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[2014] ZAFSHC 22
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Van Der Merwe v Road Accident Fund (76/2012) [2014] ZAFSHC 22 (6 February 2014)
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FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case No. : 76/2012
In the matter between:-
VAN DER MERWE B
J
.........................................................................................
Applicant
and
PADONGELUKKEFONDS
.............................................................................
Respondent
JUDGMENT
BY:
RAMPAI, AJP
HEARD ON:
13 SEPTEMBER 2013
DELIVERED ON:
6 FEBRUARY 2014
[1] The
matter came to court by way of action proceedings. The
plaintiff sues the defendant for compensation in the amount
of
R4 760 767,60 plus ancillary relief. The hearing
endured for three days. It ended on Friday 13 September
2013.
The action is defended. The plaintiff’s supplementary
heads were filed on 7 October 2013.
[2] At the
beginning of the trial I was asked to make an order for the
separation of issues in terms of rule 33(4). I granted
the
order. I ordered that the issues relating to
quantum
should be shelved for later adjudication. The issues relating
to the substantive merits as set out in paragraph 6 of the
particulars of claim were accordingly adjudicated first.
[3] The
plaintiff was involved in a road accident which took place near
Rustfonteindam on the 27
th
January 2007. On that day
a collision took place between a motorcycle with registration number
D[…] which has there
and then driven by the plaintiff, Mr B J
van der Merwe and another motorcycle which was there and then driven
by Mr Herman Beukes,
hereinafter called the insured rider. Its
registration number appeared nowhere. The plaintiff was riding
a two-wheeled
motorcycle whereas the insured driver was riding a
four-wheeled motor cycle. The latter is also known as a quad
bike.
[4] The
two gentlemen were a part of a group of motorcyclists who had
gathered at a place called Two-Zero-Bravo earlier that morning.
From there the group used a few rural roads on their way to their
intended destination. The purpose of the outing was to
have a
“fun-ride”. The entire network of rural roads they
used was dirt road. From Sannaspost they rode
parallel to the
N8 national road until they joined the secondary road, S417, to the
Rustfonteindam. The particular dirt road
runs perpendicular to
the aforesaid national road.
[5] The
group followed that gravel road and rode in the direction of
Rustfonteindam. Along the way they overtook a red BMW
sedan.
When they reached the gate of the Rustfonteindam they stopped.
The group actually wanted to gain entry into
the premises of the
Rustfonteindam. However the gatekeeper denied them access.
The plaintiff, who was the organiser
of the fun-ride, negotiated
unsuccessfully with the gatekeeper. During those negotiations
the driver of the red sedan arrived
on the scene. He apparently
sided with the gatekeeper. A quarrel then ensued between him
and the plaintiff.
[6]
Seemingly the rest of the group did not want to be involved. In
order to avoid any further confrontation, they turned
away from the
gate and continued further down the road. The plaintiff
remained behind at the gate. Two riders led the
pack away from
the gate. They were Mr Hein Fourie and Mr Westley Buhrmeister.
The rest of the riders followed them.
Both Mr Fourie and Mr
Buhrmeister were riding two- wheel motorcycles. Right at the
back of the riders was a light delivery
van, an Opel Corsa. It
was used as a back-up bakkie. The two front bike riders
negotiated a curve to the left.
They then moved downhill to a
point where they stopped and waited for the organiser, in other
words, the plaintiff.
[7] The
particular point was approximately 1km from the gate where they had
left the plaintiff behind. They came to a standstill
on the
left-hand-side of the gravel road, or shall I say, the left hand side
of the imaginary centre-line. The rest of the
group followed
and travelled down towards the two front stationary bikes. The
insured driver, who was driving a quad, then
surged forward, overtook
the van and a few riders to join the two stationary bikes in the
middle of the road.
[8] By
then the plaintiff was right at the back of the insured rider.
He passed the bakkie, and a few of the slow riders but
he did not
overtake the insured rider. He approached the stationary
motorcycles at a constant speed. He approached
them from
behind. The plaintiff had no intention of stopping but rather
attempted to pass the stationary motorcycles.
His attempt to
pass them was unsuccessful. There and then his bike collided
with the quad ridden by the insured rider who
had suddenly decided to
stop in the middle of the road. The point of impact was more or
less in the middle of the road.
[9] The
portion of the road on the right-hand-side of the imaginary centre
line was open. There was no motor vehicle or any
other road
user travelling in the opposite direction at the time of the
collision. The road at the point of impact was about
9 metres
brought. This means that each traffic lane on the side of the
imaginary centre-line was approximately 4,5 metres
wide.
[10]
The plaintiff sustained bodily injuries in the accident. The
plaintiff had no recollection of how the accident occurred.
Therefore,
he was not called as a witness. This was
placed on record by agreement between the parties. That, in
brief, is the
synopsis of the undisputed facts coupled with facts
which, though denied, could not be seriously disputed.
[11]
The version of the plaintiff was narrated by three witnesses, namely
Mr Hein Fourie, Mr Wesley Buhrmeister and Mr Henti Kriel.
As I
have indicated the plaintiff himself did not testify. Mr Fourie
testified that he was one of the two riders who were
leading the
pack. He stopped on the road, approximately a metre or so from the
edge of the road. He was on the correct side
of the road.
He was riding a two-wheeled-motorbike. Mr Buhrmeister brought
his motorcycle to a standstill on his right-hand-side.
Both
motorcycles were stationary on the road and on the left-hand-side of
the imaginary centre line.
[12]
There they waited for the plaintiff, the organiser of the fun ride,
to come and show them the way. While they were waiting,
he
heard the sound of an approaching motorbike. He looked over his
shoulder and saw that the plaintiff was the rider of the
motorbike
that was approaching their stationary motorbikes from behind.
He turned his head over his right shoulder.
