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[2009] ZAGPPHC 104
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Director General of the Department of Labour v Road Accident Fund (7997/2007) [2009] ZAGPPHC 104 (4 September 2009)
IN
THE NORTH GAUTENG HIGH COURT
(PRETORIA)
CASE
No.: 7997/2007
In
the matter between:
DIRECTOR-GENERAL
OF
THE
DEPARTMENT OF LABOUR
AND
THE
ROAD ACCIDENT FUND
JUDGMENT
Hiemstra
AJ
[1]
The plaintiff, the Department of Labour, paid certain amounts
totalling R749 547,10 to the widow and dependants of Mr A.B. Cowan,
as it was obliged to do in terms of section 54(1)(a) of the
Compensation for Occupational Injuries and Diseases Act, 130 of 1993.
Mr Cowan was killed in a motor vehicle accident while driving a
vehicle in the course and scope of his employment with Ludeke
Transport.
[2]
On 5 September 2002 the late Mr Cowan was the driver of a Peterbilt
truck-tractor with interlink trailers when it collided with
a
Mercedes truck-tractor with interlink trailers, driven by Mr P.V.
Xhwangu. It is common cause between the parties that, should
this
court find that Mr Xhwangu had negligently caused the accident, the
defendant would be liable to compensate the plaintiff
in the amount
that it had paid the dependants of Mr Cowan.
[3]
The collision occurred on the N1 highway between Gariep dam and
Colesberg. Mr Cowan travelled in a southerly direction while
Mr
Xhwangu travelled in a northerly direction.
[4]
The plaintiff called one witness, Captain B.A. Sandy of the SAPS, who
was at the time of the accident an Inspector attached
to the Free
State Criminal Record Centre. He is a plan draftsman, forensic
photographer and fingerprint expert. He attended to
the scene of the
accident, took photographs, made a video recording and drew a sketch
plan. He testified that, in his opinion
the point of impact
between the two vehicles was within the correct lane for the
Peterbilt truck driven by Mr Cowan. He based
this conclusion on the
locality of mud that had been dislodged underneath the vehicles
at the moment of impact as well as
the distribution of broken glass.
[5]
Captain Sandy further testified that there were steel guardrails on
each side of the road and steep slopes beyond the guard
rails. Both
vehicles were too wide to fit into the emergency lanes without
encroaching on the driving lanes.
[6]
The defendant called the driver of the Mercedes truck, Mr Xhwangu, Mr
D.J. le Grange, an eye witness and an expert in the reconstruction
of
motor vehicle accidents, Mr B. Grobbelaar.
[7]
Mr Xhwangu testified that he had been travelling from Cape Town to
Johannesburg. After the Orange River near Garieb a Peterbilt
truck
approached from the North. He saw the Peterbilt moving over to its
right over the centre of the road. In order to avoid a
collision,
he swerved to his left as far as he could. He could go no further to
his left because of the guard rail and the
steep slope beyond the
rail. He realised that the two trucks remained on collision
course and swerved to the right. He said
he did so in order to avoid
a head-to-head collision. The truck-tractors nevertheless collided
with each other at an angle.
[8]
Mr le Grange is a truck driver with 30 years' experience. He drove
behind the Mercedes truck at the time of the accident
and
corroborated the evidence of Mr Xhwangu in every material respect. He
is of the opinion that there was nothing that Mr Xhwangu
could have
done to avoid the collision.
[9]
Mr Grobbelaar, the expert witness, disagreed with Mr Sandy as to the
probable point of impact. He said that the position of
the dislodged
mud and distribution of glass are not conclusive of the point of
impact. He could, however, not pinpoint any alternative
point of
impact.
[10]
Much attention was paid to the point of impact. However, in my view,
it is of little or no assistance in deciding this matter.
The
accident happened in the process of both vehicles swerving from
side to side to avoid a collision. It does not matter
where the
vehicles eventually collided.
[11]
Mr H.P. Joubert, counsel for the plaintiff, conceded that the Mr
Cowan had been negligent by moving over to his wrong
side of the
road. He argued, however, that Mr Xhwangu should have avoided the
collision. He referred me to
Williams
v Net
1939
WLD 188
where Schreiner J said on 196:
“
Now,
going to the wrong side of the road when another vehicle is
approaching on its wrong side is to my mind a dangerous course
which
the circumstances may justify but which nevertheless should not be
lightly resorted to. If other satisfactory means are available
for
avoiding the accident then that course should not
be
taken, because there is always the risk that the other party may come
back to his correct side."
This
dictum was followed in a long line of decisions including
Burger
v Santam Verseker-ingsmaatskappy Bpk
1981
(2) SA 703
(A) at 708 and
President
Insurance Co Ltd v Tsha-balala and another
1981
(1) SA 1016
(A) at 1020.
[12]
Mr C. Harms, on behalf of the defendant, in turn referred me to
Road
Accident Fund v Grobler
2007
(6)
SA 230
(SCA) in which Hancke AJA said:
"When
a person is confronted with a sudden emergency not of his own doing,
it is, in my view, wrong to examine meticulously
the options taken by
him to avoid the accident, in the light of after-acquired knowledge,
and to hold that because he took
the wrong option, he was negligent.
The test is whether the conduct of the respondent fell short of what
a reasonable person would
have done in the same circumstances."
This
decision follows a long line of decisions starting with
South
African Railways v Symington
1935 AD 37
in
which Wessels CJ stated at 45:
"Where
men have to make up their minds how to act in a second or in a
fraction of a second, one may think this cause the better
whilst
another may prefer that. It is undoubtedly the duty of every person
to avoid an accident, but if he acts reasonably, even
if by a
justifiable error of judgment he does not choose the very best course
to avoid the accident as events afterwards show,
then he is not on
that account to be held liable for
culpa."
[13]
The onus of proof rests on the plaintiff. The only evidence on behalf
of the plaintiff is that of Captain Sandy as to the point
of impact.
As I have already found, the point of impact does not take the
matter further. On the other hand, the evidence
of Mr Xhwangu and Mr
le Grange was that whatever option Mr Xhwangu had taken, he would not
have avoided the collision. If he could
not avoid the accident, it
does not matter what option he took.
[14]
I therefore find that the plaintiff has failed to discharge its onus.
I make the following orders:
1.
Absolution
from the instance is granted in respect of plaintiff's claim;
2.
The
plaintiff is ordered to pay the defendant's costs.
J.
Hiemstra AJ
2009-08-31