Masondo v Motor Vehicle Accident Fund (NULL) [2002] SZHC 43 (06 June 2002);

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SWAZILAND HIGH COURT

MASONDO Mzamo Nelson

Plaintiff

Vs

THE MOTOR VEHICLE ACCIDENT FUND

Defendant

Civ. Trial No. 2884/1999

Coram SAPIRE, CJ

For Plaintiff: Mr. S. Nkosi

For Defendant Mr. H. Currie

JUDGMENT

(06/06/2002)

This is a relatively uncomplicated matter and the evidence is fresh in my mind. I give judgment now on the question of negligence, which is the only issue presently before me.

The plaintiff is suing for damages arising from an accident that took place between a vehicle driven by him and a vehicle driven by another insured driver who was approaching from the opposite direction on what before the completion of the highway used to be Mbabane-Manzini road.

The point of collision has been identified and demonstrated, not only on a sketch plan which was placed in evidence by an investigating police officer but also at an inspection in loco which I undertook at the joint request of the parties.

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The plaintiff was the driver of SG 461 PO a Police Vehicle and the plaintiff himself is a Policeman. The other vehicle involved was NUR 11737 of which one Rudolf van Niekerk is the driver. The plaintiff and van Niekerk both had passengers in their vehicles and not only were the drivers but the passengers were also injured and there was a fatality.

At this stage only the question of fault is to be decided in relation to plaintiff's claim. The plaintiff, supported by the evidence of his passenger, said that the accident took place because the oncoming vehicle had gone over onto the incorrect side of the road, that is on the plaintiff's side of the road, in order to overtake a vehicle travelling in front of the oncoming vehicle also travelling from Manzini towards Mbabane. The plaintiff says and is again supported by his witness that when he realised or was faced with the oncoming vehicle approaching him at high speed he took what he considered to be the only avoiding action and that was to turn right and that means that he would go towards what for him was the incorrect side of the road. Indeed the position of the vehicles after the accident it was common cause was that the plaintiff vehicle came to rest on the far side of the right hand side of the road viewing it from the direction of Mbabane to Manzini while the driver of the oncoming vehicle also found its resting place on the opposite side of the road. The damage to the vehicles makes it quite clear that these vehicles came into contact on the left hand side of each while they were driving on the right hand side of the road. The pictures presented by the contending side are mirror images of the account of the other. Each driver blames the other for overtaking and in doing so going to the wrong side of the road.

The road itself is divided in such a way that there is double unbroken line in the middle. Between the double unbroken lines there is a broken line. It is clear that this is an area where there should be no crossing over from one side to the other at all. The road markings make it to anybody that overtaking involving a movement to the wrong side of the road is highly dangerous.

On the plaintiff's side however, there is a double lane of traffic permitting two streams of traffic to travel in the same direction at the same time without crossing this middle line and indeed what I have called the middle line is not really a middle line at all because it is on the road approximately two thirds given to traffic travelling from Mbabane while one third of the road is available to traffic travelling towards Mbabane.

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All the witnesses who gave evidence did so in a satisfactory manner as far as their demeanour was concerned and nothing can be decided on such a basis alone. But there are certain features that will make one version more acceptable than the other. The first of these is physical in itself that is the break marks that are said to have been caused by the police vehicle. The question of break marks has been the subject of criticism by the defendant's counsel and indeed the evidence of the police officer that testified to the break marks could be interpreted as not being entirely consistent. I am satisfied however that she was giving her evidence honestly and that the question of her being biased in favour of the plaintiff who was a colleague of hers can be discounted. The parties were unknown to each other, so I understand, and there was certainly no relationship between them by which the police officer may have been inclined falsely to favour her colleague's version.. The policewoman was quite adamant that the break marks started in the centre of the inner lane road which would place the plaintiff's vehicle at the commencement of breaking on its correct side of the road. The break marks traverse the side of the road towards what has been pointed out and accepted as the point of impact and thereafter the break marks seemed to have stopped. If it is acceptable, as I think it is, that these marks were caused by the police vehicle then it means that at the time when it commenced breaking it was on its correct side of the road. Why then should the driver of the police vehicle have started breaking at that point? The only answer to that can be it was the oncoming car which was on the wrong side of the road at that point. This physical evidence in my view supports the plaintiff's version and it goes a long way to make the plaintiff's version the acceptable version of what took place.

If we consider Mr. Van Niekerk's version who it will be recalled said that he was not overtaking any vehicle on his side of the road and that he was suddenly confronted by what must have been a phalanx of three vehicles approaching from the opposite direction.

There was much talk about what is called a blind rise. While indeed the road traverses a blind rise coming from the point of view of a person driving from Mbabane it is on the other hand a decline in the road when viewed by a driver approaching from Manzini. But the point of impact is well to the south of the ridge where the vehicles are obscured from such a driver's point of view. The point of impact could be anything over 100 metres from the point where vision is obscured by the fall. My observation at the inspection in loco was that it was probably something

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considerably more than 100 metres. But in any event the driver coming from Manzini had some time to see the situation developing of a car coming from the opposite direction possibly overtaking two vehicles driving in the opposite direction.

But Mr. Van Niekerk's evidence is marred by the reasons he gave for not meeting the emergency as he found it. He was asked why if there was a car approaching him from the opposite direction he did not move more to the left and possibly even leave the tarred surface of the road and travel on the untarred portion of the road. At first he spoke of a ditch, which would have made this impossible. Now one wonders why he spoke of a ditch because there is no evidence of a ditch existing and at the inspection in loco no sign of any ditch was pointed out. Mr van Niekerk abandoned the presence of a ditch as a reason for not taking evasive action to the left, and said he did not turn to the left because there was some vegetation on that side of the road, which made such a course impossible. The scene that I saw at the inspection in loco is not at all consistent with this. There is a considerable open flat area on the western side of the road onto which he could have veered Taking this into account, together with the fact that he would have had appreciable time to see the situation developing and time within which to take avoiding action by veering to the left rather than to the right plaintiff's version must be accepted above his.

The break marks on the road are a crucial feature. It was not questioned that they were those of the police vehicle. The overwhelming probability is that plaintiff was confronted with an on-coming vehicle on his, the plaintiff's side of the road. This means that it was van Niekerk who was on the wrong side of the road, most likely overtaking another vehicle. The presence of such other vehicle, testified to by the plaintiff and his witness, is on the probabilities the true reason why van Niekerk could not take avoiding action to the left. The negligence of the driver of the on-coming vehicle has been proved. Such negligence is lies in van Niekerk having overtaken or having attempted to overtake a vehicle on his left in the face of oncoming traffic, and in so doing crossed the unbroken double line onto his incorrect side of the road.

I have considered whether there is room for an apportionment in this case and I cannot see any evidence to suggest that the driver of the police vehicle was at fault. It is true that he veered to his right or braked to his right but this is explained by the fact that there were on both versions vehicles on his left.. In the case of Mr. Van Niekerk's evidence on his version there was no traffic on his side of the road and

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there is no reason to suggest why he, as I have observed, could not veer to the left, even if in so doing he had to leave the tarred surface.

Accordingly, I find that the plaintiff has proved negligence on the part of the on-coming vehicle and that there is no room for apportionment. The plaintiff is entitled to his costs.

SAPIRE, CJ