Daly v Road Accident Fund (1857/2001) [2004] ZAFSHC 14 (4 March 2004)

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[2004] ZAFSHC 14
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Daly v Road Accident Fund (1857/2001) [2004] ZAFSHC 14 (4 March 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 1857/2001
In the
matter between:
ANDREW
HUGH ARTHUR DALY
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
_____________________________________________________________________
CORAM:
RAMPAI,
J
_____________________________________________________________________
HEARD
ON:
5 FEBRUARY 2004
_____________________________________________________________________
DELIVERED
ON:
4 MARCH 2004
_____________________________________________________________________
[1] The hearing of this matter began on Tuesday, 16
September 2003. Adv. C. Ploos van Amstel SC appeared for the
plaintiff and adv.
A. Camp for the defendant. By agreement between
the parties, I noted the following admissions: Firstly, that the
road accident
occurred at Welkom in the Free State Province on Sunday
1 June 1997 at or about 03h35 when two motor vehicles collided on the
Klippan
Road. Secondly, that the one motor vehicle with registration
number OXV 47590 was driven by P.W.E. de Klerk, the insured driver.

Thirdly, that the other motor vehicle with registration number OKE
18724 was driven by A.H.A. Daly, the injured plaintiff.
I also ruled that the merits and the quantum of the
plaintiff’s case be separated. I made the ruling in terms of Rule
33(4) of
the Uniformed Rules of Court.
[2] Petrus Bernardus Nortje was called as the first
witness for the plaintiff. He testified that he was a member of the
South African
Police Service, stationed at Welkom, attached to the
local criminal record centre, an official draftsman and photographer,
currently
an inspector by rank, but a sergeant at the relevant time.
On Sunday, 1 June 1997, at or about 04h25 he was on the scene of the
accident. He found sergeant Du Plessis on the scene. At her request
he took photographs of the deceased, the scene and the two
vehicles.
He drove away afterwards. He and sergeant Du Plessis returned to the
scene at or about 12:00 noon on the same day. Again
he took further
photographs. By then the vehicles had already been towed away from
the scene.
A photo album prepared by the plaintiff was shown to the
witness. It consisted of 12 photographs. He confirmed that he took
the
photographs numbered 1 to 6. He read into the record the
description of the photographs as more fully set out in the covering
index
thereto. The plaintiff’s album was then handed in as Exhibit
“A”.
[3] A photo album prepared by the witness himself was
shown to him. It consisted of four photographs. He confirmed that
he took
all the four photographs. He took photograph 1 at noon on
Sunday, 1 June 1997 and marked four points thereon as “A”, “B”,
“C” and “D”. Photo number 1 depicted a portion of Klippan
Road on which the accident took place. Sergeant Du Plessis did
the
pointing. Point “A” on the photograph shows the direction in
which the red sedan Golf, OKE 18724, was travelling. It was
travelling from east to west. It was driven by Daly, the plaintiff.
Point “C” on the photograph shows the final rest position
of the
Golf after the collision. Point “B” of the photograph shows the
direction in which the white sedan, Renault OXV 47590,
was
travelling. It was travelling from west to east. It was driven by
De Klerk, the deceased. Point “D” on the photograph
shows the
final rest position of the Renault after the collision. A
description of the three remaining photographs was read into
the
record. I deem it unnecessary to repeat it here. The photo album by
the witness P.B. Nortje was handed in as Exhibit “B”.
[4] An accident plan was shown to him. He confirmed that
he drew it up on 11 September 2003, on the basis of his earlier rough
sketch.
Klippan Road runs from the Ernest Oppenheimer Golf Course
in the east and from Power Road in the west. It consisted of one
traffic
lane in each direction. It was a tarmac road with a solid
white barrier line in the vicinity of the scene. There were no kerbs
or
gravel shoulders on both sides of the road. On the edges of the
road were grassy fringes. The turn-off to the pan called Klippan
was
a dirt road on the southern side. This intersection was somewhere
between the plantation of trees on the mine and the industria.
The
road was in a poor condition. The black surface was becoming white.
The surface was uneven at places. He made no attempt to
determine
the point of impact. The accident plan dated 11 September 2003 was
handed in as Exhibit “C”.
[5] Wilna Badenhorst was called as the second witness
for the plaintiff. She testified that she was a collision
reconstruction expert.
Her academic qualifications and her practical
experience in collision investigations and collision reconstructions
are given in
her written reconstruction report. She was practising
as a private consultant in the field. She was approached by the
plaintiff’s
legal team to reconstruct the accident. For the
purpose she visited the scene, made certain observations, took
photographs and compiled
the reconstruction report. A 14-page
document dated 29 August 2003 was shown to her. She confirmed she
was the author thereof.
She read her reconstruction report into the
record. Her reconstruction report was handed in as Exhibit “D”.
She came to the conclusion that the area of impact was
probably on the correct traffic lane of the Golf sedan.
[6] During cross-examination she answered that to
determine a point of impact she considered all the physical evidence
such as the
vehicular damage, the angle of the collision as well as
the final rest positions of the vehicles. She conceded that what she
termed
“oliekol” in her report could be brake fluid spillage.
But she excluded the possibility that it could be a tar seepage or
bitumen.
The area of impact should be somewhere between the two final
rest positions of the two sedans. Bitumen did not quickly evaporate
or disappear. The oil patch probably had its origin in the collision
we are here concerned with. She had some doubt about the point
of
impact on the eastbound lane as given in the police accident plan,
since that point was east of the final rest position of the
Renault.
She did not see any other oil patch on the scene besides the oil
patch described in her report and shown in photo “A1”.
The
popcorn of the road surface retained the oil despite mopping up the
fluids and sweeping off debris on the scene.
[7] She excluded glass and debris as reliable indicators
of a possible point of impact, because debris normally travelled at
the same
velocity as the vehicle and became scattered over a wide
area. However, fluid or oil normally reaches the road surface quite
quickly
because as it splatters it is forced downwards immediately.
She conceded that when two vehicles collided, glass pieces of their
shattered headlamps would fall to the ground the moment the vehicles
separate through rotation. But she explained that glass debris
would
still be spread over a large area as the vehicles rotate away from
each other to their final rest positions.
She made the point that the most reliable indicators of
a point of impact were the gouge marks, in other words the scrape
marks on
the road surface. Those were physical marks where vehicles
metal part came into contact with the road surface. The order of
preference
was gouge marks, oil spillage and then debris. The
physical contact of the vehicle was plus or minus 40% overlap of the
width of
each. Both were extensively damaged to their right. The
marks on the right front door of the Renault were caused by a
secondary
impact as the Golf rotated quicker than the Renault.
[8] There were no collision scrape marks, in other
words, tyre marks. Sometimes tyres leave tyre marks on the road
surface, but at
times they do not. The latter scenario was often the
case where the tyre did not press hard enough on the road surface at
the time
of the impact to generate enough heat to cause a tyre mark.
A tyre mark on the road surface was not rubber but melted bitumen.
She
denied the suggestion that the Golf did not leave tyre marks on
the road surface, because it lifted up and ended on its left side.
She advanced the proposition that the gravel build-up on the edge of
the road caused the Golf to topple over on its left side when
it left
the smooth road surface.
[9] It was put to her that the driver of the Golf was
approaching a section of the road where the road was winding; that he
entered
the first curve to the right; that he failed to straighten
out when entering the second curve to the left; that he moved over
the
solid barrier line; and that in doing so the Golf collided with
the oncoming Renault on latter’s correct side of the road. She
disagreed with such a proposition.
