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[2014] ZAFSHC 208
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PH Corver v Yellow Jersey Logistics (A27/2014) [2014] ZAFSHC 208 (4 December 2014)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A27/2014
DATE: 04 DECEMBER 2014
In the appeal between:
PH
CORVER
.......................................................................
Appellant
And
YELLOW JERSEY
LOGISTICS
.......................................
Respondent
CORAM: KRUGER et NAIDOO, JJ et
MOENG, AJ
JUDGMENT BY: KRUGER, J
HEARD ON: 1 DECEMBER 2014
DELIVERED ON: 4 DECEMBER 2014
[1] This is an appeal and cross-appeal
against the judgment of Moloi J in which he found absolution of the
instance and ordered
each party to pay their own costs. As is usual
in motor collision cases, there was a claim and a counter claim. The
trial dealt
only with the issue of negligence. The case arises from
a collision on the N3 freeway between Harrismith and Warden on 20
April
2012 wherein a tractor and trailer driven by appellant’s
driver was hit from behind by a large truck driven by respondent’s
driver. The only issue in dispute at the trial was the respective
negligence of the drivers. Appellant’s driver, who drove
the
tractor, was decapitated when the truck driven by defendant’s
driver went over the trailer and tractor. Defendant’s
driver
died about two weeks after the collision from tuberculosis,
apparently unrelated to the collision. The trial court gave
leave to
appeal.
[2] The two vehicles involved in the
collision were travelling in the same direction, from Harrismith to
Warden. The collision
occurred at about 13h00, on a clear day on a
straight and level road which has two tarred lanes for travel in each
direction, separated
by a solid line. There is a downward incline
about two comma one kilometres before the point of impact, but the
road is straight
for about four and a half kilometres from the end of
the incline. There is a strip left of the yellow barrier line at the
point
of impact, and that strip narrows after the scene of the
collision.
[3] Only one eye witness testified, Mrs
Wessels, a teacher, who was driving behind the truck, (a horse and
trailer) also in the
direction of Warden. She had her young son with
her. There was a white motor car between her and the truck. She
wanted to overtake
the truck, but it was going too fast, she would
have to exceed the 120km per hour speed limit if she overtook the
truck, and she
was aware of a speed camera a little distance ahead.
She slowed down and kept her following distance, about 100 metres
behind
the white car ahead of her and 200 metres behind the truck.
There were no vehicles in the right-hand lane. There were also no
vehicles left of the yellow lane on the shoulder of the road. She
did not see the tractor before the collision and believed that
was
because the truck obscured her view for vehicles in front of the
truck. She was driving at about 110 kilometres per hour.
She looked
at her speedometer when she fell back after trying to overtake the
truck and thought to herself that the truck was
driving quite fast.
She glanced down at her son to see if he was alright and the next
moment she saw pieces of debris flying.
The car ahead of her put on
its hazards and moved to the right-hand lane. She also put on her
hazards went to the right-hand
lane and pulled off the road about
next to where the truck had come to a standstill.
[4] In cross-examination the statement
Mrs Wessels had made after the collision was put to her. She agreed
that in her statement
there was no mention of a white car between her
and the truck. She said when she wrote the statement she did not
think it was
important to refer to the white car. She wrote the
statement for Mr Rassie Erasmus, who had asked her for a statement.
She responded
that the statement does say “Twee ander persone
wat ook agter die trok was het ook afgetrek”. In
re-examination she
said those two persons were the persons who were
travelling in the white car ahead of her. She said she was 70 metres
behind the
white car. She said a person would not be able to see a
tractor if it was directly in front of the truck from where she was
behind
the truck. She said it was a clear day, she would be able to
see what was left and right of the truck. The warning statement of
the driver of the truck was put to her wherein he says that there was
as truck in the right-hand lane and the tractor was left
of the
yellow line. Mrs Wessels disagreed with both those statements.
She said:
“Daar was geen voertuie in die
regterbaan nie en ek is doodseker daarvan.”
