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REPUBLIC OF SOUTH AFRICA

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2016/17635

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED.

In the matter between:

CHAREWA, ADVANCE JACOB                                                                               Plaintiff

and

ROAD ACCIDENT FUND                                                                                     Defendant

 

JUDGMENT

Headnote - Negligence - an 8-ton truck passed by a cyclist and its wind-rush and tail- end vortex caused the cyclist to fall and be injured - there was no physical contact and no literal collision

Several statutory instruments and case law in SA and abroad which address the safe margin to pass a cyclist considered– stipulated margins vary from 1 metre to 1.5 metres

Evidence establishing unequivocally that the truck’s drivers conduct, ie passing so close as to cause a wind-rush and tail-end vortex causally connected to the cyclist falling – driver negligent

 

Held:

(i) A motorist is under a duty to be aware of the effect of wind-rush and tail-end vortex caused by the vehicle being driven; the larger the vehicle and the faster it is moving, the more marked will be the effect.

(ii) The motorist is under a duty to assess whether there is sufficient space between the cyclist and the oncoming traffic to pass through the gap without interfering with the cyclist; to this end the gap must be more than just enough physical space to fit through, but enough to leave the cyclist undisturbed.

(iii) The motorist is under a duty to observe the road surface on which the cyclist is riding, the weather conditions, especially the presence and effect of wind and rain on the potential for the cyclist to weave.

(iv) As a rule of thumb, the prudent distance to allow is not less than 1 metre, if the motorist is travelling at a modest speed, and 1.5 m, if traveling faster. The courteous motorist would be generously cautious and always allow for a 1.5m space.

(v) Where the cyclist is a child, the response of the motorist includes an awareness of a greater risk of an erratic path of travel by the cyclist.

(vi) A motorist who drives past a cyclist close enough that the wind-rush or tail end vortex causes the cyclist to wobble is negligent.

(vii) If a cyclist is interfered with by wind-rush or tail-end vortex, and as a result of that interference, suffers injuries and damages, the motorist is liable to that cyclist.

 

Sutherland J:

 

Introduction

[1] In this matter, the defendant’s liability to compensate the plaintiff is in issue, based on the alleged negligence of the driver of a truck, Bongani Mashinini (the driver). The plaintiff was a cyclist who was injured by a fall when a truck passed him by. The possibility of the plaintiff being negligent too and contributing to the damages suffered is also addressed. The quantification of damages has been deferred by agreement.

[2] The dispute embraces these issues:

2.1. What caused the plaintiff to fall, and, specifically:

2.1.1. whether there was physical contact with the truck, and

2.1.2. if not, whether the truck passed at a safe margin of space so as not to interfere with the cyclist by the wind-rush and vortex created by the passing vehicle.

2.2. Whether, in the circumstances the driver, was negligent.

2.3. Whether both parties were negligent and if so, what is an appropriate apportionment.

 

The common cause facts

[3] The Plaintiff, Advance Jacob Charewa, was riding his bicycle on 5 August 2015 at 6h20 in Vickers Road, City deep, Johannesburg, on the way to work. The driver, at the wheel of an 8ton truck, some 3.5 m in height, about 3metres wide and about 7 metres long, passed by the plaintiff in the same direction. The plaintiff fell. His left femur was broken. Later he suffered an embolism.

[4] The straight roadway in which the incident occurred is divided into two double lanes in both directions. The division into two lanes is marked by a staggered white line. There were no yellow lines alongside the edges. On the edge relevant to the accident there was a concrete curb, and storm-water culverts on the verge of the tarmac. Importantly, the traffic lanes were narrow, an obvious reason for there being no space to create a yellow line zone along the side of the roadway.

[5] Photographs adduced in evidence illustrate a truck travelling in the vicinity of the accident straddling the dividing line of the two traffic lanes, as it passed by. Also, the photograph shows tall trees, partly cut away and back, to give room for high vehicles to pass unimpeded. The hedging reaches to a plane perpendicular to the road, at the very edge of the pavement. The driver conceded that to travel with his truck in these lanes was a ‘tight’ fit. The objective evidence corroborates that assessment by the driver.

[6] The road surface was good. The weather was dry. The light was optimal. The traffic was busy.

[7] The turbulence caused by the passing truck caused the plaintiff to wobble.

 

The disputed facts

[8] The competing versions are thus:

8.1. The plaintiff claims he was riding on the pavement 1.5 m far from the roadway. He was on the way to work using the usual route. He was riding a 15 km route and had, only a few minutes earlier, set out on his journey. He was not travelling fast. He heard the truck coming up behind him but did not look back specifically to see it. The truck came up alongside him. He felt the turbulence whilst the truck passed (‘I was knocked by the wind’) and he was ‘dragged’ into the back corner of the passing truck, which clipped him on the shoulder, snaring his ‘jersey’, thereby causing him to fall. In the fall, his upper femur was fractured.

8.2. The defendant says he had experience driving trucks. On this day was driving at 60 kph, when saw the cyclist riding ahead on the edge of the road. He says that he usually sees bicycles on the pavement; this was the first time he saw one riding in the roadway. He says he slowed to about 20-30 kph at the time of passing. A taxi in the right-hand side lane was abreast of him when passing the cyclist. His truck was ‘squeezed’ as he ‘tried to get closer to the taxi to avoid touching’ the cyclist. He drove past the cyclist leaving ‘enough room’; later estimated as half a metre. At the same time, he avoided encroaching into the right-hand lane in which the taxi was travelling alongside the truck. As he was passing the cyclist he saw, first, that he wobbled (‘…it seemed the air disturbed him’) and then he saw, after the back of the truck had passed by, that the cyclist had fallen. The driver says there was no physical contact between the plaintiff and the truck. He heard no sound to indicate contact. The driver stopped to help.

[9] The first dispute of fact that can be disposed of is the plaintiff’s allegation that he was riding on the pavement, hard up against a crash barrier on the far side of a 1.5m sidewalk. Had the plaintiff been in that relationship to the path of travel of the truck, the accident could not have occurred. The position in which he lay after the incident, was on the shoulder of the road with one leg partly intruding into a storm-water culvert. The probabilities, both inherent and founded on the evidence, are that he was riding in the roadway close to the edge of the pavement, not on the pavement. His testimony in court on his physical position at the moment of injury must be rejected. In any event, in a statement he gave to his attorney on 26 August 2015 (21 days after the event) he describes what happened as “….I was cycling on the left side and on the edge of the road”.

[10] The second issue that needs to be determined is what else of the plaintiff’s evidence can be relied upon. In my view, he was a poor witness. Regrettably, it is common experience that a person with a story to tell often thinks he can improve his case by gilding the lily. This is both misguided and understandable. The trier of fact needs to be sensitive to this kind of exaggeration and peel away the dross to reveal the kernel of truth. The plaintiff also struggled to distinguish between what he could really remember, from what he was told by others and, as many witnesses do, constructed, perhaps, a bona fide but wholly wrong account through rationalising from what he does know to merge that knowledge with what he assumes must have happened. In this case the plaintiff was convinced he had been knocked down by a rig and trailer. Only when confronted with the reality that the vehicle that passed him was a truck did he then volunteer that he saw a rig and trailer after the accident and drew an inference. Similarly, he stated that he was unconscious after the injury was sustained and awoke when the ambulance arrived to take care of him, but notwithstanding that circumstance, he also purported to give details of his observations which would have been possible only during the very period he was supposedly unconscious. This sort of contradiction makes his evidence largely unreliable, even though it may be sincere. Because of these considerations I cannot rely on his account, except where corroborated by either the evidence of the driver or by the objective evidence and the probabilities.

[11] The driver, in my view gave a generally plausible account of what he believed had happened, though not in every respect. He too, exaggerated what he actually observed, probably in the belief that he could exonerate himself from blame. For example, he purported to have the plaintiff in his sight, through the rear-view mirror, at all times from the approach of the truck alongside him until he fell, yet also claims to have shifted his glance to the right side of the vehicle to observe the space between the truck and the taxi travelling in the right-hand lane alongside the truck. As with the plaintiff, it is inappropriate to take a mechanical approach to assessing the value of the evidence. It is taken for granted that recollections of actual observations are often sketchy and prone to rationalised reconstructions.

