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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 213/2007

In the matter between

RAYMOR DEYSEL Plaintiff

And

THE ROAD ACCIDENT FUND Defendant

JUDGMENT

PICKERING J:

At approximately 2pm on Saturday, 4 March 2006, and at the intersection of Botha Street and Willem Olckers Street, Despatch, a collision occurred between a Suzuki 1100cc motorcycle bearing registration letters and number BLC007EC, which at the time was being ridden by plaintiff, and a Mazda Sting motor vehicle bearing registration letters and number CNC950EC, which was being driven at the time by one Jaco Geldenhuys. Alleging that he sustained severe bodily injuries in consequence of the collision plaintiff instituted action against defendant for recovery of damages in the sum of R3 362 283,93. At the commencement of the trial an order was made by agreement separating the issues of liability and quantum and the trial proceeded on the issue of liability only.

Botha Street runs approximately from east to west. The relevant stretch thereof is tarred, flat and is divided by grassed traffic islands. Both the northern and southern halves of the street are divided into two lanes which are demarcated by means of a broken white line. It is common cause that the width of each of the northern and southern carriageways is 6 metres, each lane being 3 metres in width. Willem Olckers Street runs from approximately north to south and intersects Botha Street at right angles thereto. Immediately opposite the southern mouth of Willem Olckers Street is a gap between the centre islands of Botha Street enabling traffic to proceed from north to south across the southern half of Botha Street into Willem Olckers Street. Entry into the southern half of Botha Street from this gap is controlled by means of a yield sign. The relevant scene is depicted on certain photographs (Exhibit B) which were handed into Court by agreement.

Plaintiff, a 22 year old man, testified that he was an experienced motorcyclist having first driven a 50cc at the age of 16 years and having thereafter progressed to more powerful motorcycles. Although he had a motor vehicle driver’s licence he was not licensed to drive a motorcycle at the time of the collision. He stated in this regard that he had, two years prior to the collision, been in possession of a learner’s driver’s licence which had expired after a year because of his failure to take the requisite driver’s licence test. During the subsequent two years he had not owned his own motorcycle but had ridden motorcycles belonging to his friends. Approximately a month prior to the collision he had purchased the Suzuki 1100cc motor cycle which he was riding at the time thereof. He stated that this was an extremely powerful motorcycle. It was black and red in colour, with red being the predominant colour.

He stated that on the day in question he was proceeding from east to west down Botha Street at a speed which he estimated as being approximately

70 – 80 km per hour although he did not look at his speedometer. He was on his way home. It was a clear day and the road surface was dry. The headlight of the motorcycle was on. He was wearing a red and black helmet. He was intending to turn right at the intersection immediately beyond that of Botha Street with Willem Olckers Street. Approximately 3km before the point of the collision he changed lanes into the right hand or northern lane and remained in that lane up and until the point of the collision. As he approached the intersection of Botha and Willem Olckers Streets he noticed the Mazda motor vehicle in the gap between the centre islands of Botha Street. It had stopped at the yield sign governing entry into the southern half of Botha Street. There was no other traffic in the southern half of Botha Street in the immediate vicinity of the intersection. Plaintiff did not reduce his speed as it was unnecessary to do so. However, when he was approximately 6 metres away from the intersection the Mazda motor vehicle began moving from the yield sign into Botha Street across his line of travel. It then came to a stop straddling the middle line between the westbound lanes of Botha Street. Plaintiff applied both the front and rear brakes of his motorcycle as hard as he could but he was too close to the Mazda motor vehicle to stop. He also had no time to react in any other manner in order to avoid the collision. His motorcycle collided with the left rear of the Mazda motor vehicle in the region of the latter’s left rear wheel. The point of impact was in the right hand lane of Botha Street. Plaintiff was thrown from his motorcycle and fell further down Botha Street in a westerly direction. He came to a stop on the tarred surface of the road at a distance which he estimated as being approximately 20 – 25 metres beyond the Mazda motor vehicle. The motorcycle itself landed on the other side of the Mazda motor vehicle.

Plaintiff was still conscious although badly injured. According to him the Mazda motor vehicle remained in the same position as it had been at the time of the collision. He denied that it had spun around to face the direction from whence it had come.

