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[2015] ZAKZPHC 48
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Rungasamy v Rampersad (7721/2011, 445/2014) [2015] ZAKZPHC 48 (20 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Verulam
Magistrates Court Case Number: 7721/2011
Appeal
Number: 445/2014
DATE:
20 AUGUST 2015
In
the matter between:
LLOYD
RUNGASAMY
....................................................................................................
APPELLANT
And
VIKRAM
RAMPERSAD
...............................................................................................
RESPONDENT
ORDER
On
appeal: from a decision of the Magistrate’s Court, Verulam,
(Magistrate V Naidoo sitting as a court of first instance),
it is
ordered:
1.
The appeal is upheld, with costs.
2.
The orders of the
court
a quo
are set aside and replaced with
the following:
2.1.
The defendant is liable to compensate the
plaintiff for 100% of his proven damages.
2.2.
The defendant’s counterclaim is
dismissed with costs.
CIVIL APPEAL
JUDGMENT
HENRIQUES
J (SEEGOBIN J concurring)
Introduction
[1]
The appellant appeals against the judgment on liability delivered on
13 February 2013, by Magistrate V Naidoo in which she awarded
him 40%
of his damages claim and found him liable for 60% of the respondent’s
damages in the counterclaim.
[2]
The appellant submits that the court
a quo
erred in not
finding that, being a rear-end collision, the facts supported a
finding that the respondent was the sole cause of the
collision and
erred in finding that there was negligence on the part of the
appellant’s driver which contributed to the collision.
[3]
It is only this issue which concerns us on appeal and warrants a
careful analysis of the evidence presented in the court
a quo
being that of the appellant’s driver, Ashley Haridass
(Haridass) and the respondent Vikram Rampersad (Rampersad).
[4]
The court
a
quo
in
concluding Haridass was more negligent, found on the evidence that
Haridass “
failed
to indicate his intention to stop, did not stop at a demarcated stop
area or loading zone and stopped on the road without
establishing
that it was safe to do so.”
[1]
The
Magistrate was of the view that … “
It
is very material were the taxi stopped. It was off the road, the
collision would not have occurred.”
[2]
[5]
The court
a quo
found that Rampersad also contributed to the
collision and was negligent in that he was travelling at a speed
which appeared to
be excessive in the circumstances and failed to
take evasive steps to avoid the collision. The Magistrate did not
accept Rampersad’s
version that he could not swerve to the left
or right to avoid the collision.
Common Cause
Facts
[6]
It is common cause, alternatively not disputed that:
[6.1]
A collision occurred in the late afternoon on 28 January 2011 on
Longbury Drive, Phoenix, between a taxi driven by Haridass
and a
Nissan Hardbody driven by Rampersad;
[6.2]
At the time the whole of Longbury Drive was under construction, the
tar surface of the road had been dug up and the road consisted
mainly
of gravel and loose stones;
[6.3]
At the time of the collision the road was quiet with no or very
little traffic;
[6.4]
There were no road markings and no designated stops at the time due
to the construction;
[6.5]
The taxi driven by Haridass was stationary on the road with its
hazard lights on, sliding door open, having stopped to allow
a
passenger to alight before the collision.
[6.6]
Immediately prior to the collision, the taxi had been travelling at
approximately 20 kilometres per hour looking for passengers;
[6.7]
The only skid marks on the road relative to the collision were those
of the respondent’s bakkie and none belonging to
the taxi;
[6.8]
Both Haridass and Rampersad were of the opinion that one would have
to exercise extra caution when driving on the road, given
the
construction taking place and the road surface consisting of gravel
and loose stones;
[6.9]
Rampersad testified he was travelling at approximately 60 kilometres
per hour immediately before the collision and was approximately
three
car lengths behind Haridass’s vehicle.
[6.10]
This was a rear-end collision the respondent’s vehicle having
collided with the rear of the appellant’s taxi.
