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Last Updated: 7 December 2004
REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
CASE NO: 322/03
Reportable
In the matter between
T DE MAAYER
APPELLANT
and
T A SEREBRO
FIRST RESPONDENT
ROAD ACCIDENT
FUND SECOND
RESPONDENT
__________________________________________________________________
T A SEREBRO
APPELLANT
ROAD ACCIDENT FUND
FIRST RESPONDENT
T DE MAAYER
SECOND
RESPONDENT __________________________________________________________________
CORAM: SCOTT, NUGENT, CLOETE JJA, COMRIE, PATEL
AJJA
HEARD: 10 September 2004
DELIVERED: 29 September 2004
Summary : Application for special leave to
appeal – once an application is refused – decision final. Action for
damages –
proof of negligence – two vehicles colliding – third
party turning across path of travel of insured driver –injured
plaintiff
passenger in third party’s vehicle- plaintiff sued Road Accident fund and
third party- Galante rule not applicable
– third party exclusively
negligent – Decision of Full Court confirmed.
JUDGMENT
PATEL AJA
1] At approximately three pm on 6 August 1998
and in the intersection of Katherine and Amalinda Streets, Sandown, Gauteng, a
collision
occurred between a Ford Sierra (‘the Sierra’) driven by Mr
A M Baudry (‘ the insured driver’) and a Ford
Tracer (‘the
Tracer’) driven by Dr Tim de Maayer (‘the third party’). The
Road Accident Fund (‘the
defendant’) was at all material times the
insurer of the Sierra in terms of the provisions of the Road Accident Fund Act
56
of 1996.
[2] At the time of the collision, Dr Terry Serebro
(‘the plaintiff’) together with Dr Gail Atherstone and Dr Lauren
Raine
were passengers in the Tracer. The insured driver was alone in the
Sierra. The plaintiff sustained serious injuries and sued the
defendant for
damages. The defendant joined the third party in the proceedings claiming a
contribution from the third party in respect
of any amount which the defendant
might be ordered to pay the plaintiff. Before the commencement of the trial the
plaintiff also
issued a third party notice against the third party claiming
damages from the third party should the insured driver be found not
to be
negligent and should it be found that the sole cause of the accident was the
negligence of the third party. By agreement between
the parties the matter
proceeded on the question of liability only.
[3] Labe J gave judgment in
favour of the plaintiff holding the insured driver’s negligence to be the
sole cause of the collision.
The defendant was ordered to pay such damages as
the plaintiff might prove. The trial court absolved the third party from the
instance.
The defendant, with leave, appealed against this decision. On 19 June
2002 the full court of the Johannesburg High Court (in what
I shall call the
‘first appeal’) upheld the appeal. Flemming DJP (in whose judgment
Van Oosten J and Ponnan J concurred)
absolved the defendant from the instance
and ordered the plaintiff to pay the defendant’s costs in the court of
first instance.
The plaintiff should have conditionally cross-appealed against
the absolution order made by Labe J in favour of the third party
in tandem with
the appeal lodged by the defendant so that a finding could have been made that
the third party was negligent if such
a finding was appropriate. Her failure to
do so timeously created for her a procedural hurdle to which I shall refer
hereinafter.
[4] On 20 August 2002 and subsequent to judgment being
given in the first appeal, the plaintiff sought and obtained further leave
from
Labe J against his finding of absolution in favour of the third party. Leave was
granted by Labe J to the plaintiff to appeal
either to the full court of the
Johannesburg High Court or to this court, depending on the outcome of the
plaintiff’s application
for special leave to appeal against the judgment
of Flemming DJP which in the meantime had been lodged with this court. This
court
refused the application for special leave on 26 August 2002. The second
appeal was thereafter heard by the full court of the Johannesburg
High Court.
On the 20 March 2003 Landman J (in whose judgment Van Oosten J and Ponnan J
concurred) found the third party to be exclusively
negligent and liable for the
plaintiff’s damages. The court also made ancillary orders with regard to
costs.
