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[2006] ZAGPHC 61
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Moreba v Road Accident Fund (7616/04) [2006] ZAGPHC 61 (10 June 2006)
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IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
REPORTABLE
CASE NO: 7616/2004
In the matter between:
APRIL MPHOFORENG MOREBA
Plaintiff
and
ROAD ACCIDENT FUND
Defendant
JUDGEMENT
MOKGOATLHENG A.J.
INTRODUCTION
[1]
The plaintiff instituted action against the Road Accident Fund for damages in the amount of R1 110 335.60, arising from a motor vehicle collision on the 25th March 1999.
[2]
The collision occurred at about 15h15 in Rustenburg at the intersection of two major urban roads, Van Zyl and Smit streets between police vehicle DKW708NW and insured vehicle CJT035NW.
[3]
Van Zyl and Smit street are major urban roads carrying substantial traffic. Van Zyl street is a tarred road with four lanes carrying south-bound traffic only. Smit street is a tarred road with three lanes carrying east-bound traffic only.
[4]
The intersection is controlled by traffic lights positioned on pavements on all four approaches. Smit street is divided down the centre by a traffic island. There are traffic lights positioned on the centre traffic islands on each side of
the intersection.
[5]
At the time of the collision the plaintiff was a member of the South African Police Services, and was being conveyed as such in police vehicle DKW708NW.
[6]
The plaintiff claims that the collision was caused solely by the negligence of the driver of the insured vehicle.
[7]
The defendant denies that there is any negligence attributable to the driver of the insured vehicle, and asserts that the sole cause of the collision was due to the negligent conduct on the part of the driver of the police vehicle.
[8]
At the commencement of the trial, the parties agreed that the issue of liability be adjudicated separately from quantum, an order
in terms of Rule 33(4) was accordingly granted.
[9]
The following facts were common cause;
(a)
it was a clear sunny day, the road surface was dry
(b)
the collision occurred inside the intersection,
(c)
immediately prior to the collision the police vehicle driven by inspector Seemise was travelling in a southerly direction on the extreme left lane in Van Zyl street, and
(d) the insured vehicle driven by Ms Fourie was travelling in an easterly direction in Smit street. [1]
The essential dispute between the parties was;
(a)
whether when the police vehicle entered the intersection against a red traffic light, did so when it was safe to do so,
(b)
whether the driver of the insured vehicle was aware of the police vehicle’s presence in the intersection, and
(c) whether the driver of the insured vehicle had the opportunity of avoiding the collision. [2]
The insured driver alleges that the point of impact was within her path of travel in the intersection. The opinion evidence of inspector Bothma determined the point of impact at about 15.5 meters from the western demarcation of the intersection in Smit street in the middle lane inside the intersection.
[3]
The plaintiff testified that the point of impact was in the intersection. He concedes that the insured driver was proceeding in the extreme left lane in
an easterly in Smit street.
[4]
Captain Mabele testified on behalf of the plaintiff that the point of impact was inside the intersection and was in the insured driver’s path of travel when she was proceeding in the middle lane in an easterly direction in Smit street, that the police vehicle was proceeding in the middle lane in a southerly direction in Van Zyl street.
[5]
In order to determine whether the plaintiff has succeeded in discharging the onus, it is apposite to consider the factual matrix upon
which this matter is predicated.
[1]
The evidence adduced by the parties consists of five categories, these being;
(a)
The eyewitness account as to how the collision occurred, this evidence was adduced by the plaintiff and captain Mabele.
(b)
The eyewitness evidence of the insured driver Ms Fourie who testified on behalf of the defendant in rebuttal of the plaintiff’s case.
(c)
The evidence of inspector Bothma who attended at the scene of the accident relating to the observations he made. This evidence is constituted by the sketch plan of the accident scene, the photographs depicting the topography of the scene, and the physical damage sustained by the vehicles.
(d) The opinion evidence of inspector Bothma arising and inferred from the observations he made which sought to substantiate the evidence relating to the point of impact and the location of the vehicles after the accident. (e)
Statements made by police officers and witnesses. This evidence is constituted by the investigations conducted in pursuance of certain criminal proceedings arising from the accident.
(f)
The sketch plan prepared by Steven Black an accident scene draughtsman relating to pointing outs made to him by the driver of the insured vehicle.
[1]
I turn now to consider the eyewitness evidence adduced in this matter. The evidence of the plaintiff reveals the following;
(i)
He was formerly employed as a detective by the South African Police Services in Tlhabane, Rustenburg.
(ii)
On the 25th March 1999 the police received a message that an impending robbery was to be committed at the Waterval Mall.
(iii)
The plaintiff, inspector Seemise, captains Mabele, and Skhubane were tasked to attend the scene of the impending robbery.
(iv)
The plaintiff and his colleagues utilised motor vehicle registration number DKC 708 NW to respond to the emergency.
(v)
The driver of the police vehicle was Inspector Seemise. The plaintiff was seated on the back seat on the left side.
(vi)
Captain Mabele was seated on the back seat on the right side. Captain Skhubane was seated on the front seat on the passenger side.
(vii)
Before leaving Tlhabane Police Station, inspector Seemise, attached the regulatory police blue light on the roof of the police vehicle,
switched on the siren and the hazard lights.
(viii)
Because the plaintiff and his colleagues were reacting to an emergency situation, inspector Seemise proceeded at a moderately high speed. He entered Rustenburg abd traversed two intersections without any mishap.
(ix)
The police vehicle was travelling in the extreme left lane, in Van Zyl street. The driver of the insured vehicle was travelling in the extreme left lane in Smit street.
(x)
When inspector Seemise approached the intersection of Van Zyl and Smit streets, the traffic light was red. He reduced speed, and entered
the intersection against the red traffic light travelling at a speed of between 20-10kph.
