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[2017] ZAFSHC 128
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Wesrup Beleggings CC v Ferriers and Another (1264/2012) [2017] ZAFSHC 128 (3 August 2017)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
No.: 1264/2012
In
the matter between:
WESRUP
BELEGGINGS
CC
Applicant
and
D
KUHN
FERRIERS
1
st
Respondent
GEORGE
EBENHAZER GELDENHUYS
2
nd
Respondent
HEARD
ON:
7 & 8 FEBRUARY
2017
JUDGMENT BY:
DAFFUE,
J
DELIVERED
ON:
3 AUGUST 2017
JUDGMENT
I
INTRODUCTION
[1]
A head-on motor vehicle collision occurred on 10 May 2010, more than
seven years ago, on the N1 freeway just a few kilometres
south of
Kroonstad in the direction of Ventersburg. The two drivers
blamed each other and as is usually the case in these
situations, two
mutually destructive versions were presented to the court.
There were no other eyewitnesses that could shed
any light on the
reasons for the collision. Mr Barry Grobbelaar, a motor vehicle
reconstruction expert, testified on behalf
of the plaintiff.
II
THE
PARTIES
[2]
The plaintiff is Wesrup Beleggings CC, a close corporation duly
registered as such with principal place of business in Vredendal,
Western Cape.
[3]
First defendant is D Kuhn Ferriers, a firm operating
inter alia
as transporters with principal place of business situated in
Kraaifontein, Cape Town.
[4]
Second defendant is George Ebenhazer Geldenhuys, an employee of first
defendant and the driver of its Toyota Corolla motor vehicle
which
was involved in the collision.
[5]
Adv M Naude presented plaintiff’s case before me whilst Adv P
Haasbroek appeared for both defendants. It was agreed
after the
hearing of evidence that the court would be presented with counsel’s
written heads of arguments, the presentation
of oral argument having
been waived.
[6]
I shall throughout this judgment refer to Wesrup Beleggings CC as the
plaintiff, to D Kuhn Ferriers as the defendant and to
Mr Geldenhuys
as the defendant’s driver. Plaintiff’s truck was
driven by its employee, Mr Zwelinjane Johannes
Valashiva, herein
later referred to as the truck driver.
III
THE
PARTIES’ VERSIONS
[7]
I shall deal with the two versions in more detail when I evaluate the
evidence, but to put the reader in the picture, the following
summary
is provided. It is plaintiff’s version that the truck
driver was travelling from Kroonstad
en route
to Ventersburg,
that the defendant’s Toyota Corolla motor vehicle moved over
the centre line and collided with the right
front wheel of the
plaintiff’s truck, notwithstanding the fact that the truck
driver moved to the left and partly across
the yellow line in order
to avoid a collision. The impact caused the truck’s right front
tyre to burst, as a result of which
the truck driver lost control
where after the truck moved into its incorrect side of the road and
capsized. After the collision
the Toyota Corolla returned to
its correct side of the road and came to a standstill on that side.
The collision occurred
approximately five kilometres outside
Kroonstad.
[8]
The version of the defendant’s driver is that he came across
two trucks approaching from Kroonstad and that plaintiff’s
truck, the second truck, gradually moved over to its incorrect side
of the road and collided with the defendant’s vehicle
where
after defendant’s driver lost consciousness for a while.
Whilst defendant’s driver was transported by ambulance
to the
hospital in Kroonstad, he noticed the 10 kilometre sign post
indicating the distance to Kroonstad which made him believe
that the
collision occurred more than 10 kilometres from Kroonstad. It should
immediately be mentioned that defendants admitted
the averment in the
particulars of claim that the collision occurred approximately 5
kilometres from Kroonstad. The defendant’s
driver
testified that the point of impact was half a meter from the centre
line in his correct lane of travel.
IV
ISSUES
NOT IN DISPUTE
[9]
Ex facie
the pleadings the following facts are not in dispute:
9.1
Plaintiff’s citation as Wesrup Beleggings CC and defendant’s
citation as D Kuhn Ferriers;
9.2
The particulars of second defendant and that he was employed by first
defendant;
9.3
The following averment as pleaded in paragraph 5 of the particulars
of claim:
“
On
or about 10 May 2010 and at or near the N1 approximately 5 km from
Kroonstad in the direction of Ventersburg,
plaintiff’s
aforesaid truck and trailers
was (sic) involved in a collision with a motor vehicle with
registration number [Y...] there and then been driven by the
2
nd
defendant, who was there and then acting within the course and
scope of his employment with the 1
st
defendant, alternatively furthering the business and interests of the
1
st
defendant, further alternatively acting under the 1
st
defendant’s direct control”
(emphasis
added);
9.4
That the amount claimed was demanded from defendants.
V
ISSUES
IN DISPUTE
[10]
Ex facie
the pleadings the following facts were still in
dispute when the matter was called:
10.1
Plaintiff’s incorporation as a close corporation with principal
place of business at 25 Stasie Road,
Lutzville, Vredendal –
however, this was eventually admitted before the leading of evidence;
10.2
That first defendant was a firm operating
inter
alia
as transporters, having its principal place of business at 25
Livingstone Street, Kraaifontein, Cape Town;
10.3
That plaintiff was the registered owner, alternatively
bona
fide
possessor of the truck and two trailers bearing the registration
numbers as set out in paragraph 4 of the particulars of claim,
the
risk in respect of the said truck and trailers having passed to the
plaintiff. It was also disputed that the trailers
were loaded
with wooden chipboards and that the risk of loss of the load passed
to plaintiff;
10.4
That the sole cause of the collision was due to the negligence of the
defendant’s driver, who in particular
caused his vehicle to
veer into the opposite lane in which the plaintiff’s vehicle
was travelling, causing a collision with
the plaintiff’s
vehicle.
10.5
The plaintiff suffered damages in the amount of R673 587.93.
[11]
As pointed out by plaintiff’s counsel, defendants denied that
plaintiff was either the registered owner or
bona
fide
possessor of the truck and trailers as are apparent from paragraph 4
of the particulars of claim read with paragraph 4 of the plea,
but in
paragraph 5 of the plea in response to paragraph 5 of the particulars
of claim defendants admitted plaintiff’s entitlement
to the
truck and trailers. I refer to the portion underlined
supra,
i.e.
that
plaintiff’s truck and trailers were involved in the collision.
Although some cross-examination was undertaken in this
regard,
defendants’ counsel did not seriously dispute plaintiff’s
locus
standi
to sue for damages caused to the truck and trailers as well as the
cargo.
VI
SEPARATION
OF ISSUES
[12] Prior to hearing of
evidence I made the following orders by agreement:
1.
The merits and
quantum
are separated in terms of Rule 33(4)
and whilst paragraphs 1, 3, 5, 8 & 9 are now common cause, the
court will have to adjudicate
the disputes arising from paragraphs 2,
4 & 6 of the particulars of claim read with the respective
paragraphs of the plea;
2.
It is recorded that the counterclaim has now been
withdrawn;
3.
The
quantum
of plaintiff’s claim,
i.e.
the allegations in paragraph 7 of the particulars of claim, stands
over for later adjudication if required;
4.
The costs of the counterclaim shall be argued when
the merits are
argued.
VII
LEGAL
PRINCIPLES
[13]
As mentioned the court is confronted with two mutually destructive
and incompatible versions as is generally the case in especially
motor vehicle collisions. In order to evaluate the evidence I
shall take cognisance of and adopt the reasoning of Nienaber
JA in
SFW
Group Ltd and Another v Martell Et Cie and Others
2003 (1) SA 11
(SCA). I quote from paragraphs 5 and 34:
“
[5]
The technique generally employed by 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
(a)
,
the court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary factors, not necessarily
in order of importance, such as (i) the witness' candour
and
demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or events.
As to
(b)
,
a witness' reliability will depend, apart from the factors mentioned
under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues.
In the light of its assessment of
(a)
,
(b)
and
(c)
the
court will then, as a final step, determine whether the party
burdened with the
onus
of
proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court's credibility
findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
“
[34]
In assessing the probabilities, phase by phase as events
unfolded, as well as comprehensively and in retrospect,
the
conclusion seems to me to be inescapable that of the two versions
before Court as to what the parties agreed to, SFW's is the
more
probable. That being so, Seagrams has not succeeded in discharging
the
onus
which
it assumed for itself in suing for a declaratory order. It further
follows that SFW's appeal must succeed.”
[14]
Experts are frequently called in to assist our courts, but courts are
not bound by the opinion of an expert. An expert
must be called
as a witness on matters calling for specialised knowledge. It
is the duty of the expert to furnish the court
with the necessary
scientific criteria for testing the accuracy of the expert’s
conclusions so as to enable it to form an
independent judgment by the
application of these criteria to the facts proved in evidence.
