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Holster v Road Accident Fund (1864/04) [2009] ZAECGHC 31 (25 May 2009)

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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT


PARTIES: ZACHARY CHARLES HOLSTER v ROAD ACCIDENT FUND



  1. Case Number: 1863/04

  2. High Court: Eastern Cape – Grahamstown

  3. Date Heard: 26 September 2008

Date Delivered: 25 May 2009


JUDGE(S): REVELAS J


LEGAL REPRESENTATIVES –


Appearances:

  1. for the Applicant(s): Adv Van Der Merwe

  2. for the Respondent(s): Mr M Wolmarans


Instructing attorneys:

  • Applicant(s): Dold & Stone

  • Respondent(s): NN Dullabh




CASE INFORMATION – Civil Matter

  1. Nature of proceedings: Damages

  2. Topic :

  3. Key Words:






















Not Reportable



IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE – GRAHAMSTOWN



Case No: 1863/04

Date Heard: 22/09/08

Date Delivered: 25/05/09



In the matter between


ZACHARY CHARLES HOLSTER PLAINTIFF


and


THE ROAD ACCIDENT FUND DEFENDANT




J U D G M E N T



REVELAS J


[1] The plaintiff (Holster) instituted action against the defendant for damages suffered as a result of a motor vehicle accident during which he sustained several injuries. The accident occurred late at night on 21 February 2000, at about 22h00. The Mazda Capella which was driven by Holster collided with a truck and trailer, insured by the defendant, driven by Mr Dewald Steyn (Steyn) on the road between Port Elizabeth and Cradock, close near Michausdal, which is a suburb on the outskirts of Cradock.


[2] One of the passengers in the plaintiff’s vehicle died and criminal charges were brought against the plaintiff. The criminal trial in the magistrate’s court in Cradock was held in August 2004, more than four years after the accident. The summons in this action was issued on 3 December 2004. At the commencement of the trial before me the issues relating to the merits and quantum of the plaintiff’s claim were separated and the trial proceeded on the issue whether Steyn was causally negligent in relation to the collision (and therefore, whether the defendant was liable for the damages suffered by the plaintiff as a result of his injuries arising from the collision), and if so, whether the plaintiff was contributory negligent in relation to the collision and if so the degree thereof.


[3] The two respective versions as to how the collision occurred are mutually exclusive and destructive of each other. Each driver maintains that the collision occurred in his correct lane. What complicates matters further is the police plan that was not drawn to scale. It does not indicate a reliable point or area of impact. The police, Inspector Padda (Padda), who took photographs of the scene of the accident and who compiled the plan and index I have referred to, only visited the scene the following day when the vehicles involved in the collision and all rubble caused by it, had been removed. Inspector Padda compiled his plan with the assistance of Sergeant Adams, who attended the scene of the collision the night before. Shortly after the accident which it should be remembered occurred some eight ears ago, Sergeant Adams (Adams) made a statement in which he stated the following:

Die punt van botsing kon ook nie vasgestel word nie aangesien niemand my ‘n beskrywing van die werklike gebeure kon gee nie.

Insofar as Steyn was concerned, he noted:

Ek het persoonlik met die bestuurder van voertuig “A” gepraat en opgemerk dat hy sober is.

He further stated that he was unable to speak to Holster:

Aangesien hy reeds behandeling ontvang het en na die hospitaal vervoer is.

[4] Each party relied on the evidence of its own expert witness resulting in two mutually opposing versions as to the possible post- collision reconstruction of the collision being before me. Their reports were compiled years after the accident without them having had the benefit either of a proper police plan or having seen the vehicles and the damage caused to them in the collision.


[5] Despite my directive that the two expert witnesses meet with the purpose to find and list aspects of agreement, nothing came of it. Virtually all aspects accordingly remained in dispute which had the regrettable result of a protracted, and perhaps unnecessary, trial. A convenient starting point is to refer to the relevant common cause facts as they can be gleaned from the typed transcript of the criminal trial, the evidence presented in this trial and the expert notices. These are the following:

  1. The blue Mazda Capella (the Mazda) which was driven by Holster, was some thirty years old. The passenger who sat behind him died in the collision and two other persons were injured.