 

Was there physical contact?

[12] The assessment of this question can take place only by drawing inferences from reliable evidence. Accordingly, the point of departure is to ask what objective evidence is available?

[13] How is the fractured left femur of the plaintiff to be explained? Why did only that injury at the scene occur? Why was the plaintiff not also scratched and bruised? As alluded to earlier, he lay after the fall, with one foot in drain and his body partly in the roadway. If he had been dragged or knocked and thus, either his body scraped along the ground for however short a time, or was flung by the force of impact, more general injuries, even if not serious, would have expected. None are alleged, and none are recorded in the hospital records.

[14] The plaintiff claims to have seen, after the incident, his ‘jacket’ hanging on the corner of the truck; ie it was ostensibly ripped from his body. The driver says that after the incident he parked the truck at some distance from the prone plaintiff.  In any event, the plaintiff is totally wrong about what kind of vehicle that was involved. In addition, this evidence of the plaintiff is unreliable as his opportunity to make such observations could not exist, given the injury and pain he suffered and a lapse into unconsciousness, as claimed by him. This snippet of information is, in my view, offered to bolster the notion of contact between him and the truck. It is an invention of the imagination and is rejected as unreliable.

[15] There is no objective evidence that he was knocked physically by the truck. Given the driver’s swift realisation of the plaintiff having fallen, the fall must have occurred so soon after the truck passed to engender in the mind of the driver that the passing of the truck was implicated in the cause of the fall. Hence, he stopped, as it was proper to do, and rendered assistance.

[16] Taking a holistic view of what is claimed by both witnesses to have occurred, and marrying the objective evidence to the probabilities, in my view, it cannot be found that there was any actual physical contact between the plaintiff or his bicycle and the truck.

[17] On the probabilities, it must be found that the wind-rush from the truck passing by, closely, caused him to wobble, and as the rear of the truck passed, the vortex behind the truck caused his fall. 

 

How close to the plaintiff did the truck pass by?

[18] The driver was vague on the question of the margin of space between the truck and the plaintiff when passing by. His evidence consisted of ‘enough room’ and an estimate of 0.5m.

[19] A point to emphasise is that the driver admits he saw the plaintiff wobble as he passed. This observation is consistent with the effect of the wind-rush. The driver also says that the plaintiff fell almost immediately after the tail of the truck had passed him by.

[20] The speed of the truck is relevant to the wind-rush effect. The driver claims he was driving at 20-30 kpm when passing. No technical evidence was tendered to calculate the relationship of wind and speed.[1] However, in my view, on the basis of the driver’s observations about the behaviour of the cyclist, it seems unlikely that the estimate of 20-30 kpm is plausible. Corroboration, indirectly, of this scepticism derives from the fact that a taxi was travelling alongside the right-hand side of the truck, in the ‘fast’ lane, and that the taxi had no reason to slow down, implying that it is improbable that the taxi would have kept pace with the truck if the truck had really been travelling that slowly. Moreover, whether at a higher speed or not, the speed at which he passed the plaintiff was enough to make him wobble.

[21] The fact of the wobble suggests the truck was close to the plaintiff; indeed, dangerously close so as to disturb the cyclist’s balance. The driver concedes that keeping the truck in the narrow lanes on that stretch of road was difficult and it is notable that he used the word ‘squeezed’ to describe the situation. On the probabilities, in order to allow for not encroaching into the right-hand lane and to avoid getting in the way of the taxi alongside, the margin between the truck and the plaintiff was ‘enough’, as the driver maintains, not to collide with the cyclist, but was not ‘enough’ to avoid interfering with the cyclist’s control of the bicycle.

