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[2008] ZAFSHC 71
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De Jager v Road Accident Fund (2515/2006) [2008] ZAFSHC 71 (18 September 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. :
2515/2006
In
the matter between:-
M
DE JAGER
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
______________________________________________________________
HEARD
ON:
3
DECEMBER 2007
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
18
SEPTEMBER 2008
_____________________________________________________
[1] The
matter came to court by way of action proceedings
which
were initiated on 12 June 2006. A road accident took place at
Koppies on 3 July 2004. It occurred between Kroonstad and
the
Kroonvaal Plaza at Parys. The precise scene of the accident was in
the vicinity of the Koopies turnoff on the N1 national
road. Three
motor vehicles were involved in this accident. The first was a
trailer with registration number PTM297GP and a Volvo
truck with
registration number NPN45323 which was pulled the trailer and driven
by a certain Mr. Solomon Khambule. The third was
a twin cab van with
registration number CSZ956FS which was driven by Mr. Louis Jakobus de
Jager. The physical collision was between
the trailer and the
bakkie. The plaintiff was a passenger in the bakkie.
[2] In
the summons the plaintiff claims compensation in the amount of R418
484,96 as damages she allegedly suffered as a result
of certain
bodily injuries she sustained in the aforesaid accident. She prays
for judgment in this amount.
[3] In
the particulars of claim annexed to the summons the plaintiff alleged
that the aforesaid accident was caused by the exclusive
negligence of
the aforesaid Mr. Khambule. Among others, the alleged principal
grounds of negligence attributed to him are that:
“5.2 ‘n
Vragmotor in die nag en in erge mistige weer op ‘n openbare pad
bestuur het wat ‘n sleepwa getrek
het sonder om seker te maak
dat die sleepwa se elektriese koppeling aan die vragmotor korrek en
behoorlik gedoen is en in ‘n
werkende toestand is;
5.3 ‘n
Vragmotor in die nag en in erge mistige weer op ‘n openbare pad
bestuur het sonder om homself daarvan te vergewis
dat die sleepwa wat
deur die vragmotor getrek is, se agterligte brand en/of in ‘n
werkende toestand is;
5.4 ‘n Vragmotor in die nag en
in erge mistige weer op ‘n openbare pad bestuur het sonder om
seker te maak dat die
sleepwa wat deur die vragmotor getrek is vir
verkeer wat dit van agter genader het, sigbaar was;”
[4] In
its
plea the defendant denied all the grounds of negligence attributed to
Khambule and averred that he was not negligent in any
manner
whatsoever. Accordingly the defendant prayed that the plaintiff’s
claim be dismissed with costs. The plea was filed
on 20 July 2006.
[5] Simultaneously
with the filing of its plea, the defendant also filed a third party
notice in terms of rule 13 of the Uniform
Rules of Court. The
notice, together with annexures thereto, were properly served on Mr.
L.J. de Jager, the driver of the Isuzu
bakkie in which the plaintiff
was travelling as a passenger.
[6] In the first of the
three annexures to the notice in terms of rule 13, the defendant
alleged that the negligence of De Jager
in the driving of the bakkie
was the sole cause of the collision alternatively a contributory
cause thereof. Among others, the
defendant relied upon the following
grounds of negligence on the part of De Jager:
(i) that he failed to
keep a proper lookout;
(ii) that he failed to
apply the brakes of the bakkie timeously or at all when by doing so
he could have avoided the collision;
that he failed to drive
and manage the bakkie with reasonable skill;
that he travelled at a
dangerous speed having regard to the diminished visibility on the
day in question; and
that he failed to drive
the bakkie at such a speed thus to enable him to take evasive action
or to bring the bakkie to a standstill
within the range of his
vision.
Vide
paragraph 9 of the first annexure.
[7] The
defendant also pleaded that should it be found that Khambule was
negligent, which allegation the defendant denied, then
in that event,
the defendant pleaded that De Jager was also negligent and that his
negligence was the contributory cause of the
accident; that the
defendant’s insured driver and the third party were jointly and
severally liable for the plaintiff’s
damages and that such
damages should be apportioned according to the respective degrees of
fault on the part of the drivers involved.
[8]
The
third party, De Jager, failed to file a plea to the notice in terms
of rule 13. He later confirmed at the trial that he received
the
third party notice together with the three annexures thereto and that
he would abide by the judgment of the court.
[9]
On
28 May 2007 the parties held a pre-trial conference in Bloemfontein.
Adv. A. Williams and Attorney F.J. Kapp attended the conference
on
behalf of the plaintiff and Attorney A. Ostermeyer on behalf of the
defendant. Among others, they agreed to have the merits
and the
quantum separately adjudicated. On 3 December 2007 at the
commencement of the hearing the agreement was conveyed to me.
I then
made an order in terms if rule 33(4). Therefore this judgment
concerns the merits only. The issue of quantum stands over.
[10] The
plaintiff was not the driver of any of the two motor vehicles
involved in this accident. She was a passenger in the bakkie.
As
such she was an innocent victim. Since she was not a wrongdoer, the
defendant cannot plead apportionment against her. Because
she is an
innocent claimant she only needs to prove the proverbial 1%
negligence on the part of the defendant’s insured driver,
Khambule, in order to recover full compensation from the Road
Accident Fund, as the defendant.
[11]
It
was conceded on behalf of the defendant that this is the true legal
position. Should I find that Khambule was negligent to
a certain
extent and that his negligence, in one way or the other, contributed
towards the accident, which allegation the defendant
denies, and that
De Jager, as a third party, was also negligent to a certain extent
and that his negligence contributed towards
the accident, then in
such an event the defendant will be entitled to an order whereby De
Jager is held liable to contribute to
the defendant a portion of the
full compensation the defendant might be held liable to pay to the
plaintiff.
