About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2016
>>
[2016] ZASCA 44
|
|
Tyco International (Pty) Ltd and Another v Golden Mile Trading 547 CC (949/2013) [2016] ZASCA 44 (31 March 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 949/2013
In
the matter between:
TYCO
INTERNATIONAL (PTY) LTD FIRST
APPELLANT
FAST
’N FRESH TRANSPORT
SECOND
APPELLANT
and
GOLDEN
MILE TRADING 547 CC
RESPONDENT
Neutral
Citation:
Tyco
International v Golden Mile Trading
(949/2013)
[2016] ZASCA 44
(31 March 2016).
Bench:
Navsa ADP, Swain &
Zondi JJA, Tsoka and Kathree-Setiloane AJJA
Heard:
18 February 2016
Delivered:
31 March 2016
Summary:
Apportionment of
Damages Act 34 of 1956 – trial court erred in apportioning
damages substantially in favour of respondent
– negligence of
the two drivers deviated in equal measure from the norm of the
reasonable person – when appeal court
may interfere with the
narrow exercise of judicial discretion by trial court in
apportioning damages.
ORDER
On
appeal from
:
Western Cape Division of the High Court, Cape Town (Mathee AJ sitting
as court of first instance):
(1)
The appeal is upheld.
(2)
Each party shall pay their own costs.
(3) The order of the
trial court is set aside and replaced with the following order:
‘
1.The
defendant is liable for 50 per cent of the plaintiffs’ proved
damages in
convention.
2.The
plaintiffs are liable for 50 per cent of the defendant’s proved
damages in reconvention.
3.
Each party shall pay their own costs.’
JUDGMENT
Kathree
- Setiloane AJA (Navsa ADP, Swain, Zondi JJA and Tsoka AJA
concurring):
[1]
During the early hours of 7 November 2005, on the national motorway
(N1) approximately 40 kilo meters outside of Richmond, a
collision
occurred between a truck and semi - refrigeration trailer combination
(the red truck), owned and operated by Tyco International
(Pty) Ltd
and Fast ‘n Fresh Transport (Pty) (Ltd) (the appellants), and a
truck tractor and trailer triple combination (the
white truck) owned
by Golden Mile Trading 547 CC (the respondent). At all times relevant
the driver of the red truck was Mr Samuel
Fakude (Fakude), an
employee of the second appellant, and the white truck Mr Daniel
Groenewald (Groenewald Jr), an employee/member
of the respondent.
[2]
During the early evening of 6 November 2005 the red truck, driven by
Fakude, was travelling, on the N1 between Richmond and
Three Sisters,
in a southerly direction from Johannesburg to Cape Town. The red
truck hauled a trailer, on which a large white
refrigeration box,
containing a consignment of food, was mounted. The road was a
carriageway with one traffic lane in each direction
and emergency
lanes on either side. The night sky was overcast and it rained
lightly. There were no road lights.
[3]
At about 20h15, after driving over the crest of a small rise in the
road, Fakude noticed an approaching vehicle overtaking another
approaching vehicle. In order to avoid colliding with the overtaking
vehicle, which had moved entirely into his lane of travel,
Fakude
swerved sharply into the emergency lane to his left. This caused the
wheels of the left hand side of the truck-combination
to move
completely off the eastern shoulder of the road and travel on the
sloping gravel verge beyond it. Although the right hand
side of the
truck-combination remained on the tarred shoulder of the road, it was
in danger of toppling over.
[4]
After the overtaking vehicle had passed, Fakude attempted to get his
truck-combination back onto the tarred surface of the road
by
swerving it. This caused the refrigeration box to dislodge and fall
(upright and intact) diagonally across the road, at a distance
of
about 300 meters beyond the crest, obstructing both traffic lanes, as
well as the tarred eastern shoulder of the road. The western
shoulder
remained unobstructed. Immediately thereafter, Fakude turned the red
truck around to face north and parked it approximately
12 metres
south of the refrigeration box on the eastern shoulder of the road.
