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[2012] ZAECPEHC 59
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Fleet Africa (Eastern Cape) (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape (1288/2010) [2012] ZAECPEHC 59 (30 August 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
CASE NO: 1288/2010
Date
Heard: 15 August 2012
Date
Delivered: 30 August 2012
NOT / REPORTABLE
In the matter between:
FLEETAFRICA (EASTERN
CAPE) (PTY) LTD
......................................................
Plaintiff
and
THE MEC FOR ROADS &
PUBLIC WORKS,
EASTERN CAPE
................................................................................................
Defendant
______________________________________________________________________
JUDGMENT
______________________________________________________________________
GOOSEN, J:
This is an action for
damages arising from the collision of two motor vehicles on the R330
Road between Humansdorp and St. Francis
Bay. The plaintiff, as owner
of a Toyota Hi-Ace Siyaya motor vehicle with registration letters
and numbers 075 FAE EC, claims
damages on the basis that the
vehicle, which was leased to the Eastern Cape Provincial Government
for use by the Department of
Health as an ambulance, was damaged
beyond economical repair in the collision. It is alleged that the
collision was caused solely
by the negligence of the driver of an
Izuzu truck with registration letters and numbers GWP 452 EC which
is owned by the defendant.
It is common cause that
a collision occurred between these two vehicles on 20 March 2008 at
the intersection between Ketse Road
and the R330 on the outskirts of
Humansdorp. It is also common cause that the plaintiff’s
vehicle (hereinafter referred
to as the ambulance) was being driven
at the time by Joshua Nota, an employee of the Department of Health
and that the Izuzu
truck (hereinafter referred to as the truck) was
driven by Fezile Gamede, an employee of the defendant. Both drivers
were, at
the time of the collision, driving the vehicles in the
course and scope of their employment.
Certain features of the
manner in which the collision occurred are not in dispute between
the parties. A photograph album including
a number of photographs
depicting the scene of the collision taken shortly after the
collision occurred was handed in and received
as evidence by
agreement between the parties. The album contains a sketch plan of
the intersection on which is marked certain
points of relevance as
well as measurements. None of these points and measurements were in
dispute.
The collision occurred
during the afternoon of 20 March 2008. At the time the road surface,
which is tarred, was dry and the visibility
was good. The R330 in
the vicinity of the intersection with Ketse Road extends in an East
/ West direction
1
and is straight for a
considerable distance before the road curves to the South. The R330
consists of a single lane for traffic
in either direction although
there is, on either side of the road surface, a hard shoulder
demarcated by a yellow line. The intersection
with Ketse Road
comprises a T-junction with Ketse Road extending to the South of the
R330. The intersection is controlled from
the Ketse Road side by a
stop sign. Directly opposite the intersection, on the North side of
the R330, there is, in addition
to the hard shoulder, a further hard
surface stopping area at a bus shelter which is set back off the
road.
The plaintiff’s
case was that the ambulance was proceeding in a westerly direction
towards Humansdorp. The driver had earlier
attended on an emergency
at Oyster Bay where he had collected a patient who had suffered a
stab wound to the head. He was travelling
back to Humansdorp in
order to transport the patient to the local hospital. Apart from the
patient, who was in the rear of the
ambulance, the driver was alone.
The collision occurred when the driver of the truck, who was
proceeding along the R330 in an
easterly direction, executed a right
hand turn into the intersection at Ketse Road across the line of
travel of the ambulance.
The plaintiff’s
driver, Nota, testified that he was travelling between 70 and 80 kms
per hour as he was proceeding along
the R330. The ambulance had on
its headlights and its flashing warning lights but not its siren. He
said that when he was still
some distance away from the intersection
he noticed a yellow truck travelling in the opposite direction. It
was approaching the
intersection and it appeared that it intended to
execute a turn into Ketse Road. He could not recall whether it had
on its indicator
light. When he saw the truck there were two
vehicles travelling ahead of him in the same direction as him. They
were approximately
100 to 150 metres ahead of his vehicle. The
truck, he said, approached the intersection and came to a halt
waiting for the oncoming
traffic to pass. After the two vehicles
which were travelling ahead of him passed the truck it did not
initially move. When he
was right at the intersection the truck
unexpectedly commenced executing a turn across his path of travel
into the intersection.
He immediately applied brakes and then
swerved the ambulance to the right in an effort to avoid the
collision. According to him
he could not swerve to the left because
that was the direction in which the truck was travelling and there
were also pedestrians
on that side of the road. The evasive action
taken by him was unsuccessful and the left front of the ambulance
struck the left
rear of the truck. The ambulance overturned and came
to a rest on its side on the left hand side of the road a short
distance
beyond the intersection. Both he and the patient who was in
the back of the ambulance were injured in the collision. Nota
explained
that he was able to get out of the ambulance but had lost
consciousness at some point and was transported from the scene for
treatment. A fellow employee of the Department of Health who was
also driving an emergency vehicle towards Humansdorp testified
that
he arrived at the scene of the collision shortly after it had
occurred. He provided medical assistance to Nota and the patient
before they were transported from the scene.
The plaintiff also
presented the evidence of a loss adjustor in order to quantify its
loss. I shall return to the discussion of
this evidence hereunder.
At the conclusion of the plaintiff’s case the defendant
applied for absolution from the instance
upon the basis that the
evidence adduced by the plaintiff in relation to the loss suffered
by it was not such as would entitle
a court to make an award of
damages in favour of the plaintiff. After considering the
application I refused it and gave my reasons
for doing so
immediately. I do not intend to repeat those here save to state that
I was satisfied that, in the event of finding
that the defendant had
negligently caused the plaintiff to suffer loss, there was indeed
evidence upon which a court, applying
its mind reasonably to the
evidence, might find for the plaintiff (see
Paarlberg Motors
(Pty) Ltd t/a Paarlberg BMW v Henning
2000(1) SA 981 (C) at
985G).
The defendant’s
driver, Mr Gamede, testified that he was travelling along the R330
from Humansdorp in the direction of Ketse
Road where he intended to
make a right turn. As he approached the intersection he signalled
his intention to turn right. He saw
the ambulance approaching from
the opposite direction some distance away. According to him it did
not have on any lights. He
noted that it was travelling at high
speed. As he approached the intersection but before he reached it,
he noted that the ambulance
was travelling with its right wheels on
the white middle line of the road surface. On making this
observation Gamede concluded
that the ambulance was travelling
towards his vehicle on a collision course. He was unable to give an
estimate of the distance
between his vehicle and the ambulance when
he made this observation. He decided to execute a turn to the right
towards the intersection
in order to get out of the path of travel
of the ambulance and thereby avoid a collision. He said he could not
turn to the left
because he was aware of vehicles which were
travelling behind his vehicle and which were intending or in the
process of passing
his vehicle on the left hand side because he had
signalled that he was turning right. The evasive action he took was
not successful
and the collision occurred as described.
The ambulance struck the
left rear of the truck in the vicinity of or immediately behind the
left rear wheel. The damage to the
ambulance indicates that the left
front of the ambulance came into contact with the truck almost
directly over the left front
wheel of the ambulance. The photographs
depict a single brake mark on the road surface which was measured to
be approximately
11.75 metres in length. The brake mark commences at
a point which is between the centre of the lane and the white centre
line
dividing the road surface and at a point almost directly
opposite the Eastern edge of the intersection with Ketse Road. The
brake
mark extends diagonally across the road surface and ends at a
point which is closer to the white centre line on the road and at
a
point which is almost directly opposite the Western edge of the
intersection.
In argument it was
suggested, on behalf of the defendant, that given the nature of the
damage to the ambulance and the position
of the end point of the
brake mark, that the brake mark can only have been caused by the
left hand side wheel or wheels of the
ambulance. If, as was
contended by the plaintiff, the brake mark was caused by the right
hand side wheels of the ambulance then
the point of impact would
necessarily have been further away from the white centre line on the
road surface. The end point of
the brake mark, it was suggested
indicates on the probabilities, the point of impact between the two
vehicles. Defendant’s
counsel pointed to a very faint mark on
the road surface, captured on the photographs, and sought to suggest
that this indicated
the left hand side brake mark of the ambulance.
