley's bicycle had been broken into two
pieces, which were held together by the brake cable.
Bradley's
bicycle had been a present from his parents on his birthday in May
2003. It was a new bicycle which Mrs. October had
purchased at a
bicycle shop. As far as she knew, the brakes were working at the
time of the collision. Mrs. October said that
Bradley did not own a
crash helmet, and that children in the neighbourhood did not wear
crash helmets when riding their bicycles.
She had taught Bradley to
obey the rules of the road, and told him that she would remove the
bicycle if he did not ride it safely.
In her opinion, knowing
Bradley as she did before the collision, it was unlikely that he
would have driven through any stop sign
at Andrew and Angela
Streets, as the defendant alleges. Mrs. October identified the
signatures on Bradley's statement (page 16
of Exhibit "A"),
and confirmed that she had often discussed the collision with him
but that he could not remember anything
about it.
MR.
OWEN MEYER
[4]
Mr. Meyer was the only eye witness of the collision who testified.
He is a middle-aged man, w
j
ho
watched the collision occur from approximately 35 metres away. He
testified that he is trained in first aid, and that he works
as a
volunteer at St John's Ambulance Service.On the day in question Mr.
Meyer was visiting his parents, who live a few houses
further along
Angela Street from where the collision occurred. He was standing
outside their house on the sidewalk, facing the
street and speaking
to a friend, Jonathan. He identified the parents" house on
photos number 3 and 8 (at the second lamp
pole; his father is
visible on photo number 8). Mr. Meyer saw Bradley-sitting on his
bicycle at the corner of Angela and Andrew
streets shortly before
the collision. Mr. Meyer was about thirty five (35) paces away from
where Bradley was. He marked with
an "X" on photo 1
(Exhibit "A") where Bradley had been sitting on his
bicycle, with his one foot on the kerb,
when he was hit. Mr. Meyer
said that there was not much traffic on the road at the relevant
time.
[5]
Mr. Meyer also identified photos showing a bicycle rider stationary
at the same place where Bradley had been hit. They had
been taken at
an inspection of the scene when Mr. Meyer asked a man on a bicycle
to sit on his bicycle exactly where Bradley
had been when the truck
hit him (Exhibit "A", photos numbers 6 - 17). Mr. Meyer
said he saw Bradley sitting on his
bicycle about a minute to one and
a half minutes before he was hit by the truck. Mr. Meyer was closely
cross-examined about his
observations of Bradley during his
conversation with Jonathan. Mr. Meyer said he looked towards the
right (west) during the conversation,
which defendant's counsel said
he accepted. Just before the collision, Mr. Meyer saw the insured
driver's truck approaching Bradley
from behind, driving from east to
west. He was driving a blue truck, similar to the type of truck on
the pavement on photo 18.
(This was very similar to the photos of
similar trucks which
the
insured driver identified - Exhibits "E" and "F").
[6]
The truck was driving very near the kerb when the side of it hit
Bradley. The bicycle was pulled under the wheels of the truck
and
Mr. Meyer saw Bradley rolling over and coming to rest in the street,
in the opposite lane. Mr. Meyer went to where Bradley
was lying and
saw blood coming from his one leg. He fetched his first aid suitcase
and told others to call other first aid workers
to help him. Mr.
Meyer said the insured driver stopped the truck further down Angela
Street, at a speed bump visible on photos
numbers 6 and 21 (near the
large white house). People had screamed and signalled at the insured
driver that he had run someone
over. The insured driver (Mr. Le
Roux) came to where Bradley was. Mr. Meyer spoke to him briefly and
could tell by the way he
spoke that
"hy
het 'n drankie in, met sy uitspraak teenoor my".
Under
cross-examination Mr. Meyer said he could also smell that. He said
that he could not, however, state that Mr. Le Roux was
under the
influence of alcohol. Mr. Meyer thought that the truck had been
moving fairly fast at the time of the collision, but
he could not
tell exactly how fast.
[7]
At some point "law enforcement" arrived in a private car
with a blue light on the roof, and told the insured driver
to move
the truck onto the pavement. They then escorted the ambulance to the
hospital. The "law enforcement" were not
members of the SA
Police but City Council officers who check on illegal dumping,
report burglaries etc. Mr. Meyer strenuously
denied that the insured
driver had driven a white "bussie en sleepwa", and
insisted it had been a blue truck. (This
was confirmed by the
insured driver's identification of Exhibits "E" and "F*\)
Mr. Meyer strenuously denied the
insured driver's version that
Bradley had driven into the side of the truck. Mr. Meyer could not
confirm or deny that the insured
driver had removed the bicycle from
under the truck wheels. He said it was possible that the insured
driver could have called
the ambulance and police, but said it was
also possible that they might have been called from public telephone
at the shop in
the house next to where Bradley had been hit.
