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[2012] ZAECPEHC 77
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Doubell v Road Accident Fund (1082/2011) [2012] ZAECPEHC 77 (18 October 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case
No.: 1082/2011
Date
heard: 07 March 2012
Date
available: 18 October 2012
In the matter between:
JUAN-PIERRE
GERHARDUS DOUBELL
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
DAMBUZA, J
:
This is a claim for damages suffered
by the plaintiff on 20 June 2009 as a result of a motor vehicle
collision.
At the commencement of the trial
counsel brought to my attention an agreement reached between the
parties, that issues relating
to negligence of the drivers of the
motor vehicle and the motorcycle involved in the collision be
determined separately from
issues relating to the quantum of damages
claimed. An application was moved for an order in those terms and
I granted an order
accordingly. The matter therefore proceeded
only on issues pertaining to the negligence.
It is common cause that during the
afternoon of 20 June 2009 a collision occurred between a motor
vehicle with registration number
DHR 995 EC (the insured vehicle)
which was being driven by Paul Little (the insured driver) and a
motorcycle with registration
number FBH 977 EC, then driven by the
plaintiff. The collision occurred along Winterhoekrylaan (also
referred to as Winterhoek
Drive), in Uitenhage, a road depicted in
the photographs contained in photo albums, Exhibits “A”,
“B”,
“D” and “E”.
Winterhoekrylaan (or the segment
thereof where the collision happened) was described in evidence a
straight road, with a single-carriage
in each of the two opposite
directions. The Uitenhage Golf Club is located along this road; on
the left side thereof when travelling
in the direction that the
insured vehicle and the motorcycle were travelling. At some
distance to the main gate towards the
golf club, the road dips and
then inclines towards the golf club.
The evidence was that a vehicle
coming out of the dip becomes visible at a distance of approximately
132 metres from the entrance
to the golf club. About 9 metres past
the entrance to the golf club, and diagonally opposite to the
entrance to the golf club,
another road, Currie Street, joins
Winterhoekrylaan on the right side when travelling in the direction
of the insured vehicle.
The collision occurred about 10
meters past the entrance to the golf club. The insured vehicle and
the motorcycle had been travelling
in the same direction, towards
the West, immediately prior to the collision.
It was not in dispute at the trial
that the plaintiff bore the onus of proving negligence on the part
of the insured driver and
to prove that such negligence was the
cause of the collision, whilst the defendant bore the onus of
proving the pleaded contributory
negligence on the part of the
plaintiff.
Mr Nepgen
who appeared on behalf of the plaintiff
placed on record that the plaintiff had, during the Rule 37
discussions, unsuccessfully
sought an admission from the defendant,
that the plaintiff could not recall any details relating to the
collision. He stated
that, because the plaintiff could not recall
the details of the collision he was going to give evidence at the
trial. I could
not, at that stage, give him the confirmation he
sought, that I would not draw a negative inference from the
plaintiff’s
failure to testify.
It has been said
that in civil cases a party’s failure to give gainsaying
testimony under oath or affirmation may have an
adverse effect on
his (or her) case. However the effect of such failure will depend
on all the circumstances of the case.
1
Courts determine the propriety of drawing an inference from
failure to testify in the context of the strength of the
probabilities
that the party who failed to give evidence was
negligent in relation to the cause of action. In
Dlakela
v Transkei Electricity Supply Commission
2
White J, on the approach set out in
Galante v Dickson
3
,
found that the probability was so strong that the plaintiff had not
been negligent that any adverse inference drawn from his
failure to
testify would not persuade the court’s finding on the absence
of negligence on his part. The approach was set
out by Schreiner JA
in
Galante
as
follows:
“
[I]t
seems fair at all events to say that in an accident case where the
defendant was himself the driver of the vehicle the driving
of which
the plaintiff alleges was negligent and caused the accident, the
court is entitled, in the absence of evidence from the
defendant, to
select out of two alternative explanations of the cause of the
accident which are more or less equally open on the
evidence, that
one which favours the plaintiff as opposed to the defendant.”
I shall therefore consider the issue
of whether any negative inference should be drawn from the
plaintiff’s failure to testify
against this background.
Mr Nepgen
submitted that, on a
proper consideration of all the evidence led, negligence on the part
of the insured driver had been proved
and that no negligence had
been proved on the part of the plaintiff. He submitted that the
issues fall to be determined on Mrs
Rudman’s evidence or the
plaintiff’s version of the collision, as this is the only
reliable version before me.
