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[2019] ZAFSHC 6
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Van der Merwe v MEC Public Works, Roads and Transport and Another (4617/2010) [2019] ZAFSHC 6 (28 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 4617/2010
In
the matter between:
JILLIAN-JOAN
VAN DER
MERWE
Plaintiff
and
MEC PUBLIC WORKS,
ROADS AND TRANSPORT
First
Defendant
PREMIER OF THE FREE
STATE
Second
Defendant
JUDGMENT
CORAM:
NAIDOO J
HEARD
ON:
4-7 DECEMBER 2018
DELIVERED
ON:
28 FEBRUARY 2019
INTRODUCTION
[1]
In July 2009, the plaintiff, Jillian-Joan Van der Merwe, was a
healthy, active thirty seven year old woman in the prime of her
life.
She was a busy, working mother to 2 young children at the time, and
living with her parents and other family members at the
family’s
smallholding in Bloemfontein. In the late afternoon of 27 July
2009, the plaintiff was returning to Bloemfontein
after having
attended work-related meetings in Kimberley and Postmasburg in the
Northern Cape. She was driving on the road between
Dealesville and
Bloemfontein, when she was involved in a serious motor vehicle
accident which has left her paralysed and wheelchair–bound.
[2]
The MEC for Public Roads and Transport is the first defendant (first
defendant), and the Premier of the Free State, is the second
defendant (the second defendant), The plaintiff issued summons
against the first and second defendants, in which she claimed an
amount of R7 091 179.87 (Seven Million Ninety One Thousand One
Hundred and Seventy Nine Rand and Eighty Seven Cents) in damages,
together with interest thereon and costs of suit. The parties agreed
that the plaintiff need not have sued the second defendant
and, in
the interest of streamlining the matter, that the matter should be
regarded as proceeding between the plaintiff and first
defendant
only. The first defendant will, accordingly, hereafter be referred to
as the defendant. The parties also agreed to separate
the issues of
quantum and merits, and an application in this regard was granted by
the court, in terms of Uniform Rule 33(4). The
matter accordingly
proceeded only in respect of the merits. Adv J Mullins SC, with Adv J
Zietsman represented the plaintiff, and
Adv B Mene represented the
defendant.
THE
PLEADINGS
[3]
The plaintiff alleges in her summons that the accident was caused as
a result of the negligence of the defendant, which negligence
was a
breach of the duty of care owed by the defendant to members of the
public who use the provincial roads in the Free State
Province, and,
in particular, the road where the accident occurred, which is a
provincial road in the Free State. The duty of care
arose from the
responsibility of the defendant to take reasonable steps to monitor
and inspect the safety and condition of provincial
roads, and to
undertake reasonable, regular and routine maintenance of such roads
in order to ensure the reasonable safety of users
of the provincial
roads in the Free State. In particular, the plaintiff alleges that
the defendant and/or his employees, acting
in the course and scope of
their employment with the defendant were negligent,
inter
alia
, in or more of
the following respects:
3.1 he/they failed to
take any or sufficient steps to ensure the road was reasonably safe
for road users;
3.2 he/they failed to
inspect or to reasonably and routinely inspect the road in order to
establish its condition, and timeously
rectify such condition;
3.3 he/they failed to
take any, or reasonable and sufficient steps to ensure that the road
was reasonably free from edge breaks
and dangerous drops between the
level of the tar and the gravel immediately adjacent to it, such
steps being to maintain the road
in a condition to ensure that it was
reasonably free of the edge breaks and dangerous drops referred to.
3.4 he/they allowed the
road to deteriorate into the state where dangerous edge breaks and
drops developed between the tar and the
gravel immediately adjacent
to it existed.
3.5 he/they failed to
comply with national guidelines relating to the maintenance of roads
in order to render them reasonably safe
for road users.
[4]
The defendant, in his plea, admitted that he was responsible for the
provincial roads, which responsibility included taking
reasonable
steps to monitor and inspect the safety and condition of provincial
roads by undertaking reasonable, regular and routine
maintenance of
such roads, so as to ensure the reasonable safety of users of such
roads. The defendant also admitted that at all
times material to this
matter, particularly 27 July 2009 and the period preceding that date,
he owed a duty of care to members
of the public using provincial
roads and in particular, those using the road upon which the accident
occurred, to reasonably monitor,
inspect and maintain such roads,
including the road upon which the accident occurred. The defendant
denied that the accident occurred
in the manner described in the
summons, and that he or his employees were negligent in the manner
alleged by the plaintiff or that
such negligence caused the
plaintiff’s accident. The defendant pleaded that reasonable
steps were always taken to ensure
that the road was reasonably safe
for road users, and to this end routine inspection of the road was
always done. It was also denied
that the defendant allowed the road
to deteriorate to such a state that there was a dangerous drop
between the level of the tar
and the gravel adjacent to it. The
defendant alleged that the level of the tar and the gravel was in a
reasonably good condition,
as there was compliance with the
Departmental Maintenance Quality Standards.
[5]
The defendant also pleaded that:
5.1 the accident was
caused by the negligence of the plaintiff in that she
5.1.1 failed to keep a
proper lookout
5.1.2 failed to apply her
brakes timeously or at all;
5.1.3 failed to exercise
proper or adequate control over her vehicle;
5.1.4 drove on the side
and/or shoulder and/ or edge of the road;
5.1.5 drove too fast
under the prevailing conditions;
5.1.6 failed to drive her
vehicle at a speed which would have enabled her to take evasive
action or bring her vehicle to a standstill
and thus avoid the
accident.