He then illuminated the refrigeration box with
the headlights
of the truck, primarily for the benefit of vehicles approaching the
obstruction from the south.
[5]
According to Fakude he subsequently placed three reflective triangles
north of the refrigeration box, on the eastern verge of
the road. He
placed the first triangle about 12 metres from the refrigeration box,
and the remaining two about 24 metres from there.
Fakude
remained active on the scene, directing traffic around the
refrigeration box. Consequently, both north-bound and south-bound
traffic were able to pass the refrigeration box, along the western
shoulder of the road, without incident − until the events
described below took place.
[6]
Fakude had, on several occasions, reported the incident to the
control room of the first appellant which, in turn, reported
it to
the local police. The police had simply not arrived. Sometime before
midnight, Fakude was tired and retired to the cabin
of the red truck,
where he fell asleep. Rather bizarrely, at about midnight three
significant events occurred more or less
simultaneously. First, a
heavy vehicle, the particulars of which are unknown (the third truck)
travelling in a northerly direction
passed the refrigeration box on
the western shoulder of the road.
[7]
Second, an Iveco minibus, driven by Mr Mthobeli Ndinisa, (Ndinisa)
approached the refrigeration box, also travelling in a northerly
direction. He engaged his bright lights as he came closer, stopped
the minibus on the western side of the road at a distance of
about 15
to 20 metres from the refrigeration box, and he proceeded to get out
of the minibus. He did not see the third truck as
it had already
passed the refrigeration box. Third, the white truck, travelling in a
southerly direction, approached the scene.
Groenewald Jr, the driver
of the white truck, was accompanied by his father Mr Gabriel
Groenewald (Groenewald Sr). Groenewald Jr
drove the truck at 85 kilo
meters per hour, as this was the speed at which its cruise control
was set. When Groenewald Jr drove
over the crest, which was
approximately 300 metres from where the refrigeration box lay, the
third truck had already passed the
refrigeration box and was
approaching the white truck between the crest and the refrigeration
box. As the two trucks approached
each other, the third truck flashed
its headlights at the white truck, temporarily blinding Groenewald Jr
and limiting his range
of vision to 25 metres.
[8]
Although Groenewald Jr disengaged the speed control of the white
truck, he did not appreciably reduce its speed and continued
to
travel at a speed of between 70 km/h to 85km/h. As a result, when
Groenewald Jr saw the refrigeration box, he was too close
to avoid it
and the white truck crashed into, and through, the refrigeration box
and collided with the red truck and the minibus
beyond it. All three
vehicles were damaged and the refrigeration box and its load were
completely destroyed. Fortuitously Ndinisa
who, at the very moment of
impact, was about to get out of the minibus, had not yet done so and
suffered no significant injuries.
Peculiarly, other than being
covered in tomato sauce from the refrigeration box, neither of the
two Groenewalds suffered any injuries.
Fakude too sustained no major
injuries.
[9]
The appellants instituted action, against the respondent, in the
Western Cape Division of the High Court, Cape Town for damages
arising from the collision between the two trucks. The respondent, in
turn, instituted a claim in reconvention against the appellants,
jointly and severally, for damages arising from the same collision.
At the commencement of the trial it was agreed that the court
would
decide only the merits of the competing claims and the question of
quantum would be held over. The trial court (Mathee
AJ) found
the appellants to be negligent on the basis that Fakude had:
(a)
retired to the cab of
the truck leaving the refrigeration box, which caused an obstruction
to a busy arterial road, unattended.
(b)
placed the reflective
triangles too close to the refrigeration box (the farthest at a
distance of some 24 metres from it), hence
providing insufficient
warning of the obstruction in the road to the vehicles approaching
from the north.
These
findings are not challenged on appeal.
