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[2007] ZASCA 158
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Venter obo Klaasen v Road Accident Fund (660/2006) [2007] ZASCA 158; [2007] SCA 158 (RSA); [2008] 2 All SA 165 (SCA) (29 November 2007)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
NOT
REPORTABLE
CASE NO: 660/2006
In the
matter between
LARINA VENTER obo
ARNOLD KLAASEN
.......................
APPELLANT
and
ROAD ACCIDENT FUND
.......................
RESPONDENT
CORAM:
MTHIYANE, HEHER, VAN HEERDEN, MLAMBO JJA and KGOMO
AJA
HEARD: 13 NOVEMBER 2007
DELIVERED: 29 NOVEMBER 2007
Summary: Claim for damages arising out of injuries sustained by a
pedestrian in a hit and run motor vehicle accident – whether
negligence of the driver established by the single eyewitness account
and by inferences to be drawn from the facts.
Neutral Citation: This judgment may be referred to as
L
Venter obo A Klaasen v Road Accident Fund
[2007] SCA 158
(RSA).
JUDGMENT
MTHIYANE JA
MTHIYANE JA:
[1] What began as an occasion of enjoyment ended in disaster for Mr
Arnold Klaasen, who has been deaf and mute since the age of three.
On
3 June 1995 Klaasen, some of his friends and his relative, Mr Nigel
Bosman, watched a World Cup rugby match on television at a
friend’s
house. A short while after leaving the house he lay injured at the
edge of the road, from where he was removed to
hospital by
paramedics. He had sustained a ‘head injury with left frontal
contusion and scalp degloving injury.’ Prior
to sustaining
these injuries, Klaasen was in good health and able to retain
employment. He now suffers from epilepsy, his mental
capacity has
been detrimentally affected and he has been rendered unemployable.
[2] Klaasen instituted action in the Cape High Court against the
respondent, the Road Accident Fund, claiming damages in the amount
of
R1 479 570,26 for loss allegedly suffered in consequence of a
collision with a hit and run motor vehicle in Steenbras Road,
Pineview,
Grabouw on 3 June 1995. Prior to the trial, the appellant
was appointed as Klaasen’s curator ad litem. At the trial
before
Allie J the parties agreed to proceed with the merits only,
the question of
quantum
to stand over for determination at a
later stage.
[3] In its plea the respondent disputed that Klaasen had been injured
in a motor collision and, in the alternative, alleged that
in the
event of the collision being proved, the driver of the vehicle
concerned had not been causally negligent.
[4] The sole eyewitness to the collision was Bosman. He testified
that, on 3 June 1995, after watching the rugby match at the house
of
a friend (Kobus), he left the house and, together with Mr Randall
Brett and others, stood in the front yard talking for a while.
In the
meantime Klaasen walked ahead, stepped out of the gate and stood on
the pavement. It was about 22.45 and already dark.
[5] Just then Bosman heard a vehicle approaching at speed and as he
turned he saw a bakkie mount the kerb onto the pavement. As it
veered
off back towards the road its left front side caught Klaasen, causing
him to fall so that his head or face came into contact
with the
pavement. Bosman described what he observed as follows:
‘
die
bakkie het baie hard aangekom en toe ons omdraai toe is dit net wat
die bakkie op die kerb klim en weer af en hy vang Arnold [Klaasen]
en
Arnold [Klaasen] val toe met sy gesig op die pavement.’
Later on he amplified what he saw:
‘
En
toe ek omdraai wat ek sien dis `n bakkie en die bakkie klim op die
kerb en hy vang vir Arnold en hy is weer in die pad sonder “brake”
het hy of iets en hy net aangejaag.’
[6] Brett also gave evidence but this did not take the matter much
further. He did not see how the collision occured. He merely heard
a
bang (‘slag’) and as he turned he saw the bakkie drive
away from the scene. He described the event as follows:
‘
Arnold
[meaning Klaasen] gaan stilstaan daar op die sypaadjie en terwyl ons
nog gesels het ek `n slag gehoor.’
[7] After the collision the wife of Kobus, the owner of the house
where Bosman, Klaasen and the others had been watching rugby,
telephoned
the police to report the accident and summon the
ambulance.
