THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 346/10

In the matter between:

MATTHYS JOHANNES VAN AS
Appellant

and

ROAD ACCIDENT FUND
Respondent

Neutral citation: Van As v Road Accident Fund (346/10) [2011] ZASCA
124 (7 September 2011)

Coram:
Cloete, Van Heerden, Bosielo and Seriti JJA and Meer
AJA

Heard:
17 August 2011

Delivered:
7 September 2011

Summary:
Negligence – motor vehicle collision – whether the
appellant’s conduct prior to the collision constituted a
potentially dangerous situation and whether the
insured driver ought in the circumstances to have
taken steps to avoid a collision – no grounds for
interference with trial court’s findings.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: Western Cape High Court (Cape Town) (Allie J sitting
as court of first instance):
The appeal is dismissed with costs.

___________________________________________________________

JUDGMENT
___________________________________________________________

MEER AJA (CLOETE, VAN HEERDEN, BOSIELO and SERITI JJA
concurring)

[1] This is an appeal against a judgment of Allie J, sitting as court of
first instance in the Western Cape High Court, Cape Town, in terms
whereof it was held that the appellant’s negligence was the sole cause of
a motor vehicle collision. Leave to appeal to this court was granted by the
court a quo.

[2] The appellant claimed damages resulting from injuries he sustained
in a motor collision which occurred on 24 February 2004 at 06h45. The
appellant was driving a Mazda motor vehicle, on the N2 highway
between Heidelberg and Riversdale in the Western Cape, in the direction
of Riversdale, when he collided with a truck and tanker combination (‘the
truck’), which was being driven in the opposite direction towards
Heidelberg by the insured driver, Mr Cornelius Wentzel. The collision

occurred on the appellant’s incorrect side of the road and on the insured
driver’s correct side. It is common cause that the appellant was negligent.

[3] The appellant alleged that the insured driver had been negligent in
not taking steps to avoid the collision. The trial proceeded on the issue of
liability only, the extent of the appellant’s damages standing over for later
determination.

[4] The issue on appeal is whether there was any negligence on the
part of the insured driver. In this regard, the first enquiry is whether the
reasonable person in the insured driver’s position would have considered
that the appellant’s conduct prior to the collision constituted a potentially
dangerous situation, would have forseen the possibility of a collision and
would have taken steps to guard against such occurrence.

[5] The only eye witness who was able to testify about the potential
danger presented by the appellant’s conduct, and about the subsequent
collision, was the insured driver. The appellant had sustained severe head
injuries in the collision and was unable to testify. Two accident
reconstruction experts also testified, Professor Dreyer, for the appellant,
and Mr Craig, for the respondent. The trial court accepted the insured
driver’s evidence and I am not persuaded that it erred in doing so.

[6] The insured driver testified that he was an experienced driver of
heavy vehicles. At the time of the collision he was aged 58 and had held a
heavy duty driver’s license for approximately 35 years. He also had a
certificate to transport dangerous goods. The truck he was driving on the
day in question was empty but had transported aircraft fuel, the vapour

whereof could be prone to explosion when transported. According to a
tachograph fitted to the truck, he was travelling at approximately 70 km
per hour when the vehicles collided.

[7] Wentzel described the events leading up to the collision as follows.
He had driven over the crest of a hill and was travelling downhill, the
road curving gradually to the right. Visibility was good and he could see
ahead for a distance of two to three kilometres. The truck lights were on
dim. When he first saw the Mazda it was approximately a kilometre
away. The appellant was driving at a reasonably fast speed in his correct
lane. As the Mazda came closer Wentzel observed that the appellant was
fidgeting behind him and whilst he did so he looked backwards and
forwards intermittently in quick succession.   The relevant excerpt from
the evidence in chief about this activity reads as follows:
‘[H]y het agter iets gedoen…dit het gelyk of hy daar gekrap het.
…En toe het hy vorentoe gekyk, asof hy nou wou kyk of hy nog in die regte rigting
beweeg. Toe het hy weer agtertoe gekyk en weer vorentoe.
...Hy het skuins gesit met sy arm...dwarsoor die stuurwiel…en die linkerarm was hier
agter tussen die sitplekke gewees.
...En terwyl hy dit doen, hoe het sy kar gery? Het hy na u toe gekom of het hy reguit
gery…
Nee, hy het reguit gery, hy is in sy baan gewees….’

[8] Wentzel could not estimate the distance between the two vehicles
when he observed the appellant’s conduct described above. He
emphasised that, notwithstanding these activities, the appellant kept the
Mazda in its correct lane of travel and there was no indication that he
would move into Wentzel’s lane. Wentzel assumed that the appellant had
seen his large vehicle with its lights on and that the appellant would pass
him safely.

[9] Then, according to Wentzel, due to the fact that he was sitting
approximately three metres high in the truck, he lost sight of the Mazda
as it entered what he termed his ‘blind spot’. Suddenly, he felt the impact
of the Mazda against his truck.  It collided with the right front and side of
the truck. The entire incident, he said, happened in a matter of a split
second, and so suddenly that there was no time for him to do anything,
either hoot, apply brakes or flick his lights. Wentzel added that as the
situation prior to the collision had not appeared dangerous, there would
have been no reason for him to have taken such measures. He estimated
that the Mazda was 10 to 20 metres away when it crossed into his lane
and that the collision took place one metre into his lane.

