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[2016] ZAKZPHC 120
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Cemisha Transport CC v Ni-da Transport (Pty) Ltd and Another (350/10) [2016] ZAKZPHC 120 (27 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
Case
No: 350/10
In the
matter between:
CEMISHA
TRANSPORT
CC PLAINTIFF
and
NI-DA
TRANSPORT (PTY)
LTD FIRST
DEFENDANT
D R
DUBE SECOND
DEFENDANT
Coram
:
Poyo Dlwati J
Heard
:
24
April 2015
Delivered
:
27
September
2016
ORDER
The
plaintiffs claim against the first and second defendants is dismissed
with costs. The first defendant's counterclaim against
the plaintiff
succeeds with costs.
JUDGMENT
POYO
DLWATI J
[1]
This matter concerns a motor vehicle collision which occurred on 30
October 2009 at about 21H30 at/or near the Rl02 road in
Stanger. At
the commencement of the trial it was agreed by the parties that there
be a separation of issues and that the trial
would deal with the
merits only, with the quantum
being
dealt with at a later stage, which I so ordered.
[2]
The evidence has established that the plaintiff, a close
corporation that does trade store deliveries, had acquired the second
hand
8 ton box bodied truck a year and a half prior to the accident.
On the evening of 30 October 2009 the plaintiffs truck, referred
to
as the Cemisha during the trial, was travelling in the left hand lane
of the Rl 02 near Stanger. The R102 is a dual carriage
way that has
traffic flowing in both directions of the road. There are no street
lights at the point where the first defendant's
tluclc turned or
where the collision occurred.
[3]
The first defendant's truck, a horse and trailer, referred to
as the Ni-da during the trial, was canying a load of steel
reinforcing
bars on the evening in question. At the point where the
collision occurred, the Ni-da had executed a left-hand turn onto a
gravel
cane road. A portion of the Ni-da's trailer was in the left
hand lane of the Rl 02 in the path of the Cemisha. The Cemisha
collided
with the left rear of the Ni-da's trailer. Shortly after the
accident, Mr Sewraj, a member of the plaintiff, received a telephone
call that the truck had been involved in an accident.
[4]
On arrival at the scene, Mr Sewraj found members from both the
South African Police Services and the Fire Depaiiment present, as
well as paramedics. The two truck drivers were also at the scene of
the accident. The paramedics and members of the fire brigade
were
using the Jaws of Life equipment to rescue the Cemisha's truck
assistant who was stuck in the truck. The truck driver of the
Cemisha
was taken to hospital as he had sustained injuries. According to Mr
Sewraj, the Ni-da's trailer was fully across the left-hand
lane of
the road whilst the rest of the truck was on the cane field road. The
Cemisha was in the left lane of the Rl 02. The front
end of the
Cemisha was against the left rear side of the Ni-da's trailer. Mr
Sewraj took several photographs of the scene. The
photographs,
amongst other things, showed how the vehicles were positioned after
the collision. He left the scene at about 03H00
or 04H00 on 1
November 2009.
[5]
Later that morning, at about 08H00, Mr Sewraj returned to the
scene and took photographs of the road. The photographs showed the
skid marks made by the Cemisha on the evening of the collision and a
possible point of impact at the time of the collision. He
was able to
see these as there were still some remnants of the collision at the
scene. There were also radiator leaks on the road
which left several
stain marks. He also viewed the damage on the Nida's trailer and took
photographs of same.
[6]
The plaintiff, in its pa1iiculars of claim, averred that the
second defendant, Mr Dube, who was the driver of the Ni-da at the
time
of the collision, acting in the course and scope of his
employment, was the sole cause of the collision in that:
[6.1] he failed to keep a proper lookout;
[6.2] he failed to take cognisance of other vehicles in
his vicinity;
[6.3] he failed to take adequate steps to avoid the
collision when, by the exercise of reasonable skill and care he would
and should
have done so; and
[6.4] he executed a turning manoeuvre when it was not
safe to do so.
[7]
On the other hand, the first defendant ave1Ted that the sole
cause of the collision was due to the negligence of the driver of the
plaintiff's vehicle who was negligent in one or more or all of the
following respects:
[7.1] he failed to keep a proper lookout;
[7.2] he failed to take reasonable steps to avoid a
collision under circumstances where it would reasonably be expected
of him to
avoid the collision;
[7.3] he failed to take evasive action;
[7.4] he failed to apply the brakes of the plaintiff's
vehicle timeously and/or at all and/or adequately;
[7.5] he failed to display due care and skill in driving
plaintiff's vehicle; [7.6] he failed to drive the plaintiff's vehicle
with
proper care and skill and with due consideration for other road
users including the first defendant's vehicle; and
[7.7] he drove the plaintiff's vehicle into the rear of
the first defendant's vehicle.
