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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2011] ZAKZPHC 20
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Dubazane v Road Accident Fund (2694/2009) [2011] ZAKZPHC 20 (13 May 2011)
1
REPORTABLE
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO. 2694/2009
In the matter between:
SDUDUZO DUBAZANE
….....................................................................................
Plaintiff
and
ROAD ACCIDENT FUND
…..............................................................................
Defendant
__________________________________________________________________
JUDGMENT
__________________________________________________________________
GORVEN J:
On 30 July 2005 a collision took
place between two white Hi-Ace vehicles, used as taxis, in the
intersection of Commercial Road
and what was then called Grey Street
in Durban. This is an intersection controlled by traffic lights of
two one way roads, each
with 5 lanes of travel at the point of
intersection. The plaintiff was the driver of one vehicle and one
Ntshangase (“Ntshangase”)
the driver of the other. The
plaintiff’s vehicle contained a conductor but no further
passengers and Ntshangase’s
vehicle contained 15 passengers,
none of which was a conductor. The collision took place at
approximately 15h30 on a Saturday
afternoon in clear, dry
conditions.
These events gave rise to the present
action for damages on the part of the plaintiff who claims to have
been injured in the collision.
In its amended plea the defendant
specified negligence on the part of the plaintiff and requested the
court, should it find that
Ntshangase was causally negligent in
relation to the collision, to apportion any damages sustained by the
plaintiff in proportion
to the respective degrees of negligence of
the parties. At the outset of the trial an order was sought by the
parties separating
the issues in terms of Rule 33 (4). An order was
granted that the initial issue to be determined was whether there
was causal
negligence of the respective parties in relation to the
collision on 30 July 2005 referred to in paragraph 4 of the
Particulars
of Claim and, if so, the respective degrees of
negligence. All further issues were held over for later
determination.
The plaintiff was the only witness
called in support of his case. His conductor has since died. He
stated that, on approaching
from the N3 freeway, he reduced speed.
At all times prior to entering the intersection, the traffic light
was green for vehicles
travelling in his direction. He entered the
intersection while the light was still green at an estimated speed
of between 45
and 60 km per hour. He was travelling in the lane
second from left and, immediately before the collision and whilst he
was in
the intersection, the traffic light turned red. Ntshangase’s
vehicle was travelling in the middle of the five lanes in Grey
Street and the traffic in Grey Street approached the intersection
from the plaintiff’s left hand side. He had seen two
other
vehicles stopped at the Grey Street traffic lights but only noticed
Ntshangase’s vehicle whilst it was approximately
4 to 5 paces
away. All that he recalled doing to avoid the collision was to drag
his steering wheel to the left, in other words,
to swerve towards
the traffic approaching from Grey Street in an effort to avoid the
collision. As a result the collision took
place at a time when his
vehicle was no longer perpendicular to that of Ntshangase. The right
front corner of his vehicle and
the front right hand side of his
vehicle, to a point up to and including the driver’s door,
collided with the mid right
hand side of the vehicle of Ntshangase.
The version of Ntshangase differed.
He had collected a full load of passengers and had turned left into
Grey Street prior to approaching
the intersection. As he approached,
the traffic light was red. There were stationary vehicles in some of
the lanes ahead of him
at the intersection but the most right hand
lane was clear. Because he was to turn right into Pine Street after
the intersection
he changed to the most right hand lane of Grey
Street just before reaching the intersection, at which stage the
traffic lights
turned green. As a result, his vehicle did not come
to a complete stop but proceeded into the intersection. He did not
look to
see whether vehicles from his right hand side, that is the
direction from which the plaintiff was travelling, were entering the
intersection against what would for them have been a red light. On
the right-hand corner of the intersection was a multi-storey
building which prevented observation of vehicles approaching from
that side prior to reaching the intersection. He estimated
that he
had entered the intersection at a speed of less than 20 km per hour
but certainly no greater than 25 km per hour. He
heard the
screeching of brakes and immediately thereafter the plaintiff’s
vehicle collided into his vehicle. He did not
see the plaintiff's
vehicle prior to the collision but the vehicles collided at right
angles at a time when he was approximately
halfway through the
intersection. The front side of the plaintiff’s vehicle
collided with the right hand side of his vehicle
between the front
and rear wheels. He was not in a position to take any evasive
action.
