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[2010] ZAWCHC 604
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Tony's Truck Centre (Pty) Ltd v Hendricks (4102/2008) [2010] ZAWCHC 604 (6 December 2010)
Republic of South Africa
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
CASE
NO: 4102/2008
In
the matter between:
TONY'S
TRUCK CENTRE (PTY) LIMITED
…........................................................................................
Plaintiff
and
WAYNE MONRAY HENDRICKS
…...................................................................................................
Respondent
JUDGMENT
DELIVERED: 6 DECEMBER 2010
BINNS-WARD,
J:
[1] This case
concerns a claim by the plaintiff for compensation in damages in
respect of the loss allegedly suffered by it as a
consequence of the
collision of a vehicle driven by the defendant with one of its tow
vehicles. The collision happened on the N2
national road between Bot
River and Caledon in the early hours of the morning of 7 March 2006.
[2]
Mr Prinsloo, a driver in the employ of the plaintiff, gave evidence
that he had been summoned to assist at the scene of an incident
on
the night of 6 March 2006. Apparently what had happened was that a
heavily loaded horse and trailer, which had been under tow,
had
broken loose from the tow vehicle while being towed up a rising
gradient in the direction of the Caledon. The horse and trailer
had
run backwards down the slope and lodged themselves off the side of
the road. Assistance was required from the specialised vehicle
under
Prinsloo's control to winch the stranded vehicle back into the road.
[3] Prinsloo
stated that as he approached the scene of the aforementioned incident
along the N2, driving towards Caledon from the
direction of Bot
River, he could see the place of the breakdown from some considerable
distance because of the lights of the attending
traffic enforcement
officials. He said this was indeed what he customarily looked out for
whenever he was summoned to an incident
after dark. He testified that
while he and his colleague were doing their work his attention was
drawn to a fast approaching vehicle
coming along the road from the
direction of Bot River. This vehicle collided with his vehicle and
then crossed the opposite side
of the road and crashed into the
barrier rails at the side of the road. He went across the road to
ascertain whether anyone in
the other vehicle had been injured.
[4]
Prinsloo said that the only person in the other vehicle was the
driver. He stated that when he reached the vehicle the driver
was
bent over the steering wheel with his head towards the windscreen. As
he looked into the vehicle this person flopped backwards
against the
seat. Prinsloo said there was a strong smell of alcohol
detectable. The driver of the other vehicle was confused
and
incoherent. Prinsloo assisted him to get out of the vehicle and lie
on the ground to await the arrival of an ambulance. The
driver of the
other vehicle was injured and in the course of assisting him
Prinsloo's shirt was drenched with the driver's blood.
[5] Prinsloo
stated that he was not qualified as an expert to say whether the
driver of the other vehicle was intoxicated or not,
but he gained the
impression that this was the case, not only because of the smell of
alcohol that pervaded the other driver's
presence, but also because
of the other driver's behaviour in cursing and carrying on
inappropriately. Prinsloo conceded under
cross-examination that such
behaviour might also have been ascribable to the driver injuries.
[6] Prinsloo
testified that the scene of the area in which the collision occurred
had been well lit up. He referred in this regard
to the lights on the
attending traffic police vehicles and six bright spotlights mounted
on his own vehicle for the purpose of
illuminating the area in which
he and his colleague, the late Charles Nel, had to work in order to
winch the horse and trailer
out of troubke and back into the road.
[7]
Prinsloo was shown a sketch plan of the scene of the collision drawn
by Cst. Brand of the Caledon police station. This sketch
plan was put
in by the plaintiff's counsel as Exh. A. He did not agree that the
sketch plan entirely accurately depicted the scene,
but he recognised
the vehicles indicated thereon as being A, the vehicle driven by the
defendant, B, his own vehicle and C the
vehicle that was subject of
the salvage operation. He confirmed that his vehicle was to some
extent blocking the side of the road
intended for use by the vehicles
travelling in an easterly direction towards Caledon. He said he could
think of no good reason
why the defendant should not have timeously
seen the obstruction in the road. He stated that other vehicles using
the road at the
time had had no difficulty in slowing down, or
stopping, so as to safely negotiate the hazard occasioned by the
salvage operation.
Prinsloo did, however, state that there were no
cones or warning triangles in the road.
[8]
The plaintiff also called a traffic policeman who had charge of the
scene. This was Mr Mzukize Khonza. Mr Khonza stated that
he had been
on duty on the afternoon of 6 March 2006 wwhen, at about 17h00, he
received a report of a broken down vehicle on the
N2. He proceeded to
the scene to manage traffic. He was assisted by a colleague. The tow
truck summoned to the scene lost its tow
connection to the vehicle
and it was necessary to summon a specialised vehicle to salvage the
situation. The specialised vehicle
was the one brought to the spot by
Mr Prinsloo in the early hours of the morning.
[9]
Khonza stated that he was managing traffic approaching from the Bot
River direction. Because the two traffic lanes for vehicles
heading
east towards Caledon were blocked, a stop-start system was set up.
Traffic in both directions was therefore compelled,
to the exclusion
of traffic travelling in the opposite direction to use in turns the
single lane intended for traffic travelling
westward towards Bot
River. Khonza stated that traffic control cones had been placed in
the roadway to guide traffic. He also described
how his official
vehicle had been parked in the road facing towards Bot River with its
headlights and blue roof light flashing.
In addition he described how
the area was lit up by a spotlight on Prinsloo's vehicle.
[10]
He described how two vehicles had approached from the direction of
Bot River. One of them had stopped, but the other had accelerated
past him, with a sound of changing gears and increased engine
revolutions. This vehicle, being that of the defendant had then
collided with the salvage vehicle and thereafter veered across the
road into the barrier rail. Khonza stated that while he was directing
traffic he had been wearing reflective clothing more particularly a
reflective jacket and reflective gloves. He had held up his
hand to
signal stop, but the driver of the defendant's vehicle had
disregarded this instruction.
[11] Mr
Khonza described that he had run over to the defendant's vehicle and
found the defendant, who was known to him, sprawled
across the front
passenger compartment, seated in the driver's seat but with his upper
body leaning across to the front passenger
side. He heard the
defendant groaning and detected that he was injured, with blood on
his face. He summoned the police and an ambulance.
[12]
The next witness to testify was Cst. Brand. He had attended at the
scene after the collision. He accompanied the defendant
in an
ambulance to hospital and arranged to have the defendant's blood
drawn for testing for alcohol content. The witness stated
that he
detected the smell of alcohol on the defendant, although he could not
be sure whether this came from the defendant, or
the contents of his
vehicle. Brand stated that the defendant was very confused.
[13] Under
cross-examination, Brand confirmed that there had been traffic cones
in the road and that the traffic police vehicle's
lights had been on.
He testified that one had a clear visibility of the place where the
collision occurred for some considerable
distance before reaching it
if proceeding in an easterly direction from Boontjieskraal which is
on the Bot River side of where
the collision occurred.
[14] The
plaintiffs counsel sought to introduce a certificate in terms of s
212 of the Criminal Procedure Act in respect of the
results of the
defendant's blood alcohol level. I indicated that the certificate
would be admitted only provisionally subject to
counsel being able to
persuade me on what basis it could formally be admitted in evidence.
Mr Topliss a forensic analyst from the
forensic chemistry laboratory
of the national Department of Health was called to confirm the
content of the certificate. An analysis
of the defendant's blood
showed the concentration of aiochol therein to be .23 grams per 100
millilitres. That is an amount considerably
in excess of the
statutory limit of .05 grams per hundred millilitres and supportive
of the correctness of the observation of Mr
Prinsloo that the
defendant was noticeably under the influence of alcohol at the time
of the collision. The defendant did nto challenge
the evidence of Mr
Topliss.