 

Duties of motorists and cyclists when a vehicle passes by a cyclist and effect the wind-rush phenomenon on those duties

[22] In blithe terms, users of the road must avoid interfering with other users of the road in order to keep everyone safe. The Rules of the Road seek to regulate that behaviour. However, not every aspect of road use is susceptible to a bureaucratic – like regulation. A great deal of keeping safe on the road is a question of sound judgment. Margins of safety when passing other users of road, whether vehicles, cyclists or pedestrians is a classic example of this kind of driver responsibility for alert and insightful judgment.

[23] An important aspect of the exercise of such judgment is an awareness of the effects caused by the vehicle which one is driving. The larger the vehicle, the greater shall be the displacement of air as the vehicle passes by. Knowledge of this phenomenon is not the preserve of scientists.  It is a matter of everyday experience that objects moving through space displace air when doing so; we all feel it when walking and running no less than when propelling an object at speed.

[24] The reasonable driver is aware of these effects and keeps a lookout that the effects of wind-rush and tail-end vortex do not cause any danger. Passing by a cyclist, balancing on a bicycle, is a circumstance which the reasonable motorist appreciates is fraught with danger, not merely of a collision, but also of a material disturbance adversely affecting the cyclist’s balance.

[25] In my view a motorist who passes by a cyclist at a speed and at a distance that causes the cyclist to wobble and fall is negligent.

 

The Law on margins of safety when passing a bicycle[2]

 

Statutory instruments

[26] In South Africa the National Road Traffic act 93 of 1996 (NRTA) could be regarded as the apex statute in this environment. Regulations were promulgated in terms thereof in 2000. [3] In terms of this statute a bicycle is a vehicle, a longstanding status which predates its enactment.[4] Reg 311 deals with bicycles.[5] Nothing in that text addresses specifically the margin of safety when passing a bicycle.

[27] In the Western Cape Province, 2013 Regulations in terms of a provincial statute, the Western Cape Road Traffic Act 6 of 2012 address the margin of safety.[6] Section 2(1)(b) stipulates a margin of 1 metre. Section 2(2) provides that when passing a bicycle, a motorist is entitled to straddle the centre line if it can be done safely, having regard to oncoming traffic. No other province has similar legislation.

[28] A survey of other jurisdictions which address the margin of safety reveals a spectrum of stipulations ranging of 1 metre (or 3 feet) to 1.5 metres. Not all jurisdictions are this specific; In the United Kingdom the code simply says to ‘give plenty of room’[7]

[29] In Canada, the province of Ontario Highway code stipulates a 1m space.[8] Quebec stipulates a space of 1.5m.[9] In South Australia and in the Australian Capital Territory, a margin of 1.5m is stipulated.[10]

 

South African Case law

[30] No judicial decision on all fours with the circumstances in this case could be located in the research carried out. There are several decisions which make it plain that an actual collision between the driver of the vehicle and the cyclist is not a sine qua non for a finding of negligence. This is not a real controversy. The principle of causation is not compromised by the lack of an actual collision.[11] What is required is a causal link between the drivers conduct and the injury sustained.[12]

[31] Most recently, Gamble J in the WCC made pertinent remarks about cyclist and motorists responsibilities in Gaspard Ndayiragijie v RAF [unreported Case No 6547/2009; 13 February 2013]. In that matter a cyclist was riding on the left side of the roadway being buffeted by a Northwester. The edge of the road varied in relation to the roadway. To navigate this topography the cyclist moved to the right and struck the side of a 8-ton truck.  The conclusion reached on the evidence was that under the circumstances the truck had not allowed enough space to pass the cyclist. The driver failed to notice the effect of the variable road edge and that as a result the cyclist would have to enter the lane in which he was driving, thus not leaving enough space. At [2] that court noted the Campaign in South Africa to promote a margin of 1.5 m as a safe margin. That court also found the cyclist to have been negligent in not taking proper steps to be aware of the truck coming on.

[32] The early cases tend to dwell on the duty to alert the cyclist of the motorist’s approach.