About her following distances no-one
can say what the exact following distance was. She denied that the
tractor was driving on
the shoulder of the road left of the left-hand
lane and suddenly drove in front of the truck. Asked what would have
prevented
the truck driver from seeing the tractor and trailer
directly ahead of him, she said perhaps if the truck driver was very
tired
because he was permanently on the road, driving to and fro.
She said she just surmised that, she had never seen the truck driver
before, it was a possibility. She agreed that it did not make sense
that the truck driver hit the tractor from behind. She did
however
say it was not improbable, because it happened.
She said:
“Daardie dag het ek besef dat
iemand net so roekeloos bo-oor ‘n trekker kan ry. En vir my as
getuie was dit ‘n
baie onaangename ervaring en ek het daardie
dag besef dat dit kan gebeur.”
[5] The other witness called by the
appellant was Mr Corver, the plaintiff and the owner of the tractor
and trailer, and employer
of the deceased driver. He phoned his
driver, who told him that he had just left and was on his way to
where Corver was. Corver
and his wife then drove towards Harrismith.
He saw his tractor and trailer and deceased driver. A person was
regulating the traffic.
He took his wife back because she could not
handle the situation, and returned again, but at that stage the other
person had left.
Corver testified that the deceased was one of his
top drivers who had been working for him for about 11 years. Corver
only used
his top drivers on the N3 because they know it is a
high-risk road. Corver said the deceased did not drink or smoke.
Corver’s
standing instruction to his drivers is never to drive
in the yellow strip, because for 95% of the road that strip is only
one metre
wide, and then the tractor has to move back into the lane
without being able to see behind him. Thus his instruction is that
they
should drive with their left wheels on the strip left of the
yellow line. The tractor was red and the trailer beige, with sides
about two and a half metres off the ground. The horse and trailer
collided with the tractor and trailer. The horse was yellow
and the
trailer had a red container. According to Corver’s observation
at the scene the truck hit the trailer from behind.
Corver said it
was clear that the truck drove into the back of the trailer. The
tractor broke in two as a result of the collision.
The driver was
decapitated by the trailer that went over the tractor. Looking at
the photographs Corver said the two marks on
the left lane of the
road were caused by the suspension of the rear axle of the trailer
being forced into the tar to a depth of
about 100mm. Corver spoke to
the driver of the truck, probably about three-quarters of an hour
after the collision, but got no
reaction out of him. His impression
was that the driver had fallen asleep behind the steering wheel.
[6] In cross-examination Corver said
his instruction to his driver was to drive directly left of the
yellow line. Corver testified
that from the photographs he took on
the scene it was clear to him that the deceased had driven where
Corver had told him to drive,
directly left of the yellow line.
Corver agreed that the point of impact was in the left lane. The
warning statement of the driver
of the truck was put to Corver.
Corver said that the full front part of the truck hit the full part
of the rear of the trailer.
It was not a glancing blow. He pointed
out with reference to the photographs that anyone can see that the
full front part of
the truck was damaged, not only the left side or
portion thereof. With reference to the driver’s warning
statement where
the driver said:
“When I was about to pass the
tractor I just heard...”
Corver found it unacceptable that a
person could “just hear” something if that object is
directly in front of you and
you have hit it. He found that sentence
in the warning statement strange and suspicious. Corver said the
road there is extremely
dangerous, life-threateningly dangerous. He
said the driver had to stay on the yellow line, not more in and out,
because the driver
cannot see behind him, it is a high trailer.
There were no brake marks.
[7] It was put to Corver that the owner
of the truck, Freek van Tonder would come to testify that drivers who
go to Durban sleep
the whole night and only depart early the next
morning. Freek would say that the truck driver had slept for about
eight hours
the evening before the collision. At the end of
proceedings the first day, at twenty to three, the legal
representative of the
defendant requested that the matter stand over
to the next day because Van Tonder was not at court because he had
not thought the
case would proceed so quickly. The legal
representative said that Van Tonder was a crucially important witness
for him. The next
day when the case commenced plaintiff’s
counsel argued. Not a word was said about Van Tonder. In argument
Mr De Wet requested
the court to draw a negative inference from the
non-calling of Van Tonder, who was by all accounts available. Mr De
Wet said the
inference had to be drawn that Van Tonder could not
support defendant’s case, and that was why he was not called.
