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[2015] ZASCA 13
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Roman's Transport CC v Zihlwele and Another (13/2014) [2015] ZASCA 13 (16 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 13/2014
In
the matter between:
ROMAN’S
TRANSPORT
CC
....................................................................................
APPELLANT
and
SISA
ZIHLWELE
.........................................................................................
FIRST
RESPONDENT
NELISWA
NOBOMVU
..........................................................................
SECOND
RESPONDENT
Neutral
citation
:
Roman’s
Transport v Zihlwele
(13/2014)
[2015]
ZASCA 13
(16 March 2015)
Coram:
Cachalia, Shongwe, Zondi JJA, Fourie
and Meyer AJJA
Heard:
18 February 2015
Delivered:
16 March 2015
Summary:
Negligence –sudden emergency –
driver not negligent where collision caused by sudden deflation of
the right front tyre
– Evidence – expert evidence –
evaluation – basis for the rejection of expert evidence.
ORDER
On
appeal from:
Eastern
Cape
Local
Division, Mthatha (Dawood J sitting as court of first instance):
1 The appeal
succeeds with costs.
2 The order of the
court below is set aside and is substituted with the following:
‘
The
plaintiffs’ claims are dismissed with costs.’
JUDGMENT
Zondi
JA
(Cachalia, Shongwe JJA, Fourie
and Meyer AJJA concurring):
[1]
This appeal is against the judgment of the court below (Dawood J)
holding the appellant (the defendant) liable to compensate
the
respondents (the plaintiffs) for personal injuries sustained in a bus
collision. The appeal is with the leave of that court.
[2]
In the court below the plaintiffs sued the defendant for damages
sustained when the bus, owned by the defendant and driven by
its
employee, Mr Nyingwa (the bus driver) left the road and collided with
the face of a rock-cutting, following a right front tyre
blowout en
route from Cape Town to Mthatha. The only pleaded ground of
negligence on the part of the bus driver relevant in this
appeal is
that he failed to apply his brakes timeously, adequately or at all.
[3]
In its plea, the defendant denied that the bus driver was negligent.
Its explanation for the collision was that it was caused
by a sudden
unforeseen blowout of the right front tyre of the bus. This caused
the bus to leave the road and collide with the rock-face
and
overturned. With regard to the allegation that the bus driver had
failed to apply his brakes, the bus driver’s version
was that
he had actually avoided applying the brakes immediately after the
blowout in an effort to keep control of the bus.
[4]
By agreement between the parties, the court below was asked to
determine only the question of liability. It decided that issue
in
favour of the plaintiffs and found that the defendant’s driver
had not taken the best possible course of action to avoid
the
collision and ought to have cautiously applied the brakes sooner.
[5]
The evidence established that the bus, in which the plaintiffs were
being conveyed, left the road and overturned after the right
front
tyre burst. According to the driver he was travelling at a speed of
approximately 95 kilometres per hour on a straight road
between
Beaufort West and Aberdeen, when the blowout occurred. Photographs
depicting the scene of the collision as well as a police
plan and key
thereto indicating a tyre mark at the scene were referred to by the
witnesses. According to the police plan, the distance
between the
start of the tyre mark and the point of impact is 132,2 metres. The
undisputed evidence of the driver was that immediately
after the
blowout of the tyre, the bus veered to the right-hand side of the
dual-carriage way; the bus steering wheel was rotating
fast in both
directions causing the bus to bounce up and down making it difficult
to control. According to the driver, the bus
was ‘jiving and
dancing all over the road’. The bus then left the tarred
surface, collided with the face of the rock-
cutting on the right
side of the road, capsized and landed in a ditch.
The driver
testified that he had not applied the brakes of the bus until the
very last moment before the collision, but this was
too late to avoid
the accident. He explained that he had first tried to bring the bus
under directional control and if he had succeeded
in doing that, he
would have tried to bring the bus to a stop, as he had been trained
to do. His evidence was that the immediate
application of the brakes
in those circumstances would have resulted in an immediate loss of
control.
[6]
The driver’s version regarding what he had
experienced and how the vehicle would, in general, have behaved after
the tyre
burst was accepted by Professor Dreyer and Mr Grobbelaar,
the experts, who testified for the parties.
