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Negligence Related Cases:

Case Law: Stop Signs

Case study:

X has the right of way and entered and entered an intersection and Y collided with his left hand side. Y drove over a stop street. On the same facts, X collided with the right hand side of Y.

Legal principles:

Y may only pull away if it is safe and he has sufficient visibility of oncoming vehicles. If there is an obstruction (example a parked vehicle), he must move slowly forward to enable him to see pass the obstruction.

Y who approach a three- or four way stop may only pull away if other vehicles that arrived before him at the stop are already through the intersection.

Y who wants to pull away from a stop sign, must look towards the left, right and when seeing X approaching 200m at his right on a high speed and without further considering enters the intersection is negligent. (Caldwell vs Commercial Union 1977 (1) SA 748 (A) and Schroder vs President 1978 (2) SA 600 (A))

X who has the right of way:

  1. has the right to assume that Y who approach the stop sign will stop; and

  2. X does not have the absolute right of yield and still has a duty to keep a general lookout. If X notice Y approaching the stop street, if he kept a proper lookout and he notice that Y is approaching the crossing at a very high speed, he must assume that Y will not stop and try to take the necessary avoiding actions. (Guardian vs Saal 1993 (2) SA 161 (CPD))

  3. If X who has the right of way approach a hidden stop street, he must the moment when the side street is visible look in the side street if there is perhaps not someone who will drove over the stop street. If he notices Y approaching in such a manner that it seems that he will not stop, he must do everything possible to avoid a collision. (Guardian vs Saal)

  4. X who has the right of way and who must keep a general lookout, has the right to assume in the absence of any indications to the contrary that that Y will stop at a stop sign. Only if it is clear to a reasonable person in X’s position that Y will not stop or will not be able to stop in time, is there a duty on X to try to avoid the accident. Under normal circumstances it is not the duty of X to regulate his driving in such a manner that a driver will not stop at a stop sign. (NEG vs Sullivan 1988 (1) SA 27 (AD))

  5. X who has the right of way and who notice Y stopping at a stop street, it cannot be expected from him to anticipate that a second vehicle will overtake the stillstanding vehicle Y and enter the intersection on the wrong side.

Case Law:

NEG VS SULLIVAN 1988 (1) SA 27 (AD)

Facts:

Y has the right of way and is well known with the area. Y is driving on a tar road. Y knows that the intersection in which X is driving and which is a gravel road, is regulated by a stop sign at the intersection. The stop sign however has been removed a while ago. Y is not aware of this. The accident occurred at night. Visibility was limited for both vehicles by a hedge and therefore a blind corner exists. The accident occurred in the intersection.

Held – Court decision:

Y was not in the wrong in the special circumstances in this particular case to act on the basis that traffic in the cross street will give yield to him.

Y did keep a proper lookout and only noticed X when he came from behind the hedge and up to that there is no reason why he should have taken any precautions.

In the absence of any testimony:

How far X and Y were from the intersection when X was visible for Y, or the speed of X’s vehicle and the positions of X and Y when Y became aware that X is not going to stop, it is therefore not possible to assume that Y was negligent and not taking the necessary care and experience as one would expect from a reasonable person.

The driver who has the right of way has the right to assume that in the absence of any reasons to the contrary, that driver in the cross street will adhere to the stop sign. Only when it becomes clear for the reasonable man in the position of the driver who has the right of way that X is not going to stop or will not be able to stop in time, then Y has a duty to try to avoid the collision.

When it became clear to Y that X was not going to stop (there were no clear evidence that he could have realised it earlier) and by making provision for reaction time, the distance between X and Y and their speed, there was nothing that Y could have done to avoid an accident or prevent it.

No negligence could be indicated on the side of Y.

~~~~

SA EAGLE VS HARFORD 1992 (2) SA 786 (AD)

Facts:

Collision occurred inside a four way stop. A motor vehicle collided with its front against the left hand side of a truck in the middle of an intersection. The truck was already far into the intersection. The motor vehicle has just moved across the stop line when the accident occurred. The motor vehicle did not stop at the stop sign, but moved into the intersection at a high speed.

The truck did stop and noticed the vehicle approaching fast. He however thought that the motor vehicle did see him and will top. The truck then pulled away.

Held – Court decision:

The assumption of the truck driver that the motor vehicle is not going to stop was not unreasonable in the circumstances. A reasonable driver has to make absolutely sure that it is safe to enter an intersection before he does it. The truck driver won the appeal with costs. Absolution of the Instance against the truck driver with costs was ordered.

GUARDIAN NATIONAL INSURANCE CO VS SAAL 1993 (2) SA 161 (CPD)

Facts:

X drove over a stop street and collided with Y who has the right of way. X can as a result of his injuries not remember how the accident occurred. On behalf of X it was testified that Y had for 75m from the intersection clear visibility on the intersection.

Held – Court Decision:

X had to prove on a balance of probabilities that Y was negligent and that his negligence has caused the accident or contributed to it. The fact that Y did not keep a proper lookout is not enough to keep him accountable.

X must prove that the neglect has a causal connection to the accident. The question is:

If Y kept a proper lookout and he should have noticed that Y is not going to stop, that he could have at that moment take effective avoiding actions.

X must prove that if Y reacted when the reasonable man would have reacted, the accident would not have occurred.

X did not prove that Y negligence to keep a proper lookout had a causal connection to the cause of the accident.

The appeal of Y succeeded in this matter.

