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[2013] ZAGPPHC 14
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Lauwrens and Another v Member of the Executive Council for Public Works, Roads and Transport of the Limpopo Province (74388/10) [2013] ZAGPPHC 14 (1 February 2013)
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NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
No: 74388/10
DATE:
01/02/2013
In
the matter between:
JACQUES
LAUWRENS
.......................................................................
1ST
PLAINTIFF
RINNIE
LAUWRENS
.............................................................................
2ND
PLAINTIFF
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
PUBLIC WORKS, ROADS AND TRANSPORT
OF
THE LIMPOPO
PROVINCE
............................................................
DEFENDANT
JUDGMENT
RANCHOD
J:
[1]
On the 13 December 2008 the driver of a Nissan Almera motor vehicle
(the Almera) lost control when crossing a depression in
the road at
the Rooisloot bridge (the bridge) on the R518 on the
Mokopane/Zebedila road and collided with an oncoming Nissan LDV
(the
bakkie).
[2]
The occupants of the vehicle were Mr and Mrs Lauwrens in the front
and their two minor children, S (12) and N (9) in the back
of the
vehicle. Mrs Lauwrens was the driver of the vehicle. S sat behind his
mother. Both Mr and Mrs Lauwrens were killed outright
in the
accident, but the two minor boys survived.
[3]
The first plaintiff is claiming in his capacity as guardian of the
minor children and the second plaintiff is claiming in her
capacity
as guardian and primary care giver of the children. The children
sustained injuries as a result of the accident and were
hospitalised.
The first and second plaintiffs’ claim on behalf of the
children is therefore based on loss of support consequent
upon the
death of the children’s parents. The second plaintiff also sues
for costs incurred as the primary caregiver of the
children.
[4]
By agreement between the parties, it was ordered at the commencement
of trial that the merits of the plaintiff’s claim
against the
defendant be separately adjudicated in terms of Rule 33(4) of the
Uniform Rules of Court. It is not in dispute or it
is common cause
that prior to the institution of action, the Plaintiffs had served a
letter of demand on the defendant in terms
of the Legal Proceedings
Against Certain Organs of State Act 40 of 2002.
[5]
The plaintiffs allege that the accident was caused by the negligence
of the defendant, alternatively, his employees acting in
the course
and scope of their employment, in the following respects:
5.1
failure to inspect the road, the road pavement and the surface of the
road at all, alternatively with sufficient regularity,
alternatively
properly;
5.2
failure to ensure that bumping and/or undulations and/or formations
do not develop on the road surface and road pavement where
the road
pavement met the bridge in question;
5.3
failure to ensure that when bumping and/or undulations and/or
formations on the pavement and road surface where the road surface
meets the bridge do develop, that they do not pose a danger to the
users of the road;
5.4
failure to maintain, alternatively to properly and appropriately
maintain the road, the road surface and the road pavement where
the
road pavement met the bridge in question; and
5.5
failure to appreciate, alternatively the failure to act in accordance
with an appreciation, that because bumping and undulations
did
develop on the road surface and the road pavement where the road
pavement met the bridge, it is critical for the reasonable
road
safety of motorists, that the defendant take steps to ensure that the
road surface and/or road pavement where the road pavement
met the
bridge were clear of bumping and/or undulations and crack formation,
and was not allowed to develop to such an extent that
it poses a
danger for the reasonable use of the road by motorists.
[6]
The basis of the defendant’s defence to the claim is that the
sole cause of the accident was the negligence of Mrs Lauwrens
who
failed to adhere with and comply with the road traffic warning signs
fixed immediately before the uneven road and undulation
and her
failure to drive at a reduced speed. In particular, the defendant
avers that Ms Lauwrens drove the vehicle at an excessive
speed and
lost control after having gone through an undulation or bump adjacent
to the bridge.
[7]
The following appears to be common cause:
7.1
The defendant admitted that he has a duty of care and maintenance
responsibility regarding the R518 road between Mokopane and
Zebediela;
7.2
The defendant admitted that his maintenance functions included the
regular and proper inspection of the road including the driving
surface of the road and the road pavement, in order to evaluate the
condition thereof;
7.3
The defendant admitted that he had the duty to perform regular and
appropriate maintenance of the road in order to ensure that
the road
driving surface and the road pavement was safe for the use thereof by
the public;
7.4
The defendant admitted that he had to take reasonable steps to ensure
that the driving surface of the road pavement did not
degrade to a
level where it might pose a danger for the reasonable user of the
road; and
7.5
The defendant admitted that he had to take reasonable steps to
ensure that undulations, cracks and bumps in the road pavement
do not
develop on the driving surface of the road and should such
undulations, cracks and bumps develop, that reasonable steps
were
taken to maintain and rectify
them
1.1
The defendant also pleaded that its maintenance responsibility for
the road was subject to its available financial and human
resources.
[2]
It is also common cause that when the vehicle was driven over the
settlement/depression where the road pavement met the concrete
bridge, the driver of the vehicle lost control and veered over to the
right hand side of the road surface and collided with the
oncoming
Nissan bakkie with registration letters and numbers BPY422L.
[3]
It is apposite to mention that the deceased driver’s estate is
not a plaintiff, hence, the question of the deceased driver’s
contributory negligence is not in issue or to be determined. The only
relevant question is whether the defendant was negligent
or not.
[4]
On the fateful morning of 13 December 2008 the Lauwrens family left
their home in Ellisras to start their yearly holiday. Ellisras
is
approximately 220 km from the scene of the accident. Their intention
was to travel to family friends where they would overnight
before
proceeding to the Kruger National Park. On the way they stopped to
have breakfast and freshen up. Mr Lauwrens was the driver
from
Ellisras to Mokopane. Thereafter Mrs Lauwrens took the wheel to drive
further on the road to Zebediela.
