IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
CASE NO. 6293/2008

In the matter between: 
GERALDINE OCTOBER					PLAINTIFF

And

Coram								DLODLO, J 
Judgment by							DLODI.O, J 
Counsel for the Plaintiff						ADV. I.J. TRENGOVE
Instructed by							Jonathan Cohen & Associates

								107 St George's Mall 
								CAPE TOWN 
								Tel. no. 021 422 5270 
								(Ref. J.Cohen)

Counsel for the Defendant					ADV. C. BISSCHOFF

							Ground Floor, Waalburg Building
							28 Wale Street
							CAPE TOWN
							TEL. no. 021 424 21II
							(Kef.     Abdurahman)

Date(s) of Hearing					07, 8 & 9 SEPTEMBER 2010

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
REPORTABLE 
CASE NO. 6293/2008

In Ihc matter between:
GERALDINF OCTOBER	PLAINTIFF

And

THE ROAD ACCIDENT	DEFENDANT

JUDGMENT DELIVERED ON WEDNESDAY, 22 SEPTEMBER 2010

DLOPLO.J
[1] During the earl) hours of the afternoon of 9 September 2003 and on Angela Street, Valhalla Park in Cape Town area, an accident occurred when a motor vehicle (a truck) owned by Marlow Transport, driven at the time by one Marlhinus Le Roux, hit and ran over a cyclist known as Bradley October. The latter was an eleven (11) year old boy at the time. The boy was seriously injured in the said accident. The trial before me concerns the merits only. At the start of the trial the parties stipulated that the records in Exhibit "A" (the Plaintiffs bundle of documents) would be admitted on the basis of that they were what they purported to be, without necessarily admitting the contents thereof. The Defendant in its Plea does not deny that the accident took place and that Bradley sustained serious injuries. The Defendant maintains that the collision was caused due to the exclusive negligence of Bradley who is said to have been negligent in certain specified respects. In addition (as far as the injuries are concerned) the Defendant pleaded that such injuries were caused by Bradley himself in that he was under an obligation to wear a crash helmet but that he failed to do so in circumstances where he was able to do so and where the wearing of such crash helmet would have materially reduced the nature and severity of the injuries sustained by him. Mr. Trengove appeared for the Plaintiff and Mr. Bisschoff appeared for the Defendant. What appears hereafter represents a summary of evidence led in this matter.

PLAINTIFF'S CASE
MRS. GERALDINE OCTOBER

MR. OWEN MEYER

[7] At some point "law enforcement" arrived in a private car with a blue light on the roof, and told the insured driver to move the truck onto the pavement. They then escorted the ambulance to the hospital. The "law enforcement" were not members of the SA Police but City Council officers who check on illegal dumping, report burglaries etc. Mr. Meyer strenuously denied that the insured driver had driven a white "bussie en sleepwa", and insisted it had been a blue truck. (This was confirmed by the insured driver's identification of Exhibits "E" and "F*\) Mr. Meyer strenuously denied the insured driver's version that Bradley had driven into the side of the truck. Mr. Meyer could not confirm or deny that the insured driver had removed the bicycle from under the truck wheels. He said it was possible that the insured driver could have called the ambulance and police, but said it was also possible that they might have been called from public telephone at the shop in the house next to where Bradley had been hit.

[9] The truck stopped some distance further along Angela road. The driver came to where Bradley was, and Mr. Bessick recognized him as a man known to him in the neighbourhood. Earlier, he had passed the man's house on Louise Street where he had seen the same truck and the man drinking beer outside his house. Mr. Bessick insisted under cross-examination that Bradley had not been hit by a white "bussie en sleepwa", and that it had been a blue truck similar to the truck on photos 18 and 19. When told that Mr. Le Roux denied he had been drinking, he said he had also smelled him at the scene of the collision. Mr. Bessick denied the insured driver's version that Bradley had driven into the side of the truck. Bradley had been sitting on his bicycle when he was hit. Mr. Bessick was asked in cross-examination why he had described the truck as white, in paragraph 5 of his statement (page 19 of Exhibit A). He said he had said the truck was blue. Under re-examination, Mr. Bessick said that he was Afrikaans speaking, that his English was poor, and that he had spoken in Afrikaans to the attorney who had drafted his statement. The statement, which was in English, was later mailed to Mrs. October's house, where Mr. Bessick signed it without reading it.

PROFESSOR TOM DREYER
[10] Professor Dreyer was the Plaintiffs fourth witness. He is a qualified accident reconstruction expert. He confirmed the two (2) reports he had drafted in this matter. Professor Dreyer explained that his first report contained erroneous conclusions because he had made factual assumptions which later turned out to be inaccurate. They had partially been obtained from a police plan and report which were not accurate, and he had also misunderstood certain witness statements about the place where Bradley had stood when he was hit. He obtained the correct facts when he visited the scene of the collision and it was pointed out to him where Bradley had stood, and he took measurements at the scene.

[11] Professor Dreyer said that accident reconstruction testimony could not definitively resolve the issues before the Court, and that the essential issue was a factual one which depended on conflicting testimony by the parties* witnesses. He made the following observations:
a)	Dreyer itemized important differences in the insured driver's first and second statements.
He and John Craig, the defendant's reconstruction expert, did not differ fundamentally in their conclusions.
b)	They also agreed that the police plan and report contained inaccuracies.
Craig did not seem to give much weight to the insured driver's second statement, which differed materially from the first statement.

(f)	If Bradley had been sitting where the plaintiff alleges he did, his bicycle may have been pulled from under him and if he did not make contact with the side of the truck, he could have been expected to be found in the road (somewhat eastward from the point of impact as Mr. Meyer had described).
(g)	If Bradley had driven into the truck, he would likely have come across the handle bars and "bounced back" because of the "reslitusie koeffisient", or could have slipped down the side of the truck, and would in both cases have been found in the vicinity of the sidewalk where he had been sitting.

THE DEFENDANT'S CASE MRS. AVRIL WANNENBERG
[12] Mrs. Wannenburg was Bradley's second grade teacher at Valpark Primary school. (Her testimony was interposed with leave of the court.) She testified that the rules of the road were taught to learners from grade 1, along with lessons on various types of safety including safety at home. Rules of the road included looking right, then left, then right again before crossing the street. Such lessons were continued every year up to grade 7. Under cross-examination, Mrs. Wannenburg said there were more than 40 pupils in Bradley's class, and they were taught the rules of the road every year up to grade 7 in the hope that the rules would eventually sink in.

MR. MARTHINUS LE ROUX (the insured driver)

COMMON CAUSE FACTS
[16] The Defendant (as pointed out earlier on in this Judgment) admitted paragraph 4 of the Particulars of Claim, that is, the date and place of the collision, the identity of the insured driver and the vehicles involved. The Defendant's allegation that Bradley was negligent was based on the insured driver's first statement to the Road Accident Fund. It is common cause that Mr. Le Roux admitted in cross-examination that what is contained in that first statement was mere speculation.

[17] The Plaintiffs eye witnesses, Mr. Meyer and Mr. Bessick, placed Bradley as sitting on his bicycle around the corner in Angela Street (Exhibits "Al" and "A6"). The insured driver (Mr. Le Roux) placed Bradley at a very similar place, that is, the truck had just passed Andrew Street when he heard the sound of the impact. It was not denied that Mr. Meyer and Mr. Bessick had been on the scene and that they were positioned as they testified and thus had (or must have had) clear views of the scene of the collision. Mr. Le Roux (the insured driver) admitted that he never saw Bradley before the collision and that he saw him for the first time only after he had stopped the truck and got out. Mr. Le Roux also admitted that he had no idea where Bradley was when he was run over. He also had no idea what part of the truck had hit Bradley or the bicycle. He admitted that his first report to the Road Accident Fund, that Bradley had failed to heed the "stop sign", was nothing but speculation on his part.

EVALUATION OF EVIDENCE AND APPLICATION OF RELEVANT LAW

"A driver must leave a sufficiently wide berth between his vehicle and any other road-user he is passing. What is a reasonable clearance must depend on the circumstances of each case. A factor oj importance is the degree of lateral movement to he expected from the vehicle being passed. In the case of two wheeled vehicles, and horse drawn vehicles a greater degree of lateral movement must be expected than in the case of four wheeled motor vehicle and the driver must make allowance therefor. Where the road surface is rough or the cyclist is a child, a pedal cycle should be allowed a greater clearance than otherwise. Clearance and speed are related factors: the higher the speed, the greater should be the clearance; the
smaller the clearance, the lower the speed should be	 Before
overtaking another vehicle a driver is under the duty to satisfy himself that it is safe to do so. In discharging the duty the main concern of an overtaking driver travelling on an single carriage-way is for:
(a)    	
(b)    	

Most certainly the insured driver had the duty to pass Bradley in such a manner that he did not place his safety in danger. Indeed, that included giving Bradley a sufficiently wide berth so as to ensure that the vehicle he drove did not hit Bradley at all.

I need to emphasize that a driver who drives in a place where there is a likelihood of the presence of children whether on bicycles or on foot, must at all times be specially alert and exercise a special degree of care. This holds true even if the likelihood of the presence of children in that area is somewhat remote.

'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 tliat, 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 intention, etcetera.

I fully associate myself with the above exposition of our law in this respect.

[22] Mr. Meyer and Mr. Bessick gave the Court a chronological account of what happened iniront of their eyes. I did not get an impression that they came to Court to deceive the Court. These are lay persons who have no connection whatsoever with either the October family or Mr. Le Roux. They were credible and gave to the Court a reliable and logical account of what was within their knowlegde. Where they did not know, they said so. Scenarios they did not see, they told the court similarly. I was very much impressed with these eye witnesses. I can safely rely on what they told me as far as this accident is concerned.

[23] However, the same cannot be said about Mr. Le Roux (the insured driver)- His testimony that the bicycle did not have brakes was not plausible. He allegedly saw the bicycle immediately after the collision, in a severely mangled condition. Mrs. October's testimony was that the bicycle had been purchased new in May 2003 that by all accounts it was in a good condition including the brakes, and that after the collision she found the bicycle at home broken into two pieces held together by the brake cable. In any event, it is highly improbable that immediately after the accident Mr. Le Roux checked the brakes of a bicycle. He did not tell me how he did that and why would he do that. I would imagine that any reasonable man's mind at that stage would be occupied by trying to render assistance to the injured Bradley.

[24] Mr. Le Roux implausibly alleged that Bradley was lying next to the vehicle when he stopped. That would have meant Bradley would have to have been projected forward by the impact by at least some 30 metres. Mr. Meyer and Mr. Bessick testified that Mr. Le Roux had only come to a stop at the speed bump some 50 metres further down Angela Street. Mr. Le Roux denied that his vehicle had proceeded for at least 30 metres after the collision. Professor Dreyer testified (and confirmed John Craig's report paragraph 5.2) that at 45 kmh, if the driver had braked heavily it would have taken the vehicle a minimum of 32 metres to come to a stop. Professor Dreyer said if the trailer did not have its own brakes, the distance would have increased to 39 metres.

[25] Yet, Mr. Le Roux alleged that when he later removed the vehicle from the road, he pulled it forward to the right of the road to where the green fence is (photo 2, page A7). Photos 1 and 16 show that the green fence was very near to the collision, next to the building in front of which Bradley was hit (opposite the road from where Bradley was sitting on his bicycle). Mr. Le Roux further denied that there were any pedestrians in the comer area where Bradley had been sitting. That was in contrast with Mr. Bessick's unchallenged testimony that Bradley had sat there on his bicycle talking to friends. Mr. Le Roux's version was also not plausible in the light of the fact that there was a shop where Bradley sat on his bicycle. Mr. Le Roux initially stated that he had left working at Marlow Transport after the collision because the owner, Mr. Redelinghuys, had left when the business was taken over by another owner. He was then confronted with a notice of a disciplinary hearing, dated 23 March 2004, under cover of a recent letter by Mr. Redelinghuys (Exhibit G). The 2004 notice contained eight charges of misconduct against Mr. Le Roux. and noted that he had not appeared at the hearing. He responded that by then he had been fired, yet admitted his signature on the notice.

[27] Mr. Meyer and Mr. Bessick testified that they smelled alcohol on Mr. Le Roux at the scene of the collision. His response that the "policemen" made nothing of it is not a good answer. No such policeman testified, and by law a policeman would only have had the right to take action if Mr. Le Roux had been under the influence of alcohol, which Mr. Meyer said he could not tell. Nobody suggested that Mr. Le Roux was under the influence of alcohol. The length of time that Mr. Le Roux spent at his house is not consistent with just picking up bread. When Mr. Bessick walked past the house, Mr. Le Roux was already there. Mr. Bessick then walked all the way to the corner of Angela and Andrew (at least ten minutes), stood there talking for a further few minutes, and only then did Mr. Le Roux come driving along when it should have taken him but a minute or two to drive from his house to the scene of the collision. Mr. Le Roux did not produce the names of any eye witnesses to the Road Accident Fund, to corroborate his version of events. If they could corroborate his version, the identities of the two (2) co-employees could easily have been obtained from Marlow Transport.

[29] It concerned me though when Mr. Bisschoff submitted that the Court must find the existence of contributory negligence on the part of Bradley. 1 find it strange, what more did Mr. Bisschoff expect from this child to have done? Bradley was not on the road, nor was he in the process of cycling on when the accident took place. On the contrary, he was stationary outside Angela Street with his foot on the kerb. I am of the view that Bradley took sufficient precautionary measures to ensure that he did not endanger his life. If Mr. Le Roux adhered to the duty of care imposed on him by our legal system, no accident would have occurred. It appears to me that Mr. Le Roux's mind was not at all in the driving of the truck. That is why he told the Court that there were no persons in and around Angela Street. This he maintained despite the clear and uncontradicted evidence of Mr. Meyer and Mr. Bessick. There is a shop in the vicinity of the accident. Apart from the fact that ordinarily the residential area is ever busy with persons moving up and down the street, the presence of a shop around the area should ordinarily exacerbate the situation. It is my finding that Mr. Le Roux is not truthful in this regard either.

"Moreover, one does not draw inferences of negligence on a
piecemeal approach. One must consider the totality of the facts and
then decide whether the driver has exercised the standard of conduct
which the law requires. The standard of care so required is that
which a reasonable man would exercise in the circumstances and
that degree of care will vary according to the circumstances. In all
cases the question is whether the driver should reasonably in all the
circumstances have foreseen the possibility of a collision. "
The ultimate issue is whether the facts established negligence, not
whether they show that the driver in question (Mr. Le Roux in the
instant case) failed to keep his speed within the range of his visions.

•
767 (AD) at 772 F-H. Having had regard to the totality of the proved facts in the instant matter, 1 come to the conclusion that Mr. Le Roux failed to exercise the standard of conduct required of him by the applicable legal principles.

ORDER
[32] In the circumstances, I make the following order:
(a) It was the insured driver's sole negligence that caused the accident in which Bradley sustained serious injuries.
(b) The Defendant is liable to compensate the Plaintiff by payment of those damages which the latter shall have proved.
(c) The Defendant shall pay the Plaintiff s costs of this action.