Minister of Transport NO and Another v Du Toit and Another (602/04) [2006] ZASCA 41; 2007 (1) SA 322 (SCA) (29 March 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 41
|

|

Minister of Transport NO and Another v Du Toit and Another (602/04) [2006] ZASCA 41; 2007 (1) SA 322 (SCA) (29 March 2006)

Links to summary

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 602/04
In
the matter between:
THE
MINISTER OF TRANSPORT NO
1
ST
APPELLANT
TOLL
ROAD CONCESSIONARIES
(PTY)
LTD
2
ND
APPELLANT
and
D
DU TOIT
1
ST
RESPONDENT
J
L DU TOIT
2
ND
RESPONDENT
________________________________________________________________
Coram : SCOTT, STREICHER, CAMERON, NAVSA
e
t
LEWIS JJA
Date of hearing : 16 March 2006
Date of delivery : 29 March 2006
Summary: Driver mistakenly leaving freeway and
driving through a ‘T’ intersection at the end of off-ramp –
inadequate road
signs – party responsible for signage liable for
contributory negligence
Neutral citation: This judgment may be referred to as
Minister of Transport v Du Toit
[2006] SCA 40 (RSA)
_______________________________________________________
JUDGMENT
_______________________________________________________
SCOTT JA
/…
SCOTT JA:
[1]
The first respondent (to whom I shall refer
as the plaintiff) was seriously injured when on 27 September 1995 a
motor vehicle in which
she was a passenger left the road and, after
going over the edge of an embankment, landed in the veld. The driver
was the plaintiff’s
husband. The incident occurred in the vicinity
of the Grasmere toll gate on the National Road (the N1) south of
Johannesburg. The
plaintiff instituted an action for damages against
the South African Roads Board alleging that it was the authority that
was authorised
and obliged
inter alia
to erect and maintain
facilities, including road signs, for the convenience and safety of
road users and that the accident had occurred
in consequence of its
negligent failure to erect and maintain adequate road signs.
[2] Subsequent to the commencement of proceedings the
Minister of Transport (the first appellant) became the legal
successor to the
Roads Board and was substituted as the defendant.
The latter joined a company, Toll Road Concessionaries (Pty) Ltd
(‘Tolcon’)
as the first third party (now the second appellant)
and the plaintiff’s husband as the second third party (now the
second respondent).
The first appellant alleged that the Roads Board
had entered into an agreement with Tolcon in terms of which the
latter had undertaken
to exercise certain supervisory functions in
relation to the maintenance and erection of facilities on the stretch
of the road in
question and to indemnify the Roads Board in respect
of claims arising in respect thereof. As far as the plaintiff’s
husband was
concerned, it was alleged that he had driven the vehicle
in question negligently and that his negligence had contributed to
the damage
suffered by the plaintiff.
[3] At the commencement of the trial the court
a quo
was asked to separate the issue of negligence from the other issues
and to determine only whether the first appellant was negligent
and,
if so, whether there was contributory negligence on the part of the
plaintiff’s husband and its degree. The formulation lacked
precision, both in relation to the issue of wrongfulness, ie the
existence of a legal duty owed to users of the road (see eg
Gouda
Boerdery BK v Transnet
2005 (5) SA 490
(SCA) para 12;
Local
Transitional Council of Delmas v Boshoff
2005 (5) SA 514
(SCA)
para 18) and in relation to the issue of the liability of a party who
has engaged the services of an independent contractor
whose conduct
causes harm (see
Langley Fox Building Partnership (Pty) Ltd v De
Valence
1991 (1) SA 1
(A)). However, from the debate that ensued
between counsel and the court
a quo
(Lamont AJ) prior to the
evidence being led at the trial, it appears that the issues which the
court was called upon to decide were
premised on the acceptance by
the first appellant that he owed users of the road a legal duty to
act without negligence in relation
to road signs and other such
facilities; and that in the event of it being found that the person
or persons responsible for erecting
and maintaining such signs and
facilities had negligently failed to do so, and that such failure had
contributed to the damage suffered
by the plaintiff, the first
appellant would be liable to the plaintiff. Included among the issues
left over for later determination
was therefore the issue of Tolcon’s
liability to the appellant in the event of the latter being held
liable to the plaintiff. This
was the basis on which the trial was
conducted. At its conclusion Lamont AJ found the first appellant to
have been negligent and
that the degree of blameworthiness on the
part of his employees in relation to the plaintiff’s damages was 20
per cent while that
of the plaintiff’s husband was 80 per cent. The
first appellant and Tolcon appeal against this finding with the leave
of the court
a quo
. There is no cross-appeal by the
plaintiff’s husband.
