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[2011] ZASCA 225
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Biddlecombe v Road Accident Fund (797/10) [2011] ZASCA 225 (30 November 2011)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 797/10
In the matter between:
JAMES D BIDDLECOMBE
…..........................................................
Appellant
and
ROAD ACCIDENT FUND
…..........................................................
Respondent
Neutral citation:
Biddlecombe v Road Accident
Fund
(797/10)
[2011] ZASCA 225
( November 2011)
Coram:
HEHER, MALAN and WALLIS JJA.
Heard
:
22 November 2011
Delivered
: 30
November 2011
Summary: Motor collision at robot controlled
intersection – approach to evidence – apportionment of
blame.
ORDER
On appeal from:
South Gauteng High Court,
Johannesburg (Maluleke J sitting as court of first instance) it is
ordered that:
The appeal is dismissed with costs.
JUDGMENT
WALLIS JA (HEHER and MALAN JJA concurring)
[1] Shortly after 10 am on Sunday 6 April 2008 a
collision occurred at the robot-controlled intersection of Malibongwe
Drive and
River Road, Randburg, between a 750 cc Suzuki motorbike
being ridden by the appellant, Mr James Biddlecombe, and a 12
ton
MAN truck, laden with tiles, being driven by Mr T P Motaung.
Unfortunately Mr Biddlecombe’s motorbike burst into flames on
impact with the truck and he suffered serious burn injuries. In his
claim against the Road Accident Fund (the Fund) his damages
were
agreed at R14 million plus his medical costs. In the trial court
Maluleke J apportioned blame for the collision equally, with
the
result that Mr Biddlecombe would be entitled to recover half of the
agreed damages and half of is medical costs. This appeal
by him, with
the leave of the trial court, is against that apportionment. There is
no cross-appeal by the Fund.
[2] Malibongwe Drive is a major arterial road with a
dual carriageway carrying north and southbound traffic in the
vicinity of its
intersection with River Road. There are two
demarcated lanes in each carriageway and the carriageways are
separated by a traffic
island. The road is straight with a very
slight upward inclination towards the north. Visibility in a
northerly direction from
the traffic lights at River Road extends for
some 312 metres. The intersection is a substantial one where the road
widens to provide
lanes for traffic from both directions in
Malibongwe Drive to filter left into River Road and similarly to
allow traffic to filter
left from both directions in River Road into
Malibongwe Drive. At the intersection there are also additional
demarcated lanes in
both north and southbound carriageways for
traffic wishing to turn right from Malibongwe Drive into River Road
across the face
of oncoming traffic. Each lane in Malibongwe Drive is
approximately 3.5 metres wide. Between the ends of the two traffic
islands
the intersection is 21 metres wide, with the stop lines for
traffic being set back a little over three metres on both sides of
the intersection.
[3] The day of the accident was sunny, the road was dry
and visibility was excellent. The traffic lights at the intersection
were
in working order. The sequence in which they functioned is
relevant. Starting from a position where they are red for traffic
travelling
in either direction in Malibongwe Drive, there is first a
flashing green turning arrow (referred to in evidence as a leading
arrow)
to enable vehicles coming from either direction to turn right
into River Road. Through traffic faces a red light during this
period.
After thirteen seconds the green turning arrow is replaced by
an amber arrow and after a further four seconds that disappears.
There is then an interval of two seconds after which the lights for
through traffic in both directions change to green and remain
green
for 24 seconds. During this period there is no turning arrow for
traffic to turn right into River Drive. Vehicles wishing
to do so and
turn across oncoming traffic may, however, turn when it is safe for
them to do so. The lights in both directions then
turn amber for five
seconds and then red.
[4] Mr Biddlecombe was returning home after meeting some
motorcycling friends and travelling south in the lane adjacent to the
traffic
island. His version was as follows. As he approached the
intersection the lights were green in his favour. When he was about
150
metres away, he saw Mr Motaung’s truck stop in the turning
lane for traffic from the south wishing to turn right into River
Road. He says that he was travelling at between 60 and 70 kilometres
per hour (kph), well within the speed limit of 80 kph. He
assumed
that, as the truck had stopped, its driver had seen him and, as the
lights were in his favour, he proceeded on the basis
that he would
drive straight through the intersection. When he was about 50 metres
away, the truck pulled off and turned in front
of him. He braked,
using his rear brakes only, as he had been taught, but this was
insufficient to avoid a collision. As a result
of his braking the
motorbike skidded and left a skid mark, some 34 metres long, on the
surface of the road. He has no recollection
of the accident itself,
only of its aftermath when he was trapped under the motorbike, which
had caught fire.