  2. Steyn was the driver a four ton Isuzu truck (the truck), towing a trailer loaded with an engine.

  3. Holster was travelling in a southern direction, towards Port Elizabeth and the truck driven by Steyn was travelling in a northern direction towards Cradock.

  4. Steyn had earlier been to Port Elizabeth to make deliveries and collections for his employer. His wife Monique Steyn, and a colleague, Mr Coetzee, accompanied him. The last delivery was made at 20h00 in Port Elizabeth, whereafter they left for Cradock. On their way they stopped in Michausdal. They had been on the road for twelve to thirteen hours.

  5. As a result from the collision the right side of the truck’s load body was damaged; it capsized and eventually landed on its left side on the road surface.

  6. The right side of the Mazda was damaged. Its roof was ripped off and landed in the veld. The truck’s right back wheel drove over the Mazda’s roof and body on the right side.


[6] Holsters’ version was that he never moved from the single lane in which he was travelling. The truck approached him from the opposite direction. The load part of the body of the truck, which is wider that the cabin part encroached onto his lane, and the right side of the truck, hit the right side of the Mazda, drove over it and in the process ripped off its roof. As a result the truck fell over onto its left side on the western side of the load (north of where the collision occurred). The Mazda came to a halt in its correct lane on the tarred surface, on its eastern side, (to the south of where the accident occurred).


[7] Steyn testified that he was driving in his correct lane when the Mazda approached from the opposite direction and suddenly moved into his lane. He then swerved his truck to the left (western) side of the road, onto the gravel and the collision occurred. He had the climb through the window of the truck to get out. On his version the body of the truck was struck first, and then the trailer.


The Plaintiff’s Expert Witness


[8] The plaintiff’s expert witness consulted with the various occupants of the vehicles involved in the accident as well as the policemen who testified at the criminal trial. He studied the police plan and observed that there was no indication how the point of impact (point “C”) was arrived at. He also found it necessary to refer to the transcript of Padda’s evidence in the criminal trial proceedings, more in particular; (i) that there was nothing on the road surface which suggested a point of impact; (ii) that the tyre marks on the road surface could not be connected to the collision ; but (iii) that there were scrape marks and oil spillage (“D” on the plan), which is where the truck had tipped over.


[9] Concerning the damage to the two vehicles the plaintiff’s expert witness noted in his report that he was told by Adams that the truck and its trailer were “redelik beskadig” and that the plaintiff’s representative had put to a witness in the criminal trial that the trailers axle was broken. Adams he said did not say anything to him anything concerning the damage to the Mazda. The damage to the latter he observed from five available photographs. From those he noted (i) that the Mazda’s roof was “soos ‘n konsertina opgefrommel”; (ii) that its left side was not seriously damaged; (iii) that the impact was on the right front wheel resulting in its front bending to the right and to lie flat on the ground; (iv) that the right front door lay loose and upside-down on the right front seat; and (v) that the engine cover of the Mazda was damaged on its right front and forced backwards.


[10] The plaintiff’s expert witness reconstructed the accident as follows: The detached roof of the Mazda is consistent with the right front corner of the truck’s load body connecting with the Mazda’s frontal windscreen, followed by the Mazda’s right front connecting with the truck’s right rear wheel (or wheels if it were double wheels), whereafter the Mazda would probably have rotated clockwise and sustained further damage to its front. The Mazda came to a halt facing south (and on the eastern part of the road as stated by him in his report) and that implies that it rotated at least three hundred and sixty degrees. As the truck fell onto its side its right rear wheel (or wheels) in all probability ran over the front of the Mazda.


[11] The impact of the right rear wheel of the truck would have caused it to swerve to the right which in turn would coincide with the observation of Adams that the truck’s front faced east when he arrived at the scene of the accident. The mass of the Mazda is outweighed by far by the mass of the truck. If one accepted that they were both travelling at more or less the same speed, then the truck would have gained more momentum along the way than the Mazda, considering that it was thirty years old. The truck therefore would have moved a greater distance from the point of impact than the Mazda would have, bearing in mind further, that the truck’s wheels probably went over the Mazda’s right front. That would roughly coincide with the measurements on the police plan, where it was indicated that the Mazda moved away for about 7 metres from the point of impact and the truck 23 metres after the collision.


