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[2016] ZAGPPHC 349
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Muller v Van Brugge (21717/13) [2016] ZAGPPHC 349 (20 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
20/5/2016
CASE
NUMBER 21717/13
Not
reportable
Not
of interest to other people
Revised.
In the matter between:
JACQUES
MULLER
PLAINTIFF
and
NEL
VAN
BRUGGE
DEFENDANT
JUDGMENT
THULARE AJ
[1]
Plaintiff’s claim is for injuries sustained and damages to the
vehicle arising out of a collision between a Mazda Drifter
double cab
(the vehicle) and two horses owned by the defendant about 6km outside
Carolina on the Wonderfontein- Carolina road (the
road). The
defendant also lodged a counterclaim for loss of the two horses as
well as for her shock and trauma as a result of the
loss.
[2] There are only three
issues that this Court is called upon to pronounce itself on, which
are:
(a)
the weather conditions at the time of the collision
(b)
the
locus standi
of
the defendant in relation to her counterclaim
(c)
whether any of the parties was negligent, which negligence was the
cause of the collision.
[3]
The scene is a road between Carolina and Wonderfontein. It is on a
descent. There is only one lane for traffic driving from
Wonderfontein to Carolina, and two lanes for traffic driving from
Carolina to Wonderfontein. The speed limit there is 120km per
hour.
As you drive down the descent, from Wonderfontein to Carolina, the
farm Boesanspruit Gedeelte 1, Carolina (the farm), from
which the
horses escaped is to your right. There is a border fence on the farm
running next to the road.
[4]
As you go down the descent, on the right side of the road, parallel
to the fence, there are clear signs of natural erosion on
the ground
where the water runs, as the road and area slopes towards the farm,
causing the water coming from the upper area to
run towards the farm.
At the time of the collision, there was a ditch along the fence. The
authorities have since the incident,
on the side of the road outside
the border fence, built some system to control and direct the water
flow in that area just above
where the ditch was. In the area where
the ditch was, the fence was broken and flat on the ground for
between 10m to 20m and it
is agreed that this is where the horses
left the farm for the road. The collision happened further down the
descent, on the tar
road.
[5]
Plaintiff was the driver of the vehicle on the evening of 13 March
2012 around 22H00. He had earlier left Carolina towards Wonderfontein
to help another car which had problems along the road. After
assisting that car, he was driving back towards Carolina and there
were no cars in front of him nor coming from the opposite direction
ahead. In his direction there was only one lane, and there
were two
lanes on the opposite direction. He was driving towards a bridge at
the bottom of the descent on the road. There was a
BMW vehicle
following him.
[6]
The streak of his lights could reach between 50m and 100m and that is
how far he could see ahead of him, as the road was dark.
It was not
raining that evening and the day had been a sunshine day with no
rain. He looked at his speedometer, and saw that his
speed was 110km.
When he lifted his eyes back into the road, he saw horses on the
road. They were about 5 or 6 and they were right
across the road. He
applied his breaks and swerved to the left to try and avoid the
horses. He drove into two of the horses. The
one horse hit the left
side of the vehicle and, went over the vehicle and landed on the BMW
that was following him. The other horse
hit the front of the vehicle
and went over the vehicle and took the roof of the vehicle. The
vehicle spun and faced the direction
from which it came from. The
vehicle was damaged and had no lights as a result of the impact.
[7]
A stranger assisted a lady who he was with whilst he called for the
police and the ambulance, and they were both taken to Carolina
Hospital. The next morning he went to the scene. One of the horses
was still on the scene and the other had been removed. He then
took
pictures of the scene. At the scene he met the defendant, who
identified herself as the owner of the horses. She amongst others
told him that the flash floods of the previous day were the reason
the fence was down. The plaintiff denies that he was negligent,
which
negligence caused the collision.
[8]
The defendant was the tenant on the farm which was owned by Robert
Ernst Benson (Benson). She had about 8 to 9 horses that she
kept on
the farm. She owned some and others were on lease to her. She had
been a tenant on the farm for about ten years. Benson
bought the farm
whilst she lived on it and continued to live for the 6 of the ten
years she spent on the farm whilst the farm was
owned by Benson. When
Benson took over, he brought down all the border fences and erected
new ones. Benson put on strong poles
wires around the farm, including
the borderline fence of the road. Benson used that area of the farm
where the borderline fence
with the road is, to graze his cattle.
[9]
The defendant had used the camp next to the house to keep the horses.