They agreed that
in the event of the right front tyre of the bus undergoing a sudden
deflation (blowout), the steering wheel would
pull strongly to the
right and the bus would move to the right. The onset of the pull to
the right of the steering wheel and the
movement to the right would
probably happen within one or two seconds after the blowout. The pull
to the right on the steering
wheel, after the tyre had burst and the
movement of the bus to the right, would have been difficult to
correct by the driver. They
agreed further that if the brakes were
applied, with a fully deflated right front tyre, the steering wheel
would pull to the left
and the bus would move to the left. But the
severity of that pull would depend on the level of braking applied.
[7]
But they differed on whether it could have been expected of the
driver to have applied his brakes under the prevailing circumstances.
Professor Dreyer, the plaintiffs’ expert, was of the opinion
that the brakes ought to have been applied almost immediately
after
the blowout to reduce the speed of the bus while the driver tried to
keep the bus under control. The braking action, he considered,
would
have moved the bus to the left which would have aided him to keep it
on the road. He stated that, if the driver had gradually
applied his
brakes over the distance of 132,2 metres the bus travelled after the
blowout, it would have brought the bus to a stop
before the point of
impact. He made this calculation on the accepted evidence of the bus
travelling at 95 kilometres per hour and
covering this distance in
five seconds.
[8]
Grobbelaar, who testified for the defendant, expressed a contrary
opinion. He was of the view that the driver’s decision
not to
apply his brakes immediately was correct. He stated that the most
appropriate action by the driver would have been to concentrate
his
efforts on keeping the bus under control (the steering wheel of which
would have been bucking, shaking and pulling to the right),
while
avoiding braking. He was critical of Professor Dreyer’s
calculation, which he said, was only the function of time and
distance, but did not take into account other dynamics peculiar to a
heavy motor vehicle suddenly developing a change in front
steering
geometry following a tyre blowout.
[9]
The court below was faced with conflicting expert opinions on the
issue whether the driver should have applied brakes. It was
for the
court to decide which, if any, to accept.
[1]
Opinion evidence is admissible when the court can receive appreciable
help from the witness on the particular issue when, by reason
of his
special knowledge and skill, he is better qualified than the trier of
fact.
[2]
An expert’s opinion represents his reasoned conclusion based on
certain facts or data, which are either common cause, or
established
by his own evidence or that of some other competent witness. Before
any weight can be given to an expert’s opinion,
the facts upon
which the opinion is based must be proved. The court below, correctly
disregarded Professor Dreyer’s opinion
on braking systems. He
is a mathematician, not a mechanical engineer, and he conceded that
he knew ‘nothing about the braking
systems of the bus’,
in particular the bus that was involved in this incident. His
evidence therefore did not
help the court.
[10]
But the court also rejected Grobbelaar’s opinion that the
driver could not have been expected to apply brakes immediately
after
the blowout, as it did the driver’s evidence on this aspect. It
found that there was no factual support for Grobbelaar’s
opinion, and on the contrary, that both Grobbelaar and the driver had
conceded that the vehicle would have been easier to control
if the
driver had applied brakes and reduced speed sooner than he did, which
would have avoided the accident. It accordingly concluded
that the
driver was negligent.
[11]
In the court below, the trial was conducted on the basis that the
driver had been faced by a sudden emergency resulting from
the right
front tyre deflation and the question really was whether he exercised
reasonable care and used reasonable skill to avoid
the imminent
danger.
[3]
Accordingly, he could not be found to have been negligent if, while
he was subjected to such an emergency, he chose an option which
after
the event is proved to be wrong. In other words, he is required to
take such steps as a reasonable man exercising reasonable
care and
skill would fairly be expected to take in the circumstances.
