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[2014] ZAGPJHC 29
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East Rand Bulk (Pty) Ltd v Thompson (17986/12) [2014] ZAGPJHC 29 (28 February 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
CASE
NO: 17986/12
In
the matter between:
EAST
RAND
BULK
(PTY)
LTD
.........................................................................
Plaintiff
and
ROSONNE
THOMPSON
..................................................................................
Defendant
J
U D G M E N T
N
F KGOMO, J
:
INTRODUCTION
[1]
The plaintiff issued summons against the defendant for –
1.1
Payment
of the sum of R1 231 686,15;
1.2
Interest
on the above amount at the rate of 15,5% per annum
a
tempore morae
from 30 January 2012,
alternatively
from the date of issuing of summons,
to date of final payment, both days inclusive;
1.3
Costs
of the action; and
1.4
Further
and/or alternative relief.
[2]
The actions arose out of or from a “
collision
”
that occurred on or about 30 October 2011 at the intersection of the
R554 road and Trichardt Road in or at Elspark. The
specific
allegations are that the defendant, who was the driver of her motor
vehicle bearing registration letters and numbers TXY
328 GP (“
the
defendant’s vehicle
”),
conducted herself in such a manner at the abovementioned intersection
that the driver of the plaintiff’s articulated
truck and
trailer bearing registration letters and numbers 104 ERB GP (for the
horse) and 309 ERB GP (for the trailer) (both to
be referred to as
“
the truck and trailer
”
or “
the truck
”
and/or “
the trailer
”
was obliged to take evasive action that led to the truck and trailer
jack-knifing and being damaged, it losing some of the
petroleum it
was carrying as well as requiring repairs to it and the accident
scene or area of collision or accident requiring
specialised
treatment and rehabilitation.
[3]
It is so that there was no contact between the plaintiff’s and
defendant’s motor vehicles.
[4]
The defendant defended the action, denying complicity and/or
liability towards the plaintiff’s truck and trailer’s
damage and damages. The defendant also pleaded, just like the
plaintiff, that the traffic lights were green for it at the time
of
the accident, i.e. both claiming right of way at the time.
[5]
This is a typical case where there are two mutually destructive
versions. The court will have to look at issues of credibility,
probabilities and surrounding circumstances to arrive at a decision
as to who should be held liable for the accident between the
two
parties herein, whether there was any contributory negligence on the
part of either of the parties and to what extent, as well
as whether
the issue of the quantum of damages deserves to be dealt with in this
trial.
ISSUE(S)
TO BE DECIDED
[6]
The principal issue to be decided herein is who was the cause or
probable or proximate cause of this accident.
THE
PARTIES
[7]
The plaintiff, East Rand Bulk (Pty) Ltd is a company duly registered
and incorporated, with limited liability, in accordance
with the
company laws of the Republic of South Africa (“
RSA
”),
with its trading address being given as 69 Hunslet Road, Phoenix,
Durban, KwaZulu-Natal Province.
[8]
The defendant, Rosonne Thompson, is an adult female person
ordinarily resident at 9 S[…] Avenue, B[…] P[…],
B[…], E[…] in Gauteng Province. She was at the
date of the accident herein employed at Reef Tankers CC which
has as
its principal place of business, 6 Berry Road, Roodekop, Germiston,
Ekurhuleni, Gauteng Province.
EVIDENCE
LED IN THIS CASE
[9]
The plaintiff led the evidence of two witnesses, namely, their truck
driver, Mr Andrew Solomon (“
Solomon
”)
and an expert on accident and repairs costing, towing and salvage of
heavy duty vehicles, Mr Christaudi Salvatore (“
Salvatore
”).
[10]
The defendant herself was the sole witness for the defendant.
[11]
In addition to
viva voce
evidence led in court the plaintiff also relied on documents (duly
discovered of course) filed by Salvatore through an affidavit
in
support of damages, which included in its quotes, invoices, technical
reports on the roadworthiness of the plaintiff’s
truck and
trailer as well as related documents and data.
PLAINTIFF’S
CASE
Evidence
by Andrew Solomon
[12]
He was the plaintiff’s truck driver. On this date, 30 October
2011, he was travelling in the Easterly direction from
Potchefstroom
direction towards Brakpan and/or Springs direction along the R554
roadway. It is a macadamised road with clearly
marked and/or visible
road markings. It was just before 06h00 on the Sunday morning. He was
transporting 42 000 litres of petroleum.
He is a truck driver of 16
years experience.
[13]
The road surface was wet from rain.
[14]
When he approached the robot controlled intersection of the R554
roadway and Trichardt Road at Elspark, some 100 metres from
the
intersection, he noticed a motor car approaching the intersection on
his left, travelling along Trichardt Road. He was driving
at a speed
of 80 km per hour at that stage. The speed limit on this road was 80
km per hour. The traffic lights ahead of him were
red.
[15]
He reduced the speed of the truck and trailer to 60 km per hour.
[16]
When he was 20 metres from the intersection the red lights in front
of him turned green. He started to accelerate his truck
pace.
[17]
When his truck was about three (3) metres from entering the
intersection the motor vehicle that he had seen approaching the
intersection from the left entered the intersection in the face of an
ostensibly red traffic light. He saw that its driver was
looking
down, talking on a cellphone.
[18]
He activated the hooter of his truck and the other driver raised her
head and looked towards his truck.
[19]
That driver was the defendant in this matter. She was driving a Tata
Indica sedan.
[20]
Realising that he was going to collide with this vehicle he applied
brakes and swerved to the right. His truck jack-knifed
and careered
to its right until it came to a stop at an aisle, hitting a wall
nearby. The whole process damaged the undercarriage
or shaft of the
trailer and the diesel started leaking.
[21]
He alighted from his truck and approached the defendant. At
that stage, a white bakkie driven by a white male stopped
at the
scene and talked to the defendant, whereafter the latter reversed
from where her car had come to a standstill and sped away.
[22]
Another bakkie with two black males arrived and stopped at the
accident scene. He explained to them about the defendant’s
flight from the accident scene. He was allowed to climb into
that bakkie and they chased after her and caught up with her
at an
Engen Garage some distance ahead. They blocked her car and he
(Solomon) jumped inside it. When asked why she drove
off she told him
(Solomon) that the white man in the white bakkie at the scene of the
accident told her to drive away as she was
not the cause of the truck
jack-knifing and careering into a wall. She was caused to drive back
to the accident scene.
[23]
According to Mr Solomon, in her haste to leave the accident scene,
the defendant’s car scraped against the pavement
or kerb,
causing its front mudguard or valance to be loose.
[24]
Both drivers gave their versions of what had happened to the police
who arrived at the scene around 12h00, i.e. some six (6)
hours after
the incidents took place.
[25]
It is unfortunate that the police witnesses were not called to
testify in this case. Neither is it clear whether or not accident
reports were completed and sketch plans and their keys prepared. They
are not part of the paginated papers herein.
[26]
It is also unfortunate that the defendant herein was abandoned or
jettisoned by her attorneys of record, Messrs Willem W Naude
of
Glencairn, Wynberg, Cape Town on 22 October 2013. Consequently, she
conducted cross-examination by herself and one should appreciate
that
as a layperson in the law she would find it a challenge to deal with
issues like a seasoned lawyer.
[27]
I may just mention that the defendant spurned or refused my
suggestion that this matter be postponed further to allow her
another
opportunity to procure legal representation.
[28]
The aspect of Solomon’s speed reducing from 80 km per hour to
60 km per hour was elicited during this cross-examination.
The
defendant put it to Solomon that he was the sole cause of the
accident by driving at 80 or 60 km per hour in a fully laden
truck on
a wet roadway towards traffic lights that were red for him and that
he consequently entered the intersection at a time
when it was not
safe or opportune to do so in the circumstances. She also put to him
that by accelerating when he was 20 metres
away from the intersection
solely because the lights turned green at that stage without
ascertaining that it was safe to do so
was negligence on his part.
The witness could not answer the question as to whether his truck was
ever sent for a technical report
on its braking system. He said
that would be known to or be within the competency of his employers.
[29]
It is common cause that Salvatore’s bundle of expert’s
documents contained a report on the truck’s braking
system. I
will deal with it when I analyse Salvatore’s testimony.
However, according to this witness (Solomon) he noticed
the defendant
face down in the moving car talking into a cellphone. When she
noticed the truck or imminent collision she
applied brakes.
Unfortunately he had already decided to swerve to his right to avoid
a collision.
[30]
The long and short of the defendant’s questions was that the
traffic lights were green for her when she saw the truck
approaching
the intersection at a speed that presupposed that it would never stop
in time if she entered the intersection. That
Solomon saw belatedly
that he was going through a red robot and thought she was going to
enter it also as the lights allowed her
to, causing him to swerve to
his right and causing the truck to jack-knife and career into a wall.
EVIDENCE
OF SALVATORE CHRISTALDI (SECOND PLAINTIFF’S WITNESS
)
[31]
He proved his qualifications and experience as an expert in the field
of truck or heavy duty transport collision report writing
and
costing. He also handed in his expert bundle with reports relating to
what he did relating to this accident.