[8] Bosman gave an account of what had happened to the policeman, Mr
Ian Bredell, who attended the scene of the accident. He pointed
out
various points, in particular the point of impact as being at the
edge of the pavement. Bredell drew a plan of the accident indicating
amongst other things that he found Klaasen lying at the edge of the
pavement. His head was resting on the pavement and the rest of
his
body on the road. In his accident report Bredell recorded that the
accident happened at 22.45 and the sketch plan was drawn at
23.30
that night.
[9] Although Bosman pointed out to Bredell the various points at the
scene and gave a description of the accident, Bredell did not
take a
statement from him that evening. Bredell said he did not do so
because Bosman was under the influence of liquor. Bosman subsequently
made a statement to the police on 5 June 1995. Two years later on 20
May 1997 he made a further statement which was lodged with the
respondent, together with Klaasen’s claim. During
cross-examination the statements were put to Bosman by counsel for
the respondent
in an attempt to show that they were inconsistent with
the version he gave in court. The exercise does not appear to have
borne much
fruit, as I will demonstrate shortly. As to Klaasen’s
exact position when the vehicle collided with him Bosman said in his
first statement:
‘
Arnold
[Klaasen] was reeds naby die rand van die pad gewees. Hy was nog
steeds in die sypaadjie gewees.’
In the second statement he said:
‘
Arnold
[Klaasen] het toe gegaan stilstaan. ‘n Voertuig het van agter
gekom en vir Arnold raakgery waar hy stilgestaan het op
die
sypaadjie.’
[10] The respondent disputed that Klaasen had been injured in a motor
vehicle and suggested that he had been injured in an assault.
The
assault theory was introduced by Professor J W van der Spuy whom the
respondent called as an expert witness, who was described
in court as
having wide experience in the research of traffic collisions. His
expertise was not disputed. He compiled a report to
which he spoke
and which was handed into court as evidence. In the report the
professor asserted that it was improbable that Klaasen’s
‘injuries resulted from a pedestrian traffic incident . . . ’.
He refuted any suggestion that the accident could have
happened as
described by Bosman and asserted that the ‘injury pattern and
nature of the lesions favour assault more than pedestrian
traffic
trauma.’ I will return to the professor’s evidence later
in the judgment. Suffice it to say that the professor
did not qualify
himself as an expert on how objects react in a collision on impact.
His views expressed in this regard are thus no
more than the views
that would be expressed by a lay person.
[11] At the trial before Allie J, the appellant’s claim was
dismissed with costs. The learned judge held that the appellant
had
failed to adduce direct credible evidence that he had been injured in
a motor vehicle accident and that he had thus failed to
prove on a
balance of probabilities that he was injured in a motor vehicle
collision. The learned judge refused leave to appeal.
However with
the leave of this court, Klaasen appealed to the full bench of the
Cape High Court. That court took the view that there
was sufficient
evidence to show that Klaasen had indeed been injured in a motor
collision but held that the appellant had failed
to prove that the
driver of the hit and run vehicle had been causally negligent.
[12] As to whether or not the appellant had been involved in a motor
vehicle collision Meer J (with Selikowitz and Motala JJ concurring),
said:
‘
I
find it highly improbable that the group that night in their state of
inebriation would have had both the presence of mind and ingenuity
to
fabricate a motor collision and would have recounted this fabrication
convincingly to the police in the short time span between
the injury
being inflicted and the arrival of Bredell. It is moreover highly
improbable that had Klaasen been assaulted, an assault
charge would
not have been brought. There is in any event no evidence to suggest
he was in fact assaulted. In the light of all of
the above the
probabilities suggest to me that Klaasen was hit by a vehicle, fell
on the kerb and incurred the injuries on falling.’
I am in agreement with the above finding. During argument counsel for
the respondent was constrained to concede that the motor vehicle
collision had in fact occurred, and that Klaasen had been injured in
that collision. Counsel thus confined the rest of his argument
to the
question of negligence. In my view the concession was well made and
it therefore renders it unnecessary to subject the evidence
of
Professor van der Spuy to any analysis on this aspect.
[13] This brings me to the question of negligence, which was dealt
with very briefly by the court
a quo
. The court rejected
Bosman’s version that Klaasen was on the pavement when the
collision occurred and that the hit and run
vehicle had mounted the
pavement. It found Bosman’s testimony to be inconsistent and
unreliable
inter alia
in that he had, according to the court,
wavered under cross-examination when he conceded that Klaasen could
have stepped into the
road before the collision occurred.