Leading up to the day of the collision, Benson had removed
his cattle
from the camp next to the borderline fence to another camp, and had
allowed her to use that camp to graze her horses.
This was because
the horses were fewer and horses generally feed on volume of grass
far less than cattle. The horses had not been
long in that camp, when
the collision occurred.
[10]
She and her family used that road on a daily basis and as they drive,
naturally, they would also check on the state of the
borderline
fences. The area where the ditch was, and in particular where the
fence was broken, is not clearly visible from the
road, as the road
is high up than where the fence runs. The last time she had been to
that area, on an inspection of the state
of the fence, was about a
week before the collision.
[11]
She received a call notifying her about the collision on the same
evening. As the report suggested that her horses were involved,
she
drove to the scene. She could immediately identify the young foal as
her own but could not immediately recognize the older
mare. It was
through the help of an acquaintance, on observing the hoof, that she
was able to recognize the mare as the horse she
owned. The two horses
were lying dead on the side of the road. She went on the lookout for
the other horses and found them high
up the road, and she led them
back to the farm. She started searching for where they could have
escaped from the farm and around
2 o’ clock in the early hours
of the morning she found the place. It was where there was a ditch,
and the fence was lying
flat on the ground, at the descent.
[12]
Two days before the incident, it had rained heavily. It was a flash
flood. The storms of water must have washed away the soil
that held
the poles and caused the fence to fall. Her husband took photos of
the broken fence and the ditch at the time of the
incident, and also
took the photos after the authorities had attended to the water flow
on the side of the road outside the border
fence in the vicinity of
the area where the fence had fallen. She denies that she was
negligent, which negligence caused the collision.
[13]
Benson is a cattle farmer since 1997 and has owned the farm since
2003. After he bought the farm, he replaced all the border
fences
with a o.22 double and fully galvanized wire. It was for its strength
and its capability to keep longer, as he intended
to keep cattle in
the camps on the farm. There are specific requirements he had to meet
to qualify for partial re-imbursements
from the road authorities, as
regards the erection of the fence, which he complied with and was
re-imbursed for expenses. The borderline
fence of the farm that runs
next to the road in the area of the scene of the collision met with
compliance requirements for such
a fence.
[14]
He received a report about the collision the next morning after it
occurred and dispatched his father and a labourer to the
scene to
repair the fence immediately.
[15]
In his opinion, the water flash, running downhill, washed off the
loose soil and loosened the poles from the ground, causing
the
tension to snap the wires and the fence fell. He had driven from the
farm about two days before the collision and he drove
in a heavy
storm.
[16]
The evidence of both parties is that the area where the fence was
damaged and flattened to the ground, on the morning after
the
collision at around 9, was dry. This supports the version of the
applicant that on the day of the collision, it was sunshine
with no
rain. Having regard to the fact that it is common cause that the
nature of the area is such that, at that time, water from
other areas
would run down the slope along this specific area where the fence was
damaged, it is highly improbable that that area
would have dried up
overnight if it had rained the previous day. The evidence of the
respondent as regards the rain on the day
of the collision is
rejected.
[17]
The respondent testified that she is the owner of the two horses that
were involved in the collision with the vehicle of the
plaintiff. She
has thereby established her
locus standi
in respect of her
counterclaim.
[18]
The question is whether the plaintiff has established, on a balance
of probabilities, that the collision was caused by negligence
attributable to the defendant.
[19] It is common cause
that the horses which caused the collision on the public road, ended
on the tar road in that they went over,
and not through, the damaged
part of the fence which was lying flat on the ground. The damage to
the fence was such that anyone
who had sufficiently inspected that
fence, must have seen the damage. It was estimated at about 10m to
20m wide. The owner of the
farm, Benson, could not tell when exactly
he had last inspected that area of the fence. The defendant, who
leased the farm and
whose horses were in the camp which had the
specific fence as a border with the road, last inspected that area
about a week before
the collision.
[20]
The plaintiff carries the onus to prove on the balance of
probabilities that the damages he suffered was as a result of the
defendant’s negligent conduct. The road is a national path of
travel which runs next to the farm occupied by the defendant.
In my
view, the defendant, under the circumstances, had a legal duty to
take reasonable steps to ensure that the fence is in a
good state of
repair so that her horses do not land on the road. This legal duty
included an obligation to regularly inspect the
fence, more
especially because of the position of the farm as regards the
national road, as well as the water that runs down the
slope onto the
farm which could affect the fence.
(Swartz
v Delport
[2002] 2 All SA 309
(A)
paragraph 12).