At that very moment
Mr Herman Beukes, who had been stationery behind them, diagonally
moved to the right. By so doing, he
encroached on the
plaintiff’s line of travel. As a result of such
inopportune and unexpected move, his quad clipped
the plaintiff’s
bike. At that moment the plaintiff was about to pass the three
stationary motorbikes. The area
of impact was slightly over the
imaginary centre line. The point of impact was approximately in
the middle of the road.
[13] Mr
Fourie testified further that his bike and that of Mr Buhrmeister
took up approximately two thirds of the traffic lane.
In other
words about 3 metres from the left edge of the road towards the
imaginary centre line. The gap between the imaginary
centre
line and Mr Buhrmeister was about 1.5 metre or so. That space
was wide enough for the plaintiff to pass the stationary
bikes with
ease. The plaintiff was travelling on that space.
[14]
His impression was that the plaintiff was travelling at a speed of
approximately 120km/h shortly before the collision.
Such a
speed was not too high, according to him, because the road in
question was in good conditions. There were no potholes,
loose
stones or loose sand on the scene. They were riding the
so-called enduro motorbikes which were specially engineered
for
racing at a very high speed even in the veld. The good
suspension of such a motorbike enables its rider to travel in
the
open veld at a speed as high as 160km/h. The group consisted of
experienced bike riders.
[15]
There was nothing the plaintiff could have done to avoid the
accident, the witness stated. Everything happened in a split
second. The plaintiff was not expecting that any of the three
front riders would suddenly turn into his line of travel.
The
witness added that the plaintiff was an experienced bike rider who
had previously participated in many races and that he had
won various
racing awards, accolades and prices. The accident would not
have happened had Mr Beukes not attempted to pull-up
alongside Mr
Buhrmeister.
[16] Mr
Buhrmeister also testified on behalf of the plaintiff. He
testified and confirmed that he and Fourie came to a dead
stop in the
middle of the road where they waited for the plaintiff to come and to
lead the way forward. He was on the inner
side whereas Mr
Fourie was on the outer side. Therefore he was nearer to the
centre line than his companion. The group
consisted of 8 to 10
riders. The two of them were right in front and immediately
behind him was Mr Beukes on his quad bike.
[17] He
then heard the sound of a bike that was approaching them from
behind. He looked over his right shoulder. As
he did so
he noticed that Mr Beukes was busy turning his quad bike out of its
original position behind him and turning towards
the centre line of
the road. He had no idea why Mr Beukes wanted to do that.
The next moment the plaintiff’s
bike clipped the front wheel of
Mr Beukes’s quad bike. According to him Mr Beukes was to
blame for the accident because
he turned into the plaintiff’s
path of travel. There was nothing the plaintiff could do to
avoid the accident.
The plaintiff’s line of travel was at
least 2 metres away from his motorbike. But for Mr Beukes’
unexpected manoeuvre
the plaintiff would have safely passed the three
stationary motorbikes.
[18] Mr
Buhrmeister estimated that the plaintiff was travelling at a speed of
about 100km/h at the time of the collision.
That was the
average speed at which they were all riding before they came to a
standstill. He first met the plaintiff once
in November 2006.
[19] Mr
Henti Kriel also testified on behalf of the plaintiff. He met
the plaintiff and the insured driver for the first time
on the day of
the accident. He was invited by Mr Hein Fourie for the fun
ride. He was not one of the motorbike riders.
He was
rather driving the back-up vehicle, an Opel Corsa light delivery
van. He was travelling at a speed of approximately
60 –
70km/h right at the back of the riders. He estimated that Mr
Beukes was traveling at a speed of about 90 –
100km/h.
He, the insured rider, did not pass the two stationary motorbikes.
Instead he stopped behind them. He
described that movement by
saying that the quad slided sideways and came to a stop with its
front facing to the right. The
quad stopped for a fraction of a
second and then moved forward towards the centre line. By doing
so it encroached onto the
plaintiff’s path of travel.
[20]
The plaintiff also overtook him at a speed of approximately 90 –
100km/h. However, the plaintiff was not able to
safely pass the
three stationery motorbikes because the quad had unexpectedly shifted
its original position and moved towards the
centre line where it
clipped the plaintiff’s motorbike. He witnessed the whole
accident from a distance of approximately
80 metres from the point of
impact. He testified that Mr Beukes was arrogant and showing
off at the time the accident happened.
He testified that the
collision was unexpected. Everything happened in a fraction of
a second. The plaintiff had chosen
a safe line, but the rider
of the quad suddenly and unexpectedly moved over the plaintiff’s
line of travel. The accident
could have been avoided if the
driver of the quad had looked behind him before he moved towards the
centre line or if the quad
had come to standstill in a straight
line. He identified exhibits “A” and exhibit “B”
as the photos
which he took on the scene.
[21]
The version of the defendant was narrated by two witnesses, namely Mr
Herman Beukes and Mr Michael White. Mr Beukes testified
that he
was part of the group that had gone out to have a fun ride. He
was riding in the middle of the road. There
were two
motorcycles that were stationary on the road. The riders of
those two bikes were Mr Fourie and Mr Buhrmeister.
He
approached them from behind. He was part of the group that had
gone out to have a fun ride. He was riding a quad
in the middle
of the road. He attempted to bring his bike to a standstill
next to the bike of Mr Buhrmeister. He slammed
the brakes of
the quad very hard in order to stop. Since he was on a gravel
road the bike wiggled from side to side.
He was very close to
the stationary bikes when his bike came to a standstill. He
turned the handle bars to the right, in
other words, to the
centre-line.
[22]
While his bike was still in the process of stopping he tried to
dismount. He did not manage to completely get off the
bike.
At that very moment the plaintiff’s bike crashed into his
bike. He was on the right-hand-side of Mr Buhrmeister
at that
critical moment. The left shock-absorber of the plaintiff’s
motor vehicle and the right rim of his quad were
involved in the
physical impact. He asserted that the plaintiff approached the
three front motorbikes at a very high speed.
