About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 22
|
|
Lauwrens and Another v Member of Executive Council For Public Works, Road and Transport of the Limpopo Province (A315/13, 74388/10) [2015] ZAGPPHC 22 (28 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Appeal Case No:
A315/13
Trial Case No:
74388/10
Date: 28 January
2015
Not Reportable
Not of interest to
other judges
In the matter
between:
JACQUES
LAUWRENS
....................................................................
First
Appellant
RINNIE
LAUWRENS
....................................................................
Second
Appellant
and
MEMBER OF THE
EXECUTIVE COUNCIL FOR
PUBLIC WORKS,
ROAD AND TRANSPORT
OF
THE LIMPOPO
PROVINCE
........................................................
Respondent
JUDGMENT
D S FOURIE, J:
[1]
This is an appeal against an order of absolution from the instance
granted by the Court a
quo.
The
appellants, in their representative capacity as guardians, instituted
a claim on behalf of two minor children for the payment
of damages
due to injuries sustained by them and for loss of support consequent
upon the death of both their parents.
[2]
These claims arose from a motor vehicle accident which occurred on 13
December 2008 at approximately 10h00 on the R518 Mokopane/Zebedila
road. This is a provincial road which falls under the jurisdiction of
the respondent. An order separating the issues of liability
and
quantum was granted by the Court
a
quo
and
the trial proceeded with regard to the merits only.
[3] In essence the
appellants’ case is that due to a severe undulation or rut
formation in this road, the motor vehicle in
which the two minor
children and their parents were travelling went out of control and
collided with an oncoming vehicle. The respondent’s
defence, in
a nutshell, is that the accident was caused by the sole negligence of
the children’s mother who was the driver
of the motor vehicle
in which they were travelling. According to the respondent she was
driving too fast under the prevailing circumstances
and she also
failed to take into account certain warning signs next to the road.
[4]
The Court a
quo
found
that, had the children’s mother complied with the speed limit
and road signs, the accident could have been avoided.
It also
concluded that the appellants failed to prove any negligence and
therefore granted an order of absolution from the instance
with
costs.
[5] The issues on
appeal are wrongfulness, negligence and causation. The onus of proof,
as during the trial, rests on the appellants.
Before considering
these issues, I shall first refer to those facts which are common
cause between the parties and thereafter I
shall provide a brief
summary of the evidence.
[6] According to the
record it appears to be common cause that the accident occurred at
approximately 10h00 on a provincial road
in the general vicinity of a
concrete bridge. When the vehicle in question, a Nissan Almera was
driven over a settlement or depression
where the road meets the
concrete bridge, the driver of the vehicle lost control and veered
over to the right hand side of the
road where it collided with an
oncoming Nissan bakkie.
[7]
Exhibit “B” contains copies of the police docket
consisting,
inter
alia,
of
a photo album, sketch plan and an accident report form. Exhibit “E”
contains various photographs of the road as well
as the bridge. Some
of these photographs were taken a few days after the accident and it
depicts the road at the bridge as it was
when the accident occurred.
This is a tar road providing for one traffic lane in each direction
where a speed limit of 100 km/h
was applicable on the day in
question.
[8]
It is also common cause that the respondent had a duty of care and a
maintenance responsibility with regard to this road. This
included,
inter
alia,
regular
and proper inspection and reasonable steps to ensure that the driving
surface of the road did not degrade to a level where
it might pose a
danger for the reasonable user thereof. These concessions were made
subject to the qualification that the respondent’s
maintenance
responsibility of the road was subject to available financial and
human resources.
EVIDENCE FOR
THE APPELLANTS
[9] Stefaan, the one
minor child, testified that during the morning of the day in question
his mother was driving their motor vehicle.
He was sitting behind her
and was getting ready to make himself comfortable to sleep when he
felt a sudden jolt. He gave the following
explanation:
"Ek het ‘n
slag gevoel soos wat jy deur ‘n slaggat sal ry, maar net erger
as wat dit sou gewees het as wat jy deur
‘n slaggat gery het. ”
Shortly thereafter
there was an impact whereafter everything became dark and he lost
consciousness.
[10] The next
witness was Mr Nkuna. He was a passenger in the Nissan bakkie, coming
from the opposite direction, which was also
involved in the accident.
He testified that when the bakkie approached the bridge, it was
travelling at 60 km per hour. The reason
for travelling at such a
speed was because he knew the road and he told the driver to drive
slowly as the road was dangerous. According
to him there was a “speed
hump” on both sides of the bridge and they had seen a lot of
accidents where people “had
rolled on that road”. When
asked what happened he said the following:
"...