[8]
At issue is whether the plaintiff has discharged the onus of
proving that the second defendant's negligence was the sole cause of
the collision. To prove its case the plaintiff led the evidence of
its member, Robbie Sewraj and its expert, Robert Neville Fletcher.
I
will not repeat all the evidence, except where it is necessary as it
is on record. Mr Sewraj testified that he serviced the Cemisha
regularly even though he was not a qualified mechanic. He stated that
he had serviced the brakes of the Cemisha about three weeks
prior to
the
accident but did not have any records to prove same.
He testified that on the day of the collision, the Cemisha had left
the yard
at about 05H00 and that it was on its way back to the yard
after having completed a round trip of approximately 240kilometres
when
the collision occurred. He also testified that the driver of the
Cemisha had died during October 2011. Even though Mr Sewraj knew
the
whereabouts of the tmck assistant, he was not called to testify.
[9]
The next witness for the plaintiff was Mr Fletcher, a
consultant for an accident reconstruction company. His main role is
to reconstmct
accident
scenes
based on the evidence supplied to him and the one that he collects.
In this matter, Mr Fletcher was instmcted during June
2010 to examine
the photographs he had been supplied with and to indicate, where
possible, the manner in which the collision occurred,
the cause of
the collision and any other contributing factors. He examined the
photographs and the scene of the collision to gain
an impression of
what the topography was like, what the road conditions might have
been like at the time of the collision and any
other extraneous
information that was relevant. He also looked at the photographs
depicting the trucks in order to ascertain which
truck had collided
with the other.
[10]
The first photograph he considered was marked exhibit 'D'. It showed
skid marks of the Cemisha that appeared to come towards
the
photographer. The skid marks were marked points A, B, C and D
respectively on exhibit 'D'. In his view, points A and B showed
the
cormnencement of the skid marks and points C and D were where they
ended. In his view, the Cemisha was braking with locked
wheels hence
the skid, which is the black line mark left on the road. In skid mark
B, the left hand front tyre of the Cemisha was
locked and sliding
which resulted in that skid mark. The kink or hook in his view
represented the point where the left front of
the Cemisha impacted
with the left rear of the Ni-da's trailer. That impact probably
destroyed the steering wheel and caused the
left front tyre wheel to
incline inwards, hence the hook or kink in the tyre mark.
[11]
Mr Fletcher also took road width measurements and found that
each lane was approximately 3.7 metres wide and the emergency lane
was about one metre wide. In his view, at the time of collision the
Ni-da's trailer was projecting about halfway or more into the
Cemisha's driving lane. The Ni-da had almost completed its turn off
the road but not entirely. He measured the access distance
of the
dirt road and its width and constructed a plan of the accident scene
which was handed into evidence as exhibit 'E'. Mr Fletcher
also
measured the length of the skid marks caused by the Cemisha.
[12]
Mr Fletcher testified that the purpose of measuring the skid
marks as accurately as possible is to determine the likely
approaching
speed of the Cemisha when the driver would have first
applied his brakes, and also to detennine the probable distance that
the
Cemisha was from the Ni-da when the driver first applied his
brakes. Various factors are necessary to calculate the speed.
Firstly,
it is necessary to measure the friction co-efficiency of the
surface of the road. Friction co-efficiency varies according to the
type of surface on which an object rolls or walks. If there is no
friction there will be no movement. However, if there is sufficient
friction there will be a rolling motion, more like a curling
friction. This means that there will be a binding between the surface
of the material on which you are moving and the object that is moving
on that surface. The quality of the movement depends on the
coefficient of the friction.
[13]
Secondly, it is necessary to determine the probable initial
speed of the Cemisha and the final speed, which will be zero in this
instance as it was forced to a stop by the Ni-da trailer. It is also
necessary to measure the longest braking mark on the surface
where
the vehicle is travelling (skid marks) and to consider
the
road surface. However, it is more necessary to accurately measure the
length of the skid marks than it is the coefficient of
friction. The
influence of the coefficient of friction is less than the influence
of measuring distance. Mr Fletcher further testified
that as he only
inspected the road three years after the collision had occurred he
used the standard table of coefficients of friction
to calculate the
co-efficiency of that road. Those appeared at page 68 of his report
which was handed into evidence as exhibit
'B'. The tables are
produced by the Council for Scientific and Industrial Research (CSIR)
in Pretoria and are globally held as
reasonable coefficients of
friction.
