Republic of South Africa

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

								CASE No:  3472/2003

In the matter of

BELINDA LEONA PALMER
On behalf of Lejade Palmer							Plaintiff

and

THE ROAD ACCIDENT FUND							Defendant

JUDGMENT  DELIVERED  : 30  AUGUST  2005  
_______________________________________________________________________

MOOSA, J:

Introduction:
1.	On 30 January 2002 at approximately 13:00 in Strydom Street, Genadendal, a truck driven by Johan Andries (“insured driver”) collided with Lejade Palmer (“Lejade”) while she attempted to cross the road.  Plaintiff sued defendant for damages arising from the said collision, both in her personal capacity and as mother and natural guardian of Lejade.

2.	The parties agreed that the issues of liability and quantum be separated and that the issue of liability be determined first by the court and the issue of quantum stands over for later determination.  The present matter concerns the determination of liability.

Issues:
3.	In accordance with the pleadings, the court is called upon to decide whether the insured driver was negligent in one or more of the following respects:
(a)	that he failed to keep a proper look out;
(b)	that, in the circumstances, he drove at an excessive speed;
(c)	that he failed to take any or adequate steps to avoid the collision.
The defendant has denied that the insured driver was negligent as alleged or in any other manner and in the alternative pleaded contributory negligence.

4.	It is common cause that Lejade was four years old at the time of the collision, and  was culpae incapax.  In terms of the law, plaintiff was only required to prove the proverbial ”one-per cent” causal negligence on the part of the insured driver to succeed in rendering defendant liable for the damages claimed by plaintiff.  The question of contributory negligence therefore does not arise.  It is also common cause that Lejade was visible to the insured driver when he was approximately 50 meters away from her.

The Evidence:
5.	Both parties presented the evidence of lay and expert witnesses in support of their respective cases.  Most of the evidence of both lay and expert witnesses, other than Inspector Petersen, is either common cause, undisputed or objective facts.  The differences in their evidence are more in the nature of detail rather than substance.  I am of the view that the matter can be resolved on the evidence of the insured driver, the evidence which is common cause and undisputed as well as the objective facts.   

6.	Inspector Petersen who was the investigating officer, admitted in his evidence that his written statement was incorrect.  Both plaintiff and the insured driver stated in their evidence that their police statements were incorrectly minuted by Inspector  Petersen.  In the circumstances the court can place very little reliance, if any, on the police statements in question.  

7.	Likewise, the court can attach very little evidential value to the police plan and report.  Firstly, because Inspector Duminy,  who prepared the document, was not called to testify; secondly,  because of the fact that certain information contained therein could not be verified and thirdly, because other information in the document appears to be incorrect, for example: in which direction the insured truck was travelling, in which direction Lejade was crossing the road;  the point of impact and the speed limit on the road. 

8.	The evidence of Mr Petersen, an insurance assessor, that was called by plaintiff, was essentially of a formal nature.  The evidence of Ms Caroline Opperman, who was called by defendant and who spoke to plaintiff after the accident, does not take the matter much further, as correctly pointed out by Adv Laubscher for plaintiff.

Forensic Evidence:
9.	It is a trite principal of our law that expert evidence is a post ex facto reconstruction of the collision and does not carry the same evidential weight as the direct evidence of credible eye witnesses.  (See Van Eck v Santam Insurance Co Ltd 1996 (4) SA 1226 (C) at 1229H-1230A.) Expert testimony can nevertheless serve as a useful tool or guide against which the reliability of the testimony of eye-witnesses can be checked and tested.  (See Van der Westhuizen  and Another v S A Liberal Insurance Co Ltd 1949 (3) SA 168 (C) at 160 and which was quoted with approval in Diale v Commercial Union Assurance Co of SA Ltd  1975 (4) SA 572 (A) at 576H-577A.)     

10.	Prof Dreyer, an applied mathematician, who was called by plaintiff, reconstructed two scenarios of the collision on the basis of certain assumptions, measurements and calculations.  The first scenario was based on the fact that the insured driver saw children on the western side of the road when he was approximately 50 meters away from them and was in the process of approaching them.  

11.	The second scenario was based on the fact that Lejade, in attempting to cross the road from west to east, ran into the path of the approaching truck after emerging from behind the second passing car travelling from south to north.  Mr Van der Vyver, a consulting mechanical engineer, who was called by defendant, in his initial report reconstructed the latter scenario.  In his testimony before the court, he gave evidence and also commented on the first scenario.  In both scenarios the experts postulated various matrixes.  In respect of the first scenario, the two experts were in substantial agreement with regard to the assumptions, measurements and calculations.  In respect of the second scenario, the essential differences in their opinion revolved around the certain assumptions made by them.  I will revert to them later in this judgment.

12.	Dr Van der Spuy, a trauma expert, who was called by plaintiff, testified that on the basis of the injuries sustained by Lejade, he concluded that the front right side of the truck collided with her.  Prof Dreyer agreed with that conclusion.  Mr Van der Vyver testified that although he could not disagree with that conclusion, the possibility that the truck drove over Lejade without the wheels touching her, cannot be excluded.  Both Dr van der Spuy and Prof Dreyer testified that in such an event Lejade would have suffered far more serious injuries.  After the conclusion of the evidence, the parties were ad idem that Lejade was struck by the front right side of the truck.      

The Law:
13.	It is a trite principle of our law that a motorist approaching children who are in or near a road, even if they are momentarily obscured, has a special duty of care and vigilance towards such children less any harm befall them.  Such duty arises from the tendency of children to become engrossed in their play and darting unheralded across the road without thinking or looking and their propensity to heedless, irrational and impulsive conduct or action. 

14.	In Santam Insurance Co Ltd v Nkosi 1978 (2) SA 784 (A) Corbett, JA (as he then was) set out the proposition at 791F as follows:
“The true position, it seems to me, is that, depending on the circumstances, a motorist may be bound to exercise special care and vigilance not only towards children whom he sees, or ought reasonably to see, are present in or near the street but also towards hidden children whose presence there he ought reasonably to foresee or anticipate.  Whether this duty towards hidden children arises and, if so, what particular steps, or course of action, the motorist will be obliged to take to guard against injuring them, must depend upon all the facts of the particular case.  And because the children are hidden, the duty, when it arises, may demand even greater caution from the motorist by reason of the very fact that, possibly until a late stage,  he cannot see them and consequently is unable to gauge such matters as their apparent age, their awareness of his approach, their future intentions, etc.”   

15.	In an earlier decision, Holmes, JA in Levy N O v Rondalia Assurance Corporation of SA Ltd 1971 (2) SA 598 (A) at 599H described the proposition in the following terms:
“As a general proposition it is well settled, and it accords with humanity and common sense that a motorist approaching young children near the edge of the road ought to drive with a degree of special care and vigilance because of their tendency sometimes to dash heedlessly across the road.  To hold otherwise would be to put an old head on young shoulders and to assume that they will look before they leap.  But the rule must not be applied as a fixed principle without reference to the facts. The foreseeability of reasonably possible collision, and the degree of special care required, will vary according to the particular circumstances of each case, for example, the visibility of the children;  their apparent age;  their proximity to the edge of the road and to the path of the vehicle;  their immobility or liveliness;  the indications, if any, of an intention to cross the road; the extent of their supervision by a responsible person;  the apparent awareness of the latter, and of the children, of the approach of the motorist;  the available width of the road; and the stopping power of the vehicle in relation to speed, brakes and road surface.  Such factors (and the list is not exhaustive) are interrelated and not individually decisive. Their cumulative effect must be considered.  Similarly, the particular circumstances will dictate the reasonable steps in relation to matters such as hooting, berth, swerving, slowing down or pulling up, with a view to guarding against the occurrence of collision, the reasonable possibility of which was foreseeable.  The decided cases are legion.” 

16.	The above passages in the two cases mentioned, were quoted with approval in a full bench judgment of this division in  Road Accident Fund v Landman 2003(1) SA 610 (C) at 615F-616B.

Evaluation:
17.	With the above factual and legal backgrounds, the court will proceed to evaluate the evidence on the basis of the issues in dispute.  The first issue is whether the insured driver kept a proper look out. 

Whether the driver kept a proper look out:
18.	The insured driver who was driving from north to south noticed about four unaccompanied children on the western side of the road when he was about 50 meters away.  Two of the children, according to April, were on the pavement and two were playing on the side of the road.  She described them as lively (“woelig”). The insured driver testified that, besides the children that he had noticed on the western side of the road, he also observed certain adults and children who were walking on the eastern pavement of the road.  He testified that he not only had to keep the pedestrian under observation, but he had to focus his attention on the road for approaching traffic. 

19.	It is common cause that Lejade was one of the children who was playing on the western side of the road surface and the plaintiff and her other daughter were amongst those on the pavement of the eastern side of the road.  It is also common cause that two vehicles at the time were approaching from the opposite side of the road namely, from south to north, which the insured driver also had to keep under observation.  He admitted that he did not keep the children on the western side of the road under observation all the time. 

20.	Under the prevailing circumstances, the insured driver had a special duty towards the children on the western side of the road.  Firstly, because there were no adults supervising such children, secondly, they were small pre-school children and thirdly, at least two of them were playing in the road.  The insured driver, as a reasonable motorist who ought to have been aware of the propensity of children to act irrationally, suddenly, impulsively and irresponsibly, should have foreseen the possibility of the children darting across the road, either before the two cars had passed them or afterwards.  He had a special duty to keep them under observation and take necessary precautionary measures, to avoid a collision in the event of them running across the road in his pathway.  

21.	Adv Potgieter SC, for defendant, argued that one must be careful not to place too high a duty on motorists when it comes to children.  He, however, conceded that a driver must be extra careful when he sees children.  Our courts have consistently described that duty as a special degree of care and when children are momentarily obscured, it calls for greater caution from the motorist.

22.	The insured driver testified that he did not see Lejade emerging from behind the second passing car.  He heard a thud or a bump after he passed the point where he had seen the unaccompanied children on the western side of the road.  He then applied brakes and slowly came to a standstill approximately 35 meters away. He then looked in his rear view mirror and saw a child lying in the road.  He admits that he did not apply brakes before he heard the thud.  This is confirmed by April. 

23.	Plaintiff testified that she saw two cars approaching and told Lejade to wait for the vehicles to pass before crossing the road.  She saw the approaching truck, but did not expect it to be in front of them so quickly.  Adv Potgieter SC tried to apportion moral blameworthiness to her, but she is not on trial.  Nor does contributory negligence apply in this instance.  Moral blameworthiness is therefore a non sequitur.  Adv Laubscher  who appeared on behalf of defendant, described the proposition as a “red herring”.   

24.	Both Dreyer and Van der Vyver agreed, according to their expert opinion based on their respective calculations, that the insured driver ought to have seen Lejade emerging from behind the passing vehicles.  Where they differed, however, was on the question of whether the insured driver had sufficient time to avoid the collision. Dreyer opined that in addition to the 1.5 seconds perception reaction time required, he had .6 seconds to take avoiding action such as hooting, braking or swerving.  According to the insured driver he did not take any of these evasive actions.

25.	Van der Vyver, on the other hand, had opined that the insured driver had only 1.5 seconds for perception reaction time and had no time left to take evasive action. The difference in their calculations was based on the speed at which Lejade could run across the road.  Dreyer assumed the speed at 1.5 meters per second while Van der Vyver assumed a speed of 2.99 meters per second.  Van der Vyver  described this as the worst scenario.  He, however, conceded that a more realistic figure could have been 2.1 meters per second.  This would have given him a fraction of a second to take avoiding action.

26.	For the present purposes, it is not necessary to resolve the different assumptions made by the experts with regard to the speed with which Lejade moved from west to east.  The experts agreed that on the basis of the admission by the insured driver that he was aware of the presence of the children when he was 50 meters away, the collision was not a case of a sudden emergency. 

27.	The only reasonable inference that can be drawn from the fact that the insured drive did not see Lejade emerging from behind the passing cars is either that he had failed to keep a proper look out or he had driven too fast, or both.  I now turn to the second issue, namely whether the insured driver drove at an excessive speed in the circumstances.

Whether the driver drove at an excessive speed:
28.	The insured driver said that he was travelling about 45 kph at the time when he saw the children.  He slowed down to approximately 35 kph by taking his foot off the accelerator and activating his exhaust brakes.  This is confirmed by April who heard the droning of the engine of the truck as if it was slowing down as it approached.  The insured driver conceded firstly, that driving an empty truck on a wet road it was more likely to experience the locking of the brakes;  secondly, that he would have to travel at about 20 kph to brake safely in a case of emergency and thirdly,  that he had failed to reduce his speed to that level.  Plaintiff, when asked how the insured driver drove, she replied: “hy ŉ bietjie vinnig gery”. She could not estimate the speed.  Her testimony of how fast the insured driver drove, however, is a matter of perception and is open to conjecture.

29.	Both Prof Dreyer and Van der Vyver agreed that the insured driver, became aware of the presence of the children when he was approximately 50 meters away and if he had adjusted his speed to 25 kph or below, he would have been able to avoid the collision.  Firstly, because he would have been able to stop before reaching the point of impact and secondly, because Lejade would have been able to pass the front of the truck before it reached the point of impact.    

30.	Adv Potgieter SC contended further that it could not be expected of traffic to come to a standstill when a motorist sees children in the street.  As a general proposition the contention might have merit, but in certain special circumstances it might be necessary to bring traffic to a halt in order to avoid harm.  In deciding whether a particular cause of action is appropriate, the diligens paterfamilias might have to weigh the seriousness of the harm, should it occur, against the inconvenience of bringing traffic to a standstill.  For parity of reasoning see Herschel v Mrupe 1954 (3) SA 464 (A) at 477A-C.  In the present case the insured driver testified that there was no traffic following him.  In that case if he had to bring his truck to a standstill, it would have been a small price to pay to avoid any potential harm. 

31.	On the conspectus of the evidence, the only reasonable inference the court can draw is that the insured driver drove too fast in the circumstances.  I now turn to consider the third issue, namely, whether the insured driver took any or adequate steps to avoid the collision.

Whether the driver took any or adequate steps to avoid the collision:
32.	The insured driver, who the court regards as an honest and credible witness, made a number of crucial admissions.  The first is that he had failed to regulate his speed to a limit which would have enabled him to bring his vehicle to a standstill within his range of vision in the case of an emergency.  The second is that he had reduced his speed from 45 kph to 35 kph on observing the children when he was aware that a safe speed to drive his truck in such circumstances was at 20 kph.  The third is that he had failed to hoot as he approached the point in the road where he had seen the children to warn them of his presence.

33.	Van der Vyver conceded under cross-examination that he did not make any calculations as to what the position would have been if the insured driver took precautionary measures when he saw the children 50 meters way.   He also readily conceded that the driver could have slowed down, stopped or could have done a number of other things to avoid the collision.  Prof Dreyer said that he could have hooted, swerved or applied his brakes.  It is common cause that the insured driver on his own admission took none of these evasive actions.

34.	Adv Potgieter’s argument that hooting would have made no difference is without merit;  I believe that if timeous warning of his approach was given, two things could have happened.   The children could have heard the hooter and decided not to cross the road at that point in time or plaintiff could have heard the hooter and warned the children not to cross the road at that stage.  Both were real possibilities. The insured driver as a reasonable driver, whose visibility of the children was momentarily obscured by the two approaching cars, should have taken the elementary precaution of hooting as he approached the point in the street where he had observed the children on the western side of the road. 

35.	I am of the view that in the particular circumstances of this case, that if the insured driver had exercised greater caution by taking the necessary evasive action or actions, such as regulating his speed, or hooting, the collision could have been avoided.

Findings:
36.	In the premises I conclude that, on the facts of this case, the insured driver, has failed to exercise that degree of care required of a reasonable motorist in his position and to take the necessary evasive action.  He had failed to keep the children, on the western side of the road, under constant observation;  he had failed to reduce his speed adequately before approaching the place where he saw the children and he had failed to hoot to give a warning of his approach.  In the circumstances I find that the insured driver was negligent.

37.	Adv Potgieter SC submitted that the cause of the collision was not any negligence of the insured driver, but the tragic miscalculation of the plaintiff in calling Lejade to cross the road and her subsequent dash from behind the passing cars right into the right front corner of the oncoming truck.  I disagree.  I am satisfied that the insured driver was negligent in the respects described above and that his negligence was the cause of the collision. 

Order:
38.	In the premises, defendant is liable to plaintiff for the damages which can be proven arising from the collision and costs.     

									…………………………….
										 E  MOOSA