He reckoned that
the plaintiff was very upset following the argument he had had with
the driver of the BMW and the gate-keeper
at the gate of
Rustfonteindam. He denied any suggestion that he did not keep a
proper look-out. He denied that as a
result he moved towards
the centre line and encroached onto the plaintiff’s path of
travel at the time when it was unsafe
to do so. He explained
that after turning the handle bars of his quad to the right, its
right front wheel rolled for about
30cm towards the imaginary centre
line.
[22]
The second witness who testified on behalf of the defendant was Mr
Michael White. He was one of the riders in the group.
He
and Mr Freddie Stresso were riding side-by-side from the gate of
Rustfonteindam. While they were riding he noticed two
motorcycles on the road ahead of them. They were stationery.
They were two-wheeled motorcycles. They were shortly
joined by
a four-wheel motorcycle. The third rider was Mr Beukes, who
then stopped his quad on the right-hand-side of Mr
Buhrmeister.
His quad occupied the space between the imaginary centre line and Mr
Buhrmeister. Mr Buhrmeister was sandwiched
by Mr Fourie on the
left and Mr Beukes on the right.
[23]
When he saw that the three fellow riders in front of the group had
stopped he reduced speed. The plaintiff overtook him.
He
was traveling at a speed of approximately 100km/h to 140km/h.
He was travelling on the right-hand-side of the imaginary
centre
line. Shortly thereafter, the plaintiff’s motorbike
crashed into the motorbike of Mr Beukes. The point
of impact
was more or less in the middle of the road. At the time of the
collision the opposite traffic lane was not occupied.
There
were no oncoming motor vehicles. The plaintiff could have
avoided the accident by passing the three stationary motorbikes
on
the opposite traffic lane, seeing that there was sufficient space for
him to do so.
[24]
The plaintiff did not make any attempt either to slow down or to
apply the brakes of his motorbike immediately before collision.
At the time of the collision he was busy getting off his motorcycle.
The evidence that Mr Beukes’s motorbike cut across
the
plaintiff’s correct line of travel was incorrect. The
plaintiff was to blame for the accident. This completes
the
evidence tendered on behalf of the defendant.
[25] On the strength of the aforegoing
evidence, counsel for the plaintiff, Mr Steenkamp
, urged me to reject the defendant’s version and to accept the
plaintiff’s version. He argued that if the insured
rider
had looked behind before moving across the plaintiff’s line of
travel, the accident would not have occurred.
Counsel then
submitted that the insured driver’s failure to do so,
constituted negligence. The thrust of the plaintiff’s
contention was that the insured rider’s negligence stemmed from
his failure to keep a proper lookout. He then submitted
that
the insured rider’s negligence was the sole cause of the
accident. Accordingly he urged me to find the defendant
liable.
[26] On the other hand Mr Thompson, counsel for
the defendant, argued that, on the strength of the aforegoing
evidence, the plaintiff’s
negligence caused the accident.
He, therefore, urged me to reject the plaintiff’s version and
to accept the defendant’s
version. He contended that the
evidence showed that the plaintiff rode his bike in a negligent
manner and that his negligent
conduct was the sole cause of the
collision. Counsel submitted that the evidence showed that the
plaintiff rode at an excessive
speed in the circumstances; that he
failed to keep a proper lookout and that he failed to avoid the
accident when, by the exercise
of reasonable care and diligence, he
could and should have avoided the accident. Accordingly he
urged me to dismiss the plaintiff’s
claim.
[27] The issue in the case revolved around the
question of negligence. To put it in lay man’s terms the
question was
who was to blame for the collision between the two
motorbikes?
[28] The onus of proof rests on the plaintiff
to show, on a balance of probabilities, that the insured rider was
negligent on one
or more or all of the grounds as averred in the
particulars of claim. The question is whether the evidence
tendered on behalf
of the plaintiff was, on the probabilities,
correct. See:
Body Corporate of
Dumbarton Oaks v Faiga
[1998] ZASCA 101
;
1999 (1) SA
975
(SCA) at 979 I – 980 A.
[29] There is a significant legal connection
between the credibility of the witness and the probabilities of the
case. It
has been held that whether the plaintiff has
discharged the onus of proof, the estimate of the credibility of the
witness will
be inextricably bound up with the consideration of the
probabilities of the case and that if the balance of probabilities
favours
the plaintiff, then the court would be inclined to accept his
version as been probably true –
National
Employers’ General Insurance Co Ltd v Jagers
1984 (4) SA 437
at 438 (A) per Eksteen AJP. His view was
paraphrased in the headnote and quoted with approval by Maluleke J in
Machewane v Road Accident Fund
2005 (6) SA 72
(TPD) on 77 at par [14].
[30] In
Selamolele
v Makhado
1988 (2) SA 372
(V) the
court reconfirmed the principle that where there are two mutually
destructive versions in a civil trial, the correct approach
to be
adopted in deciding the issue, is to determine which of the two
versions is more probable than the other.
[31] I now
proceed to examine the evidence. I deal with the version of the
plaintiff first. The essence of the plaintiff’s
case was
based on the foundation that the insured driver Mr Herman Beukes
encroached on the plaintiff’s path of travel and
that such
contact verifies to the collision between the two bikes and the
plaintiff’s injuries.
[32]
The
crux
of Mr Hein Fourie was that the insured rider approached the two
stationary front bikes from behind and that he stopped directly
behind Mr Buhrmeister while he, Mr Fourie, Mr Buhrmeister and Mr
Beukes were stationary, he heard the plaintiff approaching them
from
behind. He then noticed Mr Beukes moving diagonally towards the
centre line to a position on the right-hand-side of
Mr Buhrmeister.
