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[2019] ZAGPPHC 159
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Sivakumar v Bester (A519/2016) [2019] ZAGPPHC 159 (9 May 2019)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES
YES
/NO
(3)
REVISED
Case
No: A 519/2016
9/5/2019
In
the matter between:
Dharini
Sivakumar
Appellant
And
Thomas
William
Bester
Respondent
JUDGMENT
Maumela
J.
1.
This
is an appeal against a judgement of the honourable acting Judge
Thobane, delivered on the 23rd of July 2015. In the judgement
the
judge held the appellant liable to compensate the respondent for
damages incurred subsequent to a motor vehicle collision.
BACKGROUND.
2.
On
the 20
th
of April 2010 a collision took place between the respondent's vehicle
and the vehicle driven by the Appellant. The Respondent issued
summons against the Appellant claiming damages suffered as a result
of the collision. The Respondent claimed damages at an amount
of R
185 264.44. He contended that the damages to his motor vehicle were
caused by negligence on the part of the Appellant. The
Plaintiff, who
is an advocate, testified in his own case. He also called his son who
was a passenger in his vehicle on the day
of the incident. The
appellant instituted a counterclaim for R 73 545- 72 for the damage
to her vehicle. The appellant is a lecturer.
She testified in her own
case, but she called no witnesses.
3.
The
respondent alleged the following grounds of negligence in the
alternative on the basis of which he imputes liability against
the
appellant:
(a)
That the appellant
failed to keep a proper lookout;
(b). That the appellant drove at
an excessive speed;
(c).
That the appellant failed to apply her
brakes timeously alternatively effectively when it was reasonably
expected of her·
(d).
That the appellant failed to exercise
adequate alternatively proper control over the vehicle she was
driving; and
(e).
That the appellant failed to avoid a
collision when by the exercise of reasonable care and skill she could
and should have done
so.
4.
The parties agreed that there is
consensus between them concerning the following:
4.1.
Their respective
locus
standi
of the parties;
4.2.
The date, place and time of the
collision;
4.3.
The description of their respective
motor vehicles;
4.4.
Ownership of their respective vehicles;
4.5.
The direction in which their motor
vehicles were traveling when the collision occurred.
4.6.
That a map from Google Earth, which
depicts the scene of the collision at the intersection of Eastwood
and Arcadia Streets, Sunnyside,
entered as exhibit A, is a true
depiction of the area in which the accident occurred; and
4.7.
The quantum of damage to each respective
party's motor vehicle.
POINT
OF DISPUTE
5.
The
dispute between the parties is about who, between them is to blame
for the collision. Both parties allege negligence against
one
another. Both deny having been negligent. They both contend that the
other one is to blame for the collision.
6.
Pursuant
to trial proceedings before this court, the Honourable Acting Justice
Thobane granted an order holding the Appellant liable
to compensate
the Respondent for 80% of the damages agreed to between the parties.
Appellant was also ordered to pay the costs.
The Appellant filed her
application for leave to appeal on 14 August 2015 against the whole
judgement and the order handed down.
The Respondent opposed the
application for leave to appeal without any counter appeal. The court
a quo
dismissed
the Appellant's application for leave to appeal on 3rd of September
2015.
7.
The
Appellant petitioned the Supreme Court of Appeal. On the 4th of July
2016 the Appellant was granted leave to appeal to the Full
Court of
the Gauteng Division of the High Court, Pretoria. The costs order of
the court
a quo
in
dismissing the application for leave to appeal was also set aside. It
was ordered that the costs of the application for leave
to appeal in
this court and the court
a quo
shall
be costs in the appeal. It was also held that in the event where the
appellant does not proceed with the appeal, she shall
pay the costs.
8.
On
the 20
th
April 2010, the respondent set out to take his son to school at
Pretoria Boys High School. He stated that the traffic was at peak
level as he travelled in an East-Westerly direction along Arcadia
Street. He approached the intersection of Arcadia and Eastwood
Streets. He told court that the intersection is controlled by a stop
sign, only for vehicles traveling along Arcadia Street. He
stated
that as he approached the intersection, the vehicle ahead of him
stopped at the stop street.
9.
Quantum
was agreed. The parties agreed that the present proceedings be for
purposes of determining liability. It was further indicated
that the
Respondent had no specific interest in the matter as his claim was
settled by his insurers. Therefore, he was before court
on the basis
of subrogation.
10.
