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[2013] ZAECPEHC 9
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McKay v Road Accident Fund (19/12) [2013] ZAECPEHC 9 (19 February 2013)
IN THE
HIGH COURT OF SOUTH AFRICA NOT REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case No:
19/12
Date
Heard: 7 February 2013
Date
Delivered: 19 February 2013
In the
matter between:
GRAHAM
HAMILTON McKAY
.............................................................................
Plaintiff
and
ROAD ACCIDENT FUND
.................................................................................
Defendant
JUDGMENT
EKSTEEN
J:
[1] During the morning of 22 January 2007 a motor vehicle collision
occurred in Haupt Street, Sidwell, Port Elizabeth. The plaintiff
was
the driver of the vehicle (“the plaintiff’s vehicle”),
which came into collision with a Toyota Quantum Minibus
(“the
insured vehicle”) and he sustained severe bodily injury in and
as a result of the collision. He has instituted
an action for damages
against the defendant arising from these events.
[2] An order of separation of the “merits” and “quantum”
was previously made. Before me Mr
Schubart
, on behalf
of the plaintiff, and Mr
Smith
on behalf of the
defendant, advised me that they are in agreement that the only issue
which falls to be decided in the present
proceedings relates to the
causal negligence giving rise to the collision.
[3] The collision occurred in Haupt Street, a busy street in a
semi-industrial area of Port Elizabeth. The plaintiff, who is a
pig
farmer in the area of Rocklands, had a contract with Britos Bakery to
remove all stale bread held in stock each Monday morning.
The
plaintiff had accordingly proceeded to Britos Bakery and loaded his
one ton pickup truck with a considerable load of bread.
He emerged
from Britos Bakery which is situated in Haupt Street and proceeded
across the width of the pavement which was all of
14,9m. There is
some dispute on the evidence as to whether the plaintiff came to a
stop at the verge of the roadway, prior to entering
Haupt Street,
before proceeding to cross the roadway. It is common cause, however,
that the plaintiff proceeded into Haupt Street,
across the lane of
traffic for vehicles approaching from his right hand side, (herein
referred to as “the left hand lane”)
with the intention
of turning right into Haupt Street. He had crossed the entire left
hand lane and had partially crossed the centre
line when he heard the
sound of brakes and the insured vehicle collided with the right hand
front door of the plaintiff’s
vehicle causing it to overturn
onto its side.
[4] The plaintiff testified that he had loaded his vehicle with bread
at Britos Bakery when he proceeded out of the gate across
the tarred
pavement. He is adamant that he brought his truck to a stop at the
curb stone prior to entering the roadway of Haupt
Street. There, he
says, he looked to his right hand side and saw only a sedan vehicle
some distance away, which he estimated to
be approximately 100m from
him. He did not see the insured vehicle. Across the road, on the
opposite pavement, the plaintiff says
that he saw a woman walking
with a young child at her side. Approximately 10m behind them he
noted a man also walking on the pavement.
Having assessed the
position he considered it safe to proceed and moved forward across
the left hand lane which carries vehicles
approaching from his right
hand side and he commenced his turn to the right with his vehicle
already partially across the white
line. At that state, he says, he
noted the man on the pavement run forward. He assumed, so he says,
that the child had run into
the road in front of his vehicle,
although he never saw the child nor her mother in the road. He
immediately applied brakes abruptly
and brought his vehicle to a
stop. After he had stopped, so he testifies, the man stepped off the
pavement and fell onto the tarred
surface of the road in front of his
vehicle. As the man attempted to rise, he heard brakes and the impact
occurred. He did not
see the insured vehicle at any time.
[5] During cross-examination the plaintiff was presented with a
warning statement which he had made to the South African Police
Services in respect of the accident. In the statement he recorded
that he had proceeded forward into the road and that a child
had run
into the road which required him suddenly to apply brakes in order to
avoid colliding with the child. He admitted that
he had told the
police thereof but testified that he had conveyed this information to
the police some two days after the collision,
when he was still in
shock and he had at that stage assumed that the child had been in the
road. The statement was, however, only
signed on 1 February 2008. The
plaintiff acknowledges, as recorded earlier, that in fact he had
never seen a child in the road.
None of the other witnesses observed
any child in the roadway either and I think that it must be doubted
whether the plaintiff
ever stopped in the road prior to the
collision.