[21]
In
Arthur v Bezuidenhout and Mieny
1962 (2) SA 566
at B-H
Ogilvie Thompson JA said:
“
It
is, of course, trite that, in a case such as the present, a plaintiff
must prove that the damage he has sustained has been caused
by the
defendant’s negligence. It is equally trite to say that the
onus thus resting upon a plaintiff never shifts. While
the maxim res
ipsa loquitur has no general application to highway collisions, no
sufficient reason appears to me to exist why the
maxim should not, in
a restricted class of case, sometimes apply. Without in any way
attempting to define the limits of such application
– and see
on the question generally, Hamilton v MacKinnon,
1935 AD 114
at pp.
125 et seq: and pp. 360 et seq:- I am of the opinion that on the
facts of the present case the maxim may rightly be applied.
For when
the plaintiffs proved that the defendant’s truck for no
apparent reason suddenly swerved on to its incorrect side
there to
collide with their truck, plaintiffs proved facts from which an
inference of negligence against defendant may, in the
absence of any
explanation, be drawn- res ipsa loquitur. … The maxim res ipsa
loquitur is no magic formula. In the words
of Lord Shaw in Ballard v
Northern British Railway Co.,
60 Sc L.R 448
and 457, cited with
approval by Strattford, C.J., in Naude’s case, supra at p. 396,
‘
the
expression need not be magnified into a legal rule: it simply has its
place in that scheme of and search for causation upon
which the mind
sets itself working’.
Proof
by a plaintiff of an event properly falling within the maxim –
that is to say, proof of an event which, in the absence
of anything
to the contrary, tells its own story – may justify an inference
of negligence against the defendant. But that
inference may, again to
employ the words of LORD SHAW in Ballard’s case, be displaced
by the remainder of the story: if the
remainder of the story does not
do so, then the inference remains – res ipsa loquitur.”
At
page 574 H the learned Judge continued:
“
As
appears from the above general statement from Wigmore, and as is
reflected in any specific statement of the res ipsa loquitur
maxim,
once the plaintiff proves the occurrence giving rise to the inference
of negligence on the part of the defendant, the latter
must adduce
evidence to the contrary. He must tell the remainder of the story, or
take the risk of judgment being given against
him.”
[22]
From the evidence before me, it remains unknown as to how long the
fence had been in this state of disrepair, lying flat on
the ground,
before the date of the collision, whilst the horses were using that
camp. The defendant’s driving past the area,
if it was an
inspection at all, was not enough to be able to detect the fallen
fence. The defendant herself was aware that her
inspections through
driving past the area were ineffective, for she could not see the
area where the fence had fallen, from her
vehicle. In any event, it
was the duty of whoever was doing the inspection, to make sure that
area which were obscured from vision,
were visited to see how the
fence is below the road. The sole purpose of an inspection must be to
see if there is no opening or
damage to the fence, which may render
the fence ineffective in that it would not be able to keep the
animals inside the camp where
such animals were grazing. The fallen
fence was not effective for that purpose and it was ineffective for
an unknown period of
time.
[23]
Where there is a fence erected along a public road, it is the duty of
the owner or the person in lawful care and control of
that fence to
ensure that the fence is as effective so far as it reasonably can be
done and to take steps which a careful reasonable
person under the
circumstances should take to ensure that the fence serves the purpose
for which it has been erected. The care
of the fence was not
effective and in this respect the defendant was negligent. The
defendant could and must have foreseen that
if the fence is not kept
in an effective state of repair, it will not serve its purpose of
keeping the horses in the camp, and
that the horses would move over
the fence and if that happens, they would land on the road. The
horses moved across the road. This
is precisely what the defendant
should have expected the horses would do if they moved over the
fence. The negligence of the defendant
caused the collission
(
Coreejees V Carnavon Munisipaliteit en n’ Ander
1964
(2) SA 454).
[24] The opinion of both
the defendant and Benson as to how the fence was brought down and
when it fell is speculative and irrelevant.
Benson does not know when
last he inspected the fence. The Court accepts that the area
experienced a rainfall two days prior to
the collision. Be it as it
may, neither Benson nor the defendant are able to tell the Court what
the position of the fence was
before the rain two days before the
collision. Speculation and conjecture can never amount to proof on a
balance of probabilities.
The explanation is rejected for these
reasons.
