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[2016] ZAFSHC 177
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Value Logistics Ltd v Booysen (3008/2012) [2016] ZAFSHC 177 (3 November 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3008/2012
Reportable: NO
Of Interest to other
Judges: NO
Circulate to Magistrates:
NO
In
the matter between:
VALUE
LOGISTICS
LTD
Plaintiff
and
MZWANDILE
BOOYSEN
Defendant
HEARD
ON:
16 & 17
AUGUST 2016
11 &
14 OCTOBER 2016
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
3 NOVEMBER 2016
I
INTRODUCTION
[1]
This litigation emanates from a motor vehicle collision that occurred
on 15 January 2011 at about 01H30 on the N1 highway approximately
13
kilometres south of Winburg, i.e. in the direction of Bloemfontein.
The proverbial merits and quantum have been separated
in that I
ordered that the disputes contained in paragraphs 7 and 8 of the
particulars of claim and paragraph 4.2 of the counterclaim
together
with the relevant paragraphs of the pleas shall stand over for later
adjudication if required. Bearing in mind the
admissions in the
pleadings and concessions made during the trial, the only issue to be
considered and adjudicated at this stage
is the negligence, and
possibly contributory negligence, of the two drivers of the
respective motor vehicles.
II
THE PARTIES TO THE CLAIM AND COUNTERCLAIM
[2]
Plaintiff is Value Logistics Ltd, the owner of a 2010 model Nissan
diesel UD460 horse with registration number [Z...] and trailer
with
registration number [J...] which truck and trailer were damaged in
the collision mentioned in paragraph 1
supra.
The total amount of damages claimed is R614 122.58.
[3]
In his counterclaim defendant, the owner of motor vehicle with
registration number [D...] (‘the Mazda”) claims payment
in the amount of R14 300, being the value of his vehicle which
is a total wreck.
III
THE DISPUTE TO BE ADJUDICATED
[4]
In their pleadings both parties rely on the so-called usual grounds
of negligence in relation to motor vehicle collisions, but
over and
above that, claim that the other driver caused his vehicle to veer
into the lane of oncoming traffic and therefore into
the path of such
party’s oncoming vehicle. The parties do not rely on
contributory negligence in the alternative, but
this is obviously an
aspect to be considered in the adjudication of the matter.
IV
TWO MUTUALLY DESTRUCTIVE AND INCOMPATIBLE VERSIONS
[5]
Plaintiff’s heavy motor vehicle, consisting of a horse and two
trailers, was on route from Johannesburg to Cape Town on
the N1
highway, i.e. in a southern direction. The driver was Mr Cannon
Mdamane (“Mdamane”). Defendant and
his colleague
were travelling in the Mazda from Bloemfontein on route to Welkom via
Winburg, i.e. in a northern direction.
The two vehicles
collided with each other at about 01H30 the particular night.
This, and also the area where the collision
occurred, approximately
13 kilometres south of Winburg, is common cause. The collision
occurred on a section of the road
providing for two lanes in the
direction of Winburg and one lane in the direction of Bloemfontein
with two solid white lines dividing
the northerly and southerly bound
lanes. So far the common cause facts.
[6]
According to Mdamane he noticed an oncoming vehicle, which later
appeared to be the Mazda, approaching across the solid white
lines
and into his lane of traffic. He tried to avoid a collision by
initially putting his truck’s headlamps on bright a
few times
and thereafter reducing speed by changing gears from twelve to six.
The Mazda collided with the guardrail (Armco
barrier) on his left
hand side twice and spun back into the road. Mdamane moved to
the right in order to avoid the Mazda,
but all in vain. Prior
to the collision he was traveling at approximately 80km/h and
according to him he could do nothing
further to avoid the collision.