~~~

Case Study: Traffic Circles

Legal principles of a Traffic Circle:

  1. Always travel clockwise around a traffic circle,

  2. X must give right of way to traffic who approach from his right hand side in the traffic circle, except if a police officer give other instructions or if there are traffic signs that show otherwise,

  3. A yield sign at a traffic circle give instructions to X who approach the yield sign to yield for any traffic that would cross the yield line before him and who would cross his way.

Case Study:
X is driving on the inside of the traffic circle next to the island and decided to leave the traffic circle on his left hand side. Y who is driving on the outside collided with the left side of X when X suddenly changed lanes.

Case Law:
RONDALIA VERS KORP vs Pretorius 1967 (2) SA 649 (A)
Facts:
Four lanes are joining at the traffic circle. There is a traffic island in the middle. Y on a scooter entered the traffic circle and moves around the island to leave the traffic circle in a southerly direction. X drove with his motor vehicle behind Y and caught up on Y. X wanted to leave the traffic circle in an easterly direction. X tried to overtake Y on the right hand side. An accident occurred between the left front of bumper of X and the right side of Y from behind. Y could not remember how the accident occurred.

Held – Court decision:
When vehicles travel in the same direction around a traffic circle, it depends on the circumstances of the driver of the front vehicle to give signal or not. There is no general rule to govern the behaviour of the traffic inside the traffic circle.

There are also no reported cases with regards to the different duties of drivers who are driving in the same direction around the traffic circle.

Whether the driver of the front vehicle is under an obligation to give a sign or not depends on the circumstances.

For example, if A wants to drive to his right around the circle, but entering the circle on the left lane, while there are traffic in the right lane, then his duty is the same as a person who wants to enter an intersection in a traffic stream.

In the matter at hand, there is no evidence as to what caused the accident or how it occurred.

Negligence on the side of Y was not proved.

~~~~

S vs KRUGER 1967 (3) SA 496 (KPA)
In the above case, the principle was imposed that X who was driving in a single lane traffic circle does not have to give a signal if he wants to move right around the circle. This is the normal course of flow in a single traffic circle.

If he wants to turn out of the traffic circle towards his left, which is an unusual procedure, then he should give a signal that he wants to move out of the traffic circle.

There must be a material change of flow from the normal course that X followed before there is any need for X to give a sign.

~~~

Case Study: Stationary vehicle in opening of a Median Strip.

The Median Strip is also known as a Central Reservation Area or Road Island…. the strip that separates two opposing lanes of traffic. The strip itself varies from road to road. It can be a walkable wide pavement, painted lines, a wider planted area, or a concrete or metal barrier. (see more photo examples at the end of the article)

Legal Principle:
Drivers should expect to find stationary vehicles in their lane of travelling where a Median Strip is found.

Case Law:
GRIFFITHS vs NETHERLANDS INSURANCE 1967 (4) SA 691 (A)

Facts:
X stopped at stop street. X wanted to cross dual carriageway and crossed between opening on an island to turn right. The dual carriageway is a main road in a built-up area and carries heavy traffic. The accident occurred at night, but the road is well lit. X looked towards his left and right and noticed that the road is clear of traffic and pulls away. He realised that vehicles are approaching him from his left hand side at high speed. He realised that he was not going to complete his turn and stopped his vehicle in the island opening. The back of his vehicle blocked the whole lane nearest to the island. He noticed motor vehicles approaching him and noticed that Y is fast approaching him in the lane that is blocked by the back of his vehicle. He however kept concentrating on the traffic that approached him in the direction that he wanted to turn in. He therefore paid attention to the vehicles approaching him from his left. Y then collided with the right back door of his vehicle. Y never saw X. He did not brake or swerve out. Y cannot remember how the accident occurred.

Decision on appeal:
Upheld the Court’s decision that X was not negligent. The minority ruling believed that Y’s appeal must succeed with an apportionment of 75/25 in favor of X.

Minority decision:
There is no rule that forbids X from crossing the first two lanes of a road at a given time and to wait in the opening for an opportunity to join other traffic in the next lane. Because of heavy traffic, it necessitated him to wait for an opportunity. Daylight would not have made a difference. X will still not be negligent. X was visible for Y for at least 60 steps.

