van Wyk v Road Accident Fund (1175/05) [2007] ZAFSHC 6 (11 January 2007)

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[2007] ZAFSHC 6
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van Wyk v Road Accident Fund (1175/05) [2007] ZAFSHC 6 (11 January 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 1175/05
In
the matter between:-
DOUW
GERBRANDT VAN WYK
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
______________________________________________________________
HEARD
ON:
30 AUGUST 2006
_____________________________________________________
JUDGMENT
BY:
RAMPAI J
_____________________________________________________
DELIVERED
ON:
11 JANUARY 2007
_____________________________________________________
[1] These are civil
proceedings. The plaintiff instituted the action against the
defendant in terms of section 17 of the Road Accident
Fund Act No.
56/1996. He seeks to recover damages he allegedly suffered as a
result of the bodily injuries he sustained in a road
accident which
occurred at Reitz on Monday 29 October 2001.
[2] The
parties agreed at the pre-hearing conference and in accordance with
that agreement I directed at the outset of the hearing
that the
adjudication of the quantum should be kept in abeyance and that the
merits be adjudicated first. I did so in terms of Rule
33(4) of the
Uniform Rules of Court.
[3] The
above ruling in essence entailed that I make a determination of the
issues as contained in paragraph 4 of the plaintiff’s
summons and
paragraph 3 of the defendant’s plea. Therefore I proceeded to hear
evidence in order to determine the relative negligence,
if any, of
the insured driver and that of the victim, if any, seeing that the
defendant had pleaded contributory negligence on the
part of the
plaintiff.
[4] Two
persons testified on behalf of the plaintiff, namely Douw Gerbrandt
van Wyk, in other words, the plaintiff himself and James
Roos Craven,
the plaintiff’s companion. In turn the defendant also adduced the
evidence of two witnesses, namely Phinda Edward
Nyembe, a police
inspector and Gerald Lemmer, a retired university professor. After
hearing the evidence and brief oral argument,
I asked the parties to
file written heads of argument. I then reserved judgment. Both
parties have since complied with my request.
[5] First,
in paragraph 3, the particulars of claim, the plaintiff alleged that
a road accident occurred at Reitz on 29 October 2001
and that the
scene of the accident was on the main road to Bethlehem. He also
alleged that there were two motor vehicles involved
in the accident.
The one motor vehicle with registration number BZR 324 FS was a
Toyota Camry sedan driven by the plaintiff, D.G.
Van Wyk. The other
motor vehicle was also a sedan, an Opel Monza with registration
number BKK 876 GP which was driven by a certain
E.J. Bothma, the
insured driver. These averments were admitted by the defendant in
its plea.
[6] Second,
in paragraph 4 of the particulars of claim, the plaintiff alleged
that the said road accident was caused by the exclusive
negligence of
the insured driver. No less than seven grounds of negligent driving
were proffered. Perhaps the most important of
those grounds was that
set out in paragraph 4.5. It reads as follows:
“4.5 Hy het
die middel van die pad oorskry tot in die baan van aankomende verkeer
terwyl dit gevaarlik en roekeloos was om so te
doen.”
The defendant denied all
these seven allegations.
[7] Third, in paragraph 3
of the defendant’s plea, the defendant alleged that the sole cause
of the road accident was the negligent
driving of the plaintiff. No
less than nine grounds of negligence were proffered. Among others
the defendant alleged in paragraph
3.2.6 of its plea that:
“3.2.6 he
encroached onto Bothma’s correct side of the road at a time when it
was unsafe and inopportune to do so;”
The plaintiff denied all
those nine allegations of negligence.
[8] In the light of the
above quotations from the pleadings and in view of the evidence
presented at the trial, it became patently
clear that the central
issue and indeed the most important, single and factual dispute
between the parties was where the area of
impact probably was
relative to the middle line. On the one hand the plaintiff’s
version was that it was on his correct side of
the road. On the
other hand the defendant’s version was that it was on the correct
side of its insured driver. This then completes
the cursory resumé
of the pleadings.
[9] The
evidence showed that the common cause consisted of the following
facts. The Camry was travelling from Reitz to Bethlehem
and the
Monza in the opposite direction. The scene of the accident was
approximately 15 kilometres from Reitz in the rural area.
It
occurred at night where there was no artificial source of lighting
and during a heavy torrential downpour. The driver of the
Monza and
his passenger sustained fatal injuries in the accident. The driver
of the Camry and his passenger survived. They were
the only known
eye-witnesses who testified about the tragic road accident.
[10] The
particular stretch of the road was a tarred road with one traffic
lane in each direction. The two were separated by a painted
white
line of demarcation. On the outside of each traffic lane was a
painted yellow line. Beyond the external yellow boundary there
was
an emergency traffic lane on each side of the road. Such emergency
traffic lane was wide enough for a motor vehicle to move.
Between a
motor vehicle on the emergency lane and the grass shoulders of the
road, there was an extra space of approximately one
metre. The
portion of the road between the two final rest positions of the
vehicles was straight with a downward slope from north
to south.
[11] The
plaintiff and Craven were rushed to the hospital at Bethlehem by an
ambulance. Therefore on the night in question none of
them pointed
out any points on the scene to the police. They never did so at any
other time afterwards. On account of the force
of the impact the two
vehicles veered completely off the road or tarmac and eventually came
to rest in the veld on opposite sides
of the road but in the same
direction in which each was originally travelling immediately prior
to the collision. It seems to me
safe to say that the accident took
place somewhere between 20h30 and 24h00.
[12] The
police and the emergency service providers were on the scene. The
scene was not cordoned off. The police made their own
observations,
marked certain points and photographed the scene. It was apparent
that the Monza had rolled before it reached its
final position of
rest. The police revisited the scene the next morning during daytime
and took a further photograph. These then
were the undisputed facts.
