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[2016] ZAGPPHC 1050
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De Sousa v Subtropico Market Agents (Pty) Ltd (49152/2014) [2016] ZAGPPHC 1050 (22 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 4915212014
22/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
NATIVIDADE
ORLANDA DE
SOUSA PLAINTIFF
AND
SUBTROPICO
MARKET AGENTS (PTY)
LTD DEFENDANT
JUDGMENT
MOLEFE
J
[1]
The plaintiff instituted an action against the defendant for
compensation for injuries sustained in a collision involving a
forklift driven by Alfred Gaanamong ("the driver") and the
plaintiff, who was a pedestrian at the time. The collision
occurred
on 7 April 2014 at the Tshwane Fresh Produce Market ("the
market").
[2]
It is common cause that the Fresh Produce Market is owned, operated
and controlled by the City of Tshwane Metropolitan Municipality
and
that at the time of the collision the driver was acting within the
course and scope of his employment with the defendant.
[3]
In her particulars of claim the plaintiff claimed that the collision
was caused as a result of the negligence of the driver
in one, more
or all of the following respects:
3.1. he failed to keep a
proper lookout;
3.2. he drove the
forklift forward while carrying banana crates on the front of the
forklift which obscured his vision;
3.3. he failed to take
cognizance of the fact that pedestrians frequent the Fresh Produce
Market;
3.4. he failed to avoid
the collision when by the exercise of proper care, he
should have done so;
3.5. he operated the
forklift without having the required licence or certification.
[4]
The defendant denied that the collision occurred as a result of the
driver's negligence, and pleaded that the collision was
caused as a
result of the negligence of the plaintiff who was negligent in one,
more or all of the following respects:
4.1. she failed to keep a
proper lookout;
4.2. she failed to avoid
the collision by exercising proper care, when she could and should
have avoided it.
[5]
At the commencement of the trial, the parties agreed to separate the
issues of liability (merits) and quantum in terms of Rule
33 (4). The
trial proceeded with the issue of merits and the determination of
quantum of the plaintiffs claim was postponed
sine die
.
[6]
It is trite that the plaintiff bears the
onus
to
prove that the driver was negligent and that this caused or
contributed to the incident and that the defendant bears the
onus
to
establish contributory negligence that contributed to the
occurrence
[1]
.
[7]
The parties submitted two videos (DVD) recordings of the incident
obtained from a static camera(s). The parties agreed that
the videos
depict "a true
reflection of that part of the incident
reflected thereon".
[8]
The video that depicts the forklift striking the plaintiff shows the
plaintiff walking in an aisle at the market, an area where
pedestrians are entitled to walk. It depicts the plaintiff further
walking (at least) seven paces in a straight line in the middle
of
the aisle, with the forklift approaching from her rear and running
her over. Plaintiff's Counsel
[2]
contends that under circumstances where it is common cause that
members of the public are invited to attend the market walking
on the
aisles, it is certainly a situation of res
ipsa
loquitur,
ie
a situation where the plaintiff has proved with the video facts from
which negligence may readily be inferred. It is then for
the
defendant to displace a
prima
facie
inference.
[9]
Defendant's Counsel
[3]
argued
that the
maxim
of
res
ipsa loquitur
has
no general application to collisions although it may, in a
restrictive class of cases, sometimes apply. It was argued
on
behalf of the defendant that it does not apply in this case because
if it does apply, it boils down to the notion that it is
self-evident
that the collision was caused by the negligence of the driver of the
forklift.
[10]
For
res ipsa loquitur
to be brought into play, the occurrence
must be sufficiently described to make the findings of negligence
self-evident from its
very nature. Even then, the inference need not
be drawn and further that it may be negative by a contrary
explanation by the defendant
or by some other means. In my view, the
Court in
casu
cannot invoke the
res ipsa loquitur maxim
merely because the video shows the driver colliding with the
plaintiff from behind, but should make a finding of negligence on the
evidence presented by various witnesses on the disputed facts as it
appears from the pleadings. It still has to be decided whether
on all
of the evidence and the probabilities, the plaintiff has discharged
the
onus.
[11]
Two witnesses testified on behalf of the plaintiff; Mr Frank Mashaba
and the Plaintiff.
11.1.
Mr Frank Mashaba
testified that he is the driver of Mashaba Forklift and Training
and that they train people to operate forklifts and are accredited
to
issue forklift certificates. Mr Mashaba testified that he issued a
forklift licence certificate to the driver on 8 April 2014,
a day
after the incident and the licence certificate is valid for two
years. In terms of the General Driving Rules for forklifts,
if a
driver cannot see in front because of a big load, the driver must
drive in reverse.
With regard to the issue
of the license being issued the day after the incident, defendant's
Counsel submitted that an unlicensed
driver is not per se negligent
because he drives without a valid license.
