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1993
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[1993] ZASCA 1
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Leine N.O. v National Employers' General Insurance Company Ltd. (189/91) [1993] ZASCA 1 (8 January 1993)
Case No 189/91 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
Between:.
PATRICIA LEINE N.O.
Appellant
- and -
NATIONAL EMPLOYERS' GENERAL
INSURANCE COMPANY LIMITED
Respondent
CORAM:
HEFER,
VIVIER, VAN DEN HEEVER JJA
et NICHOLAS, HARMS AJJA.
HEARD:
17
November 1992.
DELIVERED:
8
January 1993.
JUDGMENT
VIVIER JA.
1.
VIVIER JA.
At about nine o'clock on Saturday evening 3 September
1983 Bernard Leine, then 15 years old, was walking on or near the
eastern sidewalk
of Moseapoa Street in the township of Huhudi near
Vryburg when he was struck by a Datsun light delivery vehicle driven
by one Liso.
As a result of the collision Bernard sustained severe
brain injuries. During November 1985 Mrs Patricial Makgosi Leine, in
her capacity
as Bernard's mother and natural guardian, instituted an
action in the Northern Cape Division against the respondent as the
authorised
insurer of Liso's motor vehicle under the Compulsory Motor
Vehicle Insurance Act 56 of 1972 ("the Act"), claiming
compensation
in terms of sec 21 of the Act for loss and damage
suffered as a result of the bodily injuries which Bernard had
2.
sustained. During the course of the trial, on 19 May
1989, Mrs Leine and Mr Johan Schoon were appointed curatores bonis in
Bernard's
estate with the power, inter alia, to assist him in the
said action and to control and administer his property. The necessary
consents
to the substitution, for the plaintiff, of the curatores
bonis, were subsequently filed. They must consequently be regarded as
the
plaintiffs and the persons entitled to any compensation awarded
in the said action. I shall refer to them as the appellants.
The trial came before ERASMUS J who was asked by the
parties to decide only the question of liability, leaving the issue
of the quantum
of damages for later determination. After hearing
evidence on the issue before him, ERASMUS J found that the
3.
collision had been caused solely by the negligence of
Liso. The parties thereafter settled the quantum of damages and an
order was
made by ERASMUS J awarding compensation in an amount of
R275 000-00 with interest thereon and costs. With the leave of
ERASMUS J
the respondent appealed to the Full Bench of the Northern
Cape Division on the ground that it had not been shown that Liso was
negligent.
The appeal was upheld and an order for absolution from the
instance with costs substituted for that granted by ERASMUS J. With
the
special leave of this Court the appellants now appeal against the
order granted by the Full Court.
Where the collision occurred the roadway of Moseapoa
Street is 8 metres wide and runs from south to north, carrying
traffic in both
directions. It has a
4.
tarred surface. The sidewalk on its eastern side is
two-and-a-half metres wide with a gravel surface, and is separated
from the roadway
by a kerbstone.
It was common cause at the trial that immediately prior
to the collision Bernard was walking in a northerly direction when he
was
struck by Liso's vehicle which was travelling in the opposite
direction. Due to his injuries Bernard was unable to testify at the
trial. However, it is clear from the evidence of two eyewitnesses who
testified on his behalf, Moloki and Vorster, that at the time
Bernard
and some friends of his were on their way to a function which was
being held that night at the community hall which is situated
some
three street blocks to the north of where the collision occurred and
on the eastern side of Moseapoa
5.
Street. The evidence of Moloki and Vorster was clearly
to the effect that Bernard was walking on the eastern sidewalk just
prior to
the collision and that Liso's vehicle mounted the eastern
sidewalk and collided there with Bernard.
Liso, who was the only witness called by the respondent,
was unable to say where exactly the point of impact was or how the
collision
occurred. His evidence was to the effect that he had turned
into Moseapoa Street at its intersection with Church Street, which is
the street immediately to the north of where the collision occurred,
and that he was driving south in Moseapoa Street when he noticed
three persons on the eastern sidewalk of Moseapoa Street about 50
metres ahead of him. He was momentarily blinded by the lights of
an
oncoming car and he flicked his own lights. At that stage he was
driving in second gear
6.
at a speed of between 35 to 40 km an hour and the left
side of his car was about one metre away from the eastern kerbstone.
He had
just passed the oncoming car when he heard the sound of a blow
to the left side of his car. He immediately stopped, got out of his
car and saw a person lying in the roadway, half a metre away from the
eastern kerbstone. Liso's evidence was that, after observing
the
three people on the eastern sidewalk shortly after turning into
Moseapoa Street, he did not notice them again. He at no stage
of his
evidence positively testified that the collision occurred in the
roadway as opposed to the sidewalk. In his evidence in chief
he
denied that he went on to the sidewalk by saying that he would have
felt it had his vehicle left the roadway. Under cross-examination
he
conceded that he could possibly have mounted the sidewalk without
noticing it. His evidence in this
7.
regard leaves one with the distinct impression that he
cannot really say how the collision occurred or where the point of
impact was
and particularly whether or not his car went onto the
sidewalk. His evidence with regard to where Bernard ended up after
the collision
was equally uncertain. Moreover, counsel appearing for
the respondent at the trial very fairly informed the Court at the end
of his
evidence that Liso had told him in consultation that Bernard
was lying on the eastern sidewalk after the collision.
Liso did not favourably impress the trial Court as a
witness. His evidence that he had stopped after the collision and
that Bernard
had ended up in the roadway after the collision was
rejected. In its judgment granting leave to appeal to the Full Bench
the trial
Court pointed out that it had wrongly found that Liso was
travelling from south to north in Moseapoa
8.
Street just prior to the collision, but that this did
not affect either its finding that Liso did not stop or its rejection
of his
evidence that Bernard had landed in the roadway after the
collision. The evidence of Moloki and Vorster that Bernard landed
east
of the sidewalk was accepted by the trial Court.
The trial Court found Vorster generally to be a reliable
witness. It held that Moloki had made a previous inconsistent
statement to
a Mr Serfontein, an insurance assessor, and that not
much weight could therefore be attached to his evidence except where
it was
corroborated by Vorster's evidence.
The basis of the trial Court's decision was that the
versions of Moloki and Vorster, on the one hand, and that of Liso, on
the other
hand, as to the point of impact were mutually destructive
and that it had not been establised that the collision occurred
9.
on the sidewalk as opposed to the roadway. It held,
however, that Liso was negligent on his own version by paying no
further attention
to the pedestrians after having observed them on
the sidewalk when he was still some 50 metres away. The Court a quo
agreed with
the trial Court's finding that it had not been shown that
Bernard was hit on the sidewalk. It held further that it could not be
said
that Liso ought reasonably to have anticipated that one of the
pedestrians he had observed on the sidewalk would suddenly and
unexpectedly
emerge onto the roadway. It had therefore not been
established that Liso was negligent.
Counsel for the appellants submitted in this Court that
both the trial Court and the Court a quo erred in not finding that
Bernard
was struck by Liso's car while he was on the sidewalk. Mr de
Bruin, for
10.
the respondent, conceded the correctness of the evidence
given by Vorster and Moloki that Bernard was walking on the eastern
sidewalk
shortly before the collision. He contended, however, that
for some unknown reason Bernard moved into the roadway immediately
prior
to the collision and was then struck by Liso's vehicle. In
order to deal with Mr de Bruin's submission it is necessary to refer
more
fully to the evidence of Vorster and Moloki.
According to Vorster he was on his way to the community
hall when he noticed Bernard in the company of two others on the
eastern sidewalk
of Moseapoa Street about seventy metres ahead of
him. Bernard was on the left of his two companions. There were other
people about
three metres ahead of Bernard. Vorster saw a vehicle
approaching them a few hundred metres away and to the north of the
intersection
of
11.
Moseapoa and Church Streets. The vehicle was swerving
from side to side across the road and was continually flicking its
lights from
dim to bright. Vorster saw
no other car on the road. As a result of the vehicle's
irregular movements Vorster stood still and he then saw the oncoming
vehicle
swerving to its left towards and onto the eastern sidewalk.
Vorster was adamant that the vehicle had mounted the sidewalk and
said
that its left headlight was then in line with his own position
on the sidewalk. He heard a dull sound as if the vehicle had struck
something on the sidewalk.
The vehicle moved back into the roadway, changed down
from top gear and continued without stopping. When it drove past him
he noticed
that it was a Datsun light delivery van. Vorster continued
on his way and found Bernard lying just to the east of the eastern
sidewalk.
It is clear that the effect of Vorster's
12.
evidence was that Bernard was struck by Liso's vehicle
while he was on the eastern sidewalk. He was seen there by Vorster
immediately
before and after the collision and Vorster saw Liso's
vehicle on the sidewalk when he heard the sound of the impact. The
trial Court
said in its judgment, however, that Vorster was unable to
say whether Bernard was on the sidewalk when he was struck by Liso's
vehicle.
This finding is incorrect. It is based on one solitary
passage in the record where Vorster was asked during
cross-examination to
say where Bernard was when he heard the sound of
the impact. The passage reads as follows :-
"Toe jy daardie geluid hoor, kan jy vir die
Hof se waar was Jomo op daardie oomblik?
Ek sal nie kan vir die Hof se waar was Jomo gewees nie."
It will be seen that the question is ambiguous as it
13.
does not distinguish between the sidewalk and the
roadway, and in my view the reply, if read with the rest of his
evidence, means
no more than that Vorster was unable to say where on
the sidewalk the collision occurred.
Vorster's evidence was corroborated fully by Moloki, who
was with Bernard when the collision occurred. According to Moloki,
six of
them were walking together in Moseapoa Street on their way to
the function. He and two others were in front, followed by Bernard,
one Setibe and one Merafe, with Bernard on the left. A car approached
them from the north in Moseapoa Street and when it was still
some two
street blocks away, he noticed that it was swerving from side to side
across the road. They all moved on to the eastern
sidewalk. As the
car came near them, he was blinded by its headlights and it seemed to
him as if it
14.
was going to hit him. He pushed his two friends, who
were next to him, to the right and jumped out of the way. Had he not
done so
the car would have hit him. As the car passed him he heard a
sound. He looked back, saw nothing on the ground and they continued
walking. It was then said that someone was missing and when they
stopped and looked back they saw Bernard lying some distance to
the
east of the eastern sidewalk. The car did not stop. Moloki's evidence
that Bernard was on the eastern sidewalk shortly before
he was hit by
Liso's vehicle, was not inconsistent with what he had previously told
the insurance assessor, and provides strong support
for the evidence
of Vorster. It is true that Moloki did not actually see Liso's
vehicle on the sidewalk and that he obviously could
not see Bernard
at the moment of impact as he was walking ahead of him. The
possibility that
15.
Bernard moved off the sidewalk at the last moment before
the collision is so remote, however, that it may be discounted. There
was
no reason for him to do so. On the contrary, there was good
reason for staying on the eastern sidewalk. His destination that
evening
lay on that side of Moseapoa Street and it can safely be
accepted that, like Moloki and Vorster, he would have noticed that
the roadway
was unsafe as a result of the oncoming vehicle's
irregular movements. There is simply no factual basis for Mr de
Bruin's suggestion
that Bernard moved into the roadway immediately
before the collision. Moloki's evidence that Bernard landed well to
the east of the
eastern sidewalk after the collision, which was
accepted by the trial Court, is another indication, in my view, that
the collision
occurred on the eastern sidewalk. Considering the
slight damage caused to the vehicle,
16.
it seems unlikely that the force of the impact was
sufficient to have thrown Bernard from the roadway to where he ended
up after the
collision.
I do not regard Liso's version on the essential issues
as being necessarily inconsistent with that of Vorster and Moloki, as
both
the trial Court and the Court a quo have found. The three people
noticed by Liso on the eastern sidewalk when he was still some
distance
away were in all probability Moloki and his two friends,
with Bernard and the other two members of the group behind them. Liso
paid
no further attention to the people on the sidewalk and did not
see them again. As I have said he never positively testified that
the
collision occurred in the roadway as opposed to the sidewalk and he
conceded that he might well have driven on to the sidewalk.
His
instructions to respondent's counsel regarding
17.
Bernard's position after the collision were in
accordance with the evidence of Vorster and Moloki. His version on
these issues does
not, therefore, conflict with that of Vorster and
Moloki. Moreover, his evidence generally was vague and uncertain and
parts of it
were rejected as untrue by the trial Judge who found him
an unreliable witness. His evidence thus does not, in any event,
carry much
weight.
The trial Judge preferred Vorster's evidence, to that of
Liso. On the strength of Vorster's evidence that the collision
occurred on
the sidewalk, which was fully supported by the evidence
of Moloki, and in the absence of any acceptable evidence to the
contrary
by Liso, the trial Court should have found that the
collision occurred on the eastern sidewalk. Once that is established
it is clear
that Liso was negligent in that he failed to keep his car
under
18.
proper control and that such negligence was the sole
cause of the collision.
In the result the following order is made:
1. There is substituted for the plaintiff
the
following -
"Patricia Makgosi Leine and Johan Schoon NNO, in
their capacity as curatores bonis for Bernard Leine, having been
appointed as
such in terms of the order dated 19 May 1989 in Case No
505/89".
The appeal is allowed with costs, such costs to include
the costs of the application to this Court for leave to appeal.
The order of the Court a quo is set aside and the
following substituted -"The appeal is dismissed with costs,
such costs to
include the costs of opposition to the application to
the trial Court for leave to appeal as well as the costs of the Rule
34A
application which were reserved by the trial Court".
W. VIVIER JA.
HEFER JA)
VAN DEN HEEVER JA) Concur
NICHOLAS AJA) concur.
HARMS AJA)