[6] Mr Roestof, like the plaintiff, farms in the area of Rocklands
outside of Port Elizabeth. He states that he was on his way
to the
Britos Bakery in Haupt Street to assist the plaintiff in removing the
bread in accordance with his contract. Mr Roestof
did not see the
collision. The significance of the evidence of Mr Roestof lies in the
observations which he made upon arrival at
the scene. He states that
upon arrival he found the plaintiff’s vehicle lying on its side
in the lane on the opposite side
of the road from Britos Bakery
(herein referred to as “the right hand lane”). He also
noted a Quantum vehicle stationary
on the same side of the road.
Black brake marks were embedded upon the tarred surface of the road
leading to the rear wheels of
the insured vehicle. He paced off the
brake marks and found them to be 24 paces in length. The one brake
mark, he says, commenced
approximately 250-500mm to the left of the
centre barrier line, proceeding across the barrier line and leading
up to the left hand
rear wheel of the insured vehicle. The other, he
says, commenced well onto the right hand side of the roadway and
proceeded for
a similar distance ending behind the rear right wheel
of the insured vehicle. The insured vehicle was damaged, he says, on
the
front panel between the headlights to the right hand side. The
damage to the plaintiff’s vehicle, which is depicted on
photographs
handed in in evidence, was on the right hand door.
[7] Mr Pokbas, the driver of the insured vehicle testified that he
was employed at the time with RAM Couriers and that he drove
the
insured vehicle, which belonged to RAM Couriers. He proceeded along
Haupt Street in the left hand lane approaching Britos Bakery.
The
road was not busy that morning and there were no vehicles travelling
in front of him as he approached Britos Bakery and he
noted that the
front of the plaintiff’s vehicle close to the curb stone on the
pavement to his left hand side. At this stage,
he says, that he was
already close to the entry to Britos Bakery, a distance which he
estimates at 15m. When he saw the plaintiff’s
vehicle he says
that he reduced speed marginally so as to observe that the
plaintiff’s vehicle would, as he anticipated,
come to a stop.
The plaintiff’s vehicle did not come to a stop and proceeded
into the roadway across his path of travel and
he applied his brakes
firmly.
[8] Pokbas states that he is unable to say at what speed he was
travelling but that he was provided by RAM Couriers with a printout
of the Tachograph which was fitted in his vehicle and which indicated
that he had been travelling at a speed of 63km/h at the time
of
impact. He has since mislaid this print-out. He states that he did
not swerve left, as he was afraid of hitting the curb stone
and
possibly colliding with vehicles parked on the pavement and he did
not swerve to the right hand side as there was an approaching
vehicle
in the right hand lane. There was nothing, he says, that he could do
to avoid the collision, which he states occurred in
the left hand
lane.
[9] He acknowledges that he would have left brake marks on the road
surface but he did not observe them himself. After the collision,
he
says that he had blood in his eyes and he could not observe the brake
marks on the road surface for that reason. He states that
the
paramedics, who had arrived in an ambulance, advised him not to open
his eyes as there might be shattered glass which could
damage his
eyes.
[10] In cross-examination the plaintiff was extensively taxed in
respect of the time of the collision. In his evidence in chief
he
estimated that the collision occurred between 9 and 10 o’clock
in the morning. In his statement made to the police he
had estimated
that the collision occurred at approximately 10h30. When taxed under
cross-examination in respect of the time, he
acknowledges the
contradictions and states that these are estimations and that he did
not have a watch with him. I do not think
that much turns on this
issue.
[11] He was cross-examined extensively in respect of his evidence
that the plaintiff’s vehicle did not come to a stop at
the
verge of the curb stone prior to entering the roadway. He was
referred to his evidence on oath during a prosecution in the
Magistrate’s Court where he had repeatedly stated that the
plaintiff’s vehicle was standing at the verge of the roadway.
In this court Pokbas persisted in his version that the vehicle had
not come to a complete stop and that the wheels were still moving,
although very very slowly. This, he says, he observed when he was, in
his estimation approximately 15m from the plaintiff’s
vehicle.
The reason for him only observing the plaintiff’s vehicle at
that stage was that the plaintiff’s vehicle had
been obscured
prior to that by other vehicles parked on the pavement to the left of
the roadway. In his evidence in the Magistrate’s
Court, on
oath, however, when asked why he had only observed the plaintiff’s
vehicle at that stage, he responded:
“
When I
was at the driveway that is when I opened my eyes. I was at the
driveway. When I was close to the driveway then I saw it.”
Pokbas was at a loss to explain this evidence in the Magistrate’s
Court in this regard.