[13] It is trite that the
plaintiff bears the overall onus to prove, on a balance of
probabilities, that the insured driver was driving
negligently at the
time of the collision. In
STACEY v KENT
1995 (3) SA
344
(ECD) at 352 i Kroon J writing for the majority of the full bench
put it in this way:
“
The
enquiry at the conclusion of the case remains whether the plaintiff
has, on a balance of probabilities, discharged the onus of
establishing that the collision was caused by negligence
attributable to the defendant. In that enquiry the explanation
tendered
by the defendant will be tested by considerations such as
probability and credibility.”
It is also trite that no
onus rest on the defendant to establish, on a balance of
probabilities, the correctness of his explanation
as to the
circumstances which led to the occurrence of the event.
STACEY
v KENT
,
supra
at 352 e and
GUARDIAN NATIONAL
INSURANCE CO LTD v SAAL
1993 (2) SA 161
(CPD).
[14] On behalf of the
plaintiff direct evidence was adduced by two witnesses. On behalf of
the defendant as I have already stated
indirect evidence was adduced
by two witnesses one of whom was an accident and reconstruction
expert. The approach which the court
should follow in the
circumstances where, as in the instant case, there is a conflict
between a lay-witness’ direct evidence and
an expert witness’
indirect evidence was spelt out in
MOTOR VEHICLE ACCIDENT
ASSURANCE FUND v KENNY
1984 (4) SA 432
(ECD) at 436 H – 437
B where Eksteen AJA, as he then was, said the following on behalf of
the majority of the court:
“
An
expert's view of what might probably have occurred in a collision
must, in my view, give way to the assertions of the direct and
credible evidence of an eyewitness. It is only where such direct
evidence is so improbable that its very credibility is impugned,
that
an expert's opinion as to what may or may not have occurred can
persuade the Court to his view.”
See also
ABDO NO v
SENATOR INSURANCE CO LTD AND ANOTHER
1983 (4) SA 721
(ECD) at
725 D – 726 E and
VAN ECK v SANTAM INSURANCE CO LTD
1996 (4) SA 1226
(CPD) at 1229 H – 1230 B.
[15] It
must be readily appreciated in this case that, as regards the merits,
the versions put forward by the plaintiff and the defendant
are
virtually irreconcilable. In such circumstances the approach which
the court should follow has recently been authoritatively
stated as
follows:
“
The
hard case occurs when a court's credibility findings compel it in one
direction and its evaluation of the general probabilities
in another.
The more convincing the former, the less convincing will be the
latter. But when all factors are equipoised, probabilities
prevail.”
STELLENBOSCH
FARMERS' WINERY GROUP LTD AND ANOTHER v MARTELL ET CIE AND OTHERS
2003 (1) SA 11
(SCA) at par. 5 on p. 14 i – 15 e per Nienaber JA
who spoke for the majority.
[16] Where one motor
vehicle suddenly deviated from its correct path of travel, moved
across the middle line of the road and nosed
or encroached onto the
wrong side where it collided with another motor vehicle, the driver
of the latter, the court has held, has
proved facts from which an
inference of negligence against the driver of the former motor
vehicle may be inferentially deduced in
the absence of an
explanation. See
ARTHUR v BEZUIDENHOUT AND MIENY
1962
(2) SA 566
(AD) at 573 C – H. In such a case the
maxim res ipsa
loquitor
may correctly be applied. See also
SARDI AND
OTHERS v STANDARD AND GENERAL INSURANCE CO LTD
1977 (3) SA
776
(AD) at 780 C – D.
[17] I
shall now examine the facts, evaluate the evidence and apply the
aforesaid principles of law to the facts. Once again it must
be
mentioned that the crucial issue to be decided is whether the
collision occurred on the plaintiff’s correct side of the road
or
the defendant’s.
[18] The
plaintiff testified that he together with Craven attended a golf day
at Reitz. In the evening they attended a function where
trophies
were presented to the top golfers. Dinner was served later on. They
left Reitz at or about 20h30. It was raining quite
heavily. They
were on their way back to Bethlehem. The rain was such a serious
thunderstorm that it made him to put the wipers
of his car in the
fast mode. Visibility was drastically reduced on account of the
heavy rain that he could hardly see beyond three
metres or so. The
road was dark. He was travelling at a speed which fluctuated between
70 kilometres per hour and 80 kilometres
per hour. He drove with the
headlamps of the Camry on dim because switching them on bright
worsened his already diminished field
of vision.
[19] He
drove on the emergency traffic lane. He did so on Craven’s advice.
Because of the diminished visibility caused by the
heavy rain he
used the yellow line as a guideline. He could see the yellow
emergency line better than the white middle line. Most
of the time
he drove completely on the emergency line. However, at times he
would partially move over the yellow line in such a
way that the
yellow line was between the left and the right wheels of his car. He
came across a few cargo carriers travelling in
the opposite
direction. Such heavy vehicles passed without any incident. He was
adamant he never moved over the middle line onto
the wrong side of
the road.
[20] He
testified that as he was driving on his correct side of the road he
saw the lights of another vehicle, which turned out to
be the Monza,
all of a sudden looming up in front of the Camry. He heard Craven
shouting: “lights!!!” The next moment the two
vehicles crashed
into each other there and then on his correct traffic lane. All this
happened within a fraction of a second. He
recalled that the lights
he fleetingly noticed within a split second before the impact came
from the opposite direction more or less
in front of the Camry but
diagonally to its right. At that crucial moment it was impossible
for him to take any evasive action in
order to avoid the accident.
This concluded his direct evidence.
[21] During
his indirect evidence the plaintiff conceded that on his own version
he drove at an excessive speed given the prevailing
circumstances.
Although he could see no more than five metres ahead of him, he
nonetheless drove at a speed of 80 kilometres per
hour. Moreover he
also conceded that had he driven at a much lower speed, he would
probably have been able to avoid the collision.
[22] He
conceded that he was able to see the lights of the other oncoming
vehicles from a distance of approximately 30 meters to 40
metres or
even 50 metres away from him despite the heavy rain. However he was
unable to explain why he did not see the lights of
the insured
vehicle while it was still about 50 metres or 30 metres away from
him. His direct evidence was that he suddenly saw
the lights of the
insured vehicle at the moment they loomed upon him, within a fraction
of a second before the tragic accident.