MR.
RALPH BESSICK
[8]
Mr. Bessick was an eye witness of all the relevant events except the
collision itself. He had worked as a driver's assistant
for DHL for
two years. Mr. Bessick said he lived in the area of the collision,
and although he did not know Bradley before the
collision he knew
who he was
'Van
aansien'
At
the time of the collision, Mr. Bessick was standing on Andrew Street
talking to friends. He said it was about eleven (11) paces
from
where Bradley was sitting on his bicycle when he was hit. Mr.
Bessick identified the place where he stood at the time of
the
collision, by an "X" on photo number 14. (He said he had
measured the distance from where he stood at the request
of the
Plaintiffs attorney.) A few minutes before the collision, Bradley
had come riding past Mr. Bessick on his bicycle, towards
Angela
Street. Mr. Bessick greeted (gestured) Bradley as he rode past. Mr.
Bessick then saw Bradley stop and sit on his bicycle
just around the
comer in Angela Street. He marked the place where Bradley had
stopped, at the place on photo number 6 where the
man is visible on
the bicycle. Shortly thereafter, Mr. Bessick heard
"die
gedreun van die trok'\
He
did not see Bradley being hit, but heard the people scream. He went
to look and saw Bradley lie on the ground injured.
[9]
The truck stopped some distance further along Angela road. The
driver came to where Bradley was, and Mr. Bessick recognized
him as
a man known to him in the neighbourhood. Earlier, he had passed the
man's house on Louise Street where he had seen the
same truck and
the man drinking beer outside his house. Mr. Bessick insisted under
cross-examination that Bradley had not been
hit by a white "bussie
en sleepwa", and that it had been a blue truck similar to the
truck on photos 18 and 19. When
told that Mr. Le Roux denied he had
been drinking, he said he had also smelled him at the scene of the
collision. Mr. Bessick
denied the insured driver's version that
Bradley had driven into the side of the truck. Bradley had been
sitting on his bicycle
when he was hit. Mr. Bessick was asked in
cross-examination why he had described the truck as white, in
paragraph 5 of his statement
(page 19 of Exhibit A). He said he had
said the truck was blue. Under re-examination, Mr. Bessick said that
he was Afrikaans
speaking, that his English was poor, and that he
had spoken in Afrikaans to the attorney who had drafted his
statement. The statement,
which was in English, was later mailed to
Mrs. October's house, where Mr. Bessick signed it without reading
it.
PROFESSOR
TOM DREYER
[10]
Professor Dreyer was the Plaintiffs fourth witness. He is a
qualified accident reconstruction expert. He confirmed the two
(2)
reports he had drafted in this matter. Professor Dreyer explained
that his first report contained erroneous conclusions because
he had
made factual assumptions which later turned out to be inaccurate.
They had partially been obtained from a police plan
and report which
were not accurate, and he had also misunderstood certain witness
statements about the place where Bradley had
stood when he was hit.
He obtained the correct facts when he visited the scene of the
collision and it was pointed out to him
where Bradley had stood, and
he took measurements at the scene.
[11]
Professor Dreyer said that accident reconstruction testimony could
not definitively resolve the issues before the Court,
and that the
essential issue was a factual one which depended on conflicting
testimony by the parties* witnesses. He made the
following
observations:
Dreyer
itemized important differences in the insured driver's first and
second statements.
He
and John Craig, the defendant's reconstruction expert, did not
differ fundamentally in their conclusions.
They
also agreed that the police plan and report contained inaccuracies.
Craig
did not seem to give much weight to the insured driver's second
statement, which differed materially from the first statement.
(e)
He
and Craig agreed that if Bradley had sat on his bicycle at the place
which the plaintiff alleged, the insured driver should
have avoided
colliding with him.
(f)
If Bradley had been sitting where the plaintiff alleges he did, his
bicycle may have been pulled from under him and if he
did not make
contact with the side of the truck, he could have been expected to
be found in the road (somewhat eastward from
the point of impact as
Mr. Meyer had described).
