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[2016] ZAGPPHC 1006
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Universal Crane Hire CC v MEC for the Gauteng Department of Roads and Transport (58756/2013) [2016] ZAGPPHC 1006 (7 December 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number:
58756/2013
Date: 7/12/2016
Reportable: No
Of interest to other
judges: No
Revised.
In the matter between:
UNIVERSAL CRANE HIRE
CC PLAINTIFF
And
MEC FOR THE GAUTENG
DEPARTMENT OF ROADS AND
TRANSPORT DEFENDANT
JUDGMENT
PRETORIUS
J,
(1)
The plaintiff instituted a
claim against the defendant for the payment of damages in an amount
of R1 531 564.04, based
on delict. The claim was
instituted on 1 November 2013 and the defendant pleaded on 9
September 2014.
(2)
The plaintiff amended the
particulars of claim on 3 August 2015. The defendant did not
plead to the amended particulars of
claim. It was agreed by the
plaintiff and defendant that the plea filed on behalf of the
defendant on the original particulars
of claim would be regarded as
the plea to the amended claim.
(3)
The parties agreed that
the court only has to decide the question of negligence and that
quantum would be heard, if necessary, at
a later date in terms of
Rule 33(4) of the Uniform Rules of Court.
(4)
The allegations in the
particulars of claim setting out the negligence of the defendant
which the plaintiff relies on are:
“
6. …Due
to poor and unsafe condition of the road; road surface;
poor
visibility due to long grass and no warning signs or barriers at the
said location
, the vehicle was involved in a motor vehicle
accident wherein the vehicle was rolled over and coming to a
standstill in a trench/water
channel/gully adjacent to the road.
7. The motor vehicle
accident and resultant damage to the Plaintiff’s vehicle was
caused solely as a result of:
7.1 unrepaired damage
to and/or poor maintenance of the road;
7.2 absence of an
emergency lane and uneven and small adjoining un-tarred area;
7.3 erosion of side
slopes;
7.4 invisibility of a
deep and dangerous trench/water channel/gully;
7.5
the lack of warning signs and barriers preventing road users to drive
into the trench/water channel/gully.”
(Court emphasis)
The plaintiff’s
claim is thus based on delict, contending that the defendant had a
“
duty of care”
in the circumstances. The
defendant is clearly wrong in its argument that the plaintiff did not
allege that the lack of road
barriers and the tall grass contributed
to the accident.
(5)
It was further alleged
that the defendant had a legal duty to maintain the road, the road
surface and to ensure that it was safe
for public use. The
plaintiff alleged that the defendant failed and/or neglected to
maintain the road, and the road surface
and to warn road users of
potential dangers like the existence of the trench/ditch/water
channel next to the road; failed to erect
road traffic signs or
barriers where it should have been done due to the existing dangers
on the road at the time and failed to
provide an emergency lane for
vehicles to pull off the road safely on an incline in an emergency.
BACKGROUND:
(6)
On 14 April 2011 at
approximately 11h00 on the M57 between Nellmapius- and
Olifantsfontein roads Mr Skhosana, who was in the employ
of the
plaintiff, was driving the crane of the plaintiff. He was
driving from south to north and had proceeded 3½
kilometres on
the road, after having left the site where he had previously worked,
when the engine of the crane cut out.
He applied the foot brake
and the crane came to a standstill on the road.
(7)
His evidence was that, as
the crane was blocking the road from south to north, he used the
handbrake to reverse slowly and carefully
by pulling up the handbrake
and letting it go repeatedly to move the crane to the side of the
road. This he did gradually,
using his side mirrors to keep a
proper lookout to the rear. He realised he could not see the
back wheel of the crane properly
and opened the window and stuck his
head out of the window on the left hand side to have a proper clear
view of the wheel.
He had, according to him, to use the
handbrake, as the footbrake would lose pressure due to the engine not
turning over.
He could, in the circumstances, properly control
the movement of the crane by using the handbrake whilst reversing to
the left
hand side of the road. He was able to steer the crane
as the oil in the engine was still hot, enabling the steering.
The crane came to a complete standstill next to the road in a level
position. As he wanted to open the door to exit from
the cabin
of the crane the crane toppled over onto the left hand side and he
could not open the door and was stuck in the cabin
of the crane.