The trial
court did not make such inference, or say anything about
the non-calling of Van Tonder.
[8] The respondent called a collision
reconstruction expert, Ms Badenhorst. She said on what she saw
during her visit to the scene
of the collision and looking at the
photographs she could not reject the version of the driver of the
truck as contained in his
warning statement. In cross-examination
she said she could not reject the plaintiff’s version that the
tractor was in the
middle of the left lane and that the truck hit it
from behind. She saw no brake marks on the scene. It was put to her
that the
tractor was not hit on its right-hand side and she responded
that everything indicates that it was hit from behind. She could say
with reasonable certainty that the trailer was hit at the back. The
tractor and trailer were ahead of the truck in the slow lane
when the
impact occurred. If the tractor turned in front of the truck the
truck driver must have seen it. She agreed that the
truck driver
must have seen the tractor and the trailer. She could not say where
the tractor was before the collision:
“My getuienis is dat ek weet nie
waar het die trekker en die sleepwa gery nie. Ek kan nie sê
die trekker en sleepwa
het in die stadige baan gery die heeltyd nie,
ek kan ook nie sê die trekker en sleepwa het in die noodbaan
gery en toe in
die stadige baan inbeweeg nie. Ek kan nie sê
watter een van die twee scenarios is die mees waarskynlikste nie.”
(p 147 lines 6-11).
She could not say what the speed of the
truck was, but only said that the recording did not indicate speeds
above 100 kilometres
per hour.
[9] The respondent handed in the
warning statement of the truck driver. It was hearsay evidence, but
the trial judge allowed it:
“I was from Durban to Gauteng on
my way after passing Harrismith town on N3 road. I had an accident.
I was driving a frontliner
truck with registration number BV 49 BH
GP. On the way I was driving on the slow lane. In front I noticed a
tractor moving on
the yellow lane outside the road and the other
truck was moving on the fast lane parallel to the truck I was
driving.
I did not notice what happened. When I
was about to pass the tractor I just heard a sound or something
hitting. I then tried to
break the truck but I went dizzy and I
noticed my truck jackknifing and the dust came into the truck through
the window that was
opened and I did not see what happened after
that. I only felt people taking me out of the truck and noticed that
the truck is
no longer inside the road. It was at the field. The
yellow lane was not clear.
The road surface was dry, it was during
the day and the road signs were clear and the visibility was clear.”
[10] Mr Wessels, for the respondent in
this court (the truck) stressed the fact that in her statement Mrs
Wessels made no reference
to the motor vehicle between her and the
truck ahead of her. He said this indicated her unreliability. The
question arises why
she would invent the car ahead of her now. There
was no other evidence about the presence or absence of a car between
her and
the truck. She gained nothing by testifying that there was a
car between her and the truck. There is no foundation in the
evidence
to suggest, as Mr Wessels did in argument, that she did not
pay attention to the tractor, although she had seen it, because it
posed no threat to her seeing that the tractor was left of the yellow
line. Mr Wessels says the recording of the speeds of the
truck
showed that the truck drove at a relatively constant speed. As Mr De
Wet pointed out in reply, the speed recordings are
only made every
three minutes. The last moving speed of the truck was recorded at
the crest of the hill, about two and a half
kilometres from the point
of impact. The truck would probably have increased speed on the
downhill, one does not know. The point
is one does not know what the
speed of the truck was the split-second before the collision.
[11] In a criminal case the question
is, generally speaking, whether the commission of the act has been
proved. In a civil case,
on the other hand, the question is, what is
the most plausible and natural inference to be drawn from the
acceptable evidence.
The latter approach is particularly appropriate
in a motor-collision case like the present with a claim and
counter-claim, where
both parties have an onus.
