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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Case No 05/9227

DATE:06/11/2007

In the matter between:

ELMA MALAN..............................................................................................Plaintiff

and

ROAD ACCIDENT FUND........................................................................Defendant

JUDGMENT

[1] The plaintiff’s claims for damages in this action arises out of a motor vehicle collision on the 17^th September 2001 at about 16h10 on the Bethal/Kriel/Witbank Road (“the road”) in which the plaintiff, her daughter N-M, who was then 10 years old, and her twin daughters, J and E who were then 6 years old, were involved. The plaintiff was the driver of her husband’s Isuzu KB twin cab pick-up van with registration number and letters CHF 259 MP, and in the vehicle with her was their three daughters. The plaintiff lost control of the vehicle, it rolled, and came to a standstill again on its wheels. The plaintiff and her daughters were all injured and E died a few hours later. The insured driver, Mr Lionel Steinhobel, drove the insured vehicle, a Daewoo Matiz motor vehicle with registration number and letters CFX 757 MP, in the opposite direction and it is alleged that he caused the collision by travelling on the incorrect side of the road into the plaintiff’s path of travel.

[2] The defendant’s counsel, Adv Andrè Knoetze, on behalf of the defendant admitted that the plaintiff has complied with the provisions of the Road Accident Fund Act No. 56 of 1996 prior to the institution of this action. He also abandoned a special plea on behalf of the defendant. The parties were in agreement that the issue for decision should be confined to the question of negligence. I ordered such separation.

[3] The particulars of claim allege that the collision was solely due to the negligence of the insured driver. Negligence on the part of the insured driver was denied in the plea. Contributory negligence on the part of the plaintiff and the insured driver was pleaded in the alternative.

[4] The plaintiff commenced and she testified. She also called Mr Petrus Jacobus Neethling, Mr Dawid Todd Maritz who was the investigating officer at the time of the collision, and her daughter, N-M, as witnesses. The insured driver was the only witness who testified on behalf of the defendant.

[5] The plaintiff testified that on the afternoon of the 17^th September 2001, she collected her three daughters from their school in Bethal where they had attended extra mural acrobatic activities. They were returning home on the Bethal/Kriel/Witbank Road (“the road”) travelling from Bethal in the direction of Kriel. The plaintiff was approaching the crest of a blind rise when a silver Matiz motor vehicle, which was travelling from the opposite direction, ie from Kriel in the direction of Bethal, appeared on the crest and was approaching the plaintiff’s motor vehicle on its incorrect side of the road in the plaintiff’s path of travel. The insured vehicle and the plaintiff’s vehicle were very close to each other when she noticed the insured vehicle. In order to avoid a head-on collision, the plaintiff swerved to the right and passed the insured vehicle on her incorrect side of the road, whereafter she swerved or moved to her left. The plaintiff lost control of the vehicle, but she has no recollection of what happened following her swerve to the left until the vehicle was at a standstill and Mr Neethling was talking to her. The plaintiff cannot remember at what speed she had been travelling, but she testified that she usually drives at a speed of between 100 – 120 kms per hour and that she does not like to drive fast. She also testified that the insured vehicle was approaching her directly in her lane at a reasonable speed, but she was unable to say at what speed he was coming at her. When she overtook the insured vehicle the plaintiff noticed the insured driver’s face. The plaintiff has no recollection of the insured driver’s attendance at the scene of the collision and she denies that he offered her assistance. She remembers Mr Neethling to be the first person that spoke to her and he remained with her throughout at the scene of the collision. She recalls asking him about her daughters. The plaintiff had difficulties in breathing and she was in a lot of pain. The plaintiff remembers that her husband attended at the scene of the collision and she remembers that she was taken away by ambulance.

