About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 157
|
|
Ward v Van Der Westhuizen (40834/2008) [2010] ZAGPPHC 157 (19 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
No: 40834/2008
Date
heard: 08/08/2010
Date
of judgment: 19/10/2010
In
the matter between:
Nicholas
Ward
..................................................................................................
PLAINTIFF
and
I
Van Der
Westhuizen
.....................................................................................
DEFENDANT
JUDGMENT
DU
PLESSIS J:
On
31 August 2005 the plaintiff was riding his motorcycle on a dirt road
in the Schoemansville area. He collided with a branch lying
in the
road and sustained injuries. Contending that the collision and his
resultant injuries were due to the defendant's culpable
conduct, the
plaintiff claims damages from the defendant. By agreement the trial
proceeded for the determination only of the defendant's
liability
(the "merits" of the plaintiff's claim).
The
plaintiff testified that on the day in question he and a few other
people visited a mutual friend, Ms Alma Pretorius, who lived
on a
plot in Schoemansville. Travelling there on his motor cycle, he went
past the place where the collision later occurred. Just
before
sunset, the plaintiff left the plot on his motorcycle to go and buy
charcoal at a nearby cafe. The plaintiff said that when
he left, it
was dusk, nearly dark. As he was travelling along the dirt road
leading to the cafe, he approached a dip ("drif”)
in the
road. He described the condition of the road in the dip as
particularly poor: Rainwater had eroded the road in the dip and
there
were potholes and corrugations. When he reached the dip, the
plaintiff said, the road beyond the dip was completely dark.
That was
due to trees overhanging the road and to a lack of artificial
lighting.
The
plaintiff entered the dip and just as he came out, on the verge of
the incline from it, he saw trees lying across the road.
There was
nothing he could do to avoid the trees and he crashed into one of
them. He fell from his motorcycle and was injured.
There were no
signs warning oncoming traffic of the trees in the road. When he had
used the same road earlier in the day, there
were no trees in it. The
plaintiff said that the tree he collided with was lying across the
road on the verge of the dip as he
came out of it.
After
he had fallen, a man approached the plaintiff and asked him if he was
all right. The plaintiff told the man that he just wanted
to lie down
for a while.
Later
he asked someone to call Ms Pretorius. Thereafter Ms Pretorius and
one Ms Dexter arrived. Being paramedics, the ladies stabilised
the
plaintiff on the scene and then took him back to Ms Pretorius's home.
He had blood on him and at the house he cleaned himself
and put on
fresh clothes. The ladies than took the plaintiff to the Brits
clinic. The clinic records show that he was admitted
at 19h15.
It
was put to the plaintiff in cross examination that the branch
(neither trees nor a tree) he collided with was not lying on the
verge of the dip, but further down the road as he was travelling. He
denied that. He could not recall that somebody (the defendant)
had
run into the road waving his arms so as to warn him of the branch in
the road.
For
the plaintiff Ms Dexter testified that she also visited Ms Pretorius
on the day. She confirmed that the plaintiff left on his
motorcycle
to go and buy charcoal. According to Ms Dexter it was then dark
already. A while later, the plaintiff called Ms Pretorius
and told
her that he had been involved in an accident. She and Ms Pretorius
took their medical kit and went to the scene. It was
completely dark
and they drove with headlights on. At the scene they found the
plaintiff standing just beyond the dip in the road.
He was injured
but she did not see any other injured person. They stabilised the
plaintiff and took him back to Ms Pretorius's
home. After he had
washed and put on fresh clothes, they took him to the Brits clinic.
Ms
Dexter also said that the condition of the road in the dip was poor.
Beyond the dip, she saw a big branch in the road, covering
about
three quarters thereof. There were other branches in the vicinity and
there were people working with the branches.
The
defendant testified that he is the owner of plot 30, Schoemansville.
His son lives on the plot while he (defendant) works in
Dullstroom
during the week and stays at the plot over weekends. With his
permission, his son had instructed a contractor to remove
trees on
the plot where his son planned on cultivating vegetables.