Mr Beukes was slightly behind Mr Buhrmeister but a little closer to
the centre line than Mr Buhrmeister when
the plaintiff crashed into
him. According to him Mr Beukes, by so moving, narrowed the
space between the centre line and
Mr Buhrmeister on which the
plaintiff was travelling.
[33]
The first difficulty I had with Mr Fourie’s testimony was that
he could give no estimation as to how long Mr Beukes had
been
stationary behind them before he shifted towards the centre line.
The second difficulty I had was that his evidence
was inconsistent
with that of Mr Hendrik Kriel. According to Mr Kriel’s
evidence Mr Beukes passed him on the way towards
the front.
When he reached the two stationary motorbikes he squared his
motorbike on the right-hand-side of Mr Buhrmeister.
His
evidence suggested that Mr Beukes was continuously in motion until
the plaintiff’s bike crashed into his.
[34]
That evidence could not be reconciled with Mr Fourie’s evidence
that the insured rider arrived on the scene all alone;
that he
stopped alone behind Mr Buhrmeister for some unknown length of time;
that the plaintiff arrived on the scene a little while
later and that
the insured rider then crossed the plaintiff’s line of travel.
Mr Fourie could hardly give any indication
of the time lapse between
the alleged stopping or arrival of the insured rider and the
subsequent arrival of the plaintiff. That
in itself made his
testimony suspect.
[35]
The version of Mr Buhrmeister did not assist the plaintiff very
much. He too was unaware as to how long before the collision
the insured driver had stopped behind him. I found the witness’
evidence strange bearing in mind that the insured driver
had alleged
stopped a mere two metres behind him and that he slammed the brakes
of his roaring quad hard to show off, as alleged.
He did not
arrive there quietly and stopped. Although the two riders of
the stationary bikes did not hear the loud sound
of the quad they
heard that of the bike ridden by the plaintiff.
[36]
His motorbike like those of the two stationary motorbikes was making
a lot of noise. Had he stopped within such a close
proximity
behind Mr Buhrmeister he would probably have heard the sound of the
quad on his arrival and would have seen him.
The fact that Mr
Buhrmeister was unaware of Mr Beukes until the plaintiff’s
arrival, seemed to have supported Mr Beukes evidence
that he was
never in a stationary position behind him. He first became
aware of Mr Beukes’s presence in his close proximity
at the
time of the collision between the two bikes. He did not see any
of the two gentlemen involved in the collision immediately
before the
collision.
[37]
His evidence was that he heard the sound of the plaintiff’s
motorbike and turned right over his shoulder. At that
very
moment the collision took place. I find it strange, as to why,
he could not have had heard the sound of the stationary
bike right
behind him. If Mr Beukes had indeed brought his bike to a
standstill so close behind him as Mr Fourie alleged.
His
evidence that Mr Beukes suddenly emerged from behind them at the time
the plaintiff was about to pass them, left much to be
desired.
His evidence about the movement of Mr Beukes shortly before the
collision was unconvincing. Therefore, there
was no
satisfactory corroboration of Mr Fourie’s evidence concerning
the alleged diagonal movement of Mr Beukes slightly
behind Mr
Buhrmeister.
[38] I
found it strange that both Mr Fourie and Mr Buhrmeister who
co-incidentally heard the plaintiff’s motorbike, also could
not
hear the insured rider’s motorbike approaching them from
behind. It was also a surprising co-incidence that both of them
glanced over their right shoulders for the first time when the
plaintiff’s motorbike was right upon them. All three
of
them did not hesitate to say that Mr Beukes was to blame for the
collision. They all completely exonerated the plaintiff.
The three wanted me to believe that the plaintiff was riding his
motorbike safely and that, but for the negligent conduct of the
insured rider, he would have safely passed Mr Buhrmeister because his
line of travel was two metres away from him.
[39]
According to Mr Kriel the plaintiff was riding behind the insured
rider. The insured rider, without any warning, deviated
from
his path of travel, moved to the right, crossed the line of the
plaintiff and caused the collision. The three witnesses
for the
plaintiff made common cause with each other that the insured rider
should first have ascertained that it was safe for him
to cut across
the plaintiff’s path of travel before he actually did so.
They were all adamant that the plaintiff could
not have avoided the
accident. They maintained that the plaintiff had chosen his
line of travel and that the insured rider
blindly landed in front of
his bike. The accident, they all said, was occasioned by such
careless movement on the part of
the insured rider. According
to them there was nothing the plaintiff could do to avoid the
collision.
[40] It
was common cause that the plaintiff did not blow the horn of his
bike; did not apply the brakes to reduce speed and did
not swerve to
the right. However, they maintained that he did not travel at
an excessive speed in the circumstances.
They all stated that
the plaintiff did not have the opportunity of reducing speed, because
everything happened very fast.
Now if the plaintiff was not in
a position to take any evasive action to avoid the collision, it can
only be that he did not maintain
a safe following distance behind the
insured driver. If the evidence of Mr Kriel is to be accepted,
then in my view, the
correctness of the evidence of Mr Fourie and
Buhrmeister becomes questionable. The versions of those witnesses
were in my view
improbable.
[41]
The evidence of Mr Michael White, on behalf of the defendant, was
that two motorbikes ridden by Mr Fourie and Mr Buhrmeister
were
stationary of the downward lane. From the position behind them,
he saw how Mr Beukes rode his bike to a standstill alongside
Mr
Buhrmeister in the middle in the middle of the road. According
to him, therefore, there were therefore three stationary
bikes in the
middle of the downward lane. Mr Buhrmeister was sandwiched by
Mr Fourie on the left and Mr Beukes on the right.
When he saw
those three stationary bikes, he reduced speed.
[42]
Immediately there came the plaintiff travelling at a speed of no less
than 100 km/h and no more than 140 km/h. Initially
the
plaintiff was travelling on the upward lane. He did not reduce
speed and he could not pass the three stationary bikes.