The Court decided that drivers at night should expect that sometimes there can be stationary vehicles in their lane of travel. Y would have been able to avoid the collision if he saw X by swerving to the left and passing behind the vehicle. Y was in all probabilities grossly negligent. It was not expected from X to expect the possibility that Y could collide with him.

~~~

Case Study: T-Junctions

Case study:

X approached a T-junction. He noticed vehicle Y approaching on his right hand side. X misjudged the speed of Y and turned to his right, right in front of Y and Y collided with X.

Legal principles:

A motorist travelling in the main road has the right of way to keep on course with the expectation that traffic from a side road will not move across his lane of travelling.

A reasonable driver approaching a T-junction will consider it quite possible that a vehicle can drive behind the front oncoming vehicle and be invisible to him.

Case Law:

FORBES-ROSE VS AA ONDERLINGE 1983 (1) 635 (OPA)

Facts:

X approached a T-junction from a secondary road at night. He wanted to turn right in the main road (a gravel road). He pulled away and turned in front of oncoming vehicle. That vehicle however avoided the collision by swerving out. Motorcycle driver Y who drove behind the first vehicle and was invisible due to dust and darkness, collided with X.

Held / Court Decision:

X failed to keep a proper lookout and was/is deemed to be solely negligent.

~~~

Case Study: Stop Signs

Case study:

X has the right of way and entered and entered an intersection and Y collided with his left hand side. Y drove over a stop street. On the same facts, X collided with the right hand side of Y.

Legal principles:

  1. Y may only pull away if it is safe and he has sufficient visibility of oncoming vehicles. If there is an obstruction (example a parked vehicle), he must move slowly forward to enable him to see pass the obstruction.

  2. Y who approach a three- or four way stop may only pull away if other vehicles that arrived before him at the stop are already through the intersection.

  3. Y who wants to pull away from a stop sign, must look towards the left, right and when seeing X approaching 200m at his right on a high speed and without further considering enters the intersection is negligent. (Caldwell vs Commercial Union 1977 (1) SA 748 (A) and Schroder vs President 1978 (2) SA 600 (A))

  4. X who has the right of way:

    1. has the right to assume that Y who approach the stop sign will stop; and

    2. X does not have the absolute right of yield and still has a duty to keep a general lookout. If X notice Y approaching the stop street, if he kept a proper lookout and he notice that Y is approaching the crossing at a very high speed, he must assume that Y will not stop and try to take the necessary avoiding actions. (Guardian vs Saal 1993 (2) SA 161 (CPD))

  5. If X who has the right of way approach a hidden stop street, he must the moment when the side street is visible look in the side street if there is perhaps not someone who will drove over the stop street. If he notices Y approaching in such a manner that it seems that he will not stop, he must do everything possible to avoid a collision. (Guardian vs Saal)

  6. X who has the right of way and who must keep a general lookout, has the right to assume in the absence of any indications to the contrary that Y will stop at a stop sign. Only if it is clear to a reasonable person in X’s position that Y will not stop or will not be able to stop in time, is there a duty on X to try to avoid the accident. Under normal circumstances it is not the duty of X to regulate his driving in such a manner that a driver will not stop at a stop sign. (NEG vs Sullivan 1988 (1) SA 27 (AD))

  7. X who has the right of way and who notice Y stopping at a stop street, it cannot be expected from him to anticipate that a second vehicle will overtake the stillstanding vehicle Y and enter the intersection on the wrong side.

Case Law:

NEG VS SULLIVAN 1988 (1) SA 27 (AD)

Facts:

Y has the right of way and is well known with the area. Y is driving on a tar road. Y knows that the intersection in which X is driving and which is a gravel road, is regulated by a stop sign at the intersection. The stop sign however has been removed a while ago. Y is not aware of this. The accident occurred at night. Visibility was limited for both vehicles by a hedge and therefore a blind corner exists. The accident occurred in the intersection.

Held - Court decision:

Y was not in the wrong in the special circumstances in this particular case to act on the basis that traffic in the cross street will give yield to him.

Y did keep a proper lookout and only noticed X when he came from behind the hedge and up to that there is no reason why he should have taken any precautions.

In the absence of any testimony:

How far X and Y were from the intersection when X was visible for Y, or the speed of X’s vehicle and the positions of X and Y when Y became aware that X is not going to stop, it is therefore not possible to assume that Y was negligent and not taking the necessary care and experience as one would expect from a reasonable person.

The driver who has the right of way has the right to assume that in the absence of any reasons to the contrary, that driver in the cross street will adhere to the stop sign. Only when it becomes clear for the reasonable man in the position of the driver who has the right of way that X is not going to stop or will not be able to stop in time, then Y has a duty to try to avoid the collision.