Aletta Magdalena Rudman, a member of
the South African Police Services, gave evidence on behalf of the
plaintiff. It is not in
dispute that Mrs Rudman was also driving her
vehicle along Winterhoekrylaan, when the collision occurred. Her
evidence was that
the insured vehicle was travelling along
Winterhoekrylaan, with the plaintiff’s motorcycle travelling
some distance behind
it, in the same direction. Mrs Rudman was
travelling in the direction opposite to that of the insured vehicle
and the motorcycle.
She testified that she observed the insured
vehicle exiting the golf course through the main entrance, entering
Winterhoekrylaan
obliquely and proceeding across the road in the
direction of Currie Street until its front wheels crossed the centre
line.
It was travelling
“very slowly”
. She
gained the impression that the intention of the insured driver was
to go into Currie Street. However, the insured vehicle
suddenly
veered to its left and returned to its original lane of travel,
colliding with the motorcycle which was in the process
of overtaking
the insured vehicle on the left.
On impact the plaintiff was flung
from the motorcycle; he slid on the ground and ended up under one of
the vehicles parked on
the left side of the road.
In evidence, the insured driver
disputed that he had just exited the golf club when the collision
occurred. His evidence was
that he had been driving along
Winterhoekrylaan, from his home, which is about two kilometres from
the golf club. He was going
to the golf club. About 60 metres
before reaching the entrance to the golf club he reduced his speed
and signalled his intention
to turn to the left. When he was in
front of the entrance to the golf club he noticed an empty space
outside the premises of
the golf club, in front of the club house;
he decided to park in that space. He turned the vehicle towards
his left and, as
it mounted the kerb, with its rear wheels on the
trafficable portion of the road, the plaintiff’s motorcycle
collided with
it. He had not been aware of the presence of the
motorcycle behind the insured vehicle until the collision occurred.
Mrs Rudman
testified confidently and her evidence was clear and consistent. She
did however, in some parts of her evidence, speculate
on what the
plaintiff would have observed whilst travelling behind the insured
vehicle. For example she stated that the motorcycle
could not travel
fast as it was not certain what the insured driver intended to do or
where he intended to go. But in essence
her evidence was that she
gained the impression that the insured driver intended to cross
Winterhoekrylaan into Currie Street.
In my view her evidence in this
regard accords not only with the probabilities, but also with the
evidence of the insured driver
who admitted, during
cross-examination, that he might have veered to his right shortly
before making the left turn. The insured
driver insisted however,
that even if he did veer to the right, he remained within his
correct side of the road and the wheels
of the insured vehicle never
crossed the centre line as Mrs Rudman alleged. His responses to
questions asked during cross-examination
were as follows:
4
“
Now
from where you were turning, did you move to your right before you
turned? --- Only within the limits of the road, if I did
turn right,
the limits of my side of the road….
Because
Mrs Rudman says that before you turned to your left, that your, both
front wheels of your vehicle were over the centre line
of the road
and it appeared to her that you were intending on moving up Currie
Road. --- That was not my intention and I don’t
recall crossing
the middle of the road, if she was coming in the opposite direction
towards me, would be no point in crossing to
the other side of the
road, otherwise I’d hit her.
Are
you able to dispute whether you crossed the centre of the road or
not? --- No, I am not able to dispute it.”
On the whole, the insured driver had
difficulty in explaining how the accident happened. Firstly, he had
difficulty in explaining
where he had intended to park. Initially I
understood his evidence to be that he had intended to park on the
car park inside
the premises of the golf club but when he saw the
empty parking space in front of the club house he then decided to
park in that
space. During cross examination, he “clarified”
his intentions as follows:
“
My
real intention is normally to park in front of the clubhouse, that is
where I would normally park with the car, but on seeing
cars in front
of the clubhouse, I had the decision to turn into the parking area
and on approaching the parking area, I saw a space
between the tree
and my friend’s car.”
Be that as it may, his evidence
further was that he had spotted the parking space between two
vehicles, a truck or bakkie and
a white sedan depicted on the first
photograph in Exhibit A.
It was common cause that the
photographs contained in Exhibits A to E were taken immediately
after the collision, and that the
vehicles depicted therein had not
been moved from the positions they were in prior to the collision.