Instead
he crashed into the insured rider’s motorbike more or less in
the middle of the road. According to him the plaintiff
was to blame
for the accident. His evidence was that the plaintiff could
have avoided the accident by passing the three stationary
motorbikes
seeing that there was sufficient space for him to safely pass them on
the upward traffic lane.
[43] Mr
White dismissed, as incorrect, the contention that Mr Beukes had
caused the accident by cutting across the plaintiff’s
path of
travel seeing that Mr Beukes’ bike was stationary at the time
of the collision. He added that Mr Beukes was in the
process of
getting off his motorbike at the time of the collision. Contrary to
the evidence tendered on behalf of the plaintiff,
it was his evidence
that Mr Beukes, at all material times, rode his motorbike straight
until he came to a standstill alongside
Mr Buhrmeister.
[44] The
evidence tendered on behalf of the defendant was clearly not
consistent. The one inconsistency was that according
to Mr
Beukes his bike had not yet come to a complete standstill at the time
of the collision. On that point Mr White and Mr Beukes
differed.
It must be accepted, in my view, that the former did not notice the
wiggling of the quad and its slight lateral
movement after the
squaring of its handle bars.
[45]
However, in certain respect the version of Mr Kriel, the plaintiff’s
witness, supported the version of Mr White, the
defendant’s
witness. The two witnesses were some distance behind the two
motorbikes involved in the collision, as well
as the two front
stationary motorbikes, but Mr White was nearer.
[46] Mr
Beukes was adamant that he stopped on the side and not behind Mr
Buhrmeister. Immediately before he stopped he had
been riding
on a straight line. Like Mr Buhrmeister and Mr Fourie, he
stopped in order to wait for the plaintiff. He
was unaware that
the plaintiff was following hot on his heels. He turned the bar
handles of his motorbike sideway as he was
trying to get off.
His motorbike then moved for about 30cm towards the centre line.
He was in the process of alighting
from the bike at the time the
plaintiff’s bike crashed into his. To a great extent Mr
White supported Mr Beukes’s
version. The essence of his
evidence was that the insured rider was, all along, riding on a
straight line until he stopped
on the right of Mr Burhmeister.
It seemed improbable that he would have chosen a line behind Mr
Buhrmeister regard being
had to the high speed at which he was riding
as well as the ample safe space available to his right.
[47]
The evidence of Mr Kriel tended to materially support the defendant’s
version. His evidence was that Mr Beukes
first overtook him
closely followed by Mr Van der Merwe, the plaintiff. He
corroborated the defendant’s version that
Mr Beukes stopped in
the middle of the road. It is my view that the version of the
defendant was more probable than that
of the plaintiff.
[48] I
am persuaded that the evidence of Mr Fourie had to be rejected to the
extent that it referred to Mr Beukes alleged stationary
position
behind him and Mr Buhrmeister. His evidence that Mr Beukes had
initially stopped behind them before he made a diagonal
movement
across the plaintiff’s path was in my view not probable.
I have already indicated that Mr Buhrmeister’s
evidence was
also unreliable. To the extent that it was inconsistent with
the defendant’s version it appeared less
probable. In my
view Mr Kriel’s evidence, though not flawless, was a reasonably
probable credible and reliable account
of what happened. His
evidence, like that of Mr White materially corroborated the version
of the insured driver.
[49]
The plaintiff carried the
onus
of showing that the accident was occasioned by the negligence of the
insured driver. Because the credibility of the witness
and the
balance of probabilities are inextricably linked up they are both
important elements of the equation in determining whether
the
plaintiff has discharged the
onus
of proof. Where the credibility of a witness is untarnished and
where the balance of probabilities favours the plaintiff
the court
will accept the version of the plaintiff has been probably true.
Machewane v Road Accident Fund
supra.
The converse is also true. Where the balance of
probability does not favour the plaintiff the court will not accept
the version of the plaintiff as been probably true. In that
event the credibility of the plaintiff or his witness will be
tarnished.
[50] I
am persuaded that the defendant’s witnesses gave a more
reliable and credible account of the accident notwithstanding
its
unfavourable features. Mr Beukes and Mr White were
comparatively impressive witnesses. The same cannot be said
about the plaintiff’s witnesses, save for Mr Kriel whose
version was substantially consistent with that of the defendant’s
witnesses in important respects.
[51]
The question which I am now called upon to decide is whether the
insured driver was negligent as alleged or at all and if so
whether
his negligence caused the collision between his bike and that of the
plaintiff.
[52] Mr
Beukes left Mr Van der Merwe at the gate of Rustfonteindam. On
his way down he overtook first Mr Kriel, then Mr White
and other
riders before he stopped right in front next to Mr Buhrmeister.
The evidence showed that he was closely followed
by the plaintiff all
the way down until their two bikes collided. Yet Mr Beukes was
unaware that the plaintiff was following
him all the way.
Shortly before the accident occurred he stopped in the middle of the
road. He thereby created a hazardous
situation, just as Mr
Fourie and Mr Buhrmeister had done.
[53] A
prudent road user is always aware of the traffic situation in front,
behind and on his sides. Since he decided to stop
in the middle
of the road, it was incumbent upon him to ascertain before he slammed
the brakes of his bike in order to stop in
the middle of the road,
that it was safe to do so. That Mr Beukes failed to do.
In my view, his failure constituted
negligence. He clearly
failed to keep a proper look-out and carelessly stopped his bike in
the middle of the road at the
time when it was unsafe to do so.
I am persuaded that if he was alert and careful about the traffic
situation around him,
he would probably not have stopped as he did
and the collision would probably not have occurred.
[54] I
now turn to the plaintiff. The yardstick used to assess the
conduct of a road user is that of a reasonable person.
