About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2011
>>
[2011] ZAKZDHC 60
|
|
M3 Carriers CC v Ramouthar (3213/2007) [2011] ZAKZDHC 60 (1 December 2011)
KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
Case no: 213/2007
In the matter between:
M3 CARRIERS CC
…......................................................................................................................
PLAINTIFF
Vs
BALIRAJ RAMOUTHAR
…..........................................................................................................
DEFENDANT
JUDGMENT
MADONDO J
[1] In this action the plaintiff sues the defendant for payment of
the sum of R239 480.00 as damages arising out of a collision
between
the plaintiff’s truck and the defendant’s truck which
occurred on 28 September 2005 on M4 North bound at Riverside
off
ramp, Durban.
[2] The defendant has also lodged a counter claim in which he claims
payment of the amount of R39 900.00 as damages he suffered
when his
vehicle got damaged during the aforesaid collision.
[3] In the main application the Plaintiff alleges that the aforesaid
collision was occasioned solely as a result of the negligence
of the
defendant in that he failed to keep a proper lookout and he applied
his brakes at a time and in a manner causing his vehicle
to
jack-knife and thus causing a dangerous obstacle in the road for
vehicles travelling immediately behind him.
[4] On the other hand, the defendant alleges that the negligent
driving of the plaintiff’s driver was the sole cause of the
collision. The sum of R399 00.00 which the defendant claims
represents the fair, reasonable and necessary costs of repair to
defendant’s
motor vehicle. However, at this juncture the
quantum of damages each party allegedly suffered is of no
significance since this
court has been asked to determine the issue
of liability only.
[5] The plaintiff called one witness, Praveen Ramidas, who testified
that on 28 September 2005 he was driving a horse and double
trailer
on the M4 northern bound which is a two lane carriageway. He was
travelling in the left lane and the defendant’s
truck was in
front of him, travelling in the same direction. There was a three
vehicle gap between the two vehicles. As a result
of the debris and
stones falling off the defendant’s vehicle, Ramidas moved onto
the right lane. The defendant’s vehicle
also moved onto the
right lane. At the time the gap had decreased by one vehicle length.
[6] Suddenly Ramidas saw the brakes of the defendant’s vehicle
coming on. In order to avoid collision with it, since it was
too
close at the time, Ramidas moved to the left. The defendant’s
vehicle also swiftly moved across, cut off Ramadas` vehicle
and
jack-knifed in front of it. In consequence thereof Ramadas` vehicle
collided with the defendants’ left rear trailer.
At the time
Ramidas was travelling at the speed of 15-20 kmh.
[7] Defendant testified that on the day in question he was
transporting soya which was crushed fine and very light. He denied
that any stones could have fallen from the back of his vehicle. The
road on which he was driving was flat, the weather as well as
the
visibility was good. He could see a distance of 700m ahead of him. As
he was driving in the left lane, he suddenly saw two
Metropolitan
buses stationary on the left hand side of the road. On seeing these
buses he moved onto the right lane. The truck
behind him also moved
onto the right lane. On Riverside Road when he was at a distance of
20-25m away from the said buses, one
of them indicated, turned and
blocked the right lane. At the time the plaintiff’s vehicle
which was travelling behind him
was very close.
[8] Under cross-examination as well as re-examination Ramidas
conceded that immediately prior to the collision he was following
the
defendant’s truck too closely and that had he kept a larger
following distance, he could have avoided the collision with
the
defendant’s truck which was in front of him.
[9] Under cross-examination the defendant was hard put to explain why
he had only seen the buses when they were 50m away from him
while he
was travelling on a flat road with 700m visibility. The defendant
then conceded that had he kept a proper lookout, he
would have seen
the buses ahead of him at a distance. He further conceded that his
truck jack-knifed before the collision.