[5]
S, who was sitting in the back of the motor vehicle behind his
mother, was getting ready to make himself comfortable to sleep
when
he felt a sudden jolt. He said it felt as if the car had driven
through a pothole but just that it was more severe and caused
him to
lose his seating on the back seat. When he looked to the front he
says he saw that the motor vehicle was out of control
whereafter
everything became dark and he lost consciousness. There was a
suitcase between him and his brother, who was also seated
on the back
seat. He was unable to provide any further details on how the
accident occurred.
[6]
The second witness called by the plaintiffs was a Mr Reginald Nkuna.
He was a passenger in the bakkie with which the Almera
had collided.
The Nissan bakkie was what is referred to as a double-cab. He was
seated at the back on the left-hand side. He testified
that when the
bakkie approached the bridge, it was travelling at 60 km/h. The
reason for travelling at such a speed was that he
knew the road and
what it is like at the bridge. He told the driver to drive slowly as
the road was dangerous. As they were approaching
the bridge he saw
the Almera drive over a hump, ‘jumped’ and when it came
in contact with the road surface again the
driver lost control, came
across into their lane and collided with the bakkie. He sustained
injuries from the broken glass of the
windscreen of the bakkie. He
said when he first saw the vehicle it was approximately thirty metres
away. He further testified that
immediately after the accident he
assisted the passengers in the bakkie as he had not sustained serious
injuries. He confirmed
that the road was a busy road and it was also
used by many trucks. He could only remember about two accidents that
occurred around
the area of the bridge, but could not give much
detail in that regard.
[7]
During cross-examination Mr Nkuna was referred to his statement
which he had made to the police immediately after the accident.
He
identified the statement but mentioned that he was in pain at the
time when he made it. However, when the statement was read
to him, he
agreed with the contents except, he said, that he did not tell the
police he was 33 years old at that time but 34 and
also that he did
not mention that the vehicle was travelling at a high speed. He said
he could not have been able to assess the
speed at which the Almera
was travelling whilst he was in the bakkie. He could not explain why
the other portions in his statement
were correct except for his age
and the issue of the speed at which the Almera was travelling. During
the examination in chief,
Mr Nkuna was not referred to the statement
although it formed part of the discovered documents of the
plaintiffs. Mr Nkuna had
also testified that the Bakkie was written
off as a result of the accident.
[8]
The third witness for the plaintiffs was Mr Grobbelaar, an accident
reconstruction expert and mechanical engineer. He testified
that he
visited the scene of the accident on the R518 road on 15 February
2012 (the accident occurred on 13 December 2008) and
also utilised
the photographs which were made available to him and other
information that was provided. He took measurements and
photographs
at the scene and these measurements were used in drafting the scale
plan of the scene which was attached as annexure
“A” to
his report and the photographs were attached as annexure “B”.
He confirmed that having considered
the police photographs and the
accident report (AR) form, visibility was clear on the day in
question. He further testified that
according to the photographs, it
was apparent that the Almera collided with the Bakkie with its left
front which is evidenced by
the extent of the damage to the left
front side of the vehicle. Under cross- examination he conceded that
the vehicle could have
been travelling at a speed of between 80 and
100 km/h immediately before the accident but that the speed could
have been higher
when it hit the first bump or undulation. He further
conceded that as he did not inspect the vehicle he could not confirm
whether
the loss of control after the bump or undulation could also
have been caused by a mechanical failure on the part of the vehicle.
Defective shock absorbers and suspension system could also lead to a
loss of control. In his expert report, Mr Grobbelaar states
that the
severity of the jump when the vehicle hit a bump would be dependent
on a number of factors such as the severity of the
undulation and
other physical factors.
[9]
In his expert report, Mr Grobbelaar indicated that:
‘
An
opinion regarding the speed of the Nissan calculated from the point
of view of the Law of Conservation of Momentum, may be provided
once
the colour police photographs have been obtained in order to better
establish the location of the gouge marks in relation
to the
positions of rest of both of the vehicles and the speed at which the
Nissan LDV was travelling at impact has been obtained.’
[10]
Despite having received the colour police photographs and the
evidence of Mr Nkuna on the speed of the bakkie, in his evidence
in
chief Mr Grobbelaar did not provide an opinion regarding the speed of
the Almera at the moment of impact. Under cross-examination,
he
merely provided some estimation of the speed. In his expert report Mr
Grobbelaar states that the momentum of the vehicle would
probably
have been considerably larger than that of the bakkie.. He conceded
under cross- examination that having considered the
extent of the
damage to both vehicles, the impact was huge.
[11]
The fourth witness called by the plaintiffs was Mr Bergh, who is a
civil engineer. He was requested to provide an opinion on
the
condition of the R518 road; more specifically with regard to the road
condition at the bridge on 13 December 2008. He said
he was provided
with a series of photographs of the particular section of the R518
where the accident took place. According to
his information photos 1
to 96 were taken the day after the accident and photos 97 to 184 were
taken approximately 5 days later.
He conducted an inspection in loco
during November 2011 and his report was based on his observations
from the photographs as well
as his observations and measurements
that he personally made at the scene at the bridge. It was his
opinion that depressions of
more than 30 mm where the road connected
to the bridge would be dangerous.
[18]
The second aspect which he dealt with was the warning signs. He had
referred to two warning signs which were placed alongside
the road
warning motorists travelling in the direction the deceased travelled
about the danger ahead. The one sign, marked 3W331,
warning of an
uneven road ahead, was located 634 metres from the hazard when, in
terms of the South African Road Traffic Manual
it should have been
located 240 m from the hazard if the speed limit was 100 km/h on that
road. The second sign, warning of a drift
ahead, was located 296 m
away from the bridge when it should have also been placed 240 m away
in order to be able to communicate
a proper message to a road user of
a hazard ahead.
