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[2013] ZAECMHC 29
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Zihwele v Nyingwa and Others (1078/2009) [2013] ZAECMHC 29 (1 October 2013)
1
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION : MTHATHA
NOT
REPORTABLE
CASE
NO: 1078/2009
In
the matter between :
SISA
ZIHWELE
...................................................................................................
PLAINTIFF
and
MR
V. V. NYINGWA & OTHERS
..................................................................
DEFENDANTS
JUDGMENT
DAWOOD J :
1. The plaintiff herein sued the driver, the Close Corporation and a
Mr Mda for damages arising out of an accident whereby a Volvo
Bus
bearing registration letters and numbers DWX 379 EC, driven by the
First Defendant, in which the Plaintiff was a passenger
at the time,
collided with the cutting on the edge of the road.
2.
a) The Plaintiff alleged that the Second Defendant, Mr Mda was the
registered owner of the said Volvo Bus.
b) The Plaintiff alleged further that the First Defendant acted in
the course and scope of his employment with the Second Defendant,
alternatively the Third Defendant.
c) That the collision was caused solely by the negligence of the
First Defendant who was negligent in one or more of the following
respects:-
i) he failed to exercise any and/or adequate control over the said
vehicle;
ii) he failed to keep a proper and/or adequate lookout;
iii) he drove at an excessive speed in the prevailing circumstances;
iv) he failed to apply his brakes timeously, adequately or at all;
v) he failed to avoid an accident when by the exercise of reasonable
care he could and should have done so.
d) The Defendant pleaded that an accident occurred on the 22
nd
of December 2007 at or near the R61 Road between Beauford West and
Aberdeen when the Volvo Bus driven by the First Defendant,
experienced a sudden unforeseen tyre blow-out of the right front
wheel which in turn caused the vehicle to overturn.
e) The parties agreed at the pre-trial meeting held on the 2
nd
of November 2011 that:-
i) The First and Second Plaintiff have
locus standi
to bring
the action;
The actions of the First and Second Plaintiff had ben properly
consolidated;
The First Defendant is an adult male bus driver in the employ of the
Third Defendant;
The Third Defendant Romans Transport CC carries on business with the
name and style of Romans Coaches.
The Volvo belonging to the Third Defendant and driven by the First
Defendant veered of the road and collided with a rock face
in a
cutting.
After the accident the right front tyre of the bus appeared shredded
and utterly destroyed.
The parties further agreed that the issues to be determined by the
court were:-
whether or not the accident occurred as a result of an unforeseen
tyre blowout of the right front wheel which caused the bus
to
overturn as alleged by the Defendant; or
Whether or not the accident was caused by the negligence of the
driver, the First Defendant in that:-
he failed to exercise any and/or adequate control over the bus;
he failed to keep a proper lookout;
he drove at an excessive speed in the prevailing circumstances;
he failed to apply brakes timeously, adequately or at all;
he failed to avoid the accident when by the exercise of reasonable
care he could and should have done so.
3. The parties applied for a separation of the merits from quantum
and the matter proceeded on the merits only.
4. EVIDENCE LED
4.1. The Plaintiff Sisa Zihwele testified as follows:-
i) he is a 23 year old male who was 17 years of age at the time of
the collision. He had passed grade 7 and was returning home
from Cape
Town to Tsolo;
he was travelling on the bus with his brother, sister-in-law and
his 11 year old nephew
he was seated on the second last seat on the left hand side of the
bus and the collision occurred between 12 noon and 1pm.
He did not notice anything about how the bus was being driven but
his brother prior to the collision remarked that the driver
was
driving at a fast speed and that the way he was driving the bus he
could overturn the bus and he agreed with his brother.
Immediately prior to the accident he observed that that bus was
driving all over the road swaying from right to left to right.
He
became afraid and lost consciousness and when he regained
consciousness he was down in a valley without realizing how he
got
there. He was unable to move because the vehicle’s
differential, which he later corrected under cross examination
to
say it was in fact the rim, that pinned him down and had landed on
the back of his waist and his leg and he could not move
away by
himself. He was taken to hospital in George.
Under cross examination he confirmed that the conversation between
his brother and himself regarding the driving of the bus
occurred
approximately 10 minutes after they left Beaufort West and prior to
the bus “zig zagging”.
The bus was zig zagging on the road and at times facing on-coming
traffic. The bus went to the right and collided with the
rock face
and came back onto the road and he was scared and lost
consciousness and when he woke up the bus was lying on its
side.
The drivers version was then put to him being:-
That shortly before the vehicle swung to the right and struck the
rock there was a loud noise like a gunshot. His response
was that
he was seated at the back of the vehicle and did not hear a sound
like a gunshot and they were also conversing amongst
themselves.
That concluded his testimoney.
4.2. The Plaintiff thereafter called Luvuyo Zihwele the Plaintiff
older brother. His testimoney was briefly as follows:-
He was also on the bus together with the Plaintiff, his wife and his
nephew travelling to Tsolo;
He was seated in the Second last seat at the back and his brother
was seated next to him.
Whilst they were travelling he remarked to his younger brother that
he was scared of the way the bus was speeding because there
was a
possibility of it capsizing.
According to him the bus was driving at a very fast speed from
Beaufort West to the spot where the accident occurred.
The bus was facing on-coming traffic and he then saw the bus
travelling to the extreme right side of the road and he assumed
that
it was trying to avoid oncoming traffic.