(8)
Charles, who was also
employed by the plaintiff, was driving behind him and had parked on
the opposite side of the road, but was
not with him when the crane
toppled over. Charles arrived and kicked out the front window
of the cab to enable him to get
out. Mr Skhosana, the driver,
then saw that the crane had toppled over into a ditch at the side of
the road with the back
wheels in the ditch and the crane lying of its
left side.
(9)
Mr Skhosana impressed the
court as an honest witness, who made concessions when necessary.
The court is well aware that he
is a single witness, but can find no
improbabilities or inconsistencies in his evidence. His
evidence as to the conditions
and how the crane had toppled over on
the left hand side is confirmed by the various photos taken on the
day of the accident.
I find that his evidence is, on a balance
of probabilities, the truth.
(10)
The photographs of the
scene, which were not disputed, depict the crane lying on its left
hand side next to the road. It is
clear from the photographs
that there was approximately one metre of gravel next to the edge of
the tar road and tall grass at
the edge of the gravel portion, as
confirmed by the witness, Mr Leibach, the tow truck driver. The
estimate was that the
grass was at least 1.70 metres high next to the
road. According to Mr Skhosana the revolving lights and the
hazard lights
of the crane were switched on. Mr Skhosana
explained that he had come to a standstill on the edge of the ditch,
which was
obscured by the tall grass to such an extent that he did
not see the ditch. There were no warning traffic signs or any
indication
that there was a ditch next to the road.
(11)
Mr Skhosana’s
explanation as to why he did not leave the crane on the road where it
had come to a standstill originally, with
triangular warning signs
was that the crane was standing on an incline close to a blind rise
and it would have been dangerous to
leave the crane on the road.
This explanation is accepted by the court.
(12)
At the inspection
in
loco
it could be seen
that it would have been dangerous to leave the crane on the left hand
side of the road and would have caused an
obstruction for traffic
travelling from south to north, thereby endangering other road users.
(13)
Both the tow truck driver,
Mr Leibach, and Mr Vallance, a member of the plaintiff, confirmed
that they were at the scene of the
accident within a short time after
the accident had taken place, although Mr Skhosana had already been
taken to hospital.
They both confirmed Mr Skhosana’s
evidence in respect of the tall grass which had obscured the ditch
from Mr Skhosana.
It is clear from the evidence of Mr Leibach,
as illustrated by the photos, that there was only 1 metre between the
edge of the
tar to where the tall grass was growing and the space was
not wide enough to park the crane on the side of the road. Mr
Leibach
confirmed that any driver of any type of vehicle, including
the crane would not have been able to observe the ditch, due to the
tall grass growing at and near the edge of the ditch. Mr
Leibach is an independent witness who gave his evidence in an honest
and open manner.
(14)
The court attended an
inspection
in loco
.
The recordal of the findings were, by agreement, admitted to court
and I found it to be in accordance with my observations.
(15)
During the inspection
in
loco
it was clear that
the road had substantially been altered since 11 April 2011. A
barrier was erected on the eastern side
of the road where there is a
culvert to prevent vehicles from leaving the road.
(16)
An emergency lane was
added on the western side of the road, from south to north, after the
road had been built up and levelled
to enable slow moving traffic to
pass on the left hand side of the road and not to create an
obstruction when a vehicle has problems
and has to pull off the
road. The tall grass has been cut. There were four red
and white warning signs erected to indicate
the ditch on both the
eastern and western sides of the road, warning traffic travelling
from south to north and north to south
of danger should a vehicle
leave the road at that point.
(17)
The defendant failed to
lead any evidence to explain why these safety measures had been
implemented after April 2011, when the accident
had occurred.
No reason was forthcoming for there being no such safety measures
previously. It is clear from the defendant’s
actions,
post April 2011, that the conditions at the time were regarded as
dangerous, hence the remedial actions taken by the defendant
after
April 2011.
(18)
Mr Vallance was severely
criticised by the defendant’s counsel for submitting a report
to the police in regards to the accident
which was at variance with
how the accident had actually happened. Mr Vallance’s
evidence was honest. He immediately
conceded that his report to
the police as to how the accident had happened was incorrect.