[5] As one would expect, Mr Motaung’s version of
the accident corresponded in some respects with that of Mr
Biddlecombe and
differed in others. He agrees that he approached the
intersection from the south and stopped in the turning lane.
According to
him he did so because the turning arrow, which had been
green as he approached, had turned off and so he was not entitled to
turn
across oncoming traffic until it was safe to do so. He intended
to turn right into River Road in order to fill up at a nearby service
station. He says that three vehicles travelling south went through
the intersection while he was waiting there, the last one as
the
lights turned red.
1
At this point he pulled off to complete his right turn
and clear the intersection. He had seen Mr Biddlecombe’s
motorbike
when it was about one hundred metres away and thought that
it was slowing down and would stop. He had almost completed his turn
and the cab of his vehicle was across the furthest lane of the
southbound carriageway when Mr Biddlecombe’s motorbike collided
with his vehicle in the vicinity of the rear wheels. He was alerted
to the collision by the flames from the fire.
[6] Apart from Mr Biddlecombe and Mr Motaung the only
eyewitness to the collision was Ms van Eeden, who was a passenger in
a Renault
Scenic motor vehicle travelling south in the lane behind
the motorbike, but separated from it by either two or three other
vehicles.
The trial judge did not find her a convincing witness. The
focus of much of the argument before us was on whether he erred in
this.
It was submitted that her evidence should have been accepted as
reinforcing the correctness of Mr Biddlecombe’s version
of
events and warranting the rejection of Mr Motaung’s
version. In particular it was contended that her evidence that
at the
time of the collision the traffic light was green for southbound
traffic should have been accepted and that this should
have been
decisive of the case. I will revert to her evidence in greater detail
in due course.
[7] Both parties called an expert witness, Mr Grobbelaar
for Mr Biddlecombe, and Mr Verster for the Fund. Before the
hearing
the experts met and prepared a joint minute of matters on
which they were agreed. In it they said that the collision occurred
because
the truck had turned right across the intersection in front
of the lane of travel of the motorbike. They were unable to express
any view on the state of the traffic lights at the time the truck
turned. They inferred from the skid mark that Mr Biddlecombe
had seen
the truck and attempted to avoid a collision by applying his brakes.
They agreed that when the brakes were applied the
motorbike was
travelling faster than 58 kph on the basis that otherwise, after
skidding for 34.1 metres, it would have come to
a halt before
colliding with the truck. In order to allow for reaction time they
accepted that Mr Biddlecombe must have seen the
truck and realised he
was in a situation of potential danger one to one and half seconds
prior to the application of his brakes.
Assuming a reaction time of
one second at 58 kph he must have become aware of danger when he was
approximately 50 metres from the
intersection. If one assumes a
slightly longer reaction time or a higher speed that distance
increases. In addition in their reports,
as explained in their oral
evidence, they gave figures on speeds and stopping distances that
were uncontroversial and unchallenged.
[8] The trial judge appreciated that there were mutually
destructive versions given by the eyewitnesses on the state of the
traffic
lights at the time of the collision. That raised the question
of the proper approach to such evidence in the light of the expert
evidence. Basing himself upon the decision in
Abdo
NO v Senator Insurance Company Limited
2
he said that he would provisionally assess whether Mr
Biddlecombe had discharged the onus of proving on a balance of
probabilities
that Mr Motaung had been negligent on the basis of the
eyewitness evidence, and then consider and take into account the
expert
evidence. In
Abdo
Kannemeyer
J said
3
that it was ‘convenient at the outset to consider
the approach to be adopted if one is faced with both expert evidence
and
the testimony of eye witnesses in a case such as this’. He
then went on as follows:
‘
In
Putzier v
Union and South West Africa Insurance Co. Limited
1973 ECD (unreported) ADDLESON J was faced with such a problem. The
decision in
Putzier’s
case
was reversed on appeal on the facts. The judgment of the Appellate
Division is also not reported but the approach adopted by
ADDLESON J
in the following terms is not questioned therein:
‘‘
Counsel did not refer
me to any authority dealing directly with the correct approach to a
dispute between the experts and the eyewitnesses.
