About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 119
|
|
LNS Transport CC v Leopard Line Haul (Pty) Ltd t/a Elite Line Haul and Another (4870/2011) [2013] ZAFSHC 119 (27 June 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4870/2011
In the matter between:-
LNS TRANSPORT CC
.................................................................
Plaintiff
and
LEOPARD LINE HAUL
(PTY) LTD t/a
ELITE LINE HAUL
..........................................................
First
Defendant
AARON MALESA
......................................................
Second
Defendant
_____________________________________________________
HEARD ON:
18, 19 JUNE 2013
_____________________________________________________
JUDGMENT BY:
KRUGER, J
_____________________________________________________
DELIVERED ON:
27 JUNE 2013
_____________________________________________________
[1] This case concerns a
collision between two heavy vehicles, which occurred at 07h00 on 26
July 2011 on the N1 approximately 1,5
kilometres south of
Springfontein, Free State Province. Merits and quantum were separated
and this trial only concerns the negligence
of the respective
drivers. Course and scope is not in dispute.
[2] A camera mounted in
defendant’s vehicle recorded 12 seconds around the collision –
eight seconds before and four
seconds after. The camera is on all the
time and if an incident occurs, it stores this footage. A compact
disk, compatible with
Word, containing this recording of the
collision was handed in as exhibit 1. The video is common cause
between the parties. It
is called a drive cam video clip.
[3] Four vehicles
feature:
Plaintiff’s
vehicle, a truck-tractor, (horse) with a semi-trailer (“LNS”).
Defendant’s
vehicle, a truck-tractor with two semi-trailers (“UTI”,
or “Elite”).
A stationary vehicle
half-off the road in defendant’s direction of travel (also a
truck-tractor and trailer of Value Logistics
(“VALUE”).
A vehicle travelling in
plaintiff’s direction of travel, which plaintiff’s
vehicle was overtaking at the time of the
accident, the Time Freight
vehicle (“TF”).
[4] As to the scene of
the collision:
Plaintiff’s
vehicle, LNS, was travelling in the direction from Johannesburg to
Cape Town direction.
Defendant’s
vehicle, UTI, was travelling from Cape Town direction to
Johannesburg direction.
On the northern
(Johannesburg) side there is a railway bridge, about 250 metres from
the point of impact and from the bridge the
road inclines downward.
There was no evidence of the angle of decline, but it is common
cause that the plaintiff’s vehicle
was travelling downhill and
defendant’s uphill.
There is only one lane
for traffic in either direction.
There is a metal barrier
on both sides of the road.
There is a solid white
centre line for vehicles travelling from Cape Town to Johannesburg,
as defendant’s vehicle was doing.
There is a broken line
for vehicles travelling from Johannesburg to Cape Town, as
plaintiff’s vehicle was doing.
The VALUE vehicle was
stationary on the road with its left wheels on the left side of the
yellow line and its right wheels protruding
onto the lane, blocking
about half of that lane. The VALUE vehicle was probably 22 metres
long (the maximum length allowed).
[5] As to facts relating
to the accident:
The accident occurred at
07h00 on 26 July 2011.
It had been snowing and
snow can be seen next to the road and at some places on the road.
There was ice on the
road. Plaintiff’s driver, Mr Ferreira, testified that he felt
the ice on the road when he stepped out
of his vehicle after the
collision.
The left front sides of
the two truck-tractors hit each other.
Defendant’s rear
trailer was on its incorrect side of the road after the collision.
[6] A member of factors
contributed to the collision:
The ice on the road.
Plaintiff’s driver, when asked in his evidence in chief what
caused the collision, said the ice on
the road.
The stationary VALUE
vehicle, which the defendant’s vehicle was in the process of
overtaking when the accident occurred.
The slowing down of the
TF vehicle, which caused plaintiff’s driver to pass it on the
right and attempt to get through the
gap between the TF vehicle and
the stationary vehicle.
Defendant’s
vehicle overtaking the VALUE vehicle at the time plaintiff’s
vehicle was overtaking the TF vehicle, thereby
taking up the gap
which plaintiff’s vehicle needed to pass the TF and VALUE
vehicles.
