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FORM A

FILING SHEET FOR TRANSKEI DIVISION JUDGMENT

PARTIES:

JAN DANIEL HEROLD VISSER Plaintiff

and

ROAD ACCIDENT FUND Defendant

• Case Number: 2605/2007

• High Court: SOUTH EASTERN CAPE LOCAL DIVISION

DATE HEARD: 3 November 2008

DATE DELIVERED: 6 November 2008

JUDGE(S): Chetty, J

LEGAL REPRESENTATIVES –

Appearances:

• For the Plaintiff(s): Adv D Niekerk

• for the Defendant(s): Adv P.H. Mouton

Instructing attorneys:

• Plaintiff(s): Jock Walter Attorneys: ref: A J Walter

• Defendant(s): Wilke Weiss Van Rooyen Inc: ref: P van Rooyen

CASE INFORMATION -

1. Nature of proceedings : Civil Trial

2. Topic: Damages

3. Key Words: Negligence – what constitutes – collision at controlled intersection - failure to see motorcycle on through road – duty of motorist

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

In the matter between: Case No: 2605/2007

JAN DANIEL HEROLD VISSER Plaintiff

and

ROAD ACCIDENT FUND Defendant

Coram: Chetty, J

Date Heard: 3 November 2008

Date Delivered: 6 November 2008

Summary: Negligence – what constitutes – collision at controlled intersection - failure to see motorcycle on through road – duty of motorist

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JUDGMENT

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CHETTY, J

[1] Longwy avenue (Longwy) in the residential suburb of Lorraine in Port Elizabeth run roughly north to south. Along its northern course is a stop sign where it intersects with Verdun Road. Thence southbound Longwy becomes a through road. Approximately 500 metres south of the Verdun road intersection it intersects with Courcelles avenue (Courcelles) from which entry is controlled by stop signs at both its eastern and western juncture with Longwy. On the evening of 26 October 2006 between 10 and 11 p.m. a collision occurred in the vicinity of the intersection of Longwy and Courcelles between a BMW 650 CC motorcycle driven by the plaintiff and a tow truck driven by the insured driver. Arising from the collision the plaintiff instituted an action for damages for personal injury sustained in the collision. By order of this court the merits of the plaintiff’s action was separated from its quantum component. This judgment is accordingly confined to determining the issues relating to liability.

[2] In preparation for trial the parties’ legal representatives jointly attended an inspection in loco of the scene of the collision at night and compiled a formal minute of their observations. The latter has particular relevance to the issue relating to liability and its reproduction in this judgment is unavoidable. It reads as follows:

“1 . . .

1.1 With the front wheels of the insured vehicle on or behind the white stop line painted on the tar surface of the road, the headlight of an approaching motorcycle, travelling from north to south in Longwy Avenue, disappears from the sight of the driver of the insured vehicle for one or two seconds in the vicinity of the light at the complex entrance on the western side of Longwy Avenue;

1.2 Despite the disappearance from sight of the actual headlight, the light illuminated from the headlight of the approaching motorcycle remains visible to the driver of the insured vehicle throughout.

1.3 If the insured vehicle moves forward over the stop line by one metre or more, then the driver of the insured vehicle has an unimpeded view of the approaching motorcycle from the intersection between Longwy Avenue and Verdun Road, which is approximately 500 metres north of the intersection between Longwy and Courcelles Avenues.

2. The following distances were measured:

2.1 The distance from the intersection between Longwy Avenue and Courcelles Avenue (from the position of the driver of the insured vehicle) to the intersection between Longwy Avenue and Nerina Avenue is 212 paces; and

2.2 The distance from the intersection between Longwy Avenue and Courcelles Avenue (from the position of the driver of the insured vehicle) to the light of the complex entrance on the western side of Longwy Avenue mentioned in paragraph 1.1 above is 295 paces.”

It is common cause that the road referred to in paragraph 1.1 is Courcelles.

[3] During the course of the trial the witnesses were referred to two sets of photographs depicting the area of the collision and its immediate surrounds. These photographs depict Longwy as a fairly straight road bounded on either side by wide grassed verges. As alluded to earlier, at the northern extremity of the photographs there is a dip in the road. The intersection of Longwy and Courcelles is clearly depicted on photographs 2 and 3 of the defendant’s set of photographs, exhibit “A”. The stop sign is clearly visible and so too the white stop line virtually in line with the kerbstone along Longwy. The white line angles to the left no doubt to facilitate ease of movement for vehicles intending to turn left into Longwy. Notwithstanding the placid appearance of the suburb the insured driver described the area and roads as high accident risk.

[4] With that prelude therefore I turn to consider and evaluate the evidence adduced. The plaintiff, on his own admission, was an inexperienced motor cyclist. He recounted that whilst proceeding along Longwy he observed the insured vehicle along Courcelles. At that stage the insured vehicle was approximately 10 to 15 metres from the stop sign. He assumed, by reason of its slow speed and the stop sign that it would stop. As he entered the intersection he realised however that the insured vehicle had not heeded the stop sign and to avoid an inevitable collision he braked and swerved to the right but to no avail. The motorcycle collided with the right rear corner of the insured vehicle as a result of which the plaintiff fell onto the tarred surface with the motorcycle ending up some distance in front of him.

[5] The plaintiff was subjected to a thorough cross-examination, the thrust of which was directed at showing that at the time of the collision the insured driver had already executed a turn to the left into Courcelle and was proceeding in a southerly direction when the plaintiff drove into the rear of the insured vehicle. In an attempt to show that the collision occurred in the manner suggested, defendant’s counsel referred the plaintiff to two rough sketch plans, the first of which formed part of a report compiled by an accident reconstruction expert, one Gerhard Burger (Burger), whom, the plaintiff’s Rule 36 (9) and (10) notice intimated would be called to testify on behalf of the plaintiff and secondly, an extract from an accident claim form submitted by the plaintiff to his insurer, exhibit “B”.

[6] Whilst the former sketch plan forms part of the plaintiff’s expert’s summary it became clear, as the trial progressed, that it is in fact an extract from the police docket drawn by a police official who apparently visited the scene of the collision. There was some suggestion during cross-examination that the plaintiff provided the information reflected thereon. The insured driver himself expressed serious reservations about the correctness of the sketch plan and there is no evidence who provided the detail contained therein. By all accounts it is inaccurate and ought, in the overall assessment of the evidence, to be largely ignored. During the plaintiff’s cross-examination, he was invited to explain the apparent anomaly between his viva voce evidence that the collision occurred in the intersection and the sketch on exhibit “B” which portrayed the collision as having occurred when the insured vehicle was already in Longwy, to the south of the intersection. The plaintiff admittedly had some difficulty in explaining the apparent anomaly and it was suggested to him that he had deliberately furnished false information to his insurer. His veracity was called into question and during argument Mr Mouton submitted that I should place no reliance on the plaintiff’s evidence nor that of his wife.

[7] The criticism directed at the plaintiff is unwarranted. He had nothing to gain by depicting the insured vehicle in Longwy. His description of the collision in the paragraph preceding the sketch on exhibit “B” is entirely consistent with his evidence and demonstrates the inaccuracy of his pictorial attempt. Exhibit “B” was tendered in evidence by defendant’s counsel primarily to show the inconsistency between the plaintiff’s evidence and the sketch plan. When the sketch is however viewed in conjunction with the plaintiff’s description of the accident, it serves to corroborate the plaintiff’s version as to the circumstances under which the collision occurred.

[8] The further criticism directed at the plaintiff had its source in the Burger report. Therein Burger expressed various viewpoints including stopping distances at various speeds. The plaintiff stated that he had not furnished any information to Burger and I accept that he did not do so. Burger’s report is in any event not evidence before me but what is clear is that it comprises an analysis of the collision based on the police report and sketch. It was thus suggested to the plaintiff that he had ample opportunity to avoid the collision even assuming the insured vehicle had not heeded the stop sign. The criticism is once more unwarranted. The plaintiff was cross-examined on contentions postulated by Burger based on what clearly appears to be an incorrect police plan and sketch.

[9] The insured driver, on his own admission, never saw the plaintiff. He only heard the sound of the impact. Whilst the insured driver steadfastly maintains that he stopped at the stop sign, the probabilities are that he did not. If, as he says, he looked to his right for approximately three seconds there is no plausible reason for him not seeing the plaintiff, who, it is common cause was travelling along Longwy. The reason advanced for his failure to observe the plaintiff, viz, the presence of street lights and garden lights in the vicinity of the dip in Longwy, is unconvincing. When it was pointed out to him during cross-examination that according to the plaintiff’s photographs taken at night only one light was discernable in the front of the complex on the western side of Longwy, he conceded as much and sought to now attribute his inability to see the motorcycle to the street lights. Once again his resort to the street lights as somehow impeding his visibility is entirely unconvincing. To his credit however he readily conceded under cross-examination that not only did he not see the illumination of the motorcycle’s lights but that had he kept a proper lookout he would have seen the motorcycle. He further conceded that if he had waited at the stop sign there would have been no collision. On his own admission he knew of the dangers associated with the particular intersection and road and that in itself should have caused him to ensure that there were no approaching vehicles on the through road.

[10] Furthermore, not much weight can be attached to his evidence that he was approximately 24 metres to the south of the intersection when he heard the bang. The distance given is a product of an attempt at reconstructing the collision and on a conspectus of the entire body of the evidence clearly wrong and proffered purely to negate any suggestion of negligence on his part. The probabilities that he stopped at the stop sign at Courcelles and looked to his right to ensure safe entry into Longwy must be rejected as false. Had he done so then he would surely have seen the plaintiff. The probabilities overwhelmingly support the plaintiff’s version that he failed to heed the stop sign. In response to Mr Niekerk’s questioning, the insured driver testified that he was proceeding to his son’s home because the latter had telephoned him to report a burglary at his home. It was suggested to him that in his haste to reach his son’s home he failed to not only heed the stop sign but moreover to ensure that it was safe to execute the left turn into Longwy. I am far from impressed with the manner in which he responded to the suggestion that he drove at an excessive speed to reach his son’s home. His reply that by reason of the burglars having already been apprehended there was no necessity to speed is once more unconvincing. If that had been the case there would have been no reason to visit his son at all. All the more so if one accepts that his son arrived at the scene shortly after the collision to assist him. I am far from persuaded that his evidence hereanent is truthful.

[11] The insured driver’s conduct after the collision is moreover entirely inconsistent with his evidence that the plaintiff for some inexplicable reason drove into the rear of the insured vehicle. Mrs Visser described how the insured driver came up to her to express his regret saying that he had not seen the plaintiff. She further recounted that the insured driver had appraised her of the steps he took to lessen the effect of the collision. The insured driver of course denied Mrs Visser’s evidence hereanent but there is not reason why Mrs Visser should seek to fabricate this tittle of evidence. Defendant’s counsel suggested to her that in expressing sorrow the insured driver was merely empathising with her because of the plaintiff’s condition. Empathy and contrition are not synonymous. The insured driver’s expression of contrition immediately after the collision was repeated a few days later when he visited the plaintiff at the hospital. Such conduct is, in my view, entirely inconsistent with mere empathy. Rather, it demonstrates blameworthiness and a call for forgiveness.

[12] The plaintiff and his wife impressed me favourably and there is no reason to doubt their veracity. The plaintiff’s version accords with the probabilities and I am satisfied that both he and his wife were credible witnesses and their evidence trustworthy and reliable. By contrast, the insured driver’s evidence is improbable in the extreme.

[13] During the course of argument Mr Mouton submitted that in the event of me finding that the insured driver was contributorily negligent I should assess his fault at a far lower percentage than that of the plaintiff. There is in my judgment however no proper basis for holding the plaintiff contributorily negligent. The plaintiff was travelling on a through road and whilst it is no doubt correct that he did not, merely on that account, enjoy an absolute right of precedence nor relieved of the duty of keeping a general lookout, there was nothing to indicate that the insured vehicle would not heed the stop sign. There is no evidence to rebut the plaintiff’s evidence that when he first saw the insured vehicle it was approximately 10 to 15 metres from the stop sign. There is furthermore no evidence that he could or should have seen the insured vehicle earlier. The only reasonable explanation for the collision is that the insured driver failed to see the plaintiff for the simple reason that he executed the turn to the left without stopping or looking to his right. In such circumstances there can be no question of any apportionment of liability.

[14] In my view, I am satisfied that the plaintiff has established that the sole cause of the collision was the negligence of the insured driver. In the result the following order will issue:

4. It is declared that the defendant is liable to compensate the plaintiff for such damages as he may in due course prove.

5. The defendant is ordered to pay the plaintiff’s costs of suit including those relating to the photographs, one pre-trial inspection in loco and the costs of the joint inspection in loco.

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D. CHETTY

JUDGE OF THE HIGH COURT

Obo the Plaintiff: Adv D Niekerk

(Instructed by Jock Walter Attorneys: ref: A J Walter)

Obo the Defendant: Adv P.H. Mouton

(Instructed by Wilke Weiss Van Rooyen Inc: ref: P van Rooyen)

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