About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1990
>>
[1990] ZASCA 20
|
|
Hurn v AA Mutual Insurance Association Ltd. (394/88) [1990] ZASCA 20 (22 March 1990)
Case No 394/88 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
CLYDE LESLIE HURN
Appellant
(Plaintiff
a quo
)
and
A A MUTUAL INSURANCE ASSOCIATION LIMITED
Respondent
(In Liquidation) (First Defendant
a quo
)
CORAM: BOTHA, SMALBERGER, MILNE, KUMLEBEN JJA et GOLDSTONE AJA
DATE OF HEARING: 5 March 1990
DATE OF DELIVERY: 22 March 1990
JUDGMENT
MILNE JA/
-1-
MILNE JA:
On 10 November 1982 at about 9 a.m. a collision occurred between two vehicles
at the intersection of Columbine Avenue and Royal Park
Drive, Mondeor. One of
the vehicles was an 8 ton truck ("the truck") driven by one Nthlabathe; the
other was a Golf motor car ("the
Golf") driven by one Lane. The appellant's son
("the minor") was being conveyed in the Golf at the time and allegedly suffered
serious
brain damage and a fracture of the femur in the collision. The truck was
insured by the respondent in terms of the Compulsory Motor
Vehicle Insurance
Act, No 56 of 1972.
The appellant sued the respondent for damages alleged to have been suffered
by the minor as. a result of the negligent driving of
the truck. The appellant
also sued the insurer of the Golf in the alternative, but this action
-2-
was settled before the trial and nothing more need be said about it. The
respondent gave a Third Party notice to Lane claiming a declaration
that Lane
was obliged to contribute to any award of damages made against the respondent in
favour of the appellant.
At the commencement of the trial it was agreed that the trial court should
first determine the issue of liability as a separate issue
in terms of Rule
33(4) of the Rules of Court.
The learned trial judge (Flemming J) found himself unable to resolve the
conflict in the evidence in the appellant's favour and granted
absolution from
the instance with costs. He also found that the respondent had failed to
discharge the
onus vis-á-vis
Lane and ordered the respondent to
pay Lane's costs. The trial court granted leave to the
-3-
appellant to appeal to the Full Court. No leave was sought by the respondent
in respect of the order for costs awarded against it
in favour of Lane. The Full
Court dismissed the appeal, but in terms of s 20(4)(a) of the Supreme Court Act,
No 59 of 1959, the appellant
was granted special leave to appeal to this
Court.
For reasons which will become apparent it is necessary to consider the
evidence in some detail. The following matters were common
cause: Shortly before
the collision the truck was travelling in Columbine Avenue in an easterly
direction and the Golf was travelling
in the same road in a westerly direction.
At the intersection of Columbine Avenue and Royal Park Drive, Lane intended to
turn to
his right into Royal Park Drive. The eastbound carriageway in Columbine
Avenue was separated from the westbound carriageway by traffic
islands. At the
time of
-4-
the collision the islands to the west of the intersection did not continue
right up to the intersection but ended some 19 m short
of it. The islands to the
east of the intersection did continue up to the intersection.
The version contended for by the appellant was that Lane commenced his
right-hand turn and stopped the Golf in the centre of the intersection
between
the traffic islands, and that the truck hit the Golf on its left front when it
was stationary in that position. The version
contended for by the respondent was
that the Golf suddenly swung across the path of travel of the truck at a stage
when it was too
late for Nthlabathe to take effective avoiding action. It is
implicit in Nthlabathe's version that the Golf was not stationary when
the truck
collided with it and he, eventually, placed the point of impact approximately in
the middle of the eastbound carriageway
and said that the
-5-
truck struck the Golf in the middle of the left-hand side more or less in the
vicinity of the passenger door.
I deal firstly with the evidence adduced for the appellant. The appellant's
son (the minor) simply testified that he had no recollection
whatsoever of the
accident and this was not challenged. Lane described how he drove the Golf in a
westerly direction along Columbine
Avenue on the day in question. He said that
at the intersection the robot was green for him "... so I proceeded through to
wait for
the oncoming traffic that had the right of way." He stopped on his side
of the road between the two islands. He had no recollection
whatsoever of what
occurred thereafter until some three and a half weeks later when he recovered
consciousness in hospital. When
asked whether the front portion of the Golf
protruded onto his incorrect side of the road he replied "Well, I can't really
say that.
I don't
-6-
think it was. It was between the two islands." He could not remember whether
the oncoming traffic that caused him to stop was a car
or a lorry. He did
remember seeing a white truck but he could not remember whether it was parked or
moving. The most important witness
for the appellant was a Mrs Booysen
("Booysen"). She was the owner of a shop on the north-easeérn corner of
the intersection.
She testified that she was standing at her front desk when her
attention was caught by a sound which she described initially as "braking"
but
subsequently, and more graphically, as "tschoo". She looked up and saw the truck
travelling in an easterly direction along Columbine
Avenue (in the lane nearest
the traffic island) passing a parked truck. She then heard a second sound
similar to the first, and at
that stage saw "... this little red car" (the Golf)
stationary in between the islands in the intersection. The truck was going fast.
It hit the left front side of the Golf "... and
-7-
then started munching it up the road" - with the Golf disappearing under the
truck and being pushed right across the intersection
and some distance up
Columbine Avenue on the eastern side of the intersection and eventually ending
up on the pavement.
W/O Rossouw was, at the date of the collision, the manager of a filling
station on the south-eastern corner of the intersection. His
evidence was to the
effect that, at the time of the collision and for some time before, road-works
were being constructed east of
Mondeor. A number of heavily laden trucks
carrying stone for the road-works would travel daily along Columbine Avenue and
through
this intersection past his filling station. There was a dip west of the
intersection and a long hill for approximately 1 km east
of the intersection. He
said "... dit was opmerklik gewees dat die voertuie, as hulle
-8-
afkom van wes na oos het hulle van die afdraande gebruik gemaak om spoed op
te tel, sodat hulle teen hierdie hoogte uit kan ry.
En by die kruising self?
U Edele, die kruising was male
sonder telling deur my persoonlik gesien
rooi, of geelkleurig, en daardie voertuie kon nie stop nie, hulle het regdeur
gery."
As a result, he telephoned the traffic authorities and they
established
speed traps in the vicinity of the dip but the
position never improved. I
mention this evidence only
because it has a bearing on the evidence of
Nthlabathe at a
certain stage during his cross-examination.
The main witness for the respondent was the drïver of the truck,
Nthlabathe. He testified that on the day in question he was
driving the truck
along Columbine Avenue in an easterly direction. The truck was loaded with
stone. As he went through the dip west
of the intersection he was travelling at
about 50 km/h. As he approached the traffic lights in the intersection between
Columbine
Avenue and
-9-
Royal Park Drive they were in his favour and he changed from sixth gear to
fifth gear and continued into the intersection. Immediately
after he entered the
intersection "... a red car came into the intersection and turned right in front
of me." He estimated the distance
between the truck and the car when it turned
as about 2,5 m. He swerved and applied his brakes but it was too late to avoid a
collision.
The witness, Koen, who was also called by the respondent, does not
really take the case any further.
The crucial question to be decided was whether the Golf was stationary
between the traffic islands at the time of the collision or
whether it swung
across the path of travel of the truck and was struck by it in the middle of the
eastbound carriageway. The evidence
of Booysen and Nthlabathe is conflicting and
mutually destructive. The learned trial judge came to the conclusion that both
Booysen
-10-
and Nthlabathe were honest witnesses who tried to convey what they had seen.
He said "I think that they both spoke the truth" by which
he plainly meant that
they both attempted to speak the truth as they saw it. He then went on to say,
however, that "they both had
their limitations, more so in the case of
Nthlabathe who had more noticeable and glaring non-satisfactory aspects."
It is, of course, trite that the trial court is steeped in the atmosphere of
the trial and has the advantage of seeing and hearing
the witnesses. It is,
accordingly, rare for an Appeal Court to disturb the trial court's findings of
fact based on the credibility
of witnesses. I am, however, driven to the
conclusion that the evaluation by the learned trial judge of the witnesses is
seriously
flawed. He found that Booysen was "in a good position to distinguish a
moving vehicle from a
-11-
stationary one - that is, of course, if she looked for long enough and not
really at the last moment."
The accident, as I have already mentioned, took place at
nine o'clock in
the morning and, as mentioned by the trial
judge, it was not suggested
that her vision was obstructed
in any way. He said, however,
"With such a fleeting moment of observation I cannot exclude fully the
possibility of mistake, that she missed some movement of the
red car and that
although she believed that the car was stationary that was not in fact the case.
As far as the place where the car
was, again, she looked at an awkward angle to
assess position to the east and from some yards away and she did not even
purport to
be categorical about the exact position of the vehicle."
This reasoning is open to criticism in a number of respects.
The test was not whether the court could "exclude fully the
possibility of mistake". This is a misdirection.
Throughout her evidence she was adamant that she saw the
truck and the Golf before and at the moment of collision and
that the Golf was stationary in between the islands at the
moment of collision. The question which the court had to
-12-
determine was whether there was sufficient reason not to accept her emphatic
and insistent assertion that she did not make a mistake
despite the fact that
she had only a very short time in which to observe the vehicles. This could only
be determined by weighing
up her evidence against Nthlabathe's and comparing
their respective reliability with due regard to the probabilities.
There is, in my view, no reasonable possibility of Booysen being mistaken.
Even if a car is moving very slowly and one sees it for
a split second then, in
the ordinary course of events, one is perfectly well able to judge on a clear
day at nine o'clock in the
morning whether it is moving or stationary. This is
all the more so when it is common cause that she was in a good position to
distinguish
a moving vehicle from a stationary one and when her attention had
been drawn to the truck by the noise which she
-13-
described and, on her version, she was looking at the truck
and the Golf
before the collision. There is simply no
evidential basis for the suggestion
that she "looked at an
awkward angle". As already mentioned, there are
passages in
the judgment to the contrary. Two further but rather
tentative
points of criticism of Booysen's evidence were
raised by the learned trial judge. The first is expressed
as follows
"The first application of brakes is perhaps one of the unsatisfactory
features of Mrs Booysen's evidence in the sense that it sounds
improbable that
there would have been a braking and she is unable to explain what she had ,
really heard in such a way that the court
can think that she really heard a
braking."
There is no substance in this criticism. Booysen heard a
sound which she thought came from the truck and which she
first described as "braking". She then said that the sound
was a sound
which is reflected on the record as "tschoo".
This may well have been the
sharp expulsion of air from the
-14-
air-pressure tank which is commonly used in the braking
systems of heavy
vehicles such as buses and trucks. There
is no evidence on the point except that she said that "I
hear it (this
sound) all the time now when the trucks come
down the street." In any event,
her version was that the
truck was going fast and it had to take a turn to
the left
as it approached the intersection. There is, therefore, no
inherent improbability in what she says. The second point
of criticism is the following:
"If her observation of the Golf was of any duration of time one would have
expected her to see this truck. For a reason which is not
quite clearly known
she cannot really say why she did not see it earlier."
I do not understand this criticism. She said that she saw the truck when her
attention was drawn to it by the noise already mentioned
and that thereafter
when it again made a similar noise she saw the Golf. There does not appear to be
any reason why she should have
seen the truck earlier than
-15-
she did. It then seems to be suggested (by implication) that there is an
inconsistency between her evidence that the Golf was on its
correct side of the
road and the fact that "she does not anywhere purport to say that the truck was
on its wrong side of the road."
On her evidence the collision occurred between
the islands. If this constitutes a collision on the truck's wrong side of the
road
then she did say that the truck was on its wrong side of the road. If,
however, a collision between the islands is not on the truck's
wrong side of the
road there is no inconsistency.
One final matter which the trial court apparently took into account in
weighing up the respective versions, was the fact that Nthlabathe
said that the
Golf was struck on the passenger door and that this evidence was "not
challenged". Here again the learned trial judge
has misdirected himself. There
was no need to challenge this
-16-
evidence of Nthlabathe since Booysen had said quite plainly in her evidence
that the Golf was struck on its left front.
There are, however, some improbabilities in Booysen's version. This was the
main basis upon which the Full Court dismissed the appeal.
I shall deal with
this aspect after consideration of Nthlabathe as a witness.
The record reveals that he flatly contradicted
himself on a vital aspect of the case. It also reveals that
he was an evasive and truculent witness. The contradiction
relates to when he first saw the Golf. His evidence in
chief suggested that he first saw it when it turned in front
of him. This was confirmed in cross-examination when he
said
"When I entered the intersection I did not know where this red car came from.
I only saw it at the time when it turned right in front
of me."
-17-
He had a clear view of the intersection and of Columbine
Avenue as he
approached and there was nothing travelling
ahead of him, so he said. There
is, therefore, no reason
why he should not have seen the Golf as it
approached the
intersection. In fact, at a later stage in cross-
examination, he said
quite clearly that he had seen it
before it turned.
"Right, you then approached the intersection? Yes.
And you never saw the
approaching red car at that stage?
The witness (the interpreter is here
speaking and referring to Nthlabathe) can't say how this vehicle - that car came
from the front,
it just came and turned. That you already indicated to his
Lordship, but before it
made its turn didn't you see it approach? Well, I
did
see it but I thought it was going to drive past."
In the next breath, however, he reverts to his original
version.
"So did you see it before it made a turn? It just came
into the intersection - at the time when I saw it, it came
into the
intersection and turned right in front of me, that
is when I swerved to the
left.
Where was that car when you first saw it? When I first
-18-
saw it was at the time when it turned right in front of me.
It was at this
distance turning in front of me.
When you first saw it was it travelling
straight, that is
east/west, or was it already negotiating a turn? It
was
negotiating a turn.
So it was already in the intersection? Yes. And
at the
time they collided.
You didn' t see it at any time bef ore it was
in the process
of making a turn? I did not."
The trial court deals with this contradiction as
follows:
"I think that his one answer that he referred to seeing it, is to be
understood that he had some awareness of the vehicle but did
not make a
pertinent observation."
I do not really understand what the learned judge was trying
to convey in this passage. Making due allowance for the
fact that Nthlabathe was giving evidence through an
interpreter, this is a glaring and important contradiction.
His excuses, furthermore, for not having seen the Golf
before it was in the process of turning in front of him are
lame in the extreme. One is left with the clear impression
-19-
that he did not see the Golf at all before the collision because he was not
keeping a proper look-out.
It is clear, furthermore, that he was deliberately obstructive when he was
questioned about the way in which trucks were habitually
driven in the vicinity
of the intersection (against the background of Rossouw's evidence that trucks
used to gather speed going down
the dip and build up momentum in order to travel
at a good speed up the long hill and that they frequently went through a red
light
or yellow light at the intersection because they could not stop). When
cross-examined about how these trucks used to go through the
dip and through the
intersection he quite plainly evaded answering the question because he thought
that he might get himself into
difficulties and he attempted to avoid giving any
kind of answer to the questions. He said that he had been driving up and down
Columbine
Avenue
-20-
for three years before this accident, but it was only in
answer to
repeated questions by the trial judge that he was
even prepared to admit that
he had seen other trucks driving
on that road. When he was cross-examined
about the speed
that he was travelling at, it is quite apparent that he
was
not prepared to make any concessions, even if they were the
truth, which he thought could conceivably reflect upon his
own evidence or
that might weigh unfavourably against him
or the respondent's case. Having said in his evidence in
chief that he was travelling at about 50 km/h in the dip he
said when asked about the maximum speed of the truck
"On the meter is written 100 but it did not reach that speed. On a level road
it would go up to about 25".
He was not even prepared to say that the truck could reach
60 km/h going downhill and heavily loaded and when
challenged on that said that would be exceeding the speed
limit. When it was put to him that travelling at 60 km/h
-21-
would not be exceeding the speed limit he reverted to saying
that. the
truck could not reach that speed. He eventually
was driven to saying
"... and that law says we are not supposed to drive above 50 - between 50 and
60."
The trial court described this evidence of Nthlabathe as
"... avoidance rather than evasion."
He said
"It is reluctance to go into the topic rather than being untruthful on those
topics on which he did give answers."
The point is he was reluctant to give a
truthful
answer to
the guestions because he thought it might land him in
difficulty. Not only is this an indication that the witness
was not frank and open, the fact of the matter is that in
giving the answers that he did he was being deliberately
untruthful.
It is a further criticism of Nthlabathe that his
-22-
version as to the particular part of the Golf that was struck by the truck
was not put to any of the appellant' s witnesses, nor was
his version as to
where in the road the collision occurred. To sum up thus far, Booysen was a
wholly satisfactory witness and Nthlabathe
was an untruthful witness.
I deal now with the probabilities. The main criticism of Booysen's version is
that in order to strike the Golf the truck would have
had to deviate to its
right. If of course the Golf was protruding slightly between the two traffic
islands into the truck's right-hand
lane the truck would not have had to deviate
at all to strike it. Taking into account, however, that this is not the version
contended
for by the appellant, one has Booysen's unequivocal evidence that the
truck was going fast. When one adds to that, that the truck
was either taking or
was
-23-
just coming out of a left-hand bend so that centrifugal force would tend to
push it out towards its right, the improbability is diminished.
This is all the
more so if Nthlabathe was not keeping a proper look-out. When one examines
Nthlabathe's version, however, it is clear
that his account of the collision
cannot possibly be right. He says that when the Golf was some 2,5 m in front of
him it turned across
his path. He then swung to his left and struck the Golf in
the vicinity of the left hand front door and approximately in the middle
of the
esstbound carriageway. He was, so he says, travelling in his right-hand lane,
that is to say, closest to the traffic islands
and if the Golf swung across his
path when he was only 2,5 or even 5 m away it is simply not possible for his
truck to have swerved
so as to strike the Golf in the middle of the eastbound
carriageway.
-24-
I have already referred to several material misdirections by the trial court.
This leaves this Court free to reassess the evidence
on the record. Having done
so, I am satisfied that the appellant discharged the
onus
and the trial
court should accordingly have found that the respondent was liable to the
appellant for damages caused in the collision.
There is not even a theoretical
possibility of the appellant not proving any damages since it was agreed at the
pre-trial conference
that the appellant's past medical expenses in respect of
the minor were R334.32.
The order of the court is as
follows:
(a)
The appeal succeeds with
costs.
(b) The order of the Pull Court is set aside and the following order is
substituted therefor:
"(i) The appeal
succeeds with costs.
(ii) Save in respect of the order for costs
-25-
made against the defendant in favour of the Third Party, the order of the
trial court is set aside and there is substituted an order
that the defendant is
liable to the plaintiff in damages and that the def endant is to pay the
plaintiff's costs of the hearing."
A J'MILNE
Judqe of Appeal
BOTHA JA ] GOLDSTONE AJA ]