[4] Before attempting to describe the road signs to
which reference was made at the trial, it is necessary to give a
brief account
of how the accident occurred and a description of the
locality. On the evening of 27 September 1995 the plaintiff and her
husband,
together with her parents and another couple, dined at a
Johannesburg restaurant. Instead of returning to their home in
Carletonville,
on leaving the restaurant the plaintiff and her
husband set out for the Vaal river where the plaintiff’s parents
had a holiday
house. Their reason for going there was that the
plaintiff was travelling to Bangkok the next day and needed her
credit cards and
other documents which she had accidentally left at
the holiday house on a previous visit. For this reason they did not
take their
usual route from Carletonville but instead drove south
from Johannesburg along the N1 which was a route with which neither
was familiar.
[5] The N1 is a double-carriage freeway with two lanes
in either direction. The surface was described in evidence as being
of concrete
and ‘off-white’ in colour. At the Grasmere toll gate
the road widens to accommodate a number of booths for vehicles
travelling
in either direction. In all there are some 11 such booths.
The area is brightly illuminated with ‘tower lighting’. The toll
gate
is different from most in South Africa in that it not only
accommodates through-traffic but also south bound traffic leaving the
N1. The exit gives access to the De Deur – Ennerdale road (then the
R557) which at that point runs from approximately east to west
and
crosses the N1 on a bridge some 500 metres south of the toll gate.
Although not entirely clear, it appears that the three booths
to the
extreme left of the toll gate (ie to the east) were dedicated for
traffic leaving the freeway. On emerging from these booths
on the
southern side of the toll gate a motorist would find himself on a
wide concrete apron with a temporary barrier of red and
white painted
blocks, said to be of the ‘new-jersey type’, barring his way back
on to the freeway and directing him naturally
to the off-ramp. The
off-ramp is a tarred road four metres in width with a two metre strip
on either side of the edge of the road.
The edge is marked with a
solid yellow line on the left side and a solid white line on the
right. Beyond that on either side is a
metal ‘crash’ barrier. The
road runs approximately parallel to the N1 but curves slightly to the
left, ie to the east. It is
also on an incline rising gradually over
a distance of 530 metres to gain the crest of an embankment which
forms the spring point
for the bridge over the N1. The off-ramp joins
the R557 at a ‘T’ intersection. At a point some 150 metres from
the intersection
the road widens into two lanes. At the mouth of the
intersection there is a triangular-shaped island dividing the lanes
with the
left lane curving away to the east for traffic going to De
Deur. The right lane comes to an end at the ‘T’ intersection with
traffic going to Ennerdale being required to execute a right hand
turn into the R557 before proceeding across the bridge over the
N1.
[6] The plaintiff and her husband reached the Grasmere
toll gate at about 11 pm. The plaintiff’s husband was driving. On
seeing
that the booth on the extreme left was open, and believing it
was for through-traffic, they went to it, paid the toll, emerged onto
the concrete apron and from there proceeded south along the off-ramp.
Still believing he was on the N1, the driver picked up speed
and
continued on his way. It was common cause that the tower lighting
would have illuminated the road for a distance of about 350
to 400
metres from the toll gate. The nearest light was measured to be 191
metres from the ‘T’ intersection (and 341 from the
toll gate). As
the vehicle emerged from the illuminated area and proceeded into the
darkness it therefore would have been about 150
to 100 metres from
the intersection. Neither the plaintiff nor her husband could say
whether the vehicle’s lights at that stage
were on bright or dim.
