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[2012] ZAKZPHC 31
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McAlister v Wavelengths 1188 CC and Another (3163/2010) [2012] ZAKZPHC 31 (29 May 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. 3163/2010
In the matter between
:
CHARLES WALLIE
MCALISTER
….............................................
PLAINTIFF
and
WAVELENGTHS 1188 C C
….......................................
FIRST
DEFENDANT
LEONARD THEMBA MAZEKA
…............................
SECOND
DEFENDANT
JUDGMENT
Delivered on 29 May 2012
SWAIN J
[1] The evidence presents
two mutually destructive versions of how a collision occurred between
a Volvo motor vehicle and an International
horse, towing two trailers
in a traffic circle in Pietermaritzburg, KwaZulu-Natal.
[2] It is common cause:
[2.1] That the collision
took place within the confines of the traffic circle, more commonly
known as the Chatterton Road circle.
[2.2] That the truck
entered the traffic circle from Armitage Road, having travelled from
the direction of the Liberty Mall.
[2.3] That after the
collision, the position of the vehicles was as depicted on the
photographs appearing at page 30 of Exhibit
“A”.
[2.4] That the plaintiff
was driving the Volvo motor vehicle and the second defendant was
driving the truck, in the course and scope
of his employment with the
first defendant.
[3] I am only asked to
determine the issue of liability at this stage and I accordingly made
an order in terms of Rule 33 (4) separating
the issues of liability
and quantum at the outset of the hearing.
[4] At the outset it is
appropriate to note the correct approach, when a court is faced with
two mutually destructive versions.
It is clear that “
where
there are two mutually destructive versions the plaintiff can only
succeed if he satisfies the Court on a preponderance of
probabilities
that his version is true and accurate and therefore acceptable, and
that the other version advanced by the defendant
is therefore false
or mistaken and falls to be rejected. In deciding whether that
evidence is true or not, the Court will weigh
up and test the
plaintiff’s allegations against the general probabilities. The
estimate of the credibility of a witness will
therefore be
inextricably bound up with a consideration of the probabilities of
the case and, if the balance of probabilities favours
the plaintiff,
then the Court will accept his version as being probably true. If
however, the probabilities are evenly balanced
in the sense that they
do not favour the plaintiff’s case any more than they do the
defendant’s, the plaintiff can
only succeed if the Court
nevertheless believes him and is satisfied that his evidence is true
and that the defendant’s version
is false”
National Employers
General Insurance v Jagers
1984 (4) SA 437
(E)
at 440 D – G
“
It is only
where a consideration of the probabilities fails to indicate where
the truth probably lies, that recourse is had to an
estimate of
relative credibility apart from the probabilities”.
Jagers
supra
at 441 A
[5] The evidence of the
plaintiff was that he had been watching his son playing rugby at St.
Charles College and left at approximately
09h40 to travel to his
father’s home in Chase Valley. The route he followed was by
entering the N3 highway at the New England
Road onramp, travelling
along the N3 until he reached the Liberty Mall offramp, where he
turned off and followed the road to the
Chatterton Road traffic
circle. He said he had chosen not to travel through town to his
destination, because it was a Saturday
morning and he believed there
would be heavy traffic in the centre of town. By reference to an
aerial photograph of the intersection
(Exhibit “B”) he
indicated with an “X” and an arrow the direction in which
he approached the traffic circle.
He said he was in the left hand
lane of the two lanes of traffic, available for vehicles to access
the traffic circle. He had to
stop at the entrance to the traffic
circle, to allow vehicles travelling in the circle to pass. At this
stage he observed the vehicle
driven by the second defendant,
travelling behind his vehicle in the right hand lane. He described
the vehicle as a large pantechnicon
towing a flat bed trailer which
was not loaded. As he pulled off to enter the circle, he was unable
to say where the truck was
because when he had last seen it, it was
some way behind him. He then proceeded to travel around the circle in
the outer lane,
and when opposite the Chatterton Road entrance, at a
point he marked “Y” on Exhibit ”B”, he felt
an impact
which he sensed was on the right hand side of the vehicle,
near the front before the driver’s door. He said he
“sensed”
the impact because it happened quickly and his vehicle
was turned around sideways by the impact. He did not see the impact
and the
next thing his vehicle was in front of the truck. The
position of the vehicles after the accident, was as depicted on the
photographs
appearing at page 30 of Exhibit “A”. He
marked this point as “Z” on Exhibit “B”.
