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[2011] ZAGPPHC 11
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Dos Santos Pinto v Mthalane (26958/2006) [2011] ZAGPPHC 11 (28 January 2011)
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Certain
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NR: 26958/2006
DATE:
28/01/2011
In
the matter between:
JOSe
LUIS DOS SANTOS
PINTO
..................................................................
PLAINTIFF
And
S
P
MTHALANE
.................................................................................................
DEFENDANT
JUDGMENT
Ranchod
J,
[1]
This case concerns a claim for damages to a motor vehicle arising out
of a collision on 30 September 2005 between 20:45 and
21:00 at night
on Lever Road. Midrand. Plaintiff alleges that the defendant was
negligent and caused the collision between their
respective motor
vehicles, namely, a Mercedes Benz with registration NRK 162 GP and
(Opel Corsa) vehicle with registration RNJ
495 GP causing damage to
the plaintiffs' vehicle in the amount of R167 436.84 for repairs and
R2 500.00 for towing and release
charges.
[2]
At the hearing of the matter and by agreement between the parties it
was ordered that the issue of the quantum be separated
for
determination at a later stage. It was accordingly ordered that the
issue of quantum be postponed
sine
die.
The
trial then proceeded on the issue of liability only.
[3]
It was common cause between the parties that the accident occurred on
the stated date, time and place and that the defendant
had exited
from an Engen filling station, turned right into Lever Road and
travelled from South to North. It was also common cause
that
plaintiff was also travelling on Lever Road from South to North and
collided into the rear of Defendants motor vehicle.
[4]
In issue are the precise point where the accident occurred and who of
the two drivers was negligent. Plaintiff's
locus
standi
to
sue was admitted by defendant. At the commencement of trial copies of
a sketch plan of the scene of the accident and a trial
bundle marked
"A'
:
were handed up.
[5]
Plaintiff himself was the only witness in his case. He testified that
he entered Lever Road from Liebenberg Road, which forms
a "T"
junction at Lever Road. That means he executed a left turn into Lever
Road. The north-bound portion of the road
from Liebenberg Road
consisted of two lanes up to approximately opposite the entrance to
the Engen garage when it became a single
lane. He could not remember
whether at that time there was a traffic light at that intersection
or a stop sign on Liebenberg Road
but currently there was a traffic
light there. The distance from the intersection to the entrance to
the Engen garage was about
100 meters, he said. The street lights
were not on hence Lever Road was in darkness. Lights from nearby
houses would have been
obstructed by nearby trees. His car's
headlights were switched on.
[6]
Plaintiff further testified that he was not in a hurry and
immediately before the collision he was travelling at about 60km/h
which, he thinks, was the speed limit there at the time. His car's
headlights were on. He is familiar with Lever Road having travelled
on it for about twenty years. (Plaintiff disputed that the entrance
to a Spar Shopping Centre was where it was indicated on the
sketch
plan. He pointed to a different place, which was marled "A"
on the sketch, as the place where the entrance was.)
[7]
Plaintiff further testified that after turning into Lever Road he saw
that the road ahead was clear and he was the only one
on that section
of Lever Road. A motor vehicle came out from the Engen garage and
approached yellow lines. He referred to these
as "yellow
markings" in his description of the accident to his insurer
which is page 4 of bundle "A" and which
was referred to
during the trial. He said he saw the other motor vehicle moments
before the impact. That other vehicle was a dark
coloured car and he
did not observe any lights nor indicators on it. Plaintiff says he
swerved to his left to avoid an accident
but at that point the two
lanes converge into a single lane. He collided with the rear left of
the other vehicle with the right
front side of his own car. His motor
vehicle travelled about ten to fifteen meters after the impact before
coming to a stop. He
made the following marks on his copy of the
sketch plan, which was page 31 of Bundle "A" (there were
two more copies
which were marked by the defendant and his witness
respectively).