[12]
If
that situation arises, I will then have to determine the precise
percentage of the contribution which De Jager, as a co-wrongdoer,
would have to make to the defendant, as a co-wrongdoer, by virtue of
Khambule’s negligence. The degree of De Jager’s
negligence, if any is proven, will determine how much contribution he
would ultimately have to pay once the quantum of the plaintiff’s
claim has been proven. That, as I have already indicated, will have
to be determined sometime in the future.
[13]
It
has to be borne in mind that the third party has not denied liability
for any damages the plaintiff might have suffered and
has not pleaded
that the defendant was exclusively liable therefore. The third party
has not participated in the proceedings before
me as a litigant. He
only participated as a witness for the plaintiff and indicated that
he would abide by the decision of the
court. This accords well with
the principle of our law that to the effect that where a victim
suffers damages as a result of the
combined negligence of two joint
wrongdoers but sues only one wrongdoer, who fully compensates the
victim, the wrongdoer who has
been sued, provided he has paid, has a
remedy in the form of a right of recourse against the wrongdoer who
has not been sued and
who has, therefore, not paid his share of the
victim’s damages caused by his contributory wrongdoing.
[14] I
am therefore called upon to establish the respective degrees of
fault, if any, of each of the two drivers concerned and once
this has
been done, to grant orders in favour of the plaintiff for separate
judgments against the defendant and the third party
in terms of
section 2(8) Apportionment of Damages Act, 34 of 1956. See prayers
(a) and (b) of the notice in terms of rule 13.
Alternatively, I may
grant orders in favour of the plaintiff, against the defendant and
the third party jointly and severally,
in accordance with prayers
(c), (d) and (e) of such notice in terms of section 2(6).
[1
5] Insofar
as the merits only are on trial, it would be permissible to grant a
cost order in favour of the defendant against the
third party in
terms of which the third party is directed to pay the defendant’s
costs relative to the notice in terms of
rule 13 in full and in
addition thereto a cost order in favour of the defendant against the
third party in terms of which the third
party is directed to
contribute to the defendant such portion of the plaintiff’s
costs as may be equitable in accordance
with the third party’s
degree of fault.
[16] It
follows therefore that there are three possible scenarios. If De
Jager was the sole cause of the collision between the
trailer and the
bakkie, then the plaintiff’s summons against the defendant will
have to be dismissed with costs. If Khambule
was the sole cause of
the collision between the trailer and the bakkie, then the
defendant’s subsidiary claim by virtue of
the notice in terms
of rule 13 will have to be dismissed with costs and the plaintiff’s
summons granted with costs. If both
De Jager and Khambule were
negligent and their combined negligence was the cause of the
plaintiff’s alleged injury and damages,
then judgment may be
granted in terms of section 2(6) or 2(8).
[17] The
version of the plaintiff was narrated by two witnesses, namely Marisa
De Jager, the victim and the plaintiff, and Louis
Jakobus de Jager,
the bakkie driver, also described as the third party in these
proceedings. I shall evaluate their evidence later.
At this
juncture suffice to say that the plaintiff and her witness testified
that the collision occurred in the early hours of
the morning while
it was still dark, just prior to 05h00. The scene of the accident
was covered in a dense fog and they attributed
the collision to the
fact that the taillights of the trailer were off at the time of the
collision.
[18] The
version of the defendant was also narrated by two witnesses, namely
Phillipus Jakobus Kotze, the first police officer to
arrive on the
scene and Solomon Khambule, the truck driver, also described as the
insured driver in these proceedings. Khambule
testified that, prior
to the collision he was driving the horse and trailer at the speed of
80 k.p.h. Although there was mist
on the road it was a very light
fog which did not make it unsafe for him to drive at that speed. He
slept over at Kroonstad that
particular night. Before he resumed his
trip early the next morning he checked all the lights of the truck
and the trailers and
ascertained that they were all in good working
conditions.
[19]
On
the highway, just a short distance outside of Kroonstad, he was
stopped at the weigh bridge where his vehicle was inspected
by a
traffic inspector for roadworthiness. The traffic inspector found
nothing wrong with the taillights of the trailer or of
the horse for
that matter. The bakkie in which the plaintiff was the passenger
crashed into the rear of the trailer. After the
collision the
taillights of the trailer though displaced, still functioned as prior
to the collision. The tailboard to which the
taillights were
connected was partially dislodged together with the taillights and
ended up hanging and facing downwards on account
of the impact.
[20] He
denied the suggestion that the collision took place because the
taillights of the trailer were not lit or functioning or
that a very
dense fog made the horst and trailer invisible on the highway. Kotze
testified that while he was on the scene nobody
complained to him
that the taillights of the trailer were not working at the time of
the collision.
[21] The
two versions presented are irreconcilable. On the one hand the
evidence presented by and on behalf of the plaintiff is
that the
taillights of the trailer were not burning at the time of the
collision. On the other hand the evidence presented on
behalf of the
defendant was that the taillights of the trailer, contrary to the
plaintiff’s version, were burning not only
at the time of the
collision but at all times prior to and subsequent to the collision.
[22] In
STELLENBOSCH
FARMERS' WINERY GROUP LTD AND ANOTHER v MARTELL ET CIE AND OTHERS
2003 (1) SA 11
(SCA) the court per Nienaber JA redefined the
techniques generally employed by the court in resolving factual
disputes where there
are two irreconcilable versions before it. It
held that to come to a conclusion on the disputed issues the court
must make findings
on the credibility of the various factual
witnesses, their reliability of their testimonies and the
probabilities thereof. In
DREYER
AND ANOTHER NNO v AXZS INDUSTRIES (PTY) LTD
2006 (5) SA 548
(SCA) at par. [30] Brand JA referred to the
aforegoing general technique and approved the way it was employed in
NATIONAL
EMPLOYERS' GENERAL INSURANCE CO LTD v JAGERS
1984 (4) SA 437
(E) at 440D – H and
STELLENBOSCH
FARMERS' WINERY GROUP LTD AND ANOTHER v MARTELL ET CIE AND OTHERS
,
supra
,
and described such technique as the proper approach in resolving
factual disputes where there are two irreconcilable versions.