(g)
If Bradley had driven into the truck, he would likely have come
across the handle bars and "bounced back" because
of the
"reslitusie koeffisient", or could have slipped down the
side of the truck, and would in both cases have been
found in the
vicinity of the sidewalk where he had been sitting.
THE
DEFENDANT'S CASE MRS. AVRIL WANNENBERG
[12]
Mrs. Wannenburg was Bradley's second grade teacher at Valpark
Primary school. (Her testimony was interposed with leave of
the
court.) She testified that the rules of the road were taught to
learners from grade 1, along with lessons on various types
of safety
including safety at home. Rules of the road included looking right,
then left, then right again before crossing the
street. Such lessons
were continued every year up to grade 7. Under cross-examination,
Mrs. Wannenburg said there were more than
40 pupils in Bradley's
class, and they were taught the rules of the road every year up to
grade 7 in the hope that the rules
would eventually sink in.
MR.
MARTHINUS LE ROUX (the insured driver)
[13]
Mr. Le Roux testified that he drove a Iveco "bussie en trailer"
in Angela Street at approximately 40 - 45 kmh.
When he had passed
Andrew Street
{"verby,
effens verby Andrewstraat"),
he
heard a noise. The trailer was still in the middle of Andrew-
Street. He immediately stopped, but could not remember where,
and
found Bradley's bicycle under the wheels of the vehicle and Bradley
lying next to the vehicle. The "bussie en trailer"
were
not damaged at all. Prior to the collision he saw no one at all on
the corner where Bradley had allegedly been sitting on
his bicycle.
At the time of the collision he worked for Marlow Transport, and had
come from his house at 8 Louise Street, Valhalla
Park, immediately
prior to the collision. He was on his way to make a delivery in
Parow. The house was
"nie
te ver nie, omtrent
5
tot
6
kilometers"
from
the scene of the collision. He had lived in the area for over 20
years.
[14]
He was delivering couches and other furniture which had been packed
into the trailer. He was accompanied by two assistant
employees of
Marlow Transport, whose names he could not remember. The police
arrived about 30 minutes later, and the ambulance
10 minutes after
that He was told to remove his vehicle from the road, and he pulled
it off the road to the right, at the house
with the green fence
(photo 2, page 7 of Exhibit "A"). When asked if the police
was the "law enforcement",
he said
"Ek
kan net onthou 'n polisiebeampte".
He
denied that he had drunk alcohol before the collision.
[15]
Under cross-examination Mr. Le Roux agreed that the "bussie en
trailer" looked like the vehicles portrayed in Exhibits
"E"
and "F". Mr. Le Roux had previously made two (2)
contradictory statements
(Exhibit
"A", pages 22 and 26). He first said that Bradley had
failed to stop at the "stop sign" and that
his bicycle did
not have brakes. In the second statement he said that he never saw
Bradley until after the collision. In the
end, under
cross-examination, he admitted that:
(i)
He
never saw Bradley before he was hit.
(ii)
He
had no idea where Bradley had been before he had been hit.
(iii)
He
had no idea what part of the vehicle had hit Bradley or his
bicycle;
and
(iv)
His
statement that Bradley must have driven through the "stop
sign"
was sheer speculation.
COMMON
CAUSE FACTS
[16]
The Defendant (as pointed out earlier on in this Judgment) admitted
paragraph 4 of the Particulars of Claim, that is, the
date and place
of the collision, the identity of the insured driver and the
vehicles involved. The Defendant's allegation that
Bradley was
negligent was based on the insured driver's first statement to the
Road Accident Fund. It is common cause that Mr.
Le Roux admitted in
cross-examination that what is contained in that first statement was
mere speculation.
[17]
The Plaintiffs eye witnesses, Mr. Meyer and Mr. Bessick, placed
Bradley as sitting on his bicycle around the corner in Angela
Street
(Exhibits "Al" and "A6"). The insured driver
(Mr. Le Roux) placed Bradley at a very similar place,
that is, the
truck had just passed Andrew Street when he heard the sound of the
impact. It was not denied that Mr. Meyer and
Mr. Bessick had been on
the scene and that they were positioned as they testified and thus
had (or must have had) clear views
of the scene of the collision.
Mr. Le Roux (the insured driver) admitted that he never saw Bradley
before the collision and that
he saw him for the first time only
after he had stopped the truck and got out. Mr. Le Roux also
admitted that he had no idea
where Bradley was when he was run over.
