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[2011] ZAFSHC 12
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Flo-Jan Vulstasie CC v Booysen and Another (1712/2009) [2011] ZAFSHC 12 (27 January 2011)
FREE STATE HIGH
COURT, BLOEMFONTcEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1712/2009
In the case between:
FLO-JAN VULSTASIE
CC
…............................................................
Plaintiff
and
GAOREKWE GEORGE
BOOYSEN
…...................................
1
st
Defendant
SERAME JOSJOA KGOMO
…..............................................
2
nd
Defendant
JUDGMENT:
LEKALE, AJ
_______________________________________________________
HEARD
ON:
18 & 19 JANUARY 2011
_______________________________________________________
DELIVERED ON:
27 January 2011
_______________________________________________________
INTRODUCTION:
[1] This is judgment on
merits in a claim and counterclaim for damages arising from a motor
vehicle collision which occurred on
the 7
th
September 2007
at the intersection of Charles Street and Harvey Road in
Bloemfontein.
[2] At the commencement
of the proceedings on the 18
th
January 2011 the parties
agreed to separate the enquiry into quantum from an enquiry into
liability and, effectively, limited the
trial to an enquiry into who
of the two drivers was negligent as to the cause of the collision.
[3] The trial endured for
two days, viz the 18
th
and 19
th
January 2011 in
the understanding that the enquiry into quantum shall take place at a
later stage, if necessary, depending mainly
on the outcome of the
present enquiry.
BACKGROUND:
[4] On the fateful day
the plaintiff’s vehicle, an IVECO midibus (the Iveco), was
travelling from the north to the south along
the right lane of Harvey
Road. Harvey Road is a single carriageway with three lanes running in
the same direction from the north
to the south where it meets Charles
Street.
[5] The 1
st
defendant’s motor vehicle, a 16-seater minibus (minibus) on the
other hand, was travelling along the left lane of Charles
Street with
the 2
nd
defendant on the wheel at the relevant time.
Charles Street is a dual road with two lanes running from the west to
the east and
two other lanes going in opposite direction.
[6] At the intersection
of the said roads and on the right-hand side of the Iveco and the
left-hand side of the minibus, there is
a concrete palisade which
creates a blind spot for motorists travelling along those roads with
the result that motorists cannot
see each other’s vehicles
unless and until they have entered the intersection.
[7] To the far right of a
motorist travelling to the east along Charles Street (a driver in the
position of the second defendant)
is a building housing the Free
State Department of Health, known as Bophelo House. It is located at
the western right corner of
the intersection for the driver of the
minibus and at the southern right corner of the intersection for the
motor vehicle in the
position of the Iveco.
[8] After the collision
the minibus was, according to the police collision sketch plan
(exhibit “A”), found with its
nose into the wall fencing
off Bophelo House along Harvey Road. The Iveco, on the other hand,
was found at the entrance of Bophelo
House further south along the
right hand side of Harvey Road.
[9] The plaintiff,
eventually, issued summons against the two defendants alleging that
the 2
nd
defendant was,
inter alia
, solely negligent
as to the cause of the collision. The 1
st
defendant, on
his part, countered and contended that the negligence of the driver
of the Iveco was the sole cause of the collision,
among others.
[10] Both parties,
further, contended, in the alternative, that the negligence of the
driver of each other’s vehicle also
contributed to the cause of
the collision and accordingly claimed apportionment against each
other.
[11] At the outset of the
trial the parties agreed to an inspection of the scene of the
collision
ante omnia.
The parties, further, announced that
they had agreed to admit each other’s
locus standi
.
[12] During the
inspection
in loco
the parties observed and agreed,
inter
alia,
that:
12.1 the point of impact
as depicted by the police on exhibit “A” is located
around the mainhole inside the intersection
and at the left hand side
of the minibus and the right hand side of the Iveco;
12.2 the minibus came to
a complete stop some 32 paces from the point of impact after the
collision;
12.3 the Iveco come to a
complete stop some 82 to 85 paces from the point of impact after the
collision;
12.4 the robot post at
the eastern right corner of the intersection, as seen from the
perspective of the minibus, is some 22 paces
from the point of
impact.
[13] The plaintiff party,
furthermore, consented to the admission and use of the photographs
taken by and for the defendants shortly
after the collision as
exhibit “B”.
[14] The defendants
inserted, with the plaintiff’s consent and for the sake of
convenience and ease of reference, points “X”
and “Y”
on exhibit “A” as depicting the two vehicles which,
according to them, yielded right of way to
motorists in the position
of the minibus by stopping and waiting along the middle and left
lanes of Harvey Road when the robot
changed to green in favour of the
minibus and red against them.
ISSUES IN DISPUTE:
[15] The parties are
effectively at variance on the following questions of fact:
15.1 who of the two
drivers had the right of way at the critical moment; and
15.2 who of the two
motorists had the opportunity to avoid the collision.