Consequently the court dismissed the appeal with costs. On 8 November
2006 - a year to the day
on which leave was granted against the
decision of the trial court - the appellant was granted special leave
to appeal to this court
against the judgment of the full bench.
[14] In her assessment of the evidence the trial judge rejected
Bosman’s evidence as to how the collision occurred as untrue.
The judge found the following contradictions to be material:
(a) ‘In court he said
that Plaintiff stood
on the sidewalk
away from the edge of the road. In his statement to the
police, two days after the incident, he says that Plaintiff was near
the curb
but still
on the sidewalk
.
(My emphasis.)
(b) In his affidavit dated 20 May 1997,
he stated that Plaintiff walked ahead of him and his friends but they
were all walking on
the sidewalk. In court he said that he and his
friends were standing in the front garden of the house and only
Plaintiff was on the
sidewalk.
(c) He told the police that the point of
impact was 2 metres away from where the Plaintiff was found. In court
he said that Plaintiff
was propelled approximately five metres
forward from the point of impact.
(d) In his affidavit and statement
shortly after the incident, he did not mention that the vehicle
approached Plaintiff from the left
side and propelled him to the
right but that was his testimony in court.
In addition to the above points the trial judge also mentioned the
following discrepancies:
(e) He was unable to explain how the
Plaintiff was able to sustain no injuries at the point where the
vehicle impacted with his body
if the vehicle travelled at 100 to 120
km per hour or at a high speed.
(f) Mr. Nigel Bosman was not reluctant to
say when he could not remember an aspect of the incident. For
example, he could not remember
the make and colour of the vehicle
even though his statement two days after the incident refers to a
cream coloured Isuzu bakkie.
He could easily have stated that he
could not remember the issues in which he contradicted himself. It is
patently clear that he
had a selective recollection in which he could
remember aspects which portrayed the unidentified driver as negligent
or reckless.’
[15] I deal with the above points
seriatim
. As to the first
point (a) it is clear that both in court and in his statement to the
police Bosman refers to Klaasen as having been
standing
on the
sidewalk
. It is also clear from Bosman’s evidence that the
positions which he pointed out were relative and not cast in stone.
His constant
reference to more or less (‘min of meer’)
and near or about (‘naby’ die rand van die pad), attests
to this.
Furthermore Bosman was describing a moving scene, some ten
years after the event – an aspect to which the court
a quo
alluded but to which in my view it accorded little weight. The
accident happened on 3 June 1995 and Bosman gave evidence on 13 June
2005. To expect the kind of precision contended for by the respondent
would be setting far too rigid a standard. It must also be
remembered
that the collision occurred unexpectedly at 22.45 in a poorly lit
area (as most townships notoriously are) and so exact
precision as to
the point of impact in those circumstances is an unrealistic
expectation. The wavering is understandable given the
lapse of time.
In my view the proposition put to Bosman under cross-examination and
his ‘concession’ that Klaasen might
have stepped into the
road is neutralised by the fact that on the evidence there would have
been no reason for Klaasen to do so.
According to Bosman they were
all going to walk together to Bosman’s house. On the
probabilities Klaasen was standing there
waiting for Bosman and the
others who were still engaged in a conversation with Kobus, before
proceeding to Bosman’s house.
There would on the probabilities
have been no reason for Klaasen to leave Bosman and the others and
begin to walk to Bosman’s
house on his own and the evidence
does not suggest that that is what he did. On the evidence Klaasen
was standing on the sidewalk,
and the suggestion that Klaasen might
have stepped into the road is, in my view, mere speculation.
[16] I turn to the second point (b). I fail to see how this is
material to the question of negligence. In my view nothing turns on
this discrepancy.
[17] As to the third point (c), it should be noted how the reference
to ‘five metres’ was brought up. During cross-examination
counsel for the respondent asked Bosman how far Klaasen landed from
the point of impact. Bosman’s response was that he could
not
say. On further prodding, he replied that it was not far. Not to be
outdone counsel pressed on:
‘
Moet
ons na die toneel toe gaan meneer en kyk waar die meneer tot punt B,
sal u sê dis meneer tot by punt B, sal u sê
dis maar vyf
meter of is dit nog baie nader as vyf meter? . . . Dit kan maar nader
wees.’
