Buitendach and Another v Road Accident Fund (3343/04) [2007] ZAFSHC 7 (18 January 2007)

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[2007] ZAFSHC 7
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Buitendach and Another v Road Accident Fund (3343/04) [2007] ZAFSHC 7 (18 January 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 3343/04
In
the matter between:-
BONITA
BUITENDACH
First Plaintiff
MIA
THEO RESETTE BUITENDACH
Second Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
______________________________________________________________
HEARD
ON:
22 SEPTEMBER 2006
_____________________________________________________
JUDGMENT
BY:
RAMPAI J
_____________________________________________________
DELIVERED
ON:
18 JANUARY 2007
_____________________________________________________
[1] The plaintiff jointly
sued the defendant for damages in order to recover compensation
following the injuries which the first plaintiff
sustained in a road
accident. The proceedings primarily concern the first plaintiff.
She was a minor at the time. The second plaintiff
was her mother and
natural guardian. At the instance of the defendant, Willem Johannes
Smit, was later joined as a third party to
this action. The parties
agreed to have the merits and the quantum separately adjudicated. By
agreement
inter partes
, therefore, I sanctioned the separation
in terms of Rule 33(4).
[2] The above ruling in
essence entailed that a determination be made of the issues as
contained in paragraph 4 and paragraph 5 of
the plaintiff’s summons
as opposed to the issues contained in paragraph 4 of the defendant’s
plea. In addition the ruling required
that I also make a
determination of the issues as contained in paragraph 10 and
paragraph 11 of the defendant’s third party notice
as opposed to
paragraph 6 of the third party’s plea. The defendant’s third
party plea, it must be stressed right from the onset,
concerns the
defendant’s claim and not the plaintiff’s claim.
[3] Four
persons testified during the hearing. Two of them testified on
behalf of the plaintiffs. They were the first plaintiff
herself,
Bonita Buitendach and Willem Johannes Smit, in other words the third
party. The remaining two witnesses, Zenzile Peter
Makhanda and
Silone Petrus Khamali testified for the defendant. No evidence was
adduced on behalf of the third party. I reserved
judgment after
hearing argument.
[4] A
cursory resumé of the pleadings will do. In the first place the
plaintiffs alleged that a road accident took place in Bloemfontein
on
13 July 2001. The collision was between a motor vehicle with
registration number PKW 170 FS driven by the said Makhanda, the
first
insured driver and a motor vehicle with registration number OB 250185
driven by the said Smit, the second insured driver.
The first
plaintiff was a front passenger in the latter motor vehicle. These
averments were admitted by the defendant.
[5] The
plaintiffs further alleged that the aforesaid collision was
occasioned by the exclusive negligence of the first insured driver
or
the exclusive negligence of the second insured driver or the joint
negligence of both drivers.
[6] The plaintiffs stated
eight grounds on which they relied for the negligence they attributed
to the first insured driver. The
most important of them all, in my
opinion, was that the first insured driver crashed into the rear of
the second insured driver’s
stationary motor vehicle.
Vide
paragraph 4 of the summons. The defendant denied all the eight
grounds relied upon.
[7] The plaintiffs stated
seven grounds as regards the alleged negligence of the second insured
driver. Of the seven grounds, the
most important in my opinion, was
that the second insured driver changed lanes and in the process
swerved in front of the first insured
driver’s motor vehicle.
Vide
paragraph 5.1.6 of the summons. The defendant essentially admitted
almost all the seven grounds of negligence the plaintiffs attributed
to the second insured driver.
[8] In the second place,
the defendant pleaded that the said collision was caused by the sole
negligence of the second insured driver
and denied any negligence
whatsoever the plaintiffs attributed to the first insured driver.
The principal ground of the second insured
driver’s negligence was
that he changed lanes and swerved in front of the motor vehicle
driven by the first insured driver at the
time which was both unsafe
and inopportune.
Vide
paragraph 4 of the defendant’s plea
read with paragraph 10 as well as paragraph 11 of the third party
notice.
[9] In
the third place, the third party pleaded against the defendant’s
claim that the exclusive negligence of the first insured
driver was
the sole cause of the accident. He relied on four grounds. He
specifically denied there was any negligence on his part.