PLAINTIFF’S
VERSION:
[16] Three (3) witnesses
testified to,
inter alia
, the following effect:
16.2
Jan Adriaan
Breytenbach:
He was very familiar with
the relevant intersection as he had been using the same route on a
daily basis for 4 (four) or 5 (five)
years as at the time of the
collision. He was aware of the blind spot and used to approach the
intersection with caution. On the
day in question he was complacent
and was not as careful as he used to be when he approached and
entered the intersection because
he knew, from previous experience,
that at that time of the day and on such a day the intersection was
usually not busy. The robot
was red for him when he approached the
intersection with the Iveco. He, thus, reduced speed accordingly but
when he was about the
distance of three motor cars from the
intersection, the robot turned green. He shifted to the second gear
and increased speed in
order to go through the intersection. He did
not see the minibus coming and only heard a loud bang, whereafter, he
lost consciousness.
He would have avoided the collision if he was not
driving fast. It is clear from the damage to the Iveco and the
minibus, as depicted
on photographs “B1” and “B2”
in exhibit “B”, that the Iveco caught the minibus at a
right angle
in an L-shape position. He was never involved in a
collision before and now, with the benefit of hindsight, realises
that he should
have approached the intersection with care and caution
as usual. It is possible that the robot was red for him when he
entered
the intersection but that his memory was failing him due to
the concussion which he suffered in the collision.
Adele Reyneke:
Breytenbach, the driver
of the Iveco, is her father. On the day in question she, her 3
(three) year old daughter and her mother
were following the Iveco
with her mother driving. Her attention was mostly on her daughter who
was enjoying ice-cream. She occasionally
raised her eyes when the car
slowed down along Harvey Road and noticed that the robot was red.
When the car picked up speed she
looked up at the robot again and saw
that the robot had turned green. She, however, did not see how her
father was driving. It
is possible that her father ignored the red
robot at the critical moment. The minibus struck the Iveco at the
right front corner
and it was not a middle front impact. After the
collision, the minibus hit the post of the robot at the eastern right
corner of
the intersection, which caused it to turn back towards
Bophelo House. It is possible that there were two vehicles at the
intersection
along the left and middle lanes of Harvey Road at the
relevant time.
16.3
Michael
Thandikhaya Kondile:
He was seated next to the
driver as a passenger in the Iveco. The driver always drives slowly
and stops at robots when he has to
stop. On the day in question, he
neither saw nor felt the Iveco slow down as it approached the
intersection. It is, therefore,
not correct for Breytenbach to say
that he slowed down. The robot was green for the Iveco when it
entered the intersection. He
did not notice if there were any cars at
the robot along Harvey Road. He only heard a loud bang and
Breytenbach fell onto him.
He took over the steering wheel after the
collision and veered the Iveco to the right side of the road until it
came to a complete
stop.
DEFENDANTS’
VERSION:
[17]
Joseph Serame
Matshidiso Kgomo.
He was the driver of the
minibus and he was familiar with the relevant intersection as he used
the relevant route on a daily basis
in his occupation as a taxi
driver. He always slows down when he approaches the intersection
because of the blind spot to the left
of the road. He was travelling
at about 10 – 15 km/hr when he approached the robot, which was
red for him. When he was about
20m from the intersection the robot
turned green for him and he continued at the same speed when he
entered the intersection. At
about the stop line he noticed two cars
at the intersection along the left and middle lanes of Harvey Road
waiting for him to pass.
There was no car along the right lane of
Harvey Road when he looked to the left. He could see about 20 to 25m
into Harvey Road.
He could not avoid the collision and the only
conclusion he came to was that the Iveco was driving at a high speed.
The minibus
did not hit the robot post after the collision.
APPLICABLE LAW:
[18] The parties are,
effectively, in agreement on the law applicable herein insofar as
they limited the dispute to factual issues.
[19] As a point of
departure it is necessary to remind myself, lest I forget, that in
law, a motorist is required to take reasonable
precautions against
harm being caused to another if the likelihood of such harm would
have been foreseen by the reasonable prudent
driver.
(See
MANDERSON v
CENTURY INSURANCE CO LTD
1951 (1) SA 533
(A) at 544A).
[20] The question for the
determination of liability in this matter is whether the
diligens
paterfamilias
, in the position of either or both of the two
drivers, would have regarded the possibility of a car emerging from
that part of
the intersection closest to him and in respect of which
his vision was restricted as sufficiently real and immediate to
require
him to take preventive precautions. (Compare
AA MUTUAL
INSURANCE v MANJANI
1982 (1) SA 790
(A) at 796F).
[21] In the event of such
a possibility having been sufficiently real for the reasonable man in
the position of either or both of
the two drivers, then there was a
duty on either or both of the two drivers to take reasonable steps to
guard against or avoid
colliding with such a vehicle.
[22] Failure on the part
of a motorist, whose conduct is in question, to take such necessary
and reasonable precautions to prevent
the harm from eventuating
results in such a driver being saddled with liability
vis-à-vis
the victim. (See
KRUGER v COETZEE
1966 (2) SA 428
(A)
at 430 E – F).
