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[2016] ZAGPJHC 134
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Intercape Ferreira Mainliner (Pty) Limited v Pro-Haul Transport Africa CC and Another (44350/2012) [2016] ZAGPJHC 134 (3 June 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 44350/2012
DATE: 3 JUNE 2016
In the matter between:
Intercape Ferreira Mainliner (Pty) Limited
(Registration number
1997/011763/07)
......................................................................................
Plaintiff
And
Pro-Haul Transport Africa CC
(Registration number
CK2000/033162/23)
...................................................................
First
Defendant
LB Ntuli Plant Hire and Civil Engineering CC
(Registration number
CK2006/126857/23)
...............................................................
Second
Defendant
JUDGMENT
Van der Linde, J:
Introduction: the issues
[1]
The plaintiff sues the two defendants for the
material damage caused to its luxury passenger bus when a collision
occurred on the
N3 highway outside Johannesburg. The collision
involved the plaintiff’s passenger bus, the first defendant’s
horse,
trailer and pup combination, and the second defendant’s
water tanker. They were all travelling in the same direction, roughly
from south east to North West, at 05h38 in the morning, on a
Thursday, 30 September, 2010. The bus was behind the water tanker
and
the combination was stationary in the left lane of a three-lane
highway, facing North West. The tanker, travelling in the left
lane,
first collided with the rear right of the combination vehicle and one
second later the bus, also travelling in the left lane
but in the
process of moving over to the middle lane, in turn collided with the
rear right of the tanker.
[2]
The plaintiff bus owner says the collision was
caused by the owner of the combination vehicle in having left its
vehicle on the
road at night without any warning lights on, and
without the regulation warning triangles. Alternatively, it says that
the tanker
driver was to blame for, amongst others, suddenly moving
his vehicle into the lane in which the plaintiff’s bus was
travelling.
Alternatively, the plaintiff says both were to blame for
a combination of these reasons.
[3]
The first defendant, owner of the combination
vehicle, says that the driver of the water tanker and the bus driver
were to blame.
The first defendant blames the tanker driver for the
same things the plaintiff blames him; and blames the bus driver for
amongst
other things failing to keep a safe following distance
between the bus and the water tanker.
[4]
The second defendant, owner of the water tanker,
does not expressly blame anyone, but denies that its driver was to
blame for the
collision. The plaintiff’s allegations of
negligence concerning the second defendant’s driver are placed
in dispute,
but there is no joining of issue with the first
defendant.
[5]
Negligence was the only issue in dispute in the
trial, the plaintiff’s damages having been settled at
R472 700.41. Since
there are no counterclaims, there is no
potential of the plaintiff becoming liable to the defendants; but
there is the potential
of the defendants’ liability, if any, to
the plaintiff being reduced; and there is the potential of a division
between the
defendants of liability for the plaintiff’s
damages. All that is ultimately dependant on how the negligence cake
is sliced,
if it is sliced.
The
evidence
[6]
The plaintiff called three witnesses, the first
defendant none, and the second defendant one, being its driver. The
plaintiff’s
driver has since deceased and could for that reason
not be called. The person responsible for the first defendant’s
vehicle was not called.
[7]
The plaintiff’s first witness was an expert,
Mr Bezuidenhout, who proved the video recording that was made. That
went in as
exhibit A, with stills as exhibits B and C. The recorder
was mounted in the middle of the front windscreen of the bus, just
underneath
the rear-view mirror. The camera thus recorded to the
front, the view said to be 180% from the position of the camera, and
not
precisely what the driver would have observed, although close to
it. It was also slightly higher than the driver.
[8]
The point really about this evidence was that if
the video were to show anything sticking out to the left of the water
tanker in
front of the bus, which might have reflected a part of the
combination vehicle of the first defendant, then it did not follow
that
the bus driver would actually have been able to observe it. The
video reflected what the bus driver would have observed looking
forward (nothing that was visible to the bus driver in his rear-view
mirror was visible on the camera), but from a perspective
in the
middle of the bus, whereas the driver’s perspective was from
right of the middle, the bus being right hand drive.
[9]
The second witness for the plaintiff was also an
expert, Mr Fourie, described as a “
collision
reconstructionist”
. He was called
to and did give evidence about how in his view the collision
occurred, having regard to the video that he had been
given to
observe. This was the same video that Mr Bezuidenhout had proved.
[10]
Much of Mr Fourie’s evidence went to the
very issue that the court had to decide, and was thus
inadmissible.
[1]
The point is, simply put, that no witness can give
his or her opinion on the very issue that the court has to decide. In
a collision
case, such as this, no witness can be called to say that
driver A was negligent, and driver B was not; or give evidence to
that
effect.