As can be seen, the two versions
coincided in certain respects. First, both accepted that,
immediately prior to the collision,
the traffic lights were green
for traffic travelling in the plaintiff's direction and red for
traffic travelling in Ntshangase's
direction. Secondly, the traffic
lights changed prior to the collision taking place. Thirdly, there
had been stationary traffic
at the Grey Street entrance to the
intersection prior to the change of the traffic lights. Fourthly,
the plaintiff's vehicle
collided with that of Ntshangase roughly in
the middle right-hand side of his vehicle.
Neither driver indicated that the
traffic lights were not functioning correctly at the time. The
plaintiff was taxed on a sentence
which appeared in the report of
one of his quantum experts where it was recorded that he had told
the expert that the collision
occurred as a result of faulty traffic
lights. After some difficulties with the interpretation of the word
“faulty”
it became clear that he denied ever having said
that this was the case. Since the person who wrote the report was
not called
to testify, this must be accepted. In addition, the
plaintiff stated clearly in his evidence that the traffic lights
were working.
Even if nothing is said in this regard, the correct
approach to take is set out in
Gomes
v Visser
:
1
‘
Traffic
lights at intersections have for more than a generation been an
important feature of traffic control in cities throughout
the world.
The lives and safety of motorists as well as the normal flow of
traffic depends upon them, and the manner in which they
are intended
to function, and normally do function, is well known. That being so
it is, in my view, proper for a Court to take
judicial notice of the
fact that when the lights facing in one direction at a right angled
intersection are green those facing
at right angles to them should
be, and probably are, red.
That, of course, is no
irrebuttable presumption. Any mechanical or electrical device can be
faulty at times. But if there is no
evidence of mal-function the
court trying a civil case should, in my view, take into account as a
probability that if the lights
facing in one direction were green at
a particular point of time, those at right angles to it were red.’
In the present case, both the
plaintiff and Ntshangase asserted that the lights began as one colour
and thereafter changed colour.
In all the circumstances there is no
basis to doubt that the traffic lights were working properly. This
then means that, if the
light was green for one, it would have been
red for the other. The crucial issue, therefore, is which of the two
of them entered
the intersection whilst the light was red.
Much was made by both parties of
discrepancies between the evidence given in court and the accident
reports made at the police
station by each party concerning the
collision. The police members who recorded the information as a
result of the reports being
made to them were not called to testify.
As a consequence, the reports were never proved and no factual
findings can be based
on them. I therefore set no store by these
discrepancies.
There are difficulties with the
plaintiff's version. The major difficulty is that traffic lights do
not change from green to red
immediately. They change to amber
before doing so. At best for the plaintiff, on his version, he was
travelling at 45 km per
hour. This translates into a speed of 12.5 m
per second. In argument it was accepted by counsel for the plaintiff
that the lanes
in such roads are 9 m wide. On the plaintiff's
version the collision took place when he had progressed across a
maximum of 2.5
lanes into the intersection, in other words 22.5
metres. At a speed of 12.5 m per second, that distance would have
been travelled
by the plaintiff in less than two seconds.
Plaintiff’s counsel also accepted that it would take
considerably longer than
two seconds for the traffic light to change
from green to red through amber. It can therefore be seen that the
collision could
not have taken place as testified to by the
plaintiff. A second difficulty confronted by the plaintiff is the
improbability of
his having swerved to his left hand side when
confronted with the emergency. He would have it that, having seen
Ntshangase’s
vehicle when it was 4 to 5 paces away, he swerved
towards it rather than away from it. This is improbable. Even if he
did swerve
towards Ntshangase’s vehicle, the probability of
his vehicle having turned a minimum of 45° to the left within
the
available time is remote in the extreme. This would have been
necessary for the impact on the plaintiff’s vehicle to have
occurred to only the front right-hand corner and the right-hand side
as he claimed and no impact to have taken place to the rest
of the
front of his vehicle.