See
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung MBH
1976 (3) SA 352
(A) at 370H – 372A. In the evaluation of
the evidence of experts it is required to determine whether and to
what extent
their opinions advanced are founded on logical
reasoning. See
Michael
and another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at para [36].
[15]
In
Mapota v Santam Versekerings Maatskappy Bpk
1977 (4) SA 515
(AD) at 527H Potgieter JA commented as follows:
“
Dit
is egter welbekend … dat direkte geloofbare getuienis dikwels
aanvaar kan word al sou daardie getuienis indruis teen
waarskynlikhede wat voortspruit uit menslike ervaring of
wetenskaplike menings. In die onderhawige geval sou, na my oordeel,
die
wetenskaplike mediese getuienis slegs die sterk en andersins
aanvaarbare en gestaafde getuienis van appellant kan ontsenu indien
daardie getuienis onteenseglik getoon het dat die redelike
moontlikheid dat die ongeluk kon plaasgevind het soos deur appellant
beskryf is, nie bestaan nie.”
[16]
In
Stacey
v Kent
supra
the full bench of the Eastern Cape Division considered several
dicta
from a number of judgments dealing with the manner in which expert
evidence should be considered and concluded as follows at 350G-I:
“
I
would point out that the present is not a case where the evidence was
of so technical a nature that this Court is obliged to defer
to the
opinions of the experts who testified. I am further constrained to
make the comment that, as will be shown below, the
expert
testimony adduced in the present matter to an extent verged on the
highly theoretical and hypothetical. As pointed out in
the
authorities cited above, it is the duty of experts to furnish the
Court with the necessary criteria for testing the accuracy
of their
conclusions, so as to enable the Court to form its own
independent judgment by the application of those criteria
to the
facts proved in evidence. The mere pitting of one hypothesis against
another does not constitute the discharge of the functions
of an
expert. The Court should also be on its guard against any tendency on
the part of expert witnesses to be biased in favour
of the side which
calls them and an unwarranted readiness to elevate harmless or
neutral facts to confirmation of preconceived
theories or to
dismiss facts supporting an opposing conclusion.”
[17]
Bearing in mind the quoted
dicta,
direct and credible evidence of what happened in a motor vehicle
collision often carries greater weight than the opinion of an
expert
who had to reconstruct the event from his experience and scientific
training, especially where the expert relies on uncertainties
such as
estimates of time and distance by witnesses confronted with sudden
and unexpected events. It is only where the direct
evidence is
so improbable that its reliability is impugned that an expert’s
opinion of what may have occurred should prevail.
Having said
this, in the final result a decision must be reached on the evidence
as a whole.
[18]
In motor vehicle collision cases the respective drivers and
eyewitness are without exception requested to estimate aspects
such
as speed, duration and distance. It is obviously necessary to
obtain clarification from witnesses, but there can be
no doubt that
it is notoriously difficult for anyone to make accurate estimates in
the proverbial split second and/or in the agony
of the moment.
See
Olivier
v Rondalia Versekeringsmaatskappy van SA Bpk
1979 (3) SA 20
(AD) at 26-27 and
Rodrigues
v SA Mutual and General Insurance
1981 (2) SA 274
(AD) at 279 and 280. A strictly mathematical
approach, although undoubtedly very useful as a check, can rarely be
applied
as an absolute test in collision cases since any mathematical
calculation depends on exact positions and speeds whereas in truth
these are merely estimates almost invariably made under circumstances
wholly unfavourable to accuracy. See
Van
der Westhuizen v SA Liberal Insurance Co
1949 (3) SA 160
(C) at 168 quoted with approval in
Diale
v Commercial Union Assurance Co of SA Ltd
1975 (4) SA 572
(AD) at 577A.
[19]
I wish to quote the following from Cooper,
Delictual
Liability in Motor Law
,
1996 ed, vol 2 at 471, relying
inter
alia
on
President
Insurance v Tshabalala
1981 (1) SA 1016
(A),
Kapp
v Protea Ass
1981 (3) SA 168
(A) and
Marine
& Trade Ins v Van der Schyff
1972 (1) SA 26
(A):
“
In
a civil case a court is obliged to determine all issues on a balance
of probabilities. If on the totality of the facts,
and after
making due allowance for the risk of error, the court is satisfied on
a balance of probabilities of the reliability of
the estimates, there
is no reason why it should not adopt a ‘mathematical’
approach, not merely as a ‘useful
check’ but to determine
the negligence issue. The many reported judgments in collision
cases reflect the important
role this line of reasoning plays in the
determination of the negligence issue.
VIII
EVALUATION
OF THE EVIDENCE AND SUBMISSIONS ON BEHALF OF THE PARTIES
[20]
Although the defendant finally admitted plaintiff’s
incorporation as a close corporation as pleaded in paragraph 1 of
the
particulars of claim, it was not prepared to admit plaintiff’s
locus
standi
to sue for damages caused to the truck, trailers and cargo.
However, Mr Haasbroek conceded in his heads of argument that
plaintiff bore the risk of damage to, or loss of the cargo on the
trailers at the time of the collision. Plaintiff called
Mr
Rupping, a co-member of plaintiff who testified with reference to the
official registration certificates that the truck and
trailers were
registered in the name of the plaintiff at the time of the collision,
that ABSA Vehicle Finance (“Absa”)
was the title holder
of the truck and trailers and
that
the right of ownership therein vested in ABSA. After the
collision Absa provided plaintiff with a written settlement
quotation
dated 15 June 2015 in respect of the truck, emphasising that the
right of ownership shall vest in the bank until the
settlement amount
is received. Plaintiff filed an insurance claim with its insurers,
was duly paid out and Absa’s claim was
settled. Plaintiff
was therefore duly indemnified.
[21]
Mr Rupping was not in a position to provide the court with the
written credit agreement entered between ABSA and plaintiff
notwithstanding attempts made to obtain same, but in my view the
documentation provided and uncontested evidence of Mr Rupping
serve
as
prima
facie
proof
that plaintiff was the debtor in terms of the credit agreement
entered into with ABSA pertaining to the truck and trailers
and that
plaintiff carried the risk in respect of loss of the truck, trailers
as well as the cargo. It is not in dispute
that Mr Rupping
presented not only oral evidence, but also documentary proof in
respect of the risk of loss in respect of the cargo,
and as
mentioned, Mr Haasbroek conceded this aspect. I accept that Mr
Rupping presented hearsay evidence and that the failure
to present
the credit agreement might have been fatal. Mr Haasbroek merely
submitted in his heads of argument that plaintiff
failed to prove
that it bore the risk of damage to or loss of the truck and trailers
without taking the issue any further.
He did not in
cross-examination attack the veracity of the registration documents
of the truck and trailers or the Absa settlement
quotation or Mr
Rupping’s version of plaintiff and Absa’s relationship,
although Mr Rupping was warned that he would
argue that plaintiff
failed to prove the nature of the relationship with Absa. I am
of the view that judicial notice may
be taken that credit providers
such as Absa will not be prepared to accept risks of damage to or
loss of vehicles which are the
subjects of credit agreements.
They or their personnel have no control over the manner in which such
vehicles are being used.
Motor vehicle collisions and car and
truck hi-jacking occur frequently and no credit provider would be
prepared to accept the risk
of loss in such instances. I
therefore find that plaintiff bore the risk of damage to or loss of
the truck and trailers.
[22]
As mentioned
supra,
two eyewitnesses testified pertaining to the collision, to wit the
truck driver, Mr Valashiva and defendant’s driver, Mr
Geldenhuys. I accept that their versions should not be
unnecessarily scrutinised pertaining to detail, bearing in mind the
authorities quoted, as well as the time lapse of seven years. I
considered the versions of the two witnesses and I am satisfied
that
the truck driver made a more favourable impression on me in the
witness box than defendant’s driver. I shall elaborate.
I could not find any material contradictions in the truck driver’s
version, either internal contradictions or external contradictions.
The same cannot be said of the defendant’s driver.
Notwithstanding the admission on behalf of the defendants that the
collision occurred approximately five kilometres from Kroonstad, and
that it was never put in contention when the truck driver
testified
that, according to defendants, the collision occurred at a totally
different spot on the road towards Ventersburg, the
defendant’s
driver testified that the collision occurred further than ten
kilometres from Kroonstad and therefore denied
that it occurred at
the spot testified to by the truck driver and indicated on the
photographs taken by Mr Grobbelaar, the expert
witness to whose
evidence I shall refer later. However, defendant’s driver
who frequently made use of the road even
after the collision could
not find the spot afterwards, but insisted that evidence was led in
respect of the wrong scene.
In cross-examination he insisted
that he informed defendant’s counsel prior to the hearing that
he did not agree with plaintiff’s
version, but counsel –
a senior legal representative – failed to either arrange for
the withdrawal of the admission
in the pleadings or to seek leave to
make appropriate statements about the incorrectness of plaintiff’s
version. Defendant’s
driver was either mistaken about the
10 kilometre road sign due to his medical status at the time, or
deliberately wanted to discredit
the truck driver’s version.
Fact of the matter is that on his own version there was an incline in
the road in the direction
of Kroonstad at the spot where the
collision occurred and two lanes leading to Kroonstad and one to
Ventersburg. This appears
vividly from the photographs
presented in evidence by plaintiff.
[23]
The defendant’s driver travelled the particular road frequently
at the time prior to the collision, and also thereafter,
but could
not identify the area of collision afterwards. The truck driver
on the other hand, identified the spot by attaching
a plastic bottle
to the fence next to the scene and was able to point it out to Mr
Grobbelaar approximately two and a half years
after the collision.
Both drivers prepared a rough sketch a few days after the collision,
indicating that the road consisted
of two lanes, one in each
direction. However, it is apparent from the photographs handed
in as exhibits as well as the evidence
of both drivers that at the
area of collision a single lane leads towards Ventersburg whilst two
lanes lead in a northern direction
towards Kroonstad. I do not
think that the witnesses shall be taken to task about their failure
to draft proper plans.
They are lay persons who merely wanted
to indicate that the point of impact was on their correct side of the
road. Both drivers
testified that the defendant’s driver
was driving the Toyota Corolla in the right hand lane leading towards
Kroonstad (or
the inner lane) immediately prior to the collision.
Both are therefore
ad
idem
in
respect of the general lay-out of the area where the collision
occurred although defendant’s driver disagreed with the
truck
driver about the particular spot on the road.
[24]
On the truck driver’s version the truck’s right front
tyre burst as a result of the impact and that the Toyota
Corolla
carried on its movement during impact to also damage the fuel tank
which is located just behind the cab of the truck before
it
dislocated from the truck and slid across the road back into its
correct lane of travel. Prior to the collision and as
the
Toyota Corolla was moving across the centre line, the truck driver
flashed his lights twice (from dim to bright and back),
took his foot
off the accelerator and moved towards his left. At the time of
impact, the truck’s wheels straddled the
yellow line to the
left of the lane leading to Ventersburg. He was severely
cross-examined about the truck’s precise
position prior to and
at impact. In examination in chief he mentioned that
“
ek
ry effentjies in die geel lyn.”
During
cross-examination
he
mentioned that the collision occurred just as he was about to cross
the yellow line. Later he said that the yellow line
was between
the left and right wheels of the truck and that he did not completely
cross the yellow line. I do not agree with
Mr Haasbroek’s
statement to him that he changed his version. The truck driver
acted in the proverbial split second
at night time and it would be
unfair to expect that he could possibly give a more appropriate
answer. He moved to the left
to avoid the Toyota Corolla and on
his version he was
“
effentjies
in die geel lyn”
or
then slightly or partially across the yellow line. Mr Haasbroek
put it to the witness that his sketch plan does not indicate
the
position of the vehicle across the yellow line. I indicated
supra
that it
could really not be expected of any of the drivers to draft detailed
plans.
[25]
I am satisfied that on the probabilities, and considering the two
drivers’ version in isolation, the Toyota Corolla would
have
caused damage to the fuel tank of the truck as described by the truck
driver. In my view it would be highly improbable
for the Toyota
Corolla to come into contact with the fuel tank of the truck if the
truck moved to its right and veered across the
centre line into the
lane of the Toyota Corolla just before impact as described by
defendant’s driver. In such a case
the fuel tank situated
on the right hand side of the truck would in all probabilities not
come into contact with the Toyota Corolla.
[26]
The defendant’s driver made a poor impression on me. He
was not only vague on many occasions, but also contradicted
his
initial version as well as his version in court. He recorded in
writing a few days after the collision that the Toyota
Corolla was
the third vehicle of a convoy moving in the direction of Kroonstad,
but in court, seven years after the collision,
he presented a totally
different version. There were no vehicles directly in front of
him. He did not refer in his
initial description of the
collision that two trucks approached him, four to five truck lengths
apart, and that the second vehicle
veered over to its right in the
face of the oncoming Toyota Corolla. He tried to explain that
he did not think at the time
that the other truck was relevant.
Surely, one’s first reaction in such circumstances would be to
think that the one
truck tried to overtake the other when it was
unsafe to do so. Therefore it could be expected that he would
refer to such
manoeuvre, instead of referring to a convoy of vehicles
which was not a convoy at the time. Although defendant’s
driver
was accustomed to the specific road, it was impossible for him
to identify the area where the collision occurred afterwards.
[27]
Defendant’s driver was at pains, contrary to what Mr Haasbroek
thought he would testify, to explain that the truck gradually
(in
Afrikaans – geleidelik -) moved over the centreline prior to
impact. His counsel desperately tried to solve the
problem in
re-examination, but to no avail. He insisted that the truck
“
(h)et geleidelik
oorgekom na my kant toe. Geleidelik. Nie vinning, maar
stadig oorgekom.”
I
find it strange that he testified that the point of collision was
half a metre to the left of the centre line on his correct side,
but
was unable to say which parts of the vehicles collided with each
other. If the truck gradually moved across the centre line
as he
wanted me to believe, he would have more than sufficient time to
steer the small Toyota Corolla to his left to avoid a collision.
He had the luxury of an extra lane to his left. His version of
how the collision occurred is much less probable than that
of the
truck driver and it is not supported by the general probabilities.
He came all the way from Port Elizabeth that day
– a distance
of nearly nine hundred kilometres – and it is possible that he
lost concentration and veered to his right
as described by the truck
driver and consequently caused the collision.
[28]
Mr Grobbelaar did not have an opportunity to inspect the damaged
vehicles and had to rely on the version of the truck driver,
evidence
on the scene, quotations pertaining to the damage caused to the truck
and trailers and photographs of the damaged Toyota
Corolla only.
Photographs of the damaged Toyota Corolla were handed in as exhibits.
He readily conceded that circumstances
were not ideal to come
to his ultimate findings. I do not agree with Mr Haasbroek’s
submission that plaintiff’s
failure to produce photographs
depicting the damaged truck calls for a negative inference. It
cannot be accepted, as Mr Haasbroek
submitted, that plaintiff did not
want the court to see the photographs. I considered the
quotations that form part of the
documentation before the court also
referred to by Mr Grobbelaar as well as the summary prepared on
behalf of Mr Grobbelaar in
terms of Rule 36(9)(b) and his
viva
voce
evidence.
No doubt, extensive damage was caused to the truck and trailers,
bearing in mind that the truck capsized after the
collision which
obviously would have caused further damage.
[29]
Mr Grobbelaar referred to gouge marks at the scene of collision as
pointed out by the truck driver of which he also took photographs.
He concluded that at and after impact on the truck’s correct
side of the road (the truck travelling astride the yellow lane
of its
emergency lane) a series of gouge and chop marks were deposited from
the area of collision to the place where the truck
capsized. He
found two short parallel gouge marks in the Toyota Corolla’s
correct lane between the area of impact and
the position where the
Toyota Corolla came to a standstill and accepted that these were
caused by the Toyota Corolla when it was
forced at an angle back to
that lane after impact with the much heavier truck. There were
no gouge marks found in the northbound
lanes which could have been
associated with the collision, save for the two short parallel
marks. Several photographs were
taken of the collision scene as
well as the gouge and chop marks and he also prepared a plan, drafted
on scale, showing what is
depicted on the photographs. These
substantiate Mr Grobbelaar’s reasons and opinion.
[30]
Mr Grobbelaar testified that it is likely that the vehicles collided
with an offset frontal impact with the right front corners
of the
vehicles overlapping at impact although it could not be established
with accuracy if the centre lines of the vehicle were
parallel on
impact or if there was an angle between them due to the lack of
photographs of the damaged truck and the fact that
he could not
inspect the damaged vehicles physically. However it appears
from the Toyota Corolla’s damage that if there
had been an
angle between the centre lines of the vehicles on impact then such
angle would probably have been small. He testified
that the
gouge marks found at the scene of the collision as pointed out by the
truck driver were consistent with the approximate
area of the
collision and the resting positions of the vehicles afterwards.
The first marks at point “D” on the
scale plan as well as
depicted on the photographs indicate the swerving of the truck to the
right after impact due to weight transfer
occurring on to the left
wheels and the tyres and rims thereof then causing those marks.
