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[2014] ZAGPPHC 425
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Ngululu Bulk Carriers (Pty) Ltd v Van Der Walt t/a JN Van Der Walt Farming and Another (32812/2012) [2014] ZAGPPHC 425 (16 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE NUMBER:
32812/2012
DATE: 16 MAY 2014
In the matter
between;
NGULULU BULK
CARRIERS (PTY)
LTD
..............................................................................
PLAINTIFF
AND
JOHANNES VAN DER
WALT t/a
JN VAN DER WALT
FARMING
...............................................................................
FIRST
DEFENDANT
MANDAVHA SOLOMON
MASHILA
..................................................................
SECOND
DEFENDANT
JUDGMENT
MOSEAMO, AJ:
[1] The plaintiff
instituted action against both first and second defendants for
damages arising out of a motor vehicle collision
which occurred on
the 06
th
December 2011. The collision was
between Mercedez Benz Across 3344 MP 3 drawing two trailers bearing
registration letters and numbers
F[...] and F[...] respectively
(plaintiff’s vehicle) and a Massey Ferguson Tractor drawing a
trailer with registration letters
and numbers B[...] (first
defendant's vehicle). The plaintiff’s vehicle was driven by
Mokolokolo John Zwane (Mr Zwane) while
first defendant's vehicle was
driven by the second defendant who was an employee of the first
defendant. It is common cause that
second defendant was driving the
first defendant’s vehicle during the course and scope of his
employment with the first defendant.
The parties agreed to separate
merits and quantum and therefore the matter proceeded before me on
ments only. Two witnesses testified
for the plaintiff.
[2] Mr Zwane
testified that he was travelling from Groblersdal to Middleburg.
According to Mr Zwane when he was 2 km from where
the collision took
place he saw the first defendant’s vehicle travelling with its
right wheels on the tar road and left wheels
on the gravel road. When
he first saw the fisrt defendant's vehicle he reduced his speed by
taking his foot off the acceiierator.
As he approached he switched on
his hazards, moved plaintiff's vehicle to the middle of the road
where the white line was in the
middle, he then accellerated
preparing to go past the first defendant’s vehicle. When he was
about to go past the second
defendant turned right. He then applied
his brakes, he noticed the front wheel of the first defendant's
vehicle turning right and
going over the white line. He realised that
the second defendant wanted to enter a gate on the right-hand side.
He then swerved
to the left in order to avoid colliding in to first
defendant’s vehicle. The second defendant did not give any
indication
of his intention to turn. Mr Zwane decided to go to the
left and in order to go between the first defendant’s vehicle
and
the road sign. He mentioned that he could not stop the
plaintiff’s vehicle to avoid the collision as it had cargo.
[3] During
cross-examination the first defendant’s counsel suggested a
number of evasive maneuvre that Mr Zwane could have
taken. It was
also suggested that Mr Zwane should have been more careful knowing
that he is driving a heavy duty vehicle that is
not easy to stop, Mr
Zwane testified that the evasive maneuvre he made was to avoid
killing the ttractor driver. He insisted that
he had been careful and
that it was the reckless conduct of the second defendant that led to
the collision.
Much of the
cross-examination was directed at challenging Mr Zwane's recollection
of events especially after the collision. First
defendant’s
counsel spend more time questioning him on the scene after the
collision: (a) where the tractor ended, (b) where
Mr Boot was coming
from, (c)where the second defendant was after the collision, i found
the evidence of Mr Zwane as a whole to
be satisfactory and more
credible, He answered questions put to him clearly and consistently.
[4] Mr Louw
testified that he is an accident investigator and he was instructed
to investigate the accident. He visited first defendant’s
farm
where he interviewed the second defendant. He took a statement from
second defendant, had it typed and gave it to second defendant
to
sign. He confirmed that the statement marked Exhibit A page 30 of the
record was the statement of the second defendant.
[5] First
defendant testified in his defence and called one witness, Mr Boot.