[12] There was no basis for the court
to reject the evidence of Mrs Wessels, the independent witness. The
fact that she did not
mention the white car in her statement was
fully explained by her in evidence. That car was not important. She
did say in re-examination
that the occupants of that car stopped at
the scene. She was adamant that there was no truck in the right hand
lane. She also
said she did not see the tractor and trailer because
they were directly in front of the truck. She would have seen the
tractor
and trailer if they had been left of the yellow line.
[13] The court should have drawn a
negative inference from the non-calling of Freek van Tonder,
especially after it had been put
specifically that he would testify
that the truck driver had slept well the previous night, especially
in the light of Corver’s
evidence that he got the impression
that the truck driver had fallen asleep.
[14] When dealing with hearsay evidence
the court must carefully assess the probative value of the evidence,
taking all the factors
into account (Makhathini v Road Accident Fund
2002 (1) SA 511
(SCA) at 521ff pars [27]-[33]) and decide what weight
to attach to the evidence. The trial judge did not attach sufficient
importance
to the fact that the hearsay statement of the truck driver
was a warning statement, wherein he had to excuse his driving, and
for
that reason possibly had to put a vehicle in the right hand lane.
This is in direct conflict with the acceptable evidence of Mrs
Wessels that there was no such truck. Just as direct evidence is to
be preferred over expert reconstruction evidence (Representative
of
Lloyds v Classic Sailing Adventures (Pty) Ltd
2010 (5) SA 90
(SCA)
par [60]), so the evidence of a witness who was at the scene of the
collision is to be preferred over a hearsay statement
handed in.
[15] The tractor was traveling at about
30 kilometres per hour, and there was the evidence of Mrs Wessels
(undisputed) that the
truck was traveling at such a speed that she
could not overtake it without going over the 120 km per hour speed
limit. Thus the
truck would have approached the tractor and trailer
from behind at a high speed. If the truck driver was not very alert,
he could
easily drive into the back of the trailer as he did.
[16] It is significant that in the
warning statement the truck driver says that the first thing he knew
about a collision was that
he heard a sound as he was about to pass
the tractor. This would mean that the tractor drove into his
vehicle. It is common cause
that the truck hit the trailer from
behind. The tractor or its trailer did not hit the truck. This
statement by the truck driver
indicates that he was not keeping a
proper look-out and is solely to blame for the collision
[17] A driver who hits another vehicle
is on the horns of a dilemma – either he was travelling at an
excessive speed or he
was not keeping a proper look-out (Kruger v Van
der Merwe and Another
1966 (2) SA 266
(A) at 270D-271B). There is no
foundation in the evidence to find, as the trial judge did, that the
truck driver was possibly
faced with a sudden emergency by virtue of
the tractor turning in front of him (Palm v Elsley
1974 (2) SA 382
(C) at 383H). The most plausible version on the probabilities is
that the defendant’s driver was driving too fast or not
keeping
a proper look-out. (Govan v Skidmore
1952 (1) SA 732
(N) 734 C-D;
Ocean Accident and Guarantee Corporation Ltd v Koch
1963 (4) SA 147
(A) 159C - D; AA Onderlinge Assuransie-Assosiasie Bpk v De Beer
1982
(2) SA 603
(A) 614G – 615B.
ORDER
1. The appeal succeeds with costs.
2. The cross appeal is dismissed with
costs.
3. The order of the court a quo is
replaced with the following:
“1. Plaintiff’s claim
succeeds. It is found that the defendant’s truck driver was
100% negligent and that defendant
is liable for such damage as the
plaintiff may prove.
2. Defendant is directed to pay the
plaintiff’s costs.
3. The counterclaim is dismissed with
costs.”
A. KRUGER, J
I agree.
S. NAIDOO, J
I agree.
L.B.J. MOENG, AJ
On behalf of appellant: Adv P.J.T.
de Wet
Instructed by: Symington & De
Kok
BLOEMFONTEIN
On behalf of the respondent: Adv E
Wessels
Instructed by: Alberts Attorneys
BLOEMFONTEIN