[5] Following the judgment of the full court in the second appeal,
the plaintiff once again applied to this court for special leave
to appeal
against the judgment of the full court in the first appeal while the third party
applied for special leave to appeal against
the judgment handed down in the
second appeal. On 18 June 2003 this court granted leave to both plaintiff and
the third party. In
light of the refusal of special leave by this court on 26
August 2002, the initial question which arises is whether the plaintiff
is
properly on appeal before this court.
[6] Section 20(4) of the Supreme
Court Act 59 of 1959 provides that no appeal shall lie to this court against a
judgment or order
of a full court of a provincial or local division in civil
proceedings without special leave of this court. In terms of ss 21(3)
(a) (b)
and (c) an application for special leave is considered by two judges designated
by the President of this court. In the event
of a difference of opinion the
application is considered by the President or any other judge designated by the
President. The judges
so designated may grant or refuse the application for
special leave or may order that the application be argued before them or
‘refer
the matter to the Appellate Division for consideration, whether
upon argument or otherwise’. Section 21(3) (d) of the Act
further
provides:
‘The decision of the majority of the judges considering the application, or the decision of the Appellate Division, as the case may be, to grant or refuse the application shall be final.’
It is quite
clear from the section just quoted that the refusal of leave to appeal by this
court is final (see Beinash and another v Ernst & Young and others
1999 (2) SA 116 (CC) para [29]; Mphahlele v First National Bank of South
Africa Ltd 1999 (2) SA 667 (CC) para [14]). Once an application is
considered in terms of s 21(3) (d) and refused, this court is functus
officio.
[7] It was argued on behalf of the plaintiff that the
first application for special leave was brought prematurely in that the second
appeal had not been heard; and accordingly, that when the first application was
refused, this court did not dismiss the application
on its merits. But the
application was not premature. The plaintiff was perfectly entitled to bring
this application which she did
and this court was obliged to consider it. Both
the defendant and the third party filed comprehensive opposing affidavits. The
plaintiff
filed a replying affidavit. Not a scintilla of evidence is to be
found in the affidavits which would have suggested to the court
that it was not
to consider the application on its merits. Nor does the order reflect that it
did not. This submission by the plaintiff,
which was supported by the third
party, is without merit. The subsequent granting of leave to appeal to the
plaintiff by this court
was per incuriam. The plaintiff’s appeal
therefore falls to be struck from the roll. In any event it would not have
succeeded on the facts.
[8] The appeal which remains to be considered
is that of the third party against the finding of the full court in the second
appeal.
The crucial issue on appeal is whether the third party was causally
negligent. This necessarily involves a consideration of the conduct
of the
insured driver.
[9] With that prelude I turn to the facts. The occupants
of the Tracer, all medical students, had spent the better part of the day
picnicking at the Hennops River. At about three pm they decided to go home.
The third party drove the Tracer southwards along Katherine
Street. Katherine
Street is a dual carriageway. This dual carriageway is separated by a traffic
island. Close to the intersection
with Amalinda Street the island is recessed to
create a third lane to be used by motorists who wish to turn right (to the west)
into
Amalinda Street. Similarly the traffic island on the opposite side of
Katherine Street is also recessed to create a third lane for
traffic turning
right (to the east). There are no traffic lights to control traffic turning
either to the east or west. Motorists
turning west into Amalinda Street have to
exercise caution and yield to traffic travelling from south to north on the dual
carriageway.
[10] The third party wished to turn right (to the west) into
Amalinda Street and was accordingly in the third lane. The insured driver
was
at the time travelling from south to north in Katherine Street and had the right
of way. As the third party negotiated the turn
a collision occurred between the
Sierra and the Tracer. There was no reliable evidence as to the exact point of
impact. It is common
cause that the weather, visibility and the road conditions
were good.
[11] The only occupant of the Tracer who had any recollection
of the collision was Raine who at the time of the collision was seated
behind
the third party. Seated next to the third party was his girlfriend, Atherstone,
and behind her was the plaintiff. The learned
trial judge based his finding of
negligence on the part of the insured driver on the evidence of Raine, traffic
officer Van Rensburg
and Professor Hillman, an engineer. Van Rensburg had
visited the scene of the accident and made certain observations. Hillman relied
on these observations in drawing an inference about the probable speed at which
the Sierra was travelling just before the collision.
