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 597
|
|
Bester v Sivakumar (15542/2013) [2015] ZAGPPHC 597 (23 July 2015)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED√
23
July 2015
____________
DATE SIGNATURE
23/7/2015
CASE NO:15542/2013
THOMAS
WILLIAM
BESTER
PLAINTIFF
AND
DHARINI
SIVAKUMAR
DEFENDANT
JUDGMENT
THOBANE
AJ,
INTRODUCTION
[1]
The plaintiff instituted an action against the defendant for damages
to his vehicle which were a consequence of a motor collision
that
occurred between his motor vehicle and a motor vehicle driven by the
defendant.
[2]
The plaintiff, who is an Advocate, testified in his own case and
called his son, who was a passenger on the day of the collision,
as
his witness. The defendant, a lecturer, testified in her own case and
called no other witnesses.
[3]
The parties indicated at the commencement of proceedings that the
question of quantum was not up for determination as they had
agreed
thereto and that the issue to be determined was liability. It was
further indicated that the plaintiff had no specific interest
in the
matter as his claim was settled by his insurers and that he was
before court on the basis of subrogation. The following
issues were
common cause;
•
The
date, place and time of the collision,
•
Locus
standi
of the plaintiff,
•
The
direction in which both vehicles were moving before the collision,
•
The
parties’ respective quantum of the damage,
•
The
point of impact and,
•
A
map from Google Earth depicting the intersection.
PLAINTIFF’S CASE
[4]
Plaintiff testified that on the 20th April 2010 he was traveling on
Arcadia Street at about 7:00 AM, taking his son to Pretoria
Boys High
School. He was traveling from East headed Westwards on Arcadia Street
approaching the intersection of Arcadia and Eastwood
Streets. At the
time it was peak hour traffic. The intersection is controlled by a
stop sign only for vehicles traveling on Arcadia
Street. There was a
vehicle ahead of him that had stopped at the stop street. Due to the
volume of traffic, so he testified, motorists
on Eastwood Street
clear the intersection from time to time to allow vehicles traveling
on Arcadia Street to cross over or join
the procession on Eastwood
Street. The vehicle ahead of him was permitted, by those vehicles on
Eastwood Street, to drive trough
which it then did.
[5]
He stopped at the stop street and the vehicles to his right and left,
traveling on Eastwood Street cleared the intersection
to allow him to
go through. While crossing, a Toyota vehicle overtook vehicles which
had stopped to allow him to pass through,
on the left hand side and
collided with his motor vehicle. The Toyota, driven by the defendant,
was traveling from South to North
on Eastwood Street. The weather had
been clear on the day and the road surface was dry. Nothing
obstructed his view in the vicinity
however he would not have been
able to see a vehicle overtaking the stationary vehicles on their
left. This was due to the stationary
vehicles that allowed him to
pass through, which had blocked his line of vision. The “nose”
of his vehicle had been
about three quarters of the way through on
the North bound lane, “the empty lane”, when the
collision occurred. He
further indicated that Eastwood Street is a
single carriage lane in both directions, however the lanes are wide
enough to accommodate
two vehicles on each side.
[6]
After the collision he exchanged details with the defendant who
indicated that she will report the collision to the police.
He was at
the time concerned that his son be taken to school timeously, so he
arranged that the tow truck do so. His motor vehicle
was damaged on
the front left hand side ahead of the left front arch of the fender.
He did not observe the damage on the defendant’s
motor vehicle.
He denied that he did not stop at the stop street and that he drove
negligently on the day.