[19]
Warning signs with a white background were permanent signs whereas
those with a yellow background were temporary signs. As
the two signs
in question had a white background Mr Bergh inferred that the
defendants did not intend to repair the road, which
was in his
opinion in a severe and unsatisfactory condition, in the foreseeable
future. According to this witness the erection
of the signs were not
effective in preventing the accident. During cross-examination he was
referred to chapter 3 of the manual
that was attached to his report
regarding warning signs where it is stated:
‘
Warning
signs are used to alert drivers to hazardous or potentially hazardous
conditions on or adjacent to the roadway. Warning
signs indicate a
need for extra caution by road users and may require a reduction in
speed or other manoeuvre in the interest of
their safety and that of
other drivers, pedestrians and animals.’
When
it was put to him that the driver of the vehicle should have
exercised caution by reducing speed in accordance with the warning
signs, he responded that the signs were ineffective because they had
not been placed at the correct distances in terms of the manual.
[12]
The next witness for the plaintiff was Mr Stefanus Engelbrecht who
lived on a farm approximately three kilometres from the
bridge in
question. He had been staying on the farm since 1994. According to
him the road at the bridge had been deteriorating
since 2006. During
2008 he had sent letters, including an email to the Road Agency in
Limpopo about the problem at the bridge.
He testified that most of
his clients who came to the farm complained about the condition of
the road at the bridge. He referred
to a letter he wrote dated 6 June
2008 which was sent to the chief executive of the Roads Agency and
which also included the signatures
of several other petitioners,
complaining about the condition of the road. The complaint related to
the sinking at the crossing
of the bridge which caused a severe dip
in the road. In the letter he acknowledged that after his complaints
during 2006 temporary
repairs were made. When he complained again in
2007 to a Mr Raymond Minnie and a Mr Nothnagel, (the defendant’s
civil-engineer)
the latter advised him that he should write to the
Roads Agency. He testified that when approaching the bridge one had
to slow
down to a speed of approximately 50 to 60 km/h. He said on 28
August 2008 he had sent an email to Mr Nothnagel indicating that in
the previous week there had been an accident at the bridge and that
the bridge was becoming dangerous and will cause or lead to
serious
accidents.
[21]
During cross-examination he conceded that he could not tell what the
cause of the accident was on 13 December 2008 in which
the deceased
died as he had only come to the scene after the event. He also
confirmed that after he had raised his complaints both
Minnie and
Nothnagel personally came to his farm to discuss his complaints. It
was also put to him that subsequent to the latest
complaint on 22
September 2008, that is, some two months before the accident in
question, the defendant effected repairs on the
road by filling the
settlement. He also acknowledged that the R518 road was a very busy
road.
[22]
The defendant’s first witness was Ms Mabitsela who has been
employed by his Department of Public Works, Roads and Transport
for
more than 22 years. Since 2004 she has been employed as a foreman in
the road maintenance division. The job entails monitoring
teams sent
out to do repairs on roads and also to monitor daily production of
the road works teams. She testified that she goes
with the teams to
the roads on a daily basis. Just under 220 km of roads in the Limpopo
province fall under her team’s jurisdiction.
She explained that
her team would repair roads on instructions from the Cost Centre
Manager who was at the relevant time Mr Raymond
Minnie. She mentioned
that repairs were done at the bridge on 4 June 2008 as well as 22
September 2008. She further stated that
at the time of the accident
in December there were no potholes at the bridge. She also mentioned
that it is the cost centre manager
who normally inspects the
provincial roads on a weekly basis. It is after the inspection that
he would instruct her team to effect
any necessary repairs. She
confirmed that repairs were also effected at the bridge five days
after the accident on 13 December
2008 but she was not involved in
those repairs. She said the reason for effecting major repairs after
the accident was because
there was a lot of patchwork on the road,
hence they removed the surface and re-tarred the section leading to
the bridge.
[23]
Under cross-examination she testified that the road was safe for use
even before the accident as long as a person obeyed the
warning signs
and travelled at a speed of approximately 60 to 80 km/h. She also
explained that another reason for effecting major
repairs in December
after the accident was that they were expecting a lot of traffic for
the Christmas holidays.
[24]
The witness disagreed that the depression of the roadway at the
bridge was the height of a Coca-Cola can standing upright.
She was of
the view that a more correct depiction of the height with the
Coca-Cola can would be to place the can on its side. She
said if Mr
Raymond Minnie had reported a sinking at the bridge they would have
gone and fixed it. However, he did not make any
such report (after
the repairs in September and before the accident in December).
[25]
The next witness, Mr Matome Lefe Malesa testified briefly. The
essence of his evidence was that certain repairs at the bridge
(a
hole had been filled) were done on 22 September 2008.
[26]
Mr Raymond Minnie then took the stand. He was the cost centre manager
of the Road Works Department of the defendant. By 2008
he was already
5 to 6 years in that post. He was in control of three teams: one that
effected pothole repairs; a second team that
did clearing of the
bushes and other overgrowth and a third team which attended to road
signs. He was aware of the problems at
the relevant bridge and had
inspected it several times and also visited farmer Engelbrecht who
lived nearby. He testified that
the depression of the road at the
bridge had been fixed several times. He testified that his department
only did maintenance work
whereas larger repairs requiring
excavations were done by contractors who were hired for the purpose.
He and his colleague Mr Nothnagel
decided that at some point
contractors would have to be hired to effect major repairs as far as
the sinking of the road was concerned.
They merely did maintenance
work in the interim. On 22 September 2008 his team had fixed the
settling of the road approaching the
bridge. He testified further
that the repair was a temporary job as they did not have the
necessary equipment to effect major repairs.
A contractor was
appointed at some stage but the job was put on hold as they were
moving offices. He also testified that warning
signs had been put up
to show the danger at the bridge. He said the warning sign of a drift
was the only sign they could put in
the circumstances, apart from the
undulation sign.
