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[2016] ZAFSHC 91
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B and B Eiendomme (Edms) Bpk v Find A Load (2335/2016) [2016] ZAFSHC 91 (12 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE
HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION, BLOEMFONTEIN
Case
No 2535/2016
In
the matter between:
B
& B EIENDOMME
(EDMS)
BPK
Plaintiff
and
FIND-A-LOAD
Defendant
CORAM:
NICHOLSON AJ
HEARD
ON:
19 & 20 APRIL 2016
DELIVERED
ON:
12 MAY 2016
JUDGMENT
BY:
NICHOLSON AJ
Representation
of the parties.
[1]
Mr. van Aswegen appeared for the plaintiff and Mr. Steenkamp appeared
for the defendant.
Introduction
[2]
This matter flows from a motor vehicle accident that took place
between a vehicle owned by the plaintiff,
a BMW 650 Sport, registration number
[6........] and a truck and two trailers (the Link), registration
[F........] owned by the defendant. The accident occurred between 9
and 10 a.m. on the morning of 17 December 2014 at or near the
intersection of Nelson Mandela Drive and Parfitt Avenue in
Bloemfontein.
[3]
It is alleged that the plaintiff suffered damage as a consequence of
the collision and the defendant has lodged a counterclaim
for its
alleged damage.
[4]
The parties to this matter agreed to separate the merits and
quantum
in this matter and then further agreed to approach this court
only for a ruling on the issue of negligence. The matters of
locus
standi
and
quantum
to stand over for
later determination. It thus fell to this court to assess negligence
only.
The
facts
[5]
On the morning of 17 December 2014, the
plaintiff's vehicle, BMW registration number
[6........],
was being driven on Nelson Mandela Drive, Bloemfontein, in the
direction of Parfitt Avenue by one Mr. C A Troskie,
a 78 year old
resident of Bloemfontein. On the same date, the defendant's vehicle,
a truck with two trailers (the Link), registration
[F........], was
being driven on the same road and in the same direction as the
plaintiff's vehicle, by Mr. N E Ndamane, an adult
male employee of
the defendant and resident of Bloemfontein.
[6]
It is common cause that it was the intention of both drivers to turn
left onto Parfitt Avenue using the slipway to Parfitt Avenue
located
immediately before the traffic lights at the intersection of Nelson
Mandela Drive and Parfitt Avenue. The traffic was light,
the road was
dry, in good condition and visibility was good.
[7]
It is also common cause that Nelson Mandela Drive has a number of
lanes travelling in each direction approaching the intersection
and
that the two lanes to the extreme left are demarcated with a broken
white line until a point close to the entrance to the slipway,
at
this point, the lane markings become solid white barrier lines and
the extreme left-hand lane becomes a left turn only lane
and markings
on the road in the lane to its right indicate that traffic may
proceed straight only. (See photos 1 & 8 of plaintiff's
trial
bundle.) The defendant's vehicle was in the second lane from the left
as it approached the intersection. It is furthermore,
common cause
that it is necessary for a vehicle of the length of the Link (22m
comprising of cab/horse 4m, first trailer 6m and
second trailer
12 m) to use two lanes when turning, so as to avoid possible damage
to property or injury to person by the
trailer(s) running up onto the
sidewalk/pavement in the course of the turn.
[8]
The parties agree that a collision took place between the plaintiff's
and defendant's vehicles when the Link turned left to
the slipway,
crossing the extreme left-hand lane. The turn was executed at the
start or just beyond the start of the solid white
barrier line
dividing the lanes. (See Exhibits B, D & E.) The plaintiff's
vehicle sustained damage to its right side as a consequence
of the
collision. (Photos 2, 3, 4 & 7 of plaintiff's trial bundle.)
[9]
The parties, however, dispute the position of the plaintiff's vehicle
prior to the collision, the relative positions of the
vehicles at the
time the collision occurred, the exact circumstances that gave rise
to the collision and, most importantly, who
was at fault in causing
the collision. The parties are also in dispute regarding where and to
what extent, if any, the Link was
damaged as a consequence of the
collision. No expert evidence was led by counsel for either party.