[7]
During cross examination it was put to him that he had an interest in
the matter in that should he succeed with the action it
could have an
impact on his insurance premium. He indicated that he had not given
that any thought and that he was was not aware
of the benefit. He
further disputed that he stood to benefit. He stated that the trial
was a huge inconvenience to him. He conceded
that Eastwood Street was
a broad street capable of carrying two sets of motor vehicles in each
direction. He stated that traffic
was heavy on the day and that as a
result traffic had been heavily backed up. Further, that at the
intersection of Francis Bard
and Eastwood, due to the volume of
traffic, vehicles had formed two lanes. He agreed that motor vehicles
traveling on Eastwood
Street had right of way. He stated that after
he had stopped at the stop street he proceeded slowly at a speed of
between 5 to
10km/h. It was put to him that at that speed the damage
on his motor vehicle would have been a small bump. He indicated that
the
vehicle driven by the defendant had been traveling fast. He did
not see the defendant’s vehicle go out of its lane and
thereafter
proceeding to overtake other vehicles. He noticed it
shortly before the collision. He denied that the road surface was wet
on the
day in question and that it was drizzling. It was put to him
that the defendant could not have been traveling at more than 50km/h
which he accepted. He denied that he crossed the intersection
traveling at about 50 to 60km/h and described it as sheer madness
and
that it would have been suicidal of him to do so.
[8]
Dylan Pattison, the plaintiff’s son, testified that he was a
passenger in the vehicle driven by the plaintiff and that
they were
on their way to drop him off at school. He was at the time 18 years
of age. He observed that traffic was heavily backed
up all the way
through to Schoeman Street. They were traveling on Arcadia Street and
at the stop street after they had stopped,
cars traveling on Eastwood
Street stopped and waved them in to cross and pass through. He went
on to say that although Eastwood
is a single lane street it is wide
enough to carry two sets of vehicles in each lane. They were crossing
the road when a vehicle
overtook other vehicles on the left and
crashed into the vehicle in which he was a passenger. He did not see
the vehicle approach
until the very last moment before the collision.
He indicated that his recollection was that the weather was clear on
the day in
question. He disputed that his father had been traveling
at about 50km/h.
[9]
During cross examination he reiterated that there was heavy traffic.
He stated that he observed his father stopping at the stop
street and
that thereafter they were waved in by other vehicles which had
created space for them to pass through. He could not
remember the car
in front of them passing through the intersection as testified to by
his father. He did not see the defendant’s
vehicle coming as
their view was obscured by other vehicles up until the moment of
impact. He disputed that the lane in which the
collision occurred was
being used as a second lane on the day of the collision. He disputed
the version put to him that the defendant
had not been overtaking but
that she was simply driving on the left hand side which was being
used as the second lane. He further
disputed that they did not stop
at the stop street or that they had driven in rolling stop manner.
DEFENDANT’S
CASE
[10]
The defendant testified that on the day in question visibility was
clear. She indicated that the previous night it was raining
and that
shortly before the collision it was drizzling. On the day she had
dropped her son at school and was on her way to the
fresh produce
market. She was familiar with the road and she used it frequently.
Traffic was heavy on the day but it was not backed
up. The cars were
not standing still, they were moving slowly. She was driving towards
Pretorius Street on the left lane which
she did frequently on that
stretch of road. Near Arcadia Street as she was approaching she
looked ahead. She had right of way and
she proceeded to drive
through. The next thing a car collided with her. She didn’t see
it approaching. She indicated that
she could not have avoided the
collision. After the collision her vehicle spun some 360 degrees. She
could not tell where the plaintiff’s
vehicle came to a stand
still after the collision although she reluctantly estimated that the
vehicles could have been three meters
apart. The damage on her
vehicle was to the drivers door towards the front of the vehicle.
They exchanged details and she proceeded
to the police station to
report the collision. On the day of the collision both the
North-South and the South-North lanes were
used as dual carriage
lanes.
[11]
She was cross examined about her international driving permit. She
conceded that it did not state the period of validity as
it was
supposed to. She stated further that she was not aware that in terms
of South African law a license is not valid if not
signed, like hers.
With regard to the collision, she explained that there were two sets
of cars in both directions on Eastwood
Street but that traffic was
heavier on the lane of cars traveling towards Schoeman Street. Cars
were moving slowly in a stop start
manner. She indicated that the
plaintiff did not stop at the stop street but came like a bullet. She
was referred to the accident
report which was deficient in some
respect relating to how she reported the collision to the police. She
was probed as to why she
did not tell the police that the plaintiff
had failed to stop at a stop street as this was a central pillar of
her case, to which
she replied that it was her first accident and
that she was in shock. After the collision she asked the plaintiff
why he did not
stop, to which the plaintiff replied that people had
waved for him to pass through.