The argument however is speculative since there is no evidence that
the faint
mark seen on the photograph is a brake mark or, if it is,
that it is relevant to the collision at all.
In my view, the
probabilities point strongly to the fact that the brake mark was
indeed caused by the left hand side wheel or
wheels of the ambulance
and that the end point of the brake mark indicates the point of
impact between the ambulance and the
truck. A few important things
flow from this. Firstly the point at which the brake mark commences
is close to the centre of the
lane of travel of the ambulance. No
measurements of the distance between the commencement point and the
centre line were provided,
nor is there any evidence as to the width
of the ambulance. Accordingly it cannot be inferred with certainty
that the ambulance
was, at the point at which the braking commenced,
driving with its right hand side wheel already across the white
middle line.
Even if it may be so inferred, it cannot be inferred
that it was travelling along such a path of travel prior to the
braking
commencing. The other aspect is that the brake mark is
diagonal to the centre white line indicating that whilst the
ambulance
was braking it was travelling in a direction which would
have carried it across the centre white line. The third aspect is
that
it is apparent that the point of collision is at a position on
the edge of the intersection and is indicative that the truck, which
was struck at a point above or behind its rear wheel, had crossed
some distance across the path of travel of the ambulance before
the
collision occurred and that it did so prior to reaching the
intersection.
The point of impact and
the position of the truck at the point of collision accords with the
evidence of Gamede who said that
he commenced executing the turn
before he got to the intersection and that he had not stopped at the
intersection to wait for
oncoming vehicles to pass.
The fundamental issue to
be determined is whether the truck driver, Gamede, was in any manner
negligent in executing a turn across
the line of travel of the
oncoming ambulance by way of taking appropriate evasive action to
avoid a collision.
To execute a turn across
the line of travel of oncoming vehicles is an inherently dangerous
manoeuvre. A party who intends to
do so must satisfy himself that it
is in fact safe to do so (
AA Mutual Insurance Association Ltd v
Momela
1976 (3) SA 45
(A) at 52 (E)).
In this instance it is
clear from the evidence of Gamede that he only executed the turn to
the right in order to avoid what he
considered to be an imminent and
certain collision. The execution of the turn across the path of
travel of the ambulance was
not therefore a manoeuvre executed
because it was safe to do so. Indeed he made it clear that he had
seen the ambulance approaching;
that he knew that he could not
execute a turn at that point; and that he would not have done so but
for the sudden emergency
created by the manner in which the
ambulance was being driven.
The question then is
whether the evidence of Gamede is to be accepted that the
circumstances in which the ambulance was driven
created the
emergency and whether the action taken by Gamede was reasonable and
appropriate in the circumstances. Nota denied
that he had driven the
ambulance in such a manner that the right hand wheels of the
ambulance were across the white centre line
on the road surface. It
was put to him in cross-examination that Gamede would testify that
the ambulance was
“
straddling”
the white line, suggesting that the right hand side
wheels of the ambulance were completely across the white centre line
on the
road surface. This was denied. When Gamede testified his
evidence in chief was that shortly before his truck got to the
intersection
he noticed that the ambulance was travelling towards
him with its right wheels on the white centre line on the road
surface.
When it was pointed out that it had been put to the
ambulance driver that the ambulance was
“
straddling”
the white line, Gamede equivocated somewhat suggesting
that immediately before the collision he saw the ambulance cross the
white
line. Although his evidence in this respect was not entirely
satisfactory I did not gain the impression that he was attempting
to
exaggerate the circumstances which confronted him. To the contrary,
he said that the left wheels of the ambulance were on
the white line
and given that path of travel he believed that an collision would
occur. The objective evidence as to the position
of the commencement
of the break mark indicates that right hand side wheels of the
ambulance as it entered the intersection must
have been very close
to or even on the white centre line. The position of the vehicles at
the point of impact too is consistent
with Gamede’s version
that he began to execute a turn into the intersection even before
reaching the intersection and that
the collision occurred as he was
attempting to drive the truck into the intersection and out of the
path of the oncoming ambulance
in order to avoid a collision.