Bosman having given what he thought was the answer, counsel pressed
on, apparently because he had not received the desired answer.
‘
Nee
meneer u was daar gewees, sê vir ons. Kyk na die foto, dis mos
duidelik . . . Dis nie hoe dinges is, dit was . . .
U volstaan dis vyf meter, is dit u
antwoord . . . Ja.’
It is clear from this evidence that Bosman was neither able nor
willing to give this distance with any precision at all. It therefore
follows that the discrepancy now relied on by both the trial court
and the full bench as one of the bases for rejecting Bosman’s
evidence is flawed and unfair.
[18] I turn to the fourth point (d). Quite frankly I do not
understand this point. It is far from clear what the trial judge was
trying to say here.
[19] As to the fifth point (e) concerning Bosman’s inability to
explain how Klaasen did not sustain injuries at the point where
his
body impacted with the vehicle which was (according to Bosman’s
estimate) travelling at 100 to 120 kilometres per hour,
it appears
that the trial court adopted the opinion of Professor Van der Spuy
which was premised on Bosman’s estimate of the
speed of the
vehicle prior to the collision. Van der Spuy conceded under
cross-examination that, had the vehicle been travelling
at a speed of
say 50 kilometres per hour, there would be a greater chance that
Klaasen would not have sustained other serious injuries.
However,
like Professor Van der Spuy the trial court fell into the error of
basing its rejection of Bosman’s evidence solely
on the speed
estimate given by Bosman. The evidence of Bosman as to the speed at
which the vehicle was travelling should have been
approached with
caution. In Macintosh and Scoble
Negligence in Delict
5 ed
(1970) p 343 the following is said:
‘
The
evidence of persons estimating the speed at which a vehicle is
travelling is not evidence of opinion, but evidence of observation,
even though it involves a certain amount of inference from facts. As
such it is admissible (
R.
v. Van der Westhuizen
,
1929 C.P.D. 484
, and
R.
v. Frankel
,
1940
T.P.D. 159).
But the courts will be careful in accepting such
testimony and will only do so after some prior inquiry into the
competency and capability
of the witness for estimating speeds has
been made, and will guard against relying on evidence which, in
reality, may be mere guesswork,
“for in few things are greater
mistakes made than in judging rates of speed”. (See
R.
v. De Kock
,
1918
E.D.L. 221
;
Coetzee
v. Van Rensburg
,
1954 (4) S.A. 616
(A.D.)), where Schreiner J.A. said:
“
Bearing
in mind how difficult it is for even honest witnesses to estimate
speeds, distances and relative positions with reasonable
accuracy,
the courts rightly attach importance to traffic marks and similarly
substantially unchallenged evidence.”’
As will be observed the remarks of Schreiner JA in
Coetzee v Van
Rensburg
(
supra
) are relevant not only on the question of
the speed but also in regard to the pointing out of the various
positions by Bosman. In
my view, the trial court did not approach
Bosman’s estimation of speed with the required caution.
[20] The validity of the sixth point (f) to the effect that Bosman
could not remember the colour of the vehicle is not easy to
appreciate
in regard to the question of negligence. In my view it
belongs to the question whether or not the collision occurred. Even
if it
was relevant to the question of negligence I do not see how it
detracts from Bosman’s reliability as a witness. The trial
judge
described Bosman as having ‘a selective recollection’.
Nowhere, however, does she appear to consider the fact that Bosman
was giving evidence ten years after the event. In my view in those
circumstances it is only to be expected that he would not remember
some of the details concerning the accident. Indeed, it would have
been surprising, if not suspicious, if Bosman had remembered each
and
every detail relating to the incident.