After impact he could not control his truck anymore and it crashed
through the guardrail
on the western side, i.e. his opposite side of
the road, and eventually became stationary in the veld. The
Mazda was severely
damaged and the two occupants were trapped in the
vehicle. He noticed that they were seriously injured. He
found a
sealed Windhoek Lager beer can and a cooler box in the middle
of the road next to the Mazda. He contacted his employer to
inform them of the collision. Police, personnel of emergency
services and ambulances arrived later.
[7]
Mdamane was requested to make a sketch of the collision scene which
was handed in as exhibit. His rough sketch is a reasonable
version of the particular road and road markings as depicted in the
photographs placed before me. He was shown certain photographs
which he admitted to be from the particular scene. One
photograph in particular, depicting skid marks in the lane of traffic
leading south in the direction of Bloemfontein (as he was
travelling), is contentious. In examination in chief he averred
that those marks emanated from the truck driven by him. The
astonishment on the face of plaintiff’s counsel when confronted
with this response spoke volumes. He was asked the question
more than once and also in cross-examination, but steadfastly
and
repeatedly stated that those marks were caused by the truck driven by
him. This is clearly an error for the reasons to
be advanced
infra
.
However it cannot be said that the driver was a lying witness for
making such error.
[8]
Plaintiff called a further witness, Mr Kalis (“Kalis”)
who not only took photographs of the collision scene a few
hours
after the collision, but prepared a written report to plaintiff.
He was qualified as an expert and testified as an
expert witness,
although much of his evidence is not based on opinion, but rather
what he actually noted at the scene.
[9]
Defendant and his colleague Mr Koko (“Koko”) were
travelling in the Mazda from Bloemfontein in the direction of
Winburg. Close to the point of collision he was still in the
right hand lane of the two lanes leading to Winburg. In
fact he
kept to the right hand lane all the way from Bloemfontein where ever
the road consists of two lanes. He was travelling
at 120km/h.
All of a sudden he noticed an approaching vehicle travelling in his
lane of travel which caused him to swerve
to the left in order to
avoid the collision. Unfortunately he swerved too far to the
left and hit the guardrail on the western
side - his left hand side -
but he managed to steer the vehicle away from the guardrail back onto
the road. He became aware
that Koko was seriously injured as a
result of the impact with the guardrail as he saw blood streaming
from his face. He
does not have any recollection of what
occurred hereafter and his first memory is of lying in the road close
to the Mazda and next
to his friend, Koko.
[10]
Koko testified as well and corroborated the version of defendant.
He, as is the case with defendant, does not know how
the
collision occurred. I shall deal with improbabilities and
inconsistencies in their version when I evaluate the evidence
infra
.
V
APPLICABLE LEGAL PRINCIPLES
[11]
In motor vehicle collision cases the respective drivers and
eyewitness are without exception requested to estimated 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.
[12]
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.”
[13]
Reaction time, that is the time that a driver takes to respond to any
adversity, differs from person to person and experts
make provision
for different reaction times when reconstructing collision scenes.
Reaction time of the normal person ranges
between 1 and 1.5 second.
See
Rodrigues
supra
at 279G where the reaction time was accepted as 1.5 second and
Road
Accident Fund v Grobler
2007 (6) SA 230
(SCA) where the expert allowed for reaction time of
about 1 second. See footnote 1 on page 233 of the judgment.
[14]
As mentioned
supra
I am confronted with two mutually
destructive and incompatible versions. In order to adjudicate
the matter I shall take cognisance
of the
dictum
of Cooper
quoted
supra,
but also adopt the reasoning of Nienaber JA and
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.”
[15]
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].
[16]
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.”
In
Stacey
v Kent
1995 (3) SA 344
(ECD), 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.”
Bearing
in mind the quoted
dicta,
direct and credible evidence of what happened in a motor vehicle
collision often carry greater weight then the opinion of an expert
who had to reconstruct the event from his experience and scientific
training. 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
finale result a decision must be reached on the evidence as a whole.