It appeared to me (and both
counsel were in agreement) that there
was no image of a truck or bakkie on the relevant photograph, and
that what the insured
driver thought was a truck in the photograph
was, in fact, a boundary wall of the golf club. But even after this
was brought
to his attention the insured driver insisted that he had
intended to park
“between the bakkie and the white car,
there was a space under the tree”
.
This
gave me an impression that the insured driver was reconstructing the
collision from what he thought he observed on the photographs,
rather than giving evidence of the collision as he recalled it. I
may state that it was also part of the insured driver’s
evidence that he had intended parking on a parking space between two
vehicles. Whilst I do not fault the insured driver for his
erroneous
interpretation of the photograph; his evidence of collision does not
set out an intelligible explanation of the collision
and his
explanation for where he was going to park is left wanting. It is
also significant that he did not see other vehicles
that were in his
immediate vicinity at the time of the collision, including Mrs
Rudman’s vehicle and the plaintiff’s
motorcycle. In the
end I found him to be an unreliable witness.
The insured driver did not dispute,
during cross-examination, that he veered towards his right prior to
executing the left turn
towards the parking space. He also admitted
that he did not, prior to executing such a turn to the left, look in
the rear view
mirror and was not aware of the plaintiff’s
presence behind him at any stage prior to turning. On the evidence
before
me he had negligently created an impression that he could be
turning to the right and it is my view that other drivers were
entitled
to regulate their driving according to the impression he
had created. I am persuaded that there was a general duty on the
insured
driver to satisfy himself before making the left turn, that
it was safe for him to turn left, and that he had a specific
obligation
to do so because of the impression he had created, that
he might be turning to the right. He failed in this duty. The
insured
driver was therefore negligent in the manner in which he
drove the insured vehicle.
As to whether any negligence on the
part of the plaintiff was proved, the only evidence on the manner in
which the plaintiff drove
the motorcycle is that of Mrs Rudman’s
evidence. The submission by
Mr Jooste
who appeared on behalf
of the defendant was that the plaintiff had failed in his duty to
slow down and stop until the insured
driver, who had appeared
hesitant as to where he wanted to go, had cleared the road, before
attempting to overtake on the left
of the insured vehicle. I do
agree that whilst, Mrs Rudman’s evidence was that her
impression was that the insured driver
intended to go into Currie
Street, she also testified that she became uncertain as to where he
was going. I can only conclude
that the plaintiff, having observed
the course taken by the insured vehicle in front of him, would have
formed the same impression
as Mrs Rudman.
I do not agree,
however, that the obligation(s) on the plaintiff, as a driver,
towards the insured vehicle, were as unlimited
as
Mr
Jooste
submitted. The argument by
Mr
Jooste
was that insured driver always had a right to change his course of
travel for any reason and the plaintiff was obliged to stop
and wait
until the insured driver had cleared the way. It is trite law that
road users have a duty to act reasonably on the road.
Flowing from
this duty is an entitlement, by drivers, to assume that other
drivers will act also reasonably.
Klopper,
in
The
Law of Collisions in South Africa
5
,
to
which Mr Nepgen referred me, explains the general duties and rights
of drivers on public roads follows:
“
Because
a driver is under a duty to act reasonably, he is entitled to expect
other road users to do the same. This principle translates
into
certain assumptions a driver of a motor vehicle is justified to make
when his duties and driving skills are considered. These
justified
assumptions are inherent in the process of establishing whether a
driver was negligent in not complying with the various
duties imposed
on a driver. However, the existence of justified assumptions does
not relieve a driver from the duty to appreciate
that other drivers
may act unreasonably and to provide for such a contingency by taking
all possible reasonable steps to avoid
a collision occasioned by
another driver’s unreasonable behaviour. A driver will be
negligent if the unreasonable conduct
is generally foreseeable and he
does not take reasonable preventative action to avoid a collision.
During
the course of time, certain justified assumptions which relate to
specific situations have been recognised. The assumptions
are that
other road users will:
Keep
left when using a road;
Signal
his intention to turn and will turn at an opportune moment and in a
reasonable manner;
Behave
reasonably when overtaking or being overtaken……”
With specific reference to overtaking
Regulation 298 of the Regulations promulgated in terms of the
National Road Traffic Act 93 of 1996
provides that:
“
Subject
to the provisions of subsections (2) and (4) and subregulation 296,
the driver of a vehicle intending to pass any other
vehicle
proceedings in the same direction on a public road shall pass to the
right thereof at a safe distance and shall not again
drive on the
left side of the roadway until safely clear of the vehicle so passed:
Provided that, in the circumstances as aforesaid,
passing on the
left of such vehicle shall be permissible if the person driving the
passing vehicle can do so with safety to himself
and other traffic or
property which is or may be on such road and
the
vehicle being passed is turning to its right or the driver thereof
has signalled his or her intention of turning to his or
her right;
such
road is a public road in an urban area and-
is
restricted to vehicles moving in one direction; and
the
roadway is of sufficient width for two or more lines of moving
vehicles;
such
road is a public road in an urban area and the roadway is of
sufficient width for two or more lines of moving vehicles moving
in
each direction;
the
roadway of such road is restricted to vehicles moving in one
direction and is divided into traffic lanes by appropriate road
traffic signs; or
he
or she is driving in compliance with the directions of a traffic
officer or is driving in traffic which is under the general
direction of such officer, and in accordance with such direction:
Provided
further that in no event shall any passing referred to in paragraph
(a), (b), (c) or (d) be done by driving on the shoulders
of the
roadway or on the verge of the public road concerned.”
Drivers are also
entitled to assume that when they overtake a vehicle, the overtaken
vehicle will not deviate from its course.
6
It therefore seems to me that whilst
the plaintiff had a right to conclude, from the course in which the
insured vehicle was driven,
that it would be turning right into
Currie Street, there remained a duty on him to take into account
that the insured driver
might be an unreasonable driver. After all
on Mrs Rudman’s evidence, apart from driving obliquely across
the first lane
of the road, the insured driver exhibited uncertainty
as to his intentions and had not “signalled” an
intention to
make a right turn by using the vehicle indicators.
As it was
submitted on behalf of the plaintiff there is no evidence to support
the allegations of negligence on the part of the
plaintiff made by
the defendant in the plea.
Mr
Jooste
submitted that the plaintiff’s negligence can be inferred on
the principle of
res
ipsa loquitur
.
Klopper explains this principle as follows:
7
“
Res
ipsa loquitur
implies that the facts of the case indicate
negligence where the proven facts are the only available evidence.
Res
ipsa loquitur
does not create any presumption of negligence and
does not transfer the burden of proof. It is only an indication,
through the
proven facts, of the probabilities, which may justify or
support a finding of negligence on a balance of probabilities. In
order
for a party to rely on
res ipsa loquitur
sufficient
proof of the facts to justify the inference of negligence from the
proven facts has to be adduced. Where reliance is
placed on
res
ipsa loquitur
the plaintiff is bound to the facts alleged to have
been the cause of the accident. The rule does not apply where a
defendant
leads sufficient exonerating evidence, which makes the
inference of negligence against the defendant improbable.
Res
ipsa loquitur
can only operate where the only reasonable
inference that can be made from the directly proven facts is one of
negligence.”
My view is that although the evidence
is that the insured driver drove hesitantly, and the law imposes a
duty on drivers to be
mindful of “unreasonable drivers”,
that evidence
does not constitute proof that the plaintiff drove
his motorcycle negligently and that such negligence contributed to
the collision
. Mrs Rudman’s evidence that the plaintiff
drove “normally” does not, on its own, sustain a
finding of contributory
negligence on the part of the plaintiff.
In the context of no incidence of
negligence having been proved against the plaintiff I find no
justification for a negative inference
to be drawn from the
plaintiff’s failure to testify.
Consequently judgment is granted
against the defendant for:
100% of such damages as the plaintiff
may prove to have suffered as a result of the collision that
occurred on 20 June 2009;
the costs of trial; which costs shall
include the costs of the photographs contained in Exhibits A to E.
__________________________
N.
DAMBUZA
JUDGE
OF THE HIGH COURT
Appearances
:
For
plaintiff:
Adv
J Nepgen
Instructed
by
Le
Roux Inc of Port Elizabeth
For
defendant:
Adv
P Jooste
Instructed
by
Wilke
Weiss van Rooyen Inc of Port Elizabeth
1
Schwikkard. Van der Merwe; Principles of
Evidence; 2
nd
Ed; at 510.
2
1997 (4) SA 523
(Tk).
3
1950 (2) SA 460
(A) at 465.
4
At 102 of the record
5
7
th
Ed; at 72.
6
Klopper
(supra)
at
73.
7
Klopper
(supra)
at
78.