[6] The plaintiff’s daughter, N-M, who is now 16 years old, testified that she remembers the collision. Their mother picked her and her twin sisters up from sport and they were on their way home. Her mother was driving, she was lying on the rear seat of the double cabin of their vehicle, and her twin sisters were at the back, which was enclosed with a canopy. She heard her mother saying “O my genade” and immediately sat up straight to see what was going on. She noticed a motor vehicle, light in colour, immediately in front of and very close to them in their lane of travel and it looked as if and she thought it was going to collide with them. Her mother swerved to the right and then to the left. When her mother swerved to the right, N’s head knocked out the left side rear window of their vehicle, and when she swerved to the left, her head knocked out the right side rear window. Her mind became a total blank for a moment and when she came to her senses their vehicle was rolling - it was “sand, grass, and tar” - and N-M then fell out while their vehicle was rolling on. She saw it again when it came to a standstill on its wheels. She was lying a distance away and was in severe pain. N lifted her head to see whether she could see anybody to help them. She noticed the motor vehicle that came up in front of them prior to the collision travelling in the direction of Bethal and she thought that vehicle would not stop. She then looked in the opposite direction and saw a pick-up van stopping at the scene of the collision. From thereon other people also arrived and rendered them help. The first person who rendered assistance to N-M was a “tannie” (not family), but she was known to N-M and like a second mother to her. Thereafter another “tannie”, who was from an adjoining or close by farm, also came and stayed with N-M until she was taken away by ambulance. Her father also arrived a while later.

[7] Mr Neethling, an upholsterer from Bethal, also testified. He knew the plaintiff and her husband professionally. He had re-upholstered a lounge suite for them a few weeks prior to the collision, and he had collected a couch for re-upholstery from their house on the morning of the day of the collision. The plaintiff and her husband, Mr Neethling, and the defendant all attended the same church in Bethal. Mr Neethling testified that he was travelling on the road in his Isuzu 250 KB diesel pick-up van in the direction of Bethal just after 16h00 on the 17^th September 2001 when he arrived at the scene of the collision. Just before his arrival, Mr Neethling was overtaken by a motor vehicle light in colour when he was beginning to travel uphill on a blind rise. Mr Neethling said that his average speed was about 120 – 130 kms p/h and he suspects that he was driving at about 130 km p/h at the time. The light motor vehicle overtook him at a reasonable speed and Mr Neethling estimated its speed to have been between 140 – 150 km p/h. At that stage Mr Neethling did not know who the driver of that motor vehicle was. Upon Mr Neethling travelling over the rise he saw a pick-up van coming to a standstill on its wheels approximately 100 metres away from the highest point of the rise and approximately 5 metres from the tarmac. He did not see the collision happening. He also observed the same light coloured motor vehicle that had overtaken him turning around and proceeding back towards the scene of the collision. At that stage Mr Neethling observed no other vehicles. Mr Neethling stopped to help.

[8] When he arrived at the pick-up vehicle that had been involved in the collision, Mr Neethling noticed that it was the plaintiff whom he knew. Mr Neethling saw the insured driver, whom he also knew, arriving more or less at the same time and they spoke to each other. The insured driver pointed out to Mr Neethling where the children were lying, he assisted Mr Neethling in opening the driver’s door of the plaintiff since it was jammed, and he thereafter went back to the children. Mr Neethling stayed with the plaintiff and he tried to keep her conscious and stabilize her. When he let loose of her she grumbled and complained that she could not breathe. He had the cellular phone number of the plaintiff’s husband and telephoned him.

[9] Mr Maritz, who was the investigating officer, testified that he was telephonically notified of the collision and arrived at the scene of the collision at approximately 17h15. Upon his arrival he found an ambulance, the ambulance crew, a medical doctor and many other people present. Two of the children were already in the ambulance. One small girl was lying on the ground, and the plaintiff was trapped in her vehicle. He went from person to person and enquired whether anybody had witnessed the collision. The insured driver informed the investigating officer that he was the only person who had witnessed the collision and he explained that he had passed the vehicle and had seen in his rear view mirror that it had left the road and a cloud of dust whereupon he turned around and rendered help. The investigating officer also requested an explanation from the plaintiff, who explained to him that a person driving a grey coloured Matis motor vehicle had headed towards her vehicle from the opposite direction in her lane, that she had then swerved to avoid a collision, and that she had lost control. The investigating officer had also examined the scene of the collision and he inferred from soil marks on both edges of the road and from skid marks across the road that the plaintiff had been travelling in the direction of Kriel, that her vehicle or a part thereof had first left the road on the left side, then went across the road from left to right, whereafter it left the road on the right side and came to a standstill within 10 metres from the edge of the road and not further than 100 metres away from the crest of the blind rise. The investigating officer had returned to the police station where he had reported the collision and provided the officer on duty with the relevant information to complete the collision report.

