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[2010] ZAWCHC 539
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Jeffery v Road Accident Fund (1693/2008) [2010] ZAWCHC 539 (10 November 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case No: 1693/2008
-REPORTABLE-
In the matter between:
TANYA SERINA
JEFFEREY
…........................................................................................
Plaintiff
And
THE ROAD ACCIDENT
FUND
….................................................................................
Defendant
Matter was heard on
29 April 2010.
Order was delivered
on 10 November 2010.
Counsel for
Plaintiff : Adv D Melunski
Attorneys for
Plaintiff: Lowe & Petersen
Counsel for
Defendant: Adv R Tainton
Attorneys for
Defendant: Marais Muller Yekiso
IN THE HIGH COURT
OF SOUTH AFRICA
[WESTERN CAPE HIGH
COURT, CAPE TOWN]
In
the matter between:
Case
number: 1693/08
-
Reportable -
TANYA SERINA JEFFEREY
…........................................................................................
Plaintiff
And
THE ROAD ACCIDENT
FUND
….................................................................................
Defendant
JUDGMENT DELIVERED ON
10 NOVEMBER 2010
Le Granqe, J:-
Introduction:
[1] The central question
for determination in this matter is whether the Defendant's insured
driver, Ms Naidoo ("Naidoo"),
through her negligence
causally contributed to the fatal accident by not keeping a proper
lookout and failing to apply brakes timeously.
In addition, the
following issues need consideration: whether 1.5 seconds are the norm
for the brake perception reaction time allowed
for drivers in all
sudden emergencies, and whether the opinion evidence of an
eyewitness, on a matter which is directly in issue,
is admissible or
not.
[2] Advocate D. Melunsky
appeared for the Plaintiff and Advocate R. Tainton for the Defendant.
I wish to thank both counsels for
their comprehensive heads of
argument as it was of great assistance in preparing my judgment.
Background:
[3] The Plaintiff's
claim for loss of support on behalf of her two minor children against
the Defendant arises from the death of
her husband, Liam Jefferey
("the deceased"), who was the father of their two minor
children, pursuant to the motor vehicle
collision.
[4] It is common cause
that the collision which resulted in the deceased's death occurred on
8 March 2005 at the intersection of
the N7 highway and Potsdam Road.
[5] The deceased, at the
time of the collision, was driving a white Ford Fiesta motor vehicle
and the other vehicle involved in
the collision was a Citi Golf,
driven by Naidoo.
[6] It is not in dispute
that the deceased was principally to blame for the cause of the
collision between the two vehicles wherein
he sustained serious
injuries which ultimately resulted in his death.
The Evidence:
[7] In the Plaintiff's
case the following witnesses testified, namely police constables
Zondo and November, who attended the scene
of the accident; Ms
Elmarie Laker ("Laker"), who at the time the accident
occurred was traveling in the right lane of
the northbound
carriageway of the N 7; John Craig ("Craig"), an automotive
consultant who has specialized in legal accident
work since 2000 and
Naidoo, the Defendant's insured driver.
[8] The Defendant
elected not to call any witnesses.
[9] The evidence of
Zondo and November, who attended to the scene of the accident, are
largely not in dispute. Zondo completed an
accident Report. November
completed a sketch plan and identified certain fixed points as seen
on exhibit "B 7- 8". According
to November, he determined
the point of collision to be in the fast lane but close to the centre
line and marked it as 'X"
on his sketch. This determination by
November was based on the concentration of debris, being broken
plastic, glass parts and a
number plate that was lying in the road.
[10] Laker's evidence,
briefly stated, is as follows. She was driving at a speed of 100km
per hour in the right-hand lane of the
northbound carriageway of the
N 7. In approaching the Potsdam intersection she saw the deceased's
Ford stationary at the stop street.
Naidoo's Golf was in front of
her, traveling in the same direction and at a speed of at least 20 km
per hour slower than her. There
were no other vehicles between
Laker's and Naidoo's and the intersection. Laker maintained her speed
of 100km per hour as she neared
the intersection, and at which speed
she intended to continue through the intersection. She believed this
was a safe speed because
as she approached, she kept an eye on the
deceased's car and it remained standing stationary right up to when
she was very close
to the intersection, and there was no reason why
the approaching vehicles could not be visible to the deceased. It was
at this
point that the deceased's vehicle unexpectedly pulled away
from the stop street and entered the intersection at speed. Laker
then
saw Naidoo's vehicle, which was to her right swerve to the left
and it's break lights switch on. She did not hear the sound of the
brakes as she had her radio on in the vehicle.
