IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT, CAPE TOWN
Case No: 11131/2007
In the matter between:

and

JUDGMENT DELIVERED ON 16 NOVEMBER 2009

WILLIAMS AJ

2.     The plaintiff testimony is summarised below:

(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.

(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.

(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.

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)	

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.
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 right-hand 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.
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 

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."
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.

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 R148 168.04,
(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.