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[2011] ZAKZDHC 11
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Arabian Peninsula Trading Ltd v Onelogix (Pty) Ltd, Trevton Farms CC v Arabian Peninsula Trading Ltd and Another (1945/2007, 13200/2006) [2011] ZAKZDHC 11 (2 March 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO. 1945/2007
In the matter between:
ARABIAN PENINSULA
TRADING LIMITED
….......................
PLAINTIFF
and
ONELOGIX (PTY) LIMITED
….............................................
DEFENDANT
AND
CASE NO. 13200/2006
In the matter between:
TREVTON FARM cc
…............................................................
PLAINTIFF
and
ARABIAN PENINSULA
TRADING LTD.
…..............
FIRST
DEFENDANT
ONELOGIX (PTY) LIMITED
….............................
SECOND
DEFENDANT
JUDGMENT
Delivered
on 02 March 2011
SWAIN J
[1] Before me are two
consolidated actions arising out of a collision, which it is common
cause, occurred between two large trucks
both travelling on the N3
highway, in the direction of Durban, on 03 May 2006.
[2] In Case No. 1945/2007
the plaintiff, Arabian Peninsula Trading Limited (Arabian Peninsula)
seeks payment of damages in the sum
of R128,283.96 from the
defendant, Onelogix (Pty) Limited (Onelogix), as a result of damage
caused to the truck of Arabian Peninsula
in the collision, which it
is alleged was caused solely by the negligence of the driver of the
vehicle of Onelogix.
[3] Onelogix denies the
allegations of negligence and pleads that its driver was faced with a
sudden emergency, in that an unknown
vehicle in front of the Onelogix
truck,
“suddenly and unexpectedly braked”.
[4] In Case No.
13200/2006 the plaintiff Trevton Farm cc (Trevton) seeks payment of
damages in the sum of R159,200.00 from the first
defendant (Arabian
Peninsula) alternatively, the second defendant (Onelogix)
alternatively, both Arabian Peninsula and Onelogix
jointly and
severally, as a result of damage which it is common cause was caused
to a vehicle of Trevton, by a door which was ripped
from the truck of
Arabian Peninsula in the collision and which struck Trevton’s
vehicle, which was travelling on the opposite
carriageway of the N3
highway, in the direction of Pietermaritzburg. Trevton alleges that
the collision was caused by the negligence
of the driver of the
Arabian Peninsula vehicle, alternatively by the negligence of the
driver of the Onelogix vehicle, alternatively
by the joint negligence
of both of these drivers.
[5] It is common cause
between all of the parties that the respective plaintiffs have
locus
standi
to sue in respect of the damage caused
to their vehicles and that Arabian Peninsula, Onelogix and Trevton
are vicariously liable
for any wrongdoing, which may be established
against their respective drivers.
[6] I am only asked to
determine the liability of the respective parties, as it is agreed
that the quantum of Arabian Peninsula’s
damages is R92,005.00
and that of Trevton is R139,833.33
[7] On the evidence the
following facts are common cause, or not in dispute:
[7.1] Both vehicles were
travelling towards Durban on the N3 highway, where there are three
lanes of traffic.
[7.2] On the day in
question the left hand lane had been closed to traffic, because of
construction work.
[7.3] In the vicinity of
where the collision occurred, there were consequently only two lanes
of traffic available for vehicles
travelling towards Durban.
[7.4] At the time of the
collision, the Arabian Peninsula vehicle was in the process of
overtaking the vehicle of Onelogix.
[7.5] The point of impact
was between the left rear portion of the trailer of the Arabian
Peninsula vehicle, and the right rear
corner of the second trailer of
the Onelogix vehicle (
the “pup” trailer
).
[7.6] The rear
“pup”
trailer of the Onelogix vehicle ended up partially in
the fast lane, after the collision.
[7.7] The driver of the
Onelogix vehicle braked before the collision.
[7.8] After the collision
the driver of the Onelogix vehicle told the driver of the vehicle of
Arabian Peninsula, that there was
a vehicle in front of him which had
“disturbed”
him and he applied his
brakes. In this regard there was however a dispute between the
drivers, when giving evidence, as to the description
of this vehicle.
The Arabian Peninsula driver maintained that the vehicle had been
described as a
“bus”
, whereas the
Onelogix driver said he described it as a
“construction
vehicle”.
[7.9] As a consequence of
the collision, a rear door was ripped off the vehicle of Arabian
Peninsula, travelled across the road
and struck the Trevton vehicle,
causing damage to it.
[8] Mr. Mthwa, was the
driver of the Arabian Peninsula vehicle, and Mr. Ndlovu drove the
vehicle of Onelogix. Mr. Mthwa furnished
an explanation of how the
collision occurred between his vehicle and the
“pup”
trailer of the vehicle of Onelogix, whereas Mr. Ndlovu,
other than saying he heard a loud bang, did not venture an
explanation,
because he said he was looking forwards at the
construction vehicle ahead of him at the time of the collision.
[9] Mr. Mthwa maintained
that at the time of the collision he was travelling alongside the
vehicle of Onelogix, both vehicles were
level, when the vehicle of
Onelogix braked because, as he put it
“the problem was
the road ahead which had an obstruction”
. He
stated however that he did not see any vehicle in front of the
vehicle of Onelogix, which might have distracted the driver.
It is
therefore clear that the obstruction in the path of the Onelogix
vehicle which, according to Mr. Mthwa caused the other driver
to
brake, was the closure of the left lane. He explained that the
braking of the Onelogix vehicle caused it to jack-knife, with
the
result that the
“pup”
trailer
collided with his vehicle.
[10] On the version of
Mr. Mthwa, it is therefore necessary, for the accident to have
happened as he alleges, that the vehicle of
Arabian Peninsula was
travelling in the middle lane at the time of the collision, and that
of Onelogix was travelling in the extreme
left lane. It is in this
important respect that Mr. Mthwa vacillated in his evidence. He
stated that before the accident he was
travelling in the extreme left
hand slow lane and changed into the
“right”
lane,
because he noticed sign boards indicating construction works ahead.
When I asked him by reference to photograph 5 on Annexure
“B”,
which depicted the area where the collision occurred, whether the
collision took place in the left, middle or
right lane, he replied
that it had occurred in the
“right lane”.
When
I repeated the question, he then said the accident happened in the
middle lane. When I pointed out to him that he had just
said it
occurred in the right lane, he said that he had moved to his right
from the left lane, which was the middle lane.
[11] Regard being had to
the fact that Mr. Mthwa was testifying through an interpreter, and is
clearly not a sophisticated person,
this contradiction standing alone
may be more apparent than real, were it not for the problems he
encountered in this regard, when
cross-examined by Mr. Wolmarans, who
appeared for Onelogix. Mr. Mthwa was referred to a motor accident
claim form, appearing at
pages 12 – 19 of Exhibit “A”
and confirmed that his signature appeared upon it and that he had
furnished the
details of the accident contained therein. As regards a
sketch of the positions of the vehicles at the time of the collision,
he
said he did not agree with the way the vehicles were depicted. In
the sketch the vehicle he was driving, was depicted travelling
in the
fast lane. When I asked him to indicate on the sketch with an “X”,
the lane he was travelling in, he again indicated
the fast lane. He
stated that although he was present when the sketch was drawn, he did
not pay minute attention to it, but agreed
the sketch had been shown
to him at the time.
[12] As regards the
description of how the accident occurred, the following is recorded:
“
The truck in
front of me put dead brakes. I put my indicators to change lanes to
the fast lane and then his last trailer jack-knifed
onto my trailer”.
This description
obviously contradicts his evidence that the reason why he moved to
his right, was because of the presence of signs
indicating the left
hand lane was closed. In addition the description indicates that he
moved into the
“fast lane”
which is
the right lane, which accords with the sketch plan. I am acutely
aware that care must be exercised in not placing too much
weight upon
the accuracy of very terse descriptions of how an accident occurred,
contained in an accident claim form. What is of
concern however is
how Mr. Mthwa attempted to explain the description of the accident
under cross-examination.
[13] He agreed that the
Onelogix vehicle was travelling ahead of him, but said this was while
he was travelling in the slow lane.
He agreed that it braked and
because of this he moved to his right hand side. When Mr. Wolmarans
put it to him that what he was
now saying differed from what he had
previously said, he replied that
“he did not know”.
When it was put to him, that on this version, the
collision occurred whilst he was trying to avoid the Onelogix vehicle
in front
of him, he denied this. He maintained that he was already in
his lane when the Onelogix vehicle braked.
[14] Mr. Mthwa’s
problems were further compounded, when he was cross-examined by Mr.
Oliff, representing Trevton. He said
that he was the distance of two
small vehicles away from the Onelogix vehicle, behind it in the slow
lane when the Onelogix vehicle
braked. When he was challenged by Mr.
