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[2011] ZASCA 124
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Van As v Road Accident Fund (346/10) [2011] ZASCA 124; 2012 (1) SA 387 (SCA) (7 September 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 346/10
In the matter between:
MATTHYS JOHANNES VAN AS
…...............................................
Appellant
and
ROAD ACCIDENT FUND
…........................................................
Respondent
Neutral citation:
Van As v Road Accident Fund
(346/10)
[2011] ZASCA 124
(7 September 2011)
Coram:
Cloete, Van Heerden, Bosielo and Seriti
JJA and Meer AJA
Heard:
17 August 2011
Delivered: 7 September 2011
Summary:
Negligence – motor vehicle
collision – whether the appellant’s conduct prior to the
collision constituted a potentially
dangerous situation and whether
the insured driver ought in the circumstances to have taken steps to
avoid a collision –
no grounds for interference with trial
court’s findings.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from:
Western Cape High Court (Cape
Town) (Allie J sitting as court of first instance):
The appeal is dismissed with costs.
___________________________________________________________
JUDGMENT
___________________________________________________________
MEER AJA (CLOETE, VAN HEERDEN, BOSIELO and SERITI JJA
concurring)
[1] This is an appeal against a judgment of Allie J,
sitting as court of first instance in the Western Cape High Court,
Cape Town,
in terms whereof it was held that the appellant’s
negligence was the sole cause of a motor vehicle collision. Leave to
appeal
to this court was granted by the court a quo.
[2] The appellant claimed damages resulting from
injuries he sustained in a motor collision which occurred on 24
February 2004 at
06h45. The appellant was driving a Mazda motor
vehicle, on the N2 highway between Heidelberg and Riversdale in the
Western Cape,
in the direction of Riversdale, when he collided with a
truck and tanker combination (‘the truck’), which was
being
driven in the opposite direction towards Heidelberg by the
insured driver, Mr Cornelius Wentzel. The collision occurred on the
appellant’s incorrect side of the road and on the insured
driver’s correct side. It is common cause that the appellant
was negligent.
[3] The appellant alleged that the insured driver had
been negligent in not taking steps to avoid the collision. The trial
proceeded
on the issue of liability only, the extent of the
appellant’s damages standing over for later determination.
[4] The issue on appeal is whether there was any
negligence on the part of the insured driver. In this regard, the
first enquiry
is whether the reasonable person in the insured
driver’s position would have considered that the appellant’s
conduct
prior to the collision constituted a potentially dangerous
situation, would have forseen the possibility of a collision and
would
have taken steps to guard against such occurrence.
[5] The only eye witness who was able to testify about
the potential danger presented by the appellant’s conduct, and
about
the subsequent collision, was the insured driver. The appellant
had sustained severe head injuries in the collision and was unable
to
testify. Two accident reconstruction experts also testified,
Professor Dreyer, for the appellant, and Mr Craig, for the
respondent.
The trial court accepted the insured driver’s
evidence and I am not persuaded that it erred in doing so.
[6] The insured driver testified that he was an
experienced driver of heavy vehicles. At the time of the collision he
was aged 58
and had held a heavy duty driver’s license for
approximately 35 years. He also had a certificate to transport
dangerous goods.
The truck he was driving on the day in question was
empty but had transported aircraft fuel, the vapour whereof could be
prone
to explosion when transported. According to a tachograph fitted
to the truck, he was travelling at approximately 70 km per hour
when
the vehicles collided.
[7] Wentzel described the events leading up to the
collision as follows. He had driven over the crest of a hill and was
travelling
downhill, the road curving gradually to the right.
Visibility was good and he could see ahead for a distance of two to
three kilometres.
The truck lights were on dim. When he first saw the
Mazda it was approximately a kilometre away. The appellant was
driving at a
reasonably fast speed in his correct lane. As the Mazda
came closer Wentzel observed that the appellant was fidgeting behind
him
and whilst he did so he looked backwards and forwards
intermittently in quick succession. The relevant excerpt from the
evidence
in chief about this activity reads as follows:
‘
[H]y het agter iets gedoen…dit het
gelyk of hy daar gekrap het.
…
En toe het hy vorentoe gekyk, asof hy nou
wou kyk of hy nog in die regte rigting beweeg. Toe het hy weer
agtertoe gekyk en weer
vorentoe.
...Hy het skuins gesit met sy arm...dwarsoor die stuurwiel…en
die linkerarm was hier agter tussen die sitplekke gewees.
...En terwyl hy dit doen, hoe het sy kar gery? Het hy na u toe gekom
of het hy reguit gery…
Nee, hy het reguit gery, hy is in sy baan gewees….’
[8] Wentzel could not estimate the distance between the
two vehicles when he observed the appellant’s conduct described
above.