[27]
Mr Minnie said that a bump as a vehicle approached the bridge was due
to the tar getting pushed up against the bridge. It was
his view that
the depth or sagging of the road at the bridge was approximately half
the height of the coca-cola can and not its
full height. It was his
opinion that the undulation was not dangerous and that the accident
could have been caused by high speed
and resultant loss of control of
the vehicle.
[28]
In December they could not wait any longer hence they arranged for
machines to be brought from other areas which included three
teams
from different cost centres to effect major repairs. He said the
repairs were not done as a result of the accident but because
the
road had kept on sagging. He was not aware of any other accident due
to the sagging except the one that occurred on 13 December
2008. He
confirmed that there were undulation and drift warning signs
alongside the road approaching the bridge from the direction
of the
deceased’s vehicle. He said the purpose of these signs was to
warn motorists to slow down. He then conceded that the
road was
dangerous at the time of the accident but that from his experience
one could travel safely at 100 km/h over the bridge.
He said he had
travelled over that portion of the bridge more than 100 times without
any problems.
[29]
The witness was also shown a photograph of a truck and trailer
crossing the bridge. The photograph depicted the rear wheels
of the
trailer lifted in the air after they hit the depression in the road
at the bridge. I will revert to this aspect presently.
[30]
The next witness was Mr Johannes van Vuuren who testified as an
expert on behalf of the defendant.
[31]
Mr van Vuuren is a road design engineer and professional technologist
who said he is qualified to do roads building and maintenance.
The
witness referred to his report in which reference is made to American
and United Kingdom guidelines which state that if an
accident occurs
within 15 to 20 m of a pothole then the accident would be attributed
to the pothole. However, in the present case
the accident occurred
approximately 70 m away meaning that the accident could not have been
due to a pothole. Mr Van Vuuren testified
that at a speed of 100 km/h
he doubted that a motorist would have felt any adverse impact when
crossing the relevant section of
the road at the bridge. Insofar as
the measurement of the depression by using a Coca-Cola can was
concerned he said one should
use a line and level to measure the
depth. He disagreed with Mr Bergh’s assertion that the
undulation is in category five,
that is, those that require urgent
attention and that it applied to the relevant section of the road. As
far as positioning of
warning signs are concerned he was of the view
that that remained within the engineer’s discretion as to how
far away they
should be positioned from the place of danger. He said
that apart from the drift sign the road manual had no other
appropriate
sign that could be used to warn of the depression at the
bridge. He was of the view that the positioning of the undulation
sign
634 m away was not inappropriate in the circumstances as a
further sign, that is, the drift sign was placed some 300 m from the
bridge. The two signs warned a motorist of some risk ahead.
[32]
Mr Van Vuuren’s evidence can be criticised in some respects. He
assumed that all the photographs that he referred to
in compiling his
report had been taken in 2011. It was put to him under
cross-examination that infact almost half of the photographs
had been
taken two and five days respectively after the accident. He conceded
that the assumptions he made on the basis that all
the photographs
were taken only recently and not at the time of the accident would
make some of his conclusions incorrect. In his
report Mr van Vuuren
refers to the depression/settlement being visible from 400 m away.
However, under cross- examination he conceded
that that was not
correct. He explained that he meant the discolouration on the road
was visible from 400 m away and that he may
have used the incorrect
words but, he said, the depression was visible from about 100 to 200
metres away. The witness concluded
in his report that according to
his observations, the cause of the accident was as a result of human
error and the accident could
have been averted by the reduction of
travelling speed. He further indicated that according to his
calculations the point of impact
of the accident should have been 40
m from the first undulation or bump between the road and bridge using
a simulation speed of
120 km/h and a reaction time of 1,5 seconds
whereas the actual point of impact was 79,3 metres away. This appears
to be consistent
with the evidence of Mr Grobbelaar, the
reconstruction engineer. He further testified that considering the 60
km/h speed of the
bakkie, the distance of the impact being 79,3
meters from the hazard, by using a simple formula, it can be deduced
that at the
point of impact, the Almera was being driven at a speed
of 143 km/h.
[33]
Plaintiffs’ counsel submitted that the calculations made by Mr
Van Vuuren could not be challenged during cross-examination
because
this evidence had not been put by the defence to Mr Grobbelaar when
he testified. However, it is apparent that Mr Grobbelaar
in his own
evidence indicated he would have been able to calculate the speed at
which the Almera was travelling at the point of
impact if he had
known the bakkie’s speed, which was provided in court by Mr
Nkuna, the plaintiff’s witness. However,
he did not do so.
[34]
Van Vuuren also testified that in 2006 and 2007 he had driven on that
road almost every Monday and Friday and had had no problem
navigating
that portion of the road. He said he also travelled on it in the
years 2008 and 2009. In 2008 undulations in the road
were not so
severe as to draw his attention as a road user. He confirmed that
there was a difference in the elevation at the Bridge.
He could
understand why the undulation warning sign was placed more than 600 m
away from the bridge because there was a curve in
the road. He said
putting it after the curve in the road would have meant that the sign
would have been too close to the hazard
being warned against.
[35]
The onus is on the plaintiffs to establish that a reasonable person
in the position of the defendant firstly, would foresee
the
reasonable possibility of his conduct injuring another in his person
and causing him patrimonial loss and secondly, would take
reasonable
steps to guard against such occurrence and thirdly that the defendant
failed to take such steps.
