Kearleys Transport (Pty) Ltd v Minister of Defence (16/2004) [2006] ZAFSHC 111 (9 March 2006)

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[2006] ZAFSHC 111
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Kearleys Transport (Pty) Ltd v Minister of Defence (16/2004) [2006] ZAFSHC 111 (9 March 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 16/2004
In
the case between:-
KEARLEYS
TRANSPORT (PTY) LTD
Plaintiff
and
THE
MINISTER OF DEFENCE
Defendant
HEARD
ON:
28
FEBRUARY 2006 AND 3 MARCH 2006
_____________________________________________________
JUDGMENT
BY:
CILLIé
J
_____________________________________________________
DELIVERED
ON:
9
MARCH 2006
_____________________________________________________
[1] The
plaintiff’s claim against defendant is for damages to plaintiff’s
MAN 26-442 truck tractor combination (the truck) sustained
in a
collision with defendant’s Toyota Venture Kombi (the Kombi) on the
N1 between Kroonstad and Ventersburg on 11 March 2003 when
the Kombi
was driven by defendant’s servant in the course of his employment.
[2] At the Rule 37
conference it was agreed between the parties that the matter proceeds
on the “merits” only and that quantum
of damages would stand over
for later determination. It was thus ordered in terms of Rule 33(4)
at the beginning of the trail.
[3] The
“merits” referred to,
supra
,
concerns the plaintiff’s allegation in its particulars of claim
that the collision was caused by the negligent driving of the
Kombi
by the defendant’s driver. The defendant’s plea of contributory
negligence by the driver of the truck needs no further
comment as the
defendant did not persist therewith during the trial.
[4] In paragraph 6.2 of
its plea defendant states that
“
... the collision occurred
following a sudden and unexpected tyre burst”
of the
Kombi, thus denying any negligence on the part of the driver thereof.
Eventually this was the only issue the court was called
upon to
determine during this part of the trial.
[5] John Mattheus Gertse
was the driver of the truck. His evidence is straightforward and
simple. He says that on the day in question
at ±6 am he drove the
truck in a southern direction on the N1 on his way to Cape Town. The
truck consisted of a horse and two trailers
with a 28 ton load. On a
straight stretch of the road between Kroonstad and Ventersburg he saw
the Kombi approaching from the opposite
direction. At a distance of
± 100 – 150 metres away it swerved first to its left and
thereafter sharply to the right, overturned
and skidded sideways on
its left side across the road onto the truck’s side of the road.
Despite his attempts, a collision was
unavoidable. The point of
impact was on the truck’s correct side of the road. The shoulder
of the road is on the same level with
the surrounding area. Trees
next to the road prevented him swerving to his left. Nothing,
however, prevented the Kombi to continue
its move to its left being
the direction whereto it swerved initially. He cannot deny or
confirm a tyre burst as the cause of the
Kombi’s unusual movement.
[6] Lesley Simpson, a
witness for the defendant, is an insurance assessor. He examined the
Kombi the day after the incident. His
expertise, however, is
mechanical and in quantifying damages. He emphasized that he is
neither a tyre nor an accident reconstruction
expert. If an opinion
on tyres is to be obtained, he takes the tyre off and sends it to be
inspected by an expert in that field.
However, after looking at the
tyres, he would think that the incident is consistent with a
right-rear tyre burst. The tread of
all four tyres was within
acceptable norms.
[7] Sergeant Barnard is
the transport officer and in charge of the defendant’s vehicles at
3 Military Hospital, Bloemfontein. On
10 March 2003 he booked the
Kombi out for a trip to Pretoria. It was in a sound mechanical
condition. The driver of the Kombi,
as well as the passengers with
the exception of one, was killed in the collision. The only
surviving passenger is still in the employ
of the defendant and
stationed in Bloemfontein.
[8] That
concluded the evidence. I approach the matter on the basis that
nothing more than an evidential burden is cast on the defendant
when
raising a defence of this nature. The onus of proving negligence
remains on the plaintiff. The court has to decide at the
end of the
trial whether the plaintiff has discharged the onus of proving on a
balance of probabilities that the driver of the Kombi
was negligent.
See
SARDI
AND OTHERS v STANDARD AND GENERAL INSURANCE CO LTD
1977 (3) SA 776
(A) op 780 D – E. However,
“
Once the
plaintiff proves the occurrence giving rise to the inference of
negligence on the part of the defendant, the latter must
adduce
evidence to the contrary. He must tell the remainder of the story or
take the risk of judgment being given against him”.
See
ARTHUR
v BEZUIDENHOUT & MIENY
1962 (2) SA 566
(A) on 574 H – 575 A.
How
far the defendant’s evidence need to go to displace the inference
of negligence arising from proof of the occurrence complained
of by
the plaintiff, depends upon the facts of the particular case.
“
The defendant must produce evidence
sufficient to destroy the probability of negligence presumed to be
present prior to the testimony
adduced by him.”
NAUDE
N.O. v TRANSVAAL BOOT AND SHOE MANUFACTURING CO
1938 AD 379
at 399.
“
The
defendant in order to succeed had to produce evidence sufficient to
displace the inference of negligence which the
prima
facie
evidence, unless answered, justified the court in drawing against
her.”
SALMONS
v JACOBY
1939 AD 588
on 594.
The
last two passages were quoted with approval by Ogilvie Thompson JA in
ARTHUR
v BEZUIDENHOUT AND MIENY
,
supra
.
[9] What
evidence did the defendant produce in order “to displace the
inference of negligence”? The highwatermark in the defendant’s
case is the evidence of a non-expert who could do no better than
stating that the collision is consistent with a tyre burst of the
right-rear tyre. His later attempt to elevate this to a probability
was unconvincing and in any event remains the opinion of a layman.

Mr. Motaung, for the defendant, invited me to look at photo exhibit
A4 in this regard. I did so and it is evident on that photo
that the
tread of the tyre is missing. I must, however, admit that I am
unable to find that photo A4 is conclusive enough to convince
the
layman, as I am, of a tyre burst. According to the witness, Barnard,
the tyres of the Kombi were sound and no retreaded tyres
are used by
the defendant. I am unable to say, after observing the tyre on photo
A4, whether the condition of the tyre was caused
by a coming away of
the tread from the casing
before
or
during
or
after
the collision and what caused it. The defendant was in the position
to have the tyre examined by an expert. Why this was not done,
was
not revealed to the court during the trial.
[10] Further,
the evidence of Simpson, insofar as note, can be taken of it in this
regard, is in any event to the effect that a rear
righthand tyre
burst would lead to a sudden jerk of the vehicle to the right. The
evidence of Gertse, however, was that the vehicle
first went to the
left and then swerved to the right.
[11] The defendant’s
failure to call the surviving passenger as a witness resulted in the
court being unable to establish what really
happened. In the absence
of any indication whether he is well and able to testify no negative
inference is made from the failure
to call him as a witness.
[12] I remain uncertain
what caused the Kombi to move to its incorrect side of the road. A
tyre burst is but one of more speculative
possibilities. In the
result I find that the defendant did not “produce evidence
sufficient to displace the inference of negligence”
which the
incident itself presents.
It is therefore ordered
that the defendant is liable to the plaintiff for such damages that
plaintiff may prove he suffered as a
result of the collision. The
costs, thus far, is costs in the matter.
____________
C.B.
CILLIé, J
On behalf of
plaintiff: Adv. Myburgh
Instructed
by:
Claude
Reid Inc.
BLOEMFONTEIN
On behalf of
defendant: Adv. Motaung
Instructed by:
State
Attorney
BLOEMFONTEIN
/sp