In addition to the improbabilities
mentioned above, the plaintiff did not impress as a witness. He was
evasive and answered questions
in a roundabout way, preferring to
give confused and lengthy answers including explanations for his
conduct rather than a simple
and straightforward answer when one was
called for. In his evidence in chief he stated that, before entering
the intersection
he had noticed that two vehicles were stopped in
Grey Street. He was then asked whether, when the collision took
place, the robot
was still green for him. His reply was that, at the
time he was struck, the robot was red. Unsolicited, he gave in
support of
this answer the explanation that other vehicles from Grey
Street had started to cross the intersection. After cross
examination
he confirmed, in answer to a question posed by the
court, that he had stated that other vehicles had begun to enter the
intersection
from Grey Street at the time of the collision. In
response to the next question from the court he accepted that, after
he had
been cross examined, his evidence was to the effect that the
two vehicles in question had not begun to enter the intersection at
the time the collision occurred. This was, of course, a direct and
material contradiction on a matter which bore strongly on
whether he
or Ntshangase had entered the intersection against the red light. If
the two vehicles had begun to enter the intersection,
it tends to
show the probability of Ntshangase having entered the intersection
when the light was green for him since these vehicles
had stopped in
obedience to the red light. In such circumstances it is highly
improbable that they would both draw off when the
light was still
red. In fact, he had used their entry into the intersection to
support his evidence that, by the time the collision
took place, the
light had turned red for him. I am alive to the fact that the
interpreter was poor and that this gave rise to
some confusion. In
evaluating his evidence, I have carefully considered this and come
to the view that this did not affect the
criticisms of his evidence
mentioned above.
Ntshangase, on the other hand,
impressed as a witness despite enduring the same difficulties with
interpretation as did the plaintiff.
His evidence became more rather
than less clear as the trial progressed. There were also no inherent
improbabilities in his testimony.
I readily accept what was said by
Ogilvie Thompson AJ (as he then was) in
Van
der Westhuizen and Another v SA Liberal Insurance Co Ltd
2
to the following effect:
‘
In
my opinion, however, the strictly mathematical approach, though
undoubtedly very useful as a check, can but rarely be applied
as an
absolute test in collision cases, since any mathematical calculation
so vitally depends on exact positions and speeds; whereas
in truth
these latter are merely estimates almost invariably made under
circumstances wholly unfavourable to accuracy.’
In the first place, however, I have
assumed in favour of the plaintiff the slowest of the range of speeds
estimated by him. In any
event, even the highest estimate of the
plaintiff as to his speed is unlikely to have been one unfavourable
to him. Secondly, the
plaintiff initially stated that the collision
took place in the third lane from the entry to the intersection
rather than in the
first lane as Ntshangase testified. He later
conceded that Ntshangase may have been correct in that regard. If so,
there would
have been even less time for the lights to change after
his entry into the intersection. All in all, I am satisfied that,
even
taking into account the cautionary remarks in
van der
Westhuizen’s
case, the plaintiff's version that he entered
the intersection when the traffic light was green can safely be
rejected. There is
no basis for rejecting the version of the
defendant that Ntshangase entered the intersection when the light was
green for him.
This is a more probable version of events in the light
of an overall conspectus of the evidence. I therefore find that the
version
of the defendant is to be preferred and should be the basis
on which the matter is determined.
This does not dispose of the matter
since counsel for the plaintiff submitted that, should I make such a
finding, an apportionment
should take place on the basis that
Ntshangase was, on his own version, causally negligent in relation
to the collision. This
is because Ntshangase conceded not having
looked to see whether any traffic was approaching the intersection
from the direction
in which the plaintiff was travelling. Had he
done so, it was submitted, he would have seen that the plaintiff was
about to enter
the intersection against the red traffic light. His
failure to do so, it was submitted, was negligent and contributed to
the
collision having taken place.
Counsel for the defendant urged me to
find that there was no basis for such an apportionment. He submitted
that there was no duty
on Ntshangase, when he entered the
intersection, to observe whether traffic might be entering the
intersection against the red
light from Commercial Road. In this
regard he relied on the recent judgement in
Naicker
v Moodley
3
where the following was said:
‘
Consequently,
the driver of a vehicle entering the crossing when the traffic lights
are in his favour owed no duty to traffic entering
the crossing in
disobedience to the lights, beyond a duty that, if he saw such
traffic, he ought to take all reasonable steps to
avoid a collision.’