[23] In
RONDALIA
ASSURANCE CORPORATION OF SA LTD v MTHOMBENI
1979 (3) SA 967
(AD) the facts showed that a Fiat bus driven by the
respondent’s husband had been travelling at night behind three
other
buses on a gravel road. The Fiat bus was in the process of
overtaking the third bus when it collided with the Mercedes bus
approaching
from the opposite direction. The two buses collided in
the cloud of dust, thrown up by the third bus. In upholding the
appeal
the court found per Calgut AJA that, the driver of the
Mercedes Benz bus on whose alleged negligence the respondent was
suing the
appellant, had had no reason to anticipate that a motorist
coming in the opposite direction would be so foolhardy or so reckless
as to deliberately enter and travel in the dust cloud of the vehicle
ahead of it in circumstances which would cause such motorist
to be
travelling blind. Such conduct on the part of the driver of the Fiat
bus was not foreseeable by the driver of the Mercedes
Benz bus. The
court held that the Fiat bus driver, who blindly drove in a dust
cloud close behind another bus, and worst still,
tried to overtake it
in the blinding dust cloud, was exclusively to blame for the
resultant collision. In that case the collision
was head on.
[24] Another
case where a motorist field of vision was severely diminished by a
cloud of dust is
SANTAM
VERSEKERINGSMAATSKAPPY BPK v SWART 1987
(4) SA 816 (A) at 817 and 820. In that case a bakkie crashed into
the rear of a stationary truck in a thick cloud of dust. The
dust
was caused by the third motor vehicle, a combination of a truck and a
trailer behind which the bakkie was travelling. The
mobile truck and
trailer were able to pass the stationary truck but the bakkie was
not. The court held that although the driver
of the stationary truck
was the main cause of the collision, the driver of the bakkie drove
too close behind the cloud of dust
caused by a truck and trailer to
afford himself a proper opportunity of dealing with any unusual
circumstances and also that the
driver of the bakkie was
contributarily negligent in relation to the subsequent collision with
the stationary trailer in the dust.
See also
NKUTA
v SANTAM ASSURANSIE MAATSKAPPY BPK
1975 (4) SA 848
(A) and
GROBBELAAR
v FEDERATED EMPLOYERS INSURANCE CO LTD EN 'N ANDER
1974 (2) SA 225
(A). In that case a truck was parked in a road
around a sharp bend. Later a sedan approached the stationary truck
from behind.
The sedan driver was unaware of the stationary truck
around the blind spot. The court held that the truck driver was
grossly
negligent and the sedan driver contributarily negligent. The
court found that the latter had failed to keep a proper lookout.
[25] In
general where one motor vehicle collides with another motor vehicle
which is in motion from behind, human experience is
readily inclined
to accept that in such circumstances it is most unlikely that such a
collision would not have taken place unless
the driver of the rear
motor vehicle was in one way or the other negligent. In other words
a reasonably objective bystander who
witnesses such collision will
form the first impression that
prima
facie
the collision was occasioned by the negligence of the rear driver.
The maxim
res
ipsa loquitur
applies in such a scenario. The maxim conceptualises the
circumstances in which a defendant is required to give an explanation
for the occurrence for which he is obviously to blame in default of
such an explanation been held liable. See Cooper,
Delictual
Liability in Motor Law,
1996 edition on p. 100 – 101;
UNION
AND SOUTH WEST AFRICA INSURANCE CO LTD v BEZUIDENHOUT
1982 (3) SA 957
(AD) at 965B and
FIG
BROTHERS (PTY) LTD v SOUTH AFRICAN RAILWAYS AND HARBOURS AND ANOTHER
1975 (2) SA 207
(CPD) at 211H.
[26] In
our civil law there are no two inquiries, first, to establish whether
the plaintiff has discharged the onus of proving on
a balance of
probabilities that the defendant was negligent and secondly to embark
on another inquiry to determine whether the
defendant has proven his
defensive explanation on a balance of probabilities. There is only
one inquiry namely, has the plaintiff,
having regard to all the
evidence in the case, discharged the onus of proving, on a balance of
probabilities, the negligence she
has averred against the defendant.
See
ARTHUR
v BEZUIDENHOUT AND MIENY
1962 (2) SA 566
(AD) at 574A - B per Ogilvie Thompson JA.
[27]
The
maxim
res
ipsa loquitur
,
where applicable, and I think it is in this case, gives rise to an
inference rather than to a presumption. Ordinarily if two
motor
vehicles travelling in the same direction on a straight road collide
the incidence of the onus of proof is not altered by
the maxim
res
ipsa loquitur
.
The maxim merely casts an evidential burden of rebuttal on the
defendant. Usually once the rear end collision is proven by the
plaintiff, more often the driver of the front vehicle, such an
incident
per
se
gives rise to the inference of negligence on the part of the rear
driver. Through this inference he, the rear driver, is then called
upon to adduce evidence to the contrary. He must tell the remainder
of the story, as Ogilvie Thompson JA would say.
[28] The
speed of travel and the range of vision have been debated over the
years in books, schools and courts of law. Caselaw
is not always
coherent about these important aspects relative to driving. Cooper,
Loc.cit.et.seq
,
p. 58. Although there is no general rule that a driver must regulate
the speed of his vehicle according to the range of his or
her vision,
the facts peculiar to each case will always be scrutinised so as to
establish whether the driver should have reduced
speed or not. In
HOFFMAN
v SOUTH AFRICAN RAILWAYS AND HARBOURS
1955 (4) SA 476
(AD) at 478 – 479 Schreiner ACJ remarked that
the facts of each case were decisive and that the ultimate issue was
always
whether the facts established negligence rather than whether
they show that the driver in question failed to keep his speed within
the range of his vision. The distinguished judge concluded by saying
that the failure of the driver to adjust his speed accordingly,
may
in a particular case be a crucial factor in deciding whether or not
there was negligence. See
LICHABA
v SHIELD VERSEKERINGSMAATSKAPPY BPK
1977 (4) SA 623
(O) at 629E per Fleming AJ.