He stated that the driver of the Mazda motor vehicle came running to speak to him saying, in Afrikaans, “Sorry ou maat. Ek het jou nie gesien nie. Is jy olraait?”

He stated further that had the Mazda motor vehicle not stopped after entering Botha Street he would have been able to pass behind it in the right hand lane.

During the course of his cross-examination his attention was drawn to an averment contained in the particulars of claim in which it is alleged that the driver of the Mazda motor vehicle, Geldenhuys, “failed to stop when required to do so at the intersection.” He reiterated that the Mazda motor vehicle had in fact stopped at the yield sign. He denied that he had told his attorney, by whom the particulars of claim were drafted, that the motor vehicle had failed to stop at the yield sign. In a warning statement made by him to the police he had stated that the vehicle had stopped.

He stated further that no other vehicle passed him whilst he was lying on the tarred surface of the road after the collision. He furthermore denied that he had overtaken a Toyota Tazz motor vehicle approximately 60 metres from the intersection prior to the collision occurring. He denied that any such motor vehicle had been present in the west bound lane of Botha Street. He denied further that he had been travelling at a speed in excess of 80 km per hour.

He confirmed that the Mazda had sustained severe damage in the collision (Photograph Exh C). The front fork of his motorcycle had broken but the motorcycle was capable of repair.

Janus Ferreira, who was a 17 year old school boy in Grade 11 at the time of the collision, stated that he resided close by to the scene of the collision. At approximately 2pm on Saturday 4 March 2006 he accompanied his father to the local “7/11” store which, it is common cause, is situated on the northern side of Botha Street and somewhat to the east of the intersection in question, as depicted on photograph B1. The parking area of the store leads directly onto the northern lane of Botha Street. No evidence was led at the trial as to the actual distance from the parking area to the scene of the collision.

Be that as it may, Ferreira stated that he had disembarked from his father’s motor vehicle and was standing in the parking area when he heard the sound of plaintiff’s motorcycle proceeding down Botha Street. He stated that he himself was a motorcyclist and that he enjoyed the sound of motorcycles. His attention was attracted by the sound of plaintiff’s motorcycle and he accordingly watched it as it proceeded down the right hand or northern lane of Botha Street towards the intersection with Willem Olckers Street. He stated that although the sound made by the motorcycle was sufficiently loud to have attracted his attention the motorcycle was not travelling at an excessive speed but at a speed which he estimated as being 80km per hour. From his knowledge of motorcycles the level of noise created by a motorcycle was not necessarily an indication of excessive speed as adaptions could be made to the exhaust pipes in order to increase the noise levels. There was no other traffic in the vicinity of the motorcycle. He could see through the trees and had, at most, lost sight of the motorcycle for a distance of 2 metres. He estimated the point at which he was standing as being approximately 25 metres from the intersection. He stated that despite the presence of shrubs and trees on the island as depicted in the photographs, exhibit B, his view of the scene at the intersection was unhindered. He noticed the Mazda motor vehicle in the gap between the centre islands. He stated that the Mazda slowed down or, in his words, “het afgeslack” at the yield sign but did not come to a dead stop before entering Botha Street. He conceded under cross-examination, however, that he could have been wrong in this observation but reiterated that it did not appear to him that the motor vehicle had stopped. He estimated that at the time the Mazda motor vehicle entered Botha Street the motorcycle was approximately 15 metres away from it. He denied that the Mazda had entered Botha Street when the motorcycle was still 60 metres away. Ferreira then observed the motorcycle colliding with the left rear side of the Mazda motor vehicle. At the time of the collision the Mazda motor vehicle was straddling the middle line between the two west bound lanes of Botha Street. He stated that in his view there was nothing the plaintiff could have done to avoid the collision. In consequence of the collision the Mazda spun and turned around to face the direction from which it had come. Ferreira did not observe any passenger being thrown out of the Mazda in consequence of the collision. He did, however, see a man sitting on the pavement at the intersection with a woman next to him after the collision. He then ran to assist plaintiff who had landed on the tarred surface of the road. Other persons also came to plaintiff’s aid and Ferreira then went home. He did not tell the police who had arrived at the scene that he was a witness because he had been busy assisting plaintiff. At some later stage, however, a man dressed in civilian clothes had arrived at his home to take a statement from him. He had assumed that this man was a policeman but conceded that he may have been an attorney. He made a statement to this man. It is common cause that no such statement was contained in the police docket.

