T de Maayer v T A Serebro and Road Accident Fund

On 6 August 1998, at approximately 3:00 pm, a collision occurred at the intersection of Katherine and Amalinda Streets, Sandown, Gauteng, between a Ford Sierra driven by Mr A M Baudry (the insured driver) and a Ford Tracer driven by Dr Tim de Maayer (the third party). Dr Terry Serebro (the plaintiff) was a passenger in the Tracer and sustained serious injuries. The plaintiff sued the Road Accident Fund (defendant) for damages. The defendant joined the third party claiming contribution. The plaintiff also issued a third party notice against de Maayer. Katherine Street is a dual carriageway with a recessed traffic island creating a third lane for vehicles turning right. De Maayer was in the third lane attempting to turn right (west) into Amalinda Street. Baudry was travelling south to north on Katherine Street with the right of way. Weather and road conditions were good. Two trucks were also in the turning lane. The occupants of the Tracer, all medical students, had been picnicking at the Hennops River earlier that day. The only passenger with recollection of the collision was Dr Lauren Raine, seated behind de Maayer.

• Whether the insured driver (Baudry) was negligent in causing the collision
• Whether the third party (de Maayer) was negligent in causing the collision
• Whether the plaintiff could bring a second application for special leave to appeal after the first application was refused
• Application of the Galante rule where a defendant driver does not testify
• Whether expert evidence based on unproved assumptions should be accepted
• The standard of care required when turning across oncoming traffic

1. The plaintiff's appeal was struck from the roll with costs, including costs of preparation by the defendant of three bundles of documents relating to applications for leave to appeal. 2. The third party's appeal was dismissed with costs. The decision of the Full Court in the second appeal, finding the third party exclusively negligent and liable for the plaintiff's damages, was confirmed.

1. A decision by the Supreme Court of Appeal to refuse special leave to appeal is final in terms of s 21(3)(d) of the Supreme Court Act 59 of 1959, and the court becomes functus officio after such refusal. A subsequent grant of special leave on the same matter would be per incuriam. 2. A driver turning across the path of oncoming traffic must properly satisfy himself that it is not only safe but opportune to do so. While this does not create a general presumption of negligence, the turning driver bears the responsibility for ensuring the manoeuvre can be safely executed. 3. Expert evidence based on hypothesis is of little value if based on unproved assumptions, and is of no value at all if contrary to proved facts. Mathematical calculations in collision cases depend vitally on exact positions and speeds, which are rarely available with accuracy. 4. The Galante principle applies only where two alternative explanations of the cause of an accident are more or less equally open on the evidence. It does not apply where there is an obvious explanation favoring the defendant and only an unsubstantiated theory advanced by the plaintiff.

The court made observations about the limitations of mathematical approaches in collision cases, citing Van der Westhuizen and Santam Beperk cases, noting that mathematical calculations vitally depend on exact positions and speeds which are merely estimates made under circumstances unfavorable to accuracy. The court also observed that applying mathematical methods to elastic data 'is merely to multiply the uncertain by the unknown.' The court noted that had the plaintiff properly conditionally cross-appealed against the absolution order in favor of the third party in tandem with the defendant's appeal, she would have avoided the procedural hurdle that arose. While the insured driver was not called to testify despite being available, the court indicated this would not necessarily trigger application of the Galante principle where the evidence otherwise clearly establishes the cause of the accident.

This case is significant for several reasons: (1) It clarifies the finality of refusals of special leave to appeal under s 21(3)(d) of the Supreme Court Act 59 of 1959, establishing that once an application for special leave is refused, the court is functus officio and cannot entertain a second application. (2) It reaffirms the principle that turning across oncoming traffic is an inherently dangerous manoeuvre requiring particular caution, while clarifying that this does not create a general presumption of negligence or confer an absolute right of way on through-drivers. (3) It provides guidance on the limited value of expert evidence based on hypothesis when the hypothesis rests on unproved assumptions or contradicts proved facts. (4) It clarifies the limited application of the Galante rule, which only applies where two alternative explanations are more or less equally open on the evidence, not where one explanation is obvious and the other is unsubstantiated theory. The case demonstrates the courts' approach to drawing inferences from circumstantial evidence in motor vehicle collision cases.