Swain J, in arriving at that
conclusion, relied on a dictum to the following effect in the case of
Joseph Eva Ltd v Reeves
:
4
‘
Nothing
but implicit obedience to the absolute prohibition of the red - and
indeed of the amber, subject only to the momentary discretion
which
it grants - can ensure safety to those who are crossing on the
invitation of the green. Nothing but absolute confidence,
in the mind
of the driver invited by the green to proceed, that he can safely go
right ahead, accelerating up to the full speed
proper to a clear road
in the particular locality, without having to think of the risk of
traffic from left or right crossing his
path, will promote the free
circulation of traffic which, next to safety, is the main purpose of
all traffic-regulation. Nothing
again will help more to encourage
obedience to the prohibition of the lights than the knowledge that,
if there is a collision on
the crossroads, the trespasser will have
no chance of escaping liability on a plea alleging contributory
negligence against the
car which has the right of way. Finally,
nothing will help more to encourage compliance with the summons of
the green to go straight
on than the knowledge of the driver that the
law will not blame him if unfortunately he does have a collision with
an unexpected
trespasser from the left or right.’
This approach finds support in
Netherlands Insurance Co of
SA Ltd v Brummer
5
where Muller JA said the following:
‘
Soos
in bogenoemde gewysdes verduidelik moet 'n bestuurder wat 'n kruising
binnegaan terwyl die verkeerslig vir hom groen is, uitkyk
vir verkeer
wat reeds in die kruising is, bv verkeer wat die kruising binnegegaan
het voor die verkeersligte verander het. Hy mag
natuurlik ook nie 'n
voertuig ignoreer waarvan hy bewus is en wat duidelik op 'n nalatige
wyse bestuur word. Maar dit word nie
van hom verwag om uit te kyk vir
verkeer wat moontlik onwettiglik die kruising teen 'n rooi
verkeerslig van links of regs kan binnegaan
nie.’
6
On the version of the defendant,
Ntshangase entered the intersection at a time when the light was
green. The plaintiff's vehicle
had not yet entered the intersection.
It was not a situation where the plaintiff's vehicle was in, but had
not yet cleared, the
intersection. The plaintiff entered against the
red light. There was accordingly no duty on Ntshangase to keep a
lookout for
vehicles such as that of the plaintiff entering
unlawfully.
Even if I am wrong in rejecting the
version of the plaintiff in favour of that of the defendant, it
would certainly not be possible
to prefer it to that of the
defendant. At best for the plaintiff, therefore, I would not be able
to find that one version is
more probable than the other. It is
trite that in a matter such as this, the onus is on the plaintiff.
On this basis the plaintiff
would be held to have failed to
discharge the onus. However, as mentioned above, I am of the view
that the probabilities favour
the version of the defendant. In such
a case, there should be judgment for the defendant rather than one
of absolution from the
instance, thus leaving it open to the
plaintiff to pursue the claim again.
In the result, there will be judgment
for the defendant with costs.
DATE OF HEARING: 4 and 5 May 2011
DATE OF JUDGMENT: 13 May 2011
FOR THE APPLICANTS: Adv RBG Choudree
SC, instructed by
Naidoo & Associates, locally
represented by Malanie Naidoo & Associates.
FOR THE RESPONDENTS: Adv R Padayachee
SC, instructed by
Tomlinson Mnguni James.
1
1971
(1) SA 276
(T) at 279F – H, approved in
van Vollenhoven v
McAlpine
1976 (3) SA 579
(N) at 581D-G.
2
1949
(3) SA 160
(C) at 168. Approved in
Diale v Commercial Union
Assurance Co of SA Ltd
1975 (4) SA 572
(A) at 576 - 577.
3
2011
(2) SA 502
(KZD) para 20.
4
[1938]
2 All ER 115
(CA) ([1938]
2 KB 393)
at 120H-121C.
5
1978
(4) SA 824
(A) at 833E – F.
6
See
also
Santam Insurance Co Ltd v Gouws
1985 (2) SA 629
(A) at
634A-635H