[32]
He has been doing this work for the past 26 years, both in Italy and
in South Africa.
[33]
He explained and pointed to specific reports relating to damage to
the truck and trailer, towing costs, geological clean-up
and
rehabilitation of the accident area following the diesel spillage,
his assessment charges as well as the cost of the diesel
lost.
[34]
The total costs to the plaintiff according to him was R1 085 097,27,
which was the starting point for the computation of the
plaintiff’s
final loss.
[35]
During the defendant’s cross-examination of this witness she
pointed to his expert report which read as follows:
“
My
comments regarding this accident are that, after having spoken to the
driver and read his statement,
I
believe that the cause of this accident is caused by brakes
malfunctioning which has caused the combination vehicle to
jack-knife
.
(my
underlining)
The
evidence shows clear that the tanker has hit the left side of the
horse …
”
(Folio
19 of the Bundle of expert documents attached to affidavit (by
Salvatore) in support of damages.)
[36]
The witness did not disown the above statement.
[37]
He also agreed with the defendant that a truck and trailer such as
the one he was driving would only jack-knife if it was
incorrectly
loaded. When asked why a correctly loaded truck jack-knifed, he
stated that any load over 3 500 kg (which was the case
with his load)
would make a truck pulling or carrying it and travelling at 40 km per
hour to stop only about 16 metres away. He
referred the court to the
calculations of stopping distances and acceleration in Cooper’s
Motor Law.
[38]
That concluded the plaintiff’s case.
THE
DEFENDANT’S CASE
[39]
As stated hereinbefore, it was led through the defendant, Mrs
Thompson, as the only witness.
[40]
Her version is that on this date, i.e. 30 October 2011 she was
travelling towards her workplace along Trichardt Road. It was
just
before 06h00. Her normal reporting time at work is 06h00. However, as
it was a Sunday, strict reporting times were not absolute
necessities
at her workplace : she was allowed to report even at 06h30.
[41]
She drove that route daily and thus knew the timing of the robots at
the intersection of Trichardt Road and the R554 roadway
: it took a
long time to open or turn green for vehicles travelling along
Trichardt Road.
[42]
The traffic lights were red for her as she approached until she
stopped at the intersection. At some stage she saw at the
corner of
her eye that there was a truck approaching the intersection at a
speed that would make it impossible for it to stop if
the lights
turned red for it. It was travelling along the R554 roadway.
[43]
The lights turned green for her and she started to move towards.
However, she realised that that truck was not going to stop
at the
red lights (for it). She applied brakes and stopped. The
truck driver also applied brakes. However the truck
jack-knifed and
careered across the intersection until it hit a wall.
[44]
She speculated that the truck driver possibly saw her car late,
failed to realise that her car had not entered the intersection
and,
believing that a collision was imminent, applied brakes in the wet
conditions prevailing and consequently caused the truck
to jack-knife
and hit the wall.
[45]
She was frightened by what she was witnessing and thus reversed and
stopped nearby, the intention being to go and offer help
to the truck
driver.
[46] At that stage a bakkie driven by a white male
stopped at the area of accident. After she told him what had
happened,
that white male ordered her to leave the scene and not
involve herself with the accident scene as she was not to blame.
At
that stage the truck driver had alighted from his truck and was
approaching her car aggressively. According to this witness, the
truck driver (Solomon) told her that he saw her car late, hence he
swerved and the truck jack-knifed.
[47]
The white man insisted that she leave the scene and she was
intimidated enough to leave.
[48]
According to her (Ms Thompson) she intended to drive to her
workplace, collect a colleague(s) and then return to the accident
scene. In fact this is what she ultimately did later on after
her father-in-law, whom she called on her cellphone after the
accident had phoned the police and also came to the accident scene.
[49]
As she was driving towards her workplace, her path was blocked by a
bakkie with two black males with Solomon also on board.
That was on
the corner of Rodgers Road and the R554 road. Solomon jumped
into her car and ordered her to drive back to the
accident scene,
this time accusing her of having caused the accident and then fleeing
the scene.
[50]
She denied fleeing the scene. She also denied being on her cellphone
looking down to the floor of her car cab and not looking
at the road
ahead and around her, thus entering the intersection against a red
robot or traffic lights.
[51]
She stated further that she never damaged the bumper or valance of
her car on that date as alluded to by Mr Solomon or at
all. She
further stated that she is still driving that car, as such it could
still be inspected for any damage to its front bumper
or valance.
[52]
She produced photos that she had taken of the accident scene. Even
though those photos were only taken on 6 December 2013,
counsel for
the plaintiff did not have an objection if one of them, which I
marked Exhibit “1”, could be accepted as
evidence as it
clearly depicts the intersection where the accident took place.