The
Evidence
[10]
Counsel for the plaintiff led two witnesses. The first was the driver
of plaintiff's vehicle on the day in question, one Mr.
Troskie. It
was established that Mr. Troskie is an elderly gentleman, resident in
Bloemfontein and in possession of a valid driver's
license. It was
further established that Mr. Troskie is an experienced driver both in
the South African and international context
and that he has lived and
driven in Bloemfontein for some considerable time, being familiar
with the road and traffic conditions
in the city and, more
especially, in the area in which the accident took place. In
addition, Mr. Troskie was shown to have driven
as a racing car driver
and as a stunt driver in the past. This demonstrated that he is a
skilled, experienced and competent driver.
Defense was quick to point
out on cross examination, that this history may expose a somewhat
fearless attitude to driving, a perception
that the witness was quick
to dismiss.
[11]
It was Mr. Troskie's evidence that the accident was caused by the
fault/ negligence of the defendant's driver who turned the
Link left
across the extreme left-hand lane of Nelson Mandela Drive without
giving a clear or timeous indication of his intention
to turn,
crossing a solid white barrier line without keeping a proper lookout
for traffic on his left and that he failed to take
steps to avoid
an accident in circumstances
where the
exercise of reasonable or proper
care would have permitted him to do so.
[12]
Mr. Troskie further indicated that he had been aware of the Link
travelling alongside him whilst he was in the extreme left-hand
lane
as he approached the slipway from Mandela Drive into Parfitt Avenue
but, that he was not concentrating on that vehicle but
rather on the
lane ahead of him, which was empty of traffic. It was his testimony
that the vehicle that he was driving was alongside
the front of the
first trailer of the Link as the vehicles approached the slipway.
[13]
In Mr. Troskie's opinion, the Link was moving very slowly, more
slowly than his own vehicle was travelling. He estimated his
speed in
approaching the slipway was between 30 and 40 kilometers per hour and
that of the Link was approximately 15 to 20 kilometers
per hour.
[14]
It was Mr. Troskie's evidence that the truck moved left without
warning and that the indicator lights on the Link were not
activated
until the Link was already turning. It is his contention that the
plaintiff's vehicle was struck on the right rear from
behind by the
first trailer of the link which then dragged the car some distance.
He testified that his immediate response was
to brake but then he
realized that if he continued to slow down or stop, the car would end
up beneath the Link's trailers and he
released the brake. He
testified that he was compelled to steer the car onto the pavement to
avoid going under the trailer and
that, as he was using both hands to
control the car, he had to rely on his passenger to sound the hooter
to alert the truck driver
to the fact that his car was being dragged
along by the Link. Mr. Troskie alleged that he could not have avoided
the accident by
reducing his speed, increasing his speed or by
stopping. The cab/horse of the Link was in front of him and the rest
of the second
trailer was still taking the turn behind.
[15]
The Plaintiff's second witness, Ms. Troskie, was the wife of the
first witness. She is an adult female. The witness testified
that she
had been a passenger in the front left seat of the plaintiff's
vehicle at the time of the collision on 17 December 2014.
Ms. Troskie
confirmed when and where the collision took place. She also confirmed
that the plaintiff's vehicle was in the extreme
left-hand lane of
Nelson Mandela Drive, travelling towards the intersection with
Parfitt Avenue immediately before the collision
took place. She
further confirmed that the Link was travelling in the same direction
and in the lane immediately to the right of
plaintiff's vehicle
immediately before the collision occurred. She indicated that she
became aware that the vehicles had collided
when she heard the sound
of the rear right window of the plaintiff's vehicle breaking. She
also confirmed that the driver of the
vehicle in which she was
travelling did not sound the hooter before the collision but that, as
the plaintiff's vehicle was in danger
of going under the trailer of
the Link, and the driver of the plaintiff's vehicle was focused on
keeping the vehicle from being
dragged under the Link, she pressed
the hooter.
[16]
Ms. Troskie testified that she was under the impression that it was
the first trailer of the Link that had struck plaintiff's
vehicle.
She admitted however, that she could add
nothing further to the testimony
as she was
not paying attention at the time and was not generally very
observant.
[17]
Cross examination of the Plaintiff s witnesses did not cause them to
deviate meaningfully from their evidence in chief.
[18]
Three witnesses were led for the defense. The first of these was Mr.
Ndamane, the driver of defendant's vehicle. Mr. Ndamane
is an adult
male. He too is an experienced driver with a valid driver's license,
who is familiar with the traffic patterns in and
around Bloemfontein.
Mr. Ndamane indicated that the route he was travelling on the date
the collision took place was a regular
route that he had driven on
numerous previous occasions.
[19]
Mr. Ndamane testified that immediately before the collision with the
plaintiff s vehicle he had been travelling in the lane,
second from
the left, approaching the intersection of Nelson Mandela Drive
and Parfitt Avenue. He indicated that it was necessary
for him to
approach the intersection in this lane, despite his intention to turn
left, because the length of his vehicle (22m)
required a wide turn in
order not to endanger other road users, property or pedestrians on
the sidewalk.
[20]
It was Mr. Ndamane's testimony that he indicated his intention to
turn left well in advance of the intersection and that he
carefully
checked his mirrors for traffic approaching from behind or traffic
alongside the Link before commencing the maneuver.
It was his
testimony that the cab and the first trailer were already in the
slipway to Parfitt Avenue when he became aware of the
collision when
the Link felt as though it were driving over the pavement. He
testified that his passenger then indicated a car
had "gone into
them". Mr. Ndamane testified that he saw plaintiff's vehicle for
the first time when he climbed down from
the cab/ horse of the Link.
He indicated that he had not seen it at any time prior to the
collision.
[21]
Mr. Ndamane further indicated that it was his belief that the
plaintiff's vehicle had sped up and tried to overtake the Link
as it
entered the slipway, (see exhibits B, D & E) that the driver of
that vehicle was driving at an excessive speed and that
he could have
avoided the collision by keeping a proper lookout and exercising
reasonable care. He admitted however, that this
was speculation given
that he did not see the plaintiff's vehicle prior to the collision
taking place.
[22]
Mr. Ndamane indicated that the maneuver to turn left was done at very
slow speed (10-20 kilometers per hour) and that he had
paused briefly
at the yield sign to Parfitt Avenue immediately before the collision
occurred. He indicated that he had stopped
immediately he became
aware of the collision. He estimated his vehicle had travelled no
more that 2 to 3m from the point of impact
when the vehicle came to a
complete stop. (See photos 2, 3,5, 9 & 10.) Mr. Ndamane stated
that he did not ask for, nor did
he receive any assistance in
checking for traffic on his left from his passenger, the driver's
assistant who had been travelling
in the cab with him at the time of
the collision. He stated that the mirrors were sufficient to give him
a good view of any vehicle
approaching his vehicle from behind or to
his right or left. He stated emphatically that his view was not
obstructed in any way.
[23]
Mr. Ndamane indicated that at the moment of the impact, he was
focused on the traffic with which he was in the process of merging,
approaching him from the right on Parfitt Avenue. He also indicated
that once the cab/horse of the Link was in the slipway, he
no longer
had any view along the left side of the trailers as they were in the
turn. He stated that the plaintiff's vehicle struck
the second
trailer of the Link, damaging the tool box. (See Exhibit C,
comprising two photos of the alleged damage.)
[24]
It was Mr. Ndamane's assertion that he could not have avoided the
collision in any way and that the sole cause of the collision
was the
negligence of the driver of the plaintiff's vehicle who drove
at an excessive speed, failed to keep a proper lookout
and failed to
avoid an accident in circumstances where, had he kept a proper
lookout, he would have been able to do so.
[25]
The second witness for the defense, Mr. Thekiso, an adult male,
testified that he was a passenger in the defendant's vehicle
at the
time of the collision. He testified that the Link was travelling, as
Mr. Ndamane had indicated, in the second lane from
the left
approaching the intersection with Parfitt Avenue. He stated that he
does not have a driver's license and that his role
is to take care of
the trailers of the Link. This includes but is not limited to,
ensuring that when taking corners, the trailers
do not mount the
sidewalk and cause damage.
[26]
Mr. Thekiso testified that the Link was travelling slowly as it
approached the intersection and that it had already commenced
the
turn
to
the left to Parfitt Avenue at the time the collision
took place. He estimated that the link was travelling at a walking
pace of
approximately 5 kilometers per hour. He testified that the
Link did not need to stop at the yield sign to Parfitt Avenue as
there
was no traffic approaching from the right.
[27]
Mr. Thekiso confirmed that the driver did not rely on him to assist
in determining whether or not it was safe to turn left
and verified
that he did not look to his left until the cab/ horse of the link and
some of the first trailer were already
in the slipway. It was
his testimony that the Link was moving "at a walking
pace", into Parfitt Avenue when
he looked back and saw the
plaintiff's vehicle approaching at high speed, approximately 2 to 3
meters from the back of the second
trailer. He estimated the speed to
be approximately 30-40 kilometers per hour. He testified that the
plaintiff's vehicle then
ran into the second trailer, nose
first. He stated that he alerted the driver to the collision just as
he was about to accelerate
into Parfitt Avenue. The driver then
stopped immediately.
[28]
Under cross-examination this witness testified that he could see
along the side of the trailers once the Link was in the slipway
as he
had a different vantage point from the driver. He was adamant that he
had seen the plaintiff's vehicle approach instants
before the
collision occurred.
[29]
This witness testified that the plaintiff's vehicle collided with the
toolbox on the second trailer and not with the first
trailer as the
plaintiff alleges. He remained firm on this point during cross
examination.
[30]
The final witness for the defense, Ms. Lamour, testified regarding
the veracity of a quotation for the damage to the toolbox
on the
second trailer of the Link. This quotation is dated prior to
the collision. Ms. Lamour, who works in the administrative
offices of
the defendant testified that the document had been obtained by
herself after the collision, that it indeed related to
the damage
caused to the toolbox during the collision and that the party who
supplied the quotation must have made an error in
entering the date
on the document.
The
Law
[31]
In determining responsibility for the damage caused by the collision,
it is incumbent upon the court to determine whether the
drivers of
the plaintiff's and/or defendant's vehicles acted negligently in
causing the accident. Negligence is determined on the
objective
test of whether a reasonable person would have been capable of
reasonably foreseeing the damage and, having so
foreseen, have taken
steps to prevent such damage and whether, in the circumstances,
the individual failed to take such steps.
(H B Klopper
The
Law
of
Collisions
in
South
Africa.
7
th
edition,
2003:
Chapter 1: General Principles;
Kruger
v
Coetzee
1966 (2) SA 428
(A) 430E-G). The
test for determination of negligence is well known and comprises of
three elements: Would a reasonable person
in the circumstances of the
actor have foreseen the possibility of harm to others; having so
foreseen would he/she have taken steps
to prevent that harm; and,
finally, did the actor take such steps? See,
inter
alia,
Flanders and
Another
v
Trans
Zambezi
Express
(Ptv)
Ltd and Another
2009 (2) All SA 142
(SCA) at p146. Thus, in the
current context, for the driver to be negligent, the damage
must have been reasonably nforeseeable,
a reasonable driver
would have taken steps to prevent the damage and the driver failed to
take such steps to prevent such damage
as a reasonable person would
have taken in those circumstances
(Kruger
v
C
oetzee1966
(2) SA 428 (A)). A
reasonable person is not however, expected to be a prophet.
(Makhatswa
v
Minister
of
Defence
2000 (1) SA 1104 (SCA);
Lomagundi
Sheetmetal
and
Engineering
(PVT)
Ltd v
Sasson
1973
(4) SA 523
(R.AD) at p 524-525)
[32]
The onus of proving negligence falls upon the plaintiff in this case
and on the defendant in respect of the counterclaim. The
court must
avoid drawing inferences unless consistent with proven facts in this
context and may not arrive at any conclusion based
thereon that is
inconsistent with the evidence. It should be borne in mind that the
standard of care required of a party will depend
upon the peculiar
circumstances of each individual case.
(Flanders and
Another
v
Trans Zambezi
Express (Pty) Ltd
and
Another
2009 (2) All SA 142
(SCA).) That said, the reasonable man is
not imbued with the "personal idiosyncrasies, superstitions and
intelligence of the
actor".
(R
v
Mbombela
1933 AD 269
at p 273-274;
Harrington NO
v
Transnet NO
Ltd
t/a
Metrorail
2010 (2) All SA 220
(SCA)
at para E-G)
[33]
While it is true that a breach of certain statutory regulations may
conclusively indicate negligence
(Sand
and
Company
Limited
v
SA Railways
and Harbours
[1948]
1 All SA 249 (W)) and
further, that drivers are entitled to assume that, in the
absence of
an indication to the contrary, that others will obey the traffic
signs, such a driver has a duty to adjust his behavior
once it is
clear that his assumption is incorrect. Thus, what amounts
to reasonable care will depend upon
the legitimate
assumptions a person may be able to make.
[34]
Regulations 296
to
323
of the
National Road Traffic Act 93of 1996
are
relevant here. Most especially,
regulations 299(3)
, which states that
where a road is divided into lanes, a driver may not turn across the
lanes unless he can do so without endangering
or obstructing other
traffic, and
regulation 302
that specifies that a driver must only
turn when it is safe and opportune to do so with due care to the
stream of traffic with
which he is about to merge. The driver of a
leading vehicle in a flow of traffic should signal his intention to
reduce speed or
to change direction and await an opportune moment to
do so in a reasonable manner so as not to unreasonably cross the path
of a
following vehicle or cause it to have to reduce speed, change
lanes to the left or right or come to a halt
(Keuning
N.O.
v
London
and
Scottish
Assurance
Corporation
Ltd
1963 (3) SA
609
(D)).
[35]
Road users are obliged to keep a proper lookout and to use their
rearview mirrors in a manner consistent with the circumstances.
Rodrigues v SA
Mutual
&
General Insurance
Co LTD
1981 (2) SA 274
(A);
Kapp v
Protea Assurance
Co LTD
1981 (3) SA 168
(A);
Butt
v
Van
den
Camp
1982 (3) SA 819
(A);
Viriri
v
Wellesley
Estate
(PVT)
Ltd
1982 (4) SA 308(ZSC))
The duty to keep a proper
lookout may not be delegated by
a driver
to another, although there may be
circumstances in which it may be prudent for a driver to
rely upon
the assistance of
another responsible person, better placed than himself, to see.
It should, however
be stressed that such reliance does
not absolve the driver of his duty. (See
S v Vishnu
1970 (3) All SA 452
(N))
[36]
All road users are obliged to travel at a reasonable speed consistent
with the circumstances. (See,
inter alia
Santam
Versekeringsmaatskappy BPK v Strydom
1977 (4) SA 899
(A);
Olivier
NO
v
Randalia
Versekeringsmaatskappy
van
SA
BPK
1979 (3) SA 20 (A). Finally,
the driver of a vehicle that
is
executing a turn must ensure that it is opportune and safe to do so,
signal his intention timeously and ensure his signal
has been
observed. Most importantly, following
Sierborger
v
South
African
Railways
and
Harbours
1961
(1) SA 498
(A), a driver who sees another driver is intending to
turn is under no duty to stop or slow down until it becomes
apparent
that the turn will be executed at an inopportune and
dangerous moment. At this stage he must place himself in a position
to avoid
the collision.
[37]
In the event that the It is the court's opinion that both drivers
were to some degree negligent in causing the damage, it must
determine the respective degrees of negligence of each driver. This
is assessed on the basis of the extent to which each deviated
from
the standard of the reasonable man. The applicable legislation here
is the Apportionment of Damages Act 34 of 1956 (the Act).
In terms of
Section 1 (1)(a) of the Act, "Where any person suffers damage
which is caused partly by his own fault and partly
by the fault of
the other person, a claim in respect of that damage shall not be
defeated by reason of the fault of the claimant
but the damages
recoverable in respect thereof shall be reduced by the court to such
an extent as the court may deem just and equitable
having regard to
the degree to which the claimant was at fault in relation to the
damage".
[38]
The applicable principles appear,
inter
alia,
from
South
British
Insurance Co
Ltd
v
Smit
1962 (3) SA 826
(A);
Jones
NO
v
Santam
Bpk
1965
(2) SA 542 (A);
AA
Mutual
Insurance Association Ltd
v
Nomeka
1976 (3) SA 45 (A);
Santam
Versekeringsmaatskappy
v
Letlojane
1982 (3) SA 318
(A);
Manuel
v
SA
Eagle
Insurance
Co
Ltd
1982 (4)
SA 352
(C);
Goss v Crookes
1998 (2) SA 946 (N);
Transnet
Ltd and Another
v Witter
2009 (1) All SA 164
(SCA) 169 A-C.
[39]
In the first of these cases, it was stated that the determination of
the plaintiff s degree of negligence will
automatically
determine the degree of negligence of the defendant. The second
of these cases, however stated that the
degrees of negligence of each
party should be determined independently in order to determine the
degree to which he/ she deviated
from the standard of the reasonable
person and then the two compared to determine their respective
degrees of fault in relation
to the damage. These are however, both
simply approaches that may be used and the approach in
Smit
above has been more consistently followed by the South African
Courts.
[40]
In the current case, the court determined that, in the event of both
drivers being found to have been negligent, the degree
of negligence
of each driver will be assessed independently, compared to that of
the other driver and the degrees of negligence
expressed as a
percentage.
The
finding
[41]
The plaintiff argued that Mr. Troskie was driving in the lane to the
immediate left of the Link at approximately 30-40 kilometers
per hour
when the link moved across his path. The vehicle in which he was
travelling was struck by the toolbox on the first trailer
of the Link
and was dragged a short distance before coming to rest on the
pavement. Photographs of both the damage to the right
side of the
plaintiff's vehicle and the final resting positions of the vehicles
support this view. The testimony of Mr. Troskie
was consistent under
cross-examination. Mr. Troskie was a calm, confident and compelling
witness and his testimony was supported
by the second witness for the
plaintiff whose testimony was also consistent under
cross-examination.
[42]
Mr. Ndamane testified that he had indicated his intention to turn
left in advance of his maneuver. That, although his Link
had crossed
the solid white line barrier between the lane in which he was
travelling and the lane to its left, this was necessitated
by the
fact that the Link needs a wide turn to take the corner. Ndamane
stated that he was travelling slowly. This was corroborated
by one
other witness for the defense and those for the plaintiff. He stated
that he carefully checked his mirrors and that he had
a clear and
unobstructed view behind and to the sides of his vehicle. He did not
ask his passenger for assistance in checking for
possible hazards. He
indicated that he moved left and was already in the slipway to
Parfitt Avenue when the Link was struck by
the plaintiff's vehicle.
He indicated that he had not seen the plaintiff's vehicle until be
alighted from the cab after the collision
had taken place. He only
became aware of the impact when he felt the Link driving as if it was
on the pavement. Mr. Ndamane was
a credible and honest witness who
admitted that he had not seen the plaintiff's vehicle prior to the
collision and could thus not
state with certainty where it had been
before the accident or at what speed it had been travelling. Mr.
Ndamane was emphatic in
stating that there was damage to the toolbox
of the second trailer of the Link as a consequence of the collision.
His testimony
withstood cross-examination without any meaningful
inconsistencies.
[43]
The second witness for the defense corroborated that the Link was
already in the slipway to Parfitt Avenue, with the second
trailer extending into the lane from which the Link had maneuvered
and that it was travelling slowly when the collision occurred.
Mr.
Thekiso also confirmed that he was not asked to assist Mr. Ndamane in
assessing whether or not it was safe to cross into the
extreme
left-hand lane. He indicated that he glanced back to check the
position of the trailers in time to see plaintiff's vehicle
approximately 2 to 3 meters from the back of the second trailer. He
estimated that the vehicle was travelling at a speed of approximately
40-60 kilometers per hour when it attempted to pass to the left of
the Link and collided, nose first, with the toolbox of the second
trailer. On cross-examination the witness remained resolute in what
he believed he had seen and emphasized that although Mr. Ndamane
could not see the plaintiff's vehicle his mirror immediately before
impact., Mr. Thekiso could see it as he had a different vantage
point. As Mr. Thekiso has no driver's license and, based on his own
testimony, he only had a second or two to form an opinion on
the
speed of the BMW, his testimony on this is unreliable.
[44]
The final witness for the defense addressed only the quotation for
the damage to the toolbox on the second trailer. As the
quotation was
allegedly incorrectly dated and, as
this witness was not present
when the
collision took place, the quotation cannot be relied upon to support
either version of events. Furthermore; the author
of the document was
not asked to testify regarding when it was issued.
[45]
The relative position of the vehicles on the road after the accident,
together with the nature of the damage to the plaintiff's
vehicle
support the view that the BMW was travelling on the left of the Link
and that it was caught up and dragged by the toolbox
on the first
trailer of the Link (not the second as alleged by the defendant) when
it turned left across the plaintiff's vehicle's
path of travel.
Furthermore, the manner in which the metal of the car has been bent
forward by the impact, as clearly seen from
the photographic evidence
submitted, supports the view that the trailer hit the car rather than
that the car hit the trailer. It
is also apparent from the
photographs presented to the court that the impact appears to have
been from the rear right of the plaintiff's
vehicle moving forward
rather than from the front moving back.
[46]
Finally, the broken glass portrayed on the roadway in the photographs
indicates that the Link moved more that 2 or 3 meters
after the
impact took place. Expert evidence on this would have been welcome.
Although expert evidence is not regarded as carrying
greater weight
than direct evidence of credible witnesses
(Motor Vehicle
Assurance Fund v Kenny
1984
(4) SA 432
(E), it would have been of some value in guiding the
court.
[47]
By his own testimony, it appears the driver of the plaintiff's
vehicle was alongside the Link when approaching the intersection
near
which the collision took place. In order to access the extreme
left-hand lane, the driver must have been behind the
Link and moved
to its left when the left lane opened up. The driver of the
plaintiff's vehicle was thus aware of the Link and remained
so
throughout. The driver admits that his vehicle was travelling faster
than the Link and that when the Link began to make its
turn his
vehicle was alongside the front of the first trailer. The plaintiff
should thus have observed the truck beginning to move
to the left and
should, immediately have used the hooter to alert the driver of the
Link to his presence on the left. He failed
to do this. The court is
of the opinion that a reasonable person driving in a lane between a
22m truck and a sidewalk, approaching
a turn, would have remained
vigilant regarding the truck's movements. It is not uncommon for
large trucks to take a wide turn around
a corner so as to avoid the
trailer mounting the sidewalk and causing damage or injury. Thus,
despite the fact that the Link was
in the second lane from the left
approaching the corner and despite the fact that the Link was in a go
straight only lane when
it made its turn, at or just after the start
of a solid white barrier line, it was not reasonable of the plaintiff
to assume that
the truck would go straight and not turn. He was not
obliged to take avoiding action based on the mere possibility that
the Link
would turn but, having noted that it was turning towards
him, he should have taken all reasonable steps to avoid the damage.