The defendant pleaded in
that alternative that:
5.2 The plaintiff was
warned by way of road signs of the risks and/or condition of the road
and was aware of the risks and/or condition
of the road. Despite this
knowledge, she went off the road and/or drove on the shoulder and/or
edge of the road to give way to
an overtaking vehicle. She therefore
voluntarily assumed risk or consented to subject herself to the risk
of injury.
5.3 The plaintiff’s
negligence contributed to the accident
[6]
The plaintiff prepared four bundles of documents and marked them
as follows: Pleadings, Trial, Photo and Expert Bundles.
The Pleadings Bundle contained the pleadings and notices, the Photo
Bundle
contained the photographs depicting the accident scene and the
condition of the road; the Trial Bundle contained, inter alia, the
police docket, report of the accident, statements taken by the
police, Manuals for Road Maintenance used in the Free State,
worksheets
from the defendant’s Roads Department reflecting
details of inspections, repairs and maintenance in respect of the
road in
question and articles, referred to by the defendant’s
expert, dealing with edge break and drop off on a road. The issue of
edge breaks and drop off will be dealt with later in this judgment;
the Expert Bundle contained the reports of the experts engaged
by the
plaintiff and defendant, as well as a joint minute by the experts.
EVIDENCE
FOR THE PLAINTIFF
[7]
As indicated the plaintiff was an active, independent woman. At the
time of the accident she was employed as a sales representative
by a
company which provided cleaning services to various companies and
commercial entities. She commenced her employment with this
company
approximately four months prior to the accident. Her job required the
plaintiff to spend a great deal of time on the roads,
driving to
various clients. On the day of the accident, she attended meetings in
Kimberley and Postmasburg, in the Northern Cape
Province. On the way
back from Postmasburg to Bloemfontein, she stopped in Dealesville, a
town in the Free State, where she bought
some treats for her family
and then continued on her journey back to Bloemfontein, using the
road between Dealesville and Bloemfontein.
She was driving a white
Ford Bantam light delivery vehicle, commonly referred to, in South
Africa, as a bakkie. It was late afternoon,
which the parties accept
was approximately 17h20. That appears to be the plaintiff’s
last memory of that day. She has no
recollection of the accident
happened or how she ended up in the hospital. Her next recollection
was waking up in the Intensive
Care Unit of a hospital.
[8]
Andries Cornelius Viljoen (Viljoen) testified that in July 2009, he
was employed in Bloemfontein as a sales representative by
a company
that sold office equipment. On the day of the accident, he was
returning to Bloemfontein having visited clients in Vryburg,
in the
North West Province. He was travelling on the road between
Dealesville and Bloemfontein in the late afternoon, after 17h00.
About 30 kilometres outside Dealesville, he overtook a white Ford
Bantam bakkie, being driven by a blonde woman. He testified that
the
speed limit on that road, at that time, was 100 km per hour (km/h).
He was travelling at a speed of approximately 120 to 130
km/h. The
bakkie was travelling much slower than he was, and he overtook it
just before a dam which is located in the vicinity
of the road. After
he passed the bakkie, he looked in his rear view mirror and noticed
what appeared to be a cloud of dust. He
looked again and saw the
bakkie rolling on the left hand side of the road and it then landed
in an open field (veld) alongside
the road. He stopped, turned around
and drove back to where he saw the bakkie rolling. He approached the
vehicle to assist the
driver. He noticed that she had an injury on
the left side of her head. She was unable to give him her name or
other details
[9]
Viljoen then called the number of her company that was branded on the
vehicle and obtained her details from the company. He
called the
police and ambulance. During this time, he found the plaintiff’s
cellular telephone in her vehicle and managed
to find her father’s
number. He called her father and informed him of the accident. He
also said that there were no road
signs warning motorists of the
condition of the road or any risks on that road.
[10]
Gavin Ruben Frost (Frost), the brother of
the plaintiff, testified that he was with his father when the latter
received a telephone
call from the person that was assisting the
plaintiff at the scene of the accident. This person informed Mr Frost
senior of the
accident, and the family was kept informed of the
condition of the plaintiff and which hospital she was taken to. Frost
visited
the plaintiff in hospital the next day. He confirmed that she
had a cut on her head and seemed fine, except that she did not know
how the accident had happened. Thereafter he, together with his
father and his son, went to the scene of the accident, finding
it
from the description given to them by Viljoen and also by finding
tyre marks on the road, as well as debris from the vehicle
in that
area. Frost took photographs of the scene and the road. He
realised that the road was in a very bad condition and
two or three
days later, he returned to the scene with a spirit level and tape
measure, and took the rest of the photographs contained
in the Photo
Bundle, which indicated the measurements of the drop-off (being the
difference in height) between the tarred surface
of the road and the
gravel shoulder adjacent to it. The photographs also gave insight
into the condition of the edge of the tarred
road and the extent to
which the tar at the edges had broken off. This is what is referred
to as edge break. I will deal with these
photographs in more detail
later in this judgment.
[11]
Barry Grobelaar, a mechanical engineer, was one of the experts who
testified on behalf of the plaintiff. His curriculum vitae
reflects
that in addition to his academic qualifications (Honours and
Master’s Degrees in Mechanical Engineering),
he has vast
and varied practical experience in, amongst others, vehicle
engineering and mechanical design, and the design,
development,
manufacturing and testing of components and systems such as, inter
alia, vehicle suspension systems and gearboxes.