Oliff, that regard being had to the speed he said he was travelling
at, being seventy five
to eighty kilometres per hour, this was too
short a travelling distance, he maintained there was a very long
distance between their
vehicles. When he was asked whether he was
behind the Onelogix vehicle, when he saw it braking, he replied that
as he came behind
this vehicle, it slammed its brakes on and he then
moved to the other lane. He later added that he saw something was
disturbing
the driver of the Onelogix vehicle, because he saw him
slam his brakes on and then release them and so he moved to the right
lane.
After this the Onelogix vehicle continued travelling forwards,
but he did not see whether there was anything in front of the
Onelogix
vehicle. When Mr. Oliff asked him whether he had seen the
Onelogix vehicle jack-knife he replied
“not at that
time”
and maintained that he had left the lane he
was travelling in and had moved to the right. When Mr. Oliff
suggested to him that the
alleged jack-knifing of the Onelogix
vehicle must have happened at the same time as the braking, his reply
was that he did not
want to comment on this. When M/s Askew, who
appeared for Arabian Peninsula, asked him in re-examination, whether
the brake lights
had any effect on the Onelogix vehicle jack-knifing,
his reply was
“No I can’t explain what I don’t
know”.
[15] Regard being had to
the above, it is clear that on Mr. Mthwa’s own evidence, his
initial claim that he moved to his right
to overtake the vehicle of
Onelogix, because he saw that the left slow lane was closed, cannot
be true. It is also clear on his
evidence that he moved to the right
to avoid the Onelogix vehicle when it braked, and that at this stage,
he must have been following
the Onelogix vehicle in the middle lane.
That he moved into the right fast lane, to overtake the Onelogix
vehicle, is consistent
with the sketch contained in the motor
accident claim form. In addition, when regard is had to the fact that
on his own evidence,
he was travelling a distance of two small cars
behind the Onelogix vehicle, whilst travelling at a speed of 75 –
80 kilometres
per hour, approaching an area where construction work
had blocked the left lane, he did not allow a sufficiently safe
following
distance behind the Onelogix vehicle. In addition, a
finding that Mr. Mthwa moved to his right to avoid the Onelogix
vehicle, is
inconsistent with his evidence that at the time of the
collision his vehicle was level with the Onelogix vehicle, travelling
alongside
it. There would have been insufficient time for the Arabian
Peninsula vehicle to complete its manoeuvre into the fast lane and
move alongside the Onelogix vehicle, if Mr. Mthwa only commenced
taking avoiding action, when the Onelogix vehicle braked.
[16] It is therefore
clear on the evidence of Mr. Mthwa, that he drove the Arabian
Peninsula vehicle negligently, but the issue
that remains is whether
his negligent conduct was a cause of the collision and if so, whether
it was the sole cause, or only a
contributory cause, regard being had
to whether the driver of the Onelogix vehicle was also contributorily
negligent, in relation
to the collision.
[17] The significance of
this issue to the claim advanced by Arabian Peninsula against
Onelogix, lies in the fact that in this claim,
Onelogix does not
allege there was any contributory negligence on the part of the
driver of the Arabian Peninsula vehicle, being
content to deny that
its driver was negligent in the respects alleged and pleading that
its driver acted in circumstances of a
“sudden
emergency”
. In addition, there is no counter-claim
advanced by Onelogix for the damage done to its vehicle.
Consequently, although I have
found that the driver of the Arabian
Peninsula vehicle acted negligently, if it is established that the
driver of the Onelogix
vehicle, acted negligently and such negligence
was a cause of the collision, Arabian Peninsula would be entitled to
succeed against
Onelogix, in respect of the damage caused to its
vehicle.
[18] This issue is also
of significance in relation to the claim advanced by Trevton, in
order to decide whether Onelogix is jointly
and severally liable with
Arabian Peninsula, to compensate Trevton for the damage caused to its
vehicle. It is also of significance
in regard to the defence raised
by Arabian Peninsula, in the alternative, to the claim of Trevton,
that the collision was partially
caused by the driver of the Onelogix
vehicle, and that the damages of Trevton should be apportioned
between them.
[19] Turning to the
evidence of Mr. Ndlovu, what is immediately apparent is that on his
own evidence he was never faced with a situation
which may be
described as a
“sudden emergency”.