A road
user, in this case a rider, is negligent if he is in a position to
reasonably foresee that his driving or riding might cause
harm to
other road users but fails to take reasonable steps to guard against
such possible harm. A reasonable and prudent
driver or rider
appreciates the prevalent circumstances on the road he uses. Such a
rider foresees that he might encounter stationary,
or very fast, or
very slow moving vehicles, or pedestrians, or animals, or any other
obstruction that may impede his normal use
of the road. He or
she appreciates that at times road users disobey traffic rules and
conventions. All such acts whether
deliberate, reckless or
playful are manifestations of delictual negligence.
[55] A
prudent rider takes all reasonable steps to prevent harm to other
road users. He realises that a motorbike, just like
a motor
vehicle, is a dangerous mobile machine. He regulates his speed
according to the prevailing circumstances, including
but not limited,
to visibility and the density of the traffic at any given moment.
A very important traffic rule is that
a driver or a rider must at all
times maintain a proper look-out in order to navigate safely through
a traffic situation.
A prudent driver regulates his speed in
such a way that at all times he remains in a position to stop or take
evasive course of
action if prevailing circumstances dictate that he
should. See
Cooper,
Delictual Liability in Motor Law
,
p 147 – p 160.
[56]
Our case law has distilled some traffic obligations for motorists.
Such obligations apply to motorcyclists equally well.
Failure
to comply with such obligations constitutes negligence. A rider
has a legal duty to keep a proper lookout, to drive
at a reasonable
speed, to maintain a safe following distance from the vehicle
immediately in front, to make provision for literal
movements by
other road users and to have a motor vehicle (s)he is driving under
proper control at all times –
Cooper
supra
,
p 192. See also
Klopper Isaac and
Livinsens,
Law of Collision
(2003) Lexis Nexis,
RAF
Practioners Guide
, Lexis Nexis
p
A-57,
Zaymes v Farous and Company
1940 CPD 474
at 477.
[57] The
evidence revealed that the plaintiff remained behind the gate when
his fellow riders proceeded further. Seemingly the ensured
rider was
right at the back when the rest proceeded further from the gate
leaving the plaintiff behind. Then the insured
rider emerged on
the scene at a high speed. He was closely followed by the
plaintiff. He too did likewise. They
overtook Mr Kriel,
Mr White and a few other riders before they reached the two
stationary motorbikes right in front. The
insured rider slammed
the brakes of his motor vehicle very hard to bring it to a
standstill. The evidence revealed that the
plaintiff was caught
off guard. He was not able to reactively do anything in order
to avoid the collision. He did not
apply the brakes; he did not
reduce speed; he did not blow the horn of his bike; he did not swerve
out of the way. He did
nothing at all.
[58] It
must be remembered that the upward or opposite lane of traffic was
4,5 metres broad. That traffic lane was not occupied
by any
road user. Therefore it was freely available to the plaintiff.
Notwithstanding such safe option, the plaintiff
did not wisely
exercise his options. Consequently a collision took place.
It took place because the insured driver
suddenly stopped but the
plaintiff could not suddenly stop or do anything else to avoid the
collision. The two bikes collided
simply because the plaintiff
rode unreasonably. He did not keep a proper lookout, did not
maintain a safe following distance,
and did not take any evasive step
to avoid the collision. He was the architect of that
situation. That been the case
he cannot be heard to say that he
was an innocent victim of a sudden emergency.
[59] In my
view a reasonable and prudent rider would not have conducted himself
the way the plaintiff did prior to the collision.
To ride at the
speed of 120km/h or even 100km/h when there were so many motorbikes,
mobile and stationary, in the middle of the
road constituted plain
negligence. In such a situation any side-wards or literal
movement could reasonably be foreseen or
expected.
[60] It
must also be born in mind that the plaintiff, the insured rider and
their fellow riders were not conventional road users
on that
particular occasion. They were a group of excited riders.
They were out there to have fun on the road.
Therefore, the
argument that the plaintiff did not expect any literal movement from
any of his experienced fellow riders was flawed.
The riders
were out there to display their stunts and what they were able to do
with their speedy motorbikes. The fact that
some of them came
to a standstill in the middle of the road and there waited for the
plaintiff, was indicative of their excited
mind-set. They
waited there for their leader. That also explained why the
insured rider also stopped. It seemed
to me everyone had
expected the leader to stop to give them further directions.
[61]
When he emerged on the hill he came down very fast. The speed
at which he was travelling at indicated that he did not
have any
intention to stop as his fellow riders had expected. His
unexpected conduct was probably a further indication of
the mood of
excitement that had already gripped the group. Seemingly the
conduct of the insured rider was also indicative
of that excitement.
None of the plaintiff’s witnesses could say why the plaintiff
did not stop as they had expected.
It appeared to me that as
far as the plaintiff and the insured rider were concerned the fun had
already started.
[62]
The plaintiff had ample space to his right where he could have easily
ridden and where he could safely have overtaken everybody,
mobile or
stationary. Yet he chose a line dangerously close to the centre
line where the downward traffic lane was densely
populated by his
fellow riders. By doing so the plaintiff failed to allow
sufficient berth between him and his fellow riders,
particularly the
insured rider and the stationary bikes.
[63]
Consequently I have come to the conclusion that the plaintiff was
also negligent and that his negligence caused the collision
between
his motorbike and that of the insured rider.
[64] In
Smith v Eagle Insurance Company
1986 (2) All SA 314
(SA) 317E the duty of a motorist to keep a proper
lookout was considered. The court held that such a duty
requires a continuous
scanning of the road ahead and from side to
side to ensure that there are no hazardous objects, impediments, or
situations or potential
obstructions. From the top of the hill
and after negotiating the curve, a prudent rider would have scanned
the horizon ahead.
