IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
CASE NO: 04/17901
In the matter between:
DE KLERK, ANDRé
obo MARIA SUSANNA DE KLERK Plaintiff
and
ROAD ACCIDENT FUND First Defendant
DAWE, MARIA DAGRACA Second Defendant
JUDGMENT
JAJBHAY, J:
[1] This is a claim arising from a motor collision at John Page Drive,
Jeppestown, Johannesburg, on 17 December 2003 at approximately 16h00.
The plaintiff instituted an action against the defendants in his personal and
representative capacities on behalf of his minor daughter, Maria Susanna de
Klerk for damages suffered in the motor collision.
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[2] The collision occurred between a Toyota Flatdeck truck driven by F M
Multosse (“the insured driver”) and a Hyundai sedan driven by the second
defendant. Maria Susanna de Klerk was a passenger in the Hyundai sedan at
the time of the collision.
[3] The plaintiff instituted this action against the first and second
defendants based on the negligence of the insured driver and second
defendant, alternatively the joint negligence of those drivers in causing the
collision as well as the resultant loss.
[4] This matter proceeds only on the question of liability and the issue of
quantum is held over for later determination.
[5] In this Court, the plaintiff relied on the testimony of Mr David Caseiro
who was a passenger in the Hyundai as well as Mr Barry Grobbelaar a
reconstruction expert. Caseiro is the brother of the second defendant. In
essence, he testified as follows. He was seated at the left rear of the Hyundai
sedan at the time of the collision. Maria was seated next to him and his
daughters were also seated at the rear. His pregnant wife was a front seat
passenger and the second defendant was driving the Hyundai.
[6] It was daylight, and drizzling. The road surface was wet but motor
vehicles were visible and some had their lights turned on. They proceeded
from his home on Jules Street. The second defendant turned into John Page
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Drive. He then asked her to park the Hyundai so that he could give her
directions to their ultimate destination.
[7] The second defendant parked the motor vehicle in a parking bay along
the side of the road. This motor vehicle was stationary for a duration of
approximately two to three minutes whilst he directed her. According to this
witness the Hyundai was parked some six to seven car lengths away from the
intersection with Jules Street.
[8] He noticed that the second defendant had activated the “flashing”
hazard lights. When they were about to depart, he looked back on John Page
Drive through the rear window by turning around and noticed a vehicle
crossing the intersection of John Page Drive and Jules Street. This
intersection is a robot-controlled intersection. This vehicle passed them on
John Page Drive.
[9] Then, he noticed a truck approaching along John Page Drive towards
the intersection and the robot changed to amber for traffic on John Page
Drive. He informed the second defendant to proceed, assuming that she
would proceed ahead along John Page Drive and further assuming that the
truck would stop at the robot-controlled intersection. The second defendant
unexpectedly executed a u-turn on John Page Drive from the stationary
position.
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[10] The truck that he had earlier observed was driven by the insured driver.
This truck collided with the Hyundai at the rear right-hand side of the Hyundai
whilst the Hyundai was in the process of executing the u-turn. The position of
the Hyundai at the time of the impact was more than halfway across the solid
white line on John Page Drive.
[11] The Hyundai came to a rest on the western kerbside. The truck came
to a rest at a distance of approximately four to five car lengths beyond the
Hyundai on the western kerb. Caseiro testified that the insured driver could
have avoided the collision if he was concentrating on the road. Caseiro
further testified that the second defendant’s decision to make a u-turn had
“surprised” him. She was supposed to travel in a straight direction according
to his instructions. He could not recall whether his sister had indicated her
intention to turn to the right.
[12] Thereafter, Grobbelaar, the reconstruction expert testified. Grobbelaar
did not visit the collision site prior to the compilation of his report. He did not
inspect the damage to the Hyundai or the truck physically prior to the
compilation of his report. Grobbelaar had recourse to the following
information to assist him in the compilation of his report: AR Form, police plan
and key to plan, descriptions of the accident as provided by both drivers,
statement of C N Netshifhefhe, registration information of Hyundai, RAF Form
3 of driver of Hyundai, RAF Form 3 of driver of Toyota truck, motor assessor’s
report of Hyundai, A A Auto body quotation for Hyundai, ABSA motor accident
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claim form, report of G Lemmer (a reconstruction expert), and a report of H
Strydom (a reconstruction expert).