[23] When
counsel for the defendant suggested to him that if he had kept a
proper lookout, he would have been able to see the lights
of the
insured motor vehicle in good time as he did the others, he was
constrained to agree with the suggestion. He also conceded
that, on
his own version, if he had kept a proper lookout and that if he had
also seen the lights of the insured motor vehicle from
the same
distance as he saw the trucks, he had an extra space on the emergency
lane from the left of his motor vehicle to the gravel
shoulder of the
road which space he could have used in order to avoid a collision.
[24] He
further conceded that he had consumed three glasses of alcoholic
beverages during the course of the long golf day. Notwithstanding
the concessions he denied the suggestion that he moved over the
middle line and thus encroached onto the insured driver’s correct
side of the road at the time when it was unsafe and inopportune to do
so. He maintained that although at times he made certain lateral
movements on the road, he did so on the emergency lane. This
completes the cross-examination of the plaintiff.
[26] Craven
testified for the plaintiff. He stated that he was a stock broker.
He recited their visit to Reitz Golf Club on 29 October
2001. He
confirmed that he was a front seat passenger in the sedan driven by
the plaintiff. They left Reitz between 21h00 and 22h00.
It was
raining heavily.
[27] The
Camry was travelling fast. It was moving over the yellow line, in
other words the yellow line was between its left hand
side wheels and
its right hand side wheels. He paid attention to the yellow line.
He was concerned about the conditions on the
road. It was still
heavily pouring down. The lights of the Camry enabled him to see the
yellow line. He did not see the oncoming
Monza at all. He only saw
its lights. The Monza lights appeared from the front but slightly to
the right hand side. He found it
difficult to say how far the Monza
was when he first saw its lights. He could not recall what evasive
action the plaintiff took
at the critical moment. Suddenly he saw
the lights, the next moment the two sedans collided. All this
happened very very fast.
[28] He
became unconscious as a result of the force of impact. He regained
his state of consciousness on the scene. The first thing
he noticed
was that the plaintiff has shifted from the driver’s seat to the
front passenger’s seat and that he was unconscious.
His attempts
to resuscitate him were to no avail. He realised that the Camry was
in the veld on the side of the road. It was still
raining when he
regained his state of consciousness. The next moment he saw the
police and the ambulance crew on the scene. From
there he and the
plaintiff were rushed to the hospital at Bethlehem.
[29] During
cross-examination he answered that it was easier for him to see the
solid yellow line. He did not thereby mean that he
had a problem
seeing the white middle line. He advised the plaintiff to drive as
close as possible to the yellow line. The yellow
line was on the
left hand side of the Camry. However, now and then the plaintiff
slightly swayed away from the yellow line towards
the white middle
line and back again. He denied the suggestion that the Camry swerved
to the right, crossed the white middle line
and encroached onto the
correct lane of the Monza at the time when it was unsafe and
inopportune to do so. Just before the collision,
as they were
driving, he did not first see faint lights from a distance ahead of
the Camry which were quickly becoming brighter and
brighter. When
the lights suddenly loomed upon their sedan, he hardly had a chance
to warn the plaintiff to swerve to the left to
avoid the collision.
He denied the suggestion that the plaintiff could have avoided the
accident if the had seen the oncoming Monza
while it was still 50
metres or 30 metres away.
[30] He
admitted that in his police statement he stated that the accident
took place at 23h45. He also admitted that he and the plaintiff
consumed some intoxicating drinks together at the braai at the Reitz
Golf Club. Once again he disputed the suggestion that the Camry
drove over the white middle line. The plaintiff’s case was then
closed.
[31] The
defendant opened its case by adducing the evidence of Phinda Edwin
Nyembe. He stated that he was a detective inspector stationed
at
Reitz. He was on standby duty during the night of the accident. He
was home when he received a telephone call pertaining to
the
accident. He drove to the scene. On his arrival he found Inspector
Motaung already on the scene. Motaung showed him two motor
vehicles
as pictured in the photo-album exhibit “A”. He took the court
through the exhibit.
[32] He
began inspecting the scene. The scene was dark. However there were
three sources of artificial light which illuminated the
vicinity, as
would appear from photo 3 exhibit “A”. He noticed broken pieces
of glass on the road on the scene. There was a
great concentration
of glass debris on the traffic lane for the Reitz-bound stream of
traffic than there was on the traffic lane
for the Bethlehem-bound
stream of traffic. The concentration of glass debris was on the
correct lane of the Monza and was about
2 metres from the white
middle line. He made a mental note of the concentration spot. The
last six photos, in other words, photo
2 – 7 were taken after
midnight.
[33] He
returned to the scene in the morning on Tuesday 30 October 2001 with
Inspector K.J. Mokhatla. He placed an orange cone on
the spot where
he saw the dense concentration of glass debris at night. He also
indicated with the aid of cones the pre-accident
direction of the
Camry; the point where it left the road and its final position of
rest. Similarly he also indicated the route of
the Monza. Having
done all these things he caused the scene to be photographed by
Inspector Mokhatla. Photo 1 was then taken from
north to south and
not south to north. He confirmed the measurements were taken by
Inspector Mokhatla. There was some glass debris
in the vicinity
where the Camry left the road. However, the spot marked C on photo 1
was the only area where there was a dense concentration
of glass
debris.
[34] During
cross-examination he answered that he was the investigating officer
and that he was aware that the national prosecuting
authority
declined to prosecute. He arrived on the scene at 00h20 – 00h30 on
Tuesday 30 October 2001. The emergency services
providers were
already on the scene. The survivors had already been removed from
the scene. The occupants of the Monza were already
dead. The scene
was not cordoned off. The road was still open for traffic. He
confirmed that he noticed glass debris on both sides
of the white
middle line. He took no samples of the glass debris. It appeared to
him the Monza had rolled. It was still raining
heavily on his
arrival on the scene.