He alleged
that the first insured driver sped down the street to beat the
traffic lights without paying proper attention to the
traffic on the
other side of the traffic lights where the motor vehicle driven by
the third party was stationary.
[10] In
the light of the above summarised allegations as extrapolated from
the pleadings, it becomes patently clear that the crucial
issue is
how the collision happened. This is the single and most important
factual dispute between the plaintiffs and the defendant.
The same
issue is also a bone of contention between the defendant and the
third party
[11] There
are many facts which are not in dispute. The accident occurred at or
about 16h45 in Church Street. Makhanda, a member
of the police
service, was driving a blue Toyota Corolla owned by the SAPS. Smit,
a member of the civilian society, was driving
a red Ford Laser owned
by his mother. The scene of the accident was in the vicinity of the
intersection formed by Church Street
and Harvey Road. The point of
collision was on the inner lane of the southbound carriageway as
would more fully appear from exhibit
“A”, the photo album. The
two sedans were travelling southwards. Makhanda’s Toyota Corolla
sedan collided with Smit’s Ford
Laser sedan from behind. The
Toyota was damaged in front and the Ford at the back. The first
plaintiff was injured.
[12] After the collision
the final rest positions of the sedans were in a straight line
parallel to a cement traffic island separating
the two carriageways.
A stationary white minibus taxi with a trailer was seen on the same
inner lane of the southbound carriageway
of Church Street. It was
right in front of the Ford Laser at the time it was seen. The police
attended the scene, interviewed the
two drivers, took photographs,
obtained statements from the drivers as well as the passengers,
compiled the statutory accident report
and the key thereto.
Vide
exhibits “B”, “C”, “D”, “E” and “F”.
[13] The extent of the
defendant’s delictual liability towards the first plaintiff depends
on three possible scenarios. From the
above facts and the pleadings
one of the following scenarios may emerge after the analysis of the
evidence. Firstly, if the plaintiff
proves 1% of the alleged
negligence on the part of Makhanda, the defendant will be liable to
compensate the first plaintiff 100%
of all such damages as the first
plaintiff may prove in the quantum mini trial later. There is no
statutory ceiling as to the quantum
she can recover.
Vide
section
17(1) Act No. 56/1996. The same legal position will obtain if both
drivers are found to have been negligent. However, if
the plaintiff
fails to prove that the said first insured driver was negligent in
any manner whatsoever, the plaintiff will recover
nothing from the
defendant through Makhanda’s avenue, since the court would then
have found no causal connection between the victim
and the particular
driver on the basis of which the defendant can be held liable.
[14] Secondly,
if the court finds that the accident was occasioned by the exclusive
negligence of the second insured driver and that
the first insured
driver was not at all negligent, then the plaintiff will still
recover some compensation from the defendant through
Smit’s avenue
of negligence. In this instance, however, the defendant’s
delictual liability will be limited to R25 000,00 only
and in respect
of special damages only. Section 18(1)(b) would apply to the
plaintiff since she was a social passenger in the offending
vehicle
that was driven in a negligent manner by Smit. The slightest degree
of at least 1% negligent attributable to Smit will be
enough.
[15] Thirdly,
if the court finds that neither the first insured driver nor the
second insured driver was negligent, then in such a
rare but
conceivable event, the plaintiff will not recover anything from the
defendant. In such a scenario the liability of the
defendant would
be virtually zero. This would be so because the requisite connective
cause of action would be missing between the
plaintiff and the
defendant. Unless the court makes such a finding therefore, the
plaintiff will be entitled to a ruling in her
favour on the merits.
[16] As
regards costs the parties agreed at the pre-trial conference that it
was not necessary to have the case transferred to any
other court.
Therefore they accepted this court as a competent forum for the
adjudication of their dispute. This entailed that
the High Court
tariff of costs will be applicable. See paragraph 6 Rule 37 minutes
on p. 98.
[17] The
plaintiff bears the onus of establishing on a balance of
probabilities that the negligence of Makhanda, the first insured
driver, alternatively Smit, the second insured driver, was the
primary cause of the accident. Similarly the defendant bears the
onus of proving that the negligence of the third party was also the
cause of the collision.
[18] In the case of
NATIONAL EMPLOYERS' GENERAL INSURANCE CO LTD V JAGERS
1984 (4) SA 437
(ECD) at p. 440 D – G Eksteen J said:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where there are two
mutually destructive
stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities that his version
is true and accurate
and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken
and falls to be rejected. In
deciding whether that evidence is true or not the Court will weigh up
and test the plaintiff's allegations
against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a consideration
of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will accept his version
as
being probably true. If however the probabilities are evenly balanced
in the sense that they do not favour the plaintiff's case
any more
than they do the defendant's, the plaintiff can only succeed if the
Court nevertheless believes him and is satisfied that
his evidence is
true and that the defendant's version is false.”
[19] At p. 440 G – H
the honourable Judge carried on as follows about the correct approach
a court has to adopt in dealing with
the role of probabilities and
credibilities in determining whether the party bearing the onus has
or has not discharged such onus:
“
This
view seems to me to be in general accordance with the views expressed
by COETZEE J in
Koster
Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en
Hawens
(
supra
)
and
African
Eagle Assurance Co Ltd v Cainer
(
supra
).
I would merely stress however that when in such circumstances one
talks about a plaintiff having discharged the onus which rested
upon
him on a balance of probabilities one really means that the Court is
satisfied on a balance of probabilities that he was telling
the truth
and that his version was therefore acceptable. It does not seem to me
to be desirable for a Court first to consider the
question of the
credibility of the witnesses as the trial Judge did in the present
case, and then, having concluded that enquiry,
to consider the
probabilities of the case, as though the two aspects constitute
separate fields of enquiry. In fact, as I have pointed
out it is only
where a consideration of the probabilities fails to indicate where
the truth probably lies, that recourse is had to
an estimate of
relative credibility apart from the probabilities.”
[20] When a court is
called upon to determine which of the two drivers was negligent in
the manner he was driving a motor vehicle
at the time of the
particular accident, the court is essentially called upon to consider
the evidence at hand and by a process of
inferential reasoning arrive
at a certain conclusion. In
RONDALIA ASSURANCE CORPORATION OF
SA LTD V MTKOMBENI
1979 (3) SA 967
(AD) at 972 A – D Galgut
AJA said:
“
Negligence
can only be attributed by examining the facts of each case. Moreover,
one does not draw inferences of negligence on a piecemeal
approach.
One must consider the totality of the facts and then decide whether
the driver has exercised the standard of conduct which
the law
requires. The standard of care so required is that which a reasonable
man would exercise in the circumstances and that degree
of care will
vary according to the circumstances. In all cases the question is
whether the driver should reasonably in all the circumstances
have
foreseen the possibility of a collision.”
[21] The duty of a driver
to keep a proper lookout was said to embrace two important practical
dimensions:
“
The
duty of a motorist to maintain a proper lookout involves not only the
physical act of looking, but also a reasonably prudent reaction
to
whatever might be seen. (See
Corpus
Juris Secundum
vol 60A - 284 (3) – note 47.)”
Vide
BRIDGMAN NO v ROAD ACCIDENT FUND
2002 (1) ALL SA 1
(CDP) p. 9 (f) per Nel J.
[22] The
legal principle which obtains where one motor vehicle collides with
another motor vehicle ahead is stated as follows:
“
Proof
that a motor vehicle in a stream of traffic, collided with the
vehicle ahead is
prima
facie
proof of negligence. A driver must anticipate the possibility of a
vehicle travelling ahead in a stream of traffic stopping suddenly.
A
following driver is thus under a duty so to regulate his speed and
his distance from the vehicle ahead as to be able to avoid
a
collision should the vehicle ahead stop suddenly. If the driver of
the following vehicle is unable to do so and a collision results,
the
inference is that he was either travelling too closely to the vehicle
ahead or too fast or that he was not keeping a proper look-out.”
Vide
Cooper:
Motor Law
, (1996) ed p. 102 and the authorities there cited.
[23] Whenever one motor
vehicle collides with another from behind it necessarily leads a
reasonable man or a woman to draw an inference
that the rear motor
vehicle was travelling too close to the front motor vehicle; or that
it was speeding or that its driver was not
keeping a proper lookout.
See
Cooper
supra
.
In
UNION AND SOUTH
WEST AFRICA INSURANCE CO LTD v BEZUIDENHOUT
1982 (3) SA 957
(AD) at 965 A – C Viljoen JA said:
“
Ek
stem in die algemeen saam met die betoog. Hierteenoor is ek egter van
oordeel dat 'n redelike versigtige motorbestuurder in spitsverkeer
nie maar, solank hy in sy baan bly, origens op 'n onagsame wyse
outomaties kan voortbestuur teen 'n spoed wat die ander voertuie
voor
hom handhaaf en nie oplet of ander verkeer skielik stadiger ry of
slegs stop nie. Alhoewel die redelike versigtige motorbestuurder
nie
teen roekelose gedrag van ander motorbestuurders hoef te waak nie
(kyk
Griffiths
v Netherlands Insurance Co of SA Ltd
1976 (4) SA 691
(A) te 697B - C) behoort hy desnieteenstaande te
voorsien dat die verkeer voor hom, om watter rede ookal, skielik mag
stadiger beweeg
of selfs tot stilstand kom en het hy 'n plig om sy
optrede hiervolgens in te rig. Hoe nader so 'n motorbestuurder aan
die voertuig
voor hom ry, hoe groter, meen ek, is sy verpligting om
waaksaam te wees.”
[24] The evidence of the
first plaintiff was that the accident took place on the inner lane
between the traffic lights and a bridge
over a railway track at or
about 17h00 on 18 July 2001. She was from her parental home in
Church Street at Ehrlichpark to Hamilton
Industria to see her
boyfriend’s mother. She was a front passenger in the second
insured sedan, the Ford Laser. This motor vehicle
was travelling
from north to south on the inner lane in Church Street. Shortly
after crossing Harvey Road the Ford Laser had to
stop because there
was a stationary motor vehicle on the same inner lane where the
second insured motor vehicle was travelling.
The first insured
vehicle came and crashed into the rear of the stationary motor
vehicle. She did not see it as it was approaching
their stationary
car from behind.
[25] During
cross-examination she admitted that she and Smit were lovers then.
She denied the suggestion that the Ford Laser was
initially
travelling fast on the outer lane; that it suddenly swerved from the
outer lane onto the inner lane in front of the Toyota
Corolla and
that it suddenly stopped. She maintained that the Ford Laser was
always on the inner lane from the Harvey Road intersection
until the
scene of the accident at the foot of the bridge. It was a certain
minibus taxi with a trailer which forced Smit to bring
the Ford Laser
to a standstill on the road. There was heavy vehicular traffic on
the outer lane which was why Smit had to stop behind
a stationary
taxi instead of overtaking it on the left. The Ford Laser was
ultimately going to turn right in order to leave Church
Street. The
Ford Laser was moving at a normal speed and not speeding before or at
the time of the collision. There was nothing
Smit could do to avoid
the accident.
[26] Smit,
the second insured driver, adduced evidence on behalf of the first
plaintiff. He testified that he lived at Pellissier.
The second
insured vehicle was owned by his mother who worked at Hamilton. He
had to pick her up. He and the first plaintiff were
lovers then. He
first drove to the first plaintiff’s home in Church Street where he
picked her up. From there he and the plaintiff
drove out together to
fetch his mother. He had to stop on the scene because the stationary
minibus was obstructing the inner lane
where he was driving. He was
unable to pass the taxi because of the concrete traffic island on the
right hand side and the heavy
traffic stream on the left hand side or
the outer lane. He noticed in the mirror the first insured vehicle
approaching a second
insured vehicle from behind at a high speed.
All he could do was to apply the brakes of the Ford Laser in order to
prevent it from
been pushed forward by the force of impact. He did
so to prevent a possible secondary collision between the Ford Laser
and the taxi
trailer. There was nothing he could do to avoid the
collision between the two sedans.
[27] During
his indirect examination by Mr. J. Zietsman, counsel for the
defendant, he answered that the point of impact was approximately
12
metres south of Harvey Road traffic lights. The collision took place
soon after he had stopped behind a taxi. He confirmed that
he
subsequently made two police statements and that he stated the
grounds of Makhanda’s negligence. He admitted a few differences
between his court testimony and his police statement as well as
certain discrepancies between his direct examination evidence and
indirect examination evidence. He admitted that anyone reading his
police statement would get the impression that he did not see
the
Toyota Corolla before the collision. He denied the suggestion that
he changed lanes at the time it was inopportune and unsafe
to do so.
He, in fact, repeated that he never changed lanes anywhere between
Harvey Road and the scene. It was put to him that
he came speeding
on the inner lane; that he quickly swerved right; that he moved over
the lane boundary; that he encroached on the
inner lane where the
Toyota Corolla was moving and that he unexpectedly slammed the
brakes. He denied the suggestion as untrue.
The Toyota Corolla
jumped the red light, he claimed. He later conceded during intense
cross-examination by Mr. J. Zietsman that
he made an assumption on
this point and that he, in fact, did not see Makhanda disobeying the
red traffic lights. He answered that
he did not actually see the
taxi and that he merely saw the trailer.
[28] During
a somewhat friendly cross-examination by Mr. P. Zietsman, which came
as no surprise, Smit stated that although it was
already dusk a
person could still see stationary vehicles on the road. If he was
driving on the outer lane he would not have swerved
to the right in
order to avoid an obstruction on that lane. Makhanda did not blame
him for the accident while they were still on
the scene. There were
about two metre brake marks on the tarmac behind the first insured
motor vehicle. This completes the evidence
adduced in favour of the
plaintiff.
[29] The
defendant’s case was then opened. The first witness who adduced
evidence on behalf of the defendant was Makhanda. He
testified that
he was a police sergeant. He was on his way from Park Road Police
Station to Trade Centre to obtain a statement from
a witness. He was
with his colleague Inspector Khamali. He drove from north to south
down Church Street. He stopped at the intersection
of Harvey Road.
The traffic lights were red against him. When they turned green he
drove off. He was driving on the outer lane
towards the bridge.
Shortly after crossing the intersection he spotted the second insured
vehicle overtaking the first insured vehicle
on the left hand side.
Suddenly the second insured vehicle changed lanes, swerved to the
right hand side, moved over a traffic lane
demarcation line,
encroached onto the inner lane where he was travelling and quickly
stopped. He could do nothing to avoid the accident.
He saw the taxi
on the same lane, but in front of the second insured motor vehicle
after the collision.
[30] During
cross-examination by Mr. P. Zietsman he answered that he did not
proceed to do his detective work at Trade Centre after
the accident.
He denied the suggestion that the second insured vehicle, driven by
Smit, was moving in front of the first insured
vehicle at all
material times. He repeated that the Ford Laser was moving on the
outer lane immediately before the collision. At
the time the Ford
Laser overtook him he was not aware of the taxi which had stalled on
his inner lane. At that moment he thought
the taxi was still in
motion. He estimated that he was driving at a speed of 50 – 60
kilometres per hour and Smit at a speed of
80 – 100 kilometres per
hour. The point of collision was approximately 16 – 20 metres from
the traffic lights. He was not certain
whether he slammed the brakes
in such a manner that the Toyota Corolla left the tyre brakes marks
on the tarmac or not. He confirmed
that his police warning statement
did not reflect his complete version. He denied the suggestion that
his account was false and
Smit’s true.
[31] During
cross-examination by Mr. Daffue, counsel for the plaintiffs, he
denied the suggestion that he put forward a false version
in a bid to
avoid civil claims or criminal prosecution or internal police
disciplinary action. He admitted that he did not know
why Smit
stopped in front of him. He did not know how much space Smit had
between the Toyota Corolla and the taxi to execute the
manoeuvre he
executed. He denied that he was negligent.
[32] Khamali
also adduced evidence on behalf of the first defendant. His direct
evidence was substantially similar to the version
of Makhanda. He
added nothing new as regards the central issue, which was and still
is how the second insured vehicle landed on
the scene.
[33] During
cross-examination by Mr. P. Zietsman he answered that Makhanda told
him he was driving in the direction of Rocklands.
He did not know
why Makhanda had testified that he was on his way to Trade Centre.
There were no tyre brake marks caused by Makhanda’s
motor vehicle
on the tarmac. He did not notice whether or not Makhanda applied the
brakes. He did not ascertain whether Smit did
so or not. He denied
that his testimony was untrue.
[34] During
cross-examination by Mr. Daffue he admitted that by only looking at
the photographs, which showed the two motor vehicles
one directly
behind the other on a straight line parallel to the traffic island,
the immediate impression a person could get was
that they were
travelling in the same direction on the same lane. He denied that
Makhanda asked him to make a statement favourable
to him about the
accident. He also denied he was falsely trying to protect his
colleague. He admitted that if he was the driver
of the first
insured motor vehicle he would have applied the brakes in order to
avoid colliding with the second insured motor vehicle
from behind.
He admitted he would not have bumped the first insured motor vehicle
in the circumstances. He also admitted that if
Makhanda had seen the
stationary taxi, he would have safely stopped without any incident.
He dismissed Smit’s version as untrue.
The case for the defendant
was then closed. No evidence was adduced on behalf of or by the
third party. His case was never opened.
[35] Mr.
Daffue argued that at all times material to this collision, the
second insured motor vehicle and the first insured motor
vehicle were
both travelling on the same inner lane parallel to the traffic
island. Therefore he urged me to reject the version
tendered by the
defendant and to accept that the collision took place in accordance
with the version proffered by the plaintiff.
Mr. P. Zietsman, on
behalf of the third party, supported Mr. Daffue’s submissions.
Both of them contended that the collision
was caused by the exclusive
negligence of the first insured driver, Makhanda. However, Mr. J.
Zietsman, counsel for the defendant,
differed in a way. Although he
conceded that the first insured driver was negligent, he argued that
his negligence was not the exclusive
cause of the collision. He
submitted that the second insured driver was also negligent and that
his negligence was the contributory
cause of the collision.
[36] It
is the plaintiff’s case that the two motor vehicles involved were
following each other on the same traffic lane from the
traffic lights
until the point of collision at the foot of the bridge. The second
insured driver had to stop on account of a stationary
minibus taxi,
which was obstructing the traffic lane on which the two sedans were
travelling. It is the plaintiff’s contention
that the first
insured motor vehicle collided with the second insured motor vehicle
from behind, because its driver, Makhanda, was
travelling at a high
speed and more importantly because he was not keeping a proper
lookout.
[37] On
the other hand, the defendant pleaded that the two motor vehicles
were travelling on different lanes shortly before the collision.
The
defendant contended that the second insured motor vehicle was
travelling fast on the outer lane; that it changed lanes; that
it
moved over the lane demarcation line; that it encroached onto the
outer lane on which the first insured motor vehicle was travelling
and that it then suddenly stopped. It is the defendant’s case that
the first insured driver in those circumstances could do virtually
nothing to avoid the collision.
[38] It
seems to me that the probabilities favour the version of the
plaintiff and not that of the defendant. I proceed to examine
a few
of them. Firstly, there was no obstruction on the outer lane
adjacent to the inner lane where the collision occurred. If
the
second insured motor vehicle was initially travelling on the outer
lane at a high speed and executed the reckless manoeuvre,
which the
defendant alleges it executed, then I have a serious problem. The
difficulty I have is that why would Smit have changed
from a traffic
lane where there was virtually no obstruction to a traffic lane where
there was a stationary minibus at a time. It
seems unlikely. The
space between the stationary minibus and the first insured motor
vehicle was dangerously small for any reasonable
driver to want to
use. There was no immediate off-slip to the right of the inner lane
where one could say the second insured driver,
Smit, was rushing to
in order to exit Church Street.
[39] It
appears to be even more improbable that the speeding Ford Laser could
have swerved quickly in front of the Toyota Corolla
not only in that
short space but also could have found it possible, after forcing its
way in that confined space, to come to a safe
standstill without
crashing into the stationary minibus or its trailer. Such reckless
driving actions for no apparent reason, appear
to be unlikely.
[40] It
appears more probable than not that the two motor vehicles were
travelling on the same lane at all times immediately preceding
the
accident. This probability is fortified by the fact that it is
apparent that the point of collision between the two motor vehicles
involved, was precisely in the middle of the inner lane. Moreover,
after the collision the two sedans were lined up in a straight
line
parallel to the traffic island on their right hand side. The final
rest position of the one was almost directly behind that
of the
other. The linear final rest positions favour the plaintiffs’
versions.
[41] Besides
the aforesaid objective facts there is another objective fact which
tends to support the version of the plaintiff. The
Ford Laser was
damaged at the back. The Toyota Corolla was damaged in front. The
damage to the Ford Laser is consistent with damage
where a vehicle
was struck from behind while stationary or in motion by another motor
vehicle travelling on the same lane and in
the same direction.