[10] The defendant testified that at the time of the collision he worked in Kriel and lived in Bethal and that he travelled the road daily to and from his work and home. On the 17^th September 2001, he left his work at around 16h00 and was travelling home to Bethal in a metallic silver Matis motor vehicle. At some stage when he was approximately 20 – 22 kilometres away from Kriel and approximately 12 kilometres from Bethal and proceeding downhill, a vehicle proceeding from the opposite direction in its correct lane of travel passed him while he was travelling approximately 120 kilometres per hour. Something in his rear view mirror attracted his attention and he then noticed that the vehicle that had just passed him was rolling. He turned around and went to the scene of the collision. The collision happened at approximately 16h00. The insured driver was the first person who arrived at the scene of the collision. He found three children lying next to the road, approximately 5 metres away from its edge. He attended to them by ensuring that they were breathing and were not choking. He then went to the plaintiff’s vehicle and noticed that the plaintiff was trying to get out of her vehicle, and he said to her to remain quiet in the vehicle. A male and female then arrived in a truck and the insured driver requested the male to keep the plaintiff’s head stable in the vehicle until an ambulance arrives and the female accompanied him back to the children. The insured driver arranged an ambulance and he confirmed that he informed the investigating officer that he had witnessed what had happened. The insured driver denied that Mr Neethling was the first person to arrive at the scene of the collision and he testified that he had only seen him much later standing close to the plaintiff’s vehicle. They greeted each other. Mr Malan also arrived at the scene of the collision and the insured driver furnished his particulars to the plaintiff’s husband. The investigating officer, Mr Maritz, informed the insured driver that same evening that he was charged with culpable homicide. He was acquitted approximately one year later.

[11] “The correct approach, in deciding whether there is proof of negligence, is to consider the totality of the facts after both sides have closed their case;…” [Levy, NO v Rondalia Assurance Corp of SA Ltd 1971 (2) SA 598 (A), at p 600H].

[12] Most of the facts are on the evidence either common cause or not disputed. The facts in dispute essentially relate to the issue whether or not the insured driver drove the insured vehicle on its incorrect side of the road into the plaintiff’s path of travel when the two vehicles were approaching from opposite directions. There are two irreconcilable versions on this issue. There is also a dispute on certain peripheral issues, such as whether the insured vehicle overtook the vehicle driven by Mr Neethling moments before the collision happened and whether the insured driver and Mr Neethling arrived at the scene of the collision at more or less the same time, which issues have a bearing on the probabilities. The approach to be followed in coming to a conclusion on disputed issues such as those in the instant matter, has been laid down by the Supreme Court of Appeal in judgments such as Stellenbosch Farmers’ Winery Group Ltd & Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) and Santam Bpk v Biddulph 2004 (5) SA 586 (SCA), and requires no elucidation.

[13] It is common cause that the plaintiff was trapped in her vehicle and that she was in severe pain and required constant hands-on assistance to stabilize her and to keep her conscious. She grumbled, had difficulties breathing, and the insured driver testified that the reason why she could not recall his presence was because she was confused and not fully conscious. When asked for an explanation by the investigating officer at the scene of the collision, she informed him that a person driving a grey coloured Matis motor vehicle had headed towards her vehicle from the opposite direction in her lane, that she had then swerved to avoid a collision, and that she had lost control. That same evening the insured driver was informed of a criminal charge of culpable homicide against him. It seems to me to be highly improbable that the plaintiff would have concocted such version there and then, particularly in the light of her own condition.

[14] It is common cause that the road surface where the collision occurred was tarmac, in a good condition, and dry. It was daylight, the visibility was clear, and the road was straight. There was a single lane for traffic in each opposite direction and no road shoulders. The plaintiff is a mother who conveyed her three young daughters home from school. There seems to be no reason to doubt the plaintiff’s version that she does not drive fast and it can, in my view, be inferred that immediately prior to the collision she probably was travelling at a speed of between 100 – 120 kilometres per hour. On the insured driver’s own version he noticed nothing remarkable or strange when he noticed the plaintiff’s vehicle travelling immediately prior to the collision. Apart from the plaintiff’s version, no other possible cause for the plaintiff’s sudden loss of control of her vehicle has been suggested.

