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[2011] ZAGPPHC 92
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D & E Earthworks & Plant Hire CC v Lezmin 3030 CC (37427/2009) [2011] ZAGPPHC 92 (6 June 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Date:
2011-06-02
Case
Number: 37427/2009
In
the matter between:
D
& E EARTHWORKS & PLANT HIRE
CC
.....................................................................
Plaintiff
and
LEZMIN
3030
CC
..........................................................................................................
(Defendant)
JUDGMENT
SOUTHWOOD
J
[1]
This is an action for damages in which each party claims from the
other payment of damages sustained when the plaintiff's excavator
which was being conveyed on the defendant's low-bed trailer collided
with a bridge over the N1 freeway approximately 12 kilometres
north
of Bela Bela. Both the excavator and the low-bed trailer were damaged
in the collision. The plaintiff claims payment of damages
in the sum
of R9 879 136,31 and the defendant claims payment of damages in the
sum of R540 000.
[2]
At the pre-trial conference the parties agreed to separate the issues
of liability and damages and at the hearing an appropriate
order was
made in terms of Rule 33(4). Accordingly, as agreed, this part of the
hearing is concerned only with those issues referred
to in paragraph
5.2 of the plaintiffs pre-trial conference agenda (see page 4 of the
pretrial bundle).
[3]
The collision occurred because the boom and dipper stick of the
excavator were not completely folded so that the excavator was
not
able to pass safely under the bridge with which it collided. The
margin of error appears to have been extremely small as the
two
vehicles continued to pass underneath the bridge after the collision
and after doing so were brought to a halt about 50 metres
from the
bridge.
[4]
Each party alleges that the other party negligently caused the
collision. The plaintiff alleges that the defendant's driver
was
negligent in loading or allowing the excavator to be loaded in such a
manner that it was too high to pass underneath the bridge
and in
attempting to drive underneath the bridge without taking reasonable
steps to ensure that it could pass under the bridge.
The defendant
alleges that the plaintiff's operator was negligent in that he loaded
the excavator onto the low-bed trailer without
properly lowering the
dipper stick and boom to ensure safe passage underneath bridges on
the freeway and in that he failed to lower
the dipper stick and boom
of the excavator even after the defendant's representatives told him
to do so.
[5]
Apart from denying that the driver of the low-bed trailer was
negligent the defendant alleges that it is exempted from liability
because of two notices prominently displayed in the defendant's
workshop and on the defendant's vehicle. The defendant also raises
the issue of contributory negligence, and, in addition to the
aforementioned grounds of negligence referred to in its counterclaim,
alleges that its driver specifically questioned the plaintiff's
operator whether the dipper stick and boom of the excavator were
not
too high to travel on the N1 freeway and that the operator confirmed
to the driver that he had loaded the excavator on many
occasions,
that it was not too high and that it was safe to travel.
[6]
The excavator is shown in photographs A to U at pages 1-11 of exhibit
B. It is described as a 30 ton excavator and appears to
be a very
large vehicle which runs on tracks. The operator's cabin and engine
are situated directly over the tracks and the boom
and dipper stick
project outwards from the cab. The boom is closest to the cab and is
connected by means of an articulated joint
to the dipper stick which
is itself connected by an articulated joint to a bucket which digs
into the ground and removes material.
In operation the boom, dipper
stick and bucket work much in the same way as a human arm and hand.
The boom and dipper stick bend
like an elbow and the bucket bends and
turns like a hand. Usually when being conveyed by a low-bed trailer
the dipper stick and
bucket are folded back towards the cab and the
boom is lowered so that the bucket rests on the floor of the low-bed
trailer. On
the day in question the plaintiff's operator did not fold
the dipper stick back to the cab or lower the boom so that the bucket
rested on the floor of the low-bed trailer. Instead he folded the
dipper stick partially and then brought the bucket down onto
a
vehicle tyre which the defendant's employees placed on the low-bed
trailer to protect the bucket and low-bed trailer from damage.
Why he
did this is in contention. The plaintiff's operator, Joseph Kutumela,
testified that he wanted to load the vehicle with
the boom and dipper
stick completely bent and with the boom lowered so that the bucket
rested on the floor of the low-bed trailer
but the defendant's
driver, Dirk Werthmann, told him that this was not necessary and that
the boom and dipper stick were low enough.
When he and the other man
present insisted he, Kutumela, thought it would be safe to go out
onto the highway.
[7]
It is common cause or cannot be disputed that -
(1)
on or about 7 May 2008 the plaintiff represented by its sole member,
D. Kotze, and the defendant represented by its sole member,
H. van
Schalkwyk, entered into an oral agreement in terms of which -
(a)
the plaintiff leased the excavator and operator to the defendant; and
(b)
the plaintiff would deliver the excavator to the defendant at the
defendant's premises at Bela Bela where it would be loaded
onto the
defendant's low-bed trailer to be conveyed to a construction site at
Polokwane where the defendant was executing civil
engineering works;
(2)
on 12 May 2008 the plaintiff delivered the excavator to the
defendant at the defendant's premises at Bela Beia where it was
first
offloaded from the low-bed trailer which brought it there and then
loaded onto the defendant's low-bed trailer which was
to convey the
machine to Polokwane;
(3)
when the excavator arrived at the defendant's premises at Polokwane
Mr. Kotze was there to talk to the operator and inspect
the machine;
(4)
Mr. Kotze entered the office where the disclaimer sign was displayed
but his attention was not pertinently drawn to the notice
and no
attempt was made to incorporate the disclaimer into the lease
agreement;
(5)
Mr. Kotze left the defendant's premises before the operator and the
driver of the defendant's low-bed trailer commenced the
loading of
the excavator;
(6)
the plaintiff's operator, Joseph Kutumeia, loaded the excavator onto
the defendant's low-bed trailer with the assistance and
under the
instructions of Dirk Werthmann;
(7)
Joseph Kutumeia did not park the excavator in the standard position
with the dipper stick fully folded and the boom lowered
so that the
bucket pressed against the floor of the low-bed trailer. He parked it
with the boom and dipper stick partially folded
so that the dipper
stick pointed more or less vertically downwards and the bucket was
pressed against a motor vehicle tyre;
(8)
after the excavator was loaded Mr. Werthmann drove the defendant's
low-bed trailer with the excavator onto the N1 freeway to
Polokwane
with Joseph Kutumeia sitting in the passenger seat;
(9)
about 12 kilometres north of Bela Bela the defendant's low-bed
trailer reached an overhead bridge with which the excavator
collided;
(10)
Mr. Werthmann drove the defendant's low-bed trailer at a speed of
between 65 and 70 km/h and at no stage reduced speed before
the
excavator collided with the bridge.
[8]
The parties called four witnesses. The plaintiff called its sole
member Mr. Dirk Kotze and the operator of the excavator, Mr.
Joseph
Kutumela. The defendant called its sole member, Mr. Heinrich van
Schalkwyk, and the driver of the defendant's low-bed trailer,
Mr.
Dirk Werthmann. None of the witnesses impressed as having a clear
recollection of the events and in the case of Mr. Werthmann
he
appears to have fabricated the evidence he gave in court. It differs
in material respects from the version put to Mr. Kutumela
and smacks
of an attempt to escape any liability for the damage caused in the
collision. The defendant did not call its workshop
manager, Mr. Marx,
who according to Kutumela witnessed the loading of the excavator onto
the defendant's low-bed trailer. Mr. Marx
was present at court and
his version was put to Mr. Kutumela. Since Mr. Marx was present when
the excavator was loaded onto the
defendant's low-bed trailer and
witnessed what took place the inference is justified that the
defendant knows that he cannot refute
what Mr. Kutumela said.
[9]
Mr. Kotze and Mr. Van Schalkwyk testified about the terms of the
contract which for present purposes are not contentious. Mr.
Van
Schalkwyk also testified about the necessity for carefully loading a
heavy piece of equipment (such as the excavator) onto
a low-bed
trailer. It must be positioned so that it does not disturb the
balance of the vehicle and cause it to overturn easily.
It was clear
from Mr. Van Schalkwyk's evidence that he did not rely on the
disclaimer pleaded by the defendant, that he accepted
that the
plaintiff had delivered the excavator to the defendant on 12 May 2008
and that once the excavator had been loaded onto
the defendant's
low-bed trailer and the journey commenced the defendant was in
control of the excavator.
[10]
It must be accepted that Mr. Kutumeia loaded the excavator onto the
defendant's low-bed trailer with the assistance and under
the
instructions of the defendant's employees. Mr. Kutumeia did not park
the excavator in the standard position which he had been
trained to
do. His explanation was that he parked it on the low-bed trailer as
he was instructed to do by the defendant's employees,
clearly Messrs.
Marx and Werthmann. Although this was disputed in cross-examination
and the contrary versions of Messrs. Marx and
Werthmann were put to
Mr. Kutumeia Mr. Marx did not testify and Mr. Werthmann did not
support the version put and testified that
he was not present when
the excavator was loaded. Mr. Kutumeia clearly knows what the correct
park position for the excavator is
and his evidence provides the only
rational explanation for not parking the machine in that way. His
evidence is supported by Mr.
Van Schalkwyk's evidence that the
operator of an excavator would not be able to position the vehicle
properly on the low-bed trailer
unless he was shown where to park by
the defendant's employees and it is probable that they told him to
lower the boom so that
the bucket rested on a tyre. There is no other
explanation for the presence of the tyre. It is not in dispute that a
tyre was placed
beneath the bucket and this was clearly done to
prevent damage to the bucket and trailer. It is therefore found that
the excavator
was parked on the low-bed trailer in accordance with
the defendant's employees' instructions.
[11]
Once the defendant's low-bed trailer left the defendant's premises
for the journey to Polokwane the defendant's employee, Mr.
Werthmann,
was in control of the trailer and excavator. Mr. Werthmann knew that
the trailer and excavator would have to pass under
a number of
overhead bridges on the way to Polokwane and he obviously should have
made sure that they could do so safely. Mr. Werthmann
did not take
any steps to determine the height of the excavator boom himself. If
he asked Mr. Kutumela whether it was safe that
clearly was not
sufficient. At no time thereafter did Mr. Werthmann attempt to ensure
that the trailer and excavator would be able
to pass safely under the
bridges over the highway. There is no evidence that he even slowed
down when approaching the bridge with
which the excavator collided.
He said he travelled at about 65-70 km/h and apparently he was still
doing so when he felt the jolt
of the collision. Even if Mr.
Werthmann's evidence that he asked Mr. Kutumela whether the truck
could go under the bridge and received
the reply that it would fit,
they always load the trailer like that, can be believed this would
not assist the defendant. If Mr.
Werthmann was concerned about the
possibility of a collision he proceeded without taking any reasonable
steps to ensure that the
trailer and excavator would pass safely
under the bridge - see Kruger v Coetzee
1966 (2) SA 428
(A) at
430E-H. According to Mr.
Werthmann
he had already asked Mr. Kutumela whether everything was alright and
had received an affirmative assurance. Yet when he
approached the
bridge he was still apprehensive. A reasonable man in his position
would have brought his vehicle to a halt close
to the bridge and made
sure that the boom was low enough to pass under it.
[12]
Understandably, in the light of these facts, the defendant's counsel
conceded that Mr. Werthmann had been negligent. Nevertheless,
he
contended that Mr. Kutumela's negligence also caused the collision
and that the court should order an apportionment. He argued
that by
parking the excavator on the defendant's low-bed trailer with the
boom still partially elevated Mr. Kutumela was negligent.
I do not
agree. In the circumstances where he parked the excavator under the
instructions of the defendant's employees Mr. Kutumela
would not
foresee the reasonable possibility of this causing patrimonial loss.
See Kruger v Coetzee supra. A reasonable man would
accept that the
defendant's employees and especially the driver would not load the
excavator in such a way that it would collide
with a bridge. A
reasonable man would also not foresee that the driver would persist
in attempting to drive under a bridge when
it was possibly not safe
to do so. Even if Mr. Kutumela was negligent Mr. Werthmann's
negligence must be regarded as 'the cause'
of the collision. He
failed to ensure that the excavator was loaded so that it would pass
safely under the bridges and when he
approached the bridge he made no
attempt to ensure that it would pass safely under the bridge. It is
therefore found that Mr. Kutumela
was not negligent and that if he
was such negligence did not cause the collision.
[13]
The defendant's counsel frankly conceded that the disclaimer pleaded
was not supported by the evidence and he did not attempt
to persuade
the court that it was a good defence. In my view this concession was
correctly made.
[14]
Although Mr. Kutumela's evidence is not satisfactory in every respect
(e.g. there is no explanation for the two white men's
aggression
towards him and his evidence about his fears of a collision is
contradictory) he provides a rational explanation for
the manner in
which he parked the excavator on the low-bed trailer. He did not
deviate from his version that the two white men
instructed him how to
park the machine. This evidence is not refuted by the defendant's
evidence. Mr. Marx who is obviously one
of the white men was not
called to give evidence which in the circumstances warrants an
adverse inference - see Webranchek v LK
Jacobs & Co Ltd
1948 (4)
SA 671
(A) at 682 and Munster Estates (Pty) Ltd v Killarney Hills
(Pty) Ltd
1979 (1) SA 621
(A) at 624B-H. Mr. Werthmann who was called
testified to a version completely different to that put to Mr.
Kutumela and in some
detail to a version not put at all. Contrary to
what was put to Mr. Kutumela Werthmann testified that he was not
present when the
excavator was loaded. He then testified in some
detail about what happened between him and Mr. Kutumela after they
left the defendant's
premises which was not put at all. This is
contrary to the basic rules set out in President of the Republic of
South Africa &
Others v South African Rugby Football Union &
Others
2000 (1) SA 1
(CC) paras 61-64 and S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR
633
(SCA) paras 51-52 and in the circumstances justifies a finding
that the evidence is a fabrication and therefore must be rejected.
It
is significant that Mr. Van Schalkwyk testified that his employees
(obviously Messrs. Marx and Werthmann) told him that the
plaintiff's
operator loaded the excavator on the instructions of the plaintiff
(see A10 para 1) something which was completely
untrue. It is also
significant that neither of the defendant's witnesses testified in
support of what the defendant alleged had
taken place when the
excavator was loaded (see plea paras 9.5.2 and 9.5.3 and counterclaim
para 12.2). On the face of it the allegation
that the plaintiff's
operator was negligent in not lowering the boom and dipper stick even
after being told by the defendant's
representatives to do so is so
inherently improbable that it cannot be believed. It implies that
both parties set off on their
journey to Polokwane knowing that the
boom and dipper stick constituted a danger and did nothing about
this. In the light of these
facts and circumstances I agree with the
plaintiff's counsel that the defence raised was dishonest.
[15]
The following order is made:
I
It is declared that the defendant's negligence was the sole cause of
the collision between the plaintiff's excavator and the bridge
on 12
May 2008 and that the defendant is liable for all of the damages
which the plaintiff can prove were caused by that collision.
II
The defendant is ordered to pay the costs of this hearing including
the costs of a senior counsel wherever a senior counsel was
employed.
B.R.
SOUTHWOOD
JUDGE
OF THE HIGH COURT
CASE
NO: 37427/2009
HEARD
ON: 31 May 2011 and 1 June 2011
FOR
THE PLAINTIFF: ADV. B. BERRIDGE SC
INSTRUCTED
BY: Everingham, Rogers, Nel & Partners
FOR
THE DEFENDANT: ADV. D. PRINSLOO
INSTRUCTED
BY: Bornman & Mostert Attorneys
DATE
OF JUDGMENT: 2 June 2011