VI
EVALUATION OF THE EVIDENCE
[17]
As indicated
supra
the court is confronted with two mutually destructive and
irreconcilable versions. I mentioned that Mdamane made an
obvious
error pertaining to the skid marks found in his lane of
travel. Having considered the evidence of Kalis and following
my
own observations of the marks depicted in the photographs as will
be elaborated
infra,
his version should be regarded as an honest mistake and I make such a
finding. Plaintiff’s counsel, having been caught
by
surprise as was obvious from her reaction, did not know how to remedy
the situation. She was not entitled to cross-examine
her own
witness. It also appears from Mdamane’s evidence as if it
was not possible to notice the oncoming Mazda from
a much greater
distance as the distance he mentioned in his testimony, but the
evidence in this regard and reasons provided are
not acceptable.
It must be accepted that the collision occurred nearly six years
earlier. Mdamane’s description
as to how the vehicles
collided with each other sounded somewhat strange, bearing in mind
the milliseconds within which the vehicles
made contact with each
other. It is not necessary to reject his version as improbable
for merely incorrectly describing the
movement of the vehicles
immediately before impact and thereafter. If I do that I would
be guilty of an armchair approach.
[18]
Defendant and his witness gave a version that appears to be entirely
improbable. I accept that the evidence was led nearly
six years
after the collision and that it would be difficult to remember minor
details. There was no cross-examination in
this regard, but I
found it strange that the answers provided by defendant on questions
by the court just before lunch on the first
day of the resumed
hearing were largely echoed by Koko when he testified after lunch.
I have reason to believe that they
discussed defendant’s
evidence during the luncheon adjournment. I accept that it is
impossible to estimate duration
of events, time and distance with
accuracy as stated above, but I find it improbable that the two
gentlemen could leave Rocklands
in Bloemfontein at 22H00, only to
arrive at the scene of the collision 80 kilometres north of
Bloemfontein at 01H30. In order
to explain the trip of three
and a half hours, they mentioned that they stopped at a garage in
Bloemfontein to fill-up petrol and
to enjoy a burger.
Furthermore and along the road they stopped between three and five
times for either of them or Koko in
particular to urinate. A
trip of eighty kilometres on the quiet N1 at a speed of 120 kph will
take forty minutes only.
When this was put to defendant he had
to find excuses,
inter
alia
that he did not travel at that speed all the time and that he stopped
regularly as indicated. I also find it improbable that
defendant would drive all the way from Bloemfontein to the scene of
the collision with his lights on dim as he testified.
His
reasoning for doing so is improbable and far-fetched, bearing in mind
that they were driving during the middle of the night
and with few
vehicles approaching. It was defendant’s case that they
preferred to undertake the trip that time of the
night in order to
avoid heavy traffic. I am not convinced that defendant and his
witness played open cards with the court
in this regard, but I shall
for purposes of evaluation of the evidence be careful not to
over-emphasise my conclusion that they
were not speaking the truth.
[19]
Much of the evidence of Kalis who was called to give expert evidence,
is not expert evidence at all. He visited the scene
of the
collision during daylight and some nine hours thereafter. At
that stage he was employed by plaintiff and at present
he still has a
business relationship with plaintiff. He does much work for
plaintiff pertaining to the investigation of collisions
involving
motor vehicles of the plaintiff. I shall take extra care in
evaluating his evidence as he cannot be regarded as
independent, a
factor usually required from an expert. Most of what he has
observed and testified to and depicted on the
photographs could have
been observed by any lay person visiting the scene and/or studying
the photographs. If the court could
have conducted an
inspection in
loco
that same morning, the same observations could have been made.
I refer
infra
to those aspects of Kalis’ evidence which can be regarded as
opinions.
[20]
Defendant’s attorney cross-examined Kalis and made submissions
in argument pertaining to his lack of objectivity, the
failure of
providing the court with all the photographs that he had taken at the
scene and finally the alleged contradiction in
his version pertaining
to when photographs were taken. I am particularly mindful of
the fact that Kalis has a close link
with plaintiff and will keep
that in mind at all times. The mere fact that more photos were
taken than those attached to
his written report provided to the
company two days after the collision, which report forms part of the
evidential material before
me, is in my view insignificant, although
I would have expected Kalis to provide a photograph of the damaged
guardrail caused by
the plaintiff’s truck when it left the
road. Fact of the matter is that it was never in dispute that
plaintiff’s
truck crashed over the guardrail on the western
side of the road and ended up in the veld. There is nothing
peculiar pertaining
to the evidence as to when the photographs were
taken. It is clear that Kalis could not take all photographs at
the same
time, but as explained, he took photographs during his
investigation and as he walked about the scene of collision,
following the
skid marks, until he arrived at the area of collision.
[21]
The photos of the two vehicles clearly establish severe impact on the
right front side of the truck including the right front
wheel thereof
whilst the Mazda was a total wreck insofar as the engine was
completely ripped off. Photo 59A of Exhibit A
which is also
duplicated in the annexure to Kalis’ summary provided in terms
of Rule 36(9)(b) and photo 63A are not only
compatible and serve as
corroboration of Mdamane’s version about the movement of the
Mazda prior to impact, but cannot be
explained in any other way.
The skid marks depicted are those of a light motor vehicle whose
wheels became locked.
They start at the right hand lane of the
two lanes leading to Winburg, cross the double white lines and
proceed into the lane of
vehicles travelling to Bloemfontein,
carrying-on in the direction of the guardrail and going back from
there in the direction of
the solid white lines in the middle of the
road where the patch of oil and water spillage was found, which area
is also depicted
on the photographs. The indentations in the
guardrail are evident on photo 59A. This, which has been
explained by Kalis,
serves as corroboration for the version of
Mdamane.
[22]
If it is accepted that plaintiff’s vehicle was driven at 80 kph
and defendant’s vehicle at 120 kph immediately
prior to the
collision, the cumulative speed was 200 kph. A simple
calculation shows that the two vehicles would travel a
combined
distance of hundred metres in a time of 1.8 second. If the
normal reaction time of a person is accepted as between
1 and 1.5
second, it would mean that neither of the drivers would be in a
position to take any evasive action if an unusual occurrence
in
respect of the other vehicle would be taking place less than
approximately fifty metres in front of either of them. Therefore
no
reliance can be placed on the estimates of any of the witnesses
pertaining to duration of events and distances. Their
estimates, varying from seven or eight metres to fifty metres, being
the distance between the two vehicles when the one crossed
over the
solid white lines, are rejected as wrong without making any negative
deduction against anyone. I don’t find
their estimates
strange or unusual. The drivers were driving at night time;
they were in moving vehicles; their vehicles’
headlamps were on
and they testified nearly six years after the event. It would
not be possible to give exact distances.
Their estimates were
poor and off target, but that in itself does not mean that their
respective versions should be rejected.
[23]
I am satisfied that I may accept the version of Kalis who attended
the scene nine hours after the collision in broad daylight.
He
had sufficient time to do an investigation, make observations and
take photos. I accept that he observed the fresh skid
marks of
a light motor vehicle which started in the right hand lane of traffic
going to Winburg, crossed the solid white lines
and proceeded in the
direction of the guardrail on the eastern side of the road, i.e. the
incorrect side of the Mazda travelling
to Winburg. He explained
that the marks were still fresh insofar as he detected small rubber
particles along the marks.
This is a reasonable deduction and
he cannot be criticised for arriving at such conclusion. In
fact, this was not put in
contention. I also accept that Kalis
found indentations in the guardrail in the vicinity where the skid
marks ended and started
again and that these were caused by the
Mazda. Kalis explained that he found the wooden poles to which
the guardrail was
fastened to have been pushed back in the direction
of Winburg and furthermore, the nature of the identations was such
that force
from the direction of Bloemfontein was applied. This
finding was also not attacked. Further skid marks from
the
guardrail started, leading towards the area where he found oil
and water spillage in the middle of the road which he regarded as
the
area of collision. The photographs confirm his
viva
voce
evidence.
I also accept that the skid marks were not made by plaintiff’s
truck which is a heavy double axel vehicle as dual
skid marks would
have been found in such instance and the marks would also be much
wider than those depicted in the photographs.
[24]
Kalis
referred to the area of collision as a dark patch on the road surface
across all lanes, but essentially across the double
solid white lines
and the right lane of vehicles travelling to Winburg. The skid
marks ended in the vicinity of this dark
patch. He observed
that this dark patch was caused by oil and water spillage and
concluded that this had been deposited there
at the time of the
collision. He determined that the area of impact was in the
lane of vehicles travelling towards Bloemfontein.
The area of
collision indicated is based on his opinion. If it is tested,
it appears that the opinion cannot be rejected.
The photographs
and the
viva
voce
evidence
are evident. Anyone studying the photographs will be able to
notice the skid marks of a light motor vehicle, the
identations in
the guardrail and the dark patch in the middle of the road just
beyond the skidmarks. Kalis, who was at the
scene, confirmed
what he photographed and why. He presented a logical version
which is corroborated by the photographs and
Mdamane’s version
pertaining to the movement of the two vehicles immediately before
impact.
[25]
A further opinion advanced by Kalis is that generally speaking a
light motor vehicle such as a Mazda would not burst through
a
guardrail, but will merely damage it and bounce off the guardrail
after having collided with it, whilst a 60 ton heavy vehicle
such as
plaintiff’s truck and trailers would go right through the
guardrail, pushing it flat as happened in this case.
[26]
It should be mentioned that Kalis’ opinions were at no stage
attacked. It was never submitted that his conclusions
were
incorrect. It is true that upon questions put to him in
cross-examination, he admitted that he had not inspected the
guardrail on the western side of the road, save where the truck
crashed through, and could not deny or admit whether there was
any
damage caused by the Mazda. He did not interview either of the
two drivers although he later received a copy of Mdamane’s
statement. I am satisfied that bearing in mind the objective
facts, the photographs and those facts which are common cause,
Kalis’
opinions should be accepted.
[27]
In conclusion pertaining to the evaluation of the evidence in
totality, I have to consider the credibility of the various
witnesses, their reliability and the probabilities in line with the
SFW
judgment
supra
.
I accept that Mdamane was a credible witness. He made
mistakes pertaining to the skid marks and the distance between
the
vehicles when the Mazda crossed into his path of travel. His
explanation as to how the collision actually occurred might
be
doubted. However he made a good impression on me as a witness
and his version is also supported by the photographs, Kalis’
testimony and the probabilities. I’m not impressed with
the evidence of defendant and Koko. Koko’s attitude
in
the witness box and his demeanour in general gave me the impression
that he did not respect the court and/or court proceedings.
I
even detected an arrogance which is seldom found amongst witnesses.
I made remarks pertaining to their credibility
supra
.
Notwithstanding this I am firmly of the view that if their version is
considered with the probabilities, the objective evidence
and common
cause facts, they cannot be believed.
[28]
When reliability is considered, I’m satisfied with the evidence
of Mdamane, save for the aspects referred to, but which
does not
detract from the inherent reliability of his version. Although
he gave the impression that it was not possible to
observe vehicles
over a relatively long distance coming from Bloemfontein, his version
in respect of the events during and after
the collision should be
accepted as reliable. His version is also corroborated by the
probabilities and objective facts referred
to
supra
.
According to him both occupants in the Mazda were trapped inside the
vehicle and were unconscious. When the damaged
Mazda is
considered, this version appears to be reliable and probable.
[29]
Defendant and his witness did not witness the collision. Koko
was on his cell phone and there must be doubt as to the
reliability
of his observations. Defendant does not remember what
transpired after he steered the Mazda away from the guardrail.
I am not impressed with the explanation that he could not remember
anything that happened thereafter. I got the impression
that he
did not want to be confronted with reality. In any event, the
only version before me as to exactly what happened
immediately before
impact is that of Mdamane who noticed defendant’s vehicle in
his lane at a relatively late stage for the
first time. It is
not required of me to speculate, but if defendant and Koko are to be
believed, it is quite possible that
the Mazda first hit the guardrail
to the left, became out of control and skidded across the road before
hitting the guardrail on
the other side and thereafter collided with
plaintiff’s truck. However I do not find this as a fact.
[30]
Defendant and his witness gave the impression that they were ejected
during impact and were lying on the tarmac next to the
Mazda and
close to each other. This cannot reasonably possibly be true
and is found to be improbable. Firstly, they
were unconscious
after impact and could not tell what happened to them as a result of
impact. Secondly and if they were ejected
as a result of the
collision, they would have been propelled in different directions.
It is more probable that the medical
personnel who arrived at the
scene lifted them out of the wreck with the help of emergency
personnel, causing them to be positioned
close to each other before
being taken away by the ambulance personnel.
[31]
Mdamane testified about the cooler bag containing Windhoek Lager beer
and the one sealed Windhoek Lager can found in the middle
of the road
after the collision. His version is corroborated insofar as
Koko testified that he was on the verge of opening
another can of
Windhoek Lager when the collision occurred. He also testified
that there were other cans of Windhoek Lager
behind the driver’s
seat and it is probable that these would have been kept in a
container like a cooler bag. Defendant’s
version that the
beer was kept in the boot of his car and that it was necessary to
stop for Koko to take out beer prior to the
collision is contradicted
by Koko.
[32]
Koko was speaking on his cell phone at the stage when the collision
occurred and he was also on the verge of opening another
can of
Windhoek Lager which he had just picked up from behind the driver’s
seat. The reliability of his version pertaining
to the
collision and what occurred just prior thereto is doubtful to say the
least. I am also not prepared to accept defendant’s
version to be reliable pertaining to the occurrences immediately
prior to and during the collision. On his version the
plaintiff’s
truck was approaching in his lane, to wit the right
hand lane as he was travelling to Winburg. There was no
indication that
the truck was moving in any other direction than in
the specific right hand lane. It did not cross lanes. If
defendant
had sufficient time to move to the left as he alleged, he
would clearly be in a position to move to the left hand lane and pass
the truck without causing a collision. Bearing in mind reaction
time and even if he struck the guardrail to his left as alleged,
the
probabilities do not favour a head-on collision. I would have
expected him either to miss the plaintiff’s truck
completely or
collide with the side thereof or the side of either of the two
trailers.
[33]
I’ve already referred to probabilities, but wish to emphasise
that I am satisfied that the probabilities favour plaintiff’s
version. Having considered the probabilities and assessed them
phase by phase as events unfolded as well as comprehensively
and in
retrospect as indicated by Nienaber JA in
SFW
supra
,
I have arrived at the inescapable conclusion that plaintiff’s
version is more plausible and probable than that of defendant.
Therefor I find that plaintiff has proven its case on a balance of
probabilities. An order should be made in terms whereof
defendant be held 100% liable for such damages that plaintiff may
eventually prove or to be agreed upon. Simultaneously defendant
has failed to prove its case pertaining to the counterclaim and
therefore it should be dismissed with costs.
VII
ORDERS
[34]
Consequently the following orders are made:
Main
claim
1.
Defendant’s
negligence was the sole cause of the collision that occurred on 15
January 2011.
2.
Defendant
is liable for payment of 100% of plaintiff’s damages to be
proven or agreed upon.
3.
Defendant
shall pay plaintiff’s costs of the action to date hereof.
Counterclaim
4.
Defendant’s
counterclaim is dismissed with costs.
_____________
JP
DAFFUE, J
On
behalf of the plaintiff: Adv Boonzaaier
Instructed
by:
Christo Dippenaar Attorneys
Bloemfontein
On
behalf of the defendant: Mr Seobe
Instructed
by:
SMO Seobe Inc.
Bloemfontein
/PK