When it became clear to Y that X was not going to stop (there were no clear evidence that he could have realised it earlier) and by making provision for reaction time, the distance between X and Y and their speed, there was nothing that Y could have done to avoid an accident or prevent it.

No negligence could be indicated on the side of Y.

~~~

SA EAGLE VS HARFORD 1992 (2) SA 786 (AD)

Facts:

Collision occurred inside a four way stop. A motor vehicle collided with its front against the left hand side of a truck in the middle of an intersection. The truck was already far into the intersection. The motor vehicle has just moved across the stop line when the accident occurred. The motor vehicle did not stop at the stop sign, but moved into the intersection at a high speed.

The truck did stop and noticed the vehicle approaching fast. He however thought that the motor vehicle did see him and will top. The truck then pulled away.

Held - Court decision:

The assumption of the truck driver that the motor vehicle is not going to stop was not unreasonable in the circumstances. A reasonable driver has to make absolutely sure that it is safe to enter an intersection before he does it. The truck driver won the appeal with costs. Absolution of the Instance against the truck driver with costs was ordered.

GUARDIAN NATIONAL INSURANCE CO VS SAAL 1993 (2) SA 161 (CPD)

Facts:

X drove over a stop street and collided with Y who has the right of way. X can as a result of his injuries not remember how the accident occurred. On behalf of X it was testified that Y had for 75m from the intersection clear visibility on the intersection.

Held - Court Decision:

X had to prove on a balance of probabilities that Y was negligent and that his negligence has caused the accident or contributed to it. The fact that Y did not keep a proper lookout is not enough to keep him accountable.

X must prove that the neglect has a causal connection to the accident. The question is:

If Y kept a proper lookout and he should have noticed that Y is not going to stop, that he could have at that moment take effective avoiding actions.

X must prove that if Y reacted when the reasonable man would have reacted, the accident would not have occurred.

X did not prove that Y negligence to keep a proper lookout had a causal connection to the cause of the accident.

The appeal of Y succeeded in this matter.

~~~

Robot Controlled intersections (1)

Case Study:

Y approaches the intersection, the traffic light changes to green in his favour, he enters the intersection; while X drove over the red traffic light and collided against the side of Y. 

Legal principles:

  1. Y enters the intersection as the traffic light changes to green must make provision for a possible driver X that is still crossing the intersection and that can cross before Y. After that, Y can however assume or accept that X approaching the red light will not enter the intersection.

  2. Y that enters the intersection just after the traffic light change to green can assume or accept that X that approaching the red light will not enter the intersection before the light change to green. Y must stop at an orange light, but if he is too close to the stop line, he may proceed cautiously through the intersection.

  3. Therefore Y, who has the green light in his favour and has the right of way, however has a duty to keep a lookout for traffic in the intersection as he crosses the intersection. It is expected from Y to be awake and to pay attention to his immediate surroundings.

  4. If X alleges that the traffic lights were not functioning correctly, he must prove same, for example: other motorist that had the same complaint or other accidents where it was alleged that the robots were not functioning properly. (S vs Lund 1987(4) SA 548 (N))

Case Law:

Netherlands Insurance Company of South Africa Limited vs Brummer 1978 (4) 824 AD)

Facts:

An accident occurred at a robot intersection, which consists of two lanes in each direction. X was travelling from east to west in the left hand traffic lane and Y was travelling from north to south in the inside lane.

Both alleged that the other party was travelling against the red traffic light.

After listening to various testimonies, it was accepted that X entered the intersection against a red traffic light.

Y stated that as he entered the intersection, he did not look towards his left and therefore did not see X before the impact.

Held / Court Ruled Decsion:

Y entering the intersection while the traffic light is green for him must look out for traffic that is already in the intersection. Example: traffic that enters the intersection just before the traffic light changed. Y must not ignore vehicles of which he is aware and that are clearly driven on a negligent basis. It is expected from Y to be on the lookout for traffic that is entering the intersection against a red light from left or right.

In the matter of SA Eagle vs Harford 1992 (2) 786 (A) this principle was confirmed: that it could not be expected from a reasonable driver to be absolutely sure that it is safe to enter an intersection before he enters it.

In the matter at hand, there was no trustworthy evidence as to where Y’s vehicle was when the light changed to green for him. There were no grounds where it could be found that Y, at that stage, was on or just over the stop line of the intersection.

It was thus proved that Y was negligent.

The appeal succeeded, and absolution of the instance with costs was ordered.

~~

Robot Controlled intersections (2)

Case Law:

AA vs Mantji 1980 (1) SA 655 (A)

Facts:

X was driving his motorcycle and drove over a red traffic light and collided with Y, which was driving over a green traffic light.

When Y was approximately 35 to 40 paces from the white line at the intersection, the light turned green for him. As he crossed the white line, he noticed X on his right hand side driving over the red light. Moments thereafter the front of his bakkie collided with the back half of the motorcycle of X on the left hand side.

Held – Court Decision:

On the balance of probabilities, it could not be determined, which of the two vehicles entered the intersection first.

If one accepts that X was first in the intersection, it is still not proven that Y was negligent and if he was negligent, that his negligence contributed towards the collision.

The appeal was successful and the Court ordered absolution of the instance with costs.

~~~

Robot Controlled intersections (3)

Case Study:

Facts:

Y approached the intersection with the traffic lights flashing orange in the direction that he was travelling and X approached the intersection from another direction with red lights flashing. The accident occurred at night time.

The left half of the front bumper of Y collided with the left hand side of X. Just as Y wanted to enter the intersection, he saw X ± 15m on his right hand side. X was also on the point of entering the intersection.

Y could not see X earlier because of the fact that X just came from out of a dip in the road. They therefore entered the intersection at the same time.

X did not stop and entered the intersection at a high speed. Y braked very hard, but could not swerve out because the road surface was wet at the time. This would in any case not have prevented the accident.

The point of impact was 5m in the intersection from Y direction and 15m in the intersection from X direction.

Case Law:State vs Smuts 1984 (4) SA 416 (TPD)

Held / Court Ruled Decision:

  • Such situation cannot be compared to that of a situation at a four way stop.

  • Y who approached the flashing orange lights (today all lights will flash red), and all lights today are equal to a yield sign which one must yield to all traffic that is in the intersection.

  • Must approach the intersection at such a speed that would enable him to yield to above traffic. Y can assume that any visible traffic that approached the intersection should stop.

  • Y does not have to decrease his speed to such an extent that if a vehicle in the crossing should drove over the stop line that he would be in a position to avoid the accident.

  • Y must do everything reasonable to try to avoid an accident with any vehicle that he could see will ignore the stop sign.

  • Y, which is approaching the flashing red light (the same as a stop street), is obligated to stop in all circumstances and is not allowed to proceed before it is safe to do so.

  • It was not proven beyond reasonable doubt that Y, which approached the flashing orange light, did not do it with the necessary care or did not keep a proper lookout.

  • The State failed to prove any negligence on the side of Y.

Today when a traffic intersection is malfunctioning, all lights will flash red and motorists should treat it as a four way stop.

~~~

Robot Controlled intersections (4)

AA vs Mantji 1980 (1) SA 655 (A)

Facts:

X was driving his motorcycle and drove over a red traffic light and then collided with bakkie Y, which was driving over a green traffic light.

When Y was approximately 35 to 40 paces from the white line at the intersection, the light turned green for him. As he crossed the white line, he noticed X on his right hand side driving over the red light. Moments thereafter the front of his bakkie collided with the back half of the motorcycle of X on the left hand side.

Held – Court Decision:

On the balance of probabilities, it could not be determined, which of the two vehicles entered the intersection first.

If one accepts that X was first in the intersection, it is still not proven that Y was negligent and if he was negligent, that his negligence contributed towards the collision.

The appeal was successful and the Court ordered absolution of the instance with costs.

~~~

Robot Controlled intersections (5)

State vs Smuts 1984 (4) SA 416 (TPD)

Facts:

Y approached the intersection with the traffic lights flashing orange in the direction that he was travelling and X approached the intersection from another direction with red lights flashing. The accident occurred at night time.

The left half of the front bumper of Y collided with the left hand side of X. Just as Y wanted to enter the intersection, he saw X ±15m on his right hand side. X was also on the point of entering the intersection.

Y could not see X earlier because of the fact that X just came from out of a dip in the road. They therefore entered the intersection at the same time.

X did not stop and entered the intersection at a high speed. Y braked very hard, but could not swerve out because the road surface was wet at the time. This would in any case not have prevented the accident.

The point of impact was 5m in the intersection from Y direction and 15m in the intersection from X direction.

Held – Court decision:

Such situation cannot be compared to that of a situation at a four way stop.

  1. Y who approached the flashing orange lights (these days all lights will flash red), and all lights today are equal to a yield sign which one must yield to all traffic that is in the intersection.

  2. Y must approach the intersection at such a speed that would enable him to yield to above traffic. Y can assume that any visible traffic that approached the intersection should stop.

  3. Y does not have to decrease his speed to such an extent that if a vehicle in the crossing should drove over the stop line that he would be in a position to avoid the accident.

  4. Y must do everything reasonable to try to avoid an accident with any vehicle that he could see will ignore the stop sign.

  5. Y, which is approaching the flashing red light (the same as a stop street), is obligated to stop in all circumstances and is not allowed to proceed before it is safe to do so.

It was not proven beyond reasonable doubt that Y, which approached the flashing orange light, did not do it with the necessary care or did not keep a proper lookout.

The State failed to prove any negligence on the side of Y.

It must be noted that these days, when a traffic intersection is malfunctioning, all lights will flash red and motorists should treat it as a four way stop.

~~~

Robot controlled intersections (6)

Case study:

Y approach the intersectionand the robot change to green in his favour. He enters the intersection and collided with X who drove over a red light.

Legal Principals:

  • Y who enters the intersection just after the robots change to green must forsee that a driver X can still travel through the intersection and cross before Y. Y can assume that X who approach the red light will not enter the intersection.

  • Y who entered the intersection just after the lights changed to amber can expect Y not to enter the intersection before the lights changed to green.Y must stop at the amber light, if he is however to close to the stopline he may proceed with caution.

  • Y who approach a green light in his favour has a right of way but there is still a duty on himto be on the lookout for traffic in the intersection as he proceed through the intersection.

  • If X alleged that the robots are not funtioning properly he must bring evidence to that affect.See S vs Lund 1987 (4) SA 548 (N).

Case Law:

1. Netherlands Ins Co of SA Ltd vs Brummer 1978 (4) 824 (AD).
2. AA vs Mantje 1980 (1) SA 655 (A).
3. S vs Smuts 1984 (4) SA 416 (T).
4. National Employers General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E).
5. Santam Insurance Co Ltd v Gouws 1985 (2) 629 (AD)
6. Izaaks v Schneider 1991 (3) SA 675 (Nm).

Netherlands Ins Co of SA vs Brummer

Liability Related Cases:

Actio De Ferris: 
The 'actio de ferris' rule originated during the time of the Roman Republic when wild or dangerous animals were brought into a public place where it was prohibited to do so.

The motive of this action was based on ownership and liability and was imposed on the owner of the animal for the consequences of the animal’s behaviour.

The victim therefore does not have to allege or prove negligence on the part of the owner.

In a recent matter before our Courts in the matter of Van der Westhuizen vs Burger 2018 (2) SA 87 (SCA) the matter was raised before the Supreme Court of Appeal where the provocation of a wild animal could be raised as a defence to this very old action that dates back to the Roman Law.

In this matter Mr Van der Westhuizen was the owner of an ostrich. The Respondent, Mr Burger, first sued out of the Gauteng Division of the High Court after the ostrich apparently attacked and chased him. Burger alleged that when trying to attempt to escape from the ostrich, he tripped over a piece of wood and tore his Achilles tendon. He then claimed damages from Van der Westhuizen to the amount of R6 750 000.00.

It was not in dispute that the incident indeed occurred on Mr Van der Westhuizen’s farm. Mr Burger alleged that Mr Van der Westhuizen introduced certain wild ostriches, which do not naturally occur onto his farm or alternatively that the Appellant had tamed and domesticated an ostrich who roamed close to the dwelling on the farm and which in attacking the Plaintiff acted contrary to animals of its class.

Mr Van der Westhuizen in turn raised the defence that Mr Burger provoked and harassed the ostrich on numerous occasions prior to this alleged incident. He further denied that Mr Burger, in attempting to escape, ran towards the dwelling on the farm and tripped over a piece of wood.

The court a quo (where the matter was first heard) dismissed the defence of provocation on the basis that the provocation was not the immediate catalyst of the resulting injury. The court a quo were of the opinion that there was no immediate provocation of the ostrich and the injury would not have occurred had it not been for Burger’s attempt to escape the ostrich from attacking him in the first place.

The court a quo therefore found that Mr Van der Westhuizen was liable to pay for such damages as Burger was able to prove in due cause, together with the cost of the action.

The matter was taken onto appeal by Mr Van der Westhuizen.

On appeal, the Court paid attention to the testimony of the witnesses of the Appellant who described how Mr Burger had teased a certain male ostrich on the farm of Mr Van der Westhuizen.

On numerous occasions Mr Burger would entice the ostrich to approach him with mielie pips in his hand. While the ostrich was busy eating out of his hand, Burger would grab the animal by the neck and push its head down. The ostrich would become aggravated and would flap its wings and stagger backwards after being released. The Supreme Court of Appeal was satisfied on a balance of probabilities that in this case the particular ostrich was the same one that had chased Mr Burger.

The Court did state that the evidence could not be used to infer that the ostrich held a grievance against Mr Burger, as that would constitute the impermissible attribution of human emotions to the ostrich.

The reality was however, that Mr Burger was not fearful of the ostrich. In his own evidence when he had approached the animal the night before the incident, he confidently dealt with it.

A certain Mr Kotze testified that he had seen how Mr Burger was walking towards the farmhouse while the ostrich was feeding at a trough. When Burger saw the ostrich, he threw something at it and the ostrich then chased him. Kotze maintained that Burger had run towards the front door of the farm house and fell. When Burger stood up, he saw the ostrich was still looking at him and quickly ran into the house. At no time did the ostrich kick Mr Burger or peck at him.

Based on this evidence the Court held that Mr Van der Westhuizen has discharged the onus of proving that Mr Burger’s conduct, by throwing a stone at the ostrich, had provoked its behaviour in chasing after him.

However the Court noted that in Case Law, provocation was not listed as a specific defence to strict liability arising from the attack of a wild animal.

It was rather recognised as a defense to the actio de pauperie, which is an action for damages caused by domestic animals and not a wild one.

Various court cases was considered in this matter including Bristow v Lycett 1971 (4) SA 223 (RA)as well as Klem v Boshoff 1931 CPD 188and also Hanger v Regal & another 2015 (3) SA 115 (FB).

Based on its conclusions the Court therefore held that it is unnecessary to examine the issue of causation giving that Mr Van der Westhuizen could not be liable for the injuries sustained by Mr Burger in circumstances where the latter had provoked the chase.

In the above matter Van der Westhuizen’s appeal was upheld with costs.

Stopping Distances and Reaction Time

To calculate distance travelled the following formula can be used:
40km/h * .278 = 11.12m/s

Quantum Related Case Law

1. Fracture of pelvis

Muller v RAF 2008 JOL 21251 (SE)

Judgment Date: 30 / 10 / 2007

The plaintiff, who was born on 26 July 1981, was a passenger in a motor vehicle bearing registration numbers, CRY 884 EC when that vehicle collided with the insured vehicle (motor vehicle CHW 138 EC) in Uitenhage. He sustained a severe fracture of the pelvis with dislocation of the right hemi pelvis through the symphysis pubis and sacro-iliac joint. He also suffered an acute abdomen, a neck injury, bruises and abrasions on his head, an injury on the right lower leg and a contusion of the right knee.

He underwent a laparotomy on the same night of the accident at the Uitenhage Provincial Hospital. Two days thereafter, he was transferred to Cuyler Clinic in Uitenhage where an attempt was made to perform an open reduction on the fractured pelvis. A skeletal pin was inserted into the right lower limb to reduce and maintain reduction of the dislocated pelvis. On 19 February 2003, the plaintiff was transferred back to the Uitenhage Provincial Hospital where he remained for a further month.

Prior to his discharge from hospital the denham pin was removed from his right tibia and he was mobilised using crutches. There were no subsequent visits to the Uitenhage Provincial Hospital. Instead the plaintiff attended his own general practitioner, Dr R van Heerden on a monthly basis for analgesic tablets. His last visit was in May 2004. He remained on crutches for two months after discharge from hospital.

On 3 August 2004, the plaintiff consulted with Dr James Forgus, an orthopaedic surgeon. A medico-legal report prepared by Dr Forgus forms part of the record. Dr Forgus also gave evidence at the trial. According to Dr Forgus the injuries sustained by the plaintiff in the collision resulted in him being left with a permanent limp on the right side; the right leg is three centimetres shorter than the left leg. Muscle wasting of the right thigh has resulted in the right thigh measuring eight centimetres smaller than the left thigh. The right hip flexes 20 less than the left hip. The plaintiff squats incompletely due to stiffness of the right hip. He presents with extensive callus formation over the sacro- iliac joint.

According to Dr Forgus, the attempt that was made at Cuyler Clinic to reduce the dislocation in the pelvis was not successful. In his assessment the plaintiff would have been unfit to resume duties for four to six months after the collision. (In this regard the plaintiff testified that he resumed duties earlier than this period because he had no choice). Dr Forgus' opinion was that the plaintiff should not play active sports, jog and carry heavy weights (more than 10kg) in future. One and a half years after the collision the plaintiff's sacro-iliac joint and symphysis had not fused and resulted in instability of the joint. Heavy weight bearing activities and excessive bending might further destabilise the joint.

Dr Forgus' opinion was that the shortening of the right leg should, as a matter of urgency, be permanently compensated by a raised shoe involving a heel and a sole. He anticipated that within a period of eight to ten years of the consultation the plaintiff would develop pain in the sacro-iliac region on the right side. This would necessitate a sacro-iliac joint fusion (arthrodesis). In the end the plaintiff was only suited to sheltered work of sedentary nature for the rest of his employable life.

Regarding pain and suffering Dr Forgus testified that the plaintiff would have experienced severe pain for three to four weeks after the collision whereafter the pain would diminish over the next three to four weeks. He would have, through this period, been totally incapacitated and would have experienced extreme discomfort as a result of a skeletal traction on his right leg.