(xi)
When the police vehicle entered the intersection the siren, the hazard lights and the blue light were operative.
(xii)
Vehicles inside the intersection proceeding in an easterly direction along Smit street stopped. Inspector Seemise was in the process of moving when a motor vehicle travelling in Smit street in an easterly direction collided with the police vehicle.
(xiii)
The plaintiff did not observe any vehicles travelling in the same direction as the police vehicle in Van Zyl street.
(xiv)
The plaintiff lost consciousness on impact. The magnitude of the collision caused extensive damage to the police vehicle. He and his colleagues were seriously injured.
[2]
Under cross examination the plaintiff stated that;
(i)
Inspector Seemise stopped before entering the intersection,
(ii)
It is not correct that inspector Seemise entered the intersection against a red light travelling at 10kph. He later conceded this aspect.
(iii)
He conceded that if inspector Seemise had looked to his right when he entered the intersection travelling at 10kph, he would have seen the insured vehicle and could have easily avoided the collision.
(iv)
The plaintiff did look on his right side but did not see any vehicles that had stopped at the intersection in Van Zyl street in the lanes immediately next to the one the police vehicle was proceeding.
(v)
He cannot remember if there were any other vehicles which travelled in the same direction as their vehicle in the three other lanes
in Van Zyl street.
(vi)
He cannot dispute that there were vehicles which had stopped at the intersection on the three other lanes in Van Zyl street when the police vehicle entered the intersection.
(vii)
He cannot dispute that the insured driver could not avoid the collision because of the sudden emergency she found herself in when the police vehicle emerged from the extreme left lane in Van Zyl street, that as a result of the fact that her view was totally obscured by a huge passenger bus which had stopped in Van Zyl street in the lane immediately next to the extreme left lane on which the police vehicle was travelling.
(viii)
He conceded that the police vehicle, in which they were travelling, was a standard sedan which was not equipped as an emergency vehicle, and that it was not marked as a police vehicle.
(ix)
He cannot dispute that the insured vehicle was travelling in the extreme left lane in Smit street proceeding in an easterly direction.
[3]
The evidence of captain Mabele reveals the following;
(i)
She is a captain attached to the Tlhabane Detective Unit. On the 25th March 2003, she was seated on the right side of the back seat of the police vehicle travelling to Waterval Mall in response to the impending robbery.
(ii)
The police vehicle was moving fast because they were responding to an emergency situation. When the police vehicle entered Van Zyl street, the blue light, the siren, and the hazard lights were operative.
(iii)
When the police vehicle arrived at the intersection of Van Zyl and Smit street, she saw vehicles travelling in an easterly direction in Smit street. Inspector Seemise stopped before entering the intersection to indicate to the vehicles in Smit street that the police vehicle was on an emergency mission.
(iv)
The vehicles travelling in Smit street stopped. Inspector Seemise entered the intersection, suddenly a motor vehicle came and collided with the police vehicle.
(v)
She saw the motor vehicle which collided with the police vehicle after it had entered the intersection, at that stage the police vehicle
was in the middle of the intersection.
(vi)
Before inspector Seemise entered the intersection he slowed down to about 10 kph. After the Police vehicle had entered the intersection, she looked to her right and saw the insured vehicle approaching. There was no way inspector
Seemise could have avoided the collision.
(vii)
When the Police vehicle entered the intersection she saw that there were other vehicles travelling in Van Zyl Street. She cannot remember if there was a huge passenger bus in the lane immediately next to the extreme left lane the Police vehicle was travelling.
(viii)
The insured vehicle was travelling in Smit street in the middle lane. The driver of the insured vehicle did not take any evasive action to avoid the collision.
[4]
Under cross examination, captain Mabele stated the following;
(i)
The police vehicle was proceeding in the middle lane in a southerly direction in Van Zyl street.
(ii)
If the plaintiff testified that the police vehicle was travelling in the extreme left lane in Van Zyl street, then he is wrong, and would be lying.
(iii)
She cannot dispute that the insured vehicle was travelling in the extreme left lane in Smit street, because this incident happened a long time ago.
(iv)
She cannot remember whether a passenger bus had stopped in Van Zyl street at the intersection with Smit street.
(v)
The police vehicle did not proceed through a red traffic light, it entered the intersection when the traffic light was yellow. Inspector Seemise looked out for other vehicles to alert them that the police vehicle was on an emergency mission.
(vi)
The plaintiff would be wrong if he testified that the police vehicle proceeded through a red traffic light.
(vii)
The police vehicle yielded on entering the intersection. She did not see if the insured vehicle proceeded through a green traffic
light.
(viii)
It was put to her that the police vehicle was travelling on the extreme left lane in Van Zyl street, that it entered the intersection against a red traffic light. She did not respond.
(ix)
It was also put to her that the police vehicle suddenly came to the insured driver’s view when she was just about to travel
past the huge passenger bus, that she could not see the police vehicle because it was totally obscured by the passenger bus, that there was nothing the insured driver could do to avoid the collision because of the sudden emergency she found herself in.
(x)
She denies that there was nothing the insured driver could have done to avoid the collision. She says the vehicles in Smit street stopped for the police vehicle except for the insured driver who drove past these vehicles and collided with the police vehicle.
(xi)
She cannot remember the vehicles on the right or left lane in Van Zyl street when the police vehicle was proceeding in the middle lane, because she was concentrating on the yellow traffic light.
[5]
I turn now to consider the opinion evidence of inspector Bothma. His evidence reveals the following;
(i)
He is a former inspector in the South African Police Services attached to the Rustenburg criminal record centre.
(ii)
He has successfully undergone theoretical and practical training in the drafting, the measuring, the preparation of accident reports, and the photographing of crime scenes.
(iii)
On the 25th March 1999 at 15h30 in his capacity as an inspector he attended an accident scene at the intersection of Van Zyl and Smit streets.
(iv)
On the information gathered and through the pointing outs made by sergeant Bester and inspector Conradi he compiled an accident report
exhibit “C” and a photo album of the topography of the scene, and the vehicles involved in the collision exhibit “B”.
(v)
From his observations and information, the police vehicle travelling in a southerly direction in Van Zyl street. It entered the intersection against a red traffic light and collided with the insured vehicle which was proceeding in Smit street in an easterly direction.
(vi)
The police vehicle’s hazard lights, as well as the siren were still on although he is not certain of this fact. The point of impact was 15.5 meters from
the eastern side of the demarcation in Smit street.
(vii)
The insured vehicle was travelling in the extreme left lane in Smit street. The police vehicle was travelling in the extreme left lane in Van Zyl street.
(viii)
He obtained information from the insured driver that a passenger bus had stopped in Van Zyl street on the lane immediately next to the extreme left lane, also that two vehicles had stopped in the two respective lanes immediately
to the right of the lane occupied by the passenger bus.
(ix)
He observed brake or tyre marks on the path of travel of the insured vehicle in the intersection. These marks are an indication that the insured vehicle suddenly swung to it’s right before the collision.
(x)
He photographed the brake or tyre marks as depicted in exhibit “D”. He ascertained the point of impact by observing the brake or tyre marks, the glass particles, oil and other debris scattered in the intersection and the position of the vehicles.
(xi)
In his opinion the police vehicle after the collision as depicted in photo 18 and 19 of exhibit “B” landed on the eastern side pavement in Van Zyl street as a result of the momentum generated by the impact of the collision.
(xii)
It is difficult to estimate what speed the two vehicles were travelling at immediately before they collided.
(xiii)
In his opinion it appears as if the insured driver swerved to the right before colliding with the police vehicle. His inference is
based on the point of impact and the positions of the vehicles after the collision.
[6]
The police vehicle after the collision landed on the extreme left lane on the eastern side of van Zyl Street with half its body on the pavement straddling the pedestrian crossing.
[7]
Photo album exhibit “B” depicts the position of the vehicles and markings in the intersection.
[8]
The following features are indicated in the sketch plan of the accident scene;
(a)
the point of impact “C” is situated one meter away from the right front of the insured vehicle “E”, in photo 1, on page 19,
(b) the insured vehicle “E” is situated 1.6 meters away from the police vehicle “D”, (c) the police vehicle “D” is situated 4.3 meters away from point of impact “C”, (d) photo 2 in page 19, shows point “A” which is the direction the police vehicle “D” was proceeding immediately before the collision. (e) photos 3 and 4 on page 19 show the extent of the damage sustained by the police vehicle on the right side of the vehicle between the backdoor and the front wheel, the boot is damaged, as well as the front and side windscreens, there is some oil spillage next to the right back wheel of the police vehicle and some glass particles, (f) photo5 on page 17 shows the extent of the damage sustained by the insured vehicle, the front of the vehicle is indicated showing that the insured vehicle crashed into the police vehicle’s right side, (g) photo exhibit “D” shows the insured vehicle, there is a tyre or brake mark protruding from under the insured vehicle; (h) according to the sketch plan prepared by Bothma, exhibit “C”, the point of impact “P.V.B” is situated 3.8 meters from the right side front of the police vehicle, (i) the point of impact “P.V.B” is 9.6 meters from the western side demarcation of the intersection on Smit street, (j) point of impact “P.V.B” is situated 15.5 meters from the southern side demarcation of the intersection on
Van Zyl street,
(l)
photo 2 on page 19, shows that after the collision, the insured vehicle almost faces the same direction as the police vehicle,
(m) from the sketch, the width of the insured vehicle is 1.7m, and that of the police vehicle is 0.9m, and
(o)
Bothma recorded that the hazard lights, and the siren of the police vehicle were still on.
[1]
At the close of the plaintiff’s case, Adv Bood on behalf of the defendant sought absolution from the instance on the basis that the plaintiff had not made out a prima facie case. The application was premised on the fact that the evidence of the plaintiff and captain Mabele was contradictory, unreliable and not credible, that causal negligence on the part of the insured driver had not been established.
[2]
The definitive approach to an absolution application is conveniently set out by Harms JA in Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA) at 92E-93A:
“[2] The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights
(SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G – H in these terms:
“……(W)hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T.)” This implies that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G – 38A: Schmidt Bewysreg 4th ed at 91 – 2). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is “evidence upon which a reasonable man might find for the plaintiff” (Gascoyne (loc cit)…………………..Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice.’ [3]
I did not accede to the application for absolution, the reason being that plaintiff’s case is predicated on the assumption that the insured driver disregarded a statutory injunction to defer to a privileged vehicle’s absolute right of way by entering an intersection when it was inopportune, and collided with the police vehicle whilst it’s emergency signals were all operative.
[4]
On behalf to the plaintiff Adv Vos contended that the driver of an emergency vehicle was entitled to assume that the insured driver would defer to his absolute right of way as contemplated in regulation 308 (1) (h) promulgated in terms of the National Road Traffic Act 93 of 1996 .
[5]
Plaintiff’s counsel argues that because the plaintiff has demonstrated that the insured vehicle collided with an emergency vehicle when it’s emergency signals were operative, the plaintiff has shown an occurrence giving rise to an inference of negligence on the conduct of the driver of the insured vehicle, that therefore the defendant has an onus to discharge the evidential burden by tendering
an explanation which is sufficient to dispel the prima facie proof of negligence by it’s concession that the collision occurred between it’s insured vehicle and an emergency vehicle, when the latter had the right of way.
[1] I turn now to consider the evidence adduced by the insured driver. Her evidence reveals the following; (i)
On the 25th March 1999 she was the driver of the insured vehicle. She was proceeding in an easterly direction in the extreme left lane in Smit street. She usually travels this route. She was driving home after purchasing some groceries.
(ii)
She was driving at a speed of between 45-50 kph. When approaching the intersection of Van Zyl and Smit streets the traffic lights were green. There were two vehicles travelling in Smit street in the middle and third lanes to her right. These vehicles turned right that is south after reaching the intersection.
(iii)
When she was approaching the intersection she kept a proper lookout. She saw that two vehicles and huge passenger bus had stopped in the three immediate lanes on her left in the Van Zyl Street at the intersection.
(iv)
She entered the intersection, she travelled past the two vehicles which had stopped in Van Zyl street, when she was about to travel past the big passenger bus, the police vehicle suddenly emerged in the extreme left lane into her path of travel. She collided with the police vehicle. There was nothing she could do to avoid the collision.
(v)
When approaching the intersection, and when inside the intersection she did not hear any siren sounding, she did not see a blue light or the hazard lights on the police vehicle.
(vi)
The insured vehicle did not have a radio. She did not have time to apply brakes or to swerve to the right. She has no auditory problems. She wears spectacles. She has good eyesight.
(vii)
The traffic lights in Smit street are not synchronised. The traffic lights at the intersection preceding the Van Zyl and Smit street intersection were red. She stopped at this intersection.
(viii)
The distance between the Van Zyl and Smit streets intersection and the preceding intersection is the same distance as the appreciable normal suburban block distance. She could see the traffic lights at the Van Zyl and Smit streets intersection. The traffic lights were green. The traffic lights changed to green when she was in the middle of the block preceding the Van Zyl and Smit strees intersection.
(ix)
She did not drive slowly because Smit street is a busy road. The speed limit is 60kph. It is a built up area. She engaged third gear in the middle of the block when she was approaching the intersection. She can’t remember if she engaged the fourth gear. The insured vehicle has a manual gear box.
(x)
Van Zyl street is also a busy street. She is certain no vehicle overtook when she was proceeding in Smit street. There were other vehicles in Smit street in the two other lanes immediately next to the lane she was travelling on.
(xi)
The police vehicle emerged suddenly into her path of travel. She did not have an opportunity to apply brakes or to swerve to the right. She did not lose control of the insured vehicle. The impact of the collision must have turned the insured vehicle to the right, and propelled it to where it landed.
(xii)
She remembers precisely how she proceeded in Smit street. She remembers how the vehicles were stationed in Van Zyl street.
(xiii)
She did not hear the sound of a siren. She would have remembered if a siren had sounded. She did not enter the intersection proceeding at an excessive speed. She always checks her speedometer when she is driving.
(xiv)
She remembers the bus because it was a huge passenger bus. She cannot remember the colours of the vehicles which had stopped in Van Zyl street. She denies that she entered the intersection when the police vehicle was in front of her path of travel.
[1]
It is necessary to mention and examine the approach adopted in the evaluation of the evidence and also pertaining to the perceived conflict between eyewitness testimony and opinion evidence.
[2]
I propose in evaluating the evidence to follow the course adopted by Addleson J in Putzier v Union & South-West Africa Insurance Co Ltd (1973 Eastern Cape Division, unreported), when he stated that unless the
opinion of the experts is either uncontroverted or incontrovertible, one should look first at the evidence of the eyewitnesses, if any. If such eyewitnesses (evidence is) are unacceptable, then naturally the Court is bound to decide, if possible, which of the opinion of the various experts is preferable
and to found it’s judgement on such opinions. On the other hand, where a choice can be made on a balance of probabilities and on accepted principles
between two sets of eyewitnesses, the Court should first make a provisional assessment of which of the versions of the eyewitnesses is acceptable. Having provisionally
accepted one or other version, the Court should then consider the expert evidence and decide whether that evidence displaces the
provisional findings made on the evidence of the eyewitnesses. In this regard, where the onus is on the plaintiff and where there
is a dispute between the experts, it is my view that if the eyewitnesses favour the plaintiff, the evidence of the plaintiff must
show that the evidence of his experts must be accepted in preference to the experts and the eyewitness for the defendant. If, at
best, the Court is left in doubt as to whether the experts for the plaintiff has advance opinions preferable to those of the defendants,
then it seems to me the plaintiff has failed to displace the findings made in respect of the eyewitnesses and had consequently failed to discharge the onus on him.
[3]
In Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E) at 436-7, Eksteen J (as he then was) remarked as follows;
“on the whole he (ie the trial Judge) came to the conclusion that there were “too many variables and imponderables” in the case, which, in the end result, rendered Tompkins’
evidence unreliable. In cross-examination Tompkins himself conceded that in practice things often happen which are not always reconcilable
with the opinion of experts because of the fact that there are always “unknowns”. Because of these unknown factors he
concedes that in his attempt theoretically to reconstruct what had happened he was bound to “speculate a lot”. I agree,
with respect, with the learned Judge’s remarks that
“it is however, a well-known fact that it is often impossible to explain what happens in a collision on rational logical grounds……………………………….
Direct or credible evidence of what happened in a collision, must, to my mind, generally carry greater weight than the opinion of an expert, however experienced he may be, seeking to reconstruct the events from his experience and scientific training. Strange things often happen in a collision and, where two vehicles approaching each other from opposite directions collide, it is practically impossible for anyone involved in the collision to give a minute and detailed description of the combined speed of the vehicles at the moment of impact, the angle of contact or of the subsequent lateral or forward movements of the vehicles. Tompkins’ concession, therefore, that there are too many unknown factors in any collision to warrant a dogmatic assertion by an expert as to what must have happened seems to me to have been a very proper one. An expert’s view of what might probably have occurred in a collision must, in my view, give way to the assertions of the direct and credible evidence of an eyewitness. It is only where such direct evidence is so improbable that its very credibility is impugned, that an expert’s opinion as to what may or may not have occurred can persuade the Court to his view “(of C F Mapota v Santam Versekeringsmaatskappy Bpk 1977 (4) SA 515 (A) at 527-8 and Madumise v Motorvoertuigassuransiefonds 1983 (4)207 SA (O) at 209)”. [4]
Where a court is confronted with two irreconcilable versions, to come to a conclusion on the disputed issues the court must make findings
on;
(a)
the credibility of the various factual witnesses,
(b) their reliability, and (c) the probabilities. [5]
The courts conclusions will in turn depend on a variety of subsidiary factors such as;
(i)
Witness’ candour and demeanour in the witness-box,
(ii) His bias, latent and blatant, (iii) Internal contradictions in his evidence, (iv) External contradictions with what was pleaded or put on his behalf or with established facts or with his own extracurial statements or actions, (v) Probability or improbability of particular aspects of his version, (vi) Calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events – As to (b), witness’ reliability depending, apart from factors mentioned under (a)(ii), (iv) and (v), on (i) opportunities he had to experience and observe the events in question and (ii) quality, integrity and independence of his recall thereof ”.
See Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA)
[1]
In considering opinion evidence in relation to the collision it is apposite to have recourse to what the learned authors Hoffmann and Zefferet say in South African Law of Evidence 4th edition at 85;
“Opinion evidence is accepted if relevant, rejected if irrelevant. An opinion will be relevant if it can assist the court. A
witness’s opinion may assist the court if the witness is better qualified to form an opinion than the court, if the court is
in a good position to form an opinion as the witness, the witness opinion is unhelpful, irrelevant and, consequently, inadmissible’.
[2]
From the evidence before me I am called upon to draw certain inferences. Inferences must be distinguished from speculation or conjecture. In the case of Caswell v Powell Duffryn Associated Colliers Ltd [1940] AC 152 (HL) at 169 [1939] 3 ALL ER722 at 733E-G, Lord Wright observed that ;
“There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In
some case the other facts can be inferred with as much practical certainly as if they had been actually observed. In the other case the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference
can be made, the method of inference fails and what is left is mere speculation and conjecture”
See also Motorvehicle Assurance Fund v Dubuzane 1984(1) SA 700(A) at 706.
[3]
I am also of the view that in the drawing of inferences the court will have to engage in a process of inferential reasoning in its evaluation of the facts.
In Botes and Lloyd Avation(Pty) Ltd and Another v Avation Insurance Co, Botes and Lloyd Aviation (Pty) Ltd v Avation Insurance Co 1985(3) SA 916 (A) at 939I-940A Nicholas J considering the various hypotheses which are open on evidence and in civil cases stated as follows;
“From both inference and speculation must be distinguished hypothesis. This is a theory advanced in explanation of the facts
in evidence as a basis for an inference. To be logically sound, it must be consistent with all the proved facts, and it must not
postulate facts which have not been proved. It may be advanced by a legal representative or, where the subject is a technical one,
by an expert witness. The process of reasoning by inference frequently includes consideration of the various hypotheses which are
open on the evidence and in civil cases the selection from them, by balancing probabilities, of that hypothesis which seems to be
the most natural and plausible(in the sense of acceptable, credible or suitable). CF Ocean Accident and Guarantee Corporation Ltd
v Koch 1963 (4) SA 147 (A) at 159”.
[4]
“In collision cases the bare opinion of an experienced policemen as to the point of collision is usually allowed in our Courts
as prima facie proof which naturally becomes conclusive proof if it is not challenged. If the point of collusion is in issue, however, the police officer, who is really but a
layman in this field, is obliged to the best of his ability to explain why he fixed the point of collusion there. Usually it also appears it would be more correct to refer to an area of collision and not a point of collision and then only approximately because
it is difficult to determine which part of the one vehicle first made contact with which part of the other vehicle and the marks
on which the inference is based are spread over an area and not found at one point”.
PerA.A Onderlinge Assurance Bpk v DE Beer 1982(2) 603 (A) at 604.
THE DUTY AND OBLIGATION OF A DRIVER OF AN EMERGENCY VEHICLE [1] [2] Regulations 308 (1) (h) promulgated under the National Road Traffic Act 93/98 provides that; (1) No person driving or having a vehicle on a public road shall – (h) fail to give an immediate and absolute right of way to a vehicle sounding a device or bell or displaying an identification lamp in terms of section 58(3) or 60 or regulation 176. [3] An emergency or privileged vehicle is entitled to disregard traffic signs. This is not an unlimited right. Emergency vehicles are enjoined to exercise this right with due consideration and regard to the safety of other road users. See Johannesburg City Council v Putco 1963(3) SA 157(W) at 159H-160D. [4] In Rex v Marais 1946 CPD 261 at 266 it was held that “the driver of a fire engine, even though entitled to proceed against a red light without fear of prosecution, would not rush headlong into the intersection, and thus disregard the common law duty cast upon him to so regulate his movements so as not to come into collision with traffic lawfully proceeding across the intersection”. [5] In Netherlands Insurance Co of SA Ltd v Brummer [1978 (4)] 824 [AD] it was held that “a motorist entering an intersection while the traffic light is green for him has a duty to keep a lookout for traffic already in the intersection, he cannot ignore a vehicle he is aware of and which is clearly been driven in a negligent manner. He is however not expected to lookout for traffic which can possibly enter the intersection from the left or the right unlawfully against a red traffic light.” [6]
The driver of a privileged vehicle is entitled to proceed against a red light with due regard to the safety of other traffic. That
implies that he may enter the intersection against the red traffic light only when he has satisfied himself that it is safe to do
so.
See Rondalia Assurance Corp of S.A Ltd v Collins N.O 1969(4) SA 345(T) at 346B-347G.
[7]
“When the negligence of a driver who collided with an emergency vehicle is considered, the following three principles apply;
(a)
It should be clear that the warning apparatus on the emergency vehicle was clearly visible and audible and that such apparatus was
operative at a stage that the other driver was capable of observing such apparatus and had sufficient opportunity to react thereto;
(b) It makes no difference whether the other driver was incapable of observing the warning signal due to a hearing impediment or hearing aid which he wore at the time of the accident;
(c)
Even if such driver observes the flashing lights of an emergency vehicle but does not hear the warning signals he is obliged to assume that the emergency vehicle is using it’s right of way and should
give way. Such a driver is also required to foresee that emergency vehicles may disregard traffic signals”.
See H.B Klopper, The Law of Collisions in South Africa.
[8]
Adv Vos on behalf of the plaintiff contended that I should determine this matter on the insured driver’s version, in effect the plaintiff is invoking that this matter is one where the maxim res ipsa loquitur is applicable (i.e. where the mere fact of a particular occurrence warrants an inference of negligence and where the occurrence is
due to a thing or means within the exclusive control of the defendant).
See Cooper Motor Law Vol 2 at 99.
[9]
The maxim res ipsa loquitur gives rise to an inference of negligence. A court is not compelled to draw an inference. At the conclusion of the matter the enquiry is where on the totality of the evidence the balance of probabilities lies. If it is substantially in favour of the party bearing the onus on the pleadings, such party succeeds, if not, such party fails.
[10]
If the plaintiff proves the occurrence giving rise to the inference of negligence against the defendant, in effect the insured driver, the defendant is obliged to adduce probative evidence in rebuttal of the inference of negligence. There
is however no onus on the defendant to establish the cogency of it’s explanation on a balance of probabilities.
[11]
In our law the maxim res ipsa loquitur has no bearing on the incidence of proof on the pleadings and does not alter the incidence of onus. See Madyosi and Another v SA Eagle Insurance Co Ltd [1990] ZASCA 65; 1990 (3) SA 442(A) at 445.
[12]
There is only one enquiry namely, has the plaintiff having regard to the totality of the evidence adduced, discharged on a balance of probabilities the onus of proving the negligence he has averred against the defendant.
[13]
In this final analysis, the court does not adopt the piecemeal approach of;
(a)
first drawing the inference of negligence from the occurrence itself, and regarding this as a prima facie case, and then
(b) deciding whether this has been rebutted by the defendant’s explanation
See Sardi and Others v Standard and General Insurance Co Ltd b 1977(3)(SA) 776 at 680D-E and G-H. and also Arthur v Bezuidenhout and Mieny 1962(2) SA 566 at 574B.
[14]
In this enquiry I am enjoined to have regard to the following factors;
(a)
the lane in which the driver of the emergency vehicle was travelling,
(b) the lane in which the driver of the insured vehicle travelling, (c)
the distance travelled by the driver of the emergency vehicle from entering the intersection to the point of impact,
(d) the distance travelled by the driver of the insured vehicle from entering the intersection to the point of impact, (e) the estimated speed the emergency vehicle was travelling at when entering the intersection, (f)
the estimated speed the insured vehicle was travelling at when entering the intersection,
(g) the putative point of impact, (h) the position of the vehicles after the collision, (i)
the point of impact on the emergency vehicle as shown by the damage thereto, and
(j) the point of impact on the insured vehicle as shown by the damage occasioned thereto. [1]
It is common cause that the privileged vehicle was involved in an emergency situation responding to an impending armed robbery, that time was of the essence in reaching the Watervall Mall expeditiously.
[2]
The plaintiff testified that the driver of the emergency vehicle was in a hurry as they were confronted by an emergency situation.
[3]
The plaintiff testified that as the emergency vehicle entered the Van Zyl and Smit streets intersection the traffic light was red, that the driver of the emergency vehicle commenced to stop, that as he was in the process of moving, to his surprise a vehicle crashed into the police vehicle.
[4]
The plaintiff says that he did not observe any vehicles travelling in Van Zyl street. He testified that the driver of the emergency vehicle when approaching the intersection reduced speed to between 20-10 kph per hour when approaching and entering the intersection.
[5]
Under cross examination the plaintiff conceded that the driver of the emergency vehicle proceeded through a red traffic light at about 10kph per hour. He initially denied this assertion.
[6]
He conceded that if the driver of the emergency vehicle on entering the intersection, had looked to his right, he could easily have seen the insured vehicle and could have easily avoided the collision.
[7]
The plaintiff conceded that the emergency vehicle was travelling on the extreme left lane in Van Zyl street, and says he cannot remember seeing vehicles in the other lanes in Van Zyl street at the intersection.
[8]
He cannot dispute that there was a huge passenger bus in the lane immediately next to the one the emergency vehicle was travelling on.
[9]
The plaintiff came across as an honest witness, who was trying to give evidence to the best of his ability but it is clear that he was not sure of his facts. He presented conflicting versions regarding how the emergency vehicle entered the intersection.
[10]
An evaluation of his evidence shows that he was not keeping a proper lookout, he does not know and did not see how the collision occurred.
[11]
He was a passenger in the back seat, seated on the left side. The collision occurred on his right side. He is not certain if the driver of the emergency vehicle stopped at the intersection. His
evidence was unsatisfactory and unhelpful with regard to how the collision occurred. He contradicted himself in material respects, he also contradicted the evidence of captain Mabele in material respects.
[1]
She testified that the driver of the emergency vehicle reduced speed to 10kph per hour when he was approaching the intersection, that he stopped at the intersection, then entered the intersection, that the emergency vehicle was in the middle of the intersection
when it collided with the insured vehicle.
[2]
Her evidence that the driver of the emergency vehicle could not have avoided the collision contradicts that of the plaintiff on the
same point. She does not remember if there was a huge passenger bus on the lane immediately following that in which the emergency vehicle was travelling on in Van Zyl street.
[3]
Her evidence that the insured vehicle was travelling in the middle lane in Smit street, contradicts the concession made by the plaintiff that insured vehicle was travelling in the extreme left lane in Smit street. She later conceded that it is possible that the insured vehicle was travelling in the extreme left lane in Smit street.
[4]
She testified that the emergency vehicle was travelling in Van Zyl street in the middle lane, this contradicts the evidence of the plaintiff. She testified that the driver of the emergency vehicle stopped
at the intersection when the traffic light was yellow, she denied that the emergency vehicle proceeded against a red traffic light, this evidence contradicts that of the plaintiff who
testified that the emergency vehicle proceeded against a red traffic light.
[5]
She had difficulty in explaining why it was necessary for the emergency vehicle to stop at the intersection when the traffic light was
yellow. She changed her version and stated that the driver of the emergency vehicle did not stop at the intersection, that he yielded.
[6]
She testified that she concentrated on the yellow traffic light and cannot remember if there were other vehicles in Van Zyl street, yet in her evidence in chief she was able to describe how she saw the insured vehicle entering the intersection and overtaking other vehicles and thereafter colliding with the emergency vehicle.
[7]
Captain Mabele was not an impressive witness. She was evasive and hesitant in answering simple questions. She contradicted herself in material respects, she also contradicted the plaintiff evidence in material respects. Her evidence was not credible, it is unsatisfactory and unreliable.
[8]
The driver of the insured vehicle impressed me in the manner she testified. She answered questions directly without hesitation, she made concessions where necessary. She was sincere in her testimony and did not contradict herself despite being subjected to intense cross examination. Her evidence is reliable, credible and satisfactory in all material respects.
[9]
The evidence of the plaintiff and captain Mabele who were both passengers in the emergency vehicle seated on the back seat is rejected as not credible, reliable or satisfactory
regarding how the collision occurred.
[10]
The driver of the emergency vehicle in which the plaintiff and his witness were being conveyed did not testify. In my view the failure by the plaintiff to call the driver of the emergency vehicle as a witness dealt a fatal blow to his case.
[11]
Without the version of the driver of the emergency vehicle, there is a paucity of evidence as to how he entered the intersection, and what manoeuvres he executed in the intersection to alert other traffic that he was responding to an emergency. The failure by the driver of the emergency vehicle to testify lends credibility to the version of the driver of the insured vehicle in view of the contradictory evidence tendered by the plaintiff and captain Mabele witness.
THE EVIDENCE OF INSPECTOR BOTHMA [1]
A hypothesis advanced by an expert as to how and why a collision occurred is of little value if it is based on unproved assumptions.
If the hypothesis is contrary to the proved facts, it is of no value at all.
[2]
In the evaluation of the evidence of inspector Bothma the remarks, made by Van den Heever JA in Santam Bpk and African Guarantee and Indemnity Co v Moolman 1952 (2) PH 16 (A) are relevant in the assessment of the probative value of his evidence. The learned judge had this to say when he had occasion to deal a hypothetical evidence;
‘Ons is vergas op ‘n rekenkundige vertoog omtrent die relatiewe bewegings en stand van die twee voertuie op verskillende
tydstippe. Myns insiens was dit tydverkwisting. Dit het groteliks gesteun op ‘n beweerde merk wat S se motor in die pad gemaak het. Die oorsprong van die merk is egter nie bewys nie. Dan steun die berekeninge verder op gassings omtrent snelheid uitgedruk in soveel voet per
sekonde. Om die rekenkundige metode op regbare gegewens toe te pas is slegs om die ongewisse met die onbekende te vermenigvuldig”
In my view the learned Judge’s observations in the analysis of hypothetical evidence and unproved assumptions is equally applicable in the present case. [3]
The hypothetical assertions put to the driver of the insured vehicle by Adv Vos on behalf of the plaintiff are not based on proved facts; for instance, it was put to her that she entered the intersection at an excessive speed, that she did not keep a proper look out, that when she
entered the intersection the emergency vehicle was already in the intersection, that she could have avoided the collision by applying
brakes, that she swerved to the right, that there are tyre marks in the intersection which show that the insured vehicle swerved
to the right, that she lost control over her vehicle and that the insured driver denied all these assertions. In my view these assertions are not premised on proved facts, they are a hypothesis not based on the proved facts.
[4]
Inspector Bothma conceded that he is not an expert in the reconstruction of collisions, that is not qualified in mathematics, dynamics and in the physical analysis of collisions.
[5]
He conceded that he has no personal recollection of the accident, his evidence regarding how the collision occurred is based on a hypothesis which is not premised on proved facts.
[6]
He conceded that he cannot estimate the speed at which these vehicles were travelling at the time when they collided; he cannot advance any rational inference or reason why they landed where they did after the collision except to speculate that this was caused by the driver of the insured vehicle swerving to the right
in attempting to avoid the collision. The driver of the insured vehicle vehemently denied this assertion and stated that is impossible because that is not how she recalls the accident happening.
[7]
In the premises the evidence of inspector Botha is in my view not helpful, it is irrelevant and it is rejected .
[8]
In Galante v Dickson 1950(2) SA 460(A) at 465, “the Galante Rule” was formulated as follows;
“where the defendant was himself the driver of the vehicle the driving of which the plaintiff alleges was negligent and had caused the accident, the court is entitled, in the absence of evidence from the defendant, to select out of two alternative explanations
of the cause of the accident which is more or less equally open on the evidence, that one which favours the plaintiff as opposed
to the defendant, and an unsubstantiated theory advanced by the plaintiff with no evidence to support it”
[9]
In my judgment there are no considerations of public policy which I know of which could found an objection to the inverse application of “the Galante Rule” to a case where the driver of the emergency vehicle is accused by the defendant of causal negligence in the occurrence of the accident has not testified, and where the evidence shows that the driver of the emergency entered the intersection against a red traffic light when it was not safe to do so and collided with the insured vehicle when the latter had the right of way.
[10]
The driver of the emergency vehicle did not testify. Evidence was adduced that he was in Ottoshoop for two to three months on inspection duty, that he would be available to testify if required ot if it was necessary. The plaintiff’s counsel informed the court that a subpoena was served on inspector Seemise, the return of service was not handed up to court. The court however accepted that a subpoena was served. The plaintiff did not apply for a postponement in order to call inspector Seemise. He elected to close his case without having adduced the evidence of inspector Seemise.
[11]
The court has not had the benefit of inspector Seemise’s evidence regarding the speed at which he approached and entered the intersection, what manoeuvres he executed within the intersection to announce the emergency vehicle’s presence, what evasive action he took to avoid the collision, why in his view it was impossible to avoid the collision, why in his view the insured driver could have avoided the collision, or why in his view the insured driver can be said to have been negligent.
[12]
In my view the failure by the plaintiff to call inspector Seemise was fatal, the only reasonable inference the court can draw from
such failure to call inspector Seemise is that there is a possibility that his evidence would not have corroborated the plaintiff’s
version.
[13]
The driver of insured vehicle testified that her vision was totally obscured by the huge passenger bus which had stopped next to the extreme left lane in Van Zyl street. The insured driver testified that she was confronted with a sudden emergency not of her own creation.
[14]
It cannot be cogently argued that the insured driver ought to have reasonable foreseen that the emergency vehicle would proceed against a red traffic light, and would emerge into view after being obscured by a big passenger bus and that the insured driver ought to have taken evasive action when the emergency vehicle drove into her path of travel. In my view the plaintiff has not succeeded in raising this possibility.
[15]
In my view the driver of the emergency vehicle entered the intersection when it was not safe to do so. He did so without due consideration and regard to other road users. He did so when travelling at a speed of about 10kph. He did not
stop, or keep a proper lookout, or yield when entering the intersection. He did not sufficiently alert traffic travelling in Smit street of his presence in entering the intersection. In my view the conduct of the driver of the emergency vehicle was negligent.
[16]
When the driver of the emergency vehicle entered the intersection, the view of the driver of the insured vehicle in relation to the extreme left lane in which the emergency vehicle was proceeding in Van Zyl street was obstructed by a huge passenger bus which had stopped in the lane immediately next to the lane the emergency vehicle was proceeding.
[17]
The insured driver found herself in a sudden emergency created by the negligent driving of the emergency vehicle. The insured driver
did not have the opportunity to apply brakes, or to swerve to her right in order to avoid the collision.
[18]
It is possible that the insured driver did not have the opportunity of seeing the emergency vehicle’s blue light, the hazard lights, and hearing the siren as a result of the sudden emergency she found herself confronted with.
[19]
In my view the insured driver kept a proper lookout when approaching and entering the intersection, because she was able to see two vehicles travelling in the lanes immediately to her right. When the insured driver was approaching, and entering the intersection she was able to observe that on her left on the northern demarcation of the intersection in Van Zyl street, two vehicles and a huge passenger bus had stopped at the intersection in the three immediate lanes after the extreme left lane where the emergency vehicle was travelling.
[20]
It was not disputed that on the lane immediately next to the extreme left lane in Van Zyl street a huge passenger bus had stopped at the intersection. It is possible as testified by the insured driver that her view of the extreme left lane in Van Zyl street in which the emergency vehicle was travelling was totally obscured, that she could not have been expected under the circumstances to have become aware of the presence of the emergency vehicle.
[21]
The driver of the insured vehicle testified that she did not hear the siren of the emergency vehicle sounding, this is possible having regard to the fact that the
police vehicle was a standard Mazda sedan, and was not a standard police emergency vehicle fitted with standard operative emergency signals, and also not marked as a police
vehicle.
[22]
Neither the plaintiff nor his witnesses were able to testify about the potency of the sound of the siren. It is possible that the
sound of the siren could not be heard by the driver of the insured vehicle, who in any event was adamant that she did not hear the siren sounding, that if she did she would
not have forgotten it.
[23]
In absence of direct evidence from the driver of the emergency vehicle, and in view of the fact that the evidence of the plaintiff and inspector Mabele has been rejected, the only reasonable inference on the totality of the facts is that the driver of the emergency vehicle entered the intersection against a red traffic
light when it was inopportune and unsafe to do so. His conduct was negligent and his causal negligence was the sole cause of the collision.
[1]
In the premises the summons is dismissed with costs.
_________________________ MOKGOATLHENG AJ ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) COMBRINK KGATSHE INC. PRETORIA FOR THE DEFENDANT - ADV BOOD INSTRUCTED BY T.M CHAUKE ATTORNEYS PRETORIA DATE HEARD - 07 JUNE 2006 DATE OF JUDGEMENT - 10 JULY 2006 |