The
Almera after contacting the with the hump it jumped and finally
coming back into contact with the surface he lost control and
it...
then came straight to us”.
[11] In
cross-examination he indicated that the bakkie was approximately 25
to 30 metres away from the approaching Almera when he
saw the driver
thereof losing control. He was also referred to his statement which
he had made to the police immediately after
the accident. When he was
confronted with the allegation in his statement that the approaching
vehicle was “coming with a
high speed”, his response was
that this is not what he actually said. According to him he was in
pain and lying on a stretcher
when the statement was taken. He was
unable to say at what speed the Almera was travelling. He also
testified about two other accidents
which had occurred at the bridge,
one in which a person was also killed.
[12] The third
witness for the appellants was Mr Grobbelaar, a mechanical engineer
and accident reconstruction expert. He testified
that according to
the photographs it was apparent that the Almera collided with the
bakkie with its left front side. Having regard
to the angle between
the two vehicles he concluded that the Almera must have been out of
control. He further testified that according
to the photographs there
was what appears to be a severe dip on both sides of the bridge. This
is indicated by various gouge marks
caused by the undercarriage of
motor vehicles bottoming out. In his view the Almera was probably
travelling faster at impact than
the Nissan bakkie. Although
difficult to calculate, he testified that it may have been anything
between 80 to 100 km/hour.
[13] In
cross-examination he explained that the Almera must have “jumped
twice” as it went through the first undulation
into the second
one whereafter the driver probably lost control. He also pointed out
that in his view there would have been very
little time to do
anything as both vehicles were travelling towards one another. When
he was asked to calculate the speed of the
Almera he responded as
follows:
"One can do
that yes and I did very rough calculations and that it is why I say
80, 100, 110 somewhere around there but ...
the variables ... are too
many to ... (be) decisive. It does not indicate high speed in other
words it does not indicate 120, 130,
140 km an hour on the part of
the Almera but it is not easy to do a calculation with the variables
unknown that we are having in
this case.”
He also confirmed
that undulations can be classified as severe when the underside of
motor vehicles comes into contact with the
road surface.
[14] The next
witness was Mr Berg. He is a road engineer by profession and his work
includes the design and maintenance of roads.
According to him the
undulation or settlement at the bridge did not happen overnight, but
developed over time, probably in excess
of five to six years. In his
view it was at least 150 mm deep at the time of the accident and
according to him this can be classified
as “5 plus” which
is severe.
[15] The second
aspect which he dealt with was the warning signs. He referred to two
warning signs which were placed alongside the
road warning motorists
travelling in the same direction as the Almera was travelling. The
first was a sign warning motorists of
an uneven road ahead which was
located 634 metres from the bridge. The witness made two observations
in this regard. In terms of
the South African Road Traffic Manual it
should have been located 240 metres from the hazard if the speed
limit was 100 km/h. He
pointed out that the road in question was a
good road which means that one would have to travel for 634 metres on
a good road surface
without knowing when and where to expect bumps in
the road. It also does not inform a motorist at what speed should the
bumps be
negotiated at. He classified this as a poor traffic sign. He
also referred to another sign close to the bridge indicating a drift.
This, according to him, is most unexpected on a provincial road where
in fact there is a bridge. Therefore, according to him, this
sign is
irrelevant. In cross-examination he explained that a road sign must
send out a proper message which both these signs failed
to do.
[16] The last
witness for the appellants was Mr Engelbrecht who lived on a farm
approximately three kilometres from the bridge in
question. He had
been living there since 1994. According to him the road at the bridge
had started deteriorating since 2006. During
2008 he had sent
letters, including an e-mail to the Road Agency in Limpopo about the
problem at the bridge. He also referred to
a letter he wrote during
June 2008 which was sent to the Chief Executive of the Roads Agency
and which also included the signatures
of several other petitioners
complaining about the condition of the road. The complaint related to
the sinking at the crossing
of the bridge which caused a severe dip
in the road. In this letter he said the following:
"Crossing
the bridge at any speed above 60 km/hour will seriously damage a
vehicle. Drivers not knowing about this will lose
control and there
had already been various accidents. ”
He also pointed out
that since 2006 temporary repairs had been made, but according to him
it hardly made any difference. When he
was asked in cross-examination
whether any repairs had been made after his complaint during August
2008, he answered in the negative
but then also explained that if the
problem was attended to, it did not make any difference.