[29] I
deem it necessary to summarise the version of the plaintiff and that
of her witness collectively. They testified that the
vision in front
of the bakkie was severely curtailed as a result of a thick cloud of
mist. The first they saw of the obstacle
on the road was a chevron
attached to the rear of the trailer. The taillights of the trailer
were not burning at the time they
first saw the chevron and they were
not burning at the moment of the collision. The bakkie collided
heavily with the trailer from
the rear and it was extensively
damaged. They were not immediately aware that the mechanical horse
and trailer had stopped after
the collision. They only became aware
that it had stopped further up the road once a second truck had
arrived on the scene and
stopped behind the trailer.
[30]
They
then walked from the bakkie to the first truck where they discovered
that the rear lights of the trailer were not working.
They also
noticed that the hazard lights of the truck were never switched on.
A conversation then ensued between the two drivers
regarding the
status of the taillights of the trailer at the time of the collision.
The one saying they were not working, the
other maintaining that
they were. The couple then returned to their bakkie. Not so long
thereafter they noticed that the taillights
of the trailer were
burning. They averred that the taillights became operative after the
truck driver or other persons had attended
to the electrical coupling
between the trailer and the truck.
[31] Similarly
I deem it necessary to give a summary of the testimony of the
defendant’s witness. The truck driver testified
that he was an
employee of Alex Carriers. He was obliged to telephone his employer
about any mechanical problems the truck could
manifest on the road.
The company policy was that if he received a traffic ticket in
connection with any mechanical defects of
the truck which he had not
reported, he would be liable for the payments of such traffic fines.
He was on his way from Cape Town
to Johannesburg. The truck was
pulling two trailers, both of which were loaded with cargo. He left
Cape Town at 02h00 the day
before. He slept over at the Ultra City
on the outskirts of Kroonstad.
[32]
He
resumed the journey from Kroonstad to Johannesburg in the early hours
on 3 July 2004. Before he did so, he and his truck assistant
inspected all the lights, tyres, brakes and indicators of the truck
and its trailers. All were in order. There was a coupling
electrical cord connecting the horse to the first trailer and the
first trailer to the second trailer. It was a double electric
connection. Each trailer and the truck had a chevron fixed to its
back. There was a clamp which secured the connection between
the
horse and the first trailer. Similarly a clamp secured the
connection between the two trailers. When he turned on the lights
of
the horse, the lights of both trailers simultaneously turned on.
[33]
A
traffic inspector pulled him off the highway at the weigh bridge
outside Kroonstad and inspected the truck and its trailers.
No
faults were detected. He then proceeded. He was travelling at a
speed of 80 k.p.h. in a northerly direction. There was a
thin cloud
of mist which did not impair his vision at all. Between Kroonstad
and the scene of the accident at Koppies there were
motor vehicles
that were travelling in both directions and that passed the truck.
[34]
Shortly
before the accident he saw the lights of a motor vehicle that was
approaching him from behind. The next moment he heard
the truck
rocked from behind. Soon thereafter he saw a vehicle as it was
spinning off the road on the left hand side. He saw this
in the
mirrors of the truck. The final resting positions of the two motor
vehicles after the accident were about 100 – 200
metres apart.
He and his assistant alighted from the truck, left its headlamps on
and started inspecting it and its trailers.
They discovered that the
tailboard was hanging down and that the taillights of the second
trailer, which were attached to the
tailboard, were also hanging down
but still burning. The two bars at the back of the trailer to which
the tailboard was attached,
were only damaged but not completely
severed from the trailer.
[35]
The
second truck stopped parallel to the stationary truck, ascertained
what the problem was and drove off again. He and his assistant
then
walked to the twin cab bakkie. There the driver claimed that the
taillights of the second trailer were not working. He disputed
the
claim and invited the bakkie-driver to the trailer where he showed
him that the taillights of the trailer were still working.
Later on
the police arrived. He explained to them what had happened. After
doing so, they fastened the tailboard to the horizontal
tailboard
bars. Constable Kotze testified in a nutshell that the driver of the
bakkie did not tell him on the scene of the accident
that the
taillights of the trailer were not working and that he would have
recorded it if he had done so.
[36] On
the strength of the aforegoing evidence as a whole, Mr. Williams,
counsel for the plaintiff, submitted that the version
of the
plaintiff as supported by her witness, was to be preferred to that of
the defendant as presented by its witnesses. He urged
me to find
that the truckdriver, the defendant’s witness, was the sole
cause of the accident. Mr. Daffue, counsel for the
defendant,
differed. He urged me to find that the driver of the bakkie, in
other words, the plaintiff’s witness, was the
exclusive cause
of the accident.
[37
] I
now proceed to examine the facts, evaluate the evidence and access
the witnesses. I do so in order to make findings that will
enable me
to come to the conclusion on the disputed issues. In my view there
are two critical issues. The first is whether or
not the taillights
of the second trailer were burning at the time of the collision; the
second is whether or not the density of
the cloud of mist was thick
or thin in the vicinity of the scene of the accident at the time of
the accident.
[38] The
prelude to L.J. de Jager’s evidence was that he and the
plaintiff were divorced. On his own version the marriage
subsisted
for approximately six years from the year 2000. The collision
occurred on 3 July 2004 well within the six year period
of the
marriage. Therefore, the bonds of marriage were still very much
subsisting at the time. Some three months later, on 27
September
2004, his wife, the plaintiff, signed a sworn statement about the
accident. See item 2 exhibit A. Apparently the defendant
was never
furnished with any sworn statement made by him in support of the
claim of his wife. Since he blames the truckdriver
for the accident
and exonerates himself, one would naturally have expected him to have
made such a statement. He was, after all,
her only eyewitness. I am
tempted to think that he did not do so as early as his wife did
because he did not honestly believe
that the truckdriver was as
negligent as he now wants me to believe.
[39
] Counsel
for the defendant submitted that the couple intended to create a
false impression that the twin cab driver was totally
unbiased and
that there was no reason for him to subjectively testify in favour of
the victim, his former wife. But notwithstanding
the dissolution of
their marriage through divorce, it later emerged during the course of
the hearing, that the couple continued
to stay together as husband
and wife. In opening his testimony by telling the court that he and
the plaintiff were divorced without
at the same time revealing that,
notwithstanding such divorce, they were still cohabiting at the time
of the hearing, the gentleman
was less than candid to the court.
[40] There
are a number of reasons why, in my view, the evidence of this witness
cannot be treated as that of a reasonably objective
witness. The
fact that, at the time of the hearing he and the plaintiff were still
intimately involved, though legally divorced.
The fact that he has
been cited as a third party who may potentially be held liable to
make a contribution towards the amount
of damages which the defendant
might eventually be ordered to pay to the plaintiff as compensation.
The fact that he attempted
to create the impression that he had no
motive to give evidence favourable to the victim or claimant. The
fact that he adjusted
his evidence to bring it in line with the
victim’s affidavit that was annexed to her claim form, coupled
with the fact that
the victim, now the plaintiff, still had to
testify.
[41]
His
original testimony was that the truck had stopped over a distance of
approximately 100 metres to 200 metres from the area of
impact.
However, he later changed the distance to 500 metres and 600 metres.
I have to mention that the adjustment was done after
a teabreak. The
suspicion that he might have discussed the case with someone during
the adjournment while he was still under cross-examination
and in
breach of the warning by the court, is not unthinkable. It is not
always easy for survivors of road accidents to estimate
distances
when they are confronted with sudden situations involving vehicles in
motion. But here the story is different. The
critique is not
levelled against the accuracy of the distance or otherwise. If he
had adhered to his original estimated maximum
distance of 200 metres,
which was 400 metres less than the maximum distance estimated by the
plaintiff, nothing much would have
turned on the discrepancy, huge
though it is. By attempting to narrow the magnitude of the
discrepancy he clearly improvised his
evidence and demonstrated that
he was prepared to help the plaintiff at all costs. Certainly he
seriously compromised his objectivity.
[42] He
wants me to believe that the taillights of the trailer did not work
prior to the collision and that they were damaged as
a result of the
collision, but that after a while the same taillights were repaired
by either the personnel of the second truck
or the insured driver
himself, since they suddenly started burning shortly before the
arrival of the two policemen. According
to this witness the
collision between the bakkie and the trailer was brought about by the
combination of two factors. The first
was poor visibility on account
of a dense cloud of mist and secondly a truckdriver who was towing a
trailer at night with the taillights
that were not burning. The
defective taillights more than the thick mist were largely to blame
for the collision, according to
him. Now if these were indeed the
prevailing and primary factors which caused the accident, one would
naturally have expected
an innocent driver in such a situation not
only to have mentioned these critical issues to the policemen on
their arrival on the
scene, but also to have made a statement within
a reasonable time about these factors, particularly the conduct of
the offending
driver who had created a dangerous situation on a
highway by pulling a trailer without burning lights at night.
[43] For
the reasons enumerated above I have come to the conclusion that the
credibility of this factual witness was seriously tarnished.
He had
an obvious motive to safeguard the interests of someone close, dear
and intimate to him.
[44]
As
regards the reliability of his evidence it must be kept in mind that
he was on his way from Welkom in the Free State to Steelpoort
in
Mpumulanga. He was supposed to make the forward and the return trip
on the same day. Since he had a considerable distance
to travel, he
woke up in the early hours of the morning at 03h00. He alleged that
between Kroonstad and Koppies he drove in a
thick cloud of mist. The
density of the mist was even throughout the particular stretch of the
highway. The thick density of
the fog remarkably impaired his field
of vision.
[
45] During
direct examination he did not want to say how far the truck was in
front of the bakkie when he for the first time saw
the chevron on the
road in front of him. However, during his cross-examination he
estimated that the bakkie was approximately
20 – 30 metres when
he first saw the chevron sign. His testimony was that he saw the
chevron sign and the chevron sign alone.
He could give no sound
explanation as to why he never saw the truck itself or its trailer.
It was also his evidence that notwithstanding
the mist he could see
the road ahead of him for a distance of approximately 60 – 100
metres. Again he could offer no sound
explanation why he was unable
to see the chevron or the truck itself from a distance of at least 60
meters. On his own version
although the cloud of mist was dense, his
impaired field of vision was about 100 metres.
[46] It
must also be borne in mind that he probably would have been able to
take an appropriate evasive action if he had noticed
the truck or
even the chevron itself from a distance of 60 metres. His failure to
give a sound explanation in this regard suggests
that he was not
keeping a proper look out. It makes his evidence unreliable.
[47] On
his own evidence a certain motor vehicle safely overtook the bakkie
and apparently also safely overtook the trailer with
no burning
taillights. The fact that there was a motorist travelling at a
comparatively higher speed than the bakkie who was able
to avoid the
collision suggest that the driver of the bakkie had a much better
chance of avoiding the collision on account of the
slower speed at
which he was travelling. The safe manoeuvre of that other car also
tends to support the testimony of the truckdriver
to the effect that
the density of the cloud of mist was so thin that it did not impair
his field of vision. If the fog was as
thick as the bakkie-driver
says it was and the trailer as invisible as he says it was, this
other car would probably have been
the one that crushed into the rear
of the invisible trailer before the bakkie arrived on the scene. The
fact that one motorist
was able to see the trailer whereas the other
was not, suggests that the one was more alert than the other.
[48]
It
is highly probable that the one who did not timeously see the trailer
on the road was having a lapse of concentration at a critical
moment
immediately prior to the collision. Bearing in mind the hour of the
night at which the bakkie-driver woke up, it is not
unthinkable that
he momentarily lost concentration at a critical moment. I am
persuaded by the submission that bearing in mind
the fact that the
trailer was at least 20 metres ahead of the bakkie when the driver of
the bakkie first became aware of the chevron
and the maximum speed of
60 k.p.h. at which the bakkie was travelling, the probabilities
strongly suggest that a reasonably careful
driver would have been
able to take appropriate evasive action and that the accident would
not have occurred. His failure to avoid
the accident even at that
distance and regard being had to his evidence that he slammed the
brakes – may well be indicative
of a high speed at which he was
driving.
[49] In
the light of the aforegoing I have come to the conclusion that the
evidence of the driver of the bakkie is somewhat unreliable
in
certain important respects.
[50] As
regards the probabilities it must be kept in mind that while the two
motor vehicles were still in motion on the highway
the bakkie-driver
had failed to notice the truck that was only 20 metres ahead of him.
But what I find amazing is that when the
two vehicles were stationary
and approximately 100 – 200 metres apart he was able to see the
truck which he could not see
when it was 20 metres ahead of him. To
say that he was able to see the truck at its final resting position
because the second
truck had illuminated the scene does not convince
me because while the two vehicles were mobile the bakkie itself had
illuminated
the road. The beam range of the bakkie was at least 100
metres. The truck fell squarely within that beam range. Moreover,
if
the dense fog had made it impossible for him to see the truck 20
metres ahead of him immediately prior to the collision, that same
dense fog would have made it even much more difficult to see the same
truck at a distance of 100 metres away from him.
[51] Bearing
in mind the evidence of the bakkie-driver that the impact was quite
forceful and in view of the extensive damage to
the bakkie itself
whose engine cap was completely ripped off and also bearing in mind
the considerable distance he had to cover
twice on one and the same
day, his claim that he was travelling at a speed of at most 60 k.p.h.
seems improbable.
[52] In
my view the testimony of the driver of the bakkie has some worrying
improbable features. If his original evidence is true
that he could
see the stationary truck from an estimated distance of about 200
metres, then it must be accepted that it corroborates
the evidence of
the truck driver that the cloud of mist was thin and not impairing a
driver’s vision. If his second or improvised
evidence is true
that he could see the same stationary truck from an estimated
distance of about 600 metres, then the cloud of
mist may as well be
completely disregarded as factual issue in dispute. In such a
situation there would be even a stronger corroboration
for the
evidence of the driver of the truck. Once again the end result is
the same. It means that the accident could probably
have been
avoided even if the taillights of the trailer were not functioning.
The probabilities are that the reflective chevron
ought to have made
the truck visible to any reasonably careful driver.
[53] The
plaintiff herself testified. The essence of her evidence was that
while the truck and the bakkie were mobile on the highway,
she did
not at all see the truck that was moving ahead of them. Like the
driver of the bakkie the only obstacle that she first
saw on the road
was the chevron sign at a distance of about 9 meters in front of the
bakkie. However, after the accident she was
able to see the
stationary truck at a much longer distance of about 150 metres in the
lights of the second truck. If the beam
range of the lights of the
bakkie made it possible for its driver to have a field of vision of
100 metres ahead, she should have
been able to see the trailer at
that distance. If dense fog was the problem which made it impossible
for her to see the trailer
while in motion, the same dense fog should
have prevented her from seeing the trailer when it had come to a
standstill.
[54]
She
was simply unable to give any logical explanation for the
discrepancy. There was no suggestion in her evidence or that of
her
then husband to the effect that when she saw the stationary truck the
thick cloud of mist had quickly evaporated. I find it
incredible
that she did not see any part of the insured truck or for that matter
the trailer it was pulling on the road. The lights
of the second
truck made it possible for her to see the stationary trailer she
said. So too must the lights of the bakkie itself
have enabled her
to see the same mobile trailer on the highway.
[55] Before
the arrival of the second truck on the scene, she was under the
impression that the bakkie had collided with an unidentified
motor
vehicle. She thought the truck pulling the trailer without lights
did not stop. Her witness was under the same impression.
She
corroborated her witness that they walked to the truck and denied the
suggestion that the truckdriver and his assistant walked
to the
bakkie. But she contradicted her witness as to what transpired when
the two drivers met. Her evidence was that the driver
of the bakkie
confronted the driver of the truck because they were tempering with
the taillights of the trailer.
[56]
However,
her witness never testified that he confronted the truckdriver and
warned him to refrain from repairing the dead taillights
of the
trailer before the police arrived. What he did mention in his
testimony was that the two drivers had a discussion about
the
taillights of the trailer and that they differed as to whether they
were working or not. Since there is harmony between the
two drivers
as to the content of the conversation they had about the taillights,
it follows that the plaintiff’s version
in this regard is
incorrect.
[57] It
has to be mentioned that in her primary testimony she did not mention
the current status of her relationship to her witness.
At the end of
her testimony I still laboured under the impression that she and the
witness were divorced. It was only during
cross-examination that it
came to light that the two were still intimately involved
notwithstanding their divorce. This belated
revelation of the true
status of their relationship, in a way, appears to suggest that she
was also less than candid to the court
about the relationship.
[58] In
her testimony she estimated that the stationary trailer was
approximately 150 metres away from her when she first saw it.
This
was in sharp contrast to the averments she made in paragraph 4 of her
sworn statement – exhibit A. Counsel for the
defendant argued
that she drastically decreased the distance from 600 metres to 150
metres because she was made aware of the improbability
of her
evidence. She might also have contradicted her previous statements
by a desire to rescue her witness whose credibility
was dented by
improvising his evidence to bring it in line with her prior
statement. It seems to me that she was trying to refute
the
insinuation that they had discussed her previous statement during the
adjournment. The critique that this external contradiction
between
her court testimony, and her extra curial statement, tends to suggest
that she is the type of a witness who will not hesitate
to adjust her
evidence in order to succeed with her claim is not farfetched.
[
59] As
regards reliability it has to be borne in mind that she woke up quite
early on the day in question and that she was a passenger.