Neither remembered or registered having seen any warning signs. What
happened next, in the words of the plaintiff’s
husband, was that
‘we ran out of road’. He said he had no idea what had happened.
What in truth had happened is that he had driven
straight through the
‘T’ intersection and down the embankment on the other side (the
southern side) of the R557. He later explained
that he was astonished
to discover that he had left the freeway.
[7] It is necessary to mention at this stage that both
the plaintiff and her husband denied that either of them had consumed
alcohol
that evening. They said that the only member of the dinner
party at the restaurant who had done so was the plaintiff’s father
who
had consumed one tot of whisky. It was suggested in
cross-examination that this was untrue and it was said that the
appellants would
call a witness to say that after the accident the
plaintiff’s husband was under the influence of liquor. In
anticipation of this
evidence, the plaintiff called Mr Derrick
Littleford who was one of those present at the dinner party. He
confirmed the evidence
of the plaintiff and her husband and denied
that either had consumed alcohol. In response to this evidence
appellants no longer persisted
in the allegation that the plaintiff’s
husband was intoxicated and the threatened witness was not called.
[8] Against this background it is necessary to describe
the various road signs which were in place at the time of the
accident and
which the appellants contend were reasonably adequate to
warn motorists of both the exit and the ‘T’ intersection. These
were
the subject of much debate in evidence and are shown in a series
of photographs taken a day or two after the accident. Some of them
have since been altered, removed or their position changed. I shall
describe them as they were at the time of the accident. As one
approached the toll gate travelling from north to south the first
sign of relevance was a large information sign to the left of the
road indicating a turn off to the left (the east) to De Deur and
Ennerdale (the R557) one kilometre ahead. This was followed by
a
large circular speed limit sign indicating a speed limit of 100 km
per hour (as opposed to 120 km per hour). At this point the
toll gate
would have been visible to an approaching motorist who would
therefore have appreciated the reason for the reduction of
the speed
limit. Proceeding further in the direction of the toll gate, there
was another speed limit sign reducing the speed limit
to 80 km per
hour. At a distance of 300 metres from the toll gate there was a
large square sign painted yellow with black lettering
warning
motorists to reduce speed. Just beyond this, yet another speed limit
sign reduced the speed limit to 60 km per hour. All
these signs were
to the left of the roadway. Just beyond the latter sign, and
approximately at the point where the carriageway widens
to the left,
were two large overhead signs. One was square and the other
rectangular. The square sign, which was positioned approximately
above the yellow line on the left side of the road (before that line
breaks away to the left as the road widens), read ‘46 R557
Ennerdale De Deur’ with an arrow pointing straight downwards. The
rectangular sign was to the right of the square sign. In the
centre
of the rectangular sign there appeared the letter and numeral ‘N1’
and adjacent to it a ‘T’ within a yellow painted
circle.
Immediately below this was the name ‘Kroonstad’ with two arrows
similarly pointing straight downwards. Also on the rectangular
sign,
and to the extreme right of it, a motor car was depicted with the
word ‘autotol’. Immediately below this was an arrow pointing
at
an angle to the right. It is necessary to add that the roadway also
breaks away to the right (as it does on the left) and the
arrow
clearly indicated that the way to the autotol was via the additional
lane created by the widening of the road.
[9] I pause to observe that the direction of the arrow
at the foot of the square overhead sign was obviously confusing. Had
the arrow
been positioned at an angle to the left it would have
indicated to motorists that the turn off to the left was at that
point. In
other words, the arrow to the left would have corresponded
to the arrow to the right on the rectangular board. The impression
the
notice created was that the turn off to the R557 was beyond the
toll gate and that all the booths could be used by motorists intent
on remaining on the freeway.