[36]
Apart from the evidence of Mr Nkuna and S, which is of very little
evidentiary value, there is mainly the evidence of the expert
witnesses as to the probable cause of the accident. The approach to
expert evidence has been set out in a number of cases. In Motor
Vehicle Assurance Fund v Kenny
1984 (4) SA 432
(ECD) Eksteen J held
(I quote from the head note):
‘
Direct
or credible evidence of what happened in a collision, must, to my
mind, generally carry greater weight than the opinion of
an expert,
however experienced he may be, seeking to reconstruct the event from
his experience and scientific training. Strange
things often happen
in a collision and, where two vehicles approaching each other from
opposite directions collide, it is practically
impossible for anyone
involved in the collision to give a minute and detailed description
of the combined speed of the vehicles
at the moment of impact, the
angle of contact or of the subsequent lateral or forward movements of
the vehicles. An expert’s
view of what might probably have
occurred in a collision must give way to assertions of the direct and
credible evidence of an
eyewitness. It is only where such direct
evidence is so improbable that it’s very credibility is
impugned, that an expert
opinion as to what may and may not have
occurred can persuade the court to his view.’ (See also Van Eck
v Santam Insurance
Co Ltd
1996 (4) SA 1226
(CPD))
[37]
In Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
SCA at paragraphs [34]-[40] the Supreme Court of
Appeal emphasised that the question of reasonableness and negligence
is one for
the court itself to determine on the basis of the various,
and often conflicting, expert opinions presented. As a rule that
determination
will not involve considerations of credibility but
rather the examination of the opinions and the analysis of the
essential reasoning,
preparatory to the courts reaching its own
conclusion on the issues raised. What is required in the evaluation
of such evidence
is to determine whether and to what extent the
opinions advanced are founded on logical reasoning. Finally, it must
be borne in
mind that expert scientific witnesses do tend to assess
likelihood in terms of scientific certainty. There is an essential
difference
between the scientific and the judicial measure of proof.
This was aptly highlighted by the House of Lords in the Scottish case
of Dingley v The Chief Constable, Strathclyde Police 200 SC (HL) 77
and the warning given at 89D-E that:
'(o)ne
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a Judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved -
instead of assessing, as a Judge must do, where the
balance of
probabilities lie on a review of the whole of the evidence.’
I
am mindful of the fact that that case involved a medical negligence
claim and the experts were medical experts whereas in this
matter
before me the experts are road construction and accident
reconstruction experts. However, the stated approach to medical
expert opinion is equally applicable here.
[38]
In Abdo NO and Another v Senator Insurance Co Ltd and Another
1983
(4) SA 721
(E) at 725-726 Kannemeyer J referred to the case of
Putzier v Union and South West Africa Insurance Co Ltd 1973 ECD
(unreported).
The decision in Putzier’s case was reversed on
appeal on the facts. The judgement of the appellate division is also
not reported
but the approach adopted by Addelson J in the following
terms was not questioned therein:
‘
It
seems to me however that unless the opinion of the experts is either
uncontroverted or incontrovertible, one should look first
at the
evidence of the eyewitnesses, if any. If such eyewitnesses are
unacceptable then naturally the Court is bound to decide,
if
possible, which of the opinions of the various experts is preferable
and to found its judgment on such opinion. On the other
hand, where a
choice can be made on a balance of probabilities and on accepted
principles between two sets of eyewitnesses, the
Court should first
make a provisional assessment of which of the versions of the
eyewitnesses is acceptable. Having provisionally
accepted one or the
other version, the court should then consider the expert evidence and
decide whether that evidence displaces
the provisional findings made
on the evidence of the eyewitnesses.’
[39]
Mr Nkuna is the only eyewitness who testified in this matter.
However, his evidence is not particularly helpful as he had in
his
statement to the police immediately after the accident stated that
the Almera was travelling at a high speed but then retracted
it
during his oral testimony in court when he denied having said so. The
deceased’s elder son S was not really an eyewitness.
He could
only say that whilst sitting on the back seat of the Almera he had
felt a jolt and thereafter everything went dark. His
evidence is also
not particularly helpful. Both these witnesses testified that the
Almera ‘jumped’. Mr Grobbelaar testified
that the word
jumped did not necessarily mean that the vehicle became airborne.
[40]
We have then, only the evidence of several experts who gave their
opinions regarding what might have happened when the Almera
approached the bridge and veered into the opposite lane and collided
with the bakkie.
[41]
Mr Grobbelaar, the accident reconstruction expert, visited the scene
of the accident more than three years later. He testified
that some
sections of his report are assumptions that he made based on the
photographs that were taken one day and five days after
the accident
respectively. Mr Grobbelaar says in his report:
The
photographs of the damaged Nissan Almera and damaged Nissan LDV show
that the Nissan LDV probably collided with its right front
into the
left front side of the Nissan Almera. In other words the Nissan
Almera was probably at an angle with its front left in
front of the
Nissan LDV at impact when viewed from the Nissan LDV. Though not
possible to quantify the magnitude of this angle
with accuracy, it is
likely that it was substantial when considering the extent of the
damage to the left front side of the Nissan
Almera.
It
is unlikely that such an angle would be attained by a vehicle
travelling at normal speeds for a road such as that in question
and
moving or swerving to the right unless the vehicle has lost control
and is in some manner of a clockwise yaw. This would be
so due to the
relatively small angles (approximately 11°) attainable with a
maximum swerve to the right into the approaching
lane from a speed of
approximately 120 km/h.’
[42]
With reference to the gouge marks on the road, Mr Grobbelaar says in
his
report:
The
reason for these gouges being deposited is probably as a result of
the eastern edge being preceded by what appears to be a severe
dip
when considering the visual references to a soft drink can utilised
in visualising it, though it is not possible to quantify
the
magnitude with certainty.'
[43]
Further on, he says:
‘
However,
when there are undulations of sufficient severity so as to cause the
suspension system of the vehicle to go into full bump
or close to
full bump (suspension deflects into the bump stops), coupled to the
uneven road surface, this would probably lead to
gouging of the road
surface for vehicles with component/s low enough underneath the
vehicle under the circumstances, or for vehicles
loaded sufficiently
so as to lower the ride height (thereby decreasing the ground
clearance) of the vehicle significantly. The
multitude of
longitudinal gouge marks in the area leading to the eastern edge of
the bridge (at the western end of the bridge)
are therefore
consistent with there having been a severe undulation in this area at
the time of the accident.’