The Respondent testified that due to the
volume of traffic, motorists on Eastwood Street clear the
intersection from time to time
to allow vehicles traveling along
Arcadia Street to cross over or join the procession on Eastwood
Street. The vehicle ahead of
him was permitted lee-way, by those
travelling along Eastwood Street. He testified that he stopped at the
stop street and the vehicles
to his right and left, traveling on
Eastwood Street cleared the intersection to allow him to go through.
11.
The respondent further testified that
while he was crossing, a Toyota vehicle overtook vehicles which had
stopped to allow him to
pass through on their left hand side and
collided with his motor vehicle. The Toyota, driven by the appellant,
was traveling from
South to North on Eastwood Street. He stated that
the weather was clear on the day and the road surface dry. According
to him,
nothing obstructed his view. He stated however that he would
not have been able to see a vehicle overtaking the stationary
vehicles
on their left side.
12.
He pointed out that the stationary
vehicles allowed him leeway to pass through. These vehicles also
blocked his line of vision.
He said that the "nose" of his
vehicle was about three quarters of the way through on the North
bound lane, "the
empty lane", when the collision took
place. He further indicated that Eastwood Street is a single carriage
lane in both directions;
however the lanes are wide enough to
accommodate two vehicles on each side.
13.
After the collision he exchanged details
with the appellant who indicated that she will report the collision
to the police. At the
time he was under pressure to take his step-son
to school in time. For that reason, he arranged for the tow-truck to
take his step-son
to school. He testified that his motor vehicle was
damaged on the front left hand side ahead of the left front arch of
the fender.
He did not observe the damage on the Appellant's vehicle.
He denied that he did not stop at the stop street and that he drove
negligently
on the day.
14.
Under cross examination he denied that
his version of events on the day of the accident is motivated by his
endeavour to avoid premiums
for his vehicle insurance escalating in
the event where fault is attributed to him for the accident. He
testified that he was not
even conscious of such a consequence, i.e.
the escalation of his premiums as a result of his liability for the
accident. He disputed
that he stood to benefit. He stated that the
trial was a huge inconvenience to him. He conceded that Eastwood
Street was a broad
street, capable of accommodating two sets of motor
vehicles in each direction. He stated that traffic was heavy on the
day and
that as a result it was heavily backed up.
15.
The respondent stated further that due
to heavy volumes, the traffic formed two lanes at the intersection of
Francis Baard and Eastwood
streets. He agreed that motor vehicles
traveling on Eastwood Street had the right of way. He stated that
after he stopped at the
stop street, he proceeded slowly at a speed
of between 5 to 1Okm/h. he made the point that although he was
travelling at a snail's
pace, considerable damage was occasioned on
his vehicle because the Appellant's vehicle was traveling fast. He
said that he did
not see the defendant's vehicle dislodging from its
lane and thereafter proceeding to overtake other vehicles. He noticed
it shortly
before the collision when there was nothing he could do to
avoid the accident. He denied that the road surface was wet on the
day
in question and that it was drizzling. He conceded that the
defendant could not have been traveling at a speed of more than
50km/h.
He denied that he crossed the intersection traveling at about
50 to 60km/h. He argued that for him, under the circumstances to
travel at the speed suggested would have been sheer madness, much as
it would have been suicidal.
16.
The Appellant testified that the
respondent failed to stop when he should have at the crossroad. She
also alleged that the pace
at which the Respondent was driving was
overly fast. She told court that shortly before the collision, it
drizzled. She told court
that she is well familiar with the road at
the spot where the accident took place. However, she conceded that
she did not tell
the police at the scene that the respondent failed
to stop at the crossing. She told court that after the accident she
questioned
the respondent's manner of driving whereupon the
respondent told her that other drivers beckoned for him to enter the
crossing.
17.
The respondent denies the appellant's
allegations. His step son, Dillon Trafford Patterson testified
under oath. He told court
that at the time of the accident, he was 18
years of age and he witnessed the accident. He confirmed that the
traffic was backed
up all the way to the intersection at the time the
accident took place. He stated that a driver yielded in favour of his
stepfather.
This witness could not remember the number of lanes
provided on each side of the road. He corroborated the respondent's
version
to the effect that while his father drove slowly entering the
intersection, appellant's vehicle approached at a fast pace whereupon
it overtook stationary vehicles on the left side before it collided
with the vehicle his stepfather was driving.
18.
He told court that when his father
entered the intersection other drivers had beckoned, thereby allowing
his father lee-way to cross.
He was adamant that the appellant
overtook stationary vehicles from the left-hand side. He conceded
that in all practicality the
North-bound lane of Eastwood Street is
used as double lanes. He told court that the backed up vehicles
obscured the view of the
North bound lane. As a result, in order to
cross, his stepfather needed to be beckoned upon by other drivers
THE
TEST.