[33] In Whatley v Dixie 1927 EDL 203 at 205, it was held that a cyclist was entitled as an equal user of the road to divert the path of travel and thus the motorist approaching from behind was duty bound to alert the cyclist of such approach. Graham JP said that:

“There can be no doubt at all that when a motor car is overtaking a traveller from behind he should use the utmost care and caution to avoid an accident, and his primary duty is to satisfy himself that he has used all reasonable precautions to enable the traveller in front of him to realise that there is a vehicle overtaking him….”

[34] In Rex v Cox 1929 CPD 153, on appeal, the Court commented thus at 155:

‘….when a motorist is overtaking a cyclist he ought to give warning of his intention to overtake him. It is common knowledge that a bicycle is a vehicle which does not always travel in a mathematically straight line; it swerves about the road and a motorist overtaking a bicycle ought, I think, to anticipate that a bicycle will not necessarily keep straight.

[35] In Rex v Geldenhys PH 1940 (1) 0.7 the Cape High Court upheld a conviction for negligent driving where the driver had approached a cyclist from behind, did not hoot to alert the cyclist of the approach, and passed within 18 inches of the cyclist. The cyclist was riding at about 3-4 feet from the kerb and did not swerve. The collision was attributed to the driver’s negligence.

[36] These cases acknowledge, implicitly, the critical point about giving wide berth. The ‘18 inches’ mentioned as the margin in Rex v Geldenhys was not addressed more fully, but it implicit that it was regarded as being too close. In Henry v SANTAM Insurance 1971(1) SA 468 (C) the Court dealt with a collision between a car coming up behind a motor cycle and overtaking it on a stretch of road that narrowed which they traversed at a time when oncoming traffic inhibited lateral movement of the car to the right. The motorcycle was estimated to be three feet from the edge of the road. At 472G-H, it was held:

“The legal principles are clear that a motorist overtaking a two-wheeled vehicle, such as a cycle or a scooter, must allow a sufficient clearance between the two vehicles making due allowance for some lateral movement on the part of the rider of the two-wheeled vehicle, and this would be especially so where the road surface is rough, as it was at the place of the collision. Plaintiff has in my opinion at least established a prima facie case that Forbes passed him without allowing sufficient space between the two vehicles….”

[37] The Appellate Division in Oosthuizen v Standard General Versekeringsmaatskappy 1981(1) SA 1032 (AD) dealt with an accident in which a child cyclist riding alongside the left of the road in a buffeting wind, swerved to circumnavigate a manhole. A car approaching from behind collided with the cyclist. Among other aspects the question of whether an appropriate margin of safety had been allowed for by the motorist was debated. It was contended on behalf of the driver that the obligatory margin to be allowed was limited to the ‘…usual, normal sideways movements’ (at 1038F). The motorist had testified that she allowed about a 3-metre gap (at1039B). The court held that the threshold of the motorist’s duty of care was dictated by the whole conspectus of factors present, including the buffeting wind and the fact that the cyclist was a young child. The appropriate margin to leave was therefore in the context of all the present factors such that the reasonable motorist would have left a wider space. At 1039H- 1040B, Trengove JA stated:

“Teen hierdie agtergrond kom ek weer terug by die vraag of die redelike versigtige bestuurder 'n spasie van om en by twee meter as genoegsaam sou beskou het, soos mev Radowsky blykbaar gereken het, of sou hy dit in die omstandighede, wenslik en nodig geag het om heelwat verder, na regs, van die fiets af verby te gaan. Soos die saak op die oomblik staan, en gesien die maatstaf wat aangewend moet word by die oorweging van die aansoek om absolusie, is daar, na my mening, wel ruimte vir menings-verskil oor hoe die redelike versigtige bestuurder in die omstandighede sou opgetree het. Na my oordeel kan die moontlikheid nie uitgesluit word nie dat 'n redelike hof op grond van die onweerspreekte getuienis sou kon bevind: dat die redelike versigtige bestuurder wel 'n groter spasie tussen hom en die fietsryer sou gelaat het, as wat mev Radowsky gedoen het; die spasie wat sy gelaat het nie genoegsaam was nie; dat sy in dié opsig nalatig was; en dat haar nalatigheid tot die botsing bygedra het….”

 

Foreign Case Law

[38] The Irish case of O’Gorman v Motor Insurers Bureau of Ireland offers a hypothetical factual situation similar to the present case.[13] A cyclist, whilst riding on the left of the roadway approached a parked truck. He had to divert his path of travel to go around the parked truck. Another truck came up from behind the cyclist. The cyclist rammed into the back of the parked truck. The passing vehicle did not stop. The cyclist was injured and had no memory of the incident. A reconstruction was put to the court to theorise that the only explanation was that the wind-rush of the passing vehicle blew the cyclist into the back of the parked vehicle. The case failed on the absence of evidence to establish critical facts to support the cause being wind-rush. In that respect this case is to be contrasted with the present matter where evidence of its effect was adduced. 

 

Summary of the law

[39] A traverse of these instruments and cases results, in my view, that when a motorist passes a cyclist:

39.1. The motorist is under a duty to be aware of the effect of wind-rush and tail-end vortex caused by the vehicle being driven; the larger the vehicle and the faster it is moving, the more marked will be the effect.

39.2. The motorist is under a duty to assess whether there is sufficient space between the cyclist and the oncoming traffic to pass through the gap without interfering with the cyclist; to this end the gap must be more than just enough physical space to fit through, but enough to leave the cyclist undisturbed.

39.3. The motorist is under a duty to observe the road surface on which the cyclist is riding, the weather conditions, especially the presence and effect of wind and rain on the potential for the cyclist to weave.

39.4. As a rule of thumb, the prudent distance to allow is not less than 1 metre, if the motorist is travelling at a modest speed, and 1.5 m, if traveling faster. The courteous motorist would be generously cautious and always allow for a 1.5m space.

39.5. Where the cyclist is a child, the response of the motorist includes an awareness of a greater risk of an erratic path of travel by the cyclist.

39.6. A motorist who drives past a cyclist close enough that the wind-rush or tail end vortex causes the cyclist to wobble is negligent.

39.7. If a cyclist is interfered with by wind-rush or tail-end vortex, and as a result of that interference, suffers injuries and damages, the motorist is liable to that cyclist.

 

Is there Contributory negligence by the plaintiff?

[40] In my view there is no plausible basis upon which to find that the plaintiff was negligent.

[41] He was an experienced cyclist, having ridden since early childhood. He was a slightly built man. The effect of turbulence is plain - it takes no prisoners. To suggest he was negligent in not being able to resist the effect of the wind-rush or the tail end vortex is implausible.

[42] Could be have taken any steps to avoid losing balance? The passing of the truck endured for a matter of 1-3 seconds, if that. There was no opportunity to do anything at that stage. If he was to take any steps it had to be before the truck passed. It was faintly argued that he might have stopped when he heard the truck approaching or moved onto the pavement. However, no obligation existed on him to do so; as a road user, his rights were equal to the other users of the road, as was recognised as long ago as 1927, in Whatley v Dixie (Supra) at 205:

“It is clear that the right of usus to a road by a foot passenger or cyclist is precisely similar to the right of usus to the same road by a motor car….”

[43] In the absence of a dedicated cycle lane the plaintiff was well within his rights to ride in the roadway.

 

Conclusions

[44] The driver was negligent in that he drove in such a manner as to interfere with the stability of the plaintiff mounted on the bicycle.

[45] The defendant is liable to compensate the plaintiff for 100% of the proven damages

 

The Order

1. The defendant is liable to compensate the plaintiff in 100% of such sum of damages as is proven.

2. The defendant shall bear the costs of trial.

 

 

 

_______________________________

Roland Sutherland

Judge of the High Court

Gauteng Local division, Johannesburg

 

Heard: 24 – 25 May 2018.

Judgment: 11 July 2018

 

For the Plaintiff:

Adv L Molope,

instructed by S. S. Ntshangase Attorneys

 

For the Defendant:

Adv H Nkabinde,

instructed by the State Attorney.

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