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[2018] ZANCHC 67
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Dawood v Road Accident Fund (1013/17) [2018] ZANCHC 67 (21 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO: 1013/17
In
the matter between:
ABEEDA
DAWOOD
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
O’BRIEN
AJ
1.
The N12
Road between Warrenton and Christiana in the Northern Cape runs from
North to South. It is a tar road 7,6 metres in width.
As is evident
from pictures taken, on either side of the road there are grass
wedges. The road is a single lane road for vehicles
travelling in
opposite directions, which is separated by a broken line.
2.
On 24
December 2004, Mr Erifaan Hoosen Dawood (“the deceased”)
was driving a white Nissan vehicle travelling in the
direction of
Warrenton. He was travelling in a convoy on his way to Cape Town. He
picked up passengers whom he dropped off in Christiana.
Mr Joseph
Sebeela (“Sebeela”) was one of the passengers who
continued his journey with the deceased who was seated
in front next
to him.
3.
According
to Sebeela the deceased was in a hurry to catch up with the convoy of
vehicles he was travelling with, and after dropping
the passengers in
Christiana, they had to catch up with them.
4.
About 8 km
outside Christiana they were behind a truck which they could not
pass. This was because of the road being busy with
vehicles
travelling in the opposite direction.
5.
The
deceased also attempted to overtake the truck but could not do so.
When he noticed oncoming traffic, he had to go back into
his lane
travelling behind the truck.
6.
Travelling
behind the truck created poor visibility due to the water spraying
from the truck onto the road and onto their vehicle.
7.
At the
fatal moment, the deceased attempted to overtake the truck. He
indicated with his right signal, picked up speed, and moved
to pass
the truck to a spot where they were in the middle in relation to the
length of the truck. They were close to the middle
line in the lane
of oncoming traffic when the deceased shouted something in Afrikaans
about an oncoming vehicle and that he could
not move to the left or
the right. He saw oncoming lights and within 5 seconds heard a bang.
8.
Thabo
Makaudi was on his way to Schweizer Reneke in the North West and
travelled with a Mazda 626 Sedan. He noticed an oncoming
truck whose
water sprayed on his windscreen. As a result, he put his hands on the
steering wheel leaning forwards to see clearer.
His car was
approaching the back of the truck when he suddenly noticed a white
car in his lane. He did not have a chance to brake
because it
happened all of a sudden.
9.
He could
not swerve to the left because there was no time to do so. After the
collision, he was unconscious, and spend some time
in the hospital.
10.
The
deceased died as a result of injuries he sustained in the collision.
As a result, the plaintiff acting on behalf of her three
children
instituted a claim against the defendant for loss of support. In her
particulars of claim, she alleges that the collision
was caused by
the sole negligence of Makaudi, the main ground being – as the
evidence shows – the latter failed to
avoid the collision when,
by the exercise of reasonable care, he could and should have done so.
11.
The
defendant pleaded that the collision was caused by the sole and
exclusive negligence of the deceased.
12.
In terms of
Rule 33(4) of the Uniform Rules of Court, on invitation by the
parties, I separated liability from the quantum of the
plaintiff’s
claim.
Common
cause facts:
13.
It is
common ground that the collision occurred in the lane in which
Makaudi was travelling. Stated differently, at the time of
the
collision he was travelling in the correct lane he was supposed to
travel in.
14.
Moreover,
it was a rainy day; the road was wet; it was misty and raining at the
time of the collision and visibility was poor.
Submissions:
15.
Mr W
Coughlan acting for the plaintiff and relying on the evidence of
Sebeela and an accident and reconstruction expert, John Craig,
argued
that the Court should find for the plaintiff. He submitted that given
the analysis carried out by Craig the collision was
caused by the
deceased overtaking the truck when he had insufficient sight distance
to ensure that there were no oncoming vehicles
and that it was safe
to do so. In fact, Mr Coughlan during the proceedings conceded that
the deceased was reckless.
16.
Notwithstanding
the deceased driving, he submitted that Makaudi had sufficient time
to observe the headlights of the deceased vehicle
and would have had
sufficient space to execute a swerving manoeuvre onto the western
edge of the road or the western verge, which
would have very likely
avoided the collision. In the result, the ensured driver took no
evasive action. Because the plaintiff and
her children were not joint
wrongdoers, she only had to prove the proverbial 1% negligence on the
part of Makaudi to be successful
with her claim.
17.
Mr R
Liddell, acting for the defendant submitted that the onus is on the
plaintiff to prove that the insured driver was negligent.
He contends
that there is a conflict between Sebeela’s and Craig’s
evidence making Craig’s reconstruction suspect.
He submitted
that the deceased, given the poor visibility caused by the spray of
water coming from the tyres of the truck by driving
in the lane of
oncoming traffic, was reckless. The insured driver did not have
sufficient time at his disposal to take evasive
action nor to execute
a fanciful swerve – as suggested by Craig – given the
sudden danger he faced.
Discussion:
18.