On
the day of the collision, a Wednesday, the defendant and his wife
arrived from Dullstroom at about 17h30. An operator was busy
removing
the last of the trees with a front-end loader ("laaigraaf").
Immediately on his arrival the defendant, with
his son in law who
lives on the neighbouring plot, went to where the trees were being
felled. When the two men arrived, the operator
was busy removing the
last tree. It was standing close to the fence that forms the boundary
between the plot and the road where
the accident later happened. A
branch broke off, fell on the fence and across the road. This
happened 102 meters away from the
verge of the dip. (The defendant
measured the distance later.)
When
the branch fell across the road, the defendant heard a motorcycle
approaching from the other side of the dip. He could hear
that it was
travelling fast and he ran towards the dip. When he was about 30
meters from where the branch had fallen (about 70
meters from the
verge of the dip), the motorcycle came out of the dip. The defendant,
halfway into the road, waved his arms to
attract the attention of the
motorcyclist. The handlebar of the motorcycle struck the defendant on
his side. The rider lost control
and rode into the branch in the
road. The defendant confirmed that Ms Pretorius was phoned, that the
ladies arrived and that the
plaintiff was taken away. As to his own
injuries, the defendant said that he suffered bruises and did not
require medical treatment.
As
to the light conditions, the defendant said that it was light at all
relevant times, also when the ladies arrived. In his estimation
the
accident happened closer to 18h00 than to 18h30. Still pertaining to
the light conditions and the time of the collision, the
defendant
said that the cafe where the plaintiff probably intended going to,
closes at 18h00. The journey from Ms Pretorius's house
to the scene
takes about 2 to 3 minutes. The defendant wasn't sure for how long
the ladies remained on the scene, but the contractors
started to
remove the branch from the road while they were still there. Removing
the branch would have taken about 10 to 15 minutes
and the operation
was completed before the ladies had left. The distance between Ms
Pretorius's house and the Brits clinic is about
20 km and the drive
there would have taken about 20 minutes.
As
to where in the road the branch was, the defendant said it definitely
was not at the verge of the dip. There, he said, not his
plot but
that of his son in law borders the road. His plot starts only about
100 meters further, and that is where the branch fell.
The
defendant's son in law, Mr E Visage, confirmed that he lives on the
plot next to that of the defendant. He confirmed the defendant's
evidence that the two of them went to where the last tree was being
felled and also the further evidence up to the point when the
plaintiff collided with the branch. Mr Visage also said that the
motorcycle was, judged by its sound, going fast. Although it was
then
still completely light, he first saw it when it came out of the dip.
He explained that their position next to the road prevented
them from
seeing the road on the other side of the dip.
Mr
Visage said that after he had established that the defendant was all
right, he went to where the plaintiff was lying just on
the far side
of the branch. He confirmed the plaintiff's evidence that when he
(Visage) asked the plaintiff how he was, the latter
said that he just
wanted to lie down for a while. Visage waited and then asked whether
he could not call somebody to help the plainitff.
From the
plaintiff's telephone Visage called Ms Pretorius and shortly
thereafter the two ladies arrived in a bakkie.
As
to light conditions and time, Visage said that it was daylight at all
times. He phoned Ms Pretorius some time after the accident,
about ten
to fifteen minutes he estimated.
From
the time of the accident until the ladies arrived, it took about
twenty minutes. The ladies remained on the scene for some
time,
possibly about 15 minutes or more. When they left, it was still
daylight. Visage, however, did not recall that the branch
had been
removed before the ladies and the plaintiff left. Contrary to the
defendant, his evidence was that the branch was only
removed after
the plaintiff had left the scene.
As
to where the accident happened, the plaintiff's version cannot be
correct. Mr Naude who appeared for him did not contend otherwise.
The
trees were felled on the defendant's property which is situated 102
meter from the verge of the dip, further down the road
as the
plaintiff travelled. It follows that the branch could not have fallen
where the plaintiff said he collided with it. It is
held that the
branch was where the defendant and Visage said, and that it is there,
102 meters from the verge of the dip, that
the plaintiff collided
with the branch.