He is an experienced
motor vehicle rally driver and a helicopter pilot, and was also a
lecturer in the Department of Mechanical
and Aeronautical Engineering
at the University of Pretoria for thirteen years. Mr Grobelaar is, in
addition, an accident reconstruction
specialist, having been involved
in the reconstruction of approximately 3200 motor vehicle accidents
and automotive investigations
over a period of 22 years.
[12]
On 20 April 2010, he inspected the bakkie driven by the plaintiff at
the time of the accident, took photographs of the various
parts of
the vehicle that were inspected and prepared a report in respect
thereof. He also visited the scene of the accident in
July 2014 (some
5 years after the accident), and using the photographs taken by
Frost, he reconstructed the accident. His report
contained his
findings & conclusions in this respect as well. His findings and
observations will be dealt with later, in conjunction
with the joint
minute compiled by this witness and the defendant’s expert, Mr
Luchas Steenkamp.
[13]
Adrian Bergh, a 95 year old consulting engineer with vast experience
in road engineering, was the last witness for the plaintiff.
In spite
of his age, he was alert and authoritative in the delivery of his
opinion. It is common cause that certain road maintenance
standards
are to be followed in order to maintain the integrity of roads within
the jurisdiction of an authority, such as a Roads
Agency or the Roads
Department of a Provincial Government. To this end there is a
National Roads Manual, applicable to all roads
authorities in the
country, as well as a Maintenance Quality Standards Manual,
specifically for the Free State Province, that are
relevant in this
matter. I will deal further with these manuals and standards later in
this judgment. Mr Bergh was the co-author
of the original National
Roads Manual. In summary, and against the background of his practical
experience as a road engineer for
several decades, he opined that the
drop–off and edge break on the road, in the area where the
accident occurred, caused
the road to be in a dangerous condition.
His further opinion was that the condition of the road, as observed
in the photographs
taken by Frost, those attached and referred to in
the police report, and as explained by Mr Frost, did not develop
“overnight”
but happened over many years as a result of
neglect. Mr Bergh also summarised the recordings on the defendant’s
worksheets
in respect of its inspections and maintenance of
(specifically) the road on which the accident occurred, from 2005 to
2012. The
worksheets reflected that no work was done in respect of
the shoulders of the road since June 2005. There was however,
concerted
work done on the shoulders of the road, in the area of the
accident, during September and October 2009, being after the accident
in this matter. The plaintiff closed her case after the testimony of
Mr Bergh.
EVIDENCE
FOR THE DEFENDANT
[14]
The defendant called the evidence of Lefu Joseph Poonyane, a Roads
Foreman in the relevant Department of the defendant responsible
for
roads, and was employed in that capacity since 1997. He testified
that he was responsible for safety and inspecting the roads
that fell
under his jurisdiction, to ensure that they are in a good condition.
The area where the accident occurred fell under
his jurisdiction. He
confirmed the work done on this stretch of road, as reflected in the
worksheets, and also confirmed that these
were largely temporary
repairs to potholes. He also indicated that at the time of the
accident the road was not in a good condition,
and the shoulders of
the road were also not in a good condition. His view was that in some
places the drop–off was regarded
as degree 2 and in other
places, degree 3. (I will deal with the significance of this later in
this judgment). Mr Poonyane confirmed
from the photographs that the
area where the accident occurred is very familiar to him, and that
the shoulders of the road there
were in a bad condition. According to
him, the drop-off was between 110 and 111 centimetres. When he
inspected the road on 3 April
2009, he reported the poor condition
thereof to his superiors. The defendant closed his case after the
testimony of this witness,
and did not call the evidence of his
expert, Mr Luchas Steenkamp (Steenkamp) whose summary was filed as
part of the court papers
and who co-signed the joint minute with Mr
Grobelaar, the plaintiff’s expert.
ISSUES
[15]
The issues to be determined by this court are:
15.1 The manner in which
the accident occurred;
15.2 Whether the accident
was caused by the negligence of the defendant;
15.3 The validity of the
defence of voluntary assumption of risk;
15.4 Whether there was
contributory negligence on the part of the plaintiff.
THE
LAW
[16]
While the defendant has admitted that he owes a duty of care to
members of the public using provincial roads to reasonably
monitor,
inspect and maintain such roads to ensure that they were reasonably
safe whilst using such provincial roads, the plaintiff
bears the onus
of showing that the defendant breached that duty of care and did so
negligently. She also bears the onus of proving
that such negligence
on the part of the defendant caused the accident and hence the
damages she suffered.
[17]
The defendant bears the onus to show that the plaintiff was negligent
in the manner he alleges, that she was aware of the condition
of the
road, via road signs warning her of the condition of the road, but,
in spite of this, she proceeded to drive in a manner
that indicated
that she subjected herself to the risk of being injured. In other
words, she voluntarily assumed the risk of injury
and/or loss. The
defendant also bears the onus of proving that the plaintiff’s
negligence contributed to the accident.
[18]
The case of
Kruger v Coetzee 1966(2) SA 428 (A),
established
the test for negligence, and has been widely followed, making it the
locus classicus
on this aspect. The court held as follows at
page 430 E - F:
“
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 has
failed to take such steps.
…
Whether
a
diligens
paterfamilias
in
the position of the person concerned would take any guarding steps at
all and, if so, what steps would be reasonable, must always
depend on
the particular circumstances of each case. No hard and fast basis can
be laid down.”
[19]
In
McIntosh v Premier, KwaZulu Natal 2008(6)
SA 1 (SCA)
, a cyclist fell from his bicycle
while trying to avoid a pothole, and sustained serious bodily
injuries. He sued the respondents
for damages arising therefrom. The
evidence established that the pothole was present on that road for
more than a year, without
being repaired, and no reasons were
furnished by the respondents for not doing so. The court, citing the
Kruger case above said
at paragraph [12] that
“
the
issue of negligence itself involves a twofold inquiry. The first is:
was the harm reasonably foreseeable? The second is: would
the
diligens
paterfamilias
take
reasonable steps to guard against such occurrence and did
the defendant fail to take those steps? The answer to
the second
inquiry is frequently expressed in terms of a duty. The
foreseeability requirement is more often than not assumed and
the
inquiry is said to be simply whether the defendant had a duty to take
one or other step… and, if so, whether the failure
on the part
of the defendant to do so amounted to a breach of that duty”.
[20]
The court held at paragraph [14] as follows:
“
What, I think, is
clear is that if in the actual implementation of a policy or
procedure adopted by the authority, or for that matter
in the course
of its operations, foreseeable harm is suffered by another in
consequence of a failure on the part of the authority’s
servants to take reasonable steps to guard against its occurrence, a
court will not hesitate to hold the authority liable on account
of
that omission”
The
court also expressed the view at paragraph [13] that
“…
it is well
established that it is sufficient if the general nature of the harm
to the injured party was foreseeable; it is not necessary
that the
precise manner of its occurrence be foreseeable”.
[21]
With regard to the duty of the defendant to erect road signs and
provide reasonable facilities to guard against foreseeable
harm to
road users, it was not specifically placed in dispute that the
defendant was obliged to erect road signs or such other
facilities to
guard against reasonably foreseeable harm to road users. The court in
Minister of Transport and Another v Du Toit
and Another 2007(1) SA 322 (SCA)
, said at
paragraph [17] whether the steps taken by the first appellant (in
this case, the defendant) were reasonable or not had
to be determined
with reference to the manner of driving of a reasonably competent and
cautious driver A driver of a motor vehicle
is obliged to keep a
proper lookout. Depending on the state of the traffic, the nature of
the road and the speed at which the motorist
is travelling, he may
have an extremely limited opportunity to read and comprehend the
import of every road sign. The court said
further that
“
For
this reason it is imperative, particularly in unlit areas, for
warning and other signs to be clear, unambiguous and appropriately
positioned, so that if necessary they may be read and comprehended at
a glance. This is all the more so where there is a potentially
dangerous situation ahead…”
ROAD
MAINTENANCE STANDARDS
[22]
This is perhaps an opportune time to mention the accepted road
maintenance standards to be followed by all roads authorities
in
South Africa, and particularly those in the Free State Province, in
order to contextualise and understand the obligations of
the
defendant in relation to proper inspection, maintenance and repair of
the roads within his jurisdiction.
The
foreword to the National Routine Road Maintenance Manual (the
National manual), which deals with national highways states,
inter
alia
, that
“
The
importance of Routine Road Maintenance (RRM) is generally
underestimated in the preservation of the road infrastructure
asset....RRM
is used, inter alia…for the longevity of the
national highway system”
The National
Manual also lists the main objectives of routine maintenance, which,
inter
alia
,
are to provide a safe and acceptable level of service for the
travelling public and maintain the condition of the road such that
maximum life is obtained from the road.
In
my view, this applies equally to provincial roads, and these
objectives are in fact incorporated in the Free State Maintenance
Quality Standards Manual (the Free State Manual), where it is stated
that
“
The principle applied is that
maintenance be performed in such a way as to prevent damage and/or
repair existing damage to the road
or road furniture, thereby
avoiding/preventing dangerous situations. Maintenance is therefore
primarily aimed at infrastructure
preservation and improving safety”.
[23]
In describing the condition of roads for the purposes of maintenance,
the Free State Manual categorises defects into degrees,
ranging from
0 to 3. The descriptions of the degrees are as follows:
“
0 – Ideal
situation with no damage that may occur/has already
occurred.
No dangerous situation exists or can exist.
1 - A less visible defect
exists. Non existing dangerous situation –
merely
slight damage can occur
2 – A defect is
easily visible. In certain cases a dangerous
situation…can
occur and damage has occurred.
3 - The defect is very
prominent. A dangerous situation exists and
damage
will occur in all cases”
The
reference to “dangerous situation” refers to dangerous
situations and damage to the road user and the reference
to “damage”
refers to damage caused to the road and not to the road user.
[24]
With regard to edge breaks, the degrees mentioned above bear the
following descriptions:
“
0 – No edge
break present.
1 - Slight edge break of
less than 50mm can be seen
2 – Significant
edge break of between 50 to 150mm can be seen
3 - Severe edge break,
which is a safety hazard to traffic, of between 150 to
300mm
can be seen. An edge break of more than 300mm must be
considered to be a pothole”
[25]
The Free State Manual refers to drop-off as “Shoulders Too Low”
and ascribes the following descriptions to the
assigned degrees:
“
0 – The
shoulder is in a good condition and there is no height difference
between the edge of the surfacing and the shoulder. No
edge breaks are
present.
1 - The gravel shoulder
is in a reasonable condition, but the level difference
between
the edge of the surfacing and the gravel shoulder is a maximum
of 50mm. No dangerous situation exists yet and the
traffic can move onto
the shoulder at
approximately 80km/h. Minor damage occurs as a result
of
edge breakage.
2 - The gravel shoulder
is in a poor condition and the level difference between
the edge of the
surfacing and the gravel shoulder is a maximum of 100mm.