[14]
In terms of the table, it was agreed that the road was asphalt
or tarred, and the road surface was polished by traffic. The road
conditions were dry and Mr Flecther chose a coefficient friction of
0.65 because it appeared to him that the speed of the Cemisha
was
greater than 48 kilometres an hour. From this he produced the table
at page 55 of exhibit 'B'. In summary, what that table
explains is
that if the truck had braked to zero , (which did not happen in this
instance as the truck was forced to a stop by
the Ni-da's trailer)
which is skid length as measured, and the braking length was 28.3
metres as measured, plus all the other assumptions
namely,
coefficient of friction was 0.65, the truck tyre drag coefficient
being 0.4875 (which was an estimate as he had not inspected
the tyres
of the Cemisha at the time of the collision) and break efficient at
0.8 and gravity at 9.81, then the calculation indicates
that the
truck would have been travelling at 53 kilometres an hour when it
first applied its brakes and would have come to a standstill.
As the
worst case scenario the Cemisha would have been travelling at 70
kilometres per hour before the accident.
[15]
Regarding the Cemisha's lighting, Mr Fletcher testified that
the truck would have had forward lighting consisting of two
headlights
with two settings, a beam which is capable of illuminating
not less than 100 metres ahead of it and
the dipped
which is capable of illuminating any object between 40 and 50 metres
ahead of it. He further testified that because the
reflective tape of
the Ni-da was ditiy and in his view incon-ectly positioned, he
believed that the driver of the Cemisha would
have had great
difficulty in observing the Ni-da manoeuvring across his line of
travel at a right angle or over a right angle,
given that the Ni-da
was dark blue in colour and carrying reinforcing steel rods which
were dark grey in colour.
[16]
According to Mr Fletcher, page 67 of exhibit 'B' dealt more
with the requirements pertaining to the reflective tape material and
was an extract from the
National Road Traffic Act 93 of 1996
and its
regulations. He testified that in terms of
regulation 357(1)(a)(iii)
the entire length of the truck needs to be illuminated, both the
horse and the semi-rigid trailer. The material, according to an
extract from a publication called the A to Z of Road Transport
Terminology and Related Information 2010 volume 5 by Fleetwatch,
must
not be less than 50mm and not more than 60mm wide and must bear the
SABS approval mark at the intervals of at least 0.5 of
a metre.
[17]
In his view the reflective tape of the Ni-da should have been
positioned similarly to the truck which appeared third from the top
of page 51 of exhibit 'B'. The reflective tape should therefore be
above the wheels of the semi-trailer as that would be a better
way of
demonstrating the 80% requirement of the length of the trailer. This
would also keep the tape cleaner and make it easier
for the driver of
the truck to periodically walk around the trailer and clean the tape.
[18]
Furthermore, Mr Fletcher also considered the stopping sight
distance, which is a series of distances drawn together to indicate
the stopping sight distance that a driver can safely pull up in an
emergency without hitting an obstruction in front of him. Simply
put,
the driver must see the object and try to stop the vehicle without
hitting that object. This was calculated using various
assumptions.
[19]
A diagram at 17.14 at page 58 of exhibit 'B' reflects a
graphical representation of a typical truck braking sequence which
shows
how the stopping sight distance is calculated. What happens
first is that the driver has to see an object. The table at page 38
of exhibit 'B' is established by the CSIR and it indicates a reaction
time response varied within a range of 0.8 to 4.5 seconds
depending
on the individual. As Mr Fletcher was unable to measure the Cemisha's
driver's actual reaction time, it was common to
use an average which
would be 1.6 seconds as the reaction time. Thereafter the brain
energises the foot to brake. Mr Fletcher also
assumed that at the
time of the collision the Cemisha had standard headlamps appropriate
for the type of the vehicle at a dipped
setting, which enables the
road to be illuminated for about 40 to 50 metres ahead of him, and
assumed that he was travelling at
70 or 80 kilometres per hour. In
those circumstances the stopping sight distance would be 75.5 metres.
[20]
Simply put this would mean that the Cemisha's driver, when he
first saw the Ni-da, braked for a skid mark of 28.3 metres, would
have had an air brake application time of 0.25 of a second, which at
70 kilometres per hour is just under 5 metres and his reaction
time
would have added another plus minus 30 metres to have come to a safe
stop. However he did not come to a safe stop but had
tried to stop
within 28 metres. He probably therefore first saw the object when it
was about 50 metres away from him.
[21]
Mr Fletcher also testified that the other principle he could
have used to determine the speed the Cemisha was travelling at the
time of the collision is the conservation of linear momentum.