[11] Laker estimated her
vehicle was approximately 30 meters from the intersection and
Naidoo's vehicle was about 15 meters in front
of her when the
deceased vehicle passed in front of her. She testified that to avoid
the collision she swerved to the left. According
to her if she was
approximately 10- 15 meters closer to the intersection at the time
the deceased pulled away she would have collided
with his vehicle.
[12] Laker on the same
day of the collision wrote down what she could remember of the
accident. She also made a second and more
detailed statement a few
days later. It is not in issue that her first statement does not
reflect that Naidoo braked before colliding
with the deceased's
vehicle. She further testified that she would have been unable to
avoid the collision if she was in the Naidoo's
position.
[13] Naidoo's version,
in summary, is the following. She travels the section of road where
the accident occurred regularly by car.
On the day in question the
visibility was good. There were no vehicles which obscured her view
of the intersection. She deliberately
reduced her speed to
approximately 70 - 80 km per hour as the intersection was notorious
for its high accident rate. As she approached
the intersection, the
vehicle of the deceased was visible from a distance of about 100
meters away.
[14] Close to entering
the intersection, the deceased's vehicle suddenly pulled away from
the stop street into the intersection
and directly into her path. She
immediately applied brakes and swerved to the left in an attempt to
avoid a collision, but was
unable to do so. According to her the
point of impact occurred on the left-hand side of the right lane. She
also testified that
she had about 3-5 seconds between seeing the
deceased's vehicle pulling away and colliding with it.
[15] Craig testified
that he is a qualified engineer. He was the principal engineer of the
Department of Transport, Directorate
National Roads, from 1987 -
1995. From 1995 - 2004 he was a Director of a firm Consulting
Engineers in their road division. Since
1993 he has been extensively
involved in vehicle accident simulation, testing and relevant
calculation and reporting. In September
2000, he established his own
consulting firm specializing in legal action work. According to him
he also has motor racing and driver
training experience.
[16] Craig compiled a
report dated 14 April 2010 (Exhibit "D"), to determine the
cause of the accident. In his report
he relied on the following
information:
An
Accident Report (AR) Form completed by constable Zondo dated 08
March 2005.
A
Report compiled by MVO Consultants, including a sworn statement by
Laker dated 11 March 2005.
A
Sworn Statement by Naidoo dated 29 March 2005.
Ten
black and white photocopied photographs of the accident scene and
damaged vehicles.
An
accident report by a person named Stan Bezuidenhout dated 08 March
2005.
A
statement by Lucien Thomas dated 04 August 2005.
h)
A
SAPS Plan and Key of the Accident site, compiled by
constable
November on 12 March 2005.
i)
An
aerial black and white photocopied photograph of the
intersection.
j)
An Expert Reconstruction Report prepared by Professor Dreyer dated
16 November 2006."
[17] The crux of
Craig's evidence is that the deceased's vehicle accelerated from a
standstill position at the stop line to the
point of impact, which
was approximately 17 m away. This, according to him, would have
taken the deceased approximately between
4.1 and 3.4 seconds
depending on the acceleration calculations as done by Professor
Dreyer in his report (paragraph 6.6 of Exhibit
"F").
[18] According to
Craig, the standard brake perception reaction time for an unexpected
event is 1.5 seconds. If the perception
reaction time is applied
then Naidoo had between 1.9 and 2.6 seconds to brake, which would
have slowed her vehicle by between
48 and 65 km per hour. After
further calculations he concluded that under these circumstances
Naidoo had sufficient time to carry
out a braking action which would
have slowed her sufficiently to avoid the collision. He further
testified that the impact zone
of the deceased's vehicle was
approximately 2m, hence if the impact occurred approximately 0.3
seconds later, the deceased would
have cleared the impact zone and
the collision would not have occurred.
[19] Criag was of the
view that Naidoo had not swerved appreciably to the left as she
claimed. He testified that the resting places
of the vehicles are
consistent with the collision having taken place in the middle of
the fast lane with Naidoo traveling straight.
Craig testified that
if Naidoo veered appreciably to the left then it would have
continued with its momentum and would have ended
up to the left of
the point of collision, not to the right as it did. Another factor,
according him, which counted against violent
veering left by Naidoo,
was the fact that there were no skid marks.
[20] Craig in
cross-examination was adamant that the standard brake perception
reaction time is 1.5 seconds and is universally
accepted. He
conceded however that personally he has not done any studies or
tests in this regard. Craig was confronted with
a study done by
Monash University in Australia, "Exhibit L", in regard to
the reaction time of drivers to emergency
road situations. According
to this study drivers' response times in sudden emergencies vary
widely depending on a variety of
factors. After considering it, he
responded that the study relates to design requirements for traffic
engineering and certain
portions of the study supports his view.