[23] In the case of
factual disputes that call for resolution by the courts, the
technique generally employed requires a court to
make findings on the
credibility of various factual witnesses, their reliability and the
probabilities in order to come to a conclusion
on disputed facts.
(See
STELLENBOSCH FARMERS’ WINERY GROUP LTD AND ANOTHER v
MARTELL & CIE SA & OTHERS
2003 (1) SA 11
(SCA)).
FINDINGS:
[24] When all is said and
done the parties are, effectively,
ad idem
on the following:
24.1 that the Iveco hit
the minibus at a right angle position in a situation reflecting an
L-shape;
24.2 that both drivers
were very familiar with the intersection and knew that they had to
approach the same with caution;
24.3 that Breytenbach
made a number of material concessions during cross-examination;
24.4 that Breytenbach and
his daughter, Reyneke, conceded that it is possible that he
disregarded a red robot at the critical moment;
24.5 that Breytenbach
could have avoided the collision by driving slowly and cautiously.
[25] Kgomo, testifying
for the defendants, was firm in his evidence and maintained that the
robot was green for him and that he
could not avoid the collision. As
correctly submitted by Mr Louw for the defendants, no suggestion was
put to Kgomo about how he
or a reasonable man in his position could
have avoided the collision.
[26] On who of the two
drivers had the right of way at the critical moment, the concessions
made by Breytenbach and his daughter
are relevant and need not be
repeated. Kondile’s evidence on the issue was of little, if
any, assistance to the plaintiff.
He did not make a good impression
as a witness as the only thing he seems to have noticed and to be
certain about is that the robot
was green for the Iveco. He
contradicted Breytenbach on how the latter drove when he approached
the robot. He is oblivious to the
general traffic conditions
prevailing at the time. He is simply not reliable. Kgomo, as I have
already noted, stood his ground
on the issue. The damage to the two
vehicles as well as their positions after the collision suggest that
the Iveco was driving
fast. The aforegoing, further, points to the
possibility that the Iveco was racing after the robot in an attempt
to beat it before
it turned red.
[27] Reyneke’s
evidence with regard to the robot post seems to contradict an
established fact insofar as photo “B8”
in exhibit “B”
reflects no damage to the robot post. One would have expected the
said post to have sustained some damage
regard being had to the fact
that, after it was allegedly struck by the minibus, the minibus
turned back and went further to the
opposite side where it went over
the pavement and struck and damaged the wall around Bophelo House.
Her evidence, further, contradicts
the photographs with regard to the
picture painted by the damage caused to both vehicles.
[28] The evidence is also
clear with regard to who of the motorists had the opportunity to
avoid the collision. It suffices, in
my view, to point out that a
motorist’s negligence in the case of a blind spot relates to
what steps such a driver took when
he approached or went through such
a spot. The aforegoing, in my humble view, prevails because, once a
motorist has entered such
a spot, it is a point of no return for him
as he, almost invariably, would find it difficult, if not impossible,
to avoid a collision
if a vehicle emerges from that spot. (Compare
ROAD ACCIDENT FUND v GROBLER
2007 (6) SA 230
(SCA) on
sudden emergency.)
[29] Although I am not
persuaded by Kgomo’s evidence to the effect that he looked some
20 to 25m into Harvey Road before he
proceeded further into the
intersection, I am satisfied that he had no reasonable opportunity to
avoid the collision. In this regard,
it should be noted that the stop
lines on both roads are more or less in line with the corner of the
concrete palisade which creates
the blind spot. For Kgomo to be able
to look 20 to 25m into Harvey Road he actually had to go over the
stop line. It is probable
from the point of impact that the minibus
was struck shortly after it had gone over the stop line. The
undisputed evidence to the
effect that there were two vehicles
waiting at the intersection, along Harvey Road, when the minibus went
over the stop line suggests
that a reasonable man, in the position of
Kgomo, would have been fortified in his view that it was safe to
enter the intersection
when Kgomo entered the same.
[30] In the premises I am
satisfied, on the balance of probabilities, that:
30.1 the minibus had the
right of way at the critical moment;
30.2 the driver of the
Iveco had the opportunity to avoid the collision but failed to do so;
30.3 the driver of the
minibus had no such opportunity and, as such, no degree of negligence
may, in law and equity, be apportioned
to the second defendant.
ORDER:
[31] For the aforegoing
reasons the plaintiff is vicariously liable for the cause of the
collision.
[32] The plaintiff’s
claim is, thus, dismissed with costs.
_______________
L. J. LEKALE, AJ
On
behalf of plaintiff: Adv. M van Antwerpen
Instructed
by
Horn
& Van Rensburg Attorneys
BLOEMFONTEIN
On
behalf of defendants: Adv. M. Louw
Instructed
by:
Hill
McHardy & Herbst
BLOEMFONTEIN
/eb