After the
collision he spoke to the second defendant, whilst the
second defendant was seated inside the cab of the truck. He asked
second
defendant what he thought he was doing. Second defendant
replied that he was travelling to the Town Bush Valley exit of the
circle,
which the plaintiff marked on Exhibit “B” with an
“A”. The second defendant, according to the plaintiff,
added that, “
did he not realise that the truck needed
two lanes to turn?”
which was the end of the
conversation.
[6] When cross-examined
he said that he did not notice whether the second defendant had
entered the circle, at the same time as
he did and did not notice the
truck in the circle with him. He agreed that on his version the
second defendant must have been travelling
in the inside lane of the
circle, whilst he was travelling in the outer lane. He said he was
not able to pin-point the exact location
of the collision, but it was
between points “Y” and “Z” on Exhibit “B”.
He was unable to accurately
estimate the distance his vehicle was
pushed by the truck. When he was travelling around the circle there
were other vehicles in
the circle, but not close to his vehicle. When
he entered the circle there were no vehicles travelling on his right
hand side.
[7] The second defendant
said that he was driving an International truck, towing two trailers,
which were not loaded, travelling
from his place of employment at
Cato Ridge to Sappi at Howick, to fetch a load. He travelled along
the N3 intending to travel along
it to Howick. When he was near the
Church Street off-ramp from the N3, he was phoned by his boss to tell
him he must return to
Cato Ridge, to fetch some documents. He
accordingly left the N3 at the Liberty Mall off-ramp, with the
intention of returning to
Cato Ridge. He was then phoned by his boss
to say he must not return, as he would come to the second defendant.
By reference to
an aerial photograph, Exhibit “C” of the
circle, he marked the spot where he entered the circle as “X1”
and where the collision occurred as “X2”. He entered the
circle via the left lane proceeding into the outer lane of
the
circle. When asked by Mr. de Wet S C, who appeared for the
defendants, whether there were any vehicles in the right hand lane,
when he entered into the left lane, he replied in the affirmative.
When asked by Mr. de Wet how many vehicles there were he said
he only
remembered a vehicle in front of him and not on his right hand side.
When he was again asked by Mr. de Wet whether there
were vehicles on
his right hand side or whether he did not remember this, he said
there were, but he could not remember how many.
The second defendant
said he never changed lanes within the circle because he wanted to
keep to the left. He saw a vehicle but
he did not recall whether it
was a Volvo. When he saw this vehicle it was at the point “X3”
which he marked on Exhibit
“C”. At this stage his vehicle
was at point “X4”, which he marked on Exhibit “C”.
He said at
this stage the vehicle was far away. He initially said
that he had seen the Volvo entering the circle because the road
proceeded
into the circle. When I asked him again whether he had seen
it enter the circle, he said he had not because it was not visible.
He said that where he was seated in the truck, which was a right hand
drive and elevated, he could not see vehicles entering the
circle
from the left hand side. He could see vehicles in front, but to see
vehicles next to the truck he had to use his outside
mirrors. He saw
the vehicle approaching, thinking that the vehicle was supposed to
stop. He then could not see it because it was
on his left hand side,
when he heard a noise from the front of the truck. He stopped the
truck, looked in his mirrors and saw nothing
so he proceeded. A
vehicle approaching from the direction of the Showgrounds hooted at
him and the driver pointed at the front
of his truck. He stopped his
truck and stood up in the cab and saw the plaintiff’s vehicle
in front of his truck, with the
plaintiff inside it. He did not speak
to the plaintiff, save that the plaintiff asked him after the
collision to stop smoking because
“they would be
tested”.
[8] When cross-examined
and asked where he wished to exit the traffic circle, he indicated
the Town Bush Valley Road with a point
marked “X5” on
Exhibit “C”. When he was asked why he then travelled in
the outer lane, he replied it was
because
“the truck
with the trailers, needed two lanes to turn”.
This
was caused by the length of the truck and trailers. However, he
denied ever saying this to the plaintiff after the collision.
He
stated it was necessary to travel in the outer lane, to negotiate the
circle, otherwise the wheels of the trailer would travel
over the
centre island. He agreed, when I put it to him, that it was
accordingly important to enter the circle in the left hand
lane and
if the circle was entered from the right hand lane, it would be
necessary to turn into the left hand or outer lane, to
negotiate the
circle. He initially said that before the collision he was travelling
at between 20 to 40 kilometres an hour, but
when it was put to him
that the distance between points “X1” (where he stopped)
and point “X4” (where he
was when he saw the plaintiff’s
vehicle) was a short distance, he revised his speed to between 10 to
20 kilometres per hour.
He said that he believed the driver of the
Volvo thought he would manage to enter the circle before him and
agreed that his truck
was visible to the plaintiff. He said that he
had used the circle on a daily basis, as when he was in Victoria
Road, he would turn
into Chatterton Road and travel towards the
traffic circle.
[9] What are the general
probabilities against which the plaintiff’s version must be
weighed? Shorn of irrelevant details,
the evidence reveals the
following in respect of the two mutually destructive accounts, of how
the collision occurred.
[10] On the plaintiff’s
version he entered the traffic circle at the same access point as the
second defendant, and was travelling
in the outer line at the time of
the collision. The truck of the second defendant was following him,
before he entered the circle
in the right hand approach lane. As he
entered the circle he did not see where the second defendant’s
truck was. On the plaintiff’s
version, the second defendant
must have entered the circle shortly after the plaintiff, with the
plaintiff’s vehicle alongside
the cab of the second defendant,
with the plaintiff’s vehicle travelling in the outer lane and
the second defendant’s
truck travelling in the inner lane. On
the evidence of the second defendant, as he was on the right hand
side of the truck, he
would not have been able to see the plaintiff’s
vehicle in this position. The second defendant travelling in the
inner lane
would have been obliged to move into the outer lane, to
negotiate the circle and if he did so at that moment, he would have
collided
with the right hand side of the plaintiff’s vehicle,
as described by the plaintiff, at a time when the plaintiff’s
vehicle was not visible to the second defendant.
[11] On the second
defendant’s version, the plaintiff must have seen the second
defendant’s truck approaching from the
right hand side of the
circle, as the plaintiff approached the circle down Chatterton Road.
On the second defendant’s version
the plaintiff must have
driven straight in front of his approaching truck, because he placed
the point of collision, immediately
adjacent to the entry of the left
hand lane of Chatterton Road, into the circle.
[12] I regard it as
grossly improbable that regard being had to the size of the second
defendant’s truck, the plaintiff would
have attempted to cut in
front of it and enter the circle, in what can only be described as a
suicidal manoeuvre. The second defendant’s
explanation that he
believed the plaintiff thought he would manage to enter the circle
before the second defendant, rings hollow
when regard is had to the
second defendant’s evidence, that he did not see the
plaintiff’s vehicle enter the intersection,
and the immediate
proximity of the place where he placed the collision, to the point of
entry from the direction he says the plaintiff
approached.
[13] The version of the
plaintiff is supported by the evidence of the second defendant, which
vividly illustrates the limited visibility
and awareness the second
defendant had of the movements of vehicles around his truck, as he
negotiated the circle. The second defendant
was initially unaware
that a collision had even occurred and that the plaintiff’s
vehicle was located across the front of
his truck. When he heard the
noise of the collision, he stopped, checked his rear view mirrors,
and then carried on. It was only
when another motorist alerted him as
to the presence of the plaintiff’s vehicle that he stopped,
stood up in the cab and
saw the plaintiff’s vehicle in front of
his truck. This evidence lends support to the plaintiff’s
version, that the
second defendant could not have seen his vehicle in
the outer lane before colliding with it.
[14] I am accordingly
satisfied that the probabilities of the case favour the plaintiff’s
version and that the plaintiff’s
version is probably true.
[15] I am also satisfied
of the truth of the plaintiff’s version by a number of other
aspects of the evidence. I find it of
significance that when the
second defendant was asked by Mr. Ender, who appeared for the
plaintiff, to explain why he was travelling
in the outer lane of the
circle and put it to him that if he wished to exit the circle up Town
Bush Road, he should have been travelling
in the inner lane, second
defendant answered that
“the truck with the trailers
needed two lanes to turn”.
This was the same
explanation that the plaintiff, maintained the second defendant
offered to him, after the collision, when the
second defendant said
to plaintiff,
“did he not realise that the truck needed
two lanes to turn?”
Although the second defendant
denied saying this to the plaintiff, I am satisfied that the
explanation offered by the second defendant,
as to why it was
necessary for him to negotiate the circle in the outer lane, in Court
and to the plaintiff immediately after the
accident, is too cogent to
be dismissed as mere coincidence. In fact this explanation lies at
the heart of how the accident occurred,
dictated as it was by a need
on the part of the second defendant to negotiate the circle in the
outer lane, after having initially
entered the circle on the inner
lane.
[16] The second defendant
did not make a good impression upon me when giving evidence. His
answers to questions which demanded a
simple
“yes”
or
“no”
were often drawn
out and convoluted. He also vacillated in his answers to simple
issues, examples being his variation in the speed
he was travelling
at, when faced with the short distance between the spot where his
vehicle was when he saw the plaintiff’s
vehicle and where he
had stopped, before entering the circle. In addition, he had
difficulty when giving evidence in chief, as
to whether there were
vehicles on his right hand side whilst travelling in the circle. I
was also not impressed by his demeanour,
which was dominated by a
contrived abundance of confidence in his version of events. By
contrast, I was impressed by the demeanour
of the plaintiff, and that
he was not prepared to speculate upon how the accident happened and
only recounted what he recalled,
when he could have embellished his
evidence to explain where the truck was travelling in the circle,
immediately before the collision.
[17] I am accordingly
satisfied that the plaintiff’s version of how the collision
occurred is true and that the second defendant’s
version is
false.
[18] On the plaintiff’s
version of events there was no negligence on his part, which
contributed to the collision, and consequently
the defendant’s
claim of contributory negligence on the part of the plaintiff must
fail.
[19] Counsel did not
address me on the issue of an award of costs at this stage of the
proceedings. The plaintiff has been successful
in establishing
liability on the part of the defendants, to compensate him for any
damages he may subsequently prove to have suffered.
The amount
claimed is R120,034.88 and when this amount is finally determined,
whether by way of agreement, or by order of this
Court, there may be
some argument that a costs order in favour of the plaintiff, should
not be on the High Court scale. In the
event that this issue requires
further argument, the costs order which I intend to make will be
provisional at this stage.
I accordingly make the
following order:
It is declared that the
first and second defendants are liable, jointly and severally, the
one paying the other to be absolved,
to compensate the plaintiff for
any damages he may subsequently prove to have suffered as a
consequence of a collision which
occurred on 09 July 2007.
The first and second
defendants are ordered to pay the plaintiff’s costs to date
jointly and severally, the one paying the
other to be absolved, plus
V A T.
The first and second
defendants are ordered to pay interest on the aforesaid costs of
suit at the rate of 15.5% per annum
a tempore mora
, from the
date of the taxing master’s
allocatur
, to date of final
payment.
The order for costs in
paragraphs (b) and (c) above, will be provisional for the period
until 08 June 2012, and, up to that date,
the parties have leave to
file and serve a notice, recording their intention to submit further
argument on the question of costs.
Thereafter and by arrangement
with the Registrar the matter may be set down for further argument
on the issue of costs. Failing
such notification, the order for
costs will become final on 09 June 2012.
__________
K. SWAIN J
Appearances
/
Appearances:
For the Plaintiff :
Mr. G. Ender
Instructed
by
:
Mellows & De Swardt
Co
Venn Nemeth & Hart Inc.
Pietermaritzburg
For
the 1
st
& 2
nd
Defendants:
Mr. A. de Wet S C
Instructed
by :
Botha & Sutherland
C/o Weakley Greene Parau
Pietermaritzburg
Date of Hearing :
23 May 2012
Date of Filing of
Judgment :
29 May 2012