[4]
In applying the reasonable man test, the court should not adopt the
hypercritical attitude of an armchair critic, as Els J said
in
Ntsala
and others v Mutual & Federal Insurance Co Ltd
1996
(2) SA 184
(T) at 192F-H:
‘
Where
a driver of a vehicle suddenly finds himself in a situation of
imminent danger, not of his own doing, and reacts thereto and
possibly takes the wrong option, it cannot be said that he is
negligent unless it can be shown that no reasonable man would so
have
acted. It must be remembered that with a sudden confrontation of
danger a driver only has a split-second or a second to consider
the
pros and cons before he acts and surely cannot be blamed for
exercising the option which resulted in a collision. Van der Heever
J
(as he then was) in
Cooper v Armstrong
1939 OPD 140
at 148
said the following:
“
Where
a plaintiff is put in jeopardy by the unexpected and patently
wrongful conduct of the defendant, it seems to me irrational
meticulously to examine his reactions in the placid atmosphere of the
Court in the light of after-acquired knowledge; to hold that,
had he
but taken such and such a step, the accident would have been avoided,
and that consequently he also was negligent. To do
so would be to
ignore the penal element in actions on delict and to punish a
possible error of judgment as severely as, if not
more severely than,
the most callous disregard of the safety of others.”’
See
Road Accident Fund v Grobler
2007 (6) SA 230
(SCA) para 10 in
which this passage was cited with approval.
[12]
The question therefore is whether the court below was correct in
concluding that the driver was negligent. In attacking the
findings
of the court below, counsel for the appellant submitted that the
driver’s decision to avoid using brakes immediately
after the
tyre burst was reasonable in the circumstances.
[13]
Counsel for the respondents submitted that the court below was
correct in finding that the driver was negligent in failing
to apply
the brakes. The thrust of his contention was that a reasonable driver
faced with a similar situation would have tried
to maintain the
directional control of the vehicle by using the steering wheel in
conjunction with the brakes which he would apply
mildly.
[14]
He raised two points in which he anchored his contention. First, he
argued that the evidence established that the driver was
inadequately
trained to deal with the situation with which he was confronted. I
disagree with the respondents. This was not an
issue on the pleadings
or during the trial and it was not a case which the appellant was
called upon to meet. Secondly, his main
contention was that, had the
driver gently applied the brakes immediately after the blowout, which
Grobbelaar conceded could have
been done, the bus would have been
brought under control.
[15] But counsel
misstates Grobbelaar’s evidence on this aspect. He testified
that, theoretically speaking, had the driver
commenced braking
gradually, this would have balanced out the effect of the bus being
pulled to the right by the deflated tyre.
But he pertinently rejected
the proposition put to him based on Professor Dreyer’s opinion,
that if the vehicle pulled to
the right by virtue of the deflated
right front tyre, it would be unreasonable to try and steer to
the left without applying
the brakes gently. This is how Grobbelaar
explained the situation in which the bus driver found himself:
‘
That
driver is confronted at the time, with a steering wheel pulling to
the right so drastically he cannot get this bus back. At
the same
time he is bouncing up and down in his seat, as a result of this tyre
that is folding up underneath the wheels. The steering
wheel is
bucking in his hands, and I think his evidence was exactly to that
extent. He is bouncing up and down, he cannot apply
a constant
braking coefficient to the brake pedal. The manner in which he sits,
and the manner in which the brake pedal is applied
on a truck or a
bus, is you sit more or less above the pedal, you don’t sit in
a backward motion like in a motor car, so
if you are bouncing up and
down, you also don’t have your heel, on the, on the floor, or
surface, because you can’t
apply the pressure required. So if
you are sitting with your foot on the brake pedal, and if you are
bouncing up and down, then
the brake pedal is bouncing up and down
with your leg. So you cannot apply this precise constant point 1 or
point 15, to balance
the forces, there is so many other things
happening at the same time, it just would not be possible for the
driver to do that,
and that’s, that is my fundamental
difference with Professor Dreyer in terms of the calculation. The
calculation itself at
point 4, will bring it to a stop, but there are
too many other things happening, to this bus at the same time to
allow you to do
that.’
And, he continued:
‘
M’Lady,
the ─ the problem arises in that, what I have been trying to
explain, its not an armchair mathematical approach
to say we need
point 15, we just apply gentle braking, there is, there is a lot
happening inside the bus at that point in time.