He also had no idea what part of the truck had hit Bradley or the
bicycle. He admitted
that his first report to the Road Accident
Fund, that Bradley had failed to heed the "stop sign", was
nothing but speculation
on his part.
EVALUATION
OF EVIDENCE AND APPLICATION OF RELEVANT LAW
[18]
In the above regard one can do no better than setting out the legal
formulation contained in
Cooper,
Motor Law: Volume Two -Principles of Liability (Delictual Liability
in Motor Law)
1
996
at 143- 164. This formulation reads:
"A
driver must leave a sufficiently wide berth between his vehicle and
any other road-user he is passing. What is a reasonable
clearance
must depend on the circumstances of each case. A factor oj
importance is the degree of lateral movement to he expected
from the
vehicle being passed. In the case of two wheeled vehicles, and horse
drawn vehicles a greater degree of lateral movement
must be expected
than in the case of four wheeled motor vehicle and the driver must
make allowance therefor. Where the road surface
is rough or the
cyclist is a child, a pedal cycle should be allowed a greater
clearance than otherwise. Clearance and speed are
related factors:
the higher the speed, the greater should be the clearance; the
smaller
the clearance, the lower the speed should be Before
overtaking
another vehicle a driver is under the duty to satisfy himself that
it is safe to do so. In discharging the duty the
main concern of an
overtaking driver travelling on an single carriage-way is for:
(a)
(b)
(c)
traffic
stationary or alongside the road"
Most
certainly the insured driver had the duty to pass Bradley in such a
manner that he did not place his safety in danger. Indeed,
that
included giving Bradley a sufficiently wide berth so as to ensure
that the vehicle he drove did not hit Bradley at all.
[19]
Bradley was but a child. Consequently, there existed an added duty
on the insured driver. In this regard it is appropriate
to refer to
Oosthuizen
v
Standard
General Versekeringsmaatskappy Bpk
1981
(1) SA 1032
(A) at 1039 E-H where the then Appellate Division
explained the legal approach in this regard as follows:
"Daar
is nog 'n ander faktor wat die redelike versigtige bestuurder in
gedagte sou gehou het. Hy sou op grond van sy algemene
ervarlng
besef het dat kinders - selfs al sou hulle redelik vertroud wees met
die basiese verkeers- of padveiligheidsreels —
dikwels,
skielik en onverwags, op '/? heeltemal onbesonne of onverskillige
wyse optree, en dat dit van horn as bestuurder verwag
word om, binne
redelike perke, teen gebeurlikhede van hierdie aard te waak. Om
voormelde redes, sou die redelike versigtige bestuurder
in die
onderhawige geval ongetwyfeld die fietsryer beryds gewaarsku het dat
hy in aantog is (soos Mev. Radowsky inderdaad gedoen
het). en hy
sou, daarbenewens, ook voldoende ruimte, na sy oordeel. tussen horn
en die trapfiets gelaat het ten einde met redelike
veiligheid verby
te kan gaan.... Dus, as die redelike versigtige hestuurder dit nodig
geag het om, in die heersende omstandighede,
heelwat verder na regs
by die fiets verby te gaan as wat Mev. Radowsky gedoen het. sou hy
dit met gemak en met veiligheid kon
gedoen het. "
I
need to emphasize that a driver who drives in a place where there is
a likelihood of the presence of children whether on bicycles
or on
foot, must at all times be specially alert and exercise a special
degree of care. This holds true even if the likelihood
of the
presence of children in that area is somewhat remote.
[20]
Even if the child, Bradley, was somewhat hidden from the view of the
driver, Mr. Le Roux still ought always to have foreseen
the
possibility of a child moving either across or into the road
surface. This additional duty of care is not new. It has been
part
of our legal system for time immomerial. Hence the pronouncement by
Holmes J A in
Levy
NO
v
Rondalia
Assurance Corporation of SA Ltd.
1971
(2) SA 598
(A) at 599 H- 600 C:
"As
a
general proposition it is well settled, and it accords with humanity
and common seme, that a motorist approaching young children
near the
edge of the road ought to drive with a degree of special care and
vigilance because of their tendency sometimes to dash
heedlessly
across the road. To hold otherwise would be to put an old head on
young shoulders, and to assume that they will look
before they leap.