His explanation was that he had
made this report without consulting
with Mr Skhosana, as Mr Skhosana was still on sick leave. He
conceded that the accident
could not have occurred as he had set out
in the police report, but explained that he had made wrong
assumptions as to how the
accident had occurred. His
explanation was that the accident had to be reported within 48 hours
to the insurers. He,
therefor, made a statement to the police
to obtain a reference number, before consulting with Mr Skhosana.
(19)
A bundle of photographs
illustrated the scene on the day of the accident, whilst the crane
was still lying on its side in the ditch.
The defendant chose
not to lead any evidence, although the evidence of the defendant’s
expert was canvassed with the witnesses.
These questions could
not take the case any further as it was not evidence before the
court.
(20)
It is clear from the
photos and the findings during the inspection
in
loco
that the crane’s
engine had cut out whilst on an incline in the middle of the single
lane travelling from south to north.
It was thus causing a
hazard to all traffic and the reason for Mr Skhosana moving the crane
out of the way must be accepted.
The crane posed a danger to
traffic not only travelling from south to north, but also to traffic
travelling from north to south
whilst standing on the road.
THE LAW:
(21)
In the particulars of
claim it is set out:
“
The Defendant
has a legal duty to maintain the road and the road surface and to
ensure that the road and road surface was safe for
public use.
Furthermore the Defendant has the legal duty to inform public users
of any dangerous situation relating to the
road.”
(22)
This paragraph was
admitted by the defendant in the plea. The legal duty that
existed has been admitted and the plaintiff
alleges that the
defendant had breached the “
duty
of care”
in the
present matter in a negligent manner.
(23)
The
five well-known requirements to establish delictual liability have
been set out in
RL
Judd v Nelson Mandela Bay Municipality
[1]
,
by Alkema J:
“…
(a) the
commission or omission of an act (actus reus), (b) which is unlawful
or wrongful (wrongfulness), (c) committed negligently
or with a
particular intent (culpa or fault), (d) which results in or causes
the harm (causation) and (e) the suffering of injury,
loss or damage
(harm)...”
(24)
In
Minister
of Safety and Security v Van Duivenboden
[2]
,
Nugent JA held:
“…
A
negligent omission is unlawful only if it occurs in circumstances
that the law regards as sufficient to give rise to a legal duty
to
avoid negligently causing harm
.
It is important to keep that concept quite separate from the concept
of fault. Where the law recognises the existence
of a legal
duty it does not follow that an omission will necessarily attract
liability –
it
will attract liability only if the omission was also culpable as
determined by the application of the separate test that has
consistently been applied by this court in Kruger v Coetzee, namely
whether a reasonable person in the position of the defendant
would
not only have foreseen the harm but would also have acted to avert
it
.”
(Court emphasis)
(25)
It is thus clear that the
test is whether a reasonable person in the particular circumstances
would have foreseen the harm and would
have acted to avert it.
This test is applicable to the facts of the present matter.
(26)
In
Lee
v Minister of Correctional Service
[3]
the Constitutional Court held:
“
In
[Minister van Polisie v] Ewels it was held that our law had reached
the stage of development
where
an omission is regarded as unlawful conduct when the circumstances of
the case are of such a nature that the legal convictions
of the
community demand that the omission should be considered wrongful
.
This open-ended general criterion has since evolved into the general
criterion for establishing wrongfulness in all cases,
not only
omission cases.”
(Court emphasis)
(27)
In
Law
of Delict
[4]
,
the learned authors come to the following conclusion:
“
The boni mores
or general reasonableness criterion is, therefore, a juridical
yard-stick that gives expression to the prevailing
convictions of the
community regarding right and wrong. It is a criterion which
enables the court continuously to adapt the
law to reflect the
changing values and needs of the community.”
(28)
Should the court find that
the defendant had a legal duty, as set out in the particulars of
claim, and admitted by the defendant
in the plea, and the defendant
failed to testify to prove justification or that it is unreasonable
to expect the defendant to have
foreseen the consequences of their
omission or that it is not
contra
bones
, then the
defendant should be held liable for the economic loss of the
plaintiff.
