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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no : 57

PARTIES: HERMANUS VAN DEN BERG

AND

THE ROAD ACCIDENT FUND

REFERENCE NUMBERS -

• Registrar: 892/03

• Magistrate:

• Supreme Court of Appeal/Constitutional Court:

DATE DELIVERED: 18/5/2006

JUDGE(S): C. PLASKET

LEGAL REPRESENTATIVES -

Appearances:

• for the State/Applicant(s)/Appellant(s): ADV. SCHOEMAN

• for the accused/respondent(s): MR WOLMARANS

Instructing attorneys:

• Applicant(s)/Appellant(s): WHEELDON, RUSHMERE & COLE

• Respondent(s): N.N.DULLABH & CO

CASE INFORMATION -

• Nature of proceedings : ACTION ON DAMAGES

• Topic:

• Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO:892/03

DATES HEARD:19-21/4/06

DATE DELIVERED:18/5/06

NOT REPORTABLE

HERMANUS VAN DEN BERG PLAINTIFF

and

THE ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

PLASKET J

[A] INTRODUCTION

[1] The motor accident that gave rise to this litigation occurred at approximately 12h00 on 20 March 1999 during the Buffalo Motorcycle Rally in Aliwal North. The plaintiff was travelling from a camp site outside Aliwal North, where he and other participants in the rally were camping, towards Aliwal North when his motorcycle was struck by a motorcycle ridden by Johan Kapp.

[2] The plaintiff alleges in his particulars of claim that this collision was caused solely by the negligence of Kapp. He also alleges that, as a result, he suffered certain injuries and that he was entitled to damages in the amount of R1 341 670.55. At the outset, I was requested to separate the question of liability from that of quantum, which I duly did in terms of rule 33(4) of the Uniform Rules.

[3] In its plea, the defendant denied that the accident was caused by the negligence of Kapp and pleaded that, in fact, the collision was caused solely by the negligence of the plaintiff. In the alternative, it was pleaded that if Kapp was found to be negligent in one or more of the respects pleaded by the plaintiff, that negligence was not causally related to the collision and, in the further alternative, if such negligence was indeed causally related to the collision, that the plaintiff was contributorily negligent in respect of the collision.

[4] The plaintiff testified in support of his claim. His evidence was bolstered by that of Adriaan Van Reenen, who was one of the first people on the scene of the accident and who also testified as an expert. The defendant relied on the evidence of Kapp.

[5] The approach to deciding the factual issues involved in matters such as this is set out in the well-known dictum of Eksteen AJP in National Employers General Insurance Co Limited v Jagers 1984 (4) SA 437 (E), 440D-G:

‘It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more then they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant’s version is false.’

[6] With these introductory remarks, I turn now to the evidence adduced by the parties.

[B] THE EVIDENCE

[7] The plaintiff testified that he, his girlfriend at the time, his daughter and a number of his friends travelled by train from Cape Town to Aliwal North. They off-loaded their motorcycles and went to the camp site near Aliwal North. At about 12h00, he and his girlfriend left the camp site to ride into Aliwal North. They rode slowly – he estimated that he travelled at about 40 kilometres per hour – because he was expecting his daughter to follow them and he wanted her to be able to catch up to them.

[8] They rode in the left-hand lane – the slow lane – of the road. It had two lanes going in each direction. (From the photographs that were handed in, it appears that a solid line ran along the middle of the road and the lanes on each side of the road were demarcated by broken lines.) The plaintiff then heard the loud sound of a motorcycle (which, he thought, must have had its baffles removed) and the screech of its tyres. He looked back and saw Kapp’s motorcycle, apparently out of control, about to collide with his motorcycle from behind. Kapp’s motorcycle was on its wheels but skidding towards his motorcycle. Kapp’s motorcycle struck the plaintiffs’ motorcycle and veered to the right where Kapp fell off and his motorcycle came to a stop.

[9] The plaintiff and his girlfriend fell to the left of their motorcycle. The plaintiff landed a metre to one and a half metres from the curb. His girlfriend fell behind him. They crawled to the curb. From there the plaintiff was able to see that Kapp had fallen on the right side of the fast lane. In other words, he had fallen near the middle of the road.