[15] The plaintiff’s version that she swerved to the right and then to the left is supported by the undisputed evidence of N-M that when her mother swerved to the right, her head knocked out the left side rear window of their vehicle, and when her mother swerved to the left, her head knocked out the right side rear window. That this fact is undisputed does not only appear from the cross-examination of N-M when it was not challenged, but also from the cross-examination of the plaintiff when the defendant’s counsel put it to the plaintiff that her daughter’s head first knocked out the left side rear window and then the right side rear window. The plaintiff’s version is also not inconsistent with the undisputed observations of the investigating officer, which were based on his investigation at the scene of the collision, namely that the plaintiff’s vehicle or a part thereof first left the road on the left side, then went across the road from left to right, whereafter it left the road on the right side and rolled. The fact that the plaintiff lost control is undisputed, and the inference that she lost control either while she was swerving right and left in overtaking the oncoming insured vehicle, or as a result of over-correcting when she swerved left in returning to her lane of travel, is, in my view, ‘the most readily apparent and acceptable inference’ from all conceivable possibilities [see AA Onderlinge Assuransie Bpk v De Beer 1982 (2) SA 603 (A) at p 617 A – B].

[16] Mr Neethling testified that he too was travelling in the direction of Bethal in his Isuzu 250 KB diesel pick-up van immediately before the collision when he was overtaken by a light motor vehicle travelling uphill on the Kriel side of the blind rise, which motor vehicle subsequently turned around and proceeded to the scene of the collision. This motor vehicle, on the evidence of Mr Neethling, turned out to be the one driven by the insured driver. It also turned out to be the same vehicle which, on the plaintiff’s version, appeared on the crest on its incorrect side of the road when she was approaching the crest of the blind rise on the Bethal side. It is evident from my own questioning of Mr Neethling that he could not recall whether the insured vehicle returned to its correct lane once it had overtaken Mr Neethling’s vehicle. If it did not, then obviously this fact supports the plaintiff’s version and explains its presence on its incorrect side in the face of the plaintiff’s approaching vehicle. I agree with the submission made by the plaintiff’s counsel, Adv Justin Erasmus, that Mr Neethling’s answers on this issue, namely that it was possible that the overtaking vehicle returned to its correct side, that he would say it returned to its correct side, that the driver should have known he should return, and that the incident happened long ago and that he could not really remember whether the vehicle returned to its correct side, are indicative of his honesty and independence as a witness, a matter to which I will return later in my judgment.

[17] The version of the insured driver on this critical issue whether he overtook Mr Neethling’s vehicle immediately prior to the plaintiff’s collision, was wholly unsatisfactory and can be rejected in the light of the evidence as a whole. Mr Neethling’s version was put to the insured driver when he gave his evidence in chief. His reply was that he drove a Matis, which was approximately an 800cc motor vehicle, and that he doubts whether that vehicle would have done 100 kilometres per hour going uphill on that particular rise. In answer to a question under cross-examination whether he had seen Mr Neethling travelling on the road, he replied that he could not remember. Under further cross-examination Mr Neethling’s version was put to him, and counsel also put it to him that the motor vehicle that had overtaken Mr Neethling was the vehicle driven by the insured driver to which he replied: “Ek weet nie. Ek glo nie.” Counsel then asked the insured driver whether he was unable to answer with certainty and his reply was: “As u kan sê waar dit was.” There could, however, have been no doubt in the mind of the insured driver where it was alleged that he had overtaken Mr Neethling. Counsel nevertheless explained, whereupon the insured driver answered: “Nee. Ek het hom nie verbygegaan nie.” On the issue of his speed, the insured driver under cross-examination testified that his average speed on open roads was 120 kilemetres per hour depending on the speed limit and road conditions, that he never ascertained the top speed of the insured vehicle, and that he believes that he was travelling approximately 120 kilometres per hour at the time.