[44]
Further on:
‘
Of
further importance is the presence of a second undulation in the
vicinity of the second road repair section some 13 m after the
start
of the bridge. Gouge marks can also be seen in this undulation in
photographs 34, 37, 39 and 40 in this regard.’
[45]
He says further that an elementary test was performed on a similar
Nissan Almera with reference to its suspension system. He
concluded
that a critical speed of approximately 125 km/h for the Almera was
produced for the distance of 19,25 metres between
the two undulation
points. In court Mr Grobbelaar testified that the figure of 125 km/h
was a ballpark figure. The test was of
an elementary nature and it
was not the actual vehicle involved in the accident and the fact that
the accident vehicle was loaded
whereas the test vehicle was not
loaded and that the exact spacing of the undulations were not
determinable, the speed that he
arrived at can only be seen as a
rough approximation and:
‘
.
. . would clearly be sensitive to changes in either the distance
between the undulations as well as the natural frequency of the
sprung mass of the Nissan. In this regard, for the accident Nissan
been loaded, the natural frequency would probably be lower than
that
of the test vehicle with the implication of a lower calculated speed
being the result. Both of these parameters (distance
between
undulations and frequency) would have a linear relationship with the
critical speed (i.e. a 10% increase or decrease of
either of them
would result in a 10% increase or decrease in the critical speed. For
speeds lower than the critical speed, the
suspension system of the
vehicle would have been able to rebound sufficiently to absorb the
shock of the entry into (and the exit
from) the second undulation,
whereas for speeds faster than critical speed, the suspension system
would still be compressing when
the vehicle exits the second
undulation.’
[46]
At paragraph 10 of his expert report Mr Grobbelaar says:
The
expected dynamics of the Nissan, as discussed in the above
paragraphs, is consistent with the version of the passenger in the
Nissan Almera where he indicates that the Nissan hit a hump and
jumped, though it must be noted here that the severity of the jump
would be dependent on a number of factors such as the severity of the
undulation and vehicle factors.’
It
is clear that by “vehicle factors” Mr Grobbelaar also
included therein the speed of the vehicle. He then refers to
S’s
evidence that his mother lost control of the vehicle and says:
‘
Such
a loss of control would be exacerbated in the event of the Nissan
Almera being loaded at the time of the accident due to greater
forces
been induced as well as the ground clearance of the Nissan Almera
reducing (i.e. the underside of the vehicle riding closer
to the road
surface). In this regard, it is understood that at the time of the
accident the occupants of the vehicle with two adults
and two
children with there also being considerable baggage in the vehicle as
they were going on vacation.’
[47]
Finally, Mr Grobbelaar says:
‘
An
opinion regarding the speed of the Nissan Almera at impact,
calculated from the point of view of the Law of Conservation of
Momentum, may be provided once the colour police photographs have
been obtained in order to better establish the location of the
gouge
marks in relation to the positions of rest of both of the vehicles,
and the speed at which the Nissan LDV was travelling
at impact has
been obtained.’
[48]
Significantly, although Mr Nkuna testified that the LDV was
travelling at 60 km/h and, no doubt, the colour photographs had
been
obtained some time prior to the trial, Mr Grobbelaar was not asked to
or did not prepare a report regarding his opinion on
the speed of the
Almera.
[49]
It is also significant to note that when the photographs were taken
to depict the height or measurement of the depression at
the bridge a
Coca-Cola can was inexplicably used as well as a pen. The depth of
the depression being the height of a Coca-Cola
can, that is, an
upright can, was disputed by several of the defendant’s
witnesses. In my view, it would have been a simple
matter for the
depth to have been measured with a proper measuring tape. Why this
was not done is not understood. The defendant’s
witnesses
testified that the depth of the depression would be approximately the
height of the can lying on its side. In the circumstances
it is
difficult to draw a conclusion as to the depth of the depression or
undulation, although, taking all the evidence on this
aspect into
account it is probable that it was the height of the can lying on its
side. No evidence was led about the actual height
and width of the
Coca-Cola can. However, I am of the view that I can take judicial
notice of the fact that it is about 110mm in
height and its diameter
52mm.
[50]
Under cross-examination, Mr Grobbelaar testified that his
calculations regarding the speed of the Almera were very rough
calculations
because there were too many variables and some unknown
ones as well. He ventured to suggest that the vehicle speed would
have been
anything between 80 to 110 km/h and that at the moment of
impact it was perhaps travelling at 80 km/h. He further said under
cross-
examination that the gouge marks that were visible and to
which he refers in his expert report could have been caused by the
trailers
of other motor vehicles. Of importance also is that he
conceded that he did not know what the depth of the undulation was.
[51]
The other expert witness for the plaintiff, Mr Bergh, also made
certain assumptions based on the height of the upright Coca-Cola
can
depicted in some of the photographs. To that extent, his conclusion
that the depression was 160 mm (bearing in mind that the
can is 110mm
high) and that therefore it meant that the settlement took place over
6 to 10 years cannot be accepted without reservation
given the
defence version that the depth of the depression was about the height
of the can lying on its side - a version which
I find to be more
probable.
[52]
The thrust of Mr Bergh’s testimony and his report related to
the two warning signs. He testified that the “drift”
warning sign which was located 296 m away was not a good warning sign
and gave the wrong message as it spoke of a drift and gave
no
indication of any reduction in speed. He said the sign should have
been 240 m away on a road with a 100 km/h speed limit as
was the road
in question.
[53]
The other warning sign was the ‘uneven roadway' sign which was
located 634 metres from the bridge. He said that according
to the
South African Road Traffic Manual the location of the sign should
have been 240 m from the hazard if the speed limit was
100 km/h on
that road.
[54]
Mr Bergh testified that according to the manual:
The
drift warning sign W350 is to warn road users of a drift ahead which
may contain water, rock outcrops or loose material or which
may
represent a hazardous depression in the roadway when dry.’