Mr Boot testified
that he was travelling from from Groblersdal to Middelburg. He saw a
plaintiffs vehicle ahead of him He was at
a reasonable distance from
the truck when he saw the plaintuf’s vehicle moving to the
left. During cross-examination he did
not see what the second
defendant did did. He indicted that he does not know why the
plaintiff’s vehicle suddenly turned
left on a flat road and he
did not see what the second defendant did to make the plaintiff’s
vehicle swerve to the left.
He then explained what he observed after
the collision. I found Mr Boot to be an honest witness. He answered
questions put to him
openly and honestly.
[6] Mr Van Der Walt
testified that he was the employer of the second defendant who had
since died of an unrelated cause. He arrived
at the scene after the
collision had occurred. He found Mr Boot at the scene and he, Mr
Boot, gave him his business card. They
did not know each other before
the collision. He further testified that the second defendant had no
reason to go to the entrance
on the right-hand side of the road as
that was his neighbour's farm During cross-examination he admitted
that second defendant
had no driver’s liscence but could drive
the tractor on the gravel road. He admitted that he could not tell
what second defendant
did as he was not there. He however indicated
that second defendant was not on his way to the farm on his right. He
disputed that
the second defendant executed a right hand turn. Mr Van
der Walt answered questions put to him openly and clearly.
[7] The statement of
the second defendant as contained in Exhibit A page 30 of record was
admitted into evidence. The statement
contains the version of the
second defendant as to how the collision happened. According to this
statement, second defendant was
travelling very slowly along the N11
travelling in the direction of Middelburg on the gravel road. He
noticed a road sign on the
side of the road and he steered the
tractor to the right in order to avoid a road sign. The right hand
side wheels of the tractor
went on to the tar surface on to the lane
of travel of the vehicles going towards Middelburg. He was unable to
observe approaching
traffic from the rear as the fertilizer was very
high and obstructed his view. He suddenly felt a hard impact on the
tractor from
the rear and he saw the plaintiff’s vehicle which
was still approaching He steered the tractor to the right to avoid
being
hit by the plainiff’s vehicle.
[8] Second
defendant's counsel mentioned that the matter is proceeding against
the first defendant only as the second defendant
is deceased and was
never served with summons. The following issues are common cause (a)
the second defendant was an employee of
the first defendant at the
time of the collision; (b) the second defendant was driving the first
defendant’s vehicle during
the course and scope of this
employment: (c) Mr Zwane and the second defendant were travelling in
the same direction; (d) at the
place where the collision took place
there was a road sign board which protruded in to the gravel
shoulder; (e) prior to the collision
the first defendant’s
vehicle was travelling with its right wheels on the tar road and its
left wheels on the gravel road.
[9] The issues in
dispute are as follows (a) whether the second defendant was negligent
and if so. whether such negligence caused
the plaintiff damage; (b)
whether the Mr Zwane was negligent and if so. whether such negligence
caused the defendant damage alternatively
whether the plaintiff’s
negligence contributed to the collision.
[10] It is trite
that in cases where a person claims damages from another person
alleging that the latter was negligent then the
party alleging must
prove the alleged negligence on a balance of probabilities. The
defendant is negligent if a reasonable person
in his position would
have acted differrently; and in order to determine whether a
reasonable person would have acted differently
the court must
consider whether the unlawful causing of damage was reasonably
foreseeable and preventable. Plaintiff in this case
must first prove
that the second defendant was negligent. If the plaintiff cannot
prove the negligence of the second defendant,
he must fail in his
action.
[11]
The test for negligence is clearly outlined in the dictum of Holmes
JA in
Kruger V Coeizee
1966 (2) SA 428
(A) 430
where
it was stated that for the purposes of liability
culpa
arises
if (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.
[12] Counsel for the
Plaintiff contends that there is only one version, the plaintiff’s
version, before court. This contention
is rejected on the basis that
the statement of the second defendant was admitted in to evidence and
same was not objected to. There
is also corroboration by Mr Louw who
took the statement from the second defendant, I therefore find that
both versions were properly
placed before this court.
[13] First
Defendant's counsel’s contention is that there are two mutually
destructive versions before this court and that
this court should
follow the approach in National Employers General Co Ltd v Jagers
1984 (4) SA 437
(E), Stellenbosch Farmers Winery Group Ltd and
Another v Martel! et cie and others
2003 (1) SA 11
SCA. In my view
the two statements are not mutually destructive at all. The statement
of the second defendant supports the plaintiff's
version that he,
second defendant, turned or swerved to the right on to the lane of
travel of the plaintiff's truck. The acceptance
of the defendant's
version does not necessarily lead to the rejection of plaintiff’s
version. I therefore reject the submission
that the two versions are
mutually destructive.
[14] I now turn to
the issue of negligence; the first issue is whether the second
defendant was negligent and if so, whether his
negligence caused
damage to the plaintiff.
[15] Counsel for the
plaintiff contended that the second defendant was negligent in that
he swerved on to a national road, knowing
very well that the road is
busy without keeping a proper look out.
[16] On the other
hand counsel for the first defendant contended that the second
defendant could not have been negligent if he did
not execute a right
hand turn but made a slight move to the right to avoid a road sign
board.
[17] The following
facts are either proven or cannot be disputed:
a) The second
defendant steered right on to the lane of travel of the plaintiffs
vehicle:
b) The second
defendant was driving slowly at the time of the collision;
c) The second
defendant did not look out for vehicles that were already on that
lane of travel that he encroached on to:
d) Mr Zwane swerved
left in order to avoid colliding into the first defendant’s
vehicle and collided into the left hand corner
of the first
defendant’s trailer.
[18] At the hearing
of this matter there was no evidence led to suggest that the second
defendant moved slightly to the right. In
the absence of the evidence
as to how much into the road the first defendant’s tractor
moved,! have no option but to accept
the version of the Plaintiff
that the second defendant steered to the right and the front wheel of
the second defendant’s
tractor was on the white lane.
[19]
In my view it was required of the second defendant to exercise extra
caution in moving on to a national road from the side
of the road.
The second defendant should have foreseen that they may already be
vehicles on the road on which he wished to swerve
to and therefore
exercise caution before swerving or entering or steering on to the
road. A reasonable person in his position would
have realised that
steering a slow moving cargo carrying tractor on to a busy national
road might cause danger to other road users
and acted cautiously. The
issue of whether the second defendant was turning right or only
swerved right, in my view does not make
any difference.in
Pauley
v Marine and trade insurance co. LTD
1964 (3) SA 371
WLD
it
was stated that:
“
The
principle that the driver of a vehicle must not turn across the line
of the traffic following him unless he does so at an opportune
moment, in a reasonable manner, and gives ample warning to such
traffic of his intention to do so applies not only in urban areas
but
also in rural areas, and not. only where the driver intends executing
a right-hand turn across the whole road but also a turn
or swerve
within his own correct , i.e left-hand side of the roadway whenever
the reasonable forseeabie possibility exists that
such a manoeuvre
might endanger following traffic."
[20] In my view the
plaintiff proved on a balance of probabilities that the second
defendant was negligent in that he did not keep
a proper look out; he
failed to have due regard for other road users, in particular the
driver of plaintiffs vehicle; he drove
the first defendant's vehicle
from the side of the road into the path of the plaintiff's vehicle.
[21] The second
issue is whether there was contributory negligence on the part of Mr
Zwane and if so. the extent thereof.
[22] It is not in
dispute that Mr Zwane swerved to the left in order to avoid colliding
in to the tractor’s trailer which
had entered his lane of
travel. The first Defendant contends that Mr Zwane overhastily jumped
to the wrong conclusion and that
is what led to his subsequent
manuevering to the left.