[11]
Since the matter was set out plainly in his
judgment, I make no excuse for quoting liberally on this issue from
the judgment of
Bekker, J in R v Heroldt and Others (1):
[2]
“
Mr.
Horwitz, on behalf of accused Tesanovic, objected to the question.
He, in my view, correctly pointed out that the question whether
or
not the payment of £15,000 was met from funds created by
certain of the deposits referred to was an issue in this case,
and an
issue which this Court would have to decide upon eventually. Counsel
contended that it was not permissible, and, indeed,
not proper for
this witness to express or to be allowed to express an opinion on a
very issue which the Court has to determine.
He furthermore intimated
that he sought a ruling as he intended objecting to all opinion
evidence which the Crown might seek to
extract from this witness on
an issue which the Court would have to determine. Mr. Harwood, for
the Crown, pointed out that Cox,
as an expert, could not only be of
great assistance in enabling this Court, through his evidence, to
return findings on these issues,
but said that the involved and
complex nature of the accounts and record and the movement of monies
required the services and evidence
of a skilled accountant to unravel
and reveal them in true colour, and that in these circumstances an
expert's evidence not only
becomes necessary but that he was entitled
to express and opinion even though it be on a very issue which I have
to determine.
I have no
doubt that Mr. Cox, with his training and his knowledge of the
affairs of Hendon and the issues which have to be decided
by this
Court, could be of assistance. I also entertain the view that his
opinion on the issues I have to determine could well
be considered
with advantage and that Mr. Harwood appears to be correct in his view
that without the assistance of an accountant
the Court may have
considerable difficulty in coming to a conclusion, or a correct
conclusion, in the absence of evidence which
he seeks to place before
the Court through this witness.
In any
criminal case, and perhaps more so in the present one, involving
innumerable books, entries and records, the movement of
funds and
corresponding entries and figures in banking and other accounts, I
regard it as essential, if not obligatory, on the
part of the Crown
to direct the attention of the accused, and the Court, to every and
any particular book, account, entry or figure
therein appearing, on
which it will seek to rely for a conviction on any particular charge.
This would avoid a situation in which
the accused person might be
taken by surprise and would serve to acquaint the Court with those
items at an early and convenient
stage. The prosecutor might, of
course, do so himself or he may conceivably do it more conveniently
through a witness, such, for
example, as Mr. Cox. But can he go
further and invite an opinion from the witness on an issue which the
Court has to decide?
In support
of his contention that such a course would not only be improper but
would tend to allow the introduction of inadmissible
and irrelevant
evidence Mr. Horwitz advanced a number of arguments and referred me
to various authorities, from which, I think,
it is clear that, as a
general rule, it is for the Court to form an opinion or draw
inferences from the relevant facts proved,
and that it is not
permissible for a witness to express an opinion upon any fact as to
which the Court itself can form an opinion.
The reason
for the rule is clear, and is crisply set out by Wigmore on Evidence
(vol. 7 para. 1918, at p. 11). The learned author
says:
'The rule
endeavours to save time and avoid confusing testimony by telling the
witness, 'The tribunal is on this subject in possession
of the same
materials of information as yourself. Thus, as you can add nothing to
our materials for judgment, your further testimony
is unnecessary and
merely cumbers the proceedings'. It is this living principle which
is, or ought to be, applied in each instance,
and nothing more
definite is there than the test involved by this principle'.
The fact
that in a case such as the present the volume of documents, the
accounts and the complexity of the entries may render the
task of
the Court more onerous and difficult in the absence of expert
evidence and opinion does not, in my opinion, sanction
any departure
from nor constitute an exception to the general rule.
And, it is
perhaps for this very reason, that one finds provision made in the
Criminal Procedure Act of 1955, sec. 111, (which re-enacts
earlier
provisions), to the effect that in cases where facts may have to be
considered, for the proper understanding of which an
expert
knowledge, inter alia, of bookkeeping and accounts may be necessary,
that the Minister may direct that the trial should
take place without
a jury, thus enabling a Judge to summon to his assistance as an
assessor, and constitute as a member of the
Court, a person possessed
of such expert knowledge.
Mr.
Harwood, however, made reference to a passage appearing in Wigmore
(vol. 4, para. 1230) which is to the following effect:
'Where a
fact could be ascertained only by the inspection of a large number of
documents, made up from very numerous detailed statements
as the net
balance resulting from the year's vouchers of the treasurer or a
year's accounts in a bank ledger, it is obvious that
it would often
be practically out of the question to apply the present principle by
requiring the production of the entire mass
of documents and entries
to be perused by the jury or read aloud to them. The convenience of
trial demands other evidence to be
allowed to be offered in the shape
of testimony of a competent witness who has perused the entire mass
and will state summarily
the net result. Such a practice is well
established to be proper'.