[10] The plaintiff stated that there was very little traffic on the road. Indeed, he said that the road had been blocked with drums on the far side of the entrance to the camping area. He did not see a motor vehicle in the vicinity of the accident (as alleged by Kapp). An ambulance was, however, parked nearby but off the road. It arrived and its paramedic crew provided assistance to him and his girlfriend at much the same time as a friend of his, Adriaan Van Reenen, also arrived on the scene. The ambulance took the plaintiff and his girlfriend to hospital.

[11] The plaintiff described the impact of Kapp’s motorcycle on his motorcycle as a side impact. He said that Kapp’s motorcycle had come from behind him and had struck his motorcycle in such a way that it caused damage from back to front. At the point of impact, Kapp’s motorcycle was on its wheels but the back wheel was locked, causing it to skid towards his motorcycle.

[12] It was put to the plaintiff that two photographs, taken by Kapp and his family on the day of the accident, showed Kapp’s brake marks on the road on the right hand side of the slow lane. The plaintiff agreed with this. He agreed, too, that the point of contact was where the brake marks ended, adding that his motorcycle had been to the left of this point.

[13] It was put to the plaintiff that Kapp would testify that he was travelling in the fast lane and that a car was travelling in the slow lane. As he passed the car, the plaintiff crossed, in front of the car, from the slow lane to the fast lane with the apparent intention of making a u-turn. The plaintiff brought his motorcycle to a stop with the front wheel on the solid line in the middle of the road. Kapp applied his brakes to avoid a collision. His motorcycle began to skid, he dropped it onto its right side and it skidded on its side into the plaintiff’s motorcycle.

[14] In response to this version the plaintiff stated that he saw no car in the vicinity at the time, he did not cross to the middle of the road to make a u-turn and did not stop with this motorcycle blocking part of the fast lane. Indeed, he stated that he had not ridden in the fast lane at all. He also denied that Kapp dropped his motorcycle onto its side, having earlier stated that when the collision occurred, Kapp’s motorcycle was on its wheels.

[15] When it was put to him that a grey scratch mark in the middle of the fast lane indicated the point of impact, he said that that was where Kapp and his motorcycle had fallen after the collision. He reaffirmed that the end of the brake marks on the right hand side of the slow lane was the point of impact. It was also put to him that traffic was travelling from Aliwal North in the direction of the camp site, and that he had stopped in the middle of the road to allow this traffic to pass. He denied this. (He had earlier stated that there was very little traffic on the road because a row of drums had closed off the road from just beyond the entrance to the camp site.)

[16] Adriaan Van Reenen arrived on the scene shortly after the accident. His evidence covered two broad aspects. First, he testified about what he saw when he arrived on the scene of the accident shortly after it had occurred. Secondly, he gave evidence, as an expert, on the damage caused to the two motorcycles and the manner in which the accident was likely to have happened based on this and other physical evidence of the accident. In my view he established his expertise as a mechanical engineer whose field of specialization in his business, known as Motorcycle Laboratories, is the repair of motorcycles, particularly those damaged in accidents. He also has twenty-five years of experience as a motorcycle rider.

[17] Van Reenen stated that when he arrived on the scene he saw the plaintiff and his girlfriend sitting on the pavement near the plaintiff’s motorcycle. The motorcycle lay on its left side near the pavement. Kapp’s motorcycle lay on its right side about five metres further up the road (i.e. in the direction of Aliwal North). It lay in the middle of the right hand lane – the fast lane.

[18] After the plaintiff and his girlfriend had been taken to hospital in the ambulance, Van Reenen inspected the plaintiff’s motorcycle. Most of the damage was on the right hand side and very little damage was apparent on the left hand side. The damage on the right hand side of the motorcycle ran along its entire length from the rear to the front. He arranged for the motorcycle to be taken back to Cape Town so that it could be repaired by his firm. When it arrived in Cape Town he rode the motorcycle and noticed specifically that the foot-pegs on the right hand side had been broken off.

[19] In Van Reenen’s opinion, the fact that the right hand foot-pegs had been broken off was indicative of Kapp’s motorcycle having struck the plaintiff’s motorcycle from behind. This is so because the foot-pegs are attached by means of brackets that allow them to fold backwards but not forwards. He stated that considerable force must have been applied to the foot-pegs to break them off because they are reasonably strong in their construction.

