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[2016] ZAGPPHC 1172
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Fenn v Mellet (A303/2016) [2016] ZAGPPHC 1172 (11 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
11/11/16
CASE
NO: A303/2016
In
the matter between:
MICHELLE
FENN
Appellant
And
LEON
MELLET
Respondent
JUDGMENT
MALUNGANA
AJ:
[1]
The appellant (Ms Michelle Fenn) appeals
against the judgment of the Magistrate's
Court, District of Pretoria in which it was held by the trial court
that a collision between two motor vehicles on the 28
th
March 2012 was caused by her negligent driving.
[2]
The court a
quo
upheld the respondent's counterclaim
and dismissed the appellant's claim on the issue of negligence.
[3]
The following were the common cause facts in this case:
[3.1]
The collision occurred on the day in question at the entrance to 68
Air School, Trichardt Road, Lyttelton, Centurion.
[3.2]
The collision occurred at approximately 06h00 between a Mercedes Benz
driven by the appellant and a Tata 4x4 Bakkie driven
by the
respondent;
[3.3]
The intersection at the Air School has two entrances on opposite
sides of Trichardt road and is controlled by a set of robots
which is
manually operated by a gate attendant;
[3.4]
Motor vehicles travelling along Trichardt road should stop at the
designated line when encountering a red light.
[4]
At the commencement of the trial the parties agreed to the separation
of issues and only dealt with the issue of liability.
The matter now
before us is against the finding by the court a
quo
in favour
of the respondent's counter claim.
[5]
The issues in dispute are encompassed in the appellant's head
of argument and in particular in dispute is whether the
trial court
was correct in coming to the conclusion that the appellant was the
sole cause of the collision in question.
[6]
In this regard the appellant pleaded specifically that the
sole cause of the collision was as
a result
of the negligence of the respondent.
[7]
The grounds of negligence on which the appellant relied were the
following
'
He failed to keep a proper look out;
He
drove at an excessive speed under the circumstances; He failed to
apply his brakes timeously or at all;
He
failed to avoid the collision whilst with the exercise of reasonable
care he could have and should have done so, "
He
failed to keep his vehicle under proper control."
[8]
The court a
quo
was required to determine whether the
respondent entered the intersection after the traffic light had
already turned red.
[9]
The version of the appellant briefly was that she was driving
towards her workplace located down Trichardt Street
from
the direction of N14 towards the Sasol garage. She turned left into
the entrance of 68 Air School. Realizing that she forgot
her diary,
she then made a U-turn inside the gate. The guard pressed the button
on the left hand side of the gate whereafter she
proceeded to cross
the road on the zebra crossing. She testified that she could not see
the traffic lights because there were no
traffic lights for her. When
asked about the colour of the traffic lights, she replied that the
traffic lights regulating the traffic
up and down the said road were
red. She testified that she had used the said road for about thirteen
years. Her vehicle was
damaged in the front right hand side
("the nose side"). She further testified that on impact she
stopped her car in the
intersection and that the respondent's bakkie
moved swiftly away for about a hundred metres before it came to a
standstill against
a fence. There was nothing she could do
because she was in the middle of the road and it happened very fast.
After the collision
she got out of the car in a state of trauma and
exchanged particulars with the respondent for insurance purposes.
[10]
Under cross-examination the appellant admitted that it was still dark
and that visibility was not good at that time of the
morning. She
confirmed that her lights were on. She could not recall whether there
were street lights on the street. The appellant
further told the
court that when she made a U-turn the guard had already pressed the
button for the traffic lights to turn red
because she had already
told the guard of her intention to turn around.
[11]
During cross-examination she also testified that she knew the time
frame of the traffic light. She testified that the guard
at the gate
signaled to her that she could go. She conceded that she did not look
down Trichardt Road to establish if it was indeed
safe for her to
proceed. She further testified that she did not see the respondent's
vehicle because and saw no reason to establish
whether it was safe or
not when there is a traffic light.
[12]
In cross-examination she conceded that the traffic lights there were
intended for pedestrian crossing. The appellant further
conceded
under cross-examination that she had to make certain decisions based
on other information to establish whether it was
safe to proceed
other than merely looking at the sign that does not relate to her
directly.
[13]
The appellant further testified that she knew that the intersection
in question was known for accidents which occur on a weekly
basis.
Given the statistics, she conceded that she should have had a better
lookout to see if the traffic lights were safe for
her but that she
did not do so. She conceded that had she done so, she could
have seen the respondent approaching.
[14]
It is worth noting that at the end of the cross-examination the
appellant replied "yes" to the following question
put to
her:
‘
.
..
...
.
.
.
.
.this
accident
was
caused
due
to
the
fact
that you
did not
take
a
proper
notice of the oncoming
traffic
,
and that
you relied on certain assumptions
about
the
traffic
lights
,
and
taking
the
instructions
from
the guard
,
and
that
this
accident
would
have
been
avoided
if
you
,
even
if,
and it is obviously
not the
version of
the defendant
,
even if the defendant would have gone
over
a
red light you know, you
would have
noticed it, and combined with his avoiding tactics, the accident
would have been avoided.
[15]
The appellant called as her witness, Ms Motsepe, the security guard
who was on duty at the time of the collision. Ms Motsepe
testified
that it was a Wednesday and that they had inspection on the day. The
appellant arrived early to inspect the rooms. The
appellant decided
that she wanted to park her car by the lecture rooms where she has
her office on the other side of Trichardt
Road. She therefore needed
to cross the road. According to the witness there were no vehicles on
Trichardt Road and the traffic
light was green. She pressed the
button so that the traffic light could turn red in order for the
appellant to safely proceed to
the other side. She checked and
noticed that there was a car approaching from afar. She then pressed
the button which immediately
turned orange and then red. She
testified that the car was coming at a high speed. She testified that
the respondent's vehicle
tried to move to the right facing oncoming
traffic only to find that the appellant's vehicle was going in that
direction. Under
cross examination she confirmed that when she
presses the button it takes about two seconds to change to red and it
stays red unless
the button is pressed again. She confirmed that the
appellant asked her if she could go and that she said
"yes
warrant".
At that moment she was done looking at the robots
and she stood at the gate as the appellant's vehicle entered the
road. She agreed
that the traffic light at Trichardt Road is far back
and not actually at the intersection.
[16]
I now proceed to deal with the respondent's version (Mr. Leon
Mellet). He testified that he was on his way to the gym.
He saw
the appellant's vehicle and that it went out of his view when it
turned into the base. He is familiar with the intersection
in
question as he was based there before. As he travelled down Trichardt
Road and upon approaching the line, the traffic light
turned amber.
He assessed that even if he were to apply his brakes he could not do
so before he reaches the line where the traffic
light was. As he
entered the intersection he saw the appellant's vehicle from the
left. He tried to avoid the accident by driving
onto the right hand
side but the appellant struck his vehicle on the passenger door
causing his vehicle to spin. He testified that
he was driving at a
speed of 60 km/h. He concluded by stating that there was nothing he
could have done to avoid the collision.
[17]
I must pause to point out that the court a
quo
had an
advantage of an inspection
in
loco.
In this
respect the parties were in agreement that the intersection in
question was a unique one. The court a
quo
was
therefore placed in a better position to evaluate the evidence of the
parties having been exposed to the actual scene of the
collision. It
was established during the inspection
in loco
that the traffic
light on Louis Trichardt Road turns amber when one presses the button
and that it will remain so for about two
seconds before turning red
allowing the pedestrians crossing the road or the vehicles exiting
the premises of the 68 Air School
to do so safely.
[18]
In the present case I am satisfied that the collision occurred in the
manner as testified by the respondent. He gave his evidence
in a
clear and satisfactory manner and did not try to exaggerate. He was
prepared to make concessions where necessary. He gave
probable
reasons why he could not have avoided the accident. Accordingly I am
satisfied that he acted reasonable in the circumstances.
I am further
of the view that the respondent was a truthful witness and that the
court a
quo
had no reason to reject his version
regarding the occurrence of the collision.
[19]
I am further in agreement with the court a
quo
with
regards to the adverse inferences it drew in respect of the
appellant's evidence. It was not in dispute that the appellant
failed
to observe the road to establish whether it was safe for her to enter
the intersection. She therefore did not keep a proper
look out before
she entered the intersection of the road. She also conceded that had
she taken a proper look out, the accident
would not have occurred.
She relied on the guard at the gate to make a decision as to whether
it was safe for her to cross the
road. In this regard I am of the
view that in relying on the guard at the gate without ascertaining
whether it was indeed safe
for her to cross the road, she acted
negligently. Taking into account that she told the court a
quo
that she had used the road for almost 13 years and the fact that
the said intersection was notorious for accidents happening on a
weekly basis, one would have expected her to foresee that her conduct
could lead to potential danger as it indeed did in this case.
It was
also her evidence that there was no reason for her to establish
whether it was safe for her to proceed as there were traffic
lights
at that intersection.
[20]
In
Robinson
v
Henderson
[1]
it
was held
that
the party
entering a main thoroughfare from
a
side
street
should
exercise
great
care.
See
also
in
this regard
R
v
Haupit
[2]
where
Lourens, J
stated:
"Having
regard to the obligation which rests on any person entering a busy
road from a side, I agree with the magistrate that
anyone who comes
into main road from a side road should exercise utmost care, but at
the same time the users of the main roads
are also under an
obligation to exercise care when they pass side roads. People are as
much entitled to use the side roads as main
roads, and when person
drives in main road past a side road at an excessive speed, he
certainly run a risk and even if a person
comes carefully into the
main road, he may have a collision'.
[21]
Turning to the facts of this case one has to have regard to the fact
that one is dealing with a unique intersection as discussed
in the
preceding paragraphs. The traffic light is manually controlled by the
guard who has to press the button and give signal
to the motorist
intending to exit the Air School. A great amount of care is expected
of the persons operating this kind of entry
and exit point. A
distinction should therefore be drawn between an ordinary
intersection and the intersection in question. It was
equally
expected of the appellant to have made certain that it was safe for
her to enter the intersection and in not doing so she
acted
negligently.
[22]
I am of the view that the appellant failed to act as a reasonable
person should have. A reasonable person, if placed in the
shoes of
the appellant, should have had regard to other road users and kept a
proper lookout especially as she knew that the intersection
was a
high accident zone. A reasonable person would not have entered a
traffic light controlled intersection had it been unsafe
to do so.
Had a reasonable person become aware of an immediate danger he or she
would have taken the necessary steps to avoid it.
[23]
The test for
negligence
is well established.
See in this
regard
Kruger
v
Coetzee
[3]
and
further
in
Minister
of Safety and Security v Carmichelle:
[4]
'
For the purposes of liability culpa arises if-
A
diligens paterfamilias in the position of the defendant -
..would
foresee the reasonable possibility of his conduct injuring another
and causing harm ....loss; and
...would
take reasonable steps to guard against such occurrence; and
...the
defendant failed to take such steps'.
[24]
The respondent testified that upon reaching the line the robot turned
amber and that he could not apply his brakes to avoid
the accident.
The appellant on the other hand on her own accord failed to keep a
proper lookout which inevitably resulted in the
collision. Had the
appellant acted as a reasonable person should have, she could have
avoided the collision.
[25]
On the other hand I am of the opinion that the respondent acted as a
reasonable person would have acted in the circumstances.
Upon
noticing the appellant in the intersection he swerved to the extreme
right to avoid the collision. The appellant did absolutely
nothing to
avoid the collision.
[26]
Taking into consideration all relevant factors and in particular the
concessions made by the appellant relating to her acts
of negligence
in the occurrence of the collision in question, I am of the view that
the balance of probabilities are overwhelmingly
in favour of the
respondent. No negligence can be attributed to the respondent under
the circumstances and the court a
quo
cannot be faulted in
accepting the version of the respondent regarding the occurrence of
the collision.
[27]
The appellant has therefore not made out a case for the relief
sought, and I accordingly find, based on the evidence before
this
court that she was solely to blame for the occurrence of the
collision in question.
[28]
In the result the following order is made:
[28.1]
The appeal is dismissed with costs.
_______________________
P
H MALUNGANA
ACTING
JUDGE OF THE HIGH
COURT,
PRETORIA
I
agree.
_______________________
A
C BASSON
JUDGE
OF THE HIGH COURT
PRETORIA
Appearances
For
the Appellant:
Adv. H J Snyman
Instructed
by:
For
the Respondent: Adv. H J C
DuPlessis
Instructed
by:
Date
heard:
1 November 2016
Date
delivered:
[1]
1928 A.
D
at
141.
[2]
1931 C.P.D 267.
[3]
1966 (2) SA 428 (A).
[4]
2004 (3) SA para [45].