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[2016] ZAGPPHC 1049
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Van Dyk v PDG Logistics and Another (34072/2011) [2016] ZAGPPHC 1049 (21 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
N0:34072/2011
21/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
PIETER
JOZEF VAN
DYK PLAINTIFF
and
PDB
LOGISTICS FIRST
DEFENDANT
M
SABELO
SECOND
DEFENDANT
JUDGMENT
RANCHOD
J:
Introduction
[1]
The plaintiff claims damages as a result of a collision on 30 July
2010 between his Subaru lmpeza 2.5 WRX STi motor vehicle
(the Subaru)
driven by the plaintiff, and a wheel which became dislodged from the
first defendant's truck-trailer combination ('the
truck' or 'the
trailer" or in combination 'the articulated truck') driven by
the second defendant (Mr Sabelo).
[2]
Two issues were in dispute at the commencement of trial, viz.-
2.1. The plaintiff's ownership of the
Subaru; and
2.2. The negligence of the first
defendant and/or Mr Sabelo, alternatively contributory negligence on
their part.
However,
during argument the defendants conceded the plaintiff's ownership of
the Subaru hence only the issue of negligence has
to be determined.
[3]
It was also agreed between the parties that only the issue of
liability was to be determined and that the issue of quantum be
separated and postponed sine die. I made an order accordingly.
Common
Cause Issues
[4]
It is common cause that:
4.1. the plaintiff was the driver of
the Subaru and Mr Sabelo was the driver of the articulated truck.
4.2. that a wheel from the articulated
truck, which was travelling in a direction opposite to the direction
travelled by the plaintiff
came off one of the two trailers and it
collided with the Subaru;
4.3. that on 30 July 2010 at about
5h30 the plaintiff was travelling on the R35 road between Bethal and
Middelburg in the direction
of Middelburg;
4.4. that the articulated truck was
driven by the second defendant;
4.5. that the Subaru's headlights were
still engaged at the time as it was still dark;
4.6. that whilst the two vehicles were
passing each other the plaintiff noticed a dark object about two
meters from his vehicle
which, immediately thereafter, struck the
plaintiff's vehicle;
4.7. that the collision caused the
plaintiff's vehicle to veer to its right in the face of oncoming
traffic and collide with a Toyota
Land Cruiser;
4.8. that the plaintiff's vehicle
thereafter came to a standstill on his left side of the road;
4.9. that the Subaru was writtien off
as beyond economical repair; and
4.10. that the plaintiff could not
possibly have prevented the collision. (This latter point is apparent
from the fact that under
cross-examination the plaintiff's version as
to how the collision occurred was not disputed);
4.11. that the second defendant acted
within the course and scope of his employment with the first
defendant and that the first
defendant would be vicariously liable
for any negligent conduct on the part of the second defendant.
The
evidence
[5]
The plaintiff testified that through his experience (
albeit
not
of an expert nature) the only way the wheel could have dislodged
itself from the trailer was if the wheel nuts had not been
fastened
properly.
[6]
It was put to him under cross-examination that the wheel nuts (even
if one were to assume they were loose) could have come loose
in a
manner which was not as a result of the first defendant's negligence
or that they could have come loose for example, by driving
on a
gravel road. The plaintiff could not dispute it.
[7]
And there lies the nub of the issue. It would in the nature of things
be virtually impossible for the plaintiff to prove that
the wheel
came off because the nuts were loose. Iwill revert to this issue
presently.
[8]
The only witness who testified for the first defendant was a Mr
Klapper. He testified in evidence-in-chief that he is the general
manager of the first defendant and has been since 12006. The first
defendant's articulated truck had been maintained before the
collision. He said although he did not complete the 'VEHICLE PRE-USE
INSPECTION LIST', he oversaw that it was duly completed by
Sabelo and
that he was satisfied that the articulated truck was in good working
order on the day of the collision and that it had
been serviced on 9
June 2010 as per the 'Truck and Trailer Job Card'. As at 30 July
2010, the articulated truck: was maintained;
was not defective; and
the wheels were fastened and in good working order. The first
defendant took all reasonable steps to prevent
the wheels of the
truck-trailer combination from becoming dislodged.
[9]
Mr Klapper further testified that it was the duty of the first
defendant to ensure that the vehicles of the first defendant
were in
proper working order. That the wheels of a vehicle in proper and
working order should not detach from the vehicle. He spontaneously
testified that the nuts attaching the wheels to the trailers were
attached by way of a "torque multiplier" and that they
were
fastened to 800 newton meters.