However, this was not considered as it required accurate measured
angles between the vehicles. Kinetic energy could also have been used
but it was not as it requires an accurate measurement of
the speed of
the two vehicles. Furthermore, one cannot deduce an accurate speed a
vehicle was travelling in by merely looking at
the damage caused as
depicted on the photographs.
[22]
It was put to Mr Fletcher that the evidence of the second
defendant would be that the Ni-da had three sets of indicators, two
in
the front of the horse, two at the back of the horse and two at
the back of the trailer and these were switched on before the truck
commenced its left turn onto the dirt road, which lights would have
been visible to the driver of the Cemisha without him being
directly
behind the truck. Mr Fletcher's response was that this was not
necessarily so as it would depend on how clean the lights
(being the
indicators) were at the time. Furthermore, he testified that the
light of the indicator is a cone. It emanates from
a single point and
flares out. If one is outside the limit of the cone then they cannot
see the light. He could not say what distance
would be outside the
limit.
[23]
It was also put to him that the reason why the reflective tape
was affixed to the chassis of the truck and not to the sides of the
bed of the trailer was to avoid damage to the tape by forklifts and
other loading equipment loading on and off the trailer but
Mr
Fletcher found this reasoning surprising. He, however, agreed with
the second reason that if a tarpaulin is put over the items
on the
back of the trailer, the tarpaulin will be fastened underneath the
bed of the trailer which would then cover the reflective
tape. He
however insisted that the tape should be displayed in accordance with
the regulations he referred to earlier. However
I could not find this
regulation on perusal of the Regulations and the Act.
[24]
It was also brought to Mr Fletcher's attention that the
regulations do not provide for the tape having to be affixed to the
side
of the bed of the trailer and his response was that regulations
merely show examples and are shown pictorially. It was also put
to
him that the reflective tape is checked before the vehicles are
issued with ce1tificates of fitness and licensing and if it
does not
comply then the license cannot be renewed and he confirmed the
proposition. It was not in dispute that the Ni-da had the
necessary
license but he suggested that maybe at the time of renewal of the
license the reflective tape was in order. It was also
put to him that
the second defendant would testify that after having passed the
bridge on the R102 road no vehicles passed him
on the right hand side
and there would have been no reason for the Cemisha's lights to be on
dipped. His response was that his
assumption of which lights were
used was a matter of choice by him.. He was criticised for this
choice and failure to make estimation
if the lights were on beam as
it was suggested that it was biased in favour of the plaintiff.
[25]
When asked what difference it would have made as far as the
visibility of the Ni-da if the Cemisha's lights were on beam or
dipped,
his response was that the Ni-da was virtually invisible as it
was at night, angled across the road and dipped or beam head lights
would not have been relevant. He agreed with the proposition that
there seemed to have been no attempt by the Cemisha's driver
to move
or swerve to the right hand side of the road in order to avoid the
collision as the skid marks were straight. However,
he testified that
it is quicker to brake than to swerve to another direction but this
would depend on the mind of the driver. It
was also put to him that
the fact that the driver had been up since at least 05H00 that
morning could have affected his reaction
time and he agreed that that
could be the case. He also agreed that it was possible that the tyre
of the Ni-da could have come
off the rim because of the impact of the
collision and the trailer moved sideways.
[26]
He agreed that if the Cemisha's headlights were on beam, the
driver would have seen twice the distance of 40 or 50 metres referred
to earlier. Further, if the reflective tape was in a good condition
it would be reflected at the same distance but if dirty very
little
would be reflected back. Furthermore, he testified that if the
Cemisha's driver was tired, drowsy or asleep prior to the
accident
his reaction time would be greatly reduced. That in a nutshell was
the plaintiff's case.
[27]
The second defendant, Mr Robin Dube, who was the driver of the
Ni-da at the time of the collision, testified that he was driving
on
the Rl02 on the evening of30 October 2009. When he approached the
left turn off, he looked at his rear view mirrors and found
that
there was nothing behind him. He thereafter switched on his
indicators and started turning to the left of the road. Once he
had
turned and the horse of the truck was on the gravel road, a few
seconds before the trailer would have come off the tarred road,
he
realised that the trailer was moving sideways and something had
collided with the trailer. As he had not seen anything in the
rear
view mirrors, he stopped and got out of the truck. He walked to the
rear of the truck and saw that a truck had collided with
his trailer.
[28]
He had difficulty observing this but was helped by a person he
had passed on the road before making the turn to the left and told
him that another truck had collided with the rear of his trailer. At
that stage he heard someone in the Cemisha screaming for help.