It seems to me
however that unless the opinion of the experts is either
uncontroverted or incontrovertible, one should look first
at the
evidence of the eyewitnesses, if any. If such eyewitnesses are
unacceptable then naturally the Court is bound to decide,
if
possible, which of the opinions of the various experts is preferable
and to found its judgment on such opinion. On the other
hand, where a
choice can be made on a balance of probabilities and on accepted
principles between two sets of eyewitnesses, the
Court should first
make a provisional assessment of which of the versions of the
eyewitnesses is acceptable. Having provisionally
accepted one or
other version, the Court should then consider the
expert evidence and decide
whether that evidence displaces the provisional findings made on the
evidence of the eyewitnesses. In
this regard, where the
onus
is on the plaintiff and where
there is a dispute between the experts, it is my view that, if the
eyewitnesses favour the plaintiff,
the evidence of the defendant must
be shown to displace that of the plaintiff’s eyewitnesses; but,
if the eyewitnesses favour
the defendant, the plaintiff must show
that the evidence of his experts must be accepted in preference to
the experts and the eyewitnesses
for the defendant. If, at best, the
court is left in doubt as to whether the experts for the plaintiff
have advanced opinions preferable
to those of the defendant, then it
seems to me that the plaintiff has failed to displace the findings
made in respect of the eyewitnesses
and has consequently failed to
discharge the
onus
on him.”’
Kannemeyer J adopted that approach subject to a
qualification that ‘in the final result, a decision must be
reached on the
evidence as a whole and the above approach must be no
more than a convenient method of analysis of that evidence’.
[9] However helpful that approach might have been in
Putzier
and
Abdo
,
a matter on which I express no opinion, I share the view expressed in
Stacey v Kent
,
4
that ‘[i]t may be that the statements are too
general and that one should treat each case on its own merits’.
In every
case it is necessary for the trial judge to identify an
appropriate point at which to commence the analysis of the evidence.
In
some cases that may be the eyewitness evidence, but in others it
may be more appropriate to commence with the expert evidence. For
example there may be physical evidence, such as skid marks, collision
damage to the vehicles, the position of the vehicles after
the
collision or the location of debris that, when viewed in the light of
established scientific data, such as the distance that
a motor
vehicle will travel at a particular speed, provides a definitive
factual background against which to weigh the merits of
the
eyewitness accounts of what occurred. The evidence of the experts may
be of great assistance in understanding and giving appropriate
weight
to this evidence. In such a case, to start with the eyewitness
evidence and reach a provisional conclusion that the expert
evidence
must then ‘displace’ burdens the expert testimony with an
onus that is not warranted and separates into two
discrete enquiries
what is a single enquiry.
[10] This is not to say that the caution with which our
courts have always approached expert evidence on the mechanism by
which
motor accidents occur and their expressed preference for
eyewitness testimony is not on occasions justified. As Eksteen J said
in
Motor Vehicle Assurance Fund v Kenny
:
5
‘
Direct
or credible evidence of what happened in a collision, must, to my
mind, generally carry greater weight than the opinion of
an expert,
however experienced he may be, seeking to reconstruct the events from
his experience and scientific training. Strange
things often happen
in a collision and, where two vehicles approaching each other from
opposite directions collide, it is practically
impossible for anyone
involved in the collision to give a minute and detailed description
of the combined speed of the vehicles
at the moment of impact, the
angle of contact or of the subsequent lateral or forward movements of
the vehicles.’
The expert tasked with reconstructing what occurred is
often dependent for the reconstruction not simply on the application
of scientific
principle to accurate data but on calculations based on
imperfect human observation. The fact that the reconstruction rests
on
a potentially imperfect factual foundation is the reason for
caution in determining its evidential value.
6
However, whether that is so in any particular case will
depend upon an assessment of the degree to which it rests upon
ascertainable
and measurable facts and the application of scientific
principles to those facts. It is undesirable for a court to adopt an
a priori
approach to
its task of weighing eyewitness and expert testimony where the two
conflict.
[11] In the present case it is convenient to start by
considering some of the undisputed factual and expert evidence. That
evidence
was based primarily upon photographs and measurements taken
shortly after the accident and secondarily upon measurements and
calculations
performed by the experts at a later stage. The
photographs showed that the motorbike came to rest in the
intersection at a point
that was agreed to be some 15 to 17 metres
from the stop line for northbound traffic and therefore some 11 to 13
metres from the
stop line for southbound traffic. In other words it
occurred slightly to the northern side of the intersection. The
photographs
show that the motorbike came to rest more or less in
front of the lane in which Mr Biddlecombe said that he was travelling
prior
to the collision. Running northward from that point and
approximately in a straight line is the skid mark that was measured
at
34.1 metres. There are photographs of the truck showing that it is
a conventional horse and trailer, the latter having only a double
rear axle and two sets of rear wheels and no front wheels at the
point where it is supported by the horse. The photographs show
marks
on the foremost tyre at the rear of the trailer indicating that the
point of impact was about two to two and a half metres
from the rear
of the truck. That means that the cab and the bulk of the trailer had
already passed in front of Mr Biddlecombe’s
motorbike before
the collision occurred.
[12] If one pauses at this stage to compare this
evidence with that of Mr Biddlecombe and Mr Motaung, it shows that
the accident
occurred much as they described. It also shows that on
either version of the collision the trial court was correct to find
that
Mr Motaung was negligent in that he ‘moved rather
precipitately across the plaintiff’s lane of travel’. On
his
own version, even if the lights had changed and Mr Biddlecombe
should have stopped because the lights were red, he misjudged the
speed at which the latter was travelling, the distance he had to
cover and both his intentions and his ability to stop. If the
lights
were still green for southbound traffic that merely compounded the
problem, because he had no reason to think that Mr Biddlecombe
was
planning to stop at the intersection. Whilst it was permissible for
him to turn right in the face of oncoming traffic it was
not safe to
do so. Of course, if, contrary to his evidence, he simply did not see
the oncoming motorbike, he was equally negligent,
the only difference
being that the negligence consisted in his failure to keep a proper
lookout.
[13] That conclusion does not
necessarily assist Mr Biddlecombe’s case.
If one accepts
that he and Mr Motaung are correct in saying that the truck vehicle
was stationary at the intersection waiting to
turn right, that means
that the truck pulled off from a stationary position and crossed over
two and nearly three lanes of the
southbound carriageway before the
collision occurred. Bearing in mind that it was a fully laden
twelve-ton vehicle, somewhere between
ten and twelve metres long, and
that it travelled at least fifteen metres forward and nearly ten
metres across the intersection,
7
it must have been in and moving across the intersection for several
seconds prior to the collision. Such a vehicle is not capable
of
accelerating rapidly from a stationary position. Assuming in favour
of Mr Biddlecombe that it travelled at an average speed
of 20 kph,
8
it must have taken at least four to five seconds from the time it
started moving to the point where his motorbike collided with
it. In
that time at an average speed on his part of 40 kph he would have
travelled between 40 and 50 metres.
9
If the estimate of the truck’s speed is high then it was moving
into and across the intersection for longer than four to
five seconds
and Mr Biddlecombe would have been able to observe it for longer and
from a greater distance.
[14] Once those relatively simple calculations are done,
based on incontrovertible scientific data as to the time it takes for
a
vehicle to travel a known distance at a particular speed, one
reaches the inevitable conclusion that Mr Biddlecombe could see the
truck moving into and across his path of travel when he was at least
40 to 50 metres away from the intersection and, making full
allowance
for the width of the intersection, some 25 to 30 metres from the stop
line on the northern side. This is not harsh on
him because his own
evidence was that he saw the truck start moving when he was some 50
metres away from the intersection. But
then he is faced with the
unchallenged evidence of Mr Verster that at a speed of 60 kph he
should have been able to stop with normal
braking in about 18 metres
and using the rear brakes alone within about 28 metres. At a speed of
65 kph Mr Verster said these distances
became 20 metres and 33 metres
respectively.
[15] The inevitable question that arises from this is
why Mr Biddlecombe was unable to stop in the ordinary course, with
the application
of conventional braking, prior to colliding with the
truck. The day was clear and his visibility unimpeded. He was aware
of the
truck and the fact that it wished to turn right across the
face of oncoming southbound traffic in Malibongwe Drive. The only
possible
source of danger to him was if it started to do so before he
had passed it and cleared the intersection. He should therefore have
kept it under observation. On his own evidence as to the speed he was
travelling and the time when he observed the truck, he should
have
been able to stop without any particular problem before a collision
occurred. Only two possible reasons exist for his not
doing so. The
one is that he was travelling at a much greater speed than he said
and the other is that he was not keeping the truck
under proper
observation and only realised that it was moving much later than he
said. It is of course possible that it was a combination
of both
reasons.
[16] The conclusion from this is that Mr Biddlecombe was
himself negligent in one or other or both of the respects I have
mentioned.
Even if one accepts in his favour that the initial fault
lay with Mr Motaung, this is not a case of a vehicle suddenly
emerging
‘from nowhere’ in the parlance of many of those
involved in motor accidents. It is a situation of a vehicle that is
perfectly visible, and has been visible for some time, starting to
commence a manoeuvre that it was obvious to oncoming motorists
it
intended to undertake, and doing so in circumstances where an alert
motorist driving at a reasonable speed would have been able
to let it
pass in front of him without incident.
[17] These conclusions are entirely independent of the
state of the traffic lights at the time of the collision. If they
were green
for southbound traffic, then they were equally green for
northbound traffic and Mr Motaung was entitled to turn right across
the
oncoming traffic if it was safe to do so. Southbound traffic
should have been aware of this possibility and alert to the risk of
a
vehicle undertaking a turn, having misjudged the distance and speed
of oncoming vehicles, and creating the potential for a collision.
Drivers of southbound vehicles could not proceed on the blithe
assumption that such an event would not happen, as it is one of
the
ordinary risks of everyday driving. In a perfect world it would not
happen, but experience teaches us that it does. If the
traffic lights
had changed to red, as Mr Motaung said they had, the position is
reversed. It was perfectly proper for him to expect
to be able to
proceed to complete his turn before traffic in River Drive could
proceed, but he could not simply assume that traffic
in Malibongwe
Drive would stop to enable him to do so. The phenomenon of vehicles
speeding up to try and go through traffic lights
as they change from
green to amber and amber to red is sufficiently commonplace for any
driver in Mr Motaung’s position to
recognise it as a risk and
guard against it.
[18] If it were necessary to choose between Mr
Biddlecombe and Mr Motaung as to the state of the traffic lights at
the time of the
collision I do not think it would be possible to do
so and I think that the trial court was correct not to do so. The
judge found
Mr Motaung to be ‘a particularly candid, credible
and truthful witness’. There is nothing to refute that finding
and
it must be afforded the respect that appellate courts always
afford to trial courts on matters of credibility. That is not to say
that Mr Biddlecombe was an unsatisfactory witness. No such finding
was or can be made. It simply means that the court was unable
to
choose between them in the sense of preferring the version of the one
to that of the other on the basis of the inherent probabilities.
[19] That brings me to Ms van Eeden’s evidence.
She said that she and friends or family were on their way to the Rand
Show.
They were in a Renault Scenic, a small vehicle of the type
popularly referred to as a ‘people carrier’. It is about
the same size as a mid-range saloon car with a bench seat in the rear
and a small rear-opening boot. It sits slightly higher off
the ground
than the average saloon car, but a person sitting in one by no means
enjoys the position of vantage of a passenger in
a sports utility
vehicle, of which there are many on our roads, or in the ever-present
taxis in which most of South Africa’s
working population
travels on a daily basis. There were five adults and two children in
the car, with Ms van Eeden occupying the
centre of the back seat.
[20] Ms van Eeden said that the Renault Scenic was
travelling in the same lane as the motorbike and separated from it by
two or
perhaps three other vehicles. Her evidence left the impression
that all these vehicles had been stationary at a traffic light
further
north in Malibongwe Drive and had set off together moving
fairly sedately towards River Drive. When the traffic lights at River
Drive came into view she said that they were red for southbound
traffic such as themselves, but when they were approximately 200
metres away they turned green in their favour. According to her this
caused all the cars to accelerate and her impression was that
the
motorbike accelerated somewhat faster than the cars. In regard to the
collision between the motorbike and the truck she had
little to say.
She became aware of the truck turning in front of the motorbike
immediately prior to the collision, but was not
conscious of what it
was doing prior to that. After the collision the motorbike burst into
flame and the vehicle she was in and
others in the southbound traffic
stopped on the southern side of the intersection and went to render
assistance. It is unclear
whether they first stopped on the northern
side of the intersection and then crossed over when it was safe for
them to do so, or
whether they drove past the scene of the collision
without stopping until they had crossed River Drive.
[21] The one thing about which Ms van Eeden was adamant
was that the lights had changed to green as they travelled down
towards
them and remained green in favour of southbound traffic up
until the time of the collision. It is correct that in this respect
her evidence accords with that of Mr Biddlecombe, but I cannot accept
that it provides a reason for disregarding the trial judge’s
favourable credibility findings in regard to Mr Motaung or that it
displaces any of the conclusions on negligence set out above,
which I
stress are not dependent upon the state of the traffic lights.