In his evidence the insured driver, Jaco Geldenhuys, stated that he was on his way to Despatch in his Mazda motor vehicle accompanied by his wife who was in the front passenger seat and one Danie Strydom who was seated in the left rear passenger seat. He was travelling on the east bound carriageway of Botha Street and, at the intersection of Botha and Willem Olckers Streets, he turned right into the gap between the centre islands and came to a stop at the yield sign. He was intending to cross over the west bound carriageway of Botha Street into Willem Olckers Street and was not intending to turn right again into the west bound carriageway of Botha Street.

The west bound carriageway of Botha Street was quite busy because there was a wedding being conducted at the so-called Glas Kerk which was situated near the corner of Botha and Willem Olckers Street. Although not certain as to how long he had waited at the yield sign he estimated this as being one to two minutes. During this time five or six motor vehicles drove past. From his position at the yield sign he had an unimpeded view up the western carriageway of Botha Street and, given the flat terrain and the straight road, could have seen up the road for at least a kilometre had he looked. He then noticed a Toyota Tazz proceeding westwards down Botha Street in the left hand or southern lane thereof. At the time he noticed it it was approximately 60 metres away. As far as he could remember the Tazz was greyish in colour and certainly not red. He did not look to see if there was any traffic behind the Tazz but conceded that had he looked he would have been able to see all the following traffic because of the angle at which the Mazda was standing to the road. He estimated that the Tazz was travelling at a speed of approximately 60 kilometres per hour. Having regard to its speed and to the distance at which it was from him he considered that he could safely cross over both lanes of Botha Street in front of it and enter Willem Olckers Street. He accordingly proceeded to cross over Botha Street. He stated at first that when the nose of the Mazda was approximately at the middle line demarcating the two lanes he saw plaintiff’s motorcycle emerge from behind the Tazz, enter the right hand lane, and then move back into the left hand lane. In enlarging upon this he stated that he saw the motorcycle out of the corner of his eye for the first time when it had almost passed the Tazz. It was then in the right hand lane. He said that at that stage the Mazda was straddling the middle line. There was sufficient space in the right hand lane for the motorcycle to have passed safely behind the Mazda. The motorcycle, however, then collided with the Mazda’s left rear wheel and the Mazda spun around to face the direction from which it had come.

According to Geldenhuys the point of impact was at the mouth of Willem Olckers Street on the southernmost edge of the left lane of Botha Street. He confirmed that the point of impact was as pointed out by his passenger Danie Strydom as depicted on photograph B4. He could not think why the motorcycle should have again turned into the left hand lane after having overtaken the Tazz and he agreed that to have collided with the Mazda as it did it must have followed the Mazda almost into the mouth of Willem Olckers Street. He then said that he wanted in effect to put the collision behind him; that everything had happened very quickly some time ago; and that he could not in fact put his thumb on the point of impact. Such being the case he agreed that he was unable to dispute plaintiff’s evidence as to the point of impact and agreed that it was possible that the motorcycle had collided with the rear of the Mazda whilst it was still in the right hand lane. He stated further that he had spoken to the police at the scene of the accident but that he could not remember having pointed out a point of impact to them.

He stated that he did not know what happened to the Tazz after the collision and did not see it again thereafter. He was unable to explain how, in the circumstances which pertained at the time of the collision, the Tazz had managed to avoid colliding with the Mazda.

He was dazed and shocked and his knee was injured in the collision. He checked on his wife. She had suffered a whiplash injury to her neck. Danie Strydom was not in the Mazda and when Geldenhuys got out of the motor vehicle he saw that Strydom was lying unconscious near a road sign some 25 to 30 metres away. He ran to check on plaintiff. He could not remember having apologised to plaintiff as alleged by him but did not dispute that he might have done so.

