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2011
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[2011] ZAFSHC 187
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Langeveld v Prinsloo (1027/08) [2011] ZAFSHC 187 (18 November 2011)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 1027/08
In
matter between:
LIONEL FRED
LANGEVELD
…...................................................
Plaintiff
and
ELDRID PRINSLOO
…............................................................
Defendant
HEARD ON:
15 NOVEMBER 2011
JUDGMENT BY:
C.J
.
MUSI, J
_____________________________________________________
DELIVERED ON:
18 NOVEMBER 2011
[1] On May 2005 at
approximately 16H20 at Voortrekker Street Odendaalsrus the plaintiff
was a passenger in a motor vehicle with
registration number BRH 034
FS driven by the defendant. The vehicle crashed against a pole as a
result of which the plaintiff sustained
injuries. The plaintiff
alleges that the crash was caused by the defendant’s
negligence. The defendant denies that he was
negligent.
[2] On 26 August 2010
Mocumie J ordered the separation of the merits from the quantum. This
judgment only deals with the merits.
The parties agreed that the
issue of apportionment of damages should be adjudicated when quantum
is adjudicated.
[3] The evidence in this
matter is relatively simple. The plaintiff called three witnesses and
the defendant called two witnesses.
[4] Mr Lionel Langeveld,
the plaintiff, testified that on the afternoon of 1 May 2005 he was
invited by the defendant to the latter’s
house. When he got
there they had a few drinks. Later that afternoon the defendant asked
him to accompany him to fetch their friend,
James Malema. Their other
friend, Colin Schwartz, went with them.
[5] He sat in front while
Mr Schwartz sat at the back. They drove in Erliegh Street and
approach a traffic circle from the six o’
clock position and
turned left into Voorterkker Street at the nine o’ clock
position.
[6] According to him the
defendant was driving in excess of the speed limit when they
approached the circle. As they were driving
too fast the defendant
could not control the vehicle and they drove against the curb. The
vehicle went over the curb against a
pole. He sustained injuries.
[7] He further testified
that when they approached the circle he requested the defendant to
drive slower. He did not see any other
vehicles on the road. He did
not wear a seatbelt.
[8] Mr Thembekile Joseph
Kana testified that he is a warrant officer in the South African
Police Services stationed at Odendaalsrus.
On 1 May 2005 at 16H20 he
attended the crash scene. He completed an accident report and drew a
plan of the scene. He also measured
the distances. The distance from
where the vehicle drove against the curb to the pole is 32.6m. From
the pole to the place where
the vehicle came to a stand still is 3m.
He noticed that the vehicle’s bonnet and its left side were
damaged.
[9] He spoke to the
defendant who told him that the vehicle’s tyre burst as a
result of which he lost control of the vehicle
and drove into the
electric pole. The defendant did not appear to be under the influence
of alcohol. He noticed that a rear tyre
had burst.
[10] Mr Lionel Gordon, a
mechanical engineer and accident reconstruction expert, testified
that he computed the speed at which the
vehicle would have travelled
if it hit the pole at 55km/h and at 60km/h.
[11] He used conservative
estimates. According to him if the vehicle crashed against the pole
at 60km/h it means it drove against
the curb (point A) of Mr Kana’s
plan at approximately 76km/h. If it crashed against the pole at
55km/h it drove against the
curb at 72km/h. He did not even consider
the retardation that would have been caused by the two other curbs
that the vehicle drove
over.
[12] If the vehicle hit
the curb and the defendant then braked, medium to hard, the vehicle
would have stopped approximately 31,5m
later. If maximum brake was
applied it would have stopped under 20m from point of impact with the
curb. If the defendant hit the
curb at 60km/h and applied brakes the
vehicle would not have crashed against the pole.
[13] Mr Eldrid Prinsloo,
the defendant, testified that on 1 May 2005 he was driving in Erleigh
Boulevard towards Odendaalsrus town.
There were vehicle driving in
front of him. The vehicle turned right into a filling station and he
proceeding straight towards
the traffic circle. He was travelling
under 60km/h. When he got to the traffic circle he slowed down
because there were other cars
approaching. He then turned left and
accelerated.
[14] He felt a bump or
noise and had no control over the car before he reached the curb. The
vehicle veered to the right, hit the
curb and got onto the island. He
accelerated and the vehicle crashed against a pole. He did not apply
brakes. It is possible that
he said to warrant officer Kana that the
back tyre burst. The car was written off and he received R11500-00
therefor.
[15] Mr Collin Schwartz
confirmed that they were driving at approximately 60km/h when they
approached and drove out of the circle.
He heard a sound and the
vehicle veered to the right. The defendant tried to control the
vehicle but it went straight into the
pole. He does not no whether
the defendant applied brakes.
[16] The plaintiff bears
the onus to prove that the defendant drove the vehicle negligently.
[17] Negligence is the
failure to exercise the degree of care and skill the reasonable man
(bonus or diligens paterfamilias)
would have exercised in the
circumstances. The standard by which a driver’s conduct is to
be judged is an objective one.
In applying this standard the court
must, to the best of its ability, place itself in the position of the
driver at the time of
the occurrence and judge whether he/she
exercised the care which the reasonable person in his position would
have exercised in
the circumstances. The conduct of the driver is not
judged with hindsight by examining the conduct in the placid
atmosphere of
the court in the light of after-acquired knowledge. See
Cooper: Delictual Liability in Motor Law
Revised Ed 1996 at
p76.
[18] Mr Louw, on behalf
of the defendant did not criticize any of the plaintiff’s
witnesses. Mr Langeveld impressed me as
an honest and trustworthy
witness. There are no improbabilities in his evidence. If his
evidence is evaluated in conjunction with
the evidence of Mr Gordon
it becomes abundantly clear that the defendant drove that vehicle at
a speed that exceeded the speed
limit and that he could not control
it properly after he negotiated the left turn at the circle. His
evidence is that he did not
hear any sound akin to a tyre burst. It
was put to him that the defendant and Mr Schwartz would say that a
tyre burst. He denied
it. When Schwartz and the defendant testified
they said they do not know what caused the vehicle to veer towards
the right. The
inconsistencies in the defendant and Mr Schwartz’s
version also enhanced the probabilities of Langeveld’s version.
[19] The defendant’s
version is at variance with Gordon’s version. It is common
cause that the speed limit was 60km/h.
Gordon’s evidence is
clear that the damage to the vehicle and the speed with which it
probably hit the pole, conservatively
estimated, show that the
defendant drove the vehicle at a speed in excess of 70km/h, which is
above the speed limit. That is probably
why he could not negotiate
the turn properly. When the defendant was asked by Kana what happened
he categorically said that the
vehicle’s tyre burst. When he
testified he said that it was a mechanical problem. During
cross-examination he said it may
be a tyre burst or a mechanical
fault or both. He could give no explanation why he did not apply
brakes when he heard the sound
or even after he mounted the curb.
[20] It is significant
that both the defendant and Schwartz do not state, in their
statements, what happened after the vehicle moved
onto the island.
The defendant’s actions to control the vehicle is limited to
what happened before it hit the curb. No explanation
is given for the
32.6m that the vehicle travelled, subsequent to hitting the curb.
[21] Mr Schwartz clearly
wanted to protect the defendant. Firstly he testified that there were
brake marks on the road surface.
He then said that he saw the brake
marks two days after the incident and he does not know whether it was
caused on that day. Secondly
he testified that the vehicle was not
badly damaged. It was common cause that the vehicle was so badly
damaged that it had to be
sold as scrap. Thirdly when he was
confronted about the gabs in his statement he testified that he made
a more detailed statement
which he gave to the defendant.
[22] I am convinced that
the evidence of Langeveld is to be favoured above the evidence of the
Prinsloo and Schwartz. I accept Langeveld’s
evidence as to what
happened on the 1 May 2005 at that scene. On his evidence it is clear
that the defendant drove too fast; could
not control the vehicle and
drove onto the curb and ultimately into the pole. His conduct fell
short of that of a reasonable person.
He drove the vehicle
negligently.
[23] Even if I am wrong,
on the defendant’s own version he drove the vehicle
negligently. He testified that he heard the sound
and he tried to
control the vehicle. The vehicle drove against and over the curb. It
travelled for approximately 32m. During all
this time he did not
apply brakes in order to stop the vehicle. A reasonable person in the
defendant’s position would have
attempted to bring it to a halt
by applying brakes. He did not do that, he accelerated instead of
braking. On his own version he
was negligent.
[24] Neither of the
parties requested me to make a costs order at this stage. The issue
of apportionment of damages still have to
be adjudicated. In my view
the issue of costs should be reserved for decision by the Court that
would finalise this case.
[25] I accordingly make
the following order:
a) The defendant is
liable for the damages, if any, that the plaintiff suffered in
consequence of the defendant’s negligent
driving of motor
vehicle BRH 034 FS on 1 May 2005 at Odendaalsrus.
b) The costs stand over
for later adjudication.
_______________
C.J. MUSI, J
On behalf of the
Plaintiff: Adv. A.K. Boomaert
Instructed by: Rosendoff
Reitz Barry
6 Third Street
Bloemfontein
On
behalf of the Defendant: Adv. M.C. Louw
Instructed
by: Hill McHardy & Herbst
Collinstraat
7
Aboretum
Bloemfontein
/ar