The fact
that she saw the chevron when the bakkie was dangerously close,
indicates that she was not quite alert. It diminishes
the
reliability of her observations. If she could not see a huge trailer
9 metres ahead of her, how reliable can her evidence
be that she saw
small figures of five men or so between the trailer and the truck ±
600 metres away fiddling with the electric
coupling cord before the
police arrived. From their bakkie ± 600 metres away and at an
acute angle it would have been very
difficult if not impossible for
her to see someone between the truck and any of its trailers. If her
evidence was that the men
were doing some repair work behind the
trailer, her evidence would not be so doubtful and unreliable.
Besides, she and her witness
did not physically examine the electric
coupling and found any misconnection or undue tampering. The fact
that she did not mention
that the truck was pulling two trailers may
suggest that she never walked over to the truck as the truck driver
said or that she
was not particularly observant. Therefore, it is
unclear as to precisely where the alleged repairs were done.
[
60] As
in the case of the bakkie-driver there is no reasonable explanation
as to why she did not see the truck or the trailer while
in motion
but in close proximity to the van whereas she was able to see the
stationary trailer when it was about 600 metres away
or 150 metres
away. If, for argument sake, it is accepted that she was indeed able
to see the stationary truck from such a distant
final resting
position, it could only be that the cloud of mist was not as thick as
she and her witness claimed it was. And this
is precisely what the
truck drivers said. Now if the mist is eliminated from the equation
there is no explanation again why it
was not possible for her and her
witness to see the insured vehicle at any stage while it was mobile
on the highway, save for the
chevron, at the back of the trailer.
[61] In
my view there are a number of unfavourable aspects as regards the
reliability of the plaintiff’s evidence.
[62] As
regards the probabilities of her evidence the same critique which I
levelled against her witness applies to the plaintiff
as well. I
have no further comments to make.
[
63] Kotze
was an inexperienced policeman by all accounts when he attended the
scene of the accident on 3 July 2004. It is clear
that he did not
adequately interview the two drivers involved. It is quite possible
therefore that because he did not take adequate
notes he did not
remember details of the explanations given to him or the observations
that he personally made on the scene.
[64] Notwithstanding his
inexperience this police witness stated that he did not remember that
the bakkie driver had ever complained
to him on the scene about the
defective taillights and that the truck driver had repaired them
after the collision. It is important
to remark that although he did
not complete the accident report form correctly or at all in certain
respects he did complete the
portion where a brief description of the
accident is required. If the driver of the bakkie had informed him
that the thick fog
and the trailer without taillights were the
factors which caused him to collide with the trailer, he would
probably have noted
it since that information would have been the
real essence of the description of the accident.
[65] It must also be kept
in mind that the driver of the bakkie made no affidavit to the
police, made no affidavit to the victim’s
attorneys and filed
no plea to the defendant’s notice in terms of rule 13. These
objective instances of his silence strengthen
Kotze’s evidence
that L.J. de Jager did not blame S. Khambule for the accident.
Moreover, when he had an opportunity to
support his wife as to what
truly happened he preferred to keep quiet. When he had to refute
false allegations levelled against
him by the defendant on the
strength of the information obtained from the driver of the truck, he
one again kept quiet. His behaviour
subsequent to the accident
enhances the veracity of Kotze’s evidence that no allegations
pertaining to the taillights were
made to him on the scene. The
description of how the accident took place as appears on page 8,
exhibit A, is sufficiently consistent
with the evidence of the truck
driver. The police witness must have obtained this description on
the scene as a unanimous version
of both drivers. He was a neutral
witness. He had no reason to record one version favourable to one
driver and disregard the
version favourable to another.
[66] In the light of the
aforegoing I have come to the conclusion that, notwithstanding his
inexperience, inadequate interview and
inadequate notes taken and the
poor manner in which the accident report was completed, the evidence
of this witness cannot be completely
disregarded, as counsel for the
plaintiff had urged me. It was never suggested that he was an
untruthful witness. I do not think
that such a suggestion would have
been justified, but the probabilities favour his version. In
conclusion, I have to add that
he was a completely neutral witness.
I do not doubt his credibility. Therefore, he had no reason at all
to testify falsely in
favour of any of the parties involved.
[67] Khambule had no
interest in the outcome of the case. Therefore there was no reason
for him to tell lies. He was not in danger
of any criminal
prosecution arising from the collision. Similarly he was not in
danger of any possible civil claim against him.
In short, he was an
unbiased witness. His evidence was that at the time of the collision
the truck was travelling at a speed
of 80 k.p.h. the permissible
legal limit for trucks on our roads. His version was that for him it
was possible to drive at the
maximum speed because his field of
vision was not in any way impaired.
[68] He admitted that
there was mist on the scene but according to him it was a thin cloud
of mist which was why he was able to
travel at the maximum speed
permissible for an articulated truck. He gave a credible account of
the procedure he adopted before
he set out to resume his journey from
Kroonstad in the early hours of that particular morning. His actions
were in accordance
with company policy and the knowledge that, unless
he did so he would run the risk of been ticketed by traffic
inspectors and burdened
with the financial obligation to pay such a
traffic fine out of his pocket.
[69] Counsel for the
plaintiff criticised him for saying that he and his truck assistant
were together on the ground as they were
inspecting, among others,
the taillights of the truck and its trailers. The criticism has no
merits. If Khambule had remained
in the cabin to switch on its
lights, indicators, taillights and so on while the assistant was on
the ground, he would have been
told that his evidence that the
taillights were working was hearsay. His evidence was that his
assistant was not a co-driver.
He was a truck assistant and nothing
more. Therefore, it is understandable that he could not let such a
person to remain in the
cabin and to fiddle with the controls while
he was on the ground to make sure that the taillights were
functioning properly.
[70] He was not
thoroughly cross-examined on the point. He probably switched on say
the right-hand-side indicators and then alighted
from the truck,
joined his assistant on the ground and the two together made doubly
sure that all such indicators were working.