[12] The resting position of the Mazda’s roof (point “E”) on the police plan shows that the roof moved along with the truck after impact and was projected in a westerly direction. Since the Mazda came to a halt next to the road, on the eastern side and the truck lay in the northern lane of travel after it had fallen over to the left, it was far more probable that the point of impact was in the southern travel lane. Apart from the short distance to the final stationery position of the Mazda, the angle at which the Mazda moved away from the point of impact, was out of proportion large if the point of impact was to the west of the centre line on the road surface.


[13] If the truck left the road on the western side to avoid the accident, and the collision occurred whilst this was in progress, then the truck should have fallen next to the road and not on the tarred surface as it in fact did. The movement to the left also meant that the truck was unable to move back onto the tar. If the truck’s left wheels left the tarred surface of the road, it had to have occurred prior to the collision. If the tyre marks shown on the police plan on the northern lane of travel, could indeed be associated with the accident, than in all probability they were made by the truck and trailer when they fell over. The tyre mark on photo’s 4 and 7 were probably caused by the truck’s left front wheel as the truck swerved to the right to end up facing east. The oil patch found where the truck’s engine lay (“D”) is situated slightly to the north from it (the tyre mark). The plaintiff’s expert at all times was alive to the difficulties in reconstructing the collision.


[14] He continued that not one of the three surviving passengers in the Mazda remembered how the accident occurred. The version of the driver of the Mazda that he was in his correct lane and that the right front corner of the load body hit the right side of the Mazda, is not contradicted by the available physical evidence. The plaintiff’s expert witness also stated that he was unable to determine precisely how far the point of impact was from the barrier line.


[15] Finally, the plaintiff’s expert concluded that his reconstruction of the accident demonstrated that the right front of the Mazda was struck by the right front corner of the truck’s load body whereafter the right rear wheel most probably went over the Mazda which caused it to topple over. This much is corroborated by the witnesses called by the State in the criminal trial, so that it became common cause that the truck did go over the Mazda with at least one wheel.

[16] The most significant, and also main conclusion of the plaintiff’s expert witness was that the point of impact was most probably on the eastern side of the barrier line, therefore in the lane of travel of the Mazda. The plaintiff’s expert witness was criticized for not visiting the scene of the accident. However, little could he gained from such an exercise since it would have, as in the case of the defendant’s expert witness who did visit the scene, happen six years after the event when all marks and debris were gone.


The Defendant’s Expert Witness


[17] The defendant’s expert witness based his opinion of how the collision occurred on the transcript of the criminal trial proceedings, Padda’s police plan and photographs, statements made by Holster, Steyn, Adams, Erasmus (a policeman), Steyn’s wife, his colleague Mr Coetzee, as well as the report by the plaintiff’s expert witness. He also contacted the previous owner of the truck who told him that the truck (which was no longer available for inspection and of which there are no photographs available) was a 250 courier truck with a standard load body. The dimensions of the truck he obtained from Kenrich Motors.


[18] The defendant’s expert visited the scene of the accident on 1 September 2006. He noted that the area where the accident occurred was 3 kilometres south from Cradock on the road to Port Elizabeth and that the road at that point was straight and level. This is not in dispute. He was of the opinion that the police plan left much to be desired. He pointed out that points “C” (area of impact) “D” and “E” (where the truck rested) do not form a triangle and that “A” (lamppost) was the only physical object referred to (where the roof fell). The distance between “C” (the area of impact) and the centre line was 1.4 metres and there was no indication as to the area of impact. An arched skid mark “P” and “D” (the position of the truck) he said, did not accord with the photographs.


[19] As far as the damage to both vehicles are concerned, the defendant’s expert noted that he was told that the right front of the load body was damaged, that the rear axle was broken and that the differential had failed. The right frame of the old Mazda had damage extending two thirds of the way across the front and down below the bumper. The right front suspension was broken and the damage extended all the way along the right side. He also noted that the roof was ripped off.