The bus then hit the rock face on the right side and he held onto
the left hand side of his seat as he felt that the bus would
fall on
its right side.
He went outside and found his wife and nephew but the plaintiff was
not amongst the people outside.
He then went to the back of the vehicle and saw the lady that had
been sitting next to the Plaintiff and her skull had a wide
gash and
metal parts of the bus were pinning her down on her neck.
He then called out for the Plaintiff because he could not see him.
The Plaintiff responded and when he looked he saw that the
Plaintiff
was beneath the grill and he had been pinned down by some metal on
his leg.
The emergency services managed to get the Plaintiff out and told him
that they were taking the Plaintiff to George but refused
to let him
accompany the Plaintiff saying that they would only put a plaster of
paris on.
5. under cross examination he confirmed:-
5.1. that a discussion regarding the speed of the vehicle occurred
after they left Beaufort West;
5.2. According to him it was 30 minutes after they left whereas the
Plaintiff stated it was 10 minutes. He indicated however that
this
was an estimate but that it was closer to 30 minutes but could even
be 10 minutes.
5.3. According to him there was on-coming traffic when the bus went
onto the incorrect side of the road and the driver then swerved
to
his extreme right, he assumes, so as to avoid hitting the vehicle, as
their driver was driving on the incorrect side of the
road.
5.4. The driver’s version that there was a loud sound that
sounded like a gunshot before the vehicle went to the right was
denied by him. He stated that he did not hear any sound and he would
definitely have heard it because he was not asleep and that
the
driver was lying.
5.5. It was put to him that the sound was a blowout of the right
front tyre and he stated that he did not know because he did not
see
the wheel being punctured and he did not hear anything.
5.6. He indicated that he did not see any marks on the road but he
would not dispute that it was in all probability caused by the
burst
of the right front tyre because he did not see the marks.
5.7. That concluded his testimoney.
6. The Plaintiff next witness was Professor Dreyer.
7. During the course of his cross-examination he met with Mr
Grobbelaar and they prepared a joint minute which reads as follows:-
“
The experts agree that in the event of the right
front tyre of the coach undergoing a sudden deflation (blow-out),
the steering
would pull strongly to the right and the coach would
move to the right.
The experts agree that the onset of the pull to the
right of the steering and the movement to the right by the coach
would probably
happen shortly after the blow-out and likely in the
order of 1s to 2s after the burst.
The experts agree that the pull to the right on the
steering of the bus, after the tyre had burst and the pull to the
right had
manifested, would have been difficult to correct by the
driver.
The experts agree that the wavy tyre mark as is
visible in police photograph 1 (and also indicated on the police
sketch plan)
was probably caused by the deflated right front tyre of
the coach.
The experts agree that the dip in the gravel
shoulder of the road after the impact point D was probably the cause
for the overturning
of the coach on its right hand side with the
result that the roof came into contact with the rocks of the cutting
on the right
hand side of the road.
The experts agree with the value of an average
visualization, perception and reaction time of 1.5s for a visual
stimulus in daylight.
They however disagree on the time required for
an audible and/or movement stimulus, with Prof. Dreyer of the
opinion that this
would shorten the time, required whereas Mr
Grobbelaar is of the opinion that this would lengthen the time..
The experts agree that the rolling resistance of a
typical bus tyre, such as the tyre under consideration, would be
between approximately
0.013 and 0.017 for a fully inflated tyre
whereas it would be approximately 0.15 for a fully deflated tyre.
The experts agree that the sliding friction
coefficient a typical bus tyre, such as the tyre under
consideration, would be between
approximately 0.4 and 0.6 for a
fully inflated tyre. For a tyre being braked with ABS, the lower
value would probably increase
to approximately 0.55.
The experts agree that under braking, with a fully
deflated right tyre on the coach, the steering of the coach would
pull to the
left and bus would move to the left. The severity of the
pull would be dependant on the level of braking applied.
The experts disagree on the use of 0.4 for a mild
brake application, where Prof. Dreyer is of the opinion that this is
a mild
application whereas Mr Grobbelaar is of the opinion that this
value is far too high and 0.1 to 0.2 would be more appropriate for
such an application.
The experts disagree as to whether it could have
been expected of the driver of the coach to have braked under the
circumstances,
with Prof. Dreyer of the opinion that braking should
have been applied whereas Mr. Grobbelaar is of the opinion that
braking
should have been avoided under the circumstances.”
8. Professor Dreyer’s
testimoney was as follows:-
he had not visited the accident site but relied upon photographs of
the scene, the A R Form of the accident completed by Constable
Bruwer, the police plan with key and distances prepared by
constable Mitchell, the affidavit by constable Jean-Jacques Bruwer,
the affidavit by Johan Kruger, the warning statement by Vincent
Vuyani Nyingwa (the driver) and the affidavit by the Plaintiff
and
the RAF form and particulars of the bus.
According to the police report the driver had stated that the right
front tyre had burst after which he lost control and the
bus
overturned on its right side and collided with a rock face and he
had been driving at approximately 95km/h.
The police noted in the A R further that it was daylight, the
weather conditions were clear and the tarmac surface was dry.
The
road was straight and uphill. The speed limit was 120km/h.
Apart from the shattered windshield and the area around the right
front wheel, there seemed to be no impact damage to the roof
showing that the bus slid on its right hand side before coming to
rest. There is no impact damage to the left hand side of
the bus.
The bus had an impact on the right front corner and then overturned
and slid on its right hand side while the roof
was still in contact
with the cliff face.
According to him the tyre mark shown on the police plan was
probably caused by the flat right front wheel since a braking
action would normally leave more than one tyre mark. This means
that the bus at least did not do any hard braking otherwise
there
would have been more tyre marks on the road.
The tyre mark on the tar shows that the bus was gradually moving
over to the right hand side of the road. It was not a sudden
swerve
to the right, it is a very gradual line that the tyre mark shows on
the road.
The dip in the gravel shoulder of the road after the impact point D
was probably the cause of the overturning of the bus on
its right
hand side with the result that the roof came into contact with the
rocks of the cutting.
According to the police plan the distance from the start of the
tyre mark to the impact point was 132,2 meters
The driver of the bus indicated that his speed was 95km per hour
and no mention is made of any braking action.
According to him if perception reaction time of 1, 5 seconds is
taken, the bus would travel 39,6 meters at 95km/h.
If the driver started to brake mildly at a braking co-efficient of
0.4 the bus would stop in 90.6metres which gives a total
of 130,2
meters.
He stated that since the tyre burst would occur some distance prior
to point B on the police plan and the noise would immediately
warn
the driver, the driver probably could have stopped before the
impact point D, if the bus was travelling at 95km/h and
the driver
kept a proper look-out.
According to him the additional distance from point D after the
impact shows that the bus was most probably travelling much
faster
than 95km/hr and/or the driver was not wide awake when the tyre
burst, because that was quite a distance for the bus
to slide on
its side while the roof is still in contact with the cutting and
still retarding, it gave him the impression that
the bus must have
hit point D at quite a speed.
He concluded:-
that the reconstruction shows the driver probably could have
stopped if he had braked immediately;
that the bus was probably travelling faster than 95km/h; and
The driver did not react immediately or that the driver took an
abnormally long perception – reaction time.
Under cross examination he conceded that he knew nothing about
braking systems and was an applied mathematician, not an expert
on
braking systems of any vehicle. He is not a mechanical engineer.
According to him if he heard the bang before he saw the burst tyre
then he would have had a greater braking distance.
The driver did not react immediately or took an abnormally long
perception reaction time.
He agreed with Mr Grobbelaar’s summary that upon a sudden
deflation of the front tyre the steering geometry of the vehicle
changes, he just took issue with the term drastically but stated
that he would agree that that axle will drop and that the
radius of
the one wheel will decrease because of the deflated tyre.
He also agreed that the dropping of the axel has the effect of
increasing the steering offset, thereby increasing the moment
arm
about the kin pin access of the front steering seemingly in a
clockwise direction.
He agreed that you would have a pull on the steering wheel to the
right and that the bus would strongly pull to the right.
He disagreed that the steering wheel would have to be pulled
towards the left to atleast 90 degrees to get the bus back on
track
because he had not seen the bus but it would need to be pulled in
an anti-clockwise direction to correct the pull towards
the right.
He also agreed that the bigger the load the bigger the force on the
steering demands on the right would be.
He agrees with Mr Grobbelaar that the front tyre of the coach
probably burst or deflated suddenly just prior to a point at
least
177 metres prior to the point where the coach came to rest.
He stated that the marks were not visible on the photographs but
agreed that the bespoke time mark displays a wavy pattern
and the
curve typically left by a loaded deflated right front tyre of a
coach in motion.
He agreed with Mr Grobbelaar that the driver would have experienced
a strong pull to the right but disagreed that it would
be difficult
to correct since these buses all have power assisted steering so he
has no idea why Mr Grobbelaar would say it
would be so difficult.
It was put to him that Mr Grobbelaar made no mention of braking in
his report.
His view was that with having a distance of at least 130 metres one
would certainly try to slow the speed to get the vehicle
to a
standstill so he does not understand why he does not consider the
effect of braking.
The driver also did not make any mention of braking in his
statement.
Mr Grobbelaar was of the view that the 1,5 seconds reaction time
should be greater or longer in circumstances where there is
an
audible stimulus or a movement stimulus, that is the bus sagging to
one side.
Professor Dreyer disagreed saying that in a visual situation you
must first observe, then perceive it as a danger, then make
a
decision what you must do and then you react. So quite a bit of
time to see it and to identify it as a danger. Whereas if
you have
a sound right underneath you and the movement you do not have to
look at it, it is there and you react almost immediately
to it and
it would therefore be shorter.
He is however unaware of any tests made for this type of situation
where you hear a sound and then you react, so this is merely
his
opinion.
He agreed with Mr Grobbelaar that where there is a sudden deflation
of the right front tyre there is an increase in rolling
resistance
and a pull to the right.
He agreed that the braking effect on a flat tyre will be less
effective than on the other tyres and there would be a sudden
imbalance in the braking ability between the two sides of the front
axel and that the moment you brake due to the bigger wheels
the
vehicle veers left.
He agreed that if you have an over-application of the brakes the
vehicle will swerve or veer to the left because you have introduced
a situation of instability because you initially had a movement to
the right and now you have a sudden movement to the left.
He agreed that in the case of very hard braking, stamping on the
brake paddle would result in instability and a loss of control
because you would suddenly go to the left and have to pull to the
right and that would lead to a corkscrew motion.
He agreed with Mr Grobbelaar’s statement to the effect that
it is well known that braking immediately after a blow-out
of a
front trye is extremely hazardous but qualified it to say that if
you stamp on your brakes you are asking for trouble
in order words
you must handle the situation very carefully.