He could have followed
the same procedure with the left-hand-side indicators and the same
with the taillights.
[71] The truck was
stopped at the weigh bridge and inspected for roadworthiness. It was
still dark. No fault was found by a traffic
inspector with the
taillights of the truck or any of its trailers. It was his evidence
that at that stage the taillights were
working as perfectly as they
did earlier at the Ultra City where he had first inspected them on
his own. Counsel for the plaintiff
argued that, no weight should be
attached to this evidence because no extract from the logbook of the
truck formed part of exhibit
A to verify his evidence.
[72] Nothing significant
really turns on this critique. He explained how the taillights and
the chevron plate were fitted to the
tailboard at the back of the
trailer. He denied the evidence of the plaintiff and her witness to
the effect that the chevron plate
was completely ripped off from the
trailer by the force of the impact. I believe him. He was never
seen picking it up on the
road and replacing. His evidence was that
the tailboard partially became loose from the horizontal bars but
that it was merely
hanging down, with the taillights attached to it
also facing down but still burning. His evidence that the taillights
themselves
were not damaged, is probable. After fastening the
tailboard back to the horizontal bars, the burning taillights were
once again
correctly facing backward and visible. The plaintiff and
his witness saw the taillights burning again. As the truck left the
scene its taillights were still burning again as before.
[73] It is also
significant to remember that his evidence was that he was aware of a
motor vehicle which was approaching the truck
from behind. His
evidence that a few motor vehicles passed the truck, some from the
front and others from behind before the accident,
was undisputed.
Instead the driver of the bakkie indirectly corroborated this
evidence. Those that overtook the truck were logically
faster and
exposed to a greater risk of colliding with the invisible trailer –
yet none did.
[74] His evidence was
that at first De Jager claimed that the taillights of the trailer
were not working. He denied the allegation
and immediately invited
De Jager to the truck to see for himself. The three men then walked
away from the bakkie to the truck,
where De Jager saw for himself
that indeed the taillights were working, but merely facing down.
There was no further discussion
about the defective taillights
afterwards. Implicitly Kotze’s evidence corroborates this.
Soon thereafter the police officers
arrived on the scene and they
heard nothing about the defective taillights.
[75] A brief description
of how the accident took place, as recorded on page 8 of exhibit A,
is perfectly in line with what any
reasonable driver in the position
of Khambule would have told the police. He was travelling
northwards. The bakkie approached
him from behind and for no
apparent reason crashed into the rear of the trailer. It was then up
to the driver of the bakkie to
tell the remainder of the story as to
why the bakkie had crashed into the rear of the trailer.
ARTHUR
v BEZUIDENHOUT AND MIENY
,
supra
,
at 574H – 575A. The remainder of the story was never
immediately told on the scene. It only came to light for the first
time approximately three and a half years later. The critique that
the witness had collaborated with the plaintiff, as husband
and wife,
to fabricate a story so that she could succeed with her claim, is
understandable.
[76] In the circumstances
of the case I have come to the conclusion that, from the evidence as
a whole the only legitimate deduction
that can be made from the
rear-end-collision we are here dealing with, is that the accident was
occasioned exclusively by the negligence
of the driver of the bakkie.
I have come to this conclusion on the grounds that it is clear to me
that he did not keep a proper
lookout. It would seem that he did not
at all apply the brakes or he did not adequately or effectively or
timeously apply the
brakes. He also failed to avoid the accident
when he could and should have avoided it. The inference that
attributes negligence
to the driver of the rear motor vehicle is, on
the facts, justified in this case – Cooper loc. cit., p. 102.
[77] I find that the
taillights of the trailer were properly working and that the cloud of
mist was not such that it could have
impaired the vision of a
reasonably careful driver and that in all the circumstances the
accident could and should have been avoided.
The ultimate issue in
this case is that, in my view, the facts decisively establish zero
degree of negligence on the part of the
defendant’s insured
driver. It follows from this that I hold the firm view that the
third party was absolutely to blame
for the accident. To put it
differently, the accident was occasioned by his exclusive negligence
in the driving of the aforesaid
twin cab van.
[78] Having regard to all
the evidence in the case, it cannot be held by a reasonably objective
court that the plaintiff discharged
the onus of proving, on a balance
of probabilities, the negligence she has averred against the truck
driver.
ARTHUR
v BEZUIDENHOUT AND MIENY
,
supra
.
At the end of the case, I enquired as to where, on all the evidence,
the probabilities lie, and adjudged that they were not in
favour of
the plaintiff, the party who, on the pleadings, bore the onus of
establishing that but for the defendant’s negligent
conduct,
the accident would not have happened –
KLAASSEN
v BENJAMIN
1941 TPD 80
on p. 87 – 88 per Schreiner J, as he then was. I
want to believe that I have correctly followed the proper approach in
my
endeavour to resolve the factual disputes in this case of two
irreconcilable versions -
STELLENBOSCH
FARMERS' WINERY GROUP LTD AND ANOTHER v MARTELL ET CIE AND OTHERS
,
supra
.
Accordingly I am inclined to dismiss the plaintiff’s action
against the defendant.
[79] The defendant has
been successful in its opposition of the action. No reason exists
why the defendant should not be entitled
to the fruits of its success
not only against the plaintiff but also against the third party.
[80] Accordingly I make
the following order:
The plaintiff’s
action is dismissed.
The plaintiff is
directed to pay the costs hereof to the defendant.
The third party, L.J.
de Jager, the driver of the bakkie, is directed to pay the
defendant’s costs pertaining to the third
party notice in
terms of rule 13.
______________
M. H. RAMPAI, J
On behalf of the
plaintiff: Adv. A. Williams
Instructed by:
Wessels & Smith
BLOEMFONTEIN
On behalf of the
defendant: Adv. J.P. Daffue
Instructed by:
Webbers
BLOEMFONTEIN
On behalf of the third
party: No appearance
/sp