Legal
Principles
[7]
It is trite that road users especially drivers are under a duty to,
inter alia, keep a proper look out, drive at a reasonable
speed given
the prevailing circumstances, to maintain a safe following distance
and be able to stop within one’s range of
vision. A driver must
drive in such a manner that he can avoid a collision should the
vehicle in front of him suddenly stop and
must therefore keep
sufficient distance between himself and the vehicle in front of him.
[8]
A driver who collides with the rear of a vehicle is
prima
facie
negligent,
[3]
unless he can give
an adequate explanation indicating why he was not negligent.
[4]
The Evidence and
Findings
[9]
Haridass’s version is that he was stationary on the road. He
had stopped to drop off a passenger and the hazard lights
of his
vehicle were on at the time. The passenger had alighted from
the vehicle and he did not observe other vehicles around
him or in
the vicinity of his vehicle, as his attention was focussed on the
passenger. He testified that he heard a screeching
sound and it was
at that point that the respondent’s vehicle collided into the
rear of his vehicle.
[10]
Rampersad’s version is that he was following the taxi at a
distance of three car lengths and travelling at approximately
60
kilometres an hour before the taxi suddenly stopped on the road. He
testified that he tried to swerve to the left hand side
but because
there were houses to the left of the road, he then swerved to the
right but noticed an oncoming vehicle and by that
stage then collided
into the rear of Haridass’s vehicle after slamming his brakes
and skidding. His skid marks were indicative
of the fact that he
attempted to stop but due to the nature of the road surface was
unable to do so timeously. He also testified
that he took his hands
off the steering wheel and held onto his three year old child who was
seated in the front passenger seat.
[11]
Both drivers confirmed that the road was under construction and
consisted of gravel and loose stones. A motorist ought to have
in
mind the possibility that there may be a tendency for his car to skid
to some extent if he applies his brakes hard and suddenly
as the
respondent testified to. In addition, the respondent testified that
he used the road every day and that construction had
been on-going
for in excess of two months and was on his way to fetch his wife from
work. He was fully aware of the possibility
of taxi’s
travelling slowly on the road, to either allow passengers to alight
or board. On his evidence he was travelling
at 60 kilometres per hour
fully aware of the taxi in front of him and did not adjust his speed
to take into account the vehicle
in front of him. The fact that his
vehicle skidded for a considerable distance is indicative of the fact
that he was travelling
too close to Haridass’s vehicle and at a
speed which was excessive given the prevailing circumstances.
[12]
It appears that he was not paying sufficient attention to Haridass’s
vehicle and must have braked too late,
alternatively
, did not
observe what was going on in front of him and therefore had not kept
a proper look out. In our view, if he had kept
a proper lookout
he would have had sufficient time and opportunity to bring his
vehicle to a halt or to take evasive steps to avoid
a collision. This
is also in light of Haridass’s unchallenged evidence that his
vehicle was stationary, the passenger had
alighted, and that the
hazard lights of his vehicle were on.
[13]
The court
a quo
was of the view that Haridass could have
stopped his vehicle closer to the left hand side of the road, if not
off the road to the
left. By the same token, it must then follow that
Rampersad could also have swerved more to the left to avoid the
collision.
[14]
Being a rear-end collision, the respondent had to rebut the
prima
facie
inference of negligence by providing an acceptable
explanation. On the available evidence, the respondent has not
provided an explanation
sufficient to rebut the inference. We are
consequently of the view that on the probabilities, Rampersad was
negligent.
[15]
We are fortified in this view having regard to the decision in
Fig
Brothers
supra
as well as
Goldstein’s
case
supra
where
the court held the following:
[5]
“…
He
must if he is to avoid the possibility of imputations of negligence,
so adjust his speed and his distance from the vehicle in
front of him
that he is able to pull up in the column of traffic in a way which
avoids his vehicle coming into contact with the
preceding vehicle
should that vehicle make a sudden stop. The duty of care is relative
to the occasion, in the sense that the higher
the speed and the
nearer to the vehicle in front, the greater the necessary care.”
[16]
At 17A the court deals with the situation of a vehicle going into a
skid similar to that testified to by Rampersad and remarked:
“
But
assuming that the car did skid, that fact would go to indicate that,
in the circumstances, he was travelling too close to the
plaintiff’s
car at the speed at which he was going.”