Although there was a
sharp dispute in resepct of whether the ambulance had been driven
across the centre line and into the path
of travel of the truck, it
was not suggested that the ambulance driver was a dishonest witness
whose version fell to be rejected.
He conceded readily that he was
driving his ambulance at a speed which was in excess of the speed
limit. He said that he had
on his emergency lights since he was in
the process of transporting a patient to the hospital for treatment.
When he was approaching
the intersection he saw the truck
approaching the intersection from the opposite direction, at that
stage there were two vehicles
ahead of him, it appeared that the
truck driver waited for the two vehicles that were ahead of the
ambulance to pass and only
thereafter executed a sudden and
unexpected turn into the intersection, when this occurred he was
already at the intersection
and immediately applied brakes and
swerved the ambulance to the right in order to avoid the collision.
Although the position
of the point of impact does not support a
finding that the truck came to a stop at the intersection before
executing a turn,
there is nothing to suggest that Nota was not
giving an honest, although mistaken account of the collision.
Even if I accept that
Gamede
bona fide
considered that the ambulance was
approaching fast and that there was a risk of collision, because the
ambulance was driving
with its right hand wheels on the white middle
line, his actions, in swerving across the path of travel of the
oncoming ambulance
indicates an error of judgement. There was no
evidence as to any other actions taken by him to draw the attention
of the driver
of the ambulance to the presence of his truck and the
risk of a collision. The evidence does not establish that a swerve
across
the line of travel of the oncoming ambulance was imperatively
required in order to attempt to avoid the collision. Gamede’s
evidence does not establish that there was, as a matter of fact, a
vehicle to his left which would have rendered it impossible
to move
in that direction. He says only that he was aware that there were
vehicles approaching from behind which would have passed
the truck
to its left. It is also so that the road has a hard shoulder
demarcated by a yellow line and that there was additional
space to
the left created by the hard surface stopping area at the bus
shelter. Although no measurements of these surfaces were
adduced in
evidence it is apparent from the photographs that this additional
space is sufficient to enable a vehicle to pass.
The fact that the
ambulance was driving with its right side wheels on the white centre
line must also indicate that the largest
portion of the lane in
which the truck was travelling was not obstructed by the oncoming
ambulance.
Gamede also testified
that he gave consideration to what he should do in the face of the
oncoming vehicle and that he decided
that it would not be safe to
turn his vehicle to the left apparently because there were vehicles
behind him waiting to pass on
the left.
In
Kleinhans v
African Guarantee and Indemnity Company Ltd
1959 (2) SA 619
(E)
the following is stated (at 624F – 625G):
A move by a motorist to
his incorrect side is one which should not be resorted to if it can
possibly be avoided. In
Pienaar’s
case Jones, J., says:
‘
As
a last resort he (defendant) took the exceptional course of leaving
his proper side and crossed to his right.’
In
Williams v Nel,
1939 W.L.D
188
at p.196, Schreiner, J (as he then was), remarks:
‘
Now,
going to the wrong side of the road when another vehicle is
approaching on its wrong side is to my mind a dangerous course
which
the circumstances may justify but which nevertheless should not be
lightly resorted to. If other satisfactory means are available
for
avoiding the accident then that course should not be taken, because
there is always the risk that the other party may come
back to his
correct side. He may not previously have aobserved the other vehicle
and would then instinctively, on seeing it, turn
back to the correct
side of his road. It is not good practice to go over to the wrong
side of the road unless the circumstances
imperatively require it.’
The approach in
Williams
set out above was endorsed in
President Insurance Company
Limited v Tshabalala and Another
1981(1) SA 1016 (A) at 1020C.