[10]
The respondent sought to prove, in the trial court, that the
appellants had been negligent in relation to the dislodging of
the
refrigeration box as it had, purportedly, not been properly secured
to the trailer. The trial court found that the respondent
had failed
to prove that the appellants were negligent in relation to this
aspect. The trial court did, however, find Groenewald
Jr to be
negligent for not taking more defensive and effective avoidance
measures, when faced with the flashing lights of the third
truck. It
reasoned as follows:
‘
[I]t
would have been prudent [for Groenewald Jr] to reduce the speed more
than he did to better place himself in a situation to
take more
defensive and effective measures when the danger became clear to him.
It also would have allowed the effects of his temporary
blindness to
pass. The probabilities are that had he done this, he would have been
in a position to avoid the collision. His failure
to do so, in my
view, amounts to a measure of negligence on his part.’
[11]
Having found both parties to be negligent, the trial court
apportioned damages between them in terms of s 1(1)
(a)
of the Apportionment of Damages Act 34 of 1956 (the Act) (both in
convention and in reconvention). The trial court found that the
proven negligence of the appellants’ driver (Fakude) -
‘throughout [to remain] present and vigilant until the police
arrived and/or the obstacle was removed’ from the road was
causally linked to the collision. It, accordingly, apportioned
damages substantially in favour of the respondent by issuing the
following order:
‘
1.
The plaintiffs are apportioned 80% liability for any damage defendant
may prove.
2.
Defendant is apportioned
20% liability for any damage plaintiffs may prove.
3.
Plaintiffs are to pay defendant 80% of its taxed costs, such costs to
include
the qualifying costs of Mr Brinklow, flowing from the
determination of the issue of apportionment of blame by the
plaintiffs and
defendant.’
It
is these findings that the appellants challenge on appeal. The appeal
is with leave of this Court.
[12]
The issue in this appeal, consequently, relates only to the
apportionment of damages as between the appellants and the respondent
namely, whether there was a causal link between the proven negligence
of the appellants’ driver and the collision. Section
1(1)
(a)
of the Act confers a discretion upon a court of first instance to
reduce damages, suffered by a claimant, on a just and equitable
basis having regard to the degree to which the claimant was
also at fault. As held by this Court in
Transnet
Ltd t/a Metrorail & Another
:
[1]
‘
[A]n
appeal court will not decide the question afresh; it will interfere
with the exercise of the discretion exercised by the trial
court only
where it is shown that:
“
(T)he
lower court had not exercised its discretion judicially, or that it
had been influenced by wrong principles or a misdirection
on the
facts, or that it had reached a decision which in the result could
not reasonably have been made by a court properly directing
itself to
all the relevant facts and principles.
[2]
An
appeal court is therefore entitled to interfere …where its
assessment differs so markedly from that of the court a quo
as to
warrant interference… .”’
[3]
Therefore,
in the absence of a misdirection or irregularity, an appeal court
should not interfere with a trial court’s apportionment
of
damages unless its own assessment varies substantially from that of
the trial court.
[4]
[13]
The appellants initially contended for a complete reversal of the
trial court’s apportionment of damages on the basis
that the
trial court misdirected itself because it took into account, in its
assessment of the relative degrees of fault of the
parties, that
Fakude had failed to remain on the scene until the police arrived or
the obstruction was removed, when his failure
to do so did not cause
or contribute causally to the collision. Before us, however, the
parties, after taking instructions, accepted
that
ex
hypothesi
if:
(a) Fakude had stayed on the scene and directed the traffic around
the obstruction on the road, as he had done before retiring
to the
cabin of his truck; (b) Fakude had lit the refrigeration box
differently, so that it was illuminated for the benefit
of vehicles
approaching from both the south and the north; (c) Fakude had placed
the reflective triangles further away from the
obstruction in the
road; and (d) Groenewald Jr had reduced his speed
appreciably when alerted to the danger ahead by
the flashing
headlights of the third truck, then it can be accepted that the
collision would have been avoided and, consequently,
a just and
equitable apportionment of damages as between the parties should be
in the ratio of 50:50 or 60:40, as opposed to 80:20
in favour of the
respondent as ordered by the trial court.