Danie Strydom confirmed in his testimony that he had been a passenger in the left rear seat of the Mazda at the time of the collision. After the Mazda had turned right from Botha Street into the centre gap between the islands it stopped at the yield sign for a few seconds, which, on being pressed, he estimated as being 10 seconds. He could not recall if there was traffic in Botha Street at the time but he did recall having seen the Tazz in the left hand lane some 60 metres away from the intersection. Although he stated that he did not remember the colour of the Tazz he confirmed that in an affidavit attested to by him on 6 March 2006 he had described the Tazz as being red in colour. In this affidavit he had also stated that Geldenhuys had stopped at the yield sign “voordat hy regs gedraai het” into Botha Street. He stated that this averment was incorrect as their intention had always been to cross over Botha Street into Willem Olckers Street.

He stated that the Tazz was proceeding at what he described as being a normal speed. Geldenhuys proceeded to cross Botha Street in first gear in front of the Tazz. He stated that at a point when the Mazda was in the middle of Botha Street he saw plaintiff’s motorcycle emerge from behind the Tazz. The Tazz was then 55 metres away from the Mazda. He agreed that on that scenario the Tazz had covered a mere 5 metres whilst the Mazda, in first gear, had proceeded to the middle of Botha Street, a distance of approximately 4, 5 metres. He could not explain how this could have happened.

He then stated that the Mazda had in fact completely passed the right hand lane when he first saw the motorcycle. The motorcycle passed the Tazz in the right hand lane and then swung back into the left hand lane whereafter it collided with the Mazda. At that time the front of the Mazda was half in Willem Olckers Street. He stated that the point of impact occurred in the mouth of Willem Olckers Street at the extreme southern edge of the left hand lane as shown by him on photograph B4. He conceded that in his affidavit he had said that the Mazda had crossed the first of the two lanes at the time of the collision. He averred, however, that the Mazda was in fact at that time safely over the two lanes with only its rear protruding into Botha Street.

He stated that he lost consciousness in consequence of the collision and did not know how he emerged from the Mazda although he had been told that he had been thrown out of it. He conceded that he had made no mention of having been thrown out in his affidavit. He did not point out any point of impact to the police. He said that amongst the injuries suffered by him in consequence of the collision was a short term memory loss and added that there were things which had happened at the scene of the collision of which he no longer had any recall.

Defendant also adduced the evidence of two policemen, Inspector Du Plessis and Sergeant Ferreira, with specific regard to a plan and key thereto (Exhibit D) compiled by Du Plessis. It was common cause between the two policemen that Ferreira had arrived first at the scene on that day; that Ferreira had marked certain points on the road; and that the following day Ferreira had shown these points to Du Plessis who had compiled the plan and key thereto. According to both Du Plessis and Ferreira the driver of the Mazda, Geldenhuys, had pointed out to them the point of impact, this point, X on the plan, being approximately on the middle line of the west bound carriageway of Botha Street. Du Plessis stated in this regard that if Geldenhuys alleged that the point of impact was in the mouth of Willem Olckers Street he was not correct.

Although the plan also depicts the position where plaintiff was lying after the collision as being on the grass pavement 30 metres from the Mazda, Ferreira conceded under cross-examination that when he had arrived at the scene plaintiff had been lying on the tarred surface of the road and not on the grass. Plaintiff was at that stage already being attended to by ambulance personnel. He conceded that plaintiff’s actual position on the tarred surface of the road after the collision was accordingly unknown. He further conceded that the plan was incorrect inasmuch as it depicted the Mazda as being completely in Willem Olckers Street after the collision. He stated that in fact approximately 1,5 metres of the front of the Mazda had been protruding into Botha Street.

Defendant also adduced the evidence of an expert witness, Mr. Barry Grobbelaar. In the view that I take of his evidence it is not necessary to deal therewith in any detail. He stated that, based on the measurements indicated on the police plan and key thereto he drew a scale plan and determined the relevant angles and directions that the Mazda, the motorcycle and plaintiff had moved from the area of impact. He then prepared a momentum analysis in which he calculated the pre-impact speed of plaintiff’s motorcycle. He was initially under the impression that Danie Strydom had been a pillion passenger on the motorcycle and was accordingly obliged to recalculate the estimated speeds during the course of the trial. According to his recalculations the speed of the motorcycle at impact was between 93 and 103 km per hour. He was at pains to stress, however, that his calculations should only be considered as estimates because of the fact that the police measurements were not precise; that the exact position of the Mazda after the impact was not known; that there was uncertainty regarding the exact point of impact; and also uncertainty as to where on the tarred surface of the road plaintiff had come to a stop after the collision. As will have been seen from the exposition of the evidence adduced by the police witnesses the measurements contained in the police plan and key thereto are fatally flawed with regard to plaintiff’s position after the collision.

