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LULAMILE JOSEPH LUGAWE APPELLANT
AND
A A MUTUAL INSURANCE
ASSOCIATION LIMITED RESPONDENT
F S SMUTS, AJA.
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between
LULAMILE JOSEPH
LUGAWE APPELLANT
and
A A MUTUAL
INSURANCE
ASSOCIATION LIMITED RESPONDENT
CORAM :
KOTZé, JA, SMUTS et GROSSKOPF,AJJA. HEARD : 13 March 1984.
DELIVERED : 29 March 1984.
JUDGMENT
SMUTS, AJA :
This is an appeal against an order by
HOWIE 2
2. HOWIE,J, in the Eastern Cape Division dismissing appellant's
claim for damages suffered by him when run down, on 26 October 1977,
by a motor
vehicle of which respondent was the insurer in terms of Act 56 of 1972. In this
judgment I shall refer to the parties
as plaintiff and defendant.
It was
alleged by plaintiff that the driver of the motor vehicle, B J Duda, was
negligent in various respects. It appears that the
collision took place in M
street in the Tanje residential area of Grahamstown.. M street runs uphill from
west to east and is intersected
by S and T streets which run parallel to each
other from north to south. T street is the street furthest east. M street has
a
tarred...3
3. tarred surface. On either side of the street there are
gravel sidewalks. Between the tarred surface and the sidewalk on the northern
edge of M street there is no kerb but only a dished cement gutter rather in the
shape of a flattened V. Plaintiff testified that
he walked downhill from east to
west in the gutter referred to above. He noticed a motor car approaching from
the opposite direction.
At that stage the car was still beyond S street. he paid
no further attention to it until it was practically upon him. He tried to
run
away but to no avail and was knocked down while still in the gutter. Shortly
before he
was 4
4. was struck he noticed young men playing with a tennis-ball in the
road. He thought that the car had swerved to its left in order
to avoid
colliding with these youths and that this swerve was the cause of the car
'striking him. The witness M Mcekana corroborated
plaintiff to a large extent.
According to him he was standing on the verandah of his home which was across
the street from the spot
where plaintiff was run over. He saw plaintiff walking
down the street in the gutter. The car driven by Duda approached plaintiff
from
the opposite direction. According to Mcekana it was being driven "quite fast".
It swerved
towards 5
5. towards plaintiff and as he was on the point of running away he was
struck.
Duda testified that he, a taxi driver, had picked up E Nabo at Duda's
home in S street for the purpose of conveying him to a place
called Joza. When
he came to the intersection of S and M streets he turned to his left and drove
up M street. He denied that he was
ever beyond the intersection of S and M
streets as alleged by plaintiff. As he was travelling along M street with his
passenger he
noticed many people in the street. There were also children playing
with a tennis ball in the road. He safely passed the children.
Prior to
passing
them 6
7. his left shoulder. The distance which plaintiff moved prior to being
struck was about 2 paces.
E Nabo testified that he was a passenger in Duda's
taxi when the collision took place. He was being conveyed from Duda's house, no
9 S street, to Jo-za. He corroborated Duda in regard to the route they had
followed up to the time the collision took place. He agreed
that Duda was not
travelling fast. He also saw children playing in the street and in addition he
noticed plaintiff on the point of
crossing M street from right to left. When he
first noticed the latter the car was about 20 paces from him. He then saw
plaintiff
crossing the road. Plaintiff appeared to
be 8
8. be walking normally. He reached the gutter,crossed it and moved
forward on to the pavement for about another 2 to 2½ paces.
He then
commenced walking backwards into the road at a quick pace. At the stage that he
was on the gutter the car was already close
to him. Nabo estimated the distance
to be about 4 metres. Duda tried to swerve but he was too close to avoid a
collision. Nabo testifed
that plaintiff was looking over his left shoulder
straight at the approaching vehicle when he moved backwards into the road. All
in all plaintiff moved back a distance of about 4 paces. Nabo also observed
another motor car coming from the opposite direction,
whilst plaintiff was lying
in the road Nabo
became....9
9. became aware that he smelt of liquor.
Constable Dekeda, a member of the
South African police, testified that he visited plaintiff in hospital to obtain
a statement from
him in regard to the accident and in fact obtained one.
Plaintiff appeared quite normal. The statement was read over to plaintiff
and he
signed it. The contents of the statement are the following:
"On Wednesday 26-10-77 at - 18 h 15 I was going down "M" street walking on the left side of the road. I did not know what took place. I was only bumped by a m/v and I fell on the side of the road. I was under influence of liquor at the time of accident.
I was unconscious and I regain
my 10
10.
my senses at the Hospital.
The weather was clear and the tarmac was dry. That is all I can say I sustained bruises on the body."