[25]
To avoid liability, the defendant first alleged that it was the Road
Agency that was responsible for the maintenance of the
fence, which
led to the applicant to seek to join the Road Agency, and when that
happened she changed her tune. She also alleged
that one of the
horses was leased and when she was faced with the challenge of
locus
standi
for her counterclaim, she
conceded ownership of the both horses. This is how opportunistic the
defendant is prepared to stoop to
avoid the consequences of her
actions.
[26] For what it is
worth, the suggestion that a flash rain would wash away well- planted
poles and flatten 10m to 20m of five strands
of 0.22 double string
fully galvanized wire fence attached to such poles, in my view, is
simply far-fetched. Where the area, despite
its set-up as regards the
water flow, has withstood rainy conditions throughout the years that
defendant was on the farm without
any incidents, in my view, it is
highly unlikely that one sudden and heavy pour of rain would wash
away the soil and cause a trench
deep enough to swallow all the
poles, of average size border fence for farms on national roads, in
its immediate vicinity, and
cut off the five strands of 0.22 double
string fully galvanized wire, which according to Benson, is known for
its strength and
long life. The slope and the water flow on that
descent, and the presence of a trench in the vicinity of the area
where the fence
had fallen, became fodder for the opportunistic
defendant to feed her conjecture.
As
the owner of the farm and the fence, Benson has reason to support the
defendant, even if it is at the price to his integrity,
for
opportunistic reasons as well.
[27]
The next evaluation relates to the manner in which a reasonable man,
in the position of the plaintiff, would have driven within
the
context of the conditions which existed at the time of the collision.
Against the background that the
res ipsa loquitur
maxim is no
magic formula
(Arthur v Bezuidenhout, supra),
it is my view
that the maxim need not be magnified into a legal rule which infers
100 percent extend of negligence on a defendant.
In my view, the
research for causation, in deserving circumstances, must continue
beyond the determination of the facts satisfying
the maxim. In
deserving cases, in my view, the inference of 100 percent negligence
may be displaced by the evidence. In my view,
the fact that the owner
or the person in whose care and control the fence is, has through the
presence of the fence created an
impression to road users, that the
fence would prevent that the animals would land up in the road, does
not absolve the driver
of a vehicle using that road from the duty to
act as a reasonable driver.
[28]
The approach to determine whether plaintiff as a driver was
negligent, was set out by Holmes JA in
Kruger v Coetzee
1996
(2) SA 428 (A) at 430 E-G as follows:
“
For
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.
This
has been constantly stated by this Court for some 50 years.
Requirement (a) (ii) is sometimes overlooked. Whether a diligens
paterfamilias in the position of the person concerned would take any
guarding steps at all and, if so, what steps would be reasonable,
must always depend upon the particular circumstances of each case. No
hard and fast basis can be laid down. Hence the futility,
in general,
of seeking guidance from the facts and results of other cases.”
[29]
In
Jordaan v Krone Broers and Others
[1999] 3 All SA 57
(C)
at 66 Davis J said:
“
Plaintiff
was aware that cattle were found in the immediate vicinity. Where the
road in the area of the accident is characterized
by crests and dips
a motorist who possesses the knowledge of plaintiff would not have
driven at the maximum allowable speed particularly
at that time of
night and on that section of the road. As Cooper writes “the
prudent motorist driving on a road commonly
used by the public should
foresee the possibility of encountering stationary, slow, or fast
moving traffic; pedestrians, animals
and obstructions generally”
(at 147). This is not to suggest that a driver who collides with a
visible object must be found
to have failed to regulate his speed
according to his range of vision and hence be found negligent; an ex
post facto determination.
However in a rural area a motorist such as
a plaintiff, driving at night, on a road with crest and dips should
foresee the possibility
of encountering animals wandering across the
road (Cooper at 155).”
[30]
In my view, the plaintiff was not keeping a proper lookout, as a
driver who knows the area and is aware that if a farming area.
If he
did exercise a proper lookout, he would have seen the stray horses
that were across the road, occupying his path of travel,
timeously.
The plaintiff was also driving at an excessive speed in my view. He
should have regulated his speed to accord with his
range of vision of
50m to 100m before him in that farming area, where there is a
possibility of encountering animals wandering
across the road. The
plaintiff did not take all the reasonable steps that could be take
under the circumstances. In my view, he
was negligent, which
negligence caused the collision. Had he driven slower and maintained
a proper lookout, he could have avoided
the collision.
For
these reasons I make the following order:
1.
The negligence of the plaintiff is causally
connected to the collision to the extent of 35%.
2.
The negligence of the defendant is causally
connected to the collision to the extent of 65%.
3.
The defendant is to pay the costs,
including the costs in relation to the third party.
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT