---

THE REPUBLIC OF SOUTH AFRICA 

IN the SOUTH GAUTENG HIGH COURT, JOHANNESBURG

Case no: 35504/11

In the matter between:

 

VAN DER BERG: THANIA ELIZABETH	Applicant
and
ROAD ACCIDENT FUND	Respondent

 Date of hearing: 29 January 2013

Date of Judgment:  20 March 2013

Summary: Claim against the Road Accident Fund –negligent driving by the driver of the plaintiff’s car. Principles governing rear end collision. Driving slow on the fast lane of a dual road carriage not negligent in itself. Speed limit generally- minimum and not maximum.

 JUDGMENT

Molahlehi J 

Introduction

[1]   This is an action in which the plaintiff seeks damages against the respondent arising from bodily injuries suffered as a result of alleged negligent driving by the driver insured by the respondent.

[2]  At the beginning of the trial the parties agreed that at this stage the Court should consider only the issue of liability and that the issue of quantum be separated and be considered later.  Accordingly the only issue for consideration is whether the cause of the collision on the day in question was the negligent driving of insured driver. The plaintiff has pleaded that in the alternative even if the insured driver was not the sole cause of the collision it should be found that his negligent driving contributed to collision. 

[3] The plaintiff pleaded that the insured driver was negligent in the manner in which he drove the vehicle on the day in question and it was as a result of his conduct that the plaintiff sustained injuries.

The evidence

[4] There are only two witnesses who testified- one witness for each party. The insured driver testified in favour of the respondent and the plaintiff who was the passenger in the other vehicle that was involved in the collision testified on her own behalf.  The driver of the vehicle in which the plaintiff (hereinafter referred to as “the plaintiff’s car.”) was travelling in on the day in question was not called to testify because of the serious injuries he suffered during the collision.

[5]  It is common cause that on the day of the accident the road was dry, the weather was clear and there was no external obstruction on the road. It is also common cause that the two motor vehicles which were involved in the collision were travelling in the same direction. Both vehicles were travelling toward Vereeniging on the Boy Louw road, a dual carriage road.

[6] The plaintiff testified that she is the owner of and was the passenger in the vehicle which was involved in the collision with the insured driver’s vehicle. The plaintiff’s vehicle was driven by her brother-in-law who according to the plaintiff had travelled on that road for quite some time and was familiar with the road. They were travelling from Roodepoort where the plaintiff is employed.

[7] The speed limit on that road is 120 kilometres per hour. The plaintiff testified that because of the knowledge that there are regular speed traps on that road they travelled at a speed not exceeding that speed limit. She could not, however, provide evidence as to the exact speed they were travelling at.  

[8] As concerning the collision, the plaintiff testified that they were travelling on the right hand lane of the road, towards Vereeniging when she suddenly saw the insured driver, who was travelling on the left hand side of the road, swerve to the right hand lane and applied the brakes in front of them. The plaintiff’s vehicle hit that of the insured driver from the rear and thereafter rolled two and half times- landing on its right side. 

[9] In explaining the possible reason why the insured driver suddenly and without any indication swerved to the right hand side of the road carriage, the plaintiff testified that there is gravel path joining the other lanes, which are on the opposite direction. The gravel path is according to her used by motorists to execute unlawful U-turns to join the lanes on the other side of the road travelling on the opposite direction. According to the plaintiff the gravel path was very close to the scene of the accident. She further indicated that the traffic on the road on the day in question was very light, in particular after the previous intersection they went through before the collision. 

[10]  The plaintiff persisted during cross examination that their vehicle was travelling within the prescribed speed limit but could not, as stated earlier, say what the specific speed was. She stood by the point she made in evidence in chief that they could not have travelled at a speed high than the prescribed one because they have travelled regularly on that road for some years and knew that speed traps are regularly used on that part of the road. She could not comment further on her statement that the insured diver cut in front of their vehicle because he was turning into the gravel path. In this respect when questioned further on the issue she stated that the impression she had was that the insured driver wanted to turn into the gravel path. She disputed that there was another vehicle travelling on the left lane opposite the insured driver at the point of the collision. She further insisted that the insured driver was driving on the left lane moments before the accident.

[11]  The insured driver testified that on the day in question he was from Sebokeng traveling in the direction of Vereeniging to buy milk at the railway station. He stated that he was travelling on the right hand lane at 80 km per hour, in his old Mazda when he was suddenly hit from the rear end by the plaintiff’s car. He stated that he saw the plaintiff’s car immediately at the point of impact when he looked on the rear view mirror of his car.  He stated that he did not see the plaintiff’s car after turning into the road from Sebokeng and that he could not avoid the collision because he could not swerve to the left lane as there was another car on his left.

[12]  The insured driver testified during cross examination that he was aware of the rule that vehicle driving slow on a dual carriage road should keep to the left to allow fast moving vehicles to pass on the right.  He conceded that he ought to have driven on the left hand lane of the road because he was travelling at 80km per hour, in a 120km zone.  He also stated that he could not avoid the collision because soon before the collision he noticed another car on his left. Except for stating that he saw the vehicle on the left soon before the collision he could not explain where it came from.

Evaluation and analysis

[13]  The issue in this matter revolves around the resolution of the two conflicting and mutually destructive versions of the two witnesses. It is however, common cause that the plaintiff’s car collided with that of the insured driver from the rear end.

[14]  The general approach to adopt when dealing with rear end collision is set out by the author H B  Kloppers in The Law of Collision in South Africa (7^th Ed) page 78 as follows:

“A driver who collides with the rear of a 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.”