[20] According to the defendant’s expert, the mark “P” (arched skid mark) could most probably not have been made by the truck as its northern end crosses the barrier line at a sharp angle and the truck ended up west of the centre line without reaching the barrier line. “P” he said, resembles a yaw mark made by the front tyre of a vehicle, in swerving sharply. If “P” was indeed associated with the accident which he said is quite likely, then it must have been made by the Mazda, as it went across the centre line and then tried to return to its correct side. When the truck toppled onto its left, the weight would have been on the left and they would be the ones to leave any marks that were made. The truck ended up further north than the mark “P” and did not reach the barrier line, so the left tyres could not have left mark “P”.


[21] He further noted that at the time, Steyn had pointed out the marks in the gravel made by the truck, to a policeman. These marks he noted were consistent with the truck having swerved to the left just prior to the collision. He was also of the opinion that had the truck been travelling straight, as Holster would have it, it could not have been deflected so sharply to the left by the much lighter in weight car. The impact on the right corner of the load body and the subsequent impacts on the rear wheels of the truck and trailer would have resulted in it rotating clockwise and the steering forces would have taken it to the right, onto its incorrect side. Tyre marks on the gravel (marked “R” and “S” by the expert) confirmed that Steyn swerved to the left before the impact. The truck would have continued left off the road were it not for the clockwise rotation and possible corrective steering efforts by Steyn. The clockwise rotation caused the truck to tip over on its side.


[22] Accepting that a standard truck load body does not project more than 20 centimetres outside the cabin, then on Holster’s description of the accident, the expert opined that the two vehicles must have travelled parallel and very close to each other for the Mazda to miss the cabin and strike the load body.


[23] I am inclined to agree with this proposition and it seems to me that it was probable and that if Holster was correct that the truck’s lights blinded him that may have well been so because he was close to the middle line. The expert reasoned that an impact to the right front of the Mazda would make it rotate clockwise and if the two vehicles were parallel this rotation would turn its right away from the truck and away from further damage.


[24] The damage to the Mazda which extended along its right side is consistent with it being angled into the truck and the damage to its front extends well below a trucks load body. The force of the impact caused it to return to its correct side. He further reasoned that the portion of its roof having been ripped off and landing in the veld, which was found on the west of the road, indicate that the truck must have had a component of velocity in that direction prior to the impact. On Holster’s version, he said the roof would not have fallen to the west side of the road.


[25] The defendant’s expert witness was finally of the opinion that the collision occurred on the west side of the road. In that direction this would be the side in which the truck was travelling, which supports Steyn and his passengers’ version that the Mazda swerved into the truck’s correct lane. (Their Statements)


The Evidence of the Eye Witnesses


[26] Holster was called to testify as well as Adams and Padda on his behalf. The other surviving passengers, who travelled with him, were unable to be of assistance due to the injuries they had sustained. The expert whose evidence I have already dealt with was also called in support of his case. For the defendant only Steyn and its expert witness testified. Steyn’s wife and his colleague who, as I have mentioned, both testified in the criminal trial were not called to testify.


[27] Holster testified that the road on which he travelled was poorly lit. He travelled on the left single lane which was 3.3 metres wide up a relatively steep hill in the direction of Port Elizabeth. On top of the hill where the road was straight and flat, he observed the approaching headlights of a vehicle (which it is now common cause was the truck). As it came nearer, quite closed to him, the headlights moved into his lane of travel. He swerved to the left in an attempt to avoid the collision but it was already too late. He did not see where the two vehicles colliding with each other, but after his treatment in hospital he determined that the vehicle had been struck by the truck’s protruding load body which had ripped off the Mazda’s roof. He denied that he had attempted to turn to the right prior to the collision.


[28] Sergeant Adams, the first policeman attending the scene of the collision testified that the ambulances were already there when he arrived. The truck he said was lying across the road surface on the lane of traffic travelling north and its front protruded over the barrier line. He confirmed that the axle of the trailer had broken off and was lying away from it. He confirmed that the load body was wider that the cabin, protruding 30 centimetre on each side. The truck apparently leaked fuel from its engine (in front). He further testified that the arched or semi-circular tyre mark on the road was aligned with the position of the truck and caused by it in the process of tipping over.