The Plaintiff herself did
not testify. The defendant closed its case without calling the insured driver.
The third party testified
but had no recollection of the accident.
[12]
Landman J, in the second appeal, in coming to the conclusion that the third
party was negligent, agreed with the factual findings
and conclusions reached by
Flemming DJP in the first appeal. I am in agreement with Flemming DJP’s
conclusion and I can find
no misdirection in his analysis and interpretation of
the evidence of Raine, Van Rensburg or the expert Hillman who were the
plaintiff’s
witnesses on the issue of negligence. I shall however advert
to salient aspects of their evidence. Before doing so it would be
convenient to
restate the well established principles applicable in a situation such as that
which arose in this matter.
[13] Turning across the line of oncoming traffic
is an inherently dangerous manoeuvre and a driver intending such a manoeuvre
must
do so by properly satisfying himself that not only is it safe but opportune
to do so (see AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45
(A) 52E-G). This rule, however, does not create a general presumption of
negligence since each case has to be considered
on its own special facts and
circumstances. It does not confer on a through-driver an absolute right of way
(see Milton v Vacuum Oil Co 1932 AD 197 at 205). A through-driver has to
be vigilant and in appropriate circumstances reduce his speed to accommodate a
driver
who turns across his path of travel.
[14] Raine’s evidence
can be summarised as follows. She testified that she had paid particular
attention because she wanted
to learn the route to Atherstone’s home. The
third party, after entering the third lane in order to negotiate a turn to the
right into Amalinda Street, stopped the Tracer. Two trucks were in the third
lane waiting to turn to their right (to the east). The
third party had edged
forward and had progressed into the westerly lane beyond these two trucks.
Raine looked initially thorough
the front passenger window and thereafter
through the left rear passenger window but saw no oncoming traffic. The
collision happened
‘as he started executing the turn’. Her evidence
did not shed any light as to the exact point of the collision nor the
speed of
the third party's vehicle at the time. She could not comment on the exact
position of the trucks or whether the first truck
had already commenced
negotiating a turn to its right. Nor could she remember whether the trucks
would have obstructed the view
of the third party or the insured driver. She
only saw the Sierra just before it collided with them. It was then
approximately half
a metre away. She did not know from where it had come.
[15] Van Rensburg’s evidence does not assist the plaintiff or the
third party. He concluded that the collision occurred in
the eastern lane of the
north bound carriageway. His conclusion was based on the spread of glass
fragments. He looked for but did
not observe any tyre marks on the road. This
latter evidence is fatal for Hillman’s opinion that the Seirra was
travelling
at a speed of 100kmh in a 60kmh area and was accordingly, because of
a bend in the road, not visible to Raine. Hillman’s calculation
of the
speed of the Sierra was based essentially upon the premise that the Tracer was
pushed and came to rest where Van Rensburg
found it by the force of the impact
without the Tracer’s own speed or movement having contributed to the
positioning of the
Tracer post collision. As Hillman was constrained to concede
in cross-examination, the absence of tyre marks indicating that the
Tracer was
pushed is wholly inconsistent with the premise on which his calculation of speed
was based. At the end of the day there
is no acceptable evidence to suggest that
the Sierra was travelling at an excessive speed before the collision.
[16] A hypothesis advanced by an expert as to how and why a collision
occurred is of little value if it is based on unproved assumptions.
If the
hypothesis is contrary to the proved facts, it is of no value at all. As Ogilvie
Thompson A J said in Van der Westhuizen and another v S.A. Liberal Insurance
Co Ltd 1949 (3) SA 160 (C) 168:
‘In my opinion, however, the strictly mathematical approach, though undoubtedly very useful as a check, can but rarely be applied as an absolute test in collision cases, since any mathematical calculation so vitally depends on exact positions and speeds; whereas in truth these latter are merely estimates almost invariably made under circumstances wholly unfavourable to accuracy.’