[20] He also stated that the swing-arm of the plaintiff’s motorcycle had been bent off-line to the left. As the swing-arm is of particularly sturdy construction, Van Reenen was of the opinion that direct impact of considerable force, from the right, would have been required to cause this damage. He stated that, in his opinion, Kapp’s version that his motorcycle had struck the plaintiff’s motorcycle from side-on and with its wheels as it skidded on its side was highly unlikely: the wheels and shock-absorbers would have absorbed a great deal of the impact and the plaintiff’s motorcycle would have fallen onto Kapp’s and would have been lying on its right hand side. More importantly, the swing-arm would not have been bent by this and nor would the foot-pegs have broken off.

[21] When examined about the damage to Kapp’s motorcycle as depicted in certain of the photographs, Van Reenen pointed out that the exhaust pipe on the left hand side of the motorcycle had been flattened. While this part is made of fairly thin metal, it is strengthened by the baffles inside it. The damage to the exhaust pipe led Van Reenen to the conclusion that the baffles must have been removed, thereby weakening the structure and rendering it more susceptible to damage. The damage to the left hand side exhaust pipe was a further indication of the collision having occurred in the manner described by the plaintiff and is inconsistent with Kapp’s version. Furthermore, Van Reenen stated that there was no physical sign, at the scene of the accident, of Kapp’s motorcycle having been put into a broadside. If this had been done, one would have expected scrape marks on the road caused by the contact of the metal of the motorcycle with the surface of the road. Apart from a scrape mark in the middle of the right hand lane, probably caused by the right hand crash bar when Kapp’s motorcycle fell over after the collision, the only other mark on the road was a skid mark on the right hand side of the left hand lane.

[22] Van Reenen was of the view that the length of the skid mark was indicative of Kapp having applied the back brake of the motorcycle. The motorcycle skidded, on this thesis, when the back tyre locked. If Kapp had used the front brake, and he had been travelling at about 60 kilometres per hour, he would have brought the motorcycle to a stop within about five metres. As the broken lines demarcating the left hand lane from the right hand lane are approximately four metres long and the gaps between them are approximately eight metres long, the skid mark that is clearly depicted in the photographs taken on that day is at least 20 metres long. This, said Van Reenen, was indicative of Kapp’s motorcycle travelling at high speed.

[23] Finally, Van Reenen commented on the damage to the left hand side of Kapp’s motorcycle, as depicted in one of the photographs. He pointed out that, in addition to the damaged exhaust pipe, the left passenger foot-peg was bent and the left hand side of the tail light was broken. This damage cannot be explained on Kapp’s version.

[24] Kapp testified that on 20 March 1999 at about 12h00 he left the camp site to ride to Aliwal North. He turned into the road and proceeded in the left hand lane at a speed of approximately 55 kilometres per hour. He moved out of the left hand lane into the right hand lane to pass a car. When he did so he saw a motorcycle across the right hand lane. Its front tyre was at the right hand side of the right hand lane (i.e. on the solid line in the middle of the road) and it was stationary. He assumed that the rider of this motorcycle – the plaintiff – wished to make a u-turn but was forced to stop in the middle of the road by traffic travelling from Aliwal North.

[25] Kapp applied both his front and back brakes and tried to swerve to the left. He was unable to do this effectively because of the car that he was in the process of overtaking. When he applied his brakes, the back tyre began to skid and he put the motorcycle into a broadside so that it skidded on its right side, wheels first, and collided with the plaintiff’s motorcycle.

[26] Kapp stated that the photographs handed in as Exhibit ‘C’ were taken by him and his parents on the day of the accident. Photograph 1 depicted the skid mark caused by the back tyre of his motorcycle. This is on the right side of the left lane veering to the broken line that separates the left lane from the right lane. The second photograph shows the end of the skid mark and, Kapp says, indicates the point at which he put the motorcycle into a broadside. This is in line with the broken lines that separate the left hand lane from the right hand lane. Photograph 3 depicts a light grey scrape mark in the right hand lane which Kapp stated was the point where, after he put his motorcycle into a broadside, it landed on the road.

[27] When Kapp was cross-examined he confirmed that when he first saw the plaintiff’s motorcycle he was in the middle of the right hand lane and the front wheel of the plaintiff’s motorcycle was on the solid line in the middle of the road. He swerved to the left, crossing to the left of the broken line separating the left hand lane from the right hand lane. The car that he was passing was now next to him. He stated that he first saw the plaintiff’s motorcycle when it was about 20 metres away from him.

