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[2011] ZAKZDHC 74
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Kanniah v Road Accident Fund (10110/09) [2011] ZAKZDHC 74 (25 November 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
Case No: 10110/09
In the matter between
Devshen Kanniah
…....................................................................
Plaintiff
and
Road Accident Fund
…...........................................................
Defendant
JUDGMENT
25 November 2011
Steyn J
[1] The cause of action
alleged in the particulars of claim is that on 9 August 2007 at
approximately 4h45 at the intersection of
Stanger and Pine Streets,
Durban, a collision occurred between two motor vehicles. The accident
gave rise to the action for damages
on the part of the plaintiff who
had been seriously injured in the collision. The aforesaid
intersection is controlled by traffic
lights. The insured driver was
the driver of the vehicle travelling along Pine Street and the
plaintiff was a passenger in the
vehicle travelling along Stanger
Street. The plaintiff was a passenger in a white Golf with
registration number ND 240306. The
insured driver was driving a
silver Odyssey with registration number NU 2974. It is alleged by the
plaintiff that the accident
was caused by the negligence of the
insured driver. The particulars of negligence are set out in the
pleadings.
[2] At the commencement
of the trial there was an application in terms of Rule 33(4) to have
the issues separated, which was not
opposed. An order was
subsequently granted to separate the issues, and the trial proceeded
on liability only.
[3] Mr Padayachee SC,
acting on behalf of the defendant, applied for an amendment to the
defendant’s plea at para 5(j) to
read:
“
The
driver of ND 240306 drove through a red robot.”
The application to amend
was not opposed and the defendant’s plea was accordingly
amended.
[4] Mr Mukadam, acted on
behalf of the plaintiff, and led the evidence of two witnesses and
the defendant led the evidence of the
insured driver, a passenger in
the insured vehicle and a security guard who observed the accident.
[5] At the outset the
following appear to be common cause between the parties, i.e. that an
accident occurred between the vehicles
ND 240306 and NU 2974 on the
said date at the intersection of Pine and Stanger Street, Durban.
1
It appears further to be
common cause that the accident occurred in the early hours of the
morning at approximately 04h45. It also
appears to be common cause
that the plaintiff was a passenger in vehicle ND 240306 and that the
insured driver was the driver of
motor vehicle NU 2974. It is also
common cause that the aforesaid intersection is controlled by traffic
lights.
[6] What remained in
dispute is who caused the collision, the dispute being either:
that the defendant’s
insured driver caused the collision by failing to stop,
alternatively by failing to stop at a red robot
and entered the
intersection when the robot was red and failed to stop, swerve, turn
or take any other evasive action to avoid
the collision; or
that the plaintiff’s
driver failed to stop at the red robot and proceeded against the
signal into the intersection at high
speed across the insured
driver’s path of travel.
[7] The driver of the
plaintiff’s vehicle was coming from Stanger Street, driving
north when the collision occurred at the
intersection of Stanger and
Pine Street. Stanger Street is divided into 6 lanes and Pine Street
into 5 lanes. Plaintiff claimed
that the robot gave right of way to
their car and the insured driver claimed that the traffic light was
green in his favour and
gave him right of way. Given the evidence
there is no basis to doubt that the traffic lights were in a good
working order. Which
means that if the light was green for one, then
it would have been red for the other.
[8]
Plaintiff’s
evidence:
Avash Jaganath
He was a passenger in the
white Golf, travelling on Stanger street proceeding forwards to the
intersection of Pine and Stanger.
On their approach to the
intersection the robot was red but as they got near the intersection,
the light changed to green and they
proceeded. According to him the
driver initially applied brakes but when the light changed to green
the driver proceeded into the
intersection. It had been his evidence
that they were travelling in the second lane from the left in Stanger
Street. When their
vehicle was one and a half car lengths into the
intersection the collision occurred. The Golf was hit on the
right-hand side. His
evidence was that the insured vehicle hit their
vehicle almost dead centre and their vehicle spun around, hit the
pavement and
bounced back.
There were 5 occupants in
the Golf: The driver, Raven Naicker and next to him in the front
passenger seat was Zahir and behind him
the witness was seated and,
next to the witness was a female, Nazima, and next to her was
Devshan, the plaintiff in this matter.