[21] I think it can be accepted that Bosman was not a particularly
good witness in all respects. But given the context in which he
was
giving evidence, coupled with the lapse of time of more than a
decade, and the fact that his honesty could not be impugned, his
version does, to my mind, bear scrutiny despite the fact that there
were discrepancies here and there. His version as to how the
collision occurred is certainly nowhere near as improbable as it is
made out to be. If the vehicle mounted the pavement at a much
lesser
speed than 100 to 120 kilometres per hour, and its left front side
caught Klaasen as the driver was correcting himself by
bringing the
vehicle back onto the road, that would explain why Klaasen ended up
on the edge of the road at the point where he was
found by Bredell,
as reflected in the police plan. It cannot on the evidence before the
court be said that the distance of 2 metres
from the point of impact
is too short to account for that reasonable probability. No expert
evidence was led to suggest that this
is so. It follows therefore
that the evidence of Bosman in this regard cannot be rejected.
[22] Counsel for the respondent argued that there are two contrasting
versions for consideration in this case and urged us to accept
the
version of the respondent. The version advanced by the respondent
during the trial was that Klaasen had not been knocked down
by a
motor vehicle but had been assaulted. As indicated, this version was
abandoned by the respondent before us. This then left only
one
version to consider – that is the version of Bosman, which of
course must be tested by reference to his credibility and
upon a
consideration of the probabilities. As pointed by Eksteen AJP in
National Employers’ General Insurance Co Ltd v Jagers
,
1
the two issues are inextricably bound up. The following remarks by
the learned acting Judge-President in that case (at 440I-441A)
are
apposite:
‘
It
does not seem to me to be desirable for a Court first to consider the
question of the credibility of the witnesses as the trial
Judge did
in the present case, . . . as though the two aspects constitute
separate fields of enquiry. In fact, . . . it is only where
a
consideration of the probabilities fails to indicate where the truth
probably lies, that recourse is had to an estimate of relative
credibility apart from the probabilities.’
[23] Support for Bosman’s evidence is to be found in the
evidence of Bredell. He found Klaasen lying at the edge of the road.
Klaasen’s face was on the pavement and his legs on the road. As
to how Klaasen got there, Bosman’s evidence is that he
was
struck at a point also at or near the edge of the road and landed two
metres further. The suggestion by the respondent’s
counsel was
that Klaasen may have stepped into the road and was struck by the
vehicle somewhere near the centre of the road is excluded
by Bredell,
who said he found no indication of any point of impact on the road.
There was no broken glass or tyre marks which suggested
that Klaasen
had been on the road itself at the time of the collision. In my view
the point of collision indicated by Bosman must
therefore carry the
day in the absence of any evidence to the contrary. Any other
speculative excercise does not assist in the resolution
of the
question in issue in this case.
[24] In my view negligence on the part of the driver of the hit and
run vehicle was clearly established. On Bosman’s version
the
vehicle mounted the kerb at high speed and collided with Klaasen when
he was near the edge of the pavement. I have already referred
to the
dictum of Schreiner JA in
Coetzee v Van Rensburg supra
who
reminded us ‘how difficult it is for even honest witnesses to
estimate speeds, distances and relative positions with reasonable
accuracy.’
[25] The fact of the matter is that Klaasen was found lying with his
head on the pavement and the rest of his body in the road. Even
if
allowance is made for the shortcomings in Bosman’s evidence,
the court is entitled to draw an inference of negligence from
this
fact seen in the context of the circumstances of this case as a
whole. The stretch of road on which the incident happened is
six-metre wide, straight and level. The driver would have had an
unimpeded view of the road ahead. The question that must be asked
is
to how therefore he collided with a pedestrian on the edge of the
pavement. In my view he must on the probabilities have mounted
the
kerb on to the pavement and so collided with Klaasen, as testified by
Bosman, as a result of his failure to keep a proper look
out or bring
his vehicle under proper control. In my view Klaasen is in even a
stronger position than the plaintiff in
Motor Vehicle Assurance
Fund v Dubazane
2
where a pedestrian was found dead near a pedestrian crossing on the
side of a busy road. The court in that case found that the facts
supported the inference that an unknown driver of the vehicle had
been negligent. The majority of the court held that, as a matter
of
probability, the inference of negligence on the part of the unknown
driver had been correctly drawn by the court
a quo
, and that
there was no real basis for postulating that the driver was unaware
that he collided with a human being and that the reason
for his
departing from the scene was not a feeling of guilt. In the present
matter Klaasen was found lying on the edge of the road,
in
circumstances that suggest that at the very least the vehicle had
left its pathway and come far too close to the pavement before
the
collision occurred. I consider the evidence of Bosman to provide a
sufficient basis for the conclusion that the hit and run driver
was
negligent. In any event for the factors already mentioned in relation
to where Klaasen was found on the road, on authority of
Dubazan
e,
an inference of negligence on the part of the hit and run driver was
capable of being drawn.
[26] In the present matter the appellant has in my view, succeeded in
establishing that the driver of the hit and run vehicle was
negligent.
[27] For the above reasons the appeal must succeed. As to costs,
counsel for the respondent conceded that the case merits the costs
of
two counsel.
[28] Accordingly the following order is made:
1. The appeal is allowed with costs, including the costs of two
counsel.
2. The order of the court
a quo
is set aside and replaced with
an order in the following terms:
‘
(a) The appeal is upheld with costs.
(b) The order of the trial court is set aside and replaced with the
following order.
“
The defendant is liable for such damages as
the plaintiff is able to prove arising out of the collision with a
hit and run motor vehicle
on 3 June 1995.”’
______________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
VAN HEERDEN JA
MLAMBO JA
KGOMO AJA
HEHER JA:
[29] The plaintiff suffered a terrible injury. Any court would assist
him if it could. However, despite diligent and repeated
reconsideration
of the evidence, I cannot agree that his appeal
should succeed.
[30] The Full Bench of the Cape High Court (
per
Meer J,
Selikowitz J and Motala J concurring) delivered a careful and
well-reasoned judgment. I agree with it in all material respects
save
one,
viz
that the plaintiff probably sustained the depressed
fracture of the left frontal region of the head and accompanying
degloving of
the scalp when he fell on the kerb after the collision.
Allie J said in her trial judgment, ‘This would only have
happened
if there were protrusions on the surface on to which the
plaintiff fell. No evidence of such protrusions was presented to the
court’.
She might have added that, as the photographs of the
scene show, the so-called ‘kerb’ is virtually
non-existent at the
place where he came to rest. In any event, his
head was not on the kerb. Furthermore the finding of the court
a
quo
requires one to accept that the plaintiff sustained no bodily
injuries in the course of contact with a vehicle travelling at a
substantial
speed, which is in itself improbable.
[31] I proceed to set out shortly my reasons for concluding that the
plaintiff did not discharge the onus of proving that the insured
driver was negligent.
[32] The plaintiff’s case depended on the reliability of a
single eyewitness, Bosman. His evidence was not corroborated in
any
material respect. The circumstances for accurate observation were, to
say the least, unpropitious: the light was poor, the events
were
unexpected and passed in a flash. Bosman had been drinking over
several hours, to the extent that sgt Bredell who arrived at
the
scene shortly after the accident (the pedestrian was still bleeding
freely) made a note in his diary that the witness was under
the
influence of liquor – for that reason he deemed it
inappropriate to take a statement from him. Allie J, who saw the
witness,
did not believe him. She said, ‘It is patently clear
that he had a selective recollection in which he could remember
aspects
which portrayed the unidentified driver as negligent or
reckless’. Reference to his evidence bears her out.
[33] One cannot demand or expect pinpoint accuracy from an
eye-witness. The important issues for determination in this case
were:
a) the point of impact;
b) the spatial relation between the plaintiff and the vehicle in the
moments preceding and at the point of impact.
But the witness either contradicted himself materially in evidence on
these matters or departed from statements made by him to the
police
shortly after the event.
[34] Bosman testified that at the time of the collision he and his
friends (other than the plaintiff) were talking inside the yard
of a
house near the gate. He was standing with his back to the road.
However, in a statement made under oath on 20 May 1997 and submitted
to the defendant he said:
‘
3.
Op 3 Junie 1995 was ek, my broer Gideon Bosman, Randall Brett en
Arnold Klaasen oppad na my huis. Ons het op die sypaadjie te
Steenbrasweg
geloop.
Ek, Gideon en Randall het met iemand
langs die pad gesels, terwyl Arnold ‘n entjie vooruit geloop
het. Arnold het toe gaan
stilstaan. ‘n Voertuig het van agter
gekom en vir Arnold raakgery waar hy stilgestaan het op die
sypaadjie.’
