About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2012
>>
[2012] ZAKZPHC 5
|
|
Scrooby v Umzimkulu Planters (8541/2008) [2012] ZAKZPHC 5 (6 February 2012)
IN THE
HIGH COURT OF KWAZULU-NATAL, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE NO. 8541/2008
In the
matter between:
A SCROOBY
…....................................................................................
PLAINTIFF
and
UMZIMKULU
PLANTERS
…............................................................
DEFENDANT
______________________________________________________________
J U D G M E N T
______________________________________________________________
BALTON
J
[1] The plaintiff sued the defendants for damages to the plaintiff’s
motor vehicle in an amount of R380 511,53, interest
and costs. The
matter proceeded on liability only.
[2] A first and second third party were joined in the proceedings.
The parties agreed that the matter will proceed between the
plaintiff
and defendant only and that the costs for the third party application
will follow in the outcome of this case.
[3] It is common cause or not in dispute between the parties that:
(i) On 20 December 2006, a collision occurred at the N2 highway near
Ezinqoleni, Harding, between the plaintiff’s motor vehicle,
DMH958EC, a white 8-ton rigid truck 2006 model FAW13160 FL (“the
FAW truck”), driven by L Lugwali, and the defendant’s
vehicle, NT 6301, a 1997 model Mercedes Benz 2535 Power Liner truck,
with two trailers NPS 54914 and NPS 54915 (“the Mercedes
Benz
truck”), driven by W M Shangase.
(ii) Prior to the collision the FAW truck was travelling in a
southerly direction towards Port Shepstone and the Mercedes Benz
truck was travelling in a northerly direction towards Harding.
(iii) The Mercedes Benz truck’s trailers were carrying metal
pressings for lawn mower bodies.
(iv) The road surface was wet at the time of the collision.
(v) Both the drivers who were acting within the cause and scope of
their employment with the plaintiff and the defendant, respectively
died as a result of the collision.
(vi) Both vehicles were damaged beyond economical repair.
[4] The plaintiff alleges in its particulars of claim that the driver
of the Mercedes Benz truck was negligent,
inter alia
, in that
he changed lanes into the path of the oncoming FAW truck when it was
not safe to do so.
[5] In the plea the defendant alleges that:
(i) The driver of the FAW truck was negligent,
inter alia
, in
that he caused or allowed his vehicle to encroach upon the incorrect
side of the road and into the path of travel of the Mercedes
Benz
truck.
(ii) He failed to keep his motor vehicle under proper control and
thereby allowed it to encroach upon the incorrect side of the
road
and into the path of travel of the FAW truck.
[6] In the counter-claim the defendant alleges that the plaintiff’s
driver was the sole cause of the collision and that the
defendant
suffered damages in an amount of R217 200,00.
[7] Wilma Badenhorst, a road accident
reconstruction specialist, compiled a report
1
and testified on behalf of the plaintiff. Mr Gibb
compiled an accident reconstruction and tachograph analysis report
2
and testified on behalf of the defendant.
[8] From the photographs, Badenhorst and Gibb’s evidence, it is
not in dispute:
(a) The FAW truck:
(i) Sustained contact damage to its right front corner and side.
(ii) Sheet metal and vehicle engine parts located at the right front
and side experienced rearwards and inwards displacement.
(iii) The right front corner of the low bin of the FAW truck
sustained contact damage. The cab portion suffered right to left
displacement relative to its lower bin portion. The right front rim
and tyre became separated from its drum.
(b) The Mercedes Benz truck was damaged as follows:
(i) The mid front, right front and front right hand side show
extensive contact damage. The contact damage started in the vicinity
of the mid front and extended toward and around the right front
corner and down the front of the right hand side. Sheet metal and
vehicle engine parts, situated at the right front and side
experienced rearwards and sideways displacement in a left to right
manner (that is outwards displacement).
(ii) The cab as a whole experienced rearwards, as well as outwards
displacement relative to its chassis. The right front door became
lodged around the right front corner of its front first semi-trailer
after it was ripped off.
(iii) The rear panel of the front semi-trailer came into contact with
the front panel of the rear semi-trailer.
(iv) The front portion of the front semi-trailer twisted in a left to
right direction relative to its rear portion. As a result
of the
impact the Mercedes Benz truck experienced a clockwise rotation
around its fifth wheel.
[9] Both Badenhorst and Gibb were unable to deduce the speed at which
the vehicles were travelling and agree that the first contact
was
between the right front of the two vehicles.
[10] It is common cause that there are brake marks of approximately
19 metres on the Mercedes Benz’s truck lane of travel.
[11] The issue for determination is which driver caused the
collision.
[12] Badenhorst testified that her observations are based on the
damage to the vehicles, the road marks and the photographs. She
did
an inspection-in-loco on 15 January 2007. Tyre collision scrape marks
and road scars were still visible. The skid marks were
no longer
visible.
[13] Badenhorst stated that:
(i) Due to the damage to the FAW truck she was able to determine the
direction of the force and impact.
(ii) The Mercedes Benz truck was heavier than the FAW truck and the
collision had a greater effect on the FAW truck.
[14] Badenhorst stated that the final rest positions of the vehicles
as she noted from the accident report form, are:
(i) The FAW truck came to rest mainly off the road surface on the
eastern side of the road with its front facing in the original
direction of travel. The rear portion of the FAW truck came to rest
on or against an uphill embankment.
(ii) During the site inspection, marks on the gravel/grass surface of
the embankment on the eastern side of the road, confirmed
the final
rest position of the FAW truck as indicated in the accident report
form.
(iii) The Mercedes Benz truck came to rest with its front portion on
the southbound lane, that is in the FAW truck’s lane
of travel.
[15] She concluded that:
(i) The physical evidence on the road in the form of tyre and scrape
marks, indicate that the area of impact was in the FAW truck’s
lane of travel.
(ii) When considering the location and orientation of the FAW truck’s
marks, it is clear that the FAW truck was pushed back
by the Mercedes
Benz truck.
(iii) Considering the angle between the two vehicles and the marks on
the road surface, it is clear that the Mercedes Benz truck
drifted/moved over into the FAW truck’s lane of travel.
(iv) The driver of the FAW truck would not have been able to avoid
the collision due to the geometric design of the road and the
limited
space available.
[16] In cross-examination she confirmed that the scrape marks on the
road were a few millimetres deep and were caused by force
of the
metal surface on the road. The marks were made by extreme forces, it
could not have been caused by dragging. Exhibit C indicates
that the
white cement patch is in line with the skid marks. The marks were
caused by the FAW truck being pushed by great force
or impact.
[17] She was unable to say whether the FAW truck pushed the Mercedes
Benz truck door backwards and onto the trailer, because the
right
rear portion of the cab of the Mercedes Benz truck came into contact
with the front of the FAW truck.
[18] Mr Gibb testified that:
(i) He attended the scene of the accident on 20 December 2006.
(ii) The Mercedes Benz truck was in a lay-bye on the north eastern
side of the road facing Port Shepstone after the collision.
(iii) The South African Police (“the SAP”) made paint
marks on the road indicating the final position of the tyres
of the
Mercedes Benz truck. The marks around the tyres of the rear trailer
of the Mercedes Benz truck were in the left lane with
the right wheel
to the left of the centre of the line.
(iv) The rear tyres of the front trailer of the Mercedes Benz truck
were slightly more to the right, but mainly in the Harding
bound
lane.
(v) The right rear side tyres of the Mercedes Benz truck appeared to
be on the centre line with a circle and an “X”
painted on
the Port Shepstone bound lane to the right of the yellow line. The
SAP usually indicates the point of impact with a
circle and an “X”.
(vi) The road was wet and covered with cement in order to absorb oil
spillage and it was difficult to find further marks. Tyre
impact
marks were obscured by the cement on the road surface.
(vii) He does not agree with the SAP’s deduction and presumes
that the “X” was made close to the right front
of the
Mercedes Benz truck.
(viii) On 21 December 2006, he was given photographs taken soon after
the collision. He states two single brake marks of 19 metres
long can
be seen to the rear of the paint marks made by the SAP when
positioning the rear trailer’s tyres of the Mercedes
Benz truck
after the collision.
(ix) In his opinion, if the defendant’s driver was travelling
at 80 km/h (22.2 metres per second) and as the accepted reaction
by
the CSIR in an emergency situation is 1.5 seconds, he would have
travelled about 22.2 x 1.5, that is 33 metres before braking,
giving
a total distance of over 50 metres from where he saw the FAW truck
approaching on the “wrong side of the road”.
(x) The FAW truck must have travelled for quite some distance on the
south bound lane with the driver making no attempt to move
into his
lane.
(xi) The Mercedes Benz truck’s driver saw the oncoming vehicle
and applied brakes reducing the speed greatly but a violent
collision
occurred with the extreme right side of both the cabs. The trailers
remained almost straight proving that the Mercedes
Benz truck was
knocked sideways into the northbound lane.
(xii) Judging from the damage, and the fact that the Mercedes Benz
truck had braked hard for at least 19 metres, the FAW truck
must have
been travelling exceedingly fast to cause the first trailer of the
Mercedes Benz truck to bend in the middle and the
rigid truck to
almost disintegrate.
(xiii) The police only marked the position of the vehicles after the
collision and not where they were immediately prior to the
impact.
(xiv) The Mercedes Benz truck must have been facing towards Harding
at the time of the impact.
Due to the impact force being very high on the right front of the
FAW truck’s cab, the velocity would have been reduced
almost
instantly to zero.
The left side of the vehicle would have continued to move and pivot
in a clock wise direction. This would have resulted in the
rear of
the vehicle landing at an angle on the grass bank.
The Mercedes Benz truck would also have pivoted on the fifth wheel
and the combination having a slightly heavier mass than the
loaded
8-tonner would probably have moved forward a few metres whilst
having been knocked to the right. This would account for
the front
trailer landing slightly over the centre line but with the
truck/tractor being knocked into the oncoming traffic lane.
The driver of the FAW truck encroached into the path of the Mercedes
Benz truck and a collision occurred.
[19] It is common cause that the brake marks are on the Mercedes Benz
truck’s side of the road. These veer slightly to the
centre of
the road. The question arises as to why would the Mercedes Benz truck
have braked and moved to the centre of the lane.
[20] In Badenhorst’s opinion the Mercedes Benz truck was in the
incorrect lane of travel. The rotation caused the Mercedes
Benz truck
to rotate clock-wise from the area of impact, further into its
incorrect lane of travel. The FAW truck moved out of
the road because
of the rotation and impact. She agreed that the Mercedes Benz driver
would have braked hard and thus locked his
wheels and in those
circumstances the driver had lost control.
[21] In Gibb’s opinion the Mercedes Benz truck was on its right
path of travel because of the skid marks. The skid marks
starts on
its correct side of the road and veers slightly to the centre lane
between the markings, close to where the collision
occurred. The area
of impact is in the cement area.
[22] Gibb stated that the FAW truck must have been in the incorrect
lane of travel thus causing the Mercedes Benz truck to brake.
He was
unable to substantiate this view with any reliable evidence. He was
further unable to say why the Mercedes Benz truck braked.
He agreed
that it was common cause that immediately after the accident the
Mercedes Benz truck rotated to the right.
[23] This Court is unable to accept Gibb’s view that the
Mercedes Benz truck must have braked because the FAW truck was in
its
path of travel. There are endless possibilities as to what could have
caused the Mercedes Benz to brake.
[24] The marks clearly indicate that the Mercedes Benz truck moved
towards the centre line. By the time of first impact, the vehicles
were in the FAW truck’s path of travel as explained by
Badenhorst.
[25] This Court accepts Badenhorst’s conclusion based on all
the available evidence that the Mercedes Benz truck entered
the FAW
truck’s part of travel. On the probabilities, especially when
regard is had to the skid marks extending to the centre
of the lane,
then it can safely be concluded that the Mercedes Benz truck moved
into the FAW truck’s path of travel. The
reason why it did so
is unknown. The reliable evidence is that the Mercedes Benz truck
moved into the FAW truck’s path of
travel. There is no evidence
to gainsay this.
[26] This Court is accordingly satisfied that the accident was caused
by the driver of the Mercedes Benz truck.
[27] The following order is made:
(i) The driver of the Mercedes Benz truck caused the collision on 20
December 2006.
COUNSEL FOR THE PLAINTIFF: MR VAN VUUREN
(Instructed by:
Hardam & Associates Inc
P O Box 11008
CENTURION
c/o Austen Smith Attorneys
PIETERMARITZBURG.)
COUNSEL FOR THE DEFENDANT: MR TOPPING
(Instructed by:
Goodrickes Attorneys
6
th
Floor
6 Durban Club Place
DURBAN.
c/o Leslie Smith
PIETERMARITZBURG)
DATES OF TRIAL: 24, 25 AND 26 AUGUST 2011
JUDGMENT HANDED DOWN ON: 6 FEBRUARY 2012
1
Page
48 – 97 of Exhibit B.
2
Page
11 – 15 of Exhibit B.