Similarly the damage to the Toyota Corolla is consistent with a
damage of a motor vehicle which squarely crashed
into the rear of
another motor vehicle directly ahead of it while in motion or
stationary. In short the damage to the motor vehicles
appears to be
consistent with the version of the plaintiff. Obviously the damage
is difficult to be reconciled with the diagonal
manoeuvre executed by
the second insured motor vehicle according to the defendant’s
version.
[42] The
version of the first plaintiff and her witness, Smit, was logical and
clear. It tallies with their police statements. I
am unable to make
any unfavourable or adverse findings as regards their
trustworthiness. In brief, they were good, credible and
reliable
witnesses. The defendant’s witnesses, Makhanda and Khamali, were
really not impressive witnesses. Makhanda’s testimony
that he was
on his way to Trade Centre was apparently false. His testimony was
at variance with his police statement. To a certain
extent there
were discrepancies between Khamali’s testimony and his police
statement. A few unfavourable and adverse findings
can be made as
regards their trustworthiness. These are apparent from their
evidence under indirect examination. I deem it unnecessary
to
elaborate on them here again.
[43] Khamali
was a passenger in the first insured motor vehicle driven by
Makhanda. At the foot of the bridge on the same traffic
lane on
which the Toyota Corolla was travelling, there was a stationary
minibus taxi. Khamali did not see it at all before or even
after the
accident. Now, if Khamali was so inattentive as to where the motor
vehicle in which he was a passenger, was travelling
the probabilities
are great that he did not pay attention to the motor vehicles on the
outer lane as well which is where, according
to the defendant’s
version, the second insured motor vehicle in which the plaintiff was
the passenger, was travelling. If we accept
as we should that he was
unconcerned with the traffic movements around him, we cannot
therefore find his version of the alleged manoeuvre
executed by the
Ford Laser reliable. His observation as to what happened immediately
prior to the accident is therefore of little
or no probative value.
[44] Makhanda
could give no satisfactory explanation why he did not see the
stationary minibus or its trailer before the collision.
It must be
remembered that the taxi and its trailer were at the foot of the
bridge the Toyota Corolla was approaching. The minibus
and its big
trailer were a short distance from the traffic lights directly in
front of Makhanda on precisely the same lane on which
he was
travelling. Before the Ford Laser forced its way between him and the
taxi as he alleged, there was no obstruction at all
which could have
obscured the minibus or its trailer.
[45] From this it can be
deduced that Makhanda was not keeping a proper observation of what
was going on around him on the road.
But more importantly it may
well be that Makhanda did not see the minibus taxi because to a
certain extent the Ford Laser was partially
obstructing his view.
His contradictory evidence showed that he was not alert at the time
and place. At first he said he did not
see the taxi. Later he said
he saw it but reckoned it was still moving. All this is immaterial.
The bottom line is that Makhanda
did not keep a proper lookout as
counsels for the plaintiffs and the third party contended. It was
also correctly conceded by the
defendant’s counsel that the first
insured driver was negligent. I have tested the plaintiff’s
version against the general probabilities
and I did not find it
wanting. I am satisfied that on a balance of probabilities the
version put forward by the plaintiffs is probably
accurate and true.
It is therefore acceptable.
NATIONAL EMPLOYERS' GENERAL
INSURANCE CO LTD V JAGERS
, supra.
[46] The
plaintiffs have satisfied me that on a preponderance of probabilities
the version advanced on behalf of the defendant is
false and
inaccurate and therefore falls to be rejected. Makhanda, coming up
behind, was not paying attention. He was speeding.
He either did
not brake at all or braked too late. He rammed into the vehicle in
which the first plaintiff was a passenger. He
had time and
opportunity to bring his vehicle to a halt behind the second insured
vehicle. He did not react in good time. Smit
quickly slammed the
brakes of his stationary sedan to prevent it from been violently
propelled forward on impact. The warning signs
from his brakes
glowed. Makhanda probably did not see such warning signs or noticed
them too late.
[47] I hold the firm view
that it was the negligence of the first insured driver and not the
second insured driver which caused the
collision. If the taxi driver
was negligent, such negligence was negligence
in
vacuo
.