[29] Adams said that Holster was in no position to talk to him. There was no debris that could assist him in determining the point of impact was and no one could tell him where it was. Steyn (who had climbed out of the toppled vehicle through the window), likewise could not tell him where the point of impact was. This he also testified at the criminal trial. Steyn said in his testimony that he pointed out certain marks on the tar surface. During the criminal trial, Padda testified that plough marks and skid marks were pointed out to him. The trailer part of the truck lay on the gravel verge of the road. On the gravel there were the circular marks. The plaintiff argued that these two semi circular shape marks indicated that the trailer had overturned on the gravel portion of the road. The engine of the truck which is under the seat of the driver below the cabin lay where the oil marks were and marked “D” on the police plan.


[30] Even though he positioned a cone as mark “C” at the place on the road where he assumed the point of impact had to be, he said he did so only because there were tyre marks at that point. He however did not observe debris there. Neither party relied on point “C” on the police plan as being the point of impact.


[31] Mr Coetzee, in his statement said that the Mazda swerved high in front of the truck “asof hy by ‘n kruising wou indraai”. Steyn associated himself with this version during cross-examination. He even demonstrated with a fast physical motion a quick swerve or turn to the right. In the criminal trial he contradicted Coetzee on this aspect.


[32] Dewald Steyn testified that on the night in question, as he was travelling, he suddenly saw the Mazda swerving into his lane of travel which caused him to swerve to the left and apply brakes wherafter the collision occurred on his right causing his truck to capsize to the left. He also testified that he had told the police how the accident had occurred. He was however unable to name the policeman he had the discussion with. In this regard it must be remembered that, at the time, in 2000, eight years before, Adams in his statement mentioned that no one could tell him how the accident had happened.


[33] In the determination of the issue before me, it is important to bear in mind that the criminal trial came to an end with a successful application for a discharge after the State’s case in terms of section 174 of the Criminal Procedure Act, 51 of 1977. The State conceded that it had made out no case to answer. In the trial Steyn’s wife and his colleague Mr Coetzee, gave different versions of how the accident had occurred. On Coetzee’s version, the Mazda swerved infront of them suddenly as if to turn right (as in his statement at the time) which would have resulted in the damage occurring on the left of the Mazda, but it did not. It must moreover be remembered that the truck belonged to Steyn’s employer and that the collision occurred after a long day’s travelling on the road.


[34] A finding for the defendant, presupposes an unequivocal acceptance of the reconstruction of the accident as described by the defendant’s expert witness. I am unable to do so as the evidence of Adams and the reconstruction contended for by the plaintiff’s expert, in my view, is inherently probable.


[35] In cross-examination the plaintiff’s expert accepted that the distance of travel of the Mazda of some 7 metres from point “C”, must have been greater than that. He further conceded in cross-examination that the truck would have been able to get back onto the tar after if had left the road. It was argued on behalf of the defendant that it was of no consequence where the cabin of the truck ended up after the collision (an aspect which weighed heavily with the plaintiff) and that is does not prove that the collision occurred on the side of the road in which the Mazda was travelling.


[36] The defendant submitted that Holster should have been able to see the oncoming truck at a distance of a hundred and fifty metres. Although this may be so, Holster said he was blinded by the lights of the truck. The defendant’s criticism of this evidence, as not being part of his statement at the time, in my view, is not a decisive factor. The probabilities strongly suggest that this is what could have happened.


[37] The evidence of Adams is of vital importance in this matter. According to him the trailer overturned on the gravel, and the position of the truck’s engine was at the point “D” (marked with a cone) because of its oil leakage there. As I have alluded to, neither party relied on point “C” on the police plan as the point of impact. Adams said he merely made an assumption in that regard because of the two parallel tyre marks he observed. These were also visible on the road surface on a photograph. There was no accident related debris near “C”, but further down the road. Adams was of the opinion that the damage to the two vehicles was consistent with a collision where the protruding load body of the truck struck the right front of the Mazda and ripped its roof off, and where either the truck or the trailer ran over the Mazda’s right front wheel and pressed it down.