[10] Once through the toll gate and on the off-ramp, the
first road sign a motorist would have encountered was a sign on the
right
hand side of the road. It displayed the number 46 (with the
numerals on a white background) and beneath that an arrow pointing to
the left (the arrow was white on a black background) and beneath that
a yellow chevron with two black painted pointers, one to the
left and
one to the right. The number 46 is the number of the exit. The fact
that the sign was on the right hand side of the road
would have
indicated that the driver was on the off-ramp. This sign was about
150 metres beyond the toll gate and 380 metres from
the ‘T’
intersection.
[11] Approximately 90 metres beyond the exit sign in the
direction of the ‘T’ intersection, but on the left side of the
road,
was a relatively small sign mounted on a single pole which read
‘stop’ and beneath that ‘300 m’ (with the lettering in white
on a green background). There was also a very much larger information
sign barely 10 metres beyond it. The larger sign (also with
white
lettering on a green background) indicated with an arrow that the
R557 to Ennerdale was to the right and the R557 to De Deur
was to the
left. The proximity of the one sign to the other was such that the
larger one would have been partly obscured by the smaller
one from
the vision of an approaching motorist. The larger sign was measured
to be 300 metres from the ‘T’ intersection and 230
metres from
the toll gate.
[12] Further up the road and at a point about 10 metres
short of where the road widens to create two lanes there was an ‘end
of
freeway’ sign. As previously mentioned this occurs some 150
metres from the intersection. At the mouth of the intersection
itself,
but on the right hand side of the road, was a large octagonal
stop sign with the word ‘stop’ in white on a red background.
Finally,
on the opposite side of the R557, that is to say on the
southern side, and facing the off- ramp, was a large information sign
with
a ‘T’ intersection chevron beneath it. The information sign
(with white lettering on a green background) indicated, as did the
other information signs, that De Deur was to the left and Ennerdale
to the right. The chevron was yellow with six pointers painted
black,
three to the left and three to the right. Of significance is that the
sign was not aligned with the right hand lane of the
off-ramp. It was
slightly to the left of the left hand lane. A motorist approaching
the intersection at night would therefore not
have observed the sign
to be directly ahead but, if under the impression that the road
continued in the same direction, would have
been likely to have
thought that the sign was to the left of the road.
[13] Mr Konrad Lötter testified on behalf of the
plaintiff. He is a mechanical engineer and described himself as an
expert on
accident reconstruction and a ‘qualified road safety
auditor’. He levelled various criticisms at the signs just referred
to.
First, he contended that traffic for the off-ramp should have
been directed away from the other traffic. In this regard I have
already
referred to the possible confusion arising from the direction
of the arrow beneath the overhead R557 sign. Second, he strongly
criticised
the positioning of the ‘stop 300 m’ sign some 10
metres in front of the much larger information sign. He expressed the
view that
not only would the one partly obscure the other but that at
night the two would tend to blend together so that the natural
inclination
of a motorist would be to try to read the obscured sign.
He also criticised the positioning of the ‘end of freeway’ sign.
Not
only was it too far up the road, he said, but it was at a point
where the road divided into two lanes. This, he thought, would send
a
‘conflicting message’ to a motorist especially as at that stage
the motorist would be emerging from an illuminated area and
proceeding into the dark. A further criticism was the absence at the
intersection of a stop sign on the left side of the road (in
this
case on the island) where a motorist would expect it to be. Lötter
said he had never come across a stop sign on the right
hand side of
the road only. He also pointed to the fact that the stop sign was in
a poor condition; the paint was badly faded and
in some places the
paint had come off altogether resulting in bald patches. Finally, he
strongly criticised the positioning of the
‘T’ intersection
chevron which he said should have been properly aligned with the road
so that a motorist approaching the intersection
would have found him
or herself driving straight towards it.
[14] Subsequent to the accident, a number of changes to
the signage were brought about. These have largely remedied the
defects which
formed the basis of Lötter’s criticism. Thus,
the overhead sign immediately to the north of the toll gate now no
longer has
an arrow pointing downwards, but to the left, to indicate
the turn off to Ennerdale. (The R557 has been renumbered R558.)