Mr. Grobbelaar was an entirely fair and objective witness and he readily conceded that there were a number of imponderables with regard to the collision. He concluded his evidence by stating that if all the imponderables were put together plaintiff’s estimate of his speed was not inconsistent with his estimation of plaintiff’s speed at its lowest level and that it was then possible that plaintiff’s speed had been as low as 75 km per hour.

As appears from the summary of the evidence which I have set out above the respective versions tendered on behalf of plaintiff and defendant as to how the collision occurred are irreconcilable and mutually destructive. The approach to be adopted in such circumstances appears from a number of cases such as National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) (referred to with approval in Baring Eiendomme Bpk v Roux [2001] 1 All SA 399 (SCA)); Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et CIE and Others 2003 (1) SA 11 (SCA) at 14J-15D; and Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) where the following is stated at 589G:

“It is equally true that findings of credibility cannot be judged in isolation, but require to be considered in the light of the proven facts and the probabilities of the matter under consideration.”

Plaintiff was, in my view, an excellent witness who testified calmly and consistently as to the events of that day. Mr. Niekerk, who appeared for defendant, raised two main criticisms of his evidence. Firstly, so he submitted, plaintiff’s evidence that the Mazda had not spun around 180 degrees after the collision was at odds with the evidence tendered by all the other witnesses and was therefore indicative of plaintiff’s unreliability. I do not agree. At the time that plaintiff looked back at the Mazda he was lying in a very severely injured and shocked state on the tarred road. It is hardly surprising that his impressions and recollections of the Mazda, and indeed also of his distance from the Mazda, may in such circumstances have been less than perfect. This contradiction, in my view, is not in any way material as regards the reliability of plaintiff’s observations prior to the collision occurring.

Secondly, Mr. Niekerk submitted that plaintiff’s evidence was at odds with the averment in the particulars of claim to the effect that Geldenhuys “failed to stop at the intersection”. He submitted that this was a very important contradiction which highlighted his uncertainty as to what had occurred. Again I do not agree. It is clear from plaintiff’s warning statement which was put to plaintiff by Mr. Niekerk himself that long before the issue of summons plaintiff had furnished a statement consistent with his evidence in court. He stated that he had given his attorney the selfsame statement from the outset. In my view nothing turns on this issue in the circumstances.

Ferreira too was a most impressive witness particularly given his age and the fact that he was a schoolboy at the time. As submitted by Mr. Cole, who appeared for plaintiff, he exuded youthful frankness and honesty in the witness box.

Mr. Niekerk’s submissions with regard to Ferreira were somewhat ambivalent. He criticised Ferreira’s evidence on the basis that Ferreira had never told the police at the scene that he had witnessed the collision; that he had never made a statement to the police; that it was unknown how he had come to be a witness; and that he had exhibited a strong bias in favour of plaintiff, the implication being, if I understood him correctly, that Ferreira may not have witnessed the collision at all. Mr. Niekerk then stated, however, that he could not dispute that Ferreira had been a witness to the collision. In my view the suggestion that Ferreira may not have witnessed the accident and that his evidence was a fabrication designed to assist plaintiff is entirely baseless and without merit. Ferreira explained satisfactorily why he had not advised the police at the scene of what he had witnessed and his evidence that he was under the impression that the man who arrived at his house to take a statement was a policeman is not in the least improbable. He was, in my view, an entirely independent and unbiased witness.

Mr. Niekerk then pointed to the fact that Ferreira had to some extent contradicted plaintiff’s evidence as to whether or not the Mazda had stopped at the yield sign. In this regard Ferreira had stated that the Mazda had slowed down but had not stopped. He had immediately conceded, however, that it was possible that he was mistaken in this regard and that the Mazda had stopped. In my view in the circumstances the alleged contradiction is more apparent than real.