[21] The principal
contention by Mr. Melunsky is that, on the probabilities, Naidoo had
sufficient time to react to the sudden
emergency created by the
deceased. According to him, Naidoo's failure to keep a proper look
out and not to apply her brakes timeously
in the circumstances
contributed to the cause of the collision.
Evaluation:
[22]
It is trite law that negligence is the failure to exercise the
degree of care and skill the reasonable person would have
exercised
in the circumstances. The standard by which a driver's conduct is to
be judged is therefore an objective one. In applying
this standard,
a Court must, to the best of its ability, place itself in the
position of the driver at the time of the occurrence
and judge
whether he or she exercised the care which the reasonable person in
his or her position would have exercise in the
circumstances. In
adopting this approach a court should be mindful not to judge the
conduct of a driver with hindsight and examining
it with
after-acquired knowledge. In this regard see
Revised
edition of Motor Law: Volume Two by Cooper
at
78 and the cases referred to therein.
[23] Craig's evidence
that Naidoo was partly to blame for the collision is in stark
contrast to that of Laker and Naidoo. Laker,
an independent
eyewitness to the accident, corroborates Naidoo's version that it
was impossible to take any effective steps to
avoid the collision.
[24] In matters of this
nature it is not uncommon for litigants to tender experts' evidence
to reconstruct the occurrence of events.
The Plaintiff essentially
tendered Craig's evidence to cast doubt on certain aspects of the
evidence of Laker and Naidoo, who
were her own witnesses. Craig has
no personal knowledge of the matter and mainly relied on the
information as stated in paragraph
[16] to reconstruct the collision
which happened almost five years ago.
[25]
It is well accepted in our law that direct and or credible evidence
of what happened in the event of an occurrence must generally
carry
greater weight than the opinion of an expert who seeks to
reconstruct the events, as strange things often happen in
collisions.
In this regard see
Van
Eck v Santam Insurance Co Ltd
1996(4)
SA 1226 at 1229 I - 1230 A.
[26]
This approach was again reaffirmed by Lewis JA in
Representative
of Lloyds v Classic Sailing Adventures (Pty) Ltd
2010
(5) SA 90
(SCA) at 107 F - G, where the following was held:
"...Imust
emphasise that where there is eyewitness or direct evidence of an
occurrence, this may render the reconstructions
of experts less
relevant or even irrelevant."
[27] The evidence of
Craig that the standard brake perception reaction time allowed for
drivers in emergency situations is 1.5
seconds needs closure
scrutiny. On Craig's own version he has done no independent study or
tests in this regard. In support of
his view, he solely relied on
his own experience and knowledge, without any reference to any
authoritative publications.
[28]
I had great difficulty finding authority in our law that in all
emergency situations the standard brake perception reaction
time
allowed for drivers is 1.5 seconds. I will accept that in
determining whether a driver kept a proper lookout and drove at
a
reasonable speed, allowance must be made for the lapse of time
between perception of the danger and the time required to react.
See
also
Motor
law
,
supra
at
477.
[29]
However, in determining whether the lapse of time between the
perception of the danger and the point of reaction was reasonable
or
not, the proper approach must be to determine what a reasonable
driver would have done in all the particular circumstances.
This in
my view can only be determined having regard to the particular facts
of each case and taking into account
inter
alia,
the
degree of urgency, the effect by the element of surprise, the
likelihood of momentarily indecision, the agony of the moment,
the
speed of the vehicles involved in the collision and the inevitable
time lag between observation and reaction. Expert evidence
may also
be of assistance.
[30]
The
ipse
dixit
of
Craig is in my view insufficient to accept as a norm that the
standard brake perception time allowed for drivers in all emergency
situations is 1.5 seconds.
[31] On Naidoo's
uncontested evidence she approached the intersection with caution as
it was notorious for car accidents. She
reduced her speed to
approximately 70 - 80 km per hour on a road in which the speed limit
was 100 km per hour. According to her,
she kept a proper lookout in
approaching the intersection. On her version she had approximately
3-5 seconds to respond when the
deceased vehicle suddenly entered
the intersection. She immediately swerved to the left and applied
brakes but was unable to
avoid the collision. Laker also observed
how the vehicle of Naidoo swerved to the left and how the brake
lights of the vehicle
came on. According to Laker's observation it
was impossible for Naidoo to take any effective steps to avoid the
collision. This
evidence of Laker and Naidoo was criticised by Mr.
Melunsky.
[32]
Mr. Melunsky argued that it is irrelevant and inadmissible opinion
evidence as it is a matter which is directly in issue.
In support of
this proposition he relied on the
dictum
in
Hollinaton
v F Hewthorn & Co
Ltd
[1943] 2 All ER 35
(CA) at 40, where the following was held:-
"It frequently
happens that a bystander has a complete and full view of an
accident, it is beyond question that, while he
may inform the court
of everything that he saw, he may not express any opinion on whether
either or both of the parties were
negligent. The reason commonly
assigned is that this is the precise question the court has to
decide; but in truth it is because
his opinion is not relevant. Any
fact that he can prove is relevant, but his opinion is not."