In
Representative of
Lloyds
and Others v Classic Sailing Adventures (Pty) Ltd
2010 (5) SA 90
(SCA) at para 60
the Court emphasised that where there is eyewitnesses or direct
evidence of an occurrence, this may render the reconstructions
of
experts less relevant or even irrelevant. In approving
Van
Eck v Santam Insurance Co Ltd
1996 (4) SA 1226
(C) at 1229 H –
1230 B
the Court stated that while it was not unusual for parties to tender
expert evidence to determine the cause of a collision, the
expert’s
evidence is inevitably based on reconstruction and cannot conceivably
bear the same weight as direct, eye-witness
testimony of the event in
question.
19.
In
evaluating the evidence of Sebeela I have had regard to the factors
stated in
Stellenbosch
Farmers Winery Group Ltd & Another v Martell ET CIE & Others
2003 (1) SA 11
(SCA) at para 5
.
20.
Sebeela’s
evidence, with a few exceptions to which I shall refer later, does
not contribute to the plaintiff’s case.
The plaintiff’s
case, as it crystallised in the evidence is that although the
deceased was reckless, the insured driver had
an opportunity to make
a s-manoeuvre causing evasive action which would have avoided the
collision.
21.
In
considering the evidence of Makaudi, I have had regard to what was
stated in
Motor
Vehicle Assurance Fund v Kenny
1984 (4) SA 432
(E) at 436 H –
I
where
Eksteen J (as he then was) stated the following:
“
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
prescription 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.
”
22.
In
Stacey
v Kent
1992 (4) SA 495
(CPD) at 499 B – D
the Court said:
“
Reasonable
drivers drive on the correct side of the road, and in the normal
course of events, if a driver driving on the incorrect
side causes a
collision with another vehicle on his correct side, that fact would
be proof of negligence. The errant driver cannot
escape
responsibility by suggesting fanciful and hypothetical possibilities
which the plaintiff has not eliminated. But if
there is a
substantial foundation of fact to indicate that the collision is out
of the normal course of events, then the normal
rule would not apply.
It is not in the normal course of events to suddenly have steering
mechanism become defective, nor to skid
onto the incorrect side of
the road, nor to suddenly suffer a black-out or to have a heart
attack. Once a fact has been established
that there is an occurrence
out of the normal course of events, such as that his car was out of
control because of a skid, it is
for the plaintiff to prove on a
balance of probability the negligence of the defendant, taking due
account of the particular abnormal
events or circumstances.
”
23.
Mr Coughlan
was critical of Makaudi’s evidence. He argued that the accident
rendered Makaudi unconscious and when he regained
consciousness his
memory had failed him as he was suffering from post-traumatic
retrograde amnesia. He had no recall of even being
in an accident. He
was also suffering from post-traumatic retrograde amnesia when he
made his statement to the police. The fact
that he could not recall
how many passengers he had in his vehicle makes it unlikely that he
would have recalled the moments before
the impact. He concluded by
stating that it is likely that Makaudi’s evidence is a mental
reconstruction of how he imagined
the accident might have happened.
Lastly, he referred to contradictions and inconsistencies between his
evidence in court and the
contents of the affidavit he made to the
police shortly after the incident.
24.
In my
judgment, the criticism against Makaudi is unfounded and unjustified.
His evidence was that he was travelling at approximately
80 km
per hour on a national road and slowed down even further when he saw
the spray of water omitting from the truck. Due
to the poor
visibility, he leaned forward towards his steering wheel to get a
better vision. To expect from him to stop in the
middle of the road
would have been a dangerous manoeuvre that could have led to a
multiple car pile behind him.
25.
I accept
Makaudi’s evidence that he was more towards the rear of the
truck when the collision occurred. The only evidence
to gainsay his
testimony in this regard is that of Sebeela, who stated that the
collision occurred in the middle of the truck.
Given the fact that
both vehicles were sprayed with water from the truck and the fact
that Sebeela would have in all probability
concentrated on what was
in front of him; even more so Makaudi would have done the same. It,
therefore, would have been difficult
for both drivers and Sebeela to
determine whether they were in the middle or whether they were in
front, the middle or at the rear
of the truck when the incident
occurred. Makaudi’s evidence was that he concentrated on the
road in front of him. Similarly,
Sebeela’s evidence was that
the deceased looked in front of him and uttered something in
Afrikaans. Nothing turns on the
point as to where precisely the
vehicles were in relation to the truck when the collision happened.
26.
Makaudi was
an excellent contrary to what Mr Coughlan submits. Even Sebeela
confirms that the deceased undertook a dangerous manoeuvre
when he
decided to overtake the truck in the circumstances then. The deceased
did this when the road was busy, and he tried to
play catch-up with
the other vehicles in his convoy. He was prone to taking chances.
Sebeela confirmed that the collision happened
exceptionally quickly.
They did not see the lights of oncoming traffic and suddenly the
collision occurred.
27.
Makaudi’s
evidence was straightforward. I did not gain the impression that he
was not telling the truth. He appeared to me
as someone who stated
the facts as he remembered it and was not tripped up during
cross-examination. I have no hesitation in accepting
his version.