[7] Two witnesses
testified for plaintiff: its driver, Mr G.P. Ferreira and an accident
reconstruction specialist, Ms Wilna Badenhorst,
as an expert witness.
[8] Ferreira, the driver
of the plaintiff’s vehicle, testified he has been driving heavy
vehicles since 1978, for 35 years.
He slept for six and a half hours
at Bloemfontein and left at 05h00 in the direction of Cape Town (Port
Elizabeth). He travelled
behind the TF vehicle for about 100
kilometres. His vehicle’s lights were on. About 30 metres
before the top of the railway
bridge, Ferreira saw that the TF
vehicle reduced speed. Ferreira also slacked down. When Ferreira went
over the top of the bridge,
he noticed that the TF vehicle had
reduced a great deal of speed and he saw the TF vehicle was going to
stop. Ferreira applied
brakes. He testified that the ABS brakes skid
on ice and he had to apply brakes on and off. His truck began to
slide. He realised
that he was going to hit the TF vehicle and
swerved to the right. He saw the gap between the TF vehicle and the
stationary VALUE
vehicle and wanted to go through it. Ferreira was
adjacent to the TF vehicle when he saw the VALUE vehicle for the
first time.
[9] When he was near the
defendant’s vehicle, defendant’s vehicle was on its right
side (incorrect side) of the road
and at that point in time the
defendant’s vehicle wanted to turn back into its correct lane.
Ferreira said that if the defendant’s
vehicle did not turn
left, he would have passed it. Ferreira said the point of impact was
next to the rear end of the stationary
VALUE vehicle.
[10] Asked what the cause
of the collision was, Ferreira said the ice on the road. Ferreira saw
defendant’s vehicle for the
first time when he came out from
behind the TF vehicle, which is a high and broad vehicle. Ferreira
said he was not aware of any
vehicle behind him.
[11] In cross-examination
Ferreira said his normal speed is 80 km/h, but because of the snow
and wet road he travelled at 70 km/h.
Asked when his vehicle began to
skid, Ferreira said when he came to the top of the hill and saw that
the TF vehicle was going to
stop. Then, as he put it, he saw there
was a problem. Ferreira said if the vehicle skids downhill on ice,
its speed increases.
He agreed that he should be able to get his
vehicle out of a skid and said that defendant’s vehicle closed
the gap he wanted
to get through. He was travelling at 30 km/h when
he hit defendant’s vehicle.
[12] Ferreira agreed that
the TF vehicle used its “retarder”, which is a device
which reduces speed using the gears.
Ferreira testified that his
vehicle does not have a retarder; it has a Jacobs, which reduces the
engine’s capacity. One uses
the Jacobs when going down a pass;
it then causes the truck to reduce speed. He explained that the
Jacobs blocks the rear wheels.
[13] When it was put to
Ferreira that he should not have overtaken the TF vehicle, he replied
that if your vehicle skids, you do
not have control over it. He again
said that the ice on the road caused the collision. When it was put
to Ferreira that a driver
should be able to stop without hitting a
vehicle in front of him, Ferreira said, not on ice. He agreed that he
could not stop his
vehicle safely at that stage. He said it was not
because he was not paying attention, but when his truck skidded, he
was too near
the TF vehicle.
[14] Asked how far his
vehicle moved forward after the collision, Ferreira said four metres.
He said the front axle of his vehicle
broke and caused the gouge in
the surface of the road, which can be seen on photo B3.
[15] Plaintiff wanted to
call Ms Wilna Badenhorst as an accident reconstruction expert. Mr
Dobie, on behalf of defendant, objected
saying her evidence was
inadmissible, because she did not give reasons for her opinions in
her report and was not permitted to
answer the ultimate question of
liability, which is for the court to decide. After hearing argument I
ruled that she could be called.
[16] Ms Badenhorst is an
accident reconstruction specialist and has been involved in accident
reconstructions since 1996. She has
done several courses, also in the
USA. Her report was handed in as exhibit “D”.
[17] In her evidence in
chief she was asked on certain aspects:
(i) Where was defendant’s
vehicle immediately prior to the collision?
She said it was in
plaintiff’s lane of travel.
(ii) What was plaintiff’s
speed at the time of the collision?
She said a speed of 30
km/h fits in with the damage to the vehicles and the fact that
plaintiff’s 25 ton vehicle was moving
downhill.
(iii) The TF truck cabin
appeared to be bouncing just prior to the collision, which seems to
indicate sharp braking.
She agreed with this
statement.
(iv) Plaintiff’s
driver says he could not see defendant’s truck from behind the
TF truck.
She said this is possible
because the TF vehicle is higher than the VALUE vehicle.
[18] In cross-examination
Ms Badenhorst agreed that she never visited the scene, nor did she
take any measurements. She said defendant’s
vehicle would not
have moved very far after the accident; it would have swung back. She
agreed that the defendant’s vehicle
was completely in its right
hand lane before the collision. As to the up- and down movement of
the TF vehicle cabin immediate before
the collision, Ms Badenhorst
said it was possibly caused by acceleration, but more probably it was
due to braking. As to speed,
Ms Badenhorst testified that a vehicle
travelling at 60 km/h does 16,7 metres per second. Thus a vehicle
travelling at 60 km/h
would travel 133,6 metres in eight seconds. As
to stopping distance, on a wet road, at 80 km/h, plaintiff’s
vehicle would
take 63 meters to stop. On ice it can go up to 110
metres. Ms Badenhorst agreed that from the top of the hill to the
point of impact
was 250 meters.
[19] Defendant’s
driver, the second defendant, Mr Malesa, testified through an
interpreter. He was driving in the direction
to Johannesburg. As he
approached the hill he saw the stationary VALUE truck, which he had
to pass. He realised there was a problem.
He saw the TF truck
approaching, about three truck lengths away. He reduced speed
drastically when he approached the VALUE truck.
He flashed to the TF
truck to ask what he should do. The TF truck flashed and reduced
speed as if to stop. The TF truck again flashed
to Malesa to indicate
that he should pass. Malesa proceeded to pass the VALUE vehicle. When
Malesa’s vehicle’s right
wheels were right of the centre
line, he saw plaintiff’s vehicle overtaking the TF vehicle.
[20] In cross-examination
Malesa said he is 53 years old; has been a driver for 20 years. His
vehicle had two trailers. It was put
to him that about 500 metres
before the point of the collision, there is a curve in the road, with
which he agreed. Malesa said
he was in the middle of the road when he
saw plaintiff’s vehicle for the first time; he was passing the
VALUE vehicle. When
Malesa started going to the middle of the road,
the TF truck was busy stopping. The TF truck was stopping because it
gave Malesa
a chance to pass the VALUE truck.
[21] At the point of
impact, defendant’s truck had passed the rear of the VALUE
truck. Malesa refused to agree that at that
time of the collision his
entire vehicle was in the right hand lane. He agreed that people on
the road flash their lights for different
reasons.
[22] Manape Morakesi was
the driver of the TF vehicle. He was travelling in the direction
Johannesburg to Cape Town. After he went
over the railway bridge he
saw the stationary VALUE vehicle ahead of him, facing the
Johannesburg direction. The defendant’s
UTI truck, which he
described as the Elite truck, went to the right, flashed its lights
for Morakesi, asking for space to pass
the VALUE truck. Morakesi
flashed back and reduced speed. He had been travelling at less than
50 km/h before he slowed down. He
gave way so that the Elite truck
could pass. The Elite truck was in the middle of the road, so as to
pass the VALUE truck. Then
Morakesi saw the plaintiff’s truck
coming from behind at speed. He was afraid that truck might collide
with him and swerved
to the left.
[23] In cross-examination
Morakesi said he did not see the actual collision between the two
vehicles. At that time he was confused
and surprised by plaintiff’s
truck passing him. It was put to Morakesi that the defendant’s
truck was wholly in his
lane before the collision and that he braked
for defendant’s vehicle to avoid defendant’s vehicle
hitting him. Morakesi
denied that defendant’s vehicle was
wholly in his lane before the collision and that he braked for
defendant’s vehicle.
[24] I accept that
Morakesi was mistaken in his denial that the defendant’s truck
was wholly in his lane before the collision.
The reason is that
Morakesi’s attention was on plaintiff’s truck passing
him. I further accept that his avoiding action
was because of
plaintiff’s vehicle passing him, not because of defendant’s
vehicle coming from the front. His evidence
was that he and
defendant’s driver had flashed their lights and he allowed
defendant’s vehicle to pass the VALUE truck.
No reason was
suggested why Morakesi would give false evidence to favour the
defendant. Morakesi is an independent witness. Mr
Venter, for
plaintiff, said that Morakesi made a mistake in his evidence by
saying that the front part of his truck had not passed
the stationary
VALUE truck at the time of the collision, because on the video clip
it is clear that the front of the TF truck was
adjacent to the VALUE
truck immediately prior to the collision. Morakesi is probably
mistaken as to the exact position of his vehicle
immediately before
the collision. He did say that immediately before the collision his
attention was on the plaintiff’s truck
overtaking him and he
had to take avoiding action and swerve left; he did not see the
collision.
[25] Morakesi’s
evidence was clear and satisfactory. He confirms the evidence of
defendant’s driver that they flashed
their lights to allow
defendant’s truck space to pass the stationary VALUE truck.
[26] Elias Sibizo was the
last witness who testified. He was called to show that he was able to
stop safely behind the TF truck.
He was driving in the same direction
as plaintiff’s truck, but Ferreira, the driver of plaintiff’s
truck, was unaware
of him. On the morning of the trial, before he
testified, he informed his counsel that he had spoken to Ferreira at
a Stop/Go about
ten kilometres before the scene of the collision and
that Ferreira told him that he had been informed that there was a
breakdown
near the railway bridge and that he should be cautious.
Ferreira was recalled and he denied that there was a Stop/Go and he
denied
speaking to Sibizo. In my view, Sibizo is possibly mistaken
and he possibly confused Ferreira with another person he spoke to. I
attach no weight to this bit of evidence about Ferreira’s
alleged notice of a breakdown. It was not disputed that Sibizo
was
able to stop safely behind the TF truck.
ANALYSIS OF
EVIDENCE
[27] The negligence of
Ferreira, plaintiff’s driver, appears from his own evidence. He
drove behind the TF truck for 100 kilometres.
He saw water coming out
of the wheels of the TF truck. He could see the snow next to the
road. He had 35 years’ experience
as a heavy vehicle driver. He
saw the TF truck in front of him slowing down, but did not fall back
far enough as he went over the
railway bridge. On the downslope after
the crest of the bridge his vehicle started to skid. He managed to
control the skid by passing
the TF truck. Otherwise he would have hit
the TF truck from the rear. It was his duty to regulate his speed so
that he could pull
up before hitting the TF truck in front of him. He
was on the horns of a dilemma, because either he was not keeping a
proper look-out
or else he was driving too fast in the circumstances.
In either case he was negligent (
Thornton and Another v Fismer
1928 AD 398
at 407 per Solomon CJ).
[28] Ferreira’s
evidence was that the ice caused the collision. If his truck had not
skidded, there would have been no collision.
He should, in the
circumstances, have been driving at a speed no greater than admitted
of him pulling up his truck in such way
as to avoid its coming into
contact with the back of the TF truck or being forced to pass the TF
truck, not knowing what was ahead
(
Goldstein v Jackson’s
Taxi Service
1954 (4) SA 14
(N) at 15G – H; 16A –
B). The fact that Ferreira’s truck skidded indicates that he
was travelling too close to
the TF truck ahead of him (17A). Ferreira
knew that his view of the road ahead of the TF truck was obscured
because of the large
dimensions (height and width) of the TF truck,
because he had been travelling behind the TF truck for 100
kilometres. The conditions
on the road did not create a sudden
emergency. Sudden emergency was never alleged by the plaintiff or
Ferreira. As an experienced
driver Ferreira should have realised that
the stopping and road holding capabilities of his truck were
diminished by the wet road
in snowy conditions. He was negligent in
only slowing down from his initial 80 km/h to 70 km/h, especially on
the downward slope
after the bridge, when he was so close to the TF
truck that he could not see past it and was unaware of the stationary
VALUE truck
and defendant’s vehicle.
[29] Defendant’s
driver was also negligent although not to the extent of Ferreira.
Defendant’s driver crossed a solid
barrier line. He should have
made sure that it was safe for him to do so. Defendant’s driver
accepted the indication from
the TF truck that he could pass the
stationary VALUE truck. The TF truck driver was not aware that
plaintiff’s truck was
so close to him, or that Ferreira would
attempt to overtake, but by acting on the assumption that it was safe
to overtake on a
blind rise, defendant’s driver was negligent.
[30] As to the expert
evidence, courts generally prefer direct testimony to that of experts
(
Stacey v Kent
1992 (4) SA 495
(C) at 497D – E).
In this case the expert contributed little. The facts make it clear
that both Ferreira and defendant’s
driver attempted to get
through the same gap at the same time, where there was place for only
one of them. Had Ferreira been further
back behind the TF vehicle, Ms
Badenhorst said his view would have been less obstructed and he would
have been able to see defendant’s
truck. The wet conditions
should have warned Ferreira to be particularly careful with regard to
the speed with which he went over
the bridge, a blind rise. He saw
the water coming out of the TF truck’s wheels and should have
realised the road was wet
and slippery (
Hammar and Another v
Nunes
1976 (2) SA 785
(R, AD) at 787H). Ferreira did not
leave sufficient distance between his truck and the TF truck ahead of
him. He was only able
to avoid the risk of hitting the TF truck from
behind, which risk he created by his own conduct in being too close
to the TF truck,
by passing the TF truck without being aware of what
was ahead of him in the road. That constituted serious negligence
(
Kruger v Van der Merwe and Another
1966 (2) SA 266
(A)
at 273C – E). A driver in Ferreira’s position must
foresee that the traffic ahead of it, for whatever reason, can
suddenly start moving slower and it is his duty to regulate his speed
in such manner as to not collide with the vehicle in front
or have to
pass that vehicle without having ascertained that it is safe to do so
(
U & SWA Insurance Co Ltd v Bezuidenhout
1982 (3)
SA 957
(A) at 965B – C). Ferreira’s negligence was much
greater than that of defendant’s driver. Ferreira passed the
TF
truck while he was trying to control the skid. He was not overtaking;
he was skidding past the TF vehicle. Defendant’s
driver, on the
other hand, had no reason to suspect that there was a vehicle hidden
behind the TF truck, which had indicated to
him that he could pass
the VALUE truck. In my view, Ferreira was 80% to blame for the
collision and defendant’s driver 20%.
[31] As to the
locus
standi
and rights in respect of the vehicles involved in the
collision, plaintiff admitted defendant’s right to claim in
respect
of its truck-tractor and both trailers. Plaintiff only
admitted defendant’s right to claim in respect of its
truck-tractor,
not its trailer and Mr Venter, for plaintiff, conceded
that plaintiff was not entitled to any damages in respect of its
trailer.
ORDER
1. Plaintiff is
responsible to pay 80% of defendant’s proven or agreed damages
and first defendant is liable to pay plaintiff
20% of its proven or
agreed damages, excluding damage to its trailer.
2. Plaintiff is
responsible for 80% of defendant’s costs and defendant is
responsible for 20% of plaintiff’s costs.
____________
A. KRUGER, J
On
behalf of plaintiff: Adv A.J. Venter
Instructed
by:
Alberts
Attorneys
BLOEMFONTEIN
On
behalf of first and
second
defendants: Adv G.H. Dobie
Instructed
by:
Webbers
Attorneys
BLOEMFONTEIN
/spieterse