[13] In terms of a joint minute between Lemmer and Grobbelaar, the
experts agreed that the road width at the accident scene was approximately
12,3 metres from kerb to kerb. They further agreed that it would take the
Hyundai approximately 2,5 seconds to reach the area of impact whilst
executing a u-turn from a stationary position to the point of impact. Based on
the information available, Grobbelaar concluded that it was improbable that
the driver of the truck would have been able to avoid the collision in the
manner that the driver of the Hyundai made a u-turn in front of him. The
photographs presented indicated that the front of the truck must have collided
with the right rear side and right rear corner of the Hyundai. Grobbelaar
further testified that the second defendant’s manoeuvre in performing the u-
turn in the face of the insured driver would have taken approximately 2.5
seconds. He further stated that the average visualisation, perception and
reaction time of 1,5 seconds for the insured driver, would not constitute
sufficient time for him to brake to avoid the collision. The experts finally
agreed that the natural reaction of a driver when confronted with a danger
coming from the driver’s left side to the right side, is to swerve to the driver’s
right side. In this case, if the driver of the truck had adopted this attitude, the
collision would have been inevitable.
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[14] The essence of Grobbelaar’s testimony was that according to his
estimation the insured driver had between one second and 1.5 seconds to
take the necessary evasive action to avoid the collision.
[15] Caseiro had testified that the truck stopped four to five car lengths
beyond the Hyundai on the western kerb. This information was not consistent
with the position of the truck that was depicted on the police plan. Grobbelaar
utilized the police plan in arriving at his conclusions. Grobbelaar then
conducted a calculation based on the evidence of Caseiro that the truck
stopped four to five car lengths. It was agreed that this constituted an
average distance of approximately 20 metres. In this instance, with a braking
co-efficient of 0,5 for wet weather, Grobbelaar testified that the truck would
have travelled at approximately 50 kilometers per hour immediately after the
force of the impact.
[16] The testimony of Grobbelaar was neither controversial nor seriously
placed in dispute. Both the plaintiff as well as the second defendant had
notified their intention to call their respective reconstruction experts.
However, neither was called to testify. The insured driver did not testify. The
second defendant likewise did not testify.
[17] In matters such as the present, once it is established that a reasonable
driver travelling at a reasonable speed and keeping a proper lookout would
not have avoided the collision, then all other issues become moot.
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[18] Any change of direction of a vehicle in traffic must disturb the regularity
of the flow of that traffic, and, considering first the situation of the leading
vehicle, it is essential that the driver of this vehicle who is desirous to change
direction, should ensure that the condition of the traffic allows this. The driver
must select an opportune moment for doing so and carry out the manoeuvre
in a reasonable manner. A signal of this driver’s intention is an indication that
this driver will carry out this manoeuvre only at an opportune moment and in a
reasonable manner. This postulates that the driver has informed himself of
the state of the traffic, not only to ensure that the driver does not
inopportunely and unreasonably cross the path of a following vehicle.
However, that does not relieve other motorists of the duty to be alert and
observant:
“The duty of the driver of (the following vehicle) is to pay regard to the
signals or indications that the leading vehicle is about to turn; this
clearly postulates that he must keep a lookout in the expectation of the
possibility of such a signal or indication being made or given; failure in
these duties is negligence on his part, as is also the act of overtaking
the leading vehicle in unreasonable disregard of the fact that its driver
has shown that he is about to turn, as he is entitled to do, subject to the
safeguards I have stated.”
Keuning NO v London and Scottish Assurance Company Ltd 1963 (3) SA 609
(D) at p 612; Bell v Minister of Economic Affairs 1966 (1) SA (NPD) 251.
[19] The driver of a vehicle stationary at the side of the road who wishes to
drive out into the stream of traffic has a particular duty to assure herself that it
is safe to do so. This is so more particularly if the driver wishes in driving out
to cross the stream of traffic and execute a u-turn. The stationary vehicle at
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the side of the road wishing to drive into the stream of traffic is not at all times
directly under the observation of other drivers. Clearly, the other drivers are
not to expect every “parked” vehicle to be embarking in untoward
manoeuvres. The driver of the stationary vehicle is under a duty to give a
clear and unequivocal signal of her intention in such a manner as to be visible
to the other drivers. Most importantly, the driver of the stationary vehicle is
under a duty not to carry out her intended manoeuvre unless and until it is
safe to do so. It is for this driver to assure herself that there is no other
vehicle likely to be impeded by it or that the drivers of such vehicles are aware
of her intention and are accommodating their movements with her.
[20] By simply accepting Caseiro’s testimony that the second defendant
turned on her hazard lights, I cannot safely conclude that a reasonable driver
in the position of the insured driver might have slowed down in expectation of
a u-turn on the part of the second defendant. There exists a dearth of
credible available information. Hazard lights do not mean that the driver of
that vehicle will be activating an untoward manoeuvre. Hazard lights do mean
that the driver is making herself visible as her presence may constitute a
hazard. In this instance, the second defendant’s motor vehicle was stationary
with its hazard lights turned on for two to three minutes without having given
any indication of her intention to commence with her manoeuvre. Here, the
motor vehicle travelling behind the Hyundai would observe a stationary
vehicle legally parked on the side of the road. There was no evidence to
indicate that the second defendant had turned on the indicator light to warn
the traffic behind her that she was desirous of joining into the stream.
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[21] In matters such as the present, the plaintiff has to prove not only that
the truck driver failed to keep a proper lookout or that he was adhering to a
proper and safe speed but also that if he had reacted when a reasonable man
would have reacted, the collision would probably not have occurred or arising
from that if he had been travelling at a slower speed than he did the collision
would not have occurred: Guardian National v Saal 1993 (2) SA 161 (CPD).
[22] One cannot say with certainty what the speed of the truck was before
braking. There were no skid marks. When conducting a calculation based on
the evidence of Caseiro that the truck had stopped four to five car lengths
which was agreed to be an average distance of 20 metres, and a braking co-
efficient of 0,5 for wet weather, Grobbelaar testified that the truck would have
travelled at approximately 50 kilometers per hour immediately after the force
of the impact. This does not explain the speed of the truck immediately prior
to the point of impact. The scarce testimony does not assist in trying to
guestimate the speed of the truck immediately prior to the collision. One
cannot conclude with a measure of certainty that the plaintiff has proved on a
balance of probabilities that the insured driver was travelling at an excessive
speed. In any event, on the available evidence, it would not be reasonable to
expect the insured driver to adjust his driving in the circumstances of the
present matter to avoid the collision in a time span of 1,5 seconds.
[23] There is no evidence that the insured driver should have foreseen that
the second defendant was intending to execute a u-turn. There is no
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evidence that the insured driver was cautioned by the second defendant in
any way. When driving in the direction of the second defendant’s motor
vehicle, the insured driver must have observed the Hyundai parked on the
extreme left side of the road with the hazard lights turned on. This action in
itself does not articulate an intention to either join the stream of traffic or
engage in a dangerous manoeuvre. The insured driver cannot be said to
have acted negligently.
[24] Where a driver has to make up his mind how to act in a second, or in a
fraction of a second, one may think a particular course to follow, whilst
another may prefer an alternative course. It is the duty of every person to
avoid a collision, but if he acts reasonably, even if by a justifiable error of
judgment he does not choose the best course to avoid the collision as events
afterwards may indicate, then he is not on that account to be held liable for
negligence.
[25] It was contended on behalf of the plaintiff as well as the second
defendant that the insured driver should have been called to testify. Neither
the insured driver nor the second defendant testified. It was further
contended that the insured driver was vital and was lacking. In this regard it
was pointed out that the driving of a motor vehicle is an expert endeavour and
a driver is expected to have a reasonable measure of expertise and ability to
manage his vehicle: Sardi and Others v Standard General Insurance
Company Ltd 1977 (3) SA 776 (AD). Counsel submitted that the insured
driver was available to testify. He did not testify. Accordingly counsel
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continued that it must be assumed that the evidence of the insured driver
would have been detrimental to the case which the first defendant presented
to this Court. Schmidt, Bewysreg, 4th edition pages 109-119; D T Zeffertt et
al, The South African Law of Evidence [2003], page 136; Galante v Dickinson
1915 (2) SA 460 (A) at 465 where Schreiner JA said at 465:
“… It seems fair at all events to say that in an accident case where the
defendant was himself the driver of the vehicle the driving in which the
plaintiff alleges was negligent and caused the accident, the court is
entitled, in the absence of evidence from the defendant, to select out of
the two alternative explanations of the cause of the accident which are
more or less equally open on the evidence, that one which favours the
plaintiff as opposed to the defendant.”
[26] The evidence in this matter does not offer two alternative explanations
of the cause of the collision. Here, no negative inference may be drawn
against the first defendant. The insured driver may have been available to
testify on a previous occasion. There was no indication that he was in fact
available on this occasion. Nothing was made of this particular aspect during
the trial. The inference which can be drawn from a failure to call a witness
depends very much on the circumstances of a particular case. Here, the
explanation by learned senior counsel on behalf of the first defendant was an
eminently acceptable one: the first defendant realised that the case had
already been proved sufficiently against the second defendant by the
testimony that was already on record. An inference is not a concept that
hangs in the air. In the present case the first defendant broadly accepted the
case presented on behalf of the plaintiff: Rand Cold Storage & Supply Co Ltd
v Alligiances 1968 (2) SA 1232 (T). The case presented was that the second
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defendant suddenly and unexpectedly (even according to her own passenger)
performed a dangerous u-turn. In my view, first defendant was not required
to call the insured driver merely to expose him to cross-examination when the
evidence which was not disputed was that a reasonable driver would not have
avoided the collision.
[27] The same cannot be said about not calling the second defendant. She
was in court throughout the duration of the trial. No explanation was furnished
for not having called her. Furthermore, the second defendant’s expert was
also in court on the first day of the trial. Again no explanation was furnished
for not having called him. Then, the plaintiff’s reconstruction expert was also
in court throughout the duration of the trial. No explanation was furnished for
not having called him either. Any of these persons could have been called in
order to persuade the court not to accept the case for the plaintiff.
[28] For the reasons set out above, I do not believe that this is a case
where there should be any apportionment of blame. The second defendant
performed an extremely dangerous and reckless manoeuvre. This was the
sole cause of the collision. No blame can be attributed in the circumstances
of the present case on the insured driver. Furthermore, the plaintiff has
furnished no evidence that a reasonable driver could have avoided the
collision in the event that such a reasonable driver was in the same position
as the insured driver.
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[29] This matter was postponed on a previous occasion before Bizos AJ.
The costs for that occasion were reserved. I was informed that at that hearing
the learned Judge indicated that he was unable to decide on the information
before him which defendant should be liable for the costs and rejected the
idea of sharing the costs. I was further informed that the learned Judge
intimated that the question of costs were reserved and the only aspect for
decision was which defendant would be liable to pay the plaintiff’s wasted
costs for that occasion. The reason for the postponement was the purported
refusal of the second defendant’s legal representatives to furnish information
in respect of the plaintiff’s psychiatric condition. Certain documents were
subpoenaed and furnished to the first defendant on the day of the trial. These
documents indicated that the second defendant suffered from a bipolar mood
disorder. The first defendant thereafter requested a postponement in order to
obtain a psychiatric report. Eventually both parties obtained a psychiatric
report. Bizos AJ proffered a view. He made no binding order in this respect.
I believe it to be just and equitable to order both the first and second
defendants to pay the costs occasioned as a result of the postponement on
19 March 2007.
[30] In my judgment the plaintiff has failed to establish any negligence on
the part of the insured driver. The plaintiff has established negligence on the
part of the second defendant. The second defendant is ordered to pay 100%
of the claim proved by the plaintiff. The second defendant is further ordered
to pay the plaintiff’s costs as well as the first defendant’s costs in the action.
The plaintiff’s costs shall include the costs occasioned by the employment of
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two counsel, as well as the qualifying fees of Mr. Grobbelaar. The first and
second defendants are ordered to pay the plaintiff’s costs occasioned as a
result of the postponement on 19 March 2007, jointly and severally.
_________________________
M JAJBHAY
JUDGE OF THE HIGH COURT
DATES OF HEARING 16 AND 19 MAY 2008
DATE OF JUDGMENT 22 MAY 2008
ON BEHALF OF THE PLAINTIFF ADV I J ZIDEL SC
ADV Z KHAN
INSTRUCTED BY RONALD BOBROFF & PARTNERS
ON BEHALF OF FIRST DEFENDANT ADV N VAN DER WALT SC
INSTRUCTED BY DENEYS REITZ
ON BEHALF OF SECOND DEFENDANT ADV A J LOUW SC
ADV S L P MULLIGAN
INSTRUCTED BY SHAKENOVSKY-NYSSCHEN