[10] He further stated that when the collision occurred both trucks
were on the right hand lane. However, the defendant was hard
put to
explain how it happened that Ramidas` truck crashed into the left
rear of his trailer by its right front portion if the
two trucks were
directly following each other on the right hand lane.
[11] In my view, the version of plaintiff’s driver, Ramidas,
that when the defendant’s truck turned onto the left it
jack-knifed and that as a result the right front portion of his truck
caught the left rear of the defendant’s trailer, when
it is
compared to that of the defendant, it is more probable and plausible
and it clearly explains how the collision occurred.
[12] However, evidence shows that Ramidas was negligent by not
keeping a safe following distance between his truck and that of
the
defendant, ahead of him. On his own version had he kept such
distance, he could have avoided the collision with the defendant’s
truck. This, in other words constitutes an admission by Ramidas that
he was negligent by driving too close behind the defendant’s
vehicle.
[13] The defendant driving on a flat stretch of road where he could
see 700m ahead of him claims to have seen the Metropolitan
buses
which were stationary on the left side of the road for the first time
when he was 50m away from them. He could not tell what
could have
obstructed his line of vision. This, in my view, clearly points to
the fact that the defendant has not been keeping
a proper look out.
[14] Secondly, the defendant merely tapped his brakes and he did not
sufficiently reduce the speed of his truck to such an extent
that he
could easily avoid collision with the buses in front of him or that
he could stop within a safe distance away from the
buses, if either
of them unexpectedly drove into the carriage way in front of him.
[15] Thirdly, the defendant drove on until he was 20 – 25m away
from the said buses and he thereby negligently allowed himself
to be
in a situation where he had to take a quick evasive action. In taking
such an action he did not look at his rear view mirror
in order to
establish the whereabouts of the vehicle behind him, but he simply
moved to the left. The evidence shows that when
the defendant’s
truck moved to the left, Ramidas’ truck was three quarters onto
the left lane. Had he looked into the
rear view mirror and kept a
proper lookout, the defendant would have seen that the truck behind
him was then in the process of
moving onto the left lane in order to
avoid collision with his vehicle.
[16] Fourthly, the defendant failed to manoeuvre his truck properly
so to be able to safely negotiate a turn into Riverside Road
(a sharp
angle turn) – causing his truck to jack-knife. All this shows
that the defendant takes the greater part of the blame
for the
collision though it cannot be said that the collision was solely
caused by his negligence.
[17] The defendant also intended to call Ricky Nelson Soobramoney, a
Captain in the employ of Durban Metropolitan Police Service,
as an
expert witness. However, prior to Soobramoney testifying on the
merits of the matter and expressing his opinion on the accident
reconstruction, this Court was asked to determine and rule on the
sufficiency of his qualifications experience and expertise so
to be
said to be an expert witness who could express an opinion on accident
reconstruction. After hearing the said Soobramoney
on his
qualification, experience and expertise and considering argument by
both counsel, I ruled that Soobramoney has failed to
show that he has
sufficient qualifications, experience and expertise to testify as an
expert witness on the subject. Whereupon,
the defendant closed its
case without calling any further evidence.
[18] In the light of the finding that the defendant’s
negligence has largely contributed to the collision, I deem it
unnecessary
to deal with his counter claim. Taking into account the
degree of negligence of each party, I deem it just and fair that
their
contribution to collision be apportioned as follows:
The plaintiff’s negligence has contributed 30% to the collision
and the defendant’s negligence 70%.
[19] In the result, the defendant is 70% liable to compensate the
plaintiff for the damages it suffered on 28 September 2005 as
a
result of a collision between the two vehicles with costs.
Date judgment reserved: 30 September 2011
Date judgment delivered: 1 December 2011
Counsel for plaintiff: Adv Oliff
Instructed by: PERUMAULS ATTORNEYS
REF: MRS S. PERUMAUL/M274
Counsel for defendant: Adv Dheoduth
Instructed by: RAVINDRA MANIKLALL & COMPANY
REF: MR MANIKLALL/R148