[15]
Mr Geoffrey Rimmer, an insurance assessor with about 25 years
experience gave evidence as to the costs of repairing the plaintiffs
vehicle. It emerged from Mr Rimmer's evidence that the plaintiff was
the insured, which gives rise as a matter of probability to
the fact
that the plaintiff was either the owner or the bearer of the risk of
damage to the vehicle into which the defendant collided
on the night
in question. Rimmer testified that considerable effort had been
invested in repairing the vehicle as economically
as possible. The
cost of repair, inclusive of VAT, was R238 290,30. Ms Barthus, who
appeared for the plaintiff, conceded that it
was probable that the
plaintiff was VAT registered and that the VAT component of the repair
costs would have been offset by the
plaintiff. Thus the relevant
amount of compensation is the VAT exclusive amount of R209 026,58.
[16]
The defendant gave evidence. He said that he and three friends had
shared two litre bottle of whisky before lunch on the day
before the
collision. They had stopped drinking at about 13h00 and he had
thereafter slept for some time before setting off from
Bot River to
Caledon. He had travelled 17km without incident before the collision.
As he approached the scene of the collision,
he had noticed red, blue
and yellow lights in the road ahead. He slowed down apprehending that
there must be something happening.
He also noticed a person in the
road using a torch to direct traffic. Very shortly after he passed
this person, who must have been
Traffic Officer Khonza, he collided
with something, which accepts must have been the plaintiff's vehicle.
He thereafter remembers
nothing until he came to in hospital. The
defendant stated that there were no warning traffic cones or
triangles or any other warning
signs in the road before the point of
collision.
[17]
In my judgment it is apparent that the situation of danger
constituted by the salvage operation being conducted in the roadway
was obvious to motorists approaching from the direction of Bot River.
It is apparent from the evidence of all the witnesses on
the scene,
including the defendant himself, that there were lights of various
colours visible on the scene from some distance.
Any approaching
motorist would have been advised to slow down and approach with
caution. The defendant stated that the lights had
confused him.
Accepting this to be so, especially having regard to the fact that he
was probably affected by a high blood alcohol
concentration, he
should have slowed down further or even stopped. While one had no
precise idea of the defendant's speed at the
time of impact, it is
safe to say having regard to the nature of the damage caused that he
must have been proceeding at some speed
at the time of the collision.
Even if one accepts the defendant's own estimate that he was
proceeding at between 40 and 60 kph,
that was too fast in the
circumstances, in which, by his own account he was confused and not
able to discern the situation in the
road ahead of him.
[18] The
defendant did not succeed in discharging the onus of proving any
degree of contributory negligence by the plaintiff or
its servants.
If there was any degree of negligence on the part of the traffic
police by not putting out sufficient warnings, as
suggested by the
defendant, and as to which I make no finding, any such causal
negligence would be irrelevant as between the plaintiff
and the
defendant.
[19]
The plaintiff is therefore entitled to compensation from the
defendant in the sum of R209 026,58 and judgment will be entered
accordingly.
[20]
The trial in this matter took place over three days. The first day
was wasted through the non-appearance of the defendant.
If this was
as a failure of the defendant's erstwhile attorney to inform him that
the trial would commence on the date for which
it was set down, the
defendant must pursue any claim he may have for incurring the
liability to pay the plaintiffs costs of that
day from that source.
The trial was not completed on the second day as a result of the
absence of Mr Rimmer, who had not been subpoenaed
and was reportedly
not willing to come to court voluntarily. The plaintiff also
apparently considered, misdirectedly, that it could,
without the
consent of the defendant, introduce the s 212 of the Criminal
Procedure Act certificate by Mr Topliss merely by handing
it in from
the bar. In the circumstances I consider it reasonable that the
defendant be rendered liable only for the costs of two
of the three
days given over to the trial.
[21]
The following order will issue:
1. Judgment is
granted in plaintiff's favour against the defendant in the sum of
R209 026,58, together with interest
thereon a tempore morae from date
of judgment to date of payment.
2. The
defendant is ordered to pay the plaintiff's costs of suit as between
party and party, save that such costs
shall include only two day's
trial costs.
A G BINNS-WARD
Judge of the Western Cape High
Court