He stated that he had read books where it is more difficult to
handle trucks and buses but it would depend on the steering
system
of the vehicle and how up to date it is whether it has
power-assisted steering or an anti-lock braking system that would
prevent the wheels sliding for instance, it makes the vehicle more
stable and you get a higher friction co-efficient through
ABS.
Mr Grobbelaar stated that it would be most appropriate for the
driver to concentrate his efforts on keeping the bus under control
while avoiding braking. He disagreed saying that the driver should
have braked. He stated that it was a natural reaction to
a hazard
to lift your foot off the accelerator. Your hands and feet do
different things.
He was also unsure of what Grobbelaar meant by bucking, shaking and
pulling. The tracks left as they appear in photo 1 do not
appear to
be consistent with bucking and shaking or pulling but appear to go
pretty straight until the second dot and then
it starts to swerve
away. It does not seem to him that the driver had great trouble
controlling the wheel because it goes absolutely
straight. In his
opinion it would be easier to control a bus where there is a
deflated tyre at lower speeds as opposed to higher
speeds because
the forces acting then on the bus is smaller.
He persisted under cross examination that it is an absolute must
that a person must brake stating that in general if anything
goes
wrong with a car you can try to stop as soon as possible. A braking
action is a very natural thing to do and the danger
for an
inexperienced driver is to overdo it. According to him in a
situation such as the present he would slow the vehicle
down and
try to keep it on the road.
He was asked whether it would be unreasonable if the driver decides
when he realizes he has a blow-out on his front wheel that
he is
not touching on his brakes but just going to try and keep going in
a straight line until the vehicle comes to a standstill.
His
response was that he would definitely keep his speed down and
brake.
He agreed that in his calculation he had failed to take into
account the steering of the vehicle and the wheel that had been
deflated or blown out, that is, a corkscrew motion etc. that is at
what rate this driver could have applied his brakes without
inducing corkscrew motion.
He stated he could not calculate how far the pedal must be pressed
down to ensure that it does not go out of control, you would
need
to do that experimentally by conducting braking tests.
It was put to him that Mr Grobbelaar has done experiments on buses
in comparable situations where he had started off with a
flat tyre
to get an idea of the amount of pull on the steering wheel whereas
professor Dreyer had never done such an experiment.
He agreed with
Mr Grobbelaar that initially it would have been more appropriate
for a driver to apply a co-efficient of .1
or .2 rather than .4.
According to him the driver should increase the co-efficient all
the time touching the brakes and slowly increasing his braking
keeping the car under control. An experienced driver with 5 seconds
could definitely start braking and he could start slowly
increase
his braking until he can bring the bus to a stop although he cannot
say exactly at what point he should have exercised
what kind of
braking on the road.
It was put to him that the buckling of the flat wheel could give
feedback to the steering in the hands of the driver and that
this
is what Mr Grobbelaar refers to as the shaking and bucking of the
steering wheel that the driver would feel and it would
cause the
vehicle to bump up and down.
His response was that he does not know how much would be felt at
the steering wheel because it depends on the steering system
of the
bus but it is possible that they could have been some movement of
the steering wheel but he does not know how much.
The shock
absorbers would dampen the up and down motion of the wheel.
Under re-examination he confirmed that since the bus was travelling
on an incline it would help the braking action of the bus.
He was
told that this bus was equipped with ABS and EBS electronic braking
systems as well.
That concluded the Plaintiffs case.
The Defendant’s first witness was the driver, the First
Defendant,
Vuyani Vincent Nyingwa
. His testimoney was briefly
as follows:-
He has a code 14 license which entitles him to drive heavy
articulated vehicles
He was not the driver from Cape Town to Beaufort West.
He was asleep at that time having driven to Cape Town from Beafort
West the previous night.
He took over in Beaufort West.
The accident occurred approximately 65 km out of Beaufort West on
the road between Beaufort West and Aberdeen.
The right front wheel on the bus got a puncture and he became
aware of it when he heard a sound like a gunshot and the steering
wheel could not control the bus.
He could feel some negative pulls on the steering wheel, it was
pulling him “that way and that way, the bus was dancing
and
jiving all over the road and he could not control it.
He demonstrated that the steering wheel moved in a clockwise and
then in an anti clock wise direction.
His body was not moving because he had his safety belt on. It was
only his arms that were moving and the bus was jumping
up and down
and inclined to lie on the side of it.
He could not control it, it was driving all over the road and then
it slanted to the right side and pulled him strongly to
the right
and he tried to turn it to the left but it continued to drive to
the right and it hit the rock surface.
He stated that in the first instance he did not press the brakes
because he knew that if he applied brakes a bus will pull
you to a
point right outside the road because he was told by his company
that if a bus had a wheel problem like a puncture
never touch the
brakes because that will cause more problems.
He had 4 tyre bursts, the bus hit against the side of the road on
one occasion but there were no other serious accidents.
He did not brake to stop the bus he controlled the bus using the
steering wheel only, on these occasions.
He knew what a tyre burst sounded like and on the previous
occasion he was travelling at 60 to 70 km per hour and it was
raining when he hit the side of the road just outside town.
He knew that when he hears the noise he and his passengers and the
bus are in danger and that he must bring it to a stop
safeLy and
that it is better for him to be travelling slowly rather than very
fast with a burst tyre.