Furthermore,
as the freeway widens to accommodate the toll booths, a
broken line has been painted on the roadway to indicate which booths
are
for traffic leaving the freeway and which are for traffic
remaining on the freeway. The ‘stop 300 m’ sign on the off-ramp
has
been removed and the ‘end of freeway’ sign has been brought
forward to a point north of the information sign previously referred
to. A stop sign has also been erected on the left side of the road at
the intersection (ie on the island) so that there are now stop
signs
on both sides of the road. In addition, rumble strips have been
placed in the road approximately where it widens into two lanes,
ie
about 150 metres from the intersection. Another important change is
that the information sign with the ‘T’ intersection chevron
beneath it on the other side of the intersection, ie the southern
side of the R557 (now the R558), has been repositioned so that
it is
now correctly aligned with the off-ramp.
[15] There can be no doubt that the plaintiff’s
husband was negligent and that his negligence was causally connected
to the accident.
It is true that his initial mistake in leaving the
freeway was largely attributable to the confusing nature of the
overhead sign.
But his failure to realise what had happened before
his vehicle finally plunged over the embankment is indicative of a
high degree
of inattentiveness. On emerging from the toll booth he
would have had the jersey-type barrier immediately to his right which
would
have had the effect of directing him to a single-laned road
with a tarred surface – a road very different from the double-laned
highway with a concrete surface from which he had just come. Had he
merely glanced to his right he would have seen the highway on
the
other side of the barrier. Moreover, the exit sign on the right of
the off-ramp would have been clearly visible. Not only did
he pay no
heed to that but he failed to see, or register seeing, the ‘stop
300 m’ warning sign, the ‘end of freeway sign’,
the stop sign
or the ‘T’ intersection chevron. Indeed, there was no
cross-appeal against the finding of the court
a quo
that the
plaintiff’s husband was negligent and that his degree of
blameworthiness in relation to the plaintiff’s damages was
80 per
cent. The real issue in the appeal is therefore whether the servants
of the first appellant (or his predecessor) were negligent
and, if
so, whether that negligence was causally linked to the accident.
[16] Before turning to this issue, it is necessary to
make two observations. The first is that it is for the court, not a
witness,
to decide the issue. While regard may be had to Lötter’s
evidence as to the adequacies or otherwise of the various road signs,
the extent to which the opinions advanced by him are to be accepted
will depend upon whether, in the judgment of the court, those
opinions are founded on logical reasoning or are otherwise valid. See
Michael and another v Linksfield Park Clinic (Pty) Ltd and another
2001 (3) SA 1188
(SCA) para 36. Second, the fact that changes were
effected to the signage subsequent to the accident does not
necessarily give rise
to the inference that the pre-existing signage
was inadequate. See
S v Bochris Investments (Pty) Ltd and another
1988 (1) SA 861
(A) at 866J-867C. Indeed, the nature and extent of
the warning signs erected at any particular place may not
infrequently be influenced
by the number of accidents occurring
there.
[17] The parties were agreed that the first appellant
was obliged to erect such road signs or provide such other facilities
as were
reasonable in order to guard against reasonably foreseeable
harm to users of the road. On behalf of both appellants it was
contended,
however, that whether in any particular circumstances the
steps taken by the first appellant were reasonable or not had to be
determined
with reference to the manner of driving of ‘a reasonably
competent and cautious driver’. If by this is meant that the
authority
responsible for erecting road signs and other warnings is
entitled to assume that a driver will read and, if necessary, react
to
every sign regardless of its nature, size and positioning, I
cannot agree. A driver of a motor vehicle is obliged to maintain a
proper
look-out. He (or she) must pay attention to what is happening
around him; but most important of all, he must as far as possible
keep
his eyes on the road, particularly at night when his vision is
limited. Depending on the state of the traffic, the nature of the
road and the speed at which he is travelling, the opportunity which a
motorist has to read and comprehend the import of each sign
may be
extremely limited. Indeed, it is not uncommon for even a competent
and cautious driver to misread or fail to react to a road
sign. For
this reason it is imperative, particularly in unlit areas, for
warning and other signs to be clear, unambiguous and appropriately
positioned so that if necessary they may be read and comprehended at
a glance. This is all the more so where there is a potentially
dangerous situation ahead such as an unusually sharp bend or, for
that matter, an unlit ‘T’ intersection which would otherwise
not
be anticipated by a driver who is unfamiliar with the road.
