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1984
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[1984] ZASCA 119
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A A Mutual Insurance Association Ltd. v Nembe (547/82) [1984] ZASCA 119 (27 September 1984)
Case No. 547/82
mp
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION)
In the matter between:
A A MUTUAL INSURANCE ASSOCIATION LIMITED
Appellant
and
ELIZABETH NEMBE
Respondent
CORAM:
JOUBERT, HOEXTER, JJA et VIVIER, AJA
HEARD:
10 September 1984
DELIVERED: 27 September 1984
JUDGMENT
HOEXTE
R
, JA
This is an appeal against a finding of
negligence
2. negligence on the part of an insured driver in an
action
for damages based on the provisions of the Compulsory
Motor Vehicle
Insurance Act, 56 of 1972. The plaintiff,
a woman then aged 64 years, was a
pedestrian when she
was struck from behind by a motor car insured under
the
said Act by the defendant. The insured car was being
driven at the time by
a Mrs de Villiers, to whom I shall
refer as "the driver". As a result of the
accident the
plaintiff sustained a fracture of both bones of her right
lower leg and head injuries.
Alleging that her bodily injuries had been caused by the negligence of the
driver, the plaintiff sued the defendant in the Witwatersrand
Local Division for
damages. The defendant resisted the action. In its plea the defendant denied
that the driver had been negligent
in any way; and, in the alternative, it
pleaded that the plaintiff's own negligence had contributed to the accident.
The
3. The trial was heard by McCREATH, J., who assessed the
plaintiff's total damages at R15 000. The learned trial
Judge found (1)
that the driver had been negligent in that
she failed to keep a proper
look-out and in that she drove
at an excessive speed; (2) that the accident
had been
caused by the negligence both of the driver (to the
extent of
30%) and the plaintiff (to the extent of 70%).
The Court
a quo
apportioned the damages accordingly and
awarded the plaintiff R4 500 and
costs. Against that
judgment the defendant appeals. The
quantum
of the total
damages
assessed by the trial Court is not in issue. The
defendant appeals against
the finding that the driver was
negligent at all, or alternatively, against the apportion =
ment.
The plaintiff was a domestic worker in the employ of a family living in
Bryanston. After dark on the evening of Sunday 15 March 1981
the plaintiff was
returning
from
4. from a church service to the home of her employers.
At
the same time the driver was on her way to attend a church
service. She
was driving a Peugeot motor car and her
daughter was her only passenger. The
width of the
Peugeot was 1,65 metre. Both the plaintiff and the
Peugeot
were proceeding in Bryanston Drive from west to
east. I should add that as it
approached the plaintiff
the Peugeot was travelling on a downward slope in
the road;
and that any cars which might have been travelling towards
the
plaintiff from the opposite direction would likewise
have proceeded downhill.
The accident appears to have
taken place in somewhat of a valley between two
sloping
sections of Bryanston Drive. Bryanston Drive has a
tarred surface which at
the time of the accident was some
six metres wide. The tarred portion of the
road was
flanked on either side by a sidewalk nine or ten metres
wide.
These sidewalks were uneven and overgrown with
grass. Shortly before the
accident it had rained heavily
and
5. and the sidewalks were wet. Although Bryanston Drive
carried a considerable volume of traffic it was an unlit
thoroughfare.
The plaintiff was walking in the company of two other women, one of whom was
a Miss Lekalakala. At the trial three eye-witnesses to
the accident testified:
Miss Lekalakala, the plaintiff and the driver. The evidence for the plaintiff is
that when she was struck
by the Peugeot she and her two companions were walking
in single file on the northern edge of the tarred portion of Bryanston Drive.
The third member of the party was walking in front, followed by Miss Lekalakala,
with the plaintiff bringing up the rear. The formation
in which the three women
were walking at the time of the accident is in dispute. The evidence of the
driver is that these three women
were walking abreast on the tarred surface,
taking up half of the driver's lane of the road. Also in
dispute
6.
dispute is the issue whether, as the Peugeot approached the
three women from the west, a motor car travelling in the opposite direction
was
nearing the three women from the east; which oncoming car went past the Peugeot
at or about the time of the latter's collision
with the plaintiff. The evidence
for the plaintiff is that there was no such oncoming car. On the other hand the
driver testified
that there was such an oncoming car and that its headlights
"were not completely blinding, but bright". A
further matter in dispute
is the state of the weather at the time of the accident itself. Mention has
already been made of the fact
that shortly before the accident it had been
raining heavily in Bryanston Drive. The plaintiff's version is that at the time
of the
accident the rain had stopped completely, whereas the driver contends
that when the collision occurred the earlier rain had no more
than "eased off
slightly".
A
7. A detailed and accurate analysis of the
evidence of each of the three
aforementioned eye-witnesses
is to be found in the judgment of the trial
Judge. For
present purposes a very brief summary of their
respective
versions in the witness-stand will suffice. Miss
Lekalakala
explained that initially the three women walked
on the northern sidewalk of
Bryanston Drive, but that because
of the muddy and uneven condition of the
sidewalk, and being
afraid of slipping on the wet grass, they left the
sidewalk
and proceeded to walk on the tarred surface of the road
when they reached
the vicinity in which the accident later
took place. It had stopped raining but the tarred
surface of the road was still wet. They walked in single
file just next to the sidewalk. Miss Lekalakala was clad
in a white blouse, a black skirt and a black hat. The
plaintiff, who was a stranger to her, walked behind her
and the third member of the party walked in front of her.
As they were walking in this fashion Miss Lekalakala saw
the
8.
the lights of a car approaching from behind them
and she
suggested to her companions that they should get off the road. Both
Miss Lekalakala and the woman walking in front of her did so and
got back on the
sidewalk; but Miss Lekalakala did not see what the plaintiff did. She heard a
noise - whether it was produced by
the application of brakes she could not say -
and the next thing she observed was the plaintiff hurtling through the air some
two
or three feet above the ground. Just before she heard the noise in question,
so testified Miss Lekalakala, no cars were approaching
them from the east. The
plaintiff confirmed the evidence of Miss Lekalakala that shortly , before the
accident the three women were
walking in single file along the verge of the tar,
she being at the rear. She was not aware at all of the approach of the Peugeot
from behind.. Nor did she hear the warning uttered by Miss Lekalakala that they
should get off the road. According to the plaintiff
it was no longer
raining.
Save
9.
Save for a white head-cloth the plaintiff was clad
entirely
in black or dark clothing. She denied that there was an oncoming car from the
east.
I turn to the evidence of the driver. She told the trial Court that she was
familiar with Bryanston Drive which for a period of 15
/2 years she had used
regularly on Sundays on her way to church. On the evening in question, and with
the church service about to
begin, there was "quite a lot of traffic" on
Bryanston Drive, which she described as "a very narrow road". The weather
conditions
prevailing at the time were, in the words of the driver "very bad".
It was still raining ("a steady drizzle"). It was very dark at
the time. The
headlights of the Peugeot were dipped but threw a considerable beam of light in
front and to the left of the Peugeot.
She said that when she first saw the
oncoming car she was travelling downhill and in the opposite direction the
oncoming car was
likewise travelling downhill. The oncoming car had
its
10.
its headlights on bright. They made her vision
"a bit more difficult" but they did not "blind me completely." She estimated
that the
Peugeot had been travelling at a speed of 50 km per hour. When she saw
the headlights of the oncoming car she reduced her speed to
approximately 40 km
per hour. Suddenly she saw ahead of the Peugeot, possibly at a distance of seven
or eight metres, three dark
figures walking abreast on her side of the road. She
was virtually on top of the three women when she noticed them for the first
time. She braked hard and swerved somewhat to the right, taking into
consideration the approach of the oncoming car. The oncoming
car passed the
Peugeot "at the time I hit the African woman." The left front portion of the
Peugeot struck the plaintiff whom she
described as the person walking closest to
the middle of the road. According to the driver none of the three women moved
off the
tarred surface of the road before the collision.
In
11.
In its judgment the Court
a quo
recorded that neither Miss Lekalakala
nor the plaintiff had made an unsatisfactory impression but stated that there
were certain
unsatisfactory aspects in their evidence. It is note= worthy,
however, that in detailing such unsatisfactory aspects the learned
Judge seems
to have confined himself entirely to the plaintiff. He pointed out that the
plaintiff had been "most unobservant and
unaware of what was going on around
her", in not noticing the approach of the Peugeot; in not hearing the suggestion
made by Miss
Lekalakala that they should move off the road; and in not noticing
that her companions in fact left the road. Of the driver's merits
as a witness
the learned Judge remarked:
"Mrs De Villiers, likewise, did not make a bad impression on me, although
there are certain unsatisfactory features about her evidence.
More particularly
her evidence is not in accordance with her statement which she made to her
comprehensive
12.
comprehensive insurers, nor does it accord entirely with the statement which
she made to her third party insurers'
assessors In so far as her other
statement is concerned, she does state therein that the lights of the
oncoming vehicle were very bright, which according to her testimony
was a
statement put into this particular portion of the report by her husband. She,
however, did sign the statement and had read
it before it was returned to the
insurers. There is also a measure of discrepancy between her evidence and the
statement in so far
as the question as to whether it was raining heavily at the
time or whether, as testified by her in Court, it was drizzling at the
time of
the collision. This discrepancy she also attributed to her husband being
responsible for the completion of the form."
Having weighed the two rivalling versions of the accident respectively
advanced on behalf of the parties the learned Judge concluded
that there were no
significant probabilities favouring the plaintiff's version; and that he was
unable to accept the version given
by the plaintiff and her witness in
preference to that of the driver. The trial Judge nevertheless decided that
the
driver
13.
driver had been negligent in the respects indicated earlier in this
judgment.
Turning to the arguments advanced in this Court it is convenient to deal
first with a contention strongly urged upon us by counsel
for the plaintiff
(respondent) to the effect that the trial Judge had erred in adjudicating upon
the merits on the assumption that
the driver's version of the facts was the
correct one. In support of this latter argument the plaintiff's counsel called
attention
to the fact that Miss Lekalakala's testimony appeared to be free from
blemish; and it was further contended that the trial Court
had failed to
appreciate a distinct improbability inherent in the driver's story.
On the driver's version the three women encroached upon half of the Peugeot's
side of the road but, despite its swerve to the right
in an attempt by the
driver
to
14. to avoid the collision, the Peugeot remained on its
correct side of the road. Bearing in mind the width of the road and the width
of
the Peugeot, so the argument proceeded, a collision not only with the plaintiff
but also with at least one of the plaintiff's
companions must on the driver's
version have been inevitable. Although there is force in these contentions on
behalf of the plaintiff,
I find it unnecessary to express any firm opinion upon
them. As will appear in what follows the driver, in my view, was negligent
on
her own version of the facts. As there is no cross-appeal by the plaintiff
against the apportionment decreed by the Court below
I shall assume, for the
purposes of the present appeal, that the trial Court correctly considered the
merits on the basis that the
driver's version of the accident was the correct
one.
In the course of his judgment the learned Judge expressed the view that the
driver -
"... should
15.
"... should have regulated her speed so
as to be able to contend with
any emergency
in the form of pedestrians either crossing
the road or being on the road, albeit
on the verge thereof and have been able to
take avoiding action " (I underline.)
Counsel for the defendant (appellant) argued that in requiring the driver to
contend with "any emergency" the trial Court misdirected
itself. The approach
indicated in the above-quoted passage admittedly places too onerous a duty on
the driver: she was required to
guard only against harm to pedestrians on the
road which was reasonably foreseeable. In the present case, however, the
statement
of which counsel complains represents no more than a temporary lapse
on the part of the learned Judge, and nothing turns upon it.
Reading the
judgment as a whole it is clear, so I consider, that in fact the trial Court
applied to the facts of the case the true
test of reasonable foreseeability. It
was further contended on behalf of the defendant that on the driver's evidence
there was insufficient
ground for holding that she ought
reasonably
16. reasonably to have anticipated the combination
of
circumstances which culminated in her collision with the
plaintiff. I am
unable to accept this argument. In
this connection the Court
a quo
reasoned thus -
"It is clear on her own testimony that she (the driver) was well acquainted
with
the road in question That being so,
she must in my view have been aware of the condition of the sidewalk in the
area in the vicinity of the church. She must have been
aware that on the evening
in question that sidewalk would as a result of the rain, have been wet and that
there would have been puddles
of water on the pathways that traverse the
sidewalks. In these circumstances, and by virtue of the further fact that the
sidewalk
was overgrown with grass to a very large extent, which would have made
walking conditions even more difficult, she should in my view
have anticipated
the possibility of persons using the tarmac surface of the road in preference to
the pavement, more particularly
in conditions where there was no lighting
whatsoever."
With the above observations of the trial Judge I agree. Having regard to all
the conditions prevailing just prior
to
17. to the accident a reasonable person in the position of
the driver of the Peugeot would, in my view, have foreseen
the possibility
of pedestrians using the road rather than
the sidewalk; and would moreover
have foreseen that such
pedestrians might be dressed in dark clothes unlikely
to
show up against the black background of the tarred surface
of the
road.
Postulating the correctness of the driver's evidence it seems to me further
that no real criticism can be levelled at the finding
of the trial Court that in
the particular circumstances of this case the speed of the Peugeot was too high
and that the driver failed
to keep a proper look-out. As to whether the driver
maintained a sufficient look-out, the learned Judge in my opinion summed up the
matter correctly in the following paragraph of his judgment
"There is the further fact that if her evidence is to be accepted these
persons were walking abreast and would therefore be more visible
than had they
been walking
in
18.
in single file. There is her own evidence that, although her
lights were on the dip position, they did shine ahead of her for some
considerable distance. There is her own evidence that the on= coming vehicle did
not blind her vision, but with the lights being
on bright that those lights did
in fact to some extent cast light on her side of the road. This notwithstanding
she did not see these
three persons until, as she herself testified, she was
almost upon them."
For the event that this Court might not be disposed to upset the trial
Court's finding that the driver was to some extent at fault
in relation to the
damage suffered by the plaintiff, counsel for the defendant submitted in
conclusion that the apportionment determined
by the learned Judge was unduly
liberal to the plaintiff. It was said that her negligence was so gross as to
have merited an apportionment
assigning 90% of the fault to the plaintiff.
Apportionment, however, involves the exercise of an individual discretion by the
trial
Court.
Where
19. Where, as here, the trial Court has correctly decided on
the facts and has made no error of principle, this Court
will be slow to
meddle with an apportionment decreed by
a trial Court. In the instant case
there is, in my
judgment, no sufficient reason for disturbing the trial
Court's assessment of the respective degrees of fault.
In the result the appeal is dismissed with costs.
G G HOEXTER, JA
JOUBERT, JA )
VIVIER, AJA ) concur