He would have easily noticed two stationary
bikes right in front and a number of bikes in motion all the way
down. He would
have realised that the motorbike he was
following could make a lateral movement towards the centre line to
overtake those stationary
bikes or even stop next to them. He
was not entitled to assume that it would pass them. Needless to
say that the plaintiff
failed to act in accordance with the requisite
duty of a prudent rider to keep a proper lookout.
[65]
The duty of a motorist to travel at a reasonable speed and the duty
of a motorist to keep a proper lookout are logically intertwined.
In the light of that connection the workable definition of a
reasonable speed has been described as a speed at which the driver
is
able to stop his vehicle within his range of vision –
Cooper
supra
,
p139. Again the plaintiff’s conduct was found wanting in
this regard.
[66]
Another important traffic rule is that a motorist who follows another
is obliged to regulate his speed as well as the following
distance
between him and the vehicle he is following. The purpose of the
rule is to place a motorist in a position to avoid
a collision should
a vehicle in front, for one or other reason, suddenly stop.
That rule is normally known as “the
safe distance rule”.
The essence of that rule is that it requires a motorist to ride at a
reasonable speed in order
to remain in complete control of his
vehicle at all times.
Uniso v
Bezuidenhout
1982 (3) SA 957A
at
965B-C.
[67] Mr
Thompson, counsel for the defendant, submitted that the plaintiff was
traveling at an excessive speed in the prevailing
circumstances.
In my view there was substance in that submission, bearing in mind
the number of the riders, the congestion
on the downward traffic
lane, the mobile as well as the stationary bikes in the middle of
that lane. In those prevailing
circumstances, a prudent and
reasonable driver would not have ridden or travelled at the speed at
which the plaintiff was travelling
seconds before the disaster.
[68] Mr
Steenkamp, counsel for the plaintiff, differed. He submitted
that the plaintiff was not travelling at an excessive
speed in the
circumstances regard been had to the good conditions of the road.
[69] To the
question of the speed I now turn. On Saturday the 27
th
January 2007 the plaintiff and the insured rider were among a group
of 10 or so riders of motorcycles. They set out to have
fun.
The plaintiff was on a motorcycle with two wheels. The insured
rider was on a motorcycle with four wheels.
There was no
evidence of rain, wind, dust storm, mist or wildfire smoke in the
vicinity of Rustfonteindam. The weather was fine.
The
visibility was very good.
[70]
The scene of the accident was on a dirt road, a secondary road that
intersects N8 national road between Botshabelo and Bloemfontein.
From the gate of Rustfonteindam it curves first to the right and then
to the left. The distance between the two curves is about
500
metres. From the second curve the road straightens up and
it then slopes down for about 250 metres. From
the end of the
downhill it flattens for some considerable distance. The scene
of the accident is approximately 500 metres
from the point up there
where the downhill begins. The two bikes collided about one
kilometre beyond the gate to the aforesaid
dam. These details were
gathered during the inspection
in loco
.
See also exhibit “a”, exhibit “b” and exhibit
“c”.
[71]
The road was properly fenced. It was about nine metres brought.
Although it was not macadamized, it was in fairly good
conditions.
There were no loose stones. There were no potholes, there was
no loose sand. It was dry. Since it was a
gravel road, there
were obviously no road markings. The imaginary centre line demarcated
the road into two traffic lanes.
It consisted of one lane for
each opposite stream of traffic. The parties were in agreement
that the two bikes collided more
or less in the middle of the road.
[72] The
final rest position of the plaintiff after the collision was about 23
metres beyond the area of the impact. That
point was on the
grassy shoulder of the opposite traffic lane, in other words, the
upward lane. Perhaps I should rather say
that it was on the
incorrect side of the road in relation to the direction in which he
and his fellow riders were moving.
That point was also
diagonally opposite to the point where Mr Buhrmeister’s bike
had come to a standstill. The evidence
was that by sheer force
impact, the plaintiff was physically dislodged from his bike, flung
high into the air and propelled forward.
He finally landed some
considerable distance away from the point of impact. The angle
of his deviation from the centre line
was about 15 degree in my
opinion.
[73]
The final rest position of the bike ridden by the plaintiff was also
not without significance. After the physical contact
with the
bike ridden by the insured, the plaintiff’s bike did not slide
straight on the surface of the road. By the
sheer force of the
impact, it was tossed off the ground, flung very high into the air
over the fence but below the telephone lines
and finally dropped in
the veld on the adjacent farm, diagonally apposite to the probable
area of impact. The angle was about
45°.
[74] One of
the important factors relative to the issue of negligence was speed.
According to Mr Fourie the estimated speed
at which the plaintiff was
travelling was approximately 120km/h, according to Mr Buhrmeister
100km/h. It must be borne in
mind that Mr Fourie and Mr
Buhrmeister did not really have adequate opportunity of making proper
observation of the plaintiff as
he was descending the road.
They were sitting on their bikes and facing forward most of the
time. They glanced over
their right shoulders shortly before
the collision. When they looked back the plaintiff was
virtually right there on the
scene with them. Therefore, their
evidence was not very reliable. However I do not mean that it
was entirely useless.
[75] Mr
Kriel estimated that the highest speed at which the plaintiff
overtook him was about 100km/h. He observed the plaintiff
and
witnessed the incident from a vintage point. The accident
happened in front of him. His testimony was comparatively more
reliable. His estimation was somewhat corroborated by that of Mr
Buhrmeister. It will be recalled that the plaintiff did
not
personally testify. The evidence tendered on his behalf by two
of the three of his witnesses suggested that he was travelling
at the
speed of no more than 100 km/h.
[76]
The evidence adduced on behalf of the defendant painted a different
picture. According to Mr Beukes the plaintiff was
travelling at
a speed of 140km/h. The critique that I levelled against Mr
Fourie and Mr Buhrmeister applies to him as well.
In his case
the critique carried even greater force. On his own version, he
did not see the plaintiff immediately before
the collision.