The
learned author points out that the most commonly recognised
application of this principle is that by which the state of pecuniary
accounts is allowed to be shown by a witness's schedule or summary,
but it does not, in my view, serve as any authority for the
proposition that the witness may go further and having stated the net
result, to proceed to air his opinion, even though an expert
one at
that, on issues which the Court has to decide.
In the net
result I am satisfied that the objection is well-founded and that the
witness Cox is not to be permitted to express his
opinion on issues
which this Court will have to determine. This renders it unnecessary
for me to deal with the further arguments
advanced by Mr. Horwitz in
support of his contention.”
[12]
But any even brief reference to this topic would
be incomplete without quoting from the
locus
classicus
in our law on the
admissibility of expert evidence on the very issue the court has to
decide; that of Trollip, JA in Gentiruco AG
v Firestone SA (Pty)
Ltd:
[3]
“
To
advert to the question of admissibility of evidence to construe the
specification, the question that arises is whether the evidence
of a
skilled, expert witness' opinion as to the meaning of any part of the
specification, including the claims, is admissible.
It arises because
during the trial the parties' expert witnesses were freely asked, and
they testified, about what they thought
the relevant parts of the
specification meant. The decisions of our Courts on the admissibility
of expert opinion evidence on the
very issue that the Court has
itself to decide do not appear to be harmonious. The usual ground for
urging or deciding on its exclusion
is the usurpation by the witness
or the abdication by the Court of the Court's function of
adjudicating the particular issue (see,
for example, R. v Herholdt
and Others,
1956 (2) SA 714
(W)). Wigmore, who deals with the
whole problem with his usual incisiveness in his work on Evidence,
vol. VII, 3rd ed., paras.
1917 to 1929, pours scorn on this reason
for exclusion in para. 1920:
This
phrase (about usurpation) is made to imply a moral impropriety or a
tactical unfairness in the witness' expression of opinion.
In this
respect the phrase is so misleading, as well as unsound, that it
should be entirely repudiated. It is a mere bit of empty
rhetoric.
There is no such reason for the rule, because the witness, in
expressing his opinion, is not attempting to 'usurp' the
(court's)
function; nor could he if he desired.'
The reason
given is that the Court is not bound by his opinion; it is still free
to reject it and decide the issue for itself. In
para. 1923 the
learned author maintains that the true and practical test of the
admissibility of the opinion of a skilled witness
is whether or not
the Court can receive 'appreciable help' from that witness on the
particular issue; in other words,
'The test
is a relative one, depending on the particular subject and the
particular witness with reference to that subject'.
Otherwise
his evidence would be supererogatory and superfluous, and would
possibly merely consume time, cumber the proceedings,
or confuse the
main issues, and should therefore not be admitted (para. 1918). The
cogency of those views is manifest, and in certain
cases our Courts
seem to have admitted opinion evidence of that kind substantially for
those reasons - see, for example, Annama
v Chetty,
1946 AD 142
at pp.
155 - 6 (handwriting); Rex v Morela,
1947 (3) SA 147
(AD) at pp.
152 - 3 (fingerprints); R. v Vilbro,
1957 (3) SA 223
(AD) at pp.
228C to 229A (race classification), and Ruto Flour Mills Ltd. v
Adelson (1), 19
58 (4) SA 235
(T) and authorities there cited
(accountancy). In the present case, the subject-matter of the
specification being of a highly complex,
scientific nature, the
opinions of the parties' well qualified and experienced experts, as
being representative of the skilled
addressees of the specification,
on the meaning of their understanding of its relevant parts, while
not binding on the Court, might
have been of appreciable help.
However, I have arrived at the conclusion that the admission of their
opinion evidence on that particular
aspect is precluded by English
authority rendered binding on the Commissioner's Court and us by our
legislation.”
[13]
The up to date position is collected by the
Supreme Court of Appeal in Representatives of Lloyds and Others v
Classic Sailing Adventures
(Pty) Ltd.
[4]
This does not mean that experts’ assistance
on matters such as stopping distance is not admissible; it usually
is.
[5]
[14]
The difficulty for me however with Mr Fourie’s
evidence was that it was interspersed with personal opinions about
the drivers’
duties in law in given circumstances. It was also
not in a field that is foreign to any motorist of some experience.
His evidence
about the time it takes to cover a fixed distance if one
travels at a certain speed, is a matter of simple arithmetic.
[15]
I accept that his evidence about how long it would
take the vehicles concerned to come to a complete stop, assuming
certain speeds,
is a matter in respect of which he could be, and was,
of assistance to the court. That is arithmetic that cannot be
performed without
input of the mass of the vehicles concerned, their
braking efficiency, and the appropriate mathematical formulae to
apply. But
on the whole, his evidence should be scrutinised to ensure
that he was not usurping the function of the court, and thereby –
completely innocently – inhibiting the court in coming to its
own conclusion on matters that really involve everyday common
sense
matters.
[16]
The plaintiff’s third witness was Mr Nortje,
an employee of the plaintiff. He visited the scene of the collision
soon after
it had occurred and spoke to the bus driver, who gave him
his version. He also proved the bus driver’s contemporaneous
written
version of the collision. It was:
“
I,
Andries Matseke, I was following the truck in front of me for 10
minutes. When I was following that truck, I was driving +- 50
kmpu.
I was
trying to change the lane because I saw the space on the right side.
The front one tried to change the lane. He was late to
change because
there was a truck in front of him having break down (stuck).
The front
truck crashed the stuck truck at the back and the rear part of the
front truck came in front of me.
I try to
swerve the bus. The space was too small. Then crashed the corner of
that truck which I was travelling to the same direction
with.
In your
opinion, who was to blame? The stationary truck.
Why? No
triangle. No hazard. Under the bridge and too dark. No light.”
[17]
Finally, Mr Ntuli, the driver of the second
defendant’s water tanker, testified. He explained that he was
travelling in the
left hand lane at about 50 – 55 kph. At some
distance away he saw the combination vehicle. He could not make out
whether
it was moving or stationary. There were no warning triangles
placed out in the road, and no operative lights at the rear of the
combination. He first applied his brakes once. He could then see that
the combination vehicle was stationary.
[18]
Mr Ntuli observed the bus behind him, travelling
faster than he was, also in the left lane. He observed too a large
low bed truck
with a container fixed on it to his right in the middle
lane, also approaching him from behind. He was thus twixt the triple
horns
of a dilemma: the stationary combination vehicle ahead of him,
in the same lane; the bus behind him, encroaching on him, in the
same
lane; and the third truck in the middle lane, behind him, but also
encroaching on him. Ahead was the danger of hitting the
stationary
combination vehicle; he could not move to the right, because the
third truck was occupying that lane and was catching
up on him, so
that he could not go into that lane; and he couldn’t stop,
because the bus driver was behind him, approaching
him, and would
slam into him.
Following
distance
[19]
Much in this case turns on the duties of a driver
when leaving a vehicle stationary on a highway; but that s/he must
ensure that
in those circumstances it should be visible to other road
users is not contested. This is not surprising, as the old case of
SAR
& H v Estate Saunders
[6]
authoritatively established that a driver who
parks a vehicle at night is duty bound to display proper lights
and/or signs so as
to warn other road-users of the vehicle’s
presence.
[7]
[20]
There is also express provision in regulation 214
of the National Road Traffic Regulations, 2000, made under s.75 of
the National
Road Traffic Act 93 of 1996 (“the regulations”),
for retro-reflective fluorescent triangular warning signs to be
posted
45 meters away from such a stationary vehicle in the direction
of the on-coming traffic.
[21]
What was however a point of contestation, by the
plaintiff, was the suggestion that a driver must keep a following
distance behind
the vehicle in front of him/her, such that if that
vehicle were by sudden emergency required to stop in its tracks, the
following
vehicle could do so without colliding with the leading
vehicle.
[22]
Perhaps this discussion should start with the
position of the leading vehicle in those circumstances. Generally,
the approach in
our law has been that when a driver, who is
confronted with a sudden emergency which is not of his/her own
making, takes steps
to avoid a collision, but fails to avoid the
collision, it is impermissible afterwards to argue that s/he should
have taken different
steps which would in fact have avoided the
collision.
[8]
[23]
In Road Accident Fund v Grobler
[9]
the majority of the Supreme Court of Appeal (per
Hancke, AJA) put the matter as follows: “
[12]
When a person is confronted with a sudden emergency not of his own
doing, it is, in my view, wrong to examine meticulously
the options
taken by him to avoid the accident, in the light of after-acquired
knowledge, and to hold that because he took the
wrong option, he was
negligent. The test is whether the conduct of the respondent fell
short of what a reasonable person would
have done in the same
circumstances.”
[24]
Concerning following distance, regulation 308
provides (emphasis supplied):
“
308
General duties of driver or
passenger of vehicle on public road
(1) No
person driving or having a vehicle on a public road shall-
(a) …
(b)
follow another vehicle more closely than is
reasonable
and prudent
having regard to
the speed of such other vehicle and the traffic on and the condition
of the roadway, or more closely than is prescribed
in these
Regulations;…”.
[25]What
is reasonable and prudent still does not, of course, expressly say
that the following driver must be able to stop without
colliding with
the leading driver if the leading driver had to stop abruptly for a
sudden emergency. But older cases that have
taken the trouble to
examine the duties of drivers in those circumstances have indeed
produced
dicta
to
that effect. In Abdool v Slade
[10]
it was held that the following driver ought to
adjust both his/her speed and the intervening space between his/her
vehicle and the
leading vehicle so that s/he is able to pull up or
swerve in the event of a sudden stoppage of the leading vehicle.
[11]
[26] A
more recent decision is that of Murphy v Commercial Union Assurance
Co Ltd in 1983.
[12]
Burger,
J referred to the National Road Safety Council’s apparent
advice that the following vehicle should be at least two
seconds
behind the leading vehicle. This concept of two seconds is also
picked in current internet searches as a sort of rule of
thumb, and
it is said to allow both for reaction time (as Burger, J held) and
evasive action.
[27]
Burger, J himself held that the following distance must be enough
“…
to deal either with a
sudden stoppage of the bakkie in front, or any development on the
side of the road caused by the passing bakkie,
ie a cyclist upset by
the passing wind drag, a drunken pedestrian losing his balance
because of the bakkie passing and falling
into the road or an animal
on the side of the road upset by the passing bakkie, or children
playing next to the road who could
possibly run into the road and of
course traffic which may enter from the side.”
[13]
[28] It seems
reasonably clear then that the following driver must keep such a
distance as would enable him/her either to stop,
or to swerve, but at
all events to avoid, colliding with the leading vehicle if the
leading vehicle were to stop immediately as
a result of a sudden
emergency.
[29] It is
necessary to flag here the notion of “swerve” in this
context. The description of the rule in the previous
paragraph
assumes, of course, a vehicle that is able to swerve without in that
process endangering yet more people. So one has
in mind the generic
sedan or, in modern parlance, a SUV, which would be comfortable in
executing the swerve without thereby actually
causing yet further
collisions.
Basic
factual findings
[30]
Here now follow some basic factual findings. The
more contentious factual inferences are drawn below in the discussion
part of this
judgment. In each instance I indicate the source or
reasoning that led to the finding concerned.
[31]
It is common cause that the lighting was poor. It
was early yet, and although clear blue skies, still dusky. The video
reflects
that vehicles were travelling with their headlights turned
on, corroborating the as yet poor visibility.
[32]
The position under the bridge where the
combination vehicle had been brought to a standstill, contributed to
obscuring the presence
of that vehicle, in its stationary position,
to the view of traffic in the same direction. This is borne out by
the photographs
and the video, and the contemporaneous witness
statement of the bus driver.
[33]
There were lights switched on at the rear of the
combination vehicle. Mr Ntuli said that there were no lights switched
on, but photographs
B10.1 – B10.3 are against him.
[14]
[34]
No triangles as prescribed had however been put
out. This was the direct evidence of Mr Ntuli, and it was
corroborated by Messrs
Bezuidenhout and Nortje, who could find no
evidence after the collision of triangles having been put out.
Although these witnesses
were generally challenged by the first
defendant, no contrary version was put to them on this point. In
particular, it was not
put that triangles had been put out.
[35]
In these circumstances the inference is that the
position of the combination vehicle, at that time, in that place,
created a danger
to other relevant road users. Whether this fact was
causally connected to the collision between the bus and the water
tanker is
another matter, dealt with below.
[36]
The water tanker was travelling ahead of the bus
in the same left lane, but at a slower speed. This is shown by the
video and the
bus catching up on the water tanker. It was also the
observation (of the video) of Mr Fourie. Mr Nortje also said that Mr
Matseke
had told him that in the approach to the collision area, the
tanker would overtake the bus on the downhill, and the bus would
overtake
the tanker on the incline. In that area, the road is at an
incline. That was the evidence of Mr Ntuli, and he was not challenged
on it, despite the plaintiff’s witnesses being familiar with
the area.
[37]
The bus reached a stage, in this catching up
process, where if the water tanker were to stop immediately, the bus
would run into
the back of the water tanker. This conclusion was
justified by the evidence of Mr Fourie. The bus was travelling
between 2 and
2,5 seconds behind the water tanker, he said. Mr Fourie
said however, that even if the bus driver had applied his brakes
fully
at 4.74 seconds before the collision, it would have required 77
metres for the bus stop.
[15]
There was not this amount of space between the bus
and the water tanker.
[38]
This timing, 4.75 seconds before the collision, is
taken from B5.2. That is the moment the water tanker applies its
brakes not for
the first but for the second time.
[16]
The bus driver in fact did not apply brakes then;
Mr Matseke last applied brakes at 5.25 and 5 seconds before the
collision.
[17]
[39]
The third truck, the low bed with the container,
was travelling faster than the bus, and was travelling faster than
the water tanker.
It was however travelling in the middle lane, and
it was in the process of overtaking first the bus and thereafter the
water tanker.
[40]
In its position and with its speed at the time the
third truck was an obstacle to both the bus and the water tanker
accessing the
middle lane at times when in each instance it would
have enabled them to avoid the danger that was caused by the presence
of the
first defendant’s combination vehicle on the road. This
conclusion is justified by observation of the video.
[41]
That the third truck was an obstacle to the water
tanker is uncontentious; that it was also an obstacle to the bus
appears from
the fact that when the water tanker first braked, Mr
Matseke had not yet activated his indicator;
[18]
this he did for the first time when the water
tanker had already started braking for the second time.
[19]
Since 0.25 seconds later one sees the back of the
third truck, with Mr Matseke still with his hand on the indicator, it
seems very
probable that Mr Matseke was biding his time for the third
truck to pass.
Discussion
[42]
Against the background of these factual findings
it is possible now to discuss the actions of the two drivers. Viewing
first the
position of Mr Ntuli: he was confronted by the sudden
emergency of the stationary combination vehicle. His options were to
stop
completely, as Mr Fourie suggested he should have done. For
reasons already given I do not accept Mr Fourie’s evidence on
this score; which is not to say that the court cannot itself reach
that conclusion. But it should not be because it was Mr Fourie’s
evidence.
[43]
Mr Ntuli considered that option, but he was
concerned that the bus would slam into him, he said. He wanted to get
out of the way;
which is why he bided his time to move to the right,
all the while slowing down, and switching on his right indicator
light.
[44]
Was Mr Ntuli’s judgment that to stop would
have the bus slam into him wrong? On reflection, probably not. But
more importantly,
was it reasonable? Mr Fourie thought that given the
bus’s distance from the water tanker and its speed, the bus
would have
hit the water tanker unless the bus will by then have
moved completely into the middle lane, as he was entitled to do.
[45]
But there are problems for this argument. First,
Mr Ntuli was not under the impression that the bus had moved
completely into the
middle lane. To the contrary, the middle lane was
where he, Mr Ntuli, was in fact waiting to slot into, because he
considered that
staying in the left lane left him vulnerable from
both the front, the combination vehicle, and the back, the bus.
[46]
Mr Ntuli found himself in an impossible position.
His patent inability to estimate distances (he said the bus was one
meter behind
him) did not in my view without more disqualify him from
being a reasonable driver. Witnesses are often bad judges of
distance,
but that does not make them bad judges of dangers on the
road. Mr Ntuli impressed me as an honest witness, who was doing his
best
to relay what he had observed nearly six years ago. After all,
why volunteer readily to initially fleeing the scene of the accident?
[47]
Mr Ntuli’s assessment of his situation at
those critical moments, particularly to move into the middle lane,
accordingly cannot
on the basis of the authorities referred to above
now be questioned.
[48]
Mr Ntuli was confronted by a sudden emergency not
created by himself. The stationary combination vehicle was at least
partially
obscured, on any version; and the probabilities are, one
must accept, that had it been equipped with warning lights and the
required
triangle, its visibility would likely have been considerably
enhanced. Thus, the need to take avoiding action, and the potential
danger posed by the approaching bus, was not of Mr Ntuli’s
making.
[49]
Returning to the argument then that the bus driver
did not actually need to be able to stop in time behind the water
tanker, because
the bus driver followed the second option, of moving
into the middle lane: there are two answers to this. First, there was
in fact
no space in the middle lane, objectively speaking, because
that is precisely where the water tanker was going, as Mr Matseke
would
have been able to observe; and it was the only place it could
go.
[50]
It avails not to say that the bus driver was not
aware of the emergency that was unfolding in front of the water
tanker. The law
does not require of him to have been. His duty was to
keep a sufficient distance to enable to stop in time to avoid a
collision
with the leading vehicle, whatever it was that caused the
leading vehicle to stop immediately.
[51]
One might say that what is sauce for the goose is
sauce for the gander: that if Mr Ntuli’s conduct cannot be
challenged, nor
can that of Mr Matseke. But Mr Matseke was not acting
in a sudden emergency. On the evidence, he thought that he could
simply overtake
the water tanker by moving to the middle lane. He was
quite oblivious to any emergency evolving in front of him.
[20]
Objectively, he was of course wrong, because the
water tanker was in a sudden emergency.
[52]
But there is a second answer to the proposition.
It flows from the first answer: Mr Matseke was not swerving to avoid
colliding
with the water tanker. He was not swerving at all. In fact,
Mr Fourie opined that Mr Maseke would not have been able to swerve in
this sense, because with his trailer, and heavily massed vehicle, a
consequential jack-knife action was a real danger of a swerve
and
brake.
[53]
The conclusion is therefore indicated that Mr
Matseke’s following distance fell short of the standard
required of him; he
could not stop in time to avoid colliding with
the water tanker, because there was not enough space; and swerving to
the right
to avoid such a collision was not on, not with that
vehicle, because that implied jack-knife dangers and injury to
others.
[54]
In my view it follows that Mr Matseke was causally
negligent in relation to the collision with the water tanker.
[55]
It is necessary now finally to consider the
position of the driver of the stationary vehicle combination, from
the point of view
of causative negligence. Here the argument for the
second defendant was that even if the vehicle combination should and
could have
been lit up better, the fact is that the reason why Mr
Ntuli could not stop in time was the immediacy of the approaching
bus. That
being so, the cause of the collision was not the unlit
vehicle, but the approaching bus.
[56]
But that cannot be so. The entire catastrophic
scenario would not have eventuated were it not for the stationary
combination vehicle
which in bad light had no warning that it was
stationary, and likely conveyed the opposite, obscuring practically
the entire left
lane on a busy highway.
[21]
The
pat application of the but-for test for establishing factual
causation is a handy tool; but it is just a tool, not a principle
of
law.
[57]
Put differently, in this case it could potentially
be permissible to think away the unacceptable and unlawful proximity
of the approaching
bus, and then to ask whether the collision would
still have occurred. On Mr Ntuli’s evidence, the collision
could have been
avoided, because he would then have been able to stop
in time in the left lane behind the combination vehicle without
colliding
with it.
[58]
He may have been right, but even applying the
but-for test, the unlawful conduct of the bus driver is not a
novus
actus interveniens
, and it does not
immunise the unlawful conduct of the first defendant. More
importantly, in our law the question of factual causation
is
ultimately a probability exercise: is the alleged unlawful conduct
more probably than not the cause of the plaintiff’s
harm? This
was authoritatively restated by the majority of the Constitutional
Court in Lee v Minister for Correctional Services.
[22]
[59]
Nkabinde, J, for the majority put it simply:
[23]
“
[55] There was thus nothing in our law
that prevented the high court from approaching the question of
causation simply by asking
whether the factual conditions of Mr Lee's
incarceration were a more probable cause of his tuberculosis, than
that which would
have been the case had he not been incarcerated in
those conditions. That is what the high court did and there was no
reason, based
on our law, to interfere with that finding.”
[60]
The stationary combination vehicle was a
considerable obstruction. It was comprised of three parts: the
mechanical horse, its trailer,
and the pup. It obstructed the rump of
the left lane. This was on a busy highway; on a bend in the road to
the left; when it was
dusky; under a bridge; and with no warning
lights or trinkets to convey that it was stationary and obviously a
danger for road
users. Such lights as there were likely conveyed
that, to the contrary, the vehicle was in normal mode, and was this
moving.
[61]
One is not dealing here with a remote cause; the
combination vehicle was right there in the thick of things,
immediately relevant
to the two vehicles which were damaged in the
collision that occurred not at some distant location, but right into
it. One must
also bear in mind that the collision combination is not
separable; the water tanker collided with the combination vehicle,
but
had that not occurred, and had the water tanker been able to stop
in time behind the combination vehicle,
a
fortiori
the bus would also not have
collided with the water tanker, because the bus would on this
hypothesis have kept an appropriate following
distance.
[62]
In my view the probability is that had the
stationary combination vehicle adequately and visibly identified
itself as stationary,
its status as such would have registered with
Mr Ntuli much sooner; and that would have meant more time for him,
and for Mr Matseke,
to have taken consequential and sequential
evasive action.
[63]
It follows that the first defendant was also
causally negligent in relation to the plaintiff’s damages. In
apportioning the
respective degrees of blameworthiness of the first
defendant and the plaintiff relative to the collision, I take into
account that
the first defendant had much more time to arrange and
control its conduct than did the plaintiff. I also take into account
that
the first defendant’s remissness was more brazen, in the
sense that it endangered many more people, and over a longer period
of time. An apportionment of 25/75 in favour of the plaintiff best
captures my assessment.
[64]
In the circumstances of this case, including the
absence of management explanation on the part of the first defendant
of how the
combination had come to be stationary where it was and
without any warning apparatus, I considered whether it would be
appropriate
that the first defendant should carry the costs of the
second defendant.
[65]
I have come to the conclusion that it would not.
Not only did the second defendant not claim costs from the first
defendant, but
throughout the trial the plaintiff made no bones about
it that it regarded the second defendant as having been causally
negligent
in relation to its damages.
[66]
I believe it is fair that the interest rate should
follow the statutory fluctuations.
Conclusion
[67]
In the result I make the following order:
(a)
The plaintiff’s
claims against the second defendant are dismissed with costs.
(b)
Judgment is
entered in favour of the plaintiff against the first defendant for
R354 525,31 plus costs.
(c)
The
plaintiff’s costs are to include the expert fees, including
qualifying fees, of Messrs
Bezuidenhout
and Fourie.
(d)
Interest runs on the judgment debt owed to the
plaintiff at 15,5% p.a from 13 April 2013 to 31 July 2014; at 9% p.a.
from 1 August
2014 to 29 February 2016; and at 10.25% p.a. from 1
March 2016 to date of payment.
WHG van der Linde
Judge, High Court
Johannesburg
For the
plaintiff: Adv. M Basslian, SC (083 267 2772)
Instructed by:
Bailey Haynes Inc
2
nd
Floor,Paramount Towers
112 Loop
Street,Cape Town
Tel: 021 422
4963
Ref:
JH/INT1/0015
c/o
Leonard Singer Attorneys
142
Beyers Naude Drive
Roosevelt
Park, Johannesburg
Tel:
011 782 0134
Ref:
M Shlagman/B107
For
the first defendant: Adv. Geyser (082 772 7999)
Instructed
by: Dyason Incorporated
134
Muckleneuk Street West
New
Muckleneuk
Pretoria
Tel:
012 452 3500
Ref:
Cory/MV/DD0097
For
the second defendant: Adv. Kali (073 030 7021)
Instructed
by: AK Manthe Attorneys
c/o
Twala Attorneys
13
th
Floor, Braam Fischer Towers\20 Albert Street
Johannesburg
Tel:
011 832 2073
Ref:
Mr Twala/Sinethemba/M1722
Date
of hearing: 26, 27, 30, 31 May 2016, and 1 June 2016
.
Date
of judgment: 3 June 2016.
[1]
In Commercial Union Insurance Co of SA Ltd v
Wallace, NO; Santam Insurance Ltd v Afric Addressing (Pty) Ltd,
2004
(1) SA 326
(SCA) at [74], this principle was referred to as if
axiomatic.
[2]
1956 (2) SA 714
(W) at 715 to 717.
[3]
1972 (1) SA 589
(A) at 616 to 617.
[4]
2010 (5) SA 90
(SCA) at [60]. Compare Van Eck v
Santam Insurance C Ltd,
1996 (4) SA 1226
(C) at 1229 H – 1230
B.
[5]
Seti v Multilateral Motor Vehicle Accidents Fund,
1999 (1) SA 1035
(SE) at 1040 in fin.
[6]
1931 AD 276
, discussed at page 15 in WE Cooper,
Motor Law, Juta & Co, Ltd, 1987, Vol 2.
[7]
Cooper, op cit, page 16, footnote 65.
[8]
Cooper, op cit, page 90 ff.
[9]
2007 (6) SA 230 (SCA).
[10]
1931 NPD 4
, quoted in MacIntosh & Scoble,
Negligence in Delict, Juta & Co, Ltd, 1970, 5
th
ed, at page 456 ff.
[11]
Kuper, J in Reemers v AA Insurance Association,
1962 (3) SA 823
(W) at 825 expressly adopted this approach, which is
consequently binding on this court unless I can find that it is
clearly
wrong. The subsequent case of Coleman v Mabuza,
1963 (2) SA
498
(T) is a two judge (Ludorf, Kuper JJ) Full Bench of the then
Transvaal Provincial Division, which binds me even if I considered
that it was clearly wrong.
[12]
1983 (3) SA 487
(C) at 488, 489.
[13]
At page 489.
[14]
This reference is shorthand for “Exhibit B,
page ten, third photograph”. It may of course be that these
lights had
the converse effect, of conveying a sense of normalcy,
whereas the true position was the opposite.
[15]
The two second rule clearly could not be applied
to this bus with its trailer because of its size and mass.
[16]
The first time is at B2.3.
[17]
Photographs B4.3 and B5.1.
[18]
Photographs C2.3; C3.1.
[19]
Photograph C5.3.
[20]
In the evidence there was reference to the
relaxed attitude evidenced in Mr Matseke’s body language in
the video frames.
[21]
The photograph at trial bundle page 54 is a good
example of this.
[22]
2013 (2) SA 144 (CC).
[23]
At [55].