No contributory negligence can be attributed to the second insured
driver. Where, as in the instant case, a moving vehicle rams
a
stationary vehicle from behind, there is
prima facie
evidence
of negligence on the part of the driver of a moving vehicle –
vide
FIG BROTHERS (PTY) LTD v SOUTH AFRICAN RAILWAYS AND
HARBOURS AND ANOTHER
1975 (2) SA 207
(CPD) at 211 G – H per
Baker J.
[48] The concession made
in respect of the first insured’s negligence effectively disposed
of the
lis
between the plaintiffs and the defendant as regards
the merits. It follows, therefore, that the defendant is liable to
the plaintiff
in terms of section 17(1) as explained in par. 13
supra
. His negligence was not merely contributory to the
collision but, was in fact, the proximate cause thereof. This
finding effectively
buries the
lis
between the defendant and
the third party.
[49] In
the circumstances I have come to the conclusion that the collision
occurred on the version as put forward by the plaintiff
and his
witness. According to that version both motor vehicles were
travelling on the same lane; the second insured motor vehicle
was in
front; the first insured motor vehicle was at the back; the minibus
taxi stalled and stopped on the same lane on which the
Ford Laser and
the Toyota Corolla were travelling; Smit became aware of the
obstruction and safely brought his motor vehicle to a
stanstill;
Makhanda who was not keeping a proper lookout did not realise that
the Ford Laser immediate in front of him had come to
a standstill; he
did not see that there was a stationary minibus on the same lane on
which he was travelling. At all times material
to this collision he
thought that the traffic on the traffic lane on which he was
travelling was in motion when in fact and in reality
it was not. As
a result of his failure to keep a proper lookout the Toyota Corolla
crashed into the rear of the stationary Ford
Laser. On those facts,
it seems to me clear that Makhanda was negligent and that his
negligence was the sole cause of the collision.
[50] Even
if it is accepted that Smit was on the outer lane and that he
executed a negligent if not a reckless manoeuvre as alleged
by the
defendant’s witnesses, Khamali conceded that if he were in the
position of Makhanda as the driver of the Toyota Corolla
he would
have been able to take an evasive action in order to avoid the
collision. Therefore, even if Smit was negligent as alleged,
Makhanda could have avoided the accident if he was keeping a proper
lookout. He did not. He did not because he was not keeping
a proper
lookout. It seems to me that Smit was not negligent as alleged or in
any other manner. He became aware of an obstruction
on the traffic
lane on which he was travelling. He safely brought the second
insured motor vehicle to a standstill. Stopping he
had to. There
was an obstruction on his path of travel; a heavy traffic stream to
his left and a concrete traffic island to his
right. He had nowhere
else to go. Whether he saw or did not see the Toyota Corolla
approaching from behind, it was simply and practically
impossible for
him to do anything to avoid the collision.
[51] In
the circumstances I have come to the following conclusion. The
aforesaid collision was caused by the sole negligent driving
on the
part of the driver of the first insured motor vehicle namely
Makhanda. As I see it there is no room for an apportionment
of blame
between the negligence of Makhanda and Smit. Accordingly Smit is
completely exonerated. I can find no negligence of any
sort on his
part.
[52] The plaintiffs
emerged victorious. So did the third party. The latter came to the
party on the defendant’s invitation. There
was no
lis
between him and the plaintiff. Therefore the plaintiff cannot be
held responsible for the payment of his costs jointly and severally
with the defendant. The defendant’s contributory claim against the
third party was unsuccessful. No sound reason exists why the
general
rule of costs should not apply as regards the
lis
between the
defendant and the third party.
[53] Accordingly
I make the following order:
The defendant is liable
for 100% of the plaintiff’s damages as may be proven or agreed
upon.
The defendant is liable
for the plaintiff’s costs of the action incurred so far.
The defendant is also
liable for the costs of the third party.
______________
M.H. RAMPAI, J
On
behalf of the plaintiff: Adv. J.P. Daffue
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Adv. J. Zietsman
Instructed
by:
Webbers
BLOEMFONTEIN
On
behalf of the third party: Adv. P. Zietsman
Instructed
by:
Naudes
BLOEMFONTEIN
/sp