"XB"
according to plaintiff was the point of impact, "XC" where
his vehicle came to a stop after the collision,
"XD" is
where defendants motor vehicle came to a stop after the collision and
"XE" was where plaintiff was
when he first saw defendant's
vehicle. He got out of his car and went to the other car to see if
everyone was all right. He saw
the driver and a passenger in the car.
They had food and drinks with them but he could not say what type of
drinks they were.
[8]
Plaintiff was referred to certain photographs of the scene of the
accident. However, he pointed out that that portion of Lever
Road did
not look as it appeared in the photographs as there was road
construction taking place at the time and the photographs
were taken
later.
[9]
Under cross examination, plaintiff said he could not recall whether
defendant's motor vehicle's lights were on and that he could
not deny
it if defendant says the lights were in fact switched on. He said the
defendant was travelling at perhaps five to ten
kilometres per hour
immediately before the collision. He did not recall apologising to
defendant for the collision. He was well
acquainted with the road
having travelled on it both during the day and at night. He did not
actually see defendant exiting from
the Engen garage but concluded
this from the fact that he did see defendant at the yellow lines or
markings on the road. These
yellow markings are apparently the
diagonal lines in the middle of the road as marked on the sketch
plan.
[10]
Plaintiff said the distance from the Engen entrance to the point of
impact would be a few meters but the illumination from
the garage was
not sufficient. The Engen signage shown on the photographs was not
there at the time of the collision. From the
Engen exit to the
barrier line in the middle of Lever Road he estimated to be about
five meters.
[11]
He disagreed with defendant's version that the street lights were on
that night. He also disagreed that defendant had travelled
some 70 to
80 meters and was parallel to the entrance to the Spar Centre on
Lever Road when the collision took place. He also denied
defendant's
version that his (defendant's) vehicle come to a stop further down
the road between a private entrance and Olifantsfontein
Road (which
intersected with Lever Road). When it was put to him that defendant
will say he (Plaintiff) was travelling at a high
speed he responded
that that was "their opinion".
[12]
There was no re-examination and that was the case for the plaintiff
on the merits.
[13]
Defendant testified that he was the driver of his black Opel Corsa
vehicle. With him was his friend Mr Richard Ngwenya. He
said before
he left the Engen garage and while at the stop sign at the Engen exit
he looked to his left and right then entered
Lever Road in the
direction of Olifantsfontein Road. As he approached Olifantsfontein
Road he noticed that the traffic light was
red hence he travelled
slowly at about 10 to 20 kilometres per hour when he heard a bang.
[14]
Defendant testified that visibility was good because the lights at
Engen, the Spar Shopping Centre, the traffic lights and
the street
lights were all on. He was referred to a copy of the sketch plan
(marked "B") on which he marked where, according
to him,
the collision took place and where his vehicle came to a rest after
the accident. "XI" was the entrance to the
Spar Shopping
Centre, "XG" the place of impact and "XH
,;
where his vehicle came to a stop. He identified the point of impact
from the fact that when he got out of the car he was facing
the Spar
Centre entrance, he said.
[15]
According to defendant there was no traffic light at the intersection
of Liebenberg and Lever Roads. He said he did see a motor
vehicle
approaching on Lever Road when it was still before the Liebenberg
Road junction. He concluded it was far away so he proceeded
into
Lever Road. Defendant further testified that after the collision
Plaintiff came to him and said "I did not see you".
[16]
Defendant said after he entered Lever Road, he did not see the other
car behind him. His opinion was that plaintiff was travelling
at a
high speed -perhaps 10Okm/h - though he could not say so with
certainty.
[17]
Under cross examination he testified that a black coloured car may
not be visible if it was dark but would be visible if there
where
lights. Defendant said when he pulled off from the Engen exit and
crossed over the south-bound lanes of Lever Road he did
so "fast"
and then slowed down when he saw the traffic light red at
Olifantsfontein Road. It was then that the collision
from the rear
took place with his vehicle. His reason for crossing over fast, he
said, was because he "did not want to be
slow for vehicles on
his right hand side". But he then went on to say that there were
no vehicles on his right but he did
see plaintiffs' motor vehicle on
his left at Liebenberg Road. He conceded that the distance from the
Engen exit to Liebenberg Road
could be 120 meters. He said
plaintiff's vehicle would have been about 5 meters beyond Liebenberg
Road, interestingly, he said
he wanted to cross over at about 50-60
km/h when he saw plaintiff's motor vehicle approaching. He
pertinently stated that he accelerated
because he wanted to turn into
Lever road ahead of plaintiff.
[18]
Defendant said although he checked for vehicles on his left hand side
(when he saw plaintiff's vehicle) he did not look again
for
plaintiff's motor vehicle when he turned into Lever Road. He then
contradicted himself and said when turning into Lever Road
he saw
that plaintiffs motor vehicle was still far away. He then became
argumentative telling plaintiff's counsel that he (counsel)
is a
driver and should know that you must check whether there are any
vehicles on the road. Defendant repeated that he travelled
about
70-80 meters at a speed of about 10-20 km/h after turning into Lever
Road.
[19]
At this point it was placed on record that both parties' legal
representatives agreed that the distance from Liebenberg Road
to the
middle of the Engen entrance was 150 meters.
[20]
In re-examination, defendant said that after being stationary at the
Engen exit he travelled at 40-50km/h across Lever Road.
He was aware
of the plaintiff because he was checking all the time. His own
counsel put it to him that he had said earlier the
only time he saw
plaintiff was when he wanted to exit from Engen. His response was
that he did check again before entering the
road.
[21]
Mr Mandia Richard Ngwenya, who was the passenger in defendant's
vehicle at the relevant time testified for the defence. A copy
of the
sketch plan, marked "C" was handed up. Mr Ngwenya marked
the places where according to him the Spar entrance was,
the point of
impact and where defendant's vehicle came to a rest after the
collision. They were "XM", "XJ"
and "XK"
respectively. "XL" indicated where he saw plaintiff's
vehicle from the Engen exit. He marked the various
points at
substantially the same places as did defendant. He testified that
plaintiff's vehicle was far away when they (he and
the defendant)
checked before crossing over from Engen. They had moved some distance
after turning into Lever Road when he heard
the impact. He could not
say how long it was before the impact took place.
[22]
Contrary to defendant's evidence, he said defendant was travelling at
about or less than 40km/h immediately before the impact.
Defendant
had said he was travelling at about 1G-20km/h. He was sure of the
point of impact because he knows the place as he travels
on that road
regularly. He said visibility was good as there were lights on at
Engen, the Spar Shopping Centre and the street lights.
The lights of
defendant's motor vehicle were also switched on.
[23]
Under cross examination he said the first and last time he saw
plaintiffs motor vehicle before the accident was when it was
still
about 150 meters away. He and defendant had both seen the other car.
If defendant had not done so he would have told him
to do so. He said
both he and defendant saw plaintiff's car. He saw defendant turning
his head to check. He was adamant that the
point of impact was not
opposite the Engen entrance.
[24]
That was the case for the defence.
[25]
The onus is on the plaintiff to prove his case on a balance of
probabilities in this civil case. Plaintiff gave his evidence
in a
forthright manner. He readily conceded where he had to do so. Where
he was not sure about some aspect he admitted not being
sure about
it. However, there were some aspects of his evidence that can be
criticized. He said he saw defendant's motor vehicle
moments before
the impact but then said he saw it moving slowly before him into
Lever Road. He also said in evidence in chief that
he did not see the
Corsa's lights but under cross examination he conceded that they
could have been on. He also said he was not
sure what the speed limit
was on the relevant portion of Lever Road even though he said he had
been travelling on it for about
twenty years. However, this latter
aspect does not have any bearing on the issues to be decided.
[26]
The defendant contradicted himself in some respects, such as whether
he looked again to his left after initially noticing plaintiff's
motor vehicle near Liebenberg Road. He first said he only saw it once
and then said he did look again and became argumentative
on this
point with plaintiff's counsel during cross examination. He would not
make concessions when he should have. ! infer that
he changed his
evidence on this point when he realised the implications of saying he
had only taken note of plaintiff the one time
only whereas he should
have kept plaintiff's vehicle under observation as he manoeuvred into
Lever Road in front of plaintiff.
[27]
This matter came to trial almost five years after the accident
occurred, i am therefore mindful of what was said by the learned
Judge in the court a
quo
in
the matter of JOHANNES v SOUTH WEST TRANSPORT (PTY) LTD 1994(1) SA
200 at202
C-F:
'Witnesses
who reconstruct their observations frequently make mistakes. There is
no necessity to dismiss their evidence in toto.
Schreiner JA said in
Lambrechts v African Guarantee & indemnity Co Ltd
1955 (3) SA 459
at 456F:
"One
must, of course, make allowance for the liability of witnesses to an
accident, especially one in which they were themselves
involved, to
reconstruct the occurrence incorrectly by inference from fleeting and
not certainly trustworthy impressions.'
The
Court in such circumstances, having decided that the evidence of the
witness cannot be accepted in one respect, must warn itself
of the
danger of accepting the evidence of such witness in other respects,
but if the Court is on its guard and such evidence is
objectively
confirmed or there is other acceptable evidence, then there is no
need to discard everything the witness tells the
Court.
Furthermore,
should some part of such evidence conflict in certain aspects only
with some other witness on the same side, it would
be wrong for the
Court simply to say that because of such conflict the evidence in
respect of that portion of both witnesses must
be discarded, when it
is clear that one of the witnesses only is in error. Evidence of the
opposing litigant or objective matter
may well confirm the version of
one or other witness.'
It
was cited with approval by the Full Bench of the Namibia High Court
on appeal. Plaintiff's counsel said that defendant was not
deliberately lying but was doing a reconstruction of the events of
that night and much of it was guess work.
I
agree.
Similarly I did not get the impression that plaintiff was being
deliberately untruthful with regard to some of the aspect
I have
mentioned earlier.
[28]
The parties agreed that the distance from Liebenberg Road to the
Engen entrance was 150 meters. Plaintiff said he was travelling
at
about 60 km/h. Defendant suggested that plaintiff was travelling at
probably 100 km/h but this was pure conjecture and he said
as much. I
accept, for the reasons that follow, plaintiff's evidence that he was
travelling at about 60 km/h. Defendant also placed
plaintiff's motor
vehicle beyond Liebenberg Road by about 5 meters which is a
relatively insignificant difference. He made this
observation from a
distance of about 150 meters. Again, I have no reason to doubt
plaintiff's evidence that he entered Lever Road
from Liebenberg Road.
Defendant admits leaving the Engen exit at a fast speed after
observing plaintiff's vehicle 150 meters away.
His ostensible reason
for taking off at a fast speed - he said at about 50-60 km/h - was to
avoid traffic on his right hand side.
The distance he had to cover
was probabiy between 5 and 10 meters. It seems impossible that he
could have reached a speed of 50-60
km/h in such a short distance. It
seems he was trying to explain away his entering into Lever Road in
front of plaintiff. What
can be accepted though, and I do so, is that
he left the Engen garage rapidly or quickly.
[29]
Plaintiff says he saw defendant's motor vehicle for the first time
moments before the impact. His evidence that he did not
see the
defendant's vehicle earlier would in the circumstances make sense.
However, both defendant and his witness testified that
defendant had
his headlights switched on. Plaintiff initially denied that the
lights were on but under cross-examination said he
could not recall
if any lights of defendant's car were on. Plaintiff said the street
lights were also not on while defendant and
his witness Mr Ngwenya
said they were in fact switched on.
[30]
As I said, another issue is the point of impact. Plaintiff testified
that it was just past the Engen entrance (but in the north-bound
lane
on Lever Road) whereas defendant and Mr Ngwenya said it was further
down - some 70 to 80 meters - opposite the Spar entrance.
Defendant's
reason for saying so is that when he came out of his car after the
collision he was across the Spar Centre entrance.