(29)
In
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority
[2006] 1 ALL SA 6
[5]
,
Harms JA held:
“
When
dealing with the negligent causation of pure economic loss it is well
to remember that the act or omission is not prima facie
wrongful
(“unlawful” is the synonym and is less of a euphemism)
and that more is needed. Policy considerations
must dictate
that the plaintiff should be entitled to be recompensed by the
defendant for the loss suffered (and not the converse
as Goldstone J
once implied unless it is a case of prima facie wrongfulness, such as
where the loss was due to damage caused to
the person or property of
the plaintiff). In other words,
conduct
is wrongful if public policy considerations demand that in the
circumstances the plaintiff has to be compensated for the
loss caused
by the negligent act or omission of the defendant
.
It is then that it can be said that the legal convictions of society
regard the conduct as wrongful, something akin to and
perhaps derived
from the modern Dutch test “in strijd . . . met hetgeen volgens
ongeschreven recht in het maatschappelijk
verkeer betaamt”
(contrary to what is acceptable in social relations according to
unwritten law).”
(Court emphasis)
(30)
The
case most relevant in regards to the facts in this matter is
Matshoge
v Premier of North West Province and Others
[6]
where Kgoele J stated at paragraph 31:
“
A person who
uses a road for the general public purpose is entitled to expect
(that he) could use it with safety.”
(31)
The
same principle should apply in the present instance as Kgoele J
stated in paragraph 53
[7]
:
“
It is trite law
that the defendant, in the face of its negligence bore the burden of
adducing evidence in rebuttal of the inference
that such wrongful and
negligent omission caused the loss.”
(32)
In the present instance
the defendant failed to supply any evidence to enable the court to
consider an acceptable explanation from
the defendant as to how the
crane could have landed in the ditch. The defendant chose not
to call any witnesses, although
the defendant’s expert was
present at court. This court has to decide on the available
evidence placed before the court
by the plaintiff, whether the
defendant acted as can be expected from a reasonable person in the
position of the defendant at the
time of the accident and should have
acted to avert it. The defendant relied in the heads of
argument on the experts’
reports, none of which were presented
as evidence. Therefor no reliance can be placed on any of the
experts’ reports.
No reliance can be placed on the
initial particulars of claim, as it has been amended.
(33)
The amended particulars of
claim is the matter this court has to deal with. It is even
more important in this case for the
defendant to have lead evidence,
as after the accident in 2011 the defendant saw fit to change the
road by erecting a barrier on
the opposite side of the road, erecting
warning signals at the place of the accident, warning traffic
travelling in both directions
to be careful and last, but not least
by building an emergency lane from south to north to enable traffic
to safely come to a stop
at the side of the road. These changes
were not explained by the defendant. The inference that the
court draws is that
the defendant realised the danger existing at the
place of the accident and effected remedial action, unfortunately too
late for
the plaintiff. The defendant should have foreseen that
the tall grass, obscuring a deep ditch at the side of the road,
without
any warning signals, could cause harm and should have averted
it, as it did after the accident occurred.
(34)
The only reasonable
inference I can draw is that the hidden ditch obscured by tall grass
caused Mr Skhosana not to see it, although
he even went so far as to
open the window and to lean out to make sure the back wheels of the
crane were safe. I find in
the circumstances where there was a
trench of approximately 2 metre, obscured by the long grass, without
any warning signals, that
no contributory negligence can be found on
the part of the plaintiff. In the result I find that the
defendant was 100% negligent
and therefor liable for the proven
damages of the plaintiff.
(35)
In the circumstances the
following order is made:
1.
The defendant is liable
for 100% of the damages to be proved by the plaintiff;
2.
The defendant to pay the
costs of the trial, including the costs of senior counsel.
_____________________
Judge
C Pretorius
Case
number
: 58756/2013
Matter heard
on
: 17 to 21 November 2016
For the
Plaintiff
: Adv AJH Bosman SC
Instructed
by
: Jordaan & Smit Attorneys
For the
Respondent
: Adv Mohlabedi SC
Instructed
by
: State Attorney
Date of
Judgment
:
[1]
SAFLII Case No. CA149/2010 (Eastern Cape, Port Elizabeth High Court)
at paragraph 8
[2]
2002(6) SA 431 SCA at paragraph 12
[3]
2013(2) SA 144 (CC)
[4]
Neethling, Potgieter and Visser, 7
th
Edition at page 40
[5]
2006[1] All SA 6 at paragraph 13
[6]
(279/12)
[2014] ZANWHC 54
(12 December 2014), SAFLII
[7]
Supra