[22] It was submitted that for Ms van Eeden to be wrong
there must have been a conspiracy between her and Mr Biddlecombe to
mislead
the court in a dishonest fashion. That is incorrect. They
could both be wrong as a result of honest error on their part. Mr
Biddlecombe
only had a partial memory of events, which is quite
understandable given the trauma he suffered in consequence of his
injuries.
Turning to Ms van Eeden I have sufficiently described the
vehicle in which she was travelling and its situation on the road in
relation to the motorbike, with other vehicles in between obscuring
her view, for it to be apparent that she did not have an ideal
vantage point to observe matters. Nor was there any reason for her to
do so as a rear seat passenger in a small and somewhat crowded
motor
vehicle. The fact that she was unable to testify about the truck’s
movements prior to the accident suggests that her
attention cannot
have been entirely on the road. The court must bear in mind that in a
statement she provided to the Metro Police
Department some six weeks
after the collision it is clearly stated that the driver of the truck
drove into the intersection in
front of the motorbike without
stopping. Both the police report and Mr Grobbelaar’s expert
opinion were furnished on this
basis, but her evidence at the trial
did not support this. The trial court had to be alert to the risk
that, faced with the undeniable
fact that the collision occurred
because the truck had turned in front of the motorbike, a person
travelling behind the motorbike
and having been vaguely aware that
the traffic lights had been green, might not have noticed that they
had changed shortly before
the collision. What clearly focussed her
attention was the immediate prospect, when she saw the truck moving,
that there might
be a collision. Some significance should also be
attached to the fact that neither the driver nor the front seat
passenger in the
Renault Scenic were called as witnesses, when they
would presumably have been in a better position to have seen what
happened.
Weighing all this up it seems to me that the prospect of
honest error cannot be excluded. The argument based on a conspiracy
is
unsound.
[23] That leaves a conflict between the witnesses on
either side as to the state of the traffic lights. The trial court
was unable
to resolve that conflict and in my view there are no
probabilities either way that would enable us to disturb that
conclusion.
At the end of the day, however, this would only affect
the extent of the apportionment and not the question of negligence.
Whatever
the state of the traffic lights Mr Motaung should not have
sought to cross the intersection when he did. It was not safe to do
so in the light of the oncoming traffic. Equally, given the
uninterrupted visibility and the obvious presence of the truck
intending
to turn across into River Drive, Mr Biddlecombe should have
been alert to the risk that the truck might try to cross when it was
not safe to do so and been careful to ensure that if it did so he
would be able to bring his motorbike safely to a halt. As with
many
collisions there was fault on both sides. The trial judge apportioned
it equally and it was not submitted that there were
grounds for
interfering with the exercise of his discretion if his factual
findings were left undisturbed.
[24] In the result the appeal is dismissed with costs.
M
J D WALLIS
JUDGE OF APPEAL
Appearances
For appellant: J J Wessels SC
Instructed by:
Munro, Flowers & Vermaak, Johannesburg
Claude Reid Inc, Bloemfontein
For respondent: M Patel
Instructed
by:
De
Buys Human, Johannesburg
Symington
& De Kok, Bloemfontein.
1
This
refers to the lights for through traffic, which are synchronised in
the fashion described in paragraph 3. In other words
when they are
red for traffic travelling north they are also red for southbound
traffic.
2
Abdo
NO v Senator Insurance Company Limited
1983 (4) SA 721
(E) at
725D-F.
3
At
725E.
4
Stacey
v Kent
1992 (4) SA 495
(C) at 497C-E.
5
Motor
Vehicle Assurance Fund v Kenny
1984 (4) SA 432
(E) at 436H-I.
Followed in
Stacey v Kent
1995 (3) SA 344
(E) at 348-349.
6
In
Van Eck v Santam Insurance Company Limited
1996 (4) SA 1226
(C) at 1229 it was said that the expert evidence is ‘inevitably
based on reconstruction’.
7
According
to Mr Grobbelaar’s measurements the total width of the three
southbound lanes was 10.5 metres. The collision occurred
no more
than two to two and a half metres from the rear of a truck that was
some 12 metres long according to Mr Motaung. That
means that he was
correct in saying that when the collision occurred the front of his
cab was more or less fully across the left
hand lane for southbound
traffic.
8
This
is a very high estimate for a vehicle of that size moving from rest
up a very slight incline and turning at the same time.
At 20 kph a
vehicle covers slightly more than 5.5 metres per second.
9
On
his own version he was slowing down from 60 to 70 kph in consequence
of his sharp braking. The experts said that he was travelling
at 58
kph or faster when he applied his brakes.