[5]
Of course, in advancing a 60:40 split, each party contended that the
apportionment of 40 per cent should be in its favour both
in
convention and reconvention, respectively. I agree that an 80:20
split would not be in accordance with the equities –
and that
the trial court misdirected itself as the proposed split of 60:40 or
50:50 or 40:60 are within a reasonable range.
[14]
What then remains for determination is the degree of blame that
should be attributed to each of the parties within the accepted
parameters referred to above. In assessing the degree of fault to
attribute to each party in relation to the damages suffered as
a
result of the collision, the court must determine how each of their
acts or omissions, causally linked with the collision in
issue,
deviated from the norm of the reasonable person.
[6]
It is crucial, however, not to lose sight of the fact that the
assessment of the degree to which a party is at fault, in relation
to
the damage suffered, ‘involves an individual choice or
discretion’ as to which there may be ‘differences of
opinion’. As recognized by this court in
South
British Insurance Company Ltd v Smit
[7]
‘
From
the very nature of the enquiry, apportionment of damages imports a
considerable measure of individual judgment: the assessment
of “the
degree in which the claimant was at fault in relation to the damage”
is necessarily a matter upon which opinions
may vary. In the words of
LORD WRIGHT in
British
Fame (Owners) v Macgregor (Owners)
,
1943 (1) A.E.R. 33
at p. 35:
[8]
“
It
is a question of the degree of fault, depending on a trained and
expert judgment considering all the circumstances, and it is
different in essence from a mere finding of fact in the ordinary
sense. It is a question, not of principle, but of proportion,
of
balance and relative emphasis, and of weighing different
considerations. It involves an individual choice or discretion, as
to
which there may well be difference of opinion by different minds.”’
[15]
The appellants argued for a 60:40 apportionment in their favour on
the basis that even if Fakude had remained on the scene
immediately
prior to the collision, his presence would have made no difference
because when the respondent’s truck drove
over the crest in the
road on its final 300m approach to the refrigeration box, and came
within sight of the flashing headlights
of the third truck, the third
truck had already passed the refrigeration box. This, it argued,
would manifestly have been the case,
even if Fakude had remained
vigilant at the scene, because there was nothing that Fakude could
have done which might have affected
the way in which the third truck
had responded to the white truck, as the third truck would have still
flashed its lights at the
white truck, blinding Groenewald Jr and
restricting his range of vision to 25 metres. In addition, the
appellants argued that Fakude
did everything that a reasonable person
in his position could possibly have done to alert oncoming traffic to
the obstruction in
the road by:
(a)
Turning his vehicle
around and parking it south of the obstruction with its headlights
shining on the obstruction, thus illuminating
it for traffic
approaching from Cape Town to see;
(b)
Alternating between the
north and the south side of the obstruction, depending on the
direction from which traffic approached, in
an effort to warn
approaching traffic of the obstruction; and
(c)
Implementing an
impromptu ‘stop-go’ control system to assist traffic
around the obstruction.
[16]
I disagree. I am of the view that Fakude’s presence at the
scene of the obstruction would have ameliorated any risk of
an
oncoming vehicle colliding with the obstruction in the road, as had
been the case in the hours before he retired to the cabin
of the red
truck. As correctly found by the trial court:
‘
The
fact of the matter is that while he remained on the scene, there was
no incident. The probabilities suggest that had he remained
on the
scene, the collision would not have occurred. Mr Tyler argued that
given the intrusion of the truck with the flashing lights,
Mr
Fakude’s presence on the scene would have made no difference.
This is to ignore the effect on that vehicle the presence
of Mr
Fakude would have had. In this regard the probabilities suggest that
in the hours before the collision, when Mr Fakude was
an active
participant on the scene, there would have been scenarios similar to
what happened just before the collision. As already
stated, during
the period before the collision he had been central to controlling
traffic from both directions in a way that ensured
that no collision
ensued. He had at times also commandeered assistance in this regard.