[18] It is clear that the ‘T’ intersection in
question was perceived to be a potential source of danger for
motorists on the off-ramp,
particularly at night as they would come
across it shortly after having emerged from an illuminated area and
proceeded into an unlit
stretch of the road. The need for appropriate
warning signs was undoubtedly foreseen. In addition to the exit sign
and the stop sign
itself, the servants of the first appellant (or his
predecessor) had considered it necessary to erect the two warning
signs previously
referred to, namely the ‘stop 300 m’ sign and
the ‘T’ intersection chevron. In my view, the criticism levelled
at these signs
by Lötter was fully justified. The ‘stop 300 m’
sign was quite clearly inappropriately placed. The photographs show
that
it would have partly obscured the view which a motorist would
have had of the larger information sign 10 metres beyond it. Both
signs
had a green background with white lettering and it seems
probable, as Lötter contended, that the one would have blended
in with
the other, resulting in the possibility of neither being
comprehended by even a vigilant motorist. No evidence was adduced to
suggest
that the photographs gave a false impression of what a
motorist would have observed. The ‘T’ intersection chevron was
also inappropriately
positioned. No explanation was forthcoming as to
why the sign was not properly aligned with the off-ramp, nor could
there have been
one; it was moved to its correct position after the
accident. A motorist approaching the intersection at night could very
easily
have regarded it as yet another information sign on the side
of the road and failed to appreciate the significance of the chevron
at its base.
[19] The stop sign itself was in a poor condition with
its reflective paint badly faded and in places worn off entirely.
Criticism
was also levelled at the condition of the reflective paint
of the ‘end of freeway’ sign, but this was not readily
discernible
from the photographs. The more cogent criticism of this
sign was its location some 350 metres from the toll gate and just
short of
the point where the off-ramp widens into two lanes. No
explanation was given as to why the sign was located at this position
and
not at the start of the off-ramp.
[20] In view of the aforegoing, I am satisfied that the
court
a quo
was correct in finding that there was negligence
on the part of the first appellant, or rather his servants.
[21] The further argument advanced on behalf of the
appellants was that the plaintiff had failed to establish a causal
link between
the accident and any inadequacies found to have existed
in the signage. It was contended that the inference arising from the
driver’s
total failure over a distance of some 500 metres to
appreciate that he was not on the freeway justified the inference
that, even
had the signs been adequate in every respect, he would
still have ignored them. I do not think there is merit in the
contention.
In the first place, it is quite clear that the presence
of the vehicle on the off-ramp was largely due to the misleading
nature of
the overhead sign immediately to the north of the toll
gate. The driver’s subsequent failure to appreciate that he had
left the
freeway was undoubtedly at least in part attributable to his
firm conviction that he was still on the freeway which, in turn,
flowed
from the manner in which he had left it. But in any event, and
apart from any other deficiencies in the signage, the probabilities
are overwhelming that had the ‘T’ intersection chevron been
properly aligned with the off-ramp so that the plaintiff’s husband
would have found himself driving directly at it, he would have been
alerted to the danger and would have reacted accordingly.
[22] It was not contended that if the appellant’s
servants were found to have been negligent the court
a quo
erred in its apportionment of 80 : 20 in favour of the appellant.
Nor, in my view, is there any basis for interfering with that
apportionment.
The appeal must, therefore fail.
[23] The appeal is dismissed. The appellants are ordered
jointly and severally to pay the first respondent’s costs.
__________
D G SCOTT
JUDGE OF APPEAL
CONCUR:
STREICHER JA
CAMERON JA
NAVSA JA
LEWIS JA