This statement was signed on 28 October 1977. Dekeda admitted that he could not recall the exact answers given to him by plaintiff. In order to be able to testify it was necessary for him to refresh his memory from the statement. He denied however that he was told by plaintiff that he was walking down the right hand side of the road prior to being struck. He denied further that he had put questions to plaintiff and more particularly that he had asked him whether he was under the influence of liquor when
the 11
11.
the accident took place. The statement, he testified, had
been volunteered by plaintiff.
It is clear from the above synopsis of the
evidence that either plaintiff and his witness Mce-kana or Duda and Nabo were
deliberately
lying. Plaintiff either walked down M street or he crossed the
street from south to north. There was no room for a genuine mistake.
This was
accordingly a case in which the credibility of the witnessess was of prime
importance. HOWIE,J, did in fact make strong
findings in this regard. Constable
Dekeda impressed him as an honest witness. It appears from the judgment of the
trial Judge that
the defence did not find it possible to argue that
Dekeda 12
12. Dekeda had fabricated the contents of the statement and
HOWIE,J, held that in his view there was no possibility that this could
have
happened. It appears further that in the Court a quo plaintiff's counsel
did not contend that Dekeda's credibility was open to question. HOWIE,J, states
in his judgment that he regarded
the quality of Dekeda's evidence as sound and
that he also appeared to be completely impartial. Duda made a reasonable and
Nabo a
satisfactory impression on the Court a quo . Plaintiff's demeanour was,
according to HOWIE, J, generally unremarkable. In regard
to some issues he gave
evidence with great assurance whereas it later
appeared 13
13. appeared that he was wrong. One example of this was his
evidence that when he saw the taxi for the first time it was in M street
beyond
S street. Plaintiff's counsel accepted that plaintiff was mistaken in this
regard in view of the evidence by Duda and Nabo
that their journey had commenced
in S street. Mcekana did not make a favourable impression as far as demeanour
was concerned.
The trial Judge did not base his judgment solely on demeanour.
He correctly had regard to the probabilities and came to the conclusion
that the
evidence of plaintiff and Mcekana was false and could not be accepted. He was
fully aware of the improbability
of 14
14. of a person crossing a street and then immediately moving
backwards into the path of an oncoming car whilst looking straight at
it. He
found, however, that this seemingly improbable conduct was not so improbable and
in fact acceptable when once Dekeda's evidence
that plaintiff had admitted that
he was under the influence of liquor was accepted. I do not intend referring to
all the points made
against the evidence given by Duda and Nabo. They were all
dealt with in the comprehensive judgment of the trial Judge and were accordingly
all present to his mind when he rejected the evidence of plaintiff and Mcekana
and accepted that of Duda, Nabo and Dekeda.
The 15
15. The onus rests on plaintiff to persuade this Court that
HOWIE,J, erred in arriving at the conclusions to which I have referred above in
regard
to the acceptability of the various witnesses evidence. , A weighty
factor in this case is Dekeda's evidence of the admission made
to him by
plaintiff when the statement quoted above was taken down. As I have already
stated, it was not contended that HOWIE,J,
erred in regarding Dekeda as an
honest, sound and impartial witness. There is accordingly no reason to think
that he made a mistake
when he recorded plaintiff's statement. Acceptance of
Dekeda's evidence that plaintiff told him that he was walking down M street
on
the left hand side of the
road 16
16. road and that he was intoxicated at the time is, in the
absence of a satisfactory explanation, practically conclusive against
plaintiff.
It was contended that the statement was made shortly after the accident had
taken place and plaintiff may not have been
fully aware of what he was saying.
Plaintiff himself did however not testify that he was not aware of what he was
doing or saying
when Dekeda visited him in the hospital. On the contrary, he
testified that he remembered that he in fact told Dekeda that he was
walking on
the right hand side of the road and that in attempting to avoid the boys who
were playing with a tennis-ball the approaching
car struck him. He denied
telling Dekeda that he was
intoxicated 17
17. intoxicated. He testified that he told him that he had
"drunk before dinner" , "dinner" being a reference to lunch. In re-examination
he stated that he was still in pain when Dekeda visited him but admitted that he
was aware that the latter was a policeman. In reply
to a question by the Court
as to the state of his memory when Dekeda spoke to him he first replied that it
had not been working well
and gave as a reason the fact that he was sleeping on
his back. Two questions later he however stated that "even though my body was
still painful, I could answer all the questions they asked me" and still later,
in answer to a question whether he could at that
stage remember the events
well 18
18. well enough to answer the questions put to him, he replied that he could
in fact remember the events clearly and that he was able
to reply.