The crucial consideration was that during
that period there was a
person on the scene taking responsibility to use whatever resources
were at his disposal to minimise the
danger to other motorists of the
obstruction in the road. There was a person in charge to read each
situation which arose and take
appropriate action.’
In
the circumstances, I am of the view that the trial court correctly
concluded that because the road on which the collision occurred
was a
main arterial road used by heavy vehicles it was clearly negligent
for Fakude to leave the obstruction in the road unattended.
It cannot
be ignored, in this regard, that prior to abandoning the scene,
Fakude had been very active at the scene, and had successfully
managed to warn traffic approaching from both sides of the
obstruction – and for as long as he remained there –
there
was no incident.
[17]
I am of the view that, if the appellants’ driver had remained
at the scene, and had continued to direct traffic around
the
obstruction, as he had done earlier that evening, then this would
have, in all probability, eliminated the need for the driver
of the
third truck to flash its headlights at the respondent’s truck.
To ignore this, would be to discount the overwhelming
probability
that the driver of the third truck acted as he did precisely because
no one was attending to the obstruction in the
road. He, thus, took
it upon himself to warn oncoming traffic of the obstruction in the
road. This is borne out by the fact that,
whilst the appellant’s
driver was present and in control of the obstruction in the road, he
managed to safely and adequately
control traffic approaching from
both sides of the obstruction without incident. It is this which the
trial court was referring
to when it stated: ‘This is to ignore
the effect on that vehicle [the third truck] the presence Mr Fakude
would have had.’
[18]
In addition, and as was found by the trial court, the placing of the
reflective triangles at a distance of 12 metres and 24
metres
respectively from the obstruction in the road on a dark and wet night
was of no use to vehicles (approaching from the north)
travelling at
a speed of 120 kilo meters per hour as they were entitled to. Placing
the reflective triangles at a distance of at
least 100 metres would,
in all probability, have made a difference. In the same vein,
lighting the obstruction primarily for the
benefit of vehicles
approaching from the direction of Cape Town was ill-considered, and
hence negligent. A reasonable person in
the position of Fakude would
have illuminated the obstruction with the truck headlights shining at
a 90 degree angle to either
the east or west side of the obstruction.
In that way, the obstruction would have been visible to traffic
approaching from both
the north and the south. In the circumstances,
I consider Fakude’s conduct to have deviated substantially from
the norm of
the reasonable person.
[19]
I consider the conduct of the respondent’s driver to have
deviated from the norm of the reasonable person in equal measure
to
Fakude, primarily for failing to take heed of the warning lights of
the third truck, especially since he had ignored it as a
warning
signal and further for failing to reduce his speed appreciably. The
evidence reveals that the headlights of the third truck
temporarily
blinded him, so that he could see virtually nothing ahead of him. He
estimated that his range of vision was limited
to 25 metres. This
notwithstanding, and although he disengaged his speed control, he
failed to appreciably reduce his speed and
continued to travel at
between 70 kilo meters per hour and 85 kilo meters per hour.
[9]
Groenewald Jr conceded, in cross-examination, that when a driver sees
flashing headlights of an approaching vehicle, he or she
ought to ‘ry
op so ‘n manier dat hy kan stop as daar so ‘n gevaar in
die pad is’.
[20]
He conceded that, in relation to a vehicle such as the white truck,
which is a triple combination vehicle and one of the largest
that you
find on our roads, this precautionary measure would have required him
to drive at a speed of lower than 70km/h. However,
his reason for not
having decelerated more appreciably was simply that he took a chance
− hoping for the best. This paragraph
from his cross
examination in the trial court is instructive:
‘
Sou
u saamstem, dit is maar ‘n argument wat later gevoer sal word,
dat u die voertuig sodanig –die spoed sodanig moes
verminder
het sodat u wel kon stop binne u gesigsveld as daar
‘
n
gevaar in die pad is? – As daai lorrie my nie verblind het nie
en daar was voor die tyd tyd om te stop, kon ons dit gemaak
het, ja,
meneer.