He
was of the view that the erection of the uneven roadway sign 600 m
from the hazard was not effective. Insofar as the drift warning
sign
is concerned he says:
The
motorist was travelling on the R518, which is a well aligned road
both horizontally and vertically.... The driver approaches
the bridge
and some 300 m from the bridge, the motorist sees a clear open road,
well aligned both vertically and horizontally and
travelling on a
surface free of potholes. He passes sign W350 indicating to him a
“drift”-on a main provincial road?
- and he sees a bridge
ahead of him. The question that comes out loud and clear is would he
have reduced speed?’
The
clear answer in my view, is that he should reduce speed. He or she
cannot simply ignore the warning signs, especially if he
or she was
not a regular user of the road (the evidence is that Ms Lauwrence was
not) and therefore unfamiliar with its condition.
[55]
Mr Bergh concluded his report by stating that the roads department
authority in charge of the relevant road was fully responsible
for
the risk of taking the decision to postpone any urgent repair work to
the approach to the bridge.
[56]
It was put to him under cross-examination that if his opinion was to
be accepted then there should have been many more accidents
yet there
had never been an accident at the bridge since 2004. His response was
that that depended on the driver and his experience.
In answer to a
question from the court as to why would that particular motor vehicle
behave the way that it did when the evidence
is that on average 1000
motor vehicles per day travel on that stretch of road without
apparent difficulty, his response was that
he could not comment on
it.
[57]
The question that arises is whether the defendant took reasonable
steps to guard against the presence of harm to road users.
It is not
in dispute that the officials of the defendant were aware about the
settlement at the bridge as Mr Engelbrecht had complained
about it.
During his evidence Mr Minnie testified that he responded to the
complaint of Mr Engelbrecht by visiting him at his farm
to discuss it
in detail. He testified that he had inspected the road and during the
inspection he drove over the settlement at
a speed of about 100 km/h
without any problems. Contrary to the evidence of Mr Bergh, who
inferred the size of the undulation from
the photographs, he had
personally driven over the undulation and estimated it to be half the
measurement of the upright Coke can.
[58]
Mr Van Vuuren’s evidence was particularly subject to criticism
by plaintiffs’ counsel in the heads of argument.
Mr Van Vuuren
testified that he has driven on the same road over a number of years.
He said that if one drove at a reasonable speed,
one could safely
travel over the settlement at the bridge.
[59]
The person who used the coke can to measure the undulation and who
took some of the photographs referred to was not called
to explain
why a can was used to measure the depression at the bridge.
[60]
Mr Engelbrecht had lodged only two complaints, one in 2006 and
another in 2008. He conceded that temporary repairs were made
subsequent to the complaints albeit not satisfactory according to
him. He further acknowledged in his correspondence with the
Department that temporary repairs were made. When he complained on 8
August 2008, the defendant sent a team to repair the settlement
on 22
September 2008. Subsequent to the repairs, Miss Mabitsela inspected
the repairs the following day and was satisfied that
they were
adequate for safe use of the road at the bridge.
[61]
It is also to be noted that the “uneven road” warning
sign was erected immediately prior to a curve in the road.
In my
view, that would make sense as it would probably lose its
effectiveness if it was installed inside of the curve. Furthermore,
the second sign, i.e. the drift sign, was erected after the curve.
[62]
The accident occurred at 10:00 hours in the morning and several
witnesses confirmed that visibility was clear. In my view,
a
reasonable driver would not have missed seeing the two warning signs
which were reasonably spaced to convey messages of a possible
danger
ahead. In this regard it should also be borne in mind that Mr Van
Vuuren testified that the distance at which the warning
signs are
placed was not compulsory but rather is a discretionary matter as
various factors had to be taken into account when placing
a road
sign. He said that the road design engineers have discretion when
erecting the warning signs and the manual is only a guideline
in this
respect. The evidence of Mr Bergh that the warning signs were
ineffective as they were erected contrary to the guidelines
in the
manual can therefore in my view not be accepted. It is clear that the
particular circumstances of the road at the relevant
place were such
that it was no doubt considered expedient to erect the two warning
signs, one before the curve to warn road users
in advance about the
hazard, and the other 296 m from the hazard to remind the road user
that a hazard is still ahead.
[63]
In my view, the steps taken by the defendant in repairing the road
and erecting warning signs were in the circumstances reasonable.
Mr
Engelbrecht testified about two accidents that previously occurred at
the bridge but could not elaborate as to the cause of
those accidents
nor provide any detail in that regard. There is no evidence that
there were many accidents that occurred that required
anything more
than what the defendant had done. In fact, as I said, the evidence is
that the road was very busy with more than
1000 vehicles using the
road per day. With such a high number of vehicles - many of them
trucks - using the road, there would probably
have been many more
accidents if the settlement was as severe as described by Mr Bergh.
The defendant cannot be faulted in accepting
that the steps it was
taking in doing remedial repairs and having warning signs erected was
reasonable and effective considering
the number of accidents
vis-a-vis the number of vehicles using the road on a daily basis.
[64]
The test is not that the steps taken by the defendant must be
effective and absolute in preventing the foreseeable harm. All
that
is required is that such steps should be reasonable. In dealing with
a similar argument the Court in Pretoria City Council
v De Jager
1997
(2) SA 46
(AD) at 55 E-l stated:
The
Court a quo found that the Council had failed to take reasonable
measures to guard against the danger created by the excavation
not
only because it had failed to provide an adequate walkway but also
because of the inadequacy of the fence. The fence was held
to have
been inadequate on the simple ground that it had not prevented the
plaintiff from falling into the hole. The conclusion
that the Council
was obliged to provide a fence of the type that would prevent such an
occurrence was based, at least partly it
would seem, on the finding
that by reason of the inadequacy of the walkway the plaintiff had
regarded herself as obliged to take
the route she did. That route was
undoubtedly dangerous because of the close proximity of the hole to
the road. In this Court counsel
for the plaintiff contended that even
accepting that the walkway was adequate, the Council remained obliged
to provide a fence
that was of such a nature as to physically prevent
pedestrians from falling into the hole as it was reasonably
foreseeable that
at least some pedestrians would take the shortcut to
the traffic lights.