[53]
I obliged. There was no prejudice.
[54]
This witness was subjected to lengthy and in-depth or incisive
cross-examination by the plaintiff’s counsel. She however
stood
very well to it. At the end of the cross-examination her version was
virtually unscathed.
ANALYSIS
[55]
As I have already alluded to hereinbefore, where there are two
mutually destructive versions, the court may look at credibility
issues, surrounding circumstances as well as at the probabilities
inherent therein.
[56]
The defendant’s expert himself ascribed the jack-knifing of
the truck to its faulty braking system. It is also so that
the road
was wet from rain. The truck was fully laden with some 42 000
litres of inflammable material or fuel. This load
would have made the
pay-load at hand on the day to exceed 3 500 kg, thus making it
difficult for the truck to stop from an object
at a distance of 20
metres.
[57]
Another aspect that ostensibly contributed to the collision is the
speed at which the plaintiff’s truck was travelling
: The
plaintiff’s truck driver saw a robot being red at a distance of
100 metres and only reduced his speed from 80 km per
hour to 60 km
per hour. Up to 20 metres to the intersection the truck was still
travelling at a speed of 60 km per hour. It is
my finding that at
such a speed, there was no way the truck would have stopped for any
vehicle or object that entered the intersection.
Consequently, the
plaintiff’s truck was travelling at a speed that was excessive
in the circumstances. By his own admission,
the plaintiff’s
driver stated that such a truck could only stop at a distance of 16
metres at a speed of 40 km/h.
[58]
The two parties herein have contradictory or conflicting versions as
to whether the defendant stopped her car at the intersection
or just
drove through against a red robot.
[59]
After critically analysing the versions of the truck driver and the
defendant, I am inclined to believe that the defendant’s
version was the more probable : If she had driven into the
intersection without stopping at the stop-line of the cross street
she was using, there would have resulted a real collision between her
car and the truck: A truck travelling at 60 km per hour
and
increasing speed would not have succeeded in swerving out of the
way. I thus find that the defendant’s version
that she
had this speeding truck within her line of vision all the time is on
all probabilities true. It is also probably true
that she stopped at
the intersection waiting for the light to turn green for her and when
it did, she started moving forward but
immediately stopped as she
realised that the truck was going to drive through a red light.
The probabilities also are that
when the plaintiff’s truck
driver realised that he was going through a red robot and another car
in the cross street was
starting to move forward, he took fright and
yanked at the steering wheel while applying brakes hard. Indeed, the
brakes would
not help the situation at that stage. If I was also
allowed to speculate, I would state that the momentum of the forward
movement
of the truck would not have allowed the truck to stop before
the collision had the defendant proceeded to drive through the
intersection
at the material moment.
[60]
On all probabilities, the defendant was a more credible witness.
Despite her handicap of being a layperson, she led a straightforward
and convincing version of events. It cannot also find any fault with
her leaving the scene of the accident. She explained why she
did so
and how she intended returning to the scene with colleagues. Taking
into account evidence that the police only came to the
scene six (6)
hours later, it is my finding that there was no or would not have
been any prejudice to anybody in the circumstances.
[61]
It is the plaintiff here who bore the
onus
.
Why it did not lead the evidence of the attendant police and/or prove
the sketches, keys and say-so’s of those involved
herein is
beyond this Court. However, any prejudice arising therefrom
disadvantages the plaintiff.
CONCLUSION
[62]
When the totality of the evidence led herein is taken into
consideration, it is my finding that the plaintiff’s evidence
is deficient and that the requisite
onus
was not sufficiently discharged. The evidence of Salvatore did
not contribute much towards bolstering the merits of plaintiff’s
case. It concentrated mainly on what should be said about the quantum
of damages, which was a bridge too far at this stage.
[63]
There are a lot of gaps or
lacunae
in the plaintiff’s case on the merits. As such a proper verdict
at this stage should be that of absolution from the instance.
COSTS
[64]
Costs herein should follow the cause. There is no way the
defendant should be mulcted for costs in the circumstances.
The order
of absolution should thus be accompanied by a costs order against the
plaintiff.
ORDER
[65]
The following order is made:
“
Absolution
from the instance is ordered with costs (against the plaintiff).
”
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
FOR
THE PLAINTIFF: ADV
INSTRUCTED
BY: WYNAND NAUDÉ ATTORNEYS
BEDFORDVIEW
TEL NO: 011 601 4041
FOR
THE DEFENDANT: SELF
BEYERS PARK
BOKSBURG
DATE
OF HEARING: 05 NOVEMBER 2013
DATE
OF JUDGMENT: 28 FEBRUARY 2013