Maar
die probleem is nou juis, mnr Groenewald, u is gewaarsku van ‘n
gevaar in die pad. Sou u nie saamstem dat u onder daardie
omstandighede die spoed heelwat minder, na heelwat minder as 70
kilometer per uur moes verminder het nie? – Ja, meneer, maar
ons het – lorries flits gewoonlik vir jou ligte. Jy verminder
nie altyd spoed as hulle net ligte flits nie.
Is
dit hoe u bestuur? – Ja, meneer.
So
u vat maar daardie kans dat daar nie iets in die pad gaan wees nie –
(geen hoorbare antwoord)
Wat
sê u daarop? – Ja, meneer.
U
hoop maar vir die beste, nie waar nie? . . .
Ekskuus
tog? – Ja, meneer.’
Quite
clearly, if Groenewald Jr had reduced his speed appreciably, then the
collision would have been avoided. Accordingly, I find
that the trial
court erred in concluding that the negligence of the respondent’s
driver was ‘of a small degree’
when compared to that of
the appellants’ driver. He ought to have found that, the
negligence of the two drivers deviated
in equal measure from that of
the reasonable person and, in the circumstances, it was just and
equitable to apportion damages between
them in the ratio of 50:50.
The substantial difference in the degree of fault which is attributed
to each of the parties on appeal,
as compared to that attributed to
each of them by the trial court, warrants interference by this Court.
[21]
Finally, in view of the fact that the fault of the parties in
relation to the damages suffered is equipoised, I consider it
to be
fair and just for each of them to pay their own costs in the appeal
and in the court below.
[22]
The following order is made:
(1)
The appeal is upheld.
(2)
Each party shall pay their own costs.
(3) The order of the
trial court is set aside and replaced with the following order:
‘
1.The
defendant is liable for 50 per cent of the plaintiffs’ proved
damages in
convention.
2.The
plaintiffs are liable for 50 per cent of the defendant’s proved
damages in reconvention.
3.
Each party shall pay their own costs.’
_________________
F
Kathree-Setiloane
Acting
Judge of Appeal
Appearances
For
appellants:
TR Tyler
Instructed by:
Dicks
Van Der Merwe Attorneys,
Cape Town
Honey Attorneys,
Bloemfontein
For
respondent:
A Troskie SC and MC Tucker
Instructed by:
Botha & Olivier Inc,
Cape Town
McIntyre
& Van der Post, Bloemfontein
[1]
Transnet Ltd t/a Metrorail
& Another v Witter
[2008] ZASCA 95
;
2008 (6) SA 549
(SCA) at 557A.
[2]
National Coalition for Gay
and Lesbian Equality & Others
v
Minister of Home Affairs &
Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC) para 11 (cases omitted).
[3]
Footnote omitted.
[4]
Shield Insurance Co Ltd v
Theron, NO
1973
(3) SA 515
(A) at 518 B-D.
[5]
Subsequent to the hearing of the appeal, a note seeking
clarification in respect of this proposal was filed of record. The
concluding paragraph of the note reads:
‘
In
the circumstances, the appellants’ attorney intended to
instruct counsel to accept a proposed apportionment of 60/40
in
favour of the appellants (or an equal apportionment of 50/50).’
This note was served on the attorneys for the respondent.
[6]
South British Insurance Co
Ltd
v
Smit
1962 (3) SA 826
(A) 835H –
836A.
[7]
(above)
at
837F-H.
[8]
Text omitted.
[9]
Flanders
& Another v Trans Zambezi Express (Pty) Ltd & Another
[2008]
ZASCA 152
;
2009 (4)
SA
192
SCA at
200
A-C.