He slept in the bus from about 2 – 3 am that morning until
they got to Beaufort West.
He stated that according to his experience if you press the brakes
the bus will definitely leave the road but concedes that
he had
never pressed the brakes before when he had a blowout but he had
seen such situations on the road where the driver
would put on the
brakes and the bus would pull out of the road immediately.
On several occasions they were accidents caused by a tyre and
invariably it is when the driver had pressed his brakes.
He accepted that he did not know how fast those drivers were going
or how hard the driver braked.
He agreed that he managed keeping the vehicle under control for
quite a long distance. He was unsure whether if he had braked
and
slowed down immediately the vehicle would have stopped pointing
straight down the road because he would not be sure of
the
pressure he was exacting on the brake pedal in the midst of such a
problematic situation because he may put on a lot
of pressure and
the bus will pull outside the road.
And all the other occasions he was involved in such situations he
came out on top of the situation because he did not apply
brakes.
He conceded that it was easier to control a vehicle at a lower
speed and that is a good reason to slow down.
He indicated that he would first get the vehicle under control and
when then he is sure that it is completely under his control
then
he would start to use the brake system to bring the vehicle to a
stop.
He did do that on this occasion but he did it very late when the
bus had already reached the ditch he only braked when the
bus had
already reached the ditch.
He accepted that he saw that just using the steering wheel was not
working and he did apply brakes but it was too late.
He conceded that he knew that it would be safer to slow the
vehicle down but he applied brakes late and the bus had already
entered the ditch.
aa) That concluded his testimoney.
10. The Defendants’ next witness was Mr Grobbelaar’s
whose testimony briefly was to the effect was that:-
He is a mechanical engineer with almost 26 years of experience in
accident re-construction.
He used photographs pertaining to this accident and visited the
scene and took measurements. He saw the marks that the
police
made on the scene depicting where the tyre marks commenced and
where the debris ended.
He testified inter alia that the bus has a front wheel drive
which as a result of the additional resistance caused by the
blow
out would cause the wheel to pull to the right.
According to him the axle of the bus is horizontal under normal
circumstances with both sides touching the surface however
when
there is a tyre burst the right edge is closer to the road
surface and exerts greater force which is shifted to the
outside
of the tyre increasing the force and distance and pulls to the
right and this is why front wheel tyre bursts is
so dangerous.
According to him the whole steering system is impacted upon by
the tyre burst including the steering wheel which he has
to
counter by pulling to the left which would be difficult
considering the speed and load. He had done a test at low speed
in an empty bus and he had to turn the steering wheel 80 to 90
degrees before the vehicle would steer in a straight line,
this
was an old Putco Bus approximately 10 years ago.
According to him it is incorrect to brake when you have a blow
out because the vehicle will then steer dramatically in
the other
direction.
If the brakes are applied slowly there is minor effect whereas
hard braking will have a greater effect and a co-efficient
of 0.4
will be harsh braking resulting in passengers hurtling forward
and if there is no ABS this could result in the wheels
locking.
He agreed with Professor Dreyer that under normal circumstances
the driver could have braked but in this case the driver
was
confronted with many inputs, the right front wheel cannot give
you a 0,4 co-efficient, the bus is pulling to the right
and the
driver is trying to pull away with all his might, the tyre is
folding up, the wheel is bouncing up and down to
the chassis, the
tyre is also causing a shaking of the bus, the bus has dropped to
an angle.
All these factors play a drastic role because of all this
movement of the bus underneath, you may not even be able to
depress the brakes.
According to him the first thing to do is to get the vehicle
under control, do not hit the brakes immediately because it
changes the dynamics of the vehicle drastically. If you were to
apply brakes it may be very gentle if you have a resistance
of
0,15 apply braking of around 0,15 or else if you have more than
0,15 you would have a pull to the left.
According to him the driver had 5 seconds to brake, he would have
to apply brakes gently.
To him it would be impossible to start below the average and
increase above average to get to the average and because of
the
tyre burst it is highly improbable that you could achieve 0,4.
According to him the heavier buses are fitted with ABS and EBS
that increase efficiency and safety and prevent skidding
in a
sudden stop.
He confirmed that his previous test was done on a Putco bus
approximately 10 – 12 years ago and he did not use the
brakes on that test so he did not test what the brakes would do.
He confirmed that the pull would be same because the steering
geometry had not changed but the braking has.
He confirmed that he has not done the tests in terms of braking –
EBS would distribute the braking to the rear where
it is needed,
it would try to balance between left and right and from front to
back.
The braking system is designed to get the vehicle to brake
optimally, it optimizes safety.
He however stated that the braking systems are not designed for
burst tyre but for changes in road surfaces.
There is no manual that says this would enhance your ability to
control the bus if the tyre bursts or that it improves
the
stability of the bus if it is fitted with ABS.
t) He conceded that theoretically applying gentle braking could stop
the bus but it is difficult to apply gentle co-efficient when
the
driver is confronted with:
i) tyre pulling to right;
ii) bouncing up and down;
iii) steering wheel bucking up and down;
iv) he cannot sit, does not have his heel on the floor, the brake
pedal bouncing up and down, impossible to balance it; and
v) regain control.
u) There are too many things happening to the bus.
v) He conceded that a bus is easier to control at a lower speed and
that the consequences would be far less severe for the passengers
at
a lower speed or had the driver braked earlier before hitting the
rock surface.
w) He stated that people are generally taught not to brake but he
cannot comment on how this vehicle would have braked.
x) He re-iterated that theoretically braking would have brought the
vehicle to a stop.
y) According to him when there is a tyre burst the right front wheel
would want to lock, would cause ABS to come into action and
it would
come into play if you tried to maintain 0,4 and balance the two out
as the braking co-efficient would increase.
z) According to him one would react faster to a visual stimulus than
to a sound stimulus because with a visual stimulus you would
see
something immediately and know the threat whereas with an audible
stimulus you have to interpret what it means and where it
is coming
from in order to identify the stimulus, what is happening so one
would probably take longer with audible stimulus because
you have to
determine what it is and what you have to do with it.
11. That concluded his testimoney and the Defendant’s case.
12. The witnesses in this case were all reasonably good credible
witnesses and there is no need to evaluate their testimoney, as
the
issue here cannot be determined having recourse to the credibility of
the witnesses.
13. There was no argument on the issue of whether or not there was a
tyre burst and that the driver found himself is a situation
that can
be described as a sudden emergency. I accordingly accept that the
driver’s version is correct with regard to being
faced with a
sudden emergency problem of a sudden blow-out of his right front
tyre.
14. The only issue accordingly is whether or not the driver’s
response to the sudden emergency constituted negligence as
alleged by
the Plaintiff or was in keeping with that of a reasonable driver with
similar experience and expertise.
15. A brief examination of the testimoney and the relevant legal
position is necessary to determine whether or not the Plaintiff
had
discharged the onus resting upon him to establish negligence.
16. It has been conceded that the Plaintiff’s expert is not a
mechanical engineer and on his own version is not an expert
on
braking systems.
17. His testimoney was nonetheless helpful and there appeared to be
consensus in certain respects between his testimoney and that
of the
Defendant’s expert. Mr Grobbelaar who is a mechanical engineer
and has a wealth of experience in accident reconstructions.
18. Both the Plaintiff and his brother were seated at the back of the
vehicle and were not licensed drivers. They did not have
sight of the
speedometer and accordingly no reliance can be placed upon their
testimoney to the effect that the driver was speeding
prior to the
collision.
19. Professor Dreyer also was unable to provide any cogent reasons
for his statement that the driver must have been speeding.
20. There is also no cogent evidence that the vehicle was overloaded
or that the driver failed to keep a proper lookout, since
a tyre
burst was a sudden occurrence.
21. Mr Grobbelaar despite stating that the driver’s decision
not to brake in circumstances where there has been a tyre blow-out,
nonetheless conceded:-
21.1. That the vehicle would have been easier to control if the
vehicle was slowed down.
21.2. That had the driver commenced braking at a braking co-efficient
of 0.15 this would have counteracted the effects of the deflated
front tyre and kept the vehicle on a more or less straight path and
brought the vehicle to a safe stop if he had braked gradually.
21.3. That a collision at a lower speed would have reduced the force
of the impact and possibly the consequences for the passengers.
22. The driver also conceded:-
22.1. That the vehicle would have been easier to control at a lower
speed and that is a good reason to slow down.
22.2. The driver further accepted that he saw that just using the
steering was not working and he did apply brakes but it was too
late.
The bus had already entered the ditch.
22.3. That he knew that it would be safer to slow the vehicle down
but he applied brakes too late.
23. The driver had personal experience with blow-outs and accordingly
knew what it sounded like. Mr Grobbelaar’s theory with
regard
to it probably taking longer for a reasonable person to react to an
audible stimulus accordingly would not apply to a reasonable
driver
in this driver’s position who knew what it was when he heard
the sounds as he had experienced it previously, so it
was not
unknown. He would be able to react a lot quicker than a driver who
never experienced a blow-out previously in the circumstances
and this
factor may well mean that his visual perception reaction time would
possibly be lesser than the 1.5 seconds or ought to
be considering
his previous experience.
24. In one of this driver’s previous experiences with a
blow-out, not applying brakes even at much lower speeds had resulted
in a collision although not of this magnitude.
25. I accept that whether or not the driver made the correct election
in the circumstances is not the inquiry but rather what a
reasonable
driver faced with the same situation would have done.
26. It is evident from the authorities that, in applying the
reasonable person test to the conduct of a driver of a motor vehicle
one does not use an ex post facto approach. The applicable test is
how the reasonable person would have acted under the same specific
conditions prevailing at the time of the accident – as
experienced by the driver of the motor vehicle whose conduct is being
scrutinized.
27. See in this regard:-
Delictual liability
1
Cooper v Armstrong
2
Steward v Bresler
3
Minister of Defence v African Guarantee and Indemnity Co Ltd
4
28. A driver is permitted to make errors of judgment if a reasonable
driver could have made the same error in the circumstances
according
to inter alia:-
R v Du Toit
5
S v Marik
6
Griffiths v Netherlands Insurance Co of SA Ltd
7
29. In
Brown v Hunt
8
it was held that:-
“
In determining whether the actor is to be
excused for an error of judgment in a (sudden) emergency, importance
is to be attached
to the fact that many activities require that those
engaged in them shall have such natural aptitude or special training
as to
give them the ability to cope with those dangerous situations
which are likely to arise in the course of such activities,”
30. In
RAF v Grobler
9
it was held:-
“
when a person is confronted with a sudden
emergency not of his own doing, it is wrong to examine meticulously
the options taken
by him to avoid the accident, in light of the after
acquired knowledge, and to hold that because he took the wrong
option, he was
negligent the test is whether the Respondent’s
conduct fells short of what a reasonable person would have done in
the same
circumstances.”
31. In
Bignals Transport (Pty) Ltd v Catholic Diocese, Port
Elizabeth
10
the court assessed a reasonable reaction time in a sudden emergency
situation to be one and a half seconds.
32. In
Crossroads Distributions (Pty) Ltd t/a Jowells Transport v
Peters and another
11
Yekiso J held that the driver of a heavy commercial vehicle given the
emergency situation, was not negligent. He applied the principle
of
sudden emergency which holds that when a driver encounters an
unexpected emergency he cannot be found to be negligent if he
chooses
an option which, after the event, was proven to be wrong as long as
such driver
takes the best possible course of action to avoid the
collision.
33. In Madyosi and Another v Sa Eagle Insurance co. Ltd
12
“The trial judge, Comrie AJ, found that the driver was not
negligent, for the following reasons
13
:-
“
There was no expert evidence that Mpendukana
should have handled the emergency, when it arose, differently and in
particular that
he should have braked. Mpendukana held a public
driver’s licence and he had received driving instruction from
his employers.
He testified, as I have mentioned, that if he had
applied his brakes, the bus would have capsized. He could not apply
his handbrake
(which operated on the rear wheels) because that would
meant removing one hand from the steering wheel, which in turn would
have
ensured a complete loss of control. He did not think of applying
his foot brakes gently because there was pandemonium on the bus
and
his priority was to regain and retain control through the steering
wheel.”
This finding was confirmed on appeal. Milne JA added:-
“
It is a known fact that the bus left the road
and overturned because the tyre burst. The bursting of the tyre is
not a neutral fact
in relation to the negligence pleaded by the
appellants. It explains why the bus left the road and overturned.
True, it is not
by itself inconsistent with a negligent failure to
maintain the tyre, but no such negligence was pleaded. Had the only
evidence
relating to negligence been that the bus left the road and
overturned that would, in the absence of anything else, have
justified
an inference that the driver failed to keep the bus under
proper control. The fact that the tyre burst, however, prevents that
inference being drawn from the mere fact of the occurrence.””
34. In this case one has to determine whether or not it can be said
that the driver took the best possible course of action to
avoid the
collision.
35. Mr Grobbelaar’s testimoney to the effect that there was too
much happening at the time for the driver to be able to apply
the
brakes appropriately does not appear to be borne out by the
testimoney of the driver who stated that the steering wheel was
going
from side to side as were his arms, he did not say anything about his
legs lifting off the pedals or experiencing any bucking.
He, from his
testimoney appears to have had time to consider his options and chose
not to brake because of what he was told by
his previous employer and
what he had seen in respect of other accidents,
not
because he
was unable to brake.
36. He initially made a choice not to brake and then when it was too
late decided to brake.
37. Mr Grobbelaar’s testimoney appears to indicate that it was
the best decision in the circumstances when dealing with a
situation
as was experienced by this driver.
38. He however conceded that the vehicle would have been easier to
control at lower speeds and theoretically could have been stopped
if
the brakes were applied.
39. The driver did not state that there was pandemonium on the bus or
that he lost control through the steering wheel. He merely
stated
that his arms were going from side to side whilst holding the
steering wheel and moved to the right.
40. The driver was operating a bus which was equipped with a power
steering, ABS and EBS braking.
41. The driver conceded that it would have been easier to operate the
bus at lower speed and so
did Mr Grobbelaar.
42. In my view a reasonable driver of the drivers years of experience
would have considered slowing down, and accordingly the driver
did
not take the best possible course of action to avoid the collision
which would have been taken by a reasonable driver of this
drivers
years of experience.
43. A reasonable driver travelling on an incline would have applied
brakes even in a situation of a blow-out of a front tyre as
in the
circumstances of this case.
44. In this case the driver did apply brakes on his version but he
applied it too late.
45. It is reasonable to expect that a reasonable experienced driver
would not slam on the brakes in that situation but apply brakes
gently to avoid the risk of a corkscrew motion or the steering
turning and the available braking systems would also assist in
balancing out the effect of the brakes.
46. There is accordingly a likelihood that if he had applied the
brakes timeously he would have averted the collision or at least
minimized the effect it had because he would have been travelling
slower, or helped him to get the vehicle under control.
47. It is unlikely that the driver would have slammed on the brakes
or there would have been an over-application of brakes in this
case
in circumstances where the driver was aware of risks of overturning
caused by braking, accordingly a reasonable driver in
his position
would not have slammed his brakes but would have braked gently.
48. I would accept that his visual perception time of response would
be the norm of 1.5 seconds; I am not inclined to accept, in
the
circumstances of this case, where the driver has experienced
blow-outs previously, that it would take him longer to react as
stated by Mr Grobbelaar. I am also not disposed to consider that it
would be a shorter time as stated by Professor Dreyer because
this
opinion is not supported by any testing or authorities, although it
is likely that it would have been less for someone who
was aware of
what the sound meant.
49. Even with the 1.5 seconds visualization, perception and re-action
time, the chances of the vehicle being brought to a standstill
prior
to the collision with approximately 5 seconds to react by braking in
the prevailing circumstances appears to be reasonable
or at the very
least the effects of the collision would have been minimized
especially having regard to Mr Grobbelaar’s concession
and that
of the driver.
50. I accept that the Plaintiff expert was not an expert in the field
that he was called to testify in however the Defendant’s
expert
accepted:-
a) That the vehicle would have stopped earlier if brakes were applied
earlier.
b) That the driver conceded that he applied brakes too late, so
despite his training, he nonetheless wanted to apply brakes.
c) That neither expert had conducted tests on this particular bus
which was a modern bus fitted with ABS, EBS and had power steering
d) That there was no evidence that the vehicle was veering off the
road from side to side and that the driver had other things
to
concern himself with and could not think of braking.
51. I am satisfied that the Plaintiff has established:-
a) That the First Defendant failed to exercise proper control of the
vehicle by failing to slow down sufficiently to bring the
vehicle
under control.
b) That the First Defendant failed to brake timeously in
circumstances where a reasonable prudent driver would have braked
from
the outset to bring the vehicle under control by slowing it down
and eventually bringing it to a standstill.
c) That the First Defendant’s failure to do so was negligent in
the prevailing circumstances as it fell short of what a reasonable
driver would have done in the prevailing circumstances.
52. SUMMARY
a) I re-iterate that having regard to the concessions made by both Mr
Grobbelaar and the driver and taking due cognizance of the
reasonable
man test and the trite legal position in this regard I am of the view
that a reasonable driver in the position of this
driver would have
applied brakes and accordingly the driver’s failure to do so in
the circumstances was negligent.
b) There was also a concession by Mr Grobbelaar that the bus would
have been easier to control at a lower speed.
c) Accordingly the driver, if he had applied brakes, he would have
been in a better position to bring the vehicle under control.
d) A reasonable driver in the circumstances would have applied brakes
and attempted to use the brakes as a means to assist in bringing
the
vehicle under control particularly in circumstances where the vehicle
is equipped with ABS and EBS and power steering and was
travelling on
an incline.
e) The Plaintiff has accordingly discharged the onus resting upon him
to establish the negligence of the driver of the vehicle,
on the
grounds of failing to brake timeously and failing to keep the vehicle
under control.
53. It appears from the Rule 37 minutes that it has been accepted
that the First Defendant was employed by the Third Defendant
and that
the Third Defendant owned the bus.
54. It also appeared to be accepted that the accident was caused
during the course and scope of the First Defendant’s employment
with the Third Defendant.
55. The Third Defendant is accordingly vicariously liable for the
wrongdoing of the First Defendant.
56. I have accepted that Professor Dreyer although an esteemed and
knowledgeable Applied Mathematician unfortunately lacks the
expertise
or specialized knowledge of the braking or steering systems of
vehicles in general and of this bus in particular, as
he is not a
mechanical engineer.
57. I accordingly have to consider whether the costs of Professor
Dreyer ought to be allowed in the circumstances of this case.
58. In
Gentiruco A G v Firestone SA (Pty) Ltd
14
“
the true and practical test of the
admissibility of the opinion of a skilled witness is whether or not
the court can receive “appreciable
help” from that
witness on that particular issue”
59. In
Ruto Flour Mills Ltd v Adels
15
it was inter alia held that the opinion of an expert is received
because and whenever his skill is greater than that of the court.
60. Professor Dreyer’s testimoney whilst useful and to an
extent was supported by Mr Grobbelaar unfortunately due to his
lack
of expertise in this relevant field cannot be said to be of
appreciable help to the court and accordingly an order that the
Plaintiff be entitled to claim his costs cannot be made in the
circumstances of this case.
61. ORDER
61.1. In the circumstances I make the following order:-
The Third Defendant is held liable to compensate the Plaintiffs
for their proven or agreed damages.
The Third Defendant is directed to pay to the Plaintiffs, the
Plaintiff’s costs of suit inclusive of the travelling
and
accommodation expenses of the Plaintiff Sisa Zihlwele and his
brother Luyolo Zihlwele who are declared to be necessary
witnesses.
_____________________
F. B. A DAWOOD
JUDGE OF THE HIGH COURT
FOR THE PLAINTIFF: ADV P.A CORBETT S.C
PLAINTIFF ATTORNEYS: MALCOLM LYONS & BRIVINK INC.
REF: TB/AV/LP/Z7
C/O KEIGHTLEY ATTORNEYS
60 CUMBERLAND STREET
MTHATHA
REF: SW SIGADLA/SM0294 & SM0347
FOR THE DEFENDANT: ADV J. D MARITZ S.C
DEFENDANTS ATTORNEYS: SAVAGE JOOSTE & ADAMS INC
REF: M HAASBROEK/gk/MHC54
C/O SMITH TABATA INC
34 STANFORD TERRACE
MTHATHA
TEL: 047 531 2991
REF:
TM/nnp/RAF/B29/2010
1
(cooper
at 91)
2
(1939
OPD 140
at 148)
3
(1951
(3) SA 942
(c) at 950 H)
4
(1943
AD 141
at 150).
5
(1947
(3) SA 141
(A))
6
(1969
(2) SA 231
(N))
7
(1976
(4) SA 691
(A))
8
(1953
(2) SA 540
(A) at 546
9
(2007)
JOL 20015
(SCA)
10
(2005)
JOL 15449
(C)
11
(2004)
JOL 13205
(c)
12
(1989
(3) SA 178
C) confirmed on appeal
1990 (3) SA 445
13
CPD
Judgment p 181
14
(1972
(1) SA 589 (A) 616 H
15
1958
(4) SA 235
(T)