You trying to keep
the bus straight, it’s pulling to the right, your first ─
the first thing that you are trying to
do, and which you are taught
to do is to get the bus under control, keep control. When you have
control, then you can start applying
the brakes, because when you
haven’t got control, and you apply brakes, the consequences
would be disastrous, that’s
what people are taught, under these
circumstances. Now, we sit with a situation of a driver sitting in
this bus, the steering wheel
is pulling him to the right, he to such
an extent that he cannot bring it back, he is hanging onto the
steering wheel. At that
point we now expect him to apply just a
gentle braking coefficient to bring this back. He doesn’t
understand the dynamics
of the vehicle that we are now speculating on
and with mechanical knowledge, and vehicle engineering knowledge, we
know that this
is what will happen. So all I am saying is
theoretically one can do that, and theoretically it makes sense if
you could do that,
and if you could apply just this simple braking
coefficient, one would be able to slow the vehicle down, and the
consequences may
be less. Practically it may have other consequences
of the bus losing control to the other side for example, and that is
why the
driver does not apply his brakes, that’s why they
taught not to do that, because it changes the situation drastically.’
[16]
So, it is clear from his evidence that although the driver could
theoretically have maintained control of the bus by applying
brakes
gently, this may practically have had disastrous consequences in the
prevailing circumstances. In fact, the driver’s
evidence on
this aspect of the case (mild application of brakes), put the issue
beyond question. His evidence was that, given the
situation in which
he found himself, it would have been practically impossible for him
to have been able to decide on the level
of braking that would have
been appropriate. It is therefore clear that the court below’s
rejection of Grobbelaar’s
expert evidence on the basis of lack
of factual support, was incorrect. His conclusion was based on the
driver’s evidence
regarding what he had experienced immediately
after the tyre blowout. This matter involved the weighing of the
risks against benefits
of braking. I am satisfied that, in forming
his view that the driver could not be expected to have applied the
brakes in the circumstances,
Grobbelaar had directed his mind to the
question of comparative risks and benefits and had reached a
defensible conclusion on the
matter.
[17]
It is clear from the driver’s evidence and that of Grobbelaar
that the accident was unrelated to any negligence on the
driver’s
part. He was suddenly and without warning confronted with a situation
which required him to respond immediately.
He explained why he had
used the steering wheel instead of brakes to maintain the directional
control of the bus. In my view, the
driver acted reasonably in
deciding not to apply his brakes to avoid the collision. Although the
accident nevertheless occurred,
in spite of what the driver did to
avert it, that does not render unreasonable the steps he took. As
this Court put it in the
Grobler
case (para 12) it is ‘wrong
to examine meticulously the options taken by him to avoid the
accident, in light of after-acquired
knowledge, and to hold that
because he took the wrong option, he was negligent. . .’. In
the circumstances the court below’s
finding that the driver was
negligent, was incorrect.
[18] In the result
the following order is made:
1 The appeal
succeeds with costs.
2 The order of the
court below is set aside and is substituted with the following:
‘
The
plaintiffs’ claims are dismissed with costs.’
_______________________
D
H Zondi
Judge
of Appeal
Appearances
For
the Appellant: J D Maritz SC (with him B Boot)
Instructed
by:
Savage,
Jooste & Adams, Pretoria
Webbers,
Bloemfontein
For the Respondents:
P A Corbett
Instructed
by:
Malcolm
Lyons Brivik Inc, Cape Town
Matsepes Inc,
Bloemfontein
[1]
Jacobs
& another v Transnet Ltd t/a Metrorail & another
2015
(1) SA 139
(SCA) para 15. See also
Buthelezi
v Ndaba
2013
(5) SA 437
(SCA) para 14:
‘
Yet
that determination is bound to be informed by the opinions of
experts in the field which are often in conflict, as has happened
in
this case. In that event the court’s determination must depend
on an analysis of the cogency of the underlying reasoning
which led
the experts to their conflicting opinions.’
[2]
Stock
v Stock
1981
(3) SA 1280
(A) at 1296E-F.
[3]
W E Cooper
Delictual
Liability In Motor Law
(1996)
at 275.
[4]
Van
Staden v Stocks
1936
AD 18
at 22.