It can
accordingly not be said that plaintiff made the statement to Dekeda while not
completely in command of his senses. On his own
evidence he was aware of what
had happened at the time of the collision and of what he was saying. The
admission that he was walking
on the left hand side of the road accordingly
refutes his evidence and that of Mcekana that he was walking in the gutter while
it
at the same time corroborates that of Duda and Nabo. Once it is accepted that
plaintiff was under the influence of
intoxicating....19
19.
intoxicating liquor the act of walking backwards into the
road also becomes understandable. In addition to his admission of intoxication
there is also the evidence of Nabo in regard to the smell of liquor on
plaintiff.
To my mind plaintiff has failed to show that HOWIE,J, erred in
accepting the evidence that plaintiff crossed the street in front of
an
approa-ching car and then walked backwards into its path. plaintiff most
certainly did not establish, on a pre-ponderance of probabilities,
that he was
run over in the fashion described by himself and Mcekana. I do
not....20
20. not intend repeating the criticism levelled at the evidence of plaintiff
and Mcekana by the learned trial Judge. Suffice it to
say that it appears to me
to be fully justified.
It was argued in the alternative that it was proved
that Duda was negligent even on an acceptance of the defence evidence. It was
contended that Duda ought to have noticed that plaintiff was moving back into
the road at the stage when he was still on the pavement
and, at the very latest,
when he was on the gutter; that had he done so he would have been able to avoid
colliding with plaintiff.
This argument was also advanced in the Court
a quo 21
21.
a quo. HOWIE,J, held that Duda was in fact negligent in only noticing plaintiff when he was already on the road surface. He found that he should have observed him when he was on the gutter. He held against plaintiff, however, on the question whether it had been proved that had he seen him when he was on the gutter, he would have been able to avoid running him down. I think that the finding that Duda was negligent in not seeing plaintiff inmediately before he stepped on to the surface of the road was perhaps more favourable for plaintiff than the facts justify. It is however not necessary to express any view on this issue for reasons which will appear later.
I....22
22.
I am unable to accept the argument that Dekeda should have noticed plaintiff at an even earlier stage, viz, when he was still on the pavement, and that his fail-ure to do so constitutes negligence. It is clear that Duda kept plaintiff under observation right up to the time that he had crossed the tarred surface of the road and was on the gutter and still moving away. Up to the stage when plaintiff reached the gutter on the north side of M street, Duda had seen an adult person crossing the street in a normal fashion. In my view there was no duty on Duda to keep an eye on plaintiff once he had seen that he was safely over the road and still moving away.According to Nabo plaintiff in
fact 23
23.
fact walked another 2 to 2½ paces further on to the pavement. It follows that even had Duda kept looking at plaintiff a bit longer he would have seen him moving further away from the street. In those circumstances there rested no duty on him to keep a further watch on plaintiff. The fact that Nabo kept on looking at plaintiff up to the stage that he had advanced 2 to 2 ½ paces on to the pavement cannot justify a finding that Duda was negligent in not doing so. Duda, as the driver of the taxi, was obliged to be aware of what was going on around him and could therefore not be expected to keep his attention rivet-ted on plaintiff. It was expected of him to be aware
of....24
24.
of what the driver of the approaching car was doing and also
to be on his guard in regard to children and others who might move into
his
path. That was no part of Nabo's duties. He was at liberty to look around at
whom and what he pleased and for as long as it suited
him. The fact that Nabo
might have observed plaintiff moving back a second earlier than Duda did does
not justify a finding that
the latter negligently failed to keep a proper
lookout. But even had he seen him on the pavement and moving back he would also
have
seen that plaintiff was looking directly at his car. There would have been
no reason for him to think that plaintiff would nevertheless
move into the path
of the approaching...25
25. proaching car. I am accordingly not persuaded
that Duda was negligent in not seeing plaintiff while he was still on the
pavement.
Even had he seen him moving backwards on the pavement it could not
reasonably have been expected of him to take avoiding action already
at that
stage.
On the assumption that Duda was negligent in not seeing plaintiff when
he reached the gutter, the question is whether it was proved
that Duda ought to
have been able to avoid a collision had he seen him. HOWIE,J , held that this
had not been shown and I agree with
him. The only evidence of the distance
between the car and plaintiff at that stage was that
of 26
26. of Nabo who estimated it to be 4 metres. According to Duda
plaintiff was 3 metres from his car when he noticed him on the side
of of the
road. Bearing in mind that allowance must be made for time to react, it is quite
clear that it cannot be held that Duda
had sufficient time, in the circumstances
in which he was placed, to act in such a way that a collision could have been
avoided.
It can therefore not be found that any negligence of which Dubamay have
been guilty contributed to the collision.
The appeal is accordingly dismissed with costs.
F S SMUTS, A J A. KOTZé , J A. ) Concur. GROSSKOPF,A J A. )
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