[15]  The driver who collides with another from the rear end can escape prema facie liability for negligence by providing an explanation that shows that the collision occurred because of the negligence of the driver of the other vehicle or due to other intervening circumstances. The example of the exception to the general rule of rear end collision is said to be where for an example, as stated by Klopper, the driver in the front suddenly swerves immediately and applies the breaks.[1]

[16] In the present case the question is whether the plaintiff has provided evidence that show that the driver of the insured vehicle swerved immediately to the right, applied the brakes and thus causing the collision. It has already been indicated above that there are two mutually destructive versions concerning the cause of the collision.

[17]  The version of the plaintiff is that their vehicle which was travelling within the prescribed speed limit and travelling on the right hand lane of the dual road carriage collided with that of the insured driver at the rear end. The reason for this according to the plaintiff is that the driver of the insured vehicle suddenly and with no warning manoeuvred from the left lane to the right lane and immediately applied his brakes. The driver of the insured vehicle disputed the version of the plaintiff and stated that he drove on the right hand lane from the time he entered the road on which the collision occurred.

[18]   The leading authority on the approach to adopt when faced with conflicting versions of the parties is Stellenbosch Farmers’ Winery  Group Ltd and another v Martell ET CIE and Others,[2] where the Court in dealing with this issue had the following to say:

“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness's 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 fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same  incident or events. As to (b), a witness's reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.”

[19]  The plaintiff’s counsel contended that the Court should accept as more probable the version of the plaintiff as the driver of the plaintiff’s vehicle could not for no apparent reason have driven into the rear end of the insured driver’s vehicle.

[20]  The plaintiff’s version in my view has serious inherent contradictions and it should for the reason be rejected. The version of the insured driver is more probable than that of the plaintiff. Whilst there may be certain questions which the insured driver may have not answered as satisfactory as would have been expected, in general I am satisfied with the manner in which he dealt with the questions posed during cross examination.

[21]  I have already indicated that the version of the plaintiff has some gaps in terms of who between the insured driver and the driver of her vehicle caused the collision. The plaintiff firstly states that she was observant of the speed at which the driver of her vehicle was travelling at because if he was to exceed the speed limit then she would be responsible for any speed fine that would have been issued. However, she was unable to state the speed at which the driver was driving just before the collision. In addition, she could not tell as to at what point did the insured driver swerve to their side. It is also strange that she would have been observant of the driving of her driver when on her own version the two have travelled on the same road together, the driver knew that there are always speed traps in the part of the road and she trusted him as a driver.

[22]  In my view the plaintiff’s version that the reason for the insured driver to swerve to the right hand side of the road carriage was because he wanted to make an illegal turn on a gravel road not far from where the collision occurred, to join the road travelling the opposite direction, reveals biasedness on her part. The plaintiff in her testimony sought to create a picture that would at all costs ensure that there would be no doubt that the insured driver was to blame of the collision. She presented the story that would ensure that no credit could for whatever reason be given to the insurer driver. It is strange, in this context that the plaintiff’s sketch of the road which she drew with the assistance of family members does not reflect the gravel road. The plaintiff could not during cross examination provide a satisfactory explanation as to the reason for this.

[23]  The version of the plaintiff is also not supported by the probabilities if regard is had to the fact that on her own version there is a four way stop about 500m from the point of the collision. The question is then why would the insured driver turn on the gravel road rather than turning at the four ways stop where it would be convenient and safe for him to do so. And also as stated above why is the gravel road not shown on the map drawn by the plaintiff.

[24]  There is no explanation as to how come if the plaintiff’s car was travelling within the prescribed speed limit of 120km per hour and was approaching the four way stop which was about 500m from the point of impact the brake markings according to the plaintiff indicate that it took several meters from the time the brakes were applied to the point of impact. There is also no explanation as to why if the plaintiff’s car was travelling at the prescribed speed and that of the insured driver at 80km per hour, the impact was so severe to cause the plaintiff’s vehicle to roll two and half times.  

[25]  The other point which the plaintiff’s counsel relied on in seeking to show that the driver of the insured vehicle was negligent is that he drove at a lower speed on the right hand lane which is ordinarily meant for the fast moving vehicles.  In my view, it does not automatically follow that a driver is negligent by simply driving slow on the right hand lane of a two way carriage.  In the present instance except for the version of the insured driver that he was driving on the left lane and driving at speed less than the maximum speed limit there is no evidence showing that he drove negligently. The 120km per hour speed limit on the road in question is a maximum speed limit and not minimum. I also do not agree with the contention that the insured driver was negligence simply because he saw that the plaintiff’s vehicle just at the point of impact.

[26]  In my view the insured driver was a credible witness whose version is consistent with the probabilities that the sole cause of the collision was the plaintiff’s driver. His concession that he should have driven on the left hand lane because he was driving below the minimum speed limit does not detract from the fact that he was not negligent.  I do not agree with the suggestion that driving on the right hand lane and at the speed lower than the prescribed minimum constitutes negligence per se.

[27]  In my assessment of the evidence before this Court the plaintiff has failed to show on the balance of probabilities that the insured driver was the sole cause of the collision on the day in question.

Order

[28]  In the premises the plaintiff’s claim that the insured driver was the sole cause of the collision is dismissed with costs.

Molahlehi AJ

Acting Judge of Gauteng High Court, Johannesburg

APPEARANCES:

FOR THE APPLICANT: Adv Van Berg instructed by  

FOR THE RESPONDENT:  MP Makgoba of Pule Incorporated. 

---

---