[18] A related issue is whether the insured driver and Mr Neethling arrived at the scene of the collision at more or less the same time. The insured driver said that Mr Neethling only arrived much later. He, the insured driver, was the first to attend to the plaintiff. When confronted with her version that she did not see the insured driver, he suggested that she might have been confused after the collision. Mr Neethling’s version on this issue is supported by other undisputed evidence and is, in my view, more probable. The plaintiff was not unconscious and was able to converse at the scene of the collision. She even explained to the investigating officer what had happened. She recalls that Mr Neethling attended to her first. Both the plaintiff and Mr Neethling testified about the plaintiff’s immediate concern about her children. Such is probable for a mother in those circumstances. Also N-M remembers that a pick-up vehicle stopped at the scene of the collision first. Mr Neethling drove a pick up vehicle and not the insured driver.

[19] The plaintiff and her husband, Mr Neethling and the insured driver all attend the same church. No motive on the part of the plaintiff or Mr Neethling for accusing the insured driver falsely was suggested.

[20] In his evidence in chief the insured driver testified that when the plaintiff’s vehicle had passed him, something in his rear view mirror attracted his attention and he then noticed that the vehicle that had just passed him was rolling. Under cross-examination he added a further explanation for having looked in his rear view mirror, which was that he was taught on an advanced driving course to look in his rear view mirror every seven seconds. The more probable explanation in the light of the totality of the evidence is, in my view, that the insured driver looked back in his rear view mirror because of the head-on collision that had just been avoided.

[21] The defendant’s counsel, correctly in my view, conceded that the plaintiff attempted to give evidence as best as she could. She created a favourable impression on me. The defendant’s counsel criticised her inability to have given any detail with regard to aspects such as the time duration during which she had seen the insured vehicle before she took evasive action and the distance between the vehicles. She testified that the insured vehicle and her vehicle were very close to each other when she first noticed the insured vehicle and she denied the proposition put to her that she observed the insured vehicle for a considerable period of time before she took evasive action. The defendant did not give evidence on such duration and distances. The defendant’s counsel submitted that the plaintiff’s inability to have given more accurate evidence on those issues taints her credibility and supports an inference that she seemed to have remembered only facts which favour her. I disagree. Evidence on time duration and distances, however honest witnesses may be, is not infrequently unreliable. My impression of the plaintiff’s evidence on these issues was that she realized her inability to give accurate estimations and that she therefore refused to commit herself on such issues.

[22] N-M made a very favourable impression on me. She knows right and wrong and the importance of telling the truth. She was friendly and relaxed in the witness stand, she answered the questions that were put to her promptly, and she often made direct eye contact with me. The defendant’s counsel submitted that she had very little time to make the observation that a motor vehicle, light in colour, was immediately in front of them in their lane of travel and very close to them. Counsel further submitted that the incident would have been discussed within their family home ad nauseam and that she had an urge to reconstruct the events in order to fall in line with her mother’s observations. She was, however, hardly cross-examined and certainly not on these issues raised by counsel in argument. One does not, in my view, need more than a moment to make an observation such as the one made by N-M. The fact that the Malan family is likely to have discussed the matter of the collision does not imply what counsel sought to ascribe to N-M. There is simply no factual basis for counsel’s criticism in this regard.

[23] Counsel for the defendant submitted that Mr Neethling was a wholly unsatisfactory witness and that no reliance should be placed on his evidence. In this regard counsel submitted that Mr Neethling’s name does not appear on the collision form as a witness, he did not give evidence at the criminal trial, and he only came forward as a witness a few days before this trial. Even though the investigating officer testified that he went around from person to person at the scene of the collision in an attempt to find witnesses, it was never suggested that he approached Mr Neethling, and Mr Neethling’s evidence was to the effect that he did not. The undisputed evidence of the investigating officer was further that the insured driver came forward at the scene of the collision and informed him that he was the only eye witness. Mr Neethling further testified that he was never requested by anyone to be a witness until a few days before the trial when he was contacted by the plaintiff’s husband and attorney. They then enquired from him whether he had any knowledge relating to what had happened whereupon he informed them what he knew. I consider such explanation to be plausible. Counsel for the defendant also referred to certain contradictions between Mr Neethling’s evidence and a statement which the plaintiff’s attorney obtained from him, but I do not believe that much turns on such contradictions, especially if regard is had to the fact that Mr Neethling is Afrikaans speaking, the statement was written in English for Mr Neethling by the plaintiff’s attorney, Mr Neethling clearly did not understand the meaning of certain words used in the statement, and Mr Neethling does not appear to be a very sophisticated person. Even though his evidence is open to criticism, there does not appear to be any reason to doubt his honesty.

