MARK HENRY STUART DAVIDSON JUDGMENT DELIVERED ON 16 NOVEMBER 2009

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT, CAPE TOWN Case No: 11131/2007 In the matter between: MARK HENRY STUART DAVIDSON Plaintiff and ELLIOT JANTJIES Defendant JUDGMENT DELIVERED ON 16 NOVEMBER 2009 WILLIAMS AJ 1. This is an action for damages arising from a motor vehicle collision which occurred on 3 December 2006 between 21h00 and 21h30 at the intersection of Van Riebeeckshof and Tygerberg Valley Roads, Tyger Valley, Western Cape ("the intersection"). The plaintiff is claiming payment of the amount of R as and for damages sustained to his motor vehicle. The parties have reached agreement on the plaintiffs locus standi, this court's jurisdiction and the quantum of the plaintiffs claim. The only issue which I am required to determine is that of negligence. The plaintiff and the defendant testified. They were both single witnesses. 2. The plaintiff testimony is summarised below: (a) He resides at 8 Abelia Street, Welgedacht, Bellville, Western Cape and has

2 2 lived there for 15 years. On the night in question he and his wife had travelled to the Youth Church in the Aurora area, Durbanville, to collect their minor daughter. The accident happened on the return trip. Plaintiff was the driver of a C240 sedan motor vehicle with an automatic transmission. He travelled towards the intersection along the Tygerberg Valley Road. As the road nears the intersection, it splits from a single lane into three lanes. The right lane is for vehicles intending to execute a right-hand turn into Van Riebeeckshof Road. The middle lane is for vehicles intending to pass straight through the intersection. The left lane is also for vehicles intending to pass through the intersection or intending to execute a left turn into Van Riebeeckshof Road. (b) The plaintiff was familiar with the roads and moved into the right-turn only lane at the earliest opportunity. He signalled his intention to do so by switching on the right indicator. The robot was red for traffic travelling in the plaintiffs direction and he brought his motor vehicle to a complete standstill. He was stationary for approximately 30 seconds with his foot on the brake pedal. There was no rain and the road surface was not wet. The roads were quiet and he did not recall seeing other cars in his lane or in the two lanes next to him. (c) His vehicle was written off because the chassis was hit so hard it had bent. It would have cost a lot more to repair the vehicle. (d) He was asked in examination in chief what type of vehicle the defendant was driving and responded that as far as he could recall, it was a Ford Escort. He was also asked whether he could remember the make of the defendant's vehicle, to which the plaintiff responded: I rather just say I don't remember". (e) The plaintiff became aware of the defendant's approaching motor vehicle when he heard screeching tyres. He looked into his rear view mirror and saw lights approaching. The right front of the defendant's vehicle collided with the left

3 rear of the plaintiffs. The plaintiffs vehicle remained in the right-turn only lane but it moved slightly forward as a result of the impact. The defendant's vehicle came to a standstill in the middle lane but it had moved into the intersection where it obstructed other traffic. (f) Two or three tow trucks were the first to arrive at the accident scene followed by the Metro Police. There was an exchange of words between the police and the defendant who was arrested at the scene. (g) The plaintiffs motor vehicle was damaged on the left rear as depicted on photographs 6 and 7 of exhibit "A". The chassis was damaged and it could not be driven after the collision. The vehicle was towed away. (h) There were two witnesses present at the accident scene but the plaintiff omitted to record their details. He explained that he was "under a lot of shock and did not even consider if. (i) The plaintiff was cross-examined on when the single lane in Tygerberg Valley Road split into three. He responded that this was approximately 50m to 80m from the intersection. He did not see the defendant's motor vehicle until he heard the sound of screeching tyres. This was because his eyes were on the intersection. He was cross-examined about his inability to recall certain details such as whether his foot remained on the brake pedal after the impact and the make of the defendant's vehicle. It was suggested that his recollection of the collision was imperfect to which the plaintiff responded: "What I said is exactly what happened'. He had no difficulty testifying about what he described as "the basics". (j) The defendant's version was put to the plaintiff, namely that immediately and