11.2.
Mrs Natividade
de Sousa,
the plaintiff, testified that when the incident
occurred she was sixty years old and was familiar with the conditions
at the market
as she had been frequenting the market as a buyer for
eight (8) years. The members of the public have access to the market
aisles
and she was also aware of the presence of forklifts in the
aisles. On 7 April 2014 in the morning, she was walking down the
aisle
from Lebombo market stall on the other side of the aisle to the
defendant's market stall on the other side of the aisle. When she
was
near the defendant's door, she was hit by a forklift from behind. She
sustained injuries from the incident and was hospitalized.
She
further testified that before crossing from one side of the aisle to
the other side, she kept a proper lookout by looking to
her left but
did not see the forklift approaching. The plaintiff further testified
that there was nothing she could have done to
avoid the incident.
Under cross-examination,
it was put to the plaintiff that she crossed the aisle to the other
side into the forklift's lane of travel
without keeping a proper
lookout, that she crossed in front of a pillar which dissects the
aisle into two and that was the reason
why the forklift driver failed
to see her.
[12]
Two witnesses, the forklift driver and Mr Roelf Swanepoel testified
on behalf of the defendant.
12.1.
Mr Alfred
Gaanamong,
testified that he is a forklift driver in the employ
of the defendant with 21 years' experience as a forklift driver. He
testified
that on 7 April 2014 at approximately 05h30, he was the
driver of the forklift and he went to fetch crates of bananas from
the
ripening facility outside the market building situated
approximately 1 kilometer from the market building to the defendant's
stall
inside the building. The bananas were packed in a pallet with
50 crates/boxes in a pallet. The one pallet with a load of 50 crates
of bananas was packed in front of the forklift. The other crates were
in four trailers, with two pallets in each trailer. The load
of
banana crates in front of the forklift was obstructing his view but
he could not drive in reverse because of the trailers at
the back.
He drove from outside
into the market building by looking intermittently to the right and
left. He never saw Ms de Sousa prior to
the incident; he just felt
the impact of hitting something and heard people screaming. The
forklift collided with Ms de Sousa from
behind, probably because
according to the driver's testimony, she emerged from behind the
pillar.
Under cross-examination
the driver testified that he loaded the forklift in front for
traction to pull the trailers uphill.
12.2.
Mr Roelf
Swanepoel
testified that he is a market trader in the employ of
the defendant and the driver's manager. Mr Swanepoel testified that
on the
morning of the 7 April 2014, he was inside his work station
busy with computer sales and when he looked up he saw Mrs de Sousa on
the other side of the aisle next to a pillar. He saw her crossing
from the other side of the aisle behind the pillar but he did
not see
the forklift approaching. After the incident he unhooked the forklift
from the trailers to move it away from the scene
of the incident.
Under
cross-examination Mr Swanepoel conceded that the market building is a
beehive of activities with forklifts and pedestrians
and that someone
visiting the market can assume that the driver of a forklift should
be able to see him/her. He also confirmed
under cross-examination
that he did not see Mrs de Sousa crossing from the one side of the
aisle to the defendant's stall nor did
he see how fast she crossed.
[13]
During the inspection in loco, it was clear that the market building
and the greater precinct is a beehive of activities with
forklifts
and pedestrians intermingling. From the ripening facility to the
market building there is a winding road and a busy intersection.
Inside the market buildings, a lot of forklifts with loads in front
were observed driving in reverse.
[14]
In a civil case, the
onus
is obviously not as heavy as it is
in a criminal case, but nevertheless, where the
onus
rests on
the plaintiff as in the present case, and where there are mutually
destructive versions, the plaintiff can only succeed
if she satisfies
the Court on a preponderance of probabilities that her version is
true and accurate and therefore acceptable and
that the version
advanced by the defendant is therefore false and falls to be
rejected. In deciding whether that evidence is true
or not, the Court
will weigh up and test the plaintiff's allegations against the
general probabilities. (See
National Employer's General Insurance
Co Ltd v Jagers
1984 (4) SA 437
(E)
.
[15]
In
African
Eagle Life Assurance Co Ltd v Cainer
[4]
,
Coetzee J applied the principle set out in National Employers'
General Insurance Association v Gany 1931AD 187 as follows:
"Where there
are
two stories mutually destructive, before the onus is discharged
the Court must be satisfied that the story of the litigant upon whom
the onus rests is true and the other false. It is not enough to
say that the story told by Clarke is not satisfactory in every
respect,
it must be clear to the Court of first instance that the
version of the litigant upon whom the onus rests is the true
version".
