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[2013] ZAFSHC 135
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Obie Logistics (Pty) Ltd v Mnqayana (3666/2011) [2013] ZAFSHC 135 (29 July 2013)
FREE
STATE HIGH COURT. BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No
: 3666/2011
In
the matter between:
OBIE
LOGISTICS (PTY) LTD
..........................................................................
Plaintiff
and
SIKHOLWANGUYE
MAXIM MNQAYANA
..................................................
Defendant
CORAM:
R. M.SEPATO, AJ
JUDGE:
R. M. SEPATO, AJ
HEARD
ON:
29 MAY 2013
DELIVERED
ON:
25 JULY 2013
INTRODUCTION
[1]
This is an action-for damages arising out of a collision between
plaintiff’s truck and defendant’s stationery bus
along
the N5, between Kestell and Harrismith, on the 13
th
May 2011 at about 03h00 a.m.
The
parties having agreed that the merits be separated from the quantum
of damages, I agreed and the case accordingly proceeded
on the merits
only.
FACTS
[2]
On the 12
th
May 2011 at about 14h00 - 15h00 p.m. the defendant’s bus
driver, Mr Lephote was travelling on the N5 towards the direction
of
Kestell - Harrismith. At about 8 km before reaching Harrismith, he
experienced a mechanical problem with the bus to the extent
he could
not drive it further on. He then pulled off the road and parked the
bus on the shoulder of the road. He contacted the
defendant, being
the owner of the bus who promised to attend the scene.
Mr
Lephote then placed a triangle behind the bus and left the scene. The
defendant Mr Mqayana testified also, essentially corroborating
the
driver as far as the above facts are concerned. He confirmed that
upon his arrival at the scene the bus was parked off the
road and a
triangle had been placed behind it, about 45 metres away.
According
to him, he left the bus at the scene at about 15h30 p.m, still
daylight, with two young men to take care of it as there
were some
valuables inside it. He was satisfied that it was out of traffic’s
carriageway.
[3]
He was later on awakened by a call at about 03h00 a.m. the following
morning and informed that the bus had been involved in
an accident.
He got to the scene. There he found his bus having fallen onto its
side on the left side of the road and was damaged.
He further saw the
plaintiff’s truck that was also damaged, standing on the edge
of the road and having further collided
into the metal barriers that
were there.
According
to him, he was too traumatised and did not make any further
observations there but left the scene. His driver never returned
to
the scene. The two young men had been inside the bus when the
collision occurred, and did not witness it.
[4]
The plaintiffs truck driver, Mr Tladi testified that at about 03h00
a.m. on the 13
th
May 2011 he was travelling along the N5, on his way to Durban, from
Namibia, transporting 21 ton of sheep carcasses for the export
market. His truck consisted of the horse and a trailer with a
refrigerator in which the carcasses were hanging on the roof thereof.
[5]
He had emerged from a slight bend and was travelling at 90 km per
hour. According to him, he was familiar with the road, a single
carriageway two - way road and was narrow. It was still dark and the
road was unlit. It was generally a busy road, and was busy
at that
hour. As a result, he was travelling more to the left side of his
lane towards the yellow line but was careful not to go
over it as he
knew he was prohibited from doing so. According to him, he was trying
to allow oncoming trucks more space as they
would be passing him.
[6]
At about 280m away from the scene of the accident, a vehicle
travelling in the opposite direction emerged from the front with
its
head lights on bright. He immediately dipped his truck’s lights
with the hope that the other driver wolild do the same.
However, the
latter did not but kept on coming until the vehicles passed each
other with the lights still on bright. These bright
lights had a
blinding effect on him. Immediately after the said vehicle had passed
him; he saw a chevron in front of him in his
carriageway. He applied
brakes but did not swerve as he feared that the weight of his load
would overturn the truck. Unfortunately
the said chevron was too near
to be avoided as the truck slid and hit the bus on which the chevron
was. Until then, he was not
aware that there was a bus on the road.
[7]
According to Mr Tladi the rear right corner of the bus was in his
lane, it had encroached over the yellow line of the tarmac.
Besides
the chevron, he had not seen any triangle nor any other warning
before that there was a stationery bus protruding in his
lane ahead
of him. He was only about 40 metres away from the bus when he saw its
chevron. His truck’s left front corner had
connected with the
rear right corner of the bus, causing the bus to tip over and fall
off further onto the veld on the left. His
truck’s left front
wheel was damaged but the truck continued to slide until it was
stopped by some barriers alongside the
edge of the road, still on the
left hand side. The refrigerator was also badly damaged with some of
the carcasses thrown out. The
bus was damaged at rear right corner.
[8]
The plaintiff further called a witness Mr Grobbelaar, a Forensic
Engineer-Automotive, as an expert. He testified that during
February
2013 he visited the scene of the accident with the view of
reconstructing same. He had been placed in possession of certain
photos taken sometime before; depicting the alleged scene, the
vehicles involved in the collision, and some marks on the road
surface. Mr Tladi was also present, who then made certain pointings
to him, in particular in relation to where he was when he first
saw
the bright lights of the incoming vehicle, where he was when he
noticed the chevron and where he collided with the bus. Mr
Grobbelaar
then took measurements of the said points, made own observations,
took photos and also used the other photos to draw
a sketch plan and
own conclusions.
[9]
The salient points of which are as follows:
Mr
Tladi first saw the bright lights of the oncoming vehicle at about
282m away from point of impact; and that just after 23m
of passing
that vehicle he then saw a chevron, which was only about 40m away in
his carriageway.
He
was still driving at about 90km/h.
He
therefore had only 0.1 seconds available to avoid the collision
whilst in average, he needed about 1.6 seconds.
The
emergency lane where the bus had stopped was only about 1.9m whilst
the width of the bus was about 2.5m.
That
therefore, if the bus was parked off the road with its left wheels
on the left edge of the road, its right side would have
projected
into the truck’s carriageway by approximately 0.6m.
[10]
Under cross-examination Mr Grobbelaar then added that given the width
of the bus, there was no way it could not have encroached
over the
yellow line into the truck’s carriageway, because the gravel
part after the edge of the tar was only 1 metre and
there was a steep
embankment which would have caused the bus to tip off onto its side.
He referred to a photo showing Mr Tladi
standing in some grass on the
left side of the road with only his knees visible to show the depth
or steep of the embankment. That
is photo 8 taken by himself,
attached to his affidavit.
[11]
According to him, he could not determine the exact point of collision
because he found Mr Tladi’s version thereon to
be inconsistent
with his own observations and conclusions, in particular, based on
certain marks and/or debris he saw on photo
30, which was apparently
taken after the accident. His final conclusion was that, Mr Tladi,
after being blinded by the oncoming
vehicle, operating that kind of
truck with its load could not have been able to manoeuvre a safe
swerve to the right to avoid hitting
the bus which was only 40 metres
away driving at 90 km/h, but that he needed more time than he had.
[12]
Lastly, he stated that had a warning triangle been placed at about 45
metre away from the bus, the truck’s headlights
could have
illuminated its reflective indicators at least at about 40 metre away
and Mr Tladi would have been able to apprehend
the danger ahead of
him and thus avert the collision.
THE
ISSUES
[13]
The plaintiff alleged that the defendant was negligent in that the
bus, as it was left, caused an obstruction in the road and
was left
without any proper warning to other road users and that, whether
there was a triangle placed beTiind it or not, the defendant
was
reasonably required to have done more than that , for instance, by
putting on the hazards of the bus, having a person with
reflectors on
or a torch warning other road users of the obstruction, especially
because it was still dark and the road was unlit.
[14]
According to the plaintiff, the defendant should be held solely
liable for the accident and consequent damages and that no
apportionment of liability should apply.
An
extensive reference to case law was made by the plaintiff and
availed
copies thereof to the court, for which am thankful.
[15]
The defendant’s case is firstly that the bus was completely off
the road, no portion thereof had encroached onto the
truck’s
carriageway as its right rear wheels were just next to the yellow
line on the left and not over it.
[16]
Secondly, that Mr Tladi was the negligent party in that he failed to
reduce speed from 90 km/h despite being blinded by the
bright lights
of the oncoming vehicle and also despite the fact that he must have
been tired after long hours of driving, without
having had a proper
sleep, except at intervals only.
Thirdly,
that consequently, he had ventured too much to the left, out of the
yellow line without keeping a proper lookout and hit
the bus which
had not been in his way despite a triangle having been placed there.
Fourthly
that, should the court find that the bus had protruded too much onto
the truck’s carriageway, that would be 50/50
contributory
negligence resultingHn the apportionment of liability.
THE
LAW
[17]It
is trite law that liability based on negligence arises if:
“
(a)
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.”
As
per Holmes JA:
Kruger v
Coetzee
1966 (2)
SA
428
(A)
at
430E-G.
[18]
The question therefore arises whether a reasonable man in the
defendant’s situation should have foreseen that leaving
the
bus in the position it was would cause possible injury and
patrimonial loss to another person or not. The plaintiff alleged
that the bus constituted a hazard or obstruction to other road users
because its right rear wheels had encroached over the yellow
line
into the truck’s carriageway. The two defendant’s
witnesses denied this, but admitted that the road was not
lit,
neither was the bus lit and that it had no hazard lights on, nor was
there someone there with a reflector to make it visible.
Of
significance the defendant argued that the bus had been at the same
spot for about 12 hours and it was an area which was frequently
passed by both the police and traffic officials and that they could
not have left it parked like that for all that time, had
it
constituted an obstruction.
[19]
Mr Grobbelaar disputed the alleged point of impact which was pointed
out by Mr Tladi, the only witness to the accident. This
then raises
the question whether the bus right rear wheels were positioned as Mr
Tladi alleged they were; that is in his carriageway
thereby
constituting an obstruction. This I pose because the point of impact
could only have been where the bus was found stationary
before the
collision. The paginated index contains photos A - J and 1-8 none of
which is capable of showing the actual point
of impact at all.
[20]
Both the defendant’s witnesses made indications of the
positioning of the right rear wheels of the bus on the photos
as
having been on the tarmac but definitely not beyond the yellow line.
They however differed as to the actual distance thereof,
with one
placing the wheels just on the edge of the tarmac, the other placing
them a bit further in the tarmac, yet not beyond
the yellow line.
[21]
For that reason, the plaintiff’s counsel argued that both were
unreliable witnesses, either one being dishonest whilst
the other
could have been mistaken. He asked me to prefer the plaintiffs
driver’s version over theirs.
The
defendant’s counsel argued that, the accident having occurred
two years ago, it was possible that the witnesses could
be mistaken
in their recollection and reconstruction of the scene, and that I
should not necessarily dismiss their version as
argued.
[22]
Mr Grobbelaar repeatedly referred to photos 30 and 31 which
according to him, show marks, arguably caused by the truck’s
damaged front left wheel as it slid after colliding with the bus.
According to him , these marks start a bit way beyond a piece
of a
metal panel apparently belonging to the bus, on the right side of
the yellow line, thereby suggesting that the collision
must have
occurred beyond the yellow line in the truck’s carriageway and
way behind where the bus is depicted to have fallen
after the
impact.
[23]
The said photos do show some colourations or colour variations.
However, I fully agree with Mr Heymans for the defendant
that they
are as a matter of fact, not of such a good quality to can clearly
depict whether the colourations therein are scratch
marks, oil or
soil debris or even colouration from the lens of the camera for that
matter. Mr Tladi testified that he was not
present when those photos
were taken and that he therefore cannot verify what exactly those
colourations represent as he could
not remember observing any such
after the collision before he went to hospital. As a result we are
left to speculate thereabout.
REASONS
AND FINDINGS
[24]
The defendant admitted that the bus had encroached onto the tarmac,
albeit only in the emergency lane. Both parties having
admitted that
slow moving or heavy vehicles like the plaintiff’s truck do
often drive or move in the emergency lane especially
at night or in
times of heavy traffic flow, I find that a diligens paterfamilias in
the defendant’s circumstances, ought
to have reasonably
foreseen that leaving the bus parked in that manner would constitute
a hazard and cause patrimonial loss to
other road users who may have
had to use the said emergency lane like the plaintiff’s truck
driver.
[25]
The second leg of the inquiry then kicks in, that is whether the
defendant having realised that harm might ensue, took any
reasonable
steps to avert it. Almost all of the decided cases which the
plaintiff referred me to and sought to rely on, illustrate
various
scenarios of a vehicle colliding into a stationary one with or
without proper prior warning measures put in place for
other
motorists, be they oncoming or from behind, during the day or at
night, as well as the various courts’ decisions
therein which
are also different.
[26]
Remarkably, all these decisions revolve around one and the same
firmly-rooted legal principle which has since been set out
in
Kruger’s case referred to above , namely that the question
'whether a diligens paterfamilias in the position of the
person
concerned would take any guarding steps at all and, if so, what
steps would be reasonable, must always depend upon the
circumstances
of each case. No hard and fast basis can be laid down. Hence the
futility, in general, of seeking guidance from
the facts and results
of other cases.’
[27]
Having said that, I proceed herein. The defendant’s bus broke
down at about 14h00 pm and was left at the scene until
the following
morning at 03h00 am when the collision occurred, with only a
triangle as a warning to other road users. According
to the
defendant, Mr Mnqayana, he only knew that the law required him to
place a triangle behind a broken vehicle when it is
being left on
the road, nothing further.
[28]
On the same breath, he was adamant that his bus did not pose any
danger to other road users at all especially because no
accident
occurred there in the 12 hours it had been parked until the one
caused by Mr Tladi, and further because it had been
parked in an
area which was frequently passed or patrolled by the police and
traffic officials who would certainly have taken
steps about it in
the event it had obstructed traffic.
[29]
If Mr Mnqayana and his driver are to be believed that they had
placed a triangle behind the bus at 15h00 pm when they left
the
scene, then it can safely be assumed that they did appreciate that
there was a need to warn other road users of the stationery
bus
ahead in their way. The said triangle was only about 60cm high and
could, admittedly be ran or knocked over by vehicles.
Yet that was
all they did.
[30]
Perhaps that was because it was still daylight then, without
implying that that would have been sufficient warning then,
but
leaving the bus there the whole winter’s night without any
further and effective warning was negligence on their part.
They
admitted under cross examination that they could have put and left
the bus’ hazard lights on but said that would have
flattened
its battery. On the same breath, Mr Mnqayana further admitted that
he could have ran the engine to keep the battery
charged or even
provided the two lads he left in the bus with some form of
reflectors including a torch, to stand outside the
bus and waive
same in warning to other road users coming on. All he could say was
that he did not know that he was supposed to
do so.
[31]
Based on all the above, I find that the defendant herein ought to
have taken more steps than the one he took in order to
avert the
harm that eventually ensued as a result of the obstruction he had
created on the road .
[32]
On the other hand, the plaintiff cannot be said to be without any
fault herein. Mr Tladi emerged from a bend driving a heavy
laden
truck at 90km/h, at night or in the darkness of the early morning.
For some time, at least for more than 250m he was blinded
by the
lights of an oncoming vehicle but, he conscientiously failed to
reduce speed because he felt he could see the road clearly,
instead
he kept more to the left to give more way to other oncoming trucks.
[33]
He admitted that the maximum speed limit for his truck was 80km/h
but added that he was allowed a grace of a further 10km/h.
He
had been a truck driver for at least twenty years then. He said he
was well rested and on the alert as he had slept a total
of eight
hours in the past 24hours. He knew that road very well as he
frequently used it, a busy and a narrow one.
[34]
Both parties agreed that the collision occurred on a straight and
flat tarmac road, which was dry and unlit. The photos at
the least
confirm this. Driving a heavy laden truck at 90km/h in the dark, on
a busy road, certainly amounts to negligence, especially
emerging
from a bend. There is nothing regarding the built of the road, to
suggest what would have caused the truck to automatically
reduce its
speed on its own, progressively so as Mr Tladi casually suggested
under cross examination, if he himself did not apply
the brakes upon
being blinded.
For
him to have further continued at that speed despite being blinded by
oncoming bright lights, knowing that there could be hazards
on the
road only increases Mr Tladi’s blameworthiness.
[35]
The photos, even though not so clear, do however give an idea of the
extent of the damage to the vehicles, particularly the
truck. The
bus was allegedly hit on its rear right corner by the truck. The
photos depict the bus lying on its right hand side,
after the
impact. Even though one cannot see the damages thereto, page one of
the trial bundle handed into record, is a quotation
on the repairs
of the bus in the amount of R351 234 00. So it was damaged.
[36]
Regarding the truck, there are ample photos that clearly show how
badly the truck’s head itself that is the horse,
as well as
its trailer and the refrigerator were damaged. Photos one - four in
bundle B on record show the left front sides of
the horse and
trailer as completely crashed with the horse tipping onto its right
side. Photos five, thirteen and others show
further damages to the
right side of the truck as well as the refrigerator and sheep
carcasses lying outside.
[37]
The fact is, the plaintiff’s truck was more damaged than the
bus, and the plaintiff has not been able to prove that
all the
damages to the truck were solely caused upon its connection with the
bus. Instead, Mr Tladi testified that upon seeing
the chevron he
applied the brakes but the truck slid and hit the bus, it then
continued sliding until it hit and was stopped
by the metal barriers
further on, on the side of the road. That simply shows how strong
the impact was and how unmanageable the
truck was for Mr Tladi.
[38]
On the basis of above, I find that Mr Tladi ought to have reasonably
foreseen that in the event of any emergency such as
the one he
eventually found himself in, the particular truck would not easily
come to a halt when brakes were applied, nor would
he easily be able
to manoeuvre the truck into a safe and swift swerve so as to avert
harming the other road users too. Further
that he should have
therefore driven at a lower speed or actively reduced the speed upon
being blinded. Accordingly, I find that
Mr Tladi acted negligently
and therefore contributed to the collision and the damages suffered.
[39]
This brings in the question of the extent of the apportionment of
the liability of the two drivers . Even though the defendant
had
left the obstruction on the scene for about twelve hours without
proper warning to others, I find that Mr Tladi also, given
his vast
experience particularly as a licensed truck driver, equally
contributed to the accident taking place. He actually created
the
emergency himself by choosing to drive at a relatively high speed of
90km/h when he fully knew the operating mechanisms of
a truck under
those circumstances. I cannot find any of the two drivers to have
displayed any greater degree of negligence than
the other. I
therefore apportion their liability equally, that is on a 50/50 %
basis, each.
[40]
It is common cause that the respective drivers of the bus and the
truck were the employees of the parties as cited herein
and were
acting within the scope of their employment at the time relevant to
the occurrence of the collision and that the vehicles
belonged to
the parties too.
Both
counsel further addressed me on their respective prayers for costs.
I will however not dwell into same in view of the above
findings.
[41]
THE ORDER
Accordingly,
I order that:
(1)
Both the plaintiff’s and defendant’s drivers are found
to have been equally negligent in causing the collision.
(2)
Each party shall pay own costs.
R.M. SEPATO, AJ
On
behalf of plaintiff:
ADV. B. BOOT
Instructed
by: Weavind & Weavind Attorneys PRETORIA
c/o
Matsepes Inc BLOEMFONTEIN
On
behalf of defendant:
ADV. P.J
HEYMANS
Instructed
by: E G COOPER MAJIEDT INC BLOEMFONTEIN