[38] He was of the opinion that it was also likely that the trailer, the axle of which was found to have been broken off, had run over the Mazda and that motion together with possible steering to the right caused the truck to overturn, in the process making the yawl tyre mark on the road which was marked as “P”. If Steyn’s version is to be believed, Holster, being aware of the oncoming truck for a distance of hundred and fifty metres, had for some inexplicable reason, decided to suddenly execute a sharp right turn into the path of oncoming traffic and into the veld where there was no road. I am unable to find as much as a matter of probability.


[39] It is in my view unlikely that the Mazda could straighten in time to cause the damage as it did occur, if its swerve was within a hundred metre range from the truck. It is moreover probable that Steyn, after so many hours on the road, drifted across the barrier line, resulting in the corner of the truck’s front load body colliding with the Mazda’s right side.


[40] Counsel for plaintiff submitted that two important sets of fact supported the plaintiff’s expert’s conclusions (that the collision probably occurred in the Mazda’s correct lane of travel). Firstly, the respective positions of the vehicles after the collision and the yawl mark (“P”) made by the tyre of a vehicle overturning, and secondly, the stationery position of the truck after the collision. These continued strongly suggest that it was unlikely for the collision to have occurred in the lane of travel of the truck at a stage when the truck’s left wheels had already left the tar surface of the road, as the truck’s momentum caused it to continue to slide.


[41] The defendant’s expert stated that the collision occurred between the yawl mark (“P”) and the two tyre marks (“R” and “S”) on his plan, which is on the road surface. On his version the truck had to return to the tar road to collide with the Mazda. But then one has to have regard to the Mazda’s mangled roof, which in all probability was flung into the veld when the truck capsized, a probability which was accepted by all the witnesses. Any reconstruction which required the Mazda to come to a halt in its correct lane, other than the one that the accident had occurred in its lane, would be unrealistic, if one is to have regard to its proposed acute angle from the point of impact to its post collision stationary position. The defendant’s expert summary, shows that the collision occurred on the Port Elizabeth side (south) of the marks “R” and “S” made on his reconstructed plan as “S” and “R”. He attributed the circular tyre mark “P” the Mazda.


[42] The defendant’s expert witness, obviously aware of Steyn’s evidence, said that the collision occurred in or to the north, at the “S” and “R” marks and, on the basis of “P’s” angle of entry in the lane of the travel of the truck being too acute, he concluded that “P” could not have been made by the Mazda, as he proposed initially. The defendant’s expert witness admittedly made a mistake about the truck wheels having left the surface of the road. “P” was therefore caused by the truck and supports the plaintiff’s expert construction. The defendant’s expert also did not accept the evidence of Adams as to the stationary position of the truck after the collision. He further discounted other direct evidence (“P” was also pointed out by Adams) which renders his opinions somewhat speculative.


[43] The defendant’s expert’s other explanation for the position in which the Mazda came to a halt and Steyn’s evidence of a sharply executed right turn by the Mazda, was that the Mazda then suddenly must have made a left turn to straighten itself out. That suggests a type of “S” manoeuvre or curve which must have taken several seconds. That would have taken too much time and a longer distance to cover to have caused the damage to the Mazda’s right side.


[44] Therefore I am left unpersuaded that the accident occurred in the truck’s lane of travel. Therefore Holster was not negligent as contended by the defendant. The defendant relied in the alternative on contributory negligence, on the basis of the collision having occurred close to the middle of the road. On the plaintiff’s evidence a finding that he was negligent cannot be justified. The large truck encroached onto the plaintiff’s path of travel. That proves negligence on Steyn’s part.


[45] The plaintiff has accordingly succeeded in discharging the onus of proving that the Steyn’s sole negligence cause the collision and that the defendant is accordingly is liable to compensate him for all his proven damages resulting from of the collision.


[46] In the result I make the following order:

1. It is declared that the collision referred to in the plaintiff’s particulars of claim was caused by the sole negligence of the insured driver and that the defendant is accordingly liable to compensate the plaintiff for his duly proven damages.

2. The defendant is to pay the plaintiff’s costs of suit, including the costs of the qualifying expenses of Professor TP Dreyer, and the preparation of plaintiff’s heads of argument.

3. The determination of the plaintiff’s quantum of damages is postponed sine die.



_____________________

E REVELAS

JUDGE OF THE HIGH COURT