One of
the bundles of steel that was loaded on the Ni-da trailer had
dislodged and was now in the cab of the truck, pressed against
the
chest of the passenger in the Cemisha. The driver of the Cemisha was
at that stage lying on the other side of the road and
was injured.
His leg was broken and the bottom part of his leg was trapped in the
truck.
[29]
Mr Dube testified that his headlights were on beam from the
point under the bridge to where he turned left as he had not passed
any vehicles on his right driving in the opposite direction requiring
him to put them on dim. As his truck had three sets of indicators,
one at the front of the horse, one on the side of the cab, one behind
the rear wheels of the horse and two at the rear of the trailer,
he
had checked his lights when he had stopped in Howick earlier that day
taking a rest and had found that they were working. When
he examined
his truck after the accident, he found that the bundle of steel in
his trailer, namely the ones that were on the right
hand side had
moved towards the driver of the Cemisha and the ones on the left had
shifted to the left hand side and looked as
though they would fall
off the truck.
[30]
The police and ambulance a1Tived at the scene and offered
assistance. It was suggested at some stage, during that evening that
Mr
Dube drive his truck forward so that the steel pressing against
the passenger of the Cemisha could be removed. This was however
abandoned as the bundle of steel was pulling him (the passenger) in
the Cemisha. Mr Dube confirmed that he had seen Mr Sewraj at
the
scene of the accident but that it was the following morning and not
on the night of the collision. He also confirn1ed that
they, in their
company, never travel with expired vehicle licenses as the licenses
on their vehicles are renewed even before they
expire. Mr Dube also
confirmed under cross-examination that it was company policy to wash
the truck before a long journey like
the one he took.
[31]
Mr Dube however conceded that he had never received
instructions that whilst on a long trip he should check the
reflective tape
and ensure that it was clean at all times. He did
confirm though that he had cleaned the tape when his vehicle was
stationary in
Howick. Mr Dube further testified that in his 40 years
of driving he cannot remember a time where he had not seen a
reflective
tape light because it was dirty, especially if lights were
shone on the tape. It was put to Mr Dube that when the collision
occurred,
the trailer of the Ni-da was closer to the white line than
to the yellow line of the road. His response was that the rear wheels
of the Ni-da's trailer were on the yellow line as depicted in photo
'D2'. The portion left on the road was the one from where the
rear
wheel ended up until the tip of the trailer. And therefore the
Cemisha, according to him, had not tried to move either to
the right
or the left but was where it was supposed to be.
[32]
Mr Dube also testified that if another vehicle was following him it
should have seen the trailer first and that the cab would
have been
visible at the top as it is higher than the trailer. Also the
indicators would have been visible, as depicted in photo
'D2', even
though they had fallen down as a result of the collision.
[33]
The next witness for the defendants was Mr David Gibb. He has
experience in dealing with heavy duty vehicles, has produced videos
on defensive and economical driving techniques and has written a book
on the safe operations of heavy articulated vehicles. He
has also
attended a taco graph analysis course. Mr Gibb regards himself as an
expert in monitoring driver performance and identifying
abnormal
recordings prior to accidents, especially those caused by driver
fatigue. He investigates causes of accidents especially
in heavy duty
vehicles like trucks and buses. In 1980 he obtained a certificate in
accident reconstruction and in 1987 he obtained
a certificate in
technical road transpo1iation. He has a sound mechanical knowledge of
both light and heavy vehicles.
[34]
The gist of his evidence was that in order for one to
calculate the friction coefficient they would need accurate
information otherwise
the calculation will be incorrect as it is
wrong, unreliable and unacceptable to use assumptions. The accurate
information needed
includes knowledge of the road surface at the time
of the collision and the condition of the tyres of the vehicles.
Furthermore,
one could not measure the skid marks as there were gaps
between points B and D and shorter than A and C as depicted in
exhibit
'D'. In his view, the information provided was inaccurate for
one to be able to calculate the approaching speed of the Cemisha
immediately prior to the collision.
[35]
His observation was that there was a high impact on the
Cemisha and his opinion was based on the fact that there was massive
damage
caused to the Cemisha. He testified that the fact that the
Jaws of Life were used to assist getting the passenger out of the
Cemisha
was an illustration of the high impact. Under
cross-examination Mr Gibb was criticised for not being able to give
any opinion on
mechanical workings of vehicles as he did not possess
a tertiary qualification in mechanical engineering. He however denied
this
and testified that he had the experience and knowledge. He
conceded that the reflective tape of the Ni-da was not clean but in
his view it was still reflective and this was depicted on the
photographs taken during the evening of the collision. He conceded
that the dirt on the tape would have reduced its visibility.
[36]
It was put to him that had the Ni-da's driver waited and
checked properly before executing the turn and ensuring that it was
clear,
the collision would not have happened. His response was that
if Mr Dube had seen the truck approaching and maybe miscalculated the
distance then the proposition would be possible. He agreed with the
suggestion that if he did not know the circumstances that would
have
adversely affected the concentration levels of the Cemisha's driver
then his reaction time would be that of an average person.
Mr Gibb
testified he could not prepare a report on the collision as he had
not visited the scene shortly after the collision and
therefore there
was no accurate infom1ation he could have used. T11at, in a nutshell,
was the defendant's case.
[37]
Plaintiff's counsel, Mr Broster, argued that the plaintiff had
proved that the second defendant's negligence was the cause of the
collision and that the defendants should be held liable for all the
damages suffered by the plaintiff arising out of the collision.
He
submitted that the evidence had established and it must be accepted
as proved that the Cemisha was in good order prior to the
collision
and that its brakes and lights were working well. He further
submitted that the second defendant's negligence must be
inferred
from the proved facts in this matter. Mr Broster submitted that it
could be inferred from the facts that the second defendant
did not
check his rear view mirror properly and ensure that he could execute
the turning manoeuvre safely before executing the
turn.
[38]
Furthennore, Mr Broster submitted that it ought to be accepted
that the Cemisha was travelling with its lights on dip and therefore
its driver could only have seen the obstruction in his path
approximately 30 to 40 metres before colliding with the Ni-da.
Further,
as the skid marks were about 28 metres in length, this shows
that the brakes of the Cemisha locked and the driver lost control.
He
submitted that the defendants failed, throughout the trial, to adduce
evidence to show that the Cemisha was travelling at an
excessive
speed, beyond 80kilometres per hour or evidence to show a mechanical
fault in the brakes or lights of the Cemisha or
that the Cemisha's
driver was suffering from fatigue or anything else that could
adversely affect his reaction time.
[39]
Mr Broster submitted that Mr Fletcher's evidence regarding the
measurements of the skid marks, his calculation of the minimum speed
at which the Cemisha's driver could have been driving and stopped
safely before hitting the object as well as his general observations
with regard to lighting, distance of view and sight stopping distance
ought to be accepted as reliable as it was based on his expertise
and
knowledge and in his view it had not been challenged by Mr Gibbs's
testimony.
[40]
Ms Jaarsveld, on behalf of the defendants submitted that the
plaintiff had failed to discharge the onus to prove that the
collision
was caused by the negligence of the second defendant. She
submitted that the only inference that can be drawn is that the
Cemisha
either travelled at a speed which was excessive under the
circumstances, and/or that the Cemisha's driver failed to keep a
proper
look out as was required of him and was therefore negligent in
this regard. She criticized Mr Sewraj's evidence that he serviced
the
vehicle including its brakes as he was not a mechanic and there was
no documentary evidence in the form of records to prove
this fact.
[41]
She also criticized Mr Fletcher's evidence on the basis that
he only inspected the scene of the collision some three years after
it had happened and that there was no evidence presented that the
co-efficiency at the time of the collision would have been the
same
three years after the collision. Ms Jaarsveld submitted that the
failure to inspect the Cemisha's tyres would also have resulted
in
inaccuracy in calculating the friction co-efficiency and the
estimated speed of the truck prior to the collision. She further
described Mr Fletcher's calculation of the approaching speed of the
Cemisha as of no value as an incorrect formula had been used
to
determine the speed and that various assumptions instead of accurate
information were used.
[42]
Ms Jaarsveld further submitted that Mr Fletcher's evidence as
an expert should be rejected in its totality as it was biased in
favour
of the plaintiff and was not objective. She submitted that the
evidence of an expert is meant to assist the court to reach a
conclusion
and should not favour any party to the proceedings. She
therefore, submitted that in the circumstances, the plaintiff had
failed
to discharge the onus of proving the second defendant's
negligence as the cause of the collision.
[43]
What is at issue and which needs to be decided is whether the
plaintiff has proved that the second defendant was negligent in his
driving of the Ni-da and whether that negligence was the cause of the
collision? Also, as the defendants lodged a counterclaim,
the same
question must be posed as to whether the driver of the Cemisha was
negligent and caused the collision.
[44]
According to the plaintiffs particulars of claim and the
evidence that it led, the second defendant was the sole cause of the
collision
in that:
(a) he failed to keep a proper lookout;
(b) he failed to take cognisance of other vehicles in his vicinity;
(c) he failed to take adequate steps to avoid the collision when, by
the exercise of reasonable skill and care he could and should
have
done so; and
(d) he executed a turning manoeuvre when it was not safe to do so. It
also pleaded as follows to the defendants counterclaim:
'the
second defendant was negligent in the following additional ways:
(a)
he failed to take evasive action;
(b)
he failed to drive the first defendant's vehicle with proper
care and skill and with due consideration for other road users
including
plaintiffs vehicle;
(c)
he parked his vehicle across the road of travel of the
plaintiffs vehicle'.
[45]
However the uncontradicted testimony of the second defendant
was that when he approached the turn off, he looked in his rear view
mirrors to check whether anything was coming from behind him and
found nothing approaching. Furthermore, there were no vehicles
in
front of him. He then turned on his indicators and commenced the left
turn. After he had turned, but before the trailer came
off the tarred
road, he realised that something must have hit him as his truck was
moving sideways. It was not disputed that his
indicators were all
working including those at the rear of the trailer.
[46]
He further testified that after he had passed the bridge on
the R102 up to the point of the turn off, his lights were on beam as
there were no vehicles driving in the opposite direction. In all
probability a vehicle following him would have had its headlights
on
dip if it saw him but if it did not then its lights would have been
on beam. He further testified that the lights on the cab
would have
been visible to another road user even when he had made his turn to
the left. Even though he had conceded that his reflective
tape was
dirty, he testified that it was still reflective. There was no
evidence disputing that it was not reflective but it was
suggested to
him that it might not have been as reflective, meaning that its
visibility would have reduced but not that it was
not visible.
[47]
In my assessment of his evidence, I can find no fault on the
part of the second defendant. He kept a proper lookout and took
cognisance
of other vehicles in his vicinity when he looked in his
rear view minors and saw no cars approaching behind him or
approaching
ahead of him. By switching on his indicators, he took the
necessary steps to ensure that other road users, especially those
behind
him, could see his truck and that care and skill was
reasonable to avoid any collision. This was also assisted by his
reflective
tape which is clearly visible as depicted on the
photographs on pages 97 and 99 of exhibit 'C'. In any event there was
no evidence
presented before me that the Cemisha's driver did not or
could not have seen the reflective tape.
[48]
In my view, there is nothing more that the second defendant
could have or ought to have done in order to avoid the collision. I
was impressed by his demeanour in the witness box. He gave an honest,
logical and credible account of what happened on the night
of the
collision. He readily conceded obvious things like the reflective
tape being a bit dirty and that his employer never told
the employees
to clean the reflective tapes when they were out on long trips. This,
he could easily have disputed but he chose
to be candid and told the
truth. On these reasons alone the plaintiffs claim ought to be
dismissed as it failed to prove the second
defendant's negligence.
[49]
Furthermore, there was nothing to gainsay his evidence. At
best there were merely propositions that the reflective tape might
not
have been as reflective but we do not know that that was the case
as the Cemisha's driver did not testify. As held in
Kruger v
Coetzee
1966 (2) SA 428
(A) at 430E-G:
'For the purposes of liability
culpa
arises if -
(a) a
diligens paterfamilias
in the position of the defendant-
(i) would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii) would take reasonable steps to guard against such occurrence;
and
(b) the defendant failed to take such steps.'
As
alluded to above this was never shown or proved to have been the case
with the second defendant.
[50]
However, for the sake of completeness and in relation to the
counter claim, I will deal with Mr Fletcher's evidence. I will not
repeat it in its entirety as it is on record and I have summarised it
in the preceding paragraphs. His evidence is based on assumptions
as
there was no evidence by the driver of the Cemisha as he passed away
in October 2011. Further there was no indication that he
had
consulted with him at any point after the action was launched. His
death was almost two years after the collision and a year
after the
summons had been issued by the plaintiff.
[51]
Furthermore, the assistant truck driver who is still alive and
whose whereabouts are known to Mr Sewraj, was, for whatever reason
not called to testify. In my view, failure to call him entitles me to
draw an adverse inference on the plaintiffs case that it
lacked
confidence in him as a witness and that he might not have supported
its case. His evidence, in my view was important even
if he had not
seen how the collision occurred. He, for instance would have shared
some light on their activities during the day
which could have
assisted Mr Fletcher in some of his assumptions relating to the
driver's reaction time. I have made my point about
the assistant and,
I turn now to deal with Mr Fletcher's evidence and his conclusions.