[16]
The plaintiff
in casu
appeared to be an honest, credible and
consistent witness whose testimony can be relied upon. Although she
testified that she did
not have an accurate recollection of events
because of the lapse of time between the incident and her testimony
and because of
the pain she endured due to the incident, I found her
to be reliable and that her version is a true version.
[17]
It is an established fact that the forklift was heavily laden in
front and the driver conceded that the load obstructed his
view.
Driving when you cannot see is inherently dangerous. A reasonable
driver of a forklift could have foreseen the reasonable
possibility
that driving a forklift in a market where the public enjoys access,
with your view obstructed, may hit a pedestrian,
like he did in this
case. His version is that he never saw the plaintiff at all before he
felt that his forklift struck her. Had
the forks of the forklift not
been so heavily and highly stacked, he would have seen the plaintiff
and not ridden into her. Similarly
if he followed the general
rules and reversed the forklift, he would also not have struck her
since he would have seen her. Mr
Swanepoel conceded that a person at
the market is entitled to assume that forklift drivers are able to
see them.
[18]
I therefore find the plaintiff's version to be more probable. I am
unable to find any negligence whatsoever that can be attributed
to
the plaintiff. A finding of negligence on the driver's part is quite
justifiable as he failed to act reasonably. I find that
the plaintiff
has successfully discharged the
onus
expected of her of
proving negligence on a balance of probabilities on the part of the
forklift driver.
[19]
I do not agree with the argument by the defendant's Counsel that
because the driver drove from the ripening facility negotiating
a
winding road, crossing a busy intersection and maneuvered his way
into the market building without an incident, therefore the
driver is
not negligent in colliding with the plaintiff from behind. There is
absolutely no merit on this argument.
Contributory
Negligence
[20]
It is trite that for the defendant to be successful in achieving an
apportionment of damages, the
onus
is on the defendant to
prove negligence on the plaintiffs behalf which causally and
factually contributed to the collision. In
Kruger v Coetzee 1966
(2) 428 (A)
it was held that the defendant has the
onus
to
satisfy the Court that the reasonable person in the position of the
plaintiff:
20.1. would foresee the
reasonable possibility that the conduct would injure another person
or property and cause that person patrimonial
loss;
20.2. would take
reasonable steps to guard against such occurrence; and
20.3. that the plaintiff
failed to take such steps.
[21]
I agree with the submission by the plaintiff's counsel that this
matter is not akin to that of a pedestrian, who intrudes or
traverses
onto a road meant for vehicular traffic. On the contrary, the market
is a place which invites members of the public to
visit the stalls on
foot whilst purchasing goods.
[22]
Counsel for the defendant argued that an apportionment should be
applied as the plaintiff should have looked to her left and
seen the
approaching forklift. This argument is based on the assumption that
when the plaintiff was crossing to the other side
of the aisle, the
approaching forklift would already be there to be seen. However, the
second video (which does not show the actual
collision) reveals that
the plaintiff whilst crossing to the other aisle where she was hit,
could not have seen the approaching
forklift because it was not yet
on the premises. The first video (which shows the actual impact)
shows that where the plaintiff
was hit, she was already walking
straight down the aisle for at least some seven paces, ie. not
crossing. It is clear even from
the video that the plaintiff was hit
from behind under circumstances where no reasonable person could have
foreseen the possibility
that she would be run over from behind and
be dragged by the forklift.
[23]
It cannot be expected of the plaintiff to have anticipated the
proverbial invisible forklift approaching from behind and further
anticipate that such forklift which she did not see, will not see
ahead whilst driving forward because of a very high load obstructing
the driver's view. I am therefore unable to find any negligence
whatsoever that can be attributed to the plaintiff. The negligence
of
the forklift driver was the sole cause of the incident and the
defendant has failed to prove any contributory negligence on
behalf
of the plaintiff.
[24]
In the premises, I make the following order:
1.
The defendant is
liable for 100% of the proven or agreed damages;
2.
The defendant shall
pay the plaintiff's costs of the action insofar as it pertains to
liability, such costs to include the costs
of Senior Counsel and the
costs of the trial from 31 October 2016 to 2 November 2016;
3.
The issue of
quantum is postponed sine die.
____________________
D
S MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
on behalf of Plaintiff
:
Adv. JO
Williams SC
Instructed
by
: Dawie
De Beer Attorneys
Counsel
on behalf of Defendant
:
Adv. A
Vorster
Instructed
by
: Hugo &
Ngwenya Attorneys
Date
Heard
: 31
October 2016, 1and 2 November 2016
Date
Delivered
: 22
December 2016
[1]
See
Eversmeyer (Pty) Ltd v Walker
1963 (3) SA 384 (T)
[2]
Advocate J O Williams SC
[3]
Advocate A Vorster
[4]
1980 (2) SA 234
(W) at 237 D-H