[23] There is no
evidence regarding: (a) The distance between the road sign and the
tar road; (b) The distance which the tractor
started driving with two
wheels on the gravel and two wheels on the tar road: (c) How much in
to the road did the second defendant
swerve: (d) The foreseeability
of the second defendant’s right hand swerve; (e) The speed at
which the tractor was travelling
when it swerved in to the road.
[24] The evidence of
Mr Zwane ts that he was in the process of overtaking the first
defendant's when he saw the first defendant’s
vehicle swerved
to the right. He decelerated and swerved to the left wanting to
squeeze the plaintiff's vehicle between the road
sign and the first
defendant’s vehicle. He unfortunately collided in to the left
corner of the trailer with his right corner
of the horse and trailer.
He was travelling at approximately 85km just before collision.
[25] In his
statement second defendant admits that he steered the first
defendant’s vehicle to the right and the right hand
side wheels
of the tractor and trailer went on to the tar surface on to the
travelling lane of vehicles driving towards Middelburg.
The statement does
not mention how much to the right did the first defendant’s
tractor move ;n to the plaintiff's truck’s
lane of travel. The
second defendant further admitted that he was unable to observe
approaching traffic from the rear as the fertilizer
was very high and
it obstructed his view. He also indicated that he was driving very
slow at the time of the accident.
[26] In my view a
reasonable driver in Mr Zwane’s position could not have forseen
that a slow moving tractor that was travelling
on the side of the
road would swerve or turn right in to his lane of travel Mr Zwane was
entitled to assume that the slower vehicle
being overtaken will
continue in its course on the left-hand side of the road. I am
further of the view that the evasive manoeuvre
taken by Mr Zwane in
trying to avoid the collision did not amount to negligence,
[27] The first
defendant’s other submisions as to the negligence of the
Plaintiff: the fact that M
r
Zwane could have reduced
speed, stopped to avoid colliding in to the rear of the trailer, that
he drove too fast, I find that this
arguments are without merit in
that (a) Mr Zwane testified that he was travelling at approximately
80km per hour as he had lifted
'ms foot off the accelerator upon
seeing the tractor combination; while the statement of the second
defendant is to the effect
that the first defendant’s vehicle
was travelling very slow; (b) he could not have stopped the truck
combination as the cargo
it was carrying propelled it forward,
[28] In my view Mr
Zwane took the necessary precautions. He insisted that he could not
have passed on the right as he thought second
defendant was turning
into a
;
gate' to the right. His only option was to swerve
to the left,
[29]
In my view maxim re
ipsa loquitur does
not
find application in this case. The fact that the first defendant’s
vehicle was travelling on the side of the road and
then swerved into
the lane of travel of the plaitiff’s vehicle clearly indicates
that the collision occured as a result of
the first defendant's
vehicle moving into the road,
[30] The first
defendant s contends that Mr Zwane should have left enough berth
while overtaking the second defendant. There was
no evidence led to
prove that Mr Zwane did not leave enough berth while overtaking the
first defendant's vehicle: also I cannot
lose sight of the fact that
Mr Zwane was overtaking a vehicle that was travelling on the gravel
which entered his lane of travel
without any 'warning. As a result I
find that the present case is distinguishable to the case of Beswick
v Crews
1965 (2) SA 690
(A) as referred to by the first defendant’s
counsel. In that case the plaintiff was overtaking a slow moving
lorry that was
travelling within its lane of travel whereas in the
present case the first defendant's vehicle turned or swerved right
into the
lane of travel of the plaintiff's vehicle.
[31] in my view the
plaintiff has proved negligence on the part of the second defendant
which caused the collision and the collision
resulted in the damage
suffered by the plaintiff. The plaintiff has proved on a balance of
probabilities that the negligence of
the second defendant was the
sole cause of the collision and is therefore entitled to judgement.
The following order
is made:
1 The defendant is
liable to pay 100 percent of the plaintiff's proven or agreed damaoc;
2. The defendant is
ordered to pay the plaintiff's costs of this action.
3. The determination
of quantum is postponed sine die.
P.D MOSEAMO
ACTING JUDGE OF THE
HIGH COURT