In my view the requirement that crossing onto the incorrect side of
the road should be imperatively
indicated by the circumstances
applies with even greater force in circumsatnces where, as in this
instance, the oncoming vehicle
is not in fact wholly on its
incorrect side of the road.
The
Kleinhans
judgment goes on to consider an error of judgment in
circumstances of a sudden emergency and concludes that the actions
of a driver,
though acting in a sudden emergency, must nevertheless
be reasonable in the circumstances. See also
Ntsala and Others v
Mutual and Federal Insurance Company Limited
1996 (2) SA 184
(T)
at 192G.
In my view this is such
a case. Gamede, even if it is accepted that he was faced with a
sudden emergency, decided on a course
of action without satisfying
himself that the more reasonable and less dangerous course of
steering his vehicle to the left was
not in fact available to him.
In the circumstances his decision to steer his vehicle across the
line of travel of the oncoming
ambulance in an endeavour to reach
the safety of the intersection was not reasonable in the
circumstances. Accordingly in so
doing he acted negligently and
thereby caused the collision between the two vehicles. It
accordingly follows that the plaintiff
has established that the
defendant is liable to it for the loss caused to its vehicle in the
collision.
The defendant disputed
the damage suffered by the plaintiff and the plaintiff was required
to prove its damages. In this regard
the plaintiff led the evidence
of a loss adjustor, Mr Bragalia. Bragalia, whose expertise and
experience as a loss adjustor and
prior experience as a qualified
panel beater, was not challenged, testified that he had inspected
the plaintiff’s vehicle
after the collision. He confirmed,
with reference to the photographs, the nature and extent of the
damage and explained that
in his opinion the vehicle was not capable
of economic repair. In cross-examination it was suggested that in
order to properly
determine that the vehicle was not capable of
economic repair it would be necessary to obtain estimates of the
costs of repair
and having done so then determine with reference to
the value of the vehicle whether it was capable of being
economically repaired.
Bragalia countered this suggestion by
pointing out that the vehicle had sustained significant structural
damage. He pointed out
that the vehicles chassis is a mono-chassis
construction and that this meant that the damage bodywork could not
be removed and
replaced. In a vehicle of such a construction it is,
according to him, almost impossible to straighten the chassis and
therefore
to repair the type of structural damage sustained by the
vehicle in the collision. On this basis he did not deem it necessary
to obtain quotations for repair work since that would, in his view,
“
be a waste of time”
.
I accept this evidence
which was in the main not challenged. Accordingly I accept that the
evidence properly establishes that
the vehicle was not capable of
economic repair. Plaintiff’s evidence was that in order to
assess the pre-accident value
reference was made to the standard
industry utilised book value in order to determine its reasonable
resale value, this was assessed
at an amount of R123,300.00. To this
amount was added the actual cost of converting the vehicle for use
as an ambulance, an amount
of R46,721.40 which Bragalia testified he
ascertained by considering the actual cost expended as reflected on
an invoice supplied
by the plaintiff. The invoice was not however
produced in evidence. Mr
Wolmerans
contended that this
evidence accordingly is inadmissible since it constitutes hearsay
evidence. For this reason, it was suggested,
the total pre-accident
value was not in fact established in the evidence.
It must be accepted that
the evidence as to the actual cost of converting the vehicle for use
as an ambulance was notionally available
to the plaintiff. Why it
was not produced is not clear. It is also not clear whether the
conversion costs referred to in the
evidence included the costs of
fitting the vehicle out for use as an ambulance or whether it was
confined to the structural or
physical conversion of the vehicle.
A further aspect raised
by the defendant was the effect of the vehicle’s odometer
reading upon the assessment of its reasonable
resale value. Bragalia
testified that in determining the value this was not taken into
account and that had it been the effect
would be to reduce the
resale value. Based on this concession Mr
Wolmerans
argued
that the evidence does not permit a calculation of the pre-accident
value of the vehicle and accordingly it is not possible
to determine
the
quantum
of any loss suffered by the plaintiff. This
difficulty was compounded, so it was argued, by the fact that the
post-accident value,
the so-called salvage value of the vehicle, was
not properly assessed. On the pleadings the plaintiff pleaded that
it had sold
the damaged vehicle for R10,000.00. This figure,
Bragalia conceded, was substantially less than what would ordinarily
be assessed
as the salvage value. Bragalia stated that ordinarily
the salvage value could be assessed as being between 25% and 33% of
the
pre-accident value. In his estimate, having regard to the nature
of the damage and its extent, an amount of 20% of the pre-accident
value would be a fair assessment of the vehicle’s salvage
value.
The fact that the
plaintiff does not establish in definitive terms the
quantum
of the loss that it has suffered is not a bar to an award of
damages. In
Hersman v Shapiro & Co.
1926 (TPD) 367 at 379
it is stated that:
“
Monetary
damage having been suffered, it is necessary for the court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the court is very little more
than an estimate; but even so, if it is certain
that pecuniary damage
has been suffered, the court is bound to award damages. It is not so
bound in a case where evidence is available
to the plaintiff which he
has not produced; in those circumstances the court is justified in
giving, and does give, absolution
from the instance. But where the
best evidence available has been produced, though it is not entirely
of a conclusive character
and does not permit of a mathematical
calculation of the damage suffered, still, if it is the best evidence
available, the court
must use it and arrive at a conclusion based
upon it.”
In this instance the
plaintiff has indeed adduced evidence which is the best available to
it. I accept, as was argued by Mr
Wolmerans
, that the
evidence is not such as permits of a mathematical calculation of the
damages suffered. However having found that pecuniary
loss has
indeed been suffered in consequence of the collision caused by the
negligence of the defendant’s driver, I am
duty bound to
assess the damages suffered by the plaintiff in the best way
possible on the available evidence. This evidence,
I accept,
establishes that the pre-accident value of the plaintiff’s
vehicle excluding its conversion for use as an ambulance,
is an
amount of approximately R123,300.00. There can of course be no doubt
that the vehicle was indeed converted for use as an
ambulance,
however, the actual cost of such conversion has not been established
by the plaintiff upon acceptable and reliable
evidence and
accordingly the extent to which the resale value may have been
increased by the cost of the conversion has not been
adequately
established by the plaintiff. I accordingly accept that a fair and
reasonable estimate of the pre-accident value of
the vehicle is an
amount of R123,300.00. From this pre-accident value falls to be
deducted the reasonable salvage value of the
vehicle. The plaintiff,
quite properly conceded, in the light of the evidence tendered, that
the amount of R10,000.00 which it
recovered on the sale of the
damaged vehicle was not reasonable in the circumstances and that a
more appropriate and reasonable
salvage value is an amount
equivalent to 20% of the estimated pre-accident value. Bragalia
testified that a guideline figure
of between 25 and 33% is one that
is usually applied in circumstances such as this. This figure would
necessarily be effected
by the nature and extent of the damage as
well as the nature of the vehicle being assessed. Bragalia’s
evidence was that
a fair assessment would be in the region of 20%.
This was based upon his consideration of the extent of the
structural damage
to the vehicle. Although I accept that he was fair
in presenting this view and that it was founded upon his view that
very little
other than the rear tailgate and rear differential would
likely be salvageable, I nevertheless consider that a figure of 25%
of the pre-accident value should be applied. In the result it is
possible to make an assessment of the loss suffered by the
plaintiff.
In the circumstances I
make the following order:
The defendant is ordered
to pay to the plaintiff the sum of R92,475.00, together with
interest thereon from date of judgment to
date of payment thereof;
The defendant is ordered
to pay the plaintiff’s costs of suit.
G
GOOSEN
JUDGE OF THE HIGH
COURT
APPEARANCES
:
For plaintiff: Adv
Marais, instructed by
Goldberg & De
Villiers Inc.
For defendant: Adv
Wolmerans, instructed by
The State Attorney, Port
Elizabeth
1
The
layout of the scene of the collision was common cause between the
parties. The reference to compass directions is used for
ease of
description.