4 4 shortly before the collision, both the plaintiffs and the defendant's vehicle had travelled in the middle lane. The plaintiff agreed that they both did so until the lane widened and the plaintiff moved into the right-turn only lane. He disputed the defendant's version that the traffic lights were green at the time of the collision and that he had executed a right turn from the middle lane without indicating his intention to do so. (k) As regards the resting position of the two vehicles after the collision, the defendant's version was that he ended up still in the centre lane but to the left of it. The plaintiffs vehicle came to a rest only partially in the right turning lane with the major portion diagonally in the middle lane. (I) The plaintiff had observed the damage to the defendant's vehicle which was damaged on the right front and in the vicinity of the right front wheel. 3. The plaintiff thereupon closed his case and the defendant gave evidence. His version is that he was driving approximately 30m behind the plaintiffs vehicle and that both vehicles were travelling in the middle lane as they approached the intersection. The defendant testified that the robot was green and that he intended to travel straight through the intersection. The plaintiff suddenly and without any warning, executed a right turn from the middle lane. The defendant took evasive action by applying brakes and swerving to the left but was unable to avoid the collision. 4. Mr Jennings who represented the defendant conceded in argument that the plaintiff "gave evidence in an honest manner and did not adjust his evidence either under crossexamination or when questioned by the Honourable Court. In my view, this concession was correctly made. It was nonetheless submitted on behalf of the defendant that the plaintiffs evidence should not be accepted in light of the following criticism directed against it:

5 a) firstly, he was not supported by any corroborating witnesses; b) secondly, there was no explanation as to why the occupants of the plaintiffs motor vehicle (his wife and daughter) were not called to testify; c) thirdly, there was no evidence from either the Metro Police or indeed any other law enforcement official and no plan of the accident scene had been submitted; d) fourthly, the plaintiff had conceded that he was in a "state of shock' and that the incident happened a long time ago, and that these were factors which could impact on his ability to recall the events correctly. 5. Mr Jennings also emphasised two further aspects of the plaintiffs testimony which he considered to be unsatisfactory. The first relates to the speed of the defendant's vehicle. Mr Jennings submitted this was so great that the impact destroyed the chassis of the plaintiffs vehicle yet it was not dislodged from its stationary position. The other aspect relates to the plaintiffs testimony that the collision occurred in the right turning lane, yet the defendant was driving in the centre lane when the plaintiff observed him. 6. It is trite that the plaintiff bears the burden of proof on a balance of probabilities. The onus refers to "the duty that is cast upon a litigant to adduce evidence that is sufficient to persuade a court, at the end of the trial, that the claim or the defence, as the case may be, should succeed." (See Schwikkard Van der Merwe Principles of Evidence 3 rd Ed at 571). 7. I turn now to consider the evidence. The plaintiff struck me as an honest and reliable witness. His demeanour in the witness box was good. He answered questions in a forthright manner and his version was consistent under oath. Where he did not know the answer or could no longer recall something, he said as much.

6 6 8. The defendant, by contrast, was unimpressive as a witness. His evidence was unsatisfactory in a number of material respects. Some of these deficiencies are set forth below: (a) He testified that the plaintiff was driving a 4x4 motor vehicle. He went on to explain that the back was elevated and that the vehicle sloped towards the front. This was manifestly incorrect. The plaintiff was driving a sedan. The details of the vehicles driven by the parties at the time of the collision are admitted on the pleadings. (b) The defendant claimed to have no knowledge as to why he was arrested after the collision. He received a written warning to appear in court but denied any knowledge of the charge. When confronted with the written notice which was handed up as exhibit "B", he conceded that he had been arrested for drunken driving and also apologised to the court for lying under oath. (c) The defendant's version was that the plaintiff executed a right-hand turn into Van Riebeeckshof Road from the centre lane at the intersection. He vacillated on whether he had observed the brake lights on the plaintiffs vehicle. He first testified that the plaintiff did not apply brakes before executing the sudden righthand turn. When asked by the court whether the brake lights of the plaintiffs vehicle might have come on but that the defendant did not observe this, he conceded that this might be so. He thereafter reverted to the earlier position that the plaintiffs brake lights had not come on. d) A further difficulty with the defendant's version is the fact that the plaintiffs motor vehicle was damaged on the left rear. This is wholly irreconcilable with the defendant's version as to how the collision occurred and Mr Jennings conceded in argument that he was unable to explain this. 9. The details which the plaintiff was unable to recall (due to the effluxion of time or