EVIDENCE FOR
THE RESPONDENT
[17] The
respondent’s first witness was Ms Mabitsela who has been
employed by the Department of Public Works, Roads and Transport
for
22 years. Since 2004 she has been employed as a foreman in the Road
Maintenance Division. She testified that on 4 June 2008
as well as 22
September 2008 certain maintenance and repair work “by
surfacing” were done on the road in question.
She was aware
about the problem at the bridge where there were a lot of potholes.
During September 2008 a team was instructed to
repair potholes at the
bridge.
[18] In
cross-examination she confirmed that there was no “speed
limit”, but only a sign to indicate a drift. She also
indicated
that there was no problem at the bridge for traffic approaching from
Makopane, but shortly thereafter she said the following:
"On
the bridge there, there is
a
part
that sinks ... that is why we had put a sign to warn people that
there was a drift at the bridge ... (and) if you are a motorist
and
there is a sign indicating that there is a drift you are required to
reduce your speed.”
She also confirmed
that the road surface at the bridge was repaired five days after the
accident, but said the reason for effecting
these repairs was not as
a result of the accident, but because they were expecting many
vehicles during the December holiday.
[19] The next
witness was Mr Malisa. The essence of his evidence was that certain
repair work and the filling of a hole at the bridge
were done on 22
nd
September 2008. Thereafter Mr Minnie testified. He was the cost
centre manager. He was aware of problems at the bridge, had inspected
it several times and also visited Mr Engelbrecht, the farmer who
lived nearby. According to him the depression of the road at the
bridge had been fixed several times. His department only did
maintenance work whereas larger repairs requiring excavations were
done by contractors who were hired for this purpose.
[20] He and his
colleague Mr Nothnagel decided that at some point contractors would
have to be hired to effect major repairs as
far as the sinking of the
road was concerned. They merely did maintenance work in the interim.
On 22 September 2008 his team had
fixed the settling of the road
approaching the bridge. According to him that repair was of a
temporary nature as they did not have
the necessary equipment to
effect major repairs. A contractor was appointed at some stage but
the work was put on hold as they
were moving offices. In
cross-examination he conceded, with reference to the gouge marks
caused by vehicles entering the bridge,
that the road was dangerous
at the time of the accident. However, according to him it would still
be safe to cross that bridge
at a speed of 100 km/hour.
[21] The last
witness to testify for the respondent was Mr Van Vuuren. He is a
professional technologist specialising in roads,
storm water and
preventative maintenance of roads. According to him the undulation at
the bridge was clearly visible indicating
that there was a problem in
the road. When he was asked whether the undulation could be
considered as dangerous he testified that
at a normal speed of 100
km/hour he doubted if it would have had any impact when crossing the
relevant section of the road at the
bridge.
[22] As far as the
positioning of warning signs are concerned, he was of the view that
it remained within the engineer’s discretion
as to how far away
they should be positioned from the place of danger. Apart from the
drift sign, the road manual had no other
appropriate sign to warn
motorists of the depression at the bridge. According to him the
positioning of the road signs was not
inappropriate in the
circumstances as both signs warned a motorist of some risk ahead.
[23] He further
indicated that, assuming a speed of 120 km/h and a reaction time of
1.5 seconds, the impact should have been approximately
40 metres from
the first undulation. However, according to him the actual point of
impact was 79.23 metres away and therefore,
according to his
calculation, the Almera must have been travelling at a speed of 143
km/h “based on pure mathematics”
if one takes into
consideration the speed of the Nissan bakkie. His conclusion was that
the accident was caused by human error
and not a lack of maintenance
of the road.
DISCUSSION
[24] Before
considering wrongfulness, negligence and causation, it is necessary
to first determine what appears to be a factual
dispute relating to
the undulation or settlement at the bridge at the time of the
accident. According to the evidence for the appellants
it can be
classified as severe and dangerous. According to the evidence for the
respondent the depression in the road at the bridge
was not severe
and the road could be regarded as safe even at a speed of 100 km/h.
It therefore appears that there are two irreconcilable
versions with
regard to the extent of this undulation and whether it should be
regarded as dangerous or not.
[25]
In
SFW
Group Ltd & Another v Martell et CIE & Others
2003
(1
)
SA
11 (SCA) at p 14 (par 5) Nienaber JA indicated that the technique
generally employed by Courts in resolving factual disputes
may
conveniently be summarised as follows:
"To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities. As to (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’ candour and demeanour
in the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what
was
pleaded
or put on his behalf, or with established fact or with his own extra
curial statements or actions ... 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 or 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.... But when all factors are equipoised probabilities
prevail."
[26]
In the matter before us the Court a
quo
distinguished
between factual witnesses and the evidence of expert witnesses. It
observed as follows in this regard:
"Apart
from the evidence of Mr Nkuna and Stefaan, which is of very little
evidentiary value, there is mainly the evidence of
the expert
witnesses as to the probable cause of the accident.”
(par
36)
The
trial Court then indicated that Mr Nkuna is the only eyewitness who
testified in this matter. Stefaan who was sitting on the
backseat of
the Almera could only testify about what he had felt (i.e. a jolt)
and therefore, according to the trial Court, he
was not really an
eyewitness. At some stage the evidence of Mr Nkuna was criticised by
the Court
a
quo.
The
following was said in this regard:
"Mr
Nkuna cannot be described as an independent witness. He gave the
distinct impression that because he was called by the
plaintiffs, his
evidence should favour the plaintiffs. I do not say that he
intentionally did so but that is the impression he
created. He
confirmed that he had said that the impact was huge when the two
vehicles collided. In his evidence he had stated that
he would often
warn drivers of the vehicle in which he
was
travelling
about the hazard on the road and that they should reduce speed.
However, under cross-examination he denied seeing the
warning signs
on the roadside prior to the accident and said that he had only begun
seeing those warning signs after the road was
repaired after the
accident, the implication being that they were erected only after the
accident which is not plaintiffs’
case. In the result, his
evidence was not much of help. ”
(par
66)
[27]
At first sight it appears that the trial Court regarded the evidence
of Mr Nkuna to be unreliable because of him being biased
in favour of
the appellants. However, this appraisal does not seem to have
depended on an analysis of the various factors enumerated
by Nienaber
JA in
SFW
Group Ltd
supra.
First,
Mr Nkuna was a passenger in another motor vehicle and there appears
to be no relationship between him and the appellants.
Second, the
fact that Mr Nkuna under cross-examination denied having seen the
warning signs on the roadside prior to the accident
might be as a
result of him not having noticed it. Third, it should also be borne
in mind that some part of his evidence was never
disputed in
cross-examination. I shall refer to that later again. It is therefore
not clear why the Court
a
quo
was
of the view he had given the impression his evidence should favour
the appellants.
[28]
It is also not clear why the Trial Court was of the view that the
evidence of Mr Nkuna and Stefaan should be regarded as having
“very
little evidentiary value”. Again, this appraisal does not seem
to have taken into account the various factors
pointed out by
Nienaber JA. It is not only what a factual witness observes, but also
his or her experience of the event in question
which should be taken
into account. Both Stefaan and Mr Nkuna testified in this regard and
what is even more important, they corroborated
each other with regard
to the sudden jolt (as described by Stefaan) and the fact that the
Almera jumped (as observed by Mr Nkuna).
It therefore appears to me,
as far as this exercise is concerned, that the Court a
quo
did
not apply the technique generally employed by Courts in resolving
factual disputes properly. The outcome of this dispute should,
in my
view, depend on a consideration of the undisputed facts and the
probabilities. This involves an evaluation of the evidence.
[29] It is not in
dispute that on the morning of 13 December 2008 the Lauwrens family
left their home in Ellisras to go on holiday.
When Stefaan was
getting ready to make himself comfortable to sleep, he felt a sudden
jolt. According to the evidence of Mr Nkuna
there was a “speed
hump” on both sides of the bridge. He knew the road as he was
travelling it frequently. He told
the driver of their vehicle to
drive slowly as the road was dangerous. He noticed how the Almera hit
the hump and then “jumped”
whereafter the driver thereof
lost control. This evidence was never disputed in cross-examination
and there is, in my view, no
reason to reject it.
[30] Mr Engelbrecht
who lived in the vicinity testified that he had sent letters to the
Road Agency in Limpopo about a problem at
the bridge. In a letter
which he wrote during June 2008 he pointed out that crossing the
bridge at any speed above 60 kilometres
per hour will seriously
damage a vehicle and drivers not knowing about this will lose
control. Having regard to the photographs
taken only a few days after
the accident, both Mr Grobbelaar and Mr Berg were of the view that
the undulation at the time of the
accident can be classified as
severe.
[31] According to
the evidence of Ms Mabitsela on 4 June 2008 as well as 22 September
2008 certain maintenance and repair work “by
surfacing”
were done on the road in question. She was aware of the problem at
the bridge where there were a lot of potholes.
During September 2008
a team was instructed to repair the potholes at the bridge. Although
she indicated that there was no problem
at the bridge for traffic
approaching from Makopane and that the road was safe, she conceded in
cross-examination that there is
a part “that sinks” and
that the road surface at the bridge was repaired five days after the
accident.
[32] Mr Minnie
testified that the depression at the bridge had been fixed several
times. However, he and his colleague decided that
at some point
contractors would have to be hired to effect major repairs as far as
the sinking of the road was concerned. They
merely did maintenance
work in the interim. In cross-examination he conceded, with reference
to the gouge marks caused by vehicles
entering the bridge, that the
road was dangerous at the time of the accident. However, he still
maintained that it was safe to
cross that bridge at a speed of 100
kilometres per hour. This was also the opinion of Mr Van Vuuren who
said that the undulation
at the bridge was clearly visible indicating
that there was a problem, but notwithstanding this he doubted if it
would have had
any impact when crossing that section of the road at a
normal speed of 100 kilometres per hour.
[33] When
considering all the evidence, the following undisputed facts are
important, as they will assist the Court in finding facts
or making
inferences: First, there was an undulation which caused various gouge
marks on the road surface. Mr Grobbelaar’s
evidence was that
these marks were caused by the undercarriage of motor vehicles
“bottoming out”. Second, Mr Engelbrecht
had already
during June 2008 alerted the road authorities about the condition of
this section of the road. His reference to drivers
who will lose
control and the fact that there had already been various accidents is
a clear indication of the severity of this
undulation. Third, Mr
Nkuna warned the driver of their vehicle to drive slowly moments
before the accident. He knew the road as
he was traveling it
frequently and he regarded it to be dangerous. Lastly, the evidence
about a sudden jolt and “jumping”
of the Almera is more
compatible with a severe undulation than one which can be described
as normal or even safe.
[34] It is difficult
to reconcile the evidence that it would be safe to cross the bridge
at a speed of 100 km/h with all the undisputed
facts referred to
above. Ms Mabitsela conceded in cross-examination that there is “a
part that sinks” and that “you
are required to reduce
your speed”. Furthermore, Mr Minnie also conceded, with
reference to the gouge marks at the bridge,
that the road was
dangerous at the time of the accident. Notwithstanding these
concessions Mr Van Vuuren persisted in his view
that at a speed of
100 km/h it is doubtful whether the undulation would have had any
impact when crossing that section of the road.
[35] Having regard
to all the evidence, more particularly the undisputed facts referred
to above, it seems to me that the probabilities
support a finding
that the undulation was severe. Furthermore, the various gouge marks
at the bridge, Mr Engelbrecht’s prophetic
words of caution
pointing out the possibility of drivers losing control, the fact that
various accidents had already occurred there
(referring to the road
at the bridge) and Mr Nkuna’s undisputed evidence that he
regarded the road at the bridge to be dangerous,
justify the
inference that this undulation was not only severe, but also
dangerous. I therefore conclude that on the day in question
the
undulation was both severe and dangerous.
WRONGFULNESS
[36]
In
Knop
v Johannesburg City Council
1995
(2) SA 1
(AD) at p 27 G-l the test for wrongfulness was said to
involve objective reasonableness, having regard to the legal
convictions
of the community as assessed by the Court. Put
differently, the legal convictions of the community or the
boni
mores
is
a value judgment that embraces all the relevant facts, the sense of
justice of the community and considerations of legal policy,
both of
which now derive from the values of the Constitution
(Steenkamp
N.O. v Provincial
Tender
Board. Eastern Cape
2007
(3) SA 121
(CC) at 139C). Having regard to these considerations,
wrongfulness is established where there is a breach of a legal duty
not to
cause harm to another by one’s negligent conduct (F_v
Minister
of Safety and Security and Others
2012
(1) SA 536
(CC) at 567, par 118).
[37] It is common
cause that on the day of the accident the respondent was responsible
for the maintenance of the road and to ensure
that the driving
surface did not degrade to a level where it might pose a danger for
the reasonable user thereof. I have already
concluded that the
relevant section of the road was dangerous. According to the evidence
of Mr Berg this situation did not happen
overnight, but developed
over time, probably in excess of five to six years. This view is
corroborated, at least to a certain extent,
by the evidence of Mr
Minnie. He was aware of the problem at the bridge and had inspected
it several times. His department only
did maintenance work, but as
far as the sinking of the road was concerned, he and his colleague
had already decided that at some
point contractors would have to be
hired to effect major repairs. Unfortunately, this was only done a
few days after the accident.
[38] Taking into
account that the undulation at the bridge was not only severe but
also dangerous and the fact that a responsible
member of the
community had already pointed out this fact to the road authorities,
it stands beyond question that the respondent
had and still has a
legal duty not to cause harm to people using that road, but to ensure
that the driving surface of the road
is safe. This was not done
timeously and the omission of the respondent in this regard was
therefore wrongful.
NEGLIGENCE
[39]
The question of negligence involves a twofold enquiry: First, was the
harm reasonably foreseeable? Second, would the
diligens
paterfamilias
have
taken reasonable steps to guard against such occurrence and did the
respondent fail to take those steps? The answer to the
first question
is obvious. Evidence relating to accidents which had already occurred
at the bridge, Mr Engelbrecht’s letter
during June 2008
complaining about the dangerous condition of the road at the bridge
and the fact that Mr Minnie conceded the road
was dangerous at the
time of the accident, justify no other inference that it was not only
foreseeable that motorists could suffer
injuries, but also that they
may be killed due to the dangerous situation on that section of the
road.
[40]
The second leg of the enquiry relates to the reasonableness or
otherwise of the respondent’s conduct. It is well established
that whether in a particular case the precautions taken to guard
against foreseeable harm can be regarded as reasonable or not,
depends on a consideration of all the relevant circumstances and
involves a value judgment which is to be made by balancing various
competing considerations. These would ordinarily be the degree or
extent of the risk created by the conduct of the person concerned,
the gravity of the possible consequences and the burden of
eliminating the risk of harm.
(Cape
Metropolitan Council v Graham
2001
(1) SA 1197
(SCA) at 1203, par 7).
[41] The respondent
was responsible for the maintenance of the road and obliged to ensure
that the driving surface did not degrade
to a level where it might
pose a danger for the reasonable user thereof. There is evidence that
certain maintenance and repair
work “by surfacing” was
done. This includes repair work of potholes in the vicinity of the
bridge. As far as the undulations
at the bridge are concerned, the
respondent’s employees also did maintenance work in the
interim. According to the evidence
of Mr Minnie he and his colleague
decided that at some point contractors would have to be hired to
effect major repairs as far
as the sinking of the road was concerned.
The reason why this major repair work was not carried out timeously
is because the work
was put on hold as the Department was moving
offices. However, according to the evidence of Mr Berg the undulation
or settlement
at the bridge did not happen overnight, but developed
over time, probably in excess of five to six years. His view is
corroborated
by the evidence of Mr Engelbrecht who had already during
2006 noticed that the road at the bridge was deteriorating.
[42] It was
contended on behalf of the respondent that it had taken reasonable
steps to warn motorists of the danger ahead. Reference
was made to
two road signs in this regard. Mr Berg pointed out that the first
sign (indicating an uneven road) was located too
far away from the
hazard, whereas the second one (indicating a drift) should be
regarded as irrelevant because there was a bridge.
Mr Van Vuuren
responded by saying that it was within the engineer’s
discretion as to how far away a road sign should be positioned
from
the place of danger. He also pointed out that, apart from the drift
sign, the road manual had no other appropriate sign to
warn motorists
of the depression at the bridge.
[43] The
appropriateness of these road signs should be considered in view of
all the facts. First, according to evidence of Mr Berg
the road in
question was a good road (which was not disputed). It means that one
would have to travel for a considerable distance
without knowing when
and where to expect an uneven road surface. This sign also does not
inform a motorist at what speed the uneven
section should be
negotiated at. Furthermore, an uneven or bumpy road is not the same
as a severe and dangerous undulation or depression
in the road.
Second, the drift sign does not warn a motorist of a dangerous
undulation (as opposed to a real drift) at the bridge.
There is also
no other sign warning motorists, when approaching the bridge, to
reduce speed. It therefore appears that these signs
were not
appropriate as far as the particular circumstances are concerned. No
doubt, a road sign should be informative and effective,
but certainly
not confusing. Having regard to these considerations, I conclude that
these road signs were not only inappropriate
but also ineffective in
warning motorists of a specific danger at the bridge. They can
therefore not be regarded as a reasonable
precaution with regard to
this particular danger.
[44]
it was also contended on behalf of the respondent that the accident
was caused by the sole negligence of the children’s mother
as
she was driving too fast under the prevailing circumstances. It is
important to point out that the deceased driver’s estate
is not
a party to these proceedings. It means that the question of the
mother’s contributory negligence is not in issue.
Proof of the
proverbial 1 % negligence by the respondent’s employees will be
sufficient. On the other hand, if the accident
was caused by the sole
negligence of the children’s mother, then the appeal should be
dismissed.
[45] It appears to
be common cause that the speed limit at the time of the accident was
100 km/h. There is no direct evidence (except
for calculations
performed by the expert witnesses) of the approximate speed at which
the Almera was travelling. Mr Nkuna’s
statement to the police
only refers to a “high speed". Even if one were to accept
this to be correct (which the witness
denied), then it is still not
clear whether this high speed was above the speed limit of 100 km/h,
or whether it was below it but
still too high bearing in mind the
dangerous situation at the bridge. There is also no evidence that the
children’s mother
had any prior knowledge of the dangerous
situation at the bridge.
[46]
As far as calculations and opinions of expert witnesses are
concerned, one has to take into account certain variables or
uncertainties,
for instance the distance travelled from the bridge to
the point of impact. According to the evidence of Mr Nkuna the bakkie
was
approximately 25 to 30 metres away from the approaching Almera
when he saw the driver thereof losing control. In reconstructing
the
point of impact Mr Grobbelaar testified that it was 57 metres from
the
second
undulation
where he found gouge marks indicating the probable area of impact. He
calculated the speed of the Almera to be somewhere
around 80, 100 or
110 km/h.
[47]
According to Mr Van Vuuren the actual point of impact was 79,23
metres away from what appears to be the
first
undulation
and therefore he calculated the speed of the Almera (assuming the
approaching speed of the Nissan bakkie was in fact
60 km/h) to be 143
km/h. To complicate the matter even further, the accident report form
(in exhibit “B”) indicates
that the distance between the
bridge and the point of impact was 48 metres (60m minus 12m). What
distance should be used to calculate
the speed of the Almera? Is it
48 or 57 or 79.23 metres?
[48]
In
Owners
of MV Banalar Mookh v Transnet
2012
(4) SA 300
(SCA) at 319E the following was pointed out in this
regard:
"(T)he
expert tasked with reconstructing what occurred is often dependent
for the reconstruction not simply oh the application
of scientific
principle to accurate data but on calculations based on imperfect
human observation. The fact that the reconstruction
rests on a
potentially imperfect foundation is the reason for caution in
determining its evidential value. ”
[49] Having regard
to this word of caution, I have to point out a further number of
aspects which are not clear when an attempt
is made to calculate the
speed of the Almera. First, according to the evidence of Mr Nkuna and
Mr Engelbrecht other accidents had
also occurred in the vicinity of
the bridge. As Mr Grobbelaar visited the scene of the accident only
on 15 February 2012 (more
than three years after the accident in
question) one can only assume, at best, that the area of impact
identified by him relates
to the accident in question and not any
other. Second, Mr Grobbelaar measured the distance from the second
undulation to the point
of impact, whereas Mr Van Vuuren apparently
used the first undulation as his starting point. The two undulations
are at least (if
not more) 13 metres apart (length of the bridge as
measured by MrGrobbelaar and referred to in his report, appendix
“A1”).
Third, and perhaps most importantly, where did the
driver of the Almera lose control? Was it at the first or second
undulation
or was it even after that?
[50] If the
undisputed evidence of Mr Nkuna indicating a distance of
approximately 25 to 30 metres between the two approaching vehicles
were to be accepted, then it is possible that the driver of the
Almera lost control after the second undulation. This was also
the
view of Mr Grobbelaar who testified that the Almera must have “jumped
twice" as it went through the first undulation
into the second
one when the driver thereof probably lost control.
[51] Having regard
to all the variables, uncertainties and different possibilities
referred to above, it should follow that the
calculation of 143 km/h,
as suggested by Mr Van Vuuren, should be looked at with
circumspection, to say the least. As a matter
of fact, this should
apply to any attempt to calculate the speed of a motor vehicle under
these circumstances. One should be careful
not to draw conclusions
based on unproven facts or to accept a calculation which rests on a
potentially imperfect foundation. A
court should still decide whether
it can safely accept an expert’s opinion or his calculation,
even in the absence of an
opposing view by another expert witness.
[52]
However, the Court
a
quo
followed
a different approach. The learned Judge expressed himself as follows
in this regard:
"It
was submitted by plaintiff’s counsel that Mr Van Vuuren’s
testimony that according to his calculations the
Almera was probably
travelling at about 143 km/h was not put to the plaintiff’s
expert for comment. However, in this regard,
as I said earlier,
MrGrobbelaar had ample opportunity to express an opinion regarding
the speed after obtaining the colour photographs
and the speed of the
Nissan LDV but failed to do so. In the result, Mr Van Vuuren’s
evidence on this aspect stands undisputed.”
(par
68)
[53] Unfortunately I
cannot agree with this conclusion. Mr Grobbelaar had already
explained that there are too many variables to
be decisive. This is
not an expert opinion. This is a fact which has already been pointed
out above. Notwithstanding this, Mr Grobbelaar
nevertheless attempted
to calculate the speed of the Almera. Without being unyielding, he
indicated a wide range of possibilities,
somewhere between 80 to 110
km/h.
[54]
Furthermore and perhaps more importantly, the Trial Court failed to
take into account the potentially imperfect foundation
upon which Mr
Van Vuuren’s calculation was based. This relates,
inter
alia,
to
the question which distance should be accepted as the most reliable
for purposes of calculating the Almera’s speed. This
issue has
already been discussed above. There is no reason, in my view, to
accept the distance and calculation suggested by Mr
Van Vuuren and to
reject all the other possibilities. There are no proven facts or
probabilities indicating that his calculation,
amongst several
conceivable ones, can safely be accepted as the most reliable to
indicate the possible speed of the Almera.
[55]
For these reasons I think the Court a
quo
misdirected
itself when it concluded that the deceased driver failed to comply
with the speed limit. There is not sufficient and
reliable evidence
to justify such a conclusion. Even if one were to accept that she was
driving too fast under the prevailing circumstances,
then in my view
there is still not sufficient evidence to conclude that the accident
was caused by her sole negligence.
[56] Having regard
to all the evidence and circumstances of this case, I am of the view
that a reasonable person responsible for
the maintenance of this road
would not only have foreseen the consequences of the danger at the
bridge, but would also have guarded
against it by having executed the
necessary repair work to provide a safe road. Furthermore, having
regard to the fact that a severe
and dangerous road condition at the
bridge had already existed at the time of the accident, the
precautions taken to guard against
foreseeable harm cannot be
regarded as reasonable. The danger at the bridge was a longstanding
problem not properly addressed in
time and the road signs were not
effective to warn motorists of this specific problem at this specific
place. There was also not
an appropriate sign warning motorists to
reduce speed when approaching the bridge. Having regard to the
gravity of the possible
consequences and the fact that employees of
the respondent were aware of this danger, I have to conclude that
they were negligent
by failing to rectify the problem properly and
timeously. A dangerous condition on a public road cannot be allowed
to continue
indefinitely in the hope that a few inappropriate and
ineffective road signs will take care of it. People’s lives may
be
at stake. Fixing the problem as soon as possible should always be
a priority.
CAUSATION
[57] The last
question to be considered is whether there is a causal link between
the dangerous section of the road at the bridge
and the accident.
There is direct and undisputed evidence of how the accident occurred.
Mr Nkuna noticed how the Almera hit the
hump and then “jumped”
whereafter the driver thereof lost control. This evidence is
supported by Stefaan who felt a
sudden jolt whereafter he lost
consciousness.
[58] As far as
drawing inferences are concerned, Mr Grobbelaar also testified that,
having regard to the angle between the two vehicles
at the point of
impact, the Almera must have been out of control. Taking into account
the finding that the undulation was severe
and dangerous, and in the
absence of any acceptable evidence to the contrary, there can only be
one logic conclusion - the dangerous
condition of the road at the
bridge was the direct cause of this collision. In the result it
should follow that the appeal must
succeed.
ORDER
The following order
is granted:
1. The appeal is
upheld with costs which shall include the costs of senior counsel;
2.
The order of the Court
a
quo
is
set aside and replaced with the following:
2.1. It is declared
that the defendant is 100% liable to compensate the plaintiffs, in
their representative capacity on behalf of
the two minor children
referred to in paragraph 1.1 of the particulars of claim, in respect
of the damages suffered by them arising
out of a motor vehicle
accident which occurred on 13 December 2008, the extent of such
damages to be proven or agreed upon;
2.2. The defendant
is ordered to pay the plaintiffs’ party and party costs, which
shall include the following:
2.2.1. the
reasonable costs of obtaining expert reports of Mr Grobbelaar and Mr
Berg;
2.2.2. the
reasonable preparation and qualifying fees of Mr Grobbelaar and Mr
Berg;
2.2.3. the
reasonable reservation fees of Mr Grobbelaar and Mr Berg for
attending the trial;
2.3. Mr Nkuna and Mr
Engelbrecht are declared to be necessary witnesses.
D S FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA
I agree:
D S MOLEFE
JUDGE
OF TflE HIGH COURT
PRETORIA
I agree:
J A MOTEPE
ACTING
JUDGE OF THE
HIGH
COURT
PRETORIA
Date: