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[2019] ZAGPPHC 584
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Maila v Road Accident Fund (54320/17) [2019] ZAGPPHC 584 (13 August 2019)
SAFLII
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE NO.: 54320/17
13/8/2019
In the matter between:
M I MAILA
Plaintiff
and
ROAD ACCIDENT FUND
Defendant
JUDGMENT
VAN DER WESTHUIZEN, J
[1] The plaintiff
instituted an action against the defendant for compensation of
damages
suffered as a result of injuries sustained in an accident
that occurred on 12 August 2016. The collision occurred when
the
vehicle the plaintiff was driving, collided with a stationary bus
in his lane of travel on a freeway in Pretoria. The bus is the
property of PUTCO (Pty) Ltd, and the driver thereof being the insured
driver for purposes of this action.
[2] The only issue to be
decided at this stage is that of liability, whether the insured
driver was negligent and the extent thereof and whether the plaintiff
was negligent and the extent thereof, contributory negligence
having
been pled by the defendant. By agreement between the parties, as
recorded in a pre-trial conference minute dated 13 March
2018, the
issue of the quantum of damages suffered is to be separated out in
terms of the provisions of Uniform Rule 33(4) and
to be postponed
sine die
. It was so ruled.
[3] The plaintiff alleges
in his particulars of claim that the conduct of the insured
driver
immediately before the collision and/or the omissions on the part of
the insured driver to take certain preventative actions
constituted
negligence and were accordingly the sole cause for the collision to
occur.
[4] The defendant denied
that the insured driver was negligent as alleged and pled that
the
conduct of the plaintiff immediately prior to the collision
constituted negligence and that such negligence was the sole cause
of
the collision. In the alternative, the defendant pled that should it
be found that the insured driver was negligent in any manner,
such
negligence was not the cause of the collision and in the further
alternative, should it be found that the insured driver was
negligent
and that his negligence contributed to the cause of the collision,
the plaintiff was also negligent and the plaintiff’s
negligence
contributed to the cause of the collision.
[5] The plaintiff’s
alleged negligence pled, related to:
(a)
he
failed to keep a proper look out;
(b)
he
failed to avoid the collision when, by taking reasonable or proper
care when he could, and should, have done so;
(c)
he
failed to take sufficient account of the presence and/or
alternatively visibly intended actions of the insured vehicle;
(d)
he
failed to take due regard of the other road users, in particular, the
insured vehicle;
(e)
he
failed to exercise proper or adequate control over his vehicle;
(f)
he
failed to apply the brakes of his vehicle timeously, or at all;
(g)
he
drove at an excessive speed under the prevailing conditions;
(h)
he
failed to keep a safe and proper following distance between himself
and the vehicle in front of him.
[6] I record the grounds of
alleged negligence on the part of the plaintiff fully in
view of the
argument raised by the defendant’s counsel, Ms Ferguson, during
argument on the issue of liability. It is submitted
that the issue
whether the plaintiff had his seatbelt engaged or not, may have
contributed to the severity of his injuries sustained.
Further, that
that issue should also be separated in terms of the provisions of
Rule 33(4) for adjudication together with the issue
of quantum of
damages.
[7] During oral argument,
Ms Ferguson applied, in terms of a written notice of amendment,
for
an amendment of the defendant’s plea to include an additional
ground of alleged negligence on the part of the plaintiff.
The
defendant seeks to introduce the following ground as a new paragraph
3.2.9:
“
he failed to wear his seatbelt.”
It is that issue that the defendant seeks to separate together with
the issue of the quantum of damages as recorded earlier.
[8] Mr Beaton, who appeared
with Mr van Wyk on behalf of the plaintiff, opposed the proposed
amendment. He submitted that no basis for the amendment
existed, nor that it has been canvassed in the evidence presented.
[9] A number of pre-trial
conferences were held between the parties, some of which were
held
before the Honourable Deputy Judge President of this Division.
In this regard the following is to be noted:
(a)
On
13 March 2018, the parties held a pre-trial conference. At that
conference the parties agreed to a separation of the issue
of
liability from the issue of the quantum of damages. No
qualification of the extent of the issue of liability was raised
by
the defendant, nor was any reservation on the part of the defendant
recorded in that regard;
(b)
At
the pre-trial conference held on 10 October 2018, it was further
agreed between the parties that the plaintiff bore the duty
to begin
and the
onus
of proving negligence on the part of the insured driver. It was
further agreed that should the plaintiff prove that the insured
driver was negligent, the defendant would have the
onus
of proving contributory negligence on the part of the plaintiff. It
was specifically agreed by the parties at this pre-trial conference
that in respect of the issues of liability what required adjudication
were:
(i) The negligence
(if any) and the grounds therefor, of the defendant’s
insured
driver and/or insured owner in causing the collision;
(ii) The contributing
negligence (if any) and grounds therefor, of the plaintiff in causing
the collision.
No qualification was recorded by the defendant.
[10] In the event that the amendment is
granted and the issue is separated out to be adjudicated
on by the
court considering the issue of quantum of damages, and on the
evidence presented thus far, at least three of the witnesses
who have
testified at this trial would have to be re-called. Those would
include the plaintiff, the Metro Police Officer
and the tow truck
operator. The aforementioned second and third witnesses both spoke to
the plaintiff whilst trapped in his vehicle.
It may further be
require that other witnesses, such as the emergency personnel who
attended to the plaintiff after the collision,
may have to be called
to testify.
[11] Ms Ferguson
submitted that on the
dictum
in
Mjongi Gusha v The Road Accident
Fund
[1]
the amendment is necessary and hence the separation of that issue.
That
dictum
does not support the defendant’s submission. The Supreme Court
of Appeal in that matter was required to pronounce on the
question
where the Road Accident Fund had, prior to the issue of summons,
conceded the issue of liability for the plaintiff’s
damages
still to be proven. It was also required to consider if it was
open to the Road Accident Fund to apply to amend its
plea to allege
an apportionment due to the contributory negligence on the part of
the plaintiff by not wearing his seatbelt. The
Road Accident Fund
had,
inter alia
,
in its plea in that case denied liability as well as the extent of
the injuries sustained. The Supreme Court of Appeal was called
on to
interpret an agreement concluded prior to the issue of summons. The
Supreme Court of Appeal found that the Road Accident
Fund had not
qualified its concession to liability to any extent and held that the
amendment could not be allowed.
[12] In this matter, the defendant
outright pled that the plaintiff’s conduct prior to the
collision was the sole cause for the collision. As recorded, the
grounds of plaintiff’s negligence were extensively stipulated.
In the alternative it was pled that plaintiff’s stipulated
negligence had contributed to the cause for the collision.
[13] The plaintiff’s pled
negligence was fully canvassed in evidence, particularly during
cross-examination of the plaintiff.
[14] The amendment now sought is not
qualified at all, although Ms Ferguson submits that it may be
relevant only to the extent of the injuries sustained by the
plaintiff.
[15] In the present instance the normal
requirements for an amendment to pleadings before judgment
is given,
apply.
[16] Rule 28(10) of the Uniform Rules
of Court provides:
“
The court may, notwithstanding anything
to the contrary in this rule, at any stage before judgment grant
leave to amend any pleading
or document on such other terms as to
costs or other matters as it deems fit.”
[17] It is trite
that an amendment applied for at a late stage would not be granted
where the amendment
may result in prejudice to the other party which
could not be addressed with an adjournment and an appropriate costs
order.
[2]
[18] In
Kali,
supra,
as in the present instance, the
application for amendment was made during argument after both parties
had closed their respective
cases.
[3]
Furthermore, in the present instance the plaintiff led his evidence
on the basis of the plea as unamended. The issue of the wearing
or
not of a seatbelt was not in issue during the leading of evidence by
either party.
[19] No explanation was provided why
the amendment was not sought earlier, bearing in mind that the
action
was launched during 2017. All the facts were by then already known to
the parties.
[20] Where, as here, both parties had
already closed their respective cases, the grant of the amendment
would require the reopening of their respective cases in order to
lead further evidence. That is not an issue that would or could
adequately be dealt with by granting a postponement and an
appropriate cost order. The prejudice that the plaintiff would suffer
by allowing the amendment is insurmountable in the circumstances.
[21] The defendant had the opportunity
to deal with the issue of whether or not the plaintiff wore
his
seatbelt at the time of the collision.
[22] The application for amendment
stands to be refused.
[23] On behalf of the plaintiff, who
himself testified, the evidence of Mr Bambo, a Metro Police
Officer,
Mr van Vliet, who is in the employ of a sister company to that which
employed the plaintiff, Mr Forbes, a tow truck driver,
Mr Madau, a
Transport Officer in the employ of Putco Ltd (the insured owner), Mr
Nortman, a Technical Manager in the employ of
the insured owner, Mr
Thlapu, a Training Officer in the employ of the insured owner, and Mr
Grobbelaar, an Accident Reconstruction
Specialist, were led.
[24] The defendant called one witness,
in the person of the insured driver, Mr Matlawa.
[25] All the witnesses called on behalf
of the plaintiff, apart from the plaintiff himself and Mr
Gobbelaar,
arrived on the scene at various stages after the collision occurred.
It may be prudent to summarise their evidence.
[26] Mr Bambo arrived shortly after the
collision occurred. He found the vehicle driven by the plaintiff
to
have collided with the rear end of a stationary bus and it was partly
underneath the bus from the centre to the righthand side
of the rear
end of the bus. He spoke to both Mr Matlawa and the plaintiff. The
plaintiff was still trapped in his vehicle.
Mr Bambo completed
the Accident Report Form. He testified that all that he found at the
scene of the collision was the two vehicles
that had collided and
nothing else. The cross-examination of Mr Bambo did not elicit any
other fact and Ms Ferguson submitted that
his evidence did not
contribute to any issue that was to be considered by the court.
[27] Mr van Vliet testified that he was
employed by a sister company of the company that owned the
vehicle
driven by the plaintiff and that the plaintiff was in that company’s
employ. He was requested to attend at the scene
of the collision. The
traffic was backed-up and it took him some time to arrive at the
scene. On his arrival, the vehicle the plaintiff
was driving had
already been towed away and the plaintiff taken to hospital. He
testified that he looked for warning signs, but
found none. He
also did not find any remnants of warning signs that may have been
put out. The hazard lights of the bus were
on when he arrived at the
scene. In re-examination and with reference to a photograph tendered
in evidence and to which he was
directed, he testified that the fire
extinguisher visible near the rear end of the bus, was undamaged.
During cross-examination,
he was asked questions in respect of a
video. He testified that he was not shown the video and could not
comment thereon. The video
was not tendered into evidence.
[28] The tow truck driver, Mr Forbes,
testified that he received a report of a collision on Paul
Kruger
street near the joining thereof with Mansfield Road in a southernly
direction. The traffic was flowing, though busy as it
was peak hour
traffic. The bus and the plaintiff’s vehicle were in the second
lane of three lanes. A separate and dedicated
bus lane was to the far
right thereof. He spoke to the bus driver whom informed Mr Forbes
that there were no safety signals to
put out. The bus driver further
informed him that the bus had broken down and that it was a
mechanical problem. Mr Forbes did not
see that the hazard lights of
the bus were switched on. Under cross-examination, Mr Forbes
testified that he attends to approximately
30 accidents per month and
approximately 3 to 4 collisions a day. Some of the collisions are
committed to memory and he could with
ease recall those even after a
lengthy period had passed.
[29] Mr Mudau, the Transport Officer at
the time of the collision to whom a report of the breakdown
of the
bus was reported, testified. He completed the breakdown report
forming part of the trial bundle to which he was referred.
The report
of the breakdown was made to him by the bus driver, the insured
driver, whose name was entered onto the report document.
The defect
reported to him and which was entered on the said breakdown report,
was that of “stalling”. Mr Mudau testified
that
“stalling” meant that the bus in motion cuts out and that
it could either be an electrical fault, no diesel or
no water. It was
reported that the bus was stationary. He did not know the reason for
the breakdown and could not comment thereon.
Mr Mudau was not
cross-examined.
[30] The Technical Manager of the
insured owner, Mr Nortman, testified that the busses of the insured
owner are all fitted with a system, an engine protection unit that
governs the speed and shows the engine temperature and pressure.
The
said system works on the basis that once a problem is encountered,
the system causes the engine to lose power and the vehicle
speed is
slowed down. The driver encounters the bus not to function properly
in that it appears not to have sufficient power. The
speed is slowed
down and when “0” km/h is reached the engine cuts out and
will not restart again. The bus drivers refer
to this effect as
“stalling”. The purpose of the system is to enable the
driver to steer the bus to a safe area. Mr
Nortman was not
cross-examined. In argument it is submitted that the evidence of Mr
Nortman is that of expert evidence for which
no notice was given and
hence inadmissible.
[31] Mr Thlapu testified that he is a
bus driver instructor. He testified that bus drivers are obliged
to
undergo refresher courses that he
inter alia
instructs in that
respect as well. With reference to a course attendance register
contained in the trial bundle and dated 16 May
2007, he testified
that the driver of the insured vehicle attended that refresher
course. He further testified with reference to
a training manual, the
relevant page thereof contained in the trial bundle, that it is
required of bus drivers to put two triangles
out at a distance of 45
metres behind and in front of the bus in the event of a breakdown of
the bus. Under cross-examination it
was solicited from Mr Thlapu that
he would not expect the driver to venture into oncoming traffic to
set the triangle at the specified
distance. He however testified that
it is expected of the driver to set it down at an appropriate
distance.
[32] The plaintiff testified that he
was a driver by profession and was at the time of the collision
six
years in the employ of his employer at that time. He was
travelling in the middle of three lanes behind other vehicles
at
approximately 70 km/h. He testified that the traffic, although dense,
was moving along and that the average speed of the vehicles
travelling with him was approximately 70 km/h. He was following a
bigger type of vehicle than his, which probably had a canopy
on, and
his view was obscured in respect of what was in front of the vehicle
he was following. He further testified that he was
following at a
distance of 1 to 1½ car lengths behind the bigger vehicle. The
vehicle in front of him “cleared off”
with no indication
of any trouble ahead. However, after the vehicle in front of him
cleared off, and at a distance of approximately
7 to 10 metres in
front of him, he for the first time saw the stationary bus. He
attempted to swerve to his right and applied
the brakes. There was
insufficient space to pass by safely and he collided with the rear
end of the bus, at a place from the centre
to the right-hand side of
the bus with the left front side of his vehicle. He was trapped in
his vehicle and loss consciousness.
He testified that the hazard
lights of the bus were not on and there was no triangle in between
him and the bus prior to the collision.
He further testified that he
did not see any fire extinguisher that was put out between his
vehicle and the bus. Under cross-examination,
it was put to the
plaintiff that had he travelled at a slower speed and kept a distance
far in excess of 1½ car lengths,
he could have avoided the
collision. The plaintiff’s response was that his speed was in
line with the flow of the traffic
and that had he kept a further
distance, other traffic would have moved in between his vehicle and
the vehicle he was following.
[33] Mr Grobbelaar prepared his report
with reference to a set of facts, including photographs, supplied
to
him on the part of the plaintiff and that he attended with the
plaintiff at the area where the collision occurred. The
defendant did not dispute Mr Grobbelaar’s expertise. The
set of facts that was supplied to him was more or less in
accordance
to those testified by the plaintiff during his evidence in court.
Mr Grobbelaar opined:
(a) From the photographs supplied
to him, he deduced that the bus was stationary. Had the bus
been in
motion during the collision, debris would have been strewn behind the
bus until it reached a standstill;
(b) In terms of the Road Traffic
Act Regulations, a warning triangle should have been placed
not less
than 45 metres behind the bus. The plaintiff would then have had a
space of 45 metres to avoid the collision;
(c) Due to the fact that
the plaintiff swerved to his right and attempted to brake, it
is
probable that he kept a proper look out;
(d) The fact that the left front
of the plaintiff’s vehicle collided with the centre
to right of
the rear end of the bus is indicative that the plaintiff attempted to
swerve to his right;
(e) In an addendum to his report,
Mr Grobbelaar opined further that the normal proposed following
distance is 2-3 seconds at a speed of 60 km/h, i.e. a distance
between 33-50 metres;
(f) In rush hour traffic,
keeping such a distance would be counterproductive. The driver
would
probably have fallen further back relative to the other traffic in
his lane in particular where other traffic would move
into the space
of 33-50 metres between the driver and the vehicle he was following;
(g) With the use of diagrams, Mr
Grobbelaar opined that it is not possible to determine with
sufficient accuracy the distance at which the plaintiff would have
been able to see the bus obscured by the bigger vehicle in front
of
him. However, he demonstrated with graphic simulations the
difficulties and rough distances in which the bus would not have
been
visible in the circumstances of this matter where the plaintiff was
behind the bigger vehicle;
(h) As a basis Mr Grobbelaar used
an approximate height of 3.1 metres for the bus, 2.1 metres
for the
in-between vehicle and the plaintiff, seated, with a height of the
plaintiff’s eyes at 1.1 metres. With those measurements
at a
distance of 1½ metres behind the bigger vehicle, the plaintiff
would not have been in a position to avoid the collision
since he
required a distance of 45 metres to bring his vehicle to a halt.
(i) With reference to
the issue whether a distance of 6 metres were adequate if
the
triangle and fire extinguisher were put out at that distance behind
the bus, Mr Grobbelaar opined that it was a wholly inadequate
distance for the plaintiff to avoid a collision;
(j0 Mr Grobbelaar further
opined that had a triangle and fire extinguisher been put out
at a
distance of 6 metres behind the bus, the plaintiff’s vehicle
would have collided therewith and remnants thereof would
have been
noticeable. Furthermore, the fire extinguisher would have been
severely damaged and would not have remained at
the place where it
appeared on the photographs. The fire extinguisher, where it
appeared on the photographs, was clearly
in the line of travel of the
plaintiff’s vehicle.
[34] That concluded the plaintiff’s
case.
[35] As recorded earlier, the defendant
only tendered the evidence of the insured driver, Mr Matlawa.
He
testified that he was travelling in the middle lane of three lanes.
The bus suddenly got “stuck” and “died”.
He attempted to restart the engine of the bus but unsuccessfully. He
“pressed” the hazard lights. He alighted from
the bus and
went to the back of the bus to see if he could ascertain the reason.
He opened the engine cover, but could not see
anything. He had
nothing to repair if he could ascertain the problem. He then went
back into the bus and took the triangle and
the fire extinguisher and
walked again to the back of the bus. He only ventured about six and a
half paces where he set up the
fire extinguisher and the triangle
that leaned against it. The fire extinguisher and the triangle were
put out so that traffic
following could see that he was “stuck”.
He was too scared to venture further because of the dense traffic
that was
travelling fast. He returned to the bus and phoned his
employer that the “engine was not running”. Whilst in the
bus,
he felt a thud at the rear of the bus. He went to investigate
and noticed that a vehicle had collided with the bus.
[36] Under cross-examination, Mr
Matlawa was confronted with an earlier statement that he apparently
had made to an official of the defendant. He was adamant that
he only consulted with the defendant’s legal representative
who
was in court. He could however not recall the date that he had so
consulted. Ms Ferguson objected to the cross-examination
of the
insured driver on the alleged previous statement as it constituted
hearsay evidence. That statement was provisionally admitted
as
evidence. In that statement much is similar to his evidence apart
from that in the statement he indicated that he first put
out the
triangle and only later added the fire extinguisher to prevent the
wind blowing the triangle over. Mr Matlawa denied talking
to the tow
truck driver and denied that he stated that he did not have any
safety signs to put out. He was further adamant that
when he phoned
his employer that he said the bus was stuck. He denied that he knew
the term “stalling” or that he had
given that as a reason
for the breakdown. He was also adamant that he immediately switched
the hazard lights on as soon as the
bus “got stuck”.
[37] That concluded the defendant’s
case.
[38] It is submitted on behalf of the
defendant that the evidence indicates that there are two
irreconcilable
versions as to what led to the collision. It is
submitted that the evidence of Mr Matlawa is to be preferred to that
presented
on behalf of the plaintiff. It is further submitted
that on the plaintiff’s own version he was clearly negligent in
driving at a speed of 70 km/h and not keeping a safe distance from
the vehicle in front of him in the prevailing circumstances.
Accordingly, the plaintiff was the sole cause of the collision.
[39] In my view, such an approach begs
the question. The stationary bus in the middle of three lanes
cannot
be ignored, whatever the reason for the breakdown. The question
remains what was done to alert the following traffic of
the obstacle
ahead. Had it not been for the said obstacle, no collision would in
all probability have occurred.
[40] Primarily it
must be determined what was done by the insured driver to alert the
following traffic,
and whether those actions were sufficient to
exculpate the insured driver from any liability.
[4]
Secondly, it must be determined whether the action or omission on the
part of the plaintiff constitutes negligence, and if so,
to what
extent.
[41] It was readily
conceded by Mr Beaton that the plaintiff’s case was not one
where the plaintiff
seeks to argue that he was not negligent in his
actions. The submission is that the plaintiff’s negligence was
not the sole
cause of the action, but may have contributed to the
collision occurring.
[5]
However, it is further submitted that the plaintiff’s
contribution to the collision was far less than that of the insured
driver.
[6]
[42] In considering
the issue relating to rear end collisions, and in particular where
there are disputes
of facts that are material, the principle
enunciated in
Stellenbosch Farmers
Winery Group Limited et al v Martell et Cie
[7]
finds application. The principle was stated as follows:
“
The technique generally employed by the
courts in resolving factual disputes of this nature may conveniently
be summarised as follows.
To come to a conclusion on the
disputed issues a court must make findings on (a) the credibility of
the various factual witnesses;
(b) their reliability; and (c) the
probabilities. As to (c) this necessitated an analysis and
evaluation of the probability
or improbability of each party’s
version on each of the disputed issues.”
[43] As recorded above, the evidence of
Messrs Madau and Nortman was not disputed. Important issues
were not
taken up with either of the said witnesses. These include the
evidence of Mr Madau that the insured driver reported the
problem as
“stalling” as opposed to the insured driver’s
insistence that the bus suddenly “got stuck”
and his
ignorance of the concept of “stalling”. One would have
expected that this issue would have been put to Mr Madau
for his
comment. Likewise, the evidence of Mr Nortman on what the concept of
“stalling” meant and that it is a term
used by the
drivers in that regard, was not questioned. Neither was it put
to Mr Nortman what effect a “loose”
starter cable would
have on the issue of “stalling”. It was submitted by Ms
Ferguson that it was the duty of the plaintiff
to investigate that
issue with the plaintiff’s witnesses. I disagree with that
submission. The defendant was well aware that
the insured driver did
not know the term “stalling” and further that his
evidence was that the bus suddenly “got
stuck”. The
two concepts are clearly not the same. The plaintiff could not have
anticipated that the insured driver
would give a different reason for
the bus suddenly coming to a halt. In my view, the defendant had a
duty to clarify the issue.
[44] Irrespective of what the cause of
the sudden cutting of the power was, the conduct of the insured
driver immediately thereafter needs scrutiny. Clearly a
dangerous situation arose.
[45] The insured driver insisted that
he switched the hazard lights on immediate when the engine
cut out.
That evidence is not supported by any of the witnesses who testified.
Mr van Vliet was clear that when arrived on the
scene, the tow truck
and ambulance had already left the scene. When he was at the scene,
the hazard lights were on. Non constat
that they were switched on
immediately after the collision. Neither the Metro Police
Officer, nor the tow truck driver noticed
that the hazard lights were
on.
[46] The insured driver’s
evidence as to where the hazard lights were situated on the rear
end
of the bus places them within the lower third part of the rear end of
the bus. On the undisputed evidence that the vehicles
in front of the
bigger vehicle in front of the plaintiff were obscured, clearly leans
to the probability that the plaintiff would
in any event not have
seen them before it was too late.
[47] The evidence of the insured driver
relating to the placing of a triangle and a fire extinguisher
to warn
following traffic is improbable for what follows.
[48] No triangle was found on the scene
by any of the independent witnesses, i.e. Mr Bambo, Mr Forbes
and
also Mr van Vliet. No remnants were visible to any of them and such
cannot be gleaned from the photographs presented to the
witnesses. On
the opinion of Mr Grobbelaar it is highly improbable that any
triangle was put out and in any event the distance
was wholly
insufficient.
[49] It is also highly improbable that
the fire extinguisher was put out immediately after the bus
coming to
a halt, either with or without a triangle. The fire extinguisher bore
no damage and no damage can be discerned from the
photographs. In Mr
Grobbelaar’s opinion, that at the speed that the plaintiff was
travelling and the short distance it was
allegedly place behind the
bus and the position thereof
vis-à-vis
the line of
travel of the plaintiff’s vehicle, it is improbable that it was
placed before the collision. It would have borne
severe damage and
would have landed, after a collision therewith, at a different
position to that indicated on the photographs.
[50] In my view the evidence of the
insured driver is highly improbable. In the light of the
undisputed evidence of Messrs Madau and Nortman in respect of the
report of “stalling” and what that concept entails,
it is
highly improbable that the insured driver, being employed as such for
at least since 2007, would be unaware of the term of
“stalling”
and what it entails. The insured driver had the opportunity to move
the “stalling” bus to a
safer place out of the line of
following traffic, in particular where there was a dedicated bus
lane. His inaction to do so, created
a dangerous situation.
Furthermore, after creating a dangerous situation, the driver did not
place any warning sign behind
the bus. He first investigated what the
problem was and if that could be remedied. On finding no obvious
problem, only then did
he attempt to put warning signs out. It is
clear that his efforts in this regard were totally insufficient. A
distance of 6 paces
is clearly insufficient in the particular
circumstances. The insured driver did not attempt to warn following
traffic in any other
manner and was content to return to the bus and
wait inside for assistance. An attitude in my view that speaks of
unconcern for
the safety of other road users. His evidence is further
unreliable. He obtusely struggled with the concept of “stalling”.
He further feigned lack of knowledge of important facts. His denial
of the evidence of witnesses who were wholly independent and
who were
employed by his employer is telling. His evidence as a whole was
crafted as exculpatory.
[51] There is no reason why the
evidence of the independent witnesses called on behalf of the
plaintiff
should not be accepted as reliable. They had nothing
hide. They were open in their evidence and gave the relevant facts as
applicable to their respective positions with the insured owner. The
plaintiff himself could not be discredited by the defendant
and none
was argued. He honestly and openly gave his evidence. His evidence is
reliable in that it is supported by extraneous facts
not disputed,
and is further more probable with regard to all the facts placed
before court than that of the insured driver.
[52] I find that the insured driver’s
conduct was insufficient in the circumstances and that
he was grossly
negligent. I further find that his negligence contributed largely to
the cause of the collision.
[53] The issue of the percentage to be
attributed to the respective negligence that contributed to
the cause
of the collision, is a vexed one. I find some support in the judgment
in
Bainton, supra,
where, under comparable circumstances, an
80/20 finding was made in favour of the plaintiff.
[54] On the issue of costs, I find no
reason why the general rule that costs follow the event should
not
apply.
I grant the following order:
1. The defendant’s
application for amendment is dismissed;
2. The defendant is
liable for 80% of the plaintiff’s damages to be proven
or
agreed upon in this action;
3. Defendant pays the
Plaintiff’s taxed or agreed party and party costs on
the High
Court scale, inclusive of the following:
3.1 the costs on all the issues
relating to liability, inclusive of the employment of two counsel
where employed, including the costs of preparation of the plaintiff’s
head of argument (if any);
3.2 the reasonable taxable costs
of obtaining the reports of Mr B Grobbelaar, which were furnished
to
the defendant in terms of Rule 36(9)(b);
3.3 the reasonable taxable
attendance, consultation, reservation, preparation and qualifying
fees as well as the travelling costs of Mr B Grobbelaar;
3.4 the reasonable taxable
transportation, subsistence and accommodation cost of the plaintiff
and his witnesses, for attending inspections
in loco
,
preparatory consultations and the trials to date;
3.5 the reasonable taxable costs
incurred by the plaintiff in respect of all
subpoenas
issued
by him;
3.6 the reasonable taxable costs
of preparing the trial bundles and copies thereof;
3.7 the reasonable taxable
travelling costs, costs of preparing for pre-trial conferences,
preparation of pre-trial minutes and the costs for attendance of
pre-trial conferences by the plaintiff’s attorney and counsel
where employed;
3.8 the reasonable taxable costs
of Mr B Grobbelaar as well as the plaintiff’s attorney
and
counsel where employed, in regard to
in loco
inspections,
preparations for and on trial;
3.9 the reasonable taxable costs
of a translator for the trials to date; and
3.10 All reserved costs (if any).
4. The aforementioned
taxed or agreed costs, once determined, shall be paid into
the
plaintiff’s attorney’s trust account, details of which
are as follows:
4.1. Name: ERASMUS-SCHEEPERS ATTORNEYS TRUST
ACCOUNT
4.2. Branch code: 632 005
4.3. Account no.: [….]
4.4. Ref.: M2389/16
5. The following
provisions will apply with regard to the determination of the
aforementioned taxed or agreed costs:
5.1 the plaintiff shall, in the
event that costs are not agreed, serve a notice of taxation
on the
defendant’s attorneys of record;
5.2 the plaintiff shall allow the
defendant 14 (fourteen) Court days, from the date of the
allocator
,
to make payment of the taxed costs;
5.3 should the defendant fail to
timeously pay the taxed costs as provided for in the preceding
sub-paragraph, those taxed costs shall carry interest at the rate of
10,25% per annum from the date of the taxation to date of
final
payment (both days inclusive).
6. The issue of
quantum of damages is postponed
sine die
.
7. It is recorded
that the plaintiff has not concluded a Contingency Fee Agreement
with
the plaintiff’s attorneys of record, in terms of the
Contingency Fees Act, 66 of 1997
or otherwise.
C J VAN DER WESTHUIZEN
JUDGE OF THE HIGH COURT
On behalf of
Plaintiff: R
Beaton SC
W J van Wyk
Instructed
by:
Erasmus-Scheepers Attorneys
On behalf of
Respondent: Ms R Ferguson
Instructed by:
Mothle Jooma Sabdia Attorneys
[1]
Neutral citation: (158/2011) [2011] ZSCA 242 (1
December 2011)
[2]
Kali v Incorporated General Insurance Ltd
1976(2) SA 179 (D) at 182A-B
[3]
Ibid.
[4]
Von Wielligh v Protea Versekeringsmaatskappy
Bpk
1985(4) SA 293 (K) at 298A-B; see
also
Bainton v Road Accident Fund
[2018] JOL 39563
(GJ) at [7]
[5]
Bainton, supra,
at
[11]
[6]
Op cit.
at [13]
[7]
2003(1) SA 11 (SCA) at [5]