Geldenhuys was a far from impressive witness. His evidence was confused and contradictory and he exhibited a poor recollection of the events, stating that he wished to put those events behind him and move on. According to him he did not point out any point of impact to the police as alleged by Du Plessis and Ferreira. He alleged that the point of impact was in fact on the extreme southern edge of the left lane of Botha Street before conceding that it might have been in the right hand lane thereof. More importantly, however, is the fact that his evidence, and that of Danie Strydom, who was a most unimpressive witness, as to how the collision occurred, is, in my view, utterly improbable. On their version the motorcycle moved out from behind the Tazz into the right hand lane at a distance of 60 metres from the Mazda. It could have passed safely behind the Mazda, the entire right hand lane being clear, but instead, at a time when it was almost upon the Mazda, it swerved back into the left hand lane and, furthermore, not only into the left hand lane but across it to its extreme edge where it collided with the Mazda. Such conduct on the part of the plaintiff is, on the face of it, inexplicable.

Whilst all this was happening the Tazz was allegedly proceeding at a normal speed in the left hand lane towards the Mazda. Apart from the improbability of the Mazda having been able to traverse most of the width of the carriageway in front of the Tazz which was a mere 60 metres away when the Mazda commenced its entry into Botha Street there is the further and greater improbability that the Tazz not only managed to avoid what would in the circumstances appear to have been an inevitable collision with the Mazda, but thereafter disappeared unscathed from the scene. In my view, the circumstances of the collision as alleged by Geldenhuys and Strydom, including the contradictions between them more especially as to the colour of the Tazz, are of so improbable a nature that the only conclusion to be reached is that the Tazz was a figment of the imagination of both witnesses. I have no hesitation in preferring the clear, consistent and probable evidence of plaintiff and Ferreira to the effect that there was in fact no Tazz present at the scene.

As I have stated above the evidence of Du Plessis and Sergeant Ferreira disclosed that the police plan was unreliable in certain respects which had the effect of undermining the calculations of Grobbelaar to a considerable extent.

In Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E) the following is stated at 436H-I:

“Direct or credible evidence of what happened in a collision, must, to my mind, generally carry greater weight than the opinion of an expert, however experienced he may be, seeking to reconstruct the events from his experience and scientific training. Strange things often happen in a collision and, where two vehicles approaching each other from opposite directions collide, it is practically impossible for anyone involved in the collision to give a minute and detailed description of the combined speed of the vehicles at the moment of impact, the angle of contact or of the subsequent lateral or forward movements of the vehicles.”

At 437A-B the learned Judge continued:

“An expert’s view of what might probably have occurred in a collision must, in my view, give way to the assertions of the direct and credible evidence of an eyewitness. It is only where such direct evidence is so improbable that its very credibility is impugned, that an expert’s opinion as to what may or may not have occurred can persuade the Court to his view.”

In my view, the estimates of both plaintiff and Ferreira as to the speed at which the motorcycle was travelling at the time of the collision are credible and must be accepted in preference to the estimates put forward by Grobbelaar.

In my view therefore the matter falls to be determined on the version of the plaintiff, namely that plaintiff was proceeding along the west bound carriageway of Botha Street at a speed of between 70 – 80 km per hour when the insured vehicle entered Botha Street in front of him, the collision thereafter occurring in the right hand lane of Botha Street.

In National Employers’ General Insurance Co Ltd v Sullivan 1998 (1) SA 27 (A) the following was stated at 36G-F:

“The driver in a through street, while being required to keep a general look out, is entitled to assume, in the absence of indication to the contrary, that a driver approaching from a stop street will heed the stop sign operating against him and bring his vehicle to a stop. It is only when it would become apparent to a reasonable man in the position of the driver in the through street that the driver in the stop street does not intend to stop, or will be unable to stop in time, that the duty rests on the through street driver to take appropriate action. Until that stage is reached it is not incumbent upon him, under normal conditions to regulate his driving on the assumption that the driver in the stop street may not stop.”

See too Guardian National Insurance Co Ltd v Saal 1993 (2) SA 161 (C).