[24] An analysis of the evidence as a whole, including an assessment of the probabilities, leads me to conclude that the essential features of the plaintiff’s version and that of her daughter on the issue whether the insured driver drove the insured vehicle on its incorrect side of the road and onto the plaintiff’s side of the road when their two vehicles were approaching from opposite directions, are true. The plaintiff’s version is corroborated in material respects by the evidence of her daughter, Mr Neethling and the investigating officer, who was not cross-examined, and it is supported by the probabilities. The probabilities, the insured driver’s demeanour when testifying - he appeared tense and he appeared hostile towards the plaintiff’s counsel at some stages during his cross-examination - and the contents of the insured driver’s answers on the critical issues, convince me that the defendant’s version on the disputed issues is improbable, unreliable and not credible. I am satisfied that the plaintiff proved as a matter of probability that the insured driver was driving the insured vehicle on the incorrect side of the road onto the plaintiff’s side of the road when their two vehicles were approaching from opposite directions.

[25] I now turn to the issue of contributory negligence. Full allowance has to be made for the less exacting standards applicable to a person in a sudden emergency. In Ntsala and Others v Mutual & Federal Insurance Co Ltd 1996 (2) SA 184 (TPD), Els J, at pp 192G – 193A, said this: “Where a driver of a vehicle suddenly finds himself in a situation of imminent danger, not of his own doing, and reacts thereto and possibly takes the wrong option, it cannot be said that he is negligent unless it can be shown that no reasonable man would so have acted….. In this instance I am of the opinion that, if the driver of the insured vehicle was in fact acting in a sudden emergency, he took the proper and obvious course by swerving to the left. If he then loses control of his vehicle or if in panic he swerves back on to the tarmac and a collision follows, he cannot be faulted and held to be negligent.”

[26] There is no reliable evidence as to the precise distance which separated the vehicle driven by the plaintiff and the insured vehicle at the stages when the insured vehicle ought to have become and became visible to the plaintiff nor of the precise time duration during which she had noticed the insured vehicle before she took evasive action. The plaintiff, however, testified that the insured vehicle and her vehicle were very close to each other when she first noticed it and she denied the proposition that she observed the insured vehicle for a considerable period of time. N-M testified that she noticed the motor vehicle immediately in front of them and it looked as if it was about to collide with them at the time when she heard her mother saying “O my genade”. Under cross-examination it was suggested to the plaintiff that she had seen the insured vehicle for a considerable period of time since the collision occurred approximately 600 metres away from the crest of the rise, but such proposition was never underpinned by any evidence.

[27] When confronted with the sudden emergency, the plaintiff swerved over to her right, and then back to the left, and her vehicle or a part thereof left the road on the left side. She lost control in the process and her vehicle went from the left side across and left the road on the right side, whereafter it rolled and came to a standstill within 10 metres from the edge of the right side of the road. In these circumstances it cannot, in my view, be said that “no reasonable man would so have acted.” The situation which confronted the plaintiff was one of extreme danger. I am accordingly of the view that it has not been proved that the plaintiff was at fault.

[28] To sum up, the collision in which the plaintiff was involved was caused by the sole negligence of the insured driver. In the situation in which the insured driver found himself, a reasonable driver would have taken the obvious course open to him of remaining on his correct side of the road, and he would thereby have avoided the collision in which the vehicle driven by the plaintiff was involved.

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

1. The collision was caused by the sole negligence of the insured driver.

2. The defendant is ordered to pay the plaintiff’s costs of this trial.

PA MEYER, AJ

ACTING JUDGE OF THE HIGH COURT

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