[17]
We are thus of the view that the court
a quo
misdirected
itself in finding that Haridass did not stop at a loading zone or
demarcated stop on the road, as it was clear that
there were no
demarcated stops or markings on the road in light of the fact that
the road was under construction. In addition
we do not agree
with the court
a quo’s
finding that the switching on of
the hazard lights by Haridass was an inappropriate signal at the
time. In light of the fact that
Haridass’s evidence was
unchallenged in relation to the fact that he was stationary with his
hazard lights on and that the
passenger had alighted, the court
a
quo
could not have made the following finding:
“
The
most probable explanation would be that Haridass planned on stopping,
must have reduced speed and stopped, whereas the Defendant
had to
stop suddenly, as reasonably have anticipated that the taxi would
stop on the road, at that location.
[6]
”
[18]
The next issue which arises is whether or not Haridass was in any way
negligent and if this negligence contributed to the collision.
In our view the fact that Haridass may not have stopped at a
designated stop in light of the road works does not make him
negligent.
We are of the view that the court
a
quo’s
findings
that had Haridass’s taxi not been on the road, the collision
would not have occurred, cannot be correct. In
our view the
fact that his vehicle was partially on the road in no way contributed
to the collision. The uncontested evidence is
that his vehicle was
stationary with its hazard lights on and that the passenger had
alighted. If the respondent, on his
version had been following
the taxi he would have observed this and had he adjusted his speed to
his range of vision, he would
clearly have had ample opportunity to
observe Haridass’s vehicle stationary on the road and taken
steps to avoid colliding
into the rear of his vehicle. It is for
these reasons that we are of the view that if he had kept a proper
look out, he would have
noticed what was going on in front of him and
could have successfully avoided colliding into the rear of Haridass’s
vehicle.
The fact that Haridass did not stop at a designated
stop, does not mean that he was responsible for the collision in a
legal sense.
[7]
[19]
It is for these reasons that we are of the view that the respondent
did not provide an acceptable explanation to rebut the
presumption
that he was
prima facie
negligent. Having found that Haridass
was not negligent, and in no way contributed to the collision, it
must follow that the respondent
was the sole cause of the collision.
Conclusion
[20] In the result
the order we make is the following:
1.
The appeal is upheld, with costs.
2.
The orders of the
court
a quo
are set aside and replaced with
the following:
2.1.
The defendant is liable to compensate the
plaintiff for 100% of his proven damages.
2.2.
The defendant’s counterclaim is
dismissed with costs.
HENRIQUES
J
I
agree,
SEEGOBIN
J
DATE
OF ARGUMENT : 17 August 2015
DATE
OF JUDGMENT : 20 August 2015
APPELLANT’S
COUNSEL : P Jorgensen
RESPONDENT’S
COUNSEL : T Pillay
Appellant’s
Attorneys:
Pather
& Pather Attorneys
30
Dullah Omar Road (Masonic Grove)
3rd
Floor Lincoln House
Lincoln
House
Durban
(Ref:
EDWARD ABRAHAM/ig/C442)
Respondent’s
Attorneys:
Theasen
Pillay & Associates
Shop
11, 1
ST
Floor, 14 Palm Boulevard
Umlanga
Ridge Newtown
Gateway,
Umhlanga (Ref: T Pillay/K1/R187)
[1]
Page
33, Reasons for Judgment, Index to Appeal Record.
[2]
Page
34, Reasons for Judgment, Index to Appeal Record.
[3]
Goldstein
v Jackson’s Taxi Service
1954(4)
SA 14 (N);
Union
and South West Africa Insurance Co Ltd v Bezuidenhout
1982(3) SA 957 (A).
[4]
Fig
Brothers (Pty) Ltd v South African Railways and Harbours &
another
1975(2)
SA 207 (C) at 211 H.
[5]
At
16 C to D
[6]
Page
33, Reasons for Judgment, Index to Appeal Record.
[7]
Fig
Brothers
supra at 211 B - C