[33]
Reference was also made to Cooper's Motor Law,
supra
at
468, where the following is stated:
"In general a
witness may only testify on what he observed. He may not express his
opinion on a point in issue, e.g. whether
a driver was negligent,
because (it is said) this would be to usurp the function of the
court. To this general rule there are
exceptions i.e. a) speed and
b) intoxication."
[34] The notion that a
witness may not give his or her opinion on the very issue that a
court has to decide because to do so,
so it appears, would usurp the
function of the court, is in my view a fallacy and unsound.
[35]
The author Zeffert, in" Opinion Evidence"
1976
SAP
275
at 276, stated the following regarding opinion evidence:-
"
The
principle
governing the reception or rejection of opinion evidence is clear.
Opinion evidence is accepted if relevant; rejected
if irrelevant. An
opinion will be relevant if it can assist the court; it is
irrelevant if it cannot assist the court. A witness's
opinion may
assist the court if the witness is better qualified to form an
opinion than the court: if the court is in a good
a position to form
an opinion as the witness, the witness's opinion is unhelpful,
irrelevant and, consequently inadmissible.
It follows that it is
inept to think that there is a rule excluding opinion unless it is
let in by an exception' such as the
exception' relating to 'expert
evidence'."
[36]
This in my view is the correct approach. The opinion evidence of a
witness may always be relevant and admissible if the issue
is of
such a nature that the witness is in a better position than the
trier of fact to form an opinion. The opinion evidence
will be
admissible on the basis of its relevance and probative value. This
explains why the opinions of lay persons and experts
are at times
received. If however the court is in a better position to form an
opinion than the witness, the witness's opinion
is unhelpful,
irrelevant and, consequently inadmissible. In this regard see also
Wigmore
on Evidence Vol 7 3
rd
Ed
(1940)
at § 1920;
South
African Law of Evidence
by
DT Zeffertt & AP Paizes 2
nd
Edition
at 313 and the case law referred to therein.
[37] Laker testified
about events she observed and experienced first hand. She impressed
me as an honest and reliable witness.
The fact that she omitted to
mention in her first statement that the brake lights of Naidoo's
vehicle came on does not detract
from her credibility. Her second
statement, which contains this evidence, was made a few days later.
The second statement clearly
contained more detail than the first.
There is no credible evidence to the contrary to suggest her
observations regarding the
brake lights which she witnessed was a
fabrication or a mistake.
[38]
Laker's observation regarding her distance from the intersection was
also criticized by Craig. His calculations and mathematical
approach, is largely based on the fact that the deceased vehicle was
stationed at the stop street and pulled away at a speed
of 3m/s
2
.
Craig's calculation that the deceased vehicle accelerated at a
constant speed of 3m/s
2
is a
mere assumption given that Laker and Naidoo only mentioned that the
vehicle pulled away at speed. Similarly, Craig's conclusion
that
Naidoo could have avoided the collision was also based on an
incorrect approach that the norm for the brake perception reaction
time of drivers in emergency situations is 1.5 seconds. The proper
approach, as stated in paragraph [29], is not one of mathematical
calculation alone but dependant on a variety of factors. The absence
of skid marks can also not be the only determining factor
that
Naidoo did not apply her brakes. The reliance placed on the resting
positions of the vehicles and the poor quality of black
and white
photographs (see Exhibit B pg 27-31) by Craig to assume that Naidoo
could not have swerved to her left is also highly
questionable in
view of Laker's direct evidence to the contrary.
[39] Craig's expert
view of what might have occurred must give way to the direct and
credible evidence of Laker and Naidoo, who
observed and experienced
the accident first hand. They were in a far better position to form
an opinion. Laker and Naidoo's evidence
has more probative value and
carries more weight in the Plaintiff's case and is accepted.
[40] On the evidence
presented by the Plaintiff, the inference cannot be drawn that
Naidoo deviated from what a reasonable person
would have done and
acted negligently in taking an excessively long time to exercise a
judgment. In the circumstances of this
case it is also difficult to
see how Naidoo's perception reaction time could be categorized as
amounting to negligence. In any
event, this is a matter in which it
would be unwise to rely too much upon mathematical calculations.
[41] For these reasons
the evidence presented by the Plaintiff fails to prove that the
Defendant's insured driver (Naidoo) also
negligently contributed to
the cause of the collision. It follows that the Plaintiff's claim
cannot succeed.
[42]
In the result the following order is made.
The Plaintiff's claim
is dismissed with costs.
LE GRANGE, J