He emphasised that, notwithstanding these activities, the
appellant kept the Mazda in its correct lane of travel and there was
no indication that he would move into Wentzel’s lane. Wentzel
assumed that the appellant had seen his large vehicle with its
lights
on and that the appellant would pass him safely.
[9] Then, according to Wentzel, due to the fact that he
was sitting approximately three metres high in the truck, he lost
sight
of the Mazda as it entered what he termed his ‘blind
spot’. Suddenly, he felt the impact of the Mazda against his
truck.
It collided with the right front and side of the truck. The
entire incident, he said, happened in a matter of a split second, and
so suddenly that there was no time for him to do anything, either
hoot, apply brakes or flick his lights. Wentzel added that as
the
situation prior to the collision had not appeared dangerous, there
would have been no reason for him to have taken such measures.
He
estimated that the Mazda was 10 to 20 metres away when it crossed
into his lane and that the collision took place one metre
into his
lane.
[10] Counsel for the appellant, correctly, did not seek
to argue that Wentzel had been negligent once the Mazda had crossed
the
middle line. The submission was that he had been negligent in not
taking precautions when a potentially dangerous situation began
unfolding before him.
[11] During thorough and vigorous cross-examination,
Wentzel was adamant that the appellant’s actions before the
collision
did not present a dangerous or potentially dangerous
situation. He was also adamant that, notwithstanding the appellant’s
actions just before the collision, the appellant had the Mazda in
proper control and there was no indication he would cross into
the
truck’s lane. Hence Wentzel did not see the necessity for
precautionary action. Wentzel said that as a driver who has
travelled
thousands of kilometres and encountered many drivers and situations
on the road, he did not consider the appellant’s
behaviour to
be unusual.
[12] From Wentzel’s evidence it is clear that he
became aware of the appellant’s activities before the collision
once
the Mazda was sufficiently close for him to observe the detail
of the appellant’s movements. It is also so that the
appellant’s
momentary backward glances were followed in quick
succession with forward glances to check that he was on course. Under
these circumstances
I am of the opinion that it was safe for Wentzel
to have assumed that the appellant had seen the truck with its lights
on, and
indeed there was no indication that he had not. The evidence
also makes it clear that, during the time of Wentzel’s
observation,
the appellant was in control of the Mazda, at all times
in his correct lane and crucially, that he gave no indication that he
would
deviate into Wentzel’s lane and collide with the truck.
According to Wentzel, he saw a vehicle under proper control. In the
circumstances, I am not persuaded that what Wentzel observed was a
potentially dangerous situation unfolding before him and that
he
ought to have foreseen the possibility of the appellant crossing into
his lane and colliding with the truck. Nor, I believe,
would the
reasonable person have forseen such a possibility.
[13] As was said by Corbett JA in
Santam
Insurance Co Ltd v Nkosi
1978 (2) SA 784
(A)
at 792 B-C:
‘…
the law recognises that life’s
possibilities are infinite and in general concerns itself only with
those possibilities of
harm to others which are sufficiently real or
immediate to cause the
diligens
paterfamilias
to take precautions
against their happening (see
Moubray v
Syfret
1935 AD 199
at 209-30;
Joffe
& Co Ltd v Hoskins and Another
1941
AD 431
at 451;
Kruger v Coetzee
1966 (3) SA 428
(A) at 430E-F; and compare remarks of Lord Oaksey in
Bolton v Stone
[1951] UKHL 2
;
1951
AC 850
at 863). And, in deciding whether precautionary action is
warranted, the
diligens paterfamilias
might have to weigh the seriousness of the harm should it occur,
against the chances of its happening.’
The
diligens paterfamilias
like Wentzel would not have read the situation as
potentially dangerous with real possibilities of harm, warranting
precautionary
action
1
.
Wentzel’s conduct thus did not fall short of what would have
been expected of the reasonable person in the prevailing
circumstances.
This being so, the situation was not one of potential
danger. There can in the circumstances be no finding of negligence on
the
part of the insured driver. Given this finding it is not
necessary for me to consider the expert evidence.
[14] The appeal is dismissed with costs.
__________________________
Y S Meer
Acting Judge of Appeal
APPEARANCES:
For
appellant: R D McClarty SC
Instructed
by:
Heyns
& Partners, Goodwood
Honey
Attorneys, Bloemfontein
For
respondent: R M Liddell
Instructed
by:
John
Riley Attorneys, Wynberg
Robert
Charles Inc, Cape Town
Horn
& Van Rensburg, Bloemfontein
1
See
also:
New Zealand Insurance Co Ltd v Karim
1963 (4) SA
872
(A) at 875F-H;
Marine & Trade Insurance Ltd v Singh
1980 (1) SA 5
(A) at 9E-H,
De Villiers v Minister of Post &
Telegraphs
1978 (4) SA 334
(E) at 338B-D.