[10]
The most relevant part of Klopper's evidence was his concession that
a wheel fastened to the proper specifications (800 newton
meters)
will not come loose. Klapper conceded that should this contention be
accepted it would result in the only conclusion being
that the wheel
that detached from the trailer of the first defendant was not
properly fastened. He could not offer any direct evidence
that the
articulated truck had been properly maintained prior to the
collision. His evidence was of a secondary nature which was
from
reports compiled by other persons such as the second defendant, who
was not called to testify.
The
applicable legal principles
[11]
It is trite that negligence has to be proven on a balance of
probabilities. This may, in an appropriate case be achieved by
the
application of the principle of
res ipsa loguitur
('the facts
speak for themselves'). In
Mitchell v Maison Lison
1937 TPD 13
it
was said -
'Human
experience shows us that in certain circumstances it is most
improbable that the occurrence under investigation would have
taken
place without negligence.'
[12]
The onus is on the plaintiff to prove - in a civil case upon a
preponderance of probabilities - that the defendant was negligent.
In
certain circumstances the facts of the case itself give rise to an
inference of negligence on the part of the defendant. The
maxim
res
ipsa loguitur
is then said to apply: the plaintiff establishes a
prima facie
case of negligence merely by proving the facts of
the occurrence. (The Law of Delict; Boberg, Vol 1,Aquilian
Liability pp
377-378).
[13]
In
Arthur v Bezuidenhout and Mieny 1962(2) SA 566(A)
it was
held that the maxim does not shift the onus of proof to the
defendant. It is simply an argument available to a plaintiff
who has
little evidence at his disposal, to avoid judgment of absolution from
the instance being given against him at the close
of his case.
[14]
But the application of the maxim does, however, indicate a
probability in the plaintiff s favour, and to escape liability the
defendant must displace that probability, offering an explanation of
the occurrence that neutralizes the inference of negligence
originally drawn. Then the plaintiff, who has not discharged
the
onus,
fails.
Discussion
[15]
Defendant's counsel submitted that Mr Klopper's evidence exonerates
the defendant hence an inference of negligence against
the defendants
cannot be drawn. Klopper's evidence, said counsel, shows that the
first defendant did everything to ensure that
its truck was
maintained and that,
inter alia,
the wheels were properly
fastened each time before the truck left the premises. I am not
persuaded by the submission.
[16]
As I said, Mr Klapper could not offer any direct evidence that
the wheel of the trailer concerned had been properly fastened
prior
to the collision. But his evidence was based on information in logs
or maintenance sheets completed by someone else as regards
routine
maintenance. It was his evidence that it was the driver of the
articulated truck whose duty it was to ensure that the wheels
were
properly fastened before it left the premises. The driver was not
called to testify and no explanation was furnished as to
why he was
not available to testify. In any case the evidence of maintenance
related to the truck ('horse') and not the trailer
involved. The
evidence also does not show that the trailer concerned was inspected
on the relevant day, being the day of the collision.
[17]
Thousands of vehicles traverse the roads of the country every day. It
is not an ordinary occurrence that a wheel comes off
a motor vehicle
whilst it is travelling on a road. In the absence of any other
explanation as to why the wheel came off the trailer
it seems to me
that the only inference that can be drawn is that the wheel was not
properly fastened. The application of the
res ipsa loquitur
principle is appropriate.
[18]
In these circumstances, I am of the view that the plaintiff has
discharged the onus, on a balance of probabilities, of proving
negligence on the part of the first defendant.
[19]
Insofar as the defendant's allegation of negligence on the part of
the plaintiff is concerned it is insufficient to merely
allege
negligence alone. Particular grounds of negligence must be set out.
The defendant has failed to do so.
[20]
I make the following order:
1. The first defendant is liable to
the plaintiff for the plaintiff's proven or agreed damages.
2. The issue of quantum is postponed
sine die.
3. The first defendant is to pay the
costs of the action thus far.
___________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Plaintiff
:
Adv R. Raubenheimer
Instructed
by
:Swanepoel & Swanepoel
Attorneys
Counsel
on behalf of Defendant
: Adv G. Steyn
Instructed
by
: Molefe Knight Attorneys
Date
heard
: 13 September 2016
Date
delivered
: 21 December 2016