[12]
It was agreed that the parties would submit written heads of
argument. A time line was agreed to which spelled out such
submission.
The heads were detailed and very helpful.
CLOSING
ARGUMENTS
[13]
It was argued on behalf of the plaintiff that the court was faced
with two mutually destructive versions and that in such circumstances
the court should take one version and reject the other. It was
further submitted that the defendant had simply failed to deal with
certain important aspects in her testimony, her evidence was
improbable and that she could not or she refused to answer certain
questions and/or respond to reasonable propositions put to her.
[14]
A further submission was that the defendant was a single witness and
that her testimony was without corroboration. It was therefore
argued
that her version should be rejected as not reasonably possibly true.
Further, that it was apparent that she had executed
a dangerous
maneuver when she overtook on the wrong side of the road.
[15]
It was submitted that the defendant did not have a valid driver’s
license on the day of the collision. That she had a
legal duty to
keep a proper look out which included not overtaking on the wrong
side of the road and also ensuring that she observed
what was taking
place in her surroundings, which she failed to do.
[16]
Finally, it was submitted on behalf of the plaintiff that the version
of the defendant should be rejected and a finding be
made that she
was the sole cause of the collision. Alternatively, that she
contributed 80% to the collision and that negligence
be apportioned
accordingly. Lastly, that should her version be accepted, an
apportionment of 50% be applied.
[17]
The legal representative of the defendant argued that the versions
before court were not necessarily mutually destructive version.
He
argued that;
“
Subjective
perception of
the
same
event
does
not
render
such
perceptions mutually
destructive
specifically
where
the
facts
not
in dispute,
exhibits
and
circumstances
favour
a
specific
version.”
[18]
It was further argued that due regard should be given to the inherent
probabilities and improbabilities in the respective versions.
That if
that were to be done, then the version of the Defendant will be found
to be more probable and will be in line with the
exhibits.
[19]
The fact that the license of the Defendant was not signed, does not
render her to be negligent in terms of the reasonable man
test, so it
was argued. Further, that there is a duty on a vehicle to drive on
the left and to pass or overtake on the right and
that on the day in
question the Defendant was not in the wrong.
[20]
The Defendant’s legal representative was of the view that the
Plaintiff failed to keep a proper look out on the day of
the
collision and that he entered the intersection at high speed.
THE
LAW
[21]
It is trite that the plaintiff always bears the onus of proving
negligence on the part of the defendant on a balance of
probabilities.
See
Arthur
v
Bezuidenhout and
Mieny
1962
(2)
SA 566
(AD)
at
576G;
Sardi
and
Others
v
Standard
and
General
Insurance
Co
Ltd
1977
(3)
SA
776
(A)
at
780C-H
and
Madyosi
and
Another
v
SA Eagle
Insurance
Co
Ltd
[1990] ZASCA 65
;
1990 (3)
SA 442
(E)
at 4440-F.
In determining whether the plaintiff
has succeeded in discharging this onus, the court has to view the
entire evidence which was
led during the trial in its entirety.
[22]
To the extent that there are two mutually destructive versions, the
manner of handling such versions is trite. In dealing with
the
mutually destructive versions, the approach to be adopted was clearly
spelt out in
National
Employers
General
Insurance
Co
Ltd
v Jagers
1984 (4)
SA 437
(E)
at 440E-441A,
where Eksteen AJP said:
“
It seems
to
me,
with respect,
that
in
any
civil
case,
as
in
any
criminal
case,
the
onus
can
ordinarily
be
discharged
by
adducing
credible evidence
to
support
a
case
of
the party
on
whom
the
onus
rests.
In a civil
case
the
onus
is
obviously
not
as
heavy
as
it
is
in
a
criminal
case, but
nevertheless
where
the
onus
rests
on
the plaintiff
as
in
the present case,
and
where
there
are
two
mutually
destructive
stories,
he
can
only
succeed
if
he
satisfies
the
Court
on
a preponderance of probabilities that
his
version
is
true
and
accurate
and
therefore acceptable,
and
that
the
other
version
advanced
by
the
defendant
is therefore
false
or
mistaken
and
falls
to be
rejected.
In
deciding
whether that evidence is true or not the Court will weigh up and
test the
plaintiff’s allegations against the
general probabilities.
The estimate of credibility of
the witness will therefore be inexplicably
bound
up
with a consideration
of the probabilities
of
the case and, if the balance
of probabilities
favours the plaintiff,
then the
Court
will accept his
version as being probably
true.
If, however,
the probabilities are evenly balanced
in
the sense
that they
do
not favour the plaintiff’s case any more
than
they do the defendant’s,
the plaintiff
can
only succeed if the
Court nevertheless
believes
him and is satisfied
that his evidence
is
true and that the defendant’s
version is false.
This view seems
to me to be in general
accordance
with
the view expressed
by
COETZEE,
J
in
Koster
Kooperatiewe
Landboumaatskappy Bpk v
Suid-Afrikaanse
Spoorwee en Hawens
(supra)
and
African
Eagle Assurance
Co
Ltd
v
Gayner
(supra). I would merely
stress, however,
that when in such circumstances
one talks about
a plaintiff
having
discharged
the
onus which rested
upon him on a balance
of
probabilities
one really means that the Court is
satisfied
on a balance probabilities
that
he
was telling the truth and that his
version
was therefore acceptable.
It does not
seem
to me desirable
for a Court first to consider
the question
of the credibility
of
the witnesses as the trial Judge
did in the present
case, and then, having
concluded
the
enquiry,
to consider
the probabilities
of the case, as though the two aspects
constitute
separate
fields or enquiry
In
fact, as I have pointed
out, it is only
where
a consideration of the probabilities
fails to indicate
where the truth probably
lies, that
recourse
is
heard to an estimate
of relative
credibility
apart from the probabilities.”
[23]
The technique to be applied when confronted with mutually destructive
versions was spelled out by the Supreme Court of Appeal
when it gave
the guidelines below,
Stellenbosch
Farmers’
Winery Group Ltd and Another
v
Martell Et CIE and Others
2003 (1) SA 11
(SCA),
where the
following is stated at 141-15G:
“
The technique
generally
employed by courts in resolving
factual disputes of this nature 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)
[credibility],
the court’s finding on the credibility of a
particular
witness will depend on its impression
about the veracity of the witness.
That in turn
will depend on a variety of subsidiary
factors,
not necessarily
in order of importance,
such as (i) the witness’[s]
candour and
demeanour
in the witness-box;
(ii) his
bias, latent 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;
(vi)
the calibre and cogency of his performance
compared to that of
other
witnesses testifying about the same incident
or events.
A s
to (b), a witness’
[reliability]
will depend, apart
from the factors mentioned under (a)(ii), (iv) and (vi)
above,
on (i)
the opportunities he had to experience or
observe the event in question and (ii) the quality and integrity and
independence of his
recall thereof As to (c)
[probabilities],
this necessitates an analysis and evaluation of the
probability or improbability of each
party’s
version on each of the disputed issues. In the light of its
assessment of (a), (b)
and (c)
the court will
then,
as
the final step, determine whether the
party
burdened with the onus of
proof has succeeded in
discharging it. The hard case, which will doubtless be the rare one,
occurs when a court’s credibility
findings compel it in one
direction and its evaluation of the general probabilities in another.
The
more convincing the former, the less convincing
will
be the latter. But when all factors are equipoised
probabilities prevail.” [Words in
square brackets
and emphasis
added.]
[24]
Every driver must keep a proper look out when driving. This standard,
of keeping a proper lookout, is even greater for a driver
who is
driving on the main road with intersections than a driver who is
driving on a road without intersections.
Marie and
Trade Insurance
Co.
Ltd
v Biyasi
1981 (1) SA 918
(A).
[25]
In circumstances where there is a stop street, the driver on the
through street, with a right of way, is still required to
keep a
proper lookout, drive at a reasonable speed and to take all
reasonable steps to avoid a collision. See
Guardian
National
Co
Ltd
v Saal
1993 (2) SA
161
(C);
Van Zyl
v
Gacie
1964 (2)
SA 434
(T);
and
SA Eagle
Versekeringsmaatskappy v
Harford
[1992] ZASCA 42
;
1992 (2)
SA
786
(A).
[26]
There is also an established duty of a driver to keep a proper
lookout when approaching an intersection. Such a driver is enjoined
to, when approaching an intersection, have regard to traffic coming
from a side street. He must take and exercise reasonable care
to
avoid colliding with vehicles entering the intersection from a side
street. The fact that a driver has right of way does not
diminish the
duty to keep a proper lookout.
Van der Westhuizen
v
SA Liberal
Insurance
Co.
Ltd
1949
(3)
SA
160
(C)
at
172.
[27]
Regulation 296 of The Road Traffic Act 93 of 1996 reads as follows”
296.
Vehicle to be driven on left side of roadway
(1) Any
person
driving
a
vehicle
on
a public
road
shall
do
so
by
driving on
the
left
side
of
the
roadway
and,
where
such
roadway
is
of sufficient
width,
in
such
manner
as
not
to
encroach
on
that
half
of
the roadway
to his
or
her
right:
Provided
that
such
encroachment
shall
be permissible
-
(a) where
it
can
be
done
without
obstructing
or
endangering other
traffic
or property
which is
or may
be
on
such
half
and
for
a
period
and
distance
not
longer
than
is
necessary
and
prudent
and provided
that
it
is
not prohibited
by
a
road
traffic
sign;
or
(b)
in
compliance
with
a
direction
of
a
traffic
officer
or
a
road traffic
sign.
(2)
The
provisions
of
subregulation
(1)
shall
not
apply
in
the
case
of
a
public
road
which is
restricted
to
traffic
moving
thereon
in
one direction
only.
[28]
Further, Regulation 298 provides as follows;
298.
Passing of vehicle
(1) Subject
to
the provisions of
subregulation
(2)
and
(4) and regulation
296,
the
driver
of
a
vehicle
intending
to pass
any
other
vehicle proceeding
in
the
same
direction
on
a public
road
shall
pass
to the right
thereof
at a
safe
distance
and
shall
not
again
drive
on
the
left
side
of
the
roadway
until
safely
clear
of
the
vehicle
so passed: Provided
that, in
the
circumstances
as
aforesaid,
passing
on
the
left
of such
vehicle
shall
be permissible
if
the
person
driving
the passing vehicle
can
do
so
with
safety
to himself
or
herself
and
other
traffic
or
property which is
or may
be
on
such
road
and
-
(a) the vehicle being
passed is turning to its right or the driver thereof has signalled
his or her intention of turning to his
or her right;
(b)
such road
is a public
road in an urban area and
–
(i) is restricted to
vehicles moving in one direction; and
(ii) the roadway is of
sufficient width for two or more lines of moving vehicles;
(c)
such road is a public
road in an urban area and the
roadway is of
sufficient
width for two or more
lines of moving
vehicles moving in
each
direction;
(d)
the roadway
of such road is restricted
to
vehicles moving in one
direction and is divided into traffic
lanes by appropriate road traffic
signs; or
(e)
he or she is driving in compliance
with the
directions of a traffic officer or is driving in traffic which is
under the general
direction of such officer, and in
accordance
with such direction:
Provided
further that in no event shall any passing referred to in
paragraph
(a), (b), (c) or (d) be done by driving on
the shoulders
of the
roadway or on the verge of
the public road concerned.
[29]
Driving on the shoulder of a road is not prohibited but is
permissible under certain circumstances. Regulation 298A provided
as
follows;
298A. Prohibition
on driving on shoulder of public road, except in certain
circumstances
(1) Subject to
subregulation (2) and regulation 298(1)(e), no person shall drive a
motor vehicle on the shoulder of a public road.
(2)
Notwithstanding subregulation
(1),
the
driver
of
a
motor
vehicle
may,
during
the period
between
sunrise
and
sunset,
drive
such
motor vehicle
on
the
shoulder
of
a public
road
which
is
designated
for
one lane
of
traffic
in
each
direction
-
(a)
while such motor vehicle is being overtaken by another vehicle; and
(b)
if he or she can do so without endangering himself or herself, other
traffic, pedestrians or property on such public road;
(c)
if persons
and
vehicles
upon
a
public
road
are
clearly
discernible
at
a
distance
of
at
least 150 metres.