[10] Giancarlo Bernieri was called as the third witness
for the plaintiff. He testified that he was a human resources
manager in
the employ of Anglogold (Pty) Limited at Carltonville. He
previously lived in Welkom. At plus or minus 03h15 on Sunday, 1 June
1997, he was travelling from east to west on the Klippan Road. He
was driving his sedan, Toyota Corolla, with registration number
OKE
37966. He was alone in the car. He noticed the taillight of a
vehicle about 200 to 300 metres ahead of him. The vehicle was
travelling on the westbound lane. He then saw another vehicle
travelling from west to east on the same road. The oncoming vehicle
was travelling on the eastbound traffic lane. At one stage the
headlamps of the oncoming vehicles disappeared. However, at that
stage he could still see the red taillights of the vehicle he was
following. Soon thereafter he saw no more lights whatsoever.
He
stopped his car on the scene. He saw a Renault on the northern side
of the road and a Golf on the southern side.
[11] From there he rushed to Sportman’s Bar where he
told his friends about the accident. One of his friends called the
emergency
services. Accompanied by two friends he returned to the
scene. The police and the ambulance crew found them on the scene.
He recognised
the driver of the Golf as the plaintiff, Andrew Daly.
He was rushed from the scene to Hydromed Hospital by the emergency
services
providers.
[12] During cross-examination he answered that he
arrived at the Oppenheimer Golf Club at 23h15 on Saturday, 31 May
1997. He found
the plaintiff already there. He too had attended the
reunion function of Christian Brothers College. On his arrival the
plaintiff
was totally sober. By 23h00 the plaintiff would probably
had consumed some alcoholic beverage. He was unable to say how much
alcoholic
drinks the plaintiff had taken from 23h30 until 03h15. He
did not interact with the plaintiff but he saw him from a distance
playing
pool and chatting to ex-schoolmates. The plaintiff was one of
the remaining 30 gentlemen out of a group of about 150 who decided
to
proceed to Sportman’s Bar for the last shot. He could not explain
why he stated in his second affidavit that the headlamps
of the Golf
were on a dim position. He conceded that he did not in fact see the
headlamps of the Golf. It was suggested to him
that the bend ahead
required a driver first to steer to the right and then to the left
and that if he was not quick enough it was
possible his vehicle would
fail to negotiate the second kink, move over the solid barrier and
encroach onto the eastbound traffic
lane after the second kink. He
conceded that there was a slight possibility. He added that in his
experience the vehicles travelling
westwards rarely encroached,
whereas the vehicles travelling eastwards frequently encroached. He
could not say where the concentration
of debris was, but there was
debris all over the scene.
[13] Andrew Hugh Arthur Daly was called as witness
number 4 for the plaintiff. He testified that he was the plaintiff
and that he
lived in Welkom. On Saturday, 31 May 1997, he attended a
school reunion function at the Ernest Oppenheimer Golf Course in
Welkom.
He was driving a red Golf with registration number OKE
18724. The next Friday on 6 June 1997 he regained his consciousness
in the
intensive care unit of the Hydromed Hospital in Welkom where
he was told that he had been involved in a road accident on the
morning
of Sunday, 1 June 1997. He had no independent recollection
of the accident. He was hospitalised for approximately six weeks.
He
identified photograph “A2” as his car.
[14] During cross-examination he admitted that he did
consume some beer at the reunion. He could not recollect how much
beer he drank
for the whole evening. He only drank Castle Lager. He
could not recall that he had to go to Sportman’s Bar. He could not
recall
anything concerning his driving on the day in question. He
suffered concussion in the accident which accounted for his blank
memory.
In his sworn statement dated 3 November 1999 he stated that
he was wearing a safety-belt because by then he had been so told. He
was charged with culpable homicide, but the case was withdrawn. In
fact the prosecutor declined to prosecute. That concluded the
case
for the plaintiff. The defendant’s case was then opened.
[15] Pieter Dawid van Gorkom was called as the first
witness for the defendant. He testified that he was a member of the
South African
Police Service stationed at Welkom attached to the
housebreaking unit of the detective branch. In the early hours of
Sunday, 1 June
1997, he attended the scene of the accident on the
Klippan Road. He found the police and the ambulance service crew on
the scene.
Among the police was sergeant Zelda du Plessis who drew
up the police accident plan and the key thereto. The two vehicles
involved
were still on the scene. He could not say whether the scene
was secured or preserved before his arrival. His observation led him
form an opinion that the accident occurred on the correct lane of the
Renault. The big oil patch he saw on the traffic lane of the
Renault
was the reason for his conclusion. The diameter thereof was about
35cm. He could not recall glass pieces or debris on the
scene. He
had no experience in investigating road accidents and determining
points of impact. He was the investigating officer
of this case. The
oil patch was not visible or captured in photo “B1”. He was
unable to confirm the point of impact as shown
by sergeant Du
Plessis.
[16] During cross-examination he conceded that he did
not in fact observe the vehicles colliding and that he merely
expressed an opinion
concerning the point of impact. He did a six
months training course in general policing. He did not receive any
training in the
investigation of collisions and reconstruction of the
accident scenes at the police college, but he gained experience
afterwards
as a member of the uniform branch. He never had anything
to do with Wilna Badenhorst who trained the police in this particular
field.
From 1991 until 2001 he visited and investigated
approximately 600 serious cases of road accidents. The point of
impact was difficult
to determine even if you have physical pieces of
evidence such as glass pieces, oil patches or gouge marks on the road
surface, none
of them necessarily will always indicate the precise
point of impact. He conceded that glass pieces and oil patches as
well as mud
particles often become scattered over a large area when
two vehicles collide. He made no statement or drew up no accident
plan.
He took no photographs of the scene. He visited the scene
early at 04h20 on Sunday, 1 June 1997. He could not remember whether
the scene was cordoned off or not. He conceded that there was
nothing peculiar about this accident which distinguished it from
hundreds
of other accidents he had investigated. The oil patch, the
loose bonnet and the plastic debris were all the things that he took
into consideration in coming to the conclusion that the point of
impact was on the correct traffic lane of the Renault.
[17] When he was confronted with photographs “A7”
and “A8” which showed that the bonnet of the Renault was still
attached
and not detached from the Renault, he conceded that he had
made a mistake. He explained the mistake by saying he could not
remember
everything about this accident clearly. The oil patch on
photograph “A1” was not the oil patch he was talking about. At
one
stage he could not position the oil patch he saw. Later he said
such oil patch was on the correct lane of the Renault. He conceded
that sergeant Nortje would have photographed the oil patch if it was
pointed out to him. He confirmed that there was a
nolle
prosecui
in this matter and that the senior
prosecutor directed that an inquest should be held. He also conceded
that the magistrate who
conducted the inquest had made no positive
finding as to the cause of the death of De Klerk. He also conceded
that on the instruction
of the senior prosecutor he approached Mr
Bernieri in an attempt to ascertain whether he could shed some light
on the point of impact.
He further conceded that there was never any
mention of another oil patch outside photograph “A1”.
[18] The inquest was held on 16 August 2000 before
magistrate M Viljoen. The first two pages of the inquest record were
handed in
as Exhibit “F”. The affidavit of sergeant H.P. Minnie
was handed in as Exhibit “G”. In it he confirmed that he had
received
a blood sample marked WDR703.97 from Dr Van Heusden and that
he forwarded it to the chemical laboratory in Johannesburg. He later
received the result and handed it to sergeant Van Gorkom. The result
was that 0,12 grams per 100 millilitres of De Klerk’s blood
was
alcohol. Sergeant Minnie’s request for the examination of the
blood specimen WDR307/97 addressed to the forensic chemical
laboratory was handed in as Exhibit “H”. The certificate from the
forensic chemical laboratory was handed in as Exhibit “I”.

Sergeant Van Gorkom’s affidavit acknowledging receipt of the blood
analysis result was handed in as Exhibit “J”.
[19] Cornelius Susanna Potgieter was called as witness
number 2 for the defendant. She testified that the deceased, De
Klerk, was
her brother. Her brother died on a Sunday in Welkom. The
next day, on a Monday, she and her husband drove from Bloemfontein to
Welkom to attend to the business of his passing away. Sergeant Van
Gorkom of Welkom Police Station told her where this accident
happened. They visited the scene. She had a strong feeling of
wanting to be closer to her brother which was why she visited the
scene.
Finding the scene was easy because she and her husband
knew the specific road and area reasonably well. She previously
worked as
a sales representative on the mines. Her husband previously
worked on the mine as an engineer. She described the scene, she drew
up a rough sketch which was then handed in as Exhibit “K”. They
found the scene near a turn-off to the golf course. On the left-hand
side of the road as one travelled towards Virginia, she found pieces
of glass. Photograph “A1” was shown to her and she confirmed
the
scene and the spot where she saw the glass pieces.
[20] During cross-examination she answered that she once
worked for a company called Lifotech for two years as a sales
representative
on the mines. She said the landmark of the scene was
a gate of the golf course on the right-hand side. The glass pieces
were about
30 to 50 metres in front of the golf course gate. From
there she could see the golf course gate. In the vicinity the road
curved
from left to right. The police told her and her husband on
which traffic lane to look for the glass pieces. The police also
told
her which driver was at fault. At the request of Mr Van Amstel
the court adjourned. On resumption the witness confirmed that she
stopped approximately 100 to 120 paces before the gold course gate.
Her husband further saw the gouge marks on the road. She could
not
deny the suggestion that the golf course gate was far from the scene,
plus minus 2 to 3 kilometres away. She was confronted with
the
plaintiff’s rough sketch, Exhibit “L”, and it was pointed out
to her that the golf course gate was far from the scene.
Her reply
was, she did not believe it.
[21] Mr Camp requested an inspection
in
loco
and reserved his right to re-examine Ms
Potgieter after such an inspection. On Friday, 19 September 2003,
accompanied by the parties,
their legal teams and Ms Potgieter, the
court travelled to Welkom. The notes of the inspection are on
record. I deem it unnecessary
to repeat them. Re-examined by Mr
Camp after the inspection
in loco
she replied that she was mistaken about the position of the golf
course gate.
[22] Zelda Elsabe du Plessis was called as witness
number 3 for the defendant. She testified in Welkom that she was an
inspector
in the employ of the South African Police Service stationed
in Welkom and that her experience was just over 12 years. She was
attached
to the road accident unit since 1997. She was involved with
the accident which occurred in Welkom on Klippan Road on Sunday, 1
June
1997. She attended the scene alone. From there she called
inspector Nortje, inspector Van Gorkom and the ambulance crew led by
sergeant
Rothman. She arrived on the scene at about 03h50. The
police and the emergency or rescue team were already on the scene.
Exhibit
“E” was shown to her. She confirmed that she drew up the
police plan and the key thereto.
[23] She observed an oil patch and glass pieces on the
deceased’s correct lane. From there she came to the conclusion that
the point
of impact was on that lane. The oil patch was about half a
metre in diameter. It was fresh and still thick on the surface of
the
tarmac. It was more or less in the middle of the deceased’s
lane – see point “C” on p.27 of Exhibit “E”. The fine
glass
pieces were also on the deceased’s lane in the vicinity of
the oil patch. They were scattered all over. On the plaintiff’s
lane
there was nothing to suggest that the point of impact could be
somewhere there. The oil patch she was associating with the point
of
impact was not captured by photograph “B1”. The oil patch in
question was further down the photograph on the northern lane
beyond
the final rest position of the two vehicles. She suspected that the
fire emergency crew had cleaned up the scene before the
official
photographer returned later on to take photograph “B1”. She
doubted very much any insinuation that the large black
mark in the
middle of the road was the oil patch she was referring to. She read
into the record the description of how the accident
took place
according to the accident report Exhibit “E” which she compiled
on the same day of the accident.
[24] During cross-examination she replied that she had
six months experience at the time she attended the scene of this
accident
on Sunday, 1 June 1997. Since then she had acquired more
experience. During busy times of the year 50 road accidents per
month
were reported to her unit and 20 accidents per month during
quiet times. She had no independent recollection of this accident
scene.
But she remembered this accident reasonably well.
She could recall without reading her affidavit that the
oil patch was on the deceased’s lane. But she conceded that she
had to
look at her rough sketch in order to identify the exact spot
of the oil patch. Asked whether there was only one oil patch, she
replied
that there was only one which caught her attention. She
confirmed that she did not show the oil patch in so many words in the
rough
sketch. She did not receive structured formal training for the
work she was currently doing. There was no eyewitness to point out
the point of impact. She agreed that the fine glass pieces were not
reliable indicators of a point of impact, because they often
spread
all over the scene. She conceded that an experienced police
photographer would never take a photograph of the scene without
including the oil patch. This was the first case of a road accident
where there was an oil patch on the scene but no photograph
to show
it all. She did not really know why she did not accompany inspector
Nortje back to the scene to point out to him the oil
patch.
[25] This was the only fatal road accident that she knew
of where the police photographer went to the scene on his own to take
photographs.
She denied that she pointed out certain points to
inspector Nortje at 12h00 on the day in question. But later conceded
that inspector
Nortje could be right that she drew his attention to
the points as shown in photograph “B1” which was taken during
daytime on
Sunday, 1 June 1997. She also conceded that if she was on
the scene at the time, she would have ensured that he took a
photograph
of the oil patch. She observed that on photograph “B1”
there were repeated wheel imprints on the lane of vehicle “B” –
that is Daly’s vehicle. She confirmed that neither the senior
prosecutor nor the inquest magistrate could place any weight on
the
police sketch plan since they wanted to know where she came from with
the point of impact. Two and a half years after the accident
there
was still no mention of the word “oil patch” anywhere in the
police file. She could not explain why she did not see the
oil patch
on Daly’s lane. She differed with inspector Van Gorkom that the oil
patch, as represented by the point of impact according
to her, was
beyond the confines of photograph “B1”. Her evidence was that
the oil patch was at point “E” of Exhibit “B”.
This point
was inserted by the witness during the course of her
cross-examination.
[26] Bruce Allan Pound was called as witness number 4
for the defendant. He testified that he was a manager of a business
enterprise
called Paper Man CC, a paper recycling corporation in
Welkom. He was previously in the employ of Welkom Emergency Services
as a
station officer. His primary duties were to attend accident
scene and fire scenes. On Sunday, 1 June 1997, he attended the
accident
scene on the Klippan Road in Welkom. The accident report
had since gone missing. He recalled that there were two emergency
vehicles
on the scene – one rescue emergency vehicle and one
ambulance.
The driver of the Renault was still in the car but the
driver of the Golf was not when the emergency crew of four arrived on
the scene.
The Renault was on the northern side of the road and the
Golf on the southern side. They illuminated the scene with a
generator
lamp, fitted to the rescue vehicle. The lamp was hoisted 2
metres high by the hydraulics of the rescue vehicle. They had to cut
off the roof of the Renault to remove its driver. He was already
dead. The driver of the Golf was nowhere on the scene to be seen.
[27] If the vehicles are on the road, it is the
responsibility of the rescue crew to cordon off the road. He could
not recall whether
the road was cordoned off or not in this instance.
The job of clearing up after a road accident was also their
responsibility. They
swept off glass pieces on the northern side of
the road. There were no glass pieces on the southern side. They
cleaned the entire
road surface. He could not recall dealing with
any oil on the scene. They usually put sand on the oil patch and
leave it for a
while to absorb a bit and then sweep it off the road.
[28] During cross-examination he replied that the glass
pieces were by the cone on the northern side of the road. He
encircled the
spot where the said glass pieces were with a red pen on
photograph “A1”. He had no independent recollection of his visit
to
the scene, but a very vague memory. He had no independent
recollection of the positions of the vehicles. He had no independent
recollection of having swept the glass pieces off the road. He
conceded that on the northern side of the road there was a further
patch on the shoulder of the road that could also have been glass
pieces as well. The witness encircled the relevant spot on photograph
“A1” with black ink. Both the red circle and the black circle
could have been gravel and not glass due to the light colouring
of
the soil in the vicinity of the scene.
The rescue vehicles and the ambulances were maintained
in a perfect roadworthy condition. He ruled out the possibility that
either
of the two vehicles would have been dripping oil or brake
fluid while they were on the scene.
[29] Barry Grobbelaar was called as witness number 5 for
the defendant. He testified that he was a qualified mechanical
engineer
with a master’s degree which he obtained from University
of Pretoria. His specific sphere of expertise over the past 20 years
had been in the field of vehicle dynamics. He had prepared a
reconstruction report concerning this accident. The reconstruction
report was handed in as Exhibit “N”. He had been doing accident
reconstruction reports for the past 13 years. He visited the
scene
on 20 November 2003. On the road surface he found two marks which
are identical to or the same as those on photograph “A1’.
He
also found the remains of the windscreen. He took his own
photographs of the scene. He came to the conclusion that the sedans
collided with an offset frontal impact, in other words the right part
of the front of the Renault collided with the right part of
the front
of the Golf; that it was not possible to determine the area of impact
between the two vehicles by considering only their
final positions of
rest; that it was improbable that the dark marks on the westbound
lane found on the scene as shown on photograph
“A1” were oil
patches which could be associated with the impact between the
vehicles involved in this accident; that it was probable
that the
Golf was travelling considerably faster than the Renault; and that
the gouge marks found on the eastbound lane on the scene
probably
indicated the area of impact between the two sedans. He
substantiated each of these conclusions in detail. In his opinion
the accident probably occurred when the Golf ventured onto the
incorrect side of the road.
[30] He disagreed with Ms Badenhorst’s conclusions in
several respects. He ended his evidence in chief by saying that if
the gouge
marks and the oil marks were eliminated or wished away –
and only the final rest positions of the vehicles and their
respective
damage taken into account, it would not be possible to
tell precisely where these vehicles had collided.
[31] During cross-examination he replied that on the
strength of the gouge marks his conclusion was that the vehicles had
collided
on the correct lane of the Renault. Asked what his
conclusion would be if the gouge marks were excluded from the
equation, he replied
that on the strength of the oil patch, as
described by sergeant Z du Plessis, his conclusion would still be
that the vehicles had
collided on the lane of the Renault. He
disagreed that the dark patch on the southern lane to the left of the
solid line was an
oil patch. Among others, it could be bitumen,
gearbox oil, engine oil, or brake fluid. He conceded that he did not
read the entire
transcript of the proceedings. He compiled his
reconstruction report on 20 November 2003. He perused Ms
Badenhorst’s reconstruction
report before he compiled his. He
conceded that the probabilities could equally be that the accident
occurred on the centre line
or on the lane of the Golf or on that of
the Renault. He agreed that none of the three police witnesses, Van
Gorkom, Nortje and
Du Plessis mentioned any gouge marks in their
testimonies. He admitted that his opinion concerning the Golf
venturing onto the lane
of the Renault was speculation. He denied
the suggestion that bitumen did not evaporate. The defendant’s
case was then closed.
[32] All in all nine persons testified in this case –
four for the plaintiff and five for the defendant. On the evidence
before
me two diametrically opposed submissions were made by the two
counsels. On the one hand, Mr Ploos van Amstel’s main submission
was that the road accident in question was occasioned by the sole
negligent driving of the insured driver. On the other hand, Mr
Camp’s main submission was that the plaintiff failed to show that
the accident in question was caused by any negligent driving
on the
part of the insured driver. It is incumbent upon the plaintiff, in
order to succeed, to advance a reasonable and probable
explanation of
what happened. This
onus
rests on him throughout the proceedings.
“
He
will only succeed if he satisfies the Court upon a preponderance of
probabilities that his version is probably true and thus acceptable,
…”
said Fischer AJ in
FOURIE v
ROAD ACCIDENT FUND
1999
(3) ALL SA 661
(OPD) at 667B.
[33] The parties are agreed that the accident took place
in Welkom on Sunday, 1 June 1997, at or about 03h35 and that the
scene of
the accident was on the Klippan Road a short distance from
Power Road. Two sedans were involved in the accident. The one, a
white
Renault with registration number OXV 47590 was insured by the
defendant and driven by a certain P.W.E. de Klerk. The other, the
red Golf with registration number OKE 18724 was driven by the
plaintiff and owned by his wife.
[34] It was also not in dispute that immediately prior
to the collision, the Renault was travelling eastwards and the Golf
westwards.
The dispute revolved around the exact point of impact, or
the area of impact, if you will. There were no passengers in any of
the
vehicles involved. The driver of the Renault, De Klerk, was
instantly killed. The driver of the Golf, Daly, was rendered
unconscious
by the sheer force of the impact. He was comatose in the
intensive care unit of the Welkom Hydromed Hospital where he regained
his
conscious state of mind about a week later. Today he apparently
has no independent recollection of the circumstances of the accident.
He cannot remember anything at the school reunion function after the
speeches had been made. Mr Camp attacked the plaintiff’s
testimony
on this point. He pointed out that there was no medical evidence in
support of the alleged amnesia. He contended that
the probability
was that such loss of memory was attributable to intoxication induced
by excessive intake of alcoholic drinks.
[35] By midnight on Saturday, 31 May 1997, the plaintiff
and his ex-schoolmates were still enjoying themselves at the school
reunion
held at the Oppenheimer Golf Club in Welkom. Among his
former schoolmates was Bernieri. He saw the plaintiff drinking. The
plaintiff
himself admitted this fact. There was no evidence of how
much alcohol he consumed that particular night. But Bernieri
testified
that he saw the plaintiff during the course of the night
interacting with some guests and also playing pool with others. What
he
saw was a sober man. From this witness’ testimony I got the
impression that on both occasions the plaintiff acquitted himself
well
in a socially acceptable manner and that his mind was not
remarkably impaired by the strong drinks he had imbibed. I cannot,
therefore,
go along with the suggestion that his apparent loss of
memory was probably caused by alcoholic intoxication. There is no
evidence
at all that the plaintiff was indeed intoxicated. The
suspicion that he might have been is not far-fetched. On the other
hand,
there was undeniable evidence that the plaintiff was
continuously in an unconscious state of mind for five days.
Therefore, I accept
that he had probably sustained mental injury
which was the probable explanation of his difficulty to recall
events.
[36] Mr Camp also criticised the plaintiff by arguing
that he could not explain the positive averment he had made in his
subsequent
affidavit where he had stated that he was wearing a
seatbelt at the time of the accident. I take it that by the
subsequent affidavit
counsel meant a statutory sworn statement the
plaintiff had made in support of his mva claim and not a police
warning statement.
It seems to me the plaintiff made no such
statement to the police. In his testimony the plaintiff explained
that at the time he
made the statutory sworn statement in question he
had already been told that he was found on the scene still wearing
the safety belt.
I understood him to mean that the averment was not
his own independent assertive recollection. In my view the
explanation he gave
was sound and understandable.
[37] In the absence of direct evidence, I now proceed to
examine the available circumstantial evidence tendered by the
parties. Was
there any useful physical evidence on the scene on
which the court can rely?
[38] Bernieri was the first person to arrive on the
scene. Shortly before the accident he was on his way from the
Oppenheimer Golf
Club to Sportman’s Bar in the city. His version
briefly is that he was following the plaintiff. The latter’s car
was directly
in front of him. It was travelling on the southern lane
for the westbound traffic stream. It kept to this correct side of
the road.
It never moved over the barrier line onto the incorrect
side of the road. Its tail-lights were clearly visible ahead of him.
He
also saw the headlamps of an oncoming vehicle. The two vehicles
involved were about to pass each other in the opposite directions
when the headlights of the oncoming vehicle suddenly disappeared.
The next moment the tail-lights of the plaintiff’s vehicle abruptly
went off. He brought his vehicle to a standstill between the two
vehicles involved.
[39] Bernieri made two statements in connection with
this accident. The first was a three page document written in English
and signed
at Welkom on 7 October 1997. The second was a four page
document written in Afrikaans purportedly made in Welkom on 20 March
2000.
In the sworn statement he stated that he was driving
behind the plaintiff from the said golf club. In the unsworn
statement he stated
that he was driving behind an unknown vehicle.
His oral testimony was consistent with the former, but inconsistent
with the latter.
Seeing that the former was made on oath whereas the
latter was not, it cannot be logically argued that the contradiction
amounted
to perjury.
In the unsworn statement he also stated that the
headlamps of the vehicle he was following were on dim. But during
cross-examination
he admitted that he did not really see whether they
were on bright or dim. Once again his sworn court testimony must be
preferred
to his unsworn statement made to an mva investigator
appointed by the defendant.
In my view both contradictions were not of such a
serious nature as to vitiate the entire testimony of this witness.
Similarly,
not much can be read into his failure on the scene to
ascertain the condition of the driver of the Renault.
[40] I want to examine the evidence of the glass pieces
first. Bernieri answered during cross-examination that he did not
see glass
debris on the road. He did not even think of that. He
was in a state of shock. That was the position during his initial
attendance
on the scene. On his subsequent return to the scene he
could feel glass pieces as he walked around between the two cars
involved.
He was unable to confirm where the concentration of the
glass debris was. He would not dispute the testimony of the police
witnesses
that the concentration of the glass debris was on the
northern lane. In evaluating Bernieri’s testimony it becomes clear
to me
that when he initially inspected the scene he did not have
favourable conditions to make proper observation. His observation
was
impaired by darkness, shock and eagerness to seek help. It did
not surprise me, therefore, when he said he saw no glass pieces.
On
his subsequent visit the conditions were comparatively better. The
rescue team, the ambulance crew and the police were also
on the
scene. In addition, two of his ex-schoolmates were with him. By the
time he drove away the scene was probably lit by the
rescue team.
His evidence was inconclusive as to on which traffic lane the
concentration of the glass pieces was. He was steadfast,
however,
that all over the scene he could feel glass pieces. About that he
was certain.
[41] Van Gorkom also testified about the glass pieces.
In his evidence his first answer was that he could not remember
seeing pieces
of glass on the scene. During cross-examination he
conceded that in the majority of instances glass pieces spread over a
very wide
area when two vehicles collide. It then becomes difficult
in such circumstances to rely on glass pieces to determine the area
of
impact. In asserting that everything showed that the vehicles
collided on the correct lane of the Renault, he based his assertion
on the assortment of debris, which included the bonnet of the
Renault, but excluding glass debris. In evaluating his evidence two
aspects must be appreciated. Firstly, that the glass pieces played
no role in the conclusion he reached concerning the probable
area of
impact. Secondly, that his admission that the bonnet of the Renault
was in fact never detached as he had claimed in his
chief evidence to
form a major item of the debris assortment has seriously shaken the
very foundation of his observation. His evidence
has to be
disregarded as unreliable and incredible.
[42] Ms Potgieter visited the scene a day after the
accident. She did not have any first-hand knowledge of where the
scene was. Van
Gorkom did not take her there. He directed her where
the accident scene was. He told her, among others, so she testified,
that
she should be on the look-out for glass pieces on the road near
the golf course turn-off. There on the left-hand side, in other words
the northern traffic lane, she found some glass pieces. She
indicated by means of the letter “D” on exhibit “K” the point
where she saw the glass pieces. She was emphatic that the road had
not been cleaned up. She had occasion to revisit the scene during
an
inspection
in loco
.
On that occasion she was unable to indicate the exact spot where she
had seen the pieces of glass on the scene. She conceded that
after
six years she was very uncertain when she was asked to describe the
scene. I find her evidence, for these reasons, unsatisfactory
and
inconclusive. How on earth Van Gorkom could have told her to be on
the look-out for pieces of glass on the scene when he himself
did not
see such pieces of glass defies logic and impacts negatively on the
testimony of Van Gorkom.
[43] Ms Du Plessis also mentioned glass pieces in her
evidence. She determined the area of impact on the strength of the
glass pieces,
among others. The glass pieces were on the traffic lane
of the Renault according to her. She conceded that the glass pieces
alone
were not reliable indicators of a probable area of impact
because they have the tendency of spreading during impact. She was
the
king-pin of the whole investigation, yet she did not ensure that
the official photographer took the photograph showing the exact
spot
or area of the glass debris. She made no attempt to have the scene
secured in order to preserve some useful evidential matters
she
observed on the scene such as pieces of glass. Her evidence in this
regard left much to be desired. I got the impression that
lack of
formal training and proper experience in the field of road accidents
and not dereliction of duty on her part was the main
reason for this.
I am unable to accept her evidence of where the concentration of the
pieces of glass was.
[44] Pound also testified about the glass pieces. There
were pieces of glass on the northern traffic lane of the Renault, but
none
on the southern lane of the Golf. His emergency team was
responsible for the job of clearing up the scene. The team would have
swept
the glass pieces off the entire road surface. They would not
have pushed pieces of glass from the southern lane across the barrier
line to the northern edge of the road. During cross-examination he
conceded that he did not really have an independent recollection
of
sweeping the glass off the road in this instance. In his chief
evidence he described one light patch on the northern shoulder
of the
road as the pieces of glass the rescue team would have swept off from
the scene. Another light patch in that same vicinity
was shown to
him during cross-examination. He conceded that such light patch
could also have been glass as well. But that was not
the end of his
concession. In addition, and this is telling against his evidence,
he also conceded that such light patches could
also have been light
soil and not necessarily glass pieces. When he was pertinently asked
whether he had no independent recollection
of his visit to the scene,
his answer was “A vague memory sir, a very, very vague memory”.
This frank answer characterised his
testimony. In effect he was
saying no reliance should be placed on his evidence. On his version
I cannot find that there was glass
debris on the road or find that
his emergency team had cleaned up the scene. It is crystally clear
that no positive credibility
findings can be made in respect of this
witness.
[45] The plaintiff’s expert witness, Badenhorst,
expressed the scientific view that glass debris was not always a good
indicator
of the area of impact. She said the reason for this was in
accordance with Newton’s first law. The essence of that law of
physics
was that an object travels in the same direction until an
unbalanced force acts on it. She explained further that the glass
pieces
or debris pieces in general were once part of a vehicle
travelling at a certain velocity. Upon impact those debris pieces
break
off and continue travelling on a straight line at the same
velocity of the vehicle prior to the collision. They will carry on
travelling
independently until gravitational force pulls them down.
By the time such debris pieces land on the ground, they might have
travelled
quite a distance away from the precise area of impact. The
defendant’s expert witness, Grobbelaar, agreed.
[46] Because debris often scatters over a large area,
using it alone to deduce the area of impact sometimes leads to
inaccurate results.
Although the defendant’s expert witness,
Grobbelaar, agreed with Badenhorst on this point, he understood the
evidence in this
case to be that the concentration of the glass
pieces was on the traffic lane on which the Renault was travelling.
The significance
of the glass concentration on that lane, he said,
was that it gave an indication that the impact must have been more on
the lane
of the Renault than on the lane of the Golf.
[47] For
the reasons I have advanced while I was evaluating the evidence of
the various witnesses individually and comparatively I
could find no
conclusive evidence to support the conclusion that there was a
greater concentration of glass pieces on the northern
lane than there
was on the southern lane. Therefore, I cannot accept Grobbelaar’s
conclusion. He said the following:
“I think
the concentration of glass is there”.
Perhaps this doubtful statement says it all. There is
no photographic material to depict such concentration. Those
witnesses who
alleged the exact lane on which it was were
unimpressive.
“
It is most unsatisfactory
also that there is nothing on the plan even to suggest the existence
of mud droppings or broken perspex,
far less a depiction of where
these crucial items of evidence were found. All that appears on the
plan is a cross with the legend
“point of impact”.”
remarked Baron, JA in
GUARDIAN
ROYAL EXCHANGE ASSURANCE RHODESIA v JETI
1981 (2) SA 102
(ZA) at 106D-E.
All that can
be said without any hesitation is that there were pieces of glass on
the scene scattered on the road.
[48] Now I proceed to examine the evidence of the fluid
spillage. Van Gorkom’s lay opinion was that the two vehicles had
collided
on the northern lane of the Renault because he noticed a big
oil spillage on that lane. The oil spillage was not captured by the
camera or photograph. During cross-examination the witness could
hardly say where the oil spillage was in relation to the white
barrier line. This was a material negation of his earlier testimony
that he noticed a big oil spillage on the lane of the Renault.
He
could not give any sound explanation as to why an expert and
experienced photographer such as Nortje did not take a photograph
of
the one and only oil spillage which he, the investigating officer,
regarded as an important indication of the area of impact.
In
GUARDIAN ROYAL
(
supra
) at
106B
, Baron JA had
this to say about the remissness of the police investigating officer:
“
This Court has said
repeatedly that it is of the utmost importance for investigating
officers to examine the scene of an accident
with meticulous care and
to place before the Court the fullest possible factual information,
including accurate measurements.”
It was not done in the instant case.
[49] As the investigating officer Van Gorkom was
probably the first person to know about the senior prosecutor’s
difficulty with
the witness statement of his colleague, Du Plessis,
concerning how she had determined a point of impact. Yet he did not
deem it
necessary to make a statement in support of the alleged big
oil spillage on the northern lane. It seems to me that he made no
further
enquiries with Nortje to find out why if such an important
oil spillage was shown to him he did not take a photo thereof. The
senior
prosecutor also asked him as the investigating officer to take
the matter up with Bernieri. Again he did not grasp the second
opportunity
in order to explain how it all came about that Du Plessis
drew up the police accident plan as she did. He is the one police
officer
who should have told Du Plessis long before the senior
prosecutor’s queries that her statement was silent in respect of
the big
oil spillage which they had seen on the northern lane and
which, in the circumstances of this accident, they both regarded as
the
most important indicator of the area of impact. I consider his
evidence on this score as unreliable and untrustworthy account of
what he saw and did not see.
[50] Potgieter’s evidence has no direct bearing on the
oil spillage. But it is of vital significance. It will be recalled
that
she visited the scene a day after the fatal accident. She was
certain that the scene had not been cleaned up. This was in sharp
contrast to Pound’s testimony. She found pieces of glass not on the
northern shoulder of the road but right on the trafficable
surface of
the road on the northern lane. Her testimony cast some serious
doubt on any suggestion that the oil spillage could have
been cleaned
up by the emergency service team on the day of the accident.
[51] Pound said that any oil which his team might have
found on the road would definitely have been covered with a bit of
sand and
then pushed off the road. However, on this particular
occasion, he could not recall cleaning up any oil from the road. The
remarks
I have previously made about this witness were as valid there
and then as they are here and now. In a nutshell his evidence is
incredible
and unreliable. The rescue truck and the ambulance, he
said, were in perfect roadworthy condition. He ruled out any
possibility
that any oil could have leaked from anyone of those
vehicles while they were on the scene.
[52] About the oil spillage Du Plessis phrased her
observation in the following manner:
“
Daardie oggend op die toneel
het ek ‘n oliekol in, ek kan nou maar sê, die oorledene se baan
gesien …”
Like her colleague Van Gorkom, she told the court that
the specific oil patch she was talking about was not on the
photograph “B1”,
but she indicated on the same exhibit the spot
where the oil patch was more or less. She differed with her
colleague Van Gorkom
somehow. She supposed that the rescue team had
cleaned up the scene which was why the oil patch was no longer
visible when Nortje
returned to the scene during daytime to take the
additional photographs. However, her supposition was negated by
Potgieter and nullified
by Pound. There is absolutely nothing on her
plan depicting precisely where such crucial piece of real evidence
was. She made two
affidavits in respect of the accident.
[53] What emerged from the primary testimony of this
witness was that she did not observe the sweeping or cleaning up of
the scene
by the rescue team. The leader of the rescue team cannot
remember that his team ever cleaned up the scene. The deceased’s
sister
is certain that the scene had not been cleaned up. She did
not see any oil spillage. The rescue crew leader did not see the oil
spillage. Could it be that the fresh and big oil spillage had
evaporated into thin air overnight? Du Plessis made two affidavits
in respect of the accident. In her contemporary statement she made
no mention whatsoever of the oil spillage, but in her supplementary
statement made over 2½ years later she mentioned the fresh big oil
spillage for the very first time. During cross-examination she
confirmed that if there were two or more fresh oil patches which had
attracted her attention she would have highlighted them on the
police
accident plan, in other words her sketch plan. But she conceded that
in this instance there was only one obvious oil spillage
and that she
failed to highlight its position on the police accident plan or to
make mention thereof. She conceded that she knew
an oil spillage on
the scene of the accident was a very important indicator of the
possible area of impact. She conceded it was more
reliable than glass
pieces. She conceded that it was unthinkable that an experienced
police photographer would take a photograph
of a fatal scene of an
accident but leave out an oil patch. In all her 13 years career as a
police officer it was for the first
time in this case that she ever
came across a culpable homicide case where an oil spillage depicting
a possible area of impact had
not been photographed.
[54] About two things she was adamant. The first was
that she indicated all the important points, including the oil
spillage, to the
photographer on the scene while it was still dark.
The second was that she did not return to the scene again during
daytime with
the photographer to indicate any points to him. What she
said in effect boiled down to this: She showed the oil spillage to
the
photographer. The photographer did not immediately take a photo
of the oil spillage although he took three photographs at dawn.

During daytime the photographer returned to the scene without her.
He took more photographs. Again the photographer did not shoot
a
snapshot of the oil spillage for some unknown reasons.
[55] The version of Nortje was: that he returned to the
scene during daytime with Du Plessis; that he took additional
photographs
including exhibit “B1” on the instructions of Du
Plessis; that he highlighted four important points on “B1” as
they were
indicated to him by her. I pause to remark that none of
the four points related to an oil spillage. At first she denied she
ever
returned to the scene with Nortje. Pressured during intense
cross-examination she conceded that she was possibly wrong and that
Nortje was possibly correct. Bearing in mind that it is customary
procedure recognised in police circles that an official photographer
has to be accompanied to the scene when photographs are taken and
bearing in mind also that Nortje’s testimony was not at all
challenged,
his version that Du Plessis was with him on the scene at
12h00 on 1 June 1997 when he took photograph “B1” must be
preferred
to that of Du Plessis. Nortje captured with his camera
what was pointed out to him by Du Plessis. No sound reason was
advanced
as to why he did not capture the oil spillage if there was
one on the northern lane and if he had been instructed to.
[56] It must now be accepted that on the spot she
regarded as a point of impact, there was no oil spillage or traces
thereof. If
there was, she would have instructed Nortje to take a
photograph thereof, because she knew the importance thereof. No word
was said,
and no contemporary note was made about the oil spillage in
question until 31 months later. Until then there was virtually no
mention
of an oil spillage on the northern lane in any witness
statement. Notwithstanding Du Plessis’ original affidavit which
was later
amplified by her supplementary affidavit neither the senior
public prosecutor nor the inquest magistrate could place any
significant
weight on the accident sketch plan drawn by this witness.
It appears to me improbable that there was such an oil spillage on
the
northern lane on the scene. It is a lame argument to contend
that because the standards of proof in our criminal justice system
differs with the standard of proof in our civil justice system, the
attitudes of the prosecutor and the magistrate are irrelevant
in
these civil proceedings. The issue here is not about those standards.
It is about the liability and the creditworthiness of the
observations of the witness and the observations the witness failed
to make on the scene.
[57] Badenhorst expressed a general view that the
position of an oil patch was not in itself always an accurate
indication of an area
of impact. She visited the scene over six
years later and saw no visible dark patch of what could be likened to
the remnants or
site of the oil spillage. She looked at the scenery
photograph “B1” east of the final rest position of the Renault
but could
see no oil mark on the road. She propounded the opinion
that after a motor collision, oil stays on the road surface for quite
some
time. Using the same photographic material, Grobbelaar pointed
out a large darkish stain on the northern lane and said that it could
possibly be the remains of an oil stain Du Plessis had seen. He also
visited the scene more than six years later. It could not
be. It
simply did not tally with Du Plessis’ version. She saw that
exhibit several times when she was giving evidence. She at
no
juncture associated the large darkish stain with the site of the oil
spillage she was talking about. In fact she placed the alleged
spot
of the oil spillage beyond the boundaries of the photo. I deem it
unnecessary to labour the point any further.
[58] So
far I have dealt with the evidence relating to the alleged oil mark
on the northern lane. I am mindful of the evidence relating
to an
alleged oil mark on the southern lane. I shall deal with it later.
[59] Now I turn to the gouge marks. Grobbelaar’s
evidence was that he did a site inspection on Thursday 20 November
2003. On the
northern lane he found two scrape marks. Those two
scrape marks were identical to the two marks which were depicted on
photograph
“A1”. He came to the conclusion that it was probable
the gouge marks he found on the tarmac on the scene indicated the
area
of impact between the two sedans. He advocated the proposition
that the gouge marks were probably caused by the damaged metal
components
of either or both vehicles such as suspension, chassis,
engine or gearbox which would have been forced downwards at the
moment of
impact to leave such gouge marks on the surface of the
road. The forced downward displacement was due to the tremendous
forces generated
between the vehicles at impact.
[60] I have some difficulty with this evidence. The
first problem was that the alleged gouge marks themselves were so
tiny that they
were almost invisible. The witness himself
acknowledged in his chief evidence that it was very difficult to see
those marks. The
second problem was that virtually nobody, I mean no
other witness including the three police officers, Nortjie, Van
Gorkom and Du
Plessis, noticed such marks. The third critic is that
there is no evidence that any of the aforesaid vehicle components
were so
damaged, forced downwards and scraped the tarmac as the
witness assumed. My finding, therefore, is that I can find no causal
nexus
whatsoever between those minute scratches and the accident I am
here dealing with. That being the case, it follows without saying
that such marks have to be disregarded in this complex search for the
probable site, area or point of impact. The witness’ proposition
is juridically invalid and untenable.
When I eliminate the three cardinal assumptions
Grobbelaar had made concerning the precise sites of the glass debris
concentration,
the oil spillage and the gouge marks – all of which
he assumed were on the northern lane, then the factual substratum or
better
still the scientific foundation of his reconstruction theory
begins to crumble. I could find no acceptable objective facts
underpinning
his chief conclusions. In the English decision of
CASWELL v POWELL DUFFRYN ASSOCIATED
COLLERIES LTD
(1939) 3 All ER 722
at
733
, Lord Wright said:
“
My
Lords, the precise manner in which the accident occurred cannot be
ascertained as the unfortunate young man was alone when he was
killed. The court therefore is left to inference or circumstantial
evidence. Inference must be carefully distinguished from conjecture
or speculation. The can be no inference unless there are objective
facts from which to infer the other facts which it is sought
to
establish. In some cases the other facts can be inferred with as
much practical certainty as if they had been actually observed.
In
other cases the inference does not go beyond reasonable probability.
But if there are no positive proved facts from which the
inference
can be made, the method of inference fails and what is left is mere
speculation or conjecture. ”
I
find those words of wisdom very instructive and apposite here.
[61] I return to the evidence of the black mark on the
southern lane in search of the elusive probable area of impact. Van
Gorkom
did not see an oil spillage on the southern lane. He only saw
one oil spillage on the scene but he could not recall whether the
one
oil spillage he saw was to the left-hand side or to the right-hand
side of the white barrier line. His evidence was illogical
and
inconsistent. Logic tells us that if he saw one oil spillage and
such oil spillage was not on the southern lane, then it follows
that
such oil spillage must have been on the northern lane, the lane of
the Renault, in other words, on the left-hand side of the
white
barrier as one drove from west to east on the Klippan Road. He came
upon the scene shortly after the occurrence but saw nothing
of any
importance on the southern lane. He was manifestly not a careful
observer for he did not see the obvious black mark.
[62] Du Plessis commented in her chief evidence that the
black mark on the southern lane as depicted in photograph “B1”
was, in
her opinion, not an oil spillage but a tar mark. She saw only
one oil spillage which caught her attention. The oil spillage she saw
was on the northern lane. During intense cross-examination she
back-tracked and conceded that the black mark on the southern lane
was an oil mark. About that she was 99% certain. The oil spillage
on the southern lane did not catch her attention because it was
small
and the scene was dark. But she shortly conceded that she really
could not explain why she missed such an obvious oil spillage.
She
also conceded that she could not, with responsibility or with
conviction, describe such an oil spillage as an old oil mark which
was not deposited on the road by any of the vehicles involved seeing
that she did not even notice it on the scene. But she denied
the
suggestion that the black mark on the southern lane was the only oil
spillage on he scene. Nortje’s photograph “B1” depicts
the
black mark very well.
[63] Badenhorst described the black mark on the southern
lane as a definite oil spillage. During cross-examination, however,
she
conceded that it could have been a fluid of some kind, for
example brake fluid spillage. But she denied the suggestion that the
black mark could have been bitumen seepage from the tar. She
expressed the view that bitumen does not evaporate or disappear. It
can hold on for as long as six years. Her conclusion concerning the
black mark on the southern lane was that it was an oil spillage
and
that it probably originated from this collision.
[64] Grobbelaar disagreed with Badenhorst about the
nature of the black mark on the southern lane. In his opinion it was
improbable
that the black mark was an oil spillage which could be
associated with impact between the vehicles involved in this
accident. In
the first place if the oil came from the damaged
gearbox of either of the vehicles the shape of the black mark would
have been an
aerial splatter of oil and not a circular patch of oil.
In the second place such visible splash deposit would have a small
trail
of oil droplets leading to the final rest position of the
vehicle with a damaged gearbox and not just a nicely defined single
patch
of oil. In the third place the oil patch deposited at impact
would have exhibited some directional properties and not have an
almost
circular shape. He therefore disagreed with Badenhorst that
the black mark could be related to this accident. In his opinion the
black mark could also be the bleeding of the tar, the so-called
bitumen.
[65] In an attempt to find the probable source of the
black mark, it must be remembered that no real forensic test was
carried out
in a science laboratory to ascertain whether the black
mark was caused by an oil spillage from a car or bitumen bleeding
from the
tarmac itself; that a trail of a few smaller black dots
imprinted on the surface of the road in a westerly direction from the
original
black mark can be seen; that those smaller black dots are
approximately of equal distance apart; that the black dots gradually
fade
away the further one moves away from their original source; that
they are in a straight line almost parallel to the white barrier
line; that they were apparently brought about by the wheel of a
vehicle which had uplifted the liquid substance from the original
spot of the black mark and repeatedly imprinted it on the surface of
the road at regular intervals as it was rotating; that the
defendant’s
two witnesses conceded that the indications were that
the black mark could be an oil mark; that there was no concession on
the plaintiff’s
side that the black mark could be tar bleeding. The
concessions on the defendant’s side fortified Badenhorst’s
conclusion that
the black mark was probably not bitumen but one kind
of fluid or another. The black mark in question, is a crucial item
of real
evidence or physical evidence which provided a factual
foundation of Badenhorst’s view. On the strength of the available
evidence,
I find Badenhorst’s view preferable to Grobbelaar’s
view on the preponderance of probabilities.
[66] The next question is: how did such liquid substance
possibly land on the scene? We know that between 03h35 and 12h00 on
Sunday,
1 June 1997 a few vehicles besides the two sedans involved
were on the scene, among others, the ambulance, the rescue truck, the
police vehicles and Bernieri’s car. The defendant’s witness ruled
out the possibility that the substance could have leaked from
the
ambulance or the rescue truck. There was no suggestion it could have
leaked from Bernieri’s car or any police vehicle.
[67] Is there a chance that the black liquid substance
came from an unknown vehicle before the accident occurred or sometime
afterwards,
but before Nortje returned to the scene at or about
midday to take additional photographs including exhibit “B1”?
The first
scenario would mean that the Renault and the Golf collided
on the spot where, by sheer coincidence, there was already a fluid
spillage
deposited prior to their collision. The second scenario
would mean that the Renault and the Golf crashed into each other on
the spot
where there was no fluid spillage but that soon afterwards
an unidentified vehicle, again by sheer coincidence, deposited a
black
fluid on the accident scene on the spot inside the ambit of the
area suspected to be a probable area of impact. Implicit in each
of
these two scenarios is the conclusion that no droplet of a fluid
whatsoever dripped from any of the two sedans concerned. That
is a
proposition I find very difficult to accept judging by the very
extensive damage to the sedans. Although the scenarios may offer
possible explanations of the origin of the black mark, they are
highly improbable given the particular circumstances of this case.

Notwithstanding Grobbelaar’s mighty reasons to the contrary, it
must be kept in mind that strange things often do happen when
vehicles collide. Eksteen, J as he then was, reminded us about it in
the case of
MOTOR VEHICLE ACCIDENT FUND v
KENNY
1984 (4) SA 432
(ECD) at 436H-I:
“
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, …”
I have found, on a balance of probabilities, that the
black mark on the southern lane was an oil spillage deposited at the
moment
of impact by either the Golf or the Renault.
[68] The
fact that meat-pie was found in the mouth of the driver of the
Renault and a can of beer found between his legs immediately
after
the accident suggest that he was probably eating or drinking at the
time of the accident. Several exhibits relating to the
alcohol found
in the blood sample extracted from the driver of the Renault were
handed in by counsel for the plaintiff with the express
consent of
counsel for the defendant. Therefore the contention of the latter
that those exhibits were inadmissible evidence had
no substance. I
am inclined to say it seems to me that this belated bid by counsel to
have the alcohol evidence excluded gives credence
to Bernieri’s
testimony in much the same way as the beer on the lap and the pie in
the mouth of the deceased do. Although this
witness was unable to
testify as to the area of impact and as to which vehicle had crossed
the barrier line onto the incorrect side
of the road, it can be
deduced from his evidence that shortly prior to the accident the
Renault was driven in a negligent manner.
His testimony is the only
direct evidence of any value we have of the accident in this case.
He is the only witness who actually
saw the two motor vehicles
shortly before their collision and stopped on the scene. The
excessive amount of alcohol, namely not 0,12
ml per 100 ml of his
blood sample suggests that his mental faculties were probably
impaired and his driving abilities somewhat diminished.
While his
driving abilities or skills were already compromised by the excessive
amount of intoxicating alcohol he had already consumed,
eating or
drinking further while driving certainly made the already bad
situation worse. Either of them probably had an adverse
impact not
only on his level of alertness or concentration, but also on his
abilities to manipulate the car as is required of a driver.
[69] The final rest position of the plaintiff’s
vehicle was on the southern side of the road. The final rest
position of the insured
driver’s vehicle was on the northern side
of the road. It was contended on behalf of the defendant that the
probable explanation
of the situation was that a south-westerly force
should have struck the Renault from the front at an angle while the
Renault was
moving eastwards straight on its correct lane; that the
Renault was stopped on its tracks and; that the Renault was then
pushed backwards
albeit diagonally across the northern lane to its
final rest position. This first scenario implies that the Golf was
the offending
vehicle. On behalf of the plaintiff it was contended
that the probable explanation of the situation was that a
north-easterly force
should have struck the Golf from the front at an
angle while the Golf was moving westwards straight on its traffic
lane; that the
Golf continued in the same westerly direction albeit
diagonally across the southern lane to its final rest position. This
second
situation implies that the Renault was the offending vehicle.
[70] I am persuaded by Grobbelaar’s scientific opinion
that both scenarios are equally possible, provided all other factors
are
neutral. But the objective facts strongly militate against the
first scenario. There is virtually no objective fact let alone
evidence
to suggest that the Golf instead of taking the light bend to
the left, moved over the barrier at the second kink and that as it
was
trying to move back to its correct lane, collided with the
Renault. On the other hand, the oil spillage on the southern lane is
a crucial piece of physical evidence which objectively strengthens or
favours the second scenario. From this reliable, invaluable
and
objective aid, I am able to determine the probable area of impact
from which a court may be able to draw an appropriate inference
of
negligence. (
Vide
HULLEY v COX
1923 AD 234)
. A court of law can decide an
issue of negligence on probabilities provided it is able to weigh one
set of probabilities against
another set in order to ascertain the
most probable cause of the accident. (See
HAMILTON
v MACKINNON
1935 AD 114
).
In the case of
AA ONDERLINGE
ASSURANSIE BPK v DE BEER
1982
(2) SA 603
(A)
the court held per Viljoen,
JA at
604G
that:
“
It
is not necessary for a plaintiff invoking circumstantial evidence in
a civil case to prove that the inference which he asks the
Court to
make is the only reasonable inference. He will discharge the onus
which rests on him if he can convince the Court that
the inference he
advocates is the most readily apparent and acceptable inference from
a number of possible inferences.”
[71] The circumstantial evidence favours the inference
which the plaintiff advocates for acceptance. Although the area of
impact
was on the lane of the plaintiff, the proximity of the
relevant oil spillage to the barrier line seems to suggest that both
vehicles
were travelling close to the centre line when they collided.
From this the most readily apparent and legitimate inference which
I
am inclined to draw from a few possible inferences is that the
collision occurred more or less in the centre of the road. (See
JADEZWENI v SANTAM INSURANCE CO LTD AND
ANOTHER
1980 (4) SA 310
(CPD)
per Watermeyer, JP at
311G-H
and
312C-H
). The
objective facts suggest that the plaintiff was travelling at an
excessive speed and that he took no evasive action. There
were no
brake marks or skid marks observed on his lane. Having considered
all the relevant factors I am of the view that an apportionment
of
70% - 30% in favour of the plaintiff is fair and equitable in the
circumstances of this case.
[72] As regards the issue of costs I am in agreement
with the decision of
BAPTISTA v STADSRAAD
VAN WELKOM
1996 (3) SA 517
(O)
per Lombard, J as well as
FAIGA v BODY
CORPORATE OF DUMBARTUM OAKS AND ANOTHER
1977(?) (2) SA 651 (W)
. I am of the opinion
that no special circumstances exists why the plaintiff should not be
entitled to the costs.
[73] Accordingly judgment on the merits is granted in
favour of the plaintiff. The defendant is ordered to pay the costs
of this
case including the qualifying fees of his expert witness Ms
Wilna Badenhorst.
________________
M.H. RAMPAI, J
On behalf of
Plaintiff:
Adv.
C. Ploos van Amstel SC
Instructed by
Honey
& Partners
On behalf of Defendant:
Adv.
A. Camp
Instructed by
Webbers
/scd