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[2010] ZAWCHC 662
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Louw v Road Accident Fund and Others (8673/06) [2010] ZAWCHC 662 (23 April 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE HIGH
COURT, CAPE TOWN
CASE NO: 8673/06
DATE: 23 APRIL 2010
In the matter between:
GREGORY BRINK
LOUW
........................................................................................................
Plaintiff
And
THE ROAD ACCIDENT
FUND
...................................................................................
First
Defendant
JAMES FRANCIS
MACKAY
....................................................................................
Second
Defendant
JUDGMENT : FRIDAY 23RD APRIL 2010
Rilev, AJ:
[1] In this matter the plaintiff
instituted action against the first defendant, the Road Accident
Fund, the statutory body created
in terms of the provisions of
section 2(1)
of the
Road Accident Fund Act no. 56 of 1996
, and
against James Francis Mackay [hereinafter referred to as Mackay] the
second defendant arising out of a motor vehicle accident
which
occurred in the early hours of the morning on Marine Drive,
Bloubergstrand, Western Cape.
[2] It is common cause that Mackay was
the driver of the vehicle, a Jeep Wrangler and that plaintiff was a
passenger in the said
vehicle, when the vehicle left the road and
collided with a low wall on the left-hand side of the road, before
rolling a number
of times and eventually coming to rest on its side
on the road.
[3] The day before the trial commenced,
the plaintiff filed a notice of withdrawal of the claim as against
Mackay. I was advised
that the insurers of the motor vehicle which
was driven by Mackay had agreed to pay to plaintiff the sum of R2
million in settlement
of plaintiffs’ claims against Mackay.
[4] The matter thus proceeded against
the first defendant only.
[5] Plaintiff alleged that the accident
was caused due to the sole negligence of an unidentified oncoming
vehicle, alternatively
due to the sole negligence of Mackay,
alternatively due to the negligence of both drivers.
[6]
Section 18
of the
Road Accident
Fund Act No. 56 of 1996
provides that the liability of the Fund is
limited to R25 000.00 should the claim be based upon the negligence
of the said Mackay
as the driver in which the plaintiff was conveyed
at the time of the accident. Thus in order to succeed in his claim
against first
defendant for the full quantum of his damages plaintiff
is required to prove that the accident was caused or brought about in
some
or other way by the negligence of another driver (in this matter
the driver of the alleged unidentified "oncoming" motor
vehicle).
[7] The parties agreed that only the
merits of the matter required adjudication, it having been agreed
between them that the merits
and quantum be separated.
[8] It was plaintiff's case that the
accident was caused by the sole negligence of the driver of the
oncoming unidentified motor
vehicle who was alleged to be negligent
in the following respects as is succinctly summarised in plaintiffs
heads of argument:
8.1 he failed to drive with the
vehicle's headlights on so as to warn other road users of his
approach;
8.2 he encroached into the path of
travel of the motor vehicle in which plaintiff was being conveyed
when it was dangerous and/or
inopportune to do so;
8.3 he failed to keep a proper and/or
adequate lookout;
8.4 he failed to exercise any and/or
adequate control of the said vehicle;
8.5 he failed to apply the brakes of
the said vehicle timeously, adequately or at all;
8.6 he failed to avoid a collision when
by the exercise of due care and when in a position to do so, he could
and should have done
so.
[9] At the trial Mr Sher contended on
behalf of the first defendant that:
(1) in the light of the evidence and
the prevailing circumstances at the time, the plaintiff has failed in
discharging the onus
of proving the existence of the second alleged
unidentified motor vehicle;
(2) in any event, plaintiff failed to
prove that if such a motor vehicle was in fact present at the time of
the accident, the driver
of such motor vehicle was in fact negligent
in any way whatsoever;
(3) plaintiff has failed to prove any
causal connection between the driving of such motor vehicle by the
other driver and the resultant
accident in which plaintiff was
injured;
(4) that the evidence demonstrates
unequivocally that the accident was brought about solely by the
negligence of the second defendant.
[10] Plaintiff called constable van der
Merwe, Mackay, Andrew Gerald John (hereinafter referred to as John),
Alan Louw and Candice
Louw to testify on his behalf. The first
defendant did not call any witnesses.
[11] The plaintiff himself did not
testify. I was advised by Mr Corbett, counsel for plaintiff, that as
a result of the aforesaid
accident plaintiff has suffered a number of
injuries, including a diffuse axonal brain injury as a result of
which he did not recall
the events which transpired on the night in
question.
[12] The parties were in agreement as
to the place where the accident took place. An accident report and
plan (Exhibit "B")
prepared by constable van der Merwe and
photographs of the scene and the vehicle as well as a further sketch
plan prepared by Alan
Louw was accepted into evidence. I state at the
outset that I could find no fault with the evidence of plaintiff's
parents, Alan
and Candice Louw in regard to the matters they
testified about. They could however not assist me on the merits of
the matter.
[13] It is not necessary for me to
summarise the evidence of all the witnesses that testified at the
trial. I agree with Mr Sher
that the two material witnesses who were
involved in the accident are Mackay (who after the withdrawal of the
action against him
testified for the plaintiff) and a passenger in
the vehicle, John.
[14] In narrowing down the issues to be
decided on in this matter Mr Sher correctly conceded that the first
defendant had failed
to show the existence of any contributory
negligence on the part of the plaintiff as a result of any alleged
failure on his part
to wear a seat belt.
The merits:
Mackay's evidence:
[15] Mackay testified that on the night
in question he had accompanied the plaintiff and John to a party in
Bloubergstrand. He knew
the plaintiff as a friend since standard 6 at
school and John also attended school with him. They drove to the
party in the Jeep
Wrangler vehicle owned by John's father and it was
driven by John. They were at the party for about 4 (four) hours and
at about
one o'clock in the morning they decided to return
home. Since John was not feeling well,
he asked Mackay to drive the Jeep. Mackay agreed to do so.
[16] He testified that he consumed
about 4 (four) beers and soft drinks in the course of the evening and
that he was not under the
influence of alcohol. According to him he
felt comfortable to drive the vehicle home.
[17] When they set off for home John
was in the front passenger seat and the plaintiff in the back seat.
[18] He testified that it was raining
and that there was little traffic at that time of the morning. He
explained that at the place
where the accident occurred, Marine Drive
consists of one lane in each direction. On the seaside of Marine
Drive is a parking area
which stretches for quite a distance. There
are exit and entrance gaps to allow vehicles in and out of the
parking area onto Marine
Drive.
[19] He testified that he proceeded
along Marine Drive towards Cape Town at a speed of between 60 to 70
kilometres per hour. He
testified that he was coming up to a vehicle
which he said was in the left lane and then decided to overtake the
vehicle as it
was travelling slower than he was. He testified that he
saw that there were headlights of vehicles a safe distance away and
he
then proceeded to overtake what he thought was a red Mazda motor
vehicle.
[20] When he reached a point where he
had overtaken the Mazda and was preparing to
return to what he described as the left
lane John screamed "watch out car" or words to this effect.
In that split second
he interpreted this to mean that there was
danger immediately ahead of them.
[21] He testified that he immediately
swerved left and in doing so lost control of the vehicle. He could
not correct the vehicle
which hit a low wall on the left side of the
road and "flew into the air", hit the wall again and rolled
and ended up
on the left side of the road.
[22] Although he was uninjured he was
very shocked.
[23] He saw John standing on the road
10 (ten) metres or so from him but John fell down. He went to the
plaintiff who was laying
face down on the road.
[24] The police and medical assistance
arrived on the scene and he recalls CPR being administered on the
plaintiff until the ambulance
arrived on the scene.
[25] He was later told by John that
John had shouted as he had seen another car coming from the opposite
direction. He testified
that he did not think the vehicle had its
lights on and that this was the only reason why he could not have
seen it.
[26] He explained that at the time the
warning was shouted he was concentrating on the vehicle that he was
busy overtaking as he
intended to return to the left lane.
John's evidence:
[27] John testified that he had driven
the vehicle to the party. He stated that at the party he had six or
seven beers but that
he was not drunk. He asked Mackay to drive the
vehicle home as he was nauseas and as in his view, Mackay was more
than capable
of driving.
[28] He confirmed the weather and
traffic conditions. He was seated in front and he remembers that
their vehicle's lights were on.
[29] He testified that as they were
driving they approached a red vehicle. According to him Mackay was
looking ahead and as Mackay
proceeded to overtake and just as he was
about to get into the lane in which they were driving previously, he
saw a vehicle coming
from the opposite direction towards them with
parking lights on. He testified that he shouted out at Mackay whose
reaction was
very quick. He testified that Mackay swerved hard to the
left and then the vehicle they were in hit the wall.
[30] According to him the vehicle came
out of the parking area and that Mackay's reaction time was quick.
[31] He testified that if he did not
shout there would have been a head on collision.
[32] During cross-examination he
conceded that he had had discussions with Mackay about his evidence
and in particular the questions
that Mackay had been asked.
[33] He further conceded that six to
seven beers would have "put" him under the influence and
that he could have got unwell
due to the alcohol but that he also had
a stomach bug.
[34] He agreed that he had attended
with Mackay at the attorneys where they had spent an hour.
[35] He was adamant that Mackay was
fine to drive the vehicle.
[36] He testified that since the
vehicle that they were driving in was much higher than a normal
vehicle they could see "over"
the vehicle ahead of them.
That he saw a vehicle coming on in the oncoming lane at a distance of
a hundred metres or so.
[37] He stated that Mackay had a clear
view ahead of him.
[38] That as Mackay was overtaking that
he (John) saw a vehicle with park lights on, coming from the opposite
direction. He first
stated that he assumed that the car came from the
parking area and later stated that he did not know where it came
from.
[39] He denied that the vehicle that he
saw when he shouted was the same vehicle he saw conning on in a
distance.
[40] He was adamant that the vehicle he
saw when he shouted, only had on its parking lights and not its full
lights and compared
it to a Mercedez motor vehicle that his mother
used to have.
[41] He denied that Mackay had decided
to overtake the red vehicle in the face of oncoming traffic and he
could not explain why
Mackay did not see the vehicle approaching
them.
[42] When cross-examined about the fact
that Mackay had overreacted he said that Mackay's reaction was quick
but that Mackay had
overreacted and swerved too sharply and then hit
the wall.
[43] When he saw the "unlit"
vehicle for the first time it was about five metres or so from them.
[44] According to John, Mackay had told
him that he did not see the "unlit" vehicle.
[45] He denied that he had manufactured
the "unlit" vehicle to assist the plaintiff in his case.
The Law
[46] Negligence is the failure to
exercise that care and skill which would be observed by a reasonable
person. Thus a person drives
a vehicle negligently if he fails to
exercise reasonable care in the driving of a vehicle. In civil and
criminal cases the test
for negligence (culpa) is reasonable
foresee-ability. If the reasonable driver would:
(a) have foreseen the reasonable
possibility of his conduct injuring another in his person or
property; and
(b) have taken reasonable steps to
guard against the occurrence and he fails to take such steps his
conduct amounts to negligent
driving.
See in this regard Cooper's Motor Law
Criminal liability Administrative Adjudication and Medico-Legal
Aspects - Hoctor second Edition
Bll - 15
[47] Accordingly in cases of this
nature the court must to the best of its ability, place itself in the
position of the driver at
the time of the occurrence and then decide
whether the driver has exercised the care which the reasonable man in
his position would
have exercised in the circumstances. Caution
should be exercised in not judging the conduct of a driver with hind
sight, and examining
his conduct in the "placid atmosphere"
of the court in the light of after acquired knowledge.
See in this regard Cooper. Motor Law
Volume II pages 48 to 49.
[48] It is trite law that the standard
by which a driver's conduct is to be judged is an objective one.
[49] In this matter the parties are
agreed that this case is concerned with a claim at the instance of an
'innocent' plaintiff such
as a passenger. The law is clear that in
such circumstances all that the plaintiff is required to do is to
prove the proverbial
"one percent" negligence on the part
of the defendant in order to succeed.
[50] Accordingly plaintiff would
succeed with his claim against first defendant if he succeeded in
proving that the accident in
which he was injured was caused by the
negligence of another driver even if such negligence was minimal and
even if there was also
negligence on the part of his own driver i.e.
on the part of Mackay.
[51] The law however requires that, in
order to succeed plaintiff must also prove that there was an
unidentified motor vehicle involved
and that the driver of such
unidentified motor vehicle was causally negligent in regard to the
accident. Accordingly the onus is
on the plaintiff to prove on a
balance of probabilities that there was a "second so called
unidentified motor vehicle"
involved and that the driver of that
vehicle was causally negligent in regard to the collision.
[52] Should I find that there was an
unidentified vehicle involved I will out of necessity have to
consider on the evidence of plaintiffs
witnesses what impact the
driving of such vehicle with only parking lights on, would have had
on Mackay at the time that he decided
to execute the overtaking
manoeuvre.
[53] It is generally accepted that a
motorist has a duty to ensure that his vehicle is properly
illuminated at night when he/she
uses the road, not only to
illuminate the road ahead, but also to warn the road users of his
presence on the road.
See in this regard Sauerman and Others
v New Zealand Insurance Company Ltd
1958 (4) SA 289
(N).
[54] In Ntsala and Others v Mutual and
Federal Insurance Company Limited 1996 (2) SA
184 (TPD) the court held that where a
driver of a vehicle suddenly found himself in a situation of imminent
danger, not of his own
doing, and reacted thereto, and possibly took
the wrong option, it could not be said that he was negligent unless
it could be shown
that no reasonable man would have so acted. The
court further held that, in that case, if the defendant's driver had
in fact acted
in sudden emergency, he had taken proper and obvious
steps by swerving to the left, if he had then lost control of his
vehicle
or if in a panic he had swerved back onto the tarmac and a
collision had followed, he could not be faulted and held to be
negligent.
See also in this regard Goode v SA
Mutual Fire and General Insurance Co Ltd
1979 (4) SA 301
(W).
[55] The steps expected from a driver
facing a sudden emergency are such as a reasonably careful driver
would fairly be expected
to take in the circumstances.
[56] I am therefore mindful that when
dealing with cases where the so-called sudden emergency defence is
involved that this defence
only applies and is only available, if the
person who seeks to rely there upon neither had the time, nor the
opportunity to weigh
up the pros and cons of a particular situation,
and was not responsible for having brought about the alleged
emergency.
[57] Mr Sher contended that had Mackay
kept a proper lookout he should and would have seen the presence of
the alleged unidentified
motor vehicle in the oncoming lane and
would, and should not have proceeded to overtake. In the alternative
he contended that Mackay
at the least should have immediately
returned to the lane in which he had been travelling in a safe
mariner, without over reacting.
[58] Our courts have in the past in a
number of matters refused to allow a motorist to rely on the defence
of sudden emergency where
the motorist over reacted to the
circumstances or situations even where those circumstances or
situations were not caused by or
brought about by their own actions.
See in this regard S v Claasen
1962 (3)
SA 308
(0); S v Lombard
1964 (4) SA 346
(T); S v Crockart
1971 (2) SA
496
(RAD) and S v Erwin
1974 (3) SA 438
(C).
Evaluation of the evidence of the
kevwitnesses:
[59] When I analyse and evaluate the
evidence of the two key witnesses for the purposes of deciding
whether plaintiff should succeed
with his claim, it is abundantly
clear to me that everyone involved in the trial (and particularly
plaintiffs witnesses) were aware
that the negligence of the driver of
the unidentified vehicle had to be the causative negligence that
operated in order to make
the plaintiffs case succeed.
[60] Mr Corbett contended that Mackay
and John had made a good impression when they testified and that they
presented their evidence
in a clear and forthright manner. He
contended that they were not shaken despite the searching
cross-examination by Mr Sher and
by the questions put to them by the
court.
[61] I do not agree with Mr Corbett
that Mackay and John made a good impression either when they
testified and/or when they were
cross-examined.
[62] In considering their evidence and
deciding on whether their evidence is credible and reliable I have
regard to their independence
or bias as witnesses. It is common cause
that plaintiff, Mackay and John are friends of long standing and that
they went to school
together. At the time of the trial it was clear
to me that they were still friends. Shortly after the collision
Mackay and John
consulted a lawyer together when Mackay found himself
in a situation where he was charged with negligent driving. From the
evidence
presented to me it appears that they were in each other's
presence when they consulted with and made their statements to the
attorney
who represented Mackay at the time. At the time of his
testimony on behalf of the plaintiff Mackay had as he put it been
indemnified
from any further claims against him. He therefore had
nothing to loose, so to say. Notwithstanding my warnings to him that
he should
not discuss the evidence with other witnesses, McKay did in
fact discuss the evidence with John. This fact was readily conceded
by John.
[63] I am also not convinced that
Mackay testified on the basis of his independent recollection of the
events. I am further concerned
that due to his relationship with the
plaintiff and the fact that he was indemnified from further claims,
that he may have had
a motive to adjust his testimony to favour
plaintiff's case.
[64] Due to their close relationship
and the facts of this matter I am similarly not convinced that John's
testimony can be regarded
as independent and unbiased. Accordingly I
cannot exclude the possibility that also his testimony was not
affected by his allegiance
to plaintiff and Mackay.
[65] Accordingly I have approached
their evidence with caution.
[66] Based on the evidence presented to
me and from the further reasons that appear below I am not persuaded
that plaintiff has
discharged the onus of proving that an
unidentified vehicle caused and/or contributed to the accident that
occurred:
(1) Mackay was not a satisfactory
witness at all;
(2) It is common cause that he did
consume beer at the party. Notwithstanding his attempts to persuade
me that he was not under
the influence of intoxicating liquor at the
time that he drove the vehicle, he failed to convince me. I am not
convinced that he
was truthful about the amount of alcohol or beer
that he consumed.
(3) He was extremely evasive about the
amount of alcohol that he had consumed;
(4) He could not explain how he could
remember that he had no more than four beers, taking into account
that the incident had occurred
almost seven years ago;
(5) When questioned about the amount of
alcohol he consumed he gave responses that it was at best "a
guess" or "estimate"
of what he had consumed on the
night;
(6) When it was suggested that he could
have drank more alcohol than the four
beers he stated that he "sticks
to" that amount and that "this was his version". He
was however at great pains
to point out that he had twenty soft
drinks that night;
(7) Although he initially stated that
he did not say that the alcohol had no effect on him he later changed
his version by stating
that he denied that the alcohol that he had
consumed had any effect on his ability to drive.
(8) When he was questioned about why he
used the words -
"... I was satisfied that I was
sober enough to safely drive the vehicle..." in his affidavit to
his attorney, he could
not give a satisfactory explanation;
(9) He could not explain why he used
the words "sober enough" i.e. with reference to his state
or degree of intoxication
as opposed to his evidence where he stated
that the alcohol he had consumed, had absolutely no effect on him.
[67] There were also other
contradictions and inconsistencies between his evidence and the
contents of the affidavit he made to
his attorney shortly after the
incident.
[68] When he was cross-examined by Mr
Sher about whether or not he was at any stage misled into believing
that the parking area
which was on the right hand side of the road
that he was travelling along that night; was a road for traffic in
the opposite direction
he repeatedly denied that he was so misled.
[69] He was at great pains to emphasize
that when he first saw the parking area he immediately realised what
it was and that he
was never under the impression that it was a road
for traffic in the opposite direction.
[70] This is of course contrary to and
inconsistent with the contents of paragraph 15 of his affidavit where
the following appears:
"...1 recall being not quite sure
whether the road was a dual carriage way with traffic in both
directions, or whether it was
a double lane carrying traffic in one
direction only. With the benefit of hindsight, the tarred parking
area next to the beach
probably misled me to mv right, into thinking
that it was carrying traffic in one direction only... "(my
underlining)
[71] I am more than satisfied that on
the night of the accident and based inter alia on what is stated in
the aforesaid paragraph
that Mackay was in fact not sure whether the
road was a dual carriage way with traffic in both directions or
whether it was a double
lane carrying traffic in one direction only.
I agree with Mr Sher's contention that it is inconceivable and
illogical that any
of this confusion on his part would have been
mentioned in the affidavit had it not in fact been present in his
mind at the time
and had he never been misled as to the status of the
parking area to his right. The fact of the matter is that there would
have
been no reason to mention this in his affidavit at all.
[72] When I questioned him about this
issue he claimed that he had never told his attorney that he had been
misled, nor had he ever
thought that the parking area was another
road.
[73] According to him he told his
attorney he saw the parking area, assessed the situation and was not
confused at all.
[74] It is important to note here that
even though the affidavit was signed on 17 October 2003 before a
commissioner of oaths he
had consulted his attorney within days of
the accident. He also admitted that before signing the affidavit it
was read to him and
he agreed with its contents.
[75] It is inexplicable that Mackay did
not see the "unidentified vehicle" as it approached him. I
say this based on his
own evidence that he was sitting high up in the
Jeep Wrangler, he could look far ahead of him over the roof of the
vehicle just
ahead of him and he kept a proper lookout for oncoming
traffic. Even though it was raining, his visibility was not affected
and
the surrounding road area was reasonably well lit up at the time.
He was adamant that he would not have proceeded into the right
hand
lane (i.e. the lane for oncoming traffic) and would not have
overtaken the red motor vehicle if there had been a problem with
visibility.
[76] He could give no reasonable or
plausible explanation for not seeing the vehicle. His version that he
was not looking ahead
of him and concentrating on the red car when
overtaking is highly improbable. Any driver that executes an
overtaking manoeuvre
will
first look ahead of him for oncoming
traffic (i.e from the opposite direction) as he is overtaking and to
the car that he is overtaking
to determine whether it is safe to
execute and to complete the overtaking man oeuvre.
[77] In my view the simple explanation
for not having seen the unidentified vehicle is because there was no
unidentified vehicle.
[78] In any event if he was keeping a
proper lookout as he said he did in the circumstances described by
him, he at least ought
to or should have seen this unidentified
vehicle approaching even before he executed the overtaking manoeuvre.
It follows therefore
that on his own version he was not keeping a
proper lookout. Accordingly I must conclude that even if I accept
that there was an
unidentified oncoming vehicle that Mackay ought to
have or should have seen the vehicle and that he was therefore
grossly negligent
when he executed the overtaking manoeuvre in the
face of oncoming traffic.
[79] In his evidence in chief he
testified that the only reason he could think of why he had not seen
the unidentified vehicle was
because it did not have its lights on.
When he was re-examined on the issue he changed his version and said
that the reason for
not seeing the vehicle is because it must have
previously been in the "car park" i.e. with reference to
the parking area
next to the road he was travelling. He testified
that in his view the car must have moved out or was in the process of
"turning
into the road ahead of him". It must be borne in
mind that Mackay's evidence is that as he was travelling he saw the
vehicles
in the parking area. In my view it is inconceivable that he
would then not have seen this vehicle as it drove on the parking area
and then turned into the road ahead
of him. It will be recalled that it was
also Mackay's evidence that he could see the lights of motor vehicles
approaching him from
hundreds of metres down the road.
[80] When questioned about how the
accident could have occurred and why it did occur if he stated that
he was at the point of proceeding
back into the left hand lane, why
he had not done so and then continued on his way, he said that he had
"over-reacted"
when he swung the steering wheel violently
to the left. He described his conduct as a "knee-jerk reaction".
He tried
to justify what happened by saying that he was not used to
the Jeep, that the wheels were high and that if he had executed such
a violent swerve with his own motor vehicle, he would not have lost
control. According to him he swerved violently to the left
without
even looking to see whether there was any danger ahead of him and
that in swerving so violently on the wet road he lost
control of the
vehicle. Eventhough he braked, the vehicle nonetheless collided with
the retaining wall.
[81] I am satisfied that on Mackay's
own version he would not have lost control of the vehicle had he not
over-reacted by swerving
so violently to his left. In my view this
conduct on his part amounts to negligence.
[82] His conduct also totally
contradicts the fact that he states that he was in control of the
vehicle, had kept a proper lookout
and that he had made a conscious
decision to overtake because it was safe to do so.
[83] It is inexplicable how he did not
manage to pass the vehicle that he was overtaking with safety. I am
further dismayed that
notwithstanding the reckless manoeuvre that he
executed that the vehicle that he had overtaken did not collide with
the vehicle
he was driving or with the unidentified vehicle.
[84] When evaluating the evidence of
the witness John I am particularly mindful of the fact that he is the
only witness who allegedly
saw the unidentified vehicle.
[85] He is therefore for all intent and
purposes a single witness in regard to the alleged unidentified
vehicle. I am not satisfied
that he gave his evidence in a credible,
clear and satisfactory manner. On his own admission he consumed
approximately six to seven
beers that night prior to the accident. I
am inclined to accept that it is more than likely that he drank more
beers than what
he says he did. He conceded that the alcohol had
affected him. In fact he states that the combination of the effects
of the alcohol
and the fact that he was nauseas caused him to ask
Mackay to drive them home.
[86] I am not convinced that in the
condition that he was in, that he was in a position to determine
whether or not Mackay was in
a fit state to drive them home. Due to
the fact that John was affected by the alcohol and feeling unwell, I
am not prepared to
place any reliance on his evidence as a "back
seat" driver, who was for some or other inexplicable reason more
vigilant
than Mackay when the incident occurred.
[87] According to John's evidence the
vehicle was so high off the ground that they could see clearly ahead
of them over the top
of the red vehicle when they decided to
overtake.
[88] According to him he kept a proper
lookout for vehicles ahead of them. He testified
that also he saw the lights of a motor
vehicle in a distance far ahead. According to him it was safe to
overtake at the time Mackay
decided to do so. He said that Mackay
proceeded to overtake the vehicle and that as he was about to get
into the lane they were
driving in, he saw a vehicle in front coming
in their direction with its parking lights on. This vehicle was
travelling in the
lane for oncoming traffic i.e. in the opposite
direction in which they were travelling. As he saw the vehicle he
yelled to Mackay
to "watch out" and Mackay then reacted
very quickly by swerving hard to the left and thereafter their
vehicle collided
with the wall.
[89] I was of course concerned that he
had discussed Mackay's evidence with Mackay prior to his testifying
in the matter. I concluded
that he did this in an attempt to prepare
himself for the questions which would be put to him when he was to
testify.
[90] When he testified I observed John
very carefully. John did not impress me at all as a witness. As the
only eyewitness of the
unidentified vehicle I found that on the
totality of his evidence that it was unconvincing, lacked detail and
was uripersuasive.
I have already referred to certain aspects of his
evidence when summarising his evidence above. I will now highlight
the following
problematic features of his evidence:
(1) When he was asked in his evidence
in chief where the vehicle with the "parking lights" on,
had come from he was uncertain.
He used words like "guess"
that it "came out from one of the parking bays".
(2) When cross-examined he stated that
he assumed that the car had come out of the parking area as it had
its parking lights on.
(3) When he was cross-examined about
where the unidentified vehicle was when he first became aware of it,
he said that it was at
a distance of about five metres away from
their vehicle.
(4) He was unable to explain why he had
only noticed it at that time, particularly since he, like Mackay, had
testified that they
were keeping a proper lookout.
(5) When it was put to him that it was
inconceivable, even ludicrous, that he would not have seen the
unidentified vehicle as it
came out of the parking area into Marine
Drive, he responded by saying that he thought that it came from the
parking area and later
on said that he never saw it and that if it
did come from the parking area that he would have seen it.
(6) He was adamant that Mackay did not
see the unidentified vehicle.
(7) When he had difficulty explaining
why he did not see the vehicle, he tried to justify this by saying
that he could have looked
away.
(8) This is of course contrary to his
evidence in chief that he was keeping a proper lookout on the road
ahead of him and that according
to him it was safe to execute the
overtaking manoeuvre when Mackay did so.
(9) He could not explain why Mackay
never saw the unidentified vehicle. The question that immediately
arises is, that if he (in
the state that he was in) could see the
unidentified vehicle with its parking lights on, why did Mackay not
likewise see it.
(10) It is also surprising that John in
fact saw the vehicle, since as he explained the parking lights were
on the side of the vehicle
and not easily visible.
(11) John was also confronted with the
contents of the affidavit that he made around the same time Mackay
did to his attorney.
(12) Eventhough he stated that the
affidavit had been read over to him and that he understood its
contents, he said that when it
was drafted he should not have signed
it since as his memory served him it was not correct.
(13) He gave this response when the
contradictions and inconsistencies between his evidence in court and
what was contained in his
affidavit was pointed out to him.
In his affidavit to his attorney he
said in regard to the unidentified vehicle:
"6. I have a better recollection
than James, it seems, of the approaching vehicle with its parking
lights on. (hereinafter
referred to as "the unlit vehicle")."
[91] In my view the contents of this
paragraph entrenches the view that Mackay had no knowledge whatsoever
of the unidentified vehicle.
It further appears from this paragraph
that at the time that the statements were being prepared that there
existed some uncertainty
about the unidentified vehicle.
[92] In paragraph 7 of the affidavit he
stated that -
"I noticed the unlit vehicle as we
overtook the red car which, I agree, might have been a Mazda 323."
[93] This in my view also indicates
uncertainty on his part in regard to the identity of the vehicle they
were allegedly overtaking.
[94] When Mr Sher referred him to
paragraphs 8, 9, and 10 where he stated:
"...8. There was a third vehicle
quite some distance ahead, I seem to recall approaching us with its
headlights on dim. It
was still too far away to pose any threat.
9. I did not immediately notice the
unlit vehicle. I recall that I was not concerned, at all, as we
started to overtake the Mazda
ahead of us. I felt comfortable with
James overtaking.
10. Suddenly ahead of us, the unlit
vehicle appeared."
He was adamant that he had only seen a
single vehicle coming on and no other vehicles.
[95] Eventhough he had given no
description whatsoever of the "unlit unidentified motor vehicle"
in his evidence in chief,
or initially during cross-examination, when
he was confronted with the contents of paragraph 11 of his affidavit,
he said that
the unidentified vehicle was white and that it was a
Mercedez. He was able to remember this as according to him his mother
had
a similar vehicle with similar parking lights.
[96] I point out here that in his
affidavit to the attorney shortly after the accident he was also not
sure about the description
of the unidentified vehicle as he stated
the following:
"I suspect, although I cannot be
certain that the unlit vehicle could have been a white Mercedez Benz.
"(my underlining)
I am satisfied that he was not certain
about the description of the vehicle based on his use of the words
"suspected"
and "could have been". In my view he
fabricated and adjusted his evidence in order to create the
impression that he was
certain about the identity of the vehicle when
he stated that he identified the vehicle as similar to the one that
his mother had
with parking lights which were on the side of the
vehicle and not part of the main lights.
[97] It is highly unlikely that in his
state, bearing in mind that it was night, the fact that the car was
almost on top of them,
that the incident happened within split
seconds, that he would have been able to remember that kind of
detail. I am accordingly
not persuaded that
he would have had the opportunity to
make this kind of observation bearing in mind the prevailing
circumstances.
[98] When I questioned him to obtain
clarity regarding the unidentified vehicle he made some telling
concessions namely:
(1) That if the unidentified motor
vehicle had approached them from the front, that both he and his
driver ought to have seen it;
as
(a) the road was lit;
(b) they could see right over the top
of the vehicle which they proceeded to overtake;
(c) if the unidentified vehicle did
indeed come out of the parking area ahead of the point of impact, and
proceeded along the road
towards them for quite some distance, both
he and Mackay would have seen it;
(2) He was unable to explain why he
insisted that the vehicle must have come out of the parking area if
he had not himself seen
the vehicle proceed from the parking area.
[99] In my view his evidence in any
event does not make sense, since had the vehicle in fact proceeded
out of the parking area both
he and Mackay would have seen it coming
on for quite some distance as is quite clear from the photographic
exhibits. Should I accept
that the vehicle did indeed come out of the
parking area and had driven towards them for some distance, albeit
with only parking
lights, Mackay would be grossly negligent if he
then decided to execute the overtaking manoeuvre in the face of
oncoming traffic.
[100] His evidence is further not
satisfactory and in fact is highly improbable when he testified about
the distance between the
vehicle he was in and the unidentified
vehicle when Mackay was executing the overtaking manoeuvre.
[101] According to Cooper: Motor Law at
page 434 -
"... Where events take place over
much shorter distances and in much shorter times, as in traffic
accidents, it is more appropriate,
and more convenient for
calculation, to express vehicle speed in units of metres per second.
The conversion is as follows:
Speed in metres per second - Speed in
kilometres per hour + 3,6
It is seen therefore that at a speed of
72 km/h, a vehicle is travelling 20 metres in one second; a statement
which gives a readily
visualized, and at first a rather alarming,
conception of the speed..."
"...An alternative method of
conversion between kilometres per hour and metres per second is by
using the chart on page 435.
Any point on this line relates
corresponding values of metres per second and kilometres per hour,
these values being found by projecting
horizontally and vertically
respectively. Thus 90 km/h and 25 m/s are seen to be equivalent to
each other, at the point shown..."
[102] Even if I accept that the vehicle
that John was travelling in was travelling at a speed of 60
kilometres per hour, it would
(according to Cooper's calculation)
have covered a distance of 17 metres. At 80 kilometres per hour it
would have covered a distance
of about 22 metres. It is therefore
clear that the distance pointed out by John in court cannot be
correct.
[103] John could not explain why Mackay
was not able to execute the overtaking manoeuvre with safety.
[104] If one considers the version of
John it is highly unlikely and improbable that bearing in mind the
fact that everrthough;
(a) Mackay passed the red vehicle;
(b) returned sharply into the lane he
was travelling in;
(c) collided with the retaining wall;
(d) then rolled back into the road;
that neither the red motor vehicle nor
the oncoming unidentified vehicle were involved in an accident with
either their vehicle
or the red vehicle.
Conclusion:
[105] Having regard to the unconvincing
and unpersuasive evidence of Mackay and John of and about the
incident, and in particular
regarding the existence of the
unidentified vehicle I find that -
(1) there was no such unidentified
vehicle;
(2) the collision that took place in
the early hours of the morning on Marine Drive was probably caused
where Mackay, in the process
of overtaking a motor vehicle at a speed
that was inappropriate at the time, given the weather conditions,
swerved too sharply
to the left and thereby lost control of the
vehicle causing it to collide with the retaining wall;
(3) that it is likely that Mackay was
affected by the consumption of alcohol and that by virtue of the
natural ebullience that one
can have by virtue of good company and
the intake of alcohol there was less concentration by Mackay on his
driving than there should
have been;
(4) for all the above reasons taken
individually or in combination, in particular Mackay, by virtue of
his sole negligence, lost
control of the vehicle in circumstances
where a normal and reasonable driver would not have lost control of
the vehicle.
[106] The plaintiff has accordingly
failed to discharge the onus of proving that the accident in which he
was injured was caused
or brought about by the negligence of the
driver of any other motor vehicle, other than the one in which he was
being conveyed
at the time.
[107] In the result first defendant is
only liable to plaintiff in the sum of R25 000.00 in terms of the
provisions of the
Road Accident Fund Act No. 56 of 1996
.
[108] Accordingly I make the following
order:
(1) First defendant is directed to make
payment to the plaintiff of the sum of R25 000.00 (twenty five
thousand rand) together with
costs on a party and party basis up to
and as at 4 March 2008.
(2) The costs subsequent to 4 March
2008 including the costs attendant upon the hearing of this matter on
23, 24 and 25 February
2010 are to be borne by the
"plaintiff.
RILEY, AJ