Both the driver as well as the
female were killed in the accident. The plaintiff, Devshan, suffered
serious injuries so much so
that he lost his eye and had undergone
facial reconstruction. Zahir and the witness were not too seriously
injured.
In his opinion the
insured vehicle was driving fast because it hit them within seconds.
They were all coming from a nightclub, where
everyone had consumed
alcohol except the driver, Raven. It had been his testimony that they
had shooters and ciders, not beer.
He acknowledged that his attention
was not totally dedicated to the method and manner in which the
driver of their vehicle was
driving.
Mr Jaganath was
confronted in cross-examination with the statement that he had made
to the police, which indicated that their vehicle
was travelling on
Pine Street and also that the driver stopped the vehicle at the robot
instead of just slowing down. He was challenged
on the issue that at
the time when the statement was made to the police, he had been in a
far better position to recollect the
events since everything was
fresh in his mind. Mr Jagannath after this line of questioning blamed
the police officer who took the
statement for the incorrect
information contained in the statement. According to him he merely
signed the statement without having
had the opportunity to read it.
Upon further probing by counsel for the defendant he conceded that
the officer had read it back
to him but suggested that it must have
been incorrectly read back to him by the police officer. During the
cross-examination it
turned out that Mr Jaganath is a reasonable
intelligent person, who knows what it means to take an oath and the
importance of the
oath in any trial process.
Inspector Patrick
Herron also testified on behalf of the plaintiff. He is assigned to
the SAPS’s Accident Response Unit.
He attended the said
accident scene on 9 August 2007, at the corner of Pine and Stanger
Streets. When he arrived at the scene,
he found two vehicles, a
Golf and a Honda Odyssey. When he was at the scene a witness Mr
Shabalala approached him. He made
a note in his statement that the
driver of the Golf entered the intersection before the Odyssey. He
got distracted before he
could interview the witness and when he
turned around to speak to Mr Shabalala, the witness was gone. There
was a large crowd
on the scene and he was working under pressure.
Mr Shabalala said to him that he observed that the Golf had
disregarded the
traffic light at Stanger and West Street and also
the red traffic light at Pine and Stanger. In cross-examination he
admitted
that he regarded Mr Shabalala as an independent witness.
He also agreed that he placed reliance on the version given by Mr
Shabalala as well as the driver of the Odyssey, Mr Joshi. He found
no reason to fault their version. He conceded that the momentum
of
the Golf was so much that even after it was hit by the Odyssey it
was able to travel almost twice the distance that the
Odyssey had
travelled before it came to a standstill.
In his view the robots
were in a good working order. He also described the phasing of a
traffic light which means that at one point
both traffic lights will
be red for three seconds, but it would never be green at the same
time.
Inspector Herron founds
the areas of impact ahead of the second lane in Pine Street and ahead
of the third lane in Stanger Street.
In fact inspector Herron
determined area of impact as 15,6 on from the stop line in Pine
Street and 13 metres from the stop line
in Stanger Street.
This concluded the
evidence of the plaintiff.
[9]
The defendant
called:
9.1 Charles Joshi, the
driver of the insured vehicle. He is a Malawian citizen who now
permanently resides in South African. He
is married to Yolisa Joshi,
who was a passenger in his vehicle on the morning of 9 August 2007.
He is a businessman and on the
day he drove a silver Honda Odyssey
which collided with the white Golf GTI. That morning of the accident
he went to pick up his
wife, who worked night shift at Scalas
Restaurant. They were travelling home, when they first stopped at the
intersection of Pine
and Prince Alfred Street. In front of their
vehicle was a Mercedes-Benz. His evidence was that when he reached
the intersection
of Stanger and Pine, the robot was green for him.
His vehicle is a big SUV automatic and he travelled at a speed of
less than 60km
per hour. When he was about eight to 10 metres in the
intersection he heard his wife screaming his name and he braked but
the next
thing that happened was the accident.
Apart from braking there
was no time to do anything else to avoid the accident. Everything
happened very quickly. He sustained serious
injuries in the accident
and his wife was also injured.
In cross-examination Mr
Joshi stated that Pine Street is a familiar road to him, since he
uses Pine Street regularly to go to work
and going home. He confirmed
that the hotel on the corner of Pine and Stanger streets obstructs
the view of vehicles coming down
Stanger Street. He indicated that in
order to see vehicles coming down Stanger one has to be passed the
stop line of Pine Street.
He was asked to explain whether he did
anything else than braking to avoid the collision. He responded by
explaining how fast the
accident occurred and that when he tried to
brake he had to focus on keeping the car under control. He denied
that he drove at
a high speed. In fact he reminded counsel that he
had stopped at the previous robot, which was not even 100 metres away
from the
said intersection, and henceforth it would have been
impossible to be driving at high speed shortly after taking off from
the robot
at Pine and Alfred Streets.
The next witness was
Mrs Joshi. She confirmed that her husband had picked her up from
work and that they were on their way home.
Her evidence was that
when they were almost eight to ten metres in the intersection she
saw car lights and the next moment
they hit this vehicle, a Golf.
She observed that the other vehicle was travelling at a high speed
and that she had shouted
to her husband to watch out, but it was
too late.
In cross-examination she
was asked whether she and Mr Joshi had discussed the accident and she
admitted that they have discussed
how they could have died if they
had been two or three seconds earlier at the intersection. She
explained that she only saw the
lights of the other vehicle when they
were already in the intersection. She did not notice the vehicle
earlier since the view was
obscured.
Mr Smiso Shabalala, a
security guard who worked at the Olwandle Hotel, on 9 August 2007,
was also called. According to him at
approximately half past 4 on
the said morning he was at the corner of Stanger and Pine Street
doing duty. They were two guards
doing duty at the hotel, the other
one was working inside and he was posted outside. He was standing
near a pole on the said
corner. His attention was caught by the
noise of a speeding vehicle that was driving in Stanger Street. He
kept this vehicle
under observation and noticed that vehicles at
Stanger and West Streets came to a standstill and then he saw how
the Golf bypassed
the stationery vehicles and disobeyed the red
robot at the said intersection. The vehicle then reached the
following intersection
at Stanger and Pine Street which was also
red. The vehicle was travelling at a high speed and it disobeyed
the second red traffic
light and went into the intersection and
collided with a car in the intersection. He noticed that the
passenger in the Odyssey
was thrown out of the vehicle. A lady
passenger in the white Golf had died in the collision.
In cross-examination he
explained how he came to the conclusion that the Golf went through a
red robot before it reached the intersection
of Pine and Stanger. He
was questioned about his observation that the Golf was travelling in
the second lane nearest to the Hotel.
Despite these questions he
remained adamant that the vehicle was in the second and not the third
or fourth lane. During this line
of questioning he made the statement
that he would be surprised if one of the passengers remembered what
had happened, since the
occupants of the Golf were drunk. After the
accident he went to the Golf to go and assist the occupants in the
vehicle. On his
arrival he noticed beer bottles in the car. He denied
that inspector Herron spoke to him and that he had made any statement
to
inspector Herron. He was asked whether he ever consulted with a
legal representative in the presence of Mr and Mrs Joshi and he
denied that he ever did.
This concluded all the
evidence on behalf of the defendant.
[10] Both counsel in
their address had consensus about one thing and that is that there
are two mutually destructive versions as
to how the accident
occurred. Mr Mukadam argued that the evidence of inspector Herron
supports the plaintiff’s case and that
reliance could be placed
on the evidence adduced on behalf of the plaintiff.
According to Mukadam
inspector Herron was an objective witness. He argued that there is a
general duty of care on all drivers on
all roads to take extra care
and precaution. Since Mr Joshi made use of the specific road on a
daily basis he should have been
aware that his view would be obscured
and that there is a probability that some cars do not stop at robots
that time of the morning.
Mr Padayachee asked that
the Court takes into account what had been stated by Swain J in
Naicker
v Moodley
,
2
especially that a driver
that enters an intersection on the invitation of a green traffic
light need not do more that obeying the
signal. He urged the Court
not to place a burden beyond that of a reasonable man on the
defendant. He asked that the claim be dismissed
as opposed to an
order for absolution from the instance being granted.
Legal Framework
[11] It is trite that the
plaintiff bears the onus of proving negligence on the part of the
insured driver on a balance of probabilities.
3
[12] 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 witnesses, their reliability and the
probabilities in order to come to a conclusion
on disputed facts.
4
[13] Having referred to
the above
dicta
, I must now evaluate the evidence of all the
witnesses keeping in mind that the plaintiff bears the
onus
as
stated above. At the onset it has to be stated that the plaintiff’s
witness Mr Jaganath was not a good witness. His version
was not
corroborated by any other witness. He struggled to answer questions
that were neither complicated nor difficult to answer.
His evidence
regarding the colour of the robot seems highly improbable when
weighed against the evidence of all the other witnesses,
including
the evidence of inspector Herron. Instead of admitting an honest
mistake in his statement to the police regarding the
name of the
street they travelled on, he preferred to blame the officer for
noting the street as Pine Street, to such an extent
that his claim
became ridiculous and not trustworthy.
Mr Jagannath did not
observe or identify any other vehicle on the road, for example the
Mercedes-Benz observed by all the witnesses
called by the defendant.
His version of the point of impact is also not supported by any other
evidence, not even the evidence
of inspector Herron. His evidence was
neither consistent nor satisfactory. The objective evidence of
inspector Herron in my view
places a question mark on the evidence of
Mr Jagannath.
The insured driver and
his passenger and the security guard were all good witnesses. They
certainly did not contradict each other
and there were no inherent
improbabilities in their testimonies. Plaintiff’s counsel
attacked the credibility of Mr Shabalala
on the aspect of whether he
noticed any brake lights coming on or not. I am not persuaded that
this contradiction between his statement
and his
viva voce
evidence impacts negatively on his credibility. He was cross-examined
at length and remained consistent in his explanation of the
accident.
Mr Shabalala, in my view, is an unsophisticated and honest witness.
He does not know any of the occupants of either of
the two vehicles.
His attention was focussed on the Golf GTI because of the speed it
travelled at. He remained consistent in his
explanation and his
version of the events seems reasonable and probable.
In my view it has been
established that when Mr Joshi, the insured driver entered the
intersection on Pine Street, the robot was
green, this has been
established by three witnesses, Mr Joshi, Mrs Joshi and Mr Shabalala.
Inspector Heron’s evidence was
that there was no malfunctioning
of the said traffic lights. In accepting the evidence of the three
witnesses of the defendant,
it has to be reasoned that the robot was
red when plaintiff’s vehicle entered the intersection.
[15] In the premises I am
satisfied, on a balance of probabilities, that:
(a) the insured driver
had the right of way at the critical moment of the accident;
(b) that the insured
driver had no opportunity to avoid the collision; and
(c) that the plaintiff
failed to prove any degree of negligence or any causal negligence in
any of the respects as alleged by plaintiff.
[16] For the aforegoing
reasons plaintiff’s claim is dismissed with costs.
____________________________
Steyn, J
Date of Hearing: 17-
August 2011
Date of Judgment: 25
November 2011
Counsel for the
Plaintiff: Adv Mukadam
Instructed by: Campbell
Attorneys
Counsel for the
Defendant: Adv Padayachee SC
Instructed by: SD Moloi &
Associates
1
The
parties preferred to use the old names of the streets but were aware
that
‘
Stanger’
is now ‘
Stalwart
Simelane Street’
,
and ‘
Pine’
is ‘
Dr
Monty Naicker Street’
.
2
2011
(2) SA 502
(KZD).
3
See
Arthur
v Bezuidenhout and Mieny
1962
(2) SA 560
(A) at 576G.
Sardi
and
Others
v Standard and General Insurance Co Ltd
1977
(3) SA 776
(A) at 780C-H and
Madyosi
and Another v SA Eagle Insurance Co Ltd
[1990] ZASCA 65
;
1990
(3) SA 442
(E) at 444 D-F.
4
See
Stellenbosch Farmer’s Winery
Group Ltd and Another v Martell and Cie
SA
and Others
2003 (1) SA 11
(SCA) at para 5;
National Employers
and General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E) at
440D-G;
Koster Ko-operatiewe Landboumaatskappy Bpk v SA Spoorweë
en Hawens
1974 (4) SA 420
(W) AT 426-427.