19.
It is trite that in civil suits, for the
plaintiff to succeed, he or she has to prove his or her case on the
balance of probabilities
[1]
.
This court is to determine whether or not the court
a
quo
was correct in finding against
the Appellant when it attributed the liability for the accident to
her, (the Appellant).
20.
The onus rested on the Respondent to
prove on a balance of probabilities the negligence of the Appellant.
As such, this court has
to decide whether on all the evidence, taking
into consideration probabilities and inferences the respondent
discharged the
onus
of
proof on a preponderance of probabilities.
21.
It is trite that in order to make this
determination the court has to consider the applicable test which is
about how a reasonable
driver would have acted under the same
specific conditions as those that prevailed at the time of the
collision this case. See
Minister of Defence v African Guarantee and
Indemnity Co Ltd
[2]
.
22.
In the case of Kruger v Coetzee
[3]
,
the court stated the following about negligence:
"For
the purposes of liability culpa arises if.'
(a).
A diligens paterfamilias in the
position of the defendant:
(i)
would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial loss
and
(ii)
would take
reasonable steps to guard against such occurrence; and
(b).
The defendant failed to take such
steps."
23.
The question in this case is whether or
not the Respondent fulfilled the required standard of proof when all
the evidence, circumstances
and conditions are considered.
EVALUATION.
24.
The court
a
quo
took note of the fact that the
versions of the Appellant and the Respondent are diametrically
opposed and therefore mutually exclusive
against one another. To that
end, the court a
quo
heeded
the pronouncements in the case of Stellenbosch Farmers' Winery Group
Ltd and Another v Martell
et cie
and
Others
[4]
.
25.
In that case the court stated that where
the versions of the parties are mutually exclusive to one another,
the following applies:
"To come
to
a
conclusion
on
a
disputed
issue
a
court
must make findings on:
(a). The
credibility of the various factual witnesses;
(b). Their
reliability; and
(c). The
probabilities.
Where it concerns (a), the
court's finding on the credibility of
a
particular
witness will depend on its impression about the veracity of the
witness. That in turn will depend on
a
variety of
subsidiary factors, not necessarily in order of importance such as:
(i)
The witness's
candour and demeanour in the witness box;
(ii)
His
bias, latent or blatant;
(iii).
Internal contradictions in his
evidence;
(iv).
External
contradictions with what was pleaded or put on his behalf, or with
established facts or with his own extra curial statement
or actions;
(v).
The probability or improbability
of particular aspects of his version; and
(vi).
The calibre and cogency of his
performance compared to that of other witnesses testifying about the
same incident or events.
As to (b), a witness'
reliability will depend, apart from the factors mentioned under (a)
(ii), (iv) and (v) above, on (i) the opportunities
he had to
experience and observe the event in question and (ii) the quality,
integrity and independence of his recall thereof.
As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of
the disputed issues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether
the party burdened with the
onus of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one,
occurs when a court's credibility
findings compel it in one direction and its evaluation of the general
probabilities in another.
The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail."
26.
The respondent's stepson testified
without contradicting himself. Except for minor details that are not
material, his account of
what happened leading up to, during and
after the collision corroborated the respondent's version of the
collision. His version
regarding the volume of traffic, the manner in
which each driver drove, the side of the road along which each of the
drivers drove
and the response of other road users to each of the two
drivers corroborated that of the Respondent. His version on the speed
at
which each of the drivers drove corroborated the respondent's
evidence on the same issues.
27.
In the case of National Employers
General Insurance v Jagers
[5]
Eksteen AJP expressed the following view concerning instances where
opposing versions are mutually destructive:
"It
seems to
me,
with
respect, that in any civil case,
as
in any criminal case, the onus can
ordinarily be discharged by adducing credible evidence to support the
case of the party on whom
the onus rests. In a civil case the onus is
obviously not as heavy
as
it
is in a criminal case, but nevertheless where the onus rests on the
plaintiff in the present case, and where there are two mutually
destructive stories, he can only succeed if he satisfied the court on
a preponderance of probabilities that his version is true
and
accurate and therefore accepted, and that the other version advanced
by the defendant is therefore false or mistaken and falls
to be
rejected. In deciding whether that evidence is true or not the courts
weigh up and test the plaintiff's allegations against
the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a consideration
of the
probabilities of the case and if the balance of probabilities favours
the plaintiff, then the court will accept his version
as
being true. If however, the
probabilities are evenly balanced in the sense that they do not
favour the plaintiff's
case
anymore
than they do the defendant, the plaintiff can only succeed if the
court nevertheless believes him and is satisfied that
his evidence is
true and that the defendant's version is false".
28.
The court
a
quo
evaluated all evidence tendered
by both sides. It dealt with the divergent versions of the parties
which were mutually destructive.
It employed the approach provided in
the cases of Stellenbosch Farmers' Winery Group Ltd and Another v
Martell
et cie
and
Others and National Employers General Insurance v Jagers
[6]
.
The court
a quo
found
that the version of the respondent is more plausible compared to that
of the appellant.
29.
The Respondent was corroborated by his
son in stating that he was transporting his son to school at the time
the collision happened.
This court found that the Respondent's
ability to observe all other vehicles using the same road as he could
have been limited
by the heavy traffic that had backed up leading to
the intersection where the collision took place. In his own version,
the Respondent
stated that he did not notice the Appellant's vehicle
until it was too late for him to avoid the collision.
30.
The Respondent told the court
a
quo
that other drivers yielded for
him to enter the intersection. As he entered, the Appellant's
vehicle, which was travelling at a
high speed, was also overtaking
other vehicles on their left, instead of their right side. Both
drivers told court that visibility
was clear.
31.
Our law provides that drivers who
overtake other vehicles have a duty to ensure that it is safe to do
so
[7]
.
Regulation 298 of the National Road Traffic Regulations provides that
overtaking must always be done on the right side unless
it is along a
dual carriageway. It is not contested that at the time of the
collision the Appellant was overtaking vehicles ahead
of her from
their left side. This conduct on the part of the appellant was
against Road Traffic Regulation 298. It was against
the law. It was
wrongful.
32.
At the same time, the Respondent told
the court
a quo
that
he did not notice Appellant's vehicle as it approached , driving at a
high speed on the left side of the vehicles it was overtaking.
The
Respondent's conduct in failing to notice the vehicle of the
Appellant, a fellow road user at the time, especially when the
Appellant in essence had the right of way, also fell short of the
manner in which a reasonable driver in the place and position
of the
Respondent would be expected to drive along a public road. It
contributed to the collision that took place.
33.
Our law provides that drivers along
public roads have a general duty to act reasonably. Such a driver is
expected to be able to foresee
several probabilities, situations
and occurrences
[8]
.
This duty to foresee applies to:
-
Stationary traffic,
-
Fast moving traffic; See Moosa v
Hessberg
[9]
,
-
Pedestrians,
-
Animals and
-
Obstructions.
34.
Taking into consideration the totality
of the circumstances obtaining as explained by both parties, the
Respondent was negligent
in failing to notice the Appellant's vehicle
as it approached at a high speed; albeit driving on the left side of
stationary vehicles
that it was overtaking. In that way the
Respondent also contributed to the collision. In my view, both
drivers contributed to the
collision. I find that the Court
a
quo
was wrong in concluding that the
liability is to be apportioned against the Appellant at an 80/20
proportion in favour of the Respondent.
In my view both drivers
contributed equally to the collision.
35.
For the above reasons, I conclude that
the appeal against the judgement of the court
a
quo
stands to succeed because the
conduct of the Respondent contributed equally to the collision. In
the result, the appeal against
the judgement and order by the court
a
quo,
delivered on the 23
rd
of July 2015, and the corresponding order on costs stands to succeed.
Consequently I propose that the following order be made:
ORDER.
1.
The appeal is upheld with costs.
2.
The order of the court
a
quo
is set aside and replaced with
the following order:
(a).
The
defendant is ordered to compensate the plaintiff for 50% of the
plaintiff's agreed damages.
(b).
The
defendant is ordered to pay the plaintiff's costs.
T.A.
Maumela.
Judge
of the High Court of South Africa.
I agree.
J.
Louw
Judge
of the High Court of South Africa.
I agree and it is so ordered.
L.M.
Malopa-Sethosa
Judge
of the High Court of South Africa.
[1]
See RAF v Mgweba 2005 (1) All SA 464 (SCA).
[2]
1943 AD 141
at page 150.
[3]
1966 (2) SA 428
(A) at page 430 E-F.
[4]
2003 (1) SA 11
(SCA) at page 141-15D .
[5]
1984 (4) SA 432
©, at page 440 D-G.
[6]
Supra
[7]
See H.B. Klapper: The Law of Collisions in South Africa: 81 Edition
, at page 66.
[8]
See H.B. Klapper supra, at page72 to 73.
[9]
1979
(3) SA 432
(T).