But in that case
the collision would have occurred some distance before the Spar
entrance as it is common cause that both vehicles
moved forward after
the impact although the exact distance is in dispute. Plaintiff said
his vehicle moved about 10 - 15 meters
after the impact and past
defendant's car. Plaintiff corroborates defendant's evidence that he
(defendant) was travelling about
5-10km/h immediately before the
impact.
[31]
The evidence indicates the following: that after defendant left the
Engen exit at a fast speed he turned into Lever Road in
front of
plaintiff's motor vehicle without observing where plaintiff's vehicle
was when he did so and then immediately slowed down
when, by his own
evidence, he saw that the traffic light had turned red at the
Olifantsfontein intersection. Mr Ngwenya said he
only observed
plaintiff's vehicle once, that is, when it was about 150 metres away.
He testified that if defendant had failed to
look to his left he
would have told him to do so. Yet he did not himself look again to
the left nor did he tell defendant to do
sc. Had defendant kept a
proper lookout, as he ought to have, having moments before observed
plaintiff's vehicle at a distance
of a mere 150 meters away, he could
have avoided the collision. The reasonable man in the position of the
defendant would have
made sure that it was safe to enter into Lever
Road - which was a throughway - more especially when he had earlier
observed plaintiff
approaching. In
Bata
Shoe Co. Ltd. (South Africa) v. Moss
1977 (4) WLD 16
at 20H - 21C
it
was held:
"When
the driver of a motor vehicle wishes to turn across an adjoining
carriageway at right angles to his previous tine of
travel, his
proposed action is pregnant with danger. He is about to do something
which is inherently hazardous and he is therefore
fixed with certain
important obligations. The first of those is that he must signal
clearly his intention to make the turn, and
do so in such a manner as
to warn approaching drivers, drivers following him, and the driver of
any vehicle who may be seeking
to overtaking him, of the intended
change of direction. It is not sufficient however that the driver of
the vehicle which is about
to turn signals his intention to do so,
even if the signal is given in good time. His further obligation is
to refrain from making
the turn until an opportune time, to use the
phrase which the Appellate Division has used in that regard. An
opportune time in
that context is a time when the motorist who wishes
to turn can carry out his intention without endangering or even
materially
impeding the progress of any other person or vehicle
lawfully on the road. It is the duty of the driver who wishes to make
the
turn to satisfy himself by full and careful persona! observation
that the time is opportune in the sense which I have indicated."
Defendant
was negligent and substantially the cause of the accident.
[32]
Was plaintiff also negligent? According to him, the street lights
were not on and it was dark on that stretch of the road.
It is
incumbent upon a driver in that situation to be vigilant. He
testified that he first saw defendant's vehicle when it was
at the
yellow markings which are in the middle of the road dividing the
north and south-bound lanes. However, he collided into
the rear of
the Opel Corsa. This means that some moments elapsed from when the
Opel was at the yellow road markings and when it
turned into and then
proceeded straight in Lever Road. Had he kept a proper lookout, he
could have reacted earlier. In that respect
he too was negligent but
to a far lesser degree and defendants counsel's submission that for
that reason plaintiff was 100 per
cent liable cannot be accepted.
Plaintiff's claim falls to be apportioned accordingly, i am of the
view that respective degrees
of fault in relation to the damage of
plaintiff and defendant are 75 per cent and 25 per cent respectively.
[33]
Plaintiff has succeeded substantially and should therefore be
entitled to his costs.
[34]
I make the following order:
34.1
There
shall be judgment in favour of the plaintiff for 75 per cent of his
agreed or proven damages:
34.2
Defendant
is to pay plaintiff's costs of the trial on the merits;
34.3
The
issue of quantum is postponed
sine
die.
N
RAMCHOD
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Representation
for the
Applicant:
Counsel:
Adv.
L
.K
.
van der Merwe
instructed
by Attorneys: Alex Bosman Attorneys – Pretoria
Representation
for the Defendant:
Counsel:
Adv.
Ms. M.J. Kruger
instructed
by Attorneys: Marques Scares Pontes - Pretoria