[31]
Mr Grobbelaar made concessions where it was needed, such as that the
truck would have ended up at the same spot after the collision
no
matter which version is to be accepted and that the position where
the Toyota Corolla ended up, is equally plausible in respect
of both
versions. He also conceded that the damage visible on the
photographs of the Toyota Corolla is equally plausible
in respect of
both versions.
[32]
Mr Haasbroek accused Mr Grobbelaar of being partisan, attempting to
assert the plaintiff’s case. He pointed out
that Mr
Grobbelaar did not deem it necessary to respond to the truck driver’s
version put to him to the effect that the Toyota
Corolla slid across
the road after impact, whilst Mr Grobbelaar testified that the Toyota
Corolla either spun across the road or
may have been airborne whilst
moving as such. These contradictions and Mr Grobbelaar’s
inability to say anything further
are regarded by Mr Haasbroek as the
low water mark of his evidence. I am not prepared to accept
this criticism. As pointed
out by the authorities quoted
supra
it is virtually impossible for eyewitness to describe in minute
detail exactly what has happened within seconds or even a split
second either before, during or after impact in motor vehicle
collisions. The truck was clearly out of control after impact
and went off the road. The further movement of the Toyota
Corolla occurred behind the truck driver. I am not prepared
to
accept that the truck driver could have been fully aware of the exact
movements of the Toyota Corolla after impact and his version
of the
spinning of the Toyota Corolla across the road cannot be used to
discredit Mr Grobbelaar.
IX
CONCLUSIONS
[33]
I am satisfied that the truck driver was a credible witness, that he
did not contradict himself on material aspects and that
he provided a
plausible version of the events which should be accepted as more
probable than the version of the defendant’s
driver who was a
rather poor witness. The truck driver’s
version was much more coherent and it should be
accepted bearing in
mind the totality of the evidence provided to court and the general
probabilities.
[34]
Although Mr Grobbelaar was at a disadvantage for the reasons stated
supra
,
I am prepared to accept his opinion and the reasons advanced.
His reasoning cannot be faulted. It is in line with
the
probabilities. I am satisfied that he was an objective witness
who made several concessions when called for.
[35]
The truck driver explained that when the Toyota Corolla moved over
the centre line, he tried to avoid the collision by flashing
his
lights, reducing speed by taking his foot off the accelerator and
moving to his left to the extent shown
supra
,
but notwithstanding this a collision still occurred. He could
do nothing further to avoid a collision. On his version,
which
I prefer for the reasons stated herein, no negligence can be ascribed
to him. It must be recognised that he was driving
a truck which
pulled two fully laden trailers at the time. The possibility of
successfully taking evasive action in such
instances is severely
limited. Therefore plaintiff has succeeded in proving that the
negligence of the defendant’s
driver was the sole cause of the
collision. There is no reason why costs should not follow the
event.
[36]
The counterclaim was withdrawn at the start of the proceedings and
the parties agreed that costs thereof would be argued at
the end of
the case. I have not been persuaded that first defendant shall
not be held liable for plaintiff’s costs
pertaining to the
withdrawn counterclaim and such an order shall be made.
X
ORDERS
[37]
Therefore the following orders are issued:
[1]
First and second defendants are held liable, jointly and severally,
for 100% (one hundred
percent) of plaintiff’s damages to be
proven or agreed upon.
[2]
First and second defendants are liable, jointly and severally, for
the plaintiff’s
party and party costs in respect of the costs
thus far, such costs to include the fees and expenses of plaintiff’s
counsel
and the two sets of attorneys, the fees of the expert
witness, Mr Barry Grobbelaar pertaining to his attendance of the
trial on
7 and 8 February 2017, including consultations, drafting of
his report and preparation for trial, as well as his expenses
pertaining
to travelling and accommodation, and also the travelling
and accommodation costs of plaintiff’s two witnesses, Mr
Rupping
and Mr Valashiva.
[3]
First defendant shall pay plaintiff’s costs of opposition of
the counterclaim.
[4]
The matter is postponed
sine
die
for
determination of the
quantum
of plaintiff’s claim.
_____________
J.P. DAFFUE, J
On
behalf of plaintiffs:
Adv M Naude
Instructed
by:
Horn & Van Rensburg Attorneys
Bloemfontein
On
behalf of defendant: Adv P
Haasbroek
Instructed
by:
Phatshoane Henney Attorneys
Bloemfontein