[77]
According to Mr White the plaintiff’s highest speed was about
140km/h. He had time to observe the plaintiff.
The
plaintiff overtook him just seconds before the disaster. He was
nearer to the scene of the accident than Mr Kriel at
the moment of
the impact. He had comparatively a closer and a more
advantageous point to observe the plaintiff than any other
witness.
The mere fact that his bike did not have a speedometer, did not in
itself diminish the value of the estimation he
made. He was,
like all his fellow companions, an experienced biker. His
estimation was consistent with that of Mr Beukes.
To an extent
the evidence adduced on behalf of the defendant also strengthened his
evidence. According to the testimony of
one of the plaintiff’s
witnesses, Mr Fourie, the plaintiff was travelling at the speed of
about 120 km/h. These then
were the perceptions of the
witnesses.
[78]
The conduct of the plaintiff is a crucial factor in determining the
issue of negligence. He was the leader of the pack.
He
remained behind at the gate. It appeared that he wanted that
the riders use a certain route to get to their destination
but
whatever that was. There was no evidence as to precisely where
the bikers were going to have the fun drive. Whether
the
plaintiff wished that they camp inside the reserve and have their fun
right in there or whether he merely wanted the riders
simply to pass
through the reserve is only known to the plaintiff but unknown to me.
[79]
What I do know is that the plaintiff was behind everyone when he left
the gate. He first overtook the back-up vehicle
driven by Mr
Kriel. There were nine or so bikes ahead of him as he descended
down from the top of the hill. Those bikers
were in motion with
the exception of two or three stationary bikes which were right in
front. They were stationary in the
middle of the left or
downward traffic lane. The engines of many of the bikes were
running because they were in motion.
The stationary bikes in
the middle of the downward traffic lane certainly created a potential
hazardous situation. Anyone
who knew anything about driving
would have appreciated such danger. It was quite reasonably
foreseeable that those riders
approaching them from behind might want
to overtake them. In those circumstances a careful rider in the
position of the plaintiff
would have acted differently than the
plaintiff did.
[80] Firstly,
he would have drastically reduced his speed to be able to take an
evasive and safe action in case any of those riders
in front of him
was unaware of him. It was important to any biker to remind
himself that although the conditions of the road
were good, it
remained a gravel road nonetheless. A gravel road is never as
safe as a tarred road. However I hasten
to say that in this
instance there was no evidence to suggest that the conditions of the
road had anything to do with the accident.
Secondly, a prudent
and reasonable driver would, without necessarily slowing down, have
allowed wider and saver berth, than the
plaintiff did, between his
line of travel and the line of the inner bike he was about to pass,
in particular, the insured rider’s
line behind whom he was
travelling.
[81] It
must be kept in mind that the uphill traffic lane was completely
free, it was not occupied by any road user. Therefore there
was ample
and safe space to the right of the imaginary middle line for the
plaintiff to use without endangering anyone. Yet he
kept his line of
travel to the left of the imaginary middle line. By so doing he
unreasonably allowed a dangerously narrow berth
between himself and
those he tried to pass.
[82]
Another objective fact was the position of the insured bike after the
collision. The undisputed evidence of the insured
rider was
that he and his bike together weighed 250kg. That heavy mass
was turned 180° by the sheer force of the impact.
This objective
fact was also telling against the plaintiff’s contention.
[83] In
my view the final rest position of the plaintiff, the final rest
position of his bike as well as the final rest position
of the
insured rider and his bike were all objective facts. Those
undisputed and objective facts strongly militated against
the
plaintiff’s version as regard the speed at which he was
travelling seconds before the disaster. On the contrary,
those
three objective facts materially fortified the version of the
defendant that the plaintiff was riding at an excessively high
speed
regard been had to the peculiar circumstances of this particular
accident.
[84] In
the light of all the aforegoing I am persuaded that the plaintiff
overtook his fellow riders probably at a speed of 140km/h.
He
was riding dangerously close behind the insured rider. He
failed to maintain a safe following distance between the insured
rider’s motorbike and his. He failed to reduce speed when
he approached the stationary motorbike. He failed to
reduce
speed when the insured rider reduced speed in order to stop. He
failed to swerve or to take any other invasive action
in order to
avoid the collision. He failed to make provision for a possible
lateral movement by any of his fellow riders. In short
he failed to
keep a proper lookout, in the prevailing circumstances.
[85]
There is no doubt that the insured rider was also negligent and that
his negligence contributed to the occurrence of the collision
between
the two motorbikes. There is no doubt in my mind that the plaintiff
was also negligent and that the collision between the
two motorbikes
was brought about by his contributory negligence. Accordingly I am
not persuaded that the insured rider was the
sole cause of the
accident as Mr Steenkamp submitted. Likewise I am not persuaded that
the plaintiff was the sole cause of the
accident as Mr Thompson
submitted. On the facts, both riders were to blame for the accident.
However, the plaintiff’s negligence
was the primary cause of
the accident in my view. His careless conduct substantially
caused the accident. On the facts I
am of the view that an
apportionment of 60/40 in favour of the defendant is justified.
[86] Accordingly I make the following order:
86.1 The plaintiff’s action succeeds.
86.2 The defendant is liable for 40% of the plaintiff’s proven
or agreed damages.
86.3 The defendant is directed to pay the plaintiff’s costs
relating to the substantive merits of the matter.
86.4 The adjudication of issues relating to quantum is postponed
sine
die
.
M. H. RAMPAI,
AJP
On behalf of the plaintiff: Adv. MDJ
Steenkamp
Instructed
by:
Ben van der
Merwe Attorneys
BLOEMFONTEIN
On behalf of the defendant: Adv. DR
Thompson
Instructed
by:
Nozuko
Nxunani Inc.
JOHANNESBURG
Honey &
Partners
BLOEMFONTEIN