[10] Counsel for the appellant, correctly, did not seek to argue that
Wentzel had been negligent once the Mazda had crossed the middle line.
The submission was that he had been negligent in not taking precautions
when a potentially dangerous situation began unfolding before him.

[11] During thorough and vigorous cross-examination, Wentzel was
adamant that the appellant’s actions before the collision did not present a
dangerous or potentially dangerous situation. He was also adamant that,
notwithstanding the appellant’s actions just before the collision, the
appellant had the Mazda in proper control and there was no indication he
would cross into the truck’s lane. Hence Wentzel did not see the necessity
for precautionary action. Wentzel said that as a driver who has travelled
thousands of kilometres and encountered many drivers and situations on
the road, he did not consider the appellant’s behaviour to be unusual.

[12] From Wentzel’s evidence it is clear that he became aware of the
appellant’s activities before the collision once the Mazda was sufficiently
close for him to observe the detail of the appellant’s movements. It is also
so that the appellant’s momentary backward glances were followed in
quick succession with forward glances to check that he was on course.
Under these circumstances I am of the opinion that it was safe for
Wentzel to have assumed that the appellant had seen the truck with its
lights on, and indeed there was no indication that he had not. The
evidence also makes it clear that, during the time of Wentzel’s
observation, the appellant was in control of the Mazda, at all times in his
correct lane and crucially, that he gave no indication that he would
deviate into Wentzel’s lane and collide with the truck. According to
Wentzel, he saw a vehicle under proper control. In the circumstances, I
am not persuaded that what Wentzel observed was a potentially
dangerous situation unfolding before him and that he ought to have
foreseen the possibility of the appellant crossing into his lane and
colliding with the truck. Nor, I believe, would the reasonable person have
forseen such a possibility.

[13] As was said by Corbett JA in Santam Insurance Co Ltd v Nkosi
1978 (2) SA 784 (A) at 792 B-C:
‘…the law recognises that life’s possibilities are infinite and in general concerns itself
only with those possibilities of harm to others which are sufficiently real or immediate
to cause the diligens paterfamilias to take precautions against their happening (see
Moubray v Syfret 1935 AD 199 at 209-30; Joffe & Co Ltd v Hoskins and Another
1941 AD 431 at 451; Kruger v Coetzee 1966 (3) SA 428 (A) at 430E-F; and compare
remarks of Lord Oaksey in Bolton v Stone 1951 AC 850 at 863). And, in deciding
whether precautionary action is warranted, the diligens paterfamilias might have to
weigh the seriousness of the harm should it occur, against the chances of its
happening.’

The diligens paterfamilias like Wentzel would not have read the situation
as potentially dangerous with real possibilities of harm, warranting
precautionary action1. Wentzel’s conduct thus did not fall short of what
would have been expected of the reasonable person in the prevailing
circumstances.
This being so, the situation was not one of potential danger. There can in
the circumstances be no finding of negligence on the part of the insured
driver. Given this finding it is not necessary for me to consider the expert
evidence.

[14] The appeal is dismissed with costs.

__________________________
Y S Meer
Acting Judge of Appeal

1 See also: New Zealand Insurance Co Ltd  v Karim 1963 (4) SA 872 (A) at 875F-H; Marine & Trade
Insurance Ltd  v Singh 1980 (1) SA 5 (A) at 9E-H, De Villiers v Minister of Post & Telegraphs 1978
(4) SA 334 (E) at 338B-D.

APPEARANCES:

For appellant:
R D McClarty SC

Instructed by:

Heyns & Partners, Goodwood

Honey Attorneys, Bloemfontein

For respondent:
R M Liddell

Instructed by:

John Riley Attorneys, Wynberg

Robert Charles Inc, Cape Town

Horn & Van Rensburg, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
7 September 2011

STATUS: Immediate

Van As v Road Accident Fund (346/10)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (the SCA) today dismissed the appeal and upheld an
order of the Western Cape High Court (Cape Town) which held that the appellant’s
negligence was the sole cause of a motor vehicle collision.

The appellant claimed damages resulting from injuries he sustained in a motor
vehicle collision and alleged that the insured driver had been negligent in not taking
steps to avoid the collision. The trial proceeded on the issue of liability only, the
extent of the appellant’s damages standing over for later determination.

The issue on appeal was whether there was any negligence on the part of the
insured driver. In this regard the enquiry was whether the reasonable person in the
insured driver’s position would have considered that the appellant’s conduct prior to
the collision constituted a potentially dangerous situation, would have foreseen the
possibility of a collision and would have taken steps to guard against such
occurrence. The evidence of the insured driver was that even though immediately
before the collision he had observed the appellant to be looking backwards and
forwards intermittently, the appellant was in control of his vehicle. He was also
driving in his correct lane and there was no indication that he would move into the
insured driver’s lane and collide with the latter’s truck. The insured driver had
assumed that the appellant had seen his large vehicle with its lights on and that the
appellant would pass him safely. Like the trial court, the SCA accepted the insured
driver’s evidence.

The SCA relying on Santam Insurance Co Ltd v Nkosi 1978 (2) SA 784 (A) at 792 B-
C held that the diligens paterfamilias like the insured driver would not have read the

situation as potentially dangerous with real possibilities of harm, warranting
precautionary action. The SCA stated that the conduct of the insured driver did not
fall short of what would have been expected of the reasonable person in the
prevailing circumstances. The SCA stated further that the situation was not one of
potential danger and subsequently held that in the circumstances, there could be no
finding of negligence on the part of the insured driver.

-- ends --