[35] He again confirmed
that photo 1 was taken in the direction of Bethlehem. He also
confirmed on the scene the road slopes from
west to east. He had no
idea why Inspector Makhatla did not take photographs of the gouge
marks which he observed on the edges of
the road where the motor
vehicles left the road. He had no idea as to who compiled the
statutory accident report. He used a stone
at night to mark the spot
with a dense concentration of glass debris. This concludes Inspector
Nyembe’s testimony.
[36] Gerald
Lemmer testified on behalf of the defendant. He stated that he was a
retired professor in mathematics, applied mathematics
and physics.
He considered himself an expert in his professed field. He confirmed
as true and correct the opinions which he expressed
earlier in the
written summary of his evidence save the factual recording in
paragraph 3. He explained such opinions further.
[37] In paragraph 3 of
his written summary he assumed, inadvertently I must point out, that
the white patch on the road surface on
the western emergency lane
somewhere between the yellow cone and the orange cone was the
concentration of the glass debris referred
to by Nyembe.
Vide
the enlarged photo 1 exhibit “A”. He explained after becoming
aware of the incorrect assumption and the correct position of
the
concentration according to Nyembe that if the evidence of Nyembe was
accepted that he saw the concentration of glass debris around
the
orange cone, the opinions he expressed and the conclusion he arrived
at remained valid and unaffected. It did not make any difference
whether the concentration was where he thought it was or where it
really was according to Nyembe.
[38] He
dismissed the plaintiff’s claim that the collision occurred on the
eastern emergency lane. He also dismissed the possibility
that the
collision could have happened on the plaintiff’s correct traffic
lane. He was of the opinion that none of the alleged
two scenarios
could, according to the laws of physics, be reconciled with the
respective displacement routes of the vehicles after
the physical
impact and the respective positions of their final rest. Both
scenarios, he testified, were also totally at variance
with the
position of the dense concentration of glass debris.
[39] It
was his considered opinion that, unlike the plaintiff’s testimony
and his witness’ testimony, the testimony of the defendant’s
witness, Nyembe, was practically consistent with the objective and
uncontroverted facts. He therefore supported Nyembe’s evidence
as
to the spot he saw and regarded as the possible area of collision.
Nyembe’s version was in accordance with the laws of physics.

Although he recognised that glass debris was an unreliable indicator
of the point of collision, he stated that he could find nothing
in
the law of physics which was at variance with Nyembe’s testimony as
to what he observed on the scene.
[40] During
cross-examination he conceded as a fair proposition to say that one
could not advance a dogmatic assertion where, as in
the present case,
there were some unknown factors. He also conceded that a scientific
view was of much practical value where an
expert who opined it had
visited the scene and inspected it in order to qualify himself as an
expert who can assist the court. He
also confirmed as correct the
comment that he was never on the scene. He answered that he depended
on Nyembe’s testimony.
[41] He
said it was unlikely that the glass debris Nyembe observed at point C
of photo 1 was deposited there by the Monza alone as
it was rolling.
In his opinion the Monza rolled off and not on the road. If it had
rolled on the road it would have left visible
gouge marks on the
tarmac. His opinion was that such glass debris originated from the
two sedans involved in this accident although
no tests were done.
Point C was the centre of the scattered glass debris. The pieces of
glass debris which Nyembe saw on the correct
lane of the Camry could
have landed there as a result of the initial scattering of the glass
debris. There could also have been
a secondary displacement of glass
debris caused by passing motor vehicles. The heavy thunderstorm
water could have washed away the
glass debris which could explain why
glass debris was not visible on the photograph. This concludes
Professor Lemmer’s testimony.
It brings us to the end of the
defendant’s case.
[42] Mr.
Pohl, on behalf of the plaintiff, urged me to find in favour of the
plaintiff. He argued that according to the version of
the plaintiff,
which version was substantially supported by Craven, the collision
took place on his correct side of the road. Therefore,
he submitted
that the insured driver of the Monza was negligent.
[43] But
Mr. Ferreira, on behalf of the defendant, disagreed. He argued that
the version of the plaintiff itself showed that the
plaintiff himself
was negligent and that his exclusive negligence was the sole cause of
the accident. He submitted therefore that
the only inference to be
drawn from all the evidence and the probabilities was that the
collision occurred on the insured driver’s
correct side of the
road.
[44] The plaintiff was
unable to give the court any indication of the approximate area of
the collision which he alleged was on his
correct side of the road.
Like the plaintiff, Craven was also unable to do so. In fact none of
them could identify the scene of
the collision let alone the precise
point or even the approximate spot where the sedans collided.
[45] The
testimony of the plaintiff was that he was driving on the correct
side of the white middle line at all times. From the moment
he set
out until the critical moment of the impact, he never moved over the
white middle line. According to his version, in fact,
he was driving
on the emergency lane on the outer side of the yellow line when the
lights of another vehicle suddenly loomed up on
him.
[46] Craven,
however, testified that the plaintiff did not drive on the emergency
lane. He was quite pertinent that the plaintiff
was driving on his
correct lane, that is to say on the inner side of the yellow line.
[47] Mr. Pohl submitted
that this discrepancy was the kind of difference that one might come
to expect from witnesses who testified
almost four years after an
event had occurred. Mr. Ferreira saw Craven’s testimony as a
complete
volte face
. He submitted that Craven’s evidence
was not only in conflict with the evidence of the plaintiff but was
irreconcilable with the
version put forward by the plaintiff.
[48] In my view the
aforegoing is a material contradiction. It cannot be underplayed as
an insignificant discrepancy in the sense
suggested by Mr. Pohl.
According to Craven his advice to the plaintiff was that the
plaintiff should drive the Monza on his correct
lane but as close as
possible to the yellow line. Apparently the plaintiff did just that
for the greater duration of the trip.
He denied that he advised the
plaintiff to drive on the emergency lane as the latter claimed he
did.
[49] It
is indeed so that Craven was after all only a passenger and the
plaintiff the driver. In general and for obvious reasons
a passenger
does not intently concentrate on where the vehicle is travelling as
the driver does. But that was not the impression
I got here. I am
inclined to think the opposite was the case. I am not persuaded that
the discrepancy underlines their rather truthfulness
and lack of
collusion on the part of the two witnesses. It seems to me that the
plaintiff was somehow trying to make his case appear
stronger than it
really was. Therefore I would go along with Craven on this aspect.
The gentleman, Craven, was more impressive
as a witness than the
plaintiff. He conceded that on one occasion or so the Camry would
slightly move farther away from the yellow
line closer towards the
white middle line.
[50] The
plaintiff’s contrary evidence that he maintained a safe distance on
the yellow line far away from the white middle line
failed to impress
me. I cannot, therefore, accept his evidence that the Monza strayed
so deep onto the correct side of the Camry.
If that was the case,
the Camry would immediately have been knocked off the road. It would
not have been displaced as it was according
to Lemmer. His evidence
that he used the yellow side line as a visual aid to guide the Camry
was not only neutralised by that of
his witness but was further
weakened by a number of telling concessions he made during the course
of his indirect examination.
[51] Among
others, he admitted that visibility was drastically diminished. He
could hardly see well beyond six metres ahead. The
extremely poor
visibility forced him to set the headlamps of his car on a dim mode
because putting them on a bright mode had the
effect of aggravating
the already poor visibility. The accident happened at night. But it
was not an ordinary kind of night for
him as a driver. It was
raining so heavily that he could only manage to slightly notice an
oncoming heavy vehicle when it was at
most 50 metres from him.
Although he saw and came across a few trucks he did not at all see
the insured vehicle approaching. When
he first saw it, its lights
were dangerously looming upon the Camry.
[52] He
could give no sound explanation as to why he belatedly noticed the
insured vehicle. There are two possibilities. He might
have been
busy with something which distracted his attention from the road or
he simply might have had a momentary lapse of concentration
bearing
in mind that he had had a long day at Reitz Golf Club which was
rounded off with a braai in the evening during which he consumed
some
intoxicating beverages.
[53] Craven
was quite concerned about the hazardous conditions which were
prevailing at the time. Among the things which made him
anxious was,
naturally, the speed at which the plaintiff was driving in these
circumstances. It will be recalled that the plaintiff
himself
admitted during intense cross-examination that he was not keeping a
proper lookout and that he was driving at an excessive
speed in the
circumstances. The fact that the worried Craven had to advise the
plaintiff to drive on his correct lane as close as
possible to the
yellow side line and not on the emergency lane itself is not without
significance. Craven might probably have been
prompted to say so by
his realisation that the sideway movements of the speeding Camry
either towards the middle or the edge of the
road were potentially
hazardous and discomforting.
[54] Despite
the aforesaid unfavourable aspects in the evidence of the plaintiff
as well as the material contradiction between his
evidence and that
of his witness, I am not persuaded that the defects individually or
cumulatively considered warrant the impugning
of the plaintiff’s
credibility. His evidence that he did not encroach onto the wrong
side of the road was bolstered by that of
his witness. It is fitting
to describe the latter as an objective, trustworthy and a credible
witness. He was as adamant as the
plaintiff himself that the Camry
did not move over the white middle line. In my view this was a
material corroboration. The only
significant critique which can be
levelled against Craven, was the big discrepancy between his court
testimony and his police statement
as to the time of the accident and
his failure to say why he did not see the Monza earlier.
[55] Nyembe
testified that he saw glass debris on the road. He saw it at night
and in the morning. However, not a single photo was
taken of the
alleged glass debris. Six photos were taken on the scene at night.
However, no debris can be seen on any of them.
No sample of glass
debris was taken and gathered as an exhibit. Mr. Ferreira argued
that the concentration of the glass debris,
which was on the traffic
lane of the Monza, indicated a probable point of collision. However,
Mr. Pohl argued that it did not.
Firstly, he doubted whether there
was any concentration of glass debris on the lane of the insured
driver at all. Secondly, he argued
that even if there was, it was
simply unknown from which vehicle such concentration of glass debris
came.
[56] We
do know, however, that the Monza rolled after the collision and that
its windows were shattered. It may therefore be argued
that such
glass debris could possibly have come from it in the process of
rolling as opposed to it just falling from the vehicle
at the moment
of the collision. However, according to the evidence of Lemmer,
there was no objective evidence to show that the Monza
rolled on the
road. If it did, there would have been gouge marks on the tarmac.
It can therefore be argued that the absence of
such gouge marks
suggests that the concentration of glass debris resulted from the
collision of the two sedans as opposed to the
subsequent rolling of
the Monza. The difficulty is that although Nyembe saw the gouge
marks where the two motor vehicles left the
road and took photos of
such positions, no gouge marks can be seen on the photos. In my view
it has to be accepted that Nyembe did
see glass debris on the scene
and that he did see some gouge marks, although these cannot be seen
on the photos. It is also more
probable than not that such debris
came from the two motor vehicles involved in this accident. Although
it is also conceivable that
the heavy rain would have diminished the
likelihood of the vehicle leaving superficial marks on the road, it
is improbable that it
could completely have prevented every possible
trace of the gouge marks.
[57] Nyembe’s
evidence was that he arrived on the scene almost half an hour after
midnight. He had no idea as to precisely what
time the accident
occurred. Neither the evidence of the plaintiff nor that of the
plaintiff’s witness was helpful in this regard.
On this aspect
there are three marked differences in their testimonies. Nyembe
found glass debris scattered on the scene on both
traffic lanes. The
concentration of the glass debris was at point C on photo 1. If it
is accepted that the accident took place
at the latest at 23h45 as
stated in Craven’s police statement then Nyembe arrived on the
scene approximately 45 minutes afterwards.
During that time
vehicular traffic drove past the scene and would have scattered and
displaced the glass debris from its original
position. In view of
the extremely heavy rain that continued throughout the evening and
even after midnight, it is most likely that
the rainwater would have
done the same. Worse still even after the police and the emergency
service providers had arrived on the
scene, the vehicular traffic was
allowed to traverse both lanes where the glass debris was. These
physical disturbances of the scene
which was not cordoned off,
certainly allowed for further displacements of such glass debris from
its original position immediately
following the impact.
[58] According
to Professor Lemmer, the defendant’s expert witness, it is well
established that glass cannot be used to determine
a point of
collision accurately. It is indicative of a region of collision.
Naturally the above physical interfering factors pertaining
to the
physical displacements of the glass debris, weaken the reliability of
glass as an indicator of the possible point of collision
even
further, in this particular case. It must also be borne in mind that
Lemmer testified that one of the assumptions that he made
in his
report was incorrect because it was based on the wrong information
supplied to him by the attorneys of one of the victims.
The
highlighted patch on the emergency lane in the vicinity of point D of
photo 1 was in fact not the glass debris which Nyembe
referred to in
his testimony. Given the correct information and taking that error
into account, did not radically change the real
picture and his
conclusion, the expert explained.
[59] Lemmer’s
expertise in the reconstruction of motor vehicle collisions was
accepted on behalf of the plaintiff. This expert
witness conceded
that if Nyembe’s evidence about the glass debris was rejected or
ignored, then the collision could have occurred
anywhere on the road
between the final rest positions of the two vehicles. This means
that the opinions he expressed and the conclusion
he arrived at will
necessarily hold no water if, in the opinion of the court, the
concentration of the glass debris seen by Nyembe
did not represent
the original point of impact.
[60] According
to Nyembe point C on photo 1 represented the point of collision.
This is how it was stated in the key to the plan
and repeated in his
testimony. Nyembe is not an expert in the reconstruction of motor
vehicle collisions. In saying that point
C was the point of
collision, he did not thereby project himself as an expert in that
field. He did not claim to be qualified to
render any expert opinion
as to where a point of collision was. The essence of his evidence
was that point C was the spot where
he observed concentration of
glass debris. He saw that as an assistive tool which indicated more
or less the probable area where
the two sedans could have collided.
He did so because no eye witness was on the scene. Indeed he
expressed the opinion of a layman
which has no probative value. He
did not profess to express an expert opinion. It was a layman’s
objective observation on the
scene. It is up to the experts to say
what can be deduced from that observation and for the court to decide
how much evidential
weight can be attached to that observation. It
can never amount to an misdirection by a court of law to rely on a
layman’s direct
observation and to draw some inference from such
direct and objective observation which inference a lay witness is not
competent
to draw. Nyembe’s testimony that he found glass debris
on the scene was interpreted by an expert debated by the lawyers and
only
the court, in the final analysis, has to decide whether the
inference which the defendant seeks to be drawn from it, is the only
reasonable and legitimate inference that can be drawn on the facts.
[61] Lemmer quite fairly
conceded that his evidence as an expert should be approached by the
court, in essence, in the manner as highlighted
by Eksteen AJP, as he
then was, in the case of
MOTOR VEHICLE ACCIDENT ASSURANCE FUND
v KENNY
1984 (4) SA 432
(ECD) at 436 – 437. Direct
evidence adduced by an eye witness which is both credible and
probable is preferred to that of an expert
witness.
[62] I
have previously referred to certain unsatisfactory and unfavourable
aspects pertaining to the testimony of Nyembe. He was
the
investigating officer. However, his gathering of the evidence, his
processing of the information so gathered and his investigation
of
the collision as a whole can only be described as regrettably poor.
For instance he failed to ensure that the photographer, Mokhatla,
took a photo of the glass debris at night before it was disturbed and
washed away. He returned to the scene the next morning because,
among other reasons, he went out there at night ill-equipped. He had
no reflective cones to use. He was forced to rely on a mental
note
and a stone. It still baffles me as to how one makes a visible mark
on a wet tarmac with a stone. He failed to cordon off
the scene in
order to preserve and to secure vital evidence, such as the gouge
marks among others. He failed to take samples of
the glass debris
from the road and the vehicles involved in order to establish the
origin of the glass debris he saw on the road
by forensic means.
Notwithstanding all these unfavourable aspects I am not prepared to
say that he was such a poor witness on whose
evidence little or no
reliance should be placed.
[63] It
was his evidence that he deemed the presence and the locality of the
glass debris important. The fact that he did not have
such
concentration of glass debris immediately photographed by his
colleague, Mokhatla, does not without more justify a finding that
he
was an untruthful witness. As I understood him he wrongly thought
Mokhatla had taken a photo of the concentration of glass debris.
He
was careless in making that wrong assumption without first verifying
it with Mokhatla before he left the scene at night. His
direct
evidence was that he made a mental note of where the concentration of
glass debris was before he left the scene at night.
The next morning
he returned to the scene with Mokhatla and took a photograph of the
spot where the concentration of glass debris
was. During
cross-examination he went a step further and stated that he made a
mark on the road to indicate not only where the glass
debris was, but
also where, for instance, the vehicles left the road. I do not see
that as a material contradiction to warrant the
rejection of his
evidence or to doubt his credibility. It is not correct in my
opinion to argue, as Mr. Pohl did, that if his evidence
was true that
he made a mark on the road surface, then it was even more strange
that no photo was taken of this mark. Of course
the photos of all
the marks he made were taken. In having the photos taken the focal
point of the exercise was not the marks themselves
that he made the
previously night, but the points where those marks were made and what
their relevant significance was to the collision
we are here
concerned with.
[64] I
have already said enough about Nyembe’s late arrival on the scene.
The scene was not cordoned off; traffic was allowed to
move in both
directions; the rain was pouring down; the police vehicles, the
traffic vehicles and the emergency vehicles were also
on the scene.
It is only logical that these vehicles and their personnel to a
greater or a lesser degree would also have disturbed
and scattered
the glass debris. No doubt the physical displacement of the glass
debris continued throughout the night until Nyembe
and the
photographer returned to the scene the next morning. By then the
corrosive effect of the aforesaid variety of both human
and natural
elements had remarkably disturbed the scene even further.
[65] I
do not, for a moment, doubt that Nyembe’s evidence that there was
glass debris on the scene has to be accepted as true.
His evidence
that the next morning there was far less glass debris due to the
aforesaid corroding factors is also understandable.
Accordingly it
follows that it must necessarily be accepted as an accomplished fact
that there was scattering and physical displacement
of such glass
debris. The original scattering of glass on impact was followed by
the subsequent displacements by the corroding agencies
I have already
mentioned above. The moment that is accepted it follows that the
spot where Nyembe saw the concentration of glass
debris can never
serve as conclusive proof of the original point where the two sedans
collided. How far away from the original position
the glass debris
could have gravitated, is difficult to say. The gradient of the
tarmac on the scene from east to west probably
could also have
accelerated the process of physical displacement of the glass debris.
[66] One
of the most important pieces of evidence adduced on behalf of the
defendant was Lemmer’s concession that if you think away
or ignore
the physical spot of the concentration of the glass debris Nyembe
testified about, then the collision could have taken
place anywhere
on the road tarmac on any of the two lanes somewhere between the
final rest positions of the two vehicles. It follows
naturally,
therefore, that if it is accepted that the two vehicles could have
collided anywhere on that stretch of the road then
the collision
could implicitly have occurred on the correct lane where the Camry
was travelling as Craven testified.
[67] Although
Craven was the better of the two witnesses, the plaintiff did not
fair badly. He narrated his story in a logical, chronological
and
simple manner. He readily made reasonable concessions. He was
polite and courteous. He projected the demeanour of a credible
and
truthful witness. Craven, as I have said, was even better in all
those departments. I can make no seriously adverse or unfavourable
findings concerning his trustworthiness.
[68] Neither
the plaintiff nor his witness gave a flawless account of course.
Their evidence can be criticised in certain respects.
I have already
mentioned some of those. On the whole, however, their evidence can
in brief be described as direct, probable, credible
and reliable as
to what probably happened during the collision. I could find nothing
so inherently improbable to justify the wholesale
rejection of their
version.
[69] As
regards Nyembe he was, of course a latecomer on the scene. Despite
the unfavourable aspects of his evidence which in my opinion
were due
to lack of experience more than anything else, his evidence was
credible and reliable to an extent. So was the defendant’s
expert
witness, Lemmer.
[70] It is important to
bear in mind the following: Observation by Eksteen AJP in
MOTOR
VEHICLE ACCIDENT ASSURANCE FUND v KENNY
1984 (4) SA 432
(ECD)
at 436 H to 437 B:
“
Direct
or credible evidence of what happened in a collision, must, to my
mind, generally carry greater weight than the opinion of
an expert,
however experienced he may be, seeking to reconstruct the events from
his experience and scientific training. Strange
things often happen
in a collision and, where two vehicles approaching each other from
opposite directions collide, it is practically
impossible for anyone
involved in the collision to give a minute and detailed description
of the combined speed of the vehicles at
the moment of impact, the
angle of contact or of the subsequent lateral or forward movements of
the vehicles. Tompkins' concession,
therefore, that there are too
many unknown factors in any collision to warrant a dogmatic assertion
by an expert as to what must
have happened seems to me to have been a
very proper one. An expert's view of what might probably have
occurred in a collision must,
in my view, give way to the assertions
of the direct and credible evidence of an eyewitness. It is only
where such direct evidence
is so improbable that its very credibility
is impugned, that an expert's opinion as to what may or may not have
occurred can persuade
the Court to his view.”
[71] Although Lemmer was
certainly a good and credible witness his expert evidence can never
be preferred over the good, direct, credible
and reliable evidence of
the only eye witnesses. The scientific foundation of his evidence
was shaken by the aforesaid unsatisfactory
features of Nyembe’s
evidence. I have already dealt with those. If this is ultimately
accepted, as I think it should, then it
follows that the matter has
to be decided on the version proffered by and on behalf of the
plaintiff.
[72] It
was put to the plaintiff during his indirect examination that he
failed to keep a proper lookout and that had he been keeping
a proper
lookout he would have been able to avoid the collision. The
plaintiff conceded this proposition.
[73] As regards a
driver’s failure to keep a proper lookout it is necessary to have
proper regard to the decision of
GUARDIAN NATIONAL INSURANCE CO
LTD v SAAL
1993 (2) SA 161
(C). The principle was succinctly
summarised in the headnote as follows:
“
Held,
that in order to recover damages against the appellant the onus had
been on the respondent to prove on a balance of probabilities
that M
had driven negligently and that his negligent driving had caused or
contributed to the collision.
Held, further, that the finding by the
trial Court that M had not been keeping a proper lookout at the time
of the collision was not
sufficient to render the appellant liable,
since respondent had to prove that M's failure to keep a proper
lookout was causally connected
with the collision, the critical
question being whether M ought reasonably to have become aware
thereafter, at a stage when effective
avoiding action could still be
taken, that the pick-up truck was not going to stop.
Held,
further, that the respondent had to prove that, had M reacted when
the reasonable man would have reacted, the collision would
probably
not have occurred.”
[74] It has to be borne
in mind that the evidence of the eye witnesses was that when the
lights of the Monza loomed up in front of
them, the collision
occurred in the blink of an eye thereafter. The gist of this was
therefore that there was absolutely no time
within which the
plaintiff could have taken any evasive action to avoid the tragic
accident. He virtually had no adequate time for
reactive action.
The driver’s ability to avoid an accident depends among other
factors, on the speed of the vehicles approaching
each other. In
this case we know that the Camry, driven by the plaintiff, was
travelling at the high speed of 80 kilometres per
hour and that the
Monza driven by the insured driver was travelling at an even higher
speed. Before the Monza there was no evidence
that any other sedan
approached the Camry from the front and safely passed it. The
evidence showed that the plaintiff and his witness
were able to see
the trucks. It may well be that this was so because of their size
and the many lights which trucks sometimes have
as compared to the
small sedans. There is, therefore, no concrete proof that the
plaintiff should have seen the Monza earlier and
that if he had seen
it he would have been able to take appropriate action to avoid the
collision.
[75] Notwithstanding the
plaintiff’s concession to the contrary I have serious reservation
as to whether given the distance remarkably
short distance between
the two vehicles when he first became aware of the Monza and the
limited time within which he had to react
he could have taken any
reasonable and practical steps to avoid the accident. See
DIALE
v COMMERCIAL UNION ASSURANCE CO OF SA LTD
1975 (4) SA 572
(A)
where at 578 E – F the court said the following:
“
Nevertheless,
assuming in plaintiff's favour that there was a culpable delay on
Harmsen's part, I am of the view that plaintiff failed
to establish
that this was causally connected with the collision, in the sense
that, had Harmsen reacted when the reasonable man
would have reacted,
the collision would probably not have occurred. If hitherto one has
been beset by imponderables and uncertainty,
now one enters the field
of pure speculation. It was submitted by plaintiff's counsel that,
had Harmsen commenced braking appreciably
earlier, the station wagon
would have been retarded sufficiently to enable the cyclist to pass
safely in front of the station wagon;
and that, accordingly, no
collision would have occurred.”
[76] In
McMURRAY v
H L & H (PTY) LTD
2000 (4) SA 887
(N) the court in pretty
much a similar way had this to say about the reasonable man:
“
One
knows that the reasonable man generally expects and is entitled to
expect reasonableness rather than unreasonableness, legality
rather
than illegality, from others. (
Solomon
and Another v Musset and Bright Ltd
1926 AD 427
at 433;
Moore
v Minister of Posts and Telegraphs
1949 (1) SA 815
(A) at 826.) The reasonable man certainly does not in
general regard himself as obliged to take steps to guard against
recklessness
or the gross negligence of others. (
South
African Railways and Harbours v Reed
1965 (3) SA 439
(A).) Obviously this also applies to the criminal
conduct of others. It goes without saying that this notional
reasonable man generally
complies with the law and always acts
reasonably. We know that the reasonable man is not a timorous
faintheart, always in trepidation
lest he or others suffer some
injury; on the contrary, he ventures out into the world, engages in
affairs and takes reasonable chances.
He takes reasonable precautions
to protect his person and property and expects others to do likewise
(per Van den Heever JA in
Herschel
v Mrupe
1954 (3) SA 464
(A) at 490F).”
[77] If it is accepted
that the collision took place on the plaintiff’s correct side of
the road, and I do not say that it did,
then the
maxim res ipsa
loquitor
applies. In this regard it is then necessary to have
regard to the decision of
ARTHUR v BEZUIDENHOUT AND MIENY
1962 (2) SA 566
(A) at 573 C – H:
“
I
am of opinion that on the facts of the present case the maxim may
rightly be applied. For, when plaintiffs proved that defendant's
truck for no apparent reason suddenly swerved on to its incorrect
side there to collide with their truck, plaintiffs proved facts
from
which an inference of negligence against defendant may, in the
absence of any explanation, be drawn -
res
ipsa loquitur
.”
[78] In the case of
SARDI
AND OTHERS v STANDARD AND GENERAL INSURANCE CO LTD
1977 (3)
SA 776
(A) the court had this to say about the
maxim res ipsa
loquitor
:
“
In
this Court, in seeking to establish negligence of the driver of the
insured vehicle, counsel for the appellant referred to the
fact that
he swerved across the road. Wherefore counsel relied on the
maxim
res ipsa loquitur
(the thing speaks for itself). He submitted that it was for the
respondent to adduce sufficient evidence to overcome the prima facie
effect of the evidence that Coxon drove on to the incorrect side of
the road. The maxim has no bearing on the incidence of the onus
of
proof on the pleadings. It is invoked where the only known facts,
relating to negligence, consist of the occurrence itself;”
[79] In the instant case
I am unable to find that the collision was occasioned by the
exclusive negligent driving of Bothma, the insured
driver. On the
version presented on behalf of the plaintiff the direct evidence of
the plaintiff’s credible and reliable witness,
was that at once
stage or another the Camry driven by the plaintiff made certain
lateral movements away from the yellow line closer
to the white
middle line. He conceded that at one stage the Camry, in fact, moved
over the white middle line. It is therefore conceivable
that the
collision could as well have taken place at that critical moment when
the Camry was on the wrong side of the road. Therefore
it is just as
possible that the collision could have taken place either on the
correct lane of the plaintiff or on the correct lane
of the insured
driver.
[80] In the absence of
any credible and reliable evidence that only the Monza and not the
Camry deviated from its correct lane and
crossed the middle line, the
maxim res ipsa loquitor
cannot assist the court to determine
whose driving negligence caused the accident. I am unable to infer,
on the facts, that the only
reasonable and legitimate inference that
can be drawn is that the collision occurred on the correct lane of
the Monza as Mr. Ferreira
contended that I should. Seeing that I am
unable to find whether or not the collision occurred on the
plaintiff’s correct side
of the road or on the insured driver’s
correct side of the road, I have come to the conclusion that the
collision probably took
place in the middle of the road on the white
centre line.
[81] In that situation
both counsels before me were
ad idem
that an apportionment of
50/50% would be fair and appropriate in the circumstances. See
VAN
ECK v SANTAM INSURANCE CO LTD
1996 (4) SA 1226
(C). In my
view the collision was not occasioned by the exclusive negligent
driving of either the insured driver or the plaintiff.
To find
otherwise would amount to doing injustice to the facts and the
evidence. It seems to me to be fair to find that both drivers
were
equally negligent and that their joint negligence equally contributed
to the occurrence of the collision.
[82] Accordingly
I make the following order:
The defendant is liable
for 50% of the plaintiff’s proven or agreed damages.
The defendant is also
liable for the plaintiff’s costs to date.
______________
M.H. RAMPAI, J
On
behalf of the plaintiff: Mr. L.L. Pohl
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Adv. A.C. Ferreira SC
Instructed
by:
Israel
Sackstein Matsepe
BLOEMFONTEIN
/sp