[28] It was put to Kapp that on this version he would have avoided the accident by simply continuing on his line of travel slightly to the left of the broken line separating the left hand lane and the right hand lane. He conceded that the car to his left occupied about half of the left hand lane and the plaintiff’s motorcycle occupied about half of the right hand lane. This meant that the right hand side of the left hand lane, where he was travelling, was clear in front of him, as was the left hand half of the right hand lane. Despite these concessions, however, Kapp nonetheless insisted that the plaintiff’s motorcycle was in his line of travel. When it was put to him that, whereas his motorcycle came to a stop in the middle of the right hand lane, the plaintiff’s motorcycle lay in the left hand lane about a metre from the pavement, he was unable to dispute this. It was also put to Kapp that if he had put his motorcycle into a broadside at some stage the locked back tyre would have left a broader skid mark on the road than is evident from the photographs. He conceded that this was so and that the photographs do not show this to have occurred.

[29] Kapp stated that his motorcycle slid on its right hand side and that it never flipped over onto its left hand side. When he was asked how the damage to the left hand side had been caused, all he could say was that it must have been the result of the impact of the collision. He was, in truth, unable to explain how the damage to the left hand side had occurred.

[C] EVALUATION OF THE EVIDENCE

[30] I was favourably impressed by the plaintiff as a witness. He presented his evidence in a clear and logical manner. His version withstood cross-examination and accorded with the physical evidence of the accident depicted in the photographs and the damage to his motorcycle and that of Kapp. His evidence was supported in important material respects by the evidence of Van Reenen, who was also, in my view, an impressive witness. Importantly, Van Reenen confirmed that the plaintiff’s motorcycle was lying about a metre from the pavement in the left hand lane and that Kapp’s was lying in the middle of the right hand lane about five metres further towards Aliwal North.

[31] Van Reenen impressed me as a witness possessed of substantial knowledge and expertise on the mechanics of motorcycles. He was able to explain convincingly how the damage to the two motorcycles was likely to have occurred and how the physical signs of the accident on the road surface came about. In so doing he was able, in my view, to demonstrate that the probabilities favoured the plaintiff’s version of events and that Kapp’s version was improbable.

[32] Kapp did not impress me as a witness. He appeared to be most uncomfortable in the witness box when he was cross-examined. He was unable to explain a number of crucial aspects of his version. For instance, and fundamentally, he was unable to explain how the accident could have occurred at all because, on his version, he could have proceeded on his line of travel on the right hand side of the left hand lane, unhindered by the plaintiff’s motorcycle which blocked only the right hand half of the right hand lane, or by the car that occupied the left hand half of the left hand lane. Secondly, he was unable to explain how his motorcycle was damaged on the left side. Thirdly, he was unable to explain how the swing-arm of the plaintiff’s motorcycle could have been bent or the foot-pegs could have been broken off. Fourthly, he was unable to explain how his motorcycle came to a stop in the right hand lane, while the plaintiff’s motorcycle came to a stop close to the pavement in the left hand lane.

[33] I gained the strong impression that, at best for Kapp, his evidence was a reconstruction and an ex post facto attempt to justify the accident rather then a true and accurate account of what had in fact occurred: on any number of occasions when he was pressed for clarity or explanations, he prefaced his answers by stating that the events ‘must have’ occurred in a particular way.

[34] I am of the view that, in the light of my analysis of the evidence, the plaintiff’s version must be accepted and that Kapp’s version must be rejected: the probabilities favour the plaintiff’s version overwhelmingly and, correspondingly, Kapp’s version can only be described as highly improbable.

[35] On the plaintiff’s version, the conclusion is inescapable that Kapp was, indeed, negligent in that he failed to keep his motorcycle under proper and adequate control, he failed to apply his brakes timeously, he drove at an excessive speed in the circumstances and he failed to avoid the collision with the plaintiff when, by the exercise of reasonable care, he could and should have done so. The defendant has failed to establish any of the grounds of negligence that it alleged on the part of the plaintiff and so no case is made out for the contributory negligence of the plaintiff.

[D] THE RESULT

[36] For the reasons set out above, the following order is made.

(a) The defendant shall be liable for the damages that the plaintiff proves in due course arising from the motor accident that occurred on 20 March 1999.

(b) The defendant is directed to pay the plaintiff’s costs, including the costs of an inspection in loco attended by counsel and witnesses, and the qualifying costs, if any, of expert witnesses in respect of whom rule 36(9)(b) notices have been filed.

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C. PLASKET

JUDGE OF THE HIGH COURT

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