In
certain cases a dangerous situation may develop and edge breakage
can occur. Movement onto the shoulder can only be done
at low speed.
3 - The gravel shoulder
is in a very poor condition and the level difference
between
the edge of the surfacing and the gravel shoulder is more than
100mm and creates a serious safety hazard and edge
breakage occurs
regularly. The traffic cannot
utilise the shoulder.”
EVALUATION
[26]
When regard is had to Mr Bergh’s evidence, together with the
photographs taken by Mr Frost, it is evident that the condition
of
the stretch of road where the accident occurred was extremely poor,
as the drop off and the edge break in many places exceeded
the limits
referred to in the Free State Manual, which set the standards of road
maintenance followed (or ought to have been followed)
by the
defendant and/or his employees. Photographs 1, 5, 6 and
7, depict the severe edge break on the left hand side
of the road, in
the lane in which the plaintiff travelled at the time. The edge break
was so severe that the yellow line was completely
obliterated, as can
be observed in photograph 2. What can also be seen on the gravel
shoulder, in photographs 5, 6 and 7, is a
set of tyre marks which
Frost said was the first set he observed. Photographs 1, 8, 13 and 14
reflect the second set of tyres referred
to by Frost.
[27]
The height of the drop off reflected in photograph 9 is approximately
112mm. It appears to be the same in photograph 16. The
height of the
drop off in photographs 17 and 18 is approximately 122mm. The two
points measured were, according to Frost approximately
two metres
apart, in the vicinity of the “tip” at the edge of the
tar reflected in photograph 5, in the vicinity of
where the
plaintiff’s vehicle left the road for the first time. These
measurements put the drop off present on the road in
question into
the category of a degree 3 deficiency, meaning (according to the Free
State Manual) that
“
The gravel
shoulder is in a very poor condition and the level difference
between the edge of the surfacing and the gravel
shoulder is more than
100mm and
creates
a serious safety hazard and edge breakage occurs
regularly. The traffic cannot utilize the shoulder”.
(my emphasis)
[28]
Photographs 3, 5 and 9 clearly depict the enormous ingress of the
edge of the tar into the driving lane, considerably reducing
the
width of the lane. The yellow line is for the most part completely
obliterated. The measurements taken by Frost, and not placed
in
dispute by the defendant, show that the edge break, varies from 150mm
to just over 300mm, placing the edge breaks squarely into
the
category of a degree 3 deficiency. My remarks in paragraph [27]
above, and the reference to the Free State Manual, regarding
the
hazardous state of the drop off have equal application in respect of
the edge breaks.
[29]
Photograph 3 depicts pieces of tar that were freshly broken off,
leading Frost to believe that this was the spot where the
plaintiff’s
vehicle left the road for the first time. He indicated that he
followed the tyre tracks reflected in photograph
13, which led
towards the fence. There he observed the fence pole was bent and the
ground was freshly scuffed. Beyond that in the
open field or “veld”,
as it is referred to, he found the “debris” belonging to
the bakkie driven by the
plaintiff, such as the number plate and hub
caps, which can be seen from photographs 19 and 20. This evidence of
Frost was not
challenged at all by the defendant. These photographs
taken by Frost were used by Grobelaar to identify the area where the
accident
occurred and reconstruct the scene almost five years later.
[30]
Grobelaar undertook a detailed analysis of the photographs taken by
Frost, the results of his examination of the plaintiff’s
vehicle, after the accident, and his findings and measurements taken
as a result of reconstructing the accident scene. I do not
propose to
repeat his report, which is part of the record and confirmed in his
viva voce testimony. His conclusion is that
“
The
fact that there are three marks visible off the tarred road surface,
as well as that the marks curve to the left, indicates
the
probability that the Ford LDV was in an anti-clockwise yaw when these
marks were deposited (ie the vehicle was progressing
into a broadside
motion with the right side of the vehicle facing more and more in the
direction of the motion of the vehicle and
the front of the vehicle
angled to the left)”.
He also examined the
spacing of the three curved marks on the gravel and concluded that
this indicates the probability that the
yaw had already developed to
an advanced stage. He further opined that the location where the tyre
marks left the road and the
depiction of the road on the photographs
show that the area where the largest edge break occurred is where the
lane of the Ford
LDV was the narrowest. The distance between these
two points, ie where the maximum edge break occurred and where the
tyre marks
left the road is 68 metres. It was his view that the
accident probably occurred at the point of the maximum edge break.
[31]
Grobelaar examined various scenarios with regard
to the progress of the plaintiff’s vehicle into an
anti-clockwise yaw, and
concluded that the contact of the vehicle’s
left front wheel, as it left the tarred surface, with the jagged
edges of the
edge break would likely have caused the momentum of the
vehicle to carry it back onto the tarred surface, in its lane of
travel
and it was at this stage that the yaw was initiated, with the
vehicle curving towards the left and off the road on the left hand
side. This was consistent with the tyre marks visible on the
photographs 1 and 13, taken by Frost. He also analysed the damage
to
the vehicle in relation to the photographs and opined that the loss
of control could have been caused by the damage to the various
parts
of the front of the motor vehicle, such as the left front wheel, the
suspension and its component parts, or the impact on
the left front
wheel forcing the wheel to the left, thus causing the wheel and the
vehicle to steer to the left. These severe effects
on the wheel of
the plaintiff’s vehicle resulted from its contact with the
jagged edges of the edge break, with a drop off
in excess of 100mm.