But the rule must not be applied as a fixed principle without
reference to the facts. The foreseeability of
reasonably possible
collision, and the degree of special care required, will vary
according to the particular circumstances of
each case, for example,
the visibility of the children; their apparent age; their proximity
to the edge of the road and to the
path of the vehicle; their
immobility or liveliness; the indications, if any, of an intention
to cross the road; the extent of
their supervision by a responsible
person; the apparent awareness of the latter, and of the children,
of the approach of the
motorist; the available width of the road;
and the stopping power of the vehicle in relation to speed, brakes
and road surface.
Such factors (and the list is not exhaustive) are
interrelated and not individually decisive. Their cumulative effect
must be
considered. Similarly, the particular circumstances will
dictate the reasonable steps in relation to matters such as hooting,
berth, swerving, slowing down or pulling up, with a view of guarding
against the occurrence of collision, the reasonable possibility
of
which was forseeable. The decided cases are legion."
Similarly
Corbelt J A (as he then was) said the following in
Santam
Insurance Co Ltd. v Nkosi
1978
(2) SA 784
(A) at 791 F- 792 E:
'The
true position, it seems to me, is that, depending on the
circumstances, a motorist may be bound to exercise special care
and
vigilance not only towards children whom he sees, or ought
reasonably to see, are present in or near the street but also
towards hidden children whose presence there he ought reasonably to
foresee or anticipate. Whether this duty towards hidden children
arises and, if .so, what particular steps, or course of action, the
motorist will be obliged to take to guard against injuring
them must
depend upon all the facts of the particular case. And because the
children are hidden, the duty, when it arises, may
demand even
greater caution from the motorist by reason of the very-fact tliat,
possibly until a late stage, he cannot see them
and consequently is
unable to gauge such matters as their apparent age, their awareness
of his approach, their future intention,
etcetera.
The
ultimate test in any such situation is to ask, in the first place,
whether the reasonable man, ie the diligens paterfamilias,
in the
position of the motorist and endowed with his previous experience,
would foresee or anticipate the possible presence of
hidden children
in a situation where, bearing in mind their propensity for heedless
action, they could be endangered by his passing
vehicle. In this
connection it should be remembered that the diligens paterfamilias
is not a 'timorous faintheart always in trepidation
lest he or
others suffer some injury' (Herschel v Mrupe
1954 (3) SA 464
(A) at
490F); nor is he 'given to anxious conjecture and morbid
speculation' (South African Railways and Harbours
v
Reed
1965 (3) SA 439
(A) at 443A). On the other hand, the care which is
expected of him: '...is not the care which the man takes in his own
affairs,
nor that which the ordinary or average man would take. It
is higher than that. The law sets up as a standard to which
everybody
has to conform that degree of care which would be observed
by a careful and prudent man, the father of a family and of
substance,
who would have to pay in case he fails in his duty. It
will be observed that the standard of conduct is a high one.' (See
Transvaal
Provincial Adminstration v Coley
1925 AD 24
at 27-8 per DE
VILLIERS J A). At the same time the law recognises that life's
possibilities are infinite and in general concerns
itself only with
those possibilities of harm to others which are sufficiently real or
immediate to cause the diligens paterfamilias
to take precautions
against their happening (See Moubray
v
Syfref
1935 AD 199
at 209-30; Joffee and Co Ltd.
v
Hoskins
and Another
1941 AD 431
at 451; Kruger
v
Coetzee
1966 (3) SA 428
(A) at 430 E-F; and compare remarks of LORD OAKSEY
in Bolton v Stone
[1951] UKHL 2
;
1951 AC 850
at 863). And, in deciding whether
precautionary action is warranted, the diligens paterfamilias might
have to weigh the seriousness
of the harm, should it occur, against
the chances of its happening (See Herschel
v
Mrupe
1954 (3) SA 464
(A) at 477 A-C). The next phase of the enquiry is,
therefore, to ask whether the possibility of hidden children being
present
in a situation of potential danger is sufficiently real or
immediate in the above-described sense to cause the diligens
paterfamilias
in the position of the motorist to take preventative
precautions. "
I
fully associate myself with the above exposition of our law in this
respect.
[21]
In the instant case Bradley was not at all hidden, nor was he on the
road. Mr. Le Roux was not a stranger in the area. He
stayed in the
same residential area and had so stayed for the period of over
twenty (20) years. He clearly even knew that in
that residential
area there was a shop as well. He knew or ought to have known that
children move around there either on foot
or on bicycles. He knew or
ought to have known that among other activities, children
ordinarily-frequented the shop. The foreseeability
of the presence
in the road of the object or person with which or with whom the
vehicle collides is always the key factor in
determining whether or
not it was negligent for the driver to drive at a speed from which
he could not bring his vehicle to a
standstill within the range of
his vision thereby rendering it impossible that any other
appropriate avoiding action can be taken.
See:
Seti
v Multilateral Motor Vehicle Accidents Fund
1999
(4) SA 1062
(E) at 1066 H-J and
Cooper
Delictual Liability in Motor Law
at
154. I do not necessarily accept that Mr. Le Roux drove in the speed
he alleged he maintianed. It is clear that his speed appears
to have
been more than he would want this Court to know
r
.
[22]
Mr. Meyer and Mr. Bessick gave the Court a chronological account of
what happened iniront of their eyes. I did not get an
impression
that they came to Court to deceive the Court. These are lay persons
who have no connection whatsoever with either
the October family or
Mr. Le Roux. They were credible and gave to the Court a reliable and
logical account of what was within
their knowlegde. Where they did
not know, they said so. Scenarios they did not see, they told the
court similarly. I was very
much impressed with these eye witnesses.
I can safely rely on what they told me as far as this accident is
concerned.
[23]
However, the same cannot be said about Mr. Le Roux (the insured
driver)- His testimony that the bicycle did not have brakes
was not
plausible. He allegedly saw the bicycle immediately after the
collision, in a severely mangled condition. Mrs. October's
testimony
was that the bicycle had been purchased new in May 2003 that by all
accounts it was in a good condition including the
brakes, and that
after the collision she found the bicycle at home broken into two
pieces held together by the brake cable. In
any event, it is highly
improbable that immediately after the accident Mr. Le Roux checked
the brakes of a bicycle. He did not
tell me how he did that and why
would he do that. I would imagine that any reasonable man's mind at
that stage would be occupied
by trying to render assistance to the
injured Bradley.
[24]
Mr. Le Roux implausibly alleged that Bradley was lying next to the
vehicle when he stopped. That would have meant Bradley
would have to
have been projected forward by the impact by at least some 30
metres. Mr. Meyer and Mr. Bessick testified that
Mr. Le Roux had
only come to a stop at the speed bump some 50 metres further down
Angela Street. Mr. Le Roux denied that his
vehicle had proceeded for
at least 30 metres after the collision. Professor Dreyer testified
(and confirmed John Craig's report
paragraph 5.2) that at 45 kmh, if
the driver had braked heavily it would have taken the vehicle a
minimum of 32 metres to come
to a stop. Professor Dreyer said if the
trailer did not have its own brakes, the distance would have
increased to 39 metres.
[25]
Yet, Mr. Le Roux alleged that when he later removed the vehicle from
the road, he pulled it forward to the right of the road
to where the
green fence is (photo 2, page A7). Photos 1 and 16 show that the
green fence was very near to the collision, next
to the building in
front of which Bradley was hit (opposite the road from where Bradley
was sitting on his bicycle). Mr. Le Roux
further denied that there
were any pedestrians in the comer area where Bradley had been
sitting. That was in contrast with Mr.
Bessick's unchallenged
testimony that Bradley had sat there on his bicycle talking to
friends. Mr. Le Roux's version was also
not plausible in the light
of the fact that there was a shop where Bradley sat on his bicycle.
Mr. Le Roux initially stated that
he had left working at Marlow
Transport after the collision because the owner, Mr. Redelinghuys,
had left when the business was
taken over by another owner. He was
then confronted with a notice of a disciplinary hearing, dated 23
March 2004, under cover
of a recent letter by Mr. Redelinghuys
(Exhibit G). The 2004 notice contained eight charges of misconduct
against Mr. Le Roux.
and noted that he had not appeared at the
hearing. He responded that by then he had been fired, yet admitted
his signature on
the notice.
[26]
He admitted that he had been charged with some of the listed
charges. He said that Marlow had been taken over by Trio Transport,
but when the Trio Transport fax imprint was pointed out on the
recent letter signed by Mr. Redelinghuys on a Marlow letterhead,
Mr.
Le Roux had no response. Mr. Le Roux had not been forthright about
the circumstances of his leaving employment at Marlow
Transport. Mr.
Le Roux was then confronted with a Google map (Exhibit
''H"),
which
showed that the distance from his house to the scene of the
collision was less than one kilometre. He then said he had said
it
was not even a ten minute walk, yet he had testified earlier it was
"me
te ver nie, omtrent 5 tot 6 kilometers ".
Mr.
Le Roux admitted that he had been at his house shortly before the
collision, as Mr. Bessick had testified. However. Mr. Le
Roux said
he had gone to the house with his co-workers to "fetch bread",
and did not drink beer there. (This was on
the way to a delivery in
Parow from the Marlow Transport offices in Salt River.) When asked
why he had not bought bread at a
cafe. Mr. Le Roux said he did not
have money. He said Mr. Bessick must have seen him during the short
while that he was at his
house "to get bread". Apart from
obvious inconsistencies, some of which have been enumerated above,
his evidence was
characterized by
"ek
kan nie anthem nie.
"
His evidence was in truth implausible (to put it mildly). To put it
forthrightly, Mr. Le Roux is a deliberate liar in all
the facets of
this case. He did not only tell lies before me, but he also
deliberately presented a false account of this accident
to the
Defendant.
[27]
Mr. Meyer and Mr. Bessick testified that they smelled alcohol on Mr.
Le Roux at the scene of the collision. His response
that the
"policemen" made nothing of it is not a good answer. No
such policeman testified, and by law a policeman would
only have had
the right to take action if Mr. Le Roux had been under the influence
of alcohol, which Mr. Meyer said he could
not tell. Nobody suggested
that Mr. Le Roux was under the influence of alcohol. The length of
time that Mr. Le Roux spent at
his house is not consistent with just
picking up bread. When Mr. Bessick walked past the house, Mr. Le
Roux was already there.
Mr. Bessick then walked all the way to the
corner of Angela and Andrew (at least ten minutes), stood there
talking for a further
few minutes, and only then did Mr. Le Roux
come driving along when it should have taken him but a minute or two
to drive from
his house to the scene of the collision. Mr. Le Roux
did not produce the names of any eye witnesses to the Road Accident
Fund,
to corroborate his version of events. If they could
corroborate his version, the identities of the two (2) co-employees
could
easily have been obtained from Marlow Transport.
[28]
It came as no surprise to me at all that Mr. Bisschoff conceded in
his submissions that Mr. Le Roux was negligent. He is
not at all the
best of witnesses that ever testified before me. It is highly
improbable that Mr. Le Roux, who was to do deliveries
at Parow from
Salt River, would deviate so much that he found himself at Valhalla
Park merely to pick up bread. It was far after
two o'clock in the
afternoon. Even if he was hungry, it is reasonable to accept that
the best in the circumstances was first
to finish deliveries at
Parow and then knock off duty. He could then proceed home where he
would then get not only bread but
a full dinner meal. One perhaps
needs to mention that the driver of a motor vehicle, keeping a
proper lookout, necessarily does
more than merely look straight
ahead. He, as a reasonable driver is aware or ought to be aware of
what is happening in his immediate
vicinity and he must continuously
scan the road and pavements on either side for obstructions or
possible obstructions. See also
in this regard
Nogude
v
Union
and South-West Africa Insurance Co Ltd
1975
(3) SA 685
(A) at 688, Obviously Mr. Le Roux, the insured driver in
the instant matter failed to do this. In
Jones
NO v Santam Bpk
1965
(2) SA 542
(AD) at 548 G-H the following important formulation with
which I agree, appears:
"It
has been emphasized in a number of decisions that a motorist
approaching children who are near the site of a highway,
is under a
special duty to take care in relation to such children. This duty
was restated recently in this Court in the case
of South British
Insurance Co. Ltd
v
Smit,
1962 (3) SA 826
(AD), in this form at p.837; 'The propensity of
children - even though well versed in road safety - to rush
heedlessly across
the street is, of course, well-known. It is
because of that very propensity that the law requires the driver of
a vehicle who
sees children upon or near his roadway to be specially
upon the alert.'"
I
have said above earlier on in this Judgment that our legal system
has been consistent in this regard. The test is not the diligence
of
the supine man, but of the man who is alive to the probable dangers
and takes the necessary steps to guard against them. See
Transvaal
Provincial Administration v Cotey
supra.
[29]
It concerned me though when Mr. Bisschoff submitted that the Court
must find the existence of contributory negligence on
the part of
Bradley. 1 find it strange, what more did Mr. Bisschoff expect from
this child to have done? Bradley was not on the
road, nor was he in
the process of cycling on when the accident took place. On the
contrary, he was stationary outside Angela
Street with his foot on
the kerb. I am of the view that Bradley took sufficient
precautionary measures to ensure that he did
not endanger his life.
If Mr. Le Roux adhered to the duty of care imposed on him by our
legal system, no accident would have
occurred. It appears to me that
Mr. Le Roux's mind was not at all in the driving of the truck. That
is why he told the Court
that there were no persons in and around
Angela Street. This he maintained despite the clear and
uncontradicted evidence of Mr.
Meyer and Mr. Bessick. There is a
shop in the vicinity of the accident. Apart from the fact that
ordinarily the residential area
is ever busy with persons moving up
and down the street, the presence of a shop around the area should
ordinarily exacerbate
the situation. It is my finding that Mr. Le
Roux is not truthful in this regard either.
[30]
It is our law that in each case in which negligence is alleged
against the motorist such negligence must be decided on the
facts of
that particular case. It other words, the Court is enjoined to
examine the facts of that particular case. This is better
illustrated in
Rondalia
Assurance Corporation of SA Limited v Mtkombeni
1979
(3) SA 967
(A)at972B-D:
"Moreover,
one does not draw inferences of negligence on a
piecemeal
approach. One must consider the totality of the facts and
then
decide whether the driver has exercised the standard of conduct
which
the law requires. The standard of care so required is that
which
a reasonable man would exercise in the circumstances and
that
degree of care will vary according to the circumstances. In all
cases
the question is whether the driver should reasonably in all the
circumstances
have foreseen the possibility of a collision. "
The
ultimate issue is whether the facts established negligence, not
whether
they show that the driver in question (Mr. Le Roux in the
instant
case) failed to keep his speed within the range of his visions.
See:
Seemane
vAA Mutual Insurance Association Ltd
1975
(4) SA
•
767
(AD) at 772 F-H. Having had regard to the totality of the proved
facts in the instant matter, 1 come to the conclusion that
Mr. Le
Roux failed to exercise the standard of conduct required of him by
the applicable legal principles.
[31]
It is my finding that Mr. Le Roux's implausible testimony stands to
be rejected and I hereby do. 1 have indicated above that
I do not
buy the idea that Bradley was at all negligent. It was not
unreasonable for that child to sit on his stationary bicycle
on the
agreed position of the road. I agree with Professor Dreyer that
Bradley could have expected not to be in danger where
he was
standing next to the kerb. The accepted evidence is that, in any
event, there was little traffic on the road at that time.
Nothing
prevented Mr. Le Roux from using the rest of the road surface and
driving past the child without encroaching onto where
the child
stood on his bicycle with his foot on the kerb. I find Mr. Le Roux
(the insured driver) to have been exclusively negligent
with regard
to this accident. I am unable to find any negligence of any degree
on the part of Bradley. Much has been made of
failure to wear a
crash helmet. I do not find it strange that Bradley did not wear a
crash helmet in the circumstances of this
matter. As pointed out
earlier on in this Judgment, Bradley is but a child. He was on his
bicycle presumably in the vicinity
of his residence why should he
have bothered himself with a helmet at all. 1 would imagine the
wearing of a helmet is more appropriately
applicable when a cyclist
sets on a long journey on his bicycle. When a child merely leaves
home and ride a bicycle for example
to the shop at the corner of his
house it would be expecting too much to have expected such a child
to resort to wearing a crash
helmet. In any event the evidence
tendered by Mrs. October (Bradley's mother) to the effect thai
ordinarily children do not wear
crash helmets in the surrounding is
of cardinal importance. I thus find nothing untoward that this
particular child also wore
no crash helmet. Mr. Le Roux, as a
diligens
paterfamilias,
should
clearly have foreseen the reasonable possibility of his conduct
injuring another person or property-' and causing such
person
patrimonial loss and should have taken reasonable steps to guard
against the occurrence. It is common cause that he failed
to take
such precautionary steps and
culpa
has
thus been proved in this case. See:
Kruger
v
Coetzee
1966
(2) SA 428
(A) at 430 E-F. It is well-known that what is reasonably
foreseeable will always depend upon surrounding circumstances then
prevailing.
ORDER
[32]
In the circumstances, I make the following order:
(a)
It was the insured driver's sole negligence that caused the accident
in which Bradley sustained serious injuries.
(b)
The Defendant is liable to compensate the Plaintiff by payment of
those damages which the latter shall have proved.
(c)
The Defendant shall pay the Plaintiff s costs of this action.
DLODLO,
J