From
what
I
have
said it follows that the plaintiff's evidence as to where the
accident happened is unreliable. I must point out that his evidence
that he saw trees lying in the road is also unreliable. The defendant
and Visage's evidence that only one branch, albeit a large
one, fell
into the road, was not seriously disputed in the course of cross
examination, and for good reason: It coherently and
sensibly
explained the events. It is improbable that the plaintiff
could
have made an honest mistake as to where the accident happened and as
to whether there were many trees of one branch in the
road.
The
plaintiff did not deny that the defendant ran down the road and tried
to warn him by waving his arms. When asked, the plaintiff's
response
was that he did not remember that. It is in my view improbable that
the plaintiff would have forgotten about the presence
of a man waving
to him and whom he also struck with the handlebar of his motorcycle.
The more probable explanation is that, having
committed himself to a
false version that the accident happened on the verge of the dip, the
plaintiff remembers the incident but
chose not to say so.
I
do not find the defendant's and Visage's evidence that the former
tried to warn the plaintiff in the manner they testified to
improbable. Viewed in the light of the plaintiff's improbable show of
forgetfulness in this regard, I accept the defendant's version
that
he tired to warn the plaintiff by running down the road and waving
his arms.
The
question now is: Why did the plaintiff collide with the defendant?
Because of his false version of where and how the collision
with the
branch took place, the plaintiff did not and could not explain his
collision with the defendant. An explanation could
be that it was
dark and that the plaintiff did not see the defendant. I turn to that
possible explanation.
The
first difficulty with ascribing the collision with the defendant to
darkness is that the plaintiff said that he had his light
on. In
fact, he said that the motorcycle's light comes on when it is
started. If for some reason the defendant was invisible despite
the
light, the plaintiff should have told the court about it.
In
any event, I hold for the reasons that follow, that the plaintiff did
not prove that it was dark at the time of the collision.
The parties'
respective versions as to the light conditions are mutually exclusive
or destructive. It follows that the plaintiff
"can only succeed
if he satisfies the Court on a preponderance of probabilities that
his version is true and accurate and
therefore acceptable, and that
the other version advanced by the defendant is ... false or mistaken
and falls to be rejected".
(National
Employers' General Insurance Co Ltd v Jagers 1984(4) SA 437 (E)
at
440E to 441A;
Baring
Eiendomme Bpk v Roux [2001] 1 399 (SCA)
at
para. 7).
As
to the probabilities, the parties agreed that on the day in question
at the relevant place, sunset was at 17h56. They also agreed
that
"'sunset' is the moment the top edge of the sun is just below
the horizon, and that it is still quire light then".
There are
insignificant differences, but all the evidence is to the effect that
it would have taken the plaintiff about 2 to 3
minutes, less than 5
minutes, to cover the distance between Ms Pretorius's house and the
scene of the accident. On that basis,
the plaintiff must have reached
the scene of the accident just before or just after 18h00. That
accords with the defendant's evidence
that the accident took place
closer to 18h00 than to 18h30. While it is idle to speculate about
the exact light conditions, it
could not have been completely dark as
testified to by the plaintiff. Ms Dexter's evidence that it was
already dark when the plaintiff
left for the cafe can also not be
correct, especially in view thereof that the plaintiff himself said
differently. It is an objective
fact that the plaintiff registered at
the Brits clinic at 19h15. It serves no purpose, however, to try and
calculate from that
time backwards when the accident happened. I say
that because there are too many unknown time lapses: After the
accident, Visage
first went to see if the defendant was all right
before he want to where the plaintiff was; the plaintiff then told
Visage that
he just wanted to lie down for a while, and time elapsed
before Visage phoned Ms Pretorius; it must have taken Ms Pretorius
and
Dexter some time to gather their medical kit, go the bakkie and
start off to the scene; the ladies stabilised the plaintiff on the
scene before they left with him and that took time; for the plaintiff
to have washed and put on fresh clothing took some time.
In my view
the fact that the plaintiff arrived at the clinic at 19h15 does not
show that it was probably dark when the accident
happened.
The
plaintiff testified that trees on the northern side of the road (he
was travelling from east to west) threw shadows over the
road and
made it completely dark. I accept that the setting sun may have cast
shadows over the road, but the evidence that the
road was completely
dark is improbable.
I
have already pointed to different aspects in which the plaintiff's
evidence is unreliable. Ms Dexter's evidence as to the light
conditions cannot be accepted. The evidence of defendant and Visage
that it was light at all relevant times is neither inherently
improbable nor do the objective facts show it to be improbable.
In
the result, the plaintiff did not prove that it was dark at the time
of the accident. At best for him, it was a few minutes after
sunset
and the light might have been failing under the trees next to the
road. That, however, does not account for the plaintiffs
failure to
see the defendant warning him. The defendant, incidentally, was on
the southern side of the road and not under the trees.
A
general observation as to the credibility of the witnesses is called
for. For reasons i have given, I find the plaintiff and Ms
Dexter to
have been unreliable. I am satisfied that in some respects the
plaintiff was deliberately not telling the truth. He was
not an
impressive witness. As for the defendant and Visage, they both
impressed me as reliable. The latter did at times, especially
when
asked about time lapse, say that he did not know. In my view that
does not negatively reflect on his credibility. It rather
indicates
that he gave the facts as he knows them.
To
sum up, it is held that it was not dark when the accident happened.
The plaintiff emerged from the dip, struck the defendant
who was
trying to warn him of the branch in the road by waving his arms. When
he struck the defendant, the plaintiff lost control
of his motorcycle
and collided with a branch that had just fallen across the road. The
branch was lying in the road about 102 meters
from where the
plaintiff emerged from the dip.
The
plaintiff seeks to hold the defendant liable on three alternative
bases. I shall deal with each in turn.
In
the first place the plaintiff pleads that the branch (the pleading
refers to trees) was lying in the road as a result of the
defendant,
or persons working on his instructions, cutting trees down on the
plaintiff's property. In the circumstances, the pleading
alleges, the
defendant negligently omitted to act in a way that would have
prevented the plaintiff from colliding with the branch.
The plaintiff
did not prove that the defendant cut the trees nor that it was done
on his instructions. The uncontroverted evidence
is that the
plaintiff's son, with his permission but not on his instructions,
instructed an independent third party to remove the
trees. It follows
that the plaintiff cannot be held liable on this basis, and I find it
unnecessary to deal with the alleged grounds
of negligence.
The
second basis upon which the plaintiff seeks to hold the defendant
liable appears from a reply to the defendant's plea. Although
the
plaintiff's case should have been made out in his particulars of
claim, Mr Pieterse for the defendant made no point thereof.
The
plaintiff contends that, if an independent contractor removed the
trees, (which was the case) the defendant had a legal duty
of care
not to allow a situation dangerous for road users to arise in the
road next to his property. According to the plaintiff,
the defendant
negligently breached that duty of care by omitting to take steps to
prevent injury to road users, including the plaintiff.
In
support of his argument that the defendant should be held liable on
this basis, Mr Naude referred me to the judgments in
Langley
Fox Building Partnership (Pty) Ltd v De Valence 1991(1) SA 1 (AD)
and
to the dissenting judgment in
Chartaprops
16 (Pty) Ltd and Another v Silberman 2009(1) SA 265 (SCA).
Those
judgments are, with respect, instructive as to when an omission to
act would be regarded as unlawful. They, however, deal
with the legal
duty to act ("the duty to take care") of a person who
instructs an independent contractor to create a
potentially harmful
situation. In this case, the defendant did not instruct the
contractor to remove the trees. Therefore, the
judgments referred to
do not afford authority for the proposition that the defendant must
in this case be held liable for an omission
to prevent harm.
It
is settled law that a person who creates a potentially harmful
situation must, depending on the facts, guard against the situation
causing harm to others. Put differently, if a person creates a
potentially harmful situation, it may,
depending
on the facts, be unlawful for him not to ensure that the harmful
situation doesn't cause harm to others. (See the majority
judgment in
the
Chartaprops
16
-case
(
supra).
In
this case the defendant did not remove the trees and therefore did
not create the situation that the plaintiff contends was potentially
harmful.
I
have not been referred to authority for the proposition that an owner
of immovable property, by virtue only of his ownership,
has a legal
duty to prevent harm being caused by activity on his property. But
that is not the end of the matter. I assume that
there are
circumstances where the law requites of an owner to prevent harm
caused by activity on his immovable property. Put differently,
it
may, depending on the facts, be unlawful for an owner not to prevent
harm being caused by activity on his immovable property.
Such an
omission to act (prevent harm) will only be unlawful if, firstly, the
harm is reasonably foreseeable. For the omission
to be unlawful, the
owner must in the second place be in a position where it can
reasonably be expected of him to act (prevent
harm). (See the
Langley
Fox
-judgment
(supra)
at
11E to 12J).
In
this case the defendant was not present when the work to remove the
trees commenced. There is no evidence that he knew how
the
contractor that his son had appointed was going to do the work. In
the circumstances, he could neither have foreseen that the
work might
cause harm to road users, not, having been absent, could he have
acted to prevent harm.
The
defendant was present when the last tree was felled. I assume in the
plaintiff's favour that he was in a position to prevent
foreseeable
harm by, for instance, instructing the operator of the front-end
loader to go about his business differently. There
is no evidence,
however, that it was reasonably foreseeable that the removal of the
tree could cause a hazard in the road. More
in particular, there is
no evidence that it was reasonably foreseeable that a branch could
break off and fall into the road. In
this regard there is not even
evidence of how the operator went about removing the tree. I conclude
that it was not unlawful for
the defendant not to act before the
branch broke off in order to prevent harm to road users.
Once
the branch broke off and fell into the road, the defendant
immediately took action to warn the oncoming plaintiff. There is
no
evidence that he could or should have acted differently and more
effectively. To the extent that he may have had a duty to act,
he
did.
It
is concluded that the defendant cannot be held liable on the second
basis.
The
third basis on which the plaintiff seeks to hold the defendant liable
appears from a second reply that the plaintiff filed in
response to
the defendant's plea. This basis for liability is premised thereon
that the court finds, as it has,
that
the defendant was a pedestrian and that the plaintiff collided with
him. On that premise, the plaintiff contends, the defendant
is still
liable because he negligently:
•
Failed
to have due regard to the plaintiff's rights as a road user;
•
failed
to keep a proper lookout;
•
failed
to take cognizance of the traffic on the road;
•
entered
to road at a stage when it was dangerous to do so; Apart from the
last one, with which I shall deal in more detail, there
is no
substance in any of the alleged grounds of negligence. The defendant
did have due regard to the plaintiff's rights and took
cognizance of
his presence. That is why he tried to warn him. There is no evidence
that the defendant did not keep a proper lookout.
On the contrary, he
was acutely aware of the plaintiff's presence on the road and saw him
as soon as he came out of the dip.
As
to the allegation that the defendant entered the road at a dangerous
moment, the plaintiff did not say so. On the defendant's
and Visage's
versions the former was not completely in the road and his presence
on the side of the road was justified by the circumstances.
There are
on the evidence two possible causes for the collision. Either the
plaintiff was travelling too fast or he was not looking
where he was
going. I need not find, however, whether the plaintiff's negligence
caused the collision. The plaintiff did not prove
that it was the
negligence of the defendant that caused the collission.
In
the result, the following order is made: The plaintiff's claim is
dismissed with costs.
B.R.
Du Plessis
Judge
of the High Court
On
behalf of the Plaintiff:
De
Jager Inc
Menlo
Regskamers 11 de Straat No. 49 Menlo Park, 0081
Adv.
G. Naude
On
behalf of the Defendant:
Cliff
Dekker Hofmeyer
P/A
Gildenhuys Lessing & Malatji Harlequins Office Park 164 Totius
Straat Groenkloof
Adv.
Pieterse