The
Council was obliged to take no more than reasonable steps to guard
against foreseeable harm to the public. Whether in any particular
case the steps actually taken are to be regarded as reasonable or not
depends upon a consideration of all the facts and circumstances
of
the case. It follows that merely because the harm which was
foreseeable did eventuate does not mean that the steps taken were
necessarily unreasonable. Ultimately the enquiry involves a value
judgement....’
[65]
Plaintiffs counsel sought to rely on the case of McIntosh v Premier,
KwaZulu- Natal and Another 2008 (6) 1 (SCA). However,
that case is
distinguishable from the matter before me. In McIntosh the court
found that the defendant had failed to erect any
warning signs to
alert road users of the hazard on the road. That is not the case in
this matter as the defendant did not only
effect repairs at the
bridge, albeit temporarily, approximately two months prior to the
accident but had erected visible warning
signs to road users. Given
the volume of traffic on a daily basis it seems clear that if road
users adhered to the road warning
signs and drove at a reasonable
speed the undulations could be safely navigated, which is what
approximately 1000 vehicles per
day did.
[66]
Mr Nkuna cannot be described as an independent witness. He gave the
distinct impression that because he was called by the plaintiffs,
his
evidence should favour the plaintiffs. I do not say that he
intentionally did so but that is the impression he created. He
confirmed that he had said that the impact was huge when the two
vehicles collided. In his evidence he had stated that he would
often
warn drivers of the vehicle in which he was travelling about the
hazard on the road and that they should reduce speed. However,
under
cross-examination he denied seeing the warning signs on the roadside
prior to the accident and said that he had only begun
seeing those
warning signs after the road was repaired after the accident, the
implication being that they were erected only after
the accident
which is not plaintiffs’ case. In the result, his evidence was
not of much help.
[67]
It is also important to note that the expert witness Mr Grobbelaar
said during cross-examination that in coming to his conclusions
he
had relied on the documents that were provided to him. Included in
those documents is the statement of Mr Nkuna who said that
the Almera
was travelling at a high speed and lost control. During his evidence
Mr Grobbelaar did not refer to the contents of
the statement as
having been inconsistent with his findings in regard to the question
of speed. The only inference to be drawn
is that the consistency of
the statement with his findings also included the high speed. It is
also to be noted that Mr Grobbelaar
himself stated in his report that
the momentum of the Almera was probably larger than that of the
Nissan LDV at the time of the
impact.
[68]
It was submitted by plaintiff’s counsel that Mr Van Vuuren’s
testimony that according to his calculations the Almera
was probably
travelling at about 143 km/h was not put to the plaintiff’s
expert for comment. However, in this regard, as
I said earlier, Mr
Grobbelaar had ample opportunity to express an opinion regarding the
speed after obtaining the colour photographs
and the speed of the
Nissan LDV but failed to do so. In the result, Mr Van Vuuren’s
evidence on this aspect stands undisputed.
[69]
The facts of this case resemble or are similar to those considered in
the case of The Member of the Executive Council for Transport
for the
Province of KwaZulu- Natal v John Morea Eastman and Others, case no.
680/09 (SCA) (unreported) where the court found that
speed was the
sole cause of the accident. The Supreme Court of Appeal set aside the
apportionment of negligence which was made
in the court a quo. In his
evaluation of the evidence in Eastman, Navsa JA, considered almost
similar evidence as in this matter,
inter-alia, the evidence of
witnesses who testified about their historical dissatisfaction with
the state of the road before the
accident. (See paragraphs 24 to 36
where the evidence of the various witnesses called to testify on the
unsatisfactory state of
the road is reported.) They testified about
the damage to the road where the accident occurred. The Court took
into account the
fact that the road was used by some 200 vehicles
daily and the figure could have been more by the time the accident
had occurred.
According to the Court, that meant that thousands of
vehicles would have travelled over that stretch of the road during
wet weather
season. The only vehicle that left the road during that
time was the one driven by Mr Mitchell. The learned Judge held at
para
46:
‘
Immediately
before the vehicle started to slide Mr and Mrs Eastman and
significantly, Mr Mitchell, all had cause to be concerned
about the
speed at which the vehicle was travelling. It is no mere coincidence
that the vehicle started sliding at the time that
their anxiety was
heightened. To my mind, that evidence is decisive. The conclusion is
ineluctable that it was the speed at which
Mr Mitchell was driving
that caused the vehicle to slide off the road. It is the speed that
passengers were startled by that distinguished
this vehicle’s
passage from others on that stretch of the road. Mr Mitchell was
negligent in not reducing his speed to meet
the exigencies of the
prevailing conditions.’
[70]
In my view, had the deceased complied with the speed limit and the
road signs, and furthermore even reduce speed after having
observed
the warning signs, the accident could have been avoided as it is
avoided daily by almost 1000 road users of the relevant
road. It
cannot be said that all of the approximately 1000 road users comprise
of people who were familiar with the road. The fact
that Ms Lauwrens
was not familiar with the road can therefore not be a factor. In
fact, it would require more vigilance on her
part as she was not
familiar with the road, particularly after having noted two road
warning signs. Taking all factors into account
it would appear that
the cause of the collision was excessive speed on the part of Ms
Lauwrens. That in my view is the inescapable
inference to be drawn.
[71]
There shall be absolution from the instance with costs.
N.
RANCHOD
JUDGE
OF THE HIGH COURT
Parties:
Counsel
for the Plaintiff: Adv J Du Plessis
Attorney
for the Plaintiff: Borman Snyman & Barnard Attorneys, Pretoria.
Counsel
for the Defendant: Adv. M Mphaga SC.
Attorney
for the Defendant: State Attorney, Pretoria.