In
this regard, Onelogix alleged in its further particulars for trial,
in the action instituted by Trevton the following:
“
The third
vehicle moved from right to left across second defendant’s path
of travel, whilst braking hard, moving in the direction
of the
emergency lane”.
The third vehicle
referred to, is the construction vehicle, referred to by Mr. Ndlovu.
[20] Contrary to this
allegation, Mr. Ndlovu said that the construction vehicle in front of
him indicated it was turning to the
left into the closed left lane.
He had followed this vehicle as it moved from the left lane to the
middle lane, because of the
closure of the left lane. He reduced
speed when he saw this vehicle indicating it was turning to the left.
Prior to reducing speed,
he was travelling at fifty kilometres per
hour and he was following this vehicle at a distance of twenty two
metres, which he said
was the same length as his truck. This distance
was reduced to ten metres when the construction vehicle left the
middle lane. When
he applied his brakes to reduce speed his vehicle
did not come to a dead stop, but was slowed sufficiently to allow the
construction
vehicle to leave the middle lane. He estimated that he
reduced the speed of his vehicle to approximately twenty to thirty
kilometres
per hour but denied he had ever applied his brakes hard.
He said that if he had not braked he would have collided with this
vehicle.
It was then that he heard the bang of the Arabian Peninsula
vehicle, colliding with his vehicle. He said there was no emergency
which he faced, but that he was simply waiting for the construction
vehicle in front of him to move in the direction it had indicated.
The movement of the construction vehicle was a gradual movement and
not a sudden one. He said he had seen the Arabian Peninsula
vehicle
behind him before the collision in the middle lane, but had not seen
it in the right hand lane, before the collision. He
said he had not
seen the Arabian Peninsula vehicle at the time of the collision,
because he was looking forwards at the construction
vehicle, ahead of
him. Whilst he was slowing down, he did not feel the
“pup”
trailer moving into the fast lane.
[21] I find the inference
irresistible, that Mr. Ndlovu has falsely diminished the intensity of
the braking applied to the Onelogix
vehicle, in order to contradict
the allegation made by Mr. Mthwa, that the severity of the braking
caused the
“pup”
trailer of the
Onelogix vehicle, to jack-knife and collide with the Arabian
Peninsula vehicle. What other possible explanation could
there be for
such a glaring contradiction between the defence pleaded and the
evidence of Mr. Ndlovu?
[22] The fact that Mr.
Ndlovu has falsely diminished the severity of the situation he faced,
with this possible objective in mind,
does not however necessarily
lead to the conclusion that his conduct was negligent and that such
negligence, was a cause of the
collision. This is because it is clear
he must have faced an obstruction ahead of him in the form of a
vehicle, because otherwise
his conduct in braking, would be
inexplicable. Indeed, it is common cause that Mr. Ndlovu told Mr.
Mthwa that he had been
“disturbed”
by
a vehicle in front of him, although the description of that vehicle
is in dispute. If the evidence of Mr. Ndlovu, as to the manner
in
which he applied his brakes, is to be rejected, because of its
conflict with the defence pleaded of a sudden emergency, this
does
not mean that the version of Mr. Mthwa as to how the accident
happened, must be accepted.
[23] The version advanced
by Mr. Mthwa, was that he was travelling alongside the Onelogix
vehicle which braked causing the
“pup”
trailer
to jack-knife and collide with the Arabian Peninsula vehicle. For the
reasons set out above I have rejected this version,
because of the
contradictions in Mr. Mthwa’s evidence, as well as the
improbability of this version, even on Mr. Mthwa’s
own
evidence. It should be borne in mind in the present context that the
major problem in Mr. Mthwa’s evidence, were the
contradictory
reasons he advanced for moving to the fast lane. It is clear he did
so to avoid the Onelogix vehicle which braked
ahead of him. Onelogix
bears no onus to prove that the driver of the Arabian Peninsula
vehicle was negligent, nor that its own
driver was not negligent. The
only duty that rests upon Onelogix, is to adduce evidence to combat a
prima facie
case of
negligence against its driver, made by Arabian Peninsula. For the
reasons set out above and below, I am satisfied that Arabian
Peninsula failed to do this.
[24] The fact remains
that there was a duty upon Mr. Mthwa, as a driver in a stream of
traffic, to adjust his speed and the distance
from the Onelogix
vehicle in front of him, so that he was able to pull up in a way
which would avoid his vehicle coming into contact
with the preceding
vehicle, should that vehicle make a sudden stop.
The Law of
Collisions in South Africa
G. Leveson 6
th
Ed pg 49
Reemers v A A
Mutual Insurance Association Limited
1962 (3) SA 823
(W)
In addition a following
driver, in peak traffic in an urban area, ought to foresee that, for
one reason or another, traffic ahead
may suddenly slow down, or even
stop, and he must conduct himself accordingly. The closer he is to
the vehicle ahead of him, the
greater is his duty of care.
Leveson
supra
at pg 49
Union & South
West Africa Insurance Co. Ltd. v Bezuidenhout
1982 (3) SA 957
(A)
[25] Considering all of
the above, and the inherent probabilities, as revealed by the
evidence, I am satisfied that the collision
was solely caused by the
negligent conduct of Mr.Mthwa in following the Onelogix vehicle too
closely. In attempting to avoid colliding
with the rear of the
Onelogix vehicle by overtaking it, the left rear portion of the
Arabian Peninsula trailer, collided with the
right rear portion of
the
“pup”
trailer of the Onelogix
vehicle. The fact that the Onelogix vehicle may have braked more
severely than Mr. Ndlovu was prepared to
concede when giving
evidence, cannot affect this conclusion.
[26] In coming to this
conclusion I have not overlooked the evidence of Mr. Venter, who was
driving the Trevton vehicle, that it
looked like the vehicle in the
middle lane, collided with the rear of the vehicle in the right hand
lane. In other words, the Onelogix
vehicle, collided with the rear of
the Arabian Peninsula vehicle. In the context of his evidence that
the trucks on the other side
of the highway
“all of a
sudden seemed to run out of space”
and a loud bang
drew his attention to the collision, it is clear that he was not in a
position to accurately observe how the collision
happened,
particularly as he was travelling in the opposite direction at one
hundred, to one hundred and ten kilometres, per hour.
It is however
clear on his evidence, that there was nothing he could do to avoid
the door from the Arabian Peninsula vehicle, colliding
with the
Trevton vehicle. The allegation of contributory negligence on his
part by Arabian Peninsula, must accordingly fail.
[27] As regards the issue
of the payment of the legal costs of the successful second defendant,
being Onelogix in the case instituted
by Trevton, Mr. Oliff, who
appeared for Trevton, drew my attention to the decision of the
Supreme Court of Appeal in
Body Corporate of
Dumbarton Oaks v Faiga
[1998] ZASCA 101
;
1999 (1) SA 975
at
981 E
In this case Harms J A
pointed out that the typical case where an unsuccessful defendant is
ordered to pay the costs of the successful
defendant, is where the
unsuccessful defendant makes common cause with a plaintiff, to pin
liability on the eventually successful
defendant. It is clear that
Arabian Peninsula sought at all times, to establish that the sole
cause of the collision was the negligent
driving of the Onelogix
vehicle. I therefore agree with the submission of Mr. Oliff that the
unsuccessful first defendant, being
Arabian Peninsula, should be
ordered to pay the costs of the successful second defendant, and that
the plaintiff in the action,
being Trevton, should be absolved from
paying these costs.
The order I make is the
following:
In case No. 1945/2007:
Judgment is granted in
favour of the defendant.
2. The plaintiff is
ordered to pay the defendant’s costs.
In case No. 13200/2006:
Judgment is granted in
favour of the plaintiff against the first defendant for payment of
the sum of R139,833.33.
The first defendant is
ordered to pay interest on the sum of R139,833.33 at the rate of
15.5% per annum, from 04 December 2007,
being one year after the
date of service of the summons on the first defendant, to date of
payment.
The first defendant is
ordered to pay the costs of the plaintiff and the second defendant.
______________
K. SWAIN J
Appearances /…
Appearances:
CASE NO. No.
1945/2007
For the Plaintiff :
M/s K. Askew
Instructed
by :
Askew & Associates Durban
For the Defendant :
Mr. J. W. B. Wolmarans
Instructed by :
Goldberg & De Villiers C/o Taverner & Co. Durban
CASE NO. 13200/2006
For the Plaintiff :
Mr. M. A. Oliff
Instructed by
David
Gardyne & Partners Durban
For the1st Defendant :
M/s K. Askew
Instructed
by :
Askew & Associates Durban
For the 2nd Defendant
:
Mr. J. W. B. Wolmarans
Instructed by :
Goldberg & De Villiers C/o Taverner & Co. Durban
Date of Hearing
:
21 February 2011
Date of Filing of
Judgment :
02 March 2011