28.
Criticism
was levelled against his evidence that he contradicted his
statements. In
S
v Mafaladiso & Andere [2002] 4 All SA 74 (SCA)
the following was said regarding discrepancies between the witness’
evidence and his statement:
“
Die blote feit
dat daar self-weersprekings voorhande is, moet deur ‘n hof met
omsigtigheid benader word. Eerstens moet nougeset
vasgestel word wat
die getuie werklik bedoel het om op elke geleentheid te sê, ten
einde te bepaal of daar ‘n weerspreking
voorhande is en wat die
presiese omvang daarvan is. In hierdie verband moet die
feite-beoordelaar inagneem dat ‘n vorige
verklaring nie bywyse
van kruisverhoor afgeneem is nie, dat haar taal- en kultuur verskille
tussen die getuie en die opskrifsteller
mag wees wat die korrektheid
van wat presies bedoel is in die weerstaan en dat die verklaarder
selde of ooit deur ‘n polisiebeampte
gevra word om in detail sy
of haar verklaring te verduidelik. Die eerste sin in paragraaf 8 van
die klaagster se verklaring is
‘n duidelike geval waardaar meer
nougesette benaderingswyse aan die kant van die afnemer van die
verklaring die gewraakte
sin sou opgeklaar en verhelder het of anders
beantwoord het. (Sien oor die gevare van vertaalde getuienis en m.i,
a fortiori, polisieverklarings,
R v Gumede
1949 (3) SA 749
(A) op 757
in fine.
”
29.
The
statement by Makaudi was taken in Afrikaans, and he testified in
English in this court. For the reasons set out in
Mavaladiso
supra
I am satisfied that the so-called contradictions are not material and
do not impact on the quality of his evidence.
30.
By
accepting the evidence of Makaudi, the enquiry ends here.
31.
But much
was made by the Plaintiff that having regard to Sebeela’s
evidence insofar as his ability to state measurements and
time is
concerned and on which Craig relies to come to the conclusion that
Makaudi should have taken evasive action based on scientific
calculations that an analysis must be done.
32.
Before
doing so, I am mindful of what was stated in
Biddlecombe
v Road Accident Fund
[2011] ZASCA 225
(30 November 2011) at para 10
of the judgment:
“
[t]he expert
task 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
observations. The fact that the reconstruction rest on
a potentially
imperfect foundation is a reason for caution in determining its
evidential value.
”
33.
In my view,
Sebeela’s evidence regarding distance and time must be treated
with caution not only for his inability to give
direct measurements
or actual time but also given the circumstances under which those
observations were made. It cannot be more
emphasised that it was
raining and visibility was extremely poor compounded by the fact that
the truck caused a spray of water
on the vehicles involved in the
collision. It is highly improbable for Sebeela to have
concentrated on the rain on the windscreen;
to determine time and
distance, and listening to the deceased and still able to give a
definitive time or measurement. To make
observations in these
circumstances is in my view extremely doubtful.
34.
During
cross-examination, Craig accepted Sebeela’s version as correct.
However, this changed as he stated that Sebeela’s
distances
could not be right. Craig also conceded that the insured driver’s
version could not be excluded. Furthermore, he
also conceded that he
does not know where the point of impact was. He also did not
visit the scene of the accident.
35.
In
concluding that the insured driver had enough time to avoid the
accident by taking evasive action he relies on the fact that
the
insured driver had 3 seconds to do so. This was based on Sebeela’s
evidence. But as stated earlier, Sebeela’s evidence
is
improbable.
36.
Craig’s
evidence was that Sebeela’s approximation of 30 metres
visibility was impossible. He gives no basis other than
stating
perception-reaction time. Furthermore, Craig did not know the weight
of the vehicles – although he contends that
it would not
influence his calculation; he did not know what the exact speed of
the vehicles was; his assumption on the speed of
the vehicles is
based on conjecture. In these circumstances, the factual basis for
Craig’s reliance and formulating his opinion
is unreliable.
Conclusion:
37.
The
deceased did not drive as a reasonable driver would have done given
the circumstances. A reasonable driver would have
waited for a
clear pathway when he overtook the truck. He would have made sure
that it was safe to pass the truck at the time when
it was done. To
expect Makaudi to swerve to his left by performing a s - manoeuvre
(which even Craig indicated would be difficult
to perform) and
endanger his own life, contrary to what a reasonable driver would
have done is to expect the impossible. The reasonable
driver does not
drive with mathematical precision. In my judgment, the deceased was
the sole cause of the accident.
38.
I make the
following order:
38.1
Absolution
from the instance is granted with costs.
_____________
S
C O’BRIEN AJ
Date
heard: 21 August 2018
Date
delivered: 21 September 2018
Obo
Applicant: Adv W Coughlan
Instructed
by: Engelsman Magabane Inc.
Obo
Respondent: Adv R Liddell
Instructed
by: Robert Charles Attorneys