Or as Van den Heever J A said in Santam Beperk & African Guarantee And Indemnity Co v Moolman 1952 P.H. (2) O16 (AD):
‘Ons is vergas op ’n rekenkundige vertoog omtrent die relatiewe bewegings en stand van die twee voertuie op verskillende tydstippe. Myns insiens was dit tydverkwisting. Dit het groteliks gesteun op ’n beweerde merk wat S se motor in die pad gemaak het. Die oorsprong van die merk is egter nie bewys nie. Dan steun die berekeninge verder op gissings omtrent snelheid uitgedruk in
soveel voet per sekonde. Om die rekenkundige metode op rekbare gegewens toe te pas is slegs om die ongewisse met die onbekende te vermenigvuldig.’
[17] On the evidence before the trial court the insured driver,
if his vision was not totally obstructed by the trucks, would have
observed the
Tracer edging forward to enable the third party to see if there was any oncoming
traffic. The insured driver would have
had no reason to believe that the Tracer
would not wait but would suddenly proceed into the intersection in the path of
the insured
vehicle. It cannot be said that the insured driver ought to have
foreseen this dangerous manoeuvre and ought to have taken evasive
action before
the insured driver drove into his path.
[18] In the absence of direct
evidence as to how the collision occurred and because the hypothesis advanced on
the plaintiff’s
behalf fell to be rejected, both appeal courts were
obliged to draw inferences from the proven facts. In both the appeals the court
properly balanced the probabilities and selected the conclusion which seemed to
be the more ‘natural, or plausible conclusion
from amongst several
conceivable ones, even though that conclusion be not the only one’
(Govan v Skidmore 1952 (1) SA 732 (N) at 734C-D, as explained
in Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA
147 (A) at 159B and thereafter repeatedly approved by this court). The most
plausible inference on the facts as a whole
which was drawn by both courts is
that the third party turned across the path of the insured driver at a time when
it was inopportune
and dangerous to do so. His conduct thus constituted
negligence and was the sole cause of the collision.
[19] In the absence
of any evidence from the insured driver who, though available, was not called,
this court was urged to apply the
rule laid down in Galante v Dickinson
1950 (2) SA 460 (A) at 465, as follows:
‘But it seems fair at all events to say that in an accident case where the defendant was himself the driver of the vehicle the driving of which the plaintiff alleges was negligent and caused the accident, the court is entitled, in the absence of evidence from the defendant, to select out of two alternative explanations of the cause of the accident which are more or less equally open on the evidence, that one which favours the plaintiff as opposed to the defendant.’
(see also Marine & Trade Insurance Co
Ltd v Van der Schyff 1972 (1) SA 26 (AD) 37A-41A and cases there referred
to; Jordaan v Bloemfontein Transitional Local authority and Another 2004
(3) SA 371 (SCA) para [20-21]). As is apparent from the passage quoted, what is
described as the ‘Galante principle”
applies only where the two
alternative explanations as to the cause of the accident are more or less
equally open on the evidence before the court. Where, on the evidence,
there is an obvious explanation as to the cause of the accident which favours
the defendant,
and an unsubstantiated theory advanced by the plaintiff with no
evidence to support it, it cannot be said that there are ‘
two alternative
explanations of the cause of the accident which are more or less equally open on
the evidence’ and the Galante
principle does not apply. That is the
situation in the present matter. On the evidence, the obvious explanation for
the collision
is that the third party did not keep a proper lookout and
attempted to cross Katherine Street at a time when it was inopportune to
do so
because of the oncoming Sierra. Hillman’s explanation as to how the
collision occurred was discredited and there was
no other evidence to suggest
that the speed of the Sierra could have been a cause of the accident.
[20] The following order is made:
1. The plaintiff’s appeal is
struck from the roll with costs such costs are to include the costs of the
preparation by the
defendant of the three bundles of documents relating to the
applications to this court for leave to appeal.
2. The
third party’s appeal is dismissed with
costs.
_____________
CN PATEL
Acting Judge of Appeal
Concur:
Scott
JA
Nugent JA
Cloete JA
Comrie AJA
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