[12] Anton Manuel states that he was a pedestrian at the side of the
road on the morning in question. He states that he was on
way to work
and that the collision occurred early in the morning. Manuel states
that as he was approaching the entrance to Britos
Bakery he noted the
plaintiff’s vehicle emerge from the Britos Bakery across the
pavement blocking his path and he accordingly
stopped to wait for it
to pass. He states that the vehicle slowed down as it approached the
curb stone before entering the road
but did not come to a stop. The
plaintiff’s vehicle had its right hand indicator on as it
entered the road but he is unable
to give any estimation as to the
speed of the vehicle, save to say that it accelerated into Haupt
Street.
[13] After the plaintiff’s vehicle had proceeded into the
roadway Manuel continued along his way passing behind the plaintiff’s
vehicle and walking further up the pavement. He then heard the impact
behind him and on turning around noted that the insured vehicle
had
come into collision with the plaintiff’s vehicle.
[14] Manuel states that prior to the collision, and as he had
approached the entrance to Britos, he had turned around to look
behind him and had first seen the insured vehicle approach some
distance away. After the plaintiff’s vehicle had entered into
the roadway he again turned around and noted the insured vehicle, now
close to the plaintiff’s vehicle. Even at this stage,
however,
he did not anticipate that a collision would occur. He again looked
ahead of him and only upon hearing the impact did
he turn around for
the third time. He then noted the plaintiff’s vehicle lying on
its side and the insured vehicle stationary
on the road. He testifies
that both vehicles were in the left hand lane, being the lane of
travel of the insured vehicle. Under
cross-examination, however, when
asked about the brake marks observed by the witness Roestof, Manuel
states that he did not observe
the brake marks as they were under the
insured vehicle. He is accordingly unable to dispute the evidence of
Roestof and unable
to comment on the length of the brake marks or
their direction.
[15] Manuel was clearly incorrect as to the time of the collision
and, indeed, probably mistaken in his recall that he was on his
way
to work. In evidence in the criminal prosecution he conceded that the
collision occurred at approximately 10h00. I think it
can safely be
found that the plaintiff is correct in respect of the time of the
collision. Manuel’s evidence was also unsatisfactory
in a
number of other respects. He too stated repeatedly in his evidence in
the Magistrate’s Court that the plaintiff’s
vehicle was
stationary at the edge of the road before proceeding into the street,
a matter which he denied before me.
[16] In his pleadings the plaintiff alleges that the collision was
caused solely by the negligence of the insured driver. The defendant,
on the other hand, denies this contention and avers that the
collision was caused solely by the negligence of the plaintiff. The
onus to establish negligence on the part of the insured driver rests
upon the plaintiff. Similarly, the onus to establish negligence
on
the part of the plaintiff rests upon the defendant. Clearly this
onus, in each case, can only be discharged by adducing credible
evidence upon which it can be found, on a balance of probability,
that the relevant party had acted negligently in a respect giving
rise to the collision.
[17] I do not think that the disputes, such as they are, on the
evidence are material to the outcome of the matter. It is common
cause that the plaintiff emerged with a heavy laden vehicle from
Britos Bakery. He states that he had come to a stop at the verge
of
the road whilst the defendant’s witnesses are of the view that
he reduced speed to a snail’s pace before again accelerating
into the road. I would prefer to find, on the evidence before me that
the plaintiff did come to a stop. This concession was made
under oath
in the Magistrate’s Court by both Manuel and the insured
driver. Their denial of this fact in this Court is not
convincing.
Even if I am wrong in this regard, I do not think that it would make
any difference to the outcome of the matter. The
plaintiff, in
proceeding to cross the path of travel of vehicles approaching from
his right hand side was embarking upon an inherently
dangerous
manoeuvre. It was incumbent upon the plaintiff to insure when moving
into the road that it was opportune for him to do
so at that time,
and that he could do so with safety. The drivers proceeding in the
left hand lane along Haupt Street, as the insured
driver was, are
entitled, unless or until put upon their guard, to assume that
driver’s in the position of the plaintiff
will not enter into
the roadway in the face of oncoming traffic. (Compare in this regard
Aboubaker v Haliday
1955 (2) SA 633
(CPD).)
[18] The essential issue to be determined in this matter is
accordingly where the insured vehicle was at the time when the
insured
driver ought to have realised that the plaintiff intended to
enter onto the roadway across the line of travel of the insured
vehicle,
and what effective steps could he have been expected to take
at that time or thereafter to avoid the collision. The insured driver
ought, in my view, to have realised that the plaintiff’s
vehicle may enter into the road in front of him when the plaintiff
pulled away, after stopping at the verge, or, if he did not stop,
when he began to accelerate towards the road. It is only at that
time
that the insured driver would be obliged to take evasive measures to
avoid the accident.
[19] The plaintiff did not see the insured vehicle at all before
entering into the road. He is accordingly unable to cast any light
on
the position of the insured vehicle at the time that he entered into
the roadway. The insured driver states that he was already
very close
to the entrance of Britos Bakery when he observed the plaintiff’s
vehicle still on the pavement. At that stage
he states that the
plaintiff’s vehicle was moving very slowly and he thought that
the plaintiff’s vehicle would come
to a stop. Whether the
plaintiff’s vehicle was stationary or moving very slowly there
was no obligation at that stage upon
the insured driver to take
evasive action. The obligation arises, when it ought to become clear
to the insured driver, as a reasonable
man, that the plaintiff’s
vehicle does not intend to respect his right of way. The witness
Manuel states that when he first
turned around he saw the insured
vehicle approaching at a distance back in the position which he
identified with reference to a
Toyota Quantum vehicle parked on the
pavement as depicted on a photograph before court. At that time, he
says, the plaintiff’s
vehicle had begun to enter Haupt Street
and the front end of the vehicle was in the street with the rear on
the pavement. He did
not give any estimation as to this distance.
Neither party requested an inspection
in loco
to determine
this distance and no measurements have been agreed upon in respect of
the distance. The evidence of Manuel is of little
assistance in the
absence of some indication of the actual distance.
[20] Mr
Schubart
argues that I should find, on the
evidence, that the insured driver did not keep a proper lookout and
that he had travelled at a
speed excessive in the circumstances. He
states that the “admission” by the insured driver during
his evidence in the
Magistrate’s Court that he only “opened”
his eyes 15m from the scene of the accident is indicative thereof
that
he had failed to keep a proper lookout. At face value there is
some force in this argument, however, on the evidence of the insured
driver, when he did see the vehicle of the plaintiff it was
travelling very slowly towards the edge of the roadway and there was
no indication at that stage that the plaintiff would enter the
roadway. I think, however, that I am bound to accept, as recorded
before, that the plaintiff had in fact come to a complete stop at the
edge of the roadway prior to entering Haupt Street. Either
way, when
the insured driver did see the vehicle there was no reason to take
evasive action yet. To the extent, therefore, that
the evidence
establishes that the insured driver did not keep a proper lookout
prior to that, such negligence cannot be said to
have contributed to
the causation of the accident.
[21] Mr
Schubart’s
argument that the insured
driver was travelling at a speed excessive in the circumstances
proceeds by reference to the length of
the brake marks found upon the
roadway. I do not think that there is any reason to doubt the
correctness of the evidence of Roestof
in respect of the brake marks.
I do not however, think that I can find on the strength thereof that
the insured driver was travelling
at a speed excessive in the
circumstances. In
Road Accident Fund v Mgweba
2005 (1)
All SA 646
(A) at 651c-g Erasmus AJA stated:
“…
The
trial court, as well as the full court, simply assumed that the
length of these marks constituted evidence that Bailey was travelling
at a speed in excess of 50-60 kph. In doing so, with respect, they
indulged in accident reconstruction without the benefit of expert
evidence. Accident reconstruction is a branch of dynamics requiring
special knowledge in the discipline of physics. A court may
venture
into that field but only at a level that can properly be said to be a
matter of common sense falling within common human
experience. It is
often a fine line (and frequently a debatable one) that separates
unacceptable conjecture from acceptable deductive
reasoning based on
proven physical facts.
[17]
A court could, in my view, take cognisance of the fact that skid
marks are caused by the wheels of the motor vehicle locking
in the
application of its brakes. It is, further, a matter of basic and
obvious logic that there is some correlation between the
length of
the marks and the speed at which the vehicle was travelling when the
skidding commenced: the higher the velocity, the
longer the marks
will be. However, calculating the speed of the vehicle from the
length of the skid marks is beyond the ability
of the non-expert that
is the court. That calculation will require evidence regarding the
stopping distance of the particular vehicle
at a given speed in the
particular physical circumstances. In this case, there was no
evidence regarding the facts relevant to
that computation, nor of the
mathematical formula based on such information. In the circumstances,
the fact that the insured vehicle
left skid marks of 9-10 meters does
not have the precise probative value placed upon it by the trial
court; and the court
a quo
followed it into that error.”
[22] In the present case the brake marks, were on the evidence of
Roestof, 24 strides. No indication arises from the evidence as
to the
length of Roestof’s paces. This was not pursued either in his
evidence in chief or in cross-examination. In the matter
of
Road
Accident Fund v Mgweba
supra
, the length of the skid
marks were measured by a police official to be 16 paces. Erasmus AJA
dealt with this evidence as follows
at 648g:
‘
[6]
Jacobs paced off the distances himself. A pace is of course a
relative measurement, and he was asked to indicate the length
of his
stride. This was agreed upon as being “just a bit more than
half a metre”. On that basis, the skid marks of
16 paces on the
diagram were 9 to 10 metres in length.’
[23] It seems to me without an indication of the length of Roestof’s
paces the conclusion, based on the brake marks, that
the insured
driver was travelling at a speed excessive in the circumstances,
becomes extremely tenuous. In any event, in the absence
of expert
evidence I do not think that the conclusion is justified.
[24] It is common cause that the plaintiff proceeded across the line
of travel of the insured driver, however, there is some dispute
as to
the progress which he ultimately made. The insured driver states that
the collision occurred on the left hand side of the
road and that he
was unable to swerve either left or right. He simply applied his
brakes. Manuel supports the insured driver in
this observation. I
recorded earlier, however, that there is no basis upon which the
evidence of Roestof as to his observations
of the brake marks could
be contested. Neither Manuel nor the insured driver were in a
position to dispute the observation to which
he testified. I find
accordingly that the brake marks did extend from approximately the
middle of the road onto the right hand
side of the roadway. On this
evidence it must accordingly be accepted that the insured driver did
swerve to his right hand side.
I think that this is the normal
reaction for any human being faced with the danger emanating from his
left hand side and proceeding
across his path of travel, as the
plaintiff’s vehicle did. It accordingly accords, in my view,
with the probabilities.
[25] Mr
Schubart
argues, on an acceptance of the point
of impact on the insured’s driver’s incorrect side of the
road, that there was
sufficient room for the insured driver to have
passed safely behind the plaintiff’s vehicle without swerving
to his right
hand side. He argues further, on an acceptance of the
plaintiff’s evidence, that plaintiff’s vehicle had been
stationary
in that position for a number of seconds prior to impact
and that the insured driver would have had ample opportunity to pass
behind
the plaintiff’s vehicle. In view of my finding that the
collision occurred on the right hand lane I am satisfied that there
was indeed sufficient space in the left hand lane for the insured
vehicle to pass behind the plaintiff’s vehicle. Was the
insured
driver then negligent in failing to do so?
[26] Neither Manuel nor the insured driver ever saw a child in the
road nor a pedestrian falling in front of the plaintiff’s
vehicle. On the plaintiff’s own evidence he never saw a child
in the road in front of him. I think in the circumstances that
it is
doubtful that the plaintiff had come to a stop prior to the
collision. There would have been no reason to do so. If he had,
it
could have only have been moments prior to impact. Had he been
stationary on the right hand side for any appreciable time it
seems
to me inexplicable that the insured driver would have swerved to his
right hand side as he clearly did. Moreover, the insured
driver
denies that the plaintiff’s vehicle was stationary at the time
of impact. In considering the conflicting versions
on this aspect in
the light of the probabilities, I do not think that the evidence of
the plaintiff can be accepted.
[27] Has it then been proved that the insured driver was negligent in
swerving to his right hand side? The insured driver was confronted
with an unexpected danger when the plaintiff’s vehicle moved
from a stationary position on the pavement into Haupt Street
directly
into the path of travel of the insured driver. It may well be that he
may have acted differently had he had more time
at his disposal. I do
not think, however, that the insured driver should be penalised for
not having swerved to his left hand side
in these circumstances. In
Rex v Phillips
1949 (2) SA 671
at 677 (OPD) Horwitz J
stated:
‘
Appellant
acted in this emergency as best he could and, even if his reaction to
the complainant’s negligence may have been
mistaken or not
wisely taken,
“
he is
not contributorily negligent if, on the spur of the moment, or by
mistake, he does something which caused the very collision
he is
anxious to avoid.”
(Mazengarb:
Negligence on the
Highway
, p. 123)’
I think
that this dictum is equally apposite in this case.
[28] In all the circumstances I do not think that the plaintiff has
discharged the onus to prove negligence on the part of the
insured
driver giving rise to the collision.
[29] In the circumstances the plaintiff’s claim is dismissed
with costs.
J W EKSTEEN
JUDGE OF THE HIGH COURT
Appearances:
For Plaintiff:
Adv L Schubart SC instructed by Heine Ungerer
Attorneys, Port Elizabeth
For Defendant:
Adv D Smith instructed by Ketse Nonkwelo
Attorneys, Port Elizabeth