[32]
Grobelaar further opined that while there is no physical evidence
visible from the photographs to link the tyre marks to the
area of
severe edge break, from an expert point of view, it is consistent
with the version of the plaintiff (as recorded in the
police
statement), that she went off the road when a vehicle overtook her,
and when she tried to come back onto the tarred road,
she lost
control of the vehicle, which overturned. It was also mentioned that
at the place where she left the tar, it was higher
than the ground. I
pause to mention that the plaintiff indicated that while she has no
memory of the accident or making a statement
to the police, the
content of the statement is probably based on what she was told,
probably, by her brother and father who went
to the scene of the
accident, where her brother photographed the road and the condition
thereof. In the various scenarios
Grobelaar sketched regarding
loss of control, the severe edge break would have played a role.
[33]
As indicated, the defendant did not call his expert witness, Luchas
Steenkamp, whose expert summary forms part of the papers
in this
matter. It is noteworthy, that his view is very similar to that of
Grobelaar’s, regarding the probable manner in
which the
accident occurred. Both experts did sign a joint minute and agreed,
inter alia
, that:
33.1 The accident
happened at 17h20 and sunset was at 17h41 on 27 July 2009. The
plaintiff’s vehicle was travelling
in an essentially southerly
direction, with the sun probably on her right hand side. It is also
probable that the sun had not at
the time set below the horizon.
33.2 The drop off
from the tarred surface to the gravel shoulder was in excess of
100mm.
33.3 According to
the Street View Images in Google Earth, there was a speed restriction
of 80 km/h, on this road in February
2010, and the relevant sign was
positioned 1.7km before the accident scene as the plaintiff
approached. The speed limit when Grobelaar
inspected the scene in
2014 was 100 km/h. The experts agreed that speed limit at the time of
the accident would be a matter for
evidence.
33.4 As indicated, the
experts were in agreement that the drop off caused the tyres to
“scrub” against the edge of the
tar, preventing the
plaintiff from regaining the tarred surface. The manner in which the
vehicle behaved thereafter, resulting
in the loss of control over the
vehicle was also agreed. Grobelaar added that when considering the
severe edge break in excess
of 100mm, the accident could also have
occurred due to this severe edge break with its jagged edges and drop
off causing significant
resistance to the left front of the vehicle.
He then repeated his comments, which I have mentioned earlier,
regarding how this
resistance resulted in the behaviour of the
vehicle prior to its overturning.
[34]
In determining how the accident occurred, I refer to the evidence of
Viljoen, coupled with the observations of Frost the day
after the
accident, which are important. Viljoen and Frost confirmed that the
speed limit on 27 July 2009 was 100 km/h. Frost’s
evidence is
that he drove from the accident scene to Dealesville and back, and he
found no road signs or other means of warning
motorists of the
hazards on the road. The absence of road signs was confirmed by
Viljoen. The Joint Minute by the experts indicates
that in February
2010, some seven months after the accident, the speed limit on that
road was 80 km/h. It changed again at some
stage, as Grobelaar found
it to be 100 km/h in July 2014. No evidence was led by the defendant
in this respect, nor were Viljoen
and Frost challenged on their
evidence regarding the speed limit on the day of the accident. I
accept therefore, that the speed
limit on that road was 100 km/h on
the day of the accident. Viljoen travelled at 120-130 km/h and
testified that the plaintiff’s
vehicle was travelling at a
slower speed than he was. In the absence of any other evidence, it is
accepted that the plaintiff travelled
at a speed of approximately 100
km/h.
[35]
The accident occurred about twenty minutes before sunset, and the
experts agree that the sun would have been on the plaintiff’s
right hand side. Comments in Steenkamp’s summary regarding
visibility at sunset are relevant. Under the heading “Environmental
Considerations”, he makes the common-sense remarks that
“
At
sunset our eyes must adapt to the changing level of brightness and it
becomes more difficult to recognise threats to road safety.
Although
the sky may still be light, the road will be darker with deep shadows
and there is less contrast in colours. It will leave
drivers closer
to any hazard and leave a much reduced stopping distance”.
Steenkamp
referred to two articles by American author and engineer
John
C Glennon
which the plaintiff obtained some
time after Grobelaar completed his report. These were titled “
Effect
of Pavement/Shoulder Drop-Offs on Highway Safety”
and
“
A Primer on Roadway Pavement Edge Drop
Offs.
These articles also form part of the
papers in the Trial Bundle. It became clear that the views and
technical explanations of Glennon
match those of Grobelaar in all
respects. During the course of his evidence, Grobelaar indicated that
there was nothing in those
articles, contrary to his findings and
explanations regarding the edge breaks, drop –offs and the
manner that these impact
on vehicle behaviour and driver reaction in
accident matters.
[36]
The plaintiff’s evidence is that she is not a speedster, and
did not drive at high speeds. She explained that during
the time that
she participated in endurance horse riding (for which she holds South
African colours), she would drive her horses
as well as those of
other people around the country to the different events. Driving
these trucks was her part time job. She is
in possession of a licence
to drive heavy duty vehicles, which cannot be driven at speed. The
bakkie she was driving was not built
for speed, so she did not drive
it at a high speed. Viljoen’s evidence that when he overtook
the plaintiff’s vehicle,
it was travelling slower than his
vehicle, lends credence to the plaintiff’s evidence regarding
her driving habits. The defendant
alleges that the plaintiff drove at
a speed that was excessive in the circumstances, without specifying
what those circumstances
are.
[37]
In view of the evidence relating to the plaintiff’s driving
habits and her speed at the time of the accident, I am unable
to find
that she travelled at an excessive speed. Although her evidence is
that she has travelled on this road many times before,
she could not
be expected to know of the seriously deficient state of the road, at
the point where her vehicle was overtaken by
Viljoen. Given the
evidence of the various witness outlined above, I am inclined to
accept the probability that the accident happened
as a result of the
plaintiff moving instinctively to the left of the road, as she was
being overtaken by Viljoen, in the belief
that she was still on the
tarred surface of the road, as she was unable to see the severe edge
break and drop off present at that
point in the road due to the
shadows cast by the setting sun. The result is the accident which
happened as described by Grobelaar
and confirmed by Steenkamp.
[38]
I turn now to the issue of whether the defendant was negligent in
this matter and whether such negligence caused the accident.
The
defendant has admitted that he is responsible for the road on which
the accident occurred, and that he owed a duty of care,
to the
members of the public who use this road, to undertake proper and
regular inspection, repairs and maintenance of the road
to ensure the
reasonable safety of such road users. The Free State Manual, which
sets the benchmark to be followed by the defendant,
reiterates the
purpose and importance of proper road maintenance. In terms of the
standards set by the Free State Manual, it is
evident that the road
on which the plaintiff travelled fell far short of such standards and
was allowed to deteriorate to the point
where the deficiency in the
road was so serious as to be classified degree 3. The photographs
taken by Frost as well as those taken
by the police shortly after the
accident, provide a visual depiction of how the edge break has
ingressed into and obliterated the
yellow line and, in some places,
went beyond the yellow line into the travelling lane of motorists.
The height of the drop off
also caused a serious safety hazard, with
the result that traffic could not and ought not to have utilised the
shoulder of the
road.
[39]
The worksheets reflecting road maintenance undertaken by the
defendant on this stretch of road show that repair work was
undertaken
mainly in respect of potholes on the surface of the road.
There was no maintenance or repairs done to the shoulders of the road
for a period of four years prior to the accident, in spite of Mr
Poonyane drawing the hazardous condition thereof to the attention
of
senior functionaries in the employ of the defendant. After the
accident there was what has been described as a “flurry
of
activity “ to effect repairs to the shoulders of the road. No
explanation whatsoever has been forthcoming from the defendant
as to
why it failed to repair or maintain the shoulders of the road and
what the reasons are, if any, for allowing the road to
deteriorate
into the condition that it was in at the time of the accident. In
view of Mr Bergh’s evidence and that of Mr
Poonyane, it is
clear that the poor and dangerous condition of the road developed
over a period of a number of years, due to neglect
on the part of the
defendant and/or his employees. The evidence of Grobelaar was
unchallenged in its entirety, as the defendant
declined to
cross-examine him. The rest of the state witnesses were not seriously
challenged, other than to suggest to them that
they were not present
at the time of the accident and cannot say what happened.
[40]
In applying the test for negligence as established in the case of
Kruger
supra
, it is clear that a reasonable man (
diligens
paterfamilias
) in the position of the defendant would have
foreseen the reasonable possibility that his conduct in failing to
properly maintain
and repair the road on which the plaintiff
travelled, and in allowing it to deteriorate to the hazardous
condition it was in, would
result in a person (in this case the
plaintiff) being injured and suffering patrimonial loss in
consequence thereof. The reasonable
man would certainly have taken
the appropriate steps (such as regular inspection, repair and
maintenance of the road) to guard
against the occurrence of an
accident, especially one as serious as that which the plaintiff was
involved in. It is patently obvious
that the defendant and /or his
employees failed to take such steps necessary to prevent the damage
and loss suffered by the plaintiff.
In
my view, the accident was caused as a result of the poor condition of
the road, which condition can be attributed to the negligence
of the
defendant in failing to maintain the road in a proper condition to
ensure the reasonable safety of the users of that road.
The defendant
in so conducting himself, breached the duty of care that he owed to
the members of the public, and specifically the
plaintiff, using that
road.
[41]
As indicated earlier, the defendant bore the onus to prove the pleas
he raised, namely that there was a voluntary assumption
of risk on
the part of the plaintiff, who was warned about the condition of the
road on the day of the accident, but nevertheless
chose to drive on
the shoulder, and that her negligence contributed to the accident.
Both Viljoen and Frost testified that there
were no road signs
present at the time of the accident, Frost having driven all the way
to Dealesville and back to look for such
signs. They were not
challenged on this aspect, nor was any proof to the contrary tendered
by the defendant. Similarly with regard
to the allegation that the
plaintiff’s negligence contributed to the accident, the
defendant failed to lead any evidence
in this regard. Mr Mene
valiantly attempted to bolster the defendant’s case by arguing
that the plaintiff’s loss of
memory in respect of the accident
was too convenient, suggesting that she was not being truthful about
her lack of memory. The
evidence tendered by the plaintiff, however,
put paid to this line of argument. Mr Mene also argued, without
success, that the
plaintiff drove at a speed that was excessive at
the time. No proof of this was forthcoming. The ultimate outcome is
that the defendant
failed to prove the allegations in respect of
which he bore the onus, namely voluntary assumption of risk and
contributory negligence.
The plaintiff, on the other hand, did
discharge the onus on her to prove the manner in which the accident
occurred, that the defendant
was negligent and that such negligence
caused the accident. The plaintiff is, accordingly entitled to
recover 100% of her agreed
or proven damages against the defendant.
COSTS
[42]
The usual order is that costs (normally on the party and party scale)
follow the result, hence the plaintiff is entitled to
a costs order
in her favour. Mr Mullins indicated from the outset, during his
opening address, that he would seek a punitive costs
order (on the
attorney and client scale) against the defendant, and repeated this
intention on more than one occasion during the
course of the trial. A
punitive costs order is made by the court, usually to demonstrate its
displeasure at the manner in which
a party conducted himself in the
course of the litigation between the parties, or in the course of the
trial. The conduct of the
defendant and especially of his employees
in this matter displays, in my view, a lack of appreciation of, or a
cavalier disregard
for the duty on a public entity (such as the
defendant) to behave ethically and especially to protect the public
purse, by ensuring
that it does not litigate in a manner that causes
the unnecessary escalation of costs.
[43]
From the time the defendant received the summons, he and/or his
functionaries, would have been eminently aware of the condition
of
the road in question, and that the required standards of road
maintenance, prescribed by its own Maintenance Quality Standards
Manual, were not adhered to. Yet, the defendant proffered a plea,
which was manifestly inaccurate and untrue. The report of the
defendant’s expert, Steenkamp was dated February 2018 and filed
on 30 April 2018. The report of the plaintiff’s expert,
Grobelaar, although dated 4 November 2014, was served on the
defendant on 7 May 2018. It ought to have become immediately apparent
that the defendant’s expert agreed, in a large measure, with
the plaintiff’s expert. If there was any doubt, the Joint
Minute by the two experts (filed a day before the trial in this
matter commenced on 4 December 2018), where they agreed on all
material matters regarding the accident, would have put the matter
beyond any doubt. It was incumbent on the defendant at that
stage, to
have initiated discussions with the plaintiff in order to ascertain
if the matter could either be settled, or issues
curtailed. It seems
that some overtures may have been made by the plaintiff, but which
came to naught, prompting the response by
Mr Mullins that he would
seek a punitive costs order against the defendant.
[44]
The conduct of the defendant and/or his employees during the course
of the trial, is a further demonstration of their unreasonable
and
obstinate approach to the litigation in this matter. The plaintiff
was obliged to secure the attendance of Grobelaar at court,
and he
remained in attendance from the start of the trial on 4
th
December 2018 until he concluded his testimony at the end of the day
on 5
th
December
2018. The defendant refused to give any indication prior to Grobelaar
testifying, of whether they will accept his report,
in order to
obviate calling him. After he testified for almost a day and a half,
the defendant indicated that they had no questions
for him in
cross-examination, which effectively meant that the defendant
accepted his report. It seems that this was also the attitude
of the
defendant in respect of the Joint Minute by the experts. It was only
during the cross-examination of the plaintiff’s
third witness,
Mr Frost, and after being pressed to do so, did Mr Mene indicate that
the defendant does not “quibble about
the Joint Minute”.
Mr Mene’s difficulty in obtaining clear and reasonable
instructions continued throughout the trial,
as indicated by the many
instances that he requested time to take further instructions.
[45]
A disturbing instance of the defendant’s failure to properly
instruct its legal team, is when Mr Mene indicated that
he received
photographs either that morning (4 December 2018) or the day before,
ostensibly emanating from a visit by an engineer
to the accident
scene. It was put to Mr Frost that the engineer used a tube of Lip
Ice (which is a brand of lip balm), to measure
the drop off on the
road and arrived at a measurement of 67mm. Even at that late stage,
the defendant insisted that the road was
in a reasonable condition.
This very late disclosure by the defendant to the plaintiff and its
own legal team that he sent out
an engineer to the scene is perhaps a
good example of the cavalier disregard, I referred to earlier, of the
duty on the defendant
as a public entity to behave ethically and
litigate in a manner that avoids the unnecessary escalation of costs.
[46]
The plaintiff was obliged to incur the costs of proceeding to trial,
engaging counsel and calling four witnesses, two of whom
were
experts. Added to this is the fact that she had to wait nine years
after the issue of summons to have her matter heard, a
matter which
ought not to have come to court in the first place, due to
unmeritorious defences being raised, which had no prospect
of
success. I am in agreement with Mr Mullins’ submission that
this is a fitting case for the grant of a punitive costs order,
together with an order for the related costs sought by the plaintiff
[47]
In the circumstances, I make the following order:
47.1 The defendant is
liable to the plaintiff for 100% of her agreed or proven damages,
arising out of the injuries she suffered
in a motor vehicle accident,
which occurred on 27 July 2009 on the road between Dealesville and
Bloemfontein;
47.2 The defendant is
ordered to pay the plaintiff’s taxed or agreed costs on the
scale as between attorney and client, such
costs to include:
47.2.1
The costs of senior and junior counsel;
47.2.2
The reasonable preparation/qualifying, travelling,
accommodation and
reservation fees and expenses of the experts, Mr AO Bergh and Mr B
Grobelaar;
47.3 Mr GR Frost and Mr C
Viljoen are declared to have been necessary witnesses in respect of
this trial.
__________________
S. NAIDOO, J
On
behalf of Plaintiff: Adv. J Mullins SC, with Adv J Zietsman
Instructed
by: Honey Attorneys
Honey
Chambers
Northridge
Mall
Bloemfontein
(Ref:HLB/lmv/17592)
On
behalf of Defendant: Adv. B Mene
Instructed
by: JMA Engelbrecht
Office
of the State Attorney
11
th
Floor Fedsure Building
49
Charlotte Maxeke Street
Bloemfontein
(Ref:
739/201000668P15V)