On all the evidence Geldenhuys had an unobstructed view of Botha Street and, had he looked, would have seen the approaching motorcycle. In the circumstances he clearly did not keep a proper look out and indeed admitted immediately after the collision to plaintiff that he had not seen him. He was in the circumstances negligent and, so Mr. Niekerk properly conceded, his negligence contributed causally to the collision. Mr. Niekerk submitted, however, that having regard, inter alia, to the decision in Caldwell v Commercial Union Assurance Co of SA Ltd 1977 (1) SA 748 (AD) the negligence of the plaintiff was greater than that of Geldenhuys and that the degrees of their negligence should be assessed at 75 and 25 percent respectively.

In my view Caldwell’s case, supra, is clearly distinguishable from the present matter. In that matter the appellant had approached a main thoroughfare intending to enter it and turn to his right. He stopped at the stop-line. He saw the insured vehicle approaching from his right at a distance which he estimated as being 300 – 400 yards away but which was in fact 160 paces away. He adjudged it safe to enter the intersection but whilst in it his car was struck by the insured vehicle which was travelling at 60 – 65 miles per hour, in excess of the speed limit of 35 miles per hour. The insured driver had also failed to keep a proper look-out. It was held that a reasonable driver in appellant’s position would have foreseen that the insured vehicle might well be exceeding the speed limit and, as it was at a relatively close distance of 160 paces, would have paid particular attention to it and would not have proceeded substantially beyond the kerb-line unless he had made some dependable assessment of its speed. Appellant was therefore negligent in entering the intersection in the face of the oncoming vehicle. The assessment by the Court a quo of appellant’s fault as 25% as opposed to that of the driver of the insured vehicle as 65% was confirmed on appeal.

The circumstances of the present case are entirely different. In the present case Geldenhuys did not keep a proper look-out and failed to observe the approach of plaintiff’s motorcycle at all. In this regard Mr. Niekerk criticised the evidence given by plaintiff and Ferreira as to the distance the motorcycle was from the Mazda at the time the latter entered the intersection, namely 6 metres or 15 metres respectively and submitted that were this so the Mazda would not have had time to traverse the right hand lane of Botha Street prior to the collision occurring.

In assessing the reliability of estimates as to distances given by witnesses in collision cases it is necessary to bear in mind what was said by Ogilvie-Thompson AJ in Van der Westhuisen and Another v SA Liberal Insurance Co Ltd 1949 (3) SA 160 (C) at 168 namely:

“The strictly mathematical approach, though undoubtedly very useful as a check, can 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.”

This dictum was approved in Diale v Commercial Union Assurance Co of SA Ltd 1975 (4) SA 572 (AD) at 576H-577A and National Employers’ General Insurance Co Ltd v Jagers supra at 442H-I.

What does emerge clearly from the evidence of both plaintiff and Ferreira is that the Mazda entered Botha Street in front of the motorcycle at a time when the motorcycle was very close to the intersection, so much so that plaintiff was unable to take any evasive action such as would have enabled him to avoid the collision. It was never suggested to plaintiff, nor was any evidential basis laid therefor that, had he been travelling at a speed of 60 km per hour at the time that the Mazda entered Botha Street the collision probably would not have occurred. Compare Diale v Commercial Union Company of SA Ltd supra.

In these circumstances, even on the assumption that plaintiff was negligent in travelling at a speed of 70 – 80 km per hour on an urban road where the speed limit was 60 km per hour, such negligence did not contribute causally to the collision. In my view therefore the defendant, upon whom the onus in this regard rests, has failed to discharge the onus of proving contributory negligence on the part of plaintiff.

Counsel were agreed that costs should follow the result.

In the circumstances the following order will issue:

1. Defendant is liable to plaintiff for such damages as plaintiff may prove he has suffered in consequence of any injuries sustained by him in the collision which occurred on 4 March 2006, such collision having been occasioned solely by the driver of motor vehicle number ENC950EC, namely Jaco Geldenhuys.

2. Defendant is ordered to pay the costs of the trial on the merits, such costs to include the qualifying expenses, if any, of Professor Baart; the costs of the photographs annexed to Professor Baart’s report; the costs of an inspection in loco and those costs which were reserved for decision on Thursday 13 March 2008.

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J.D. PICKERING

JUDGE OF THE HIGH COURT

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