He
should have kept a proper lookout and reacted immediately the
slow-moving truck started to move towards him. The driver failed to
hit the hooter in the car at all, leaving it to his passenger to do
so. The driver was not aware that the Link had moved into his
lane
until his vehicle was struck by the trailer of the link. He stated he
could not have avoided the accident by slowing down
or by speeding up
as the trailer was behind him and the horse was in front
of him. Had the driver been alert to the
Link's movements, he may
well have been able, given the power of the vehicle to have moved it
out of danger.
[48]
The driver admits that he was not focused on the Link but rather on
the lane in front of him, which lane he avers was free
of traffic. A
reasonable person with basic driving skills and experience would have
remained focused on all the traffic around
him, not just on that
immediately in front of him in the lane in which he was travelling.
Even though the Link was in a lane that
became a travel straight only
lane, the reasonable driver in the position of the plaintiff's driver
would not simply have assumed
that the Link would continue driving
straight. The lane in which the Link was travelling was demarcated
from the extreme left-hand
lane by a broken white line almost to the
point at which the slipway began. Thus, an assumption that the Link
would not change
lanes was not entirely reasonable in the
circumstances.
[49]
Furthermore, as both drivers agreed that the Link was travelling very
slowly as it began to maneuver, it was not reasonable
for the
plaintiff's driver to remain oblivious to the change in the Link's
direction into his path. Had he been alert, the accident
may have
been avoided by the simple expedient of his pressing his hooter to
alert the driver of the Link to his presence on his
left. Given the
relative speed of the two vehicle, as testified to by the witnesses,
Mr. Troskie may have been able to accelerate
out of danger or to have
stopped and let the truck pass, had be become aware of the Link's
movement immediately it started to change
direction. The plaintiff
did none of these things. Thus it may be concluded that the plaintiff
was negligent with regards to the
collision.
[50]
The driver of defendant's car was negligent in so far as, it would
have been impossible for the BMW simply to have appeared
without, at
some point, having been visible in the mirrors of the truck. The
driver of the truck, having the benefit of an extra
pair of eyes in
the form of his assistant should have asked his assistant to take a
look to the left and behind the Link to ensure
the Link's passage was
not obstructed by a vehicle he had not seen himself. A driver is
neither obliged to seek assistance from
his passenger in assessing
whether or not there were obstructions in his path nor absolved of
his responsibility to check himself
should he request such
assistance. However, as the driver was aware, given the role of his
assistant, that his passenger had a
better vantage point when looking
down the side of the vehicle, this would have been the prudent course
of action for the reasonable
driver in his circumstances.
[51]
Mr. Ndamane was negligent in moving his car across the path of travel
of the plaintiff's vehicle without ensuring that it was
safe and
opportune to do so. There was a duty on him to keep a proper lookout
and to ensure that he did not cause following
traffic to have
to suddenly reduce speed, stop or move to its left or right. In this
instance, had Mr. Ndamane kept a proper lookout
and made use of the
resource in the form of the driver's assistant, he may have been able
to avoid the collision.
[52]
Mr. Troskie did not strike the court as the type of person who would
attempt to speed down the inside of the Link in an attempt
to pass a
vehicle that was entirely blocking the slipway he intended to enter.
There was no credible evidence that the plaintiff's
vehicle was being
driven at high speed at the time of the accident. The totality of the
evidence presented and the balance of probabilities
favours the
plaintiff's version of events regarding how the collision occurred.
For this reason the court finds that the driver
of the plaintiff's
vehicle, Mr. Troskie, was 20% negligent in relation to the damage and
the defendant's driver, Mr. Ndamane, was
80% negligent in relation to
the damage.
[53]
Costs of this hearing to be paid by the defendant on an attorney and
client scale.
___________________
C.
NICHOLSON, AJ
On
behalf of the plaintiff:
Adv. Van Aswegen
Instructed by: Phatshoane
Henney
BLOEMFONTEIN
On
behalf of the defendant: Adv. Steenkamp
Instructed by: Blair
Attorneys
BLOEMFONTEIN