A further medico-legal report prepared by Dr Basil Mackenzie, also an orthopaedic surgeon, also forms part of the record. The contents were admitted by both parties at a pre-trial conference. In essence the opinions expressed by both Dr Forgus and Dr Mackenzie are similar, particularly insofar as the effects of the injuries sustained by the plaintiff on his post-morbid income earning capacity. Dr Mackenzie, however was of the opinion that it will not be necessary to perform an arthrodesis on the plaintiff.

Dr Mackenzie's opinion was that the plaintiff is physically "18% permanently partially impaired". This reflects his compromised capacity to manage activities of daily moving, including sitting, standing, lifting, carrying and other activities. He further opined that although the plaintiff was 18% physically impaired, he could remain employable in his semi-skilled job description to the age of 50 years, whereafter his capacity to compensate for his impairments will diminish so that he will need to delegate all tasks involving heavy-weight bearing activities. In this way he could remain employable to about 57 years.

Dr Forgus assessed the extent of plaintiff's partial permanent disability at 20%. Two further medico-legal reports prepared by him which form part of the record confirm the contents of his first report save that when the plaintiff consulted with him on a second occasion (18 July 2006) the stiffness on the right hip had improved.

A medico-legal report prepared by Dr Richard Holmes, a psychologist, is also part of the record. In the report Dr Holmes gives an opinion on the plaintiff's future prospects of employment and/or income earning capacity. He also testified at the trial confirming the contents of his report. His view was that although the plaintiff was only 22 years old at the time of the accident, it can be reasonably assumed that, but for the accident or any other unforeseen circumstances, the plaintiff would have become a competitor in the open labour market as a semi-skilled worker (or work seeker), performing duties requiring extensive physical activity, including standing, walking, bending and driving. Pre-morbidly, he had the physical ability and the intellectual potential needed for such work. Assuming that he would have remained a committed worker, (and there being no reason to believe that this would not have been the case), he would have remained in employment until he reached retirement age. However, given his relatively poor standard of education and no special skills, his employment opportunities would always have been limited.

General Damages:

The defendant has made an open offer of R180 000 for general damages suffered by the plaintiff. The plaintiff sues for a sum of R250 000. Both parties rely on previously decided cases in support of the amounts claimed and offered. The plaintiff relies on awards made in the following cases:minor injuries. He spent five months in hospital, and his schooling was interrupted. The injury resulted in a leg length discrepancy of about 1½cm, which could be corrected by surgery. An amount of R175 000 was awarded as general damages. (The present day value thereof according to Koch (supra) being R243 000).

The defendant, on the other hand relies on the following cases:

value (as per the Quantum Yearbook, 2007; RJ Koch) of R184 000.

President Versekerinqsmaatskappy v Mathews in which the plaintiff, a farmer, aged 53 at the time, sustained a fracture of his left hip, a serious fracture of his hemi pelvis injuries to his eye and certain internal injuries. There was a shortening of his left leg of about 3cm and further rheumatism in the hip joint was indicated. It was anticipated that hip replacement surgery would be required. He was awarded a current value (as per the Quantum Yearbook, 2007) in the amount of R88 000.

Hartzenberg v SA Eagle Insurance, (supra) at Volume 4 F 3–7 in which a girl, aged eight years at the time, sustained a fracture of her pelvis and hip. As a result surgery in the form of an open reduction and internal fixation was undertaken as well as traction for a period of about three weeks. She was in a hospital for six weeks and thereafter required to ambulate with crutches for about ten months. As a result, she sustained severe pain as well as disfigurement and her working life was expected to be curtailed. Further, it was indicated that hip replacement surgery was required. She was awarded a current value (calculated as per the Quantum Yearbook, 2007) of R235 000.

I agree with the submission on behalf of the plaintiff that although the plaintiff in this case received less treatment and will endure less medical operations than the plaintiff in the Peter and Marunga cases, he is more incapacitated as a result of the permanent 3cm leg length discrepancy. On the other hand, the plaintiffs in the Hendricks and Hartzenberg cases appear to have sustained more serious injuries than the plaintiff in this case. In Hartzenberg's case the plaintiff was much younger than the plaintiff in this case. In my view the appropriate award for general damages in this case would be R200 000.

In the result it is ordered that:

1.

The defendant shall pay the plaintiff's:

1.1 Past hospital - R16 226,49;
1.2 Past loss of income - R12 011,60;
1.3 Future loss of earnings or loss of earning capacity - R626 252,91;
1.4 General damages - R200 000;

Total - R854 491

Interest is to accrue on the said amount of R854 491 as from a date 14 days from date hereof until date of payment;

Defendant is to furnish plaintiff with an undertaking in terms of section 17(4) of the Road Accident Fund Act 56 of 1996, for the cost of future accommodation of plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him arising out of the collision in which he was involved on 2 February 2003 after the costs have been incurred and upon proof thereof;