JUDGMENT
FRANK,
J.
: The
plaintiff's vehicle was damaged in a
collision
with another vehicle on 5th February, 1994. As a result she suffered
damages to the tune of N$ll 817.05. She issued summons against the
defendant to recover her damages claiming that the collision was
caused by the sole negligence of the defendant. The defendant in
turn issued a third party notice to the driver of plaintiff's
vehicle at the time of the collision averring that this driver's
negligence was the sole cause of the collision.
The
collision occurred during the early evening in Ausswartz Street at a
point close to where Ausswartz Street crosses Rooivalk Street. At
this intersection there is stop signs necessitating traffic from
Ausswartz Street to stop prior to proceeding on its way. If one
approaches this intersection from the east driving in a westerly
direction one passes over a small hill and descends fairly straight
down the hill to the intersection and the stop signs. Ausswartz
Street is a tarred road with a solid barrier line
demarcating the areas reserved for the dual traffic it allows in
opposite directions. On the shoulder on either side is a
yellow barrier line prohibiting traffic to enter from the sides.
When travelling in a westerly direction and after clearing the hill
there is a residential area to the north. The houses do
not however stretch up to the shoulder of Ausswartz
Street. There is an open unbuilt area immediately adjacent to
Ausswartz Street. At the time of the collision there was a small
road created by persons coming from the residential area which
ran up. to the northern side of Ausswartz Street. This
was not a proclaimed road but was tracks made on the open surface by
persons who unlawfully gained access to Ausswartz Street in
this manner. The witnesses referred to this road as a false
road. Some time subsequent to the collision an embankment was
created at the place where this road entered Ausswartz Street to
prevent traffic from using this road. If one turns on to
Ausswartz Street from this false road to travel in a
westerly direction one crosses the yellow barrier line and the
solid barrier line demarcating the street into the two sections
indicating the respective areas reserved for the normal dual traffic
in opposite directions.
According
to the driver of plaintiff's vehicle he was proceeding in a westerly
direction along Ausswartz Street when he noticed lights appearing
from his rear followed by screeching brakes and the next moment he
was hit from behind with such force that the back of his seat broke.
After he had come to a standstill he was confronted by the defendant
who wanted to know why he turned in in front of him which he denied.
He says that defendant was driving at an excessive speed. On his
version defendant crossed the hill at an excessive speed, saw the
vehicle of plaintiff too late and thus drove slam into the back of
it.
According
to the defendant he was proceeding in a westerly direction along
Ausswartz Street at a speed between 80 and 90 kph which was
admittedly above the legal limit of 60 kph. As he crossed the hill
he saw a car approaching Ausswartz Street from the false road. He
assumed this car would stop before entering Ausswartz Street and he
continued on his way. This car did not stop and turned into
Ausswartz Street across both the yellow and centre barrier lines to
also proceed in a westerly direction directly in front of him. He
hooted, immediately applied his brakes but it was too late and he
struck this car from behind. He confronted the driver of the other
car for turning onto his path and the attitude of this driver was
that they should settle the matter in an amicable fashion. A person
who was a passenger in his vehicle at the time in essence supported
the version of defendant.
It
is self-evident in my view that if the version of the driver of
plaintiff's car is to be accepted then there is no question that
defendant's sole negligence caused the collision. Conversely if the
defendant's version is accepted I
am
of the view that this establishes that the collision was caused
solely due to the negligence of the driver of plaintiff's
vehicle. This latter conclusion needs some amplification.
The question of defendant's prior knowledge of the area
where the collision occurred was not canvassed with him at all
during his evidence. I am thus bound to accept that he was
not aware of the false road prior to the collision and the
inherent dangerous situation it might have created and which he
should have foreseen. Likewise the manner in which the car
allegedly on the false road approached Ausswartz Street was not
taken up with him. I must therefore also accept that the manner of
approach of this car was not such as to arise any suspicion
that it would not stop. He was thus entitled to assume that
this vehicle would stop (Griffiths
v Netherlands Insurance Co of SA Ltd,
1976(4) SA 691 (A) at 697 B - C.) Because of this the
fact that he drove at a speed above the legal limit is of no
consequence as this speed did not contribute to the eventual
collision nor can it be said that the speed in itself
constituted negligence. To suggest that he should have swerved
to his right across the barrier line onto the lane for oncoming
traffic to avoid the collision is not acceptable. In
the split second he had to react his instinct made him
attempt to go left which is normally the safer route and his failure
to first see whether there was indeed oncoming traffic cannot,
in my view, be said to constitute negligence in the
present matter. This failure was the kind of error of judgment
(if it was an error at all) which any reasonable motorist
could have committed faced with a sudden emergency.
(Griffiths
case, supra,
at 698 F and Mfihlo
v Port Elizabeth Municipal Council,
1976(3)
SA
183 (SE) at 184 G - 185 F.)
The
third party is the father of the plaintiff. According to plaintiff
her father stayed with her at the time but despite this she had no
knowledge what her father did that afternoon. According to the third
party he was on a round delivering vegetables. It is highly unlikely
that plaintiff would not have known about this. According to the
third party there were vegetables strewn on the road at the location
of the collision. None of the other witnesses saw this and this can
also not be seen on the photographs taken shortly after the
collision. The third party explained his route that afternoon to
effect the vegetable deliveries so as to establish that he was not
in the vicinity of the false road and thus did not use it. He said
he still had the documentation available relating to the deliveries
to corroborate his route. After an adjournment of nearly two months
he explained that these documents got lost and he could no longer
find it. Whether this is the truth or not is hard to tell. Apart
from these general criticisms the third party did not make a bad
impression on me.
As
already indicated defendant and his witness in essence corroborated
each other. None of them made a bad impression on me either. This
does not mean their evidence is beyond criticism. Defendant was
clearly not open with the Court as to why he removed his vehicle to
his house from the scene and why he waited so long to report the
matter to the police. The defence witness was clearly biased in
favour of the defendant as was apparent from his
lie to the defendant's insurance company to the effect that
defendant's speed was within the legal limit at the time.
As
the demeanour of the witnesses cannot play any part in deciding this
matter it is only the probabilities that need be considered. In my
view the probabilities favour the version of the defendant for the
following reasons:
(i) The
damage to the back of plaintiff's vehicle is
consistent with both
the versions of defendant and the
third party;
(ii) the
point of impact is at a point consistent with the
version of the
defendant, i.e-. on the left side of the
road if one faces in a
westerly direction just past the
point where the false road joins
Ausswartz Street. It
is unlikely that this is a pure coincidence,
especially
when considered in conjunction with the other
factors
relevant to the probabilities;
(iii)The
brake marks on the road is consistent with both versions;
(iv)
It is unlikely that defendant would, with nothing obscuring his
view, drive into the rear of the vehicle of the third party whose
vehicle must have been visible for some distance. This is even more
so if regard is had to the relatively short distance of the brake
marks; and
(v)
It is common cause that defendant immediately after the collision
confronted the third party and wanted to know from him why he turned
into Ausswartz Street in front of him. It is highly unlikely that he
would have done this if it did not happen. I find it incredulous
that he would at an instant, in the heat of the moment, come up with
a false version that was consistent with all the objective facts,
i.e. point of impact, existence of a false road, position of brake
marks and length of brake marks.
In
the result I issue the following order:
Plaintiff's
claim against defendant is dismissed with costs;
It
is declared that the third party is solely liable for the full
extent of plaintiff's damages;
The
third party is to pay plaintiff's costs.
Cloete v George (I .3349/96) [1996] NAHC 33 (25 November 1996);