7 because they constituted peripheral issues) and the other criticism levelled against his testimony does not detract from the credibility and the reliability thereof. His version, moreover, is entirely consonant with the damages to the two motor vehicles and indeed, corroborated thereby. I have no hesitation in the circumstances in accepting his version and rejecting the defendant's. In doing so, I am mindful of the fact that he was a single witness. However, and as the trier of fact, I should guard against allowing the exercise of caution to replace the exercise of common sense (per Holmes JA in S v Snvman 1968 (2) SA 582 (A) at 585G). On my assessment of the evidence, the plaintiff has given an honest and trustworthy account which was undisturbed in cross-examination, is corroborated by the physical damage to the motor vehicles and which accords with the probabilities. There is no basis upon which his version may be rejected. On the plaintiffs version, there can be no question of contributory negligence. 10. The same cannot be said of the defendant's evidence. The defendant's testimony was unsatisfactory in several respects as delineated above. Mr Cloete, who appeared for the plaintiff, also highlighted the improbability of the defendant's version. This is expressed as follows in the plaintiffs heads of argument: "The Defendant conceded that this is the only intersection in the area where the Plaintiff could have executed a right-hand turn. Both the Plaintiff and the Defendant knew the area well. There were no other vehicles in the immediate vicinity of the Plaintiff's and the Defendant's vehicle. It is therefore improbable that the Plaintiff would approach the intersection with the intention of turning right, whilst remaining in the middle lane, and without braking and reducing his speed or indicating his intention to do so, simply swerving to the right and executing a ninety (90) degree turn at speed."

8 8 11. I am in full agreement with Mr Cloete's submission and am satisfied that the plaintiff has established his version on a preponderance of probabilities. On my view of the matter, the collision was entirely attributable to the defendant's negligence. The defendant was driving too fast, he failed to keep a proper lookout, he failed to maintain a safe following distance and failed to apply the brakes of his motor vehicle timeously and/or adequately. 12. On the plaintiffs version he had moved into the right hand lane at the earliest opportunity and was stationary in the right-turn lane because the traffic lights were red. His foot was on the brake pedal and he had signalled his intention to turn right into Van Riebeeckshof Road. The fact that his foot was on the brake pedal probably explains why his vehicle moved forward only marginally. The plaintiffs vehicle was stationary at the time of impact. It is clear from his evidence that he made no sudden manoeuvre which would have required the defendant to apply brakes, causing his tyres to screech and to collide with the plaintiffs vehicle. 13. In Isaacs and Leveson The Law of Collisions in South Africa by HB Klopper 7 Ed, the learned author states at 78 with reference to the authorities quoted in footnote 447 that a "driver who collides with the rear of the vehicle in front of him is prima facie negligent unless he or she can give an explanation indicating that he or she was not negligent". See also the dictum of Viljoen JA reproduced below in Union and South West Africa Insurance Co. Ltd v Bezuidenhout 1982 (3) SA 957 (A) at 965B-C: "Alhoewel die redelike versigtige motorbestuurder nie teen roekelose gedrag van ander motorbestuurders hoef te waak nie (kyk Griffiths v Netherlands Insurance Co of SA Ltd 1976 (4) SA 691 (A) te 697B-C) behoort hy desnieteenstaande te voorsien dat die verkeer voor horn, om watter rede ook al, skielik mag stadiger beweeg of selfs tot 'n stilstaan kom, en het hy 'n plig om sy optrede hiervolgens in te rig. Hoe nader so 'n

9 motorbestuurder aan die voertuig voor horn ry, hoe groter, meen ek, is sy verpligting om waaksaam te wees." 14. Having considered the evidence and the arguments presented, I am satisfied that the sole cause of the collision was the negligent driving of the defendant which caused him to collide with the plaintiffs stationary motor vehicle and that the defendant is liable for the plaintiffs damages in the amount agreed upon. There is no reason why costs should not follow the event. Although the plaintiff qualified an expert on the quantum of his damages, no costs are sought in this regard. 15. In the result judgment is entered in favour of the plaintiff and I make the following order: (a) defendant is ordered to pay plaintiff the sum of R , (b) defendant shall be liable for interest on the aforesaid amount at the rate of 15.5% per annum from date of judgment to date of payment; (c) defendant shall pay the plaintiffs party-and-party costs of suit on the High Court scale. R T WILLIAMS, AJ