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[2018] ZAECPEHC 26
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Abrahams v Afrika (2368/2009) [2018] ZAECPEHC 26 (26 June 2018)
IN
TH EHIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 2368 / 2009
Date
heard: 23 May 2018
Date
delivered: 26 June 2018
In
the matter between
SHAFEEKA
ABRAHAMS Plaintiff
And
FLYNN
AFRIKA Defendant
JUDGMENT
GOOSEN,
J.
[1]
The
plaintiff claims damages against the defendant arising from injuries
she sustained in a motor vehicle collision which occurred
on 11 May
2007. She was at the time a passenger in a motor vehicle driven by
the defendant. At the commencement of the trial a
separation of
issues, was ordered by agreement between the parties. The trial
therefore proceeded in relation to the liability
only based on the
alleged negligence of the defendant.
[2]
The
circumstances in which the collision occurred are essentially common
cause. The collision occurred at approximately 07h10 on
the R75 road
between Uitenhage and Port Elizabeth. The vehicle, a Citi Golf,
driven by the defendant, collided with the rear of
a stationary truck
on the eastbound side of the roadway. The roadway consists of three
lanes and an emergency lane. The truck was
stationary in the middle
lane, the lane in which the defendant drove his vehicle. It was also
common cause that the truck had come
to be stationary in that lane as
a result of it being involved in a collision with another vehicle.
[3]
In
the particulars of claim the plaintiff alleges that the defendant was
negligent in several respects. It is, for instance, alleged
that he
drove at an excessive speed in the circumstances; that he failed to
keep a proper lookout; that he failed to apply the
brakes of the
vehicle timeously or at all; and that he failed to take steps, which
he could have taken, to avoid causing the collision.
The defendant
denies that he was negligent. He pleads that he was confronted with a
sudden and unexpected emergency and that he
took all reasonable steps
to avoid the collision but that he could not.
[4]
The
plaintiff, as I have indicated, was a passenger in the vehicle. It is
accordingly necessary for her to prove only a degree of
negligence on
the part of the defendant in order to succeed. The plaintiff
testified and presented the evidence of Mr Phillip,
the driver of the
stationary truck. The defendant testified in his defence.
[5]
The
plaintiff said that she had been getting a lift to University with
the defendant since the beginning of that year. There were
three
passengers in the vehicle, all university friends. She was seated
behind the driver’s seat. They had left Uitenhage
at
approximately 7.00am. The weather was clear and fine and the road
surface was dry. The sun was still rising. It was however
low above
the horizon and it had a blinding effect whenever the road turned in
an easterly direction.
[6]
Ms
Abrahams explained that they were chatting in the car and that the
defendant was participating in the conversation. He looked
to his
left and behind him when he was talking. She was also looking around
inside the vehicle. She looked ahead and she saw nothing
in the road
which warned her of any hazard. She said that Mr Afrika was driving
fast. She conceded in cross-examination, however,
that he was
travelling at less than the speed limit which, on that section of the
road, is set at 120 km/h. She did not see the
stationary truck in the
roadway ahead. She only saw it when Mr Afrika slammed on the brakes
of the vehicle. Moments later the car
collided with the truck and she
was rendered unconscious.
[7]
Mr
Phillip, a heavy-duty truck driver with considerable experience, was
responsible for driving the stationary truck with which
the
defendant’s vehicle collided on the day. He stated that he had
been driving along that route for many years. He said
that he was
driving the truck in the middle lane. Although the speed limit on
that section of the road is 120 km/h, the generally
applicable speed
limit for a heavy duty truck is 80 km/h. He said he reduced his speed
to approximately 65 km/h because of the
conditions. These were that
the sun was rising low in the sky and that it was particularly bright
and had a blinding effect. He
said he was nevertheless able to see
ahead of him. There was little traffic. Two LDV vehicles had passed
him on the right. They
were travelling very fast and the rear vehicle
was following very close behind the front one. The front vehicle
slowed down and
the rear vehicle applied brakes to avoid a collision.
He explained that it swerved and then executed what he described as a
U-turn
in front of him in the middle lane. He applied the brakes of
the truck, but could not avoid colliding with the LDV vehicle that
was in his lane. He brought the truck to a halt in the middle lane,
switched on the hazard lights and got out of the truck to inspect
the
damage. He told his assistant to take the “warning triangles”
and to place them behind the truck. He then telephoned
the police.
While attending to this and before his colleague had placed the
warning-signs, he heard a very loud bang. This was
the sound of the
Citi Golf colliding with the rear of his truck.
[8]
When
asked about the effect of the sun on visibility, he said that it was
blinding but not such that it might cause a collision.
He conceded
however that given the raised height of the truck the effect of the
sun’s glare may not be the same as it would
be in a motor
vehicle.
[9]
When
asked to estimate the distance that he could see ahead, he said that
it was about 100 m. As to the time between him bringing
his truck to
a halt and the collision from the rear, he said it was very short –
“possibly less than 2 minutes”.
The evidence was that he
immediately had sent his colleague to place the hazard signals behind
the truck but that his colleague
had not yet deployed them by the
time the collision occurred.
[10]
The
defendant stated that he was driving his vehicle in the middle lane.
He was travelling between 100 and 110 km/h. He stated that
he was
familiar with the road, having travelled it to university for several
months. The sun was low in the sky and he said it
had a blinding
effect when driving directly in an easterly direction. He was aware
of other vehicles on the road, both to his left
and right. He said
that he saw the truck ahead of him on the roadway, although he could
not say how far away it was when he first
saw it. He stated that
visibility, because of the blinding effect of the sun, was between 50
and100 m. He explained that he was
about 15 m from the truck when he
realised that it was stationary. He did not see hazard lights,
although he accepted that they
may have been on. On realising that
the truck was stationary he glanced left and right in his rearview
mirror; realised he could
not change lanes, and then applied the
brakes of the vehicle hard hoping to avoid the collision. It was
common cause that the brake
marks on the road surface extended for 30
m.
[11]
In
cross-examination it was put to him that the plaintiff’s
evidence was that he had participated in the conversation and
that he
had turned to look at others in the car. He denied this, saying that
he did not recall being distracted before the collision.
When asked
why his counsel had not challenged the evidence, he said he did not
know that he could draw such things to counsel’s
attention.
When challenged as to the steps taken to avoid the collision. He said
that he did not believe that he had had any chance.
He could not
change lanes because of the risk of colliding with other vehicles. He
therefore braked hoping to avoid colliding with
the truck.
[12]
A
driver of a vehicle which collides with the rear of another vehicle
is
prima
facie
negligent, unless he or she can give some explanation which negatives
the inference of negligence. The defendant’s pleaded
case was
that his vision of the road ahead was impaired as a result of the
blinding effect of the sun and that he was confronted
by a sudden and
unexpected emergency, being the stationary truck in his path of
travel.
[13]
It
is however to be expected of the driver of a vehicle whose vision
ahead is impaired by the blinding effect of the headlights
of an
oncoming vehicle, or for that matter the blinding effect of sunlight,
to reduce the speed of his vehicle to enable him to
bring it to a
halt within the range of his vision. A failure to do so will support
an inference of negligence on his part (see
Flanders
and Another v Trans Zambezi Express (Pty) Ltd and Another
2009 (4) SA 192
(SCA) at 199E-200B).
[14]
In
this instance the evidence of the plaintiff, that of Mr Philip, and
that of the defendant was to the effect that the R75 meanders
in a
generally easterly direction and that at points along the road, when
the road turns more directly east, the sunrise had a
blinding effect.
The defendant was aware of this, having driven the road at that time
over many months. He was aware of the blinding
effect that the sun
had on that day. Indeed the evidence of Phillip, who was also
familiar with that stretch of road, was that
the conditions were such
as to cause him to reduce his speed. The defendant testified that he
was driving at a speed slightly less
than the speed limit. His
evidence was however that he maintained a steady speed. Although it
was put to the plaintiff on defendant’s
behalf that he had
reduced his speed because of the blinding effect of the sunlight, the
defendant did not testify to this effect.
The defendant was
accordingly in a position of a driver who was aware of the
potentially blinding effect of the sunlight at points
during the
journey. The potentially blinding effect was therefore not unexpected
(cf.
Pienaar
and Another v Commercial Union Assurance Company of SA Limited
1969 (3) SA 61
(T)).
[15]
The
defendant’s evidence was that he was aware of the truck on the
roadway ahead of him. He was unable to state how far the
truck was
ahead of him when he first became aware of it. He stated that he only
realised that the truck was stationary when he
was about 15 m away
from the truck. The objective admitted facts however suggest that he
must have been further away from the truck
since the brake marks on
the road surface were 30 m in length. It should also be borne in
mind, that Phillip brought the truck
to a halt immediately after it
had collided with the LDV vehicle; that he alighted from the truck
and went to inspect the damage
and then phoned the police. On this
evidence, which must be accepted, time (estimated by Phillip to have
been 2 minutes) must have
passed between the first collision and the
collision which involved the defendant’s vehicle. Even if it
accepted that the
time that passed was less than 2 minutes, it must
follow that the defendant’s vehicle was still a considerable
distance away
from the truck when the truck collision occurred. In
this regard it is to be borne in mind that the defendant stated that
he was
travelling at between 100 and 110km/h. If the time
between the collisions is reduced to one minute, the defendant’s
vehicle would have been in excess of 1½ kilometres from the
truck. If the defendant was aware of the truck ahead he would
also
have been aware that his vehicle was closing on the truck. Yet his
evidence is that he only realised that the truck was stationary
when
he was almost upon the truck. In my view the inference is inescapable
that the defendant was not keeping a proper lookout.
[16]
The
defendant’s explanation was that he was blinded by the sun. I
have already mentioned that his evidence did not establish
that he
reduced his speed because of the reduced visibility. A
reasonable driver would be expected to do so. In any event,
if it is
accepted that the sun had a blinding effect to the extent that the
defendant lost sight of the truck on the road ahead,
and therefore
was not aware that it had come to a halt, then it must be accepted
that the defendant continued to drive at the same
speed
notwithstanding the blinding effect of the sun. This too points to
negligence.
[17]
It
follows from what is set out above that I unable to find that the
defendant was confronted by a sudden and unexpected emergency.
All
the evidence points to the conclusion that he was, having regard to
the conditions, driving at an excessive speed in the circumstances
and that he failed to keep a proper lookout. In the circumstances the
defendant drove his motor vehicle in a manner that was negligent
and
such negligent driving was the cause of the collision.
[18]
In
the result the following order will issue.
1.
The
defendant is held liable to the plaintiff for such damages arising
from the motor vehicle collision which occurred on 11 May
2007, as
the plaintiff is able to prove.
2.
The
defendant is ordered to pay the costs of the action.
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Plaintiff
Adv.
L. A. Schubart SC
Instructed
by Heine Ungerer Attorneys
For
the Defendant
Mr.
Maher
Instructed
by Goldberg & Victor