ANALYSIS
[30]
On one hand the plaintiff had a duty to stop at the stop street and
to enter the intersection only when it was safe to do so.
On the
other hand the defendant is entitled to assume that vehicles
approaching the main road with the intention of entering it,
will do
so when it was safe to do so.
[31]
The general rule for driving on South African roads is trite namely,
“keep left pass right”. Vehicles may be passed
on the
left hand side in circumstances provided for in Regulation 298 and
298A. The version of the defendant is not to the effect
that she was
passing vehicles as permitted by regulations. Her version is that
vehicles had formed two processions and that she
was part of the
procession that was on the left.
[32]
Having regard to the versions before me and considering the evidence
tendered, I am of the view that the version of the plaintiff
is more
probable than that of the defendant for the following reasons;
32.1.
There was heavy traffic on the day, more specifically on Eastwood
Street.
32.2.
The plaintiff approached a stop street and stopped there at. I find
the version by the plaintiff that had drivers on Eastwood
Street not
waved them in or created space for them to cross over or to even join
the procession either way, that they would have
had to wait for a
long time, to be in line with logic and common sense and therefore
more probable. All those who testified were
in agreement that there
was heavy traffic on Eastwood Street and the evidence that they were
waved in, was not placed in dispute.
In fact the defendant testified
that on speaking to the plaintiff after the collision he said to her
that they had been waved in
by other motorists.
32.3. Given the fact that
traffic was heavily backed up, the defendant’s contention that
the plaintiff entered the intersection
“like a bullet”,
without stopping, at the stop street. is in my view improbable. There
most probably would have been
three other sets of cars, or
processions, on her version, to contend with. There would have been
two sets of vehicles, side by
side, traveling from North to South.
There also would have been a single procession to the right of the
defendant, traveling South
to North. Having regard to all those
variables and the version by the plaintiff that another vehicle,
ahead of him, had been allowed
to cross over, which version was not
disputed, I can not see how the plaintiff would have been able to
simply drive through the
intersection “like a bullet”.
The plaintiff s response to such postulation to the effect that that
it would have been
“suicidal” and “madness”
to do so, is in my view not without justification.
32.4.
The plaintiff s vehicle had been three quarters of the way into the
intersection when the collision occurred. The point of
impact, which
is not in dispute and which was shown to be on the left of the
vehicles traveling South to North on Eastwood Street,
points to the
fact that the defendant passed vehicles to their left, which vehicles
had stopped to allow the plaintiff to pass
through. The version of
the defendant to the effect that the vehicles to her right were
moving slowly is not supported by the dictates
of simple common
sense. If it were true, then those vehicles would have collided with
the right of the plaintiffs vehicle alternatively,
plaintiff would
have collided with any of then as he entered the intersection
“without stopping” while “driving
like a bullet”.
The version of the defendant, on this aspect, is rejected as
improbable.
32.5.
During cross examination, the defendant was quizzed about the fact
that a version was put to the plaintiff to the effect that
she had
been traveling at 50km/h. In response she said she had been traveling
between 40 and 50 km/h. It was thereafter put her
that the version of
the plaintiff was that 40 km/h was a dangerous speed to travel at in
circumstances where traffic was backed
up and vehicles traveling in a
stop and go manner. To this she responded that she couldn’t say
that it was 40 to 50km/h but
that her motor vehicle may have been in
second gear. Probed further she relented and said she wasn’t
sure about speed. In
my view this was the undoing of her version to
the effect that she had been driving at acceptable speed on the day.
I therefore
find that she was driving fast on the day in question, in
relation to and in comparison with the vehicles that were to the
right
of her on the same lane, with the aim of passing them.
32.6.
The damage to the defendant’s motor vehicle is not consistent
with the version that the plaintiff was traveling at high
speed. The
version of the defendant is therefore rejected as it does not accord
with the probabilities.
32.7.
Lastly, the defendant testified that as she approached the
intersection she looked ahead. In so far as the duty to keep a
proper
lookout is concerned, the defendant’s conduct, that of looking
ahead while approaching an intersection fell short
of what was
required of her. The duty to keep a proper lookout means more than
just looking straight ahead. It includes awareness
of what is
happening in one’s immediate surroundings. A driver should have
a view of the whole road from side to side and
in the case of a road
passing through a built-up area, as well as the pavements on the side
of the road. See
Diale
v
Commercial Union Assurance
Co
of
SA Ltd
1975 (4)
SA 572
(A).
[33]
I hold the view that the plaintiff has discharged the onus resting on
him to prove on a balance of probabilities that the defendant
was
negligent.
[34]
The defendant has filed a counter claim. The plaintiff pleaded to the
merits thereof and in the alternative pleaded that negligence
be
apportioned. Side by side the counterclaim is a determination as to
whether there was contributory negligence.
[35] The counterclaim
is premised on the grounds that the plaintiff was negligent in one or
more or all of the following respects;
35.1.
He failed to keep a proper look out,
35.2.
He drove at a speed in excess of the speed limit,
35.3.
He failed to keep a proper lookout for other road users,
35.4.
He failed to take due regard to driving and road conditions and to
drive according thereto,
35.5.
He failed to apply brakes timeously, alternatively at all,
35.6.
He failed to stop at a stop sign and yield to oncoming traffic that
had right of way and entered the intersection when he
was not allowed
to do so and when it was not safe to do so, and,
35.7.
He failed to avoid a collision in circumstances where he could and
should have done so.
[36]
There was a contradiction between the version of the plaintiff and
that of the defendant as to the road surface on the day
in question.
The testimony of the plaintiff was that the road surface was dry
whereas the defendant testified that the road surface
was wet. This
contradiction was captured in the accident report as well as the
testimony of both witnesses. Both parties were however
in agreement
that visibility was clear. In my view, given the fact that there was
no evidence, from either side, that the appearance
and condition of
the road surface played a role, the discrepancy does not in anyway
contribute to the question of negligence by
any of the parties.
[37]
The other issue that does not contribute to the question of
negligence is the license or the international driving permit of
the
defendant. Some time was spent during cross examination dealing with
this aspect. Some effort was also put into addressing
it in argument.
That it was not signed as required by law and that there was no
duration or period of its validity, does not assist
this Court, in
the circumstances of this case, in making a determination as to
negligence. In this regard I agree with the submission
made by the
defendant’s legal representative.
[38]
The duty to keep a proper lookout, as mentioned above, applies to the
plaintiff in equal measure. His conduct on the day has
to be viewed
through that prism. He must be subjected to the same test of a
reasonable driver in his position on the day of the
collision.
[39]
If the plaintiff had kept a proper lookout, applied his brakes and
taken steps to avoid the collision when he was in a position
to do
so, then the collision would not have occurred. The plaintiff
testified that he did not see the defendant’s vehicle
right up
until the moment of collision. I am mindful of his evidence that his
view was obscured by the vehicles which were to his
left, I however
remain of the view that had he kept a proper lookout he would have
been able to take some action in an attempt
to avoid the collision.
The fact that he did not take any evasive action, upon noticing the
defendant’s vehicle, is in my
view indicative of a failure to
keep a proper lookout.
[40]
I am unable to find that he drove at an excessive speed nor am I able
to find that he failed to stop at a stop street. As indicated
above,
I hold the view that he did in fact stop at the stop street and was
waved through by other drivers. I am therefore of the
view that he
failed to keep a proper lookout and that he failed to take all
reasonable steps, which included taking evasive action,
to avoid the
collision.
[41]
Consequently, I find that the plaintiff contributed to the collision
and that the degree of negligence has to be apportioned
between the
plaintiff and the defendant.
[42]
In the result, I assess the defendant’s blame at 80% and that
of the plaintiff at 20%. This blame applies to both the
main action
and the counterclaim.
[43]
I am also of the view that the costs should follow the result.
[44]
I therefore make the following order,
44.1. The defendant is
held liable to compensate the plaintiff for 80% of the damages as
agreed to between the parties;
44.2.
The defendant is ordered to pay the costs.
___________________________
S
A THOBANE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Plaintiff: Adv. G. Beytel
Instructed
by: Carvalho Attorneys, Pretoria
Counsel
for the Defendant: Adv. A.J.Swanepoel
Instructed
by: Jay Inc., Pretoria