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[2013] ZAFSHC 226
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Corver v Yelow Yersey Logistics (3827/2012) [2013] ZAFSHC 226 (12 December 2013)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 3827/2012
In
the matter between:
PH
CORVER
….................................................................................................
Plaintiff
and
YELOW
YERSEY LOGISTICS
….............................................................
Defendant
CORAM:
MOLOI, J
HEARD
ON:
26 November 2013
DELIVERED
ON:
12 December 2013
MOLOI,
J
[1]
In this matter the plaintiff issued summons against the defendant
claiming damages occasioned by a motor collision between his
tractor
and trailer and the truck belonging to the defendant. The
defendant counter-claimed for the damages caused to his
truck.
The collision took place on the N3 main road between Warden and
Harrismith on 20 April 2012.
[2]
One VP Ntshingila (Ntshingila) was the driver of the plaintiff’s
tractor with registration letters and numbers D[…]
towing a trailer (the tractor). One VV Zwane was the
driver of the defendant’s mechanical horse and trailor with
registration letters and numbers B[…]. (the truck)
Both the drivers were acting within the scope of their duties
as
employees of the plaintiff and the defendant, respectively.
[3]
At the commencement of the trial and by agreement between the
parties, the merits were separated from the quantum and this judgment
relates to the merits alone. The ownership of the respective
motor vehicles was admitted to confirm the
locus
standi
of the parties.
[4]
The plaintiff, Mr Corver, testified personally as Ntshingila had died
in the said collision. His evidence was based largely
on his
observations at the scene of the collision and the vehicles
concerned. He arrived on the scene shortly after the
collision. It was a clear day and the tarmac was dry and
visibility was good. Both the tractor and the truck were moving
from south to north on the N3 main road from Harrismith towards
Warden. The front of the truck had hit the rear left of the
trailer and pushed it over the tractor and decapitated the driver of
the tractor whose body was found lying on the side of the
road.
The tractor broke into two parts. The collision happened on the
left lane of the two lane north bound carriage
way. The road at
that point had two lanes in each direction with a double painted
barrier line in the middle. There
were no brake marks on the
roadway but there were collision drag marks in the centre of the left
lane and the tarred portion (the
shoulder of the road or the
emergency lane) outside the left lane.
Ntshingila
had worked for the plaintiff for eleven (11) years and was not
drinking alcohol nor smoking tobacco. The plaintiff
had
instructed Ntshingila never to drive a tractor left of the yellow
line in the so called “emergency lane”.
Ntshingila
would never disobey the instructions the plaintiff gave.
Ntshingila could not see behind him as the tractor had
high sides
making it impossible to see what was coming from behind. The
driver of the truck (Zwane) was trapped inside the
cabin of the
truck. The maximum speed of the tractor was 35 km/h.
[5]
Mrs Mangareta Getruida Wessels was driving her motor car behind the
truck in the direction from Harrismith towards Warden where
she
lived. At a point she wanted to overtake the truck but realised
she would have to exceed the speed limit of 120 km/h
to do so.
Knowing the place well she was aware that there could be speed traps
at that point. She then decided to keep
driving behind the
truck in the left lane. There was a white motor car moving in
the right hand lane towards Warden, slightly
in front of her.
She looked momentarily at her odometer and also at her child who was
seated on the left seat next to her.
She suddenly saw debris flying
all over the place as the truck hit what she later recognised as a
tractor pulling a trailer.
She had not seen the tractor before
the collision. The tractor could not have moved beyond the yellow
line (that is in the emergency
lane) on her left as she would
have seen it. She confirmed it was a bright day with no
obstructions to the view.
As
she was driving she kept a distance of approximately 200m behind the
truck though in her statement she stated that she was moving
approximately between 70 and 100 meters behind the truck. She
was driving at approximately 110 km/h. There was no other
truck
moving in the right hand lane of the northbound half of the road.
[6]
The defence version was put to both witnesses during the
cross-examination and the plaintiff conceded that the collision could
have happened in that way, but Mrs Wessels disputed it happened that
way. The defence version was contained in a warning
statement
made by Zwane, the driver of the truck. Zwane had since passed
away. According to the warning statement Zwane
made to the
police he was driving the truck on the N3 main road between
Harrismith and Warden and kept on the left lane.
He noticed a
tractor and trailer (the tractor) moving ahead of him in the same
direction on the yellow line outside the carriageway,
i.e. in the
emergency lane. There was another truck moving on the right
hand lane in the same direction parallel to his truck.
He did
not notice what happened but as he was about to pass the tractor he
heard a bang (“heard a sound of something hitting”).
He tried to apply the brakes but went dizzy and noticed his truck
“jack-knifing” and there was dust. He did not
see
what happened. He felt people taking him out of the truck and
the truck had left the road.
[7]
Ms Wilma Badenhorst, an accident reconstruction specialist was called
by the defendant. It was agreed that she qualified
as an
expert. She testified that from the damage caused to the truck
and the trailer pulled by the tractor she concluded
that the truck
collided from behind against the tractor on the left hand, northbound
lane. That the version of the truck
driver namely that the
tractor was moving in the areas outside the yellow line commonly
referred to as the “shoulder”
of the road or the
emergency lane and that the tractor suddenly moved towards the left
lane when the truck was too near to take
any evasive action and
caused the collision, could not be ruled out as impossible in the
causation of the collision. The
truck’s last recorded
speed before the collision was 74km/h. She could not say what led to
the collision between the truck
and the tractor. The reaction
time of the truck driver when the tractor suddenly moved in front of
it would be 5,5 seconds
and insufficient to take any evasive action.
There were no brake marks on the road surface. It was put
to her that
the driver of the truck must have seen the tractor
suddenly veering in front of him and not merely heard the bang to can
take evasive
action. To this she responded that truck driver
would have reacted if he had sufficient time.
[8]
Photographs of the scene of the collision depicted the road as
consisting of two lanes on each of the two halves of the road.
The
Harrismith – Warden side (northbound) and two lanes on the
Warden – Harrismith side (southbound). The two
sides of
the road are separated by the zebra painted island in the middle.
The two lanes on the northbound side are demarcated
by a broken line
that separates them. There is a yellow line indicating the end of the
carriageway on the left. On the left of
the yellow line there is a
tarred part wide enough to allow a vehicle to move on. This
strip is the so-called shoulder of
the road or emergency lane.
Near the point of impact the shoulder/emergency lane narrows
significantly towards the yellow
line leaving grass and stones on its
left. The marks left by the vehicles at the point of impact are
visible from roughly
the centre of the left lane and across the
yellow line on the shoulder of the road/emergency lane.
[9]
It is common cause that the collision took place on a bright sunny
day on a straight and flat northbound side of the road; that
the road
surface is tarred and was dry; that nothing could impair visibility
where the collision occurred though there was an incline
further back
approximately 1½km as the truck and the tractor were moving;
that each side of the road had two lanes separated
by a broken line
in the middle; where the collision occurred there was a tarred
shoulder of the road/emergency lane that narrowed;
the point of
impact between the two vehicles was in the middle of the left lane;
the trailer was collided with at the rear left
corner; the trailer
was pushed forward over the tractor and it decapitated the driver of
the tractor; the tractor’s
maximum speed was
35
km/h; the driver of the tractor was experienced and had been
given instructions not to drive on the shoulder or the emergency
lane
as he could not see behind him at all; the tractor was red and its
trailer had reflectors at the back. There were no brake
marks on the
road surface.
[10]
Before I evaluate the evidence before me, it is crucial that a
decision be made regarding the admissibility of the statement
forming
the basis of the defence version. This is so as the version
depends wholly on the warning statement made in the cause
of
investigation of a possible criminal charge against the driver of the
truck, Mr Zwane and would thus constitute hearsay.
The said
statement in the nature of things was not sworn to and the person who
made it did not testify, nor could he, as he had
died in the
meanwhile. Mr De Wet who represented the plaintiff argued
against the admission of the statement as evidence
on the grounds of
being untested and not qualifying to be admitted under the provisions
of
Section 3
of the
Law of Evidence Amendment Act No 45 of 1988
as an
exception to the hearsay rule. On the other hand, Mr Venter,
representing the defendant argued that the statement ought
to be
admitted in the interest of justice having met the requirements
listed under
section 3
(1)(e) of the said Act. Those
requirements which the court is enjoined to have regard to are the
nature of the proceedings,
the nature of the evidence, the purpose
for which the evidence is tendered, the probative value of the
evidence, the reason why
the evidence is not given by the person upon
whose credibility the probative value of such evidence depends, any
prejudice to a
party which the admission of such evidence might
entail and any other factor which should in the opinion of the court
be taken
into account.
[11]
It immediately becomes clear that the various factors to be
considered by the court before admitting hearsay evidence in the
interest of justice overlap. It is therefore important to take
global view of those factors other than deal with each one
separately
in determining the admissibility:
S
v Shaik
and
Others
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA) at para
170;
Makhathini v Road Accident Fund
2002 (1) SA 511
(SCA) at 522 C-D. In
S
v Cekiso and Another
1990 (4) SA 20
(e)
it was held that the courts should not invoke the exception lightly
contrary to the view had in
Metedad v
National Employers’ General Insurance Co. Ltd
1992 (1) SA 494
(W) at 499 where it was held that the legislature
intended the courts, particularly in civil trials to exercise a wide
discretion
when so required by the interest of justice.
[12]
When I consider the enumerated factors in order to exercise that
discretion I have in terms of the provisions of
section 3
of the
Law
of Evidence Amendment Act no 45 of 1988
it becomes imperative to take
into account the evidence placed before me. The long and the
short of the plaintiffs’
evidence is that Ntshingila was a
competent tractor driver who had been instructed by the employer not
to drive on the shoulder
of the road or the so-called emergency lane,
was driving in the left hand lane of the northbound half of the
road in a straight
course. That Zwane, an equally competent
driver of the truck who used the same road often and even knew the
spots where speed
trapping would be possible, drove his truck
straight into the back of the tractor (tractor’s trailer) when
there was nothing
at all causing him to do so and in broad daylight
when nothing impaired visibility at all. Zwane took no evasive
action at
all, least of all, apply the brakes of the truck. All
the people using that road are warned about the presence of slow
moving
tractors by road signs outside the carriage way. All the
users of that road know that piece of road is prone to accidents
and
is dangerous. There is no suggestion that Zwane was under the
influence of anything that would affect his driving capacity
or that
he was drowsy while driving and so caused the collision with the
tractor (and its trailor). Zwane was not charged
with any
offence. This version is to a large extent corroborated by the
evidence of Ms Wessels who was driving behind the
truck driven by
Zwane.
[13]
It was submitted and correctly so that the burden of rebutting
negligence on the part of the driver, following another vehicle
becomes heavier where one collided with a vehicle from behind.
Proof that a following vehicle collided with the rear of the
vehicle
travelling ahead is
prima facie
evidence of negligence:
Kruger v
Van der Merwe
1966 (2) SA 266
(A).
Hence there is a “safe
distance rule” requiring that the driver of a following vehicle
is under a duty to regulate his
speed and distance from the vehicle
ahead so as to be able to avoid colliding with it should the vehicle
ahead make a sudden stop
or reduce speed:
UNISWA
v Bezuidenhout
1982 (3) SA 957
(A) 965
B-C;
Cavnavon Bus Service v Haile
1930
(2) PH Jig (c);
Goldstein v Jacksous
Pari Service
1954 (4) SA 14
(N).
Should
the defendant fail to negate or rebut this inference of negligence,
the plaintiff must succeed
Kruger v Van
der Merwe, supra
. The driver of
the following vehicle will escape liability if he was faced with
sudden emergency:
Coleman v Mabuza
1963 (2) SA 498
(T) and
Goode v SA
Mutual Fire & General Insurance
1979 (4) SA 301
(W) at 307 A where it was stated that the emergency
must occur suddenly and unexpectedly. The crises must be so
unexpected
that “
in the agony of
the moment, the person whose conduct is in question had neither the
time nor the opportunity to weigh the pros and
the cons of the
situation in which he found himself”
If he had ample time and warning to decide on an appropriate action
to take he cannot avail himself of the defence
of sudden emergency:
R v Philips
1949
(2) SA 676
(0) at 677;
Minister of
Justice v World Auxitionary Insurance
1963 (1) PH 021 (D).
[14]
The statement of Zwane sets out a sudden emergency that he was faced
with to gainsay an inference of negligence on his part.
According to the statement Zwane was driving behind the tractor
driven by Ntshingila on the said road. His truck was moving
in
the left hand lane northwards. The tractor was moving in the
emergency lane outside the yellow line. When he came
close to
the tractor it suddenly and without warning swerved in front of him.
He could not move to the right hand lane as
there was another truck
moving there. He immediately heard the crash of the vehicles
and did not have time to apply the brakes.
He was trapped in
the truck and had to be helped out.
[15]
Crucial evidence is the statement is that he saw the tractor ahead of
him and that it was moving in the emergency lane.
When the
tractor moved into the left lane there was no warning given and no
time allowed to take evasive action. The collision
occurred.
There was no evidence that before Zwane made a statement he had
visited the scene of the collision and noted that
the emergency lane
was narrowing further on which would have forced Nshingila to move to
his right. Ms Wessels denial of
having seen the tractor at all
and her insistence that if it was moving on the emergency lane, she
would have seen it, becomes
hard to swallow. According to her
she wanted to overtake the truck. There was only a white car in
the right hand lane
and this was moving ahead of her. She
remained behind the truck only because she knew that was the spot
where speed trapping
could take place, meaning that once she was past
the spot of the speed trapping she would proceed to overtake the
truck.
For her to do that she would keep to the right of the
left lane and focus on the traffic that would be in the right lane so
she
could overtake the truck. It was contended that the angle
at which she was behind the truck would make it possible for her
to
see the tractor if it was moving in the emergency lane. What
that angel was, was not explained. Why would she focus
on her
left when she intended overtaking on the right?
[16]
I accordingly find that it is in the interest of justice to rule the
statement of Zwane to be admissible as it provides some
explanation
of a possible way the collision would have occurred. This is
more so in the absence of any reason why Zwane would
be suicidal as
the plaintiffs’ version suggests. Zwane was not charged
with any offence, no evidence was led that his
faculties were
impaired nor was he speeding excessively so as to drive straight into
the back of a moving object he saw on a clear
day as was described in
the circumstance. The plaintiff, Mr Corver and Ms Badenhorst
agreed the collision could have happened
as described by Zwane in his
statement. Both versions are according to my judgment
plausible. It is unfortunate that
both the drivers died and
could thus not throw more light on this quandary. I am not
persuaded to prefer one version above
the other and make accordingly
the following order:
ORDER:
Absolution from
the instance is hereby granted and it is ordered that each party pay
own costs.
_____________
K. J. MOLOI, J
On
behalf of the applicants: Adv. P. J. H. de Wet
Instructed
by:
L
Strating
Symington
& de Kok
BLOEMFONTEIN
On
behalf of respondents: Adv. J Venter
Instructed
by:
Mnr
Albert
Alberts
Prokureurs
BLOEMFONTEIN