[52]
His conclusion was that the skid marks were 28.3 metres in
length and the likely approaching speed of the Cemisha when brakes
were
first applied was just under 53 kilometres per hour. He assumed
that the lights on the Cemisha would have been on dip illuminating
an
object about 40 to 50 metres ahead of him. He had no factual basis
for his assumption. In my view, in light of the second defendant's
evidence that after he had passed the bridge there was no oncoming
traffic and the area was dark, it is highly probable that the
headlights of the Cemisha would have been on beam and therefore the
driver should have been able to see an object about 100 metres
away.
I therefore reject Fletcher's evidence on this assumption. In any
event his evidence is not objective in this regard and
favours the
plaintiff and that is something he ought not to do as an expert
witness (see
Stock v Stock
1981 (3) SA 1280
(A) at 1296 E-F;
Jackson v Jackson
2002 (2) SA 303
(SCA) para 16 and
P v P
2007 (5) SA 94
(SCA) paras 18 and 21).
[53]
The other assumption by Mr Fletcher was that the Cemisha's
driver's reaction time when he first saw the object would have been
1.6
seconds. However, according to the evidence this would have been
the case if the driver was not affected by any of the factors that
disturbed the reaction time like fatigue, drowsiness, being drunk or
being on medication. The evidence of Mr Sewraj was that the
driver
had left his yard at 05h00 that morning. Even though he ought to rest
when the assistant is offloading the truck he conceded
that he could
have assisted the assistant in offloading. He was driving back to the
yard at the time of the accident which was
at 21H30.
[54]
In my view, it is highly probable that the driver of the
plaintiffs truck was tired that evening and could have been drowsy.
This
is in light of the fact that he probably had woken up at about
04H00 or 04H30 that morning in order to leave at 05H00. At the very
least he was up for about 17 hours that day. It is reasonable to
expect that he would be fatigued and his reaction time should
have
been reduced to factor this issue. Instead, Mr Fletcher chose not to
and this was favourable to the plaintiff and his evidence
cannot be
held to be appreciable assistance to this court.
[55]
Mr Fletcher was again biased towards the plaintiff when he
estimated the approaching speed of the Cemisha to be under 70
kilometres
per hour. This he purely based on the fact that the speed
limit in that area is 80 kilometres per hour. He therefore was biased
towards the Cemisha's driver that he was a law abiding citizen. This
is contrary to the damage caused to the Cemisha. In all probability,
and the fact that Jaws of Life were used to get the Cemisha'
assistant out of the truck, the Cemisha was travelling at a speed
higher than the 80 kilometres which is the lawful speed in that area.
In any event, the approaching speed of the Cemisha could
not be
accurately calculated as the Cemisha did not come to a stop on its
own but it was forced to stop by the Ni-da's trailer.
[56]
Furthem1ore, the road surface at the scene was never inspected
during the month or the year of the collision. The tyres of the
Cemisha
were also never checked during that period. Mr Fletcher's
calculations therefore cannot be accurate. As held in
MV Banglar
Mookh, Owners of MV Banglar Mookh v Transnet Ltd
2012 (4) SA 300
(SCA) para 50, quoting with approval from
Biddlecombe v Road
Accident Fund
(797/10)
[2011] ZASCA 225
(30 November 2011):
'the expert tasked with reconstructing what occurred is
often dependent for the reconstruction not simply on the application
of
scientific principle to accurate data but on calculations based on
imperfect human observation. The fact that the reconstruction
rests
on a potentially imperfect foundation is the reason for caution in
determining its evidential value.'
[57]
Accordingly, I am satisfied that the most plausible inference
to be drawn from the proven facts and evidence is that the plaintiffs
driver was negligent in his driving of the Cemisha in that he failed
to keep a proper lookout and failed to take reasonable steps
to avoid
a collision when he could have done so by taking evasive action. He
further failed to apply the brakes of his truck timeously
and thus
failed to drive the truck with proper care and skill and with due
consideration for other road users including the second
defendant and
therefore caused his truck to collide with the first defendant's.
[58]
Accordingly the plaintiff has failed to discharge the onus to
prove the second defendant's negligence. In the result I make the
following order:
Order
The
plaintiffs claim against the first and second defendants is dismissed
with costs. The first defendant's counterclaim against
the plaintiff
succeeds with costs.
Order
The
plaintiff's claim against the first and second defendants is
dismissed with costs. The first defendant's counterclaim against
the
plaintiff succeeds with costs.
____________________
Poyo
Dlwati J
Appearances
Date of
Hearing : 24, 25 April 2015 and 14 April 2016
Date of
Judgment : 27 September 2016
Counsel
for Plaintiff : JP Broster
Instructed
by: Pather & Pather Attorneys Inc c/o Messenger King
Counsel
for Defendant : ME Van Jaarsveld
Instructed
by : Grant & Swanepoel Attorneys