In evidence he conceded that paragraphs 3 and 4 were wrong. He also
said that, hearing a vehicle approach at a speed ‘toe ons
omdraai is dit net wat die bakkie op die kerb klim en weer af en hy
vang vir Arnold [the plaintiff].’
[35] He told the trial court that the plaintiff was at a point about
a metre from the edge of the road at the time he was struck
and
definitely not standing at or near the edge. But Bredell’s
evidence (reflected on his contemporaneous sketch) that Bosman
identified the edge as the point of impact is obviously more
reliable. Bosman twice conceded in cross-examination that the
plaintiff
could indeed have walked into the road. He did not deny
pointing out to Bredell a point of impact on the edge of the road,
but he
denied that that was in fact the correct point.
[36] A licensed driver himself, he estimated the speed of the vehicle
at between 100 and 120 kilometres per hour although it was
beyond
doubt that he had insufficient opportunity to make such an
observation.
[37] His account in evidence of the movements of the vehicle, seen
from the side at a distance of between 10 and 15 metres (to judge
from the photographs), could only have been an imaginative
reconstruction. He said
‘
.
. . hy het op die pavement gekom, amper soos ‘n – en hy
kom weer pad toe, hy is amper soos een wat verloor beheer het
oor die
voertuig en toe met inkom, wat hy weer pad se kant toe kom, dis wat
hy toe vir Arnold tref.’
[38] He first testified that the
plaintiff was standing with his back to the oncoming vehicle and was
struck in the back. At another
time he said that the plaintiff turned
his head and looked toward the vehicle. He was asked (concerning the
plaintiff): ‘Ten
tye van die botsing, was sy rugkant na die pad
gewees of hoe?’ to which he replied, ‘
Nee,
my rugkant was na die pad toe.’
[39] One further example of his unreliability, Bosman said - ‘
Ons
het uitgehardloop om te kyk of ons nie die registrasienommer kan lees
nie, maar daai bakkie is te vinnig daar weg.’
But in his
statement to the Fund he said that they could not read the number
because the vehicle had no rear lights.
[40] The inherent probabilities (as borne out to some extent by the
evidence of the defendant’s expert witness, Dr van der
Spuy)
are against the version proffered by Bosman. If the front of the
vehicle had struck the plaintiff at any substantial speed
he must
inevitably have been thrown or carried further than a few metres from
the point of impact. Also, the injuries suffered by
the plaintiff
both as to location and extent, were inconsistent with a collision
like that described by Bosman. The place at which
the plaintiff came
to rest and the position of his body suggest, as the most plausible
inference, that he was struck at some point
on the tarred surface and
deflected by the impact towards the left. Van der Spuy’s
comment that it was contrary to the laws
of physics for him to have
been projected into the air by a single blow on the side of the head,
is simple common sense. By contrast,
if Bosman’s account were
to be accepted, the only possible course of events is that the
vehicle ran over the plaintiff after
it struck him (which did not
happen). On that version too the plaintiff could not have come to
rest with his head on the pavement
and his torso and feet on the
tarred surface at right angles to the road edge.
[41] The probability is that the collision occurred on the left side
of the vehicle and that the injury was caused by a protuberance
such
as a wing mirror or a projecting load. In such event the plaintiff
would have been propelled towards the kerb away from the
path of the
vehicle. Since he came to rest with all of his body and legs
stretched out into the road the actual point of impact must
have been
at least a metre on to the surface. As the single lane was only 3,1
metres wide, the likelihood is that the vehicle was
then in a
position on or near the middle of the road. That necessarily leads to
the inference that the plaintiff had moved across
the road toward its
path of travel. One does not know at what speed or in what manner he
was proceeding. Clearly he did not see the
vehicle, if at all, until
it was too late. The fact that his sole injury was to the left front
of his head can only be explained
on the supposition that he turned
his head towards the vehicle or looked back at his friends. One
cannot determine as a matter of
likelihood whether he was closer to
the front or the rear of the vehicle when the impact took place. He
certainly never entered its
line of travel.
[42] It becomes obvious that while the probabilities in an overall
conspectus fall heavily against the plaintiff, a precise
determination
of the mechanics of the collision and the subsequent
movements of the plaintiff are not possible. In the circumstances
there are
too many imponderables in the case of the plaintiff. I find
it impossible to infer as a probability that the driver was negligent
in not taking any or sufficient action to avoid the plaintiff. I
would dismiss the appeal.
___________________
J A HEHER
JUDGE OF APPEAL
VAN HEERDEN JA:
[43] I have had the benefit of reading the judgments of my
colleagues, Mthiyane JA and Heher JA. I agree with the reasoning and
conclusion
of Mthiyane JA. As regards the judgment of my colleague,
Heher JA, I am constrained to make a few comments so as to dispel any
possible
misconceptions.
[44] In paragraph 6 of his judgment, Heher JA compares the testimony
of the eyewitness, Mr Bosman, with the content of a statement
made by
him on 20 May 1997 (viz nearly two years after the collision had
taken place on 3 June 1995). Heher JA regards the discrepancy
between
Bosman’s testimony and this statement – in regard to the
positions of the various people in the group of friends
immediately
prior to the collision – as an example of Bosman’s
‘unreliability’ as a witness. As was the case
with the
trial judge, Allie J, my colleague does not give sufficient weight to
the fact that Bosman was giving evidence ten years
after the events
of the fateful night. Moreover, my colleague does not refer to the
earlier statement made by Bosman on 5 June 1995,
viz only two days
after the collision. In that statement, Bosman said the following:
‘
Op
Saterdag 1995/06/03 om ongeveer 22.45 het ek en Arnold Claasen [sic
Klaasen] by ʼn vriend se hek – Steenbrasweg uitgestap.
Ek
[onleesbaar] nog by die hek gewees. Arnold was reeds naby die rand
van die pad gewees. Hy was nog steeds in die sypaadjie gewees.’
As regards Bosman’s position relative to that of Klaasen
immediately prior to the collision, this earlier statement is the
same as his testimony during the trial. My colleague Mthiyane JA
deals with this aspect in some detail in paragraph 15 of his judgment
and I agree with his reasoning in this regard.
[45] As a further example of Bosman’s unreliability, Heher JA
relies on his evidence during the trial to the effect that Klaasen
was standing at a point about a metre from the edge of the road and
not standing at or near the edge. He contrasts this with sgt
Bredell’s evidence, as reflected on his sketch plan drawn up on
the night in question, that Bosman had indicated to him that
the
point of impact was at the edge of the road. My colleague regards
this pointing out as ‘obviously more reliable’
than
Bosman’s testimony in court. But, at the same time, Heher JA
expresses misgivings about the reliability of Bosman’s
evidence
concerning what happened on that night inter alia on the ground that
Bosman had been drinking and that sgt Bredell did not
take a
statement from him then as he (Bosman) was under the influence of
liquor. Here too, Heher JA does not have regard to Bosman’s
statement dated 5 June 1995, in which he says that Klaasen, although
‘near’ the edge of the road, was still on the pavement
at
the time of the collision. The judgment of my colleague Mthiyane, in
paragraph 15, also deals with this aspect in greater detail,
pointing
out correctly that Bosman’s evidence as to Klaasen’s
position just prior to the collision was not at all categoric
and was
clearly based on a rough estimate. Furthermore, Bosman’s
so-called ‘concessions’ during cross-examination
on which
Heher JA relies were not at all clear, and were in fact interspersed
with denials of the possibility that Klaasen stepped
or could have
stepped out into the road before the collision occurred.
[46] Finally, Heher JA’s reconstruction of how the accident
probably occurred amounts to pure speculation. There was no evidence
whatsoever of protuberances such as a wing mirror or projecting load
on the bakkie that collided with Klaasen. Prof van der Spuy
was not
qualified to testify as an accident reconstruction expert and and the
respondent did not attempt to place any other such
evidence before
the trial court.
______________________
BJ VAN HEERDEN
JUDGE OF APPEAL
CONCUR:
MTHIYANE JA
MLAMBO JA
KGOMO AJA
1
1984
(4) SA 437
(E) at 440I-441A.
2
1984
(1) SA 700
(A). It will be noticed that I have written the
plaintiff’s name as ‘Dubazane’. The plaintiff’s
name was
misspelt. There is no such name as ‘Dubuzane’
in the African language. In my view it would be undesirable to
perpetuate
the error by continuing to refer to the case as
‘Dubuzane’ as it appears in the reported judgment.